About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

My Boss is an Asshole and Other First-Year Associate Laments

Welcome to the firm!  Now fasten your seat belts because it's going to be a bumpy ride. 

Your supervising partner might look like Dumbledore, but he's much more likely to feel like Voldemort (photo and wikipedia entry right). 

That's why we're beginning the new legal year with . . .

WRITING THE LEGAL RESEARCH MEMO:  ADVICE FOR FIRST YEAR ASSOCIATES 

Forget everything you've ever learned about legal research and writing.  Here's the answer to any question that begins with the words "can we . . . "  

YES.  

I once worked for a partner who asked every first year and new lateral associate whether our client could successfully plead a federal civil rights cause of action in case B, Q or X.  Not only were these cases highly unlikely to support such a cause of action, this question was never posed in any case where the facts detailed might.   

The research-question-posing lawyer was then the managing partner of an AmLaw 100 firm and a former Justice Department attorney who had worked under Robert Kennedy. Only this latter fact made any of us suspect that the question might conceivably be genuine and not simply a hazing ritual for the firm’s new young associates.

But what, you ask, if the answer is an unequivocal “no.” 

Herewith are a few ways of surviving the mysterious to malicious legal research assignment posed by Lord . . . uh . . . I mean Mister Voldemort.

The best way to insure your ability to provide even an equivocal “yes” is to ask the supervising partner what s/he is trying to accomplish by alleging this cause of action before commencing your legal research.

Knowing the answer to this question will permit you to suggest an alternative means of  accomplishing the same objective if you absolutely positively cannot say "yes."  

Other acceptable alternatives to “yes” or “here’s another great way of accomplishing the same goal” include:

  1. It would be a stretch, but there are several cases suggesting that we might survive a demurrer. 
  2. It will be tough to survive a demurrer but if we argue x, y and z, I believe we can avoid sanctions if our opponent seeks them.   
  3. All of the American case law says we cannot allege this cause of action based on the facts you provided to me, but I checked the British authorities (or recent law review articles) and we can argue that the X line of case authority should be abandoned in favor of the British Rule (or Professor Tribe’s new theory of recovery).   
  4. I took the liberty of ordering the file and reading all of the pre-litigation correspondence between the parties. There are some additional facts [that you didn’t tell me about] contained there that would allow us to bring this cause of action. 
  5. If x, y or z, happened, we would be able to assert this cause of action. Have you asked the client whether any of these events occurred? Would you like me to make the call?

There are hundreds of ways to skin your partner’s cat and only one way to irritate, annoy, frustrate or – in extreme but not unheard of circumstances – enrage him. What is that one way?  To say, "no, I'm sorry, but you cannot do what you want to do and here are the 25 reasons why.”

What does this have to do with negotiation?  If you want your BATNA (Better Alternative to a Negotiated Agreement) to be better than finding other employment, you'll become expert at resolving the seemingly impossible problems posed to you by your superiors this year.  

Don't worry, it won't be all that long before you're the new Voldemort on the block.  In the meantime, welcome to the profession.  Mostly, it's challenging, rewarding and very often just plain fun.

FOR THE BOSSES AMONG YOU HERE'S AN HILARIOUS DOWNLOADABLE .PDF MUST READ MEMO FROM "CREATIVE" TO "THE SUITS" ON WHY THEY QUIT THEIR JOBS courtesy of the Bullshit Observer's post Dear Bosses, Here's Why We Quit Our Jobs.

Comments (4)

Read through and enter the discussion by using the form at the end
Chris Annunziata - August 31, 2007 12:51 PM

Great advice, Victoria. My inability to tolerate these types of ridiculous questions is probably why I was not a successful BIGLAW associate and have gotten into mediation. ;-)

In my experience, however, this type of question was second only to the directive that typically came from some senior partner older than dirt, "I remember (from law school, clerking for Learned Hand, helping draft the Constitution) that there was SOME case out there that supported my ridiculous, untenable position - go find it."

Vickie Pynchon - August 31, 2007 1:24 PM

Thanks for adding a true type A Voldemort to the list, Chris. Hilarious and true. Anyone else? (and here I'm hoping NOT to solicit examples from attorneys who were once MY associates --but have at it! -- I must include myself among those who did not take kindly to "no" as an answer to my research questions).

Chris Annunziata - August 31, 2007 4:00 PM

Put on your mediator hat for a second and answer me this question:

Can a lawyer who refuses to accept take "no" for an answer on a research project where the overwhelming case law is against the position (s)he wishes to take be an effective/constructive participant in mediation?

I understand the point you are trying to make, and young lawyers in firms big and small DO heed her advice to save your own career, but I think that its that type of inflexibility that frustrated me most as an associate and now as mediator.

These questions are usually the result of the Voldemort partner opening his big mouth and telling the client "Yea, we can pull your butt out of that fire" before knowing the answer. And then being unable to swallow his enormous pride and suggest alternatives when proven wrong.

And yes, that may be too deep a thought for the Friday before Labor Weekend.

Maybe we can collaborate on a discussion of sorts among the other mediator bloggers.......next week.

Vickie Pynchon - August 31, 2007 6:25 PM

I meant this to be humorous, of course, as well as true. My experience (as a partner) with first through about third year associates was that they (by and large) gave up too quickly on the type of innovative, creative, out-of-the-box solutions that any sucessful legal OR mediation practice depends upon. If a litigator can't take "no" for an answer when all creative avenues have been explored and exhausted, s/he wouldn't last long in a business that requires him/her to understand the strengths and weaknesses of both sides of every case. Then again, I've seen a thousand litigation ships against insurance carriers launched because someone believed they could prove that the term "sudden" as used in a CGL policy didn't mean "quick" but only unexpected. This brainstorm required its "inventor" to research the factual history of the clause using documents from the Insurance Services Office and from legislative hearings. The California Court of Appeal finally disagreed, illustrating its point with a cartoon of Snoopy typing atop his dog house "gradually a shot rang out." By that time, however, insureds with environmental liabilities had been paid hundreds of millions of coverage dollars based upon the possiblity that "sudden" might not have a temporal meaning in the context of the pollution exclusion at issue. So my suggestion to look under every stone to answer a research question was and is seriously proposed. Were I still practicing law today, I'd continue to prefer that my young associates exhaust themselves trying to give me a "yes" answer to providing me with the hasty and easily achieved negative. It requires a particularly acute kind of intelligence, creativity and persistence to find a way to say "yes" to an improbable means of addressing a legal problem or, at a minimum, suggesting a better way to skin the same cat.

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