More law firms are giving associates a shot at courtroom action, a strategy that helps with the recruitment of top legal talent, as well as retention.
"An associate might be seven or eight years out in a large firm and never take a deposition," said Bryan Schwartz, chairman of Levenfeld Pearlstein, a Chicago firm with 75 lawyers that courts promising associates from larger firms with commitments to get them face to face with judges, witnesses and clients.
"We get a lot of rising stars from big firms who don't fit into the big-firm model," Schwartz said. "To me it is obvious they jump because they don't want to be a robot in a lawyer factory."
Hewitt Pate, a partner in the Washington office of Richmond, Va.'s Hunton & Williams and head of the 917-lawyer firm's competition group, said the firm's track record for giving associates lead roles in litigation -- with the client's consent and senior partner oversight -- is a powerful draw for associates who want a short cut into the courtroom, Pate said.
"The expectation is that the partner must handle the case when the truth is less senior people are capable, if the preparation is there," he said. "A part of how we recruit people is a commitment to getting them more opportunities to stand up in court representing a paying client than ordinarily would be the case. We bend over backward to make the client comfortable with the idea an associate is ready to argue their case."
A THIRD-YEAR'S SHOT
When Kubota Tractor Corp. retained Hunton & Williams in 2007, Pate persuaded it to allow Ryan Shores, a third-year associate who clerked for the late U.S. Supreme Court Chief Justice William H. Rehnquist, to handle its appeal of a bankruptcy discharge.
The $124,000 debt was not the real issue, said Richard Briggs, general counsel of Kubota. The company alleged that a dealer had received tractors at no cost on condition that the proceeds be placed in a trust account when they were sold. The dealer sold the equipment but did not put the money in trust.
Kubota was worried, Briggs said, that unless the appellate court overturned the lower courts, Kubota would have to write a new dealer agreement to protect itself in the event of future dealer bankruptcies. In re Bruce Strack (Kubota Tractor Corp. v. Strack), 524 F.3d 493 (4th Cir. 2008).
"This decision was more important to us than just collecting the debt," said Briggs. "We claimed [the dealer] breached his trust with Kubota and this was different from an ordinary debtor/creditor situation."
Briggs had never before agreed to allow an associate to represent Kubota in litigation. Shores' experience clerking at the Supreme Court and the careful preparations for trial supervised by Pate persuaded Briggs to let Shores handle the case.
"He was very interested; it wasn't like he just handed off the case," Briggs said. "Ryan did a great job. It was good for us, and it was good for the law firm. We had not used Hunton & Williams, and now we have a relationship with the firm."
Prior to the Kubota case, Shores' trial experience was a single pro bono case in Washington family court.
"When I came out of clerking [for Rehnquist], I looked for a firm where I could get experience in court," said Shores, who won the appeal. "The firm gave me this opportunity, and, in terms of job satisfaction, it is significant. It meant a lot to have something I was intellectually responsible for.''
Mary Flynn, deputy managing partner and chairwoman of the litigation department at New York's Morrison Cohen, with 91 attorneys, said the firm has succeeded in recruiting associates from larger firms by offering a direct route into court, but with ample training that begins with simply assisting partners at trial.
"We compete successfully with the larger law firms for qualified associates by offering unlimited responsibility for the associates," Flynn said. "We are looking for people from larger firms who want to be in court, be on the front line and be accountable. We realize they have not taken or defended a deposition -- they have never argued a case. We don't expect they have a lot of experience; we just expect they are smart, work hard and pay attention to detail.''
Ethan Holtz joined Morrison Cohen in early 2005 as a fourth-year associate, moving over from Handler & Goodman, a self-described litigation boutique in New York. That firm had two associates working with the two name partners. Holtz drafted complaints and wrote briefs, but did not see himself arguing in court any time soon.
In his first three months at Morrison Cohen, he was immersed in a copyright infringement case and then an arbitration. In both cases he was busy interviewing witnesses, arguing discovery motions and doing similar "real lawyer work.'' Holtz recently argued a motion to dismiss in a state trial court and handled a relatively small real estate dispute for a major client.
"I don't know too many places where a seventh-year associate is allowed to do trials on his own, especially for a significant client," Holtz said. "What attracted me to Morrison was the chance to become a more complete attorney. ... I am in court probably two days a week. I used to be nervous in court; now it feels like home."
Schwartz of Levenfeld Pearlstein said large firms are almost irresistible to newly minted attorneys hunting for their first job while the clock ticks atop a mountain of law school loans, but disillusionment takes root quickly for some. His typical hire is a third-year associate from a big firm.
"People come to my firm when they realize that to be satisfied in their careers they have to learn how to strategize a case and talk to clients," Schwartz said.
Chris Griesmeyer, 34, now a partner at Levenfeld, began his career at Chicago-based Wildman, Harrold, Allen & Dixon, a 200-lawyer firm where he handled some depositions and went solo to jury trial on a small dispute, but had little contact with clients.
He left there for the litigation practice at the now-defunct Chicago firm Altheimer & Gray, where he found partners rarely let associates stand in court or take depositions. When the Chicago firm dissolved in 2003, he declined two offers from larger firms in order to join Levenfeld as a fourth-year associate. He found that Levenfeld, representing mostly middle-market corporate clients who appreciate the difference in cost between an associate and a partner, could put him into court right away.
"At Altheimer & Gray I had to fight to prove I could take a deposition, which was pretty frustrating," he said. "The big firms offered more of that, a nice salary to remain a cog in a machine. It was easy to turn that down. Here I had the opportunity, by necessity, to do voir dire, take depositions and argue cases. I got the experience to make partner in two years, which probably would have taken eight or 10 years at a large firm."
The relationship between the retail chain Best Buy Co., with nearly $40 billion in yearly sales, and Robins, Kaplan, Miller & Ciresi, a firm of 250 lawyers headquartered in Minneapolis, stretches back 40 years and has long included cooperation between client and firm to give associates experience in court, said Tom Harris, vice president and associate general counsel overseeing the Best Buy in-house litigation department.
"We have a close relationship with Kaplan that includes working with associates," Harris said. "There are many benefits for us. We learn who among the young attorneys fits our pattern and practice best, and they learn our company thoroughly. That has given us the ability to utilize Kaplan lawyers instead of growing larger in-house because we are working with people who know our company. We are not constantly teaching new attorneys, so my people can handle a larger volume of cases."
Jan M. Conlin, a partner and co-chairwoman of professional development at Robins Kaplan, noted that "clients are often not willing to let an associate take a critical witness in a bet-the-company case, but, depending on the case, the [associates] brief and argue motions, run jury charge conferences, handle experts" and more.
"The biggest obstacle to getting associates into court is how few cases go to trial," she said.