In any case, the video doesn’t quite approach the production value of Jamie Casino’s epic Super Bowl ad, but it’s pretty awesome in its own right, with screaming eagles, tanks, dreidels, and more.
Watch This Pittsburgh Criminal Defense Lawyer’s Over-the-Top Ad is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
This article was originally published in the January issue of Minnesota Bench & Bar.
Regardless of the verdict given, what attorney—having argued a case—hasn’t come away wishing for more insight into the minds and perceptions of the jurors? Given ten years of data from systematic surveys of jurors, some patterns in their responses emerge.
Early in my legal career I tried a civil jury case in Hennepin County District Court. The day after the jury decided the case, the presiding judge called me to say that it was his practice to meet with juries after they finished their deliberations and get their feedback on the trial, the judge, and the lawyers. He wondered if I was interested in hearing about that feedback as it pertained to me. Of course I was interested. Lawyers don’t have many opportunities to get jury evaluations, or any other evaluations. I learned some things from that jury and made some changes based on what they said. I learned that jurors did not like it when I moved too close to the jury box—it felt to them like I was invading their space. I also learned that my efforts to dress very conservatively in order to offset my youth and inexperience resulted in dress that they thought was too bland and serious. I have always been extremely grateful for the time that judge took to share the information with me.
When I began my own career as a district court judge, I made it a point to meet with every jury in any case I tried so that I could answer their questions and get their impressions on the trial process and their role as a jury. Some questions couldn’t be answered of course, especially the inevitable: “What would you have decided, Judge?” In addition, I sent them a survey a few days later and they were invited to return it with their thoughts and comments. Those discussions and jurors’ responses to the surveys offer interesting insights on the perceptions that jurors have of attorneys.Methodology
The data discussed in this article was collected from 109 jury trials conducted between 2000 and 2011, 91 of which were criminal and 18 were civil. Jurors returned 550 surveys: 489 from criminal trials and 61 from civil trials. The survey was designed to collect data about the judge, the court staff, the court facilities, the jury instructions, and the attorneys and asked for both objective ratings and subjective observations.
The majority of the respondents were from predominately rural counties of central Minnesota, in the 7th Judicial District. Results indicate these jurors are very respectful of the role of the judge and see the judge as a guide, teacher, and protector. They also universally note the helpfulness of getting jury instructions in writing in addition to the oral presentation.
Jurors were asked to respond to a series of questions that resulted in a numerical rating of the attorneys’ performance. In each of the categories, jurors were asked to rate the attorneys’ performance on a scale from 1=Excellent to 5=Very Poor. The categories they were asked to rate included Evidence Presentation, Courtroom Demeanor, Sincerity, Competence, and Preparedness. Jurors were also encouraged to provide written comments about what they liked about the performance of each attorney and to make suggestions they might have for improvement.
Data was analyzed by grouping all of the prosecuting attorneys and plaintiffs’ attorneys together as one group (referred to as plaintiff attorneys hereafter) and all of the criminal defense attorneys and civil defense attorneys as another group (referred to as defense attorneys hereafter). Follow-up analysis was conducted by separating ratings of plaintiff attorneys from those of the defense attorneys. The data was further analyzed based on three jury outcomes: (1) whether the jury returned a verdict that was entirely in favor of the state/plaintiff on all counts, (2) in favor of the defendant on all counts, or (3) there was a split decision.Survey Results
The results of the survey generally follow a pattern that you might expect—when jurors return a verdict in the attorney’s favor, they tend to view evidence presentation, courtroom demeanor, sincerity, competence, and preparedness of the attorney in a more favorable light. For example, on a scale of 1=Excellent and 5=Very Poor, jurors gave defense attorneys, on average, a competence score of 1.68 when they returned a verdict that was completely in favor of the defendant, 1.95 when they returned a split verdict, and 2.23 when they returned a verdict that was all in favor of the state/plaintiff. This represents a statistically significant 11 percent drop in the jurors’ perceived competence of the defense attorneys when the verdict went against them.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance …
Chart 1 illustrates jurors’ diminished perception of attorneys when the jury’s verdict was entirely in favor of the opposing party. The scores given denote the percentage change in scores for both sides from when the verdict was returned entirely in their favor to when the verdict was returned entirely in favor of the other party.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance and may wish to pay particularly close attention to these results. For example, defense attorneys’ scores for Courtroom Demeanor, Sincerity, and Competence dropped twice as much as those of plaintiff attorneys when the juries returned unfavorable verdicts.
It is also noteworthy that, in these same categories, apart from the percentage differences in scores, the jurors’ numerical ratings for the defense attorneys were significantly lower than those given for similarly situated plaintiff attorneys. When the defendants ended up victorious on all counts, their attorneys were given ratings essentially equal to the ratings plaintiff attorneys received when the plaintiffs lost on all counts. However, the ratings given to the defense attorneys were significantly lower (and the plaintiff attorneys were rated significantly higher) when the plaintiffs were victorious on all counts. That trend is readily apparent in Chart 2.
If the jurors rated similarly situated attorneys equally, as one might expect, the lines on the graphs would appear as a perfect “X.” One would expect the defense attorneys to be rated significantly higher than the plaintiff attorneys when the juries return a verdict in favor of the defendant on all counts and the plaintiff attorneys to be rated significantly higher than the defense attorneys when the juries return a verdict in favor of the plaintiff on all counts. This expected trend is most closely reflected in the ratings given to attorneys in the categories of Evidence Presentation and Preparedness. However, even in the categories where jurors come close to rating both sides equally, the plaintiff attorneys are still not rated as low as the defense attorneys when the verdict is not returned in their favor and they are rated significantly higher than the defense attorneys when the verdict is returned in their favor.
One might hypothesize why there is such a difference in these scores. Do movies like The Devil’s Advocate (where Al Pacino’s Satan-working-as-a-sleazy-defense-attorney character lives by the motto, “Better to reign in Hell than to serve in Heaven”) have a negative impact on juries’ perceptions of defense attorneys’ performances? Do juries project their general perceptions of the attorneys’ clients on the performance of the attorneys? The data collected in this study was not broad enough to shed any light on the answers to these questions. However, the results are so statistically significant that it suggests Defense attorneys should not ignore these facts as they step in front of a jury.Juror Comments
Jurors responding to the survey commented most frequently on their perceptions of the attorneys’ level of preparedness. Over 11 percent of all of the jurors’ comments about the attorneys were some form of the following statements: “Well prepared,” “Appeared to have done his research”; or, “Did not seem prepared,” “Wasn’t on top of things.” The blanket compliments or criticisms about the attorneys’ level of preparedness do not, by themselves, shed much light on how an attorney can improve his or her performance—unless of course the attorney was indeed unprepared. However, insofar as a blanket compliment or criticism was accompanied by some additional performance-related observations, as was often the case, jurors’ comments may be instructive. Jurors responding to the survey most frequently offered the following sorts of performance-related observations:Plaintiff Attorneys:
These comments can serve as a reminder for both sides that those basic presentation skills are important to consider throughout the trial and not just during the opening and closing arguments.More is Better
The jurors’ second most repeated suggestion for both plaintiff attorneys and defense attorneys will not come as a surprise to many litigators. No matter what type of trial or what amount of evidence is presented at trial, jurors are never satisfied with the amount of evidence that they must rely upon to make a decision. Twenty-five percent of all written suggestions for improvement (and 9% of all comments) for the attorneys for both sides included some form of the following statements: “Needed more evidence” or “Call more witnesses.” One might hypothesize why jurors are never happy with the amount of information they receive. Certainly, much has been written about the so-called “CSI Effect” on juries—the debate over whether movie and television crime dramas instill in jurors unreasonable expectations about evidence collection.
While we cannot be certain that the results presented here provide clear support for the CSI Effect, both the data and my conversations with the juries following trial suggest that questions about the amount and type of evidence collected regularly arise while the jurors are deliberating. In order to be effective on behalf of clients, whether in a criminal or civil case, attorneys must be ready and willing to delve into questions that may be on the jurors’ minds about evidence that was not presented—e.g., Why didn’t the police get fingerprints off of the victim’s t-shirt? or, Why wasn’t a specific medical test performed? In my experience as a judge, these information gaps, if not addressed by the attorneys at trial, will be filled by the jurors during their deliberations with whatever information or assumptions they have available to them.
“Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”Conclusion
All of the jurors with whom I have had the pleasure of working deserve commendation. They show up because our legal system is reliant upon them and because they are required to do so. Many do not have any interest in the law and often resent the intrusion on their busy lives. However, when they are called upon, they put forth an extraordinary effort. I can say without reservation that I have been awed and gratified at the universal attitude of jurors who wish to do the right thing and give their time and attention in a sincere effort to follow the instructions of the court and to be fair and judicious. While the jurors’ perceptions and the attorneys’ presentation skills discussed in this article affect how the evidence is presented and received, I think that most practitioners will agree that the vast majority of juries weigh the evidence fairly: They are able to see the forest for the trees and provide both the judicial system and the parties a truly fair and reasonable arbiter. The sagacity of juries is perhaps best captured by a bit of advice from a juror in a criminal trial whose comment is relevant to every litigator: “Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”
The author acknowledges with thanks the assistance of his judicial law clerk, Boe Piras, in preparing this article. Mr. Piras is now practicing law in Cold Spring, Minnesota as an associate in the firm of Willenbring Dahl Wocken & Zimmerman, PLLC.
Featured image: “Defendants with lawyer and jury” from Shutterstock.
What Jurors Think About Attorneys is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Over at Associate’s Mind, Keith Lee crunched the numbers and realized that the decline in LSAT scores signifies just what you think it would signify: fewer top students are applying to law school. This is actually the continuation of a trend Lee identified last year, and it is a clear downward trend.
Maybe smart college graduates don’t want FutureLaw jobs. Or maybe they have done the cost-benefit analysis and realized that law school is a pretty terrible investment (despite optimistic reports of a law-job surplus within the next few years). Now that they are too smart for law school, they are probably just going into business and finance, instead, so they will help drive our economy off a cliff again in 10–15 years.
Whatever the reason, this is both good and bad. On the one hand, it is good because legal industry seems desperately in need of a “market adjustment” (fewer lawyers). On the other hand, it is bad because we always need smart, talented lawyers.
Nation’s Overachievers Losing Interest in Law School is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
In law school, grades are often determined by a single test: the final exam. Getting good grades in law school therefore depends on just a handful of tests at the end of each semester.
Obviously, it makes sense to put your best efforts into these exams.
Randall Ryder and Nena Lenz advocate taking a deliberate approach to final exams, and in a new Lawyerist eBook, Law School Exams: A Lawyerist Survival Guide, they walk you through their process for preparing for final exams and taking open- and closed-book exams, take-home exams, and even final papers.
Here is a preview of the table of contents:
Law School Exams: A Lawyerist Survival Guide is available for Kindle (both the device and the app) right now on Amazon for $9.99.
Law School Exams: A Lawyerist Survival Guide is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Legal funding is still a relatively new industry. While many people have heard about it, not many people know exactly what it is, or how it works. To give people a better idea of what legal finance is, we’re going to turn a few myths about the industry on their heads.
When someone is financed through a legal funding company, the company assumes all risk of loss, meaning that the borrower will be entitled to the same sum regardless of most complications. Moreover, there are no restrictions as to how the advance can be used. Many plaintiffs use legal funding advances to cover the costs of daily life; still others will use this sum to pay off any bills associated with their trial. While it is true that interest rates for legal funding are higher than those of traditional lending institutions such as banks or credit unions, this high interest balances out the risk undertaken by the funding company.
Common Misconceptions about the Legal Funding Industry [Sponsored] is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
February’s Time magazine cover story was “The Mindful Revolution.” The word mindfulness seems to be the new, hot buzzword, making regular appearances in the New York Times, Forbes, Harvard Business Review, and even the ABA magazine. There is even a weekend long conference in San Francisco dedicated to discussing mindfulness and looking for ways to cultivate it in our culture and in companies. The conference is called Wisdom 2.0 and this year, over 2,000 attendees will come and hear the gurus of mindfulness like Eckhart Tolle and Jon Kabat-Zinn. Companies across America are bringing mindfulness training program for its employees — Google, LinkedIn, General Mills, and even the NFL. Google’s in-house program was so successful that it is now a stand alone program, training people in the Search Inside Yourself program.
So, what exactly is mindfulness and why should lawyers care? The simple answer is that practicing mindfulness will help you be a happier human being and a better lawyer.Understanding Stress
Let’s start by understanding the human physiological response to stress. Suppose you are in a heated conversation with your least favorite opposing counsel. Your brain — specifically the amygdala — sends distress signals to the hypothalamus. This triggers a chain of events in your body as it prepares for battle.
Your heart rate increases, and blood pressure goes up. Your breath gets shallow, and you start to breathe more rapidly. The extra oxygen increases alertness, sharpening your senses, such as sight and hearing. Your body also starts releasing stress hormones. Your blood moves from the core of your body to your extremities, stopping digestion. The body also releases sugar and fats from temporary storage. Your blood gets thicker, readying itself for rapid clotting in case of blood loss. All of this happens automatically and almost instantly. This is the fight-or-flight response.
The part of the brain that is involved in the fight-or-flight response is the hypothalamus, the oldest part of the brain from an evolutionary perspective. This automatic response has allowed the human species to survive for as long as it has. This reaction is great, and necessary if you are being attacked by a tiger, but it is not very useful when you are trying to resolve an issue with opposing counsel.
The problem with the fight-or-flight response is that it makes it difficult if not impossible to fully utilize the frontal cortex — the part of your brain responsible for executive functions and making good decisions as a lawyer. (As the name suggests, the frontal cortex is in the front of your head, behind the forehead.)
The frontal cortex is the part of the brain that should be in the driver’s seat when we are trying to resolve a dispute with opposing counsel. It is the part of the brain responsible for planning complex cognitive behavior, making decisions, and moderating social behavior. From an evolutionary perspective, the frontal cortex is the new kid on the block. It is what sets us apart from other mammals. Unfortunately, when you are in fight-or-flight state, your frontal cortex takes a backseat to the hypothalamus.
Research indicates that there are specific tools you can use to halt the stress response, lower levels of the stress hormone, and recover more quickly from stress so you can access higher brain functions. This technique is known as mindfulness.Impact of Mindfulness on Stress Situation
The practice of mindfulness is basically training for the brain (and mind). It is a tool we can use to calm the hypothalamus and allow the higher brain function to take place. All of us intuitively know that we function better when we are not stressed and in a panicked state. However, we may not have the tools to be able to calm ourselves in the moment.
Mindfulness is paying attention to the present moment. In my example above, when you are interacting with the opposing counsel, mindfulness allows you to respond thoughtfully instead of just reacting. When you are mindful, you are able to notice your emotional state in that moment. So instead of lashing out at opposing counsel in anger, you can pause (even if for a second) and simply acknowledge that you are angry. This ability to see your feelings and thoughts without getting carried away by them is the cornerstone of mindfulness practice.
Once you are able to see your own anger in the situation, you have the opportunity to choose your response. Maybe the best course of action is not to match opposing counsel’s anger and yell back. Maybe you can take a few deep breaths, give your nervous system a chance to recover, and then respond by saying “I can see we’re both very angry. I’d like to continue this conversation tomorrow.”
The ability to soothe yourself in the moment and avoid a knee-jerk reaction sounds great in theory, but it is incredibly hard to do. This is why mindfulness must be practiced and cultivated.Rewiring Your Brain
Numerous studies suggests that mindfulness decreases stress and anxiety. Mindfulness Based Stress Reduction (MBSR) programs are being taught all across the country, from elementary schools to hospitals — even to law schools. What the data indicates is that meditation can actually rewire your brain, creating new neural pathways and increasing brain density and grey matter.
Studies also indicate that you do not have to be a zen master or go on a year-long retreat to gain these benefits. It is possible to make these shifts in as little as 8 weeks. Consider the impact on your life if you could have a different response to a stressful situation. By rewiring your brain, you can tap into all of your internal resources and increase resilience.
The way you react to a particular situation is based on how your brain is wired. Your brain may already be wired to react negatively, with anger and hostility, to opposing counsel because of something he said or did years ago. Each time you interact with him, the same buttons are triggered. If you could rewire your brain, you could lessen the impact of those feelings.How to Practice Mindfulness
There are two primary ways to practice mindfulness: formal and informal practice.
The formal practice is meditation. Meditation allows you to turn your attention inward and notice your internal state. Often, we miss the internal cues about what is happening inside of us. This is especially true for lawyers, where ideas like noticing feelings is frowned on.
We may be able to temporarily fight through our anger, anxiety, hostility, but soon or later those feelings will catch up to us. During meditation, you simply observe your emotional reaction — as if you are watching a movie. Imagine that you are watching a scary movie. Even though you may experience sensations of feeling scared, there is a detached part of you that recognizes that these feelings aren’t real because it is just a movie. Similarly, during meditation, we learn to recognize just because we feel angry doesn’t mean we should react in anger.
Here are the four basic steps to practicing meditation.
As you practice this technique, you will become more skilled at observing your emotions, feelings, and thoughts without reacting to them. Most of us can think of a time when we were so blind with anger that we reacted in a way we regretted later. When you are mindful, you can pause, even if it is for a split second, before you react. It is sort of like counting to 10 before you respond when you are angry. It gives you a moment of clarity in which you can see the situation from an objective point of view, instead of through your emotions.Bringing Mindfulness into Everyday Life
The informal practice is the all the time you spend doing something other than meditating.
You can practice mindfulness anywhere and any time. For example, instead of having your mind fly off into 50 directions when you are in the shower, you can practice mindfulness. Notice the sensations of being in the shower. Notice the temperature of the water. Feel the water running over your body. Smell the shampoo, conditioner, and soap. Being mindful allows you to be in the present moment. These simple acts are what rewire your brain and increase executive function.
Mindfulness reduces the endless thought loop where we are obsessively thinking about some future event (or past event) that is completely beyond our control. Mindfulness practice lets us focus our attention on the things we can control and let go of those things that are beyond our control.
You can also practice mindfulness when you are in the courtroom. Really pause to hear opposing counsel’s argument, and be in the moment instead of coming up with your rebuttal after you have heard only a small fraction of the argument. Once you have heard and understood opposing counsel, you can take a few breaths and formulate your response.
All of us have had days where we bring stress home with us. Practicing mindfulness allows you to leave more worries behind, because being mindful means focusing on the present moment. Instead of going over something the judge said at the hearing, you can tune into what is happening at the moment.Mindfulness is a Practice
Just like law, mindfulness is a practice. It is not something you achieve or accomplish after a couple of tries. Somedays, the practice is easier. Other days, it is harder. The fundamental aspect — observing the present moment without preference or judgement — is very simple but difficult to cultivate. As with anything, practice makes it easier. The more you exercise your mindfulness muscle, the easier it becomes. The more you can tune into each moment with clarity and calmness, the better you will be able to respond. In addition, when things do not go your way or take an unexpected turn, you will be able to stop yourself from going into full panic mode. You can stop your emotions from spiraling out of control.
It is ironic that lawyers are paid to use their brains all day long, but are never given the tools to get the lizard brain out of the driver’s seat. Shouldn’t the parts of our brain responsible for higher function to be able to operate at their peak?
With the constant distractions in our lives from email, Facebook, Twitter, and all the bells and buzzes of our smartphones, our attention is being pulled into so many directions. The ability to stay in the moment of whatever task at hand is a crucial skill. How often do you sit down to write a memo only to find yourself off-task a few minutes later? In meditation, we are training our brain to come back to the task at hand — focusing on the breath. Similarly, we can use this skill to bring ourselves back from the distractions.
Finally, the practice of mindfulness is the perfect compliment to the practice of law. As lawyers, we love taking control. Often, we make ourselves anxious and stressed by worrying about things that are completely out of our control. In any given case, we generally do not have any control over the law, or the opposing side, or even our clients. That really limits the thing we can control to ourselves.
I have found that the hardest part of practicing mindfulness is making it a practice. Like all habits, it requires a commitment and, to a certain extent, a leap of faith. It is similar to starting an exercise program. In order to gain the benefits, you have to practice regularly. However, like any new habit, the key is to manage your expectations so that it is achievable. Just as you cannot go from being a couch potato to running a marathon, you have to ease into mindfulness. The good news is that you don’t have to spend hours cross-legged, eyes closed, on a meditation cushion. You can easily practice meditation at your office, sitting on your office chair, for a few minutes a day.
Featured image: “Head and shoulders portrait of a serene young professional woman” from Shutterstock.
How to Increase Focus and Productivity with Mindfulness is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.
Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.
That’s because oral argument is so much more dynamic than an outline — even if you have a “cold” bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs.
Preparing for oral argument takes a deep understanding of the law, the facts, and the arguments. Then, you need to break up your argument into “modules.” You can organize your argument (not just outline it) around your modules, but then you must practice making your argument in and out of order. Only by doing this will you be prepared to field questions and deliver your argument with skill and nimbleness, instead of rigid adherence to an outline.Ditch the Outline
An outline isn’t inherently good or bad, but it encourages rigid thinking. Lawyers who rely on an outline alone tend to get thrown off by questions, which often results in repetition and skipped issues.
Worse, many lawyers also haul a binder (or several) full of cases, pleadings, exhibits, and briefs to the podium, which they try to rely on while delivering their arguments. I think this is because they rely on their stacks of paper in place of adequate preparation.
Of course you can use an outline if you really want to — I do — but it is important to shed the rigid thinking and intellectual laziness that outline-as-preparation encourages.Practice Intense Preparation
There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to say Prepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.
You must know four things about your case for every argument:
1The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.
2The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.
You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions — few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.
3Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.
Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.
4What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.Organize and Practice Your Argument
Here’s how I like to organize my argument. I write each issue I want to discuss or point I want to make on a separate index card (or piece of paper, but the idea is to keep it short — these are prompts, not parts of a script). Then, I take each index card and practice the argument around that topic or idea. Usually, the oral argument starts to organize itself as I do this, because I generally refer to other cards as I go. As the argument begins to take shape, I start laying out the cards on the floor to sort them.
As I lay all the cards out on the floor (this works great for organizing the topics you want to discuss with a witness on direct examination, too), I put them in the order that makes the most sense. Group them into the two or three main topics you need to argue. Even if your argument is going to be complicated by necessity, group it into a few main topics, if you can.
Now, turn those main topics into a roadmap. Starting your argument with a concise roadmap is helpful for the court, because the judge will know right away if she is likely to get an answer to her questions, or if she should just go ahead and ask them now because you aren’t likely to cover them.
Spreading out index cards on the floor works for me, but you could also do an outline, if you prefer. I just think it works better to start with something more flexible, and convert it to an outline as it starts to come together.
Whether you do an outline or not, you should also practice your argument as a single, cohesive unit. You might get a cold bench, after all. I usually run through my argument this way a few times, then set my index cards and outline aside and go for a walk. (Bring your dog, if you are preparing at home.)
With no prompts in front of you, go through your argument several more times from memory. Work through it without resorting to your outline or notes. This will force you to learn your argument much more thoroughly than if you are always relying on your notes.
Practice your argument with non-lawyers, too. If they look bored, you aren’t doing a very good job. Keeping a non-lawyer interested forces you to boil down the facts, issues, and arguments to their essentials. You can always go into the nitty-gritty (boring) details if you need to, but it’s generally better to get to the point — especially with judges.Commit Your Argument to Memory
Outlines, binders full of reference material, and other paper and props are distractions, not performance aids. The best way to argue is from memory (although it won’t hurt to bring your index cards or outline with you, just in case — or just for show).
If you have followed my advice so far, you have essentially committed your argument to memory. Deep understanding of the facts and law will give you the ability to discuss the issues without an outline to guide you. Practicing your argument out of order helps dissociate each issue from your outline. Getting out of your office and walking as you practice will help you embed your argument in your brain. As you walk around, your brain will associate your argument with your surroundings, which will make it easier to remember your key points when you are under stress at the podium.
Your goal is not to remember your argument word-for-word; that is counterproductive. Your goal is to know what you want to say about a topic whether or not you are interrupted. If you are interrupted, you must be able to locate the question in your argument, then segue gracefully back into your argument after you answer. In other words, know what you want to say, and then cover at least the key points whether or not you are interrupted with questions.
If you have followed the steps above, you should have your argument sufficiently “memorized.”If You Can, Moot Your Argument
Not every argument merits the time and expense of a moot session — or several. But if you can moot the issue, you will get invaluable information and feedback. If your “judges” do a good job, you will have a good idea of what you may hear from the bench. You will also get great feedback on the way you argue so that you can improve.
I’ve had the opportunity to conduct several moot sessions on both sides of the “bench,” and it has been well worth the effort in each case. Do it if you can.Last-Minute Prep On the Day of Your Argument
Here is what works for me on the day of my argument, but what you do is not as important as having a routine that quiets your nerves and gives you one last refresher of the facts, law, and your argument.
I usually get dressed, then go walk the dog. (My hearings tend to be first thing in the morning.) While we walk, I run through my argument — out loud — two or three times (wear a Bluetooth headset if you don’t want to look crazy, and people will think you are just on the phone). I keep it up in the car on my way to court. I don’t have my index cards or outline out when I do this.
When I get to court (always at least fifteen minutes early), I sit down and jot down my main “talking points” on a legal pad, referring to my outline if I need to. When my case is called, that’s all I take to the podium. I don’t try to review cases or the facts at this point. If I don’t know them by the time I am sitting in the courtroom, I’m not going to learn anything in those few minutes before I stand up to argue.
Preparation is key. If you have done enough, you will be confident behind the podium, and you will rarely be surprised by what happens in the courtroom. Don’t half-ass your preparation; it is always better to be over-prepared.
This was originally published on March 5, 2012. It was revised and republished on March 2, 2014.
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How to Prepare for Oral Argument is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Help A Reporter Out (HARO) was launched in 2008 as a way to connect reporters and experts needed for media stories, from television clips to online news articles.
Today, it’s one of the fastest growing publicity services online, and lawyers can use the platform as a cost-effective way to publicize their practice and display their expertise.
But it can also help in other ways. You can use the service to build media contacts, gain more search engine traffic and strengthen your reputation.
With everything it has to offer, HARO can become a significant aspect of your overall online marketing strategy. Here’s how to make it work.HARO 101: The Basics
HARO helps reporters find sources for their stories, and helps sources – experts, business owners, professionals – get free publicity by being featured in news articles.
The service is used by hundreds of major online outlets, including Forbes, Gannet, Associated Press, Reuters and Fox. It’s also used by thousands of smaller publishers, like blogs, trade magazines and local radio stations.How HARO Works
Every weekday, HARO send out three daily emails (5:35 a.m., 12:35 p.m. and 5:35 p.m. EST) with queries, which are pitches from reporters who need information for their stories.
A query includes the reporter’s name, media outlet, deadline, summary of their needs, and any requirements for their sources.
An example of a query would look like:
Name: Joe Smith, Reporter for Popular Legal Website
Category: Business and Finance
Media Outlet: Popular Legal Website
Deadline: 7:00 PM EST – 20 February
Looking for lawyers who can comment on the legality of the delays given to various Affordable Care Act employer mandates.
Must be a lawyer who is familiar with administrative or healthcare law and is knowledgeable about the current status of the ACA and the delays for its employer mandates.
The emails are sent out to a list of people that have signed up as sources. From there, it’s simple: sources who can reliably comment on the topic can send an email to the reporter. The email is sent through an anonymized email, much the same way Craigslist handles initial emails.
The reporter can then sift through responses to find experts and information that best fit the needs of the story. Typically, the reporter gets in contact with the source if he or she has decided to use the source’s information.
When the article comes out, the source is cited as an expert, and boom — free publicity.
Who Can Use HARO?
Anyone can sign up to a source on HARO, but those with more experience, credentials or expertise are more likely to get the attention of reporters.
On the reporting side, there’s a list of query guidelines reporters must meet in order to have their queries sent out to sources. One major requirement is that the reporter’s website must have an Alexa.com ranking of one million or less. This ranking is loosely based on overall traffic to a site and prevents queries from bloggers who are writing for new or unestablished sites.
Why Use HARO?
For lawyers, the most beneficial part of HARO is getting free publicity. When you’re used as a source in the media, this can result in:
On HARO’s website are a number of success stories: tales of companies that have had massive PR success simply from answering a query and being featured in media stories.
What Else You Should Know
Although use of the service is increasing, HARO still runs a tight ship. They only have a few rules:
The HARO process is simple, but that doesn’t mean free publicity comes easy. Here’s what you can do to maximize the marketing value of HARO.How to Use HARO as a Source
Success with HARO is essentially a numbers game. You might respond to ten queries in one week and only hear back from one or two reporters. The publicity you receive from those few opportunities, however, often makes up for the lack of response to your other emails.
Your job as a source is simple, then: to be the most appealing response to a query. Legal queries, especially those from large websites or publications, can yield anywhere from 20 to 50 or more responses, which means the amount of publicity you receive is largely based on your ability to stand out from the pack.
How do you do that? Make the reporter’s job as easy as possible. In my experience, working both as a source and a reporter, the most effective HARO responses are:
If you can craft a response that hits on all of the above, you have a much better chance of being the selected source for a story.Be Relevant
Sending an off-topic pitch is not only against HARO’s rules, it also annoys reporters to no end. They’re usually on deadlines or working on multiple stories, and irrelevant emails won’t do either of you any favors.
As you’re searching through HARO queries, look for topics that you can definitively comment on. If you’re not comfortable speaking to other experts about the topic, save your time and skip it.
Cast a deep net instead of a wide one, focusing on the areas you’re most familiar with and exercising patience. That’s not to say that you can’t be creative, however. If you handle your own online marketing, for example, then you may be able to comment on a query asking for online marketing tips.
In fact, applying your expertise to related queries like this can often get you better results because other lawyers aren’t looking at these queries.
The other factor in being relevant is providing actual expertise and information. Don’t send a BS pitch full of fluff and robotic quotes that sound like they’re taken from your firm’s latest press release. Reporters can recognize this type of pitch from a mile away, and it’s not likely to be included in a story.
Instead, make sure there’s a clear focus and take-away from your response. Ask yourself if you’d find the information useful had you been unaware of it. If you don’t have anything of value to offer, don’t bother responding.Be Timely
Although there are deadlines attached to each query, ignore those and plan on responding to a query as soon as possible. When you find relevant queries, take enough time to compose a good response, but take no longer.
Even if a stated deadline is still days away, many reporters like to use the quality responses they receive first. Again, it’s about making their job as easy as possible. When you’re one of the first responses, and you offer solid insight, the writer may be more likely to include your information in an initial draft of the story.
The importance of timeliness also depends on the subject. Broad queries that focus on legal topics in general are likely to receive more responses, while highly specialized queries may receive fewer responses and therefore, you may have more time to respond.
In general, it’s best to get in the habit of responding as quickly as you can without sacrificing the quality and focus of your response.Be Professional
As a reporter, when I receive responses that have poor grammar, lack of formatting or even one sentence summaries, I delete them on the spot. With HARO, part of being an expert is looking the part, and this means sending professional emails.
They can still be quick, direct and informal, but there’s no room for grammar errors, lack of information or other unprofessional mistakes. Include an actual greeting, a complete rundown of your idea, and your contact information.
Also, be sure to heed any requirements or directions the reporter puts in their query. If they ask for a brief bio, include a brief bio. If they want to conduct a Skype interview, make sure you can do that.Be Direct
Part of being professional, and useful, is getting right to the point. Don’t start your response with your background or expertise or anything else other than the information that directly answers their query.
You can include that information later on in the email, but again, think from a reporter’s point-of-view. They don’t want to wade through your credentials – they want to see what insight you can offer.Don’t Be Overly Promotional
In talking to other writers who’ve used HARO, it didn’t take long to name our biggest peeve: self-promotional responses. In most cases with legal queries, this isn’t an issue: the lawyer responds with information and also mentions their firm, website or service.
For some legal professionals, it’s easy to see HARO as a vehicle similar to a press release, particularly for those who have branched out and started a non-practice legal business, like software service or phone app.
But pitching your platform before your expertise won’t get the positive attention you want from a reporter. Instead, focus on your pitch, and only afterwards should you mention your company or website.
It’s also a good practice to avoid asking if the reporter will be including a link to your website. Links and increased organic traffic may be a benefit of using HARO, but those metrics shouldn’t be your main goal. Asking for links will send up a red flag that will make it a lot easier for the reporter to skip your response.
As long as you’re adding value to the story, you can still get the publicity you want, but it will be for your insight, not for what you’re trying to sell.Above All, Demonstrate Expertise
Of all these elements, by far the most important is your ability to demonstrate expertise. If you send a response that’s late, full of errors and long-winded, you might still have a chance of being featured if you offer extremely valuable information.
The idea of expertise, then, can trump just about everything else – including your actual expertise. What I mean is this: when responding to queries, you don’t have to be the leading expert in your field. You simply have to offer a response that appears expert.
Of course, writers want to profile well-known figures in the field they’re discussing. But depending on the scope or needs of the article, they’ll take anything that’s useful, even if it’s from someone largely unknown in the public eye.
Often, it doesn’t matter if you’re a budding lawyer or a savvy, grizzled rainmaker – if you can project what appears to be an expert voice, you can get the attention of a reporter.Other Useful HARO Tips
Keep track of the reporters you work with. Whether it’s saving them as contacts or connecting on LinkedIn, keeping in touch with reporters is a great way to become a consistent source for their stories. It may be against HARO’s rules to harvest email addresses, but it’s entirely okay to build out your media connections for future opportunities. This is particularly helpful if you’re putting out news, survey results or other assets that you’d like to get media attention.
Keep your responses conversational. A lot of writers take quotes directly from the emails themselves, rather than setting up separate interviews. Be prepared for this by offering conversational emails that would be easy to quote, in full or in part.
Let the reporter do the following up. Chances are good that most times, your response won’t be used. Instead of emailing the reporter to follow up, wait for him or her to get back to you. If your information is used, they’ll let you know, usually thanking you for your feedback and offering a link or date of publication.
Leverage your publicity. If you have success with HARO, use this media to your advantage. Feature it on your site or blog to demonstrate to potential clients that you have clout in the industry. Share the links on social media. If you’re featured in an online story, engage with commenters who have questions or comments.Harnessing the Potential of HARO
Plenty of lawyers are currently using HARO to gain free publicity, but few have perfected the process to make it an efficient part of their marketing strategy. HARO is all about a mutually beneficial relationship between reporters and expert – keep this in mind when you send responses and you’ll have a much easier time of getting free publicity.
Featured image: “image of a young journalist, sitting at the table for a typewriter” from Shutterstock.
The Lawyer’s Guide to Help A Reporter Out (HARO) is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
A few weeks ago, I asked a local solosmall email list whether small firms have a diversity problem. My question was prompted by a job posting from a small firm made up exclusively of young, white men (except for the secretary, who was a young, white woman).1 On reflection, I could not think of many small firms with any better diversity (including my own, which, at its most-diverse, was three white men and a remote assistant who was a white woman — oh, and a couple of Irish foreign exchange students from a local law school, both men).
But I didn’t think it was fair to apply my limited anecdotal experience to an entire segment of my state’s legal market, so I tried to crowdsource it. While it is relatively easy to survey big firms for diversity, it would be virtually impossible even to list all the firms with 2–20 lawyers or so in any metropolitan area, much less survey them for diversity.
I figured the members of my state’s solosmall listserv, who come from all over the state, would be able to give me a better idea of small-firm diversity. So I asked, and although I got well over 50 responses, almost nobody told me whether they had encountered diversity in small firms. Instead, I got responses like this:
[T]his resembles a camel in the Sahara, looking for sand. There’s plenty of it, but so what?
I’m really not sure what that means. I also got a lot of reactions like this one, suggesting that many lawyers took the question personally:
My firm consists of two lawyers – one fifty something woman, one thirty something man. Does the fact that we are both white mean that we have a diversity problem?
And a few anecdotes noting the existence of a person who is a member of a racial minority somewhere nearby:
There is an attorney of Chinese ethnicity in the Stearns County attorney’s office. Is that enough diversity for you?
(That one may have been a joke, to be fair, but there were many others essentially identical to it that were definitely not jokes.) Many of the responses went similarly, with an account of the sender’s firm’s makup, and a challenge — “Is that diverse enough for you?”
Just by asking about diversity, I guess I set myself up as a target for people who either don’t want to talk about diversity or don’t believe there is a diversity problem in small firms. I felt like I was asking the NFL about concussions.
It would be easy to assume that these comments come from people who are defensive because their own firms lack diversity, but that is not necessarily the case. Some of the lawyers I quoted about are diverse in their own right, or come from firms most would consider diverse.
So in the end, I still don’t know whether small firms are diverse, much less whether or not we should consider the existing level of small-firm diversity to be a problem. What I do know is that most small firms don’t do a lot of hiring. A very small firm may hire just a handful of people during its existence. That’s not a lot of opportunity to introduce diversity, and I wonder how many small firms even consider diversity when taking on a partner. Maybe a lot. Maybe none. And if small firms tend to be homogenous as a result, is that a problem?
One person who responded came at the issue from a different angle:
I started my career in Biglaw and periodically hang out at events where someone is addressing the “lack of diversity” in the profession – without questioning the unspoken assumption that “the profession” is big firms. Biglaw was invented by old white guys between 1900-1970, and it continues to bear all the hallmarks of its era. Expecting it to accommodate difference in any meaningful way is (in my opinion) like expecting a cruise ship to sprout wings and fly. That’s just not what it’s for.
So after hanging my shingle, imagine how fun it was to discover where the missing “diversity” was hiding… in plain sight, in solo practice. Pretty much every Title VII protected class I can think of is “overrepresented” among solos and smalls relative to Biglaw.
In other words, maybe solosmall, taken as a whole, is more diverse and that’s a problem.
Still, I am no closer to an answer, so I will try again. Do you think small firms are diverse? Do you think the level of diversity you have observed in small firms is a problem? Why?
Featured image: “Image of businesspeople’?? silhouettes in a rush” from Shutterstock.
I did follow up with one of the owners. He said his first two hires were women, although the next few happened to be men. And even though the firm photo had only men, they recently hired a female lawyer who was not yet on the website. He said he was sensitive to the perception that his firm lacks diversity, and that the firm is doing its best to address it.
Do Small Firms Have a Diversity Problem? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I basically gushed about Pad & Quill’s iPad 2 cases when I reviewed them in two years ago, so I was excited to get a pair of cases to review with my iPad Mini.The Pad & Quill Graduate Collection
Pad & Quill’s Graduate Collection cases are bound like library editions of classic literature. When closed, that’s pretty much what it looks like — although if you look closely, you’ll see wood grain instead of trimmed pages. And not many library books have an elastic band holding them shut.
The bindery cloth is touch, and Pad & Quill claims it is much more durable than previous materials. It feels great in the hand, too — I just love to hold it.
The wood frame is a bit lower profile than the iPad 2 cases I tested. The rubber “bumpers” that hold the iPad Mini in place are slimmer, so the whole thing fits nice and tight, with the wood flush with the surface of the display. The “bookmark” makes it easy to get your iPad out, if you ever want to remove it.
The cover has an embedded magnet so that when you open the cover, your iPad switches on. There are spaces cut out of the wood for the iPad Mini’s speakers, volume buttons and mute switch (this is hard to access, though), headphone jack, rear microphone, and rear camera (which is covered by the elastic band when the case is closed).
The only part about the case that I really don’t like is the plastic “button” that passes through the wood to press the power switch. It sticks out too far — beyond the edge of the cover, in fact — which means it is easy to accidentally press. Even the elastic band can activate the switch.
On further testing, it’s not the button that is the problem. The wooden frame on my Graduate Collection case is just slightly misaligned with the cover, which means the magnet that triggers the wake/sleep function is just slightly misaligned. That means even light bumps will move the magnet and wake the iPad, so that I get the “click” sound of it going back to sleep. This does not happen with the Contega case I reviewed below. So it is a quality-control issue, which seems natural with any handmade product, and I’m confident Pad & Quill will stand behind their products in a case like this.
The other negative to the Graduate Collection cover is that it does not really offer a reliable way to incline the iPad Mini, either for more-comfortable typing or for video watching. Depending on the surface, you may be able to prop it up for video watching, but you might want the Contega for that, instead.
Pad & Quill’s Handmade iPad Mini Cases is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
This article was originally published in the January issue of Minnesota Bench & Bar.
Pressed for time and averse to business jargon, solos and small law firms may be overlooking benefits of strategic planning that include more and better business over the long term.
If a small law firm is perfectly happy with its current status and future outlook, then it does not need a strategic plan. But really, how many firms can claim to be perfectly satisfied? Most small firms want more business and better business. To achieve this goal, these small firms need a strategic plan.
If you don’t know where you are going, after all, any road will get you there. Following many roads in random directions is inefficient and ineffective. If you do know where you are going, you can follow a specific and direct path to success.
When asked what their law firms should accomplish in the next few years, most small-firm leaders will say that they want to be more successful. They will say that they plan to do this by working harder and smarter. These vague aspirations, however commendable, do not constitute a plan.
It is not surprising that many small law firms lack strategic plans. Their counterparts at larger law firms have staff to manage the firm, so that the lawyers can concentrate on clients. Solos and small-firm lawyers must do it all themselves. As a result, strategic planning often takes a back seat to client matters.What is Strategic Planning?
When attorneys hear the term “strategic planning,” their innate cynicism often takes over. They envision hours spent with a high-priced consultant who spouts arcane business jargon and then presents obvious recommendations. In other words, these attorneys envision a complete waste of their time and money.
Put these preconceptions aside. Strategic planning is not all that complicated. It is simply a process that forces a law firm to pause briefly to carefully consider where the practice has been, where it is today, where you would like it to be in the future—and how you can make this happen.
In other words, strategic planning is a process in which an organization defines its goals and then creates a plan to achieve these goals. The process forces busy lawyers, who are often scrambling to keep up with the day-to-day tasks of lawyering, to actually anticipate the future. Most plans cover one to three years.
A successful small law firm strategic plan should consider a firm’s unique culture and vision, emerging trends in the legal market that might provide opportunities, emerging threats in the market that might dictate a change of course, and any needed operational changes.
Plus, a strategic plan can be simple. In fact, less is more. Law firms should not try to accomplish too much, too soon. If initial goals are too ambitious and not reached, firm members will likely get discouraged and resist future efforts. Success in achieving smaller, simpler goals can create the momentum and confidence needed to achieve more difficult goals down the road.Why Do Law Firms Resist?
Common obstacles to strategic planning include:
1. Assess status and gather facts. One popular and straightforward strategic planning tool that can be used by a small law firm is a SWOT analysis, in which lawyers identify the firm’s strengths, weaknesses, opportunities, and threats. Most firms will already know what these are, but have never carefully considered them all in one place. Do not get carried away. Identify only the most important elements in each category. To be more thorough, use these questions to trigger discussion.
Regarding the marketplace:
Regarding internal issues:
Regarding external issues and trends:
Regarding clients and services:
When assessing client needs, do not rely only on lawyer perception of these needs. Lawyer and client perceptions may not be in alignment. Solicit direct client feedback via confidential interviews (usually for larger clients) and client questionnaires (usually for smaller clients). This information can also be used to identify (and plan for) future opportunities or potential loss of business.
2. Organize and rank. The above discussions will uncover a lot of information. You cannot possibly deal with all of this information at once. To keep the strategic planning process simple and focused, concentrate on perhaps three or four issues. If these issues are not immediately obvious, discuss one further question: What worries us most about the firm’s future? The answer to that question will inform your list.
Some of these issues may be longstanding problems that have not yet reached crisis level, but have been neglected for too long. Thus, strategic planning not only forces small law firms to consider the future, it also motivates them to proactively tackle lingering problems that have been holding them back.
3. Create a plan. With the information gathered and priorities ranked, it is time to create an action plan. This document should be short and simple. It should address:
4. Just do it! The most difficult part of any small law firm strategic plan is execution. The best strategic plan will be wasted if it just sits on the lawyers’ desks gathering dust. To avoid this result, progress towards meeting plan goals must be monitored regularly.
Constant monitoring is critical to hold people accountable, so everyone involved knows who is walking the talk and who is not. Results must be measured and communicated. It is also critical for making revisions. Perhaps some assumptions were incorrect or a tactic is not working as planned. Perhaps a lawyer has left the firm. A strategic plan is a flexible, living document—not etched in stone.
Most often, monitoring is best accomplished by holding regularly scheduled meetings each month. These meetings can be short, allotting just enough time for each person to give an update. If changes need to be made to the plan, a little extra time can be added.Including Others
Associates and Staff. There are pros and cons to including associate attorneys and law firm staff in the strategic planning process. On the plus side, they can provide a unique perspective on issues, providing a more accurate and well-rounded picture. Including associates and staff also sends a positive message that the firm is inclusive and values the opinions and contributions of everyone—not just the partners.
On the other hand, associates and staff do not have an ownership stake in the firm and will be less immediately affected financially by any changes that are part of the strategic plan. Also, there may be certain issues that are better kept confidential.
When it comes to inclusiveness, there are no hard-and-fast rules. In the opinion of many experts, expanded participation should be seriously considered for some parts of the process.
Outside Consultants. A disciplined small law firm should be able to work through the strategic planning process on its own, but many find this process far easier when it is facilitated by an outside consultant. A skilled consultant can:
Although all types of businesses engage in the strategic planning process, law firms offer some unusual challenges. It is usually best to retain a consultant who has worked with law firms and is attuned to their economics and business development practices. In addition, an experienced consultant will have a better understanding of the unique lawyer personality and what makes lawyers tick.
For all of the reasons mentioned above, solo practitioners should also engage in the strategic planning process. On one hand, the process is simpler. On the other hand, it can be harder for a solo practitioner to stay on track without peer pressure to do so. Even solos can benefit from the discipline imposed by an outside consultant.Conclusion
Small law firms that want more business and better business cannot achieve these results simply by wishful thinking. They need a direct roadmap to get from where they are today to where they want to be tomorrow. They need to follow that route without getting side-tracked. They need a strategic plan.
Featured image: “Creative businessman looking to develop innovative business plan” from Shutterstock.
Strategic Planning for Small Law Firms is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
But you started reading it anyway.
We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words privileged and confidential — or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected email or the surfer of a law firm website. Disclaimers seem to have spread like a consensual virus — a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his own materials.Website Disclaimers
Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an email or contact form sent to the law firm until the firm has agreed to enter into an attorney-client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.
There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. The Virginia State Bar Committee on Legal Ethics did issue an opinion that compared websites to advertisements in the Yellow Pages. Just as a prospective client who obtains a lawyer’s phone number from a Yellow Pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an email message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.
Website disclaimers are designed to address the exact same situation repeatedly: stranger v. law firm. No disclosure of an existing client’s confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).
Email disclaimers, however, are a different and dangerous breed.Email Disclaimers
They probably have their roots in that antiquated technology: the facsimile transmission (which our ancestors colloquially referred to as a fax). Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer starting putting a disclaimer on the fax cover sheet. That way, the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using email, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected email with a warning to those who receive messages that were not intended for them.
Now, probably 80% or more of the emails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the email is “privileged and confidential;” most suggest that the email “may” be privileged and confidential (how I should determine whether it is or not is not explained), and either ask or demand that I notify the sender, and destroy the email and any paper copies I may have printed.
There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing. Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule). So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.Undermining Disclaimers Through Overuse
Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).
In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.Using Disclaimers Appropriately
Appropriately used, disclaimers may allow lawyers to rescue misdirected emails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the email is not clearly apparent on the face of the email. Those disclaimers should be sparingly used, appear at the beginning rather than the end of the email, and state that information in the email is confidential or privileged only when it really is. That way, unintended recipients might really sit up and take notice when they see privileged and confidential declared in an email.
This was originally published on November 17, 2008. It was (lightly) revised and re-published on February 21, 2014.
Featured image: “confidentiality” from Shutterstock.
This Post is Privileged and Confidential is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Here is the new provision in the new terms of service:
We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
From now on, you’ll be using the American Arbitration Association if you have a dispute with Dropbox. Oh, and no more class actions, either:
No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.
Presumably, this would include things like a disagreement over whether Dropbox should have given up your files to spy agencies or law enforcement without a fight.
Don’t worry, though, you can opt out — but only until April 23rd. (It doesn’t look like the opt-out applies to the class-action waiver. You’re just SOL for that.)
Dropbox Amends its Terms of Service to Add Mandatory Binding Arbitration (Also, No More Class Actions) is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Statistically, over 9 percent of American adults have a diagnosable personality disorder … .
In other words, it is not your imagination; some of your clients really are crazy. In fact, depending on the kind of law you practice, the percentage of your potential client base with a diagnosable personality disorder is probably substantially higher than the average.Personality Disorders
A personality disorder, according to Wittenberg, is an “enduring pattern of behavior and subjective experience that affect[s] a person’s thinking, feeling, relationships, and impulsiveness.” And, she says, “Often the affected person sees these patterns as perfectly reasonable and appropriate despite their dramatic, negative impact on her daily life and the lives of those around her.”
People with personality disorders have “limited life scripts” and usually behave in “fixed, unyielding ways” that often force people around them to play implicitly-assigned roles like caretaker or bad guy. In other words, personality disorders have a sort of ripple effect on those around the person with the disorder — clients with personality disorders can make you crazy, too.Common Personality Disorders
Here are a few common personality disorders you might see in your practice:
Disclaimer: I am not a psychologist; everything in this post is based on Wittenberg’s article, which you should definitely read.Narcissistic Personality Disorder
Narcissistic personality disorder is a condition in which people have an excessive sense of self-importance, an extreme preoccupation with themselves, and lack of empathy for others. (from NIH.gov; also, see Wikipedia)
Wittenberg says clients with NPD are often cooperative and engaged, at first, but they will start blaming others and lashing out if unexpected problems arise. She says it is very difficult for clients with NPD to take responsibility for anything, or even to admit they played a role in their problems. And they don’t like to be called on it. Clients with NPD may storm out of your office if you point out the role they played in creating their problems.
Narcissism often conceals extremely low self esteem, which narcissistic individuals conceal beneath a self-important shell, reinforced by affirmation and acclaim from people they admire. Wittenberg recommends helping narcissistic clients maintain their self-esteem by treating them with utmost courtesy and respect. Go along with their desire to see you as worthy and high-status. Let them think of you as “the best,” but be careful not to appear to compete with your client. As exceptional as your client wants to think you are, you must come in second to him. Suppress your irritation at your client’s bragging and witticisms; narcissistic clients need your endorsement, and they will probably settle down and stop begging for it if you stroke their ego a little bit.
Where things get especially difficult with a client is in settlement, particularly in criminal matters, where the client may have to acknowledge some responsibility. You must convey to the client that you are on her side, and explain why it is necessary to accept some responsibility while preserving as much self-esteem as possible.
Do not fell into the trap of getting demoralized while working with a narcissistic client, who will never recognize the quality of your work. Satisfy yourself that your work is up to par, and do not get preoccupied if your client does not recognize it.Antisocial Personality Disorder
Antisocial personality disorder is a mental health condition in which a person has a long-term pattern of manipulating, exploiting, or violating the rights of others. This behavior is often criminal. (from NIH.gov; also, see Wikipedia)
According to Wittenberg, “[p]eople with Antisocial Personality Disorder or features of this disorder often come into contact with the legal system. That’s because a key marker of this disorder is ‘failure to conform to social norms with respect to lawful behaviors … .” That does not necessarily mean criminal behaviors, but people with ASPD have an “overriding motivation to pull something over on others,” and take pleasure in consciously manipulating people. You are as likely to find them at the head of a corporation as in the back of a police cruiser. They are reckless, lack remorse, and are highly impulsive. They either rationalize the harm they do to others, or don’t care.
People with ASPD need to control others and to feel powerful. Like narcissistic clients, they may brag and deny responsibility for their problems, but they will do it in different ways. A client with ASPD is more likely to brag about illegal activities and characterize illegal activity as something everyone else does, too. They also lie a lot.
Put this together, and clients with ASPD can be dangerous to work with. Wittenberg says “[t]he most important thing … when working with antisocial clients is … to maintain safety.” Schedule meetings when other people will be around. Adopt a firm and direct approach so you are seen as strong, not weak. Be rigid when it comes to expectations, billing, and other aspects of the representation. (Antisocial clients are a good reason not to be lenient with payment plans, or not to accept them at all. They will take pleasure in skipping out on your bill.)
In order to forge a relationship with an antisocial client, you have to play to her need to control. Make yourself useful to her by showing her you can help her get what she wants if she works with you. In discussing the legal matter, focus on consequences, not legality or morality.
Antisocial clients will tell you only what they think you need to know, and usually omit details in their narratives. You must elicit detail without challenging your client, which could send him into a rage.
You will probably feel uncomfortable with antisocial clients, and possibly contemptuous of them. You may even be afraid of them.
If you find yourself working with antisocial clients, do not allow yourself to be intimidated or cheated. Be skeptical of everything you hear (a good quality for a lawyer, anyway), be safe when meeting with your client, and protect yourself financially with adequate retainers.Borderline Personality Disorder
Borderline personality disorder (BPD) is a mental health condition in which a person has long-term patterns of unstable or turbulent emotions. These inner experiences often result in impulsive actions and chaotic relationships with other people. (from NIH.gov; also, see Wikipedia)
People with BPD are, in a word, unstable. They may even be suicidal, and often engage in other self-destructive behavior. “Clients with [BPD] … can be lots of fun to work with, until suddenly they’re not” says Wittenberg. The trouble is, you may not get any clues that a client has a borderline personality until it emerges later in the representation. In fact, in the beginning, she may be the perfect client — up until something happens to upset her idealized form of your representation.
In legal matters, BPD may introduce intense, inappropriate anger. Clients with BPD may fly off the handle and abruptly terminate relationships — including your representation. Threats of ethics complaints and malpractice lawsuits inevitably follow, when a borderline client terminates your relationship in anger.
Clarity, consistency, and structure will help avoid this result. Regular status calls or emails are especially important to borderline clients, and you should be prompt in returning communications, even if it’s just to acknowledge that you will follow up.
Representing a borderline client can be a roller coaster ride. Resist the ups and downs by staying calm and level. Borderline clients challenge you to reject them. If you stay the course, you will be able to do the work you were hired to do.You Cannot Avoid Clients with Personality Disorders
Dealing with clients with personality disorders sounds like a lot of trouble, and you may be tempted to resolve never to represent such clients. But, discrimination laws aside, personality disorders may not be clear at the outset of the representation, for one thing. For another, if a tenth (or more) of your potential client base has a personality disorder, chances are good you will end up dealing with a disordered client sooner rather than later, anyway.
If you understand your clients’ personality disorders just well enough to work with their needs, you can still be an effective advocate while making your clients happy.
This was originally published on March 6, 2013. It was revised and republished on February 19, 2014.
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There are two primary outcomes in a desperate struggle with addiction. The first is to keep going until you die. The second is to get caught.
After roughly a year and a half of active addiction to cocaine, Chuck Ramsay appeared to have decided upon the first. He looked in the mirror, admitted to himself he had a problem, but didn’t know how to keep living without coke. So he decided he would just keep using – keep using coke until he died.
“I just loved the feeling.”
Then, abruptly, his life veered toward the second outcome: Ramsay was caught for using coke inside the courthouse while representing a client facing a felony charge. This was 2009. In 2010, Ramsay faced disbarment—fortunately the Minnesota Supreme Court opted for a 90-day suspension—but in 2011, just one year later, despite the arrest, the night in jail, the professional discipline, the shame and discredit he brought upon himself and the profession, Ramsay was an “Attorney of the Year” in Minnesota Lawyer.
In short, Ramsay went from loving cocaine to loving himself (and others) more than the feeling coke gave him, which turned out to mean everything in his recovery.Falling in Love with Cocaine
It starts with a feeling.
“I absolutely loved it,” Ramsay said. We sat across from each other at Claddagh Coffee (for the Irish, the Claddagh ring represents love, loyalty and friendship) on West 7th in St. Paul, Minnesota, two mugs of coffee between us on the table. Ramsay’s no-bones admission: “I just loved the feeling.”
This feeling—Ramsay refused to describe it, refused to glamorize it—is euphoria. Cocaine is a stimulant, an “upper.” Ramsay was 18 his first time, after a high school grad party in the 1980s, and the feeling latched itself to him.
Then followed two decades of occasional use before the feeling got stronger, led to what Ramsay called his steep decline, and he began to use more and more often, in greater and greater amounts, until he found himself in a courthouse with his hands behind his back, cuffed. By then, cocaine had become his performance enhancer. Cocaine made him a super lawyer. So much so that Ramsay was plowing through grams of coke on the day of his arrest, soldiering on, winning another favorable result for another client.
The prosecutor, however, noticed his mood swings. Someone saw Ramsay leaving the restroom, sniffing and pinching his nose. In came the drug dog. They found cocaine residue on a table and in his briefcase. Earlier, Ramsay had yelled at the bailiff because there were no conference rooms available. Ramsay thought they were interfering with his ability to meet privately with his client. “I was oblivious,” he said. In reality, the authorities were busy gathering evidence against him.
Ramsay didn’t have a clue he’d been caught until the moment of his arrest.
By then Ramsay had roughly a decade behind him in practice as a criminal defense lawyer. Ramsay had come to believe, that through sheer force of his will, he could govern the outcome of his cases. The facts didn’t matter. The evidence didn’t matter. He believed, not in God, but in Chuck Ramsay. He believed, like the egomaniac he said he was, in his power to guide the moon and stars.
So it was that Ramsay thought he could control his use of cocaine by setting ground rules.
“How the hell can I go on without using?”
“We are all terminally unique,” Ramsay said, referring to people who suffer from addiction but don’t quite know it yet. Addicts rationalize. They believe they’re different from everyone else, special, immune from disease. These ground rules were Ramsay’s immunization: He would use once a month, on the weekends only, never on a weekday.
You know what happens. One by one, those ground rules gave way, even those that weren’t explicit. Ground rules, perhaps a sign of addiction in themselves, weren’t enough to keep Ramsay from spiraling. He said, “If taking drugs in the courtroom helped me to be number one, I would’ve done it.” He paused, looking at me. “I did do it.”
Just as troubling was his “alien,” as he called it, the physical testament to the havoc coke wreaked on his body. Ramsay blew his nose in the shower and the lining of his sinuses fell out on the tile floor.
The alien looked like strips of raw bacon.Losing Cocaine
“How the hell can I go on without using?” he asked himself after the arrest.
But in a case that marked the start of Ramsay’s period of active addiction, roughly a year and a half before the arrest, the client had been accused of taking part in the violent gang rape of a woman in her apartment. (Not that it should matter, from a criminal defense lawyer’s perspective, but Ramsay had reason to believe in his client’s innocence, which only added fuel to the fire.) On the eve of trial, the father of the client laid a hand on Ramsay’s shoulder and said, “I trust you, Mr. Ramsay. My son is in your hands.” To hear those words, to feel the hand on his shoulder, meant the loss of Ramsay’s power to guide the moon and stars, to control the outcome without breaking his ground rules.
On Sunday night, Ramsay put the finishing touches on the case, though he didn’t need to. He was prepared, but he felt he had to, wanted to, so he used cocaine to work through the night without sleep. The sun came up. Jumping from the desk to the shower, Ramsay stood under the water, exhausted, so he used again, and again at noon when he started crashing.
“I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine ….”
Ramsay worked the case. Ramsay won the case. He went on to rack up several more wins. Win after win after win—all while on coke—proving to himself and everyone else that he was a super lawyer. “I took it seriously,” he told me. “I am a ‘super lawyer.’” But after the arrest came a much different thought: “I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine,” he said, and worried he would promptly fall into a slump of mediocrity.
On the morning of our interview, I was nervous to meet Ramsay, knowing I’d sent him a number of very pointed, very personal questions about his struggle with addiction, which has surely been the seminal challenge of his life. Yet, as he reached out to shake my hand, I felt a certain calm energy. Right off he told me he didn’t want this story to be just about him. He told me he was doing this to help other lawyers struggling with the disease of addiction. “There’s a huge stigma,” he said, “both those addicted to alcohol and certainly those addicted to drugs. It doesn’t have to be that way. It’s a disease. It’s a disease no different than cancer.”
Here lies the debate. Some people, even some addicts, believe addiction is not like cancer; choice is within the addict’s power, willpower will help one overcome. Others believe, like Ramsay, that disease is disease, worthy of both medical (and if the situation warrants it, spiritual) attention.
Ramsay appears to fall somewhere on both sides of this debate. I suspect that many addicts who have “come back” like Ramsay fall on both sides as well. Ramsay didn’t want this story to be about him, but this is one man’s life and no other’s, and to the extent it is a story about Chuck Ramsay, it’s also about all of us. Whether or not addiction is a disease, we are all susceptible in varying degrees, and we owe it to ourselves and to others to do our best to come back.
So it happened that the week of our interview marked the five-year anniversary of Ramsay’s arrest in 2009, and far from falling into a slump of mediocrity, it has been just the opposite for him. It turns out he never needed cocaine to be a super lawyer.Learning to Love Yourself
Ramsay is in his late-forties now, and cocaine is still as much a part of him as it was at 18, though he hasn’t used since relapsing 10 months post-arrest. His worst vice these days is the Claddagh coffee. “I’m an addict,” he told me, and while the feeling Ramsay said he loved is no longer latched to him, recovery is a life-long process.
At first, he worried about his law practice — and whether he would have a license to practice at all. He worried about the two separate notices the court required he send to clients, one for the initial arrest and the other for the 90-day suspension. He also worried that recovery would change his personality, the essence of who he was.
“Addiction is the great equalizer. Humans are humans.”
As often as Ramsay mentioned cocaine during our interview, he also mentioned the person he used to be, with or without coke — his short fuse, his belief he could control everything and everyone around him, and the recurrent thought he had that he had to be “the best” at whatever cost.
Here is Laurel Dalrymple, writing for NPR in the wake of Philip Seymour Hoffman’s death from heroin: “Addiction is the great equalizer. Humans are humans.” To a greater or lesser extent, because we are human, we all have it — the potential for megalomania, the control issues, the fear and anxiety, the possibility of becoming addicted—to something, anything—and to forget or ignore the most important thing of all: to work on being better.
Ramsay told me that this is the big secret of recovery.
Kicking drugs and alcohol is just one part of learning how to be a better person. “If you only knew,” Ramsay said, “about all the lawyers and judges and prosecutors in treatment.” You might be, in other words, more likely to come forward. There is no need to come out and declare yourself an addict or alcoholic. Make a call to your jurisdiction’s version of Lawyers Concerned for Lawyers, which does not rat on those who call for help. (Indeed, the ethics rules in Minnesota make what you say to LCL privileged; check your local rules for guidance.)
As part of learning to be a better person, Ramsay knows that he is responsible for nothing but his day-to-day effort. He is not responsible for the outcome of a case, as much as he would like to control the outcome. Call it God’s plan. Call it a higher power. Call it whatever you want, but his job as a criminal defense lawyer today is less about Chuck Ramsay as it is about the people he defends.
Perhaps a piece of objective evidence speaks louder: Ramsay was among those bestowed with the “Attorney of the Year” honor in 2011 for his work on the Source Code Defense Litigation Team, which helped coordinate a massive attack on the government’s proof regarding breath tests in thousands of DWI and implied consent cases across the state. (Aside: Only two or three clients left Ramsay after he sent the court-ordered notices; many of Ramsay’s clients understand a thing or two about addiction, which is one—perhaps the salient—reason Ramsay handles mostly DWI-defense and implied consent cases today.)
As much as any honor or award stands as an objective indicator of success, it’s a testament to the fact that Ramsay, as he works to be a better person, makes of himself a better lawyer — certainly just as good a lawyer off cocaine than he was on it.
At one time Ramsay “absolutely loved” cocaine. Now it’s about drinking Claddagh coffee and sharing his experience with addiction, running marathons and doing Crossfit, practicing law, being a father to his children, and (yes) going to recovery meetings. And life, he told me, is “absolutely amazing.”
I believe him.
A Criminal Defense Lawyer’s Trip to Rock Bottom and Back is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic.
What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.
If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.
In this article, I explain six different methods to knock down adverse authority and illustrate them with examples from the best litigators. At least one method should apply to your opponent’s cited authority. If not, you may consider settling the claims.Your Opponent’s Case Is Not Binding
Say you are before the Sixth Circuit and your opponent relies heavily on a prior Sixth Circuit opinion. Without even reading the opinion, your initial assumption would likely be that the case is binding. But you may be able to argue that the opinion does not bind your court. Here are three ways to do so.
First, you could show that your opponent’s authority conflicts with binding authority, such as a recent Supreme Court case or a newly-enacted statute or regulation.
Second, you could establish that the prior case did not actually address the precise issue in your case. In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the issue before the U.S. Supreme Court was whether a public agency’s moratorium constituted a “taking” under the Fifth Amendment. In representing the agency, Chief Justice Roberts explained why a prior Supreme Court decision did not control.
Nothing in First English, or, for that matter, Justice Brennan’s dissent in San Diego Gas & Electric, 450 U.S. 621, requires or even suggests that a temporary moratorium on development be treated as a per se taking. Indeed, notwithstanding petitioners’ repeated and profound misreading of the Court’s holding in First English, the Court never reached the merits of the takings issue, even in dictum.
. . .
Notwithstanding petitioners’ repeated attempts to convey the impression that the Court actually determined that a taking had occurred in First English, this Court specifically declined to review the merits of the takings claim. The Court expressly “reject[ed] [the] suggestion that . . . we must . . . resolve the takings claim on the merits before we can reach the remedial question.” Id. at 312-313. Leaving no question as to the scope of its holding, this Court stated: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321 (emphasis added).
By quoting the opponent’s cited case, Chief Justice Roberts left no room for doubt on whether a “taking” was at issue in that case.
Third, you could argue that your opponent relies on mere dictum, not a holding. This argument is especially effective when the dictum is from an intermediate appellate court. But it is not as persuasive when the dictum is from the highest court in the jurisdiction, unless the court’s composition has changed since the prior decision.Use a Seemingly-Adverse Case as a Sword
I love using cases that my opponent cites to support my argument. My opponent cannot then argue—and maintain credibility—that the case is logically flawed. In the next example, the defendant used plaintiff’s cited case as a sword to prove that the Copyright Act preempted the conversion claim.
Plaintiff relies on Seastrunk v. Darwell Integrated Techs., Inc., No. 3:05-CV-0531-G, 2006 U.S. Dist. LEXIS 46576, at *17-19 (N.D. Tex. July 10, 2006), which actually supports preemption here. In that case, the court concluded that the conversion claim was not preempted for the sole reason that plaintiff alleged that the defendant “withheld [plaintiff’s] software in its tangible forms.” Id. (emphasis added). That case stands for the unremarkable point that the Copyright Act does not preempt claims for conversion of tangible property (such as a compact disc), even if that tangible property contains the plaintiff’s intellectual property (such as the music on the compact disc). But in this case, Plaintiffs allege that Defendant only converted “Plaintiffs’ intangible copyright property.” Thus, Plaintiffs’ conversion claim is preempted.Point Out Any Distortions
Another great way to refute your opponent’s authority—and to undermine his or her credibility—is to point out that the attorney has misrepresented the authority. This is exactly what Chief Justice John Roberts did in his reply brief in Intergraph Corp. v. Intel Corp. He represented a subsidiary (Intergraph) and argued that its parent corporation (Intel) could not have licensed the subsidiary’s patents because the subsidiary never consented to the license. Chief Justice Roberts effectively identified the misrepresentation.
The lone Delaware case relied on by Intel, Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171 (Del. 1988), likewise supports Intergraph’s position. In that case, the court held that “in a parent and wholly-owned subsidiary context, the directors of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholders.” Id. at 1174 (emphasis supplied). In its brief, however, Intel distorts this quotation by substituting the words “parent company” for the words “directors of the subsidiary,” thereby falsely implying that it is the parent company, and not the directors of the subsidiary, that actually manages the subsidiary’s affairs. Intel Br. 24-25. The fact that Intel must deliberately distort the language of this decision highlights the futility of its position.
When pointing out a misrepresentation, attack the sin, not the sinner. In other words, resist the urge to call your opponent names. If your opponent misleads the court, it digs its own credibility grave.Flawed Reasoning
For adverse cases that are not binding, you could demonstrate that the reasoning behind the decision is flawed. You could argue that an adverse case relied on authorities that, on close examination, do not support its holding. Or you could show that the logical extension of your opponent’s cited case would create absurd results, as Judge Frank Easterbrook did in Kissinger v. Reporters Committee for Freedom of the Press. The issue was whether the lower court erred in granting a remedy without first concluding that the Freedom of Information Act was violated. In Point Made, Ross Guberman sets forth Judge Easterbrook’s argument (key language is italicized):
The remarkable thing about the district court’s opinion (which was adopted by the court of appeals) is that it awarded extraordinary equitable relief under the FOIA without ever finding that a violation of the FOIA had occurred. The court apparently found that the Federal Records Acts of 1950 . . . had been violated by an improper removal of the notes. It then invoked its equitable jurisdiction under the FOIA to restore the notes to the agency for disclosure under FOIA. This holding necessarily means that anyone can sue an agency and compel it to retrieve records removed in violation of the agency’s records-management rules; it supplies, in effect if not in design, a private right of action to enforce the Records Act. This holding cannot be reconciled with the fact that . . . the Federal Records Act . . . [does not] create a private remedy to enforce agency record-keeping obligations.
Although Judge Easterbrook was referring to the flawed reasoning of the lower court, the same principles apply to attack adverse cases.
But do not waste time or space discussing the flawed reasoning of a binding case. Even if your trial court wants to agree with you, it cannot disregard the binding authority; don’t ask a court to do something it cannot do.Almost Everybody Agrees with Us
Many people prefer to follow the crowd. So, too, with judges. (They are people, after all.) Thus, if you spend time researching, you might find that the majority of courts agree with your, not your opponent’s, position. This method of refuting adverse authority is highly persuasive when binding authority is lacking. Here is an example from Justice Elena Kagan when she was the Solicitor General:
In contrast, the majority of the courts of appeals that have considered the question have held, in accord with the court of appeals in this case, that the statutory maximum penalty in a drug conspiracy case turns on the jury’s determination of the type and quantity of drugs involved in the conspiracy as a whole. See United States v. Seymour, 519 F.3d 700, 709-710 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008); United States v. Stiger, 413 F.3d 1185, 1192-1193 (10th Cir.), cert. denied, 546 U.S. 1049 (2005); United States v. Phillips, 349 F.3d 138, 140-143 (3d Cir. 2003), vacated on other grounds by Barbour v. United States, 543 U.S. 1102 (2005); United States v. Knight, 342 F.3d 697, 709-712 (7th Cir. 2003), cert. denied, 540 U.S. 1227 (2004); United States v. Turner, 319 F.3d 716, 721-723 (5th Cir.), cert. denied, 538 U.S. 1017 (2003); Derman, 298 F.3d at 42-43.
In just one sentence, Justice Kagan explained that the “crowd” agreed with the government’s position. But her citations would have been more persuasive had she included parentheticals showing how the cited cases support the proposition.Different Facts = Different Outcome
Sometimes your opponent’s best authority is a binding case. The go-to method in this situation is to distinguish the adverse case. Although distinguishing adverse authority is commonly used, attorneys often do it ineffectively. Attorneys usually state that the adverse cases are “distinguishable” and then list the facts and holding of each case without explaining why the cases are distinguishable, losing the judge in the details. And judges don’t like to be lost.
In the following example, the former Solicitor General, Paul Clement, dismantles his opponent’s leading case. In Equifax Information Services, LLC v. Soutter, the district court certified the class and one issue for the Fourth Circuit was whether the alleged inaccuracies in about 300,000 credit reports presented common or individualized issues of fact.
The district court failed to understand the individualized nature of the inaccuracy question before it because the court viewed this case as a close cousin of the FCRA class this Court approved in Stillmock v. Weis Markets, Inc., 385 Fed. App’x 267 (4th Cir. 2010). J.A. 712–13. But this case is nothing like Stillmock. There was only one “question” in that case, and it could generate a common answer for all class members: whether the defendant’s “repeated identical conduct” (printing receipts showing the consumer’s entire credit card number in violation of the FCRA) was willful. Stillmock, 385 Fed. App’x at 273. . . . Each consumer [in Stillmock] had been exposed to an “identical risk” as a result of uniform conduct. Id. at 273. The court could answer the question of willfulness once, on a classwide basis, because each class member had experienced the same violation based on the same conduct under the same circumstances. Under these unusual circumstances, this Court not surprisingly viewed it as a relatively simple process to resolve the FCRA claims on a classwide basis. See id. at 272–75. But the FCRA claims at issue here are entirely different. Hundreds of thousands of individual inaccuracy determinations cannot be equated with a single, unitary willfulness determination.
Mr. Clement discussed only the relevant details about the adverse case and specifically identified why the case did not apply. As a result, the judges could easily grasp the key distinguishing fact between the two situations.Concluding Thoughts
You have just learned six methods to refute adverse authority. Many times, just one method is sufficient. But for your opponent’s best authority, you should attack it with more than one method. For instance, you could demonstrate that a case is not only distinguishable but also not binding on your issue. And the best place to refute your opponent’s best authority is in your initial motion or brief. (Don’t take my word; ask Justice Antonin Scalia and Judge Richard Posner.) By affirmatively addressing the adverse authority, you can present it in a light most favorable to your client without sounding defensive.
The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
If you do not encrypt your files, do you lose sleep worrying about losing a laptop full of client data? If not, you should. The data on most laptops is worth more than the hardware. A lawyer’s laptop is a treasure trove for an identity thief.
All a thief has to do is plug your hard drive into their own computer to get access to all the important data. Here’s how that works:
Here’s the thing: encrypting your client files is easy. It is easier than setting up your email software. It is easier than creating a pleading caption in Word. It is easier than backing up your files. It is easier than most of the five things I wish you would learn about computers. It is easy enough that you should already have done it. If you have not, though, here is how:
Turning on encryption — including downloading TrueCrypt, if you select that option — should take about a minute. Your computer will take longer to actually encrypt your data, but you can use your computer while it’s finishing up. And once your files are encrypted, you really don’t have to think about it anymore. Your computer will encrypt and decrypt on the fly. You can still open, edit, email, and print files as you always have. But you will have the peace of mind that comes with knowing your client files are a lot safer.
So now that you’ve got no excuse, get to it. Even busy lawyers can find a minute or two to drastically increase client file security.
This was originally published on March 31, 2011. It was revised and the video was added on February 11, 2014.
Encryption: Enabling Basic Client File Security is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Tracking your time rather than reconstructing it at the end of the month turns out to be really important. As in, not-overbilling-your-clients-by-23% important. Whether or not you share your time records with your clients in real time, you do need to keep a time log.
Hopefully that is a no-brainer for everyone who reads this post, but I doubt it. I have known plenty of lawyers who reconstruct time at the end of every month — or every couple of months — from their calendar, emails, and memory. Even if you only put together your bill at the end of the month, you need to track your time as you go. These are the major tools for doing that.
However you decide to track your time, pick a method and stick to it. When you sit down to assemble your invoices, the fewer places you have to go to get the raw data, the better. The more methods you use to track your time, the more mistakes you will make.Paper
There is nothing wrong with paper. In fact, paper has a lot of advantages when it comes to tracking time. Just keep a cheap notebook or a stack of index cards with you at all times, and write down what you were doing and how much time you spend doing it.
(There are all kinds of print-your-own templates and fancy timekeeping notepads out there, if you want to get fancy, but you don’t need them.)Spreadsheet
Spreadsheets are pretty ideal for timekeeping, and with Google Docs, iWork, and Office cloud apps, they are quite portable. In fact, with Google Docs, you can even have multiple people billing time on the same spreadsheet at the same time.Text File
Text files can work really well for timekeeping, actually.
In Notepad (Windows), you can enter a timestamp by pressing F5 (this does not work in other apps). Do this every time you change tasks, add a few notes, and you will have a running time log. If you put your text file time log in Dropbox, you can access it from your phone and tablet, making your time log portable.
If you use AutoHotKey (Windows) or TextExpander (Mac), you can add timestamps in other apps (the F5 shortcut only works in Notepad on Windows), and set up shortcuts for your frequently-billed tasks. Text files are not fancy, but they make for quick and easy time records.
(If you want to get really fancy, use an app like Drafts to automatically append your notes with a timestamp to a timesheet.txt file in your Dropbox.)Passive Tracking Software
Timekeeping is tedious. There are ways to take shortcuts and bill more accurately, though. Chrometa, for example, tracks what you are doing on your computer and phone (you can also add time manually) and assemble time sheets or export your time to FreshBooks, QuickBooks, Clio, Xero, and Basecamp. I’ve tried Chrometa before, and it really is easy to use.
TimeSnapper is a similar idea, but it also takes screenshots of your computer screen to help you see what you were doing.Timekeeping Software
There are plenty of software packages that include a timekeeping component. I have mostly used Freshbooks, but all practice management software has timekeeping functions, and so do many accounting packages. The nice thing about tracking time this way is that your invoices are basically assembled as you go.
So there are plenty of ways to track your time, but there is only one criteria for picking one: pick the one you actually use. The tool is basically irrelevant; the important part is capturing your time accurately as you go.
Featured image: “Old stopwatch closeup with selective focus” from Shutterstock.
Ask someone how much they worked last week, and they will probably overestimate the number by 5–10%, according to a study published by the Bureau of Labor Statistics. And the more someone thinks they worked, the greater their overestimate is likely to be, says the Economix blog at the New York Times.
Humans (well, American humans, at least) have really inaccurate memories when it comes to the time they spend working, in other words.
Lawyers are even worse when it comes to remembering billable time. Viewabill, a service that allows clients to see what their lawyers bill in real time, says that waiting until the end of the month to record your time means adding 23% to the bill.Delayed Billing Adds Inaccuracy — And Cost
That number comes from Viewabill’s aggregated data. By comparing timely entries to delayed entries, co-founder David Schottenstein estimates firms that keep time regularly are saving their clients as much as 23%:
Viewabill thinks its software changes behavior through transparency, because clients can see the time as it is entered. If you know your clients can see what you bill in real-time, you are less likely to record all your time at the end of the month. (Again, Viewabill’s aggregated data bears this out.) Schottenstein says Viewabill is like an empty police car next to the freeway. Even if clients don’t check in very often, they could — and they can see when time was recorded no matter when they check in. This strongly encourages lawyers, to change their behavior.
You don’t need Viewabill to ensure your timekeeping is accurate, of course. But you do need to record your time as you work. The more frequently you record your time, the more accurate it will be. If you wait until the end of the month and then reconstruct your time, you are probably overcharging your clients.“Capture More Time!”
Many timekeeping products claim to help lawyers “capture more time.” Time Matters, for example, cites “[c]aptur[ing] billable hours and client expenses while you work to prevent revenue leakage” among its benefits. Rocket Matter says you can “Forget about losing track of precious billable time or expenses.” Amicus Attorney says it will help you “capture more billable time.” You can see similar claims from most practice management and timekeeping-and-billing software.
The idea is that, by making it easier to record your time, you will record it more frequently, so that you are less likely to miss things. This makes perfect sense, and it does turn out to be true, according to Schottenstein.
If you bill more frequently, you are likely to capture time you would miss if you tried to reconstruct your time at the end of the month. But, he says, your bills will still go down. That’s because you probably aren’t missing 23% of your bill. The time you overestimate you spent is almost certainly greater than any missed time you might catch with more-frequent timekeeping.Teaching Old Lawyers New (Timekeeping) Tricks
Whatever the benefits of real-time timekeeping, some firms really don’t want to do it. Or at least some influential partners at those firms don’t want to. Faced with clients who wanted them to use Viewabill, two large firms (one a prominent employment law firm based in San Francisco, another a large employment law firm in DC and Cleveland) mounted a spirited defense that included spreading a bunch of uninformed FUD about the cloud.
Why? Well, assuming the lawyers at those firms aren’t trying to pad their bills by 23%, the most-likely reason is that, as one firm admitted to Schottenstein, 80% of its billers do not put in their time until the last two days of the month. Apparently, they are willing to fight for their right not to change. You can’t always teach old partners new tricks, even if it means overcharging clients.
But clients are not yet insisting on real-time timekeeping and transparency. They probably will, eventually, no matter how hard the holdouts try to convince them not to. Eventually, those firms will be forced to accept greater billing transparency, and those partners will have to change. If that 23% figure is anywhere close to right, corporate clients will not stand for end-of-the-month billing for long. Sooner or later, they will make real-time billing a condition of representation.How About Alternative Fees?
If waiting until the end of the month to record time means you will be overbilling your clients, then you probably ought to stop it, and start billing in real time.
A partial solution might also be to stop using time to measure the cost of representation — at least when you don’t need to. If you quote flat fees or use subscriptions, unbundled services, or alternative fee arrangements, you can stop tracking time altogether. No timekeeping, no padding (inadvertent or otherwise).
Except sometimes hourly billing really is best, so don’t give it up entirely. Just use other options when they make more sense.
And when you do bill by the hour, consider doing it in real time. Don’t wait for your clients (or ethics boards) to find this article and start asking questions.
— Viewabill (@Viewabill) February 10, 2014
— Viewabill (@Viewabill) February 10, 2014
Featured image: “Businessman and earning balance concept” from Shutterstock.
Find Out How Much You Are Overbilling Your Clients is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.