While dating is not a typical business activity, one prospective client asked if he could claim a business deduction for online dating activities including his monthly subscription fee, meals, and entertainment expenses. While every woman he met online ultimately rejected him for a long-term personal relationship, they continued to maintain a friendly business relationship. A few even referred customers to him.
Using this situation as a backdrop, we will cover the basic business entertainment deduction rules if you are an attorney seeking to entertain clients, potential leads, and other sources of business. The rules, detailed in IRS Publication 463, are complex, vague, and, to a degree, rely on the honor system. The interpretation of these rules is complicated further by the elements of personal recreation and pleasure often involved in business entertainment.
Because of this, some will misunderstand or even abuse the rules. But don’t be afraid to take deductions that you are legally entitled to.
By understanding these rules, you can confidently write-off fifty percent of your business entertainment expenses and structure your entertainment activities to make them tax-deductible.1Entertainment
According to the IRS, entertainment includes any activity generally considered to provide amusement or recreation. Examples include (but are not limited to) entertaining your guests at these places:
For an entertainment expense to be deductible from your self-employed income, it must pass two tests:
Unfortunately, your dues (including initiation fees) for membership in any club organized for business, pleasure, recreation, or other social purposes are not deductible as a business expense. This also includes country club memberships (which Treasury Regulations particularly disapprove of deducting) and your online dating subscription fee.Ordinary and Necessary Expenses
As mentioned previously, your expense is ordinary if it is customary in the industry. An expense is necessary if it is appropriate and helpful in developing and maintaining a business. An expense will be deemed a nondeductible personal expense if business activities are incidental.
Finally, the expense must be reasonable. This means that the expense must not be overly lavish. It would be unreasonable to spend $44,882 for two ringside tickets to the Pacquiao-Mayweather fight to entertain a client who will pay a maximum of $10,000 in legal fees with no expectation of future business or referrals.
Entertainment deductions — particularly meals — should not be deducted on a regular basis with the same people because it will not be recognized as a reasonable business expense.
In Moss v. Commissioner, attorneys in the same law firm met for lunch daily at a local restaurant to discuss their ongoing cases. On their tax returns, they deducted the costs of the meals as a business expense. The court disallowed the deduction, finding that eating lunch daily is a routine personal expense, even when you discuss business during the meal.
As a solo or small firm attorney, clients generally come from referrals in your network. Therefore, it is customary, appropriate, and helpful to meet with potential clients, colleagues, or referral sources over a meal or an entertainment event to develop trust and rapport.
As for our online dater, while he failed to capture the heart of his dates, he was able to capture their business. Since he can prove that he met referral sources and obtained clients through his dates, he can prove that his expenses — aside from his dues — were ordinary and necessary.Directly Related Test
There are two ways to prove that an entertainment expense is directly related to the active conduct of your business. One way is to show that the entertainment took place in a clear business setting. This is viewed objectively, so nightclubs, theaters, sporting events, country clubs, or social gatherings, such as cocktail parties, are not considered to be clear business settings.
If the entertainment does not take place in a clear business setting, the directly related test can be met if you can show that you engaged in good faith business activities, and the main purpose of the entertainment was the active conduct of business. That said it is not enough to just show a general expectation of income or a specific business benefit.
As an attorney, it will be harder to prove that your entertainment expense meets the directly related test because said expenses are incurred with a general expectation of income or a specific business benefit. In other words: networking and establishing goodwill.
You may meet potential clients and referral sources for the first time at social gatherings, charity functions, birthday parties, and other places that are not clear business settings.
Therefore, our online dater will fail the directly related test. No one goes on a date at a “clear business setting.” Also, even if an active conduct of business occurred, the main purpose of a date is to get to know a potential romantic partner.
If an entertainment expense fails the directly related test, then you have one more test available to you.Associated Test
An entertainment expense can be deductible as a business expense for two reasons:
The associated test is more flexible than the directly related test. IRS Publication 463 defines how the associated test is applied:
Generally, an expense is associated with the active conduct of your trade or business if you can show that you had a clear business purpose for having the expense. The purpose may be to get new business or to encourage the continuation of an existing business relationship.
Whether a business discussion is substantial [for the purposes of the associated test] depends on the facts of each case. A business discussion will not be considered substantial unless you can show that you actively engaged in the discussion, meeting, negotiation, or other business transaction to get income or some other specific business benefit.
The meeting does not have to be for any specified length of time, but you must show that the business discussion was substantial in relation to the meal or entertainment. It is not necessary that you devote more time to business than to entertainment. You do not have to discuss business during the meal or entertainment.
You will have a better chance at deducting your business related entertainment expenses under the associated test. The associated test permits meeting and discussion to establish goodwill and does not have a time requirement to discuss business. But these expenses may be disallowed as a nondeductible personal expense if they are connected to regular meetings with the same people.
Under the associated test, you may also be able to deduct dating expenses. For instance, if there is no romantic chemistry, you should switch the topic of discussion to business and keep it that way. If there is a possibility of a future business relationship, then any entertainment expenses incurred after the discussion can be tax deductible. That gives our online dater the ability to deduct expenses using the associated test as well.
Finally, if you meet that special someone, can you deduct the entertainment expenses from your dates even though your activities could pass the above tests? I wouldn’t recommend it. The IRS is very suspicious of transactions between related parties. So although you lose the tax deduction, remember you have gained a priceless and nontaxable relationship.
Originally published 04-08-15. Republished 05-06-16.
Featured image: “Revenue Service IRS Finance Taxation Government Concept ” from Shutterstock.
Generally, meal and entertainment expenses under seventy-five dollars do not require a written receipt. Regardless, you should record the amount spent, the time and place of the event, its business purpose, and the business relationship of the individuals involved. ↩
How To Tell Whether Your Bad Date is Tax Deductible was originally published on Lawyerist.com.
A few months ago, we lamented the fact that the cool disruptive legal tech startup field was woefully short on actual lawyers that might provide useful information about how legal tech should work. The comments were, shall we say, spirited, with some folks asserting that good tech is good tech and you do not necessarily need the assistance of some Luddite lawyers. Lawyers might have the last laugh, however. According to the Harvard Business Review, we could be good for all sorts of startups.
Lawyers can add value in the obvious ways, helping to avoid early mistakes like issuing stock too late in the game, when the company has grown in value and the employees can no longer take advantage of favorable tax treatment. But more importantly, a lawyer on the early team can contribute to a thriving company culture by asking the right questions at the right times, providing perspective on crucial transactions, and getting smart fast on issues where the rest of the team lacks expertise.
The article notes that the first set of skills-being a smart tax lawyer, for example-are great, but can be handled by outside counsel. For an attorney to add enough value as a full-time employee, they need to have a mindset that is both highly detail-oriented and risk-tolerant.
For one thing, she must be willing to give up her plush office and lucrative salary for a computer station at a long table and compensation in the form of prayers, otherwise known as stock options. Her professional risk tolerance must follow suit. An essential attribute of a business attorney is providing “risk-adjusted” advice, and the level of tolerable risk for a startup generally far exceeds that for a Fortune 500 company. Lawyers at startups need to recognize that a workable answer today is often preferable to the perfect answer tomorrow; hand-wringers need not apply.
Lawyers Can Be Useful to Startups, Even Non-Legal Ones was originally published on Lawyerist.com.
I have an eating disorder. This has defined me more than being a lawyer, a business owner, a girlfriend, an aunt, and a friend. While I’ve battled my eating disorder for most of my life, it has only recently taken hold and forced me to pay attention. My inability to focus on anything other than food and body image threatened to take down my life and my firm, so I made the hard decision to scale back my practice and enter treatment.Recognizing an Eating Disorder
For at least 25 years, my relationship with food has always been tumultuous. I have never seen food as food. Never. Pizza was bad, so I was bad when I ate it. Cookies made you fat, and I already felt fat, so I couldn’t eat cookies. I ate to avoid my feelings and to soothe myself. I ate because I hated myself, and because I hated other people. I often ate to fit in. In equally destructive ways, I restricted food to prove to myself I didn’t have needs, but I did have willpower. This led to a ton of shame and isolation; I restricted with others and binged when I was alone. I have been on every diet you can name, and I have spent thousands of dollars on cleanses, pills, books, and health coaches. There were moments, even months, of peace. But I would always return to constant judgment of my food choices.
It didn’t occur to me that this was a problem until I woke up one day and realized that thinking about food 95 percent of every day might not be normal. So I sought help and received a diagnosis of binge-eating disorder. I saw a dietitian a handful of times, started talking about it with a therapist—assumed that was enough—and swiftly put it in the back of my mind. I continued to restrict food, adhere to my own peculiar food rules, and firmly believed that I just needed to muster more willpower to make peace with food and my body.
And then, as it does, life happened. I lived through a harrowing month of personal and professional losses. I gained 30 pounds. My mind reacted by effortlessly reassembling all the pieces of my eating disorder.
And then, my eating disorder attacked my professionalism. There were the days I couldn’t get out of bed because I felt scared of the unknown. I canceled client and networking meetings because I didn’t feel good in any of my clothes. My self-esteem was so low I couldn’t imagine being a lawyer. I started to question whether law was right for me, and if I would ever feel successful.
Alarmingly, I also started resenting my clients. I had always considered myself a compassionate and empathetic lawyer. And I had worked on stressful cases with stressful clients for years. But all of a sudden, I couldn’t handle it. My eating disorder manifested itself deeply in every facet of my life, and I couldn’t even see it.Finding Help
There were innumerable moments in my life when I could have sought professional treatment for my eating disorder. But the moment that made me finally enter treatment was so familiar and so ordinary: I woke up, had a slice of leftover pizza for breakfast, and wanted to die.
The pizza was enough—that cheese was enough, that carb was enough, that judgment was enough—to send me into a terrifying downward spiral. I hated myself and my lack of willpower. I hated the people who loved me, and my clients, and the law, and my mom for leaving when I was young, and anyone who could resist pizza and just eat eggs for breakfast.
Lost in shame and guilt and self-hatred, I didn’t recover from this downward spiral for a week. I didn’t shower. I didn’t engage. And I definitely didn’t do any client work—they were all so needy, and I couldn’t handle anyone else’s needs.
I couldn’t even handle my own.
So I called a treatment center and made an appointment for the following day. Feeling so bad was exhausting, and I was finally motivated to take my eating disorder seriously and get help. I cried in the intake as I told them that yes, I may seem fine, but I knew I would seem fine until I was dead. Finally, someone took me seriously. The intake therapist recommended intensive treatment and said I “needed eyes on me.”
It was validation, and it was the very first time that I felt someone really understood and cared about this part of me.
Once I determined that I was going to enter treatment, I knew I wouldn’t be able to handle certain cases. Demanding clients, constant interruptions, and court dates would take up too much time and energy. But my high-stress cases also paid the most, and I had concerns about making less money while finding a way to pay for treatment. So I cut back on my litigation work but kept open the transactional side of my business. That, coupled with savings, proved just enough to get by in the early stages of treatment.
After working out the financials, I followed the rules while withdrawing from my cases. Still uneasy, I also called my state’s lawyer support service. They honored my decision to enter treatment, validated my desire to withdraw from certain cases, and talked me through how to have conversations with my clients. When I expressed doubt about withdrawing, they reminded me that I might not be the most zealous advocate right now, and making space for myself might not only be in my best interests, but also my clients’.
By the end of the day, I had fully withdrawn from three cases. I talked with each client, found attorneys who would take over the cases, prepared and sent all case files, filed documentation with the courts, completed final billings, and returned unearned trust funds. I did all this in four hours; it was the most efficient I had been in months.
The relief I felt was immediate and palpable. I hadn’t been showing myself a lot of grace up until this point, but it didn’t take more than a day to realize that dropping these cases was the biggest act of self-care I could have shown myself. This step was necessary in order to make space for myself in treatment.Treatment
Upon entering the intensive treatment program, I found I was glad I made room for myself. It took all my emotional energy to sift through my disordered thinking.
Treatment brought up issues that overlap with lawyering: black-and-white thinking, perfectionism, and self-esteem. And slowly, I have learned new things: food is just food (which was like understanding a new language), there aren’t good and bad foods, and feeling intense shame while eating a brownie was not healthy. I realized I am worth more than the number on the scale, and other coping skills are more effective and just need to be honed. I learned to be vulnerable and to shed light on my disordered thoughts to take away their power.
But the most beautiful thing about treatment has been meeting the other people in it with me: we take classes together, we do group therapy together, we cry, get mad, and laugh together. We listen, and we share our struggles, and we realize we’re not alone with our eating disorders anymore. We talk about things we’ve never given voice to, we strip those things of their power, and we try to move on. We have people now. And we get it. For the first time, we are no longer alone.
I can see now why there was no room for anything else in my life. I can see now why I ran out of empathy. I can see now how important it is to practice self-care before attempting hard things—especially hard things that involve other people’s needs.Looking Towards the Future
I am not writing this article from a place of recovery. I’m just four months into treatment, and I’m still fighting my eating disorder most days. But I’m taking it seriously now. I see a therapist and a dietitian every week. I still spend a lot of time thinking about food and body image, but my thoughts are more tempered now. I’m getting better. I’m reengaged in my personal life. And I’m starting to derive joy from my practice again. I’m doing transactional work with less anxiety. I’m enjoying conversations with clients and I am energized by helping them. I’m recognizing that there’s space for their legal needs and my personal needs to coexist. I don’t know whether I will ever add high-stress cases back into my practice, but I’m not feeling any judgment about that decision.
And most importantly in all this, I’m learning to let go of perfectionism. It’s probably what drove me to become a lawyer, it’s probably what makes me a good one, and it’s definitely played a part in my downfall. Needs are a difficult thing. Contending with your own is hard enough; working a job that mandates you take on the needs of others is another beast entirely. Throughout my experience, I’ve learned what I’ve always known but was never able to do: take care of me before I can take care of them. Once I was able to see that, once I was able to do that, it was clear to me how much more space I had to tackle other people’s problems. Because I am a healthier person, I am a better person. I am a better lawyer.
How My Eating Disorder Took Over My Law Practice and My Life was originally published on Lawyerist.com.
Another day, another security breach. Alex Holden, chief information security officer at Hold Security, discovered that 272 million emails are currently being traded in Russia’s criminal underworld. Nearly every major email provider was breached, including Google, Yahoo, and Microsoft.
If you route your email through any of the providers mentioned, here are five steps you can take to mitigate a potential breach:
If you’ve done all the above, you can feel relatively confident your email is safe and sound from underground Russian criminals jockeying your credentials. If you haven’t protected your email by following any of the above steps, now is a good time to catch up.
Russian Hackers Are Trading Your Email Credentials like Magic Cards was originally published on Lawyerist.com.
Making legal jargon understandable to the general masses is a big job. Some more creative judges think outside of the box to get their point across through pop culture references. With all of the hype surrounding Star Wars: The Force Awakens, it should come as no surprise that Star Wars references are seeping into judicial opinions.Arbitration Odyssey
Not so long ago in a courtroom not quite galaxies far away, Singaporean Judge Vinodh Coomaraswamy anonymised his 76-pages of reasons for dismissing an application to reject a tribunal’s decision by inserting various names and locations from the popular franchise. Uncreatively titled AMZ v. AXX, the title of the arbitration award reveals little of the tale woven within.
Although the geographical specifics don’t entirely match up to the galactic level Star Wars universe, the judge set the dispute in the aptly named Alderaan, Cloud City, and Bespin—an immense gas giant located in a desolate sector of the Star Wars universe.
In lieu of using the names of parties to the dispute, the judge dubbed the finance manager as Beru and the oil trader as Owen, Luke Skywalker’s aunt and uncle in the original Star Wars trilogy.
The judge even went as far as naming the vessel used by the plaintiff to ship crude oil to the defendant the “Tantive IV,” which die-hard Star Wars fans will immediately recognize as the ship Leia is captured in at the beginning of Episode IV.
This made the seventy-six-page culmination of an otherwise dry contract dispute much more interesting. A few of the judges highlights are below.
… it chartered and nominated a vessel, which I shall call the “Tantive IV”, to transport the Dar Blend from South Sudan to up to three safe ports including Alderaan and Cloud City…
…Owen proceeded to load the Dar Blend onto the Tantive IV at Port Sudan on 17 and 18 December 2010. However, Owen did not instruct the Tantive IV to sail directly from Port Sudan to Cloud City. Instead, he instructed the vessel to sail from Port Sudan to Alderaan and to remain in Alderaan awaiting further routing orders…
This is by no means the only time a judge has used Star Wars references to illustrate points in a court of law, nor by any means the most colorful.A Little Green Man
In a case involving a racketeering and money laundering conviction stemming from “spas” that were allegedly fronts for prostitution, appellate Judge Frank Easterbrook of the 7th Circuit chided the prosecution over an inflated calculation of proceeds from the operation. Finding that operational costs shouldn’t be considered net proceeds, Judge Easterbrook cautioned that “Size matters not, Yoda tells us.”
Justice Cunningham of the Kentucky Supreme Court similarly channeled the wisdom of Jedi Master Yoda in his dissenting opinion on due process considerations and nonpayment of child support, opining:
Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. ‘Do or not do. There is no try.’ It is an admonition which fits the deadbeat parent when all of our solicitous pleadings and beseeching have led nowhere.Jedi Mind Tricks
In one case, where a doctor was charged with enabling prescription drug abuse by allegedly writing hundreds of medically baseless prescriptions, the judge incorporated his knowledge of Star Wars into an order on objections to an expert’s testimony. The court took the defense to task over diversionary tactics, such as demanding a list of a prosecution witness’s published articles for the last decade and the witness’s compensation, as the “legal equivalent of Obi-Wan Kenobi’s ‘These aren’t the droids you’re looking for.’”
This attempted diversion—the legal equivalent of Obi-Wan Kenobi’s “These aren’t the droids you’re looking for,” see STAR WARS EPISODE IV: A NEW HOPE (Lucasfilm 1977)—is unavailing.
California Court of Appeals Justice Moore characterized one case in which the parties had conspired “in a despicable scheme” to hide assets during divorce and child support proceedings in terms of the dark side:
This case is somewhat akin to deciding a dispute between Darth Vader and the Borg, or if you prefer a classical metaphor, Scylla and Charybdis. There is no justice to be done here. The parties conspired in a despicable scheme to hide assets during marital dissolution and child support proceedings. The defendants retained those assets; the plaintiff sued to get them back. Both now rely on arguments relating to unclean hands, the sanctity of the judicial process, and public policy, all of which are laughable, considering the circumstances.
One judge punctuated his commentary on an expert’s testimony in a tortious interference and non-compete case about the “ripple effect of negativity” that contributed to the damage claims with a Star Wars reference-heavy footnote:
I do not credit Mr. Fleming’s testimony, which is not adequately supported or explained and is, at best, highly exaggerated. Even in Star Wars, it took the destruction of a planet to create “a great disturbance in the Force, as if millions of voices suddenly cried out in terror, and were suddenly silenced.” And it took no less a Jedi Knight than Obi–Wan Kenobi to sense it.Disturbance in the Force
In another employment law dispute over unpaid overtime and meal benefits that had beaten a complex path through the judicial system, the judge described the nature of the procedural history as “similar to a Star Wars bar scene, the procedural history of this action is bizarre.”
With the exception of this select group of Force-savvy jurists, perhaps it is best for you to leave Star Wars references to the judge. This is illustrated by the following exchange between a trial judge and lawyer in a case where the choice of police line-up participants was at issue.
Counsel: Other than the fact that they shared African American descent, these people were about the same as the denizens of the Mos Isleys [sic] Space Port in Star Wars.
Court: I am sorry. I don’t go to those movies so I have no idea what you are talking about.
Counsel: All right. This is like the British judge who, when there was a reference to the Rolling Stones, said, “the Rolling What,” Your Honor. All we were missing here were the Harlem Globetrotters and the Seven Dwarfs [sic].
Court: In other words, it was in the middle, not to either extreme. Counsel: I don’t think so.
Whether Star Wars references make the law more or less confusing remains to be seen.
Galactic Disputes: Judges Channel the Wisdom of Star Wars was originally published on Lawyerist.com.
Guest post by Jeff Kerr, CEO and Founder of Casefleet.
It’s safe to say electronic evidence—text messages, digital photos, cloud storage, and the internet of things—will be involved in every new case you have. As a result, it’s important you prepare to produce and request electronic evidence from the start of your case.Why You Need to Prep
Early preparation for e-discovery doesn’t only reduce risk, it gives you the best odds of winning your case. Moreover, early preparation for e-discovery is the best antidote to clients who conceal facts or evidence from their own lawyers. Nothing matches the peace of mind you’ll experience from knowing all the facts, good or bad, before you start the formal discovery process.
In this post, I’ll cover the first of three important preparatory steps: the client interview.Getting Started “To avoid spoliation, you’ll need a clear picture of what evidence your client has and where it lives.”
When you begin working with a client on a new litigation matter, you’ll know something about the facts of the case, but next to nothing about the electronic evidence in your client’s custody. Even inadvertent destruction or modification of evidence can lead to heavy penalties or an outright dismissal of your case. To avoid spoliation, you’ll need a clear picture of what evidence your client has and where it lives.
To do this, you’ll ask a lot of questions, and most clients don’t love answering them. Some clients get nervous because there’s something in their digital lives that they don’t want you to know about. It could be about the case (e.g., evidence that contradicts parts of the client’s story or supports the other side’s claims), or it could be something more personal (scandalous text messages or embarrassing browser history). Either way, it’s better to deal with these problems upfront while you can do something about them (or, alternatively, walk away from the case). In my practice, I helped clients understand the need for my questions by saying the following:
Once you’ve gotten over any objections, you can proceed to ask questions about different categories of electronic evidence. Even if you’re an expert on IT issues, it helps to have a checklist or a script, which you can download below:Download Now
Tailor the questions you just downloaded to your specific case. For example, if a business client was sued by a former employee, then you’ll gather more information about personnel records, compensation data, internal email, HR databases, and the plaintiff’s former workstation. On the other hand, if your client was involved in a slip-and-fall incident, you’ll focus more on SMS records, geolocation data, fitness tracker data (to verify injuries), and social media (to verify pain and suffering). Also, note that even though the focus is on e-discovery, treating paper documents as part of the same puzzle is a good practice.
Don’t let the questions listed limit your imagination or your follow-up questions in any way. Software and hardware is constantly evolving. Also be sure to take good notes. You’ll come back to them again and again as the case progresses. While your client may find the level of detail puzzling, a thorough interview pays dividends and is a necessary pre-condition for a strong preservation strategy.
Featured image: “Self discovery” from Shutterstock.
Preparing for E-Discovery, Step One: the Client Interview was originally published on Lawyerist.com.
Summer creates tremendous challenges for parents with school-age kids. Schools and daycares are closed, but work continues unabated. Parents are left to cobble together care for their children while still heading to the office. Providing that care is a huge challenge, as is evidenced by the fact that children between the ages of four and twelve are left alone three times longer during the summer.
The average American family spends about $7,000 on summer child care, about half their annual care budget, according to Sheila Marcelo, the founder of Care, a website that helps families find care. That estimate is probably low for lawyers. It does not account for the revenue lost because of time lawyer parents must take away from work and business development to fill in the gaps in summer care.
The solutions require some planning and can be expensive, but here are some ideas to help you and your family solve the summer child care dilemma. Planning early for next year can help pave the way for an enjoyable summer for everyone.Strategic Vacations
Some parents stagger their vacations, with one parent taking off a couple of weeks and then the other parent following suit. If each parent has two weeks of vacation, staggered vacations can provide a full month of child care. The upside is that parents get to enjoy summer with their children without depleting their budget. The downside is that this plan leaves very little time for the family as a whole to enjoy summer. And, if you work for yourself or have heavy business development responsibilities, it may not be feasible (or financially friendly) to take a full two weeks off. Nevertheless, juggling vacation time can be a useful tool for getting through the summer, especially if you have children who are too young for organized programs like camps.
Even if you do not stagger your vacations, you will probably have to (and want to) use some vacation time in the summer. To minimize the financial hit to your practice, consider vacationing in August when many others are vacationing, too. Courts tend to slow down and opposing counsel may be on vacation.Develop a Deep Bench of Babysitters
No matter how well you plan your vacations and activities, there will be times when you need extra help. Something will come up at work or you just need a break. Cultivating a deep bench of reliable babysitters can help. Aim for four-to-five people that you trust and your children. This guarantees you will still have someone to call in case your regular babysitter is unavailable. The good news is students and many teachers are available to babysit in the summer, so it is a buyer’s market. Babysitting rates may be lower than at other times during the year because of the extra supply. Check here for the going rate in your area.
To find a good babysitter, many parents rely on word-of-mouth. Care is another excellent resource that many use to find nannies and sitters.There are also many agencies that can help you find summer sitters and nannies. Popular ones include College Nannies and Tutors and Sittercity.
To cut down on costs, consider sharing a sitter with another family or two. If you can find a sitter willing to watch several kids, and you can find families you and your kids are compatible with, this can be a great option. It may take some organization on the front end, but the kids will be happy and so will your wallet.Grandparents and Other Relatives
Grandparents and other relatives can be a wonderful way to provide care for your children and a memorable summer. If relatives are willing and able to help out, consider allowing your kids to spend some time with them. You can rest assured that your children are loved and well cared for, and your kids will no doubt be making memories.Camps
Once your kids are old enough to need and like playing with other children, you will probably have to sign up for at least one camp. Camps range tremendously in price, from the very expensive overnight camps to far more affordable day camps. The trick with camps is to figure out the duration. Some overnight camps last weeks, which can get you through a good chunk of the summer. Others may be just a week or two and only during the day. You may have to cobble together a few different camps and even arrange for pick-up and drop-off help, though some camps do offer that service. To help you find a good fit, the American Camp Association has a searchable database here.
For affordable camp options, check your local public schools. Many have extended care programs for the summers. Religious camps can also be very affordable. And the YMCA, which is in most locales, offers many programs at good rates.
Overnight camps can be pricey, but some of them can provide amazing experiences or specialized skills, like computer programming or sports.
The summer child care dilemma is not going to be easily solved anytime soon. But with some planning and work, you can make your children’s summers fun and memorable while still building your law practice.
Featured image: “Father and mother Teaching children to do their homework at home” from Shutterstock.
Sam and Julie Tolek chat about what it means to be a solo lawyer and how to create a brand experience that doesn’t intimidate clients. Julie also tells us about how she manages her client tasks and what it takes to maintain a work-life balance in the legal field.Flat-Rate Billing May Be Unethical, and You Can Now Bill Clients for Unpaid Labor
Is it unethical for a lawyer to not track their time? A recent Kansas Supreme court ruling says it is. Sam and Aaron tell us what this blanket judgement means for lawyers who have chosen to adopt flat-rate billing in lieu of tracking their time. (Hint: You probably should be tracking your time just to be safe.)
In other legal news, you can now bill clients for using unpaid legal interns. Aaron and Sam determined that this decision is absurd.What It Means to Have a “Human” Practice, with Julie Tolek
A geek by nature, Julie started her own technology consulting and education company, Mac Girl Consulting, in 2008 after she left Apple to pursue her dreams of becoming a lawyer. In law school, Julie earned the privilege of becoming an Academic Excellence Honors Fellow where she worked with struggling first year law students as a mentor and coach, teaching them the art of being a law student, including life and time management skills, and legal analysis and writing skills. Follow her on Twitter and Linkedin, and check out her human law practice Think Pink Law.
We love our sponsors, but they only cover part of what it costs us to bring you this podcast. So we need your help. If you enjoy the show, please click this button and make a contribution:
To listen to the podcast, just scroll up and hit the play button (or click the link to this post if you are reading this by email).
To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.
Podcast #66: What It Means to Have a “Human” Practice, with Julie Tolek was originally published on Lawyerist.com.
Have you ever tried remotely accessing your desktop software with a tablet? Try using your mouse with one finger sometime, and you’ll see how frustrating it is.
You can use a VPN application to get mobility, but not without compromise. Remote applications like PCAnywhere, LogMeIn, and other VPN variants simply compress your desktop down to the size of your device. What you see is merely an image sent to your device as a graphic, with the clunky slowness associated with sending a graphic back and forth across the internet. Simply put, it is not optimized for mobile devices. Plus, your office computer must be left on, so if someone comes along and helpfully shuts down your computer when you’re out of the office, you’re work session is finished.
The hassles involved with using so-called remote access software might be tolerable; if you only need to log into your office desktop for a single piece of information.
If you need to actually WORK somewhere besides your office, then why endure so much frustration?
Consider this: Would you go to your office, log into a remote computing application, then log onto your PC, and then open your practice management software?
Of course not. So why are you doing the same when you’re not in the office?
You deserve the full mobility that you get with Amicus Premium legal practice management software.
When you subscribe to Amicus Advantage, Amicus Anywhere provides a secure, instant, live connection to your Amicus Premium software through a web browser. Whatever device you are using, you can manage your practice from wherever you are.
Regardless of where you are or what you are doing…
It’s the best of both worlds.
The second you click save, your work is updated on your browser, AND is instantly saved in your Amicus Attorney database at the office.
Get the power of a desktop solution with the benefits of cloud computing with Amicus Premium legal practice management software.
For more information, please visit amicusattorney.com.
In news that will either thrill you or make you squirm with discomfort, Google has announced that it has patented a device to correct your vision. The catch? It involves injecting that device directly into your eyeball.
The device, Forbes reports, is designed to help the focusing of light onto the retina, resulting in the correction of poor vision. It will contain its own storage, radio and lens and will apparently be powered wirelessly from an energy harvesting antenna.The Legal Profession Might Get More Diverse Thanks to Law School Applications Tanking
This is counterintuitive as all get out, and of course correlation does not imply causation, but that said:
There’s evidence to suggest that as law school applications fell in the last few years, the number of Latinos and Blacks rose by proportion.
In the words of NPR’s Kelly McEvers, law school applications numbers are down — “way down” — at about half of where they were a decade ago. […] Coincidentally, however, the numbers of black and Latino students applying to law school rose in proportion to the number of white and Asian application numbers that fell.
The legal profession is still 88% white, which is abysmal.Being a Nice Boss Does Not Always Mean Your Employees Stick Around
It has generally been presumed that if you are a terrible person to work for, your employees will leave in droves, but if you are a reasonable human being, they will stick around. A new study published in the shows this is not necessarily true.
Conventional wisdom says that people don’t leave companies, they leave bad bosses. Yet our research — and growing evidence from other leadership studies — finds that employees leave both good and bad bosses at almost comparable rates. […]
Good leadership doesn’t reduce employee turnover precisely because of good leadership. Supportive managers empower employees to take on challenging assignments with greater responsibilities, which sets employees up to be strong external job candidates. So employees quit for better opportunities elsewhere — better pay, more responsibility, and so on.
So go ahead, be a jerk. Actually, don’t, because those employees that leave on good terms can be a boon for their former company.
Former employees with good bosses are what we call “happy quitters.” When the consultant company asked them about their feelings toward their former employer, their responses were overwhelmingly positive. […] Good leadership, then, is an important tool for building goodwill with employees, which they are likely to retain as alumni, in turn becoming sources of valuable information, recommendations, and business opportunities later on.Microsoft Has Its Own IFTTT Now
IFTTT, (If This Then That) if you are not familiar, is an amazing little tool that allows you to connect various apps and services. For example, you can connect your phone to Google drive to automatically create a call log. If you have done the cool connected home thing, you can use IFTTT to tell your automatic sprinkler system to hold off watering if it is going to rain that day.
Now Microsoft has its own version of IFTTT called Flow. Some things Microsoft suggests you can do with Flow? You can get a text message or a Slack message when your boss emails you. You can automatically save email attachments to a SharePoint library.
Unfortunately, Flow looks to have quite a few less available integrations/channels/apps than IFTTT does at present.Your Client Might Be Forced to Provide a Fingerprint to Unlock Their Phone
What is more secure, if we define “secure” as “making sure law enforcement cannot get at the contents of your phone?” Because courts are still flailing around vis-a-vis the intersection of technology and privacy, answers vary wildly. Discouraging news out of California suggests that the fingerprint ID method of locking and unlocking a phone may not keep law enforcement out after all.
It isn’t clear why the feds made an unusual effort to access a smartphone that had been used by Paytsar Bkhchadzhyan […] [b]ut it required only about 45 minutes after she was sentenced in Van Nuys, California, on Feb. 25 for a federal magistrate judge 17 miles away to issue a warrant requiring her to provide the fingerprint needed to unlock the phone, reports the Los Angeles Times (sub. req.) Since she was already in custody, it was quickly obtained by the FBI. […]
“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement. ‘Put your finger here’ is not testimonial or self-incriminating,” Albert Gidari of Stanford Law School’s Center for Internet and Society told the newspaper.LSAC Is Very Mad At Arizona Law Right Now
The University of Arizona College of Law recently made a decision to allow incoming applicants to take the GRE instead of the LSAT after conducting a study (in conjunction with the makers of the GRE) that found the GRE to be a perfectly adequate substitute. This has made the Law School Admission Council, which administers the LSAT and serves as law school application central for tons of schools, very unhappy. So unhappy that they might just boot Arizona Law out of the LSAC club.
Last month, LSAC’s general counsel notified Arizona Law that the school’s new policy may violate its bylaws, which require that “substantially all of” a law school’s applicants take the LSAT.
The letter said the group is considering expelling Arizona Law from its membership, which would effectively cut off the school’s access to a crucial student admissions pipeline.
Arizona Law, however, isn’t going to take this lying down.
Arizona Law disputes that it’s out of compliance. But the school is challenging LSAC’s policy more broadly.
“We believe that your proposed action unreasonably restrains competition in the law school admissions testing market,” wrote Arizona Law’s dean, Marc Miller, in a letter to LSAC on Friday.
This is shaping up to be a very interesting fight.
Briefs: Google Wants to Fix Your Eyes, Being a Nice Boss Is Overrated, Etc. was originally published on Lawyerist.com.
We are really excited to announce TBD Law, a first-of-its-kind event for a select group of innovative lawyers. We’ve teamed up with Matt Homann and Filament to create a two-day program to begin determining the future of solo and small-firm law practice—both for those present and for the profession at large.A Different Kind of Conference
We’ve been interested in doing an event for years, but there are already plenty of conferences where you can sit and listen to the same speakers give the same talks for two days of one-hour sessions. And if that’s what you want, YouTube works just as well. We wanted to do something better, so TBD Law is designed to draw out the kinds of inspiring conversations that usually start between sessions, and give them time and space to grow.
So TBD Law is not a conference—at least not like any conference you’ve been to. (It’s not an “unconference,” either, for that matter.) Instead of speakers, we’ve invited lawyers who are already inspiring us with the innovative ways they are practicing law today and preparing their firms to succeed over the next 5–15 years. Most of the invitees are the sort of lawyers you could hear talking about their innovative approaches to law practice at other conferences and local events.
In August, we will put all those creative brains together for two days to share, brainstorm, workshop, hack, and otherwise blow each other’s minds.About the Hosts
Lawyerist’s mission is to help solos and small firms succeed in the rapidly changing legal profession. At TBD Law that’s exactly what we will be doing, both for those who attend and for the legal profession at large, which will never be the same again.
Our partner in TBD Law is Matt Homann, one of the most thought-provoking people we know. He recently launched Filament, a St. Louis space for amazing meetings (a topic Matt has spent considerable time on) where TBD Law will be held. Matt is pretty awesome on a stage with a slide deck, but what he really shines at is inspiring others to come up with their own best ideas.
TBD Law will bring together the Lawyerist community and Matt and Filament’s unmatched ability to facilitate great meetings, and the result is probably going to blow your mind.How to Attend
TBD Law is a small event by necessity, so we can’t invite everyone. We’ve tried to invite the most innovative solosmalls we know, and the first round of invitations went out on Friday. If you already have an invitation, register soon for the best price!
If you did not get an invitation, don’t despair! We know there are innovative lawyers whose names we just don’t know yet (or whose names didn’t make it onto our list due to a tragic oversight). If you think you are one, please tell us why you should be there.Who Should Apply
TBD Law attendees will be practicing lawyers who are innovating in their law practices. Innovation can mean many things, including technology, business models, client-service models, work-life balance, and more. Tell us what it means to you and why you need to be on the guest list.
We hope to see you in St. Louis on August 14th!
Apply at TBDLaw.co
Announcing TBD Law: Where the Future of Law Practice is To Be Determined was originally published on Lawyerist.com.
In a profession that places a premium on time, powerful workflow automation gives you a considerable edge in the business and practice of law. Software that can autonomously manage and perform your day-to-day administrative tasks will help maximize productivity by saving time and improve performance of your administrative workflow.
Ken Grady identifies automation as a key component of the legal service process:
Lawyers’ jobs are composed of thousands of tasks. Some tasks are extremely complex, but many are very simple. Most are mixed. Legal service processes can be disaggregated, for example, during the lean thinking exercise of process mapping. Once a process is disaggregated, the question is whether computers can automate a task or even part of a task.
While the concept of an augmented lawyer is linked to machine learning, it is applicable to the power and volume workflow tasks of a law office. Zapier can help you get there.What is Zapier?
If you do not already use Zapier, you may have seen it featured as a third-party integration for any number of the cloud applications you use. It delivers the power of automated computer tasks without requiring any experience or technical skill.
Without using any software code, you can use Zapier to direct an application to “copy and paste” information to another, unrelated application. Zapier then works quietly in the background, sharing that information automatically, based on your settings.
For example, let’s say you have a client meeting scheduled in Google Calendar, and you want to record this in your timekeeping software. Rather than making both a calendar and time entry, Zapier will do the heavy lifting by first getting notified of your “Client Meeting” appointment. Zapier will then transfer data from that calendar entry (description of meeting, time, and length of appointment) to Harvest, Freshbooks, or lots of other timekeeping applications.
Data from any of the 500+ Zapier supported apps can be sent just about anywhere you want it to go.How Zapier Works
Zapier sources the data it sends from an application’s built-in API (application program interfaces). Then, Zapier connects with the receiving application’s API, allowing the programs talk to each other. Here is the Zapier-specific terminology that addresses this process:
The primary pricing factors are the number of Zaps concurrently activated and how many tasks you use in a month.
Currently, Zapier’s free plan allows you to create unlimited non-multistep Zaps. Only five can be active simultaneously, and you only get 100 tasks per month before Zapier requires you to upgrade.
The Basic Plan, for $15 per month, increases the number of active Zaps to 20 and the task limit to 3,000. This is probably sufficient for most solo and small firms.
Both the $49 per month Business and $99 per month Business Plus plans further increase limits on active Zaps and tasks. The Business Plus plan includes phone support and priority input—meaning that your requests for Zapier to support additional cloud applications are more strongly considered.
More details can be found on Zapier’s Pricing Page.Key Benefits For Lawyers
On the surface, the economics are fairly straightforward—less activity on administrative and other routine non-billable tasks will give you more time to do legal work (or, you know, work towards a balanced life). However, Zapier can also manage key components of your workflow, extending the advantages well beyond those of mere convenience. Zapier’s focus on modern cloud applications can also lay the foundation for bespoke practice management software at a surprisingly low price point.Time Efficiency
Perhaps the most immediate benefit of automation—the initial input of your routine workflow—is the immediate population of your remaining tasks, saving you the time it would take to complete those tasks by hand.Workflow
An effective workflow typically requires consistency in both process and application. Zapier can save not only the time of performing the task, but helps avoid the fatigue of needing to remember to do it in the first place (or the stress of forgetting to complete a task).Minimizing Human Error
The data from your initial trigger input will appear uniformly and consistently across all your applications connected Zapier. Depending on the workflow, one correct entry may be enough for information to appear correctly everywhere you need it to, with no extra effort.Overcoming Limitations of Existing Software
Zapier can come in handy for circumnavigating deep-seated software used in your firm (which, needless to say, is most likely not supported by Zapier). For example, if you prefer another time tracking application (e.g. Toggl or Harvest) over Timeslips, you can automatically populate a spreadsheet with time entries from the preferred application, which can then be imported to Timeslips.Custom Practice Management Software
Perhaps the most compelling concept of Zapier is the ability to create a highly customized practice management solution. This is particularly relevant when the all-in-one practice management software is no longer flexible enough for your workflow. Lawyers can also leverage Zapier to enhance existing practice management software. Greg McLawsen Zapifies Clio by sending it key data from Trello.Zapier Pain Points
The power of Zapier is not without shortcomings, especially in regard to law practice. It takes time to automate your manual tasks, and the intention to automate can become thwarted by information overload.Upfront Time Investment
Regardless of your comfort level with technology, there is an inherent first-time user learning curve with Zapier. Even when you’ve nailed down which applications you want to connect, choosing the type of data and its presentation can take experimentation before you’re confident in a Zap’s functionality.Maintenance
The process does not end with making a Zap. You will need to check on the Zap periodically to ensure it is functioning (or set up email notifications and alerts). Also, as your actual workflow changes, your automation process will need tweaks and adjustments.Distraction
If the placement of data is not strategic, it could become overwhelming, and defeat the purpose of automating with Zapier. For example, if you are drawing to-do data from several places to a single application, you may get a massive list that you aren’t sure how to deal with.Specific Programs
Although Zapier integrates hundreds of cloud applications, it doesn’t integrate with them all. Additionally, lawyers accustomed to native operating system applications (as opposed to cloud applications) may not see any familiar software providers on Zapier. You may need to finally embrace the cloud in order to fit certain automations into your workflow.Zaps for Lawyers
The variety of cloud applications relevant to law practice management make the Zap possibilities endless. Here are a few examples of how Zaps can improve your law practice:Regular Follow-ups with Your Clients (Freshbooks → Delay by Zapier → Trello)
Once a matter is paid and complete, you may want to keep in touch with your client. This Zap will create a reminder card in Trello one month after your client pays a Freshbooks invoice. Delay by Zapier, a native function of Zapier, intervenes between triggers and actions to postpone the time between the trigger and action until a specific date or length of time. Once this Zap is complete, you have a front-and-center customized reminder to follow up with your client on the correct date.Automatically Track Time from Calls (CallTrackingMetrics → Clio (Find/Create Contact) → Clio (Update Contact)
This Zap solves the problem of forgetting to track time and other details when receiving an unplanned call—especially when away from your desk. A new call will trigger Zapier to search your client CRM (such as Clio) for an existing contact. If no existing contact is found, Zapier can create a new CRM contact. Zapier will then update the contact record with details from the call (how they found your number, the billable time from that call, etc).Time Sensitive Alerts (HelloSign → SMS)
Recurring To-Dos (Schedule by Zapier → Asana)
This Zap is triggered whenever your signature is requested by HelloSign. The Zap will send you an SMS to let you know when your signature is required. This can be especially useful if you re mobile all day (in court, on a trip, etc), ensuring you know there is a time-sensitive document waiting for your signature.
Specific tasks may come due at the end of each week (or month), such as entering time or submitting an expense report. With the native “Schedule by Zapier”, your routine to-do items will pop up in Asana at the interval you specify.
Keep in mind that any product name in these examples can likely be switched out with another similar product (e.g. Google Drive can be replaced with Box or Dropbox). It will depend on which software you use or prefer.Security
While the cloud applications each have their own security features and policies, Zapier-related security covers the Zap-related data. In addition to using https and SSL whenever possible, here is Zapier’s high-level description of security:
There is a reason legal workflow automation experts have API guides on their annual reading lists. Using APIs through Zapier empowers automation of your law practice’s back-end for a fraction of the cost of software developer involvement. Zapier transforms your law practice into a well-oiled machine, condensing demanding workflows in a variety of ways.
In my practice, I now strongly prefer applications that integrate with Zapier because it transports data more harmoniously than if I were to move the data with a mouse and keyboard. Determining whether Zapier is right for your practice will require evaluating your existing workflows, your comfort with this type of automation, and perhaps whether you will use cloud applications in the future.
The good news is you can give it a try with a simple Zap that takes only a little time to set up and doesn’t cost a thing.
As previously discussed here on Lawyerist, the State Bar of California’s head prosecutor of lawyers, Chief Trial Counsel Jayne Kim, has been surrounded by drama for much of her five years at the helm of the bar’s disciplinary arm. This week she shocked the bar by resigning her position.
Kim’s resignation comes just a few months after she seemed to overcome the turmoil. In December, she was reappointed by the State Bar’s Board of Trustees for a second full term as Chief Trial Counsel—an unusual feat under any circumstances, much less after a vote of no confidence by her employees. However, the state’s Senate had not yet confirmed her reappointment, and in fact had not even scheduled a vote.
As lawyers watching the scene unfold from the outside, we will never know how this unexpected news became reality. What we can do is hope that upon Kim’s departure, a sense of civility and reason can return to dealings between defense counsel and state bar prosecutors.
California’s Chief Ethics Prosecutor Resigns Amid Ongoing Drama was originally published on Lawyerist.com.
One of the toughest things for inexperienced lawyers to learn is how to deal with opposing counsel. Older attorneys love to huff and puff at new attorneys. Some days it feels like there is a giant target on your back — which, basically, there is.
The next time opposing counsel blows smoke, take a step back and decide whether there is any fire behind the puffery.Intimidation Can Be a Lawyer’s Greatest Weapon
Law school does not teach you all the dirty tricks opposing counsel will use to throw you off your game.
By nature, many lawyers are bullies. Think of an experienced lawyer as the senior jock in high school. When that jock sees you walking down the hallway in suspenders and carrying a Trapper Keeper, your lunch money is as good as gone.
Just like those jocks, some lawyers rely on their tough image to get things done. Don’t get me wrong; the power of persuasion (in any form) is certainly a tangible skill. And to be fair, the best lawyers I know make the most of their specific talents. In many situations, attempting to scare a young attorney is their best leverage.
Make no mistake, opposing counsel will attempt to bully you. The good news is that just like those high school jocks, the bark is often bigger than the bite. And once you push through the facade, you are in good shape.Huffing, Puffing, and Chest Thumping is Usually Just That The best defense counsel will not bark, scream, threaten, or jump up and down.
Opposing counsel will often tell you that your case sucks. But here’s the thing: if a party (or lawyer) has a really good claim or defense, they raise it in the pleadings. They don’t yell and bark about it, they just file a motion to dismiss or a motion for summary judgment (or serve you with a motion for sanctions).
If I believed every huff and puff that was sent my way or screamed at me, I would have closed my practice years ago. Do I put some stock in huffing and puffing? Sure. Do I put much stock in it? Nope.
Usually about once a month I am told “your case/claim is garbage for the following reasons …” That conversation usually ends with an offer to settle my client’s claims, despite the fact that my case has “no merit.” On rare occasions, I have had defense counsel bring motions to dismiss when they truly think the case has no merit (note: none have succeeded). When they want to try and scare me, they just blab about it.
If there is a real issue, the best lawyers will just lay it out for you. They will not bark, scream, threaten, or jump up and down. They just put it out there. That makes me listen — I may not always agree, but at least I’ll listen.
Just remember: if an issue is so clear or winnable, it’s usually not wrapped up in a bunch of bravado. It’s kind of like my old dachshund when I was kid. He barked louder than any dog I know (and would usually scare bigger dogs), but there was no way he would ever win a fight — he just tried to prevent one from happening.
Yes, I am suggesting that you picture opposing counsel as a wiener dog. That should help with any intimidation issues you may have.Do Not Ignore What You Know About Your Client
If direct intimidation doesn’t work, opposing counsel will often try to turn you against your client. Usually this starts as vague statements like “well, I’ve looked into your client and there are some things that I don’t think you want the court to know” or “I’ve reviewed the evidence, and the allegations in the complaint don’t match up with what actually happened here.”
You have to know your clients and their allegations inside and out — cross-examine them before you file the case. Will you still be surprised sometimes? Sure. But there is a reason why I am picky about who I represent. I know that my client’s credibility will become a central issue in the case.
That does not mean you should ignore a warning shot from opposing counsel. It does mean that you should always take opposing counsel’s comments with a grain of salt and believe it when you see it or hear it. Make them produce whatever evidence they claim makes your client look bad. Then decide for yourself how it impacts your case and your client.
If you let opposing counsel dictate your opinion of your client, you have already lost your case.Do Not Ignore What You Know About Your Case
The bad news is that opposing counsel just told you that “courts throw out cases like this all the time.”
Related “How to Lose Your Case”
The good news is that unless it is the United States Supreme Court with the exact same fact pattern as your case, you don’t need to pack up the tent and head home.
When I get hit with this, I ask for the decisions they are referring to. I’ll guarantee you three things:
One of the smartest things I ever heard a judge say is “you can always find a case that supports your position; tell me about the facts.” In other words, good facts matter. If you have the greatest facts and a couple of cases on your side, you probably have a good chance.Get the Court Involved
I’ve been on the receiving end of plenty of ridiculous statements, attacks, and shenanigans. Fortunately, it usually happens early in the case, even before the parties attend a pretrial scheduling conference.
For example, I had a FDCPA case in federal court. The FDCPA is a federal statute, so even a first-year lawyer would understand that federal jurisdiction is proper. The first time I discussed the case with opposing counsel, a partner from a big firm yelled at me and told me something along the lines of “the federal court is going to hate this little case — and they don’t even have jurisdiction anyway — we will just move to dismiss on those grounds.”
At the end of our pretrial conference, the magistrate judge asked if there were any other questions or concerns. I very politely told the magistrate that I was confused about my opponent’s argument about lack of jurisdiction. I then asked opposing counsel to explain to the court why they intended to bring a motion to dismiss based on lack of jurisdiction. Opposing counsel immediately turned bright red and mumbled something about not currently pursuing it, or something to that effect.
Did that win the case? Of course not. But it put the other side on notice that I call BS when I see it. (And we resolved the case shortly after that pretrial.)
If shenanigans happen at another point in the case, I will usually find a way to show the court what kind of malarkey I am dealing with. That generally involves sending very polite letters documenting the other side’s insanity, then bringing a motion or scheduling a phone conference with the court. Courts are not fond of dealing with discovery disputes, but they also have little tolerance for absurd behavior.
When the situation calls for it, take opposing counsel to the principal’s office.Do Your Research On Opposing Counsel
Let’s assume that opposing counsel has some bite behind their bark. Just because they can bring a motion does not mean they will. Don’t forget, they have to tell their client “we want to charge you $10,000 to bring this motion, and it’s probably a 50/50 chance we win.”
Reach out to your network of attorneys and find out what they know about opposing counsel. Most people have a reputation, and it could include “they love motion practice” or “they always settle at the 11th hour.”
There is no guarantee they will follow their prior course of action, but a little gossip can still be helpful when trying to predict how they view the case and what they might actually do.
Regardless how they litigate, you will almost always get some nugget like “just offer to buy them coffee, and they’ll stop threatening you” or “don’t push them on this thing; that will send them into orbit.”
I am not saying you should let their personal preferences dictate how you run your case. But you should consider it, and if it helps you get a better result for your client, you should absolutely use that information to your advantage.Bottom Line: Smoke Does Not Equal Fire
If someone could burn down your house, would they really knock on your door and blow smoke in your face?
Have faith in your case and your clients. If you decide there’s a problem, then deal with it as you see necessary. But don’t ever let opposing counsel dictate your view of your case and your client.
Originally published 2015-01-21. Revised and republished 2016-04-29.
Featured image: “Verbal aggression against female employee” from Shutterstock.
Don’t Let Intimidation Drive Your Litigation Strategy was originally published on Lawyerist.com.
Marc Randazza is hands down the most entertaining legal writer in the English Klingon language. In this amicus brief, he doesn’t just make the argument that Klingon has all the elements of a living language, he shows it:
BarBri’s online bar prep is a great idea in that you no longer have to slog to some semi-disused auditorium all summer and sit in the dark, mole-like, for four weeks. Instead, you can sit in the relative comfort of your own home and be terrified that you do not know enough about parol evidence. However, online bar prep isn’t that great if it isn’t accessible to everyone.
Three law students have filed a federal lawsuit against BarBri Inc. contending that the company’s online bar-exam preparation materials aren’t fully accessible to the blind.
The suit, filed Monday in Dallas, alleges that BarBri violates the Americans with Disabilities Act by not providing appropriate accommodations […]
The plaintiffs are seeking class action status, a court order requiring BarBri to provide such accommodations and compensation for those who have suffered without them.USB Ports and Devices Can Be Computer Virus Vectors
Some people (cough cough Sam Glover) have been telling us all along that we should be wary of USB ports. thanks to a malicious hack where malware is installed in the firmware of the USB device. Perhaps it is time to start paying attention. For example, a nuclear power plant in Germany was just found to be riddled with viruses spread by USB.
The viruses, which include “W32.Ramnit” and “Conficker”, were discovered at Gundremmingen’s B unit in a computer system retrofitted in 2008 with data visualization software associated with equipment for moving nuclear fuel rods, RWE said.
Malware was also found on 18 removable data drives, mainly USB sticks, in office computers maintained separately from the plant’s operating systems. RWE said it had increased cyber-security measures as a result.
W32.Ramnit is designed to steal files from infected computers and targets Microsoft Windows software, according to the security firm Symantec. First discovered in 2010, it is distributed through data sticks, among other methods, and is intended to give an attacker remote control over a system when it is connected to the Internet.
The same article recites a litany of other times that USB data drives were used to spread viruses or steal information, from plane cockpits getting infected because workers charged their phones via the USB ports in the cockpit to a U.S. power plant needing to go dark for three weeks after a tech inserted a USB stick that infected the turbine control system. Scared yet?Google Just Made Scheduling Easier for Organizations Using Google Apps
If you are using Google Apps to run your organization and you and your colleagues are using Android devices, you can now find meeting times that work for everyone much more quickly.
Starting today, if you use Google Apps for Work or Edu, you can schedule meetings from anywhere with “Find a time” in Google Calendar for Android.
With a single tap, “Find a time” helps you find meeting times that work for everyone—even if they’re in different time zones—based on their availability and the times they usually have meetings. If there are no times that work, Calendar will look at which conflicting meetings can most easily be rescheduled.
If Google made that available cross-platform and device agnostic, requiring only that you use GCal, who wouldn’t want to use it?It Is Finally Time to Say Goodbye to Thomas
Oh, Thomas! When thomas.gov launched 21 years ago (!!) it was groundbreaking: free and full public access to Congressional bills and other information and a noble goal of consolidating Congressional information scattered all over other government websites.
Over the past few years, the Library of Congress has been working on Thomas’s replacement, Congress.gov. In just a few months, Thomas goes dark and a newer, shinier, more responsive Congress takes its place.
Congress.gov is the system that we wished THOMAS could be, but could not because of its older, fragile infrastructure.
There are great Congress.gov features like responsive design (which means it adapts to the device you are using), facets to refine your search results, member and legislation email alerts, status of legislation tracker, and member pages. All of these features were unavailable on THOMAS. […]
We are retiring a twenty-one year old website and replacing it with a more modern, robust site with an agile development plan in place.
Let the countdown begin until THOMAS retires to Monticello on July 5, 2016.
Briefs: BarBri Faces ADA Lawsuit, Say Goodbye to Thomas, Etc. was originally published on Lawyerist.com.
By now, Wikipedia is the thing that needs no introduction. Literally everyone, if everyone means 8someone who is reading this post on the Internet*, knows what Wikipedia is. Wikipedia is the airline seatbelt of the Internet.
But what if you want to use Wikipedia as more than just a reader? What if, rather than just visiting Wikipedia to settle arguments over whether or not you can feed your vegetarian guests the Peeps that have been hanging around since Easter, you want to contribute new pieces to Wikipedia or edit existing pieces?1
Here’s how you should do that.Wikipedia: the Definitely Do Nots
Before going any further, let’s talk about the things you really should not do on Wikipedia unless you want big trouble with the denizens of Wikipedia and possibly the rest of the internet.Do Not Create Your Own Page
Do not decide the first, last, and only thing you want to do is create a Wikipedia page about your law firm. Wikipedia frowns on people who promote themselves, and there is a whole policy dedicated to it. That conflict of interest policy is replete with examples of embarrassing self-promotion or self-protection, such as the bad habit of Congressional staff editing articles about their bosses.
If Wikipedia is to function as a crowd-sourced encyclopedia, it can’t be written by PR flacks or you acting as your own PR flack.Do Not Rage Edit
While contributing to Wikipedia is technically anonymous, tools like Wikiscanner can figure out, with reasonable precision, what IP address made rage edits on a page. Some Maryland state government employees got busted for work day Wikipedia-ing several years ago. The chances you can remain entirely unknown are slim and the risk is just not really worth it.Do Not Be Biased
One of the fundamental principles of Wikipedia (what Wikipedia calls the “Five Pillars”) is that entries represent a neutral point of view. Presenting both sides of an issue, if there is significant and easily sourceable content, is fine, but Wikipedia isn’t the place for you to make an impassioned argument that King v. Burwell was wrongly decided.Do Not Post Original Research
Wikipedia is not the place to post your original research on a topic. All statements on Wikipedia are to be attributable to a reliable published source. Generally, you are not a reliable published source (sorry!) and, to the extent you might possibly be an expert on a particular field, citing to yourself will run you headlong into the “no self-promotion” policy.Wikipedia: The Definitely Do
Now that you know what not to do, what should you be doing on Wikipedia?Edit Using the Right Methods
Wikipedia now has two interfaces you can use when you want to edit an entry. Back in the day, you needed to feel moderately comfortable with HTML-style markups in order to edit a page. If you are comfortable with that, great. Keep the list of Wikipedia’s markups handy and go to town. Most people, though, will probably end up using the visual editor. The visual editor looks a lot like WordPress or a really stripped-down version of Word.
Spend some time with the user guide to get familiar with the various tools you can use to format. If you know how to bold something in Microsoft Word, you will know how to bold it in Wikipedia’s visual editor. Always keep in mind that you can undo your changes and if you monumentally screw something up, Wikipedia tracks all changes and can fix it for you. In other words, you can’t accidentally delete the whole of Wikipedia or even a specific entry.Explain Edits
Explaining your edits isn’t mandatory, but it is courteous. Why did you add or change something? Here is the 2015 edits page from King v. Burwell. You will see people briefly explaining both substantive and minor edits.
Explaining your edits isn’t just polite. Doing so helps you look authoritative. Someone changing pages willy-nilly for no real reason is a nuisance. Someone changing pages because they have an understanding of the mechanics of a case or the nuances of a legal news story is useful.Cite, Cite, Cite, and Cite
Remember how you learned in legal writing 101 that the judge did not care what you personally thought and only cared about what cases and statutes said? The same principle applies here. Anything substantive you add to an entry must be linked to a verifiable source, save for things that are generally considered to be well-known, such as the capital of a country. Wikipedia even has a citation scheme that has full cites, inline cites, and short cites. Lawyers will feel right at home.How To Find Things You’d Like to Edit
It is permissible for you to edit nearly every page on Wikipedia. That does not mean you should. Obviously, you may wish to find law-related things to edit, but you might have other interests as well. Your starting point is, essentially, “what is a thing I am interested in talking about, but is not a thing I will personally benefit from talking about?” Further, everyone knows that once you start looking at Wikipedia, you will follow links forever, or until your spouse tells you it is time to go to bed. In this case, don’t hesitate to go down a Wikipedia hole. It may lead you to something that has not been well covered.
Or, if you want to use your knowledge where it is most needed, WikiProject Law has a bunch of ways to contribute, including lists of articles that need to be updated.
A good example of a law-related page that would benefit from additional information is the entry for legal aid in the United States. The existing entry is very light on how the system works, and there is a note at the top from Wikipedia editors:
This article possibly contains original research. Please improve it by verifying the claims made and adding inline citations. Statements consisting only of original research should be removed.
Let’s say that you spent time in law school researching the history of legal aid for your law review article. You may have run across documents that would help explain the historical underpinnings of the legal aid movement and be able to add to the woefully brief 7-line history that appears here. Indeed, any time you see the “possibly contains original research” note, that entry is a good candidate for you to consider editing if you have some expertise on the topic and can link to verifiable sources.
Adding entries to broad categories is also a useful way to edit. For example, the legal technology entry only lists a few legal tech corporations and is weighted towards older and bigger providers. Updating that list by adding brief new entries on legal tech companies you are familiar with and linking back to the larger legal technology entry would be very useful.
Finally, if you have an interest in some fairly obscure artist or band or historical event, have at it. One day, I will get around to updating the distressingly thin entry on the Shillelagh Sisters, a mid-1980s all-female rockabilly group. Someone has to do it.
Above all, your topic choice, legal or otherwise, should be something you enjoy researching and writing about, but not something you are so invested in you are willing to get into fights with strangers on the internet about it. That path will only lead to heartbreak.
Smokeball is practice management software built exclusively for solosmall firms, but it comes with the sort of features you expect to find in software that is custom built for much bigger firms, like document automation and extensive reports for tracking productivity.Details
Smokeball is Windows-based case management software that tightly integrates with the tools a law firm is most reliant upon: Microsoft Word and Microsoft Outlook. (It works with Windows 7, 8, and 10, and Microsoft Office 2007 and onwards.) If you find you are spending more time tracking down who was supposed to do what or where a particular document should be, Smokeball can help.
Smokeball offers the things you have come to expect from practice management software, such as contact management and streamlining the opening of matters. It also offers complete document automation, so you can create templates for each commonly used document or court form. Smokeball automates tasks that are both tedious and error-prone, like re-entering client information or calculating fees.
Smokeball creates a complete plain-text searchable database for all your tasks, documents, emails, and matters. Thanks to this, you can easily track staff productivity, see what types of client matters offer the best return on investment, and, perhaps most importantly, stop wasting time looking for things in digital and physical files.How to Get It
Smokeball costs $69 per month per person, plus a one-time onboarding fee. Onboarding includes installation and setup of Smokeball and two training sessions. Smokeball will also set up your letterhead and pre-load up to 15 forms or letters into your Smokeball library.
To keep up with new developments, visit Smokeball’s blog.
Smokeball: Organization, Collaboration, and Automation for Solosmall Lawyers was originally published on Lawyerist.com.
One of the biggest challenges for attorneys is balancing their current caseload against making sure new cases are coming through the door. Not every potential client, however, is created equal. Beware of the dreaded tire kicker—also known as a time vampire.
Here are some tips for handling a tire kicker the next time they call.Hallmarks of a Tire Kicker
Let’s be honest, spotting a tire kicker is like spotting pornography—you know it when you see it. That said, here are just a few of my personal favorite hallmarks of a tire kicker:
Another type of tire kicker is the person who wants you to backseat drive their current representation or pro se case. I debated whether this person is truly a tire kicker—they have already paid another attorney. But they are still a tire kicker because they probably bargained their way into the cheapest attorney, and now they want you (the real expert) to help them out. They don’t want to hire you, they just want you to give them the roadmap to handling the case.Go Ahead, Give One Free Test Ride
Yes, I’m suggesting you (slightly) indulge the tire kicker for two reasons:
Tell the potential client you understand their concerns and that you can help. And you can also provide information (not advice) about the general options the potential client can pursue.
At that point, close the loop. Explain to the potential client you need to review documents and meet with them further in order to evaluate their options and decide on a course of action. Take this time to explain how your fees work for that type of meeting—which will likely run the gamut of a paid consultation to formal representation.
Does that open the door for more free questions? Of course it does. But you’ve made it crystal clear you will not provide any advice without more information and a representation agreement. You have hopefully proven to the potential client you know what you are talking about, and that you can help.
Sometimes, you can convert a tire kicker into an actual client.
And if nothing else, you have informed one more person that you know what you’re doing and you can help. Maybe they won’t hire you for this issue. But they may hire you the next time. Or they might tell their friends. Both have happened to me.Free Advice is Bad, Incomplete, and Unhelpful Advice
Giving legal advice over the phone is like asking your doctor to diagnose you over the phone.
You can, and should, empathize with the potential client and explain you understand their desire for an easy answer. But you also need to explain to the potential client you cannot provide a quick answer because, at this point, you are not their attorney and you would be doing them more harm than good. In order to evaluate options and remedies, you need the whole picture from the potential client. Don’t make things worse by letting them plow ahead based on an incorrect assumption or misunderstanding.
Many tire kickers, in response, will say, “I’m not looking to hire an attorney at this point” or “I can’t afford an attorney at this point.” If they say they cannot afford an attorney, go ahead and provide them with the names and numbers of a couple legal service providers. You might be surprised how many tire kickers will say they make too much for legal aid and just need some quick answers. Take this as another opportunity to explain to your potential client why quick answers are usually not good answers.Only One Free Ride
You should have an unwavering rule for the second call or inquiry from a tire kicker: you cannot tell them anything else until you represent them.
This rule should have two effects on the tire kicker: either they will stop calling you, or they will hire you. If you crack open the door, even just a little, you will find that tire kickers will frequently request small “follow ups.”
If you aren’t paying attention, that request may seem innocuous. If you are paying attention, you should realize that between five emails and three phone calls, a tire kicker has basically cobbled together your legal opinion and advice on an issue.
This increases your exposure to a potential ethics complaint or malpractice claim. You don’t represent the tire kicker, and you are not getting paid for your time. And you probably don’t know enough about the tire kicker and their situation to offer good advice.When In Doubt, Trust Your Gut “Sometimes, you can convert a tire kicker into an actual client.”
I represent consumers because I like fighting for the little guy. That also means, despite my rather grumpy personality, I’m a softie who wants to help people. Sometimes that means my heart overrides my brain when I get a call from an obvious tire kicker.
But not every perceived tire kicker is an actual tire kicker. Maybe they just don’t know how to talk to an attorney. Maybe they have never talked to an attorney before. Or maybe they just got ripped off or had a bad experience with another attorney. In other words, you cannot and should not have hard and fast rules when it comes to dealing with perceived tire kickers.
If you think someone may have a good case or may hire you, make that additional effort to show them you are the right attorney. On the flip side, if they seem like a potential client, but they are driving you crazy, go ahead and cut them loose. Your gut is usually right.
Featured image: “Top View of Business Shoes on the floor with the text: Free Advice” from Shutterstock.
FactBox is legal case management software aimed at litigators in fact-intensive practices like personal injury and medical malpractice. It helps users easily capture facts, make new connections between facts and issues, and easily generate reports and memos.Details
FactBox is a cloud-based application that runs in your browser, so you can use it whether your practice is Windows or Mac-based. It is specifically designed to organize your thoughts and sources when you have a lot of facts to juggle.
When you open a case in FactBox, it allows you to immediately start inputting your key facts. To take notes (or add facts) in FactBox is virtually the same number of clicks as copying into a Word document or Notepad. You can start cutting and pasting new information into the case, but the software also lets you upload documents and link to information on the internet. It is a great way to quickly jumpstart your organization of your case and efficiently capture all your facts.
As you add facts, you can start adding tags and issues. Doing so helps you start seeing new patterns and relationships in your data. You can sort and filter your facts and sources any way you would like so you are able to quickly drill down and see key information.
When you start getting ready for trial, you can export your facts in a table or memo format so that you have everything at your fingertips. With one click, FactBox generates a Word document that is both polished and organized, no matter how much material you have to manage.How to Get It
FactBox costs $45 per month per user, but if you pay for a year at a time, your cost drops to $38 per month. That includes integrations with external cloud storage like Box and Dropbox, unlimited data storage, unlimited cases, and live support from FactBox.
If you refer colleagues to FactBox and they sign up, you get a month free. FactBox’s blog provides information about changes to the program, helpful tips on how to use FactBox, and interesting articles on the future of legal software.
FactBox: Fact-Intensive Litigation Case Management Software was originally published on Lawyerist.com.