31 August 2005

The More Things Change…

So, it's become harder to make partner at big firms, eh? The comments in an article posted today at law⋅com bring back memories of Air Force officer promotion practices—and not good ones.

After Vietnam, the military changed its officer management system. There is now a "tenure decision" at around the 9-11 year point; if one is not selected for promotion to O-4 (major or lieutenant commander), with very few exceptions one must leave active duty as an officer… and garner no retirement eligibility, benefits, or virtually anything else. The military "20-year retirement" vests at the moment of eligibility—there are no retirement benefits available to someone who leaves the service with 19 years 11 months 28 days. Some of the same gamesmanship described in that article became, by the early 1990s, the same as practiced in the Air Force and Army (I didn't have enough contact with non-Pentagon Marines and Navy to judge how typical things were):

  • Volunteer for more stuff, particularly stuff that makes the unit/service "look good" (the equivalent of high-profile pro bono)
  • Get yourself a field-grade-or-above "mentor" who is in a position to influence your performance evaluations
  • Become an expert, probably by the time one is a middle-grade captain (about the seven-year point), in a narrow area that nobody else wants to bother with
  • Demonstrate loyalty to "the firm" by making it your "family"

Thus, watching my law-school classmates trumpet their new, small-firm/solo practices and/or big-firm partnerships over the past few years has been more a case of deja vu than anything else.

The problem with this approach is that it discourages understanding the "big picture" of client/military needs. I was all too familiar with this problem in the military; rated officers in the Air Force in particular were (and probably remain) remarkably ignorant of the care and feeding of the enlisted force, particularly rated officers from small-aircraft backgrounds. I see it all too often in law practice, too: the litigation/transaction divide is just as hard to cross. A lot of transactions would benefit in a preventive sense from understanding litigation possibilities that seldom occur to transactional IP attorneys; conversely, resolving a lot of disputes (whether through settlement/negotiations or otherwise) would benefit from more consideration of the impact on future business and relationships than most litigators—and, sad to say, in my experience it's worse with IP litigators than in, say, the financial sector—bring to the table.

At least among military officers, it's unmistakeable who has tenure to retirement: Look for the oak leaves on the shoulder/collar, or the third sleeve stripe (whether "regular" or "narrow"). It's not so easy in law; due to my obviously "advancing years," I've been treated by those who didn't know as a "partner" pretty much from day one. Appearances; reality; and law. That's sort of like the right way, the wrong way, and the military way.