Legal research is a critical and time-consuming process requiring hours of work and attention. The growth of available online research resources and tools has helped to ease these stresses but has brought about a new set of problems. How do you choose between the multitude of available research engines while balancing costs, diligence, and time? The answer is to craft a thorough and thoughtful research plan.
Join Clio’s Lawyer in Residence, Joshua Lenon, as he shows you how to take your legal research to the next level.
In this free, hour-long webinar, you will learn about:
Time: 11 AM PT | 12 PM PT
Date: Tuesday, April 19th, 2016
Click here to join us!
As a bonus Clio offers Free CLE credits to attendees of this webinar.
Looking for a tool that can help you manage your research, cases, and matters? Clio is the only practice management solution that integrates directly with Fastcase and can seamlessly manage your day-to-day. Try Clio for free today.
Sofia Lingos talks with Sam about how her firm provides outside counsel services to startups and small businesses, and the challenges of doing so. Sofia and Sam also take a deep dive into the Access-to-Justice incubator program at the Northeastern University School of Law.Implementing Accountability in a Law Firm “Once you’ve established with your team what the culture of the organization is… everyone has an intrinsic motivation to move forward in the same direction.” —Aaron Street
Inspired by Gyi Tsakalakis’ article on accountability, Sam and Aaron discuss what it means to build and implement accountability in a law firm. They also discuss how top-down management—oft-employed by larger firms—is, at best, an outmoded concept that diminishes the value employees can bring to a firm.Podcast Resources
Sofia Lingos is the Principal Attorney of Lingos Law, a boutique transactional business law firm, providing professional and innovative legal services to businesses and entrepreneurs in forming, financing, protecting and growing their ventures.
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Podcast #62: Outside Counsel and Access-to-Justice Incubator, with Sofia Lingos was originally published on Lawyerist.com.
We have written here about how law technology often focuses on the wrong problems. How do you make sure that the latest piece of tech that you are utterly enamored with is actually working for you, rather than being a shiny new toy? Over at Slaw, a Canadian legal magazine, Sarah Glassmeyer put together a helpful checklist. Among the factors Glassmeyer urges lawyers to consider:
Today, everyone is plowing through the Panama Papers, a massive document dump from a tiny Panamanian law firm (Mossack Fonseca) which revealed that the super rich, including many world leaders, use a shadowy network of offshore shell companies and holdings to stay super rich. Because of that, you might have missed a lesser-noticed law firm hack from last week, in which BigLaw firm Cravath, Swaine and Moore revealed they had been hacked. More big firms have probably been hacked, but firms aren’t terribly eager-nor are they obliged, necessarily-to inform their clients about a breach.
But big law firms, as a general rule, are loath to confirm whether they have been victims of data breaches, largely out of fear of alarming clients. Breaches and potential intrusions at large law firms often go unreported and generally come to light only anecdotally — often in news reports or discussions at legal conferences.
Perhaps we might see more big firms following Cravath’s lead and own that they had a security breach, but you probably shouldn’t hold your breath on that.Just How Many Law Jobs Will The Market Bear?
The legal market is getting better! The legal market is getting worse! We could write an entire series on alternately dire and hopeful job market predictions. Obviously, so much of how you evaluate the market will depend on what data you choose to slice and dice.
Law School Cafe looked at the Bureau of Labor Statistics (BLS) numbers for historic growth numbers in order to make some predictions about where we might be headed. Back in the heyday of 1978-1988, the legal market saw roughly 20,000 jobs per year (!!) added. The following decade, however, only saw about 9,900 per year. It was around 2008, of course, that things got downright terrible, but there has been an uptick:
Between 2008 and 2010, the number of lawyering jobs plunged from 759,200 to 728,200, a loss of 31,000 jobs in just two years. Growth resumed after 2010, with the number of employed lawyers reaching 778,700 in 2014 (the latest year for which data are available). But between 2008 and 2014, the annual growth rate for lawyers averaged just 3,250 new jobs per year.
Between 2012 and 2014, the most recent period of recovery growth, the economy added 9,450 new lawyering jobs per year.
Takeaway? We are trending back up from the absolute cratering of a few years ago, but we have a long way to go to make up all the jobs lost during the crash and BLS projections, Law School Cafe reports, are only at about 4,380 new legal jobs each year over the next eight years. Still not the rosiest outlook, is it?Judge Posner Has a Lean Mean Citation Guide You Should Read
Judge Richard Posner of the Seventh Circuit, one of the simultaneously crankiest and most astute judges around, famously loathes the Bluebook.
“The first thing to do,” Posner writes, “is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.”
If you clerk for Posner, you get a citation style guide that is a whopping six pages long and it spends quite a bit of time telling you what not to do (don’t use cert denied, don’t use pin cites in short opinions, don’t put “http” in your website cites) in the interest of simplifying things. Once you read it, you will probably wish every judge was so relaxed about citations.How To Job Hunt in Legal Tech
If you are interested in breaking into the legal tech side of things, Evolve Law has put together a legal tech job board with positions at places like Avvo, CosmoLex, and LegalZoom. Right now, the board is pretty heavily weighted toward the “tech” side of legal tech (ruby on rails engineer, anyone?) but is probably worth keeping an eye on.
(h/t Robert Ambrogi)
Briefs: Evaluating Legal Tech, Posner Would Burn The Bluebook, Etc. was originally published on Lawyerist.com.
In our forum, Dan Sherman just outlined his custom case management solution:
I’ve been playing with Knack recently. It’s a hosted database & interface service, all access is via a web browser. You can use it with Zapier, so for example, creating a new client in Freshbooks also creates a new client in Knack.
A custom solution like this is perfect for us because we work with consultants, who are attached to many clients, and the usual practice management systems (or even basic CRMs) don’t understand that. Now we can easily find clients working with Consultant A, see what their project status is, etc.
A solution like this obviously isn’t for everyone. Lots of people just want to pay for an all-in-one system that does everything and keeps things simple. But if that doesn’t work for you, now you can connect most services together to get the exact functionality you want.
Also, it’s more fun to hack together your own solution that does just what you want with the tools you prefer. If you can be more productive that way, it’s probably worth the time it takes to set up (as long as you don’t spend excessive time maintaining the system).
So if you are struggling to get your case management system to work the way you want it to, maybe it’s time to experiment a bit.
Featured image: “copper pipes in boiler-room” from Shutterstock.
Custom Case Management with Knack, Zapier, FreshBooks, WebMerge, and Trello was originally published on Lawyerist.com.
Much has been written about the poor state of lawyers’ writing, but less about their punctuation. For years, grammarians and writing gurus have bemoaned misuses of quotation marks—and these misuses are legion. But for lawyers, quotation-mark abuse may not be so bad. And using scare quotes might be the beginning of better legal writing. That’s because lawyers put scare quotes on words, terms, and phrases they would not use otherwise. And if scare quotes make lawyers comfortable enough to start using more plain language, their use might be a good thing.“[W]hen the scare quotes came off, what remained was what the writer was actually trying to say.”
Stay with me; this isn’t as crazy as it sounds. But first, let’s take a step back.“American” Speakers, Take Note
I know, you know, we all know that quotation marks are running amok. Bryan Garner puts his finger on it:
Quotation marks are, if I may say so, the most “misused” punctuation mark in the English language. Well, perhaps not “English,” but more accurately “American.”
—Bryan A. Garner, The Winning Brief 287 (Oxford University Press) (2d ed. 2003).
According to Garner, lawyers should use quotation marks only to quote someone, to refer to a word as a word (e.g., the word “that”), and to mean “so-called-but-not-really.” By any measure, a lot of quotation marks don’t fit into these category.
Let’s look at where they do fit.Your Quotation Marks Speak so Loudly, I Can’t Read Your Words
Placing every misuse of quotation marks into a specific category is difficult, so we’ll use this Twitter quotation-mark abuse poll (thanks to all who voted) as a starting point. I’ll address scare quotes last.
And now for your quotation-mark abuse poll:
What's the worst misuse of quotation marks?
— Brendan M. Kenny (@KennyBrendan) February 19, 2016
First, let’s look at emphasis and precision. Chris Farley managed to hit them both as motivational speaker Matt Foley:
You’ll notice that Chris Farley doesn’t use any scare quotes in the sketch. This is no accident. As we’ll see in a later section, scare quotes are a newer phenomenon.Emphasizing the Obvious
We’ve all seen quotation marks used to emphasize a word or a phrase. Anecdotal evidence (and my own experience) suggests emphatic quotation marks are most commonly used by the over-50 demographic and much less commonly used by younger people. And the tone that emphatic-quotation-mark users intend to convey is usually earnestness. However, in the image below, putting quotation marks around fresh has the effect of casting suspicion on the crab claw’s freshness. It’s hard to believe that this was their intent.
Sounds "delicious." pic.twitter.com/cqVhgiTjo8
— Bill Walsh (@TheSlot) November 19, 2015
The sign below, likewise, was probably not written by a jaded urban hipster critiquing the crass materialism of the petit bourgeois.
Writers misuse quotation marks to provide the illusion of precision, but this has the opposite effect.
— Brendan M. Kenny (@KennyBrendan) January 22, 2016
The tone that precision-quotation-mark users intend to convey seems to be honesty and integrity. They add quotation marks to show that the words they are quoting have a very precise meaning.
The use of Natural Pure in the display above seems to function as a quasi term-of-art. A term of art is a word or a phrase that has a different meaning within a specific discipline than in common parlance. Notice that the display includes Green without quotation marks. But Natural Pure does not have a scientific meaning, and using the term in this ad has the opposite effect—it creates suspicion.
And Saint Paul police bolster their city’s reputation for safety in an odd way:1
— Brendan M. Kenny (@KennyBrendan) January 8, 2016
Precision quotation marks sometimes serve as a punctuation-generated appeal-to-authority fallacy. The use of “official investigation” in the tweet below appears to be an (odd and ineffective) example of this:
— Aradia Music (@AradiasMusic) February 11, 2016
Similarly, some people use precision-quotes as a way to create a title where none exists. If you want to use The Attorney as a prizefighter title on a billboard, quotes are a must.
If his commercials are any indication, Blake Maislin is more than just an ordinary attorney.“To Quote or Not to Quote”
And falling under the other category is we might call the familiar-quotation mark. The preeminent lexicographer H. W. Fowler described this species of quotation-mark abuse succinctly:
To an educated man it is an annoyance to find his author warning him that something written long ago, and quoted every day almost ever since, is not an original remark now first struck out.
Here are two examples of familiar phrases of literary origin requiring no quotation marks:
These are the times that try men’s souls.
He lives far from the madding crowd
—William Strunk Jr. and E. B. White, The Elements of Style 59 (The Penguin Press, New York) (2005).
The tone created by familiar-quotation-mark usage is one of insecurity and tentativeness. When lawyers quote familiar quotations, it’s as though they want to write something profound, but are afraid they’ll be accused of plagiarism.
And now for the main event.Careful, Your Snark Is Showing
What are scare quotes? The Arrant Pedantry blog provides a good working definition:
Most abuses of quotation marks fall under the broad, nebulous label of scare quotes. Many writers put terms in quotation marks to indicate that they’re nonstandard, colloquial, or slang or that the term is being used ironically or under some sort of duress.
A lot of people really dislike scare quotes. Cultural critic Greil Marcus, for one, is not a fan:
Scare quotes kill narrative. They kill story-telling. And it’s not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer’s assault on his or her own words.
As Jonathan Chair noted, “The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making clear what you’re insinuating.” This makes scare quotes an effective tool for innuendo and personal attack.
The first use of scare quotes (with a hyphen) I could find was from a 1946 nonfiction book. Here is how the term was used:
The first use of the term scare quotes (without a hyphen) dates back to at least 1956, when it was used by a University of Cambridge professor in a philosophical essay. In the 60s, 70s and 80s, it marched through the humanities and began being used by academics in America and Australia.2
In the 90s, the rest of the world started talking about them:
Scare quotes are now a part of politics and are probably here to stay. To take one instance, Donald Trump can’t even bring himself to say the Ted Cruz has a temperament, much less the right one to be president. (I know, he misspelled temperament.)
Ted Cruz does not have the right "temperment" to be President. Look at the way he totally panicked in firing his director of comm. BAD!
— Donald J. Trump (@realDonaldTrump) February 23, 2016
Finally, it’s time to turn to lawyers using scare quotes.First, Let’s “Kill” All the Lawyers
As we’ve seen already, quotation-mark abuse is easy to identify but hard to explain. Here, we’ll divide scare quotes into two categories:
If you still think scare quotes are always bad, look at how lawyers use them as a way to express understatement. In this tweet, they are devastating.
Unfortunately, the notes from the 3/2 interviews w/Debbie, Ann, and Aisha are "missing" #AdnanSyed
— Colin Miller (@EvidenceProf) February 4, 2016
Professor Colin Miller runs the EvidenceProf Blog, where he shows remarkable patience and tolerance for the trolls who react to his posts about the Adnan Syed case. He is also part of the Undisclosed Podcast, which revisits the State of Maryland’s case against Adnan Syed. Given the prosecutorial and police misconduct that the podcast discussed and uncovered, Professor Miller’s use of the word missing highlights how unlikely it is that these notes were innocently lost.
Now for the colloquial scare quotes. In the tweet below, the lawyer couldn’t bring herself to just say she wasn’t going to do the opposing counsel’s work for him.
— Brendan M. Kenny (@KennyBrendan) April 29, 2015
But the statement still packs some punch. She could have said this instead:
Counsel for the Plaintiff John H. Smith (“Plaintiff”) declines to engage in legal work that is the sole duty and responsibility for the counsel of record for Defendant Acme Corporation (“Defendant”). Rather, counsel for Defendant is obliged to do work on behalf of Defendant…
And say what you will about the slap-in-the-face cliche, at least it paints a picture.
You get the idea.
Which brings us back to Greil Marcus. Let’s consider lawyers when we read this passage:
I used to think the use of scare quotes was a matter of writers being too lazy to find the right word, to find the words that would say precisely what the writer meant. But editing this book made it clear that the real question is fear—people afraid of their own words, of opening themselves up to attack. So we went after scare quotes with the equivalent of Raid—that spray that carried the slogan, coined by the beat poet Bob Kaufman in his day job in advertising—“Raid Kills Bugs Dead.” And we found that in almost every case, when the scare quotes came off, what remained was what the writer was actually trying to say. And when we went to the writers, to ask for their consent—because no changes were made without the writer’s agreement—they said, over and over, yes. It was as if we were disarming them of a weapon they had aimed at themselves.
If lawyers stop disarming themselves by using legalese, maybe they won’t need scare quotes. Until then, we’ll have to put up with them. A baby step in the right direction is much better than nothing.
And if you want to check out a blog dedicated solely to the misuse of quotation marks, “look” no further than The “Blog” of “Unnecessary” Quotation Marks.
Featured image: “Quote icon isolated on white background.” from Shutterstock.
I could not find any designation of Saint Paul as a safe city. Safe city is defined as “a concept for returning security, safety and quality of life to today’s complex cities”. This makes safe city a quasi term-of-art. And quasi terms-of-art shouldn’t be capitalized. ↩
English Language & Usage, Oct. 11, 2013, http://english.stackexchange.com/questions/72307/who-coined-the-term-scare-quotes-and-why-is-the-word-scare-used ↩
For a while now, I’ve been wondering if we have hit peak practice management software. How many different ways do we need to reinvent the wheel as to how lawyers manage calendars, email, documents, and time-tracking? A smart choice for the budding software developer-cum-lawyer is to focus on a portion of the legal tech market that is underserved. Enter Lexicata, which focuses only on CRM (customer relationship management)—basically lead management, client intake, and client retention.
It does not store your documents, track your time, or invoice your clients. It doesn’t need to. Lexicata’s goal is to help you track your client from the moment you meet them (be that in person or virtually) to the moment you formally retain them.Dashboard
Lexicata is a CRM with an impressive combination of tools, including a form builder, a lead tracker, engagement letter templates, and automated emails. When you open up the program, there is a nicely-designed dashboard that will give you a quick glance at how you are doing in regards to finding and signing clients.
You can see your total matters and a breakdown by matter type. You can see your intakes in progress and attach a dollar value to that. You can also see how your leads are finding you. It is a smart way to figure out which advertising/lead generating methods are performing best. Lexicata also helps you figure out if you’re focusing on a practice area that is not profitable.Integrations
Obviously, this sort of fancy informative dashboard only results if you input good data, and Lexicata works to ensure that happens in a couple different ways. First, they have a WordPress plugin that integrates with your law-firm website (as long as you have a WordPress website, obviously) and creates a contact form that, once filled out, will dump info directly into Lexicata as a new contact.
Next, you have the ability to create custom checklists so that you can control what information gets collected, who is assigned to what follow-up task, and what email reminders get automatically kicked out to potential clients. There is also a pretty robust form builder that allows you to ask your prospective clients the usual things like name, address, and occupation, but also allows you to build in conditional questions, where the next action changes based on your answer, like this:
Related “Zapier Zaps Ideas”
Currently, Lexicata boasts tight integration with Clio so that you can basically handle your intake side with Lexicata and then use all that contact and follow-up data as the basis for your case management data in Clio. It is a nice and seamless process: You track your leads in Lexicata up until you sign them up as a client and then you export all the intake information over to Clio, where Clio can create a pending matter for the client. They are also working on Zapier integration, which will allow the end user to connect Lexicata with other apps with Zapier integration.Pricing
Lexiciata will run you $49/month for the first user and $25/month for each additional person. If you pay annually, costs drop to $40/month for the initial user and $20/month for each additional. That amount is roughly comparable to practice management software costs, but there is a hitch: since this isn’t actually practice management software, you will need to pay for that as well.Final Thoughts
If your practice is lead-generation heavy and you need to track a lot of leads from first contact to (hopefully) signing, Lexicata will really streamline that process. If you need metrics on how successful advertising campaigns and other ways to reach out are, Lexicata provides you with a wealth of data that you can slice and dice to see how to improve performance. However, if your practice doesn’t rely on a lot of client volume but you do have a lot of document, invoicing, and time-tracking needs, you may find paying for both Lexicata and practice management software is cost-prohibitive.
First Look: Lexicata CRM and Client Intake Software was originally published on Lawyerist.com.
After all the public rhetoric, Constitutional discussion and intense scrutiny, the Department of Justice ended without fanfare the fight to compel Apple to assist in unlocking the iPhone used by San Bernadino terrorist Syed Rizwan Farook.
On March 29, 2016, the DOJ filed a status report in the US District Court which simply stated:
The government has now successfully accessed the data stored on Farook’s iPhone and therefore no longer requires the assistance from Apple Inc. mandated by [the court’s original order].
The DOJ requested that the court’s order compelling Apple’s cooperation be vacated.
It is unlikely we will ever know just how this came to be, but the fight so perfectly teed up by Farook’s phone will have to wait for its next test case.
Featured image: “The end sign with wooden blocks on a table” from Shutterstock.
Although Women’s History Month is coming to a close, the issues faced by women in the legal profession are still in dire need of continued conversation.
Let’s take a look at female trailblazers who left their mark on law, how far the legal industry has come, and where we are at today.Outwitting the Status Quo
Women have always been a part of the legal system, but remained formally prohibited from the actual practice of law for many years. Nevertheless, women found innovative ways to circumvent existing rules while advocating for more equitable ones.
To say that Margaret Brent blazed a trail for American women in law is an understatement. Not only was she the first woman to appear before a court of the Common Law, she went on to become involved in over 100 court cases and acted as an attorney to Lord Baltimore, the proprietor of Maryland.
In a 1796 case involving a series of property lawsuits, Luce Terry Bijah Prince delivered an oral argument before U.S. Supreme Court Justice Samuel Chase, and was the first black woman to do so. Prince did not only outshine the two white men representing her husband, she also “made a better argument than any other lawyer at the Vermont Bar,” according to Justice Chase.
1869 was also a big year for women in the law. After studying the law in her brother’s law office for two years in lieu of formal legal training, Arabella Babb Mansfield became the first woman on record to pass any formal bar examination when she was admitted to the Iowa
bar. That same year, Lemma Barkaloo became the first female law student in the nation. Barkaloo did not complete her degree, but she did pass the Missouri bar after a year of study and began practicing just months before her death of typhoid fever at age twenty-two. The first formal law degree earned by a woman in the United States was awarded to Ada Kepley a year later.
The same rights were not extended to women across the country. For aspiring female lawyers in states like Illinois, women had to look outside of the traditional paths to the legal profession in order to pursue their passion for law.
Myra Bradwell was one of the most influential women of her day, advancing the impact of women in law through both formal and informal channels. Although she passed the Illinois bar exam in 1869 just weeks after the first female lawyer was admitted to the Iowa bar, Bradwell was denied admission because Illinois common law dictated that she could not be held responsible for any contracts into which she might enter as a married woman.
Regardless, she continued to practice without a license and published the Chicago Legal
News—all the while appealing her case to the Illinois Supreme Court and later to the United States Supreme Court. The U.S. Supreme Court eventually decided against Bradwell, determining that states could continue to deny women the right to practice law. By then, however, the Supreme Court of Illinois had come to its own senses and granted the respected legal scholar and renowned publisher a license to practice law nunc pro tunc in 1890. Her license dated back to 1869 when she first started practicing.
While Bradwell was waiting on the U.S. Supreme Court decision, however, Alta M. Hulett drafted and secured the passage of a bill providing that no person in the state of Illinois can be excluded from any profession because of sex. At just nineteen years old, the law Hulett drafted and pushed through the legislature in 1870 also enabled her to become the first female lawyer in Illinois—and one of the first women licensed to practice law in the country.
When a man resigned his seat as justice of the peace to protest woman suffrage in a small Wyoming mining town , Esther McQuigg Morris seized the opportunity to become the first woman in the United States appointed to a judicial position in 1870.
The first woman was not appointed to a federal court, however, until 1928, when President Calvin Coolidge nominated Genevieve Cline for a seat on the U.S. Customs Court, which she presided over for 25 years. The U.S. Court of Appeals in the Sixth Circuit followed suit in 1932, when Florence Allen was appointed as the first female judge to a federal appeals court. Sandra Day O’Connor shattered the United States Supreme Court’s glass ceiling when she was nominated by President Reagan in 1981, fulfilling his campaign promise to appoint the first woman to the highest court in the United States. On March 12, 1993, Janet Reno became the first female Attorney General.
Although the number of women entering the legal profession has steadily increased over the years, more senior positions at larger law firms remain antiquated. Women are consistently underrepresented among leadership in BigLaw, make less money than their male counterparts, and are only half as likely to get promoted as partner. The higher you get up the totem pole of the legal profession, the less women you find.
According to the most recent statistics collected by the ABA’s Commission on Women in the Profession, women make up almost half of all summer associates at 45.3% and 47% of law school graduates. The Harvard Business Review found a rising number of female law school graduates has led law firms to recruit an average of 60% women. Despite recruiting more women straight out of law school, 80% of the lawyers are male by the senior partner level. The proportion of women drops significantly from 45% of associate positions at law firms being held by female associates, to women only comprising approximately 20% of partners, 18% of equity partners, and a mere 4% of managing partners at the top 200 largest law firms in the United States. These dismal numbers have remained stagnant for years.
Among women who do successfully attain equity partnership, the compensation gender gap between male and female equity partners is still vast. Remarkably, the typical female equity partner currently earns approximately 80% of what a typical male partner earns—despite exceeding the average total hours billed by male partners.
This disparity is not limited to the highest earners in the legal profession. A recent analysis of invoices from more than 3,000 law firms demonstrated that no matter what tier firm women work at, female lawyers are billed at 10% less than male lawyers per hour. And while 2% of men at top tier firms billed at over $1,000 an hour, virtually no women makes that rate, and roughly half of men at top tier firms charge more than $500 an hour compared to less than a third of women at the same firms. Should a woman still choose to stay with a firm, her hourly rate may still only “rise only moderately, if at all.” The only area of equality found in the analysis is at the lowest tier firms, where neither gender is rewarded for tenure.“When all law-related jobs are included, the median pay of women in the legal profession drops to 51.6% of the pay received by men.”
While the oft-cited 77-cent statistic may seem inapplicable to lawyers, the legal profession has only achieved less than half a cent of progress towards closing the gender gap according to the ABA Journal’s analysis. Despite putting in an equal or greater number of hours, the average weekly salary of female lawyers is only around 79% of the salary earned by male lawyers.
When all law-related jobs are included, the median pay of women in the legal profession drops to 51.6% of the pay received by men. Even breaking down legal professionals apples-to-apples, female legal support workers make 73.7% the pay of male legal support workers, while female judges, magistrates, and other judicial workers earned 71.8% of pay to men in those occupations.
That said, women in the legal profession who desire a salary that is more comparable to their male equivalents fare best as paralegals or legal assistants—one of the few legal careers in which women earn 94% of pay earned by men who hold the same position.Progress Creeps In “While the gender landscape in the legal profession is clearly changing, there is an irrefutable amount of work that still needs to be done to continue empowering women in law.”
Since its first female members in 1918, the ABA has spearheaded the promotion of gender diversity and equitable representation of women in bar association leadership. Although only 32.97% of ABA members are women, women constitute 46.6% of committee chair appointments and 52.3% of presidential appointments. However, women still only make up a quarter of overall section and division chairs of the ABA Board of Governors.
This progress towards gender diversity has also begun to spread beyond the bar association into different sectors of the legal profession. Approximately one in five Fortune 500 companies has a woman as its general counsel. Women also make up an increasingly greater portion of law school administration in many positions. The percentage of women who are law school deans has tripled since 1999. Women hold one in five law school dean positions, 45% of law school associate or deputy dean positions, and 66% of assistant dean positions.
More women are also infiltrating the judiciary. Three of the nine U.S. Supreme Court seats are held by female justices. Women also make up around one-third of active Circuit Court of Appeals judges and a quarter of Federal Court judges. State courts fare only slightly better than Federal Courts with an average of 27% of judicial seats held by women.Tackling the Gender Gap is More Important Than Ever
Tackling the gender gap in the legal profession is becoming more important as the number of women going to law school continues to boom. In fact, women are projected to outnumber men in law schools by 2017.
Statistics only tell part of the story. To get a complete picture of women in law, we have to look beyond the numbers—as damning as they may be—to the innovative women, as well as men, working to increase gender diversity and empower women in the legal profession.
The ABA has laid the groundwork for a number of programs and initiatives supporting women in the legal profession. The ABA’s Commission on Women in the Profession provides a national voice for female lawyers, and the Task Force on Gender Equity addresses continuing gender equity issues that exist in the legal profession and in society at large.
The ABA created the Women of Color Research Initiative to examine advancement and retention issues among women attorneys of color. This initiative has produced two reports dealing with women in law firms, a toolkit, and other useful resources. The ABA’s Grit Project educates female lawyers and law students about the “science behind grit and growth mindset,” providing them with the tools to assess and learn these traits. In doing so, the Grit Project is working to enhance the effectiveness, retention, and promotion of women lawyers. The Section of Civil Rights and Social Justice Committee on the Rights of Women and the Women Rainmakers group in the Law Practice Management Section also provide additional education and networking opportunities for women.
As the face of the legal profession continues to change, women’s initiatives have already begun to adapt to the needs of women in the profession. Local organizations and groups targeted to specific firms or offices have begun working alongside countrywide associations to continue promoting gender diversity in the legal profession.
At the national level, there are a variety of platforms to advocate for gender equality in the legal profession:
There are also many examples of enterprising organizations that work to promote women in law:
Law firms themselves are also making substantial progress in terms of putting more responsive initiatives in place. A list of 50 Best Law Firms for Women compiled by Working Mother and Flex-Time Lawyers recognizes law firms for their family friendly policies and care.
Unexpected change agents have also helped the legal profession to grow as well. One prime example is the technology industry, which was taking on the gender gap in law firms back when most legal professionals were still grappling with the shoulder-padded power suits and big hair of the 1980s. In recent years, companies like Microsoft have continued this trend by providing law firms financial incentives for increasing diversity in law firm leadership.
Just as numbers do not tell the full story of women and law, simply fixating on the ratios of women in the profession does fully address years of systematic inequality pervasive in the legal system. Many formal barriers to women entering the legal profession have become almost nonexistent. Nevertheless, subtle systematic barriers continue to inhibit women from excelling in the legal profession. While the gender landscape in the legal profession is clearly changing, there is an irrefutable amount of work that still needs to be done to continue empowering women in law.
Featured image: “on the scale of justice” from Shutterstock.
No, seriously. Your work ethic is hurting your work.
Taking time away from the office replenishes ones mind, body, and soul while also improving productivity in the office. According to an Ernst & Young internal study, for “each additional 10 hours of vacation employees took, their year-end performance ratings improved 8 percent, and frequent vacationers also were significantly less likely to leave the firm,” proving a renewed appreciation and revitalized creativity.
It isn’t doing anything positive for your health, either.
Studies performed by the Framingham heart study revealed that “men who didn’t’ take a vacation for several years were 30 percent more likely to have heart attacks compared to men who did not take time off.” An additional study conducted by Marshfield Clinic determined that those who “vacationed less often than once every two years were more likely to suffer from depression and increased stress than women who took vacations at least twice a year.”
Yes, it’s harder for solosmalls to take time off. It’s just as important, though. Even if you can’t completely turn off your law practice for a few days or a couple of weeks, you can still have a great vacation with a little preparation. Start planning. [HuffPost Travel]
Featured image: “Father and daughter reading” from Shutterstock.
You can’t get any higher than supreme. So when the public gets a glimpse into the inner workings of the Supreme Court, it’s a big deal.
That just happened. The Supreme Court’s Style Guide, Amazon’s #1 new release in legal writing, can now be yours. The introduction to the guide says as much:
What you’re holding is special. And until now, it has been secret.
We have editor Jack Metzler to thank for the release. He’s the guy who brought us The Solicitor General’s Style Guide: Second Edition.Burn Notice
The guide has been a secret for quite a while, and Supreme Court practitioners have been trying to get their hands on it:
The Court’s website suggests that it is “frequently asked” whether it has “a style manual for writing briefs,” and for advice “as to how the Supreme Court would cite to a particular document.”
The Court’s answer was lawyerly: “The Supreme Court does not have a style manual for advocates before the Court.” True, because this style guide was prepared by the Office of the Reporter of Decisions “for use in the preparation of opinions of the court.”
The guide was more direct with its select audience, informing them that “[c]opies will be numbered and charged to those staff members to who they are issued.”
Now, we get to read it.Must We Curb Our Enthusiasm?
Some of you don’t care about what the guide says about things like citing unpublished online materials, the proper use of supra, or whether you write attorneys’ fees or attorney’s fees.
Fine. You can compare the Supreme Court’s guide with with some of the other leading guides in this handy table and be on your way. The rest of you can read on.1GuideFontSpace After SentenceCitations in FootnotesThin SpaceProportional FontOxford Comma The Supreme Court's Style GuideNot addressedEm spaceNoThin spaceOptionalNot addressed 7th Circuit's Typography RequirementsCentury recommendedSingleLong footnotes discouragedNot addressedHighly recommendedNot addressed Typography for LawyersCentury, Century Schoolbook, or Century Gothic (detailed below)SingleNo positionNon-breakable spaceYesNot addressed BluebookNot addressedNot directly addressed, but single space in Bluebook itselfAmbiguousNot addressedNot addressedNot addressed The Solicitor General's Style GuideCenturyEm spaceAppears to rejectNot addressedOptionalNot addressed One Guide to Bind Them
This guide doesn’t tell us everything about how the Supreme Court decides cases, so let’s not get ahead of ourselves:
This book is concerned only with the final step of the Court’s decision making—what happens after the decisions are written but before they are released—and it peels the shroud of secrecy back only slightly.
In short, the guide binds the Reporter of Decisions as she prepares “the Court’s opinion for release to the public and for publication in the United States Reports.”2
As you’ll see, the guide tells us a lot more than how to cite check a draft opinion.Tangled Up in Blue(book)
The Bluebook Uniform System of Citation has been in the news a lot lately, especially after Carl Malamud and Public Resource published the open source and freely available Baby Blue’s Manual of Legal Citation.
While the Supreme Court’s guide expresses no opinion about the Bluebook’s business model, it does have a complicated relationship with the Bluebook’s system of citation. The Supreme Court’s guide notes the Bluebook “provides a useful reference for rules governing citations of types of materials not covered in this Style Manual,” but “caution[s] that this Style Manual frequently deviates from Bluebook style.”
Likewise, the U.S. Government Printing Office Style Manual is “generally useful for points of style not covered” in the guide but “frequently deviates” from it on points that the guide covers.The (Em) Space Between
Legal-writing nerds have been bemoaning lawyers’ use of two spaces after a period for years. Will the Supreme Court come to their aid?
Not really. But the editor of the guide did us all the service of pointing out the Supreme Court’s “peculiar spacing conventions.”
The first peculiarity is the em space, which is a “space that is the width of a capital M.” If this sounds familiar, that might be because The Solicitor General’s Style Guide: Second Edition informed the public that the Solicitor General’s Office is now using the em space.
There’s good news and bad news about the Court’s em-space usage. The good news is the Court doesn’t use two spaces after a period. The bad news is that one em space is bigger than two regular spaces:
— Brendan M. Kenny (@KennyBrendan) November 25, 2015
This would be much less complicated if the Supreme Court would leave grammatical exile and bring itself to love the single space. Seems hard to argue with this reasoning:
But mostly, one space is a well-settled custom of professional typographers. You don’t need to like it. You only need to accept it.
—Matthew Butterick, Typography for LawyersFootnote Fury
The legal writing community is pretty evenly divided on putting citations in footnotes for briefs, and this poll seems to reflect that division:
— Brendan M. Kenny (@KennyBrendan) November 9, 2015
Bryan Garner, Justice Don Willett, and Judge Dillard make up some of the most prominent members of the Twitter pro-footnote faction. While the faction pushed hard, they ultimately came up short on Twitter.
In any event, the Supreme Court does not like citations in footnotes. As we now know, Jack Metzler had the inside scoop:
— Supreme Court Places (@SCOTUSPlaces) November 10, 2015
As Metzler notes, the guide “takes a strong position against confining all citations to footnotes, a position against confining all citations to footnotes, a position surely destined to become a major source in the ongoing debate on this subject.”
The guide’s first sentence on the subject leaves little doubt about where the Supreme Court stands:
Certain legal writing “experts” suggest that all citations be placed in footnotes in order to make judicial opinions more readable for the general public. The Reporter feels that such advice is misguided. The public will not be inclined to read most opinions no matter what gimmicks are used to try to make them generally accessible.
The guide goes on to provide these reasons for its rejection of the “all-citations-in-footnotes style”:
In support of its position, the guide notes six of the seven California justices who adopted the all-citations-in-footnotes style several years ago “have now abandoned it because of the ‘bobblehead doll’ syndrome and quotability problems noted above.”
This might be the time to let the all-citations-in-footnotes argument go. If Bryan Garner can’t convince the Supreme Court, I doubt anyone else will.(Thin) Space Oddity
You are officially at a graduate level of punctuation geekiness if you know what a thin space is. Even the Solicitor General’s guide doesn’t tackle them. But the Supreme Court does:
Section numbers, as printed in this manual and in the U. S. Reports, contain a “thin” space between the section symbol (§) and number.
How do you insert a thin space? If you’re on the Supreme Court, you use a macro that inserts these automatically.3
It’s not as though the Supreme Court invented this type of spacing. Matthew Butterick recommends using nonbreaking spaces in Typography for Lawyers. A nonbreaking space is the same width as a word space, but it performs a different function. It prevents text from flowing to a new line or page in this way:
And now I’ve reached the limit of my geekiness. I don’t know why the Supreme Court has chosen thin spaces over nonbreaking spaces. We’ll have to wait for Metlzer to break that story too.Monospaced Font—The Courier Abides
Like the Solicitor General’s guide, the Supreme Court guide makes using proportionally spaced fonts optional. The 7th Circuit’s guide highly recommends proportionate spacing. Both have the good sense to use the font Century for court opinions. But Typography for Lawyers alone lays down the law:
There are no good reasons to use monospaced fonts. So don’t.
—Matthew Butterick, Typography for Lawyers
And Typography for Lawyers also reminds us that not all centuries are created equal, and ranks the permutations of the Century font. Here is what they look like:
Having trouble understanding why the Supreme Court uses supra the way it does? You’re in good company. Metzler doesn’t get it either:
“Supra” permits the author to omit any reference to the volume in which a case cited appears, so long as a full reference has appeared on the same page or the two proceeding. . . . Since one needs both the volume number and a page number to look a case up, in practice this means that the reader must scan back through the text to find an earlier reference, which often is not even the next-most-recent.
I’ll leave it to better minds to explain this rule.Oxford for the Win
The Oxford comma is popular these days. Millennials, legal writers, and even George Takei have embraced it. The Oxford comma itself lurks on Twitter, looking for an opportunity to smash serial comma foes. So it’s no surprise that my (admittedly small) Twitter poll turned out like this:
— Brendan M. Kenny (@KennyBrendan) December 2, 2015
It seems like the only person who hasn’t publicly declared in favor of the Oxford comma is Siri:
The Supreme Court guide and all the style guides in the table above internally use the Oxford comma. It might be time to declare victory on this front of the legal-writing war.Case Law Again Bests Caselaw
For years, Bryan Garner has favored the use of caselaw over case law to describe precedent established by judicial decisions. A few months ago, we learned that the Solicitor General’s Office favors case law. Now we know that Supreme Court takes the same view.
It looks like case law is about as established and ubiquitous as the singular-they usage.The Here and the Hereinafter
The Solicitor General’s Office broke with the Bluebook by advising its advocates not to use hereinafter to introduce a short form for an authority. The Supreme Court’s guide sides with the Bluebook, as this example illustrates:
At least the Supreme Court doesn’t put quotation marks after the hereinafter. Little victories.Rotten Links and References
We’ve all experienced this. Webpages are disappearing due to link rot and the information originally cited in them disappearing as well (known as reference rot). Both kinds of rot threaten to undermine Supreme Court opinions, with 50% of the URLs within Supreme Court opinions affected by reference rot.
The guide emphasizes that “the Court’s opinions will be relied on as authority for decades, even centuries.” To ensure the authority supporting the Court’s opinions remain available, the guide advises doing what the Court always has: Use and cite the official print version of a document where this is available. And the guide takes a hard line against citing online-only materials:
The Reporter of Decisions strongly discourages citation of otherwise-unpublished online materials—whether designated “official” or not—because of their corruptibility by hackers, natural disaster, technological obsolescence, and similar factors and because of their transient nature.
The guide relates that the online materials cited in one Supreme Court bench opinion were already “deleted before the opinion was published in the U. S. Reports.”
The Supreme Court has sought to solve this problem by following the Judicial Conference of the United States recommendation that courts capture and save cited online material. And you can now find all online materials cited in the Court’s opinions since the October 2005 term on the Supreme Court’s homepage. There is one problem. Many of these materials are non-searchable PDFs, like this webpage print-out from the 2010 Nevada Comm’n on Ethics v. Carrigan case:
Maybe someone can tell the Court about Perma.cc.Bonuses for Legal Writing Nerds
The Supreme Court guide might just solve some problems you never knew you had. Here are just a few:
The Supreme Court’s super-secret guide is a secret no longer. Now if we could only get the chamber’s discussions live-streamed.
Otherwise, you can insert the space in Microsoft Word by either typing 2009 and then pressing Alt-X or holding down the Alt key and typing 8201. Thanks to Jack Metzler for also pointing this out. ↩
The Secret Style Guide the Supreme Court Doesn’t Want You to Read was originally published on Lawyerist.com.
Chad Burton discusses how bar associations can help lawyers run their practices—and whether bar associations need to rebrand. Sam and Aaron also go over what practice management apps stood out to them at the ABA TECHSHOW.All the Practice Management Software at ABA TECHSHOW “Any practice management software providers that want to succeed probably can, as long they build a good product.” —Sam Glover
Is the boom in practice management software actually a bubble? While Sam and Aaron don’t have the definitive answer to that question, there is no doubt that solo and small-firm lawyers have more options than ever before.The Future of Bar Associations, with Chad Burton
Chad Burton is the CEO of CuroLegal, which provides lawyers and bar associations with law practice solutions, virtual assistance, marketing, technology implementation, and a variety of other services.
Thanks to Clio for sponsoring this episode!Support the Podcast
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Podcast #61: The Future of Bar Associations, with Chad Burton was originally published on Lawyerist.com.
A couple months ago, Casemaker declared that they were the sole publisher of Georgia laws, which is…not how the law works, as statutory codes cannot be copyrighted. Fastcase promptly sued. Although Casemaker initially (and wisely) said they would not fight the lawsuit, they have since changed their mind. They filed an answer and a counterclaim that pretty much does actually say that they own public law:
In its counterclaim, Casemaker asserts that its parent company Lawriter has a contract with the state of Georgia “to be the only authorized distributor of the Georgia Administrative Rules and Regulations in an electronic format” and that the contract permits it to “sell complete copies of the entire set of rules and regulations … at such reasonable prices and terms that Lawriter may determine at its sole discretion.”
The counterclaim says that Fastcase is copying these materials without a license from Casemaker, that it is reselling these materials for a profit, and that allowing it to retain those profits would be unjust enrichment.
Needless to say, Fastcase does not agree with this odd reading, so the case will be moving forward.A Quick Look at the Landscape of Technology Use in Solo and Small Firms
The ABA has released the TECHREPORT for 2015. The TECHREPORT looks at things like what types of computers, tablets, and software solosmall firms use. Quick takeaways:
Although everyone hates the idea of their personal details being exposed to the world via a hack, turns out that many people are more than fine with selling their workplace passwords for not all that much money.
[O]f those who would sell their passwords, 56% would do so for less than $1,000.
And, unintentionally poor password hygiene continues to plague enterprises. The majority of respondents (63%) admitted to using a single password among applications, and 28% share passwords with their co-workers.
“The survey found that 87% of employees would react negatively if their personal information was breached by a company,” the report noted. “Yet these same employees are exposing their employers to the same data breaches through negligence and poor password hygiene.”Everyone Has Ideas About How To Break Into the iPhone
One of the side effects of the never-ending FBI versus Apple saga (we have rounded up all our coverage on this here) has been that many people have come forward and explained that they do already know how to break into an iPhone actually. Even Apple asserts that the government can-and perhaps should?-get into the phone that way instead of bothering Cupertino.
“Given the past exploits that have bypassed the lock screen and the present-day reality of innumerable security firms, malicious actors, cybercriminals and potential adversaries of the United States constantly seeking vulnerabilities,” it seems improbable for the government to conclude that the only way into the phone was for Apple to write new code and weaken its security, Erik Neuenschwander, the company’s manager of user privacy said in a recent court filing.
That stance does not inspire confidence in the security of your products, Apple.Do You Want a Robot Paralegal?
Early last year, we wrote about ROSS, a legal research program powered by IBM’s chess champion supercomputer, Watson. Back then, there was just a video of an early version of the app floating around. Details still remain regrettably scant, but some people have the idea that ROSS could replace some of your research/paralegal staff some day, but only if you can feed ROSS a bunch of legal content so it can start figuring out good answers to all your questions. That means, of course, that legal publishers have to play nice.
But ROSS needs content sources to be able to give lawyers answers and learn. That’s where the legal publishers come in. Legal publishers, especially the older ones sit on a lot of content. They provide this content to law firms by means of subscription models. These subscription models are never open source.
Why not? Legal publisher need to earn their money from something. Currently that is from subscriptions to content. This is however very much old fashioned and whether or not legal publishers like it, subscriptions will become less and less the standard.
Especially when the robot revolution really takes off.Lawyers Are Bad at Crowdsourcing, So Mootus Is Closing Its Doors
Mootus launched with high hopes back in 2013. The idea: turn the sharing of knowledge into a crowdsourced game that would ultimately enrich everyone using the site.
The idea of Mootus was simple. Users would post legal issues to be “argued.” Other users would respond by adding cases they believed were relevant, together with their arguments for why the case applied. Still others could comment and vote on whether the case was “on point” or “off base.” A planned upgrade will allow users to add statutes and regulations.
To encourage participation, Mootus made it a game. Users earned points based on the frequency, speed and quality of their answers. More points meant greater status and influence within Mootus.
Turns out that lawyers do not like to share, and the concept never caught on. Mootus will shut down at the end of the month.If You Give a Chatbot 24 Hours on Twitter, Humans Will Make It Terrible and Racist
Microsoft made a cool chatbot that was supposed to use big brain supercomputer AI power to learn how to better mimic a 19-year-old woman chatting over Twitter and other teen-frequented social media sites. However, they had to pull the plug on it within a mere 24 hours. Instead of learning how to talk about Justin Bieber or college or something, within 24 hours the bot had absorbed so much awful Internet content that it turned into a neo-Nazi.
The company has terminated her after the bot started tweeting abuse at people and went full neo-Nazi, declaring that “Hitler was right I hate the jews.”
Some of this appears to be “innocent” insofar as Tay is not generating these responses. Rather, if you tell her “repeat after me” she will parrot back whatever you say, allowing you to put words into her mouth. However, some of the responses were organic….[A]fter being asked “is Ricky Gervais an atheist?”, Tay responded, “ricky gervais learned totalitarianism from adolf hitler, the inventor of atheism.”
How did this happen? Because AI-powered things still do not understand context and can be easily gamed. Oh, and also because people are terrible.
Recognizing that Tay seems to operate on the basis of word association and lexical analysis, Internet trolls discovered they could make Tay be quite unpleasant. […] [A]nonymous users of the message boards 4chan and 8chan (specifically, users of their politics boards, both named “/pol/”) took advantage of this to create all manner of racist and sexist associations, thereby polluting Tay’s responses.
People, this is why we can’t have nice things.
Featured image: “Face palm, retro vintage disappointed man slapping forehead with palm” from Shutterstock.
Every lawyer’s ultimate accountability is to clients. However, many lawyers are also accountable for meeting business goals—regardless of whether they are solo or work for a large firm.“Half the money I spend on people is wasted; the trouble is I don’t know which half.”
While those were not John Wanamaker’s exact words, the revision is useful for a discussion of accountability in your law firm.Figure Out Your Firm’s Culture “Culture doesn’t care if you believe in it.”
Accountability and firm culture are inextricably intertwined. You are accountable for living to your values.
I suspect that at least some of you will greet concepts surrounding culture with rolling eyes and groans. I anticipate these reactions because that’s largely how I felt about them.
After all, nobody has time for Kumbaya.
Here’s the thing, though: culture doesn’t care if you believe in it. It grows and evolves whether you’re conscious of it or not. Of course, if you don’t give it attention, like an unkempt garden, it will grow beyond your control.
Here are a few of the resources on nurturing culture that I have found most resonant:
While I encourage you to fully explore each of these, let’s distill some of the most salient points as they relate to accountability (relying heavily on Richman’s guidance).
There are two primary rules for culture wrangling:
In my experience, the opt-in piece is imperative to accountability. Put simply, when people freely enter into agreements, they are more likely to uphold their end of the agreement than when they feel ordered to do something against their will.
Does this eliminate task assignment and delegation? Of course not. Every role in your firm requires completing tasks that, at some point in time, we don’t want to do. However, when people opt-in with an understanding of the requirements and objectives of that role, they are more likely to achieve those objectives.
Here’s a minimum viable product outline for starting the conversation around culture:
At the risk of stating the obvious, you are not going to complete this process over a weekend. It’s also not a problem that must be solved. It’s more like tending a garden. It’s a work in continual progress. But if you want to maximize accountability, developing your culture is your best shot at doing so.From Culture to Accountability “People have to hold themselves accountable.”
When many people consider workplace accountability, they usually begin to list things off like getting results, tracking time, task completion, and deliverables.
However, these are nothing more than metrics and artifacts (and not very good ones) for trying to measure accountability. People have to hold themselves accountable.
You can mentor, coach, guide, assist, provide feedback, write-up, punish, and fire. But ultimately, accountability rests with each individual you hire.
By firing people, you might think that you are holding them accountable. What you’re actually concluding is that they were unable to hold themselves accountable.
In any event, team accountability begins with recruiting and hiring people that value accountability.
But in order to attract and retain people that value accountability, you have to communicate that it’s a shared value. This is why it’s so important to work through the process of defining your firm’s culture first.Determine Objectives and Key Results
Assuming you’ve laid a strong cultural foundation, it’s time to define concrete and measurable metrics from your mission, vision, and values. I’m partial to objectives and key results (OKRs). If this concept is completely new to you, I recommend that you head over to Rick Klau’s How Google sets goals: OKRs. Additionally, 7Geese’s Learning and Resource Library has some useful information on creating and implementing OKRs. From 7Geese (emphasis added):
An objective defines the answer to: what is it I want to accomplish. Objectives should be aligned with what defines organizational success, but more important must be personally meaningful/aspirational. They should also be aligned and supported by the entire organization. Objectives are about how you can grow parallel with the rest of your team….
Key results define the answer to: how I will accomplish the objective, and how I will be measured against my objective. They help make the objective and how it will be accomplished as transparent as possible. It is measurable, limited, and time-constrained.
Since every law practice is unique, it is impossible for me to hand you OKRs. On the other hand, there is some tangible, tactical advice on implementing OKRs:
Along the way, you will eventually confront challenges surrounding rewards (carrots) and consequences (sticks) for achieving objectives. But before you do, remember the candle problem:
If you want people to perform better, you reward them. Right? Bonuses, commissions, their own reality show. Incentivize them. That’s how business works. But that’s not happening here. You’ve got an incentive designed to sharpen thinking and accelerate creativity, and it does just the opposite. It dulls thinking and blocks creativity.
Read that again. It’s not just that traditional notions of incentives don’t help, they actually hurt performance.
Much of the work at your law firm is likely to be more like solving the candle problem and less like stuffing envelopes. Brief writing, depositions, motion hearings, and trial strategy all require candle-problem creative thinking.
However, in many law firms, carrots are passed out based on metrics like hours billed. That’s envelope stuffing incentive.
Make sure your rewards and consequences match the type of work being done.
But in the end, if you and your team aren’t intrinsically motivated to reach clearly defined firm objectives, you probably won’t.
Featured image: “accountability” from Shutterstock.
There are a lot of good reasons to write things down. It helps improve retention (as long as you take notes by hand, anyway) and functions as a rough record of events, conversations, ideas, etc.
Apps like Evernote, OneNote, Apple Notes, and other alternatives make it easy to keep all your notes in one place. But what good are all those notes if you never do anything with them?
Every once in a while, you should do a little archaeology on your notes. Dig into them to refresh your recollection of the events, conversations, ideas, and anything else you saw fit to write down or save.
Evernote archaeology isn’t complicated. Just start at the bottom of your notebook and review your notes one at a time. As you go through them, take notes on your notes, pulling out anything worth further consideration.
You can probably delete many of your old notes (although not if they are notes in a client file; those you should keep) so they aren’t cluttering up your notebooks.
Make a note of anything that might be important from your old notes in your new one(s). Use this as an opportunity to put things back on your to-do list, to renew conversations, to spark new ideas, or just to remind yourself of things to keep in the back of your mind.
A little Evernote archaeology now and then will keep you sharp and ensure your best thoughts don’t get lost in your archives.
In 2011, Anna Alaburda alleged that the Thomas Jefferson School of Law fraudulently reported its post-graduate employment statistics in an effort to lure prospective students who didn’t know any better. She learned that her school (along with other law schools) tried to fool prospective students by including low paying non-legal positions including retail, food service, and tractor sales in determining the post-graduate employment percentage.
Soon after, law schools around the country were sued under similar theories. Almost all of them have been dismissed at the pleading stage.
But Alaburda’s case survived multiple attempts to have it thrown out, and her case made it to trial five years later. Alaburda’s supporters were hoping a jury would understand what judges did not. After less than a day of deliberation, the jury decided 9-3 in favor of Thomas Jefferson on all counts.
We can only speculate as to how the jury came to its decision. During the trial, Alaburda testified she turned down a $60,000 per year legal position and accepted a $70,000 per year position with a legal publisher. But there were no details as to whether the position she turned down was a temporary or permanent, career-track position. Or the jury could have agreed with the judges’ reasoning: prospective law students were sophisticated consumers and should have done their own independent research before attending.
While this is likely to be the end of the law school fraud lawsuits, they were the catalyst for reform. The American Bar Association and U.S. News have since required more detailed information from law schools on post-graduate job placement. And the publicity has resulted in a drop in law school attendance, particularly in the lower tier schools.
Staci Zaretsky of Above The Law believes that Alaburda should be congratulated for coming forward and enduring public ridicule. I agree. While it is our personal responsibility to make the most with the cards dealt to us, we have to expose and condemn the casinos that play the game with a trick deck.
Featured image: “thoughtful businesswoman in casual cloth sitting on the chair at office” from Shutterstock.
Luring Law Students With Phony Employment Statistics Is (Somehow) Not Fraud was originally published on Lawyerist.com.
One of the biggest issues for solo attorneys, especially new ones, is figuring out how to balance the books and keep overhead costs low. Here are six ways to reduce costs and keep your firm profitable.Be a Minimalist “When you start your practice, you should worry about two things besides taking care of your clients: keeping the lights on and paying yourself consistently.”
I’ve been running my own firm for nearly four years, and I’ve seen countless other firms open and close within that time frame.
The number one mistake these firms make is adding overhead that’s not necessary. Typically, a new solo gets a really nice (and expensive) office in a prime location without having any business. Or a new solo hires an administrative assistant before they can really afford one.
When you start your practice, you should worry about two things besides taking care of your clients: keeping the lights on and paying yourself consistently.
At the start of your practice, you will probably spend a lot of time sitting in your office, waiting, and hoping that the phone will ring. There is no need to pay someone else to sit there with you. And do not assume that a good month or two means you have hit the jackpot and are ready for the big time. Wait until you have had a string of good months before you deciding to upgrade your office or hire a part-time assistant.Stop Killing Trees
Running a paperless office will save you money.
You can rent a smaller office because you don’t need extra storage space for files. Generally speaking, less space means lower rent. And instead of having a big office in the suburbs, you can pay the same for a smaller office in a prime location.
You will also save money on paper and postage. Mailing briefs, client information, and bills gets more and more expensive every year. Fax service is usually perfectly acceptable, which mean you can use an e-fax services. When I serve documents in state court, I fax it and email a courtesy copy. That saves money on postage and paper. Plus, I don’t have to walk to the mailbox.
Another advantage of running a paperless firm is that you can work remotely. I don’t need to come into my office to pick up the Smith file — everything is scanned and stored on my hard drive. I also don’t need to come into my office because I need to print and mail something.
The only caveat here is that you will need to spend around $425 up front to buy a ScanSnap, but that cost will pay for itself within a matter of months with the money you will save elsewhere.Find Alternative Research Sources
I admit I miss the ease and utility of Westlaw. At the same time, I do not have any desire to pay the rates that Westlaw charges.
Through my state bar association, I have access to Fastcase. It is not as robust as Westlaw, but it certainly gets the job done. Google Scholar, a free option, also appears to be getting better by the day. If you practice in a niche area, your bar association may offer a free service to deliver recent opinions via email. That will help you stay on top of the most recent case law in your practice area.
Check around to see what other options are available to you, especially if your practice is not motion-practice heavy. Chances are good you can survive without paying a ton for research. And if you find yourself in a pinch, you can always use the public access terminal at the law library.Tackle Your Own Administrative Tasks
I’m not particular fond of doing my own bookkeeping, opening and closing files, running to the bank, etc. At the same time, if I hired someone else to do these tedious tasks, I’d have to pay them, which is a huge increase in overhead. Quite frankly, some months my firm could afford that expense, and other months it would be a problem. Until I get to the point where the firm is overflowing with money (wishful thinking), I’m not hiring anyone.1
On the plus side, tackling my own administrative tasks means I know exactly how my firm’s finances look month-to-month. Knowing this about my firm helps me adjust my workflow and overheard as needed.
For example, if the trust account is getting low, then it’s time to revisit clients on retainer and make sure they refresh their retainers. If the cases need to be closed, then I need to spend time closing those files and pound the pavement for some new clients.Answer Your Own Phone
I have always been a big proponent of answering your own phone. After using Call Ruby for the majority of this year, I’ll probably go back to answering my own calls for these reasons:
A great way to plant a seed about your services before you even meet your next client, is to write great website content.
If you outsource someone else to write your copy, it’s not the same. One, you are paying for it. And if you’re not paying much, it’s probably not very good content. Two, go look at a few law firm websites, and I bet you can tell who writes their own copy. From what I’ve heard from prospective clients, they can tell too. Outsourced material (especially stuff written by marketing/social media “experts”) reads like a sales pitch. If you write it yourself, it will come across like you know what you are doing.
Running your own solo firm comes with numerous benefits and lots of new responsibilities. Make sure you can keep your solo practice running until it succeeds by keeping costs down and overhead low.
Featured image: “Business man drawing graph of profit compare with cost” from Shutterstock.
I do hire outside help to prepare my taxes. But I do my own accounting and bookkeeping. It can get annoying. A couple of times a year I have to come in on a Saturday morning for a few hours to do billing and balance the books. ↩
How to Keep Your Solo Practice Sustainable and Lean was originally published on Lawyerist.com.
Guest post by Dan Lear, Director of Industry Relations at Avvo.
The sanctity of lawyer-provided legal services was central to my law school experience. I left law school believing the provision of legal services by non-lawyers was unthinkable. Restrictions on non-lawyers practicing law seemed as fundamental to our legal system as the hallowed doctrine of judicial review.
Today, it’s clear that unauthorized practice of law (UPL) regulations are doing lawyers more harm than good. Rethinking UPL regulations will help lawyers adapt to the realities of the modern legal marketplace but, before jumping into that in detail, let’s step back and understand the historical reasons for the development of the current UPL regime.The Origins of UPL
Interestingly UPL regulations, the laws that effectively prohibit non-lawyers from practicing law, are relatively recent developments. The first century of the United States’ legal system was characterized by a loosening of the UPL infrastructure as many state legislatures passed measures permitting non-lawyers to appear in court.1 Even by 1908, the first Canons of Ethics by the American Bar Association (ABA) made no mention of the UPL.2
In the late nineteenth century, bar associations’ power grew and these entities sought to limit infringement on their services by those outside of the profession.3 Less than 30 years after it was first published, the ABA’s Canon of Professional Ethics in 1937 added a clear denunciation of UPL, stating “No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible the [UPL] by any agency, personal or corporate.”
Since that time, for a variety of reasons, including a Supreme Court decision that found certain ABA efforts to limit UPL to be anti-competitive, UPL prosecutions have declined.4 Still, every state but one has an unauthorized practice of law statute that makes it illegal for anyone who doesn’t meet the requirements set by state bars or lawyer regulators to practice law.Influence of UPL on the Business of Law
Functionally these rules prohibit individuals who are not lawyers from doing things that have been reserved to lawyers, also known as practicing law. However, as the rules have developed, they’ve also been expanded to include other activities that don’t necessarily involve people who aren’t lawyers practicing law (such as fee-splitting). Further, in a rule-interpretation only a lawyer could truly love, fee-splitting rules also extend to non-lawyers owning law firms because owners share in the profits of an entity and all law firm profits come from legal services.
These regulations—or more broadly—this paradigm which emerged and gained hold most firmly in the last century, have generally been good to lawyers. Between 1910 and 2000 the proportion of total employment of lawyers and judges compared to that of the general employment population more than doubled. In the first decade of this century, the nominal size of the legal sector grew from just under $150B to more than $200B by 2009.
Yet, the legal sector has some significant problems. Let’s start with the fact that pro se bankruptcy filings are increasing twice as fast as overall filings. Or that more than 4 out of 5 low-income litigants go it alone because they feel priced out of the legal market. Finally, roughly half of medium- to high-income consumers in the U.S. are avoiding lawyers. Access problems in our country are well-documented but when even medium-to-high income people are avoiding lawyers the problem is clearly larger than legal services for those who can’t pay for them.
Some have argued that the legal services delivery system in our country is fundamentally broken. I won’t go that far, but I will suggest that the legal industry has some significant problems and that we must look outside of law—and beyond lawyers—to try and fix them.Bringing In Outside Talent
A logical solution to solve access to justice and lawyer affordability would be to bring in big business and economic minds to help. We’ve seen other professions revolutionized for the good by this type of reexamination: in accounting there are not only companies such as H&R Block, but massive, helpful, and efficient systems like TurboTax. While healthcare and medicine remain a hot-button political issue and very much a work-in-progress, few can argue that those who need urgent, immediate medical help in this country can’t get it.
I’m not sure that the same can be said of law.
But even if lawyers did reach out for help, why would those outside law who possess the type of business and strategic knowledge respond? What is their incentive? Unfortunately, due to UPL restrictions, whatever goodness they unlock, their maximum upside is a consulting fee rather than any sort of profit sharing.
Using UPL regulations, today’s lawyers have excluded non-lawyers from participating in delivering legal services. To make matters worse, lawyers are known to bully out of existence threats to their monopoly on legal services. By using UPL regulation, lawyers have eliminated any incentive for non-lawyers to either deliver legal services or own any stake in entities that do.The Benefits of Dismantling UPL “[B]usiness acumen will also help lawyers run more ethical and less risky practices.”
The consequences of irrationally excluding outside experts from full participation in law is pretty clear. Where is the legal industry’s Bill Gates, Jeff Bezos or even Mark Zuckerberg? When is the last time a non-lawyer focused on launching the “next big thing” in legal?
While UPL may have served to better organize the legal profession and, maybe, help consumers to find competent representation 50 years ago, now it is only hurting it. UPL is preventing lawyers from adapting to the swift changes around them because, to do so, lawyers must fully embrace, not exclude, professionals from other fields who can partner with them.
In addition to letting lawyers focus on practicing law, business people can help lawyers develop and market legal services that are responsive to consumer demand and that can compete with those provided by online legal service providers. They can also help lawyers raise money, manage finances, and streamline their operations.
Beyond business operations and growth, business acumen will also help lawyers run more ethical and less risky practices. Misappropriation and mismanagement of client funds is a cause of some of the most severe lawyer discipline and significant malpractice claims. Business leaders can help lawyers put together plans and systems that avoid operational oversight or cash flow problems.
But it’s not just business people. Lawyers need to partner with economists, statisticians, technologists, designers, content developers, and others. These professionals bring an array of differing skill sets to the table that can help lawyers connect with prospective clients and the general public in new and important ways. Every other industry does this. Why are lawyers any different?
Finally, I’m not just talking about hiring law firm consultants who specialize in any of these disciplines. Consultants can help, but they will never bring the passion and innovation of a business owner. To create the proper incentives, non-lawyers need to be invited into legal services businesses as true partners. Under the current UPL framework, this kind of true partnership is prohibited.
It’s time for lawyers to rethink UPL. We are facing a drastically changed, and rapidly changing, landscape. Lawyers need outside expertise to respond to the demands of the increasingly savvy clients and consumers of low-to-moderate means.
Although, ultimately, restrictions on having non-lawyers do lawyerly things are without much justification, we don’t have to start there. Instead, let’s re-evaluate the specific prohibitions on sharing fees with non-lawyers that prohibit us from bringing in outside help as a partner and owner, not simply as a consultant. If we challenge the previously sacrosanct exclusivity of lawyer-delivered legal services, even a little, we will discover that the extensions of those prohibitions are, ultimately and immediately, doing us more harm than good.
Featured image: “ conceptual, businessman tethered and strained” from Shutterstock.
See Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors-Or Even Good Sense?, American Bar Foundation Research Journal Vol. 5, No. 2 (Spring, 1980), pp. 159, 169-75. ↩
Derek A. Denckla, Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters, 67 Fordham L. Rev. 2581 (1999), pp 2583. ↩
James W. Hurst, The Growth of American Law: The Law Makers, p. 323 (1950). ↩
Denckla, pp 2585. ↩
Lawyers love to over-define and over-explain, don’t we? Think of every contract you have ever drafted where you just grabbed some boilerplate language like this:
“person” = any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust, one or more individuals, partnerships, associations, societies, trusts, organizations, or corporations, any individual, corporation, business or land trust, estate, trust, partnership, association; two or more persons having a joint or common interest, state agency, or any legal entity; a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
We do this because we want to make sure we have covered every possible contingency, and that makes perfect sense. Wouldn’t it be great if something could generate all those terms for us? And those terms would be legally sound? Basically, what we want is software that could eat a legal dictionary and spit out a legal thesaurus.
Enter U.S. Open Data and the OpenGov Foundation. Those organizations are both dedicated to using open source tools to make legal and government data more accessible and more easily manipulated. They have put out a call for a vendor to help them build a legal thesaurus and turn that mess of a definition you see above into a list of likely synonyms, along with something that indicates the strength of the correlation between the term being defined and its possibly synonyms.
If you are interested in being that vendor, you have to create both the software and the processes the software needs to use and you must use open source tools. For lawyers, this could help you be a more precise drafter, rather than dumping every word you can think of into a contract. For non-lawyers, this may assist with drafting legal documents, as it may help a layperson understand that using a term like “person” may not cover what they think it does. No matter what, it makes for a cool project and hopefully a vendor will make it happen soon.
Featured image: “ A book coming out of a computer with library on the screen of the computer representing online library, school, manual, instruction, e-book, research, search, dictionary, thesaurus and encyclopedia.” from Shutterstock.
One Day, This Legal Thesaurus Will Help You Pick The Right Words was originally published on Lawyerist.com.
Many successful solos operate their law practices as corporations, LLCs, or other business entities. A separate business entity can reduce taxes and protect you from certain business liabilities. In one famous example, former vice-presidential candidate John Edwards made $25.5 million from 1995 to 1998 as a personal injury lawyer in North Carolina. According to Professor Walter Schwidetzky, writing for the Taxprof blog, Edwards saved about $600,000 in taxes by operating as an S-corporation as opposed to a Schedule C sole proprietorship. I assume some of the tax savings were used to pay for his expensive haircuts.
But there are also many solo practices operating under a limited liability entity with no income or profit. Regardless, owners have to pay the state’s annual entity fee and separate entity income tax returns on top of their personal income tax returns.
So when does it make sense for solos to set up a separate business entity? By far, the most common choices are a limited liability company (LLC) or a corporation with S-corporation tax treatment. At times, I will use California law to illustrate the costs and nuances involved.Non-Tax Issues to Consider
First off, as a solo lawyer, be aware that setting up a corporation does not give you malpractice protection—even if the malpractice is committed by your employees. Also, employee injuries must typically be covered by worker’s compensation insurance.
Second, check to see if the business name you want is available for use. If you have a common name (for example, Sam Glover), you will not be allowed to use it as your business name if someone else is using it first.
Third, check to see if your state prohibits professionals from creating certain types of business entities. In California, lawyers are not allowed to use LLCs to set up a law practice.
Finally, if you plan to buy or refinance a house in the near future, check with your lender to see if setting up a separate entity will have an adverse effect on your loan application process.Tax Treatment of Business Entities
A solo practitioner with no separate business entity has to pay self-employment taxes—on top of income tax—on the business’s net profit. Self-employment taxes are the equivalent of payroll taxes for business owners to fund Social Security and Medicare. For 2015, the first $118,500 of profit is subject to a 15.3% Social Security and Medicare tax. Any profits higher than that are subject to a 2.9% Medicare tax with a 0.9% increase for profits exceeding $200,000 for single people and $250,000 for married people filing jointly.
Generally, LLCs are given the same tax treatment as sole proprietorships. This means the LLC’s income and expenses are reported on the Schedule C of the federal income tax return. This makes tax return preparation simpler and less expensive, but the entire income is subject to self-employment taxes. LLCs can elect to be taxed as an S-corporation by filing a Form 8832.
Corporations have to file separate tax returns where it reports its income, expenses and its net profit. There are two types of corporations for tax purposes: the C-corporation and the S-corporation.C-Corporations
C-corporations are discouraged for most lawyers; the IRS considers them to be a “personal service corporation” and taxes corporate profits at a flat 35% rate. Also, C-corporations are infamous for its double taxation rules: one tax at the corporate level and the other at the personal level as dividend income.
In many states, this can mean a tax disaster. For example, California imposes its own flat tax of 8.84% on corporate profits which means that fifty percent of your profit will be used to pay federal and state income taxes.
To avoid double taxation, owners of C-corporations pay out its entire corporate profit to its owners as a salary. But this salary is subject to payroll taxes which can defeat the purpose of setting up a corporation for tax reduction purposes in the first place.S-Corporation
An S-corporation is the preferred business entity because its profit is not subject to double taxation. It is also not subject to the 35% personal service corporation tax rate mentioned above. Instead, the S-corporation’s profits pass through to the owner’s personal income tax return.
An S-corporation pays its solo practitioner owner in two ways. The first is by an owner’s draw from the profit, also known as a distribution. The distribution is only taxed once at the individual income tax rates and is not subject to the self-employment tax.
The second way an owner is paid is by salary. The IRS requires S-Corporations to pay its owners a reasonable salary in the same way they would pay an employee. Like a typical employee, he or she is paid on a regular basis and it is subject to self-employment tax. One half of the tax is paid by the corporation and the other is paid by the employee through withholdings. The corporation deducts the salary and payroll taxes as a business expense on its income tax returns while the salary is reported as W-2 income on the owner-employee’s personal tax returns.
So in essence, S Corporations reduce taxes by minimizing (but not eliminating) self-employment taxes. While Schedule C sole proprietors have to pay self-employment tax on its net profit, S-corporations can manipulate how much self-employment tax is paid by adjusting the employee salary.
Owners of S Corporations would be tempted to avoid payroll taxes by paying themselves a minimum wage salary and distributing the rest. But the IRS requires S Corporations to pay its owners a reasonable salary. What a reasonable salary is depends on the facts and circumstances. Solo practitioners would have to estimate how much other attorneys in the area with similar specialties and credentials are paid.
But it is not always advantageous for S Corporations to pay its owners a low salary, even if it can pass IRS scrutiny. If the owner plans to participate in a SEP-IRA or a self-employed 401(k) retirement plan, the corporation can contribute a percentage of the employee salary (but not distributions) to the plan and deduct it as a business expense. So a larger salary allows a larger tax-deductible contribution which may provide bigger tax savings in the long run.
Finally, another benefit of an S-corporation is that according to statistics, the IRS is less likely to audit an S-corporation tax return as long as it complies with the reasonable salary rule described above.Performing a Cost-Benefit Analysis
Setting up a business entity can reduce taxes, which is ultimately about saving money. But if the cost of keeping the entity is higher than the tax savings, then you are doing it wrong. Here are a few routine costs that arise while maintaining a separate business entity. While they are relatively small individually, they add up.
For these reasons, I generally do not advise solo practitioners in California to incorporate for tax purposes unless their net income is consistently above $54,000 per year. This is because at that amount, the corporate income tax exceeds the $800 minimum franchise fee.What’s Right for Your Practice?
While your decision to set up a professional entity will depend on many factors although, for solo practitioner lawyers, taxes play a significant role. It is best to meet with a tax professional who can compare the tax consequences while taking into account your current income and future income projections.
The Pros and Cons of Incorporating Your Practice As A Solo Practitioner was originally published on Lawyerist.com.
In the last few weeks, nearly everyone (including us) has praised Apple for remaining steadfast in their refusal to help the FBI break into an encrypted iPhone. In the midst of all that praise, we forgot one thing: breaking into Apple products sometimes isn’t all that hard.
A team of researchers at Johns Hopkins University recently discovered a way to access and decrypt photos and videos sent via iMessage.
First, they intercepted an encrypted message sent from an phone running outdated software by creating software that poses as an Apple server. Then, they were able to repeatedly guess at a 64-character decryption key that corresponded to an encrypted photo on Apple’s iCloud servers. Once they found the correct key, they could download the photo from Apple’s server and view it.
If you are busy patting yourself on the back over owning an Android phone and therefore being free of this problem, stop patting. Fewer than 10% of 1.4 billion(!) Android phones are encrypted, while iPhone encryption clocks in at a 95% rate. Why so low? Likely because Google licenses Android absent any requirements in that department.
Google gives away its Android software to attract more users to its services. Google requires device makers to comply with certain requirements to use the Android brand and key Google services such as search and maps. Ultimately, though, device makers are free to use the software as they wish.
Bottom line: everything is unsafe and you should probably return to carving hieroglyphs on tablets you then bury in the desert or using carrier pigeons or something.
Featured image: “ Thief or hacker hacking smartphone by key” from Shutterstock.
The iPhone Is Not Safe, Android Phones Are Not Safe, Nothing Is Safe was originally published on Lawyerist.com.