Almost every job listing we see for lateral litigation candidates contains some variation on the words 'trial experience a plus, 'or' second chair trial experience required, first chair trial experience helpful.
Almost every job listing we see for lateral litigation candidates contains some variation on the words “trial experience a plus,” or “second chair trial experience required, first chair trial experience helpful.” This is true even for listings seeking more junior-level candidates (i.e., 1-4 years of experience).
Firms also prefer candidates who are coming from top AmLaw firms, which is somewhat ironic considering that it is quite rare for a junior associate to get an opportunity for any type of substantive trial experience within their first few years at the firm. This scarcity of trial opportunities is generally due to a combination of factors:
1) High-stakes litigation matters typically settle rather than go to trial.
2) High-stakes litigation involves an enormous amount of potential exposure to the firm’s client(s), who will obviously want top partners and senior associates handling the trial work.
3) Trial work is the reason many attorneys become litigators in the first place, and thus partners and more senior associates will often want to keep that work for themselves rather than hand it off to junior associates.
Thus, junior (and even mid-level) litigation candidates coming from top AmLaw firms who *also* have trial experience are somewhat akin to unicorns in the lateral job market.
So what should you do as you are planning or embarking on your career as a litigator? If you are lucky enough to have a choice of job opportunities, one strategy is to work for a well-respected trial boutique rather than jumping in to a large firm. While most firms have demonstrated a pattern of preferring lateral candidates with big firm experience, experience with a strong boutique will often have the same level of cachet in terms of hiring (a caveat is that this is more or less true if the boutique is in the same market in which you are lateraling, and thus your prospective firm will know of their reputation).
Another great option is pro bono work. In my law firm days, I actually ended up on a trial team that took a case through a full federal jury trial in my second year as an attorney. While that caused me to have a 300+ hour month and a 2500+ hour year when it was all said and done, all of a sudden I had experience on my resume (federal jury trial, taking direct testimony and cross-examining witnesses on the stand, arguing motions in limine, pre- and post-trial briefing) that was typically only available to much more senior associates, and would have made me a very attractive lateral candidate had I ever decided to switch firms.
Finally, you can go for the next best thing and work to get as many opportunities to take and defend depositions as possible – oftentimes, deposition experience is an acceptable substitute for trial experience for more junior candidates, especially in years 1-3.
Plenty of attorneys are strong researchers and writers, but getting trial or, at the very least, substantial deposition experience will separate you from the crowd and markedly improve your chances of being considered by a prospective lateral firm as a litigation candidate, especially as you get more senior in your career.