Negotiating the Terms and Conditions of Your Employment with the AmLaw 100
(right: unknown Harvard Law School Graduate from the HLS 2007 Commencement Page)
Yesterday, I suggested that young attorneys use the considerable bargaining power they do not believe they possess to negotiate the terms and conditions of their first year associate positions with the AmLaw 100.
Because I know a young man who is about to commence his first year in those ranks, I also know all of the reasons why this can't be done:
- although the $$$ involved are considerable ($160K/year) the day-to-day terms and conditions of an AmLaw 100 first year's employment are so apparently set in stone that negotiating terms has not even crossed young lawyers' minds;
- the push back from the top firms is predictable, even understandable:
- making exceptions among first year ranks will sow seeds of dissent among all associates with unpredictable (but unquestionably bad) consequences;
- WADITW: We've Always Done It This Way.
- the system is in place
- everyone depends upon it being this way
- exceptions will invite chaos into an orderly and predictable regime
- we're prospering
- since it's not broken (from OUR perspective) don't fix it.
HOW FIRST YEARS CAN NEGOTIATE THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT
First, let's not kid ourselves, it would take brass $#%^'s to say to Skadden Arps, "listen, there are a few things I'd like in my employment contract that aren't contained in your offer."
On the other hand, if you're reading this from the point of view of a recent Harvard or Yale Law School Graduate who was Editor-in-Chief of the Law Review and a Clerk for a Federal Appellate Judge, now's the time to earn those %$#&# while at the same time creating the one and only professional life that you have already, in large part, earned.
- You Are Not a Widget in a Widget Factory
Since your first year in law school, your employment search has made it seem as if there were only a few coins to earn and spend -- class standing; law review or moot court, and the relative prestige of your clerkship. Oh yes, and the all important ability to get along reasonably well with your colleagues duirng your summer clerkship.
Because there are many other bright, hard-working law students with qualifications similar to yours, you've come to think of yourself as fungible, which any fool can see you are not. Nevertheless, there's good reason for you to believe that you must accept the terms offered by your future employer because the "system" was in place before you entered it; has been in place for decades and seems a whole lot more powerful than you are.
- Identify and Leverage Your Unique Value
In this situation, where you have no apparent bargaining power, Bazerman and Malhotra in their indispensable new book Negotiation Genius suggest that you "identify and leverage your distinct value proposition." They call this your DVP because academics, like lawyers, love acronyms.
Malhotra and Bazerman explain:
How can you create and claim value when your counterpart [here, your potential employer] is only interested in discussing price [no matter how high that "price" might be].
[Y]ou can improve your prospects by changing the game you are being forced to play. Consider that, in negotiation, your ability to legitimately claim value is a function of your ability to create value. . . .
[V]ery often, you do bring something to table that distinguishes you from your competitors [i.e., other Law Review EOC's from Ivy League law schools]. This is your distinct value proposition (DVP) and it need not be a lower price . . .
If you bring . . . value-adding elements to the deal, you have the possibility of using them to get what you want . . . The key is to figure out how to make your DVP a factor in the negotiation.
Unique Value + Understanding Your Bargaining Partner's Interests + the Courage to Claim Value for Value = the Rest of Your Professional Life
You've been competing for so long in the stratosphere against the same cohort (people in the top 1%of the bell curve) that you've forgotten how uniquely valuable you are.
Therefore, step one to negotiating the professional life you want is to sit down, take a deep breath, and list everything of value you have to bestow on a law firm other than academic and clerkship accomplishments.
Step Two is to identify your potential employer's interests, which include:
landing you as a first year;
retaining you for at least five years so that your employer's considerable investment in recruiting you has the meaty pay-off of your billable hours and book-of-business-building ability that commences in earnest between your fifth to seventh years of employment;
keeping the entire class of first-years stimulated, appreciated, and fairly rewarded; and (which will require a reasonable "excuse" for treating you differently);
creating new and valuable niches of expertise in the firm to increase the firm's market-share.
Step three is to offer to meet more of your potential employer's interests than it ever considered you might be able to satisfy:
contracting to continue your employment through the end of your fifth year;
offering to defer a certain percentage of your yearly income until the end of your fifth year as your incentive to abide by your agreement;
offering to help the firm expand a new (or suffering) area of its current practice by committing to, for instance, write two publishable articles per year in that niche practice area; and/or,
if you have contacts, offer them now, i.e., "I've already spoken to my dad's friend, the CEO of X Corporation, and he's agreed to meet with the ___________ practice group for the purpose of putting this firm on its short list of "go to" counsel for, say, IP or securities fraud or regulatory litigation.
In exchange for which you want what?
Well, how about a first year that is devoted solely to learning with no billable hour requirement.
If you're a litigator, you might want to observe and then take depositions, as well as defend them, during your first year. You'd like the opportunity to join a team that is on its way to trial and you'd like to second (or third) chair that trial. You want to argue motions and/or appeals.
If you're a transactional attorney, you want to go to client meetings, observe negotiations, help with the drafting of critical contract terms, and, be included in the strategy sessions.
Perhaps most importantly, you want to be included in practice development with one or more of the firm's few rainmakers.
These are just suggestions. This is about what you want.
You have value.