How Do We Solve the Baby Litigator Crisis?

How Do We Solve the Baby Litigator Crisis?

TexasBarToday_TopTen_Badge_VectorGraphicFirst let me say for the record: I think it’s great when senior litigators give young lawyers opportunities to do things like arguing motions and taking depositions. That happened to me when I was a “baby lawyer,” and I’m grateful.

Having said that, I have to confess it has finally happened. I’ve become a grumpy old man. At 45 years old, I feel like I’m not even at the half-way point of my career, and I still think of myself as young. So what has me feeling like throwing open my front door and shouting “you kids get off my lawn”?

Well, lately there has been some handwringing in the legal community about the fact that younger lawyers don’t get to stand up and talk in the courtroom very often. (And forget about the decline in jury trials–that ship has sailed; we’re just talking about hearings and oral arguments.)

As a result, programs designed to give younger lawyers more courtroom speaking opportunities are now a “thing.” Some judges have even adopted formal policies designed to encourage more experienced lawyers to allow less experienced lawyers to argue cases in court.[1]

A First-World Problem?

The shortage of courtroom speaking opportunities for young litigators strikes me as a great example of a First-World Problem. If you’re not familiar with the concept, a First-World Problem is something that causes great annoyance to the upper-middle class in America, until you stop and think about whether someone in a third-world country would consider it a problem.

My personal favorite First-World Problem is when I order a cappuccino at Starbucks and they make it more like a latte. As I get the urge to complain to the barista, “more foam, less milk!” I have to stop and think to myself, “dude [I like to call myself ‘dude’], there are millions of people in this world who don’t even have clean water to drink.” And in the wake of Hurricane Harvey, I’m even more reluctant to complain about my relatively trivial problems.

Don’t get me wrong. I’m not saying that the lack of courtroom opportunities is not a problem for younger lawyers. But I have two concerns about the reaction to the problem.

What’s best for the client?

First, the reaction seems too focused on the needs of the lawyers, rather than the needs of the clients.

Mind you, I’m not suggesting the reaction is based on heartfelt concern for the job satisfaction of the young associates. Please! The problem big law firms are concerned about is “how can we justify charging $750/hour for a junior partner who never got much courtroom experience?” (Note to self: update this post once a year to increase the rate by $100.)

Maybe this is naïve, but I like to think that law firms should assign tasks based on what is best for the case and the client. For a routine motion or a deposition of a minor witness, there’s no reason to send the senior partner when a junior associate can do the job—and at a lower rate.

But who should handle a more difficult assignment, like arguing a case-dispositive motion, taking the deposition of a key hostile witness, or telling the CEO “we need to image your smartphone”?

In those cases, the overriding question should be who is going to do the job most effectively.

That doesn’t necessarily mean the assignment goes to the more senior lawyer. Sometimes the junior lawyer who knows the facts, documents, and case law inside-out may do just as good a job (or better). In those cases, I say give the young lawyer a chance. My Young Associate Development Program would simply be this: a tie goes to the less experienced lawyer.

The point is to focus on what is best for the case, not what is best for the law firm. Most clients don’t want to foot the bill for training young lawyers.

A radical alternative solution

The second problem I have with the reaction to junior lawyers not getting enough courtroom time is that the whole thing seems a little BigLaw-centric.

If you’re an associate slaving away at a big law firm and not getting enough courtroom experience, you have a few options. You could complain to the partners and hope they throw you a few more breadcrumbs. But if taking the lead in the courtroom is truly important to you, then the better solution is to bring in your own clients.

The problem, of course, is that not many third-year associates are going to land the kind of blue-chip clients who will pay BigLaw rates. So you may have to swallow your pride and find a job at—brace for it—a small firm, where you may have a better chance of developing your own business.

Or if you really care about being in charge of your own matters, you could take the plunge and hang out a shingle. In a solo practice, there is a very good chance the managing partner will let you argue the cases in the courtroom all you want.

Now we’re getting to the nitty-gritty. Because these options may mean shifting your expectations. You may need to trade in that new Lexus for a used Subaru. You may need to take your next vacation in Paris, Texas, rather than Paris, France. You might have to—gasp!—cancel your membership at the country club. You may be embarrassed at the law school reunion when you see your friends from law review and they ask where you’re working now.

And your clientele may have to change. You may no longer find yourself reporting to the Deputy Assistant General Counsel for Employment Litigation, Southwest Region, of a Fortune 500 company. Instead, you may find yourself reporting to Jim Bob, a middle-aged guy who dropped out of college to start a plumbing supply company.

But you know what? You may find that Jim Bob is smarter than you thought, and representing his company can be a lot of fun. Plus, when you’re in charge, you’ll get to argue his case in court all you want.

And, who knows, after a few years you may be the one sending a baby litigator to the courthouse in your place.

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head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands. He is much nicer to young lawyers in person.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] An interwoven issue is providing more opportunities for female lawyers. That’s an important topic in its own right, but for simplicity I’m saving it for a future post.

Lawyers, Want More Clients? A Business Development Coach Says Sell Less, Listen More

Lawyers, Want More Clients? A Business Development Coach Says Sell Less, Listen More

This week I’m doing something a little different: featuring a guest blogger. Karen Kaplowitz is a lawyer and business development coach with The New Ellis Group. I met Karen at a law firm retreat years ago. Since then I have enjoyed reading the insightful and practical advice she publishes in her weekly newsletter, Monday Monday. Karen graciously shared this post with some helpful–and somewhat counter-intuitive–advice for lawyers on business development:

Business Development Tips from Karen Kaplowitz

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Karen Kaplowitz, The New Ellis Group

Stop Pitching and Start Discovering.  Many lawyers are busy lining up as many opportunities to “pitch” as possible, inside and outside their firms, and casting about for people who can give them business. If you are finding that clients and prospective clients are not rushing to set meetings for you to pitch them, consider these strategies instead, which focus on positioning yourself to discover what your clients need:

  • Don’t make giving presentations on your firm’s capabilities a top priority; do find reasons your clients have an impetus to invite you in.
  • Don’t go to meetings or lunch prepared to pitch, waiting for the opening to talk about your services.  Do go ready to ask probing questions about the company’s problems that might lead to work for your firm.
  • Don’t ask new colleagues in your firm which of their clients you can meet.  Pick one of your clients and discuss where the fit might be for your new colleague.
  • Don’t plan meetings to ask clients for more work; do plan meetings to get feedback so you don’t fall short of their expectations going forward.
  • Don’t rush to offer your opinions and solutions in conversations; listen carefully and encourage clients to elaborate on their struggles first.

Example:   Your client’s law department has changed significantly in the last year; senior lawyers you knew have retired; there were layoffs and consolidation; and most disturbingly, lawyers from a competitor law firm have infiltrated the law department.  A few times, you have offered the general counsel to bring in a team to make a presentation to insure the new people know your firm.  She always says “great” but never sets it up.

You try a different tack.  First, you ask for a new org chart of the law department, and bios if available. Then you ask when your people could meet the new in-house lawyers to hear from them what they are up against.  The general counsel warms to the idea of your investing in learning about her new team’s challenges and invites you to an all hands meeting.  You propose a meeting agenda for the client’s department heads to make short presentations on their priorities, with questions from your lawyers.  You help your team prepare to probe the new priorities.   At the end, the general counsel invites you to introduce your people and to stay for coffee.  You have planned your lawyers’ introductions of themselves to be very brief but targeted to the client’s most pressing needs. There is lively discussion when everyone mingles over coffee.

Are you willing to consider substituting “reverse presentations” from your clients instead of pressing to give presentations about your firm to clients?  Is the urgency to make this year more successful causing you to push too hard when active listening, probing, and connecting the dots are the better course of action?

This piece was originally published by Karen Kaplowitz of The New Ellis Group, a business development strategist and coach who works with lawyers all over the United States.  It is available in the archives of the Monday Monday newsletters.

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So, the next time you start to “pitch” your services to a potential client, remember Karen’s advice and think about “discovering” instead.

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Zach Wolfe is a Texas trial lawyer handles litigation involving non-competes, trade secrets, and other business disputes. His firm Fleckman & McGlynn, PLLC, has offices in Austin, Houston, and The Woodlands.