By Caren Ulrich Stacy, Director of Professional Development, Arnold & Porter LLP

If you ask managing partners what keeps them up at night, associate attrition almost always tops the list. To remain competitive in a profession that deals in people, firms must find, develop, and keep the brightest attorneys. With the fierce war for talent, this is not an easy or inexpensive endeavor.

According to the recent NALP Foundation data, associate attrition reached 19 percent nationally in 2006 with 46 percent of associates leaving in the first three years and 75 percent leaving in five years. At this high rate of turnover, firms are dealing with a major succession planning and profitability impediment. With over one-half of the departures reported as regretted losses, firms are losing their superstars and future rainmakers. And at a cost of more than $250,000 per departure, firms are spending and losing millions of dollars per year due to attrition.
 
The question remains, “What is it that draws associates into the fold and engages them so much so that they want to make a long-term, if not a lifetime, career commitment at the firm?” Based on my experience with 2,500 attorneys over the past 14 years, associates almost always come to a firm for the same four reasons they ultimately stay: (1) challenging work; (2) meaningful career guidance; (3) training; and (4) advancement potential. Firms that effectively market and deliver these four “associate development” attributes often have associates lining up at their doors. Since these retention factors are intrinsically linked, they have to be managed as part of an overall approach to be effective.

To start, associates need a continuous stream of challenging work to observe, train on, and practice to truly develop their skills. In order for this to happen, the work flow process must be proactively managed in each practice group and office. Simultaneously, associates need guidance from more experienced attorneys who are willing to actively train and coach them on their work and overall career path. To ensure that the training sticks, it should be set up in an experiential setting so that the associates can learn a skill, practice it, and use it in a real-world scenario in a relatively short timeframe. Training is often wasted if an associate learns a skill such as taking depositions but is not afforded the ongoing opportunity to practice or use the skill. If commercial work is not readily available for this purpose, firms should look for other skill-building and utilization options such as pro bono and NITA programs. Done effectively, the combination of high-quality work, career guidance, and training will increase the internal and external marketability and advancement potential of associates.
 
Developing and retaining the best talent is essential to effectively service clients, build the practice, and create the next generation of firm leaders to boost profitability year after year. Firms who pay special attention to the strategic delivery and management of these four associate development and retention factors will have the ability to exceed their overall business goals and strengthen their competitive advantage.

Commonplace in the media lately are articles and discussions about radical marketing techniques used by law firms. Tactics such as MySpace accounts, blogging, and edgy advertisements both in print and online are becoming more relevant as Generation Xers (as they are often called) have moved into decision making roles.

Whether the members of Generation X are your employees, your clients, or your competitors, what are your thoughts? Participate in this month’s poll and share your thoughts with the NITA community.

Take the Poll Now!

In an effort to highlight and introduce NITA’s staff, faculty, program directors, and authors to the NITA community, we will periodically publish a personal interview. In this issue of NITA Notes we are talking to Barry Gross, faculty member since 1995.

NITA: A little bit about you. What is your legal background?

BG: I am a partner in the white collar crime and corporate investigations practice group of Drinker Biddle in the Philadelphia office. In addition to white collar criminal investigations and internal corporate investigations, my practice focuses on the defense of white collar criminal prosecutions, violations of the foreign corrupt practices act, and complex civil litigation including qui tam matters, with an emphasis on matters involving healthcare issues. I joined Drinker Biddle in February 2007 after twenty-four years as an Assistant United States Attorney in the Eastern District of Pennsylvania. Prior to joining the U.S. Attorney’s Office I served for six years as an Assistant District Attorney in Delaware County, Pennsylvania, and for one year as an Assistant Public Defender.

In addition, I have taught in the Intensive Trial Advocacy Program at Temple Law School for ten years.

NITA: How did you come to know NITA? What is your knowledge and experience of the organization’s publications and programs?

BG: I was invited to serve as an instructor for a NITA course approximately twelve years ago. Since then I have taught in other NITA programs, most recently at the Western Regional Trial Skills Program at the University of San Francisco in June.

NITA: How has NITA (or NITA training/experience) played out in your practice?

BG: Through teaching for NITA, I have become a better trial lawyer. As a result of teaching I have also changed my approach to trials, specifically my opening statements. I wish that I had the benefit of taking NITA programs myself when I was a younger lawyer.

NITA: Describe your greatest success.

BG: As a prosecutor with the U.S. Attorney’s Office, I had the opportunity to be involved in many high profile cases that benefited the public. One that stands out for me is when, between 1999 and 2002, I was lead counsel for the government in the successful RICO prosecution that resulted in the virtual decimation of the Philadelphia La Cosa Nostra.

NITA: Describe your teaching style in two sentences.

BG: I am interactive and nurturing. My goal is to help participants develop and enhance their trial skills, so they can be their best, not my or anyone else’s image of what they should be.

NITA: Why do you think an attorney should attend a NITA program?

BG: In my opinion, based on my personal knowledge of the instructors and program content and comments to me by many who have participated in the programs, NITA provides the best hands-on trial training in a nurturing environment.

NITA: What do you think NITA's impact has been and continues to be?

BG: NITA has substantially contributed to raising the bar—the skill and ethical level of trial attorneys—and will continue to do so.

NITA: What else do you want the NITA community to know?

BG: I have found great camaraderie among NITA instructors throughout the country. And, like many instructors I’ve met, I welcome lawyers who participate in a program I teach to contact me long after the program is completed. I look forward to participating in future NITA programs.

James J. Brosnahan

James J. Brosnahan, NITA Trustee Emeritus and Senior Partner of the San Francisco office of Morrison & Foerster, was awarded the Lewis F. Powell Jr. Award for Professionalism and Ethics by the American Inns of Court. Every year since 1990, the award is given to someone in the legal field who has shown exemplary service in legal excellence, professionalism, and ethics.

Robert Hildum in Killarney, Ireland

NITA faculty member Robert Hildum was asked to serve as the Deputy Attorney General for Public Safety beginning September 17. Previously Hildum served as the Assistant Attorney General in the Civil Division where he defended class actions filed against the District of Columbia and its agencies. In his new position, he oversees the criminal division (traffic and quality of life crimes), juvenile prosecutions, and some civil enforcement. Hildum will be helping to set policy, write legislation, and work with various community groups. He also oversees the General Counsels for the police, fire, department of corrections, and the chief medical examiner.

“NITA and the NITA family have been a huge part of my life the last ten years and I truly believe that NITA deserves some of the credit for my promotion. I have had the honor of working with some of the finest faculty in the world and obviously something rubbed off,” Hildum said. 

If you have some trial experience and are looking to take your game to the next level, NITA has the program for you: Advanced Advocacy Skills – Washington, DC – October 4–8. You’ll work with expert witnesses, use electronic media for depositions, and learn how to enhance your performance with state-of-the-art courtroom technology. Then, through video tape review, you’ll receive one-on-one feedback from one of our distinguished faculty.

For more information on this or other NITA programs, see The Docket.

Read “NITA Develops Training Programs for Law Firms” in the February 1979 Issue of NITA’s newsletter, The Docket.

Sixteen law school mock trial teams will be entering NITA City this October for the 17th Annual Tournament of Champions. Typically, the winner of the tournament two years prior hosts the event; however, this year instead of Temple University Beasley School of Law, NITA is eager to hold the event at its Education Center in Louisville, Colorado. LexisNexis® is also a sponsor.

The following teams will be competing:

• University of Akron School of Law
• University of Arkansas School of Law
• Baylor Law School
• Chicago-Kent College of Law
• University of Denver Sturm College of Law
• University of Houston Law Center
• Loyola Law School Los Angeles
• University of Maryland School of Law
• Pepperdine University School of Law
• South Texas College of Law
• St. John’s University School of Law
• Stetson University College of Law
• Suffolk University Law School
• Syracuse University College of Law
• Temple University Beasley School of Law
• Washington University in St. Louis School of Law

If you are interested in being a judge of the competition, please contact Kimberly Chatman at 303.953.6831 or kchatman@nita.org.

NITA now provides a linkable banner to all past program participants. If you would like to post the NITA banner to your online bio and let your clients and peers know about your world-class legal training, do so today by visiting www.nita.org/banners.

Calling all National Alumni! Now is the time to revisit NITA City by joining the newly established National Program Alumni Group composed of all participants and faculty who have attended the National Program since 1973. This group will be invited to assist in the development of future National Programs and alumni events to be held here in Colorado. In order to ensure that everyone who participated in the National Program is on our mailing list, please e-mail NITA President and CEO, Lonny Rose, at lrose@nita.org with your current e-mail address, your year(s) of attendance at the National Program, and any remembrances you might want to include in the initial National Program Alumni Group newsletter.

Each month NITA Notes features a NITA faculty member who provides readers with tips to make their law practice a best practice. This month’s featured scholar is James L. McCrystal Jr.
of Brzytwa Quick & McCrystal, LLC in Cleveland, Ohio.

Initial Questions

How many depositions have you seen that start with questions like, “Will you let me know if you are confused?” “Do you understand that you have to answer the questions out loud?” All too often, the witness responds with a “yes” or at times the inarticulate nod of the head or an “uh ha” response.
 
Try this approach; ask questions such as, “What will you do if you don’t understand a question?” and, “What will you do if you know we have a document that will help you better answer a question?” These questions get the witness to make a commitment to you.

They aren’t getting their answers from me. I’m not setting the rules, they are. They can’t simply agree with my statements. I think I get a stronger commitment from the witness when he or she is writing the rules. In my experience, the well schooled and crafty witnesses and the poorly educated and barely articulate witnesses both set terms I can readily accept.

This process works because the basic rules for deposition conduct are common sense. This is why asking the witness to set the terms should be relatively risk free.

Sure there is a risk in this style. You are letting the witness take charge, but where can they go that would hurt you? After all, if they propose a rule for the deposition you don’t want to accept, you can still impose your own rule.

When the witness sets out the terms, impeachment is easier because the jury will see that the witness has broken his or her own rule. Your impeachment begins, “Do you remember being asked ‘what will you do if you don’t understand my question?’ and didn’t you tell me ‘I’ll tell you I didn’t understand it.’ And then didn’t you say, and I quote from page seven of the transcript, ‘If I am confused, I’ll let you know.’” Jurors are more likely to find it fair to impeach a witness who set the terms by which they will be judged. If I dictate the terms, jurors are more likely to give the witness the benefit of the doubt.
   
Here are some simple questions to consider using when starting a deposition:

1. What do you think this deposition is about?
2. Why do you think there is a court reporter here to record everything you and I and your lawyer say?
3. What will you do if you don't hear a question?
4. What will you do if you don’t understand a question or are confused by it?
5. Will you do your best to answer loud enough for everyone in the room to hear?
6. Is there anything on your mind that might make it difficult to concentrate on what you are being asked?
7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions?
8. Is there anything else you are aware of that would keep you from giving full, complete, and accurate answers to the questions here today?
9. What will you do if I cut you off or interrupt your answer?
10. What will you do if you need to look at a document to answer a question?
11. What will you do if you realize an answer that you’ve given was wrong or inaccurate? Will you let us know right away?
12. Here is a copy of the duces tecum for your deposition. It’s the request we made for documents and records related to your testimony. We will have it marked as an exhibit. Have you seen this before? What did you do to respond to it?
13. Can you think of any reason why your testimony at trial would be different than today?
14. What have you done to help yourself remember what you are going to be testifying about today?
15. Do you understand everything I've gone over so far?
16. Do you have any questions before we get started?
17. Finally, how long would you like to go before we take our first break? Would an hour and a half be okay. with you?
18. If you need to take a break sooner than that will you let me know?
19. If you need something to drink or if you need to stretch while you are testifying, will you let us know?
20. When the deposition is over, it may be typed up by the reporter into a transcript. If so, and you review it, will you let us know of any changes or corrections you would like to make to your testimony, along with your reasons for them?
21. Do you have any questions about what I have just covered?

Not all these questions are necessary and there may be others that need to be added to the list.

The goal at the outset of the deposition should be to set clear ground rules with the witness. When the terms are clear and come from the witness, the more likely they will follow them. When that happens, you should expect to have a more effective deposition. Try this technique in your next deposition; I think you will find it works.