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An article I wrote at this time last year was a cautionary tale. I likened market conditions at the time to the reality game show “Survivor” and offered advice for both managers and associates for staying in the game. Fast forward 12 months, and the “survival of the fittest” mentality has grown even more pronounced. Firms are still eating their young — cutting loose very junior associates before true merit evaluation can reasonably take place, and crediting dismissals to poor associate performance rather than economic forces. Layered on top of the economic woes are the repercussions of Sept. 11 to our city, our sector and our psyche. Recent scandals calling into question the ethics and standards maintained by major professional firms just add insult to injury. Recruiting calculus being what it is, this summer promises to be another buyer’s market. Though firms have been more conservative in summer hiring than last season, student demand for entry-level associate positions is again likely to outstrip supply. Consequently, hiring committees will be in the unfortunate position of rationing offers come Labor Day — not all summer associates who start the season beaming with promise will be welcomed back by their summer employers. The mantras “there is a place for every summer associate” and “an offer is yours to lose” will undoubtedly still ring through law firm halls all over the city. The truth, sad to say, is probably not so rosy. NO EASY ANSWERS In my work counseling hundreds of law students from several schools over the past decade, I have encountered a relatively small but not insignificant number of 2Ls who fail to receive return offers from their summer employers. In sharing my experiences with career services colleagues at other law schools, two common threads appear. First, the “no offer” decision almost always comes as a surprise to the candidate (legitimate surprise, not just denial). Secondly, the root cause of the problem rarely hinges on the lawyering skills or professional potential of the student involved — it is more often chalked up to an amorphous cause like “lack of fit” or “poor judgment” or “bad attitude.” There are the “bright line” cases, such as the gourmand summer associate who rejected the wine at the welcome dinner, ordered his own and put it on the firm’s tab. Or the ethically challenged, who pilfer stacks of office supplies, blame support staff for their own mistakes, cite fictional cases in memos, or “borrow” whole paragraphs from hornbooks without attribution. In such situations, a “no offer” decision is not only inevitable but probably advisable to protect the firm from liability. But these cases are rare. The vast majority of “no offer” verdicts fall in the gray area, and generally don’t spring from a lack of gray matter on the candidate’s part. To examine your own firm’s record in this regard, it might be helpful to analyze the circumstances surrounding every “no offer” decision made in the past five to 10 years. (The incidence of these cases is hopefully rare enough that a lengthier longitudinal pool is necessary to draw meaningful conclusions about your firm’s practices.) THE ‘LACK OF FIT’ AREA If the reason for the “no offer” decision frequently falls into the ambiguous category of “lack of fit,” perhaps the depiction of the firm’s culture in the recruiting process should be examined. No firm is right for all students, even if they are on the law review. Hiring decisions based more upon the GPA of the candidate than her personality and work style are bound to miss the mark. Along with a review of your “misses” over the past decade, take a look at your best “hits.” Consider the skills, personalities and professional and academic backgrounds of your past summer class “superstars,” preferably those candidates who chose to return and whose potential has been borne out through a few years of associate work. Honestly assess what seems to help an associate make it at your firm and how those qualities are revealed in the short time frame of a summer program. Communicate these factors to your interviewers, so that they don’t take one look at the Fulbright Scholar with straight As and start the firm sales pitch, without looking for a genuine fit. Some firms are more “rough and tumble” places whose partners suffer fools not at all; in order to thrive (or even survive), a summer associate must possess a certain confidence and toughness to weather the slings and arrows of short-tempered attorneys. If the “lack of fit” you discern is seemingly related to a summer associate’s personality — being more introverted, tentative or passive — this may be a manifestation of self-preservation in an environment where asking a “dumb question” is met with derision. Alternatively, they may be following the age-old advice that “less is more” and that, as a novice, it is better to “be seen and not heard” — to learn by observation. While some attorneys protest that law students need to learn to “take it” to succeed in this profession, firms vary greatly in the accepted range of behavior, both by junior associates and by their supervisors. The banter that one firm would accept as tension-easing wit (with a touch of sarcasm) might be viewed as caustic and inappropriate at another. Your firm’s history might reveal that those students who fare best come with prior “toughness” training, whether on an investment bank trading floor, in a sales or telemarketing position, or as a New York City cab driver. If a “lack of fit” factors into most of your “no-offer” decisions, challenge your attorneys to consider whether the perceived personality “deficiency” is really a case of cultural difference. If law firms are sincere about embracing a diverse associate pool, and ultimately achieving a diverse partnership, then the norms of what constitutes a “winning” personality must be examined. When benchmarks of “strong leadership skills,” “ability to inspire confidence” and “professional presence” are really measured by typical Caucasian/American male standards of assertiveness, students with a different conception of professional behavior, by virtue of culture or gender (or both), may lose out. Granted, any summer associate who hopes to succeed in your organization must be able to inspire confidence in your clients. If that means developing a more assertive style, this is a legitimate basis for discussion, amelioration and re-evaluation, but not for an automatic “no offer” decision. Presumably, as the client base of major law firms becomes ever more multicultural and international, maintaining a professional staff with diverse communication styles will inure to your firm’s benefit. JUDGMENT CALL If a student receives a “no offer” decision due to “poor judgment,” “failure to communicate” or “lack of enthusiasm,” this should give pause. How effectively are all of the various participants in your summer program (hiring partner, recruiting staff, associate proctors, partner mentors, direct supervisors) spelling out the rules? And how much leeway do summer associates get to figure it out? Given the princely sums paid to them, your permanent attorneys might be less predisposed to cut them any slack. (Baseball players are considered stars if they miss the ball only two-thirds of the time, and they make millions.) How do you expect “enthusiasm for practice” to be demonstrated? What procedures are in place to enable summer associates to ask those “stupid questions” without penalty? Law firms often send competing messages to summer associates. “We want you to have fun … but not too much fun.” “We want you to be professional and take your work very seriously … but don’t take yourselves too seriously, or no one will want to work with you.” In trying to make the firm seem friendly, laid-back and comfortable, it is possible to inadvertently model behavior that is, in fact, unacceptable coming from summer associates. Students put at ease by mid-level associates might decide that it’s okay to gripe about a due diligence junket to Cleveland, tell bawdy jokes at a firm party, or gossip about a partner’s spouse. (They may be unaware that the mid-level associate is on thin ice himself.) Some students have expressed their disgust at the amount of drinking that occurs at firm events, but worry about passing on those tequila shots and being labeled a “spoilsport” or “not a team player.” If the vestiges of the coarse “Wall Street trading desk” mentality of Michael Lewis’s book “Liar’s Poker” continue unabated at your firm, especially among your mid-level corporate associates, summer associates will interpret this as desirable — perhaps even necessary — behavior for success. The rules of professional protocol are not so clear, and business casual attire has further muddied the waters. Lawyers of my vintage “dressed the part,” and, in a way, our business suits helped us to be believable as professionals, both to others and to ourselves. Associates perennially dressed in Dockers with Blackberrys in hand seem always to be working, and it may be difficult for summer associates to discern appropriate professional behavior from off-hours activity. (Given reports from the field, firms may want to address this topic with associates.) DON’T RUSH TO JUDGMENT While only a small percentage of attorneys will have directly supervised a given summer associate, virtually everyone at the firm will have an opinion about that person. Most firms have some semblance of a “star system,” whether acknowledged or not. And the speed and finality with which supervising attorneys rush to judgment is remarkable. Most crucial from a training standpoint, once an opinion is formed about a summer associate, it tends to color feedback on all his subsequent projects. Enjoy some “beginner’s luck” on your first several assignments, and your work product seems to take on an air of deftness and professionalism, no matter how menial the project. Conversely, a few early missteps — not knowing how much time to spend on an assignment, or when and how to check in with your supervisor — can derail any summer associate. Moreover, the self-doubt created when there is no feedback or exclusively negative feedback on an early project can stymie the individual’s ability to learn and progress. Challenge your colleagues’ “early calls” on the relative merit of each summer associate. Reflect on the summer classes of years gone by. Did the informal labels affixed to their members become self-fulfilling prophecies? No doubt your “stars” probably were, in fact, gifted, bright and motivated, but perhaps not more so than some of your “also-rans.” Even more importantly, can you think of an instance where a summer associate stumbled badly in the first half and was essentially written off, but was able to come back with a strong finish and secure an offer? You have invested extraordinary resources in recruiting your summer class, and even at the summer’s end it will be premature to gauge their professional promise. The best you can hope to do is to motivate every person at your firm to help bring out the best in every summer associate. That done, let the chips fall where they may. USE ENGLISH, NOT LEGALESE Poor communication is at the root of many “no offer” decisions, but it isn’t always on the summer associate’s part. Our tendency as lawyers to couch, qualify, obfuscate and otherwise spin any given set of facts, combined with a law student’s still-undeveloped ability to read between the lines, is a sure recipe for misunderstanding. Many “poor judgment” verdicts that have cost summer associates return offers can be traced to instances of miscommunication. A summer associate who leaves her mid-summer evaluation feeling fine after hearing that her work is “meeting expectations” doesn’t realize that this constituted a sub-par evaluation — all summer associates are expected to exceed expectations. Her classmate might be delighted to learn that he “has been very well received on a social basis;” he is dumbfounded to learn at summer’s end that this was law firm-speak for “you’re not the sharpest tack in the drawer.” Another summer associate might be puzzled upon hearing that her supervisors “didn’t see enough of her work,” since she completed every project she was assigned — not recognizing that this could be a gentle way to express that her work was too slow, or her hours too low, or both. The obscure comment that “the firm is concerned about your commitment to practice law” might have a summer associate wondering if a partner spotted his Lotto tickets or found out about his secret dream to be a cartoonist, when the real concern centers around his perceived unwillingness to work weekends. While it is impossible to eliminate every instance of misunderstanding or poor communication, the recruiting process can certainly benefit from greater clarity. Lawyers as human resource managers tend to be concerned with liability to the exclusion of all else, leaving them hesitant to offer honest, well-meaning and constructive criticism to junior associates. Also, it is human nature to be uncomfortable offering criticism. Remind your attorneys to recall their own humble beginnings; law students are, in fact, not born knowing how to research without spinning their wheels, how to choose the perfect format for a closing certificate, or why bonds are printed on special paper. One day they too will effortlessly negotiate the word processing and duplicating departments, proofread and edit your prospectus to perfection, and maybe even read your mind when you hand out a nebulous research assignment. Be patient; it took time for you to become the fabulous lawyer you are. BE PREPARED The foundation for a successful summer program can be laid before it even begins. At NYU we conduct an annual program in the spring entitled “How to Succeed in Your First Law Firm Job;” many other law schools do the same. Encourage your incoming summer associates to attend such a program at their respective schools. Students can also consult one of the numerous career and practice advice guides, such as Kimm Walton’s book “What Law School Doesn’t Teach You But You Really Need to Know” (Harcourt Brace, 2001). Each firm is unique, of course, with its own culture, standards and mores. If yours has compiled a firm policy manual — even if its content seems more applicable to permanent employees — consider providing it to summer associates prior to the beginning of the season. Additionally, any articles by or about your firm’s practice or professionals can provide a sense of the firm’s culture and history. LEVEL THE PLAYING FIELD One simple way to demystify the evaluation process is to show the evaluation forms to summer associates during orientation, and have a conversation with them about the evaluation process. Explaining that feedback will be provided for every project, and that a special process is activated when the work quality or professional behavior falls short, will relieve a great deal of anxiety. It will also empower them to seek feedback from supervisors if it is not forthcoming. This orientation can include an affirmation of the firm’s confidence in its recruiting process and belief that every summer associate is eminently qualified to succeed in law firm practice. You may want to plan a small group session immediately thereafter solely with first- and second-year associates. Summer associates can then ask questions about the process in a non-threatening environment. An introduction to the business of law firm operation and client service should follow. There is no danger in being overly literal; if a summer associate is told that every phone call must be returned in two hours, the larger lesson of customer service is clear. While law students today are more intelligent and academically gifted than ever, they are also on the whole younger. For many, their sole exposure to the business world was in the structureless dot-com world. Provide clear information on when and how to ask for guidance, how the law firm library staff can assist in their research projects, the cost of Lexis and Westlaw searches and how to use on-line research efficiently, and the importance of treating all support staff with respect. Students may not automatically wait around until 10 p.m. for attorneys to return a 5 p.m. telephone call. If this has proven problematic, impose a rule to check in directly with each supervising attorney before leaving in the evening, and provide cell phone numbers to be readily reachable thereafter. The goal is not to coddle or condescend to summer associates, but to level the playing field, so that those students unfamiliar with law firm life are not at a disadvantage compared to the former large firm paralegals or students from families of lawyers and bankers. Just as in any good game, you establish the rules clearly and unequivocally, and then get out of the way and let the players play. Should difficult decisions regarding return offers subsequently need to be made, you can then be sure that every summer associate was given the tools and opportunity to succeed on the merits. ADDRESSING THE ‘NO OFFER’ The communication and timing of a “no offer” decision is crucial in determining the impact on the student and the “damage control” needed by the firm. If the student has not received clear cautionary feedback from supervisors throughout the summer, the “no offer” decision can come as a terrible shock. This can easily occur if the evaluations to date have been vague, or if the mid-summer evaluation was postponed far beyond July 4 or not conducted at all. The news may come in an “exit interview” which the student believes is a two-way conversation designed to enable the summer associate to provide feedback on the summer program. Worse still, the “no offer” decision may arrive solely by mail, in a terse one-paragraph letter, often dispatched weeks after the summer’s end. The student is stunned and paralyzed by the decision, and typically left with no procedure for seeking feedback or exploring a reference from the firm. The news may come too late for the student to take part in 3L on-campus interviewing, thus compounding the damage. A candidate with no return offer from his summer employer is ostensibly “marked” in the recruiting process. Handling the “no offer” issue in subsequent job interviews, and ultimately convincing another employer to take a chance on him, is a challenging and delicate task. The student must emotionally process the decision, make sense of the underlying causes, restore his self-confidence and perhaps rethink his professional aspirations. Without an unshakeable positive attitude and well-planned job search strategy, the student will not weather the now infinitely more difficult recruiting process. A positive outcome for both parties depends upon the full participation and cooperation of the summer employer and the support of the student’s law school career counselor. Is there any way to prevent this lose-lose situation? A “no offer” decision is made even more painful when it is delivered by hiring committee members or recruiting professionals who have never worked with the summer associate. All discussion of work quality and project history thus assumes a “he said-she said” tone, as the written evaluations leave no room for the supervisor’s explanation or the candidate’s reaction. In fairness, a decision with the professional consequences of a “no offer” verdict should never come as a surprise to the summer associate. It should only be the end result of an unsuccessful but earnest attempt by both student and supervisors to identify, address and correct work-related problems throughout the summer. To ensure accountability from supervising attorneys, whether heavy hitter partners or junior associates, and to imbue all attorneys with a sense of their responsibility for training and mentoring summer associates, supervisors must be accountable for their evaluations. The submission of an evaluation with a recommendation of “no offer” or “possible no offer” should trigger a special procedure to bring the supervisor, summer associate and summer program administrators together to address the problem. (Such an evaluation could even be on a separate form, perhaps on yellow paper to denote a “Caution Advisory” to the summer associate.) Any “Caution Advisory” would require that a meeting take place within a week of the summer associate’s completion of the project. The meeting would serve the purpose of specifically outlining the deficiencies in the work, resolving any issues of miscommunication and creating a plan to redo the project or accept another project with that attorney to demonstrate that the problem has been solved. The presence of a designated member of the hiring committee or the summer program coordinator would ensure that evaluations and feedback are conducted fairly across departments, and that individual supervisor personality issues are not involved. Attorneys will need to receive clear guidance on the process and the spirit of such sessions. The conversation should not be conducted like a deposition, but as a sincere discussion of the quality of the summer associate’s work, from the tangible aspects (legal research, analysis and viability of recommendations to the client’s situation) to the intangible matters (communication, effort and attitude). The review should focus upon how the work product was to be used to service the client, with the supervisor offering specific examples of how the project could have ultimately served the client more effectively. If a summer associate provided an overly theoretical analysis, for example, this meeting would provide the opportunity to consider whether the student had adequate factual background to target the analysis. While this process may seem onerous given the necessity for timely and meaningful review, it will ultimately save time and resources. The administrative attention required to manage an unexpected “no offer” decision consumes significant time just when you are attempting to turn your energies to recruiting the next summer class. And one disgruntled former summer associate can wreak havoc on your 2L recruitment efforts at his law school, as well as endangering acceptance rates from your entire summer class, necessitating further damage control. Further, the “Caution Advisory” process would presumably be used relatively infrequently — only where the summer associate’s work product or behavior sends up a red flag to the supervisor. By putting the student on unequivocal notice, it protects you while it empowers him to attempt to rectify the situation and save his return offer. Most importantly, the process introduces fairness and a modicum of due process that will send a message to all of the summer associates in the program. When a “no offer” verdict is rendered, there are repercussions throughout the summer class. Even your “stars” will quickly hear the news and draw conclusions about communication, training and management at the firm. Students are remarkably forthcoming in sharing these experiences with their peers, particularly when they feel the decision is unexpected and does not jibe with feedback received throughout the summer. Those students who expected “no offer” decisions are often aware of their weaknesses and understand when a reasoned determination is made that the work product was deficient. In a tight market, when a 100 percent offer rate is not in the cards, having a fair and aboveboard process for evaluations can protect your firm’s sterling reputation for treating associates well, and will help to preserve the camaraderie of your summer class. A FAIR PARTING OF THE WAYS Not every summer program will result in a 100 percent match between the firm’s needs and the summer associates’ expectations and goals. Where a mismatch occurs, in most cases it will be due to a lack of professional experience and polish, not a deficiency in the student’s lawyering skills. If the evaluation process is clear and fairly administered, in spite of information, support and opportunity for improvement, it should be evident to all parties that a return offer is not warranted. For the long-term benefit of the profession, every effort should be made to facilitate the development of junior attorneys in the private sector. Whether a summer associate returns to your firm or not, whether resulting from a decision on the part of the firm or the student, a connection and an obligation remains. If the summer associate has conducted himself with good faith, best efforts and integrity, the firm should strive to meet the student half way. Failing to find an entry-level home after an exhaustive 2L summer job search and a grueling three-month trial period can be a devastating disappointment. Where you can help make a soft landing, you are doing the profession a service. Your firm might not be the right environment for this student, but your reference will play a critical part in the job search as he or she searches for the right professional home. And your relationship with the student following the “no offer” decision will speak volumes about your firm’s culture and values. Firms are mutually dependent on the veracity of professional references. If every firm takes the position of disclosing only dates of employment and the lack of a return offer, no firm will have the honest assessment required to make a hiring decision, and students will be frustrated in their quest to find the right firm for them. We should be creative and flexible enough as a profession to devise a better way. If a summer associate is evaluated on standard criteria (writing skills, oral communication, analysis, dependability, follow-through), firms should be willing to provide that information to a prospective employer at the student’s behest. In the course of a thorough “no offer” discussion at summer’s end, the firm and student should review all of the evaluations (bringing in the supervising attorneys as appropriate) and be able to agree on the content of a reference. For clarity, the firm might decide to provide a letter of reference. Rather than focus on the lack of a place for the candidate with the summer employer, the reference letter can provide the positive feedback included in the supervisors’ evaluations. If progress was made in a particular area, it would be appropriate to note that. (“Bill is a tireless and meticulous researcher. Over the summer we observed a great improvement in his efficiency. He has developed a clear sense of how to adjust his efforts to the client’s needs.”) If the truth is that this summer associate is smart and motivated but totally out of place in a large hierarchical setting, discuss with him options at smaller firms, and put that suggestion in writing. (“Corey’s creativity and energy are extraordinary. He is most effective working in small groups, as evidenced by his excellent work for one of our entrepreneurial clients. The client came to trust and rely on Corey and frequently communicated with him directly. We encourage Corey to apply his considerable talents in a smaller setting.”) Your competitor Big Firm X won’t mistake this type of specific reference with an “all clear” to hire him there. If this summer associate has proven herself to your firm with her effort and determination, extending yourself on her behalf is the right thing to do. A small gesture on your part — a phone call to an alumnus of your firm now at a smaller firm, a supportive telephone call before a crucial callback — can make all of the difference. We all have a stake in ensuring that every member of the next generation of lawyers realizes his or her full potential. If your colleagues are more readily convinced by sheer self-interest, tell them this: The fairness and consideration they extend to that “no offer” summer associate today will be rewarded many fold in good recruiting karma. Gail E. Cutter, a former large firm associate, is the director of career counseling and placement at New York University School of Law.

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