But you started reading it anyway.
We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words privileged and confidential — or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected email or the surfer of a law firm website. Disclaimers seem to have spread like a consensual virus — a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his own materials.Website Disclaimers
Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an email or contact form sent to the law firm until the firm has agreed to enter into an attorney-client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.
There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. The Virginia State Bar Committee on Legal Ethics did issue an opinion that compared websites to advertisements in the Yellow Pages. Just as a prospective client who obtains a lawyer’s phone number from a Yellow Pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an email message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.
Website disclaimers are designed to address the exact same situation repeatedly: stranger v. law firm. No disclosure of an existing client’s confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).
Email disclaimers, however, are a different and dangerous breed.Email Disclaimers
They probably have their roots in that antiquated technology: the facsimile transmission (which our ancestors colloquially referred to as a fax). Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer starting putting a disclaimer on the fax cover sheet. That way, the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using email, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected email with a warning to those who receive messages that were not intended for them.
Now, probably 80% or more of the emails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the email is “privileged and confidential;” most suggest that the email “may” be privileged and confidential (how I should determine whether it is or not is not explained), and either ask or demand that I notify the sender, and destroy the email and any paper copies I may have printed.
There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing. Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule). So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.Undermining Disclaimers Through Overuse
Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).
In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.Using Disclaimers Appropriately
Appropriately used, disclaimers may allow lawyers to rescue misdirected emails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the email is not clearly apparent on the face of the email. Those disclaimers should be sparingly used, appear at the beginning rather than the end of the email, and state that information in the email is confidential or privileged only when it really is. That way, unintended recipients might really sit up and take notice when they see privileged and confidential declared in an email.
This was originally published on November 17, 2008. It was (lightly) revised and re-published on February 21, 2014.
Featured image: “confidentiality” from Shutterstock.
This Post is Privileged and Confidential is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Here is the new provision in the new terms of service:
We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
From now on, you’ll be using the American Arbitration Association if you have a dispute with Dropbox. Oh, and no more class actions, either:
No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.
Presumably, this would include things like a disagreement over whether Dropbox should have given up your files to spy agencies or law enforcement without a fight.
Don’t worry, though, you can opt out — but only until April 23rd. (It doesn’t look like the opt-out applies to the class-action waiver. You’re just SOL for that.)
Dropbox Amends its Terms of Service to Add Mandatory Binding Arbitration (Also, No More Class Actions) is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Statistically, over 9 percent of American adults have a diagnosable personality disorder … .
In other words, it is not your imagination; some of your clients really are crazy. In fact, depending on the kind of law you practice, the percentage of your potential client base with a diagnosable personality disorder is probably substantially higher than the average.Personality Disorders
A personality disorder, according to Wittenberg, is an “enduring pattern of behavior and subjective experience that affect[s] a person’s thinking, feeling, relationships, and impulsiveness.” And, she says, “Often the affected person sees these patterns as perfectly reasonable and appropriate despite their dramatic, negative impact on her daily life and the lives of those around her.”
People with personality disorders have “limited life scripts” and usually behave in “fixed, unyielding ways” that often force people around them to play implicitly-assigned roles like caretaker or bad guy. In other words, personality disorders have a sort of ripple effect on those around the person with the disorder — clients with personality disorders can make you crazy, too.Common Personality Disorders
Here are a few common personality disorders you might see in your practice:
Disclaimer: I am not a psychologist; everything in this post is based on Wittenberg’s article, which you should definitely read.Narcissistic Personality Disorder
Narcissistic personality disorder is a condition in which people have an excessive sense of self-importance, an extreme preoccupation with themselves, and lack of empathy for others. (from NIH.gov; also, see Wikipedia)
Wittenberg says clients with NPD are often cooperative and engaged, at first, but they will start blaming others and lashing out if unexpected problems arise. She says it is very difficult for clients with NPD to take responsibility for anything, or even to admit they played a role in their problems. And they don’t like to be called on it. Clients with NPD may storm out of your office if you point out the role they played in creating their problems.
Narcissism often conceals extremely low self esteem, which narcissistic individuals conceal beneath a self-important shell, reinforced by affirmation and acclaim from people they admire. Wittenberg recommends helping narcissistic clients maintain their self-esteem by treating them with utmost courtesy and respect. Go along with their desire to see you as worthy and high-status. Let them think of you as “the best,” but be careful not to appear to compete with your client. As exceptional as your client wants to think you are, you must come in second to him. Suppress your irritation at your client’s bragging and witticisms; narcissistic clients need your endorsement, and they will probably settle down and stop begging for it if you stroke their ego a little bit.
Where things get especially difficult with a client is in settlement, particularly in criminal matters, where the client may have to acknowledge some responsibility. You must convey to the client that you are on her side, and explain why it is necessary to accept some responsibility while preserving as much self-esteem as possible.
Do not fell into the trap of getting demoralized while working with a narcissistic client, who will never recognize the quality of your work. Satisfy yourself that your work is up to par, and do not get preoccupied if your client does not recognize it.Antisocial Personality Disorder
Antisocial personality disorder is a mental health condition in which a person has a long-term pattern of manipulating, exploiting, or violating the rights of others. This behavior is often criminal. (from NIH.gov; also, see Wikipedia)
According to Wittenberg, “[p]eople with Antisocial Personality Disorder or features of this disorder often come into contact with the legal system. That’s because a key marker of this disorder is ‘failure to conform to social norms with respect to lawful behaviors … .” That does not necessarily mean criminal behaviors, but people with ASPD have an “overriding motivation to pull something over on others,” and take pleasure in consciously manipulating people. You are as likely to find them at the head of a corporation as in the back of a police cruiser. They are reckless, lack remorse, and are highly impulsive. They either rationalize the harm they do to others, or don’t care.
People with ASPD need to control others and to feel powerful. Like narcissistic clients, they may brag and deny responsibility for their problems, but they will do it in different ways. A client with ASPD is more likely to brag about illegal activities and characterize illegal activity as something everyone else does, too. They also lie a lot.
Put this together, and clients with ASPD can be dangerous to work with. Wittenberg says “[t]he most important thing … when working with antisocial clients is … to maintain safety.” Schedule meetings when other people will be around. Adopt a firm and direct approach so you are seen as strong, not weak. Be rigid when it comes to expectations, billing, and other aspects of the representation. (Antisocial clients are a good reason not to be lenient with payment plans, or not to accept them at all. They will take pleasure in skipping out on your bill.)
In order to forge a relationship with an antisocial client, you have to play to her need to control. Make yourself useful to her by showing her you can help her get what she wants if she works with you. In discussing the legal matter, focus on consequences, not legality or morality.
Antisocial clients will tell you only what they think you need to know, and usually omit details in their narratives. You must elicit detail without challenging your client, which could send him into a rage.
You will probably feel uncomfortable with antisocial clients, and possibly contemptuous of them. You may even be afraid of them.
If you find yourself working with antisocial clients, do not allow yourself to be intimidated or cheated. Be skeptical of everything you hear (a good quality for a lawyer, anyway), be safe when meeting with your client, and protect yourself financially with adequate retainers.Borderline Personality Disorder
Borderline personality disorder (BPD) is a mental health condition in which a person has long-term patterns of unstable or turbulent emotions. These inner experiences often result in impulsive actions and chaotic relationships with other people. (from NIH.gov; also, see Wikipedia)
People with BPD are, in a word, unstable. They may even be suicidal, and often engage in other self-destructive behavior. “Clients with [BPD] … can be lots of fun to work with, until suddenly they’re not” says Wittenberg. The trouble is, you may not get any clues that a client has a borderline personality until it emerges later in the representation. In fact, in the beginning, she may be the perfect client — up until something happens to upset her idealized form of your representation.
In legal matters, BPD may introduce intense, inappropriate anger. Clients with BPD may fly off the handle and abruptly terminate relationships — including your representation. Threats of ethics complaints and malpractice lawsuits inevitably follow, when a borderline client terminates your relationship in anger.
Clarity, consistency, and structure will help avoid this result. Regular status calls or emails are especially important to borderline clients, and you should be prompt in returning communications, even if it’s just to acknowledge that you will follow up.
Representing a borderline client can be a roller coaster ride. Resist the ups and downs by staying calm and level. Borderline clients challenge you to reject them. If you stay the course, you will be able to do the work you were hired to do.You Cannot Avoid Clients with Personality Disorders
Dealing with clients with personality disorders sounds like a lot of trouble, and you may be tempted to resolve never to represent such clients. But, discrimination laws aside, personality disorders may not be clear at the outset of the representation, for one thing. For another, if a tenth (or more) of your potential client base has a personality disorder, chances are good you will end up dealing with a disordered client sooner rather than later, anyway.
If you understand your clients’ personality disorders just well enough to work with their needs, you can still be an effective advocate while making your clients happy.
This was originally published on March 6, 2013. It was revised and republished on February 19, 2014.
Featured image: “Crazy businessman making funny faces” from Shutterstock.
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There are two primary outcomes in a desperate struggle with addiction. The first is to keep going until you die. The second is to get caught.
After roughly a year and a half of active addiction to cocaine, Chuck Ramsay appeared to have decided upon the first. He looked in the mirror, admitted to himself he had a problem, but didn’t know how to keep living without coke. So he decided he would just keep using – keep using coke until he died.
“I just loved the feeling.”
Then, abruptly, his life veered toward the second outcome: Ramsay was caught for using coke inside the courthouse while representing a client facing a felony charge. This was 2009. In 2010, Ramsay faced disbarment—fortunately the Minnesota Supreme Court opted for a 90-day suspension—but in 2011, just one year later, despite the arrest, the night in jail, the professional discipline, the shame and discredit he brought upon himself and the profession, Ramsay was an “Attorney of the Year” in Minnesota Lawyer.
In short, Ramsay went from loving cocaine to loving himself (and others) more than the feeling coke gave him, which turned out to mean everything in his recovery.Falling in Love with Cocaine
It starts with a feeling.
“I absolutely loved it,” Ramsay said. We sat across from each other at Claddagh Coffee (for the Irish, the Claddagh ring represents love, loyalty and friendship) on West 7th in St. Paul, Minnesota, two mugs of coffee between us on the table. Ramsay’s no-bones admission: “I just loved the feeling.”
This feeling—Ramsay refused to describe it, refused to glamorize it—is euphoria. Cocaine is a stimulant, an “upper.” Ramsay was 18 his first time, after a high school grad party in the 1980s, and the feeling latched itself to him.
Then followed two decades of occasional use before the feeling got stronger, led to what Ramsay called his steep decline, and he began to use more and more often, in greater and greater amounts, until he found himself in a courthouse with his hands behind his back, cuffed. By then, cocaine had become his performance enhancer. Cocaine made him a super lawyer. So much so that Ramsay was plowing through grams of coke on the day of his arrest, soldiering on, winning another favorable result for another client.
The prosecutor, however, noticed his mood swings. Someone saw Ramsay leaving the restroom, sniffing and pinching his nose. In came the drug dog. They found cocaine residue on a table and in his briefcase. Earlier, Ramsay had yelled at the bailiff because there were no conference rooms available. Ramsay thought they were interfering with his ability to meet privately with his client. “I was oblivious,” he said. In reality, the authorities were busy gathering evidence against him.
Ramsay didn’t have a clue he’d been caught until the moment of his arrest.
By then Ramsay had roughly a decade behind him in practice as a criminal defense lawyer. Ramsay had come to believe, that through sheer force of his will, he could govern the outcome of his cases. The facts didn’t matter. The evidence didn’t matter. He believed, not in God, but in Chuck Ramsay. He believed, like the egomaniac he said he was, in his power to guide the moon and stars.
So it was that Ramsay thought he could control his use of cocaine by setting ground rules.
“How the hell can I go on without using?”
“We are all terminally unique,” Ramsay said, referring to people who suffer from addiction but don’t quite know it yet. Addicts rationalize. They believe they’re different from everyone else, special, immune from disease. These ground rules were Ramsay’s immunization: He would use once a month, on the weekends only, never on a weekday.
You know what happens. One by one, those ground rules gave way, even those that weren’t explicit. Ground rules, perhaps a sign of addiction in themselves, weren’t enough to keep Ramsay from spiraling. He said, “If taking drugs in the courtroom helped me to be number one, I would’ve done it.” He paused, looking at me. “I did do it.”
Just as troubling was his “alien,” as he called it, the physical testament to the havoc coke wreaked on his body. Ramsay blew his nose in the shower and the lining of his sinuses fell out on the tile floor.
The alien looked like strips of raw bacon.Losing Cocaine
“How the hell can I go on without using?” he asked himself after the arrest.
But in a case that marked the start of Ramsay’s period of active addiction, roughly a year and a half before the arrest, the client had been accused of taking part in the violent gang rape of a woman in her apartment. (Not that it should matter, from a criminal defense lawyer’s perspective, but Ramsay had reason to believe in his client’s innocence, which only added fuel to the fire.) On the eve of trial, the father of the client laid a hand on Ramsay’s shoulder and said, “I trust you, Mr. Ramsay. My son is in your hands.” To hear those words, to feel the hand on his shoulder, meant the loss of Ramsay’s power to guide the moon and stars, to control the outcome without breaking his ground rules.
On Sunday night, Ramsay put the finishing touches on the case, though he didn’t need to. He was prepared, but he felt he had to, wanted to, so he used cocaine to work through the night without sleep. The sun came up. Jumping from the desk to the shower, Ramsay stood under the water, exhausted, so he used again, and again at noon when he started crashing.
“I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine ….”
Ramsay worked the case. Ramsay won the case. He went on to rack up several more wins. Win after win after win—all while on coke—proving to himself and everyone else that he was a super lawyer. “I took it seriously,” he told me. “I am a ‘super lawyer.’” But after the arrest came a much different thought: “I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine,” he said, and worried he would promptly fall into a slump of mediocrity.
On the morning of our interview, I was nervous to meet Ramsay, knowing I’d sent him a number of very pointed, very personal questions about his struggle with addiction, which has surely been the seminal challenge of his life. Yet, as he reached out to shake my hand, I felt a certain calm energy. Right off he told me he didn’t want this story to be just about him. He told me he was doing this to help other lawyers struggling with the disease of addiction. “There’s a huge stigma,” he said, “both those addicted to alcohol and certainly those addicted to drugs. It doesn’t have to be that way. It’s a disease. It’s a disease no different than cancer.”
Here lies the debate. Some people, even some addicts, believe addiction is not like cancer; choice is within the addict’s power, willpower will help one overcome. Others believe, like Ramsay, that disease is disease, worthy of both medical (and if the situation warrants it, spiritual) attention.
Ramsay appears to fall somewhere on both sides of this debate. I suspect that many addicts who have “come back” like Ramsay fall on both sides as well. Ramsay didn’t want this story to be about him, but this is one man’s life and no other’s, and to the extent it is a story about Chuck Ramsay, it’s also about all of us. Whether or not addiction is a disease, we are all susceptible in varying degrees, and we owe it to ourselves and to others to do our best to come back.
So it happened that the week of our interview marked the five-year anniversary of Ramsay’s arrest in 2009, and far from falling into a slump of mediocrity, it has been just the opposite for him. It turns out he never needed cocaine to be a super lawyer.Learning to Love Yourself
Ramsay is in his late-forties now, and cocaine is still as much a part of him as it was at 18, though he hasn’t used since relapsing 10 months post-arrest. His worst vice these days is the Claddagh coffee. “I’m an addict,” he told me, and while the feeling Ramsay said he loved is no longer latched to him, recovery is a life-long process.
At first, he worried about his law practice — and whether he would have a license to practice at all. He worried about the two separate notices the court required he send to clients, one for the initial arrest and the other for the 90-day suspension. He also worried that recovery would change his personality, the essence of who he was.
“Addiction is the great equalizer. Humans are humans.”
As often as Ramsay mentioned cocaine during our interview, he also mentioned the person he used to be, with or without coke — his short fuse, his belief he could control everything and everyone around him, and the recurrent thought he had that he had to be “the best” at whatever cost.
Here is Laurel Dalrymple, writing for NPR in the wake of Philip Seymour Hoffman’s death from heroin: “Addiction is the great equalizer. Humans are humans.” To a greater or lesser extent, because we are human, we all have it — the potential for megalomania, the control issues, the fear and anxiety, the possibility of becoming addicted—to something, anything—and to forget or ignore the most important thing of all: to work on being better.
Ramsay told me that this is the big secret of recovery.
Kicking drugs and alcohol is just one part of learning how to be a better person. “If you only knew,” Ramsay said, “about all the lawyers and judges and prosecutors in treatment.” You might be, in other words, more likely to come forward. There is no need to come out and declare yourself an addict or alcoholic. Make a call to your jurisdiction’s version of Lawyers Concerned for Lawyers, which does not rat on those who call for help. (Indeed, the ethics rules in Minnesota make what you say to LCL privileged; check your local rules for guidance.)
As part of learning to be a better person, Ramsay knows that he is responsible for nothing but his day-to-day effort. He is not responsible for the outcome of a case, as much as he would like to control the outcome. Call it God’s plan. Call it a higher power. Call it whatever you want, but his job as a criminal defense lawyer today is less about Chuck Ramsay as it is about the people he defends.
Perhaps a piece of objective evidence speaks louder: Ramsay was among those bestowed with the “Attorney of the Year” honor in 2011 for his work on the Source Code Defense Litigation Team, which helped coordinate a massive attack on the government’s proof regarding breath tests in thousands of DWI and implied consent cases across the state. (Aside: Only two or three clients left Ramsay after he sent the court-ordered notices; many of Ramsay’s clients understand a thing or two about addiction, which is one—perhaps the salient—reason Ramsay handles mostly DWI-defense and implied consent cases today.)
As much as any honor or award stands as an objective indicator of success, it’s a testament to the fact that Ramsay, as he works to be a better person, makes of himself a better lawyer — certainly just as good a lawyer off cocaine than he was on it.
At one time Ramsay “absolutely loved” cocaine. Now it’s about drinking Claddagh coffee and sharing his experience with addiction, running marathons and doing Crossfit, practicing law, being a father to his children, and (yes) going to recovery meetings. And life, he told me, is “absolutely amazing.”
I believe him.
A Criminal Defense Lawyer’s Trip to Rock Bottom and Back is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic.
What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.
If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.
In this article, I explain six different methods to knock down adverse authority and illustrate them with examples from the best litigators. At least one method should apply to your opponent’s cited authority. If not, you may consider settling the claims.Your Opponent’s Case Is Not Binding
Say you are before the Sixth Circuit and your opponent relies heavily on a prior Sixth Circuit opinion. Without even reading the opinion, your initial assumption would likely be that the case is binding. But you may be able to argue that the opinion does not bind your court. Here are three ways to do so.
First, you could show that your opponent’s authority conflicts with binding authority, such as a recent Supreme Court case or a newly-enacted statute or regulation.
Second, you could establish that the prior case did not actually address the precise issue in your case. In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the issue before the U.S. Supreme Court was whether a public agency’s moratorium constituted a “taking” under the Fifth Amendment. In representing the agency, Chief Justice Roberts explained why a prior Supreme Court decision did not control.
Nothing in First English, or, for that matter, Justice Brennan’s dissent in San Diego Gas & Electric, 450 U.S. 621, requires or even suggests that a temporary moratorium on development be treated as a per se taking. Indeed, notwithstanding petitioners’ repeated and profound misreading of the Court’s holding in First English, the Court never reached the merits of the takings issue, even in dictum.
. . .
Notwithstanding petitioners’ repeated attempts to convey the impression that the Court actually determined that a taking had occurred in First English, this Court specifically declined to review the merits of the takings claim. The Court expressly “reject[ed] [the] suggestion that . . . we must . . . resolve the takings claim on the merits before we can reach the remedial question.” Id. at 312-313. Leaving no question as to the scope of its holding, this Court stated: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321 (emphasis added).
By quoting the opponent’s cited case, Chief Justice Roberts left no room for doubt on whether a “taking” was at issue in that case.
Third, you could argue that your opponent relies on mere dictum, not a holding. This argument is especially effective when the dictum is from an intermediate appellate court. But it is not as persuasive when the dictum is from the highest court in the jurisdiction, unless the court’s composition has changed since the prior decision.Use a Seemingly-Adverse Case as a Sword
I love using cases that my opponent cites to support my argument. My opponent cannot then argue—and maintain credibility—that the case is logically flawed. In the next example, the defendant used plaintiff’s cited case as a sword to prove that the Copyright Act preempted the conversion claim.
Plaintiff relies on Seastrunk v. Darwell Integrated Techs., Inc., No. 3:05-CV-0531-G, 2006 U.S. Dist. LEXIS 46576, at *17-19 (N.D. Tex. July 10, 2006), which actually supports preemption here. In that case, the court concluded that the conversion claim was not preempted for the sole reason that plaintiff alleged that the defendant “withheld [plaintiff’s] software in its tangible forms.” Id. (emphasis added). That case stands for the unremarkable point that the Copyright Act does not preempt claims for conversion of tangible property (such as a compact disc), even if that tangible property contains the plaintiff’s intellectual property (such as the music on the compact disc). But in this case, Plaintiffs allege that Defendant only converted “Plaintiffs’ intangible copyright property.” Thus, Plaintiffs’ conversion claim is preempted.Point Out Any Distortions
Another great way to refute your opponent’s authority—and to undermine his or her credibility—is to point out that the attorney has misrepresented the authority. This is exactly what Chief Justice John Roberts did in his reply brief in Intergraph Corp. v. Intel Corp. He represented a subsidiary (Intergraph) and argued that its parent corporation (Intel) could not have licensed the subsidiary’s patents because the subsidiary never consented to the license. Chief Justice Roberts effectively identified the misrepresentation.
The lone Delaware case relied on by Intel, Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171 (Del. 1988), likewise supports Intergraph’s position. In that case, the court held that “in a parent and wholly-owned subsidiary context, the directors of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholders.” Id. at 1174 (emphasis supplied). In its brief, however, Intel distorts this quotation by substituting the words “parent company” for the words “directors of the subsidiary,” thereby falsely implying that it is the parent company, and not the directors of the subsidiary, that actually manages the subsidiary’s affairs. Intel Br. 24-25. The fact that Intel must deliberately distort the language of this decision highlights the futility of its position.
When pointing out a misrepresentation, attack the sin, not the sinner. In other words, resist the urge to call your opponent names. If your opponent misleads the court, it digs its own credibility grave.Flawed Reasoning
For adverse cases that are not binding, you could demonstrate that the reasoning behind the decision is flawed. You could argue that an adverse case relied on authorities that, on close examination, do not support its holding. Or you could show that the logical extension of your opponent’s cited case would create absurd results, as Judge Frank Easterbrook did in Kissinger v. Reporters Committee for Freedom of the Press. The issue was whether the lower court erred in granting a remedy without first concluding that the Freedom of Information Act was violated. In Point Made, Ross Guberman sets forth Judge Easterbrook’s argument (key language is italicized):
The remarkable thing about the district court’s opinion (which was adopted by the court of appeals) is that it awarded extraordinary equitable relief under the FOIA without ever finding that a violation of the FOIA had occurred. The court apparently found that the Federal Records Acts of 1950 . . . had been violated by an improper removal of the notes. It then invoked its equitable jurisdiction under the FOIA to restore the notes to the agency for disclosure under FOIA. This holding necessarily means that anyone can sue an agency and compel it to retrieve records removed in violation of the agency’s records-management rules; it supplies, in effect if not in design, a private right of action to enforce the Records Act. This holding cannot be reconciled with the fact that . . . the Federal Records Act . . . [does not] create a private remedy to enforce agency record-keeping obligations.
Although Judge Easterbrook was referring to the flawed reasoning of the lower court, the same principles apply to attack adverse cases.
But do not waste time or space discussing the flawed reasoning of a binding case. Even if your trial court wants to agree with you, it cannot disregard the binding authority; don’t ask a court to do something it cannot do.Almost Everybody Agrees with Us
Many people prefer to follow the crowd. So, too, with judges. (They are people, after all.) Thus, if you spend time researching, you might find that the majority of courts agree with your, not your opponent’s, position. This method of refuting adverse authority is highly persuasive when binding authority is lacking. Here is an example from Justice Elena Kagan when she was the Solicitor General:
In contrast, the majority of the courts of appeals that have considered the question have held, in accord with the court of appeals in this case, that the statutory maximum penalty in a drug conspiracy case turns on the jury’s determination of the type and quantity of drugs involved in the conspiracy as a whole. See United States v. Seymour, 519 F.3d 700, 709-710 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008); United States v. Stiger, 413 F.3d 1185, 1192-1193 (10th Cir.), cert. denied, 546 U.S. 1049 (2005); United States v. Phillips, 349 F.3d 138, 140-143 (3d Cir. 2003), vacated on other grounds by Barbour v. United States, 543 U.S. 1102 (2005); United States v. Knight, 342 F.3d 697, 709-712 (7th Cir. 2003), cert. denied, 540 U.S. 1227 (2004); United States v. Turner, 319 F.3d 716, 721-723 (5th Cir.), cert. denied, 538 U.S. 1017 (2003); Derman, 298 F.3d at 42-43.
In just one sentence, Justice Kagan explained that the “crowd” agreed with the government’s position. But her citations would have been more persuasive had she included parentheticals showing how the cited cases support the proposition.Different Facts = Different Outcome
Sometimes your opponent’s best authority is a binding case. The go-to method in this situation is to distinguish the adverse case. Although distinguishing adverse authority is commonly used, attorneys often do it ineffectively. Attorneys usually state that the adverse cases are “distinguishable” and then list the facts and holding of each case without explaining why the cases are distinguishable, losing the judge in the details. And judges don’t like to be lost.
In the following example, the former Solicitor General, Paul Clement, dismantles his opponent’s leading case. In Equifax Information Services, LLC v. Soutter, the district court certified the class and one issue for the Fourth Circuit was whether the alleged inaccuracies in about 300,000 credit reports presented common or individualized issues of fact.
The district court failed to understand the individualized nature of the inaccuracy question before it because the court viewed this case as a close cousin of the FCRA class this Court approved in Stillmock v. Weis Markets, Inc., 385 Fed. App’x 267 (4th Cir. 2010). J.A. 712–13. But this case is nothing like Stillmock. There was only one “question” in that case, and it could generate a common answer for all class members: whether the defendant’s “repeated identical conduct” (printing receipts showing the consumer’s entire credit card number in violation of the FCRA) was willful. Stillmock, 385 Fed. App’x at 273. . . . Each consumer [in Stillmock] had been exposed to an “identical risk” as a result of uniform conduct. Id. at 273. The court could answer the question of willfulness once, on a classwide basis, because each class member had experienced the same violation based on the same conduct under the same circumstances. Under these unusual circumstances, this Court not surprisingly viewed it as a relatively simple process to resolve the FCRA claims on a classwide basis. See id. at 272–75. But the FCRA claims at issue here are entirely different. Hundreds of thousands of individual inaccuracy determinations cannot be equated with a single, unitary willfulness determination.
Mr. Clement discussed only the relevant details about the adverse case and specifically identified why the case did not apply. As a result, the judges could easily grasp the key distinguishing fact between the two situations.Concluding Thoughts
You have just learned six methods to refute adverse authority. Many times, just one method is sufficient. But for your opponent’s best authority, you should attack it with more than one method. For instance, you could demonstrate that a case is not only distinguishable but also not binding on your issue. And the best place to refute your opponent’s best authority is in your initial motion or brief. (Don’t take my word; ask Justice Antonin Scalia and Judge Richard Posner.) By affirmatively addressing the adverse authority, you can present it in a light most favorable to your client without sounding defensive.
The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
If you do not encrypt your files, do you lose sleep worrying about losing a laptop full of client data? If not, you should. The data on most laptops is worth more than the hardware. A lawyer’s laptop is a treasure trove for an identity thief.
All a thief has to do is plug your hard drive into their own computer to get access to all the important data. Here’s how that works:
Here’s the thing: encrypting your client files is easy. It is easier than setting up your email software. It is easier than creating a pleading caption in Word. It is easier than backing up your files. It is easier than most of the five things I wish you would learn about computers. It is easy enough that you should already have done it. If you have not, though, here is how:
Turning on encryption — including downloading TrueCrypt, if you select that option — should take about a minute. Your computer will take longer to actually encrypt your data, but you can use your computer while it’s finishing up. And once your files are encrypted, you really don’t have to think about it anymore. Your computer will encrypt and decrypt on the fly. You can still open, edit, email, and print files as you always have. But you will have the peace of mind that comes with knowing your client files are a lot safer.
So now that you’ve got no excuse, get to it. Even busy lawyers can find a minute or two to drastically increase client file security.
This was originally published on March 31, 2011. It was revised and the video was added on February 11, 2014.
Encryption: Enabling Basic Client File Security is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Tracking your time rather than reconstructing it at the end of the month turns out to be really important. As in, not-overbilling-your-clients-by-23% important. Whether or not you share your time records with your clients in real time, you do need to keep a time log.
Hopefully that is a no-brainer for everyone who reads this post, but I doubt it. I have known plenty of lawyers who reconstruct time at the end of every month — or every couple of months — from their calendar, emails, and memory. Even if you only put together your bill at the end of the month, you need to track your time as you go. These are the major tools for doing that.
However you decide to track your time, pick a method and stick to it. When you sit down to assemble your invoices, the fewer places you have to go to get the raw data, the better. The more methods you use to track your time, the more mistakes you will make.Paper
There is nothing wrong with paper. In fact, paper has a lot of advantages when it comes to tracking time. Just keep a cheap notebook or a stack of index cards with you at all times, and write down what you were doing and how much time you spend doing it.
(There are all kinds of print-your-own templates and fancy timekeeping notepads out there, if you want to get fancy, but you don’t need them.)Spreadsheet
Spreadsheets are pretty ideal for timekeeping, and with Google Docs, iWork, and Office cloud apps, they are quite portable. In fact, with Google Docs, you can even have multiple people billing time on the same spreadsheet at the same time.Text File
Text files can work really well for timekeeping, actually.
In Notepad (Windows), you can enter a timestamp by pressing F5 (this does not work in other apps). Do this every time you change tasks, add a few notes, and you will have a running time log. If you put your text file time log in Dropbox, you can access it from your phone and tablet, making your time log portable.
If you use AutoHotKey (Windows) or TextExpander (Mac), you can add timestamps in other apps (the F5 shortcut only works in Notepad on Windows), and set up shortcuts for your frequently-billed tasks. Text files are not fancy, but they make for quick and easy time records.
(If you want to get really fancy, use an app like Drafts to automatically append your notes with a timestamp to a timesheet.txt file in your Dropbox.)Passive Tracking Software
Timekeeping is tedious. There are ways to take shortcuts and bill more accurately, though. Chrometa, for example, tracks what you are doing on your computer and phone (you can also add time manually) and assemble time sheets or export your time to FreshBooks, QuickBooks, Clio, Xero, and Basecamp. I’ve tried Chrometa before, and it really is easy to use.
TimeSnapper is a similar idea, but it also takes screenshots of your computer screen to help you see what you were doing.Timekeeping Software
There are plenty of software packages that include a timekeeping component. I have mostly used Freshbooks, but all practice management software has timekeeping functions, and so do many accounting packages. The nice thing about tracking time this way is that your invoices are basically assembled as you go.
So there are plenty of ways to track your time, but there is only one criteria for picking one: pick the one you actually use. The tool is basically irrelevant; the important part is capturing your time accurately as you go.
Featured image: “Old stopwatch closeup with selective focus” from Shutterstock.
Ask someone how much they worked last week, and they will probably overestimate the number by 5–10%, according to a study published by the Bureau of Labor Statistics. And the more someone thinks they worked, the greater their overestimate is likely to be, says the Economix blog at the New York Times.
Humans (well, American humans, at least) have really inaccurate memories when it comes to the time they spend working, in other words.
Lawyers are even worse when it comes to remembering billable time. Viewabill, a service that allows clients to see what their lawyers bill in real time, says that waiting until the end of the month to record your time means adding 23% to the bill.Delayed Billing Adds Inaccuracy — And Cost
That number comes from Viewabill’s aggregated data. By comparing timely entries to delayed entries, co-founder David Schottenstein estimates firms that keep time regularly are saving their clients as much as 23%:
Viewabill thinks its software changes behavior through transparency, because clients can see the time as it is entered. If you know your clients can see what you bill in real-time, you are less likely to record all your time at the end of the month. (Again, Viewabill’s aggregated data bears this out.) Schottenstein says Viewabill is like an empty police car next to the freeway. Even if clients don’t check in very often, they could — and they can see when time was recorded no matter when they check in. This strongly encourages lawyers, to change their behavior.
You don’t need Viewabill to ensure your timekeeping is accurate, of course. But you do need to record your time as you work. The more frequently you record your time, the more accurate it will be. If you wait until the end of the month and then reconstruct your time, you are probably overcharging your clients.“Capture More Time!”
Many timekeeping products claim to help lawyers “capture more time.” Time Matters, for example, cites “[c]aptur[ing] billable hours and client expenses while you work to prevent revenue leakage” among its benefits. Rocket Matter says you can “Forget about losing track of precious billable time or expenses.” Amicus Attorney says it will help you “capture more billable time.” You can see similar claims from most practice management and timekeeping-and-billing software.
The idea is that, by making it easier to record your time, you will record it more frequently, so that you are less likely to miss things. This makes perfect sense, and it does turn out to be true, according to Schottenstein.
If you bill more frequently, you are likely to capture time you would miss if you tried to reconstruct your time at the end of the month. But, he says, your bills will still go down. That’s because you probably aren’t missing 23% of your bill. The time you overestimate you spent is almost certainly greater than any missed time you might catch with more-frequent timekeeping.Teaching Old Lawyers New (Timekeeping) Tricks
Whatever the benefits of real-time timekeeping, some firms really don’t want to do it. Or at least some influential partners at those firms don’t want to. Faced with clients who wanted them to use Viewabill, two large firms (one a prominent employment law firm based in San Francisco, another a large employment law firm in DC and Cleveland) mounted a spirited defense that included spreading a bunch of uninformed FUD about the cloud.
Why? Well, assuming the lawyers at those firms aren’t trying to pad their bills by 23%, the most-likely reason is that, as one firm admitted to Schottenstein, 80% of its billers do not put in their time until the last two days of the month. Apparently, they are willing to fight for their right not to change. You can’t always teach old partners new tricks, even if it means overcharging clients.
But clients are not yet insisting on real-time timekeeping and transparency. They probably will, eventually, no matter how hard the holdouts try to convince them not to. Eventually, those firms will be forced to accept greater billing transparency, and those partners will have to change. If that 23% figure is anywhere close to right, corporate clients will not stand for end-of-the-month billing for long. Sooner or later, they will make real-time billing a condition of representation.How About Alternative Fees?
If waiting until the end of the month to record time means you will be overbilling your clients, then you probably ought to stop it, and start billing in real time.
A partial solution might also be to stop using time to measure the cost of representation — at least when you don’t need to. If you quote flat fees or use subscriptions, unbundled services, or alternative fee arrangements, you can stop tracking time altogether. No timekeeping, no padding (inadvertent or otherwise).
Except sometimes hourly billing really is best, so don’t give it up entirely. Just use other options when they make more sense.
And when you do bill by the hour, consider doing it in real time. Don’t wait for your clients (or ethics boards) to find this article and start asking questions.
— Viewabill (@Viewabill) February 10, 2014
— Viewabill (@Viewabill) February 10, 2014
Featured image: “Businessman and earning balance concept” from Shutterstock.
Find Out How Much You Are Overbilling Your Clients is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Like its Dropbox integration, you can associate Box folders with your matters and navigate your client files from within Rocket Matter, making the integration fairly seamless. You can also associate billable time with anything in your Box folders. This is consistent with Rocket Matter’s general user experience, which is focused on letting you add time entries from anything you are working on at the moment, facilitating real-time billing.
Here’s how to set up the integration.
Box is more business-focused than Dropbox, which makes it a great choice for growing firms. Dropbox is a great, simple file sync product, but if you have more-complicated needs, then Box might be a better fit.
Here are the cloud storage integrations offered by the “big three” cloud-based practice management software providers:
Clio: Box, Dropbox, Google Drive, and NetDocuments.
Rocket Matter: Box, Dropbox, and, interestingly, Evernote.
MyCase: As far as I can tell, none.
Rocket Matter Adds Box Integration is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I met Jason LaRivière, Clio’s new creative director, right before Clio unveiled its beautiful iOS app last year. I was impressed. Legal software is not generally known for being great-looking, but bringing LaRivière on board showed Clio was serious about changing that unfortunate-but-accurate trend. The iOS app suggested a redesigned Clio could not be far behind, and today, Clio launched it.
Here is LaRivière, talking about the changes:
If you log into Clio right now, you can see the new design, and it is impressive. The old design was … fine. It got the job done. But done well, design is more than just window dressing. Consistent behavior throughout an app makes it easier to use. Better typography makes it easier to comprehend what you are seeing on the screen. Better layout makes it easier to get the information you need at a glance.
The new Clio design uses color typography, color blocks, white space, and fewer borders to separate elements. There are fewer obstacles that stop your eye, and more subtle cues to what is important on the page you are viewing. Clio has a detailed walkthrough of the changes to the design and UI, but here is a look at the list of matters, which shows the new design well:
There is still some work to be done. The calendar, for example, has not changed that I can see. The matter profiles look pretty much the same, as well, with the old, cartoon-y icons. But I imagine Clio users will see frequent changes over the coming months, until the new design permeates the user interface.
According to its press release, this is just the beginning. Along with the redesign came under-the-hood changes that provide the groundwork for future upgrades. Clio promises efficiency-enhancing upgrades throughout 2014.Tasks No Longer Require Due Dates
I don’t know when Clio made this change, but while exploring the new design, I noticed that due dates are now optional for tasks. This is a feature I’ve been saying Clio needs for a long time, so I was pleased to see it. It makes Clio much more friendly to GTD practitioners.Trivia for Font Geeks
Both Clio and its new signature font, Gibson, are Canadian.
Clio Unveils a Beautiful New UI Design is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Out of over 50 nominations, we have narrowed the field down to the ten best. There were many good nominations, but the top ten are some really excellent, responsive websites.
Responsive web design turned out to play a big factor in getting to the top ten. A responsive website should look good on any screen, from a big desktop display to a smartwatch. Law websites still have a way to go on this, though. Many great-looking nominations — including some websites built in the last year — wound up in the discard pile because they are not responsive.
Apart from responsiveness, however, I will not explain the criteria I used to pick these ten websites. Great website design is in the eye of the beholder, and it is up to you to take a look and decide which you like best, according to whatever criteria is meaningful to you. Cast your vote at the bottom of the post. Lobby for your favorites in the comments, or tell us why we’ve done a horrible job coming up with this year’s top ten.
Without further ado, the top ten …
Best Law Firm Websites, 2014 Edition is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
This ad aired locally in Georgia during an entire two-minute commercial break. It has everything. Walls of flame. Sledgehammers. Heavy metal soundtrack.
This Lawyer’s Epic Super Bowl Ad Will Blow You Away is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Of the many changes in the legal profession in recent years, perhaps the most seismic shift has concerned our relationships with our clients. Clients no longer face limited options when choosing an attorney. Any client seeking legal representation these days can turn to Google, which gives them a staggering number of options. Lawyers are so numerous these days that clients can afford to be selective – and when you consider the number of law students and recent graduates, it’s clear that trend will only intensify in the near future.
As a result, the legal profession has experienced a commoditization of sorts. Legal services are now viewed by many clients as the same as other services, and they tend to approach finding representation just as they would looking for a good realtor. If that sounds far-fetched, contrast the expectations between visiting a doctor and visiting a lawyer. When visiting a physician, the patient is at the mercy of the doctor’s schedule and generally accepts the inevitability of delayed appointments. That’s not at all the case with law firms. Today’s clients feel empowered to express more autonomy and expect higher standards of service, and many will change attorneys at the first feeling of dissatisfaction. This naturally has driven an increase in competition between firms, who must now find new ways to differentiate themselves in a very crowded marketplace.
Yet the solution for distinguishing oneself as an attorney does not have to be complicated. It is, in fact, quite simple: a new direction that can help firms rise above the competition while improving the legal profession overall. Stellar customer service.
By exemplifying the best of client service, firms can accelerate their market visibility, please their clients, and drive referrals and repeat business. If you think that sounds too simple, remember this: poor client-attorney communication and substandard service are problems that have dogged the profession for decades.
Consider the following ways most law practices can improve their service, thereby accelerating their businesses as well.Courtesy
No doubt every law firm believes they offer courteous service, but many clients would disagree. Consider how many lawyers share this experience: a client calls to find out her next court date but you’re tied up in court and can’t take her call. From there, perhaps you head to a deposition, then another meeting, with the result being that the client doesn’t receive a return call or answer until the following day.
Then there’s the matter of answering calls from prospective clients. Many clients make a list of lawyers they found on Google and begin dialing numbers until they speak with a live human — and that person becomes their attorney. Busy lawyers without support staff will innocently lose out on significant business, thanks to simply being busy and possibly understaffed.
There are basic standards of good customer service that time and again, harried attorneys fail to meet. You can leave your clients waiting in a reception area while you finish a call or you can greet them on time and offer them a beverage. It’s a small difference, but it tells new clients that they are valued and respected from the start. Think of it from your perspective; what kind of treatment would you like to receive upon walking into a restaurant, car dealership or Apple store? No doubt you’d like to receive exceptional attention that tells you the business genuinely cares about your satisfaction. Offer excellent customer service and your clients will know they are in the hands of world-class experts — security that is especially appealing to people who are confused and anxious over their legal case.Communication
It used to be that attorney-client communication involved significant work, from multiple phone calls to mailing cumbersome documents. Even communicating something as simple as a new court date meant typing up a letter, printing and signing it, then getting it in the mail and verifying its receipt. In fact, these communication and administrative tasks have traditionally been so time-consuming that attorneys have often been forced to hire paralegals to handle it or reduce their caseloads while managing it themselves. Even when the communication using these antiquated methods was effective, it still posed a burden on law practices.
The good news is that today’s attorneys have technology to communicate swiftly and securely. Where many fall short nowadays, though, is in making the effort to communicate enough. Set aside a dedicated hour to make phone calls, instead of returning calls while driving from a meeting to the office, so clients have your full attention. Remember that their case might be their first experience with the legal system, so taking the time to explain basic processes and terms in order for them to understand every step of their case trajectory can go a long way. Clients may not even know enough to ask the right questions, which means that overcommunicating is always a smart idea. The amount of interaction will vary from case to case and by type of law, but the general rule of thumb is to make sure your clients feel informed and supported at all times. This isn’t just part of the rules of professional responsibility, it’s the baseline of a client-friendly practice.Transparency
This goes hand-in-hand with communication. A client who has put his legal matters in your hands is entrusting you with more than just a piece of business; this may well be a life-altering financial and lifestyle matter for him. To honor that trust, you must provide full transparency as a matter of course. Too many attorneys assume their clients only want to know major developments and omit details that their clients care about. By making all case developments available, the client has the power to choose whatever level of awareness he desires.
Ultimately it helps to think of your client as a collaborative partner who can assist you in achieving the best possible outcome in the case. Just as you would like your client to provide as much helpful information as possible for you, your client deserves visibility into all ongoing developments and decisions. Again, think of this partnership in terms of visiting your physician. Just as you’ll provide your doctor with detailed descriptions of your symptoms, you’ll probably be anxious to hear a test result or diagnosis as soon as possible. Provide that same transparency to your client.Engagement
Before software systems made case statuses available in the cloud, many clients wanted to hear from their lawyers every day, whether or not there was vital information to communicate. Simply hearing their attorney’s voice reassured them that they hadn’t been forgotten and were receiving dedicated legal service. Today’s software platforms make a new version of that possible; clients can log in to view their case developments around the clock.
But while that’s undeniably a positive thing, clients still want personal attention. Letting them know of their next court date is good, but reaching out to truly connect with them is exceptional. Be attentive and available, and you’ll build a client-attorney relationship that extends beyond this immediate case to their future legal needs. Again, remember that what may be viewed as business as usual to you can be a highly emotional and major life event for a client. By truly engaging with each person, you’ll earn trust as well as glowing referrals.Setting Expectations
Even promising attorney-client relationships can go awry because of mismatched expectations. Let’s face it: we live in a world where Hollywood courtroom dramas and crime shows have created skewed ideas about everything from trial outcomes to DNA testing to settlements. A client inexperienced in the legal system will need you to set realistic expectations. That means not creating a sense of false hope when defending someone in court and explaining legal policies that may surprise a client.
Your relationships will also benefit by taking into account the differences between clients. When representing an organization that regularly uses lawyers, you’ll often find it has defined strategy policies on working with outside counsel. Everyday clients, on the other hand, will often require more education and hand-holding if they’ve never hired a lawyer. Remember that these clients often lack foresight into the processes and strategic decisions that can arise in a case; preparing them in advance can give them time to brace for all outcomes.Conflict Resolution
Clients today are much more likely to insist on having a say in their case decisions and direction. While this is understandable, good communication will go far in avoiding most disputes. Establish case objectives up front and thoroughly analyze the case before agreeing to pursue it. If you disagree on taking a case to trial, make the cost benefit of an early case resolution clear to your client, compared to the expense of a long trial and appeal. Always explain your reasoning when formulating a strategy and be sure the client understands the rationale for your decisions.
Ultimately you will benefit from drawing clear lines on authority. By identifying who is responsible for what, you’ll be able to avoid a significant number of attorney-client disputes. Generally speaking, attorneys have implied authority over legal and tactical matters, while the client has the right to make strategic decisions on factors such as expenses or calling witnesses. Rule 1.2 provides firm guidelines on who has the right to decide to settle cases, enter pleas, call witnesses, testify, and waive jury trials; communicate authority to your client and the beginning and there will be fewer surprises and disagreements.The Latest Technology
One of the most advantageous recent developments in the legal field is availability of practice management software. With the right platform, attorneys can offer their clients a full-service digital resource that lets them pay bills, view their accounts, answer questions on court dates and case developments, and review documentation — all at their convenience. Secure emails can be sent, tracked and received from mobile devices and stored for future consultation; clients can also receive notifications to stay on top of important alerts and appointments.
This is especially appealing in our fast-paced world. Clients with unpredictable schedules will appreciate the round-the-clock availability of their case information; in our digital age, most people expect the convenience of online payments and accounting. Offering a tech-friendly practice suggests to clients that you have your finger on the pulse of our times and are likely to be on top of intelligent legal strategies as well.
While winning cases will indeed help build a positive reputation, providing stellar customer service is just as important in building a successful practice. Combine the best of legal representation with excellent personal service and you’ll make a name in your market as one of the most popular — and well-respected — attorneys in town.
Featured image: “Waiter holding empty silver tray over gray background” from Shutterstock.
I really love Freshbooks for timekeeping and billing. There is no better option for solos and very small firms. But in 2012, Freshbooks changed its tagline to “cloud accounting.” Here’s the announcement, from Freshbooks founder, Mike McDerment:
So here’s the news: from this day forward, FreshBooks is Cloud Accounting. We’re not changing our name, we’re just changing the way we describe our services.
In fact, Freshbooks hadn’t changed anything about the software when McDerment made that announcement. Changes have come trickling out, though. One of the first “accounting features” introduced after the name change was the ability to create a balance sheet — by entering the numbers yourself. At first, I thought it was a joke. It wasn’t. The feature is still present in Freshbooks, and it has not changed.
A balance sheet is not something you can sketch on a cocktail napkin. Real accounting software generates a balance sheet using real numbers generated from your accounts. It’s not something you just make up yourself and then hand over to your accountant for tax preparation.
Then, Freshbooks announced the ability to import expenses from your bank accounts. That’s right, just expenses. And the data you get for your checks, for example, is not particularly useful. You don’t even get a check number to help you identify the check in question.
Further, Freshbooks ignores your deposits. I guess it assumes that the only deposits will be payments on the invoices you send through Freshbooks. If you do happen to have deposits that are not tied to an invoice, you have to enter them manually.
Speaking of payments, because Freshbooks does not match them up with your bank accounts, you do not get all the information you need. If you accept credit cards or use PayPal for processing payments, for example, you will pay a fee on every transaction. But Freshbooks does not account for those fees, so your profit and loss report will overstate your income by the amount of those fees. In other words, if the invoice is for $100, and someone pays with a credit card, there will be a fee of, say, $3. Freshbooks will show a deposit of $97, which leaves a $3 expense unaccounted-for.
But perhaps the most glaring omission is any sort of bank account register, which means there is no way to reconcile your accounts. This is a pretty fundamental omission. If you cannot even reconcile your accounts, you are not doing accounting.
Look, Freshbooks is fantastic timekeeping and billing software. If you are a solo or a very-small firm, there is nothing better. (Although if you want good timekeeping and billing bundled with practice management software, use one of our recommendations.)
But in advertising itself as “cloud accounting,” Freshbooks is misleading, at best. Freshbooks is excellent billing software with a few inadequate accounting features grafted on. It is not accounting software. It is woefully unsuitable for accounting.
(I did reach out to Freshbooks with my concerns, but I never received the promised response.)
Freshbooks is Awesome, but Not For Accounting is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Do you write fiction? We like to read fiction. We would, in fact, like to read your fiction.Submission Guidelines
Entries must be original works of fiction of no more than 5,000 words that feature a lawyer as a prominent character. Entries must be submitted by email to email@example.com no later than May 1, 2014.
The top entries will be posted on Lawyerist. The top 3 entries will receive cash awards of $150 for first place, $100 for second place, and $50 for third place. The top entries will also be published on Lawyerist.com.
By submitting a work for consideration, you grant Lawyerist Media, LLC, a perpetual, irrevocable, non-exclusive license to publish the work in any format, print or digital.
Contest entries will be judged by an independent panel selected by the editor of Lawyerist.com. The winner will be announced on June 1, 2014.Questions?
We’re new to this whole fiction-contest thing, so if we didn’t give you all the information you need, please ask in the comments.
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Lawyerist’s Inaugural Short Fiction Contest is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
When I was in law school, one of my criminal law professors pointed out that most of landmark constitutional criminal procedure cases involved bad people who did bad things, but some key component of the procedural protections required got omitted or went awry. In other words, we owe many of our major freedoms to bad people and the police or prosecutors or judges who mismanaged their trip through the criminal justice system. Sometimes, cases start out about one thing and end up about something else — something momentous and unexpected —entirely. That’s what happened in GlaxoSmithKline v. Abbott Laboratories, a case winding its way through the Ninth Circuit.
About six months ago, I first wrote about GKS v. Abbott Labs, which started as a bog-standard fight between two enormous pharmaceutical companies over licensing and fees for an HIV drug. It accidentally devolved into a sexual orientation equal protection case when an attorney for Abbott used a peremptory challenge to strike a gay man from the jury pool. GSK raised a Batson challenge, which the district court denied with what I noted at the time was maximum flailing.
A four-week trial ensued and resulted in a complicated holding that we don’t care about even a little bit right now. Everyone appealed everything, because that is what you do when millions of dollars are at stake. On appeal, the Ninth Circuit asked both sides to brief the issue of whether the Supreme Court’s decision in the DOMA case, United States v. Windsor, compelled a decision that equal protection prohibited discrimination based on sexual orientation during jury selection. In a perfect pileup of unintended consequences, the Ninth Circuit has now held that Windsor — in which the Supreme Court went out of its way to refuse to address whether heightened scrutiny applied — prohibits discrimination based on sexual orientation in jury selection. All this because one enormous company got mad at another enormous company over trade practices.
I like to imagine what it must be like for the poor business litigation guys stuck with this case. You’re the attorney for Abbott, and you indulge a passing whim and try to toss a juror because you’re afraid his being gay might pose a problem for your HIV drug. Were you likely operating from some nefarious anti-gay bias? Probably not. Were you intending to get your client embroiled in multi-year (the case went to trial back in February 2011) landmark litigation over the equal rights of gays and lesbians? Definitely not.
There’s no doubt the poor soul from GSK feels the same way. What started as a Hail Mary Batson challenge turned into the hill you chose to die on, lawsuit-wise. However, GSK definitely came out on top in this tortured procedural mess, the kind of case that you make law students brief so they can trace the path of motions and cross motions and supplementary briefings and amicus filings and on and on and on. Because Abbott’s strike of the juror was discrimnatory and because the trial judge upheld it, GSK gets a new trial — a chance to relive the halcyon days of February 2011 all over again. Except, of course, that Abbott has now filed a request for an extension to file a request for a rehearing en banc, which GSK, of course, opposes. And around we go again.
Meanwhile, the Ninth Circuit went from hearing a routine-if-very-expensive bit of business-on-business fighting to needing to make a landmark human rights decision. Maybe the court doesn’t even want to, but then the Windsor case gets decided while all this mess is pending, and now the Ninth Circuit is stuck trying to figure out what the Supremes meant in a case where the Supremes were very cautious not to say much of anything. I mean, it wasn’t Bush v. Gore, carrying an explicit (and laughable, and unfollowed) prohibition against applying that case to anything else ever again, but it was close. Oh, and the Ninth Circuit was not shy about pointing that out:
Windsor, of course, did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case, but an express declaration is not necessary. [...] Just as Lawrence [v. Kansas] omitted any explicit declaration of its level of scrutiny with respect to due process claims regarding sexual orientation, so does Windsor fail to declare what level of scrutiny it applies with respect to such equal protection claims. Nevertheless, we have been told how to resolve the question. Witt, 527 F.3d at 816. When the Supreme Court has refrained from identifying its method of analysis, we have analyzed the Supreme Court precedent “by considering what the Court actually did, rather than by dissecting isolated pieces of text.”
Was there the slightest hint of an acerbic tone there, or am I projecting?
Once the Ninth Circuit decided heightened scrutiny was necessary, there was really never going to be any doubt about how this would come out. If you can strike people based on sexual orientation, the court reasoned, you have three harms. First, you may prejudice a party in the trial. Next, you send the message to the struck individual and everyone else that the judicial system treats gays and lesbians differently and that by virtue of being gay, some people can’t be trusted to reason fairly. Finally, you deprive gays and lesbians from fully participating in democracy and helping the wheels of justice go round and round.
I head-nodded my way through the whole opinion with happiness, because there is no question that it is a significant victory for gay rights, as the Ninth Circuit in no way limited its overall assessment of the appropriate level of scrutiny to the jury context alone. That said, my concerns remain. How do you decide a juror is gay enough that his or her rights need to be protected in this context? Does someone have to explicitly come out by referring to their same-sex partner (which was the case here), or will some other information suffice?
You are probably not surprised to learn that the Ninth Circuit punted on this part of the problem and will leave it to lower courts — the ones actually stuck dealing with juries — to figure out how on earth to ensure gay and lesbian jurors are not unfairly struck from a jury while not accidentally requiring those same jurors to out themselves. The Ninth Circuit basically said “well, California does it already at the state level and courts already have procedures to protect juror privacy.” Okay then. Glad that’s cleared up.
I’m not being entirely fair. The court did note that a Batson challenge cannot come into play unless a juror’s sexual orientation is first established voluntarily and on the record. That solves part of the problem, in that you know you can’t raise a Batson challenge unless the struck juror is obviously and voluntarily out. Great. But how do you solve the flip side of that, which is that it still ends up being OK to strike a juror who just seems really gay as long as he or she doesn’t come out? That can’t be what the court intends, and yet I can’t see a way around the dilemma that doesn’t involve interrogating jurors about their sexual preferences.
The Ninth Circuit was able to sidestep the issue here since the juror in question referred to his same-sex partner voluntarily, but things might not be so easy for the next trial court — or trial attorney — when this issue arises.
I’m not suggesting the court should have done something differently, but we are all kidding ourselves if we think this settles the matter. And let’s not even get into what happens if this goes all the way up to the Supreme Court on the scrutiny issue. I could be writing about this case forever.
Featured image: “Side view of a empty jury box in the courthouse” from Shutterstock.
Gay Jurors and the Law of Unintended Consequences is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.
Just what is “argle-bargle,” and why would any appellate justice—much less one of Justice Scalia’s stature—use such a phrase in a momentous judicial opinion?
U.S. Supreme Court Justice Antonin Scalia’s dissent in United States v. Windsor, the case striking down the Defense of Marriage Act and upholding same-sex marriage, probably did not come as much of a surprise to legal observers. But what did cause some head-scratching was his choice of words:
As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages.1
Argle-bargle? One of the most closely watched cases in recent court history suddenly set the blogosphere abuzz, and part of the reason was Justice Scalia’s choice of words. Just what is “argle-bargle,” and why would any appellate justice—much less one of Justice Scalia’s stature—use such a phrase in a momentous judicial opinion?
While scholars agree that we have the Scots to thank for “argle-bargle,” there is some disagreement on when it was first used. “Argle,” a play on the word “argue,” dates back to 16th-century Scotland, while the rhyming reduplication that gives us the phrase “argle-bargle” (think “hokey-pokey,” “namby-pamby,” or “mumbo-jumbo”) came along later. One scholar points to an 1808 appearance in John Jamieson’s Etymological Dictionary of the Scottish Language, while another pinpoints a slight variation in a 1720 poem by Scottish poet Allan Ramsay, who wrote of how it would be foolish to “aurgle-bargain with our fate.” Yet another source—Merriam-Webster, no less—pinpoints the first known usage of this phrase in 1872, while an 1869 reference in Fraser’s Magazine for Town and Country predates this with a discussion of how the Scots are predisposed “to dispute every statement,” a “tendency to what in Scotland is named argle-bargling.”
Its meaning, along with that of the more common British variation “argy-bargy,” is equivalent to contentiousness or bickering. But viewed in the context of Scalia’s dissent, did he really mean to use a phrase that refers to being argumentative or contentious, or was he searching for a term that is more the equivalent of legalistic nonsense? Regardless of Scalia’s intent, this use may have been a first time for “argle-bargle” in a Supreme Court opinion. But the real trailblazer in using it in judicial opinions was the late Judge Edward O. Weant Jr. of Maryland’s Court of Special Appeals. In 1979, Judge Weant began his decision in a family law case by observing that “The basis for this argle-bargle was laid with the filing of a decree of divorce ….”2 Later, in a 1985 personal injury case, Judge Weant turned to this phrase again, beginning his opinion with “this argle-bargle was precipitated by these facts ….”3 And even after Judge Weant’s retirement, the Court of Special Appeals still had a virtual monopoly on the phrase “argle-bargle,” using it in yet another case,4 this time a parking space dispute between members of a homeowners association.
Could it be that Justice Scalia owes his witty Scottish turn of phrase to neither familiarity with old Scottish dictionaries or with Maryland appellate rulings, but to a secret obsession with The Simpsons?
But while the Maryland Court of Special Appeals may have had the only appellate justices to incorporate “argle-bargle” into an opinion before Scalia, they were not the only ones to use it in a legal context. The 271 Patent Blog posted an article about a piece of intellectual property legislation with the title “Patent Reform Act of 2007: Argle-Bargle or Foofaraw?” Clearly, the author is an astute fan of the beloved animated TV show The Simpsons. In its fourth season, the episode “Last Exit to Springfield” poked fun at pseudo-intellectual talk shows by portraying its Smartline TV discussion hosted by anchor Kent Brockman and featuring Homer Simpson, Mr. Burns, and Dr. Joyce Brothers, who debate whether the labor strike at the Springfield Nuclear Power Plant was an “argle-bargle or a foofaraw.”5 Could it be that Justice Scalia owes his witty Scottish turn of phrase to neither familiarity with old Scottish dictionaries or with Maryland appellate rulings, but to a secret obsession with The Simpsons? If the word “foofaraw” finds its way into a Scalia opinion, that may very well settle the question.
And maybe Justice Scalia is making “argle-bargle” fashionable again. Not long after the court’s opinion in Windsor, the U.S. Court of International Trade borrowed the Scottish term in an opinion dealing with a Chinese exporter’s dumping of innerspring units on the U.S. market. It stated, “The first determination as to whether this argument has merit, or is merely argle-bargle, is a determination entrusted by Congress to the Department of Commerce, and the Court will refrain from considering it.”6 The “argle-bargle” bandwagon has even reached Texas. A recent Court of Criminal Appeals decision held that a murder defendant suffered actual harm from the trial court’s confusingly worded jury instructions on provocation and self-defense. In Reeves v. State, Judge Cathy Cochrane took exception with most of the instructions, calling them “a six-page impenetrable forest of legal argle-bargle that attempts to instruct the jury on the law of self-defense.”7
Still, while “argle-bargle” sightings may be rare, use of rhyming reduplication terms has popped up in plenty of judicial opinions, usually in a pejorative sense as judges bemoan the legalistic nonsense flowing from one or both sides. For example, a casual perusal of the online legal research service Westlaw reveals that “mumbo jumbo” appears at least 251 times in judicial opinions.8 “Jibber-jabber” shows up just seven times (although surprisingly used by parties, rather than in statements from the court), while the more prosaic “gobbledygook” has 126 hits in the legal database.9 Believed to have been coined in 1944 by U.S. Rep. Maury Maverick of Texas, “gobbledygook” has been used by everyone from political figures referring to bureaucratic doublespeak (for example, President Ronald Reagan’s stinging 1985 indictment of tax law revisions as “cluttered with gobbledygook and loopholes designed for those with the power and influence to have high-priced legal and tax advisers”) to judges decrying the indecipherable arguments and pleadings of the lawyers practicing before them.
“No more flimflam, higgledy-piggledy, harum-scarum expert witnesses”
“Hodgepodge” is a particularly popular phrase, appearing no less than 670 times. It even made its way into Supreme Court history with the landmark obscenity decision in Miller v. California10 and with Justice Felix Frankfurter’s scathing dissent in a securities case that “the Holding Company Act of 1935 is a reticulated statute, not a hodge-podge.”11 “Higgledy-piggledy” is fun to say, although it appears only a scant 18 times. It has cropped up in everything from a Supreme Court of Pennsylvania dispute over the qualifications of expert witnesses—“No more flimflam, higgledy-piggledy, harum-scarum expert witnesses”12—to the 8th Circuit’s affirmation of a trial court’s discretion over the order in which evidence is presented—“[t]o ensure that trial does not proceed higgledy-piggledy.”13
And before his colorful turn of phrase in Windsor, Justice Scalia created an even more vivid mental picture with his dissent in a criminal case.14 Justice Scalia deplored what he saw as the court’s ever-expanding definition of what constitutes “violent felonies” under the Armed Career Criminal Act, calling the statute vague and the majority’s expansion of it a “tutti-frutti opinion.” What’s next, “wringle wrangle,” “fiddle-faddle,” or even “fancy schmancy”?
As Justice Scalia himself once noted in a speech at Princeton University in 1995, “Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.” But let’s face it: limited meaning or not, the “argle-bargles” of our lexicon do have a way of bringing judicial opinions down to earth and livening them up, don’t they?
Featured image: “British judge in white wig, waving his gavel around in frustration ” from Shutterstock.
United States v. Windsor, Docket No. 12-307, 570 U.S. (2013). ↩
Antonelli v. Antonelli, 408 A.2d 773 (Md. App. 1979). ↩
Mech v. Hearst Corp., 469 A.2d 1099 (Md. App. 1985). ↩
Oakhampton Ass’n, Inc. v. Reeve, 637 A.2d 879 (Md. App. 1994) (This time, the court aided curious readers by explaining the origin of the phrase as “from the Scotch argy-bargy, to argue, wrangle, haggle.”). ↩
“Foofaraw,” as defined by Wordnik, is “a fuss over a trifling matter.” ↩
Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory v. United States, 2013 WL 3306410 (C.I.T.) (July 1, 2013). ↩
2013 WL 5221142 (Ct. of Crim. App., Sept. 18, 2013). ↩
See, e.g., Cate v. Dover Corp., 790 S.W.2d 559 (Tex. 1990) (the Supreme Court of Texas addressing the “mumbo jumbo” of disclaimers of implied warranties); Carr v. CIGNA Sec., Inc., 95 F.3d 544 (7th Cir. 1996) (stating that where a substantial amount of money is involved, a person should “realistically be expected to take the time to read a lot of fine-print legal mumbo-jumbo”). ↩
See, e.g., American Council of Education v. FCC, 451 E.3d 226 (D.C. Cir. 2006) (featuring the D.C. Circuit’s sharply-worded disagreement with the FCC over the extent of its authority in which it criticized an FCC order as “utterly gobbledygook, and it certainly cannot be what Congress intended”). ↩
413 U.S. 15, 93 S.Ct. 2607 (1972). ↩
SEC v. Drexel & Co., 348 U.S. 341, 75 S.Ct. 386 (1955). ↩
Gbur v. Golio, 600 Pa. 57, 963 A.2d 443 (Pa. 2008). ↩
Marmo v. Tyson Fresh Meats, 457 F.3d 748 (8th Cir. 2006). ↩
Sykes v. United States, 131 S.Ct. 2267 (2011). ↩
Argle-Bargle, Mumbo Jumbo, and Other Legal Gobbledygook is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Last week, Andy Wilson from Logikcull (here’s our review) bragged about “an entirely new Logikcull app that’s built for any size screen: whether you’re on a watch (seriously), phone, tablet, or giant big screen TV ….” Obviously, I had to see it on a watch.
Wilson delivered. Not only does the new app resize to watch size, but it’s actually usable. After I saw it for myself, I asked him to record a demo. Here is Logikcull, on a watch:
As Wilson admits, the screen in the video is actually a bit larger than the current crop of smartwatch screens, which have 320×320 displays. But you get the idea.
How useful is this? Well, other than Futurelawyer’s Rick Georges, who is kind of obsessed with his Samsung Galaxy Gear, I doubt many lawyers even own a smartwatch — much less want to review documents on one. Because realistically, a tiny watch screen is always going to be a terrible place to review documents.
Featured image: “Male finger tap on the icon of unread messages on the smart watch” from Shutterstock.
Coming Soon: Doc Review on Your Smartwatch is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I really like writing in plaintext. Whenever I write in Word, I am always stopping to fix formatting problems or tweak the styles. With plaintext, there are no styles or formatting. It helps me to stay focused.
All I need is a little Markdown (or HTML) to designate emphasis, headings, lists, and blockquotes, and I can plow through blog posts and memorandum drafts.
Text files are also my favorite answer to the problem of compatibility. If you have ever tried to create or edit a Word document on an iPad, you have probably experienced small formatting problems. Since plaintext files don’t have formatting, this is not a problem.
For these and other reasons, plaintext has been growing in popularity with non-programmers in recent years. This seems to be especially true among Apple users, for some reason. The App Store is overflowing with text editors, while last time I checked, there were virtually none in the Google Play Store, and only a few options for Windows users.
My Three Favorite iOS Text Editors is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.