Most difficult practice area? Forum

[Anonymous User]

Is there a general agreement about what the most difficult or complicated practice area of law is? I’ve always wondered this question. I assumed tax or something. Maybe I.P. if it’s patent law?

[Anonymous User]

Whenever I talk to derivatives people I can’t decide whether they’re brilliant or just really autistic. Maybe both?

[nixy]

My employment law prof said that no one understands ERISA except ERISA specialists and if you decided to become an ERISA specialist you would always have a job. Not sure how much of that is that it's complex/difficult and how much is that it's just tedious (I did not become an ERISA specialist so I definitely don't understand it).

[Anonymous User]

[*]

My employment law prof said that no one understands ERISA except ERISA specialists and if you decided to become an ERISA specialist you would always have a job. Not sure how much of that is that it's complex/difficult and how much is that it's just tedious (I did not become an ERISA specialist so I definitely don't understand it).

I’m a former ERISA specialist that has since moved to a more general comp/benefits practice.

Obviously it’s hard to say what is the hardest area without practicing in other areas, but I think being an ERISA specialist was the most difficult job.

When you’re an ERISA specialist, you’re almost required to understand ACA, Securities law, employment law and tax law. And I’m not talking about just surface level understanding.

For a client matter, I had to learn a specific state’s entire ACA insurance structure just to answer a basic ERISA question (based on recently-issued DOL guidance no one understood).

And ERISA specialists deal with tax a lot. Outside folks usually think this is just dealing with basic 401(k) and pension stuff. But you have to know the intricacies of 417(e), 411(d)(6) and other code sections used to calculate pension benefits. These are extremely dense sections and regulations that seasoned partners I’ve worked with and across from can’t even understand sometimes.

Then there’s ERISA litigation. Most of it can be handled by litigators, but we have to assist with that. I hated litigation, so I really didn’t like having to discuss whether X has standing because of this obscure ERISA provision that is interpreted in this one advisory opinion from 1983.

TLDR - I say ERISA (not exec comp, but true ERISA/employee benefits) because of the breadth and depth of the practice.

[Anonymous User]

To answer your question, no, there's not a consensus. For the most part, I'd say it's not corporate work (one of the biggest complaints I hear about corporate is that it requires so little brain power and lawyers could do it when they were in middle school). As far as major practice areas, I'd have four contenders. I'll agree ERISA is a nightmare. The most complicated field I've ever worked in was I.P., but I suspect that's mainly because I have basically no science background since 10th grade.

I think probably the hardest is trial work (appellate advocacy too, but less since it involves more law and less facts). It's a small practice area, since most of us can name the firms that specialize in it on both hands (Susman, Wilkinson Stekloff, Kellogg, Bartlit Beck, Mololamken, Hueston, Morvillo) and between all of them they hire like 50 people a year. It's probably the hardest in my mind because it requires a bunch of original thought and requires you to become very familiar with tons of different kinds of law. You can get cases that make you wrestle with science and medicine, cases that make you get familiar with complex economic subjects, cases that deal with IP issues, etc.

But when I clerked, I came to the conclusion that the worst thing to work on in the law is CERCLA. It's a running joke in opinions about how terribly written that statute is. I don't know if there are lawyers that would specialize heavily in that, but if there are, I'll give them the nod.

[nixy]

Trial work is a lot of work, and requires you to be able to learn a lot of different areas of law (within the parameters of a given case), but I don’t think it’s conceptually difficult. I guess I don’t think anything that requires you to be a generalist in that way is conceptually difficult (as opposed to a lot of work).

[ConfusedNYer]

My employment law prof said that no one understands ERISA except ERISA specialists and if you decided to become an ERISA specialist you would always have a job. Not sure how much of that is that it's complex/difficult and how much is that it's just tedious (I did not become an ERISA specialist so I definitely don't understand it).

MY old boss gave me this same "advice" almost verbatim before I started law school, although he definitely emphasized the tedious/boring nature of the work over the complexity.

[nealric]

I have to admit my experience with ERISA is a bit tangential as a tax person, but my impression is it's pretty similar to tax in terms of overall complexity. However, there's a lot of tedious compliance stuff in ERISA that's mostly a box checking exercise, so you have to have a decent tolerance for tedium. Frankly, I had the chance to get involved in ERISA but affirmatively chose not to.

It is true that an established ERISA lawyer will usually have pretty good job security. I've seen plenty of general corporate/lit types and even the odd tax type flame out of their careers (even at the partner level), but I've never seen it happen to an ERISA person (admittedly with a smaller sample size).

[Anonymous User]

I have to admit my experience with ERISA is a bit tangential as a tax person, but my impression is it's pretty similar to tax in terms of overall complexity. However, there's a lot of tedious compliance stuff in ERISA that's mostly a box checking exercise, so you have to have a decent tolerance for tedium. Frankly, I had the chance to get involved in ERISA but affirmatively chose not to.

It is true that an established ERISA lawyer will usually have pretty good job security. I've seen plenty of general corporate/lit types and even the odd tax type flame out of their careers (even at the partner level), but I've never seen it happen to an ERISA person (admittedly with a smaller sample size).

Former ERISA person. I agree that ERISA is probably no more difficult than the Code. So, in a closed universe, ERISA and tax are probably equal, with ERISA being more tedious because of a lot of the box checking stuff for the annual filings and amendments. However, what a lot of non-ERISA people don’t know is that these routine activities usually end up not being routine because the client or someone made a change that they didn’t tell us about and now we have to do IRS/DOL filings, which, although mostly tedious, sometimes are mentally challenging (creating a theory as to why our client’s mess up falls under certain safe harbors).

I only think ERISA is worse than tax because an ERISA specialist needs to learn both ERISA and the Code, and the ACA and state insurance regulations, and other laws on top of the general corporate and securities stuff that my tax colleagues dealt with. My tax colleagues expected me to understand 1032, 367, 368, 811, etc. when coming to ask for assistance on certain matters.

Just thinking about it gives me a headache.

But generally I agree that the Code and ERISA are equally as complex.

[legalpotato]

If you are asking in terms of substantive difficulty, none of it is rocket science. If you are asking what is easiest to pick up on the fly (i.e., no personal study required), then probably not one of the tax specialties. But interest level is another factor that can make a specialty difficult - it is probably much easier to be interested in corporate tax work than ERISA or labor for example, and therefore probably easier to put in the time to learn corporate tax.

With that said, corporate is "difficult" in the sense that it is the most demanding, and to be really really good you need to try and fit in the personal study while you are doing the long hours.

[Anonymous User]

Depends on how we define complexity. I feel like most, if not all, areas of the law are the same complexity, if complexity turns on conceptually what one is doing—as all areas of law require one basic skill: distilling information and then creating a framework to apply that distillation in some manner.

If we start talking about complexity as how much information needs to be distilled, then, again, I think all areas of the law can become sufficiently complex to make them all the same, depending on whether your clients are sufficiently sophisticated to require a deep dive.

I haven’t really worked on ERISA matters other than tangentially. I don’t think it’s necessarily that complex; at the end of the day it’s just a statute being interpreted. How complex can that really be? Sure, some statutory schemes get so specific that it becomes a chore to slog through them, but I’m not sure I’d call that complexity...just tedious. (E.g. the tax code or ERISA or the Securities laws)

[nealric]

Depends on how we define complexity. I feel like most, if not all, areas of the law are the same complexity, if complexity turns on conceptually what one is doing—as all areas of law require one basic skill: distilling information and then creating a framework to apply that distillation in some manner.

If we start talking about complexity as how much information needs to be distilled, then, again, I think all areas of the law can become sufficiently complex to make them all the same, depending on whether your clients are sufficiently sophisticated to require a deep dive.

I haven’t really worked on ERISA matters other than tangentially. I don’t think it’s necessarily that complex; at the end of the day it’s just a statute being interpreted. How complex can that really be? Sure, some statutory schemes get so specific that it becomes a chore to slog through them, but I’m not sure I’d call that complexity...just tedious. (E.g. the tax code or ERISA or the Securities laws)

I think the most difficult areas are ones that require a lot of working memory and a lot of concepts to be synthesized at once. No statute in isolation is necessarily that complex- it's the interplay between many different statutes that makes it difficult. Many times the interplay was not even foreseen by the drafters. Issue spotting can be really complex in those situations, to the extent that even sophisticated practitioners often miss big issues.

In the case of tax, there are areas of the Code that are pretty much incomprehensible to a non-practitioner because you need a pretty large knowledge base of the underlying layers. I'll use 367 as an example. It "turns off" tax free reorganization treatment for certain cross border transactions. A non-tax practitioner couldn't even read it with any level of comprehension without flipping back and forth a dozen times to figure out what all of the cross-referenced code sections are about. The'd probably need to flip back to understand the cross references to THOSE cross referenced sections, potentially creating nearly infinite regress of cross references depending on their level of background knowledge. To understand 367, you also need to understand 368, which defines tax-free reorganizations. 368 is complex because the reorganizations it covers are described in very abstract terms, and different tax-free reorganizations can actually overlap. To understand 368, you also need to understand the tax rules governing taxable transactions and the underlying business considerations related to what the client is trying to do. Foreign tax codes may also come into play, as rules governing things like entity classification and hybrid entities.

More simple areas tend to produce straightforward yes/no questions and withstand a more basic IRAC analysis where there is just one rule that needs to be applied.

[ksm6969]

I dont think patent lit is really that hard, unless you are easily intimidated by technical stuff. The technical issues might be complex at first, but they get pretty simplified/narrowed down as the case advances, and anyway you are working with a few expert witnesses the whole time. Plus patent law is ALL federal and specifically all federal circuit, so you arent dealing with circuit splits and all that.

I'd say something like complex estate planning, where (1) there is a lot of interaction between federal rules (IRS, bankruptcy) that are themselves not very clear overlaid with state law (trust fiduciary stuff, probate rules, etc.) that often conflict by state, and (2) if you mess up, there is a very high chance of actually being sued for malpractice.

[Bosque]

I dont think patent lit is really that hard, unless you are easily intimidated by technical stuff. The technical issues might be complex at first, but they get pretty simplified/narrowed down as the case advances, and anyway you are working with a few expert witnesses the whole time. Plus patent law is ALL federal and specifically all federal circuit, so you arent dealing with circuit splits and all that.

The hard part of patent litigation is knowing enough to simplify/narrow the case effectively, that doesn't just magically happen.

Not saying it's the most difficult (I have no idea what is), but this specifically I think glossed over the huge ammount of necessary work with the record, technical and legal knowhow, and cat wrangling it takes to get to the simplified/narrowed down point.

[nealric]

I dont think patent lit is really that hard, unless you are easily intimidated by technical stuff. The technical issues might be complex at first, but they get pretty simplified/narrowed down as the case advances, and anyway you are working with a few expert witnesses the whole time. Plus patent law is ALL federal and specifically all federal circuit, so you arent dealing with circuit splits and all that.

The hard part of patent litigation is knowing enough to simplify/narrow the case effectively, that doesn't just magically happen.

Not saying it's the most difficult (I have no idea what is), but this specifically I think glossed over the huge ammount of necessary work with the record, technical and legal knowhow, and cat wrangling it takes to get to the simplified/narrowed down point.

There's also difference between technical legal complexity, factual complexity, and interpersonal complexity. The law governing child custody isn't all that complex, but that doesn't mean it's easy to represent a client going through a pitched child custody battle.

[nixy]

Yeah, speaking personally, representing someone in an ugly custody battle would be way more difficult than parsing complex legal codes.

[Anony1234]

Antitrust is pretty tough. The industries and products are often very complex. The field itself incorporates so much econ that you're required to learn enough to be conversant with PhD economists (if not more). The caselaw has a lot to unpack on specific issues. You also end up getting pulled into a bunch of other areas of the law (i.e. IP, regulatory, M&A, corporate, securities, etc.). I don't really know how it compares across other areas I've never practiced, and IP in particular seems like a nightmare from the outside, but the field deserves at least honorable mention in this convo.

[Sackboy]

you're required to learn enough to be conversant with PhD economists (if not more)

You must have very short conversations.

[Anony1234]

you're required to learn enough to be conversant with PhD economists (if not more)

You must have very short conversations.

Huh? Is this a knock on me? Antitrust practitioners? Current antitrust theory/enforcement? I don't follow.

If me, then fair enough because I certainly have a lot to learn.

[Anonymous User]

How about capital markets work?

[Anonymous User]

you're required to learn enough to be conversant with PhD economists (if not more)

You must have very short conversations.

Huh? Is this a knock on me? Antitrust practitioners? Current antitrust theory/enforcement? I don't follow.

If me, then fair enough because I certainly have a lot to learn.

probably a knock on the PhDs, who tend not to be as glib as lawyers despite knowing much more about a given topic

[Anonymous User]

How about capital markets work?

Corporate practice areas like cap markets and M&A are quite easy in terms of brainpower required compared to the other areas mentioned here.

[Prudent_Jurist]

Water law and specifically general stream adjudications (determining who has priority rights to a river, subflow, etc.) are just insane. The substantive law is not terribly hard though ridiculously all over the map, and the litigation and negotiations between parties is insanely complex. Sometimes thousands of parties with rights, including states, tribes, and the federal government, are involved. A few general stream adjudications have been going on for more than 30 years and have been handed off from one generation of lawyers to the next.

[Anonymous User]

How about capital markets work?

I don’t think so. General corp (capital markets, M&A, etc) is more about grinding and surviving the hours than anything super substantively difficult imo. There can be crazy complicated transactions, but even then you’re generally just leaning on your specialists to handle their aspects of the deal.

[Anonymous User]

How about capital markets work?

I don’t think so. General corp (capital markets, M&A, etc) is more about grinding and surviving the hours than anything super substantively difficult imo. There can be crazy complicated transactions, but even then you’re generally just leaning on your specialists to handle their aspects of the deal.

Corp associate here. 100% agree.

Also, if push came to shove, I'd say CM is generally easier than M&A because I think CM deals are way more repetitive/straightforward than M&A deals. Tho if you're doing fancy derivatives work, that's more complex (I know some firms put their derivatives people under the CM umbrella).