Welcome to the Building Better Lawyers conversation.  We’re using this space to collect stories, ideas and anecdotes to identify the gaps between what we need lawyers (new and experienced) to be able to do and where our current education, training and practice methods are falling short of meeting those needs.  Our initial focus is on early stages in people’s legal careers but we are also interested in surfacing issues arising with later-stage experienced practitioners.   Please post your story and categorize as either a “Problem Story” or a “Success Story”.  The ultimate goal is to answer questions such as “What would you like (new or experienced) lawyers to do better?” “How do you operationalize the concepts of “quality” “value” “merit” in your own organization–so that you can reward doing ‘better’?”  Feel free to identify particular skills, abilities or areas of knowledge.  Don’t worry about what is teachable in law schools versus what must be learned from practice; we’ll address those distinctions in the workshop.  For now, we are just looking for the raw material to work with.

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In my experience, the problem with outside legal services is most pronounced when the issues are a blend of legal, commercial, and risk management.  This is often called the “DNA gap” between corporate counsel and private practice.  In this domain private practitioners don’t always demonstrate the key traits that result in work product that’s either readily consumable by a client or reflective of the commercial and market drivers.  By this I mean producing a product that can guide the client and help them solve the commercial problem at hand.

What’s missing are the attributes and style of thinking which, when employed, adequately equip private practitioners to really “counsel” and thus serve the client’s needs.   Note, this isn’t true of all practitioners, some really, really get it, and they tend to be known as pragmatic and have many start-up clients.   I’ve also seen these traits more often in attorneys and firms that do a lot of venture capital financing – which is no surprise because at that point everyone is extremely focused on product, execution, time to market, and differentiation.

Below are four attributes that IMHO are essential to bridging the gap.

Attributes

The Model. Understanding the business model and commercial issues in play is paramount.  If you don’t really understand the business objectives, it will be impossible to know what the risks really are and are not.

Information.  To adequately advise, counsel needs to know the same information and news that the clients know. Business cycles are extremely dynamic and fast paced today, so you have to read the same content your clients are reading to establish your base of knowledge.

Synthesis. Because the commercial environment is changing so fast, it’s imperative that there is an ongoing process of re-evaluation of the information and drivers.  The clients are doing this, and so should counsel.

Leverage.  This describes the process of constantly looking for the most efficient way to achieve the desired result.  A client may state that they want to employ “x” method to achieve a certain result, but it’s incumbent upon counsel to interject and think about other ways that may achieve the same result most efficiently with or without legal means if possible.

The Story:

Some time ago, we were faced with an explosion of Firefox branded browsers (not produced by Mozilla) that contained malware and spyware. To make matters worse, the browsers were being sold using a subscription model to trap unsuspecting users.  We consulted outside counsel in this domain, and the general recommendation was file a complaint on preliminary injunction.  While this may be a component of the solution, it turned out it was, there were so many fraud schemes we could never keep up.

One recommendation was to go after the largest fraud syndicate using John Doe pleadings, with the caveat that the perpetrators of the scheme were unknown, likely would not be identified, and chasing the persons responsible would take years, because their identities were obfuscated by layers of off-shore corporate entities. The net net was, spend hundreds of thousands of dollars for a completely uncertain result with a time horizon of years.  So where’s the leverage in this?

The other alternative was to go after the choke point, which is the search engines which advertise the fraud scheme.  Each search engine has a procedure to remove fraudulent trademark advertisers that costs nothing and requires only some diligent letter writing.  This method gave us tremendous leverage because we could make a broad impact by focusing on a key point in the ecosystem.  Ultimately, we did also employ injunctive relief in favorable jurisdictions, but only when absolutely necessary.

In my dream world, counsel would have presented the search engine approach as an option, or at least as part of a comprehensive strategy, but through no fault of their own, they’re not really trained to think that way. They have a hammer and everything is a nail.  If outside counsel employed the attributes described above, and perhaps other non-legal analytical skills that I’m still trying to master, we might see more creative approaches that better serve client needs.

legal · legal education · legal innovation

Some of my own bitter, but enlightening, experiences as former Corporate Counsel at the Australian operation of the Marsh & McLennan Companies led me to start up my own business. I now consult to and train clients, including law firms, to thrive (and in some cases survive) by better meeting the needs of their clients.  Like Kent Walker of Google, my needs as a Corporate Counsel were essentially to receive good advice in a format that I could easily use to get things done.  I struggled to find a firm that could meet these needs.  Thankfully, I now have law firm clients who are bravely starting to take unconventional steps to better meet these needs.  They are creating a competitive edge and already realising measurable benefits.

This ‘war story’ illustrates one of my bitter experiences as a Corporate Counsel and how my clients are now innovating to avoid inadvertently inflicting similar experiences on their own clients.  I share this war story with all of my law firm clients as a way of persuading them to innovate and acquire the skills needed to do this.  I believe it illustrates how well-entrenched practices need to be re-examined and changed when they do not meet their clients’ needs. Ultimately, not meeting their clients’ needs creates a world of pain for them, too.

I should stress that in the five years I worked as a lawyer in a law firm, I did not think to innovate in these ways. Why?  My education and experience meant I had no real understanding of my clients’ needs or how effectively to meet them.  I only appreciated these things when I left the law firm environment and became a client myself.

So, here’s the war story.  I was part of a team working on a transaction. I briefed a Big Law firm to give me some advice so I could make a more informed decision about how to negotiate a particular clause in one of the transaction documents.  I told them the negotiations, and therefore the advice, was time-critical. I received the advice by the agreed deadline but it did not meet my needs because:

• one of five assumptions the firm relied on was incorrect.  So, the advice was incorrect.  The assumption was one that the firm could have checked with me as soon as the need to make it arose.  The firm did not do this because it was (and still is) not common practice to do so. Instead, the firm listed the assumptions and invited me to let them know if the assumptions were wrong (so they could write, and charge me for, another memo).
• three of the five scenarios explored were irrelevant to the transaction.  Again, the firm could have checked with me which scenarios were relevant and, more importantly, which I would have liked them to take time to explore. Instead, standard practice was followed. I received, and was charged for a memo, three-fifths of which was irrelevant to the transaction.
• the format of the memo was not fit for my needs and the needs of the other stakeholders in the business. It was (and still is) common practice for firms to document their analysis and present it in a way that makes it impossible to easily disseminate to all stakeholders without having to be summarised or rewritten. 

The experience was bitter for the firm, too. The lawyers involved had to:

• drop everything, work through the night to reconsider the advice and rewrite the memo relying on the correct assumptions and focusing only on relevant scenarios.
• write off the time recorded in giving the incorrect advice.  I was ordered by the leader of my transaction team not to pay for the incorrect advice.  (At the time, this seemed to me to be very radical.  I suspect that more and more clients will do this, especially in the current economic climate.)
• invest in rebuilding the damaged relationship with our business.

Thankfully, the transaction was not compromised.  If it had, the experience would have been so much bitterer for our business and the firm.

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From Kent Walker, GC Google (Paraphrased summary from phone interview)

• At the end of the day, we’re looking for two things:  good advice and trying to get things done.  These are different and firms may be great at one and not so good at the other.  I’ll happily pay $1000 an hour for the first few hours of time with a fantastic lawyer–that’s the advice part.  It’s the churn of associates and helping us get things done that frustrates me.  Project management is just something most lawyers are not good at.  Commericial/corporate lawyers tend to be better at the ‘getting things done’ piece because they are used to pulling various components of a deal together on a timeline.

• There’s a basic disconnect from the end-project goal, a mismatch with our business focus.  Lawyers in firms often take a more academic approach.  Lawyers in law firms see themselves in the academic business, the information business.  Lawyers in-house are in the decision business. We’re focused on delivering on time.  For us, sometimes 80% has to be good enough.  We need to take our best guess in a complex setting and move forward.

• I hate memos.  They are almost always worthless.  I don’t want you to show me your work.  I don’t care how you got to the answer. I just care about the answer.  I’ll pay $50,000 for the right answer.  We may need the written analysis in some cases, somewhere, for someone to verify–but it’s not what we’re buying.  Sometimes it’s our fault.  We ask:  “give me an analysis of X”.  But we don’t want an analysis, we want “what should we do about X”  I’m going to get a 50 page memo and I just want advice on a course of action.  I’m only interested in the Executive Summary.

• Looking for great lawyers, you’re trying to figure out who is going to give you the best answer–and it’s hard to tell. But what are the proxies you search for to find the person who can give you the right answer?  If a market existed to help judge that, this would be great. The great lawyers are the ones who understand that I don’t want a 50 page memo of analysis of an issue; I want an answer.  I want advice and I want to know how to get something done.  They know I’m in the decision business, not the law firm’s information business.  These lawyers have great judgment and understand my problem.  They have good presentation skills.  They’re smart and show quality of judgment.  They can go into a meeting with the executive team and have my proxy. I know they are on the same page that I am. In my career, I’ve met 3, maybe 4 or 5, of these great lawyers.  Perhaps it is just that they have a set of personal qualities that are rare.  [Asked:  Would they be able to train younger lawyers to do what they do?  Could they clone themselves?]  Interestingly, I don’t see the great lawyers working any differently with associates.  They’re great but their associates are often not so great.

• Take a look at one of the recent issues of The Atlantic Monthly:  it’s a story about Teach for America.  This study is developing metrics about what makes a good teacher.  They’re finding things such as:  high grades, not so important–but improvement in grades is; demonstration of commitment and determination matters; a person who continually wants to reinvent themselves.  This is the same exercise we need to do–to figure out what makes a ‘great’ lawyer.

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I thought I would contribute a brief story on how we at Freehills (an Australian commercial law firm) developed competencies for specific role levels (graduates up to their first 2 years, partners, and secretaries – so far!) to add a different layer to the discourse. (For those of you interested in more information, the model we follow was developed by SHL People Performance, www.shl.com.)

Instead of asking a specific question of ourselves and others such as “what skills, attitudes and behaviours do we expect of lawyers at level x?”, in the hope that such a question will result in a clear and well-differentiated list of competencies and other relevant attributes, we instead sought to extract these nuggets from interviews through story telling and close questioning. We took this approach because we know from experience that people find it difficult to extract the defining behaviours that truly contribute to performance success when asked such a direct question, without reaching for platitudes or unhelpful generalisations. Additionally, we aimed to produce a list of specific, observable, enabling behaviours within competency clusters so that those in the role could identify their strengths and weaknesses, and find ways to improve their performance. (We anticipate it will also provide a common language for making comparisons between individuals’ performance at salary review time, and will aid individual performance management discussions in the future.)  

 While we used a number of interview techniques prescribed by SHL to build our competency models, I have only described the ‘Critical Incident’ approach here.

Having established the interview list (30% of role group, supervising manager, manager, other key stakeholders in the firm) we set about our interviews by asking the interviewee to define the key tasks of the role as a framing exercise. We then asked them to nominate at least 4 critical incidents related to the role which are recent (last 3 months), were significant in some way (highly successful, highly problematic), and were either task related or person related. 

As interviewees proceed, we asked them to relate the chronology of the story in great detail but interrupted them with specific questions such as “what did you actually say to them?”, “what was their response?”, “what did they actually do when you pointed out  …?”, “what did you observe them doing and was it effective” . This questioning technique has two purposes: it helps the interviewee to return vividly to the actual moment, and it also helps the interviewer to extract specific behaviours which either enabled a successful outcome, or inhibited a successful outcome.  (Once you have extracted a behaviour, you can also test the significance of that particular behaviour with the interviewee from their experience, compare behaviours to identify which is more important than an other and so on which helps you to begin forming an idea about the taxonomy of effective behaviours for the role.) We repeated this exercise for each of the critical incidents nominated by the interviewee which enabled us to create a list of statements from a single interview that may go to: interpersonal skills, technical legal skills, business development skills, client relationship skills, personal management and efficiency for example.

Once we completed our interviews, we reviewed the  list of statements (3000 was common for a role) to reduce these to the most important behaviours per competency. In this process it is relatively easy to identify those behaviours which feature most frequently and to prioritise them according to order of significance. At the end of the process, we have been able to construct a unique list of observable enabling and inhibiting behaviours, in the language used by our firm, which is consistent with our vision and values and is a cultural ‘fit’ to our organisation.

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As I have observed the very valuable “null set” – it has caused me to think about why some businesses have no disputes, litigation, or regulatory inquiries?  And on the positive side of the equation, some of the same businesses also have better contracts and beat their competitors in the legal/regulatory environment in which they operate.  Is it “luck”?  Or is there something else going on?  And if something else is going on, how can we replicate it?

 As a general counsel of a Fortune 100 company, I am asked to provide the above identified results in the legal, regulatory legislative arena for which I am ultimately responsible.  That is, I need to advance our business strategies by producing a competitive advantage for my company by creating a less risky and better environment for us to legally beat the competition. As a support function, this has to be accomplished in a cost effective manner, and must be done with the ethics and integrity which support a company and brand which has been in existence since before the Civil War.

 So how do we generate the creative and innovative results which advance our business strategy/objectives?  There are several key steps in the process, but it all starts with the attorneys and other legal professionals we have within our business and our external partners (generally law firms). You will note that I combine attorneys and legal professionals together since from an in-house perspective I am indifferent if you are an attorney, professional, paralegal or staff member as long as you are helping our diverse team provide the quality advice and counsel our clients need in a cost effective manner.

 We believe there are a certain set of attributes which our staff and partners must have to make the likelihood of that success the highest.  The attribute we probably value most is intelligent individuals, with particular expertise who have ethical and sound judgment which allows them to develop strategies and tactics to advance our client’s business objectives.  In addition, the provision of the judgment requires the communication of customized accurate advice and counsel that solves for a given business problem. To be done most effectively, the advice needs to be anticipatory and proactive.  For most issues, this requires a general understanding of business, and more particularly the business we are involved in.  To be effective, our legal staff must be engaged, productive, passionate and motivated with a client focus which instills confidence. We must collaborate as a team with our clients, staff and our external partners. Finally, as part of the overall team, we need to effectively and efficiently use resources (external and internal).

 Of the factors identified above, probably the most key is ethical and sound judgment.  So what is “judgment”?  A dictionary may define judgment as “the facility of being able to make critical distinctions and achieve a balanced viewpoint; discernment”.  My team and I have spent time thinking about this and we believe in our business setting it is about effective, productive actions in multidimensional settings which are aligned with business objectives.  This involves: identifying what is important in any particular issue or problem; gathering the appropriate information to understand the issue or problem; determining if there is a need for additional data or inputs (internal or external);   integrating the information to identify trends, patterns, problems and opportunities;  critically evaluating goals, obstacles, likely responses, and proportionality of risks, costs and benefits of action; understanding the impact of action on multiple constituencies;  knowing to whom and when to escalate a decision;  listening to, evaluating  and integrating, often conflicting, views before taking action; and the action taken actually solves the issue or problem and the solution can be efficiently implemented – that is all implications have been thought through, etc. Finally the action has to be timely, balancing the degree of uncertainty and ambiguity (a nondecision can often be a decision in and of itself, and may not be the best one).

 Now I step back and ask if we receive the above attributes from the attorney at the law firms we retain or the lawyers our law schools produce.  

 At the law firm level I believe that when done properly we can and do buy and manage the expertise and judgment which we do not want to staff for inside.  However, we generally have a total mismatch on the ultimate business objective – I want to buy results and I traditionally have bought hours and since I bought hours, I got hours. To move us to the next level we need to begin thinking about how we can work with firms to better align them with my team to produce results for the business.  I often hear corporate counsel complain about what they are getting from firms in this regard, and my view is “look in the mirror”, we are the purchaser, we get what we are paying for.  We need to move away from the concept of purchasing hours and in many more situations look for the “win/win”.

 Interestingly, for my in-house team, I do not buy hours.  My professionals are compensated on a salary basis and their titles, promotions, bonuses and other rewards are based upon their performance and the results they produce, not the hours they work.  I am indifferent if their best ideas are generated in the shower or hot tub or an excellent result is obtained from a Blackberry email from the dance recital or soccer field.

 At the law school level I do not believe we currently train students all the skills that they will ultimately need to be effective in a corporate in-house legal setting. Do we really teach them how to exercise judgment, be efficient, have a business knowledge and focus, distill communications down to what is understandable and important to non-lawyers, gather and assess business and other data, manage resources, and effectively work in a diverse team setting?  Although the skills taught in law school may create a foundation for the practice of law in a law firm setting, they are a subset, and some are inconsistent with, what is necessary to be effective in an in-house corporate environment.   If there is a desire for students in law school to have opportunities in corporate settings, the non-legal skills identified above should be taught to such students. This would both make it more likely they could have the chance to work in an in-house environment and make them more successful if they choose to do so.

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From Roberta Katz, former GC Netscape

My biggest issue with outside lawyers when I was a GC arose when they did not try to understand a legal problem in its context.  For these lawyers, the problem was in essence either a law-school exam – i.e., a puzzle to be solved through superior intelligence – or a bar-room brawl – i.e., a fight to be won through superior bravado and power.  What I looked for in outside counsel was a more nuanced understanding of a client’s concerns over dollars that had to be spent (reluctantly) to defend against a wrongful claim or to pursue a lawful right.  Law expenses, to a client, are just that – expenses, and in a well-run company, all expenses are looked at closely to make sure they are warranted and as economical as is reasonably possible.

All too often, outside counsel demonstrated both an ignorance and an arrogance that I personally found disdainful.  I looked for the outside lawyers who could put themselves in the client’s shoes, at least long enough to understand why a company was willing to spend money on the case and to understand that the demand for an attention to hours was not just a frivolous request but in fact a serious tactic in managing the case for the benefit of the client.

I vividly recall one example.  We had hired a prestigious outside firm to assist us with a complicated piece of litigation.  I enjoyed working with the lead attorney – he was bright and engaging.  I told him early on that it would be very important to manage the hours spent on the case, and that in general we preferred a small number of lawyers  to be assigned to a case.  In my experience, the more lawyers on the case, the more the costs would go up due to added internal conferences, reviews of documents, etc.  He appeared to understand, but as the case progressed, we were seeing a continuous increase in the numbers of lawyers brought into the matter (my recollection is that the numbers by then were in the teens) and, as a result, in the billings.  I called the lawyer and told him I was serious about controlling costs, and asked him again to reduce the number of lawyers on the case.  When the next month’s bill arrived with only a few less lawyers and an inordinate (to me at least) number of hours represented, I called the lead lawyer and told him we would be moving the case elsewhere.  We did, and the case was ultimately very satisfactorily resolved with considerably fewer lawyers and at a considerably reduced cost.  In re-telling this story, I’m still amazed at how much of a tin-ear a very good lawyer demonstrated; either he must not have believed that we would pull a case once we were well into it or he really did not know how to manage the case within his firm.

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From Bry Danner, former GC at Edison International:

In my experience as a general counsel, one of the most appreciated characteristics in an outside law firm was the willingness to say that the firm really did not have the right level of expertise (or the right lawyer-power) to handle a particular matter. Resisting the temptation to reach for all possible new business, and acknowledging that the firm has some weak points, requires a high degree of self confidence and a strong relationship with the client. But the rewards can be substantial. The general counsel’s sense that the firm is looking at the big picture and the client’s best interests will almost certainly pay big dividends to the firm as the relationship develops.

A corollary is that law firms also earn many points if they demonstrate the ability to work cooperatively with other firms working for the same client  - whether on the same or a different project. General counsel (many of whom came from large firms) know well the high level of competition among the firms; but at the same time expect that the teamwork objective will trump the competitive urge when the client’s best interests are at stake.

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A second-year law student emailed me yesterday, desperately looking for summer work:  A law firm just rescinded his summer offer, citing economic reasons.  This is a serious problem in itself:  law firms that rescind offers during a student’s exam period, just before the student is due to start work.  We need to address that problem as part of law schools and legal employers working together to  produce better lawyers.  But I want to focus instead on this student’s credentials.  I’m not pimping him for a job!  I’m just intrigued by how these credentials fit into our larger discussion.

Put aside for the moment this student’s class rank and the school he attends. For now, you know only the following:

This student spent four years between college and law school working for Accenture as a business systems integration consultant.  He holds a Six Sigma yellow belt, showing his familiarity with that system of business analysis.  He has also been trained in the Institute of Industrial Engineers’ LEAN system, and spent the summer after his first year interning with a local court system. In that job, he applied Courtools (an evaluation system developed by the National Center for State Courts).

Here’s a little more:  This student didn’t join any of the school’s multiple law journals.  Instead, he worked part-time for a small law firm during his second year, participated in our intramural moot court competition, and captained the law students’ flag football team.  Other students have told you that flag football is the arena in which they take out their hostilities and competitive spirit.  This student, they say, was unanimously chosen as captain because he’s the one they trust as a leader and fair arbiter.  As captain, one of his duties is to referee all of their games.

How much do these factors count in your hiring decision?  If business clients want lawyers who understand their business, who have some hands-on experience, and who have the ability to herd unruly cats, should this student’s credentials be key ones in hiring?  Are they nice extras if the student also has top grades in doctrinal courses and a law review editorship?  Or are they irrelevant to good lawyering?

business expertise · credentials · football · hiring · six sigma

This past week, the NFL held its 75^th Draft, and the commentary about prospects’ “tangibles” and “intangibles” seemed analogous to our discussion. There are tangible skills, and practices, in which we (should) expect a law student, or rookie associate, either to have demonstrated proficiency, or to possess building blocks that can be developed through exposure and mentoring.  Litigation tangibles might include:  (i) thorough, creative and accurate research, that then informs, (ii) an analytical framework for evaluating required proofs and potential defenses and justifications, that then informs, (iii) effective advocacy, through development of potential themes and a “trial story” as soon as practicable, in order to focus discovery on facts tending to support (or question) this trial story, and to infuse each, and every, written or oral argument with this take on “what the case is about.” (Regarding this last practice, I am convinced that the Big Law pressure to do the opposite – i.e., conduct broad, and protracted, discovery and then only begin to fashion a trial story at summary judgment– is the root cause of excessive fees.  To me, the fee problem is not so much hourly billing, as it is inefficient consumption of hours.)  There are intangibles, which might include management and networking skills, both in the firm, e.g., on matter/client teams or firm committees, and in identifying appropriate self-and cross-promotion opportunities, and in external contexts, e.g., substantive or meaningful interactions that establish credibility with potential clients and referrers of business.  Intangibles tend to be more rarefied, and, if combined with solid tangible skills, might recommend someone as a superstar to be considered for partnership.

To identify tangibles and intangibles, I think we have to do one hard thing, and one slightly easier thing.  The hard thing:  (i) by practice area, and with input from clients and practice group chairs, identify the tasks and services that could be, or have been, appropriate for an all star associate to perform, in terms of substance and perhaps rate, at defined stages of associate development; (ii) reverse engineer, or deconstruct, to determine the keys to all star performance; and then (iii) plan to coach these keys a year, preferably two, in advance of our expectation of performance.  If, in our experience, an all star 2^nd/3^rd year litigation associate could conduct, or has conducted, a deposition, then the plan should be to begin training entering 1^st year litigation associates after the bar exam.  If, as Ian Nelson and Jeroen Plink posted (The need for better preparation, and Practical Examples of a broken model, respectively), a 1^st year corporate associate could be called on to manage, review and draft certain deal documents, then the plan should be to begin training 2L summer associates in the corporate practice and/or entering 1^st year corporate associates after the bar exam.  To another point raised in a Jeroen Plink post (Practical Examples of a broken model), if an all star junior partner displays intangible management and networking skills, then the plan should be to require mid-level associates, no later than 4^th year, to develop, and continuously update, strategic business plans, with the assistance of business development professionals and reasonable financial and billable allowances. The slightly easier thing, perhaps – agree on best practices, because there are right and wrong ways.  To the point raised in one of Gillian’s posts (Better research needed), there’s a reason why an all star associate finds the one or two analogous cases missed by most.  The all star researches the right way, and the “right way” ought to be deconstructed and coached, and form the basis for evaluation. 

Several posts address “when and where” to conduct training (e.g., Ian Nelson, The need for better preparation; Jeroen Plink, Practical Examples of a broken model; Terri Mottershead, Orientation to the Business World; Deborah Merritt, Professions, Trades, and Academics; Ben Barton, What exactly do law schools guarantee their customers?).  I believe the “where” should be firms (with one exception, I will note, below), and the “when” should start during the 2L summer.

In the 2L summer program, firms should focus on training potential, entering 1^st years in three areas: (i) billable tasks appropriate for an all star 1^st year to perform, in terms of substance and rate; (ii) complimentary or low fee client services, i.e., tools, developed with client input, to assist in-house attorneys with discrete research unrelated to a larger matter, business projects and presentations, routine document review and preparation, and general backlog relief; and (iii) an introduction to “coming attractions,” i.e., training to take place after completing the bar exam and in the first six to eight months of the 1^st year.  This program should be rigorous, and taught as a course with exercises and evaluations.  Importantly, the firm should commit to limiting the substance of the 2L summer program to the course material shared by all summer associates – in other words, stop attempting to integrate summer associates into, or assign them to, different ongoing matter teams, to which untrained summers add little value.  Making this commitment should relieve the pressure within the firm to artificially create, or find, assignments for summers, make the most of summers’ time – both eliminating “dead” time between assignments, and preparing them to hit the ground running in the 1^st year, and normalize the process for evaluation of strengths and weaknesses. This does not preclude shared, group observation of events in ongoing matters, such as hearings or examination of a trial witness, which can form the basis of a teachable moment or presentation. 

During the 3L year, in law school, students should be required to participate in a procedure and practice class in the first semester, using one or two fact patterns as the basis for practical exercises; in their last semester, students should be required to participate in a clinic.  (Of course, these should include a choice of offerings in specific practice areas and/or contexts, and/or general offerings that are broadly applicable.) For those students particularly focused on the practice, there could be an option to enroll in the procedure and practice class in the second semester of the 2L year, before the 2L summer program, and to participate in a year-long clinic in the 3L year.  Either way (or another), both the class and clinic should be a requirement.  For me, this is the extent that practical instruction should be expected of law schools, which I believe should first, and foremost, “develop specialized theory and knowledge,” and, given students’ varied options and choices for employment post-graduation, ought to defer to employers to provide more specific training.  My comments, and perhaps most posted, assume a firm to be the end employer.  But if this is not the case, how valuable would a curriculum geared toward a firm career be for graduates not at all interested?  That said, I support the concept of a 1L course similar to William Henderson’s Legal Profession course, promoting “greater understanding of the economic and socio-legal structures of the modern legal profession through in-depth ethnographic studies of – among others – solo and large law firm attorneys, in-house counsel, government attorneys, judges, and public interest attorneys,” http://www.law.indiana.edu/degrees/jd/curriculum.shtml, and touching on the sorts of issues identified in Carla Powers Herron’s post (Reality Check).

After entering 1^st years have completed the bar exam (and vacation), the firm should pick-up training again, consistent with the track I proposed, above, i.e., training a year, preferably two, in advance of an expectation of performance.

But, in order for this proposal to gain traction, firms must, first, in the earliest stages of associate development, reduce billable and profit projections for 1^st/2^nd year associates to reflect significant time and resources dedicated to training and complimentary or low fee client services, and second, on the back end of associate development, acknowledge and reward tangible, and intangible, skills in a transparent evaluation for partnership.  The former, I believe firms could be compelled to consider because of client guidelines on use of 1^st/2^nd year associates on billable matters.  The latter, I believe to be a harder sell because of the tension between maintaining a relatively small partnership to sustain high profits-per-partner, versus expanding the partnership and risking a decline in profits-per-partner growth or net.  I believe that the firms that continue to do the former will encounter greater problems, going forward, in retaining talent, and could find that the pool of potential partners left to select from may be those having few good options, rather than those having the most upside, i.e., potential stars who depart through “free agency” (and often, it seems, in-house).  But I haven’t seen, or experienced, any particular concern from firms about passing on potential stars.  It’s easy to forget that Tom Brady was the seventh quarterback selected in the NFL draft in 2000 (and the 199^th pick overall).  http://www.nytimes.com/2007/11/03/sports/football/03draft.html

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I first read about this on my ABA Journal App.  It is a frustrating story about small business owner Jennifer Walzer’s ordeal when she hired a firm to review a sublease for her new office.  According to Jennifer, the firm far exceeded its budget of $2,500.  Additionally, the ABA Journal reports, “she objected to a charge for a lawyer’s reply to a courtesy e-mail she sent letting him know she would review his comments when she returned to the office. The $60 response (0.2 hours at $300): “I hope everything is O.K. Take your time.”   You can read the ABA Journal Story here http://www.abajournal.com/news/article/ouch_bill_for_office_lease_review_nears_6k_including_60_for_8-word_e-mail

Even more amazing is the attorney’s response when questioned about the cost for the above email.  As described in Jennifer’s You’re the Boss blog for the New York Times, “Flabbergasted, I asked how they could charge me $60 for a courtesy e-mail. The answer left me even more flabbergasted. “Jennifer,” said the first lawyer, “your e-mail took me away from a multimillion dollar agreement I’m working on, so if I have to stop what I’m doing to view and respond to an e-mail, then I have to charge you.””  You can read the entire story and the posts in response here: boss.blogs.nytimes.com

This is a problem on so many levels.  Either the firm ignored the budget or Jennifer did not understand the $2,500 was only a retainer. Is it possible that Jennifer mistakenly thought the $2,500 retainer was the flat fee for the review?  Yes.  If it was a misunderstanding on her part, it just points to another problem…communication.  A clearly written engagement letter could have avoided this issue.  And $60.00 for an 8 word email…somebody please explain this to me!  I must be too new to private practice to comprehend how this is acceptable.

billable hour · communication · email · expensive · time