From Bloomberg Law
August 20, 2013By Jay Edelson, Edelson LLC
Today’s typical summer associate program is a creature of the decades-old traditional law practice. Not unlike other aspects of that tradition, while it was born out of well meaning principles (most significantly: “attract the best and the brightest”), it has now lost its way.
The vast majority of summer programs exist in an odd vacuum—like a scene out of the Great Gatsby that’s playing out for the summers on the main stage, while below the surface the rest of the firm is toiling away as (extremely well paid) miners working under vastly different conditions. Second (and sometimes first) year law students are paid over $3,000/wk to engage in an antiquated courting system established at a time when law jobs were plentiful and law firms desperately needed to fill summer classes to ensure they had a fresh crop of attorneys always waiting in the wings. Moreover, it’s an unspoken rule that summer associates are not expected to do meaningful work (or even much work at all), often spending time on discrete research assignments that will likely have little (if any) impact on the legal issues facing the firm’s clients. Summer associates are also constantly reminded that the ultimate goal—the offer of full-time employment—is virtually guaranteed so long as they don’t do something to truly embarrass themselves or the firm. (When I summered in Biglaw, the story often relayed to my class was of the summer associate who randomly and without explanation licked the hand of a senior attorney. Yet, even he—we were told—got an offer.)
Not surprisingly, summer associates pay close attention to these messages and act accordingly. That is, they tend to keep their heads down to avoid making the “big mistake” that can cost them an offer. They have little external motivation to take on difficult assignments, even if one were to somehow become available. (If a summer associate does a good job, it will have little impact on her future. A bad job, however, can be disastrous.) They also have scant incentive to ask the hard questions to see what life will truly be like for them as an attorney, as too curious a person can easily be viewed as a malcontent. The result is that by the end of the summer, law students often haven’t learned very much at all about whether they’ll actually enjoy being attorneys at the firm1 and have made virtually no progress in developing the skills they’ll eventually need to be valued assets. And the firms generally don’t know the summer associates—or the quality of their work—terribly well either.2
Especially given the current economic climate, it’s of little surprise that Biglaw has significantly scaled back their summer programs over the past several years. In the last year alone, many firms’ summer associate programs have been slashed by as much as 30%.3 Some firms have even had to seriously consider whether they continue on with hiring summers at all.
That said, the premise of this article is not to bash summer programs or to argue for their abolishment. Rather, done right, I actually believe that they can be a huge factor in determining the future of a firm, much like a strong farm system can be the key to winning the World Series five years down the road.
So what does it mean to do it “right”? First and most importantly—and this is the aspect most often ignored—a summer program must be set up in a way that adds real value to the firm’s clients and to the firm itself. Like all employees at the firm, summer associates should be brought in to do meaningful work. I don’t mean the “meaningful work” spoken about at every OCI interview, which, once translated, means “we’ll give you the same scut work that every other firm doles out, but if you’re lucky you’ll be able to go to court once or twice during the summer and watch what real lawyers do.” Instead, firms should treat their summer associates in a manner suggested by their title: as associates who are working for the summer, save for the fact that they are prohibited from arguing in court and the like. They should be given meaningful substantive work—drafting dispositive motions, writing sections of appellate briefs, taking the lead on discovery issues, and weighing in on litigation strategy. (Many traditional firms don’t even let their young associates do all of these tasks, but that’s a matter for a different article.)
Second, the program should be used to assess whether each respective summer associate should be at the firm on a full-time basis after law school. That includes, for example, considering whether the summer associate has the ability to efficiently produce high quality work; whether she has the promise to develop into an extraordinary legal talent; whether he fits within the firm’s culture; and, whether she’ll be a good representative of the firm to its clients, the courts, and the public. Again, the only way to actually answer these questions is to throw summer associates into the deep end and see if they’re willing to learn how to swim.
Third, the program should serve as a true lens through which the summer associates can assess what life will be like for them as a practicing attorney. This means making sure they get to work with a diverse group of attorneys. It also means allowing them opportunities that naturally present themselves on the cases to which they’re assigned. Thus, if a summer associate is working on a case that goes to mediation while she is at the firm (or even in the subsequent school year), she should be invited to attend and participate. It also means presenting a more accurate cultural life of the firm, as opposed to a dressed up one that firms feel obligated to show.
Most importantly, it means committing to training so summer associates understand how the firm approaches the law and how it thinks. This can be done through formal seminars, mentoring, or through more organic methods. But, if the idea is that the summer associates are going to be the future leaders of your firm, why would you want to waste the first three months of their time with you, when they are most open to learning, on baseball games and lunch?
This leads to the one final piece—the one to which most firms are attuned: how do you set your compensation model to attract the top talent? Large weekly salaries are fine and will certainly serve as motivation (though it has become a bit of a dangerous arms race, with summer salaries being a substantial factor in forcing firms to reduce their class sizes). However, there is an implicit message to this type of compensation model, which allows for no way to distinguish (and reward) excellent work. Put in the harshest terms, some could argue that the real message is that the summer associates are just another cog, albeit a handsomely paid one. The result is a firm flooded with people who keep their heads down, take few chances, and don’t truly grow.
Our view is that firms should consider changing their summer compensation model to reward the best performers and weed out those who’d be more comfortable in the “keep your head down” model. They should offer salaries that are designed to be enough so that their summer associates are still well-paid (our 2014 summers will earn $2,000/wk) but not overly-so. Then, for those who accept offers of full time employment, significant signing bonuses should be given out based on the value each respective summer associate has demonstrated. (Our firm is providing signing bonuses between $5,000 and $25,000 to each of our 2014 summers associates.) This way, summers associates have the opportunity to earn significantly more than they would at a traditional firm, but—like frankly everything else in life—it’s not guaranteed.
In sum, though Biglaw continues its summer scale down (and, in places, its outright purge), reform is what’s ultimately needed over reduction. Ultimately, a summer associate who is trained to avoid taking on difficult tasks, and finds success (and monetary reward) through anonymity, will do the same as a practicing attorney. Instead, when summer associates are viewed as what they really are, first year associates held to lower expectations, then a firm’s return on investment is seen from day one when its new hires perform like second rather than first year attorneys. Summer associates are valuable and should be incentivized to showcase their talents. Give them real work and real feedback. Bring them into the decision-making process—not just to see it, but to offer their insights and ask questions. Compensate them well, but incentivize them to do better by rewarding those that show commitment and perform at a higher level. Sure, some firms I suppose desire an associate (or two) who just do high level work from the ether, but in a changing and more demanding legal market, producing more dynamic attorneys—capable of handling matters of increased complexity and contributing immediately to the firm’s clients and success—should be the goal.
Jay is the managing partner of Edelson LLC, one of the nation’s largest and most successful consumer class action law firms. He has been called one of “the most creative minds in the legal profession” for his views of associate training and firm management in the American Bar Association’s “24 hours of Legal Rebels” program. His firm was also rated the highest in the country for firm morale in a survey done by Above the Law.
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