Going in-house as a litigator

Inhouse litigation

Here’s one for the jaded litigators – is going in-house the answer? We hear from the team at Whistler, along with three former litigators who made non-traditional career paths work to their advantage in big ways.

When it comes to going in-house, don’t settle…

As many as eight in ten corporate associates have their sights set on going in-house, more or less from the start of their careers – that’s the view from the legal recruitment specialists at Whistler Partners. And even with that level of foresight, going in-house isn’t necessarily an easy path to navigate. What does that mean for our litigation friends? You probably picked litigation because you enjoyed legal writing or crafting a case… but just like your corporate counterparts, BigLaw is still going to disillusion many of you. Then what? According to Susannah Wright, chief legal officer of Credit Karma, “having a five-year plan is overrated. Focus on what you enjoy doing and take advantage of opportunities. There are so many different paths you can take.”

But, let’s first get a few disclaimers out of the way. Whistler Partners founder Sean Burke says if you really love being a litigator, “you probably don’t want to go in-house. Stay at a firm where you will always get to work on the most cutting edge and sophisticated litigation. I’ve had more than one in-house counsel tell me that they miss taking depositions and arguing in court.” It may not be the advice you’re expecting to read in an article about in-house litigators, but Burke and his team have seen it all before.

And as Whistler’s head of in-house placements Sarah Wyman points out, “the government route is a path that a lot of top litigators take. If that’s your calling, then this conversation probably isn’t even for you.” In-house legal “typically deals with routine day-to-day matters,” she says. “If your company gets sued and all hell breaks loose, it won’t be the in-house lawyer putting out the fire. You’ll outsource that to outside counsel.”

“We’re talking about when a litigator is no longer being a litigator.”

Because the business reality is, as Amdie Mengistu, senior consultant at Whistler, elaborates, that companies “typically hire in-house to take care of the boring shit rather than a $1500-an-hour firm.” Even in industries like insurance, where companies typically have a lot of in-house lawyers, “they’ll hire a 5th year litigator to handle their foreclosures and take them to state court.” Mengistu describes the rare roles that allow an attorney to continue handling high-stakes litigation from within a company as “the unicorns.”

Even if you’re determined to find that magical unicorn position, remember a material difference between doing the work in-house versus at a firm. Burke recalls advising a lawyer who “had drafted a really complicated brief with only a small team and didn’t send it to outside counsel. In court she was sat across from a team of partners at Davis Polk and realised she did the same thing they did but was making a lot less money in the process. She asked herself, why not just be a partner at a law firm?” In short, “those partners make a lot more money! Why go in-house?”

Of course, as with all discussions around going in-house, there are considerations aside from money and interesting work. Scott Buell, general counsel of Forter, a database software company reckons that, although ultimately he works roughly the same amount of time annually as he did at a firm, he has much more control over his days and hours. “Being at a law firm can be frustrating because it’s feast or famine. You can work 20 hours a day one week, then the next week have nothing to do.” In-house work is steadier, without client demands. That said, in-house you answer to the CEO. “I still certainly work a lot,” says Buell, “but managing my family and personal life is easier.”


The road less taken

With warnings out of the way, let’s chart some positive paths to in-house from a litigation background, which according to this panel, could be stronger than the typical corporate path. Of course, Burke acknowledges that “a lot of litigators don’t love being a litigator at a law firm.” So what does going in-house mean for them? “We’re talking about when a litigator is no longer being a litigator.” Litigators who want to go in-house as general counsel “want a broader platform where they can have an impact in a lot of ways and be closer to the business side.”

This kind of role would test the skills of any attorney – “if you’re in the room when a businessperson asks a legal question, it doesn’t matter if it’s not your area of expertise. You’re now in charge of solving that legal problem no matter what.” Former litigators with trial experience “have been in front of judges grilling us with tough questions. We’re used to making split-second decisions,” says Andrew Bauer, deputy GC at One Zero Capital, and its largest portfolio company, Better.com. So it does prepare you for when you’re “in-house, juggling enquiries from all departments of the company, usually on a fairly tight timeline.”

"I felt disconnected from my client’s mission, and it left me feeling lacking.”

Bauer has always had a mind for business. Pre-law he worked at a hedge fund and a dot-com-bubble-era incubator. At law school he wanted to do public interest work, but ultimately went down the BigLaw route: “It gave me very solid training and really opened doors for me.” He got experience in commercial litigation, IP, labor and employment and white-collar criminal defense. He ended up working at the US Attorney’s Office for Preet Bharara,where he was able to harness some of his public interest motivation, focusing on violent crimes, as well as insider trading and other white-collar crimes. Bauer then returned to BigLaw as an equity partner at Arnold & Porter. But as is the case with many who turn their sights to the in-house world, he “struggled with being on the service side of the business, parachuting into clients’ businesses for only a short episode. I felt disconnected from my client’s mission, and it left me feeling lacking.”

This was also a motivator for Buell. He began his legal career working in regulatory enforcement for financial services, picking up some risk analysis work in tech. He found “the things I liked best about my job included getting to work more closely with the business arms for our clients.”As his expertise in the regulatory space began to build, he found himself yearning to get “broader exposure to legal issues and learn new things.” Buell moved from firm life at Cleary Gottlieb to Forter, then an e-commerce trust platform. He finds that working with emerging tech companies ticks those boxes – “it forces lawyers to deal with novel issues because the tech is so new that the law hasn’t caught up yet.”

Like seasoned detectives, litigators are “really good at sleuthing out how to tackle completely new matters,” says Sarah Wyman. “It’s how their brains are wired. Whenever something is new and unknown, litigators thrive. They can be extremely strategic and helpful with the unprecedented.”

This is what Bauer targeted when jobhunting. “I identified late stage startups as a good fit,” he explains. “I wanted a seat at the table and to feel like I was part of that mission every day.” And he found it in One Zero Capital, which he describes as “a truly special place to serve as a generalist” for the firm’s portfolio companies. In the case of Better.com – an online mortgage startup – he says it’s “a true rocket ship – a year ago we had 500 employees. Now we have 4,700. In 2021, it could reach 10,000 employees. So there’s so much interesting, fun work to be done every day.”

“It’s like in The Karate Kid – he told Miyagi he didn’t want to do all the ‘wax on, wax off’ stuff – but that’s whole point, you have to learn the basics first!”

Wright tells us that former litigators can actually be vital to fast-growing companies. She says these businesses are “doing things no one has ever done before, so we need to break new ground and make swift judgement calls.” In these disruptive areas, “a lot of the law is grey – many of the regulations were developed 30 or 40 years ago with different business models in mind.” This makes litigators very desirable, as they’re trained to forecast how things might play out in the long run; they have the ability to “see around corners and understand the long-term play of how a decision pans out.” Another key perspective that ex-litigators can often bring is philosophical thinking: “A lot of times it’s not just the technical aspects of the law, but the spirit of the law – are we doing the right thing, could we explain this to a jury or regulator?”

But of course, you won’t get a GC or DGC seat at the table pulled out for you after only a few years in a BigLaw litigation practice. Those positions require experience and skillsets that are collected over time. And there are dangers of going in-house too soon. “A large portion of those positions are just managing litigation in a large company,” says John Wolf Konstant, senior consultant at Whistler. “Are you going to be able to develop your skillset there?”

Many attorneys want out of litigation so bad that they bail too quickly. “You need to build up experience – if you pivot between 2nd and 4th year, you can actually end up underpaid and risk getting stuck somewhere.” Konstant asserts that if the Gladwell theory that 10,000 hours of something makes you an expert, that equates to five full years billing 2,000 hours. And Burke says that, even though you may not like it, “it’s like in The Karate Kid – he told Miyagi he didn’t want to do all the ‘wax on, wax off’ stuff – but that’s whole point, you have to learn the basics first!”


Walking through the in-house door

If you see yourself thriving in-house, and are willing to invest in building relevant experience, what steps should you take? Again, going in-house as a litigator is tricky at first. Bauer targeted startups in his search, but then faced the challenge that “the smaller the company, the more unlikely it is they’ll be interested in a litigator.” Amdie Mengistu also points out that “litigators bring a skillset often made for court, but what happens in-house are SEC filings, contract negotiations and everything else.” This is why Sean Burke recommends attorneys “develop a skillset where you’re a subject matter expert, because you’re probably not going to get hired directly in-house because of your litigation experience per se. Get experience that’ll make the transition easier.”

“… recovering litigators. These are folks who’ve seen exactly what the results are of decisions and can think long-term.” 

For example, Konstant tells us that “getting experience in the regulatory space is really beneficial” like the path Buell took. And, the Whistler team has observed that an “increasingly valued” skill litigators bring to the table is risk assessment. “Companies want people who aren’t purely commercial or transactional," Konstant says. Susannah Wright herself frequently hires who she jokingly describes as “recovering litigators. These are folks who’ve seen exactly what the results are of decisions and can think long-term.” 

There are also other discrete areas of overlap accessible to litigation attorneys at firms that Konstant identifies to help boost your value to in-house roles: “Get that IP, trademark, or privacy experience even if you don’t end up being an expert in any one area. With the right opportunity, you can leverage some spikes in relevant experience and eventually become a generalist. Andrew Bauer assures readers that “those opportunities are out there, and they’re worth waiting for.”

At Forter, Scott Buell started with his regulatory experience, and is now responsible for “our small legal department and all the legal issues that come in.” His team works on a lot of privacy and commercial contracts, so there’s “a big focus on security” and “heavy negotiation.” There are also corporate matters to tackle, such as governance and equity, as well as HR and immigration issues and a bit of IP.

At One Zero Capital, Bauer handles some litigation, but also “things that were previously foreign to me, like forming a real estate investment trust, negotiating agreements with our partners, tackling HR and employment issues, and getting patents for our extremely valuable technology.” The reality is, that regardless of whether you started with a transactional or litigation background, once you go in-house and set your sights on a GC role, you’ll need to become a generalist.


The lit of my life

Susannah Wright on the other hand, never set out on a path to in-house; she simply loved litigation – “I was a prosecutor and wanted to be in court as much as possible. I just loved building up a case and persuading a jury. I thought I’d do that for the rest of my life.” Wright ended up having a zig-zagging career that led to her current position as chief legal officer at Credit Karma, “which was never something I anticipated!” A cross-country move in 2008 led her to Gibson Dunn, where she built up a white-collar, criminal defense and internal investigations practice in the Bay Area.

"I feel like that’s my job 100% of the time here – persuading people how to take the best course of action, to be a real partner to business, and be part of that vision.”

She was contacted by a recruiter to create a compliance department at a solar energy company backed by Elon Musk. “I never thought I’d want to go in-house,” she recalls. “I loved the adrenaline of trial practice and dealing with the government – I went along for the interview hoping to get a client out of it!” But the sales pitch “convinced me to take the leap – an opportunity like that doesn’t come along very often.” She went on to create Tesla’s compliance department, and was later approached about a position at Credit Karma. “I always say, ‘Never refuse to have a cup of coffee with a CEO. You never know what may come of it.’” In this case, Wright was offered the position of general counsel, and “sprung at the chance.”

So, what was it about these roles that won her over? “The reason I loved being in court was being in that position of persuading people,” says Wright. “I feel like that’s my job 100% of the time here – persuading people how to take the best course of action, to be a real partner to business, and be part of that vision.” Wright argues that this could actually be the perfect role for litigation fiends: “You’re solving problems every single day, thinking about the bigger picture. It’s like a chess match. If that’s what you like to do, this is the perfect role for you.”


Futureproofing in the era of Covid-19

The global pandemic has thrown the legal industry into murky waters, as Scott Buell highlights: “Covid and general economic uncertainty, and to some extent political, social uncertainty, means that companies are being cautious.” This makes big career moves – like moving in-house as a litigator – particularly scary right now.

“There aren’t many mistakes you can make that are unrecoverable.”

Susannah Wright is someone who undertook a huge unpredictable career change during the 2008 financial crash. For those considering a move right now, “the most important thing is being open to new opportunities,” says Wright, adding that “lawyers crave stability a lot more than other professions.” They’re also perfectionists, but she urges lawyers to “be a bit more risk tolerant with their careers! There aren’t many mistakes you can make that are unrecoverable.” In these times of uncertainty, she advises lawyers “stick to the things that matter to you and use those as your guiding lights."


Insider Tip n' Tricks

NETWORK: “When you have a practice like litigation that isn’t always clearly translatable, networking becomes even more key.” –John Wolf Konstant

“Get yourself a mentor. You can have more than one – have many voices that can help you gain that competitive edge.” –Sarah Wyman

“Working with large companies and institutions only gives you experience on giant things. Going to a boutique opens more doors, as they trust you’re a specialist in what their company needs.” – Sean Burke

“Because it’s such a razor-thin margin, the quality of one’s credentials matters even more. Every now and then a large company goes on an in-house hiring spree, like Amazon did five years ago. In those instances, it’s Columbia and Yale, Cleary and Cravath.” – Amdie Mengistu

“Figure out how to talk about your background in a way that appeals to in-house commercial hiring and managers. Find work that’s relevant to the space, start thinking about which of your experiences make you a strong candidate.” – Scott Buell

“To feel satisfied and enriched by your career, find something where you believe in what you’re doing and where you’re making a real impact on the mission at hand.” – Andrew Bauer