By Anne Smith and Alexa Baltodano
The most difficult thing is the decision to act, the rest is merely tenacity.
This Amelia Earhart quote is emblematic of the decision to work as an in-house or private practice attorney. It is a difficult decision to make, and making it does not make the path to that in-house job any easier.
With that in mind, before making the decision, you need to do your homework. This article will help you explore the differences between in-house and private practice. If you decide in-house practice is for you, it will also help you understand how to prepare yourself and your resume for that job hunt.
Important differences to consider
As you review the following differences between in-house and private practice, keep a couple of things in mind. First, remember the practice of law is not a cookie-cutter experience. For every difference we set out, you will be able to find an exception to that generalization for both in-house and private practice. Also, as you read, think about your strengths, skills, and career desires. Where would they fit best? What would bring you the most career satisfaction?
Many clients vs. one client
One important difference between in-house and private practice attorneys is who they work for. Private practice attorneys work for a variety of clients. This exposes them to multiple variations on particular legal issues based on client industries and goals and gives private practice attorneys a richness of experience and expertise in specific areas of law. They are contacted by the client when the client has a concern in the particular area of expertise. The client and attorney talk only sporadically, and only when the client believes it has a crisis that is deserving of a consultation with an attorney. Because the company wants to manage its outside expenses, there are specific protocols for who the private attorney deals with at the company. You are likely to work with an in-house attorney, manager, or other person designated by the company to deal with the matter. Questions about the matter will be directed through your contact. He or she will facilitate any further information gathering for you. As a result, when contacted, private practice attorneys must be responsive to the questions asked, empathetic, and efficient in handling the matter to ensure return business.
On the other hand, in-house attorneys technically have only one client—the company that employs them. Their work must always be consistent with the mission and goals of the company. However, within the company, the in-house attorney has a variety of departments, managers, and leaders who the attorney must work with. In this type of setting, your reputation is key. You need to be able to respond to the varying needs of multiple customers and build day-to-day working relationships with people from all different backgrounds and departments within the company to succeed.
According to Laura Bozek, senior patent counsel at Georgia Pacific LLC, this difference is clearly demonstrated in the deliverables produced by each. Bozek worked in a firm at the beginning of her career. She explained that her private practice deliverable was more defined, prescriptive, and directly in response to the client’s request. Additionally, as a young lawyer, she most often dealt with a partner at the firm and not with the client directly. When she moved in-house, she had to be ready to deal with a wide-ranging group of colleagues from engineers and inventors to managers, senior leaders, and other in-house attorneys. In each case, she had to determine appropriate deliverables for the situation, the question asked, and who was asking. Bozek indicated that “in-house attorneys need to have a demonstrated ability to understand, communicate, and get to the right answer efficiently.”
Having only one client can also affect the practice of an in-house lawyer. The effect is different depending on where you work. For instance, in smaller companies, the company is not likely to produce as much volume in any one practice area to allow singular specialization. Instead, in-house attorneys in smaller companies are generalists with multiple areas of specialty. For larger companies or companies with high-volume needs in certain areas, in-house attorneys can specialize. Intellectual property (IP) is often an area of specialization. If a company is choosing to hire an in-house attorney to handle its intellectual property, it is because it has a volume sufficient to justify bringing the expertise in-house. In-house IP attorneys do specialize and are the experts in that area for the company. They gain a depth of knowledge in the technologies of the company for which they work and may not be expected to do other legal work.
Legal expert vs. business expert
In addition to practice variations, there are general differences in the way the skills of in-house and private attorneys are used. Private practice attorneys are relied on for their expertise in particular areas of law. This can play out in two ways. First, there are certain practice areas where a private practice firm takes the lead on a matter. This pattern is played out most frequently with complex litigation, including patent litigation. In that case, the in-house department works in partnership with the firm on strategy, coordination of internal discovery, and other issues related to the litigation. However, the private practice firm takes the lead and actually tries the case.
A second way the expertise of private practice attorneys is used by in-house staff is for their subject matter expertise. The in-house legal department is generally expected to handle legal matters themselves and to reach out to private practice firms only when the issue presented is beyond the expertise of the in-house department.
In-house attorneys are expected to translate the legal expertise, either their own or that of the private practice attorney, and make recommendations for solutions that make sense for the company. According to Bozek, this is one of the most rewarding parts of an in-house position. She believes she does her best work when she understands the context. She finds in-house work “much more interesting” because she “understands why the question is being asked, can offer alternatives based on [her] research and knowledge, and can see [her] advice shape the ultimate corporate action.” In other words, she enjoys playing a strategic role within the company.
This strategic role for in-house attorneys is becoming ever more important. Evidence of this can be found in two surveys conducted by the Association of Corporate Counsel (ACC). A 2013 surveyindicates that general counsels need more than legal acumen to succeed. They are looked to by the company and the board to be the leader of the legal department, counselor in chief, and business strategist.
The 2016 ACC management report confirms this trend is also impacting legal departments generally. The report suggests that the role of legal departments is becoming progressively more strategic, causing this difference between private and in-house practice to become more distinct. Respondents to the 2016 ACC survey indicate that in-house attorneys are regularly sought out by company executives and business leaders for input and guidance on business decisions, on operational and risk areas, and in strategic planning efforts (below). To meet these growing expectations, it is more important than ever that in-house attorneys develop skills to be able to translate law into corporate action.
Episodic work vs. business partner
Another important difference between in-house and private practice is in the nature of the engagement. In private practice, attorneys are called in on an as-needed basis. They address the issue requested and then leave. The in-house lawyer, on the other hand, is involved for the long term. In the patent area, the private practice patent attorney is retained on a project-by-project basis. For example, a private attorney may be retained to prosecute a patent. The in-house patent attorney will review, consult, and coordinate the drafting, but the private attorney will be the lead drafter. Once the patent is drafted, the private attorney moves on to the next client’s project. In contrast, the in-house patent attorney is continuously scanning the environment for developments in the company’s areas of innovation, assessing the patentability of the new ideas and innovations, engaging private attorneys as necessary, protecting the company’s own intellectual property, and evaluating others’ right to use or not use that intellectual property. Both in-house and private practice attorneys play important, but different, roles for the company.
On-demand vs. cost center
Regardless of the path you choose, you will be working long hours. Private practice attorneys have to deal with client expectations on availability, responsiveness, and timeliness. When multiplied by demands and deadlines for a variety of clients, this can seem like being on demand and leave private practice attorneys with a sense they do not control their own schedule. By contract, once on the payroll, in-house attorneys can be seen as cost centers. This can leave internal customers with the impression that things should get done because, as an employee, you are paid to do the work. Each situation is manageable, but neither makes for a stress-free career.
As pointed out at the outset of this section, the differences between in-house and private practice are not absolute. Individual jobs vary. However, the differences are generally the case and can help you find an environment in which you can thrive. If, after considering the differences, you are convinced an in-house role is for you, the time to start planning is now. The next section of this article explores factors to consider when searching for an in-house role.
Factors to consider when going in-house
Finding that in-house position can be challenging. Using your time in law school or in your current role wisely to build a resume that will show you are prepared for in-house practice is an important part of that process. This section will provide information that will help you prepare yourself for the journey to securing an in-house role.
Competitive job market
As a law student or young lawyer, you know how to compete. You have done it your entire life. The in-house job search will be no different. It is a very competitive process. According to annual statistics compiled by the Section of Legal Education and Admissions of the American Bar Association (ABA), the majority of law graduates go to work for law firms. For 2016, the statistics indicate that 45.5 percent of graduates obtained positions with law firms and 13.5 percent obtained positions in business and industry (below). The statistics were similar for 2015. Keep in mind that the business and industry number is overstated by some unknown amount because it includes non-JD-required business and industry positions taken by law graduates.
For the limited experience attorney seeking an in-house patent position, the picture is also challenging. According to a 2016 review of United States Patent and Trademark Office (USPTO) records by Patexia.com, only 24 percent of practicing patent attorneys work in-house, and approximately 35 percent of those in-house attorneys had 15 to 16 years of experience while only about 10 percent have two years of experience or less.
A competitive job market adds to the challenge of securing an in-house position. To help you secure those jobs, build a resume that will be attractive to general counsels making hiring decisions. To better understand what skills, abilities, and experiences will build a resume attractive for in-house positions, we surveyed a group of general counsels. Following is a recap of what they told us.
Years of experience needed
Only 18 percent of survey respondents indicated that they would hire a person with zero to three years of experience (below). The most popular level of experience for in-house hires was three to six years. Survey respondents advised that in-house teams are simply not set up to train new lawyers. One respondent pointed out that you can always learn subject matter and suggested that law graduates and young attorneys focus on learning to practice law.
While not easy, it is not impossible to land an in-house job following graduation or with little experience. In an interview, Mike Anderson, senior vice president and chief legal counsel for CUNA Mutual Group,indicated that hiring an inexperienced attorney would depend on the position. For instance, Anderson said a position focused on the Employment Retirement Income and Security Act of 1974 (ERISA) would not lend itself to being filled by a new graduate or inexperienced attorney. However, he further stated, “a position in governance, compliance, or regulatory work could be a fit for either.”
Under Anderson’s leadership, CUNA has hired new graduates. The two most recent new graduate hires had clerked for CUNA before being hired as attorneys. Coincidentally, both have moved on. One took a position with a New York City law firm she got to know through her work at CUNA. The other discovered she had strong nonlegal skills and moved to a more business-focused position.
Kind of experience
Survey respondents indicated that the kind of prior experience looked for in a hire was dependent on the need. For instance, if the company had significant Food and Drug Administration (FDA) regulatory compliance needs, it would consider or search for an experienced FDA attorney. However, when looked at more generally, survey respondents revealed that they favored applicants with prior small to medium-sized firm or in-house experience. One respondent explained that small to medium-sized firm experience was more akin to in-house practice because it tended to be more generalist in nature and did not allow for the specialization created at a large firm. Because of the specialization required of IP law, the experience looked for is not dependent on law firm size but rather the quantity and quality of the prior experience.
In an interview, Dan Ghoca, general counsel at Promega Corporation, indicated that the law firm experience is like turning “coal into diamonds.” For instance, he explained, in the mergers and acquisitions context, a law graduate at a firm may be working on multiple deals at the same time or moving from one to another consecutively. The richness of that experience creates a solid understanding of what goes into making a transaction succeed. While transactions occur within companies, they do not occur at the same pace, and thus do not provide the same depth and speed of development.
Law school experiences
The only law school experience that received “must have” ratings in the survey was law practice skills experience, with a 37 percent “must have” rating. Graduation with honors received the next highest rating, with 36 percent of respondents indicating it was “important.” The remaining experiences, such as law review or other journal experience, judicial clerkships, business clinical, and moot court were “nice to have” but were not rated as important (below). One respondent did indicate that business clinical experiences may become more important as those programs continue to develop and with the addition of the ABA experiential learning requirements.
Survey respondents were asked to rate personal characteristics that were important to them in the hiring process. The personal characteristic receiving the most “must have” responses was problem solving, with 82 percent of respondents rating it as a “must have.” Other personal characteristics of importance include a proactive nature, responsiveness, and being a team player (see fig. 5 below)—all of which help build trust and relationships within the corporation.
Interestingly, understanding the business was rated relatively high on the importance scale, but survey respondents differed in their comments on its importance. One respondent said that business knowledge and understanding the industry was important because it improved the learning curve and made the hire productive more quickly. Another respondent suggested that learning the business and its quirks was something that happened on the job. For IP practitioners, understanding the technology and the science the company is involved in is important.
In their interviews, Anderson and Ghoca raised two personal characteristics that were not included on the list but were important to them. Anderson emphasized the importance of intellectual and business curiosity and indicated that he looks for “people who will progress” both within the legal department and into the business.
Ghoca indicated that good writing and communication skills were extremely important to him in the hiring decision. According to Ghoca, an in-house attorney establishes credibility by providing clear, concise written explanations of the law and its business implications. He emphasized that law firms are a good place to hone those skills. Ghoca also stated that strong social skills were important to him. He explained that being able to relate to people within the company on a business and personal level can also add to an in-house attorney’s credibility.
Armed with the knowledge of the challenges you face in securing an in-house position and the skills and experiences that will matter, the next step is finding that job. The following section of this article will provide you with some tips for finding that job.
Job search tips
The first step in securing an in-house position is to develop a plan and get started now. If you are in law school, seek out experiences and internships that will show you are practice ready. If you are practicing, make sure you are engaged in the kinds of practice that will fit what general counsels are looking for in new hires. Consider the following tips.
Learn to practice law
Remember that in-house legal departments do not have time to train you on how to practice law. You need to go to them with the ability to demonstrate that skill. Find law school experiences and employment during and after law school that will help you build and demonstrate practice skills. Then make sure those skills are reflected in your cover letter and resume, and do not be shy about talking about them in interviews.
The most effective way to do it, is to do it.
While learning practice skills in law school is a start, it may not be enough to land that in-house position you desire. If not, find a firm at which you will receive strong mentoring so that when the right in-house opportunity presents itself you will be able to demonstrate a good set of practice skills and a breadth of practice area experiences. If you are applying for a more generalist in-house role, make sure your experiences demonstrate an ability to handle a wide range of subjects. If you are applying for an IP position, make sure you demonstrate varied experience within the IP practice area.
Demonstrate an interest in business
In-house lawyers are partners with the business in making the business succeed. That means you need to like business and need to be willing to roll up your sleeves to understand it. It will make you a better in-house attorney. To do that, take all the business-related courses you can while in law school. Do not be afraid to review course offerings at the business school. They may add some depth to your resume. With your limited free time, participate in business-related activities that will build on your understanding of business and help you develop practice skills.
Cover letter and resume suggestions
When preparing a resume for submission to an in-house position, first review the job description for the position. Corporations generally have detailed descriptions of what they expect the hire will be doing. Make sure your resume reflects that job description. For instance, if the description indicates that the ideal candidate will be able to manage small projects, include an example from your life where you managed a small project.
Based on what you learn from the job description, create a resume that represents what is desired for the job. However, keep your resume simple. In a study conducted by Ladders, an online service that “helps professionals manage, market and move up in their careers,” the average recruiter spends about six seconds reviewing a resume. Of that time, technology used for the study showed that recruiters spent almost 80 percent of their resume review time on the following data points:
- Current title/company;
- Previous title/company;
- Previous position start and end dates;
- Current position start and end dates; and
Review the job description as you prepare for the interview. Take some time to think about what the job requires and your life experiences. Be prepared to provide examples of things you have done that match the skills and abilities necessary for the job. Spend some time learning about the business of the company. During the interview, it is important that you demonstrate you know something about what they do and that you are curious about learning more.
Based on the survey results for this article, it is also important to think about what not to say. One survey respondent indicated that “in-house lawyers do not want to hear an applicant cite a lifestyle change or less hours as motivation for coming in-house.” The respondent explained that being in-house presents a different kind of responsibility and requires handling a lot more active projects at any one time.
Before beginning a search for an in-house position, take time to carefully consider if it will be the right job for you. If, after that consideration, you are convinced that an in-house position is for you, recognize that it will not be easy. Begin today by making sure that both your law school and post-law school experiences are reflective of your interest in being part of an in-house team. Good luck in your job search!
This article originally appeared in Landslide, a publication of the ABA Section of Intellectual Property.
Anne Smith is a co-founder and director of the Law & Entrepreneurship Clinic at the University of Wisconsin Law School.
Alexa D. Baltodano is a corporate attorney at Fiserv, Inc. in Brookfield, Wisconsin. She specializes in commercial transaction negotiation and liaising with company specialists regarding intellectual property, technology, privacy, security, regulatory, and litigation matters.