When the money ends

I have given Vince, a really great local plaintiff’s trial lawyer and all around good guy, a bunch of grief about why civil jury trials are drying up in federal court. I lay the “blame” mostly on changes taking place in the legal economy. OK, for a moment, let me get off Vince’s back.

If civil jury trials are drying up in federal courts, what is going to happen to the high and mighty defense firms?  For a penetrating review of “big law” and the fear that the economy as it regards lawyers has fundamentally changed (and not for the better), please read the utterly absorbing cover story The Last Days of Big Law: You can’t imagine the terror when the money dries up in the New Republic issue out today on the news stands. Noam Scheiber wrote the piece. He is a wonderful writer and a brilliant fellow.

The times they are a changing. Plaintiffs’ lawyers are not the only ones that should fear the coming “dark ages.”

RGK

PS Hat tip to How Appealing (July 21, 2013).

21 responses

  1. An outstanding trial lawyer from Atlanta decided to determine if federal judges were granting summary judgment at an alarming rate or if it was just plaintiff lawyers urban legend. Below are the very disturbing statistics from a review of all cases tossed out on SJ in Georgia
    “Statistics

    REPRESENTED PLAINTIFFS on DEFENDANTS’ MOTIONS

    Overall

    225 Cases that are Civil Rights Employment cases that were decided at summary judgment in 2011 or 2012 by the District Judge on Defendant’s motion;
    45 SJ orders that were pro se.

    Of 180 DJ orders, 138 (77%) were dismissed in full. 169 were dismissed in full or in part (94%).

    Of the 180 DJ orders, 145 dismissed the ED claims in full (81%). Of the 35 that remained, 25 were dismissed in part. 10/180 were not dismissed, at least in part. (94%)

    By Year

    88 of these were in 2012. 68 dismissed discrimination cases in full. (77%)
    Of the 88, 65 dismissed the entire case in full. (74%). Of the 88, 82 dismissed at least part or all of the case. (93%).

    92 of these were in 2011. 77 dismissed the discrimination case in full. (84%). Of the 92, 73 dismissed the entire case in full. (79%). Of the 92, 87 dismissed at least part or all of the case. (95%).

    Race Cases

    Moved for SJ 76 times; dismissed 68 claims (89%), 10 claims survived (87%)
    Of the 10 claims, 4 were AA, one was Asian, one was “non-hispanic”, one was Hispanic and 3 were white
    Of the 76 claims, 12 were race discrimination for white people, 3 survived. 75% dismissal, 25% survival
    Of the 76 claims, 57 were race discrimination for African Americans, 53 dismissed/4 survived (93% dismissal/7% survival)

    77 cases had race-based claims existing at the time of summary judgment.

    74 cases involved Defendants moving for SJ on race claims, including disparate treatment and/or race-based hostile work environment claims.

    Of these 74, only 10 (and an 11th survived based merely on collateral estoppel grounds) cases had any type of race claim survive, which were all disparate treatment claims. No race-based hostile work environment claims survived SJ.

    Thus, dismissal rate of cases with race claims (64/74) = 86%.

    Race-Based Hostile Work Environment Cases
    In 14 cases, the Defendants moved for summary judgment on race-based hostile work environment claims. None survived. (100% dismissal for race discrimination hostile work environment).

    Non-FMLA Retaliation Cases

    104 cases had retaliation claims (arising under Title VII, the ADA, the PDA, the ADEA and 1981 but NOT the FMLA) existing at the time of summary judgment.

    In 104 cases, Defendants moved for summary judgment on the non-FMLA retaliation claims.

    Of these 104 cases, 14 had non-FMLA retaliation claims that survived. (86.5% dismissal rate).

    Sexual Harassment Cases

    21 cases had sexual harassment claims at existing at the time of summary judgment.

    In all 21 cases, Defendants moved for summary judgment on the sexual harassment claim.

    Of these 21, 2 cases had sexual harassment claims survive (both were hostile work environment claims). In one of these 2 cases, the MSJ was denied as moot for untimeliness. In the second case, the employer only challenged on the 5th element for a hostile work environment, e.g., that there was no basis for holding it liable. The Court found a fact question existed as to this element, and thus the pervasive/severe prong was not addressed. 100% dismissal on severe/pervasive element. 95% dismissal on merits. 90% dismissal overall (19/21)

    Of the 21 sexual harassment cases, two were male employees, both Caucasian. Their sexual harassment claims were dismissed.

    No male has a sex claim survive (sexual harassment or sex discrimination).

    Sex-Based Discrimination Cases (not including pregnancy or sexual harassment)

    40 cases had sex-based disparate treatment claims existing at the time of summary judgment.

    39 cases involved Defendants moving for SJ on sex-based discrimination claims.

    Of these 39, 6 cases had sex discrimination claims survive. (15.3% survival)

    One moved solely on the failure to exhaust administrative remedies, which survived at this time, but was dismissed in 2013 on the merits.

    Of the surviving claims, 100% were female, and 0% were male.

    ADA Cases

    27 cases had ADA claims existing at the time of summary judgment.

    In all 27 cases, the Defendants moved for summary judgment on the ADA claims.

    Of these 27, 4 cases with ADA claims survived summary judgment. (85.1% dismissal rate).

    Age Discrimination “ADEA” Cases

    33 cases had age claims existing at the time of summary judgment.

    In all 33 cases, the Defendants moved for summary judgment on the age claims.

    Of these 33, 5 cases had age claims survive. (84.8% dismissal rate).

    National Origin Cases

    10 cases had national origin claims existing at the time of summary judgment.

    In all 10 cases, Defendants moved for summary judgment on the national origin claims.

    Of these 10, 4 cases had national origin claims that survived, respectively belonging to those with the following origins: Bangladeshi, Puerto Rican, Nigerian, Non-Hispanic. (60% dismissal rate).

    Religion Cases

    2 cases had religion claims existing at the time of summary judgment.

    In both cases, the Defendants moved for summary judgment, and both were dismissed (Christian and Seventh Day Adventists). (100% dismissal rate)

    FMLA Cases (Retaliation & Interference)

    17 cases had FMLA claims existing at the time of summary judgment.

    In all 17 cases, the Defendants moved for summary judgment on the FMLA claims.

    Of these 17, 4 cases with FMLA claims survived summary judgment, although one was for injunctive relief only (damages claim was dismissed). (76.4% dismissal rate).

    PDA Cases

    5 cases had PDA claims existing at the time of summary judgment.

    In all 5 cases, the Defendants moved for summary judgment on the PDA claims (albeit one Defendant successfully moved on the basis that it was not covered by Title VII at all).

    Of these 5, 2 cases with PDA discrimination claims survived summary judgment. (60% dismissal rate).

    Race and Gender Implications
    Of the 65 orders where plaintiff was AA, 57 were dismissed in full (88%)

    Of the 15 orders where the plaintiff was white, 9 were dismissed in full (60%)

    75 orders = male; 55 dismissed in full (73%)

    92 orders = female; 74 dismissed in full (80%)

    32 orders = black female; 30 dismissed in full (94%))

    31 orders = BM; 25 dismissed (81%)

    Judges

    Judge Evans: 7/7 dismissed (100%)

    Judge Thrash: 10/10 dismissed (100%)

    Judge Cooper: 5/5 dismissed in full (100%)

    Judge Horace Ward: 4/4 dismissed (100%)

    Judge Tidwell: 1/1 dismissed (100%)

    Judge Murphy 14/17 cases with ED/FMLA dismissed; 3 survived (1 FMLA/2 ED)

    Judge Jones 11/17 dismissed

    Judge Carnes: 10/12 dismissed 83% (1 FMLA/1 age discrimination)

    Judge Duffey: 7 SJ orders; 4 dismissed in full on ED claims (1 in a renewed motion in 2013); 2 dismissed in full in 2011/2012 (but a 3rd was dismissed in 2013). The 4th dismissed ED, but allowed FLSA.

    Judge Story: 14/17 dismissed; 3 survived, 2 fully and 1 in part.(82%)

    Judge O’Kelley: 13/17 dismissed, 4 survived; all in part.

    Judge Forrester: 12/14 dismissed

    Judge Pannell: 9/11 dismissed; 2/10 survived for ED; 4 of 11 were not dismissed in full (FLSA and state law claims survived).

    Judge Shoob: 7/8 dismissed

    Judge Totenberg: 2/4 dismissed

    Judge Vining: 7/9 dismissed

    Judge Batten: 10/13 dismissed

    Judge Hunt: 2/3 dismissed (3rd case there was no MSJ filed by the Defendant)”

  2. Raw, limited statistics like these are largely useless. You might see them as evidence of a “disturbing” trend. But I could see as evidence of a propensity of the plaintiff’s bar in that jurisdiction to bring weak claims. Given the scant evidence—case types and ultimate outcomes—my conclusion is more likely than yours. After all, my conclusion assumes judges do their job competently and fairly (an assumption our system relies on), while your conclusion assumes “alarming” and “disturbing” behavior on the part of federal judges.

    The point: win/loss rates tell us nothing about the merits of the system.

  3. Ryan, lawyers in Georgia are very good, they don’t invest their time and money on weak cases. Here is one excerpt from an opinion that denied the plaintiffs their 7th Amendment right to a jury trial:
    “Mr. Whorton used the N-word at manager meetings and went out of his way to use that term despite plaintiffs’ objections. Defendants used the N-word “on virtually every occasion” they were present at the club, and it “was not uncommon” for that term to be directed towards plaintiffs. On one occasion, Mr. Whorton called a staff meeting to address the issue of his use of the N-word. During that meeting, he stated that he was too old to change the way he spoke, and he invited anyone who did not like it to quit. On another occasion, Mr. Whorton stated, “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.” Plaintiffs allege four additional comments. First, Mr. Whorton once asked an unspecified person or persons whether “days like this [make] you wish you people had stayed in chains?” Another time, Mr. Whorton saw someone wearing a shirt with a monkey on it and asked, “Are the Obama shirts in?” Mrs. Whorton once said she realized she was using the classical form of the N-word when she should have been using the contemporary form. Lastly, Mr. Whorton complained to plaintiff that he could not trust African Americans, and said, “Dwayne . . . look at me! I know you don’t like this – n—–s don’t appreciate s–t.”

    Here, viewed in the light most favorable to the plaintiffs, the facts simply show that the Whortons are racist, bigoted, and/or offensive people. However, “Title VII is not a civility code, and not all profane or [racist] language or conduct will constitute discrimination in the terms and conditions of employment.”

  4. Thanks for the response. The quoted case certainly seems to support your conclusion—I don’t know enough about Title VII to know if the judge’s facially dubious conclusion is actually incorrect; I assume it is for the point of this answer—but you have to see the problem as well as I do: It’s just one case. One data point. If I were to make any sort of argument based on an interpretation of empirical data and then back my interpretation with a single anecdote, you’d rightly scoff.

    The cases need to be individually scrutinized, coded, etc. It’d be a big project, but it’s either that or cherry-picking, which shouldn’t persuade anyone.

  5. I’ve been watching the biglaw field with some trepidation. My fiance and I regularly debate whether it is wise to wade into the waters of OCI and possibly work at a large firm after law school. My biggest fear is that I will get a job at a large firm, and then receive a pink slip in two years when the company downsizes, leaving me and several colleagues out in the wash with no relevant experience for other areas. My fiance belives that the pay is worth the risk, while I am more circumspect.

    Would anyone recommend that a young lawyer start at a biglaw firm after graduation at this point in time, given the recent stability issues? Or would they recommend perhaps finding a modest (but more stable) job?

  6. Interviewing doesn’t require any sort of commitment. So interview. By the time you go through the interview process, you can make the decision for yourself.

  7. Vince,

    I would very much like to read the full report so I could look at the methods and analysis. Could you give me a cite?

    Also, do you think the decisions you cite were driven by a correct application of the substantive law as laid down by the Supreme Court and the 11th Circuit, or do you believe that the decisions were improperly driven by bias on the part of the district judges?

    All the best.

    RGK

  8. My advice: find work that you enjoy and that fits your strengths. If that’s Big Law, then do that. If not, then run away from Big Law very fast. My legal career largely left me sitting in an office all day doing research, writing briefs, and reviewing documents. I hated it. So I left the legal profession and am angling for a new career that allows for adventure, travel, and interaction with others.

  9. J.Law,

    It might be helpful to compare your experience with biglaw to your experience as a law clerk. For each job, you might provide a short list of pros and cons. If you feel comfortable doing that, I am sure the Southern Law Student would be appreciative.

    All the best.

    RGK

  10. I have experience myself clerking for four years for a state supreme court justice. I also worked a few years in private practice. It wasn’t Big Law; my firm had about 20-25 attorneys. I also practiced in state government for several years. So I’ll take a shot at listing a few pros and cons that stand out.

    Clerking pros: (1) The range of cases and issues you delve into. One month it might be a criminal case with constitutional and evidentiary issues. Next month it might be a breach of contract case. Next month it might be a tax case. You get exposure to lots of different areas of the law. (2) The hours were great. I almost never worked weekends, and rarely stayed late.

    Clerking cons: (1) The monotony of the process. Every month was the same: read the briefs for the case(s) you’ve been assigned to, then read the trial court record, then research the issues, then write a memo to your judge with your analysis, then (after oral arguments) write the opinion. The next month, do it again. Lather, rinse, repeat. If you’re an introvert who is content to work behind the scenes in a supporting role, this is a great fit. If you aren’t, it’s not.

    Private practice pros: (1) You have a chance to influence events. I heard the following story once; I have no idea if it is true, but it’s a good story regardless. Justice Powell (who, of course, was an outstanding trial attorney before being appointed to the Supreme Court) was at a party soon after joining the Court. Also present was a player on the Washington Redskins. The football player asked the Justice how he liked being on the Court compared to being a practicing attorney. Powell replied, “Would you rather be a player or a referee?”

    Private practice cons: (1) Billable hours. I can’t describe how much I hated this. Did I spend 9 minutes or 14 minutes talking to my colleague about a case? It only took me 26 minutes to draft that motion — will the partner think I should have billed more time? It took me four hours to do a relatively simple task — how much of that will the partner write off? You’re always beholden to the clock. (2) Will you just be imprisoned in an office staring at papers and computer screens? I was. I hated that.

    State govt pros: (1) No billable hours (usually). I stayed late at work less often than in private practice, and had to work fewer weekends.

    State govt cons: (1) For me, it was being imprisoned in an office staring at papers and computer screens, just like in private practice. For some people, that’s fine. Not for me.

  11. If you’ll permit a layman to offer a suggestion: go all in–start your own practice. Whether you go Big or Little Law, you’ll be working for someone else, doing the boss’ assignments and not your own, even if Little Law will get you more actual cases and less clerk-typist stuff.

    In your own practice, you decide what you do, what cases you take, what breadth of experience you go after, and on what schedule.

    Striking out on your own isn’t easy in any circumstance, but with a stable relationship with a fiance, and a fiance having a stable job, you won’t have to worry about your next meal or a place to sleep should your own firm, in the end, fail economically.

    If you succeed, you’ll have that juice stiffening you every time you take on an especially tough case, or every (first) time you enter an appellate court or face the zoo of oral arguments in front of the Supremes.

    Eric Hines

  12. Southern Law Student: I’ve worked at an AmLaw 100 firm main office in a major city, a 20 person firm in that same city, a four-person shop in a 150K pop. city, a U.S. District Court as a Clerk for five years (you can probably guess which one) and now a smaller, “branch” office of an AmLaw 100 firm. I could give you a list of pros and cons of each, but you already know them (and another poster did a good job of listing them). Each job was rewarding in its own way. Each also had challenges. I’ve worked until midnight at all of them (yes, even the court). I’ve taken three-week vacations at all of them. I’ve had bad days and great days at all of them. I’ve paid my mortgage at all of them. I’ve made life-long friends and trusted colleagues at all of them and disliked people at all of them. My best advice is not to pre-judge any opportunity and to explore any that come your way. You should absolutely do OCI. You should also seek out potential clerkships, in-house counsel summer clerking opportunities, court clerking opportunities, and everything else. I can say with confidence that the so-called “instability” of BigLaw is overstated in most cases. The article linked above is very compelling. If your only choices were Weil and Mayer, yeah, I’d maybe be worried. But, there are many stable choices of well-managed BigLaw firms throughout the country (and, especially, throughout the South and Mid-South, which I suspect are your markets) that have weathered things much better than NY, Chicago, etc. Foreclosing those opportunities because you may be someday get canned is silly. Also, in my experience in all of the jobs listed above is that good work always finds talented people. Work your butt off to be one of those and you won’t have any problems.

  13. Good advice from one of the best lawyers I know. Marnie failed to mention that when she was stolen away from managing our pro se staff attorneys, the “big law” outfit made her a partner.

    Thanks Marnie. All the best.

    RGK

  14. Everyone, thank you so much for your advice. It is hard to come by honest opinions on this subject, and the insight in this thread is extremely valuable.

  15. On big law versus clerking. (Judge — I had thought of doing this, but I didn’t think my unsolicited opinion (on this matter, at least!) was warranted.) I’ll try to keep it short(ened). A little context: I was at an AmLaw 50 firm in the main office in a major city for a little under two years, and am now finishing up a clerkship for a District Judge. Before that, I went to a top-25 law school (which has recently fallen in the rankings.)

    Big law pros:
    Your cases and clients are topics of the daily news. I paid off my law school loans in the time I was there. Almost everyone around me was more intelligent than I was. I learned how to think about the law, how to be persuasive, and how to be professional. I made some great connections and relationships. I really respected a lot of the senior practitioners for their intellectual acuity, business savvy, and work ethic. It will prepare you for the business and process of proper and professional law practice in a way few other experiences can.

    Big law cons:
    “Eat what you kill” is miserable. Most of your non-working hours are spent running around trying to get more work so you can keep your job, but fearing that when two partners come back to you on the same day, your head will explode. Don’t worry. It’ll happen. You’ll pay your therapist to convince you not to jump in front of train, your cardiologist for more hypertension meds, and your significant other for “make-up” dinner… after you missed the prior two “make-up” dinners.

    The hours are bad, but the real problem is that your life and time can no longer be predicted or scheduled. You are on call 24/7, permanently tied to your phone. It doesn’t matter if it’s your child’s birthday, you’re hacking up blood, or your grandparents in Guatemala are dying. The partner always comes first.

    At least for the first few years, nothing you do will have an impact. You are writing memos for slightly more senior people who are writing memos for big shots, none of whom will read your memo.

    That said, if you have an opportunity to do big law, take it. No one I know who has done it truly regrets it. The politics are terrible and the stress life-threatening. But you can always leave. Of course, the Cravath model is alive and well.

    Clerking pros:
    I have a very nurturing judge and career law clerk, two of the kindest and most wonderful people I know. (He doesn’t know I post here. I think.) Through them, I learned to think and write more clearly and concisely. Your entire job is to sit in a room, read, think, write, and read and think and write more. You frequently teach yourself new areas of law. This can be a pro or a con, depending.

    As Former Lawyer says, you have to be an introvert and dedicated to the process. If you are, I honestly think this is the best job in the world. No pointless deadlines, no politics, no real “responsibilities”, no pressure to do anything except figure out how the parties are trying to hoodwink you, and bend them to your will. Only kidding. My whole purpose is to prevent my judge from being reversed.

    If you believe in your role and are self-motivated, you may work as many (or more) hours in the court as you do at biglaw. I’ve worked 8am to 3am at both places. I’ve worked weeks in a row without weekends off. But at only one of them did I do it voluntarily.

    Clerking cons:
    You are a cipher. A nobody. Sometimes the work can get tedious. I’m told that if you don’t get along with the other clerks or your judge, you have nowhere to escape. There’s no upward mobility, but if you’re a term clerk, this is a moot point. My advocacy skills are atrophying, even though most of what I write could be considered brief outlines for the Court of Appeals.

    One additional note: I cannot recommend that you hang your own shingle fresh out of law school. It might have been possible decades ago; I don’t know. I have managed cases where one party was represented by a new attorney, or one who had little time under the tutelage of more experiented attorneys. They are, more often than not, the source of occasions where, if the representation was not, as we call it, “pro se equivalent”, it flirted uncomfortably close to malpractice. I don’t believe that most of law school prepares you to be a lawyer, much less a competent one. In this regard, I agree with the Honorable RGK.

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