Anyone who has worked in a large law firm knows there is a wide range of writing ability among associates, and that junior associates’ work product is usually reviewed and edited by senior associates or counsel. The hope and expectation is that as associates receive feedback, their writing will improve. But what happens when a junior associate is already an exceptionally good writer, better than most or all of those who have been at the firm for many years?
In many of the larger law firms, many people “higher” up in the hierarchy of attorneys at the firm review and revise the work of junior associates. For example, a third-year associate, a senior associate, a counsel, and multiple partners at the firm all may review a first-year associate’s brief. Each time an attorney reviews the brief, it is revised according to what that particular attorney believes is strong and persuasive writing. One would hope that each successive attorney reviewing the brief is a stronger writer than the last and that the revision process therefore is efficient and results in a better work product. But that is not always the case. The hierarchical system of reviewing writing in many large firms should be altered when there are gifted writers among the junior associates so that weaker but senior writers do not end up reviewing the work.
The problem with the hierarchical model is that it fails to encourage associate growth and it at times leads to inefficiency. For example, a talented junior associate may have her initial draft revised by four or five different higher level attorneys, resulting in a final product approved by the senior partner that is more similar to her initial draft than to the revisions and re-writes of her multiple superiors. All those hours billed as “revision of brief” and “edits of brief” by the multiple higher level attorneys may result in a heftier bill for the client, or even be written off by the senior partner. When such inefficiency occurs, no one benefits—the law firm, the client, and the associate are all worse off than they would have been had a nonhierarchical system focused more on writing and/or skill level been in place.
Most large law firms define an associate’s level by the number of years they have been out of law school. An associate’s level most often dictates their base compensation. The assumption is that an associate is progressing in skill each subsequent year he or she is out of law school, thus meriting an increase in salary. Rarely is an associate “left back” for failure to grow in a particular area, or for failure to develop in writing. Similarly, we have never heard of junior level associates being promoted to a higher level if they were writing at the level one would expect of a higher level associate.
Law firms should think outside the box to determine how they can develop their associates’ writing skills. In developing the writing skills of their associates, large law firms should consider establishing writing programs in which stronger writers mentor and review the writing of weaker writers. Many times, the weaker writers indeed will be first-year associates. Sometimes, however, fourth or fifth-year associates write at only a mediocre level, and a first-year associate may write exceptionally well.
There are many ways law firms can maximize efficiency and foster associate growth. Rather than basing assignments on seniority level, for example, partners can consider an associate’s writing level to determine who should be writing and who should be revising and editing on cases. Law firms can consider categorizing or ranking associates’ writing levels (e.g., from beginner to extremely skilled) at the same time as law firms consider associate bonuses. The recent trend is that firms are increasingly basing bonuses not only on number of billable hours, but also on merit. If associates were categorized according to their writing skill level, an improvement in writing level over the course of a year for an associate could help establish whether a merit based bonus may be warranted. Law firms can also consider hiring a writing editor to work with attorneys who are less skilled in writing.
One might argue that in many law firms, a formal writing program may not be necessary, as associates who are more talented writers are often given all of the writing assignments and those challenged in writing are not involved in any writing or editing. If a law firm has this type of “natural selection” model in place, however, those who need help will not get the practice they need to develop their writing skills. There are far too many associates in large law firms who are relegated to document review because they are not among the best writers. But every associate has potential. Law firms should evaluate an associate’s actual writing level in determining the drafting and revising roles associates will play—either informally or through a formal program. Such a nontraditional nonhierarchical idea could result in greater efficiency and better results for the client, as well as better mentoring and development for associates. •