On the “refirmation” of law firms

I hate to be quite this parochial, but this post is basically for lawyers.

A few weeks ago at Concurring Opinions, Frank Pasquale blogged about “Law Students Building a Better Legal Profession,” a student group that aspires to reform private law firms by steering the best talent away from the firms that suck. Pasquale presented this as a hopeful sign that job satisfaction was gaining in importance relative to economic criteria according to which firms are sometimes ranked. The group runs a blog called “Refirmation,” and I’m a pushover for a bad pun so I visited. I do not wish to denigrate the efforts of these very earnest people, but I think they are misjudging both the major problems with law firms and the kinds of information a law student would need in order to avoid firms that suck. Here’s why.

First, this group makes the classic mistake of focusing on the largest firms, those “employing more than 100 attorneys in six major markets.” By focusing exclusively on large firms, the Refirmation students are implicitly assuming that size is not the problem. And yet if one listens to the first-hand accounts of Biglaw refugees after a few years of practice, it is reasonably clear that size is perhaps the number one problem. The spiraling targets for billable hours, the unreasonable intrusions on home life to deal with artificial “emergencies,” the grasping pettiness of fights over compensation, the cog-in-a-wheel atmosphere — all of these plague large firms because they are large. If the partners do not know one another and do not know all their associates, even within a single office, then they have no basis for relating to each other as people. By default, then, they relate to each other primarily as units of production. Guess what that does to associate life? Thus, the Refirmation project will never be more than a proverbial rearrangement of the Titanic’s deck chairs unless the group makes some effort to give law students more information about smaller firms where collegiality can still flourish.

I should perhaps say here, with apologies for the double negative, that I do not believe there is literally no reason ever to work at a large firm. You may like mass tort cases; you may want to specialize narrowly; you may want not to practice law, but to write a book about why you quit. To each his own; I have many friends at big firms, and some seem reasonably happy. But if the point of the Refirmation project is to figure out why some firms suck and some don’t, size is a major variable that cannot be ignored without dooming the entire project to futility.

Second, the Refirmers seem to believe that whatever makes a firm suck will show up in that firm’s statistics on billable hours, demographic diversity, and pro bono work. I think this almost self-evidently false. If you’re a parent of small children and you’re spending two or three nights a week in another city for months on end, taking meaningless depositions for a case that will never go to trial, you’re taking a beating and your spouse probably has it worse. I don’t think you will find much comfort then by reflecting that, after all, your firm has a relatively high level of ethnic diversity. Just try telling your spouse that your 2500 hours are OK because 100 of them are pro bono, and you’ll be sending around a firmwide e-mail asking if anyone knows a good divorce lawyer.

Third, since I have had occasion to provide statistics of the kind the Refirmers examine, let me say that one often has a number of options in the way the numbers are calculated. For example, when I’m calculating billable hours, are pro bono cases included? I could make my firm look more laid back by excluding them, and after all the hours often go unbilled — but they are worked. When I’m calculating average billable hours, how careful must I be to correct for lawyers who were hired in mid-year, or took leave for a few months? If I include those attorneys it will bias the average downward, in a way that is at least potentially misleading; but if I exclude those attorneys, the statistics will not capture the very thing the survey is designed to locate: evidence of balance. If the firm has a civil rights case in which it will not be paid unless it wins, does that count as pro bono or not? And in a large firm where one can’t know all of one’s colleagues, just how is one supposed to count up the LGBT lawyers? Do the students at Refirmation want them to register or something?

Having said what I think the problems are, let me say that the problem is not that these law students overestimate their value to the firms they rank. (They do overestimate their value, but that’s beside the point. ) There is an issue of personal integrity involved in where one chooses to work. I therefore applaud the Refirmers for thinking that they should vote with their feet regardless of whether that changes the profession, in much the same way that I applaud people who vote their conscience in political contests regardless of whether their candidate has a chance to win. That’s what makes the project’s current limitations such a shame: Not only will the current strategy fail to change Biglaw firms for the better, it will probably fail to identify any differences between Biglaw firms that anyone could possibly consider meaningful enough to make voting with one’s feet comprehensible as an issue of personal integrity.

And yet, I do want these students to be happy in the practice of law, and I would think it wonderful if their selectivity had any positive effect on law firm management. So let me offer some potential survey questions that might better inform student choice at interview time:

1. How many partners in your firm can name each other partner without looking at a list?

2. How many partners in your firm can name each associate without looking at a list?

3. How many partners in your firm are universally regarded as poor mentors and what are you doing about it?

4. Do lawyers at your firm refer to the firm as an “it” or as a “we”?

5. On a scale of 1 to 10, how do the spouses of the married lawyers at your firm rate their marriages?

6. Which of the following reasons are accepted as sufficient cause for being out of the office on Saturday? (a) a funeral; (b) a wedding; (c) an illness; (d) a weekend getaway; (e) a child’s soccer game; (f) the annual sale at Nordstrom; (g) it’s Saturday.

7. How much did your firm spend on after-hours HVAC last year?

8. Does your firm provide round-the-clock secretarial support? Why?

9. How many lawyers at your firm can name the last three non-lawyers hired?

10. Do people at your firm regularly eat lunch together?

Most firms will never answer these questions, of course, and least of all the firms targeted by Refirmation. But I think the students who are putting so much time and energy into their various statistical rankings would do a lot more good, for themselves and the profession in general, by making these questions the focus of their interviews.


3 Responses to “On the “refirmation” of law firms”

  1. Frank Says:

    These are all valuable questions and also suggest the inevitably qualitative nature of the query. I hope to blog on this post, and on Dorf’s questioning of the rankings, soon.

  2. Michele Dauber Says:

    These comments are very helpful and I agree with a great deal of what you say, for example that the size of large firms (“bigness”) is a variable that pushes firms toward exploitative labor practices because of increased social and physical distance between equity partners and associates, for example. There are other variables than size that are probably also at work, for instance, the dramatic rise in executive compensation. But no question largeness is a factor.
    Now, will elite students stop going to Biglaw? Not so far as I can tell. Given that fact, it makes sense to use the historical accident of the strong sellers’ labor market in entry level elite associates to try to drive some forms of change.
    The student movement is in this way working in tandem with the other, and far more, powerful market force acting at the moment on Biglaw, which is that of clients and their demands for diversity and other reforms.
    The survey questions you suggest are all great ones. The choice that we have made at BBLP (www.betterlegalprofession.org) is to use bottom line measures rather than softer “happiness” and “satisfaction” surveys. For one thing, it is very hard to get associates to take the time to answer surveys. So you get a poor response rate as well as a selection bias in favor of responses by those who are (1) not busy; or (2) angry and disappointed; or (3) both. Instead, BBLP decided to use bottom line diversity and other quality of life numbers and then encourage students to use those numbers to inform their interviewing and career decsions.
    This is not a perfect strategy — chiefly because the firms have a lot of leeway in how they answer the NALP survey. For example a “partner” is not the same thing in every firm and we are currently looking at improving our rankings to take account of non-equity partnership for next year. However, it is not as poor a strategy as you are suggesting, in part because we are using the firms’ own data so we are not engaged in a lengthy and distracting debate with the firms about methodology.
    In terms of Mike Dorf’s comments that Frank mentioned, I can only say that I was very surprised and disheartened to see him seconding Akil Amar’s absurd statement that law firm affirmative action violates Title VII. Obviously, that is not true. Firms can take into account all kinds of factors and qualities that future lawyers bring to the table. There is no requirement that law school grades should be the correct “objective” criteria for law firm hiring. That is an absurd suggestion, since as everyone knows, some people attended very prestigious law schools, and earned high grades there, but lack good judgment or common sense or social skills or network connections or any of the things that predict professional success in a law firm environment. Grades are but one of the many criteria that a firm may take into account in building a workforce that fits its needs. Unless and until this Supreme Court changes the rules on that, and I don’t think that is very likely to happen with respect to law firms in any event, since every firm would object — unless and until that happens we would do well to keep the white flag stowed.
    But more importantly, Dorf is also mistaken about the idea that these rankings are somehow a “self-fulfilling prophecy.” First of all, they aren’t a “prophecy” at all. They are a recognition and publication of current reality. Maybe there is some earlier prophecy that is being fulfilled? Furthermore, labor economics suggests that firms may have to pay a “compensating differential” (wage premium) in order to meet worker preference for a diverse workplace. Presumably that differential will decline when the workplace improves. BBLP is providing information that should make the labor market for associates in big law firms more efficient. It’s not perfect but it’s a step in the right direction.
    Thanks for thinking about our project and for your very helpful feedback.

  3. Mark Grannis Says:

    Thanks for commenting, Professor Dauber. Your comment prompts me to ask: Is Refirmation/BBLP focusing so much on diversity because it’s better to work in more diverse environments, or because greater diversity is an end in itself? Or perhaps to put it another way, is BBLP trying to help students choose firms where they’ll be happy, or to make all firms more diverse even though students will inevitably continue to choose firms where they will be unhappy?

    I may be reading too much into your second paragraph, but it seems to me you’re saying that it makes sense for BBLP to focus on Biglaw firms because elite law students’ (largely irrational?) preference for working at those firms can be harnessed to drive some desirable social change. My original post was based on a different understanding of the purpose of the organization.

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