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

Deposition: Answering Only The Question That Was Asked

Posted by on Sep 14, 2014 in Discovery, Evidence, The Craft of Lawyering | 0 comments

BeQuiet “Always one thing at a time. Why must you put out your facts like gold coins, Frau Richter?”
-John Le Carre, A Most Wanted Man

I recently spent several days preparing inexperienced witnesses for their first depositions. Because it gives me an opportunity to be a teacher of sorts, I find this kind of preparation to be one of the more enjoyable aspects of lawyering.

One point that I feel can never be taught or practiced enough is for the deponent to understand when she has said enough in responding to a question. In other words, when to shut up.

It’s far too simplistic to teach a neophyte deponent “Just answer yes or no.” While that may indeed be excellent advice when the best possible answer is yes or no. And, assuming the deponent knows when the best possible answer is yes or no, answers correctly and stops there, then that tactic makes sense. But over the course of a deposition that lasts several hours or several days, there are going to be a lot of questions that simply cannot be answered using the “yes or no” strategy, and so I won’t have adequately prepared my witness.

This issue becomes particularly sticky in situations in which the examining lawyer does not possess a complete understanding of the subject matter and needs the deponent to guide him. In the arena of employment litigation we see this frequently. A plaintiff’s lawyer will have no practical understanding how the defendant’s business–say, manufacturing plastic widgets–actually operates. While the lawyer could learn everything he needs to know from his own client, I often find he will try instead to do this through deposition of a company Person Most Knowledgeable (PMK) witness.

When preparing such a witness, I begin by asking them to imagine that they are in a completely dark room, groping by hand to find familiar objects–a chair, a picture frame, a light switch! This, I tell the witness, is exactly what the examining lawyer feels like, and he is asking you to take his hand and guide him through the dark to the light switch. The all too human temptation, I warn the witness, is to do whatever you can to guide the helpless lawyer. This is not because the witness feels any affinity for the lawyer–probably the opposite. Rather, it is because the witness incorrectly perceives that, by helping the examining lawyer, she will more quickly bring the deposition to an end, which is what she wants more than anything.

The problem is that helping the examining lawyer will actually have the opposite effect. Every morsel of information the witness offers will give the examiner one more possible avenue to explore, one more path to go down. Instead of shortening the deposition, the additional information makes it go longer, and increases the likelihood that something damaging will make it onto a transcript. I teach that even the most experienced witnesses fall prey to this fallacy. With experts it can be even worse; they can have a tough time shutting up because the deposition gives them the platform they crave in order to showcase their special knowledge and smarts.

The question becomes, then, how to teach a prospective witness when enough is enough? Surprisingly, my favorite guru, Professor McElhaney, does not provide a great deal of guidance. In Litigation, he offers a list of rules to impress upon your client or witness about an upcoming deposition. Number 6 is, “Answer the question — not some other question–just the question you are asked. Say no more than is necessary to answer the question. Do not volunteer extra information or explanations.” Id. at 42.

That’s probably as good summary of the rule as there is. What’s left? Practice! In your mock deposition, take the witness through a lot of questions that she can either answer briefly, or ramble on.  Whenever you find her rambling, cut her off. Practice this as much as necessary until she understands the concept.

And then practice some more!

 

LinkedInShare

The Inelegant Art of Scorched Earth Discovery

Posted by on Sep 2, 2014 in Discovery, Evidence, The Craft of Lawyering | 0 comments

henry-horenstein-monkey-holding-camera“Believe it or not, the composition and layout of some of my images
fall precisely . . . within the Golden Ratio!”
-Henri Cartier-Bresson

“I love the smell of napalm in the morning.”
-Lt. Col. Kilgore, Apocalypse Now

When I was a young man, my father, a professional cinematographer, taught me the basics of photography. We worked in black and white, with his two cameras: a gracefully aging twin-lens Rolleiflex and a Nikon viewfinder that, even then, was already “vintage.” I attempted portraits of our Great Dane, architectural studies of our house, and still life compositions of houseplants. We even built a first rate darkroom in our basement. Though he could at times be a complicated, difficult man, I hold fond memories of the time spent with my father learning photography.

One lesson I vividly recall was his early counsel against recklessly burning through film in the gamble that I might get a single decent shot. “Any idiot can snap a hundred pictures,” he would say, a good cameraman takes his time, measures the exposure, and composes the shot.

It is interesting how rudimentary lessons we are taught in the context of one discipline often translate well to another. Here I’m thinking about the litigator’s craft. We have at our disposal a wide arsenal with which to conduct discovery, the core activity of building a case or developing a defense.

Yet, just as “any idiot” with a camera and a motor drive (that relic from a bygone era in photography that advanced film with such alarming speed and a satisfying, if not utterly thrilling, sound — I acquired one for the brilliant whirring noise alone) could snap off perhaps a hundred shots in a single minute, hoping for just one good photograph, any lawyer deserving that “i”-word label can recklessly avail himself of the entire arsenal of discovery tools, hundreds of interrogatories, admissions and document requests, in the vain search for a single useful item of evidence.

Now, if that single item of evidence wins the case or appreciably improves a client’s bargaining position, it could be worth it, but only if the evidentiary value is not outweighed by the time, corresponding expense, and potential heartache of the ruthless search. But, like a reckless shutterbug who fails to appreciate the beauty of celluloid economy (anybody remember film?), it seems that many lawyers lack the experience, wisdom or restraint to recognize when the wasted time and expense of “scorched earth” style discovery will vastly outweigh any benefits.

Readers of my blog know that, when trying to sketch an image of professional incompetence, I often trot out an earlier iteration of myself as a dashing model of brazen, inexperienced ineptitude. Because it sweetens a bitter pill, I’ll do so again here.

As a young grunt toiling at an insurance defense firm, I was often tasked with preparing written discovery, a job I took seriously. Probably every litigator practicing in California state courts knows there is a statutory limit to the number of interrogatories and requests for admission permitted under our state’s Code of Civil Procedure: 35. But, let’s face it, if you’re a second-year associate bent on Absolutely Annihilating the other side, 35 interrogatories is not enough. Oh, no. That’s not nearly enough.

Fortunately, for eager young would-be Ninja Assassin litigators, the California Code allows us to serve an essentially unlimited number of interrogatories or RFAs, provided we include a declaration affirming the extra discovery is “warranted” because of the “complexity or the quantity of the existing and potential issues in the case,” the “financial burden on a party entailed in conducting the discovery by oral deposition,” or propounding burdensome written discovery makes sense because it affords a responder “the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.”

Well, of course my 135 or so handcrafted, “wait ’til they have to answer these babies,” special interrogatories were always “warranted.” Why? Because I swore in a declaration that they were. Quod erat demonstrandum.

Before you conclude that 135 special interrogatories could have in any way been “warranted” because of the “complexity or the quantity of the existing and potential issues” in most of my cases, let me dispel you of this notion. We weren’t litigating over the patent to an iPhone component, or the copyright to Coming To America. These were typically cases about whether the design of a product hurt someone. While it’s true the issues were more complicated than “What was the color of that banana you slipped on?” the universe of relevant, discoverable evidence was not infinite.

But I didn’t see it that way. So I marched ahead with my flurry of interrogatories. Thirty or so days later, I received pages and pages of nonsense. Boilerplate objections, mostly, with the occasional substantive morsel. Few readers will be surprised to learn that I rarely — actually never — unearthed a detail with hundreds of discovery requests that I couldn’t just as easily have learned with thirty-five or fewer interrogatories.

With interrogatories, it was not just a question of quantity. I rarely gave any thought back then to timing of interrogatories, particularly contention interrogatories. I did not, for example, consider that asking many of the same questions by interrogatory that I would later ask in deposition was simply creating an opportunity for my opponent to educate his client how to respond when the same questions were later asked on the record. We all know that lawyers, not clients, answer interrogatories. I have since become a bigger fan of depositions over contention interrogatories as a substantive discovery tool, in which case asking the same question twice, in two different formats, is just a waste of time of paper.

That’s not to say I didn’t also occasionally overdo it with depositions. After all, I reasoned, why dispatch an investigator to interview a peripheral witness to see if she had anything important to say, when I could spend thousands of my client’s dollars and inconvenience everyone by putting them under oath and creating a record?

Who gains and who loses with my old “shotgun” approach? The only winner in this style of discovery could be the lawyers, since discovery is second only to trial preparation as the most expensive aspect of any case. Clients don’t gain, since they’re presumably financing the fact-finding exercise. Already clogged courts grow even more burdened with time-consuming discovery disputes. Ultimately, even lawyers will lose in the long run, as clients ultimately migrate to lawyers and firms that make efficiency a priority.

Practicalities aside, however, I want to suggest there is a larger reason to temper the urge to litigate with a flamethrower, leaving the ground scorched, the parties depleted and parched. It is this. Back when my father and I were toiling away with viewfinders and light meters, he wasn’t so much worried about the quantity of film I would burn (though that was not completely inconsequential). Rather, his goal was to shape me into a better photographer. One who acts more like a serious artist, who plans and composes, who takes care. This translates easily to our profession. As litigators practicing our craft, we should remember that we aren’t paid handsomely to generate make-work. There is always a goal to discovery. We are trying to unearth evidence that is not only admissible, but also useful. In this instance, less can yield the same or more — and better.

[This article was originally published in California Litigation, Vol. 27, Number 2 2014]

California Court Clarifies Employer’s Obligation to Reimburse For Cell Phone Use

Posted by on Aug 27, 2014 in Employment Law | 0 comments

get smartMost employers understand, at least implicitly, that California law requires employees to be reimbursed for necessary expenditures or losses incurred in the course of doing their job. The California Court of Appeal recently clarified that this rule applies when employees are required to use their own cell phone or personal data device, even if a third party pays the bill or the call/data plan provides for bulk or unlimited minutes or data usage.

In Cochran v. Schwan’s Home Service, a number of employees sought to bring a class action against Schwan’s because they were not reimbursed for work-related use of their personal cell phones. In determining whether a class action was appropriate, the trial Court assumed that where employees did not purchase separate cell phone plans for work use, or where a family member or some third party paid the phone/data usage bill, the employee had no expenditure and therefore incurred no loss.

On August 12, 2014, the California Court of Appeal issued an opinion in the Cochran case, holding that this assumption was wrong. Specifically, the Court said that reimbursement is required, even where the phone/data bill is for unlimited use or paid by another. “Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee.”

What Should California Employers Do?

The Cochran Court provided guidance on how employers can comply with their reimbursement obligation for work-required cell phone/data device use. It said, “[T]o be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill.”

We recommend employers establish a clear policy, evenly applied to all employees, about work-related cell phone and/or data device use and reimbursement. This policy should be easy to understand and apply, and included in the employer’s up-to-date employee handbook. While you’re at it, this isn’t a bad time to review existing reimbursement policies for all work-related expenditures. If a major correction is required, we encourage employers to involve a skilled employment attorney to develop a strategy to shape and communicate the change in ways that will not invite claims or lawsuits based on past policies or conduct. On that topic, I know a guy . . .

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]

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.

Follow

Follow this blog

Get every new post delivered right to your inbox.

Email address