Why the Imbalance?

By Steven Becker

It wasn’t until I started at HLS that I realized plaintiffs’ law was kind of an unusual path. Granted, I came into law school with a pretty underdeveloped conception of the different legal careers that people pursued—partly because I already knew about the path I wanted to go down, and that was enough for me. But from my near-layperson perspective, it seemed logical to assume that at least, I don’t know, maybe a quarter of students would pursue careers in plaintiff-side civil litigation (“After all,” I thought innocently, “law is, of course, one half criminal and one half civil, of which half is plaintiff and half is defense, right? So, naturally, 50% * 50% = 25%”). It didn’t take long for me to realize how wrong that was. It’s taken longer to accept the bitter reality that, no, not only is plaintiff’s law not a commonly pursued career path, but it’s not even a commonly known career path at a place like HLS.

To that, I want to make a (perhaps not-so-bold) proposition: this didn’t just happen. The expectation-defying imbalance I found in the prevalence of plaintiff and defense-side careers among top law school graduates is not some kind of natural, politically-neutral-but-unfortunate development. The intuition I had that the field of students who go into civil litigation should be about evenly split between plaintiff and defense may have been naive, but it wasn’t stupid. After all, I assumed that many people would have gone through the same essentially reasonable thought process I did—that being choosing whatever career best marries a) the thrill of high-stakes litigation, b) the stimulation of working with complex and cutting-edge legal issues, c) the security of making a comfortable living, and d) the satisfaction of knowing you are helping every-day people who have been harmed. The way I saw it—and still see it—no legal path other than plaintiff-side litigation can meet all four.

So what’s responsible for this imbalance? Put simply: it’s a matter of corporations defining “prestige” to meet their needs. After all, the concept of prestige is one that is almost by definition tied to the interests of the ruling class. It’s not complicated: if those with money systematically and universally disfavor something, it’s gonna be harder for that thing to gain status as prestigious. This is a problem for the plaintiff’s bar for two reasons: first, there’s nothing that influential corporations systematically and universally hate more than being sued; and second, there’s nothing that elite law students love more than prestige. You can actually write it as a chain of causation: plaintiff’s law ⇒ bad for corporations ⇒ not traditionally prestigious ⇒ not favored by law students.

The way I see it, the key to making plaintiff’s law as popular as it ought to be among law students is to break one of the links in that chain of cause and effect. But which one? Well, plaintiff’s attorneys are never going to (and never ought to) be liked by corporations; and students at a place like Harvard Law School are never going to not chase prestige. But there is a link we can break: we don’t have to let prestige be defined by corporations. Already, dozens of plaintiffs’ firms across the country are severing that link—building crisp public presences, making their deep legal impact and rigorous expertise known, and cementing their status as on par with any other giants of the legal field. But that by itself won’t be enough to break the law-school-to-defense-firm pipeline unless law students know about that status. And that’s where we, the plaintiff-side community—students, professors, and practitioners—have our work cut out for us. It’s a long job, but it’s an important one.

Steven Becker JD ’23 is Communications Chair of HPLA.