Litigation is as American as apple pie. In our litigious society, it is never likely to fall out of fashion.
Many attorneys decided to enter the law as young people because they
were entranced by the glamorous trial lawyers they saw on film and
television. While the real world is of course very different from the
Hollywood version, there is no doubt that the kind of high-stakes,
win-lose competitiveness intrinsic to litigation work exerts a powerful
pull for many attorneys. Litigation is a game of chess that requires
endless diligence, inspired creativity, brilliant arguments, and
excellent negotiating skills.
The reality is that the vast majority of cases never go to trial, and
that most are won or lost during the months or years of plodding
preparation. This means that litigation associates spend most of their
time assisting their superiors with the vast quantity of work that goes
into the discovery process. This includes reviewing volumes of
correspondence, drafting motions, taking depositions, and filing
Litigation is another relatively recession-proof practice area,
because when individuals and companies are losing money, they are more
likely to seek redress through the courts. The demand for litigators is
thus countercyclical, and healthy in the current climate.
In addition to general commercial litigation,
there are a number of different sub-practice areas, including contract
disputes, employment, IP, securities, and toxic torts, to name a few.
Some attorneys spend all or most of their time in one area or another,
while others are generalists.
Litigators work at firms of all sizes, from major American general
practice firms to small boutiques. The cultures at these firms are as
heterogeneous as the firms themselves, but litigators are generally
known for competitiveness, smarts and
What Do Recruiters Want?
From a recruiting standpoint, there are several things for litigators and aspiring litigators
to bear in mind. While the market for litigators is strong and healthy,
the number of litigators available to make a lateral move at any one
time is also relatively high. This means that competition can be fierce
for individual positions.
Some of the things that can set you apart from the pack include
top-notch academic qualifications, Law Review, and participation in Moot
Court. A federal clerkship is an outstanding asset, not only for the
knowledge and contacts it can yield, but also for the distinction it
confers. Successful litigators are smart, aggressive, and work very hard
to win, and they expect that these same qualities will manifest
themselves on an attorney’s resume.
If you have good experience in a relatively unusual area at a solid
law firm, this can overcome other weaknesses in your credentials.
Examples include toxic torts, employment, . IP and securities litigators are also in high demand, and these practice areas require special skills and experience..
Research and writing skills are critical in a litigator.
If “plastics” was the one-word career advice given to Dustin Hoffman
in The Graduate over three decades ago, “intellectual property law”
would have been a likely 90’s legal version of the same. While the “dot
gone” companies have vanished — taking along with them many of the
attorneys (including IP) who provided them with legal services — there
is no doubt that IP law is here to stay for the long haul.
As the United States and other industrialized economies have migrated
from industrial production through a service economy to what has been
termed “intellectual capitalism,” IP law has increased dramatically in
importance. The engine of the U.S. economy has become ideas, and
“knowledge workers” have been their driving force. In short, ideas are
king. And attorneys who help inventors, entrepreneurs and artists to
protect intellectual property play a vital role in their capitalization.
IP law can be divided, like Gaul, into three parts: patent
prosecution, litigation, and “soft” IP (trademarks and copywrite). The
technology recession and collapse of the “new economy” have affected
each of these areas of law quite differently. The softness in the
economy has prompted a softness in the job market for soft IP attorneys.
Law firms have responded to the contraction in business by engaging
in a ‘flight to quality.’ Whereas previously patent prosecutors did not
necessarily require an advanced degree in a technical field, that
requirement is now frequently the norm. The reason for this is quite
simple: understanding the technology behind patents is as vital as
understanding patent law in
getting patents issued. Nothing is more exasperating to a client than
having an attorney that is unable to understand their invention.
That said, patent law is one of the few practice areas in which it is
possible to work at a prestigious firm without having attended a
stellar law school, or made law review. Even so, opportunities for
patent prosecutors are thin on the ground and very competitive.
While debtor’s prisons (such as the one that held Charles Dicken’s
father) were abolished along ago in North America, the inability to
fulfill financial obligations continues to send record numbers of
companies and individuals into insolvency. Bankruptcies are at an
In a land of failing and failed businesses, the bankruptcy attorney
is king. In this sense, bankruptcy law is not only recession proof, but
also strongly countercyclical. Demand for bankruptcy associates and
partners are naturally also at an all-time high.
Bankruptcy law comes from the US Bankruptcy Code, which itself stemmed from a provision in the US Constitution.
Within bankruptcy, there a number of sub-practice areas that it is possible to specialize in, including creditor’s rights,
What Do Recruiters Want?
Given the strong demand for bankruptcy associates at present,
candidates with somewhat average credentials are currently able to land
solid jobs. The top firms still require top law schools and good grades.
But additional assets include a spell as an extern or clerk in a
bankruptcy court, and working for a well-known bankruptcy practice,
regardless of size.
People are at the heart of every enterprise. It should come as no surprise that labor and employment law are a vital
Since the charter of the Jamestown Company was first drawn up in
1607, attorneys have been responsible for helping form, advising, and
representing the companies that have played a significant role in
shaping, and maintaining the wealth and prosperity of, the modern world.
While many early “joint stock” companies merely required the imprimatur
of a king or queen to authorize the scope of their operations, the
vastly more complex regulatory, legislative, and legal requirements
of the present day mean that virtually every commercial enterprise from
the largest multinational to the humblest start-up needs a competent
attorney to help them navigate the minefield of owning and/or operating a
Corporate attorneys are the trusted advisors who assist them in
almost every sphere of their commercial activity, and in every stage of
their life cycle. This entails addressing both tactical and strategic
issues, from company formation to corporate governance, from startup and
ongoing finance to possible liquidation or change in control (including
private equity, M&A, and initial and subsequent public offerings),
from employment agreements and “non-competes” to regulatory and tax
compliance, among others.
The work of a corporate attorney is often more varied than in other
areas of the law, and this can mean it is more interesting and
rewarding. Furthermore, whether you are working at a law firm or at an
in-house position, you are constantly interacting with other lawyers
(both within other practice areas of your firm and opposing counsel), as
well as non-lawyers at the companies you counsel. The best corporate
attorneys have excellent communication skills, and are able to
understand and anticipate client needs by wearing a business hat as well
as a legal hat. Corporate attorneys help companies solve problems, from
day-to-day issues to life-or-death transactions, and this can be as
challenging as it is rewarding.
The Crisis in Corporate Practices
The current predicament of many corporate attorneys with dwindling
billables, or worse, present or threatened unemployment, mirrors the
macroeconomic trends of the last two years. While a “rising tide lifted
all boats,” boosting associate and partner compensation to the
stratosphere at many firms, the crash of the New Economy has brought
pain and retrenchment with the massive falloff in business, like a neap
tide suctioning jobs and money back from whence they came. Once eminent
firms have shuttered, layoffs are legion, and virtually no corporate
practice has been unscathed by the fallout. What is more, a classic
supply and demand problem has made the market for corporate associates
without portables a challenging one indeed: there are simply more
corporate attorneys than there is demand for them. The law firm
economics that once made hiring corporate associates so attractive — and
profitable - before the crash in the summer of 2000, has reversed with
the decline in billable hours. Once high-performing assets, recently
minted corporate associates are now in many cases liabilities at firms
that are struggling to break even, or better, turn a profit. The
inflationary price wars that caused salaries to skyrocket have collapsed
into stagnation and, in many cases, deflation.
From a recruiting standpoint, the situation is even direr for the
corporate attorneys who chose to go “in-house” at the companies they
were advising, and who are now seeking to rejoin law firms. Many of the
companies they joined have either gone under or are going nowhere, and
the options they were granted that once promised quick riches have
transformed, Cindarella-like, back into worthless scraps of paper (and
even worse, in many cases, tax liabilities where no monetary gain was
ever realized). Rightly or wrongly, law firms take a dim view of this
migration to in-house positions or solo practice, in part because they
see it as a negative predictor of future “stickability.”
The same slogan “differentiate or die” that applies to businesses can
also apply to corporate associates in a down economy. Without a unique
or compelling competitive advantage, in the form of knowledge, skills,
impeccable credentials or portable business, corporate associates are
left to the vagaries of the job market. Being “jack of all trades” is
not an attractive proposition when trade itself is down and you are
competing with others with very specialized skill sets. There are, of
course, many niches in which a corporate attorney can specialize, from
securities and M&A to contracts to employment and litigation
The Road Ahead
The “supply overhang” that is responsible for so much suffering and
economic loss is likely to persist beyond 2009. While it does, the
opportunities for lateral moves are few and far between. Firms are now
able to “cherry pick” young associates with outstanding credentials they
once would have had no hope of courting. Even many capable young
attorneys with stellar credentials are finding it difficult to get new
jobs. Some, sadly, are abandoning the practice of law altogether, out of
frustration or financial necessity.
But the prognosis is not dire over the medium to long term. While
corporate associates are hostage to the same business cycle as the firms
they advise, their fortunes will improve with economic expansion and
the inevitable recovery that has followed every recession in American
history. The day will not be long coming when the same cycle repeats
itself, and many eager law school students are drawn by opportunity and
financial gain into corporate practices across the land. Come hell or
high water, corporate practices will continue to be the core
revenue-driver at major American law firms.
As long as private enterprise continues to drive economic growth
around the world, corporate attorneys will be needed to help them.
Corporate associates cut their teeth drafting, revising, and in some
cases negotiating boilerplate agreements. In addition to the tedium of
practicing “form law,” and the bad habits this can encourage, the nature
of this work means that writing, reading and revising stacks of generic
documents are the initiation rites that young corporate associates must
endure. To many, this work is neither intellectually arresting, nor
particularly fulfilling, but the pleasure of working closely with
clients makes it well worth the effort. The prospect of dealmaking later
on, the job mobility in a good economy, and the financial rewards of
working for a thriving practice are additional incentive to practice corporate law.
A Typical Day
spend most of their day on the telephone advising clients. Unlike
litigators, who are shaped by the win-lose, binary nature of trials and
settlements, successful corporate attorneys are masters of compromise
and problem avoidance. Because large amounts of their business hours are
spent on the phone, it is not unusual for corporate attorneys to work
late hours, and pull all-nighters if crunch time has arrived in the form
of a pending deal. With the recent decline in business, however, the
more frequent reality today is of a collapse in billable hours. We have
seen associates who billed in excess of 2300 hours at the height of the
boom see their workloads fall to 1500 hours and under. This is a
lose-lose, for the associate and their firm.
Flavors of Corporate Law
Corporate practice is not a monolith; there are, in fact, numerous
niches within corporate practice that require different skills,
backgrounds, and credentials. Likewise, these sub-practice areas are
more or less attractive to law firms depending on the state of the
economy and on the needs of their clients at any point in time. While
defining these areas in great detail goes beyond the scope of this
article, it is worth briefly mentioning a few: M&A, securities, and
Mergers and acquisitions are what happen when one company acquires,
or is merged with, another. Because of the onerous reporting
requirements and the many pitfalls that characterize such deals
(including the potential of bankrupting the acquiring company in a
bet-the-farm transaction), M&A activities require the assistance of
M&A attorneys, as well as the investment bankers and executives on
both sides of a deal. The devil is in the details, and the time to
discover it is during due diligence. Due diligence is a laborious
process that usually requires many weeks or months of frantic auditing
activity, in which every single legal agreement and liability of the
company being acquired must be gone over with a fine-toothed comb (often
in conference rooms, and frequently late at night, the closer it gets
to the deal date.) Since finance is the lifeblood of these deals, and in
fact the key to a profitable return on both sides, an understanding of
finance and accounting is the sine qua non of an M&A attorney. Many
young M&A attorneys will have finance and accounting degrees, or
even MBA’s. At the more senior levels, negotiating skills take over as a
The current state of the economy has caused some corporate associates
with M&A backgrounds to increase their billable hours because of
the number of failing businesses that must be sold, or that don’t have a
realistic prospect of raising capital in the public markets in the near
term. In these cases, corporate associates are engaged in extended
negotiation and due diligence sessions that can still come to naught
after months of work. Nevertheless, M&A is one area of
specialization that is relatively desirable because it requires a
special skill, and has favorable economics. As in other areas of the
law, it helps to be mentored by a rainmaking partner - in this case, to
teach the vital negotiation skills and black magic required to shepherd a
desirable deal to fruition.
Corporate attorneys with a strong background in securities law are
also in a more defensible position than those of the “garden variety.”
These attorneys are expert at securities law, including the disclosure
requirements of the 1934 Securities Act.
Access to the capital markets is the lifeblood of continued operations
and shareholder value for all publicly held companies, as well as many
privately held ones that hope — at some stage — to have an initial
public offering. Many corporate associates who specialize in securities
law will spend valuable time at the Securities and Exchange Commission.
Unfortunately, the collapse in IPO activity in the last twenty-four
months has caused a number of promising young securities attorneys to
lose their jobs. Over the long term, this trend is likely to reverse.
With high-profile scandals like Enron and Worldcom, and the new
legislation that has been pushed through Congress, the onerous
disclosure requirements companies whose sell securities face are sure to
wax rather than wane, and so, therefore, will the workload of their
Project finance associates are corporate attorneys who help
facilitate major infrastructure deals, often in the international arena.
Corporate attorneys who wish to work abroad at some stage of their
career often seek opportunities in project finance, because many of
these projects occur in Asia, and in developing countries, which are
chronically short of infrastructure. Roads, bridges, dams, and
power-generation plants are some of the types of projects that require
project finance expertise. Because of the sheer scale of these
multi-year projects, and the political uncertainties that sometimes
accompany them, the risk and cost are spread among a number of financial
institutions and investors. This means that project finance associates
must be fluent in both finance and, in many cases, the local laws and
regulations that constrain the methods by which such projects are
In sum, while corporate attorneys can be generally characterized as
attorneys who help companies to survive and thrive despite the many
legal, regulatory, and business strategy challenges that they face - and
many are, in fact, generalists firmly connected to their clients’ needs
- there is in fact a wide variety of sub-practice areas. of
specialties, that corporate attorneys can pursue.
According to Peter Drucker, businesses (and for that matter,
individuals who are engaged in commerce of some kind) are primarily
concerned with marketing and innovation. IP attorneys help build,
maintain and sustain a competitive advantage in the area of innovation,
without which sustained economic development would be impossible. The
reason that companies invest billions of dollars in research and
development (R&D) each year is that they hope to capitalize on those
inventions, be they in the area of biotechnology or pharmaceuticals,
electrical engineering, or mechanical engineering. Without IP law, this
would be impossible: inventions would simply be stolen in a free-for-all
that would rapidly lessen the returns, and therefore the incentive, to
innovate. The productivity gains that society relies on to become richer
and more efficient with each passing year would likewise, in time,
vanish. Before IP law, the world had a relatively stagnant economy for
millenia. Then along came the US Constitution.
The three kinds of IP attorney are patent prosecutors, IP litigators,
and trademark and copyrights attorneys. The areas of IP law include
patents, copyrights, trademarks, unfair competition, and trade secrets.
Patents grant 20-year exclusive licenses (from the date of the patent
application) to make, use, sell or license an innovation. In order to
obtain a patent, the US Patent and Trademark Office needs to be
convinced that the invention is new, useful, and not obvious in light of
“prior art.” In one recent controversial case, this included the
granting of a patent to Amazon for its “1-click” shopping (as a business
process). A rash of recent litigation in this arena continues to prove
the limits of patent law.
Patent prosecutors research, prepare, and apply for patents on behalf
of their clients. In most cases, because of the technical nature of the
work, it is necessary for the patent prosecutor to have one or more
undergraduate or advanced degrees in engineering. Given the esoteric and
often abstruse subject matter, patent prosecutors must be able to keep
up with their clients, and stay one step ahead of the USPTO.
Surprisingly, a strong technical degree will be a compensating factor in
the job market for those who did not attend Top Twenty law schools. A
strong scientific background opens doors at top firms that would
otherwise be closed. The job market for patent prosecutors is currently
fairly soft, although there is always room for the best. One of the
additional requirements besides having an engineering degree is to have
one or more patents issued, a process which usually takes several years.
Patent litigators help companies enforce, and thus secure the
profitability of, their patents. As the number of patents increases
tremendously by the year, the amount of litigation naturally rises as
well. Some individual multinational companies will apply for many
thousands of patents in a single year.
“Soft IP” lawyers are currently facing a recession. This phenomenon,
like the glacial slowdown in general corporate work, will likely last
throughout the present recession. The skills needed to be a soft IP
lawyer are less rigorous. In effect, there are lower barriers to entry
and many more young attorneys joined the party while the drinks were
flowing. Now the hangover has set in.
Not all of the controversies regarding protecting intellectual
property are as recent as they may appear; Hollywood itself was
allegedly founded by men who crossed the country to avoid paying Thomas
Edison the royalties due him for his invention, the movie projector.
Death and taxes being the only certainties in life, tax attorneys
will be around until one or both are conquered, which might take a
while.Tax is an abstruse, technical subject that can reap significant rewards for individuals and corporations who like it.