Now, before we delve into how exactly we can ascertain a head hunter’s reputation, you may be wondering why this post is even titled “Finding your dream head hunter.”  You may be wondering this as you take calls on a daily or weekly basis from head hunters all scrambling for your business.  I don’t need to find a head hunter, you say.  They need to find me!

It’s true that you can sit back and take a passive approach to this.  Entertain calls from head hunters who are all strangers and pick one randomly to assist you.  But, let me ask you this: In what other areas of your life, where big decisions are made, do you simply act so blindly?  Do you get married without having ever gone out on a date?  Do you buy a home without researching all the possibilities?  Do you buy a car before test driving it?

Deciding on your next career move is one of the most important decisions of your life, and deciding on who should be there to help you figure that out is equally important.  So, as the title of this post suggests, you should proactively find your dream head hunter instead of letting a random stranger find you.

This is not to say that you should ignore unsolicited calls from these strangers.  In fact, I would urge you to do the opposite.  Talk to them, find out what they know and can offer, figure out how long they’ve been in the business, and simply get to know them.  My point is that you should take hold of the reins in this situation.  Don’t sit back and let them dictate what you should or shouldn’t do.  Take control!

Head hunters that are the best at what they do start calling you early on, when you are merely a first year associate.  They know that, in all likelihood, you aren’t going anywhere in the near future.  What they are doing, however, is starting to establish a relationship, to set themselves apart from the masses.  Most head hunters will call you once, and when you say you aren’t interested, give up and move on down the list.  Not so with the best in the business.  They know that, eventually, you will in all likelihood leave your firm.  How do they know that?  They know this because the NALP studies show that over 70% of associates leave their respective Biglaw firms within five years.  And unless you are one of the very very few who make partner as a homegrown associate, you will leave.  And when you leave, you will need the services of a head hunter.

So a savvy head hunter calls you, starting in your first year, once every few months.  You won’t remember his or her name after the first call or the second call.  But eventually, you’ll remember having talked to a certain individual.  That person will stand out among all the other calls that you’ve received.  All of a sudden, that individual will no longer be a stranger.  At that moment, a relationship has been created.

Obviously, you shouldn’t select a head hunter purely based on how many times he or she calls.  But it’s a good first step.  Why?  Because someone who establishes that relationship with you understands the industry and how it works.  That person is interested in knowing not only your interest in changing firms, but in your impressions of the firm that you are currently with.  And that’s important because you are not the only associate that this head hunter is talking to.  If he or she obtains valuable information about your experience at your firm, that’s intel that can help him or her decide whether other associates at other firms would want to lateral over to your firm.  Conversely, by collecting information about other firms via talking to other associates at those firms, your head hunter is showing the willingness to put in the hours to really dig deep and figure out what’s happening behind the scenes at these firms.  Ultimately, that will help the head hunter help you get placed at a firm that is right for you.  You may have never thought of head hunter calls in this way, but it’s really a two-way street.  They want to know whether you are a future client, but they also want to know what your current experience is like so that it helps them place their current clients.

A great head hunter will also be willing to provide you with a list of references.  This list consists of other associates that he or she has successfully placed in the past.  Ideally, the list contains some names of people who you know.  You may be surprised, but usually the great head hunters have already placed a number of your former colleagues.  Here’s a good opportunity to get back in touch with people you once knew at your firm but who had since left.  Call them up and ask them about their experiences with that head hunter.  There’s no substitute to a personal reference.  And this is where the “reputation” part comes in.  If someone provides exemplary professional services, he or she will have numerous clients more than willing to serve as a reference and back up that head hunter’s reputation.  Stay away from those head hunters who say they cannot provide references due to “confidentiality” reasons.  That’s just a shield and double-talk for saying “I have no clients who are willing to vouch for my reputation.”

Finally, you should always meet personally with a head hunter before you retain his or her services.  There’s just something about an in-person meeting that you can’t get over the phone.  It shows that the head hunter is serious about representing you, and it allows you to evaluate subtle things — mannerisms, attitude, etc. — that may not be as readily apparent over the phone.  Make sure you do the in-person meeting PRIOR to submitting any information about yourself, including your resume or CV.

At the end of the day, your decision on which head hunter to use is usually a gut check.  You obviously want someone experienced, professional, diligent, trustworthy and knowledgeable about the intimate details of numerous firms in your area of geographical interest.  The process that I’ve outlined above will usually get you there, culling through the riffraff naturally to produce one dream head hunter who stands out from the pack.

Good luck with the search!

Myth #1: Using a head hunter will decrease your chances of getting an offer because firms are leery of paying a quarter to a third of your salary as a “headhunting bounty.”

BUSTED.  Nothing could be farther from the truth.  The fee that law firms pay to headhunters are standard in the industry.  Firms are used to paying those fees, as exorbitant as they may seem, because they want to attract the best lateral talent.  I’m not saying that firms don’t want to save money when they can; they do, and usually offer their own associates a smaller (but still sizable) bonus for recommending friends and colleagues for lateral positions.  But the reality is that retaining a head hunter to represent you actually increases your stock despite the fact that you are now more “expensive” to hire.  Think of it like really expensive wines — sometimes, raising the price tag makes people think the product itself is superior.

Myth #2: I’ve heard horror stories of associates using head hunters who divulge their confidential information, causing word to travel back to the their current firms of their plans to bail.

BUSTED.  The vast majority of head hunters know to keep your plans and your resume strictly confidential.  Their reputations and careers are dependent on their ability to be trusted, so any halfway decent head hunter will be very careful to protect any information you provide to them.  That’s not to say that there aren’t unsavory characters in any job, and I have heard of head hunters who circulate resumes without the express permission of their clients.  Again, your information should be safe with any decent head hunter, and any confidential leak traveling back to the ears of a partner at your firm is usually caused by a loose-lipped lawyer interviewing you at the other firm, not by your head hunter.

Myth #3: I’m better off making informed decisions on my own about other firms because head hunters have a vested interest in trying to “sell” me a job position at any firm in order to get paid.

BUSTED.  Any good head hunter is going to have a vast repository of experience and knowledge about the firms in your target geographical area that you won’t have access to.  Head hunters spend a lot of time talking to, and developing personal relationships with, recruiting personnel at Biglaw.  They go to recruiting events, schmooze with partners and associates at these firms, and talk to numerous associates on the phone every single day.  They have a “feel” for a firm’s culture and environment based on these daily phone calls.  You, on the other hand, are in your shell barely coming up for air on whatever fire drill a partner has you tasked on.  Do you really think that you have a chance of knowing which firms are actively seeking employment, which ones have positions open in your area of expertise or interest, whether the firm is on the “up and up” or starting to implode, or whether the firm is a good “fit” for you?

From these myth busters, you may conclude that I think that using a head hunter is definitely the way to go all the time.  It’s not that simple.  If you are seeking to find a job in the government or at a very small firm, you may find that a head hunter is useless.  Solo practitioners and very small firms won’t have the ability to pay the head hunter’s commission, and they may very well be outside the scope of what a head hunter is able to do.  If, on the other hand, you are seeking to lateral from one Biglaw firm to another, my recommendation is to find a good head hunter.  An unethical head hunter may very well send out personal information without your permission or try to land you a job and convince you that it’s your dream opportunity when in fact it’s the opposite.  While rare, these head hunters do exist, so it’s important to go with someone you trust.

Stay tuned for the next post, where we discuss how to find a good, capable head hunter.

The first time you receive this call, it may be as early as several months into the job.  Certainly, if you are working at Biglaw in a major market like New York or Chicago or San Francisco, you will have received this call within your first year at work.  Most likely, you are wondering to yourself, “Is this person crazy?  Why would I be leaving my job having just arrived?”  Then the paranoia creeps in, and an insidious thought crosses your mind.  Is this a set-up?  Did my law firm hire someone to probe my loyalty to the firm?

Inevitably, the first few times you receive the call, you say politely, “Thanks, but I’m very happy at my firm.  I’m not interested in making a move.”  You do this with the assurance that, even if the person at the other end of the line is a plant, you’ve said all the right things.

But as the years go by and the glow from your summer associate experience has long worn off, you start to wonder.  Is the grass greener elsewhere? Are there other opportunities out there? You also realize that, after the tenth call, headhunters are a dime a dozen and they are calling everyone.  All your fellow associates have been receiving the same call, often from the same people.  As you continue to receive calls, at some point you say, “I’m not actively seeking another position, I’m happy where I am, but I’d be happy to hear what you have to say.”  It’s a subtle change in response, but it opens the door just a crack.  And usually, the headhunter will be happy to push the door open and tell you about all the wonderful opportunities that exist.  You do this because you are curious, because some of your fellow associates may have informed you that it’s never a bad thing to learn of other opportunities, and maybe because you start to realize that Biglaw doesn’t expect you to stay forever.

You begin the process of talking to headhunters on a semi-regular basis, hearing about these other Biglaw options but politely declining their request for you to send over a CV and float it around.  After all, you still feel loyal to your first firm and have developed relationships there already.  But there reaches a point in the careers of the vast majority of most Biglaw associates where a partner has yelled at them one too many times, when they’ve been blamed too often for mistakes that weren’t their fault, when they are simply fed up and exhausted from being treated like . . . well, you get the idea.  At such a critical moment of crisis, the phone rings and it’s a headhunter.  The person who had been nagging you for the past few years with dogged determination, the person whom you ignored and whose voice mails you didn’t respond to and who you treated like an unwanted spammer is, guess what? now your perceived savior.

With sudden alacrity, you now listen with renewed interest as to how the whole headhunting process works and have a big decision to make: to use a headhunter or not?

We’ll continue this discussion in following posts as we talk about the advantages and disadvantages of using a headhunter, how to select a good headhunter, and the headhunter’s view of the world.

Let’s say that you’ve already mentally checked out of your firm and decided that it’s time to move on to (potentially) greener pastures.  You’ve arranged, either by yourself or through a headhunter, a series of interviews with other firms.  The challenge is this: how are you supposed to justify your absence at the office when partners are always hovering around you like vultures seeking carrion?

Most associates make the mistake of taking the path of least resistance.  They start leaving the office to go to various doctor, dental, and eye “appointments.”  Here’s the problem: how many of these appointments can you schedule in a month without it looking suspicious?  Soon enough, associates who are attempting to interview at numerous firms realize that they have to get through at least two, if not three, rounds of interviews with each firm, and all that time adds up quickly.  Meanwhile, you realize that partners are not stupid.  They’ve seen it all, and the “I need to go to my fifth doctor’s appointment in two weeks” is going to raise a red flag.  At that point, you might as well announce to the world that you are eagerly awaiting the opportunity to bail.  So much for stealth.

So what do you do after you’ve burned through two or three “appointments” and the suspicion is starting to rise?  You can’t use the doctor excuse anymore so you start using your vacation time.  This is fine, of course, but do you really want to be wasting vacation time when you are not, in fact, on vacation?  I mean, who considers interviewing at other law firms to be a vacation?  Not only that, but if you’ve read my previous posts on vacation, you would know that this vacation time is valuable and shouldn’t be so easily squandered.  Especially when departure is imminent and you are looking to cash in on your golden parachute.  If you have no idea what I’m talking about, please read this post:  http://associatespeak.com/2009/11/24/investing-in-your-vacation-time/

Let me suggest some alternatives to the “burn doctor appointments and then destroy your golden parachute” approach to stealth interviews.  First, if you’ve been following AssociateSpeak for the past few months, you would already know that I’ve advocated for working at home or out of the office on a regular basis (http://associatespeak.com/2010/03/20/the-3-day-work-week/).  Well, there’s another advantage to doing this that I haven’t yet discussed.  Your frequent, and regular, absences from the office will be something that the partners get accustomed to, and when you need to shield your stealth interviews, it becomes easy.  If Jane is almost never in the office every Wednesday for the past two years, partners aren’t going to bat an eyelid if Jane is not around on Wednesday because she’s interviewing at another firm.

You may argue that, unlike a situation where Jane is actually working at home, there is still the problem of her not being available to answer emails or take phone calls during the interviews.  Is Jane’s cover blown as a result?  No, of course not.  The beauty of the BlackBerry is that Jane can still check for urgent emails coming in on a 30 minute basis.  It is rare for something to be such an emergency that it can’t wait for a response in 30 minutes.  If Jane checks her BlackBerry in between her interview slots, she should be just fine.  And if she really needs to return a phone call, she should do so–even at the firm that she’s interviewing at.  This actually promotes the image that Jane wants to project to her potential future firm–that she is indispensable and busy.  The fact that she has to return a phone call to a client or partner may do far more than anything she actually says during her interview in landing her a new job.  (Of course, Jane should be careful not to disclose client confidential or privileged information during the call, and should in likelihood take the actual phone call outside of earshot of her interviewer.)

Another suggestion is to break down the stealth interviews into several shorter segments.  Explain that, due to your incredibly busy schedule, you simply can’t be away for a whole morning or afternoon.  In addition to promoting your unavailability, you may find that the firm interviewing you will be able to schedule breakfast interviews with one or two partners.  Breakfast interviews are great because they can be done early in the morning, at 7 or 7:30 a.m. when you are not expected to be at work anyway.  You get a free meal and the only downside is having to wake up so early.  You are in and out early, you don’t burn a doctor’s “appointment” or vacation time, and it may even allow you to shortcut the whole process.  Some firms, when faced with the inability to schedule full rounds of interviews with you, will sometimes give up and allow you to pass through the first round on the basis of a strong breakfast interview with one influential partner.

If you are going to be out of the office on legitimate firm business–interviewing witnesses, taking depositions, attending a court hearing–you may be able to schedule a stealth interview during that time.  Bundling your stealth interview with legitimate work allows you to say, with all honesty, that you will be gone for work on Partner X’s case.  No one is going to question why you were gone for an additional five hours on the front or back-end of your legitimate reason to be off site.

Then, when all of these options have been exhausted, this is when you use a precious doctor’s “appointment” excuse.  Reserve those for critical final round interviews at prospective firms.

Bottom line: Make it a habit now of working off site on a regular and frequent basis so partners get used to the idea of you being gone.  Schedule stealth interviews during your regular “off site days” or bundle them with legitimate work that takes you out of the office.  Try to break down the initial interview into shorter segments, and convince prospective firms to shortcut the process with breakfast interviews.  Only use doctor’s “appointments” as a last resort.  Never burn your vacation time for stealth interviews.  Good luck!

Most associates don’t give notice until after they have another job lined up, and there are good reasons for this.  First, you wish to make a smooth transition.  Second, if you give notice first, then you may be out of a job while still seeking employment.  Some associates feel that this brings up the specter of negative possibilities, perhaps a nagging thought by the prospective employer that the associate was, in fact, laid off or fired via a stealth layoff.  Third, some people simply like the idea of a constant paycheck.  If you want to take some time off between jobs (highly recommended!) it’s always possible to negotiate this with your new employer after you have secured the position.

There’s another benefit to keeping the old job until you find the new one, but it’s not one that most people recognize.  Searching for a job is just as much about projecting a certain image as it is about actual credentials.  You want your potential new employers to know that you are a very busy, very in-demand associate at your current firm who is going to have difficulty scheduling interviews because you will be flying to five cities in the next two weeks for witness interviews or depositions.  The less accessible you are, the more in demand you will become.  There’s nothing that smells more of desperation than the associate who is already out of a job and can meet at any time with a potential employer.

The downside, of course, is that if you are in fact very busy and slammed at your current job, you have little to no time to devote to researching other employment prospects, much less interviewing with those firms or employers.  There will certainly be times when you are simply that busy, and those are not good times to be looking for new jobs.  Wait until things have calmed down a bit for you, and take that window of opportunity to think about your options.  You will be pleasantly surprised that, when you project a busy schedule, firms will work harder to schedule something convenient for you and will also get you through the multi-round interviews on an expedited basis.

The other perceived downside is the loyalty issue.  Some associates feel bad looking for a new job while no one else at the firm knows about it.  They feel that they’ve already mentally “checked out” and that’s not fair to the firm.  They start to feel like a traitor or spy within their own firm.  Advice for those people?  Don’t feel bad.  You’re not the first associate to leave.  Unfortunately, the way Biglaw operates these days, there is no loyalty by the partnership toward associates, so you shouldn’t feel bad either.  Partners have seen wave upon wave of associates come and go, so your departure will just be one more.  As much as you’d like to think that you are indispensable to the firm, you really aren’t.  No one is.  There will always be new, eager warm bodies ready to take your place–and your office will be filled, sometimes within days after you hand in your key card.

Bottom line: don’t tell the firm that you are planning to leave until you have secured new employment.

If you are a new associate and don’t realize that today is the day to express gratitude to your secretary, don’t panic.  Walk, do not run, to the nearest flower shop and pick up a bouquet of flowers and a card.  Or, if you know your secretary doesn’t like flowers or is allergic to pollen, how about a gift certificate?  Not sure at all what your secretary’s likes and dislikes are?  Well, gift certificates to amazon or the nearest movie theater can never hurt.  Or take him or her out to lunch.

How much should you spend?  Well, this depends a lot on your relationship with your secretary, how grateful you feel, and your personal affinity to your wallet.  Some people are by their nature more generous than others.  Flowers can cost $20; they can also cost $150 depending on how fancy you want to get.  There’s a difference between taking someone to lunch at Aqua versus the local sandwich shop.  But don’t think for a minute that your secretary won’t know the difference between the two.  If you get flowers, understand that they will be publicly displayed on his or her desk for the world to see–and a reflection of how generous or cheap you are.  If you think that it won’t matter where you go for lunch, think again.

Of course, your relationship with your secretary is also a factor.  If s/he is the dream secretary–always completing tasks before you even have to ask, volunteering to stay late when there’s a court e-filing, taking the initiative to get work done, and saving your butt by catching mistakes that would have landed you in hot water with the partner in charge of the case–you better be thinking Aqua.  On the other hand, if s/he is a nightmare–reliably unreliable, consistently late or tardy, making so many errors that it takes more time for you to fix than to have done the work yourself from scratch–you should be thinking of the local sandwich shop. . . to have lunch with the head of HR.  Even under those circumstances, however, until you know for sure that HR can get you a replacement secretary, you still want to play nice.  I’m sure every secretary, no matter how bad he or she is, must have done something right at some point.  Focus on the positives and go from there.

And remember this: secretaries all talk.  They know who is cheap and who is generous, and you better believe that next time you need to ask your secretary for a special favor or bail you out, what you do today can either provide you with smooth sailing or hurl you into secretary hell.

One last piece of advice: say “thank you.”  Regardless of the gift and its price tag, secretaries–like the rest of us–are human beings.  You’d be surprised at how far you get simply by acknowledging their hard work, effort, and time in a sincere, kind manner.  It also doesn’t cost you a dime.

This week, we delve into the exit strategy: the plan by which associates who have decided to leave their respective firms can find a new job without prematurely alerting the partnership of what is going on.  There’s a lot more to this process than you may first think.  Consider the following:

1) How do you interview at other firms or for other jobs without announcing your absence?

2) Do you use a headhunter or not?  What are the advantages and disadvantages?

3) If you do retain a headhunter, can he or she be trusted not to leak the information that you are seeking a new job?

4) Once you’ve been given an offer conditional on your references “checking out”, but one or more of those references has to be a partner at your current firm, how do you handle that situation?

5) What if the offer is dependent on clearing conflicts, which require client approval?

6) How do you avoid getting staffed on new cases during the process of implementing your exit strategy?

7) At what point in time do you give notice?  What is the most effective way to do so?

8) Are there terms that can be negotiated with your current firm after giving notice?  (The answer is yes!)

9) How do you explain your departure without burning bridges?

10) What considerations should you take into account with respect to current clients when you leave the firm?

These questions, as well as others, will be the topic of discussion for the next couple weeks.

See?  I told you it wasn’t that simple!

So how does it work?

Often, but not always, the firm will offer the possibility for the associate to quit voluntarily.  If the firm doesn’t offer, you can always suggest it as well.  The exact terms of the departure can be negotiated, and depends on specific circumstances.  All of the following are possibilities:

1) Departure within a normal, two-week notice so there’s no suspicion of a layoff.

2) Removal from payroll immediately but opportunity to continue to come into the office in order to find a new job.

3) No access to a physical office, but firm provides continued access to e-mail, office phone (through forwarding system) and keeps attorney bio on firm website until a new job can be found

The weirdest story is that of an associate who was laid off but kept coming into the office to work and eventually made partner.  Go figure.

Why would a firm offer these incentives?

As much as Biglaw firms appear to fire or conduct layoffs of associates and staff with complete coolness and detachment, it’s never an easy task.  The vast majority of partners would likely rather be playing golf than sitting in their offices firing associates.  No one wants to be the bearer of bad news, justified or not.

Firms also feel like their reputations take a hit when a layoff occurs.  Especially during tough economic times, a layoff signals to the entire legal community that the firm is economically weak and potentially unstable.  In a world where Biglaw firms compete against each other for vital business, any indication of weakness is, at best, damaging, and at worst, fatal, to a firm’s reputation.

If an associate agrees to this arrangement, it’s considered a voluntary leave.  This makes it much more difficult for the associate to sue the firm later for wrongful termination.  For the firm, it’s another way to “litigation-proof” the layoff.  The downside for the associate is that, unlike a layoff which allows you to collect unemployment checks, a voluntary leave precludes the associate from taking advantage of such benefits.

Finally, when associates are publicly fired or laid off, that action sends shock waves through the firm and depresses associate morale.  Fear spreads through the firm like an out-of-control wildfire.  Am I next?  When is the next layoff happening?  When does the bloodletting stop?  Try working under those conditions when you find yourself surrounded by empty offices and a mortgage to pay.

For all the above reasons, firms would rather have the associate leave “voluntarily.”  It’s far more pleasant for the firm to maintain its pristine track record of never having fired or laid off anyone.

Why would an associate agree to this stealth arrangement?

First, it prevents a certain amount of embarrassment or humiliation from the layoff.  Second, it is much easier to land a new job if you can represent to your prospective new employer that you are gainfully employed and want to leave for reasons other than a forced termination.  Third, it provides a boost to your confidence.  If the pretense is kept up by both sides and no one else is wiser for it, you can start to believe that, in fact, you did want to leave voluntarily.

Sometimes, self-justification is the most important thing.

Next week: tactics for searching for and landing a new job while being gainfully employed at your current firm.

Depending on the situation, a firm will sometimes attempt to “wean” the associate from work prior to an actual notification.  Other times, due to the state of the economy or other reasons, the targeted associate may have little work.  In fact, if that associate really does perform poorly and deserves to be laid off, it’s very likely that he or she has been struggling to find work for an extended period of time.  Either way, if the associate has little to no work, this situation allows the partnership a favorable opportunity to inform the associate of the layoff and quickly have the associate depart within days.

The more interesting scenario is when–for reasons too complex to discuss in this post–an associate is laid off based on largely fabricated reasons.  It’s well-known that during tough economic times, firms attempt to preserve their reputation by performing stealth layoffs that are ostensibly “performance-related” but really are driven by low business revenues.  The irony of this situation is that an associate who is in fact quite productive may be laid off with a group of other associates in anticipation of a worsening economic situation (and partners looking to protect their quarterly profits).  In this situation, the firm is left in the rather awkward position of informing an associate of an impending layoff but still keeping that associate around long enough to properly transition all of his or her cases.  It’s not a situation that the partnership relishes, so it’s a lot easier to inform an associate of a layoff if he or she is not busy.  Instinctively, this also explains why associates always attempt to “protect” their jobs by keeping themselves as busy as possible during tough economic times.  The more indispensible an associate can appear, the more reluctant the firm will be in delivering the axe.

When the axe does arrive, it usually does so in the form of a “meeting” with two partners.  Sometimes, it’s done during the annual associate review; other times, it is done so during a “performance evaluation” that is not part of the associate review.  Other times, it’s simply characterized as a meeting.

There are several reasons why two partners are usually involved instead of one.  First, there is strength in numbers.  No partner wants to be the one to inform an associate that he or she is being laid off.  It’s uncomfortable and an aspect of a partner’s job that is undesirable.  Having another partner present dilutes the responsibility associated with the layoff.  Second, partners want to present a united front.  It makes it symbolically a “firm” decision, when there are times the layoff is prompted or catalyzed by one primary partner.  (There are of course times when a mass layoff is engineered from the very top, but this is not always the case.)  Third, to the extent that a future lawsuit is filed by the associate against the firm, the partnership can have corroborating witnesses at trial to impugn the associate’s testimony of the conversation that takes place.

The conversation itself almost always takes place in a partner’s office.  This is designed–consciously or sub-consciously–to create an unequal playing field.  When the associate is called into the partner’s office, there is a clear sense of a power disparity.  In some cases, the conversation may take place in a more neutral zone such as a conference room.  But it never takes place in the associate’s office.

The substance of the conversation is based on the written record that has been prepared.  It’s reminiscent of the final court scene from A Man For All Seasons, where Thomas More eloquently (and with futility) argues with moral and legal persuasive force why he should not be convicted of high treason against King Henry VIII.  During this conversation, the partnership will set forth the “charges” against the associate, and ostensibly provide the associate an opportunity to respond to the charges.  It’s all a theatrical performance whose outcome has been preordained.

At the end of this week, we wrap up this three-part mini-series by discussing the “stealth” in stealth layoffs.

I set out to interview associates who have left their firms to determine exactly the circumstances under which they left, and what the process entailed.  Due to the highly confidential nature of these interviews, the names of these individuals and their firms have to remain anonymous.

There appears to be common elements to any stealth layoff.  This week, we will delve into the mechanics of the three main parts of the stealth layoff:  (1) establishing the record; (2) informing the associate; and (3) negotiating for voluntary leave. Part 1 of this three-part post discusses the partnership’s approach and strategy in establishing the record.

The layoff begins with the partnership building a “record” against the associate — poor work product, bad attitude, mistakes, missed deadlines, inefficiencies, and/or inability to work with other members of the legal team.  Some of the criticism may be justified; others may not be.  As any lawyer knows, there are always at least two sides to any story.  There’s no exception when it comes to stealth layoffs.  At the end of the day, it doesn’t really matter whether the criticism is justified or not.  Once the partnership decides that an associate is targeted for a layoff, the firm perception of that associate is negative and he or she cannot do anything right.  On the flip side, a rising star can do no wrong.  Mistakes or carelessness can be forgiven or explained.  Blame is shifted to someone else.

Because there are always different sides to a story, the partnership needs to create a record to prove that the associate is in fact incompetent.  Its primary purpose is to serve as insurance against a potential future lawsuit by the associate for wrongful termination.  Usually, the record is established through the use of a file that contains the associate’s allegedly poor work product and the negative comments from as many partners as possible who have worked with the associate.  The key for the firm is to discount any positive performance and to emphasize the negative aspects.  The partnership also prefers to have as many partners get “on board” as possible to show that the associate was unable to work with a majority of partners as opposed to an isolated incident involving personality differences with one partner.

The second part of establishing the “record” involves developing a history of problems.  Thus, partners are encouraged to remember past problems–some even several years old–in order to show that the associate had been given numerous chances to succeed, had been informed of the performance issues, and had not done enough to rectify the purported problems.  The interesting thing about this is that apparently, this record is sometimes created retroactively.  In other words, it’s not a record that is created contemporaneously with the associate’s development at the firm, but only after a decision had been made to layoff that associate.

After the record has been firmly established (at a law firm these records tend to be as legally iron clad as possible), the partnership then informs the associate of the decision.  Part 2 of this mini-series will discuss the mechanics of the conversation between associate and partnership.