The McDermott Discrimination Lawsuit

As a former BigLaw associate and employment lawyer, I had thoughts on the recent discrimination lawsuit against McDermott, Will, and Schulte (known as McDermott, Will and Emery until a recent merger). You can find the lawsuit here, and it is a doozy.

In a nutshell, a former McDermott associate attorney (a woman of color) alleges that at a DEI event at an associate retreat, some of her fellow associate attorneys answered (anonymously, natch) the question “what do you hide about yourself at work” and “what are you most proud of” with such answers as “white pride,” “white skin,” “white power” and “Nazism.”¹ Later, she describes being pulled off of a public-facing role in a major deal in favor of less-qualified white associates.² Then finally, despite receiving glowing praise from various partners she worked for, she was terminated, allegedly in retaliation for her complaints of discriminatory treatment.³

As a former employment lawyer, I don’t know how the fuck McDermott let this lawsuit go public. As expected, it hit all the major legal news sites just in time for On Campus Interviews – when the top law firms are all vying for the top law students in the country, the students with the type of resumes that make clients willing to pay close to $1,000 an hour for a first-year associate who doesn’t know shit and doesn’t know how to do shit (this was me at one point). All of these BigLaw firms pay the same obscene salaries to first year associates – $225K seems to be the going rate these days (it was a meager [lol] $160K back in my day) – so reputation matters in getting top “talent.” Even in the age of Trumpism, all things being equal, top law students are not going to want to go to the law firm where a bunch of snickering frat boys are (allegedly) touting “white power” and “Nazism.”

And that’s just one cost of not settling this case early. The lawsuit will almost certainly succeed against a motion to dismiss, meaning it will go into the “discovery” phase, where the plaintiff’s counsel can request documents and e-mails and force senior partners to sit for depositions. Who knows what dirt that will turn up? And also, these partners that are going to be deposed can bill in the $2,000 an hour range–the time it will take to prep them for depositions is a massive opportunity cost.⁴

I mean how much could it have cost to settle this case before it went public? Mid six figures? Maybe a million? As McDermott itself likes to brag, it brought in $2 billion in revenue last year. Paying off this former associate, who hired a top-flight plaintiff’s firm (which did not attain the title of “top flight plaintiff’s firm” by picking loser cases) would be worth that amount just in terms of avoiding negative publicity.

I’ve worked in employment defense for both public and private entities and this is the kind of short term thinking that would fuck over my public entities all the time. Most of my private entities were aware of the dynamics of an employment case. Title VII cases⁵ allow for attorney’s fees, so the longer a case goes on the more expensive it gets to settle. And if the case is strong enough to get to trial–forget about it. Every person on a jury has been fucked over by a job at least once in their life, and they tend to take it out on employers in discrimination cases. So smart private sector employers tend to settle early and relatively cheaply, before the plaintiff attorney racks up a bunch of billable hours.

Public entities, on the other hand, fall into short term thinking. Given austerity and budget crunches, no matter how bad the facts of a case are public entities would rather kick the can down the road than pay a relatively small settlement up front. A former colleague of mine had a case where a public employer had the opportunity to settle early in the case on the cheap–think five figures–but decided that was too big an impact on its quarterly budget, then the case went all the way to trial and the employer got soaked for a million-plus.

But another dynamic I’ve seen play out are employers who become vengeful when their former employees have the “gall” to complain about their treatment. It becomes “personal” for the employer– counterintuitive given the public’s perception of corporations and law firms being cold, rational actors who weigh risks and rewards in terms of dollars and cents. I had private sector employers who seemed truly offended by the idea that an “ungrateful” former employee would sue them, and wanted to pursue every conceivable avenue to fucking over that former employee. I suspect there may be some of that in this case as well.

Finally, as a former BigLaw associate with the very prestigious, very workaholic, and very evil law firm Wolfram & Hart,⁶ I can relate to some of the complaint. I spent five years at Wolfram, in which I received a lot of praise—much of it reminiscent of the positive feedback detailed in the McDermott complaint. At Wolfram, I was a key member of a trial team that won an 11-figure judgment (yep, double digit billions, though we later settled for $5 billion in exchange for the defendant’s agreement not to appeal). The firm cleared something in the neighborhood of $150 million in billable hours, and another $250 million in contingent fees based on the amount we recovered. It was the type of case that should’ve made careers.

But it didn’t. In fact, less than a year after the trial, myself and two other members of the trial team (almost half the team) had been told we had no future at the firm–basically a soft layoff.⁷ I was given no clear reason for being let go; it was just a brutal review cycle where Wolfram cleared out a bunch of senior associates for newer, shinier first years.

And that’s for a team that fucking won, and won big, and helped make the firm $400 million.

I guess my point is, as a McDermott partner is quoted as saying in the complaint, “sometimes there isn’t a reason.”⁸ Maybe the former McDermott associate got the axe because of discrimination. Or maybe it was just typical coldblooded BigLaw fuckery. We will see what evidence develops, and what a jury thinks if the case gets to trial.

As for my own involuntary exit from BigLaw, I was bitter and angry for a long time. And ashamed. I’d alternate between feeling incredibly wronged, and feeling like I never had what it took to succeed at a place like Wolfram.

But I guess now my thinking is similar to what that McDermott partner allegedly said: “sometimes there isn’t a reason.” Or as a better writer than I once put it, “Forget it Jake, it’s Chinatown.”

1. Paragraphs 61 through 64 of the complaint. I have a source who worked for McDermott who was at this retreat and corroborated that fact, as well as other grotesque, frat-boy-esque behavior by the associates in attendance . ↩︎
2. Paragraphs 113 through 125 of the complaint. ↩︎
3. Paragraphs 150 through 153 of the complaint. ↩︎
4. Also, the type of person who bills $2,000 an hour at a top law firm tends to be arrogant, stubborn, and high-handed–traits that make for a terrible fucking witness. ↩︎
5. The complaint hasn’t alleged a Title VII cause of action yet, but I assume there will be at some point. My guess is that there is an administrative charge of discrimination that is still working its way through the EEOC, which is a requirement before stating a claim under Title VII. ↩︎
6. Name changed to protect the guilty (including myself). ↩︎
7. Soon to be detailed on this blog in a series titled, “My Beshitted Career.” ↩︎
8. Paragraph 121 of the complaint. ↩︎