At Counsel Table: The Craft & Business of the Courtroom Lawyer

Appreciating Why Our Clients Appreciate Transparency

Posted by on Jul 17, 2014 in Developing Clients, Solo Law Practice, The Business of Practicing Law, The Craft of Lawyering, When You Are Sued | 0 comments

Cleaning Glass“I think in this age, optimism like that … it’s a revolutionary act.” — Jerry Maguire

Transparency in the practice of law was not included in my law school curriculum. Was it in yours?

In fact, it wasn’t until I launched a solo practice, 20 years in, that I began to appreciate, as I never did as an associate or Biglaw partner, the value clients place on transparency. No longer representing large, well-heeled or well-insured companies, in which my contact sits in his air-conditioned cubicle at the Home Office in Indiana or wherever, comfortably removed from the collateral damage and financial pain of a lawsuit, these days I deal daily with local mom-and-pop employers for whom the costs of litigation alone could spell financial ruin. These clients not only desire transparency — they feed on it.

What do I mean by transparency? Since I’ve already alluded to litigation costs, let’s start there. My clients from the days of yore nearly always demanded extensive and detailed budgets, often keyed either to the American Bar Association Uniform Task-Based Management System Litigation Code or something more proprietary. These days, my clients — small manufacturers, restaurants, retail and property management concerns — are typically unaware it’s even appropriate to ask for a budget.

Well, it is. And they should.

My argument here is not purely altruistic. If anything was hammered into my head during my two-decade apprenticeship for solo law practice, it was this: I’ve got to get paid! Businesses unfamiliar with the messy business of litigation, who aren’t burning off insurance, are invariably in for a rude awakening when they receive their first bill. If small business owners get heartburn when they receive their lawyer’s bill for negotiating a lease (they do), the bodily response to a litigator’s bill can be more like a heart attack.

This is not to suggest we haven’t legitimately earned our fees, or even that the business owner begrudges paying us — the topic for a different discussion. Rather, it may be they just can’t, and neither of us knew that until he opened my bill.

Sometimes the problem is definitional. Each of us has our own idea of what “expensive” means. Take, for example, an out-of-state deposition. When I tell a client, “we could do that, but it’s likely to be ‘expensive,’” I could be thinking, but leaving unsaid, that $8,000 means “expensive” (my last out-of-state deposition, to Nome, Alaska — literally!). Having no frame of reference for the cost of a lawyer traveling to Alaska and taking an important deposition, my client might be thinking a third or half of this amount is still really “expensive.” When he opens my bill, it’s time to call 911. Fire up the hearse!

Speaking from my own experience, I find my biggest reluctance in being transparent about the anticipated costs of doing something beforehand (it’s all too transparent on the invoice afterwards), results from a fear that the client won’t agree to something I think is necessary. This fear is legitimate. I want to win and some steps are necessary to win (like a deposition in Nome, where the plaintiff lives).

On the other hand, unless I’m prepared to do the work pro bono for my client’s estate (remember it was my invoice that killed him), I’m simply deceiving myself. If anything, the solution to this dilemma is greater, not less, transparency. By this I mean spelling out in writing the recommended action, the reasonably anticipated cost, and the expected consequences if the action is not undertaken. If the client can’t or won’t pay for it, that’s a discussion to have before my plane touches down in Nome.

Strategy is another area where clients appreciate transparency. Hearken again back to my days representing Fortune 500 companies. While my client may have been emotionally removed from the pain and cost of the lawsuit, he or she was usually intellectually involved in the development of our strategy. Detailed reports, including both a discussion of the strategy and the likelihood of success, were de rigueur.

My small business clients are all over the map on the topic of strategy. Some demand to know every detail and want to collaborate, while others just want to sit in the back seat, blissfully unaware whether what I’m doing — and what they’re paying dearly for — is reasonably calculated to actually work. I understand this thinking, and it actually makes my job easier, but I don’t generally countenance it. Why? Because the only surprise worse for my client than opening that bill for the Nome deposition is learning, as we file into the courthouse for closing arguments, that our case isn’t so good.

As I see it, three main reasons prevent us from being completely transparent with our clients on our strategy and chances of success. First, some clients would just prefer to keep their heads in the sand. As I’ve said, this tendency must be resisted. Second, we don’t feel comfortable trying to explain legal strategy to nonlawyers. Every lawyer has experienced this discomfort in his or her career; some experience it daily. Trial lawyers need to get over it, though. If we can’t confront the difficulties of explaining how we intend to apply the law to the evidence to a business owner, how can we reasonably expect to succeed in teaching these principles to jurors, who are only vaguely interested and often less sophisticated, when it comes time for closing argument? The third reason why we shy away from being transparent with clients about strategy is that we haven’t developed a strategy yet. Let me gently suggest that this could be a problem.

I want to suggest that transparency is not a lofty, or overly ambitious goal. It is as important for lawyers as it is for clients. Not only does transparency reduce the frequency of unpaid legal bills, it instills confidence. Long-term clients generally prefer to play the role of partner, rather than purely customer, and transparency fosters feelings of inclusion in the decision process. Finally, for those of us looking for another way to stand out among our peers, appreciating how our clients appreciate transparency is an excellent opportunity.

[This article originally appeared in the Los Angeles Daily Journal]

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Avoiding The Perils of Unpaid Interns

Posted by on Jul 3, 2014 in Careers, Employment Law | 0 comments

treewwAs we greet Summer, employers may be tempted to offer internship programs to provide students and others valuable real-world experience in their industry. An internship can be a terrific opportunity for both the intern and the employer. However, unless the intern is paid and treated exactly like other employees, in compliance with wage-hour laws, for-profit employers may be violating the law and risking a costly claim or lawsuit.

The U.S. Department of Labor (DOL) has provided the following six-part test for-profit employers should use in evaluating whether they can offer an unpaid internship program without violating wage-hour laws:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.

2. The internship experience is for the benefit of the intern.

3. The intern does not displace regular employees, but works under close supervision of existing staff.

4. The employer derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded.

5. The intern is not necessarily entitled to a job at the conclusion of the internship.

6. The employer and the intern both understand that the intern is not entitled to wages for time spent in the internship.

The DOL has said that, if all six factors are met, then an employment relationship does not exist under the Fair Labor Standards Act (FLSA).

What About Nonprofits?

The DOL has said that this six-part test for unpaid interns applies to for-profit employers, and that the FLSA recognizes an “exception” for “individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations.” This is consistent with California Labor Code Section 1720.4.

However, nonprofit organizations using interns or trainees, should avoid paying the individual a stipend, unless it is sufficient to meet the otherwise applicable minimum wage requirements. While it may be appropriate to reimburse interns or trainees for certain out-of-pocket expenses, a stipend below the minimum wage suggests the intern or trainee is actually an underpaid employee, and can expose the organization to wage-hour liability.

Workers’ Compensation?

Both for-profit and nonprofit organizations that otherwise legally use unpaid interns should still take steps to reduce their exposure in the event an intern suffers an on-the-job injury. It is wise to review the organization’s workers’ compensation insurance policy to ensure the organization is covered in the event of an accident or injury.

Employers planning to use unpaid interns or trainees are wise to consult with a knowledgeable employment law attorney.

Channel Your Inner Miles Davis on Cross-Examination

Posted by on Jun 27, 2014 in The Craft of Lawyering, Trial | 0 comments

mdIf it’s possible for any living trial (and appellate) lawyer to qualify as a rock star, David Boies unquestionably deserves that title. In the Review section of the Wall Street Journal last weekend, Boies said this about the need to improvise during cross-examination:

“This is jazz; it is not a symphony . . . This is Miles Davis; it’s not Beethoven”

This echoes something I discussed in an earlier post, calling on the writings of Malcolm Gladwell, on the topic of successful spontaneity in the courtroom. In a nutshell, Gladwell writes about similarities between improvisational theatre and armies entering battle and the need for both to meticulously prepare in advance, which frees them to be spontaneous in the moment. Because there’s probably no greater example of a writer’s narcissism than self-quoting, I’m going to quote myself discussing Gladwell. Here goes:

“Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as ‘creating the conditions [necessary] for successful spontaneity.’

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.”

While the focus of that post was on advance preparation as the key ingredient to successful spontaneity, Boies is advancing a slightly different message. While he echoes several successful trial lawyers I’ve written about on this blog on the need to work hard to prepare for trial (“‘It’s a question of how much they want to win,’ he says of his opponents. ‘Do they want to win more than going to the opera?’”), the main message is the need for rest to maintain the ability to be spontaneous over the course of a lengthy trial. The WSJ article says:

“During a trial, Mr. Boies keeps a disciplined schedule. Though his staff may work through the night, he makes sure he sleeps for eight hours since he’ll be the one in the spotlight. ‘If I don’t do that, over a long period of time I’m not going to be able to do what I need to do in court.’ He says that it’s especially important to be able to improvise during cross-examination, coming up with new questions.”

I want to argue that, for most of us, who are not leading a giant trial “team” for clients with endless budgets, advance preparation is still the answer. This is because you have a choice: you can make it a goal to complete most of your trial preparation before trial begins, or prepare at the last minute, every night. If you’ve sufficiently prepared in advance, it’s more likely you can make it to bed by midnight than if you’ve waited until the night before to prepare your cross. I’m just sayin’.

Why Would Anyone Leave BigLaw ?

Posted by on Mar 30, 2014 in Careers, Developing Clients, Solo Law Practice, The Business of Practicing Law | 0 comments

llkkooWhen I was a law student, I understood BigLaw to be the holy grail of law practice in America. A complete stranger to the profession, all I knew was that getting an interview and a chance at a prestigious, high-paying summer clerkship at a well-respected powerhouse, say Skadden, or O’Melveny, was what (it seemed like) everyone wanted.

Sure there were rumors that young associates sold their souls and worked 90 hour weeks, but that came with the territory, didn’t it? Weren’t we all going to work hard?

Well, a BigLaw interview and offer eluded me in my early years, but I was still lucky enough to get a good job at a boutique litigation firm, and instead of making $80,000 my first year out, I made about $57,000. No big deal. But I continued to remain irrationally impressed with the big firms. And why not? They paid better–especially in the late 1990s, when the Silicon Valley challenged New York’s historical leadership in the race to throw huge sums of money at newly-minted lawyers who could barely sign their own name. Big Firms got the bigger, more interesting work. Sitting in court, it even seemed like judges accorded Big Firm litigators an extra measure of respect.

Naturally, then, I felt a combination of pride and “I’m not worthy” glee when, in my 10th year of practice, owing to a complicated series of mergers and acquisitions, I found myself elevated to non-equity partnership in an AmLaw 150 law firm. That was just over 10 years ago. As anyone who reads this blog already knows, I just recently said goodbye to BigLaw to launch my own solo law practice.

In the weeks since I announced this plan, I’ve been repeatedly asked why I’m leaving BigLaw to go solo. I think this is a reasonable topic to address. First, I’ve been disabused of the notion that the brightest minds belong in large law firms. While I felt nothing but pride in the intelligence and skills of my colleagues at Dykema, I’ve come to realize that there are amazing lawyers everywhere, not just in big firms. In house lawyers, government lawyers, sole practitioners, small partnerships, public interest lawyers–there’s no shortage of legal talent throughout our profession. 

But, more important to my professional goals, I came to realize that a large law firm was not the proper platform from which to pursue the kinds of clients that increasingly interested me: small businesses. BigLaw firms are indispensable when global titans want to sue one another over a patent violation, or when a company like Facebook goes public. I recognize these are extreme examples and there are plenty of smaller lawsuits and transactions in which it is handy to have 8-10 (or more) high quality lawyers available at the drop of a hat.

But I do think that, in most instances, small businesses have no business hiring a BigLaw firm, even a second or third tier BigLaw firm with rates that are less than stratospheric. This is because, at least in my experience, the goals and priorities of small businesses are fundamentally at odds with the BigLaw mentality. Sure, a small business can engage a mammoth firm to handle an isolated business or employment dispute. In all likelihood, the business will get stellar representation. But, whether the client realizes it or not, both the client and the matter are the firm’s lowest priority–even if the BigLaw partner handling the matter feels differently. Unless the isolated small business dispute is a “one off” situation for the BigLaw partner, he or she is trying to build a book of business from the wrong platform. Simple fact.

There were other aspects of BigLaw practice–or any firm practice–which I came to feel were incompatible with my personal and professional goals. I alluded in an earlier post to the “squeeze” lawyers experience when trying to balance a law firm’s productivity demands with the time commitment necessary to building a book of business. Unfortunately, there are no easy solutions to this, since each member of the firm must generate a certain amount of revenue if the firm is going to be profitable. Until a lawyer is controlling and leveraging substantial business, he can only be profitable by billing hours (at least in the BigLaw model).

Another aspect is the substantial overhead necessitated by offices in many states (or countries) along with a substantial infrastructure available to service the needs of several hundred lawyers. Anyone who has done the math knows that we work a substantial part of every year supporting our salary and the firm’s overhead before we generate a dime of profit. I am pursuing a solo practice because (1) I can control my own firm’s overhead, which (2) makes it possible to build a book of business without feeling the aforementioned productivity time-business development time “squeeze.” Or at least the squeeze seems more tolerable.

Make no mistake: I value the experience I gained as part of a BigLaw firm. If I had not had the experience, I would always have wondered what I’d missed. But, in the end, every lawyer must find the platform from which he can best build a profitable book of business. I’m betting my immediate future on a solo practice platform.

A Quest To Consistently Over-Deliver

Posted by on Mar 21, 2014 in Careers, Developing Clients, Solo Law Practice, The Business of Practicing Law | 0 comments

silver-platterOne of the very best parts about starting a new business is the ability to imagine exactly what you want the business to look like, and then make that happen. I recognize this can be both a gift and a curse. After all, if you don’t have a very clear idea of exactly what you want to do and how you want to do it, you don’t have the luxury of letting someone else decide. Fortunately, I don’t have this problem.

An interesting new company that caught my attention over the last several months, Harry’s makes and sells men’s shaving essentials. For a long time, it seemed like the market for these products was divided between über-expensive, hand-crafted products on the one hand, and a plethora of same-same boring, disposable, but affordable, shaving products on the other. Then Harry’s came along and disrupted this market, in much the same way its founders, Andy Katz-Mayfield and Jeff Raider, brought a fresh approach to shopping for stylish but affordable prescription eyewear with Warby Parker.

Why am I talking about shaving products and eyeglasses? Because in both instances, the company managed to do exactly what I want my law practice to do: consistently over-deliver. Harry’s razors are not expensive. I think they range from $10-20 for the well-made handles, with the expectation that male customers will regularly re-order the company’s high quality replacement blades and shave cream (they recently purchased the German factory that manufactures the blades). So, for slightly more than the price of the latest iteration of a plastic Gillette Mach-Facescrape XXVII or whatever, you get a sturdy shaving implement that feels like . . . quality.

Apply this same combination of craftsmanship, attention to detail and affordability to prescription eyeglasses and you’ve got the Warby Parker model.

My goal is to be neither the cheapest nor the most expensive employment lawyer in Southern California. Just as you can buy cheap disposable razors and drugstore eyeglasses, there are plenty of lawyers so desperate for work they will offer their services at unsustainably low rates. There are also lawyers looking for ways to gouge their clients. Me? I simply want to bring value. I want to make my clients feel, not just that they got what they paid for, but that they got more than they paid for. That I over-delivered.

J. Dan Hull, justifiably world famous for his “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service,” shuns the notion of simply over-delivering. He says our clients already have such low expectations of lawyers that simply exceeding them won’t do. Instead, Dan admonishes us to “Deliver legal work that changes the way clients think about lawyers.” He says:

“Rather than “under-promise/over-deliver”, which is essentially job specific, why not change the way people think of lawyers generally and what they can expect from them generally? Get good clients–those clients you like and want–to keep coming back to you by communicating in all aspects of your work that you care deeply about your lawyering for them, you want to serve their interests on an ongoing basis and that it’s a privilege to be their lawyer. Show them you fit no lawyer mold.”

I don’t know. It seems like we’re really saying the same thing. You can only change the way clients think about lawyers by consistently over-delivering, and this happens one job, or case, at a time. Hence the quest to consistently over-deliver.

The Start-Up of You (And Everyone You (Do And Don’t Yet) Know)

Posted by on Mar 8, 2014 in Books, Careers, Developing Clients, Solo Law Practice, The Business of Practicing Law | 0 comments

Blank book cover w clipping pathIn the weeks leading up to launching my own firm, I was hungry for resources and, frankly, inspiration. Someone had loaned my wife a copy of The Start-Up of You, co-authored by LinkedIn founder Reid Hoffman and business journalist Ben Casnocha. If there is a book with a title better fitting what I’m doing, I can’t think of it.

The book is a breeze. Hoffman reaffirmed my belief that most of the billionaires starting up these companies that strike it huge really are a different breed and, far more than any politician, hold the keys to our collective future.

While parts of the book do address the topic suggested by the title, e.g., who you are and where you are going with your career, either on your own, leading an enterprise or as an employee, its real strengths are found in a topic close to Hoffman’s heart (and wallet): one’s network. If you’re reading this and aren’t yet on LinkedIn, and don’t have an idea of its (absolutely FREE) capabilities, then you’re missing out on the biggest resource out there. Unless, of course, you’re career consists of measuring the shade under a rock.

Hoffman’s view is that everything in finding and building your career and future revolves around the size and strength of your network. And he makes a good case. Here’s how he lays out this premise:

“Even if you realize the fact that you are in permanent beta, even if you develop a competitive advantage, even if you adapt your career plans to changing conditions — even if you do these things but do so alone — you’ll fall short. World-class professionals build networks to help them navigate the world. No matter how brilliant your mind or strategy, if you’re playing a solo game, you’ll always lose out to a team. . . teamwork is eminently on display in the start-up world. Very few start-ups are started by only one person. Everyone in the entrepreneurial community agrees that assembling a talented team is as important as it gets.” (Id. at 83.)

Not surprisingly, Hoffman takes ample opportunities to show off how active users of his product–LinkedIn–have a real advantage in building and nurturing their networks. Time-out here for a personal, real-world testimonial. I’m writing this at the end of my first week as a sole practitioner, as a true blue Start-Up. All the days, months and, frankly, years, leading up to this week I’d been quaking in my boots believing that I’d find myself sitting in desperation by a silent phone, waiting for it to ring with a possible client. Anyone who’s gone from a firm to a solo practice knows the feeling. Alas, this didn’t happen! It turns out that, as a direct result of my career update, that featured on the LinkedIn timeline of each of my 1200+ LinkedIn connections, I received two solid referrals that I converted into two brand new paying (I hope) clients! It’s pretty hard to argue with this result, wouldn’t you say? If you’re still not on LinkedIn, and referrals play a role in how you get business, you’re missing out. I’m just sayin’.

Back to Hoffman. He illustrates how one’s network, at least as quantified and managed on LinkedIn, is exponentially larger than one might imagine. For the benefit of anyone not familiar with how LinkedIn works, anyone who accepts an invitation to connect with you on the site is part of your network of “1st degree connections.” But, contrary to what you might intuitively believe, your network does not stop there. It also includes a collection of people who are connected with your 1st degree connections. These are your 2nd degree connections. And anyone connected to your 2nd degree connections are, you guessed it, 3rd degree connections.

What I found most interesting about the book is Hoffman’s argument that expanding your circle of so-called weak relationships can expand opportunities in ways that focusing solely on maintaining and nurturing your relationships with “allies” or those close to you will not. Certainly allies will be the first to come to your aid and do whatever they can to further your cause. But, Hoffman points out, your closest relationships are not likely to expose you to new, different and varied opportunities. Invoking a 1970s study by sociologist Mark Granovetter, Hoffman writes:

“[S]o-called cliques . . . are groups of people who have something in common . . . limit your exposure to wildly new experiences, opportunities, and information. Because people tend to hang out in cliques, your good friends are usually from the same industry, neighborhood, religious group, and the like. The stronger your tie with someone, the more likely they are to mirror you in various ways, and the more likely you are to want to introduce them to your other friends. . . .

In contrast, weak ties usually sit outside of the inner circle. You’re not necessarily going to introduce a looser connection to all of your other friends. Thus, there’s a greater likelihood a weak tie will be exposed to new information or a job opportunity. This is the crux of Granovetter’s argument: Weak ties can uniquely serve as bridges to other worlds and thus can pass on information or opportunities you have not heard about. We would stress that it’s not that weak ties per se find you jobs; it’s that weak ties are likely to be exposed to information or job listings you haven’t seen. Weak ties in and of themselves are not especially valuable; what is valuable is the breadth and reach of your network.” (Id. at 105-06.)

Again, it’s this insight about the relative strength and importance of what we would otherwise consider weak relationships that I found to be the book’s most original and compelling point. I recommend The Start-Up of You to anyone for whom a broad network is a crucial component for success. According to the book, that’s pretty much everyone.

My Newfound Obsession With Process

Posted by on Feb 15, 2014 in Solo Law Practice, The Business of Practicing Law, The Craft of Lawyering | 4 comments

???????As the launch date for my solo practice approaches, I find myself obsessed in a way I never was before in my law practice about the subject of process. I have developed the belief that my own practice is far more likely to be both successful and satisfying if I establish a solid set of systems for how my business will operate.

This isn’t brain surgery, of course. I’ve been influenced by blogs I’ve read and the excellent law practice start-up books by Carolyn Elefant and Jay Foonberg. Specifically on the subject of process, however, I learned a lot from The E-Myth Attorney, by Michael Gerber, Robert Armstrong and Sanford Fisch.

The central notion of The E-Myth Attorney, about which I’ve previously written, is that law firms, whether a solo practice, small partnership or large firm, should adopt and meticulously implement specific systems for every single thing the business does, from greeting clients, to filing papers to making coffee. Ideally, under the E-Myth model, these systems will be reduced to a handbook that can be handed to every new employee as they walk in the door. As Gerber, et al. write:

“With the right systems, your law firm will . . . reflect your vision about practicing law. What is going to make your firm unique? Why should prospective clients pick your firm over all others? What special place will your practice occupy in the community?

In the beginning, maybe it was just about the money. Get the clients in the door and start generating as many fees as you can. But we all know that’s not a sustainable business model and, more importantly, will not ultimately serve you or your clients.

But when you implement systems, you create the machine that can work independently of you. You give your employees the roadmap they need to do the things that need to get done.

•  This is how we greet clients.

•  This is how we draft documents.

•  This is how we take a deposition.

•  This is how we prepare for trial.

•  This how we manage our finances.

•  This is how we generate leads and convert them into retained clients.

•  This is how we hire great people.

And so on and so on . . .” (Id. at 66-67.)

Applying this concept to my own world, what kind of systems am I developing for my new practice? First, a major priority for my firm is to be as paperless as possible while maintaining a reliable filing system. While litigators in California are still required to serve documents in paper by mail (in addition, perhaps, to email or fax service), I think this practice will soon be history. Already most courts I deal with do fax and electronic filing. Most lawyers I deal with prefer to receive documents by email. So, I suspect there will be only limited need to serve or hand-deliver anything in paper form before too long.

Embracing paperless practices, if done systematically, will reduce overhead associated with having a file clerk (or, gasp, doing it myself), and it will reduce storage space (and attendant cost). Using the system I’m developing will, moreover, make it easier to instantly access a document without the need to carry large, bulky files with me wherever I go. So, the system will be to convert any document I receive by mail, fax or email into a pdf file that can be saved–and is immediately saved–in an appropriate sub-sub-sub folder created for a particular client, matter, category (discovery) and sub-category (interrogatories). Again, I recognize that this isn’t rocket science, but it is one example of how I’m focusing lots of energy at the outset in developing systems for each aspect of my practice that can be reasonably systematized.

Of course, not everything can be done according to a system. Part of the reason lawyers are in demand and charge a financial premium is that we are taught not to think one dimensionally about a legal problem. In other words, the solution to a problem that best serves my client might not be the most obvious solution. It might require an innovative approach that is exactly the opposite of what our system would prescribe. But this is not an exception that swallows the rule. Rather, it is by subjecting tasks that are logically capable of systematization to a rigorous system, that we are freed up to devote time and mental energy to solving our client’s most complex problems in innovative ways.

Taking The Plunge–Going Solo–But Not Without A Plan!

Posted by on Feb 3, 2014 in Careers, Solo Law Practice, The Business of Practicing Law | 11 comments

A diving dachshund pursues a sinking tennis ball underwaterAlmost exactly two years ago, I enrolled in the excellent 14-week class, provided by the Women’s Economic Ventures (WEV) organization in Santa Barbara, on how to write a business plan and start a business. You see, six months earlier, while recovering from emergency surgery to repair the first (of two) detached retinas, I had a vivid and exciting dream about leaving my firm and opening a solo law practice. Well, on March 1st, I’m finally doing it!

My wife had taken and absolutely loved the WEV course to develop her own business plan (to start a unique school for adult women). When I told her about my plan to open my own law practice, she absolutely insisted I take the WEV class, even though I’m . . . not . . . really . . . a woman. Q’est que c’est?  you’re wondering.

It turns out that, despite the moniker, the Women’s Economic Venture classes are open to men. Or men who are brave enough. Out of a class of 30, only 3 or 4 us were men. But I really found the class to be practical and useful. It forced me to think about all sorts of important things crucial to successfully starting a business that I would probably not have thought about until I was 15 months in and potentially struggling.

Like what, you ask?

For starters, there’s cash flow. Even if I am lucky enough to have a plate full of paying work the day I open my doors, under most billing models I have to do the work, submit an invoice, then wait to get paid. I might wait 30 days, or 60, or 90, or . . . Unless I had a bottomless well of cash (if I did I’d lawyer pro bono, or do something else entirely), doing a cash flow analysis as part of a business plan was the only way to have the slightest clue how much I’d need to set aside to get started. And even then I can only forecast how much I’ll bill, how much of that I’ll collect and when I’ll collect it. Educated guess work, but guess work none the less.

Then there’s a marketing plan. I’m not foolish enough to think that being a good lawyer is enough. According to the State Bar website, there are 181,474 active lawyers licensed to practice in California. I’ve got to somehow differentiate myself from the other 181,473 lawyers in order to get hired. Unfortunately, being tall isn’t enough. But the WEV program provided a lot of help in this, including some excellent written materials and exposure to marketing professionals who volunteered their time to help students shape marketing plans.

These are both critical pieces of the puzzle of starting a business from scratch that I could have foolishly skipped over, thinking that two decades of practicing law was preparation enough to jump ship and start rowing. Or swimming. Or treading water. Or . . . Apparently, I’m not alone. While Carolyn Elefant, writing in Solo by Choice (Decision Books 2008), which many consider the Bible of launching a solo law practice, advocates starting with a business plan, she also recognizes that not all solos share this view. She writes:

“For other lawyers, though–especially new or aspiring solos unable to identify immediate sources of revenue–a formal business plan might seem like an exercise in futility.” (Id. at 246.)

But, again, Carolyn urges against falling into this trap:

“Quite the contrary. A ‘business plan’ (which is just business-speak for a simple outline that helps you look ahead, allocate and prioritize resources, and identify future opportunities) will be extremely helpful whatever your circumstances.” (Id.)

One part of the business plan that I would easily have skipped, had I not been doing a class, is the development of a mission statement. It’s not that a mission statement is such a foreign concept. It’s just that I see a mission statement as the kind of guiding principle for larger entities, corporations and nonprofits. Why would a solo employment defense lawyer need a mission statement?

It turns out that this process of formulating a mission statement, even if it’s never communicated to anyone, is a good exercise for understanding why you’re launching your own practice at all. While I recognize there are lots of new lawyers who might be going solo out of necessity, if you’re making the move from a comfortable position in a large or small firm to the uncomfortable, but exhilarating, position of a small business owner with no safety net, it’s a good idea to think about why you’re doing it and what you want your business to look like.  Carolyn Elefant echoes this sentiment:

“A mission statement embodies all that you hope to accomplish in starting your firm. It articulates your vision of what you want to create. Most of all, a mission statement serves as a beacon for your practice, a light that helps illuminates [sic] your path on those days when the judge tears you apart in court, when opposing counsel drives you to tears with insults, or when a problem client brings a disciplinary action against you.” (Id. at 251.)

And my own mission statement? Are you interested? Here goes:

“The Craigie Law Firm exists to provide small and mid-sized companies with a cost-efficient alternative when facing an employment claim or lawsuit. By combining skilled lawyering with a clear explanation of each step in the dispute resolution process, and a sincere willingness to work under alternative fee and billing arrangements, the Firm strives to bring confidence and predictability to the challenging circumstances of a lawsuit.”

It’s kind of weird to read it again after some time has passed. On reflection, I would probably change it slightly. Specifically, I’ve always prided myself on being a litigator–a courtroom lawyer–who’s strongest skills are dispute advocacy. Hence, the mission statement’s focus only on clients “. . . facing an employment claim or lawsuit.” In the two years since I crafted this statement, however, I’ve really come to appreciate the preventative role an employment lawyer should play in his client’s business. So, a revised mission statement would probably give dispute prevention equal billing with dispute advocacy.

I’m candidly elated at the prospect of launching my own practice. Wish me luck.

Learn To Negotiate Like A Transactional Lawyer

Posted by on Jan 27, 2014 in Alternative Dispute Resolution, Negotiation, The Craft of Lawyering | 0 comments

negotiationI recently had lunch with  Mark Fingerman, a Los Angeles lawyer who has successfully transitioned from being a litigator to a full-time mediator. As I often do, when I get an opportunity to talk shop with mediators, I asked Mark some of his tips for successful negotiation. To my surprise, although Mark had been a litigator his entire career, his advice was to go a different direction entirely. “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”

This notion immediately made a lot of sense. After all, while it’s the mission of a transactional lawyer to get the best possible deal and terms for his client, their negotiations should very rarely result, as it so frequently does in the litigation context, in a stalemate. While a party to a lawsuit will sometimes view proceeding to trial as the best alternative to a negotiated agreement (aka “BATNA”), the job of transactional lawyer is generally to reach agreement and get the deal done.

While Mark’s advice made a lot of sense to me in the abstract, I started thinking what does this mean? What does it mean to negotiate less like a litigator and more like a transactional lawyer?

I followed up with Mark after our lunch, and suggested this might be fertile ground for a blog post. He was pleased for the opportunity to explain his statement in more detail, and also suggested that this very topic is one that he covers extensively in a CLE program he offers to law firms and bar associations called Mediation: Prepare to Succeed.† Here’s what Mark said:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

A major difference I see in Mark’s approach from the approach we typically take is his shunning of our common tendency to try to leverage the mediator to apply pressure on our opponent that we cannot otherwise apply. This is indeed a departure.

After all, we often draft extensive mediation briefs, with cites to specific exhibits, that are little different from the brief we might submit if the neutral were sitting as an arbitrator who would issue an award, and not a mediator engaged to facilitate settlement. In an earlier era, it was common to do a mini-presentation of the arguments and evidence we expect to present at trial. In sum, we attempt to persuade the mediator of the merits of our case, with the hope she will step into the next room, caucus with our opponent, and, acting as our “super advocate,” pound them into submission.

So, if there’s no pounding, what should go on? Just as Mark points out, the mediation becomes less about applying pressure and more about “focusing . . . on reality and problem solving.”

This is all good. But I still found myself wondering more about how transactional lawyers approach negotiations. So I consulted a book about lawyering from the perspective of a career transactional lawyer. In Lawyering: A Realistic Approach to Legal Practice, M&A specialist James C. Freund says this in his introduction to the discussion of negotiating a deal:

“Most of what takes place in the course of negotiations can be characterized as either attempting to get a leg up on your adversary or striking a compromise between your respective positions. I firmly believe that the key to effective negotiating lies in achieving a functional balance between these two seemingly inconsistent aspects. If all your efforts are directed toward gaining advantages over your adversary, you will undoubtedly come on too strong; and where the parties possess relatively equal bargaining power, with freedom to consummate the transaction or not, you may cause your client irreparable harm–such as losing the deal.” (Id. at 188 (emphasis added).)

Again, from a transactional lawyer’s perspective, the goal is not to pound the other side into submission or walk away with no deal. Instead, in the interest of getting the deal done, Freund counsels that we strive to achieve a balance between getting a leg up on our opponent and striking a compromise. Makes sense, doesn’t it?

†Mark Fingerman encourages anyone interested in this presentation to reach him by email at: mfingerman@adrservices.org.

3 Ways To Make Your Brief Read Better On An iPad

Posted by on Jan 24, 2014 in Courts & Judges, The Craft of Lawyering, Writing | 0 comments

24toys-articleLargeThanks to some of my Michigan colleagues, I learned today for the first time that a growing number of appellate court justices are reading briefs on an iPad. I guess it’s pretty clear that I’m out of touch. (I feel like Dr. Evil, on Austin Powers, when he demands the government pay him only $1 million.)

Fortunately for me, and for you, Daniel Sockwell, writing in the Columbia Business Law Review, is not so out of touch. In a piece entitled “Writing a Brief for the iPad Judge,” he offers some really useful advice for writing an appellate brief if you know your judge may end up reading it on an iPad. How would you know? By asking the clerk, of course.

Here are 3 of Sockwell’s tips:

1. Use Fewer FootnotesSockwell writes that “[o]ne of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage.” Unfortunately, this advantage is “lost if footnotes require the reader (judge) to constantly scroll to the bottom of the page for citations or substantive material.” Sockwell feels this compounds the risk that the judge or her clerk might not bother to read the footnotes at all.

2. Choose Your Font With Care. Sockwell notes that, while “the effective resolution of an iPad [is] closer to print,” there is a risk that “some of the best print fonts can become jagged or difficult to read at screen resolutions.” What should you do? Unfortunately, Sockwell leaves us wondering, though he does point us in the direction of an entire book on the subject of fonts (the perfect gift for that typography nut in your life). I started to do some of my own online research to find out what kind of fonts read best on iPads, but I came up short. I’m going to go with the plan to use a simple font rather than anything really creative. If someone has some clearer suggestion, maybe they could leave a comment.

3. Go With “Scientific,” Rather than Traditional Legal Hierarchical Headings. We typically use traditional hierarchical headings in briefs that are printed (e.g., Part I, Section A, Subsection 1, etc.). This method apparently doesn’t work well for documents read on an iPad, because it’s easy to lose track of which “Section A” one’s looking at. Instead, Sockwell urges brief writers to adopt the scientific hierarchical headings (e.g., Part 1, Section 1.1, Subsection 1.1.1, etc.).

Sockwell includes one more point: be sure to adhere to local rules, even if it means making a stylistic sacrifice. While double spacing of lines might look horrible on an iPad, it may be required by the local rules, at least until rules are universally updated to reflect the reality that more and more judges are reading briefs on iPads.

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