Picking a law firm with plan to eventually transition to death penalty defense work Forum

[Anonymous User]

Hello TLS.

I just finished OCI and did pretty well. I have good offers from several firms in my desired city. Now I'm trying to figure out which one to go to.

My plan is to save up money for a few years in biglaw and then transition to death penalty work. I will graduate with about $40K in debt, so my biglaw plan is to work 2-4 years, buy a house, and put as much money as humanly possible into an index fund.

When picking a firm, is there a specific practice group I should be considering? Does it matter if I go corporate side or litigation side? Should I try to get involved in the appellate practice? All of the firms have good pro bono programs so I'm planning to take as much work in the field as possible to build connections. I just don't know exactly how to proceed to achieve my very specific goal.

I appreciate any help.

[rpupkin]

"Death penalty work" is pretty broad. What do you mean?

[dixiecupdrinking]

Assuming you mean post conviction work... well, a few things.

First, you should understand this is one of those hyper competitive specialities full of people who knew from day 1 they wanted to do it. It's not impossible to make the jump from biglaw but you'll have a hell of a time convincing anyone it's what you really want. For instance: why aren't you looking for a fellowship right out of school that will fund you to do death penalty work right away? Or perhaps after an appellate clerkship? Why go to a firm at all? Brace yourself to answer these questions and more from every single person you ever talk to about this career trajectory.

Two, you absolutely need to do litigation.

Three, you absolutely need to go to a firm that has a serious and extremely generous dedication to pro bono, where you can do as much work as humanly possible in the area you hope to move into later.

Good luck.

[Anonymous User]

Hello TLS.

I just finished OCI and did pretty well. I have good offers from several firms in my desired city. Now I'm trying to figure out which one to go to.

My plan is to save up money for a few years in biglaw and then transition to death penalty work. I will graduate with about $40K in debt, so my biglaw plan is to work 2-4 years, buy a house, and put as much money as humanly possible into an index fund.

When picking a firm, is there a specific practice group I should be considering? Does it matter if I go corporate side or litigation side? Should I try to get involved in the appellate practice? All of the firms have good pro bono programs so I'm planning to take as much work in the field as possible to build connections. I just don't know exactly how to proceed to achieve my very specific goal.

I appreciate any help.

Earlier in my career, I moved from biglaw to capital defense, and off the top of my head, I know 5-6 others who did as well. It's not impossible, but it's rare/not well charted and it's far from a guaranteed move. Coming from biglaw, you will be at a major disadvantage relative to those who have remained consistently in the field, for the reasons that dixiecupdrinking listed.

How you minimize those disadvantages = as many of the following as possible (I'm also assuming you want habeas due to your question about appellate work and due to the fact that most positions specialized to capital are habeas or appellate rather than trial, but I suppose you might want direct appeals only):

1. You need to be in litigation while in biglaw.

2. You need to be doing as much death penalty-specific pro bono work as you can. Many firms are reluctant to take these cases because they can be decades-long commitments for the firms, they come with some PR pros and cons (if not innocence work), and they don't necessarily generate tons of the practical experience that firms want to generate for their associates via pro bono (depos, trials, hearings.) PC evidentiary hearings are tough and close to unavailable in some states. So you need to pick a firm that has a demonstrated pro bono commitment in this area. You likely also need to pick one without a pro bono hours max because you will exceed any 50 or 200 hour cap easily if you have an active capital habeas matter.

3. Via networking, make friends who are capital defense attorneys in your city and don't be shy about expressing your interest in and commitment to their work.

4. As part of that networking, attend habeas conferences (e.g., HAT seminars); get to know practitioners nationwide; see if you can actually serve on some panels after you develop subject matter expertise.

5. Clerk in districts/circuits where you will handle habeas matters and come out fluent in AEDPA. This can be a selling point for postconviction offices which keep their cases into federal court (and it's table stakes for CHUs).

Also, do you have significant experience with death cases already, beyond perhaps a flash-in-the-pan law school clinical experience? It's emotionally grueling, modestly-paid work; most attorneys end up with some degree of secondary trauma; in many states cases languish for decades (20-30+ years) without any legal resolution (a frustrating outcome for litigators who want to win cases - in the macabre world of capital habeas, a client death is grimly characterized as a "win" because the state didn't get your client); your client relationships will be insanely intense and challenging; you won't be the life of the cocktail party when you explain what you do. If you want capital habeas, you will spend your life deeply immersed in a small number of decades-old cases, interviewing witnesses with fading memories and trying to find documentary evidence that was often destroyed decades ago. You will spend months or years preparing each petition, only to receive perfunctory denials without hearings in most cases. For a very, very few people, it's the right niche - really the thing they were meant to do - but it's not the right fit for most people, even most people who try it. You've got to have a very high tolerance for a "voice crying in the wilderness" existence, where you persist in bringing claims that court after court will summarily reject. You've got to deal with the two primary things you will spend most of your waking areas thinking about being murder and state executions. It takes a massive toll. The fact that you're a 2L headed into biglaw makes me question whether you've got the background in the area to know that this is really the career path you should spend years working to pursue (but maybe you were a capital defense investigator before law school, or something?)

[Anonymous User]

OP here.

Thanks for the replies. I'll clarify some stuff.

1. Yes, I'm interested in post-conviction work. I don't have a ton of experience in that per se, but at my school I've done a lot of criminal justice work generally and prisoner work specifically. I'm taking a capital punishment clinic this year to get a good feel for it. I feel very strongly about it. I don't know how I could get more information about whether I want to do this as a career before I have to start making decisions.

2. The firms I'm considering all tout their capital defense pro bono work. A couple have won awards for it in the last few years.

3. Most of my firms don't cap pro bono hours. One does. Should I toss that firm for that reason?

4. Besides the money, I'm looking at biglaw because it offers a really great chance to get trained on complicated legal matters by exceptionally well resourced companies. Government and non profit attorneys have advised me to do biglaw before transitioning for that reason. Does that make sense?

Again, thanks so much to everyone. This is an unusual plan, I think partly because capital defense work is so niche. It's hard to find resources about it.

[Anonymous User]

I did capital defense investigation before law school and everything 3:00 anon said is excellent. The only thing I'll add is that if you want to do death penalty work, you have to go live where the death penalty is actively used. Unless you're lucky enough to score a job at the California HCRC or the Philly CHU, that means the Old Confederacy. That could mean a big city with a biglaw presence (e.g. Houston, Atlanta, or Miami) but it could mean Montgomery, Little Rock, or Jackson. Are you willing to uproot your life from one of the big coastal cities that host biglaw firms to live in a small-medium Southern city? (and it sounds like you're not, if you're thinking about buying a house in the location of your biglaw firm). Keep in mind that what 3:00 anon said about the trauma and isolation of this work is especially aggravated by doing it in a place where the death penalty is popular: you will have a tough time talking about it outside of work and meeting people who are sympathetic to what you do.

That said, there are some firms that do a lot of it pro bono, so you can probably get a good taste of it at a firm, if you're so inclined. Some firms even have ongoing partnerships with specific capital defense orgs (e.g. Sidley with EJI). This is probably something you can ask a recruiting person about.

[Anonymous User]

1. Yes, I'm interested in post-conviction work. I don't have a ton of experience in that per se, but at my school I've done a lot of criminal justice work generally and prisoner work specifically. I'm taking a capital punishment clinic this year to get a good feel for it. I feel very strongly about it. I don't know how I could get more information about whether I want to do this as a career before I have to start making decisions.

The clinic will be good (do you work remotely, or is it an externship of some sort?) But you should really intern for a meaningful period of time at a capital habeas office and get a feel for the day-to-day experience. You really, really can't know whether you want to do it until you've lived it. It's different from other criminal justice work in its intense, long-term involvement in individual cases, the procedurally arcane legal framework, and the absolutely catastrophic outcomes. I thought I wanted to do this work until I actually spent some time doing it. Is splitting your summer feasible?

I'd also highly recommend this book.

[Anonymous User]

1. Yes, I'm interested in post-conviction work. I don't have a ton of experience in that per se, but at my school I've done a lot of criminal justice work generally and prisoner work specifically. I'm taking a capital punishment clinic this year to get a good feel for it. I feel very strongly about it. I don't know how I could get more information about whether I want to do this as a career before I have to start making decisions.

The clinic will be good (do you work remotely, or is it an externship of some sort?) But you should really intern for a meaningful period of time at a capital habeas office and get a feel for the day-to-day experience. You really, really can't know whether you want to do it until you've lived it. It's different from other criminal justice work in its intense, long-term involvement in individual cases, the procedurally arcane legal framework, and the absolutely catastrophic outcomes. I thought I wanted to do this work until I actually spent some time doing it. Is splitting your summer feasible?

I'd also highly recommend this book.

It's an 4 week externship followed by a semester of working remotely. I'll look into splitting, that didn't even occur to me. It makes sense that it's something you have to do before you can know.

I actually read that book a couple weeks ago.

[ernie]

I don't really believe the training point. Does biglaw really give you better training relevant to capital punishment work than a fellowship working on death penalty cases? I am skeptical.

[dixiecupdrinking]

I don't really believe the training point. Does biglaw really give you better training relevant to capital punishment work than a fellowship working on death penalty cases? I am skeptical.

Extremely unlikely.

OP, you definitely should rule out any firm that caps pro bono hours, more because of what it broadcasts about their view of pro bono than because of any practical ramifications. But, having "unlimited" pro bono is not sufficient to ensure the firm will be supportive of you taking on a massive, years long commitment. Some firms will be, but many won't. You need to dig deeper.

[Anonymous User]

OP, I'm guessing you're at HLS, since your description of the fairly unusual structure of the capital punishment clinic matches HLS's. Just go talk to OPIA and to Carol Steiker. They'll give you candid, informed advice that's better than anything you'll get on here.

[Anonymous User]

3:00 anon here. I'm busy at work, and I'm nervous about this thread because my career trajectory (biglaw --> capital defense --> not capital defense) is unusual enough to pose some risk of outing, but this is also the rare thread where that unusual experience could actually be useful to someone else, so I'll try to answer your questions and issues as time permits.

4. Besides the money, I'm looking at biglaw because it offers a really great chance to get trained on complicated legal matters by exceptionally well resourced companies. Government and non profit attorneys have advised me to do biglaw before transitioning for that reason. Does that make sense?

I actually think there's some wisdom to your wanting to buy/finance a place before transitioning into public interest, as long as you understand the risks that (a) you may not be allowed to make the transition at all; and (b) as another poster pointed out, you are likely to need to move to get your first capital defense job, so you should probably save the money but not purchase until you've accepted the new job. It's hard to make ends meet on a capital defense salary, and I met many others in the field (both men and women) whose significant other's salary paid the bills. If you don't have that, there's an argument for stockpiling the money to get your mortgage taken care of.

However, there's little wisdom to the idea of heading to biglaw *as training for capital habeas work.* There is almost no translation between the two fields, and no employer on either side of the fence thinks there is. You will likely have to take a seniority cut to move from biglaw to habeas and retrain, and you will likely have to do the same again if you move on from habeas. To try to spell that out:

1. You'll interview lay witnesses in both places, but there's no translation between interviewing the CFO and CEO of a large company and interviewing your client's mother/the rape victim in the prior the prosecution used for aggravation/the mentally ill witness who was institutionalized in the same facility as your client.

2. You'll work with experts in both places, but there's no translation between working with civil damages experts and working with a forensic pathologist to prepare a declaration about how and when the victim died and why the bullet wounds don't correspond to any weapon the prosecution has connected to your client.

3. Writing complaints and answers does not translate to drafting habeas petitions.

4. Writing a summary judgment motion has almost no connection to writing a 100 page submission on why the federal court should consider your claims under 2254(d)(1)/(d)(2).

5. There's mild overlap between discovery motions in both places but the standards are different - arguing a civil MTC doesn't directly prep you for arguing why the DA is improperly withholding postconviction discovery under your state's PC laws.

6. There is no overlap whatsoever between counseling "the client" (AGC of your company sitting in an office worried about a trade secret case) and counseling "the client" (incarcerated for 25 years, often with various forms of mental disability or illness, adamant that you cannot investigate their social history because they don't want to traumatize their family, and insistent that you make some argument that isn't even legally cognizable.)

7. Investigating a case in biglaw might involve reviewing reams of documents before sitting in an office conference room and interviewing selected witnesses about a challenged billing practice. Those witnesses are guaranteed to be non-violent and are usually cooperative as their employment often depends on it. Investigating a habeas case involves flying across the country, knocking unannounced on the door of an eyewitness who thinks they saw your client in the parking lot that day (not knowing if they'll come to the door with a gun, under the influence of any number of substances, etc., and often heading solo into neighborhoods that you wouldn't want to find yourself in after dark), and establishing the rapport needed to see if their recollections have changed over the years (and if so, whether they will give you a written declaration under penalty of perjury to that effect.)

I could go on like this all day. When you refer to biglaw as "really great chance to get trained on complicated legal matters by exceptionally well resourced companies" - that's not wrong (although it makes you sound like you are still in OCI interview mode), but it's just that that training has nothing whatsoever to do with the career you think you want. Not trying to needle you, but as someone who knows the rocky transition you are proposing to make all too well, you need to spend a lot of time at this juncture getting your mind around both working worlds you're proposing to inhabit. They couldn't possibly be further removed from each other - and I'm getting the strong impression that you don't yet have a clear picture of either one.

ETA Also, as I'm thinking about how biglaw --> capital habeas works, there's even less translation than I described above between the work of a *junior* associate and habeas. I wrote the above from the perspective of an attorney many more years into practice. As a biglaw junior, you won't be interviewing most witnesses, you won't be working with the experts, you may not be drafting many briefs, you likely won't be arguing discovery hearings, etc. You'll be reviewing documents, researching, occasionally drafting pleadings and portions of briefs, making the "training on complicated legal matters" even less relevant.

[ResIpsa21]

The last anon clearly has some great advice based on actual experience, so definitely pay attention to that. I just wanted to add a few more thoughts based on a conversation I had recently with an AFPD in a major district about their CHU.

1. You absolutely must do litigation in biglaw, and preferably white collar criminal defense. It's still nothing remotely like litigating capital habeas cases, but it will at least introduce you to criminal law and makes some sort of sense when you try to exit biglaw for capital defense. You can try for a biglaw appellate group, but unless you have a Circuit clerkship you probably won't be successful. Even if you were, I don't think appellate is a big improvement from white collar. You're better off making as much time as possible for pro bono work and/or networking your way into volunteer work for the local Innocence Project, etc.

2. By far the best way to get into capital defense early in your career is by moving to the South. Even if you don't end up in Birmingham et al., you're probably going to have to move to a different city anyway, even if that city ends up being San Francisco or Philadelphia. Don't buy a house. Save your money for a rainy day, a/k/a every day when you're a low-paid capital defender.

3. Don't pin your hopes on going from biglaw directly to capital defense. It's much more likely that you'll need one or two intermediate steps in the process. As the above anon explained very well, biglaw is barely transferable to death penalty casework, and even if you do a couple high-profile pro bono cases as a junior/mid-level associate, that probably won't qualify you for full-time capital defense. Consider taking your transition step-by-step. For example, you might leave biglaw and go to an FPD's non-capital habeas unit first; then once you have habeas experience, you can go for the promotion to CHU or move to an independent organization.