Lawyers do not sit around. They always have somewhere to go, sometimes for an extended period. A lawyer with a four-day trial in another county will probably stay at a local hotel rather than drive back and forth. And due to the tough job market, attorneys are moving out of state to take temporary or indefinite positions.
With proper planning, travel expenses can be written off as a deductible business expense. Travel expenses are deductible as a business expense if they meet the following requirements:
For most lawyers, their “home” is the city or general area of their regular place of business or home office. To qualify for the travel expense deduction, they have to be away from home long enough to require overnight sleep or a similar resting period.
Generally, if you leave your home for a few days, or even a week or two for a business purpose, then the travel expenses are deductible. But this can be a problem if you leave your home for several months doing contract work. The rule is that you can deduct travel expenses connected with a temporary work assignment away from home. However, you cannot deduct travel expenses paid in connection with an indefinite work assignment.
What’s the difference between a temporary and an indefinite assignment? A work assignment that lasts more than one year is considered indefinite. If you expect a job will last less than one year, it is temporary unless the facts and circumstances suggest otherwise.The Expenses Must Be Ordinary, Necessary, and Reasonable
My previous piece outlined the conceptual rules on whether an expense is ordinary, necessary and reasonable.
Ordinary and necessary travel expenses include but are not limited to:
Whether an expense is reasonable depends on the facts and circumstances but it shouldn’t be overly lavish. You will have to show a very compelling business reason for purchasing one of these plane tickets to attend the next state bar meeting.The Expenses Must be Connected to a Business Purpose
For a travel expense to be deductible, it must be directly connected to the taxpayer’s trade or business, as well as necessary and appropriate to the development and pursuit of the trade or business.
For lawyers, the rule is usually straightforward. Travel costs to investigate cases, attend a deposition, trial, a court hearing, mediation, and even to attend your own disbarment proceedings are deductible because they are directly connected to the practice of law.
But there are times where the lawyer and the IRS will disagree whether travel expenses are connected to his or her line of work. In the matter of J.R. Dyer, the taxpayer was a lawyer in St. Louis who traveled to Washington D.C. to testify before the Joint Congressional Committee on Atomic Energy. The U.S. Tax Court found that his appearance and testimony had no direct connection with his business of being an attorney.
A lot of practicing attorneys ask me if travel expenses are deductible where they are meeting with a client, a potential client, another attorney, or a referral source. I tell them that when the IRS audits travel expenses, they look at the primary purpose of the trip, the amount of time spent on business related activities, and any time spent doing personal activities.
Travel expenses connected to developing business are deductible. But the IRS will scrutinize them carefully to ensure that the trip was not primarily a personal vacation. The revenue agent will ask detailed questions about what you and your clients discussed, where you went, and why it was necessary to incur travel expenses. The revenue agent may also interrogate your client. From my experience, third parties are understandably reluctant to get involved in an IRS audit especially if they are self-employed.Special Rules on Conferences and Conventions
The same three rules above apply when deducting travel expenses in connection with attending a conference or convention (C&C). But In determining whether the costs were connected with a business purpose, the IRS also looks at the following additional factors to determine whether there was a business purpose:
I will use my attendance at the ABA TECHSHOW in Chicago to show how these factors are applied.Primary Purposes of Traveling
I went to the ABA TECHSHOW for three reasons, all connected to my business as a tax attorney. First, to attend the seminars, with a particular interest in those discussing the functionality of computer software and mobile apps. Second, to check out the latest practice management software and other helpful tools. Finally, it was an opportunity to meet some members of the Lawyerist team who were coming from various parts of the country.1Location
The IRS is wary of C&Cs held in luxury hotels, country clubs, and resorts. The ABA TECHSHOW, held at the Hilton Chicago, is one of the nicer and more spacious hotels in town. But with hundreds of attorneys, support staff, exhibitors and guests attending, a large space was necessary.Convention Agenda
Travel expenses attributable to attending a C&C are deductible if the agenda or program schedule is connected to a lawyer’s business. If the convention is for investment, political, social, or other purposes unrelated to your trade or business, you cannot deduct the expenses. Since the ABA TECHSHOW featured seminars and software specifically for lawyers, there is a sufficient connection to establish a business purpose for attending.
While this rule seems straightforward, the IRS has denied a lawyer’s travel expenses to a C&C where there was little or no connection to a lawyer’s business. In Reed v. Commissioner, a lawyer practicing locally in Pittsburgh attended a meeting of the International Law Association in Dubrovnik, Yugoslavia as an appointed delegate of its American branch. The taxpayer did not practice international law nor did he solicit business at the conference. The tax court disallowed the travel expenses because it found that attending the conference did not have a reasonable connection to his law practice. For similar reasons, a Chicago lawyer’s travel expenses to Israel to attend a an Israeli lawyers’ convention were held nondeductible.
Following these rules will ensure that your future business-related travel expenses will be deductible and hold up to IRS scrutiny.
Featured image: “Deck chair with dollars on the sandy beach.” from Shutterstock.
Originally published May 13, 2015. Republished July 1, 2016.
An astute (and grumpy) IRS revenue agent may argue that I was attending the conference as a writer for Lawyerist and not as a self-employed attorney trying to improve or expand business. If that is the case, then my expenses can only be deductible to the extent of my Lawyerist income. Any excess expense is considered a non-deductible hobby loss unless I can prove that I am a paid, professional writer. ↩
Will robots replace lawyers? Who can say? Sometimes it looks like lawyers will stay safe from the coming robot uprising, but other times it looks like attorneys will get eaten by Skynet like everyone else.
If robots do start taking our jobs, it would be easiest for them to scoop up those tasks which are repetitive and easily automated, like fighting traffic tickets. Joshua Browder, a 19-year-old British wunderkind in his second year at Stanford (you read that right – he is not a lawyer) invented a chatbot that fights parking tickets.
It wasn’t obvious at the outset that the chatbot would work or, worst still if it might be edging into the unauthorized practice of law. While the latter question remains open, at least in some states, the former question has been answered with a resounding “yes!” The chatbot parking ticket lawyer works, and it works very well. From The Guardian:
In the 21 months since the free service was launched in London and now New York, Browder says DoNotPay has taken on 250,000 cases and won 160,000, giving it a success rate of 64% appealing over $4m of parking tickets.
Now, to be fair, most people don’t hire a lawyer to fight a parking ticket. It’s likely that most people don’t fight a parking ticket, period. However, that doesn’t mean that people don’t want to fight parking tickets. People pay because it is not cost-efficient to fight about it. People pay because they don’t have the vaguest idea how to begin to fight it. A bot that automates looking up what laws apply, what address to send your letter to, what documentation to include, and other necessary pieces of data can be as successful, if not more so, than a living breathing person. And this chatbot is incredibly simple, interface-wise. When you are chatting, it works like any other messaging app.
Sometimes it cuts over to a drop-down menu, which is equally simple.
With this sort of choose-your-own-adventure format, a bot can easily guide you to some potential next steps and solutions.
Browder is planning on expanding DoNotPay both geographically and topically. The app was originally only available to fight tickets in London but became available in New York this past March. He hopes to extend services to Seattle soon as well. He’s also planning on expanding his menu of services: soon you might be able to use a chatbot robot lawyer to demand compensation for delayed flights.
Does this technology have the ability to replace any attorneys? Not as it stands, no. One of Browder’s next goals, however, is to build a bot that helps refugees apply for asylum. Now that sounds a little bit more lawyer-job-threatening, doesn’t it?
The Robot Lawyer That Fights Parking Tickets Is Quite Good at It was originally published on Lawyerist.com.
OneDrive is cloud file storage similar to Dropbox, Box, and Google Drive. While Dropbox and Box better known, OneDrive is starting to gain traction, mostly due to its tight integration with Microsoft Office.
Here is what you need to know about OneDrive.Index
OneDrive is the personal online storage of your files in the cloud. One of the main advantages of using cloud file storage is making file retrieval more simple and convenient.
There is a good chance OneDrive is already on your computer. Windows 8 and 10 come with the OneDrive app already installed and activated if you sign in with your Microsoft account. If you have a Microsoft email address with Outlook or Hotmail, you already have a Microsoft account to access OneDrive.
To save a document on OneDrive, simply select a OneDrive folder from the list of save locations. To move files to OneDrive, just open File Explorer (or Finder in Mac) and drag them into a OneDrive folder. Files you store in OneDrive will automatically sync to the cloud. Microsoft has useful training videos on pretty much everything you ever wanted to know.Features
Besides its main job of storing files, OneDrive has a number of additional features.Office Online
You can use, share, and collaborate on Word documents stored in OneDrive through the desktop app or through Office Online. With the online interface, Office Online, people who don’t have a copy of Microsoft Office can use a link you send them to edit the document in Word online so long as you give them the appropriate permissions.OneNote Sync
In addition to standard Office programs, OneDrive is also the only way to sync and access the wonders of OneNote from multiple Windows, Mac, and mobile devices. A version of OneNote is provided as part of OneDrive or Office Online and enables users to edit notes right on your web browser.Fetching Files
Even if you have not yet saved a file on your hard drive into OneDrive, you may be able to access it remotely from any computer with Fetch. As long as the OneDrive desktop app for Windows is installed on a PC, Fetch enables users to access files that have not been saved to OneDrive so long as the PC you want to access is on and running OneDrive with Fetch enabled. One caveat: you can only fetch files from a computer running Windows. It doesn’t work on a Mac.Pricing, Extra Storage, and Business Plans
Currently, OneDrive gives users 5 GB for free. If you need more space, you can get 50 GB for $1.99 per month. For plans with 1 TB or more, Microsoft bundles OneDrive into packages with Office 365. These plans start with 1 TB of OneDrive Storage with an Office 365 subscription for $6.99 per month for one user or $9.99 per month for up to five users, five tablets, five phones, and five PCs or Macs for personal use.
Microsoft also bundles OneDrive for Business into packages with Office 365. OneDrive for Business offers more security options than the consumer-grade OneDrive service plus each user gets 1 TB of storage space. If you intend to use OneDrive for business purposes, you are required to use the Business version. In addition to basic OneDrive features, you also get auditing and reporting, advanced sync settings, and access to other add-ons.
At $5.00 per user per month, the most affordable OneDrive for Business plan is Office 365 Business Essentials. Business Essentials includes 1 TB of OneDrive storage along with access to Office Online with email and video conferencing, which would be well-suited for users who have already purchased Microsoft Office or who plan to use the web interface rather than a desktop version of Office. This does, however, limit your ability to work offline. OneDrive storage along with full Office on PC or Mac and mobile apps starts at $8.25 per month for each user with Office 365 Business. Other mix-and-match varieties of features can be found through Microsoft’s Enterprise plans.Sharing and Collaboration
You can generate a link with permissions so anyone with the URL can access the file anonymously if you grant them access or share the documents with an email address. With OneDrive, you can share a particular file or an entire folder. A collaborator will need to have either a Microsoft account or Microsoft Office to collaborate.
While regular OneDrive is a place for you to store your files in the cloud, OneDrive for Business users can choose to use SharePoint, which has a whole raft of additional features, including custom permissions.Add-Ons
A number of add-ons and third-party apps use OneDrive for sync. If you spend much of your time in Outlook, Microsoft’s newly updated Outlook for iOS app now has support for Skype and OneDrive for Business. Microsoft also released a new update for the OneDrive mobile app with the ability to scan documents and annotate PDFs. Adobe’s new Document Cloud storage integration with OneDrive makes it easier for users to open PDF documents stored in OneDrive from within any of the iOS or Android apps for Acrobat Document Cloud or Acrobat Reader.
Clio‘s new integration with OneDrive for Business also enables you to upload, access and edit documents and files through Clio.
Microsoft recently released updates to simplify e-discovery. Machine learning, text analytics, and predictive coding enables users to train the system to distinguish automatically between relevant and non-relevant files in large, unstructured datasets.
The updated Office 365 Security & Compliance Center now features a case management option in the eDiscovery page which enables users to work on cases without exiting the software. The Security & Compliance Center includes a hold feature for preserving data or applying a retention policy to content in mailboxes, public folders, and SharePoint and OneDrive for Business sites. Users can apply a hold to themes, folders, conversations, or individual messages—making it easy for lawyers to comply with a variety of record-keeping requirements or a litigation hold.Security
All OneDrive accounts come with the option of two-factor authentication. Microsoft also asks for additional information if you log in from a device it does not recognize. The ABA recommends use of multi-factor authentication when it is available.
Office 365 Advanced Security Management provides enhanced control for implementing more detailed security policies and threat detection for identifying abnormal usage. It also shows authorized users what third-party apps are connected, who is using them, what permissions they have, and which Office 365 data their third-party applications may access. It is also able to flag risky behavior and automatically suspend accounts.
Advanced Security Management is included as part of the top-tier Office 365 package and also available as an add-on to all other Office 365 plans for $3 per user per month. The threat detection and activity policy creation features are available now, while the remainder is anticipated to ship later in 2016.Terms of Service
Microsoft uses automatic technology called PhotoDNA to scan OneDrive accounts and detect “abusive behavior” such as nude photos. When investigating these matters, Microsoft or its agents may review content to resolve the issue.
Since most operations are automated, it is for humans to access your content. However, Microsoft spells out that ability in addition to other uses described in the Microsoft Services Agreement and Privacy Statement.
One way around giving unfettered access to Microsoft engineers is Customer Lockbox, which gives customers ultimate approval rights in the instances when a Microsoft engineer requests access to the service.
Although these types of scans have proven useful for catching child pornographers, it becomes a stickier situation when those same photos are exhibit B in a lawyer’s file. Microsoft’s Code of Conduct no longer explicitly extends the ban to “nudity in non-human forms such as cartoons, fantasy art or manga” and expressions of “obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous violence.” However, the vagueness of the Code of Conduct leaves it unclear what is permissible. In light of documented cases of users being locked out of their accounts—even in cases of professional photographers whose work involves partial nudity—it may be a smarter choice to use an alternate cloud storage provider if any of your stored images could run afoul of the policy.Who Should Use OneDrive
If you are already a Windows user, OneDrive is typically pre-installed and is a convenient way to access, create, share, and collaborate on Office documents. As new features are added, OneDrive is becoming increasingly attractive for users on other devices as well.
Adobe and the Cloud Signature Consortium hope to make e-signatures as common as PDFs.
Not so long ago, there was an open question as to the best file format for digital documents. Many people used PDF, but others used TIFF or Microsoft’s XPS format. In 2008, Adobe released the PDF format as an open specification. That was they key to PDF’s success. Now it is unquestionably the standard format for digital documents. (Although that isn’t always a good thing.)
Now, Adobe hopes to do the same thing for digital signatures. Right now, there are dozens (at least) of different approaches to e-signatures. Some accept a signature drawn onto a PDF with a pen tool. Others use a service like HelloSign. FileVine’s clever VineSign uses selfies for verification. Plus, there is Adobe’s own Sign (f/k/a EchoSign).
But there is no agreed standard for what constitutes a valid electronic signature. Now, several things are in motion to change that.
The Cloud Signature Consortium was founded by Adobe and others with the goal of creating standards around e-signature regulations like the European Union’s eIDAS. Under eIDAS and similar regulations, a valid e-signature must be verified by a trusted certificate authority, and this generally requires a proprietary system of cards and readers.
The CSC hopes to make digital signatures common by creating an open, cloud-friendly standard that works on the mobile and web apps everyone already has and uses, and doesn’t depend on proprietary software and hardware.
If all goes according to plan, the digital signature specification will be finished in 2016, after which anyone can start developing software and systems to take advantage of it.
In short, signing documents on a smartphone or tablet may soon be as common as smartphones and tablets.
Adobe & the Cloud Signature Consortium Could Make E-Signatures as Common as PDFs was originally published on Lawyerist.com.
Hyperbole and overstatement do more harm than good. Hyperbole is exaggeration. Overstatement is an attempt to convince your audience by bludgeoning them with facts, arguments, and pleas to get them to accept your assertion.
If you tell your audience what they should think, don’t be surprised if they think the opposite just to spite you. Lawyers do much better when we calmly and methodically lead our audience to the conclusion we want them to reach, but allow them to reach it themselves. It’s called understatement.Methinks They Doth Protest Too Much
As Justice Scalia advised, “Your objective in every argument … is to show yourself as worthy of trust and affection.”1 A good way to lose your case is to lose the trust of the judge and jury. This is easily done. Just add some sarcasm and snark:
This is the straw man fallacy in reverse. Above, the association gives itself a burden that civil litigants never have: proving that their opponent’s arguments are frivolous. Now all the plaintiff needs to do is provide a non-frivolous theory of why the association could be responsible for the brakes, clutches, and gaskets. In this way, the association’s overstatement tends to reduce the plaintiff’s burden of proving their case.
Consider the FBI’s response to Defendant Jay Michaud’s argument that the FBI concealed information from courts and prosecutors about how the malware it installed through a child pornography site operated:
In short, Michaud’s argument is outrageous, untrue, and not even supported by the flimsy “evidence” he offers.2
If Mr. Michaud can provide some facts and reasoning in support of his argument, he wins a battle he is ideally suited to win. The FBI’s overstatement presents Mr. Michaud with a challenge that a competent lawyer can likely meet: show that Mr. Michaud’s argument is not outrageous, not obviously untrue, and supported by some evidence. And the FBI needlessly risks losing a battle it never needed to fight by making an argument it probably can’t win.You Shall Know These Lawyers by Their Insincerity
If the judge or the jury suspects that you don’t buy your own argument, they probably won’t bother listening to it. Consider this fact pattern:
The court’s reaction shouldn’t surprise anyone:
We also note that the Wangs stated they did not care what the excursions cost. It is therefore less than convincing that they are now outraged by the allegedly “huge” (fn. 6, ante) surcharge.3
Playing loose with the facts invites your audience to question your sincerity and suspect that you are trying to manipulate them. They may retaliate by rejecting your client. In short: avoid even the appearance of insincerity.The Unexamined Case Is Not Worth Trying
According to Aristotle, “Knowing yourself is the beginning of all wisdom.” Here’s why we should apply this adage to our cases:
That is, we are used to thinking that our own case is better, and it often is. But that perceived advantage shouldn’t blind us to the merits of the other side. Another recent study (Lammers, 2010), found that when you perceive yourself to be at an advantage in a negotiation setting, that causes you to think of an opponent in less personalized, and less human, terms. When we advocate, we exaggerate our strengths and we minimize our opponents—to our detriment.4
If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge and the jury are learning about, they will soon start doubting your honesty, sincerity, and competence.
And if the way lawyers behave at depositions accurately reflects their mental state, most of us have a lot of room for improvement. In this excerpt, it’s hard to see how the objecting attorney’s strategy here helps his client:
Compare that performance with the deposing attorney’s questioning (ending at 18:27) of a slippery witness in a defamation case:The First Rule of Narrator Club: Don’t Be Unreliable
An unreliable narrator is a narrator whose credibility has been seriously compromised. Think of Verbal in The Usual Suspects, Leonard in Memento, and the narrator in Fight Club. For different reasons, all three are unreliable. Lawyers who are unreliable narrators typically fall into three categories: the Picaro, the Naif, and the Liar.
The Picaro is an exaggerator and braggart, the Naif’s unobjective viewpoint limits his perception, and the Liar deliberately misrepresents herself to obscure the weakness in her own case. Lawyers who fit these descriptions lose the trust of judges and jurors:
If you distort or even fudge, you’ll be found out. And if you’re found out, you’ve lost everything there is to lose. You’ve lost credibility.5
Whether the lawyer is morally culpable for losing the trust of the judge or the jury, the result is the same: no one will listen.
Now for the fun part. Let’s look at how we can respond when lawyers throw overstatement in our direction.Appetite for (Self) Destruction
The key to defeating overstatement is realizing that it contains the seeds of its own destruction. In a type of verbal judo, your opponent’s overstatement exposes them to a counterattack. The power of your counterattack depends on how well you take the force of their overstatement and hurl it back at them.
In other words, the best way to deal with an overstater is to present the court or the jury with the most extreme statements from your opponent and then move on. Bryan Garner provides a great example from a reply brief:
In what must be some kind of record, the 31 pages of Plagiar’s brief contain more than 200 expressions bordering on the hysterical: the leader by all counts is abusive and its variations (17 appearances), next followed by permutations of the root word fraud (fraudulent, defrauded) (14), then extort (extortion, extorted) (13), and close behind it phony (12).6
Now it’s time to find out how we can avoid ending up like Plagiar’s lawyer.Lend Me Your Ears
In The Elements of Style, Strunk and White note that it is “seldom advisable to tell all.” This is particularly true in fiction:
One of the most useful and powerful devices for the fiction writer is understatement. You tell the reader less so that the reader knows more. Instead of having everything spelt (sic) out, the reader is given, in a very careful way, just enough information for the imagination to go to work.7
When you use understatement, your audience fills in the blanks you have left with facts in your favor and comes to their own conclusion—the conclusion to which you led them. In this way, minimizing the significance of something maximizes its effect. Let’s look at the three main flavors of understatement: litotes, euphemism, and meiosis.
Litotes is deliberate understatement that works by making your point by stating the opposite of what you mean. In this example, the court highlighted the plaintiff’s questionable mental health by praising his creativity:
Euphemism is a polite way of saying something unpleasant. In law, this means going to great lengths to avoid calling someone a liar, as the Idaho Industrial Commission takes pains to do in this order:
As noted at the outset, although the Commission has no reason to believe the Claimant intentionally dissembled the truth, he is a poor historian, with a somewhat fallible memory, both problem which are compounded by his limited education and language difficulties.
Meiosis (“lessening”) combines understatement and euphemism to enhance the impression in the reader or the hearer, as Bryan Garner’s example illustrates:
Dagwood wakes up late, trips over the children’s toys, misses the bus, rushes up the stairs instead of waiting for the elevator, only to discover that it’s Saturday and he’s not supposed to be at work. Dagwood grumbles, “Today is not my lucky day.”8
After reading this, the reader ratchets up Dagwood’s description of his difficulties to the level that the reader thinks is appropriate. With each understatement, Dagwood’s credibility increases.Wisdom of the Crowd
Mercutio wins the prize for greatest understatement:
And now for a Friday #PersuasionPoll:
Best understatement of all time?
— Brendan M. Kenny (@KennyBrendan) May 6, 2016
Mercutio downplayed his own fatal wound. This makes his death all the more tragic. And he dies the way he lived, defiantly rejecting haughtiness, melancholy, and sentimentality.
Lawyers can learn much from Mercutio. Lawyers often mistakenly appeal heavily to the jury’s sympathy when trying a case, especially when they are representing the plaintiff. But sympathy is a low-power strategy. Much better to offer facts that encourage your audience to view your client as the tragic hero who suffers adversity, challenges it, and never gives up. The lawsuit then becomes part of the hero’s journey. Ultimately, the judge and jury must intervene only because the hero cannot overcome the injury on their own.
This is a much stronger call to action than sympathy.One Little Barbed Arrow Is Enough
If for no other reason, lawyers should use understatement because it makes our opponents scared. Here’s how Anglican clergyman Charles Kingsley addressed Catholic convert John Henry Newman’s effective use of understatement:
I know that men used to suspect Dr. Newman—I have been inclined to do so myself—of writing a whole sermon, not for the sake of the text or of the matter, but for the sake of one single passing hint—one phrase, one epithet, one little barbed arrow which, as he swept magnificently past on the stream of his calm eloquence, seemingly unconscious of all presences, save those unseen, he delivered unheeded, as with his finger-tip, to the very heart of an initiated hearer, never to be withdrawn again. I do not blame him for that. It is one of the highest triumphs of oratoric power, and may be employed honestly and fairly, by any person who has the skill to do it honestly and fairly. But then—Why did he entitle his sermon “Wisdom and Innocence”?9
Because Newman never wrote anything to justify Kingsley’s allegations, Kingsley was reduced to warning his readers not to trust Newman, no matter what Newman wrote.
The result? Newman skewered Kingsley for deeply wronging him in Apologia Pro Vita Sua, the book became a bestseller, and Newman later became Cardinal Newman. Not much more was heard from Kingsley.Be Direct
Understatement is a powerful weapon. But don’t use jargon-laden legalese and call that understatement. Legalese is the enemy of effective understatement, persuasion, and all things bright and beautiful. It invites this response:
— Zoe Tillman (@ZoeTillman) May 18, 2016Comas Are Serious
One other thing understatement is not: a less-than-human reaction to your client’s—or the opposing party’s—difficulties. As we learn from The Smiths’ Girlfriend In A Coma, being too casual about tragedy can be a bit creepy:
Girlfriend in a coma, I know
I know, it’s serious
Girlfriend in a coma, I know
I know, it’s really serious
There were times when I could
Have murdered her
But you know, I would hate
Anything to happen to her
This type of humorous creepiness makes for good music, but poor persuasion.The Blindside
Judges and juries probably expect you to exaggerate. So, defy expectations and strengthen your position by understating it. If nothing else, at least you’ll scare your opponent.
Featured image: “Illustrations from “Le avventure di Pinocchio, storia di un burattino”, Carlo Collodi, Bemporad & figlio, Firenze 1902″>Wikimedia Commons.” The image has been cropped at the edges.
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxxiii (ThomsonWest) (1st ed. 2008). ↩
Gov’t’s Consolidated Response Defs.’ Mot. Dismiss & Reply Re Mot. Reconsid., U.S. v. Michaud, No. CR 15-5351 RJB, at *8 (W.D. Wash. May 6, 2016). ↩
Bryan A. Garner, The Winning Brief 338 (Oxford University Press) (2d ed. 2003). ↩
Bryan A. Garner, The Winning Brief 42 (Oxford University Press) (2d ed. 2003). ↩
Bryan A. Garner, The Elements of Legal Style 154 (Oxford Univeristy Press) (2d ed. 2002). ↩
Venerable John Henry Newman, Apologia Pro Vita Sua 33 (Oxford University Press) (1913). ↩
Why Hyperbole Will Destroy Your Case and Understatement Will Save It was originally published on Lawyerist.com.
The QWERTY keyboard can hold only so many characters, so if you frequently use symbols like § or ¶ or even °, you may think you’re out of luck. Here’s an illustrated tutorial on adding symbols and other special characters to your documents, including how to designate a shortcut key or AutoCorrect entry to insert symbols without ever clicking on the Ribbon.1
First, go to the Insert tab and click on Symbol:
You may get lucky here and see yours in the short list above (particularly if it’s something you’ve used recently). If not, click More Symbols.
The Symbol dialog box has a much more extensive list of symbols. You can drop down the Subset list to limit your search, or simply scroll down until you find your symbol. (You’ll notice that the ¶, § and ° symbols are all under Latin-1 Supplement.)
You can find some commonly-used symbols faster on the Special Characters tab of this dialog box:
Going back to the Symbols tab, you’ll notice that the paragraph already has a shortcut key assigned (boxed in red above). If that one works for you, just make a note of it. If you want to designate something easier to remember, click the Shortcut Key button.
“If the whole shortcut key thing is a bit physically awkward for you, there’s an alternative. AutoCorrect will enable you to assign a series of characters you can type that Word will automatically replace with other text.” If you’ve ever worked with text expanders, you know the drill.
Select the symbol you want in the Symbol dialog box, but instead of clicking Shortcut Key, click AutoCorrect.
Because I had the paragraph symbol selected, Word automatically populated the With field with it. I typed “((p))” into Replace (using “(p)” could yield some undesirable results in a numbered list). To save it, press Add, then OK.
From now on, I can type “((p))”, and Word will insert a paragraph symbol automatically:
Unless otherwise noted below, all instructions and screenshots are for Microsoft Office 2016 for Windows. ↩
In this podcast, Sam chats with Eric Cooperstein, an ethics attorney. They talk about how to approach law practice in a way that avoids ethics trouble.Mugshots and SEO Art
Sam ran across an article about an artist named Paulo Cirio, who is engaged in guerilla SEO warfare against those awful mugshot websites that post mugshots and then often demand money to have a mugshot taken down.
Cirio has cloned some of the mugshot websites and has scrambled names and blurred the images. The idea is that when you Google someone, you would arrive at Cirio’s fake mugshot websites instead. Essentially, he’s trying to beat those websites with SEO art.
Aaron pointed out that it is unlikely that a single SEO artist will rise to the top of search results and, even if the experiment works, all someone has to do is look at the second or third link for the actual mugshot site. Sam agreed but pointed out that this is still a creative way of thinking about how to defeat sites like this.Staying out of Hot Water with the Ethics Board, with Eric Cooperstein
Eric Cooperstein is a Minneapolis-based attorney who advises attorneys on ethical issues and defends attorneys who are subject to ethics complaints. He is the former Senior Assistant Director of Minnesota’s Office of Lawyer’s Professional Responsibility and a past president of the Hennepin County Bar Association. He also previously chaired the Minnesota State Bar Association’s Rules of Professional Conduct Committee. Currently, he serves on the boards of Minnesota Lawyers Mutual Insurance and Minnesota Continuing Legal Education.
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Podcast #74: Staying out of Hot Water with the Ethics Board, with Eric Cooperstein was originally published on Lawyerist.com.
It was only a few months ago that everyone was privy to the ugly attempts of the FBI to force Apple to unlock an iPhone used by one of the San Bernadino terrorists. Those attempts were roundly—and deservedly—condemned by legal scholars as a tremendous and terrifying overreach. Here’s hoping that the legal community gets behind condemning this latest bit of awful technology-related legal news, in which a federal district court in Virginia ruled that it is fine if the government hacks your computer because someone else could hack it anyway (pdf).
Back in 2015, the FBI managed to seize a Tor server whose primary purpose was to allow users to disseminate child pornography anonymously.1 Rather than shutting the server down, the FBI kept it running and used it as a virtual honeypot. Eventually, the FBI hacked over 1000 computers that accessed the server. The hack scooped up IP addresses, which are of course public, but the FBI’s hacking tool also grabbed MAC addresses, the operating system the computer was using, and the computer’s host name.
These things may seem relatively benign at first glance, but there is a fundamental difference between those and an IP address: they all live inside a computer. By definition, the FBI is breaking into computers to get that information. Even in pursuit of a noble goal—catching individuals creating and trading child pornography—this is still troubling because it is a warrantless intrusion into someone’s computer. According to the federal district court for the Eastern District of Virginia, that’s really no problem at all because computers are hacked all the time. From Motherboard’s summary of the decision:
[The judge, Henry Coke Morgan, Jr. wrote] that the defendant “has no reasonable expectation of privacy in his computer,” in part because the malware collected a relatively limited amount of details.
“The NIT [which is what the FBI calls its hacking tools] only obtained identifying information; it did not cross the line between collecting addressing information and gathering the contents of any suspect’s computer,” he writes.
“It seems unreasonable to think that a computer connected to the Web is immune from invasion,” Morgan, Jr. adds. “Indeed, the opposite holds true: in today’s digital world, it appears to be a virtual certainty that computers accessing the Internet can—and eventually will—be hacked,” he writes, and then points to a series of media reports on high profile hacks. He posits that users of Tor cannot expect to be safe from hackers.
All of that is highly disturbing. It’s as if the judge had said: “well, your car could be broken into by literally anyone on the street, so if the government breaks in, it’s just no big deal.” The last part of the judge’s analysis is also notable from both a technical and legal standpoint: using a Tor server is not a bulletproof guarantee of security. From Morgan Jr.’s opinion:
In United States v. Farrell, researchers operating the Tor nodes observed the IP address of the alleged operator of Silk Road 2.0, a Tor hidden service. Pursuant to a subpoena, the researchers turned over the information to law enforcement. In finding no Fourth Amendment violation, the Western District of Washington noted that “in order for  prospective user[s] to use the Tor network they must disclose information, including their IP addresses, to unknown individuals running Tor nodes, so that their communications can be directed toward their destinations.” The Western District of Washington noted that under “such a system, an individual would necessarily be disclosing his identifying information to complete strangers.” Indeed, the Tor Project itself even warns visitors “that the Tor network has vulnerabilities and that users might not remain anonymous.”
Tor is often recommended (including by us) as a way to hide your identifying information when surfing the internet, but it has been accessed—and compromised—by the government on more than one occasion. Attorneys should remain mindful of this, both in their own usage and in advising clients of how to stay hidden on the internet.
At root, all of this arises because the digital sphere is still somewhat perplexing as courts try to cram searching computers into a Fourth Amendment framework built entirely around searching physical locations. While some confusion is understandable, the end result of that confusion can’t simply be that the government gets more access to private spaces simply because those spaces are virtual.
Court: The FBI Can Hack Your Computer Because Someone Else Might Anyway was originally published on Lawyerist.com.
Regardless what you are being asked to do, it’s not easy to say no. Even the strongest resolve to decline can be broken down. You may find it easier to turn things down if you remember that saying no isn’t just about not wanting to do something. It is also about giving yourself the gift of devoting your time to more productive or rewarding pursuits. Use the four practical strategies below to learn to say no.Why You Should Say No
Say no to honor your time. Saying no isn’t necessarily about just making a decision to refrain from being involved in something. On the contrary, saying no is about valuing your own time. In law, it’s also about valuing what your professional time is worth. That certainly isn’t to say that you shouldn’t ever quickly answer a question for a prospective client, a family member, or a friend. But some people will expect you to answer every question they have and expect you to take the time to answer frequent follow-up questions. Saying no is about protecting what your time and skills are worth.
The word “no” creates boundaries. Saying no creates and enforces limits in each of your relationships. It is up to you to create those boundaries. Work on remembering that it does not matter what people think or how they react when you say no. You cannot control how others feel. You can only control what you say (no) and do (stick to the no). Every time you say no, it becomes easier to say no in the future.
Learning to say no can make you more successful. No, really. It can. Turning down unnecessary tasks can make you more productive and focus on important projects. The problem with multitasking is that although we tend to feel like we’re accomplishing more, we’re not focusing enough on each task. Multitasking results in failed projects, errors, and can actually cost us more time in the long run. Saying no can cut down on the tasks that vie for your attention. You don’t feel rushed to finish. You do a better job. You can spend any additional time that you have on projects that will increase your bottom line.
Saying no is good for your health. What happens when we say yes more than we say no? We end up with more on our plates than we can feasibly handle. While a little bit of pressure is good for us, too much stress can cause big problems. Depression, sleeping problems, weight gain, ulcers, and heart disease are just some of the potential physical problems that you’ll face because of too much stress. So, to protect your health (and your sanity), you should say no more often.
When we say yes, we unknowingly encourage people to continue to ask us for favors. Sometimes we say yes to people because we just want to make the requests stop. However, our logic is a bit flawed. When we say yes, it encourages people to continue to ask for favors, and it gets even harder to say no.4 Practical Strategies to Help You Say No
It is easy to resolve to say no, but much harder to put into practice in our daily lives. So, to make it easier, we’ve compiled a list of ways to make it easier for you to say no.Use Your Calendar
At the beginning of each week, take some time to set up your personal calendar. Make appointments with yourself to make sure that you have dedicated time to your needs and desires. This can mean many things for many people. Maybe you schedule time for exercise. Maybe you schedule time every day to take your dog on a walk in the evenings.
It sounds simplistic, but it works. The next time you’re asked to do something and you want to say no, you can check your calendar and say no. You can just say, “Unfortunately, I can’t. I have a conflicting appointment.” If they press for information, just shrug and play the lawyer card and say it’s confidential.Reassess the Harshness Bias
The harshness bias is a term used in psychology. It occurs when we say yes because we’re afraid that saying no will make us seem to be mean. We don’t want people to see us for something that we’re not. This causes us to take on more work than we should in many circumstances.
If you really can’t take on the extra work for any reason, you’re not being harsh. You’re being honest. To be at your best, your attention cannot be spread too thin.Think About the Future
Sometimes we say yes when we should say no, and we don’t think about how that yes will affect the immediate future. Take a moment to think about whether you really should say yes.
Don’t get buyer’s remorse. Take a cooling off period and think before you answer. Saying “Let me look at my schedule and get back to you on that,” is much better for you and the person asking for something. If you say yes and don’t have the time and resources to dedicate to the project, you’re not benefiting the person who asked for your help. That could affect them and affect your reputation.Learn to Say No to Unethical Requests
Although it should be easy to say no to unethical requests, it can actually feel much harder. People who you love and respect may make requests of you that are less than ethical. There are also people who cave to requests of wrongdoing even by people they hardly know, simply because they feel bad if they say no.
Saying no in this situation requires two things. It requires that you provide empathy for the person that’s requested you to participate in an unethical situation (particularly if it is someone you admire or love). Second, it requires that you follow through and say no even if it is hard or brings about an unwanted reaction from the other person.
You can say something similar to, “I’m sorry you’re dealing with this. I can’t do that. It’s not right.”
There will likely be pleading and cajoling. They may get angry. It’s not going to be easy. Just keep in mind that if they truly value your relationship that they will not continue to push the issue.
It’s not easy to say, and it’s not easy for others to hear, but saying no is a necessity for everyone. Say no. It’s good for your health.
There is no question that the legal profession is really really bad at diversity. Women are criminally underrepresented in BigLaw. We are one of the least racially diverse professions in the country. We just aren’t doing a good job at ensuring that the profession reflects the population as a whole. That’s why it is entirely unsurprising to find out that state court judges are woefully non-diverse as well.
A new study from the American Constitution Society shows exactly how stark this is at a nationwide level.
Now, this does vary widely state to state. Utah, which ranks dead last for its diversity relative to its population, is abysmal.
Hawaii, on the other hand, does quite a decent job at ensuring diversity of the bench reflective of its population.
Between Hawaii and Utah, it’s a pretty dismal pack, with a large number of states coming in with an “F” grade, even when they are slightly less awful than their peers with even lower “F” scores.
If you look at these numbers in terms of who goes into the profession in the first place, you’ll see we have two different problems. For women, the issue isn’t whether they enter the profession or not. In other words, it’s not a pipeline problem. Indeed, they’ve been entering the profession in rough parity for quite a while, but far more women than men leave the profession or fail to thrive in the profession in a way that leads to judgeships.
According to the American Bar Association, 36% of licensed lawyers in 2016 were female, an increase of 6% since 2000. Law school students are at a near parity in terms of sex (52% male, 47% female in 2013-2014) and have been for some time, but more women leave the profession.
Some mothers who are practicing attorneys say they face an unforgiving environment in top law firms — the very places where judges-in-waiting are groomed — requiring them to prioritize work over family in order to advance. Research also shows that women in corporate America leave in high numbers because they are placed in unfulfilling roles and believe their prospects for promotion are dim.
For people of color, it is a different story, and it is a pipeline problem. People of color are still underrepresented in law school enrollment and their numbers are increasing incredibly slowly.
[From 2000 to 2010] minority enrollment in the J.D. programs of ABA-approved law schools increased by 6,752 students, or 1.8 percent (from 20.6 percent in 2000-2001 to 22.4 percent in 2009-2010).
When you don’t have enough people of color entering the profession, you don’t have enough people of color making it into the kind of high-profile jobs where it becomes likely that they would be tapped for judgeships.
The “Gavel Gap,” as ACS calls it, is real, pervasive and problematic. With 90% of all cases being tried in state courts, a judiciary that in no way represents the people that come before it is unfair and untenable.
Law’s Raging Diversity Problem Extends to the State Judiciary was originally published on Lawyerist.com.
Here are two important facts about Microsoft Word:
Fact 1: 100% of the formatting problems you’ve experienced when drafting new documents can be completely avoided before they occur.
Fact 2: When editing a document someone else drafted, any formatting glitches can be resolved in just a few clicks, no matter how bad of a mess it is.
Unfortunately, the foregoing facts are true only if you have mastered Word.
If, instead, you feel like every complex document turns into a wrestling match, don’t feel bad. Only a tiny percentage of Word users have achieved domination. In my decades of experience, even people who feel they know what they are doing with Word have almost always misdiagnosed themselves. The ability to beat text into submission via formatting work-arounds and hacks does not indicate that you know how to skillfully use Word.
Word should be doing the work for the user, not the other way around.
Most users find Word to be pretty frustrating when drafting or editing documents with complex formatting. This is because many of Word’s most important features are either concealed or nearly impossible to figure out without research and training.
For example, the most important feature one must understand in Word is styles, and nothing in Word’s interface indicates this. Clicking around in Word will not reveal what styles are, how they work, or how to control them. Word’s (fairly useless) built-in help sheds little light on the subject. I can give you all of the steps to construct a 5-level deep, auto-paragraph numbered outline that works perfectly in every situation thanks to styles. However, you can use Word every day for the rest of your life and not stumble upon those steps or discover what they are by accident.
Related “Using Microsoft Word Styles”
Having said that, styles are definitely not difficult or illogical for you to use once you understand them. To the contrary, styles are a wonderful formatting tool that allow you to completely control font-and-paragraph formatting in your documents in all situations. It’s just that these features are not easily mastered simply by using Word.
The fact that mastering Word requires training isn’t the problem; the problem is that most people don’t expect a word processor to be that complicated. There’s a general assumption that simply using the program over time will increase one’s skill with it. I’m here to tell you that this assumption is patently false when it comes to Word.
For example, I ran a quick search on Amazon for Word 2013 manuals. Here’s what I found:
The page counts alone would indicate that there’s a lot more going on here than most people expect.
In my experience, you can only build Word proficiency by working through comprehensive manuals or taking hands-on classes. Most people would rather clean toilets than read software manuals, but you have to keep in mind that not all classes are created equal. The critical issue is that legal professionals need to understand word processor functionality that most people do not need to use.“Ultimately, you can’t complain about the politicians if you don’t vote; and you can’t gripe about the technology if you don’t attempt to educate yourself.”
As a professional, you need to know how to turn page numbering on and off in the middle of a document, start it over, and switch from romanettes to Arabic and back again. You need to understand how to use Word’s table of contents and table of authority feature, how automatic paragraph numbering works, and how to control styles. These are precisely the kind of features ignored in Word classes designed for the general public. So it is important to find legal-specific training that will address these issues.
For years, I’ve heard experienced Word users complain that Word can’t do this and can’t do that. I always ask those complaining if they’ve ever read a whole manual on Word or taken a hands-on class. Invariably, the answers are no. When I demonstrate how easily one can do all of the things they were complaining about, they often look at me like I just pulled off some kind of David Copperfield magic trick. Once you learn how the program works, it’s not complicated (and I’m no magician).
Ultimately, you can’t complain about the politicians if you don’t vote; and you can’t gripe about the technology if you don’t attempt to educate yourself. The thing to remember with Word is that practice does not make perfect unless you know what to practice, and simply using the program won’t reveal it.
Featured image: “Illustration of a monochrome cartoon character (modified)” from Shutterstock.
Originally published March 4, 2015. Republished June 24, 2016.
New findings reveal some significant challenges coming to bear on those lawyers who must straddle both the strategic needs of their organization and the ethical demands inherent to the legal profession.
The 122-page Mapping the Moral Compass study provides a rich picture of ethical issues faced by in-house lawyers. A quarter of respondents were in-house lawyers working in the public sector, seven percent from non-profit organizations, and the largest portion of study’s sample were in-house lawyers working in business. Researchers grouped the lawyers into three categories: Champions, Coasters, Capitulators, and the Comfortably Numb.
“Champions” were more likely to work in teams with higher ethical and societal orientations than the other groups, personally exhibited a stronger individual ethical orientation, and had a stronger independence orientation than the Capitulators and the Comfortably Numb. This suggests that in-house lawyers who were more independent from their organization would be more likely to behave ethically. In comparison with the Comfortably Numb, Champions had a more negative relationship with the business.
The “Comfortably Numb” was the smallest group. These lawyers were the most morally disengaged and unattentive. Capitulators experienced the second highest levels of ethical pressure and had significantly higher levels of moral disengagement. They saw moral challenges and thought about moral challenges, but generally disengaged in response. The largest number of lawyers fell into the “Coasters” category: moderately low levels of recognition and reflection on moral or ethical issues.
Almost half of the in-house attorneys surveyed agreed that actions were sometimes taken against their advice on legally important matters. Despite, or perhaps because of this, a substantial 65 percent of lawyers said that achieving what their organization wants has to be their main priority.
Nine percent of respondents indicated saying “no” was to be avoided at all costs, even when there is “no legally acceptable alternative to suggest.” The study did not, however, suggest that all in-house lawyers are becoming “yes” men and women. Additional research cited in the study shows that many lawyers have shifted to framing advice in “yes, but” language because it is more effective than simply saying “no” flat out.
Most respondents characterized their relationship with their employers as “supportive.” However, a comparable portion of respondents reported being criticized for “inhibiting or slowing business decisions.” Surprisingly, ethical pressure was highest in public sector organizations.
Between ten and fifteen percent of lawyers reported elevated ethical pressure and were regularly or very frequently asked by their employers to provide legal advice on issues that made them uncomfortable. Overall, thirty to forty percent experienced some level of ethical pressure at work.
At root, what this study definitely makes clear is that in-house attorneys across all types of employers face some ethical challenges that external counsel may not, given that the former are employed by the entities they advise. For in-house counsel, both lawyers and their employers need to be mindful of these potential pitfalls to ensure that an attorney’s ethics aren’t inadvertently compromised.
Mapping In-House Lawyers from Ethical Champions to the Comfortably Numb was originally published on Lawyerist.com.
For years, Abacus Data Systems has provided attorneys with a way to eliminate the costs and burdens associated with the purchase of hardware and software and the cost of IT management. Abacus does this by creating a software-agnostic private cloud: you can use any software you would like and have Abacus host everything for you. Now, Abacus has acquired Amicus Attorney, which offers Amicus Cloud, a full-featured practice management software that resides in the cloud. With this acquisition, Abacus makes it even easier for firms to move their entire business to the cloud.Details
Many attorneys have spent their entire careers working in traditional desktop-based legacy software. Shifting everything to the cloud is attractive, but can prove very daunting. Abacus Data Systems solves this problem by creating a virtual desktop in the cloud with the Abacus Private Cloud service. Attorneys can use the software they have always used while Abacus takes care of IT management and maintenance. This helps decrease the usual concerns associated with moving a practice to the cloud.
Recently, in an effort to create a seamless platform for attorneys, Abacus acquired Amicus Attorney, which offers Amicus Cloud. Amicus Cloud provides a complete cloud-based practice management solution, including email integration, contact management, calendaring, and task tracking. What this means is that Abacus users can choose to use practice management software that is tightly integrated with the Abacus platform. However, they are not obliged to do so, as Abacus will accommodate any software needs. Abacus Private Cloud
At root, Abacus understands that there is no one-size-fits-all solution for attorneys. Firms have different needs and different levels of technological expertise. By providing both infrastructural solutions and software solutions, Abacus ensures that all firms can transition to the future of law practice: effortless cloud-based practice management.How to Get It
Contact Abacus for a demo. Abacus tailors its pricing based on the size of your firm and your specific needs and will work with you to create a custom solution.
Abacus Data Systems and Amicus Attorney: Complete Solutions for Firms of Any Size was originally published on Lawyerist.com.
Everyone likes to sleep. Everyone needs to sleep. But not everyone gets to sleep. Maybe your newborn kept you up last night, or you have a huge work deadline tomorrow, or you’re anxious about something in your life. Your work-life balance is not always within your control, so here are some tips on how to prepare for enough sleep, and, when that’s not an option, how to function with little to none of it.How to Ensure You Sleep Well
There are a number of steps you can take to help you get a good night’s sleep.Set a Bedtime
Try to establish a set bedtime. There’s a reason we do this for children: the circadian rhythm is your body’s natural clock, and your body performs its best on this routine. In turn, if you go to bed early enough, your body will naturally wake on its own, and you won’t feel groggy or need to hit the snooze alarm four times every morning.Establish Night and Morning Routines
Shut off all screens—phones, tablets, TVs—an hour before you go to bed. The blue-hued light your electronic gadgets give off tells your body that it’s not the time for sleep yet.
Researchers found that participants using iPads displayed reduced levels of melatonin, a hormone that typically increases in the evening and helps induce sleepiness. They took longer to fall asleep, and spent less time in restorative REM, or rapid-eye movement, sleep.
In addition, the iPad readers reported being sleepier and less alert the following morning, even after eight hours of sleep. They also displayed delayed circadian rhythms.
Don’t drink too much alcohol right before bed, or it could interrupt your sleep.
Take a warm bath, or read. Treat yourself gently so that your body starts to understand the rituals involved with preparing to go to sleep.Treat Your Body Right
Caffeine continues to stimulate your body long after you stop drinking it. Stop consuming any caffeine at least six hours before your bedtime. Eat a healthy, balanced diet full of whole grains, protein, fats, and fruits and vegetables. And try to limit stress as much as possible, whether that’s through exercise, diet, or massage. Brief meditation sessions may also help ease insomnia.
The study, which appears in this week’s JAMA Internal Medicine, included 49 middle-aged and older adults who had trouble sleeping. Half completed a mindfulness awareness program that taught them meditation and other exercises designed to help them focus on “moment-by-moment experiences, thoughts, and emotions.” The other half completed a sleep education class that taught them ways to improve their sleep habits.
Both groups met six times, once a week for two hours. Compared with the people in the sleep education group, those in the mindfulness group had less insomnia, fatigue, and depression at the end of the six sessions.What Getting No or Too Little Sleep Does to Your Body
Not getting enough sleep is terrible for your body and your mind.
When you’re deprived of sleep, your brain can’t function properly, affecting your cognitive abilities and emotional state … Chronic sleep deprivation can interfere with balance, coordination, and decision-making abilities … Sleep deprivation is dangerous to your mental and physical health and can dramatically lower your quality of life.
Impaired cognitive decision-making abilities definitely won’t help your law practice. Clients are paying you for the knowledge you have and how you impart that knowledge to them and other parties. Getting by on little to no sleep does not help in being zealous advocates for your clients.When the All-Nighter Just Wasn’t Avoidable
So, you read this article, had best-laid plans, but still didn’t get any sleep last night. Here are a few tips on how to survive your day.Eat a Healthy, Balanced Breakfast, Including Some Caffeine
Your body’s going to crave simple carbohydrates because you’re tired, but try to resist; choices like protein, fat, and whole grains will give you more sustained energy. Drink a little coffee to jumpstart your system. If you don’t do caffeine, water works surprisingly well at alerting your body to wake up, too.Get outside
Today probably isn’t the day to go for your morning run, but get outside anyway. Eat your breakfast on the patio. Sit outside for a few minutes. Take the dog for a short walk. The natural light will energize you.
Surrounding yourself with as much bright light, especially natural light, as possible will help you feel more alert, explains Sean Drummond, a psychiatrist at the Laboratory of Sleep and Behavioral Neuroscience at University of California, San Diego. “First thing in the morning is one of the most important times,” he said. “It’ll boost alertness, it’ll up your body temperature, it’ll reset your circadian rhythms.”Get the Hardest Things Out of the Way First
You’re not going to get any less tired throughout the day, so start with your toughest tasks and handle the easier stuff when you’re starting to fade.Eat a Healthy, Balanced Lunch
Sound familiar? Again, no simple carbohydrates. Instead, eat vegetables, proteins, and whole grains. A lunch that’s too heavy will only serve to make you feel more tired, and you don’t need that.Take a Power Nap
If you have an office with a door or another place to grab a snooze, take a 20-minute power nap for a great energy boost.
Power naps can alleviate our so-called sleep deficits, but they can also boost our brains, including improvements to creative problem solving, verbal memory, perceptual learning, object learning, and statistical learning. They help us with math, logical reasoning, our reaction times, and symbol recognition.Work in a Different Location
Sometimes a change of scenery is necessary to shake things up. Choose a different branch of your co-working space. If you work from home, consider working outside on your patio. Do not work inside in your pajamas. A coffee shop with ambient noise might be enough to keep you awake, just until the end of the day, when hopefully you can go home and get a good night’s sleep.
Over at Fast Company, a Google employee outlined how Googlers brainstorm. It’s a relatively simple three-step process and, with some minor modifications, may work well for attorneys (or anyone, really.)
Step one is getting to know your user. In Google’s case, obviously, that’s typically the end user of one of their technology products. In the case of attorneys, it’s your clients–or the people you hope will be your clients. Google employees actually visit users, which may prove a bit weird for you (prospective clients probably don’t want you to just drop in and ask what they want from you) but there is a rough equivalent: put yourself in your potential client’s shoes. What do they need? What are they worried about? Empathy is key, and goes a long way in helping you figure out who it is you want to attract as a client and how you can best address their concerns.
Step two is think 10x. This gets a bit business jargon-y, so hang on. 10x thinking basically means that instead of setting small incremental goals, you shoot for the moon.
In 2002, psychologists Edwin Locke and Gary Latham consolidated 35 years of research on goal-setting and found that, all things being equal, the presence of lofty goals correlated strongly with improved performance—across industries and activities and regardless of if the goals were self-made. In a nutshell, aiming higher pushes us to do better. “High goals lead to greater effort than low goals,” the researchers write. “Tight deadlines lead to a more rapid work pace . . . [and lead to] the arousal, discovery, and/or use of task-relevant knowledge and strategies.”
In Google’s case, this means that instead of thinking about laying more fiber cable to increase internet access, they decided to start a project where they will have balloons that travel at the edge of space and bring the internet to underserved rural areas. It sounds sci-fi as all get out, but they have already managed to do a pilot program in New Zealand and had people successfully connect to the balloon-powered internet.
What does that mean for you? How can you create grand goals rather than small ones? That is a bit tougher than it sounds. For Google, it works best when your brainstorming group follows six guidelines.
These guidelines presume you are working with a group, and while that is ideal, it isn’t strictly necessary as long as you are firm with yourself about honoring the spirit of these guidelines: refusing to knock out any idea too early. Do you want to have five separate offices one day even though right now you work out of the spare closet in the bedroom? Say so. Do you have a seemingly ridiculous idea for how you will advertise your firm? Put it on a piece of paper. Don’t censor yourself during brainstorming.
Step three is prototyping. For Google, this means literally building a thing so that they have a physical representation of what they are trying to do, with the understanding that they can work out details later. Obviously, you can’t build a quick prototype of your dream firm, but you can force yourself to take a concrete step and work out details later. Want to move out of the spare closet? Call ten different places and make a spreadsheet of your possible costs so you can begin assessing whether that is a reality. Want to work on that advertising idea? Spend a little time with Photoshop or something similar and sketch out some rough graphics. The key here is to do something, rather than stopping at the idea-generating stage. You may find out that moving out of the closet is too expensive or that wrapping your car in advertising is a bad idea, but you won’t actually know that absent some tangible steps forward.
If all of this seems too abstract to take in or you just need some visuals, Google made a handy video that takes you inside their innovation process.
The takeaway: empathize with your clients and potential clients, dream big, and take some sort of action, no matter how small. It will never be a waste of your time to engage in some structured and productive brainstorming.
Can Brainstorming like a Google Employee Work for Lawyers? was originally published on Lawyerist.com.
Smokeball is legal practice management software for small firms that use Windows. While it does what you have come to expect from most case management software—matter opening, calendaring, keeping track of contacts—it places particular emphasis on document assembly and automation. It is also tightly integrated with Microsoft Word and Outlook.Index
Smokeball does not have a free trial. Instead, it relies heavily on an old-school sales process: you need to hand over your information and talk to a salesperson just to try it. That means trying Smokeball takes considerably more commitment than many of the popular cloud-based options, which are about as easy to try as opening a box of cereal. If you would like to get a sense as to whether Smokeball will work for your practice without making that sort of commitment, though, you can at least watch a quick demo:
Smokeball will also give you a personalized demo if you call.Pricing
Smokeball costs $69 per user per month. That gets you access to Smokeball’s Android and iOS apps, and unlimited storage. You also need to pay an onboarding fee for Smokeball to install the program and train you on it. That fee ranges from $300 to $900 depending on the size of your firm.Onboarding with Smokeball
After you have signed up for Smokeball, a representative will guide you through the install process or remotely install the software on your Windows machine, whichever you prefer. That installation will also include helping you install add-ins for Microsoft Word and Outlook so that Smokeball can work seamlessly with those programs. Smokeball personnel then train you on how to use the software. Onboarding consists of manually setting up an account with data like your letterhead and user preferences, a consultation call to learn more about your firm and your needs, and two online training sessions covering both basic and advanced features of the program. Because of that, the setup process is unfortunately fairly time-intensive.Setting Your Preferences
Smokeball has a wide variety of settings, from adding staff and users to deciding how the program interfaces with Outlook. You can also automate some of your workflows.
Smokeball will help you with these during the onboarding, but it is helpful to know how to tweak things yourself as you get more comfortable with the program.
Smokeball integrates with Clio, which may seem odd given that Clio is also legal practice management software. Clio and Smokeball anticipate that you may use Clio to handle your invoicing and billing because those Smokeball doesn’t have those features.Importing Data
There is no way for you to bulk import information from other practice management software you may have used previously. That said, Smokeball does offer a way to import documents into each new matter you set up.
In each matter, you will see a button to import or scan documents. If you choose “import” you can choose an entire folder or a file to upload to Smokeball. You can also drag and drop items directly.
You also cannot bulk import contacts, but Smokeball’s integration with Microsoft Outlook ensures that the program has access to that contact data. Alternatively, Smokeball will import your contacts for you during your onboarding as long as you have them in a .csv format (which is typically how you would have exported contacts from your previous legal practice management software or your existing email account).Using Smokeball Home Screen
When you open the program, you will see Smokeball’s home screen, which has three components:
(1) A “daily digest” bar to the far right, which gives you a day-at-a-glance view of your calendar, your tasks, and any phone messages. You can create tasks and events directly from the daily digest bar, which is a nice touch.
(2) Your matter list, which has the most screen real estate in the center. This list is highly customizable. You can set up any number of matter types that you would like. You can set the matter list to only show you open matters. You can sort by any of the fields at the top, including matter number, type, client name, and assigned staff.
3) On the far right, a toolbar with tabs for the other areas of Smokeball: contacts, calendars, tasks, “activity intelligence” (more on that later), and reports.
Opening a new matter is simple: choose New Matter from the home screen and pick a matter type. Smokeball comes pre-loaded with all the matter types you would normally expect, such as criminal law, immigration, personal injury, and workers compensation. If you practice in a niche area that isn’t pre-loaded, you can tell Smokeball during the onboarding process and they will add a matter type for you. Each of the matter types also has optional sub-types.
The first thing you will want to do is enter information about the parties. You will see that Smokeball provides some roles based on the type of matter. A driver’s license reinstatement case has a space for alcohol/drug evaluation information, which obviously doesn’t appear in the real estate litigation section, for example.
The Matter page also has several widgets on the right-hand side. Three of those widgets—Next Step, Upcoming Events, and Notes—allow you to quickly enter information that will be associated with that matter. The fourth—contact details—is for address information for your client or other individuals.
At the bottom of a Matter page, you will see the Documents and Emails section. All types of documents that you have associated with your matter appear here. You can import documents using the Import tab above or drag and drop. Additionally, you can organize this section however you would like with subfolders.
As soon as you attach any type of document to a matter in Smokeball, the program saves that document within Smokeball’s cloud. Put another way, regardless of whatever organizational chaos you may have on your actual computer with your files, Smokeball will organize those files via matter and subfolder for you in the cloud.Contacts
The Contact tab displays all of your contacts (not just your clients.) You can add a new contact from the New Contact tab. As with the matter window, you can organize this information in a number of ways. You can slot contacts into categories, like “expert” or “mediator.” You can sort them alphabetically or by organization.
Smokeball allows you to get even more granular with how you slice and dice your contacts thanks to tags.
Tags will be familiar to anyone who has used Evernote. A tag is a brief word or two that you associate with a contact. More than that, though, it is something you expect may be associated with more than one contact and something where you would like to be able to see all associated contacts at a glance.
You can add tags while you are adding a new contact or go back and do it later.Calendars
The Calendar display allows you to view the day, work week, week, month, or view your activities (upcoming and past) in a timeline format.
If you are in a workplace where calendars are shared, you will see all of those calendars here as well. If you have chosen to enable it, Smokeball will sync your Outlook calendar with Smokeball. That way, it won’t matter where you are entering your meeting information – it will all show up in Smokeball regardless.Tasks
Smokeball’s Tasks section is designed very well for multiple-person teams. If you are a solo practitioner, you can use Tasks more like your own to-do list, but the real power of Tasks comes through when you have several people to whom you want to assign things and track progress.
Clicking Task while in any portion of the home screen will bring up a new task prompt. From there, you can assign the task to a specific individual and attach it to a matter. You can then create a checklist with subtasks within that task.
You can view all your completed or upcoming tasks at a glance. You can also view those of anyone else on your team. It is a great feature if you assign a lot of tasks elsewhere and want to be able to keep tabs on how those things are progressing.
The only downside is that Smokeball doesn’t let you set granular permissions, which means that every user can see everyone else’s tasks all the time.
When you go back to view specific matters, you can then see all the tasks attached to that matter.Ai (Active Intelligence)
You can get a sense of your matter-by-matter or day-by-day progress by looking at your completed and yet-to-be-completed tasks. If you are looking for a more comprehensive view of what you and the people in your organization are getting done every day or week or month, the Ai section is what you will use.
You can customize the Ai display in a number of ways., such as sorting by matter name or limiting what types of activities show up in the report. If you want to track overall productivity or show a client the amount of tasks that went into their bill, it works very well. It suffers from the same problem as the Tasks section, however, which is that all your users can see all the data.Reports
Think of reports as a static exportable version of Tasks or Ai. You choose the type of report from a drop-down menu, set your dates, status, and assigned staff, and Smokeball will run a report that you can print or export to a PDF.
One of the ways in which Smokeball strives to set itself apart from other case management software programs is by adding robust document automation capabilities. Smokeball presumes that you draft the same or similar things on a regular basis and would benefit from having the routine portion of that automated.
If you start with a “blank” letter, it actually won’t be blank. Smokeball pre-populates your address, letterhead and signature block. Similarly, a court form will include a caption that is correct for your jurisdiction and your attorney/firm information.
Smokeball also has a variety of forms and letters that come pre-installed. You can also request that Smokeball set up a form or letter specific to your practice. Finally, if you are comfortable with setting up forms and letters with various fields, you can make your own forms from scratch.Exporting Data
Smokeball does not have a user-side way to export data, but the company states that if you contact them and request an export, they will provide you with a full backup of all your documents, including all versions of each.Security
Smokeball isn’t very specific about security on its website or in its documentation but does state that it uses “bank-grade security, encryption, firewalls, and data backups” to keep your client data secure. From a phone discussion with one of Smokeball’s tech personnel, I learned that they use 128-bit SSL to encrypt all data traveling between your computer and Smokeball.
For storage and backup, Smokeball relies upon Amazon’s S3 service, a cloud storage system that has a high level of security, uptime, and backup capabilities.Mobile Apps
Smokeball has mobile apps for both iOS and Android. The mobile apps allow you to view matters, see your daily digest, see your calendar (and those of your colleagues, if applicable), and your tasks and to-do list. Although Smokeball is a desktop-based application, everything is stored on Smokeball’s cloud servers so you can use the mobile application to access the correspondence, documents, and notes you have related to any given matter. You can also add documents to a matter via the mobile apps as long as it is a document stored locally on your device or stored in iCloud or Dropbox.Who Should Use Smokeball
As a threshold matter, every attorney should use legal practice management software. Period. Given that Smokeball’s pricing is roughly comparable to other practice management applications, why would someone choose Smokeball over the ever-increasing number of other programs out there? The answer to that depends a lot on what type of technology you have already wedded yourself to and where you see your tech use going in the future.
Over 70% of solosmall attorneys use Windows machines. Roughly 75% of solosmall lawyers use Outlook for their email, calendar, and contact management. It is generally a safe bet that someone running Outlook is also running Microsoft Word (and the rest of the Office suite). If you are in that number, you are the current target market for Smokeball, technology-wise. Smokeball presumes that you want to stay on a Windows machine and want to keep using desktop-based Office applications. The latter may prove tough as Microsoft increasingly drives its users to the cloud-based version of Office 365. However, given that Smokeball relies upon such tight Microsoft integration, it seems likely that it will figure out a way to integrate with the cloud versions of Word and Outlook eventually.
Besides being committed to a Microsoft ecosystem, the ideal Smokeball user is someone who wants case management software that takes over for them, allowing them to functionally do everything within just one program. They are also comfortable with having all the data in the program accessible to everyone in the organization. Finally, since Smokeball does not handle billing or invoicing, the ideal user must be willing to pay for a separate program to manage those tasks or manage them manually. If this describes you, Smokeball may be a good fit.
The Public Service Loan Forgiveness (PSLF) program can be a good deal for attorneys. Work full time for the government or a qualifying non-profit for ten years and make 120 consecutive payments on a qualifying plan, and the rest of your federal loans are wiped out.
Here’s the problem: while we all know what constitutes a government job, things get a little fuzzier when it comes to non-profits. 501(c)(3) non-profits are covered, as are some non-501(c)(3) non-profit entities that provide “qualifying services.” Those qualifying services include public interest legal services and public education, both of which are relevant for attorneys hoping to fall under the program. And here’s where things have gotten complicated.
Recently, the Department of Education has told the American Bar Association, the American Immigration Lawyers Association, and some, but not all, American Civil Liberties Union offices, that they are not qualifying non-profits for purposes of loan forgiveness. The reasons are different for each.
For the ABA, they aren’t entirely sure why they do not qualify.
“No one at the Department of Education has been able to provide any justification for the unilateral policy change, which is especially bothersome because it’s to be applied retroactively,” says Jack L. Rives, executive director and chief operating officer of the ABA. “We are aggressively seeking to restore our status as intended by the law—fully and unconditionally as a qualified employer.”
For the AILA, the Department of Education decided that the people that work for the AILA do not provide public interest law services but the member attorneys that work with the AILA provide public interest law services. The AILA tried to get back under the umbrella of loan forgiveness by saying that they provide public education, but the Department of Education did not like that any better.
“Our research shows that AILA is a professional bar association primarily engaged in advocacy and providing news and commentary to its members and to the public in general,” the letter states. “For PSLF purposes, the Department considers ‘public education services’ to be services that provide educational enrichment directly to students and their families in a school, or school-like setting.”
That seems like an awfully narrow definition of “public education.” To add insult to injury: back in 2012, the Department of Education actually did tell the AILA that their employees qualified.
If the AILA situation seems complicated, it is much worse for employees of the ACLU.
Some American Civil Liberties Union offices also lost employer certification for the program, while others received various answers from the federal government. Decisions tended to be based on the tax status of which fund paid them, and some employees paid from an office’s 501(c)(4) funds were told their employer did not qualify. Groups with 501(c)(4) status are traditionally social welfare organizations, and some ACLU employees found to be ineligible for the PSLF program engaged in lobbying work.
So – if you work for the ACLU and are paid from 501(c)(4) funds, you may not qualify for loan forgiveness. If you work for the ACLU and are paid from 501(c)(3) funds, you may qualify. Perfectly clear, isn’t it?
The obvious problem here is that some recent law school graduates may have specifically sought public interest law work in part because of the option for loan forgiveness. Having the status of your employment be ever-shifting is a huge problem. The usual advice to a young graduate would be, of course, to be proactive: make sure you find out from your employer and the Department of Education whether your employment qualifies. However, that advice doesn’t help the graduate who starts a job—such as one at the AILA—where your job qualifies when you take the job, but at some future date does not. Hopefully the Department of Education will get their act together on this issue and provide some long-lasting clarification, but at this point it doesn’t look good.
Are You Sure Your Non-Profit Job Qualifies for Loan Forgiveness? was originally published on Lawyerist.com.
This week, Sam chats with Paul Floyd, a lawyer who advises solosmall attorneys about business issues, about how an attorney can leave a small firm in a small town and do so on good terms. Aaron and Sam also discussed how everyday things like keycards and paper checks can be far less secure than you think they are.Hotel Keycards and Paper Checks Present Unexpected Security Risks
Last week, Aaron attended the first day of the Minnesota State Bar convention, where he heard a talk from Mark Lanterman of Computer Forensic Services. Mark had several cybersecurity horror stories, including one Aaron hadn’t encountered before: some hotel room keycards actually store your name, credit card number, expiration date, and checkout date right on the magnetic strip of the keycard. That data can then be read on any mag reader.
Aaron also mentioned that he had recently read a piece by Felix Salmon where he gave his bank routing number and his checking account number—available on the front of every paper check you write—to a friend to see if she could use that information to extract money from his bank account. Armed with only that information, she was able to log on to her American Express account and pay off her balance with Felix’s money.How to Leave a Small Firm in a Small Town on Good Terms, with Paul Floyd
Paul Floyd is a partner at Wallen-Friedman & Floyd, P.A. Paul is known as a “lawyer’s lawyer” because he provides practical and legal advice to solosmall attorneys about business issues, including strategic planning, succession planning, governance structure, and lawyer departure issues. He also represents small business owners in a number of industries.
Paul is President-Elect of the Hennepin County Bar Association
You can follow Paul on LinkedIn.
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Podcast #73: How to Leave a Small Firm in a Small Town, with Paul Floyd was originally published on Lawyerist.com.
Your document formatting is all fouled up. And you’re on a tight deadline. Here are three shortcut keys to fix Microsoft Word formatting instantly. You’ll want to keep these handy, like on a sticky note stuck to the side of your monitor.
Related Using Microsoft Word Styles
Just select the offending text with your mouse or keyboard, then pick the appropriate shortcut key. If you’re not used to using shortcut keys, this means holding down either/both the Control key (found in the lower-left and lower-right part of your keyboard) and/or the Shift key (found directly above the Control key), then pressing the letter or other character it’s paired with.
Cut-and-paste causes most common formatting snafus, so learn how to paste text without messing up your document. If it’s too late for that, here are more ways to fix Microsoft Word formatting.
Fix Microsoft Word Formatting Instantly with 3 Shortcut Keys was originally published on Lawyerist.com.
Ruby Receptionists are receptionists for the 21st century. Their virtual receptionists take care of your calls so that you can take care of your law practice.Details
When someone calls your office, first impressions are critical. A potential client does not want to speak to a harried receptionist that has no specific knowledge of your practice or, worse still, get your voicemail. A caller wants to be met with a personable, professional, and cheerful individual who understands that their concerns are important. They also want to talk to someone that sounds like they are right there in your office. When those things happen, the caller feels connected to you and your firm. That personal connection builds trust from the very start.
Ruby provides a number of services that help your front-line interactions feel highly personalized and professional. Ruby will answer your calls with your custom greeting and let you know who is on the line before transferring the call. Ruby also understands that different calls go to different people and can route accordingly. Their receptionists also are well-equipped to answer questions about your business such as what type of cases you handle and where your business is located. Ruby will also return calls on your behalf, saving you time and ensuring a potential client is not left feeling that your firm is unresponsive. Finally, and perhaps most importantly, Ruby’s intelligent live receptionists are able to distinguish between first-time callers, existing clients, and critical matters, ensuring that each call is treated with the level of urgency it deserves. Thanks to this level of detail, both new and repeat callers will feel connected to and appreciated by your firm.How to Get It
Ruby has subscription plans ranging from $259/month for 100 receptionist minutes and one Ruby voicemail box to $899/month for 500 receptionist minutes and three Ruby voicemail boxes. With a Ruby voicemail box, Ruby will email you your voicemail messages in a .wav file. All plans also include 13 hours of daily receptionist coverage five days a week and bilingual services for Spanish-speaking callers. Ruby has a 21-day money back guarantee. There are no long-term contracts, and you can cancel with 30 days notice.
Ruby Receptionists: Build Trust with Clients through Personal Connections was originally published on Lawyerist.com.