Publication note: This post was originally published 10/23/06. I think the advice and comments still hold true today. In republishing the post, I made only minor edits. Another note: my firm is now called The Schaeffer Law Office, P.C., rather than Schaeffer & Lamere, P.C.
What would you say to a lawyer with five years of defense experience who wants to open a plaintiffs' practice but is first considering a stint in a U.S. Attorney's office to get some additional trial experience? Is this a sensible way to make the switch from defense lawyer to plaintiffs' lawyer?
I recently got a question like this in an email. Here's my response. I think there are many ways to make the switch to a plaintiffs' practice. Taking a detour to get some additional trial experience certainly isn't a bad idea: real, solid trial experience is something that will set a lawyer apart from most others and make him or her employable at many different types of firms.
Of course, there is a huge difference between being employable as a lawyer and opening a plaintiffs' firm. It brings to mind the two stumbling blocks that keep most lawyers from starting a plaintiffs' practice--a lack of capital and a need for a steady income. Even with a low-overhead operation, many can't get by without a salary. You don't get a salary if you own the firm. It can be hit or miss for months or years.
A common solution to the problem is to find a plaintiffs' firm that's willing to pay a salary. This option allows a lawyer to reduce some of the downside risk of changing careers while being paid to learn the ins-and-outs of a plaintiffs' practice. In addition to a salary, many firms will also pay a portion of the fees a lawyer generates from his own cases. It's a sensible alternative to immediately hanging a shingle as a plaintiffs' lawyer.
It's more or less the route I took myself. After leaving a defense firm, I worked at a plaintiffs' firm for a few years on a salary. One thing that made my situation a little different is that I had the good fortune of joining two lawyers I already knew. Just a year before, we'd all worked together at the defense firm. When they left to start their own plaintiffs' firm, I stayed behind, in part because I needed a salary. A year later, they already had had enough success to be able to pay me one. I joined them in 1996. Eventually, I became a partner at the firm and we continued to do well enough that eventually, I was able to move on to a new opportunity. That's how my firm Schaeffer & Lamere came to be.
At Schaeffer & Lamere, I work on our firm's class action and personal-injury cases, but I also frequently join up with other plaintiffs' lawyers--including my former partners at the old firm--to work on various other projects, including the mass torts I often write about on this weblog. It's a sort of flexible deal-making--being able to supply both brainpower and capital to projects that are expected to pay in the future--that makes a plaintiffs' practice especially fun for me. By thinking of myself as a free agent, I can work on many different types of cases with many different lawyers. There's always something new to work on or something new just around the corner.
With this said, I certainly don't consider myself an expert on the right way to move from a defense firm to a plaintiffs' practice. Things worked out fine for me, but it was due in part to being in the right place at the right time. If someone has other solutions to the problem, please leave a comment.
Trial experience is good, but I am kind of baffled at the idea that the way to get it is to switch into criminal law with an eye on going back into civil practice. That gets you into trials, true, but they're criminal trials where you learn criminal law and criminal procedure.
Posted by: mythago | October 23, 2006 at 05:06 PM
For an already experienced attorney, I would only recommend government practice as preparatory to solo practice if you plan to use your government contacts to gain clout (see this post - http://www.myshingle.com/my_shingle/2005/03/clout_trumps_so.html) that you can market in solo practice. So, if you plan to represent white collar criminals, it makes sense to work at the SEC, if you want to go into environmental law, putting in some years at EPA or your state environmental protection agency will help you develop contacts that will give you marketing leverage when you start your firm.
Other than that, as a defense attorney, I don't see any problem switching to plaintiffs' work, except that you need to switch perspective, e.g., realize that you carry the burden of proof and you can no longer argue that "there's no evidence that...."
Posted by: Carolyn Elefant | October 23, 2006 at 06:43 PM
It boils down to a tolerance for risk. After 5 years, the longer an attorney works in a field other than the one he/she wants to be in, the less likely the dream will happen. Sometimes you just have to jump in. Finding a salaried job in the desired field is ideal for a few years. If such a position isn't available, going solo and doing other work while the area of interest is marketed and developed is what must be done. If this person has confidence and some tolerance for risk, follow my motto, "don't be a wish I had, be a glad I did!"
Posted by: Diana L. Skaggs | October 23, 2006 at 07:48 PM
Opening a plaintiff's firm isn't a whole lot different than opening many other types of businesses. The first thing to consider is that it is a business. No matter how much trial experience you have, it doesn't do you any good if you don't have any paying clients. Trial experience helps but make sure you have a solid business plan that includes a good marketing program.
Posted by: Tom | October 24, 2006 at 06:19 PM
Tom: Good point. I'm familiar with a couple of business plans that work--no doubt there are others.
(1) Trial lawyer with lots of actual trial experience. In the post, I was trying to say that a lawyer with lots of trial experience has a fall-back if he opens his own practice and things don't work out--he can go back to work at a firm, whether plaintiff or defense. But being known as a trial lawyer who gets results in real trials can also be the basis of a business plan in and of itself, as it allows a lawyer to rent himself out to other firms in exchange for a share of the fees. A recent example seems to be Mark Lanier in the New Jersey Vioxx cases, although I don't know the actual terms of the deal under which he is proposing to try other lawyers' cases.
(2) Trial lawyer who advertises. You mentioned a "good marketing program," which could certainly mean advertising. Many lawyers swear by advertising (print and/or TV), saying that if you do it right, it never fails. I happen to be of this view. What's to be done with the cases that are generated via advertising? I'm the sort of lawyer that keeps the cases he retains and doesn't refer them to other lawyers, although this isn't always the case--sometimes lawyers who advertise also depend on other firms--such as those whose business model is (1)--when it's necessary to work cases up for trial.
(3) Trial lawyer who both advertises and actually tries cases. This is a combination of (1) and (2). You can both be a firm that advertises and a firm that other firms which advertise refer cases to. This is my own chosen model, although it's complicated by the fact that I often work on the same cases jointly with two other firms. I also have cases completely outside the model.
Anyway, as I said, there are probably many other business models for plaintiffs' lawyers, but these are a few I'm familiar with.
Posted by: Evan | October 25, 2006 at 07:55 AM