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Be a Know-it-all at Dinner with These Thanksgiving Law Facts

Wed, 11/25/2015 - 17:49

As you get ready to depart for Thanksgiving, why not take some of your free time to learn a little bit about the laws surrounding this holiday?

Here are a few fun legal facts about Thanksgiving to help you through awkward small talk around the Thanksgiving dinner table.

How Thanksgiving Landed on the Fourth Thursday

Three of the most prominent Presidents in American history, George Washington, Abraham Lincoln, and Franklin Delano Roosevelt, all contributed to Thanksgiving’s place in federal law. The holiday’s initial appearance in the annals of law was the result of a resolution passed by the first Federal Congress in 1789 for President George Washington to declare a “Day of Publick Thanksgivin.” He proclaimed November 26, a Tuesday, as a day of national thanksgiving for the U.S. Constitution.

It was not until 1863, however, that the modern holiday was celebrated nationally. On October 3, 1863, Lincoln issued a Thanksgiving Proclamation officially declaring that the last Thursday in November as a day of “thanksgiving and praise.”

In 1939, however, the last Thursday in November fell on the last day of the month, which would shorten the Christmas shopping season — possibly causing fewer people to lose their minds from the constant influx of holiday music.

FDR wouldn’t have it and issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change, dubbing the new holiday “Franksgiving” and proclaiming the true Thanksgiving to be the last Thursday in November. For the next two years, President Roosevelt repeated the unpopular proclamation and two days were celebrated as Thanksgiving.

Congress decided to settle things once and for all with a fixed-date for the holiday. On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day, and the Senate amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays. FDR signed the resolution on December 26, 1941, establishing the fourth Thursday in November as the Federal Thanksgiving Day holiday.

This year we can be thankful that the only disagreement will be over who gets the last drumstick.

Shoppers Sing the (Sober) Blues

Care more about Black Friday shopping than Turkey Day itself?

Shopaholics in Rhode Island, Maine, and Massachusetts will have to wait for their shopping fix. In fact, it’s the law. Blue laws in these states prohibit most retail stores from opening on Thanksgiving — even grocery stores.

The rules vary among the states. For instance, retailers less than 5,000 square feet can operate in Maine. Convenience stores are also generally allowed to open, as are movie theaters, pharmacies, restaurants, and some other businesses. Retail alcohol sales remain barred on Thanksgiving Day in Massachusetts, Oklahoma, and Texas so either plan ahead or learn to handle screaming kids and nosy in-laws with liquid assistance.

Turkey Innovation

Let us not forget the intellectual property of turkeys. After all, what better way to celebrate a holiday than reading patents appropriate for the festivities?

While the U.S. Patent and Trademark Office doesn’t exactly track the growth in turkey innovation, dozens of inventors hold patents on a range of turkey themed gadgets and processes.

IP Watchdog has compiled some of the more notable ones, including this frightening remote controlled turkey decoy, this Turkey decoration that seems like a sneaky way to hide your leftover Halloween pumpkins, these toy turkeys made out of a pine cones, this collapsible hunting blind that resembles a 6 foot tall turkey plastered onto a giant umbrella laid on its side, or even this ornamental design for a turkey hunter’s safety placard named “Mr. Cautious Tom” whose tail feathers are emblazoned with the word “Hunter” and whose ascot is labelled “Caution.”

In fact, Thanksgiving leftovers even lead to the invention of LASIK eye surgery. One turkey innovator was sitting at the dinner table with his family on Thanksgiving in 1981 when he realized that leftover turkey bone cartilage would provide the perfect test subject. On November 27, 1981, his team used a laser to etch on the turkey’s cartilage in a way that could be viewed when placed under an optical microscope — leading to the invention of LASIK.

Turkey wishbones, too, have been subject to intellectual property law disputes. In 2010, Sears, Roebuck & Co. was sued for copyright infringement for producing wishbones similar to those  designed, copyrighted, and produced by Lucky Break Wishbone. The court found that the plastic replicas were copyrightable because the wishbones were designed using graphite electrodes to make it smooth and “attractive and sleek” with thinner arms and more rounded edges – making them worth $1.7 million in damages.

Some states have even passed laws requiring utilities to convert turkey waste into energy. In light of prolific turkey farming, North Carolina, and Minnesota have both passed energy policy mandates requiring utilities to use a small amount of turkey waste-generated power. Minnesota currently has a 55-megawatt power plant designed to burn poultry waste as its primary fuel that can power  44,000 homes with 100 daily truckloads of this turkey litter. A new North Carolina plant will reportedly be the first facility designed to run on 100% turkey waste which will use 55,000 tons of turkey litter a year to produce the equivalent of 95 million kilowatt hours of electricity and feed that renewable electricity back to the grid.

One law professor took to full legal analysis of the Law of the Turkey. Claiming that nearly all contract law concepts can be learned with turkey cases. Professor Meredith R. Miller expanded this idea to cover criminal law, tort law, and just about everything else.

In Turkeys, Oral Contracts, and Mr. Gouge and Turkeys, Damages, and Alternative Damages, she recounts the many ways turkey contracts can possibly go awry. In her casebook proposal for The Modern Law of the Turkey (which I really hope comes to fruition), the chapter on Turkeys and Torts tells a tale of a Wal-Mart shopper being knocked unconscious by frozen turkeys.

Thanksgiving truly holds a little something for everyone. Be thankful.

Featured image: “Thanksgiving background. Autumn fruit with Thanksgiving letters. Thanksgiving dinner ” from Shutterstock.

Be a Know-it-all at Dinner with These Thanksgiving Law Facts was originally published on Lawyerist.

Categories: Teknoids Blogs

Lower Law-School Admissions Standards Lead to Fewer New CA Lawyers

Wed, 11/25/2015 - 09:00

As law schools receive fewer and fewer applications for admission, is one tactic for their own survival to admit students who are unlikely to ever pass the bar exam?  Results coming out of California for the July 2015 bar exam certainly make one wonder, as the pass rate hits a 30-year low of 46.6% overall, and only 60% for first-time takers.  Among the unfortunate 2,485 repeat-takers, the pass rate was an abysmal 16%.

It certainly does make you wonder if law schools are shirking their standards in favor of filling seats and receiving tuition payments, only to lead students on an extremely expensive three-year educational journey to nowhere.

Lower Law-School Admissions Standards Lead to Fewer New CA Lawyers was originally published on Lawyerist.

Categories: Teknoids Blogs

How to Install Browser Extensions

Wed, 11/25/2015 - 07:12

All major browsers — Chrome, Firefox, Safari, and Internet Explorer — support installing browser extensions. These extensions do exactly what they say: extend the functionality of your browser with new features. With extensions, you can color-code tabs, annotate web pages, and store your passwords — and do many other things. If used appropriately, extensions can turn your vanilla browser into a powerful productivity machine.

Index Plugins vs. Extensions

Contrary to popular belief, plugins are not the same as extensions. Plugins operate in the background of your browser and are only activated when a web page calls on them (such as when you watch a Youtube video). A plugin does not change how your browser looks or feels.

Extensions, on the other hand, are given the freedom to manipulate how your browser looks and operates, and they can work with other services you use every day. For example, you can attach emails to matters and create tasks with the Clio for Gmail extension for Chrome.

In short, plugins are only activated when a website you’re visiting needs them. Extensions are similar to apps on your phone, and you can use them when you want to.


Client-sensitive information, as well as your own sensitive information, is running through your browser all day long — especially if you’re running a paperless office. So, just like any other piece of software you install, you should be diligent about what extensions you choose to use and where you get them from.

Installing Extensions

To install extensions in each of the four most popular web browsers, follow these steps.


Chrome makes it very easy to install extensions. Additionally, Chrome will sync extensions and their settings across multiple devices, assuming you have a Google account.

To start, open a new tab in Chrome and click Apps.

On the Apps page, click on the Web Store icon. Click extensions to to filter out the Apps, Games, and Themes you can also download through the Chrome Web Store.

You can either search for your preferred extension or surf through the categories on the main page. Find the extension you want and click the blue Add to Chrome button.

Before installation will complete, Chrome tells you what the extension will have permissions to access. Read these with care. If you are ok with the level of access that an extension is requesting, click Add Extension.

Managing Chrome Extensions

To manage Chrome extensions, click the hamburger menu in the upper-right hand corner of your browser and select Settings.

In settings, click Extensions in the left sidebar. You can now enable, disable, or remove any of your extensions. You can also enable specific extensions to operate incognito. And if you really want to get efficient, Chrome supports custom keyboard shortcuts for extensions.


Firefox was one of the first browsers to popularize the concept of extensions, known in Firefox as Add-Ons.

To install Add-ons, click on Tools in the menu bar and select Add-ons. This will open the Add-ons Manager page.

Much like the Chrome Web Store, you can search for your extensions or delve into categories. Once you’ve found an extension you want, click the green Add to Firefox button. You will be prompted to approve the extension being installed. If you trust the author of the extension, click Install.

Managing Firefox Extensions

To manage Firefox extensions, click Extensions in the left sidebar of the Add-ons Manager page. From this page, you can adjust the preferences of your extension. Firefox also gives you the option to disable an extension temporarily or remove it completely.


While it is not obvious, Safari does support extensions. To get to your extensions, click Safari in your toolbar and select Safari Extensions.

You will be brought to the Safari Extensions page.

To install an extension, click or search for your preferred extension. Once you’ve found your extension, simply click Install Now.

Once the extension is installed, a new tab will open confirming the installation of your extension.

Managing Safari Extensions

Click Safari in your toolbar and select Preferences (you can also press the keyboard shortcut ?, to access preferences). Once in preferences, click Extensions.

Once you are in the Extensions menu, you can uninstall, disable, or adjust the settings of your installed extensions. If Automatically update extensions from the Safari Extensions Gallery is not already selected, select it now.

Internet Explorer

While Internet Explorer does support extensions, its extensions library is not nearly as robust as Chrome, Firefox, or even Safari. Additionally, running extensions in Internet Explorer comes with more security risks. Internet Explorer will not alert you when your extension is outdated. Instead, it is on you to make sure your IE extensions are up to date.1

If you are content with the additional manual upkeep, open Internet Explorer and click Tools and select Manage Add-ons.

A pop-up window will open that will show all your currently installed extensions. To install more extensions, click Find more toolbars and extensions… to the left of the close button.

This will bring you to the sparsely-filled Internet Explorer extension gallery.2 Find the extension you want to install, and click Add to Internet Explorer.

No further permissions are required to install extensions in Internet Explorer.

Managing Internet Explorer Extensions

Since Internet Explorer does not automatically update extensions, it is imperative you check your extensions. Out-dated extensions can lead to security issues and poor browser performance.

Click on Tools in the menu bar and select Manage Add-ons. Then you will need to click on the extension you want to update and go to its publisher page. Re-add the extension to install any necessary updates.

Use extensions wisely. It is easy to bloat your browsers with them. But if you use extensions correctly, you will wonder how you’ve gone so long without them.

Alexey Boldin /

  1. Microsoft’s new Edge browser, which does not yet support extensions, will eventually replace Internet Explorer. Maybe it will handle extensions better. 

  2. While you can install Internet Explorer extensions outside of the gallery, it is not a good idea unless you are certain it is trustworthy. 

How to Install Browser Extensions was originally published on Lawyerist.

Categories: Teknoids Blogs

Episode #44: Typography for Lawyers, with Matthew Butterick

Tue, 11/24/2015 - 07:12

Related “10 Takeaways from Typography for Lawyers”

Why should you care about typography? That’s like asking why you should practice for an oral argument or wear a tie to court. If you aren’t already using Matthew Butterick’s typography guide for lawyers, you’ll snap up a copy after you listen to this podcast.

Crowdfunding Lawsuits

Crowdfunding is all the rage, these days, and now it includes lawsuits. We’ve written about two crowdfunding efforts, LexShares and CrowdJustice, and now crowdfunding has hit the news. In Colorado, a court decided crowdfunders are subject to the same lending laws as payday lenders. And Wired wrote about the use of crowdfunding sites like Indiegogo to raise money to pay legal fees and fines.

So is this good or bad? We weigh in on today’s podcast.

Typography for Lawyers, with Matthew Butterick “If Matthew Butterick didn’t exist, it would be necessary to invent him.” —Bryan Garner

Legal documents from briefs to contracts are uniformly unremarkable, but they don’t have to be — and if Matthew Butterick has is way, they won’t be for much longer. He argues that good typography is part of being professional in print, just like practicing for an oral argument or selecting a tie is part of being a professional in court.

On this podcast, Sam and Matthew talk about typography and address some of the big typographical controversies, like how many spaces you should use between sentences (one), whether you should put spaces around an em dash (if you want to), and why nothing says “I don’t care about my work product” like setting it in Times New Roman.

We also talk a bit about Matthew’s Pollen online-book software.

Whether or not you listen to today’s podcast, do yourself a favor, get a copy of Typography for Lawyers, and put it on your shelf next to the BlueBook and Black’s Law Dictionary.

Thanks to Ruby Receptionists for sponsoring this episode!

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Episode #44: Typography for Lawyers, with Matthew Butterick was originally published on Lawyerist.

Categories: Teknoids Blogs

How To Retain Employees in a Competitive Work Market

Mon, 11/23/2015 - 07:12

A high turnover rate can be detrimental to your firm. Instead of focusing on growth, a firm with high turnover is bogged down looking for replacements for workers who leave in search of greener pastures. It can even be personally painful when your most valuable team members make an exit.

To avoid these problems, focus on retaining your employees.

How Does Your Compensation Structure Compare?

Before you can stand out, you need to research what other firms are offering their employees. If your competitors are paying their employees more, providing better bonuses, or providing a much less stressful work environment, you should take a page from their book. Two major complaints employees have is that they are overworked and underpaid. When employees feel this way, they will likely leave your firm or perform poorly if they stick around.

Don’t Place All the Focus on Compensation

Compensation does matter, but employees also value advancement potential, a stress-free work environment, and clear expectations. Other ways to improve morale include some of the following:

  • Write a clear job description. Keep employees from feeling as if they are unable to meet their expectations by clearly outlining what they need to do.
  • Provide a bonus structure that motivates employees. This benefits you as much as it drives your employees to perform. You can provide competitive compensation on the condition that they meet your expectations.
  • Consider a comprehensive benefits package. Some employees value benefits more than their salaries. Providing health insurance, a matching 401(k) plan, flextime, and the option to telecommute can retain employees who would otherwise look for these perks elsewhere. Competitive benefits packages are becoming more popular among law firms looking to retain their talent.
  • Implement a wellness program. Coming up with a wellness program will keep your employees in good health and let them know you care. Examples of wellness incentives offered by some well-known businesses include providing a monthly reimbursement allowance for services like nutritional counseling, training services, and massage therapy. Some businesses even provide 2–3 hours of paid workout time each week. If you have your doubts about the effectiveness of these programs, consider that healthy workers are happier, more productive, and more loyal.
  • Value skill development. Employees want to feel like they have advancement potential and that their contributions have merit. There is no greater way to convey this than to offer training programs or tuition reimbursement programs for those looking to continue their education.
  • Take a flexible approach. Flexibility goes a long way towards retaining employees as shown in a study by the Boston College Center for Work & Family. In this study, 80% of employees admitted that flexible work arrangements were the primary factor in their decisions to leave or stay. 76% of managers felt the same way. 70% of those managers and 87% of employees noticed that flexibility had a positive impact on productivity and work quality as well.
  • Don’t be stingy with vacation time. As more American workers suffer from physical and psychological stress due to long work weeks, European companies are testing out shorter work days. The data has shown that the added rest and relaxation results in massive productivity boosts. Therefore, making sure that your own employees have the ability to take the occasional getaway can have positive benefits as they will return fully rested with a clear mind.
Communication is Key to Understanding Your Employees

Do not estimate the effectiveness of what will retain employees when you can simply ask them. Many firms conduct exit interviews to determine what motivates their employees to search for opportunities elsewhere. But you can do much better than this. Prevent your favorite employee from turning their two weeks in by conducting stay interviews. These interviews will tell you what makes your valued employees stay around.

Here are some questions you might want to ask during one of these interviews.

  • What made you decide to come to work for this firm? Understanding your employees’ goals from the moment they arrived can help you accommodate their ambitions and keep them loyal.
  • What factors have influenced your decision to stay? This is an opportunity to determine where you have succeeded in your retention strategy so that you do not eliminate benefits that are critical to keeping your workers happy.
  • What would make you leave? Here is where you can detect any weaknesses in your strategy. Do workers feel they could earn more if they worked for someone else? Do they desire a more flexible work schedule? Is vacation a factor? How satisfied are they with their benefits package? If you find that they could be lured away with better benefits or more vacation time, strike preemptively by revamping your own benefit structure.
  • What would you change or improve about your work experience? When employees answer this question, they are revealing important information about their ideal work environment.

Before you conduct stay interviews, you need to prepare yourself to act on the information you receive. Your perception of your employees’ satisfaction may vary from reality and the entire purpose of these interviews is to obtain information that you can act on to improve retention.

The Small Things Matter

Finally, consider how important tiny gestures can be to your employees. Providing that free breakfast on Monday or offer free dry cleaning pickup once a week. Anything that can enrich an employee’s day will ultimately result in higher productivity and satisfaction, even if you believe it is miniscule. When considering the small things, it is also important to consider how flexible you are with your workers.

Retaining talent requires providing a combination of incentives, benefits, and perks that will make your employees glad to stick around, but it is important that you are on the same page about which of these incentives your employees value. If you are experiencing a revolving door at your firm, the first step you can take is to listen to your workers and use their feedback to make your firm a more attractive place to work.

Featured image: “ Retain written on a wooden cube in front of a laptop” from Shutterstock.

How To Retain Employees in a Competitive Work Market was originally published on Lawyerist.

Categories: Teknoids Blogs

The Flaws of the “Recruit Your Successor” Exit Strategy

Fri, 11/20/2015 - 09:00

One retirement exit strategy often considered by solo practitioners is the “recruit your successor” one. The idea behind this strategy is to find a young, inexperienced lawyer who is then groomed to take over the practice. During the initial stage of the transition (usually one or two years), the seller and buyer get to know one another. If the fit seems good, the parties then negotiate a “buy out” going forward (usually another one to three years).

On paper, everyone seems to win. The senior lawyer obtains some value for the practice. The younger lawyer obtains an established practice in far less time than it might take to build one. In addition, the successor receives a few years of valuable training/mentoring.

However, if sellers and buyers dig a bit deeper into the details, a variety of fundamental flaws with the “recruit your successor” strategy become apparent. In fact, this strategy is so full of holes that I believe older solos should rarely consider it.

Can You Find A Successor?

Problem number one involves finding the one special person to whom you feel comfortable handing down your legacy. This is easier said than done.

In practicing employment law more than 30 years, I have seen many workplace problems that were the direct result of a poor hiring decision. No matter how careful the screening, employers can only glean only so much from a resume, interview and references. In addition, as an attorney coach, I’ve heard many stories of even well-screened new hires not working out quite as planned.

The bottom line is that it is difficult to find a worthy successor. There may be plenty of qualified candidates in this terrible job market, but personalities and other intangibles still need to mesh. If I were to lay odds on the likelihood of a senior lawyer still being pleased with a hire at the end of the first year of working together, it would be no better than 50/50.

Finding a successor becomes even harder when you carefully scrutinize the likely pool of candidates. Chances are very good that a young lawyer is still paying off substantial student loans, and will be doing so for the foreseeable future. Will this successor have the financial wherewithal to ultimately do a deal to buy your practice? Probably not.

Where’s the Extra Cash Coming From?

Problem number two involves finding the cash to pay a potential successor during the “recruit your successor” process. This strategy is based on the premise that the successor has a very small book of business and needs to obtain one. Thus, adding the new lawyer adds no significant revenue to your practice. At the same time, you now have two lawyers working on the same pool of files during the early stage of the transition period.

The successor needs to be paid a living wage. Where does that wage come from? It comes from the take-home pay of the senior lawyer. In the short term, the senior lawyer takes a financial hit because net income is now being shared with the successor.

Going forward, it becomes less certain that the senior lawyer will see a significant pay-day when it comes time to transfer the book of business. When valuing the book, the retiring lawyer should try to add the sacrificed income to the overall value of the practice. But anticipate that the successor will be unwilling, or financially unable, to give back any salary he or she has earned.

Do You Have the Patience?

Problem number three involves training the new lawyer. Training or mentoring takes time, patience and a skill-set completely different from the practice of law. Most solos become successful because they know themselves and purposefully stay small. Many solos have intentionally rejected the idea of hiring associates because they don’t want to train and manage others. The process is not going to be any easier in a “recruit your successor” environment.

Will Your Clients Work with the Successor?

Problem number four involves transfer of client relationships. From the successor’s perspective, doing a “recruit your successor” deal only makes sense if the retiring lawyer’s client base is willing to carry over to the successor. Transferring relationships is fraught with potential issues.

Presumably, most of the retiring lawyer’s relationships are with individuals who are older than the successor. Will they feel comfortable with a younger lawyer? Will they be willing to work with a less-experienced and perhaps less-skilled lawyer, or will they take their business elsewhere?

Can You Trust the Successor?

Problem number five involves whether or not you can trust your potential successor. Could the successor leave your practice, taking some of your clients? Ethics rules prohibit you from imposing restraints on the successor. Are you willing to trust someone you barely know with your livelihood? Some, you can trust. Some you can’t.  Can you distinguish between the two?

What’s the Better Exit Strategy?

A better solution is to find an experienced fellow-solo with some capacity to grow, or another law firm with an experienced practitioner or practice group that would like to expand. Also, it helps to plan a shorter transition period. This solves a number of problems:

  • Less of a gamble when the field of candidates includes experienced practitioners;
  • The “successor” is already earning a salary, paid by someone else. No need to subsidize the successor lawyer or law firm;
  • With experienced practitioners, no significant training or mentoring needed;
  • With experienced practitioners, relationships should transfer more easily; and
  • There’s no book of business to steal, since under this structure the senior lawyer is out of the picture sooner rather than later.
Why Do Some Successor Deals Seem to Work?

Anecdotes you hear about successful successor deals rarely involve a new hire as an integral part of the senior lawyer’s exit strategy.  More often than not, these situations involve a successor who has already been working for a while with the senior lawyer.

Problems are less likely to arise in this situation because the successor is: (1) experienced; (2) already being paid out of current revenue; and (3) already knows many of the clients or is fully capable of serving them. Finally, the parties have worked together long enough to develop mutual trust. They will treat each other fairly.

Seller Beware

The “recruit your successor” retirement exit strategy may look appealing, but is often considerably more trouble than it’s worth. Instead, in order to obtain maximum value for your practice, transition your practice to more experienced lawyers.

Originally published 2012-12-05. Last updated 2015-11-20.

Featured image: “businessman finding his way out of a maze.” from Shutterstock.

The Flaws of the “Recruit Your Successor” Exit Strategy was originally published on Lawyerist.

Categories: Teknoids Blogs

Who Decides What in the Attorney-Client Relationship

Thu, 11/19/2015 - 07:12

The attorney-client relationship is one of varying degrees of collaboration, depending on how involved your client chooses to be, how sophisticated they are in legal matters, and the type of case.

But no matter how sophisticated your client may be, certain decisions lie with the client and some are within the discretion of the lawyer. Here is a rundown of where the authority lies.

Model Rule 1.2

Allocation of authority between you and the client begins with a quick look at ABA Model Rule 1.2.  A rather wordy rule, it says that as to the “objectives of the representation” the attorney shall abide by the client’s decisions. As to the means by which those objectives are pursued, you should consult with the client. Model Rule 1.2 goes further than its vague language of objectives versus means and explicitly states, “A lawyer shall abide by a client’s decision whether to settle a matter.”

When the Ball is in the Client’s Court

There are two main decisions your client has sole discretion to make:

  1. Settlement. No matter how strongly you feel that a settlement offer is the best offer your client will get, and that it trumps any possible recovery at trial, it is your client’s right to refuse. You may not accept an offer without the client’s consent. When the client wants to make a settlement offer, that offer is also within the client’s discretion. You may counsel a client on both accepting and making offers, but it is not your decision to make.
  2. Objective. The client gets to set the goals of the matter. For instance, if a client comes to you and explains that their objective is to bequeath all of their property equally to their children, including a child who has embezzled from the client, you do not have any authority to change the objective of the representation. It is the client’s choice. Similarly, if the client informs you their goal in litigation is to refuse any settlement and litigate to death then you must abide by that stated objective (within the bounds of other ethical rules such as candor to the court, not making frivolous motions, and not hindering discovery).
Up to the Lawyer

Other decisions are generally considered means to achieving objectives and within your discretion. However, any authority can be altered by a contract. With large institutional clients who come to retain counsel with a list of standard terms and conditions, your authority may well be curbed. Other clients may negotiate specific terms of engagement as well.

  • Vendor choice. You get to decide how to run your practice, including software and vendors. If a case requires e-discovery software or an outside vendor copying service, you can choose the service. Some clients will insist on agreement otherwise, so before moving ahead with the resource of your choice, be sure to check your attorney-client agreements. Large corporations, for example, may provide you with a list of approved vendors at the outset of the relationship; this can be important to clients who have vetted their approved vendors for conflicts. Other clients may have set a cost cap you will have to negotiate with their chosen vendor.
  • Staffing. Staffing is generally left to your discretion. In firms where a partner brings in the work and then chooses associates to work on the case, the partner can choose the associates they think are best suited to the job. If a client insists on a particular associate being involved in a case, you have to decide whether to satisfy the client’s demand. It is not an ethical issue at that point.
  • Crime or fraud. You have absolute authority and an obligation to refuse to participate in criminal or fraudulent activity. If a client has stated an objective (their right to do so under Model Rule 1.2) which is itself criminal or fraudulent, you are obligated under Model Rule 1.2(d) to refuse to participate in achieving that objective. You have the right to decide whether you want to counsel the client on the consequences, or you can simply refuse to take on the representation or withdraw from it.
  • Scheduling. A client may direct you to engage in deposition discovery, but when it comes time to set those deposition dates, you have the authority to set them. You can consult with the client and attempt to arrange for the client to attend if the client intends to, but ultimately you must be there. The same applies to motion practice. You can set the date and move ahead with the briefing schedule without the client being involved in the details.
  • Details. There are a great many details that you deal with every day that simply cannot be decided by the client. Exactly how to approach opposing counsel with a settlement offer, for instance, is within your discretion. Setting that settlement offer is the client’s choice, but your tone in a letter or choice to take opposing counsel out to coffee to discuss is your choice. Similarly, send your client copies of outgoing discovery requests before they are served, but it is your decision exactly how they are worded and what is sought. Simply put, when it is a detail that falls within the realm of expertise for which a client hires a lawyer, you can decide.
The Highly Involved Client

The authority to make certain choices becomes somewhat muddied with a highly involved client, especially a lawyer-client. This is not because the ethical rules vary, but because the relationship is a bit more complicated. Lawyer-clients come up frequently with institutional clients where in-house counsel is the client contact and in legal ethics cases where lawyers are respondents or defendants; they can also be the client in any other matter where an individual is the client, as lawyers do have lives too.

Lawyer-clients and other highly involved clients often want to make decisions attorneys are used to making on their own. For instance, a lawyer-client who is a civil trial attorney may have a lot to say about which court to file in, which discovery mechanisms to utilize, or what strategy to take when attempting to negotiate settlement in their own personal injury case.

These situations become more of a client-relationship dilemma than an ethical one, since the impacted decisions are ones you get to make. In order to work well with a highly involved client, you have to set the boundaries and work cooperatively with the client. Although you have the authority under the ethical rules to make choices on the case, if the client wants more involvement, the relationship could sour.

Clearly laying out each party’s rights and obligations can help ensure your client relationships run smoothly.

Featured image: “Pretty young woman making a decision with arrows and question mark above her head” from Shutterstock.

Who Decides What in the Attorney-Client Relationship was originally published on Lawyerist.

Categories: Teknoids Blogs

4 Reasons Why You Should Rethink Your Client Intake Process (Sponsored)

Thu, 11/19/2015 - 06:55

As you know, there is a tremendous amount of administrative work involved with running a law practice. Products like Clio and Xero are gaining traction with today’s law firms because they help streamline and organize time-consuming processes involved with functions like billing and accounting.

But another area of running a law practice that is particularly cumbersome and that deserves a lot more attention is client intake. Intake has not been diagnosed as a problem area by most firms, but it should be. If you care about case management, why shouldn’t you care about intake management?

Client Intake Is Broken 

Intake is a very important part of the client lifecycle – it’s an integral part of the law firm “sales process,” and the method through which all the necessary information is gathered in order to resolve the legal matter.

The problem is, most firms do not have a systematic intake process in place, making client intake high-friction and inefficient. Sound familiar? Well you’re not alone. For most firms, intake consists of a lot of back and forth communication, which gets scattered across multiple intake forms, email threads, calls, Post-it notes, Excel spreadsheets, etc.

The lack of organization makes it hard to keep track of everything, and when stuff inevitably slips through the cracks, it results in lost revenue, increased expenses, frustrated parties, and even potential malpractice claims down the road.

The worst part of it all is that you can’t bill clients for any of the hours spent during intake, which means the most inefficient area of your practice is actually costing you the most money.

4 Reasons to Rethink Intake

Improving your client intake process can save time, reduce hassle, and prevent stuff from slipping through the cracks. Here are four ways that establishing a systematic, technology-driven client intake process can benefit your law practice:

1. Better Organization and Workflow

Most firms currently still use manual processes for client intake: handwritten notes; logging data into spreadsheets; sending PDF forms and documents to print, fill out, and scan; and lots of emails back and forth.

Using software to manage this entire process will help you be much more organized and drastically reduce wasted time. It will also minimize the number of clients who slip through the cracks, maximizing your conversion rate and increasing your revenue in the process.

2. Cut Down on Data Entry

Whether you do it yourself, hire an employee, or outsource it, data entry is costly in terms of time, money, or both. But data entry is a necessary evil if you’re going to get any value out of a case management system like Clio or MyCase.

The good news is, by using online forms to collect information, you can reduce this manual data entry to a bare minimum. Unlike handwritten intake forms or even fillable PDFs/word docs that have to be re-typed into a case management system later, the data from online forms can easily be manipulated or output into other programs automatically.

For instance, you could export it to Clio using their API, transfer it to an Excel file or Google spreadsheet, plug it into your document automation software or automatically input it into your email marketing software with Zapier.

This automation can save you boatloads of time in the aggregate because no one has to manually transcribe the data from your notes, PDFs, and emails into other programs. Plus it helps eliminate errors caused by typos and illegible handwriting along the way.

3. Happier Clients

With more and more people using smartphones and relying on technology for their daily activities, people have different expectations from the businesses they choose to work with.

Downloading, printing, filling out, and scanning PDF documents is not a very pleasant activity for anyone, let alone a client paying lots of money for legal services. So by asking your clients to do those things in order to work with you, in some ways you’re actually putting up a barrier to getting hired.

By allowing your clients to fill out forms and sign documents online from their computer, smartphone or tablet, you are making their lives easier, and increasing the likelihood that they get you the information you need to do your job in a timely fashion.

Creating a better client experience also helps encourage repeat business as well as more referrals in the future.

4. Reports and Analytics

The fourth benefit of developing an online intake process is that you can get a layer of reports and analytics on top of all this information, in addition to just better storage and organization.

Important data points like where your clients are finding you, what your ROI is on your advertising costs, and what your conversion rate is can all be accessed easily with the help of software. And you won’t have to be an Excel wizard to extract any meaning out of your data.

Leveraging data for better decision making will become increasingly important for law firms as their business model continues to adapt with the changing needs of clients into the future.

Introducing Lexicata: The All-In-One Client Intake Solution for Law Firms

Lexicata is a CRM and client intake software built exclusively for law firms. It’s designed to manage every step of the intake process, from tracking and managing potential clients, to collecting data with online forms, to getting documents signed with seamless e-signatures.

It integrates with products you already use every day to run your law firm, such as Clio, Outlook, and Google Apps. And it includes a dashboard with actionable analytics about where your leads are coming from and how well they are converting into clients.

Adopting an online intake solution can benefit your practice in a number of ways: better organization, greater efficiency, fewer data-entry errors, higher margins, smarter decisions, and happier clients.

We invite you to check out Lexicata today to see how we can help your law firm streamline its intake process.

Book your 15-minute demo of Lexicata by December 1 and receive $100 off your subscription — just enter promo code lawyerist1 when booking from this link (there will be a limited number of appointments available — keep in mind, the demo just has to be scheduled, not conducted, by December 1).

Author Bio 

Aaron George is an entrepreneur with a background in both law and technology. He is co-founder of Lexicata, the only CRM and client intake software designed exclusively for law firms. He previously started a successful mobile app development business during law school. He is an active blogger, graphic designer, coder, and an enthusiast of sports and technology. Connect with him on LinkedIn.

4 Reasons Why You Should Rethink Your Client Intake Process (Sponsored) was originally published on Lawyerist.

Categories: Teknoids Blogs

Support the Legal Information Institute (LII) and Free Access to Law

Wed, 11/18/2015 - 13:52

The Legal Information Institute at Cornell is one of the best free sources of law on the Internet. If you aren’t already using it, you should be. It’s often the fastest way to get to federal law, rules, and cases. And the LII stands for the proposition that everyone, everywhere, should be able to access US law.

Related 2012 Law Via the Internet Conference

Even though the LII is free to the public, it costs a lot of money to maintain, and around 20% of that money comes from individual donations.

If you have ever used the LII, or if you agree that everyone should be able to access the law, please make a donation. I just donated $25, and you should, too. (Or give more, if you can.)

Donate to the LII

Support the Legal Information Institute (LII) and Free Access to Law was originally published on Lawyerist.

Categories: Teknoids Blogs

How To Make Money in Small Claims Court

Wed, 11/18/2015 - 07:12

In every state, there is a version of small claims court. These courts go by different names, such as conciliation court and the people’s court (not the TV show). The vast majority of the litigants in these cases are unrepresented and many of them would benefit by being represented. People who can’t or shouldn’t hire an attorney can still benefit by meeting an attorney to help prepare them for court.

Why Take Small Claims Cases?

For many lawyers, representing clients in small claims court is not financially feasible. Your time is simply too valuable. But advising small claims litigants can be a good way to both increase your monthly income and start developing some courtroom skills if you are just starting out solo. Aaron Hall, a Minneapolis attorney, worked on small claims court cases regularly when he first started out as an attorney “working out of [his] basement.”

It’s a great way for new attorneys to cut their teeth on some basic courtroom experience. Rules of evidence can be relaxed, so concerns about objecting perfectly are minimized. It’s more a skill of thinking objectively.

Some lawyers work with small claims clients because some of their other work naturally ends up in small claims cases. Douglas Simmons, a lawyer in North Carolina, initially started doing small claims court work because “it tied into eviction cases he was doing for landlords.”

Florida attorney Brent Gordon notes that unlike most litigation, especially in full-representation cases, “it’s more likely to go to trial, which means civil litigation experience. Even if the cases are abbreviated, you get to see all stages of litigation.”

Small claims work won’t be the type of practice that lends itself to long-term career building, but it can certainly help with the monthly budget. Charging a modest amount like $250 to prep clients for small claims court can quickly lead to an extra couple thousand dollars per month. This can be the key for some solo practitioners staying afloat, especially when first starting out.

And, unlike most areas of the law, it is not a significant investment to become fairly well-versed in your state’s small claims court.

What Should Your Fee Be?

There are a few ways you can charge for small claims court work. Full representation might mean a bill of $1–3,000. Helping to draft the complaint or meeting with a client to prepare them for court could be a flat hourly fee of $200 or more. Small claims court claim limits vary from state to state. Some are as low as $2,500 (Kentucky and Rhode Island) but others go as high as $25,000 in Tennessee. The claim limits in your state will affect the amount you can charge.

Getting Clients

Some areas of law, like landlord/tenant law, lend themselves to small claims court cases. But if that isn’t the case with your practice, there are other ways to get small claims clients. First, you can advertise on Craigslist. You can let attorney referral services (like the one your bar association has) know to should list you as a small claims court option. You should make it obvious on your website that you will take small claims cases. There are very few attorneys who advertise their services to small claims clients. You are not guaranteed a monopoly by mentioning this on your website, but it won’t be you against 15,000 other personal injury attorneys, either.

Gordon, who says that roughly 15–20% of his practice is small-claims court, actually lists a menu of his options (consultation, document preparation, and full-representation). He relies on email intake as an efficient way of making initial case assessments.

Know the Local Rules

A paying client will obviously expect you have basic understanding of the rules governing small claims court. The most basic is knowing your state’s monetary cap for filing a case. You should also know the filing fee for your state (or county or city). Other critical things to determine include whether the client either needs an attorney (which they might if they are a corporation or an LLC), and whether an attorney can represent a pro se litigant. Some states won’t allow an attorney while others require the attorney to apply to appear prior to the hearing.

Understanding the appeals process after a small claims decision is something many pro se clients will also expect you to know. Some small claims courts will require a formal pre-trial settlement attempt or mediation. Others might simply encourage the two sides to “go in the hall” right before the case is heard to see if a last-minute settlement is a possibility.

Know the Basics

Full representation is complicated, but probably something most lawyers are familiar with. Preparing a client to represent themselves pro se is quite different. There are many pieces of information that can help a client maximize their chances in court.

When and Where

Showing up on time is absolutely critical. In most cases, if the person doesn’t show up on time they automatically lose. Knowing how long it takes to get through a metal detector (if there is one) and how and where to park are all tiny pieces of information that make a pro se party less nervous going into court.

Courtroom Rules

You know not to bring food and drink to court, but to a pro se client, this may be news. A cell phone would ideally never be brought into court (left in the car, for example). If a client insists on bringing it, they should actually turn it off, not simply turn the ringer to vibrate or turn the volume down.

Pro se clients frequently ask about what they should wear. They may want to know if they will be standing at a podium or sitting at a table during the hearing. Questions about witnesses are common as well. Keep in mind the basic rule that a witness (or any form of evidence) is only useful if it is proving your client’s claim or disproving opposing claims.

Strengthening Your Client’s Case

“Most hearings are 10 or 15 minutes,” according to Simmons. Help your client by coaching them on how effectively use their time.

“The client will want to talk about 99 things, but the case will probably turn on only 3 of them,” Hall said. “Offering to meet with a client for an hour consultation, sorting through evidence … most importantly you tell them, ‘here is what I would not focus on.’”

In a case that lasts only 10 to 15 minutes, the client should also lead with their strongest argument, not look for a “big finish” to their case. A judge may cut off the parties at some point even if they haven’t shown all their evidence or made all of their points.

Clients should bring three copies of any evidence they want to show the judge. One for the opposing party, one for themselves, and one for the judge. If there is a key part of the contract, it’s generally fine to mark it (with tape or a post-it note) so it’s easy for the judge to find.

The parties don’t typically cross-examine each other. Instead, all conversation goes through the judge. There may be an opening statement from each party (although this is not always guaranteed), but after that, the judge asks questions and the parties answer. The client should try to answer questions directly and honestly. Interrupting, whether it’s the other side or the judge, is not advised.

With a really nervous clients, one way to minimize their concerns is to tell them to simply go watch another calendar before their case is heard. These are public forums. If your client is worried about public speaking, tell them to look around the room as a case is being heard. Despite being in the same courtroom, almost everyone there will be preparing for their own case. They might be looking through their own materials or sort of gazing in the distance.

Is It Worthwhile for a Client to Work with You?

In some cases, the answer is simply no. If their claim is for $50, it makes no sense to hire you for any reasonable fee. But if the claim is in the thousands, hiring an attorney for full representation in small claims court or even hiring one for a consultation may be the best decision a pro se litigant will make in their case.

Featured image: “Young man in superhero costume representing power and courage” from Shutterstock.

How To Make Money in Small Claims Court was originally published on Lawyerist.

Categories: Teknoids Blogs

What More Do We Need to Say About Law’s Diversity Problem?

Tue, 11/17/2015 - 16:43

Were you wondering if the legal profession was still utterly abysmal on diversity issues? Wonder no more, because the Ninth Annual Survey by the National Association of Women Lawyers (NAWL) makes clear that we still are, at least as far as BigLaw is concerned. NAWL asked the 200 largest firms to provide diversity metrics. 73 firms did so, and the results are basically awful.

Women have crept up to a whopping 18% of equity partners at big firms. Lest you trot out the “hey, but the pipeline of qualified women is much smaller!” line, the report reminds you that women and men have been graduating in roughly equal numbers for almost 25 years. That pipeline is built.

Women are also paid less, under-represented on governance committees, and work more hours than men, but somehow generate less billable hours in that time. Oh – and of all the firms surveyed, not one of them reported that a woman was the highest-paid individual at the firm.

It is worse for lawyers of color, who comprise 8% of all equity partners and firms, and LGBT lawyers, who clock in at a depressingly low 2%.

Things are slightly less grim for in-house counsel jobs, where women hold 23% of the positions, and academia, where women hold 37.5% of tenured positions, but now we’re just grasping at straws to make ourselves feel better.

We are getting pretty tired of writing these posts. The profession has to do better.

Featured image: “One woman under many men” from Shutterstock.

What More Do We Need to Say About Law’s Diversity Problem? was originally published on Lawyerist.

Categories: Teknoids Blogs

Episode #43: What An Innovative Law Firm Really Looks Like, with Peter Carayiannis

Tue, 11/17/2015 - 07:12

What does an innovative law firm look like? According to Peter Carayiannis, whose firm, Conduit Law, has been twice nominated for an innovative law-firm award, it’s less about technology and more about clients. And you know what, it’s not your fault that you can’t encrypt your email. Stop trying and just use a secure portal.

Email Encryption is Practically Impossible

From BuzzFeed:

The study gave 10 pairs of people up to 45 minutes to encrypt, send, decrypt, and read a message via Mailvelope[, software that is supposed to make email encryption easy]. Only one subject pair was able to complete the task, and it took them the full 45 minutes; in addition, this pair had some previous familiarity with PGP encryption, unlike the rest of the subjects. In other words: The software was nearly impossible for a novice to use.

In other other words, email encryption is impractical. Even the experts get it wrong, and there’s no chance the ethics rules require you to be an high-level security expert just so you can communicate with your clients. Besides, those people screw it up, too.

But you’re not off the hook entirely when it comes to encryption. Encrypting your hard drive and your Internet connection are trivially easy. You still need to do that. Just use a secure portal for confidential communication instead of email.

What An Innovative Law Firm Really Looks Like

When the word innovation is used in relation to law, it usually conjures up images of high-tech solutions to old-fashioned legal problems. But Conduit Law has been nominated twice for an innovation award, and you might be surprised at the technology it uses. That’s not to say technology is irrelevant. Conduit Law is powered by technology — it just doesn’t have anything to do with whiz-bang gadgets and artificial intelligence. The innovation is mostly in the business model, which is driven by what clients want and need.

Listen to the podcast to find out what that looks like.

Thanks to Ruby Receptionists for sponsoring this episode!

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Episode #43: What An Innovative Law Firm Really Looks Like, with Peter Carayiannis was originally published on Lawyerist.

Categories: Teknoids Blogs

Briefs: Practice Panther Raises $3.5M, Enter Zola, Ghost Data, Etc.

Mon, 11/16/2015 - 14:57

Practice Panther just announced it has raised $3.5 million, and the already-affordable ($29/month/user, paid annually) software is free through the end of 2016 so the developers can collect feature requests to build out the roadmap. If you want to help build practice management software according to your own preferences, you might want to give it a try.

Zola recently entered the other end (cost-wise) of the practice-management software market, with plans costing $68/month/lawyer and $34/month/staff when paid annually. Although the $99/month solo plan is a great deal if you have staff, since up to 2 staff accounts are included. Zola is really full-featured for just-launched practice-management software. The web app looks great, includes a full accounting sweet, and there are apps for iOS and Android.

E-signatures and clickwrap agreements is that if you don’t capture good data about the transaction, they definitely aren’t enforceable. I’m still not sure how useful that information is, but it’s definitely better than not keeping any. [internetcases]

Wiping a hard drive is fairly easy (just boot up DBAN and nuke it), but mobile devices can carry “ghost data,” too, even after they are reset.

In an examination of 122 pieces of second-hand equipment—mobile devices, hard drives and solid state drives purchased online from Amazon, eBay, and—48%of the hard drives and solid state drives contained residual data, while thousands of leftover emails, call logs, texts/SMS/IMs, photos, and videos were retrieved from 35% of the mobile devices.

The study was sponsored, of course, by Blancco, a company that makes software for wiping mobile phones. [The Ediscovery Blog]

Speaking of researching judges, there are a few big-data tools for trying to figure out your chances of success before a particular judge, including Lex Machina, Ravel Law, and ALM Judicial Profiles. [American Judges Association]

Gmail is going to start warning you when messages arrive over unencrypted connections. Email security keeps getting better, and more mail servers are encrypting email than ever before, but Google wants to speed things up by warning you when message arrive over unsecure connections. (Note: this is not the same thing as encrypting individual emails; we’re just talking about the pipe between sender and receiver, not the message itself.) [TechCrunch]

Featured image: “Hand holding retro stopwatch in black & white” from Shutterstock.

Briefs: Practice Panther Raises $3.5M, Enter Zola, Ghost Data, Etc. was originally published on Lawyerist.

Categories: Teknoids Blogs

Internet Tools for Researching Opposing Counsel, Judges, and Juries

Mon, 11/16/2015 - 07:12

Knowing the ins and outs of how other courtroom players think is a key ingredient in successful litigation. Here’s how to do it.

Begin with Social Media

When researching other lawyers, jurors, or judges, start with social media. Facebook and Twitter have their own advanced search features. You can also try Topsy or TwimeMachine, which include tweets deleted from Twitter. You can even set up a Hootsuite dashboard to monitor Twitter feeds and send alerts.

Social media aggregate searchers can save the time of searching each social media site independently. These include Spock, Pipl, and PeekYou. Spock is my personal favorite. In my experience, it is the most accurate and displays your results in an easy-to-read chart.

Tools for Researching Judges and Other Lawyers

To research opposing counsel, use Martindale-Hubbell to get the basics. A simple search will tell you what university or law school the opposing counsel attended and their date admitted.

The LexisNexis Litigation Profile Suite takes this to another level.

LexisNexis’s Litigation Profile Suite goes beyond a judge’s education with links to opinions, judgments, and even a nifty pie chart of cases by resolution. Litigation Profile Suite also holds information about lawyers and expert witnesses like:

  • Links to cases
  • The number of cases in each jurisdiction
  • The average duration of cases
  • Links to briefs, motions, and pleadings
  • Links to other related documents
Tools for Researching the Public

LexisNexis also has two extensive search engines for searching beyond the legal profession.

You can use Boolean logic or a search form to sift through billions of public records that generate easy-to-read reports and flag potential issues, such as a pending lawsuit, an atypical address, or a Social Security number being used by more than one person. From something as simple as names and addresses to unpublished phone numbers and property records, you can save your search for automatic updates when new and relevant documents become available.

Drawing from the same vast database of more than 45 billion records from more than 10,000 distinct sources, Accurint for Legal Professionals runs several deep reports on people and businesses.

I do not know why these are listed as two separate features on the LexisNexis website since they draw from the same databases. The primary differences lie merely in how you want reports customized.

TLO for Legal Professionals offers a competitive alternative to LexisNexis. Prior to founding TLO, Hank Asher also invented Accurint — LexisNexis’s people search — and other earlier generation products. Using algorithms, TLO generates customizable reports linking structured and unstructured data on bankruptcies, foreclosures, liens, judgments, assets, unlisted phones, and utilities data. In addition to the breadth of information in a single easy-to-use platform, TLO offers free trials so you can try out the research tools.

Although a number of juror selection apps exist to organize information during jury selection and trial,  iJuror also provides a search function. In addition to providing tools to quickly record juror information, color-code the jurors, and record questions, iJuror’s social media search function allows you to search a juror on Spokeo, Pipl, LinkedIn, Facebook, Google+ and Google. This feature come in handy when researching or updating information of seated jurors for reference during trial.

Cool and Creepy Research Tools

Crystal is by far the most intriguing Internet research resource I have encountered. Its proprietary personality detection technology provides insight into the most effective ways to communicate with each person based on their online presence. To put it simply, Crystal is psychic.

Using public information from across the web, Crystal assigns each person to one of 64 different personality types. Crystal’s profiles provide one sentence about communication style then provides best practices on communicating, emailing, and working with that person.

While the initial version is an email tool primarily intended for communication with colleagues, Crystal’s founder Drew D’Agostino says the technology has potential for proving useful in a number of other ways.

It can be helpful to know what language would be most effective while negotiating a settlement or if a juror is more driven by logic or emotion. Crystal even provides glimmers of each person’s sense of humor and examples of words that may be most effective.

As psychic as Crystal seems, it’s algorithms are not fool-proof. People are not always as their online personas seem.

Persado is another program that expands on this technology. Persado uses significant in-market analysis, psychological research, and millions of in-market interactions to classify emotional words and phrases into nineteen categories. By pinpointing certain criteria to make the writing more actionable and engaging, Persado optimizes the words and phrases in messages to be the most persuasive for a given target audience. The unique linguistic attribution dashboard even shows the relative impact of specific words and phrases.

Persado recently announced the expansion of its self-service Persuasion Automation product Persado Go. Persado Go is a self-service solution created for email which instantly maximizes the persuasiveness of digital communications designed to drive action through Persado Go’s easy-to-use software interface.

If Persado Go can write persuasively for fashion, financial services, gaming, retail, technology, and more then the same premise should apply to lawyers. Theoretically, similar algorithms could increase the effectiveness of legal writing or at least decrease the workload of many lawyers.

Then again, if robots can master the art of persuasion, would there still be a need for lawyers?

Featured image: “Online Research Representing World Wide Web And Website” from Shutterstock.

Internet Tools for Researching Opposing Counsel, Judges, and Juries was originally published on Lawyerist.

Categories: Teknoids Blogs

Don’t Call Your Clients if They Are in Prison

Fri, 11/13/2015 - 16:10

Recently, people behind bars who needed to make phone calls got a piece of semi-good news: the cost of their phone calls would decrease from criminally high rates to merely obscenely high rates, thanks to the FCC. Even more recently, though, people behind bars who needed to make phone calls got a piece of super bad news: the ostensibly super-secure prison phone call company, Securus, got hacked, exposing 70 million inmate calls, thousands of which were inmates calling their attorneys.

But a subset of the recordings — a minimum of roughly 14,000 — were made by detainees to attorneys, in calls that range from under a minute to over an hour in length. […]

We found that Securus recorded more than 14,000 phone calls to at least 800 numbers that clearly belonged to attorneys. That 14,000 figure, however, is likely an underestimate because it does not include calls to attorney cellphone numbers. In other words, the 14,000 attorney calls are potentially just a small subset of the attorney-client calls that were hacked.

So – the phone service your client is obliged to use when they are incarcerated does an incredibly poor job of (a) keeping their data secure and (b) honoring their constitutional protections. Worse, it isn’t as if you could just decide to have your client use some other more secure service that doesn’t have a nasty habit of recording their calls to you. There’s no free market behind bars.

Featured image: “phone in barbed wire sphere with flare illustration” from Shutterstock.

Don’t Call Your Clients if They Are in Prison was originally published on Lawyerist.

Categories: Teknoids Blogs

What’s Equivalent to a Handwriting Expert for E-Signatures?

Fri, 11/13/2015 - 12:07

Any debate over the validity of e-signatures is silly. Of course e-signatures are valid. You can agree to a contract with any clear manifestation of intent.

Party of the first part: If you agree to be bound by this contract, give me a wink and a nod. Party of the second part: <winks and nods> Party of the first part: Done. Judge: All good.

The hard part is proving someone agreed to a contract when they deny it. That, it seems to me, is when “wet” signatures have an advantage over e-signatures. You can bring in a handwriting expert to testify that the signature matches the witness’s other signatures. You can bring a pen expert to testify that the ink matches the witness’s favorite brand of pen. You can test the coffee stains on the contract for DNA.

How do you do that with an e-signature? With a proper e-signature service, you’ll get lots of circumstantial information generated by the computer on which the signature was made. Here’s what we get from HelloSign, for example.

But look closely. There’s an IP address, an email address, and some time stamps. There is no proof of who was using the computer at that IP address, or of who was logged into that email account. And if that seems unimportant to you, how many of you — not to mention your clients — share a user account on the same computer? How difficult would it be for you to sign into your spouse’s account? Or a family member’s? How often do you see Facebook posts from a friend, spouse, or someone who sat down in the computer lab to find the previous user still logged in?

I think it is a lot harder to effectively forge someone’s signature with a pen than it is to access someone else’s email account using their computer.

Does this mean e-signatures are no good? Of course not. Most of the time the debate is over the form and interpretation of the contract, not over whether someone signed it. E-signatures are perfectly fine when everyone agrees they signed the document. But in the narrow case where a party denies signing the document, I can’t see how an e-signature is equivalent — much less superior — evidence to a wet signature.

I’m not positive I’m right about this. Maybe I’m missing something. If I am wrong or missing something, or if I’m overstating the problem, I’d like to hear about it in the comments.

Featured image: “a signature and a fountain pen on yellow paper” from Shutterstock.

What’s Equivalent to a Handwriting Expert for E-Signatures? was originally published on Lawyerist.

Categories: Teknoids Blogs

Proper Deposition Objections

Fri, 11/13/2015 - 07:12

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself.

Related “Six Steps to Better Depositions”

Preparing your client

First things first. You must prepare your client for the deposition. Start by reviewing the case with your client, along with the questions you anticipate will be asked. Practice asking questions you think the deposing lawyer will ask — especially the hard questions you hope will not be asked.

If you are representing the plaintiff, review the complaint and walk through the facts alleged. Discuss the defenses raised and how the plaintiff might respond. Examine the damage calculations.

If you represent the defendant, reflect on the facts alleged in the answer. Discuss the defenses, and particularly the reasoning and factual support for each of them. If your client brought a counterclaim, cross-claim, or third-party claim, make sure your client understands the damages, including how they were calculated.

No matter which party you represent, carefully walk through the discovery responses. Play devil’s advocate with your client and challenge him or her with the hard questions.

Remember, the purpose of a taking deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible; the standard is could the information you are seeking lead to admissible evidence? So, information you cannot seek in trial can be fair game in a deposition and that is the beauty of depositions.

Remind your client of the following:

  • Answer only the question asked. For example, if you are asked what day it is, answer “Tuesday,” not “it is Tuesday and it’s my daughter’s birthday today and the sun is out.” (At the deposition, make sure you are sitting close enough to your client that you can kick him under the table if he is talking too much. I have had to do that during many depositions!)
  • If you do not understand a question, ask for clarification.
  • Do not get upset or otherwise react to the questions. Body language can be very revealing.
  • Do not look at your lawyer for help.
  • Don’t be afraid to say “I don’t know.” Do not speculate or guess.
  • Ask to take a break if you need one. (Be careful of what you discuss during the break; it is probably discoverable once the deposition resumes.)

Depositions can be tedious, but they are so important in litigation. Deposition testimony can make or break a case. It is sworn testimony that can be used to impeach at trial. It can expose the relative strengths and weaknesses of each party’s case. It can lead to crucial admissions or denials of liability. Through deposition testimony, you can truly push for quantification of damage claims.

When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book about deposition techniques. I was surprised to learn that very few objections are proper in a deposition. After observing several depositions, I discovered that many lawyers have not learned this. Lawyers often make deposition objections that are improper and interrupt the flow of information. And there are lawyers who have learned which objections are proper, but who make improper objections simply to interrupt and to intimidate opposing counsel.

Making improper deposition objections does interrupt the flow of the deposition, so you may think it hurts the lawyer taking the deposition. It can also interfere with your client’s concentration, and it can lead to a loss of credibility for the lawyer who continues to object.

No matter how opposing counsel behaves, keep your cool at all times. This is not always easy. If the other lawyer starts yelling, note his tone of voice on the record. (So the court reporter can take down your comments, say something like “let the record reflect that Mr. Jones is shouting” out loud.) If the lawyer gets out of control, you may wish to dictate a play-by-play of what is happening (“Mr. Jones is now standing up, leaning over the table, pointing his finger in my face and continuing to scream”). Above all, stay calm, make a clear record, and get the judge on the phone if necessary.

Improper deposition objections

  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield, though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment call on whether the question is likely to lead to admissible evidence.
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. If you are taking the deposition, you can determine based on the answer whether you should take Jane’s deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions that I won’t discuss here.)
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For example, it is permissible to ask “If you had known X, how would you have behaved differently?” However, be careful here, as this could be a proper objection depending on the question. Do not let your client speculate and object if the question calls for speculation. You may want to let your client answer if she knows how she would have behaved if she had known X.
  • Calls for an opinion. Foundation does not need to be established to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
    A: “No.”
    Q: “Why not?”
    A: “When I drove it 2 weeks before the accident they were acting funny.”

    The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery and the answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember” are coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections must be stated succinctly in a non-argumentative and non-suggestive manner.

Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.

If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.

Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)

Proper deposition objections

  • Privilege. This is the big one. It must be made or it is waived. This covers any privilege, such as attorney-client and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
  • Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.
    • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
    • Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is truly confusing, an objection may be proper.
    • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For example, if the deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did not know how fast she was going; she did not admit she was speeding.
  • Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing information, your client loses credibility. And the testimony can be used for impeachment at trial. The opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him off and make him doubt himself.
  • Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the specific conduct that is objectionable for the record, and further state on the record that you will terminate the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the harassment, terminate the deposition.

Many lawyers underestimate the importance of depositions. Whether you are defending or taking a deposition, knowing how to make and respond to objections, will lead to a more effective and productive deposition.

Originally published 2013-10-15. Last updated 2015-11-13.

Proper Deposition Objections was originally published on Lawyerist.

Categories: Teknoids Blogs

Sample File Opening Checklist

Thu, 11/12/2015 - 07:12

Client onboarding is the process by which you bring a new client into your firm. If you don’t have a client onboarding process, you should.

You should welcome new clients, set expectations for the attorney-client relationship, teach them anything they need to know about working with you, and complete the administrative tasks necessary to open their client file. A little effort up front makes for a positive experience, makes it less likely you will miss things, and makes it more likely your client will become a promoter.

The backbone of your client onboarding process is your file-opening checklist. Here are the things you should check off as soon as possible after a new client signs your retainer agreement. (I’ll be using MyCase as an example of how to implement a file-opening checklist in your practice-management software.)

Welcome Your New Client

Your client welcome package can be digital or physical. Either way, you should give it to your client as soon as possible after they sign your retainer agreement. You could hand your client a folder, send them an email, or mail them an actual package.

At a minimum, you should include a copy of their retainer agreement, your preferred contact information, and any tasks you need the client to complete. If you want to do something a little extra to make new clients feel welcome, you might include a care package with a thoughtful gift.

Align Expectations

Give your clients a roadmap to their legal matter. This could be a conversation (that you will probably have to have more than once) or it could be a timeline you prepare for them.

Tell your clients how often they should expect you to check in, and commit to returning their calls and emails within one business day. If you don’t want clients to expect you to respond immediately after hours, make sure they know that at the outset of your relationship.

Also, make sure you and your client are on the same page when it comes to the outcome of the representation. If you are pursuing one goal and your client is hoping for another, they are probably going to get angry.

Talk to Your Clients About Computer Security

Make sure your client knows how to get access to your secure communication portal, and make sure you follow up as necessary to get them up and running with it.

Since clients’ comfort level when it comes to technology may vary, you might want to help them set up their login credentials in person. It would also be a good idea to discuss basic computer security with them. Make sure they know not to open correspondence from you on their work computer, and show them how to set up their own, password-protected account on their home computer so their family cannot access your communications and other information about the case.

Administrative Tasks

Finally, you obviously need to take care of the administrative bits, like making sure you have scanned all the documents from your new client, entered all the relevant contact information into your practice management software, given them a receipt for any retainer, etc.

Get it All Done

The key to making sure your client onboarding process goes off without a hitch is to use a checklist. Every. Single. Time. The good news is that your practice management software should have templates that let you build your file-opening checklist once and reuse it on every new case.

Here is what your file-opening checklist might look like if you use the Workflows feature of MyCase:

Click to enlarge.

Now, all you have to do when you open a new case is apply the Workflow.

If you do that every time you open a new case, you will never miss a step.

Featured image: “Businessman working with documents” from Shutterstock.

Sample File Opening Checklist was originally published on Lawyerist.

Categories: Teknoids Blogs

Fight Over Access to Justice in Washington Turns Ugly

Wed, 11/11/2015 - 07:12

Many state bar associations are wrangling with how to close the access-to-justice gap. In 2001, Washington’s state supreme court set up a Practice of Law Board to study the issue, as well as deal with the unlicensed practice of law. The Board proposed allowing Limited License Legal Technicians to perform limited legal services, which became law back in 2012.  But due to a long-running feud between it and the Washington State Bar Association, which included controversy over LLLT’s, four of the Board members resigned yesterday.

The resigning members of the Board laid out their concerns in a letter to the Washington Supreme Court (pdf), which accuses the Washington State Bar Association of systematically undermining their mission to help provide legal access:

The Board’s mission is laudable and we could have accomplished much to help increase the availability of legal services to the public if we had been allowed to do our job. Instead of advancing our mission during the past two years, we have spent more time and energy responding to and fending off the Washington State Bar Association’s efforts to undermine and eliminate our Board.

The letter details the twists and turns in its ongoing fight with the state bar over eleven pages, and ends with this:

The treatment of the Practice of Law Board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers: oppose their mission; cut their budget; withhold meaningful staff support; personally attack and seek to oust the volunteers who disagree with you; conduct secret meetings to discuss the future of the group without informing its volunteer members or inviting them to participate; dismiss or reject out of hand the volunteers’ concerns; and replace the group’s members and leadership team. There is no surer way to demoralize a group of volunteers and undermine their good intentions.

In a statement to the ABA, the Washington State Bar Association said the letter was full of “significant misinterpretations and misunderstandings.” It seems that everyone agrees that we need to fill the access-to-justice gap, but no one can agree on how.

Featured image: “Stock image of person wearing business suit and boxing gloves isolated on white” from Shutterstock.

Fight Over Access to Justice in Washington Turns Ugly was originally published on Lawyerist.

Categories: Teknoids Blogs

Soon You Can Access Harvard’s Case Law Collection For Free

Tue, 11/10/2015 - 14:43

Harvard is renowned for an almost pathological level of copyright maximalism over the precious precious Bluebook. Rightly so, because forcing law students everywhere to buy that monstrosity nets them seven figures per year. However, it looks like they’ve decided to be a little less tight-fisted about their collection of case law, which is apparently enormous.

Home to the country’s most comprehensive collection of U.S. case law, second only to the Library of Congress, Harvard is partnering with technology startup Ravel Law to digitize its legal library — more than 200 years’ worth of cases — making it fully and freely searchable.

The digitization effort involves slicing up books and feeding them into a 12-foot-high scanner, which is a thing I didn’t know existed but now I really want. After everything is digitized, Ravel will get to work and make it all searchable and do all their cool data-mapping tricks with it, although only the searchability part of that will be free.

Ravel aims to offer up the massive store of legal information to the public but also to provide greater value to small firms with limited resources and large firms looking for a competitive edge. While Ravel’s search function will be free to use, it charges for subscriptions to its suite of analytical tools, which will soon be augmented by data from Harvard’s library.

Better still: Ravel will fling open the archives, cool tools intact, for scholars and researchers right away and make the database free for commercial entities after eight years.

Featured image: “Free comic book inscription pop art retro style” from Shutterstock.

Soon You Can Access Harvard’s Case Law Collection For Free was originally published on Lawyerist.

Categories: Teknoids Blogs