Are boutique firms the future of litigation? Compared to many of their Biglaw counterparts, they’re often more nimble, innovative, and willing to take risks. Unattached to giant transactional practices, they have fewer conflicts and other client-related concerns, allowing them to take on interesting, cutting-edge cases that Biglaw firms might decline to avoid controversy.
Founded and staffed by lawyers who left top Biglaw firms, elite boutiques can offer the same if not better lawyering and client service, frequently under more favorable or flexible fee arrangements. And from the perspective of the talent, boutiques often boast enhanced collegiality among partners and partnership prospects for associates.
How do former Biglaw partners build a world-class boutique? I recently spoke with Steven Molo, one of the top courtroom advocates in the country, about how he and Jeffrey Lamken, a leading Supreme Court lawyer, launched MoloLamken in 2009—and turned it into one of the finest litigation firms in the United States, if not the world. We discussed their vision for the firm at its founding, their approach to hiring and retaining talent, how they’ve managed to cultivate diversity in their firm’s ranks, and several current issues in the news, including law school culture wars and the pandemic’s effect on the legal profession. Thanks to Steve for his time, insight, and friendship over the years.
Show Notes:
Prefer reading to listening? A transcript of the entire episode appears below.
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NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.
Steven Molo (courtesy photo by Michael Paras).Two quick notes:
David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.
You’re listening to the fifteenth episode of this podcast, recorded on Friday, March 31. I post episodes every other Wednesday.
A big thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.
My guest today is Steven Molo, one of the nation’s leading courtroom advocates. He represents corporations, boards, funds, and individuals in complex business litigation, white-collar criminal matters, and IP litigation. Chambers and Partners calls him “fantastic in the courtroom,” a “fabulous courtroom litigator who lights up the room with his presence.” Benchmark Litigation, which named Steve one of the top 100 Trial Lawyers in America, calls him “revered,” “an outstanding advocate and fearless in court,” who “delivers the goods.”
But Steve isn’t just a great litigator; he’s also an innovator in the law-firm space. In 2009, he and Jeffrey Lamken founded MoloLamken, today one of the top litigation boutiques in the country. As I’ve said and written many times in the past, I believe that boutiques are in many ways the future of the legal profession, especially in litigation—and I say this based on firms like MoloLamken.
In our conversation, Steve and I discussed his impressive legal career, going from prosecutor to Biglaw partner to boutique founder; the vision for MoloLamken that he and Jeff Lamken had when they launched the firm during the Great Recession, and whether it has lived up to that vision; their incredibly successful approach to hiring and training lawyers; and, finally, a number of issues in the news, including diversity and inclusion, free-speech controversies at law school, and how the pandemic has transformed the legal profession.
Without further ado, here’s my interview of Steve Molo.
DL: Steve, thank you much for joining me!
Steven Molo: Well, thank you for having me on the podcast.
DL: It's such a pleasure to catch up with an old friend, and of course I know some of the stuff that we will discuss, but for the benefit of my listeners, let's dive right in.
Tell me a little bit about your childhood, your upbringing. Did you have any lawyers in the family? What led you to go to law school?
SM: Well, I grew up in Chicago, on the south side of Chicago in a neighborhood called Roseland. I came from a working-class family. Neither of my parents had gone to college. I had three sisters. I went straight to college from high school and straight to law school from college and plowed through and was a lawyer at the age of 25 and have been practicing law since.
The reasons for going to law school? For me, it was certainly a world with which I was not familiar. There were no lawyers in my family. There were no lawyers in my neighborhood. It was not something that I grew up understanding, except that it seemed to me to be a great way for a smart person to have a career, have professional advancement, have social advancement, and so that's what really drew me to it.
DL: I think that's absolutely true. It's an amazing, wonderful profession, a great engine of upward mobility. So tell me, when you were in law school, did you have a sense of what you wanted to do afterwards?
SM: I pretty much wanted to be a trial lawyer from the time I was in law school, and I wasn't quite sure exactly what that was going to look like, but I was fortunate to start my career as a prosecutor. I did that for three and a half years, almost four years. I tried a lot of cases, and I also got to argue a lot of appeals.
I was surprised recently, looking back through an old file and finding a résumé that I had when I left to go to Winston & Strawn and seeing just how many cases I had tried and appeals argued. It's very hard for young lawyers to get that experience today.
I was literally right before this call on the phone with some people running a moot-court competition, and we were talking about how getting students to get that opportunity to get on their feet, which is available now through moot court, wasn't really so much then to the same degree. It’s critically important.
But there's a lot of very successful trial lawyers and litigators who started out as prosecutors, and for me it worked out really well. And then when I went to Winston & Strawn, I had the opportunity to also get into court quite a bit because I came with so much experience. I had a mentor there who let me go to court and try cases, and I built a client following of my own over the time there, and I took off from there.
DL: You mentioned that document you saw about your earlier career. Do you recall how many trials or appeals you did while a prosecutor?
SM: I think I had 24 trials, bench and jury trials, but they could be anything from, certainly nothing less than about two days to about two weeks or two and a half weeks, that kind of thing. And I probably argued about 10 or 12 appeals, then authored some briefs on some appeals that I didn't argue.
But it's amazing now too, I see résumés from young lawyers coming from government, and sometimes people are there for seven or eight years and they really don't have that much experience. And one of the keys to becoming a successful trial lawyer is to be trying cases. It sounds almost trite, but I call it mileage, getting up on your feet, making mistakes, developing a style of your own, learning from those mistakes, and developing judgment. Because the only way you develop judgment is by having to make a decision and live with it. And that's something that isn't easily done once you're in a large law firm working on matters there under a very hierarchical structure. But it is a little surprising.
Fewer cases go to trial, that's true. But nonetheless, it is a little surprising when you see someone who's been in a prosecutor's office for six years, seven years, and they've had five trials, seven trials, something like that. But yeah, so I was very, very lucky, and that set the course for me to go out and do much more in private practice, both at Winston & Strawn and eventually at Shearman & Sterling before starting MoloLamken.
DL: Tell me about how you made that jump from being a prosecutor to your first job at a large firm at Winston.
SM: I went to Winston & Strawn, and I joined the firm at a time when it was still just a few hundred lawyers, and the firm grew tremendously. By the time I left, we were 950 lawyers, and I got to be part of that growth. And it was a firm that tried cases, had a history of people who were strong trial lawyers, dating far back before my joining the firm. And so, again, I took the opportunity to try anything I could, to get on my feet in court any way I could, whether it was a trial, whether it was an appeal, whether it was an argument of a motion, those sorts of things.
It really is in the last 10, 15 years, we've seen much more specialization with appellate practice than we used to. I’ve argued many, many appeals, as well as tried many cases, and the market defines me more as a trial lawyer. And that was the philosophy there as well, at that time.
The experience you get—I've always felt I was a better trial lawyer for the appellate work I did, I was a better appellate lawyer for the trial work I did, I was a better civil lawyer for the criminal work I did, I was a better criminal lawyer for the civil work I did. That kind of breadth enables you to develop creativity and foster the creativity that you may have so that you might look at a problem that is in a specific area of the law and pull from a completely different area of the law to solve that problem, because you can see more broadly, you've got peripheral vision, you've got some experience, and you understand also then how that may play out with a judge or with a court.
DL: Absolutely true, and sadly in terms of, for example, the decline in trials, I think the rise of specialization also makes it harder to be a generalist. One of the great things you have going at MoloLamken is you have a pretty diverse practice, and your lawyers get to do different things, and a lot of other similarly sized firms are very, very focused on one thing.
And so, actually, let's shift to that.
SM: Sure.
DL: You launched MoloLamken almost 15 years ago, in 2009. We know what was going on in the world in 2009. What were you thinking? Why would you launch a new venture during a time of incredible economic turmoil? Why would you leave the safety of Biglaw at that point?
SM: You and many others, I think, asked that same question—you would shake our hands and congratulate us and turn and walk away and say, these people are absolutely nuts!
It was actually a great time to start a law firm because disruption is a litigator's friend, right? When there's disruption, there's disputes. When there's disputes, there's opportunities for lawyers who represent parties in those disputes.
So yeah, that was the nadir of the financial crisis. I guess that would be the nadir of the crisis or the height of the crisis, however you measure the worst part of a crisis, but it was a challenging time. One of the things that we clearly wanted to be able to do when we started the firm was to be able to sue banks. And so we just thought that New York and the rest of the country didn't need another firm to represent banks. And so that worked out really well for us because we had something like 13 of these residential mortgage-backed securities litigations, we helped make the law in those cases, recovered well over a billion dollars for clients in those cases. And it was sophisticated litigation, primarily New York-based, that allowed us to develop and train some of the juniors. That wasn't the only thing that we were doing, but that was one thing where we were being adverse to banks, and we're adverse to banks all the time now too.
Jeff Lamken and I had met in, I think it was 2006, Ron Perelman had sued Morgan Stanley in this case in Palm Beach County, Florida. It was kind of a crazy fraud theory that involved firms getting sanctioned and the general counsel, then-general counsel of Morgan Stanley called me up and said, how quickly can you come to Florida, and how many people can you bring with you? We’ve got to bring in a new firm. And the judge has entered a directed verdict on four of the five elements of fraud.
And there were a couple of other firms that were involved—Jeff had actually worked with one of them at one point in time. At that point in time, he was the head of the appellate practice at Baker Botts in Washington, D.C., after having clerked for Justice O'Connor and been in the Solicitor General's office. And there was a $1.6 billion judgment against Morgan Stanley, which we ended up getting reversed, and judgment entered against Ron Perelman.
When we tell the story of the firm, we say we met on the deck of a sunken submarine. It was so bad we weren't even inside the sunken submarine, we were on the deck of it. So we sent some work back and forth to each other after that a little bit, and worked together on a few things, and then set out to do this because really we saw it as an opportunity to do our own thing where we would have control over the quality of the lawyers that we hired.
The last year that I was at Shearman & Sterling, I think we had 150 summer associates, and Shearman was a great firm then, Baker & Botts was a great firm, but it's very hard to maintain the control, especially when you're doing specialized work like we were doing. And so that was a big motivator, the ability to control our fate more directly in terms of the quality of the cases, how we handled those cases. We had both come from significant, successful careers up to that point in time, where we'd won many more cases than we'd lost, so why not be able to bet on yourself—which we did then, and we have done. We started the firm with five lawyers in two offices, in New York and Washington, and we now have, I think, 43 or 44 lawyers in New York, Washington, and Chicago.
DL: When you and Jeff were thinking about launching the firm, did you prepare any kind of document or business plan or outline for your vision of the firm? And if so, how does that compare to what the firm is today?
SM: We did, we absolutely did. We had an 85-page strategic plan. First of all, we were very mindful of our fiduciary duties to our then-existing partners, and we fulfilled those. But we had an 85-page strategic plan that did not have a number at it. Then we had 50 iterations of the numbers in pro formas that we did. So we really spent a lot of time thinking through what we wanted to do—and it's a great testament to the power of intention and having a clear vision for what it is that you want to do. I’d be lying if I told you that we didn't have problems from time to time with execution, but I think from the beginning it very much was what we wanted to do, and if you read that document today and you saw what we are today, you'd say this lines up pretty well.
And that's basically doing three things: business disputes, broadly defined; intellectual property disputes; and white-collar defense. We do that from the trial courts or arbitral forums all the way to the Supreme Court of the United States—Jeff had an argument just this Monday in the Amgen case in the Supreme Court. It includes being able to bet on ourselves, being able to take risk alongside clients, and having a worldwide presence, which we actually do, notwithstanding the absences of offices, but through our relationships with some really fine lawyers outside the United States and key markets.
So all of those things were things that we wanted to do, and gratefully we've been able to achieve that. But you’ve got to get up every morning and do it again.
DL: Would you like to become the next Steve Molo, a Biglaw partner turned founder of a thriving boutique? This podcast is being sponsored by NexFirm. If you have wondered whether launching a law firm could be the next best step for your career, NexFirm has the experience and expertise to help. Contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com today to learn more.
There are a range of different models for boutiques. You have some firms like Cooper & Kirk that have stayed at their size for the whole time. You have some firms that start out small and then become gigantic, like Quinn Emanuel. You have some firms that land in between, like Susman Godfrey, the firm founded by your late mentor, Steve Susman.
When you and Jeff started the firm, did you have an idea of whether you wanted to be at the size you are now, 40 something lawyers? Did you want to become the next sort of Quinn Emanuel or Boies Schiller? Did you want to stay small? Did you have a thought on that?
SM: We thought we would be 40 to 50 lawyers in five years. In reality, it took us about 10 years to get to that size, but it didn't matter because we made money, we were profitable, we continued to attract great talent, and we continued to attract great cases and clients.
Our focus has always really been about culture and quality. And there can be an inverse relationship between size and quality. There isn't always, but there can be. And we were never interested in doing what Quinn has done—and look, it's worked for them and I'm not in any way critical, but it's different for us. And we think we will continue to grow, we hope we will continue to grow, but in a purposeful way, an intentional way that isn't about just adding revenue or adding lawyers for lawyers’ sake. We're really focused on the culture.
DL: I'm guessing that maybe one of the reasons why you didn't hit your headcount goal sooner is your firm is known for having extremely high hiring standards because you want lawyers who are both amazing lawyers, but you also need lawyers who fit into your culture. Tell us about your hiring process, and is that a fair statement to say that maybe you haven't grown as quickly because you really are very, very selective on your talent?
SM: We're clearly selective, but we you say “as quickly,” we’ve grown just fine at the pace that we've grown. It's not like we've missed some goal there, in a real sense. There's no question that we are highly selective in whom we hire and how we hire. Typically all of our associates have clerked for at least one, but more often now two, federal judges, although sometimes there's someone who clerked on a state court, and they've all gone to great schools and done well in great schools and all of the usual stuff that's there.
We like to hire people who have clerked because by that point in time, they've certainly demonstrated an interest in litigation, and in their own minds they should have a pretty good sense of what they want to do. A lot of people coming out of law school, frankly, especially if you're in a situation like I was, where you didn't really have lawyers in the family or know what lawyers did, those people have a large amount of money dangled in front of them at a large law firm and they think, hey, this is something to do. Or you have student loans that you have to pay off, which is so common. So a lot of times they maybe think they want to do litigation, but maybe that isn't really what they want to do once they realize what it is, or what it is in a large law firm. So by the time they're coming to us, they've had a little time to think about those things. They may have spent a year at a large law firm. It's not uncommon for us to have somebody that's spent a year at a great large law firm and then, somehow with the clerkships, as you know, nowadays it's not so linear where people go to clerk right out of school and they go to another clerkship right out of school.
And then they interview with, now, probably, 25 lawyers over the course of three days maybe. Jeff and I certainly interview everybody that we hire, but it used to be when we were smaller that you'd interview with everybody in the firm. And we really go about it in a thoughtful way, where we have worked with some consultants on the kinds of questions that we ask people.
It's a tricky balance. You want people who are smart, who are competent, and who are willing to take calculated risks and work on their own. People who tend to have the kinds of credentials of the people that we hire tend to be by nature conservative, right? They've gone to the best high school so they could go to the best college so they go to the best law school, get the best grades so they can get the best clerkship. And so often those are not people that are willing to take appropriate risk. So we're looking for that, people who are self-starters. Everybody in the firm is client-facing to a degree, some more than others, but people who can sit down with a client and have the client come away thinking, boy, this is not just a smart person, but a person in whom I have confidence.
And people who are also willing to stick around for a bit. We are not really interested in hiring somebody who's going to be there for a year and want to go off to the U.S. Attorney's Office or the SEC or something like that. The social contract is you get this great mentoring, great experience, but we'd like you to stay around for at least three years or so, so that you get the benefit of what we're doing and we get the benefit of what you're doing. It's demanding, but you know, last year we made eight offers, seven people accepted.
DL: Wow.
SM: And the year before that, I think we made six offers, and five people accepted. These are of the associates coming off of clerkships. And I can't remember where the statistic was the year before, but I think that says something about the process.
DL: So in terms of the strengths of the firm, I think they're obvious. You have amazing talent, you have a really thorough hiring process, you work on some of the most interesting areas of law—trials, appeals, white-collar work, IP—those are four things that young lawyers and law students are very, very interested in.
Tell me about what you think are the limitations of the firm, or things that maybe you don't feel well-equipped as a firm to handle. Are there certain things where you might make a referral rather than take it yourself?
SM: Absolutely. The beauty of what we do—we do what we do extremely well, and that's what we do. So if someone has a tax-related problem, or it could even be tax litigation, or it's sort of what I'll call run-of-the-mill employment-type issues—we're often involved in cases where you'll have a founder or portfolio manager at a fund or senior executive that's in a dispute, and we get brought into those situations—but if it's a situation where it's just a more of a standard harassment situation or whatever, we're not the right firm for that kind of thing.
But what's interesting, David, is that we often do partner with other firms where people have a problem in a substantive area and they want our advocacy expertise. That ranges from very routine matters to bet-the-company matters, where there are great law firms already involved in the matter and the client will, and sometimes the law firm will, come to us and say, we want to add you to the team. That's a significant percentage of our work. I would bet 80 percent of our cases have another law firm involved in some capacity, maybe a co-counsel thing.
I tried a jury trial late last year, and it was a Rule 10b-5 class action for the plaintiff class. The plaintiffs had been prosecuting the case, plaintiffs’ lawyers had been prosecuting the case for five years, and they got a trial setting and they reached out four months before the case was going to go to trial. And we dove in and got ready. I have another case that'll go to trial in the fall in Kansas City, a major antitrust case, where a great, great law firm has been handling the case for the first four years, much more antitrust expertise, case gets set for trial, client reached out and said, well, we're going to keep this other law firm, they're going to stay involved, but we want you to come in because we need trial expertise.
And it's not just me, it’s the firm, because I can't do what I do, Jeff can't do what he does, Justin Shur can't, without the full team available.
DL: It seems like a great model in a way because you get to work on these high stakes, bet-the-company, complex matters, but you don't need to have two dozen associates reviewing documents. You partner with somebody, and maybe they have the two dozen associates reviewing the documents, but you get to do the strategic stuff and the high-level stuff and the trial advocacy.
So it seems that your size doesn't constrain you in that way. Does your size constrain you in other ways, given this ability to partner with other firms?
SM: We really don't feel that it does. And one of the things that we look for when we're hiring people, and one of our main philosophies is that, look, law is a collaborative process. Practicing law is a collaborative exercise, and people should have to be able to do that.
Here’s a great example. We have been involved in the Revlon bankruptcy and Paul, Weiss, a phenomenal law firm, has been debtor's counsel in the matter. And actually while I was on trial in the case that I just mentioned, I was contacted by Paul Basta, who's a phenomenal lawyer there, who reached out and said, will you guys come in? We have a conflict and a claim that's going to be there with Citi, and we can't be adverse to them. So from the very beginning we were involved in that case and in some very, very interesting legal issues, and work shoulder to shoulder with Paul Weiss, and if you're going to do that sort of thing, and if you expect people to come and ask you to do that, right, and be part of a team, you've got to be people who are team players. And I know that's an overused term, but you really do need to be part of a team, be willing to subject your ego to the greater good, not worrying about always being there for the glory on everything, and yet you'll still get your share of it.
DL: Given the challenges of how a lot of things settle, which we talked about earlier, how does one become a successful trial lawyer today, so that you are brought in by the Paul Weisses of the world or by the plaintiff's firms when the thing is about to go to trial? How do you get those reps?
SM: The reps, the mileage, it comes by really trying to get on your feet in any way that you can—and also in our case, being at a firm where we encourage it and we enable it. So that case that I tried before Judge Rakoff, there were five MoloLamken lawyers who got on their feet during the course of that trial, and by on your feet, I mean in front of the jury. So it wasn't just arguing motions, although there was that too, but it was being in front of the jury. We really encourage it. We certainly take on pro bono work that allows people to do it. And sometimes we take cases that are maybe not as economically profitable, or if we were to apply a strict analysis to our time and say “only work on the thing that is the most likely to yield the biggest financial recovery for the firm,” might not be a matter that we take, but it gets people on their feet and ultimately it makes the firm more profitable.
DL: That makes perfect sense. I can totally see that. Do you ever have situations, though, where a client who has come to MoloLamken because of you or Jeff says, oh, Steve, I want you, or I want Jeff, or I want Justin, or I want one of the more-senior lawyers to handle this, rather than an associate or a younger partner?
SM: It happens, but not that often. It may happen, especially at the outset, but usually after they've worked with people for a while they understand that these are people that are really good and that they can trust our judgment if we say we want them to lead a matter or to actually do something in a courtroom.
There are plenty of other lawyers in the firm that try cases besides me. We mentioned Justin Shur, Megan Church, Justin Ellis has a case that's going to go to trial in a few months, Ben Quarmby. There are people that are excellent, excellent trial lawyers. Same thing with the appeals. Robert Kry is good, Mike Pattillo, he just argued a case in the Supreme Court. So there are plenty of very fine lawyers, it's not just about us.
DL: The other thing I'm really struck by in terms of your talent is not only do you have these amazing lawyers who came from these great firms, former Supreme Court clerks, etc., but there's also a fair amount of diversity in your ranks, which is definitely something that firms are paying more attention to in this age.
How do you achieve that? Do you have thoughts on how to build a diverse law firm? People often say, how do I achieve a diverse workforce, especially given the pipeline issue of how sometimes the institutions from which you're hiring are not necessarily that diverse?
SM: That's a great question. We started the firm, as we say, with five white guys. That's the way we describe it. Five white guys, and now, David, 40 percent of our lawyers are from backgrounds that are historically underrepresented in the profession, and we take tremendous pride in that, because as we're talking about now, first-generation lawyer is a thing—I guess I was a first-generation lawyer—but I'm not talking about that. I'm talking about people from backgrounds either through their gender, race, sexual orientation, whatever it may be, that they're from backgrounds that are underrepresented.
You have to work at it. That may seem obvious, but the “work at it” part isn't just the recruiting them, because there's a historic significant failure rate in large law firms of people hiring diverse candidates who come in and they spend a year or two and then they leave, so it's really about creating an environment where people feel they can come and do their best work and be recognized for it and grow as a professional. And frankly we're busy, if we're hiring you we're hiring you because we think that you can contribute. We're not looking to meet some hiring quota that we have during the course of the year.
We really are, for all the reasons that we talked about, committed to the things that are important to lawyers who come to the firm, and we live by our promises. We're very conscious of when we tell somebody something, and we check in on that. We say, hey, are you getting what you expected? Is there something else that you feel like you could be getting? So it really amounts to that. And maybe sometimes in large law firms, people don't realize what that work is going to be. When they get there and they find that they're frustrated because they're not doing as much, given as much responsibility as they feel maybe they would like. So I think that intentionality has been a big part of it.
We're also involved in some of the diversity programs that are important out there today. The Leadership Council for Legal Diversity is one that we're part of. We've had a number of people go through their various levels of programs, and we support that. The one that I think is closest to our heart, our collective heart, is the American Bar Association’s Judicial Intern Opportunity Program, the JIOP program, I don't know if you're familiar with it?
DL: No, actually.
SM: It's a program that hasn't gotten enough recognition, and it basically places students who are from traditionally underrepresented backgrounds with a judge, could be a state judge, could be a federal judge, for six or seven weeks during the summer, and they're paid the princely sum of about $2,700 or $2,800 for that period of time, and then there's a few hundred bucks that go to administrative costs. But it's really transformative for a lot of people to be in an environment like that where it's not like a summer associate situation where you’re trying out for a job—yes, most summer associates are offered jobs—but this is a situation where it's an internship, you're going to do it, you're going to go on, you're not there trying out to be a clerk necessarily, although some of them do go on to become clerks. And the program's very competitive, and it's been very successful.
One of the things that we are doing is leading the effort—and we support it in all three cities in which we have offices, New York, Washington, Chicago—we're leading an effort in New York to create what will be 20 Katzmann Fellows, named after Bob Katzmamn, the late chief judge [of the Second Circuit], who was great and a supporter of the program, and it will be endowed. So we have committed a substantial amount of money ourselves. Sullivan & Cromwell stepped up to the plate. We're in the process of talking to a number of other leading firms to support this.
And it is a pipeline issue, as you say. You can't just throw someone into a fast-paced organization, a high-performing organization, and expect that they're necessarily going to be able to perform at a high level right away. But we think that this is a great, great program, and it matches well with who we are, in terms of how we ultimately hire only clerks as associates. Looking for those sorts of things and being focused and intentional is really key.
DL: That's a great program, and I hope that firms that are interested in joining will reach out to you.
Turning to the pipeline, namely, the nation's top law schools, one thing that I've been covering a lot on Original Jurisdiction are these culture wars, these free-speech controversies that are playing out in many law schools today. Do you have any thoughts on that from where you sit, as somebody who hires these young lawyers and trains these young lawyers?
SM: I certainly do. You'd be blind or a fool as a lawyer not to be paying attention to this because it affects the profession ultimately, and this plays out right now at law school, but ultimately those are the people who are being trained to take the jobs that are going to be representing clients or representing the government and whatever it may be in some way.
My view is pretty simple on this, which is that I believe that law schools are supposed to be the ultimate citadels of protecting free speech and free exchange of ideas, and I'm not talking about hate speech, but speech that may be something that you don't agree with, and in fact you may vehemently disagree with it. But one of the old adages we sometimes say is, we can disagree without being disagreeable. And I think that treating someone who espouses a point of view different from yours—that again is not hate speech, but maybe radically different—in a rude way, in a demeaning way, in an intimidating way, that's a real problem, and it's a particular problem for lawyers in law schools because we often are in situations—not every lawyer, some lawyers have the luxury of representing only people whose views that they are 100% in alignment with—but that's not what lawyers are supposed to do. Lawyers are supposed to be able to represent people, even if we don't agree with the conduct or the position our clients are taking on issues.
It's important that lawyers maintain that balance and even more importantly, that law schools take the steps to protect that balance, in making sure that that's available. Just like I said, at MoloLamken we want to have an environment where people feel like they can come and do their best work. It's a responsibility of a law school to make people feel that whatever someone's political views are, they can come there and they can study and learn and become the best law student and lawyer they can be, without fear of retribution or ostracization, whatever it may be. And it seems like there's a lot of really aggressive activity going on these days, and I think that's unfortunate.
DL: In terms of boutiques, which in many ways the future of the legal profession if you ask me, a lot of them do tend to have an ideological valence in terms of your talking about representing clients where your views may align with theirs. You have great progressive ones, like Kaplan Hecker and Gupta Wessler. You have great conservative ones, like Consovoy McCarthy and Cooper & Kirk.
Does MoloLamken have an ideological valence to it? How would you describe yourselves? If somebody said I'm a progressive, or I'm a conservative, or I'm a libertarian, or I'm a liberal, how do I fit in at your firm?
SM: I would say that if you are a great lawyer, interested in doing great work, and can be collaborative and put the client's interest first, then this is the place for you. If you're coming here to make a political statement, we really don't do that. That's not to say that we're not involved in cases that may be controversial or cases that people may disagree with, or clients that they may not necessarily think are clients that they would necessarily endorse what they've done. But we've really been agnostic about people's political beliefs, and it's consistent with the idea of a diverse law firm. That's not to say that somebody else who wants to do something else should not do that, but that's not who we are.
DL: That's totally fair. That makes perfect sense. And in the talent market, people can self-select into firms, and if they want to go be an ideological warrior, there are great firms to do that.
Before we shift to our final questions, which I've standardized for my guests, let me ask you just one last thing in terms of just what's going on in the world right now. We are emerging from this pandemic after three long years. March, really, I think marks for many people the third anniversary of this, it's certainly when I got very sick with it. What effect has the pandemic had on the legal profession? Feel free to talk about either what you saw at MoloLamken, or what you observed at other firms or the profession more broadly.
SM: Well, first, you scared the hell out of us, anyone who knew you, my God. Just to be thinking that we're sitting here talking today, thinking about the photographs that you were circulating, and the thing that is amazing—because this came up in a case that I was dealing with recently too—how quickly we’ve forgotten how intense that time was. You were a very public part of that at the time, there was no cure, there was no meaningful insight as to how it was transmitted, we had no idea how long we were going to be in the situation we were in with lockdowns and social distancing and everything that was there. Some of the misinformation—we were all washing down our groceries and things like that when they came home, and it's great that we can laugh at it now, especially you, today, but none of us knew any of that back then. And yet we saw people dying. I knew several people that died, and your illness, which was so significant at the time, was really, really frightening. So it's hard to say that you can go through something like that and not have it have an impact on us, right?
I think that the obvious flexibility in the work situation is one that is here for good. Our own practice is we have Tuesdays and Wednesdays that we call anchor days, and people are expected to be in the office those days. People are in the office other days, and obviously if you have something that's going to trial, if you've got a big argument, you're doing moot courts and things like that, people are going to tend to be in more than otherwise. That's what's working for us. I know other firms are being more exacting and requiring attendance and such, but that's a big change.
The other thing that people forget and, and it's always said, and it is true, that there is something to be said for the in-person mentoring. It happens all the time, when we're in the office now and I'm walking by someone's office and we strike up a conversation about this or that. I had no intention of having that conversation with that person, but that person's there, she or I, or he and I, have the conversation, and it advances whatever it is that we're doing.
But there's a harder part to it, which is this: so you don't get that when you're not in the office, but you also don't get—we're talking about political beliefs and culture wars—it's a lot easier to be a culture warrior against someone that you don't really sit across the table from and have a cocktail or a lunch or whatever it may be. And I do think the hardening that we've seen in society, there's many, many, many reasons for it, but it's not helped, and in fact is worsened by, the lack of face-to-face interaction.
DL: That's absolutely true. Some people have wondered whether tensions we've seen at the Supreme Court might be because the justices weren't having their regular conferences and lunches. Certainly at Yale Law School, which had some problems last year, I heard from a lot of students there that they think had a lot to do with the pandemic and things have really gotten better now that people are breaking bread with each other and going to drinks with each other or sharing pizza.
Turning to my final four questions, the first one is, what do you like the least about the law? And this can either be the practice of law or law as a more abstract system.
SM: I think the time that it sometimes can take to get to a resolution for a client. You might have a matter that has a motion that's important to the case that might sit under advisement for a year or more, and that can be very frustrating. And it's very hard for a lawyer to explain that to a client and to explain that there's very little that can be done. So those sorts of things, and then the other delays that sometimes come along, that's a frustration about being a lawyer.
And the other is, I would say lawyers who fail to put their clients' interest first. And for one reason or another, their ego, their own financial motivations, whatever it might be, they're not looking to reach a resolution, or at least a means for a resolution. In other words, if a case is going to go to trial, then let's let it go to trial, let's not draw things out. If it's going to get resolved short of a trial, let's get that done, whatever it may be. And I think we have a lot more, as I say, cases rather than clients. For many people who come to us, it's the only time that will represent them, for a company or for an individual, and it's easier when you don't have institutional relationships that sometimes are harder, where people are balancing the overall relationship. But I do think that those are two frustrations with the practice that I wish we could do something about.
DL: That's very interesting, I hadn't thought about that angle, in terms of how maybe you're better able to represent the client if you just have that representation for a discrete matter.
My second question is, what would you be if you were not a lawyer?
SM: My golf game would not hit me on the PGA Tour or even the LIV Tour. So I think it would probably be something in finance. A lot of the litigation that I handle, a lot of the cases that I handle, are things that have litigation as part of a trade or whether there's a strategic business issue that's there. I was in court in Delaware yesterday with a whole group of great lawyers—Miguel Estrada, Don Verrilli, Ray Schrock, Amy Wolf from Wachtell—involving the sovereign debt of Venezuela. And fighting over our clients and my own client’s several hundred million dollars of Venezuelan debt and things like that.
So that’s an example where the litigation's part of the trade, but it could be in an M&A transaction, it could be all sorts of things. Yeah, I think, something related to finance would probably be a logical thing to have done. And it also allows for creativity, which in my area of the practice of law is something that I get to be creative in what I do all the time. So I think that finance would probably be something that I would've done.
DL: That makes sense, especially given what clients say about how they want lawyers who understand their business, and one of the reasons a lot of funds and other financial companies come to your firm is because you understand their business.
My third question, is how much sleep do you get each night?
SM: Okay, so I have always been someone who's functioned well on relatively little sleep, especially in crunch periods and things like that. But on average—which tends to be very busy—my routine is usually no more than six hours a night.
DL: Wow, I'm jealous.
SM: That’s not to say that there isn't a weekend where I want to just crash. But it's usually about six hours. And I'm an early riser. I like to get up early in the morning and I work out and I have my quiet time to sort through things. I do a lot of reading. But that's what works for me. And I understand that there's a benefit to that, I guess. There was always talk that Mary Jo White functioned on four hour sleep a night. I could not do that, but usually if I get six hours of sleep or so, that's a pretty good night for me.
DL: That puts you ahead of the game, and there has been research suggesting that there is some percentage of people out there who actually can get by and function very effectively with less than average sleep.
My last question: any final words of either career or life advice for my listeners?
SM: When we started MoloLamken, a good friend of mine, Jamie Sprayregen at Kirkland, sent me a note, and the only words in the note were, “Dare to be great.”
DL: Huh!
SM: And that really does say a lot, because the other extreme is Henry David Thoreau's “the mass of men lead lives of quiet desperation.” That can be true in law, but in law there are so many opportunities to do so many great things that are fulfilling, and some of it is that some people just don't want to take a chance, they don't want to take a risk, and lawyers are pretty risk-averse by nature.
But usually the worst thing that's going to happen is that thing isn't going to work out. It doesn't take away all that you've accomplished before then. And we've seen people that bounce around from this place, that place, whatever, but taking the risks—we were talking earlier in this conversation about when we started MoloLamken, walking away from pretty substantial incomes as partners in the firms that we were partners in, and a somewhat predictable course to our careers going forward, that was a risk. And I'm not patting myself on the back in saying that, but I'm just saying it's an example where had it not worked out, we could have presumably gone back and done something similar, if not necessarily at the same firms. And I think that too many lawyers feel trapped and don't want to take that risk or dare to be great, as Jamie would say.
And some people too—for me, if I didn't do this, I would feel like I was really unfulfilled as a person. I had to do this. And not everyone has that driving compulsion if you will, but take the time to think about it. Think about really what is the worst thing that could happen, and don't be so shy about going forward. You’re an example of that on several levels as well too, both from the practice of law to doing Above the Law and then leaving Above the Law to doing what you're doing now, or first doing Lateral Link and then doing what you're doing now. So it's worked out. Follow your hope, your dream, your spirit, whatever it may be.
DL: Well, those are really excellent words to end on. You have dared to be great, Steve, and I believe you have succeeded. Thank you so much for joining me, and thank you again for your insight and wisdom and your friendship over the years.
SM: Thank you, David. Great to be here. Take care.
DL: Thanks so much to Steve for joining me. He’s one of the most deeply thoughtful people I know, whether it’s about litigating a case or launching a law firm, which explains both his success as a lawyer and why he’s such a fun person to interview.
In our interview, Steve talked about the huge amount of planning that he and Jeff Lamken put into the launch of MoloLamken. If you’re thinking about following in their footsteps, reach out to NexFirm, the sponsor of this podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. If you would like to explore this opportunity, contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.
Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.
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The next episode of the podcast should appear two weeks from now, on or about Wednesday, April 19. Until then, may your thinking be original and your jurisdiction free of defects.