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Updated: 1 hour 13 min ago

How to Prepare for Oral Argument

Sun, 03/02/2014 - 15:11

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.

Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.

That’s because oral argument is so much more dynamic than an outline — even if you have a “cold” bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs.

Preparing for oral argument takes a deep understanding of the law, the facts, and the arguments. Then, you need to break up your argument into “modules.” You can organize your argument (not just outline it) around your modules, but then you must practice making your argument in and out of order. Only by doing this will you be prepared to field questions and deliver your argument with skill and nimbleness, instead of rigid adherence to an outline.

Ditch the Outline

An outline isn’t inherently good or bad, but it encourages rigid thinking. Lawyers who rely on an outline alone tend to get thrown off by questions, which often results in repetition and skipped issues.

Worse, many lawyers also haul a binder (or several) full of cases, pleadings, exhibits, and briefs to the podium, which they try to rely on while delivering their arguments. I think this is because they rely on their stacks of paper in place of adequate preparation.

Of course you can use an outline if you really want to — I do — but it is important to shed the rigid thinking and intellectual laziness that outline-as-preparation encourages.

Practice Intense Preparation

There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to say Prepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.

You must know four things about your case for every argument:

1The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.

2The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.

You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions — few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.

3Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.

Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.

4What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.

Organize and Practice Your Argument

Here’s how I like to organize my argument. I write each issue I want to discuss or point I want to make on a separate index card (or piece of paper, but the idea is to keep it short — these are prompts, not parts of a script). Then, I take each index card and practice the argument around that topic or idea. Usually, the oral argument starts to organize itself as I do this, because I generally refer to other cards as I go. As the argument begins to take shape, I start laying out the cards on the floor to sort them.

As I lay all the cards out on the floor (this works great for organizing the topics you want to discuss with a witness on direct examination, too), I put them in the order that makes the most sense. Group them into the two or three main topics you need to argue. Even if your argument is going to be complicated by necessity, group it into a few main topics, if you can.

Now, turn those main topics into a roadmap. Starting your argument with a concise roadmap is helpful for the court, because the judge will know right away if she is likely to get an answer to her questions, or if she should just go ahead and ask them now because you aren’t likely to cover them.

Spreading out index cards on the floor works for me, but you could also do an outline, if you prefer. I just think it works better to start with something more flexible, and convert it to an outline as it starts to come together.

Whether you do an outline or not, you should also practice your argument as a single, cohesive unit. You might get a cold bench, after all. I usually run through my argument this way a few times, then set my index cards and outline aside and go for a walk. (Bring your dog, if you are preparing at home.)

With no prompts in front of you, go through your argument several more times from memory. Work through it without resorting to your outline or notes. This will force you to learn your argument much more thoroughly than if you are always relying on your notes.

Practice your argument with non-lawyers, too. If they look bored, you aren’t doing a very good job. Keeping a non-lawyer interested forces you to boil down the facts, issues, and arguments to their essentials. You can always go into the nitty-gritty (boring) details if you need to, but it’s generally better to get to the point — especially with judges.

Commit Your Argument to Memory

Outlines, binders full of reference material, and other paper and props are distractions, not performance aids. The best way to argue is from memory (although it won’t hurt to bring your index cards or outline with you, just in case — or just for show).

If you have followed my advice so far, you have essentially committed your argument to memory. Deep understanding of the facts and law will give you the ability to discuss the issues without an outline to guide you. Practicing your argument out of order helps dissociate each issue from your outline. Getting out of your office and walking as you practice will help you embed your argument in your brain. As you walk around, your brain will associate your argument with your surroundings, which will make it easier to remember your key points when you are under stress at the podium.

Your goal is not to remember your argument word-for-word; that is counterproductive. Your goal is to know what you want to say about a topic whether or not you are interrupted. If you are interrupted, you must be able to locate the question in your argument, then segue gracefully back into your argument after you answer. In other words, know what you want to say, and then cover at least the key points whether or not you are interrupted with questions.

If you have followed the steps above, you should have your argument sufficiently “memorized.”

If You Can, Moot Your Argument

Not every argument merits the time and expense of a moot session — or several. But if you can moot the issue, you will get invaluable information and feedback. If your “judges” do a good job, you will have a good idea of what you may hear from the bench. You will also get great feedback on the way you argue so that you can improve.

I’ve had the opportunity to conduct several moot sessions on both sides of the “bench,” and it has been well worth the effort in each case. Do it if you can.

Last-Minute Prep On the Day of Your Argument

Here is what works for me on the day of my argument, but what you do is not as important as having a routine that quiets your nerves and gives you one last refresher of the facts, law, and your argument.

I usually get dressed, then go walk the dog. (My hearings tend to be first thing in the morning.) While we walk, I run through my argument — out loud — two or three times (wear a Bluetooth headset if you don’t want to look crazy, and people will think you are just on the phone). I keep it up in the car on my way to court. I don’t have my index cards or outline out when I do this.

When I get to court (always at least fifteen minutes early), I sit down and jot down my main “talking points” on a legal pad, referring to my outline if I need to. When my case is called, that’s all I take to the podium. I don’t try to review cases or the facts at this point. If I don’t know them by the time I am sitting in the courtroom, I’m not going to learn anything in those few minutes before I stand up to argue.

Preparation is key. If you have done enough, you will be confident behind the podium, and you will rarely be surprised by what happens in the courtroom. Don’t half-ass your preparation; it is always better to be over-prepared.

This was originally published on March 5, 2012. It was revised and republished on March 2, 2014.

Featured image: “Speaker’s table in conference room” from Shutterstock.

How to Prepare for Oral Argument is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

The Lawyer’s Guide to Help A Reporter Out (HARO)

Thu, 02/27/2014 - 16:06

Help A Reporter Out (HARO) was launched in 2008 as a way to connect reporters and experts needed for media stories, from television clips to online news articles.

Today, it’s one of the fastest growing publicity services online, and lawyers can use the platform as a cost-effective way to publicize their practice and display their expertise.

But it can also help in other ways. You can use the service to build media contacts, gain more search engine traffic and strengthen your reputation.

With everything it has to offer, HARO can become a significant aspect of your overall online marketing strategy. Here’s how to make it work.

HARO 101: The Basics

HARO helps reporters find sources for their stories, and helps sources – experts, business owners, professionals – get free publicity by being featured in news articles.

The service is used by hundreds of major online outlets, including Forbes, Gannet, Associated Press, Reuters and Fox. It’s also used by thousands of smaller publishers, like blogs, trade magazines and local radio stations.

How HARO Works

Every weekday, HARO send out three daily emails (5:35 a.m., 12:35 p.m. and 5:35 p.m. EST) with queries, which are pitches from reporters who need information for their stories.

A query includes the reporter’s name, media outlet, deadline, summary of their needs, and any requirements for their sources.

An example of a query would look like:

Name: Joe Smith, Reporter for Popular Legal Website
Category: Business and Finance
Media Outlet: Popular Legal Website
Deadline: 7:00 PM EST – 20 February

Query:

Looking for lawyers who can comment on the legality of the delays given to various Affordable Care Act employer mandates.

Requirements:

Must be a lawyer who is familiar with administrative or healthcare law and is knowledgeable about the current status of the ACA and the delays for its employer mandates.

The emails are sent out to a list of people that have signed up as sources. From there, it’s simple: sources who can reliably comment on the topic can send an email to the reporter. The email is sent through an anonymized email, much the same way Craigslist handles initial emails.

The reporter can then sift through responses to find experts and information that best fit the needs of the story. Typically, the reporter gets in contact with the source if he or she has decided to use the source’s information.

When the article comes out, the source is cited as an expert, and boom — free publicity.

Who Can Use HARO?

Anyone can sign up to a source on HARO, but those with more experience, credentials or expertise are more likely to get the attention of reporters.

On the reporting side, there’s a list of query guidelines reporters must meet in order to have their queries sent out to sources. One major requirement is that the reporter’s website must have an Alexa.com ranking of one million or less. This ranking is loosely based on overall traffic to a site and prevents queries from bloggers who are writing for new or unestablished sites.

Why Use HARO?

For lawyers, the most beneficial part of HARO is getting free publicity. When you’re used as a source in the media, this can result in:

  • Local or national promotion for your firm
  • High-authority links to your website
  • Additional media opportunities from other reporters
  • Media mentions that can be used for testimonials or promo materials

On HARO’s website are a number of success stories: tales of companies that have had massive PR success simply from answering a query and being featured in media stories.

What Else You Should Know

Although use of the service is increasing, HARO still runs a tight ship. They only have a few rules:

  • Do not spam reporters with off-topic pitches
  • Don’t publicly share queries on the web (forwarding emails is fine)
  • Don’t harvest reporter email addresses from queries
  • “Be excellent to each other”

The HARO process is simple, but that doesn’t mean free publicity comes easy. Here’s what you can do to maximize the marketing value of HARO.

How to Use HARO as a Source

Success with HARO is essentially a numbers game. You might respond to ten queries in one week and only hear back from one or two reporters. The publicity you receive from those few opportunities, however, often makes up for the lack of response to your other emails.

Your job as a source is simple, then: to be the most appealing response to a query. Legal queries, especially those from large websites or publications, can yield anywhere from 20 to 50 or more responses, which means the amount of publicity you receive is largely based on your ability to stand out from the pack.

How do you do that? Make the reporter’s job as easy as possible. In my experience, working both as a source and a reporter, the most effective HARO responses are:

  • Relevant – providing actual insight and expertise on the query
  • Timely – sent back to the reporter as soon as possible
  • Professional – written with proper grammar, formatting and information
  • Direct – addresses the query immediately and doesn’t lose focus
  • Non-promotional – reporters want information, not sales pitches

If you can craft a response that hits on all of the above, you have a much better chance of being the selected source for a story.

Be Relevant

Sending an off-topic pitch is not only against HARO’s rules, it also annoys reporters to no end. They’re usually on deadlines or working on multiple stories, and irrelevant emails won’t do either of you any favors.

As you’re searching through HARO queries, look for topics that you can definitively comment on. If you’re not comfortable speaking to other experts about the topic, save your time and skip it.

Cast a deep net instead of a wide one, focusing on the areas you’re most familiar with and exercising patience. That’s not to say that you can’t be creative, however. If you handle your own online marketing, for example, then you may be able to comment on a query asking for online marketing tips.

In fact, applying your expertise to related queries like this can often get you better results because other lawyers aren’t looking at these queries.

The other factor in being relevant is providing actual expertise and information. Don’t send a BS pitch full of fluff and robotic quotes that sound like they’re taken from your firm’s latest press release. Reporters can recognize this type of pitch from a mile away, and it’s not likely to be included in a story.

Instead, make sure there’s a clear focus and take-away from your response. Ask yourself if you’d find the information useful had you been unaware of it. If you don’t have anything of value to offer, don’t bother responding.

Be Timely

Although there are deadlines attached to each query, ignore those and plan on responding to a query as soon as possible. When you find relevant queries, take enough time to compose a good response, but take no longer.

Even if a stated deadline is still days away, many reporters like to use the quality responses they receive first. Again, it’s about making their job as easy as possible. When you’re one of the first responses, and you offer solid insight, the writer may be more likely to include your information in an initial draft of the story.

The importance of timeliness also depends on the subject. Broad queries that focus on legal topics in general are likely to receive more responses, while highly specialized queries may receive fewer responses and therefore, you may have more time to respond.

In general, it’s best to get in the habit of responding as quickly as you can without sacrificing the quality and focus of your response.

Be Professional

As a reporter, when I receive responses that have poor grammar, lack of formatting or even one sentence summaries, I delete them on the spot. With HARO, part of being an expert is looking the part, and this means sending professional emails.

They can still be quick, direct and informal, but there’s no room for grammar errors, lack of information or other unprofessional mistakes. Include an actual greeting, a complete rundown of your idea, and your contact information.

Also, be sure to heed any requirements or directions the reporter puts in their query. If they ask for a brief bio, include a brief bio. If they want to conduct a Skype interview, make sure you can do that.

Be Direct

Part of being professional, and useful, is getting right to the point. Don’t start your response with your background or expertise or anything else other than the information that directly answers their query.

You can include that information later on in the email, but again, think from a reporter’s point-of-view. They don’t want to wade through your credentials – they want to see what insight you can offer.

Don’t Be Overly Promotional

In talking to other writers who’ve used HARO, it didn’t take long to name our biggest peeve: self-promotional responses. In most cases with legal queries, this isn’t an issue: the lawyer responds with information and also mentions their firm, website or service.

For some legal professionals, it’s easy to see HARO as a vehicle similar to a press release, particularly for those who have branched out and started a non-practice legal business, like software service or phone app.

But pitching your platform before your expertise won’t get the positive attention you want from a reporter. Instead, focus on your pitch, and only afterwards should you mention your company or website.

It’s also a good practice to avoid asking if the reporter will be including a link to your website. Links and increased organic traffic may be a benefit of using HARO, but those metrics shouldn’t be your main goal. Asking for links will send up a red flag that will make it a lot easier for the reporter to skip your response.

As long as you’re adding value to the story, you can still get the publicity you want, but it will be for your insight, not for what you’re trying to sell.

Above All, Demonstrate Expertise

Of all these elements, by far the most important is your ability to demonstrate expertise. If you send a response that’s late, full of errors and long-winded, you might still have a chance of being featured if you offer extremely valuable information.

The idea of expertise, then, can trump just about everything else – including your actual expertise. What I mean is this: when responding to queries, you don’t have to be the leading expert in your field. You simply have to offer a response that appears expert.

Of course, writers want to profile well-known figures in the field they’re discussing. But depending on the scope or needs of the article, they’ll take anything that’s useful, even if it’s from someone largely unknown in the public eye.

Often, it doesn’t matter if you’re a budding lawyer or a savvy, grizzled rainmaker – if you can project what appears to be an expert voice, you can get the attention of a reporter.

Other Useful HARO Tips

Keep track of the reporters you work with. Whether it’s saving them as contacts or connecting on LinkedIn, keeping in touch with reporters is a great way to become a consistent source for their stories. It may be against HARO’s rules to harvest email addresses, but it’s entirely okay to build out your media connections for future opportunities. This is particularly helpful if you’re putting out news, survey results or other assets that you’d like to get media attention.

Keep your responses conversational. A lot of writers take quotes directly from the emails themselves, rather than setting up separate interviews. Be prepared for this by offering conversational emails that would be easy to quote, in full or in part.

Let the reporter do the following up. Chances are good that most times, your response won’t be used. Instead of emailing the reporter to follow up, wait for him or her to get back to you. If your information is used, they’ll let you know, usually thanking you for your feedback and offering a link or date of publication.

Leverage your publicity. If you have success with HARO, use this media to your advantage. Feature it on your site or blog to demonstrate to potential clients that you have clout in the industry. Share the links on social media. If you’re featured in an online story, engage with commenters who have questions or comments.

Harnessing the Potential of HARO

Plenty of lawyers are currently using HARO to gain free publicity, but few have perfected the process to make it an efficient part of their marketing strategy. HARO is all about a mutually beneficial relationship between reporters and expert – keep this in mind when you send responses and you’ll have a much easier time of getting free publicity.

Featured image: “image of a young journalist, sitting at the table for a typewriter” from Shutterstock.

The Lawyer’s Guide to Help A Reporter Out (HARO) is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Do Small Firms Have a Diversity Problem?

Wed, 02/26/2014 - 12:30

A few weeks ago, I asked a local solosmall email list whether small firms have a diversity problem. My question was prompted by a job posting from a small firm made up exclusively of young, white men (except for the secretary, who was a young, white woman).1 On reflection, I could not think of many small firms with any better diversity (including my own, which, at its most-diverse, was three white men and a remote assistant who was a white woman — oh, and a couple of Irish foreign exchange students from a local law school, both men).

But I didn’t think it was fair to apply my limited anecdotal experience to an entire segment of my state’s legal market, so I tried to crowdsource it. While it is relatively easy to survey big firms for diversity, it would be virtually impossible even to list all the firms with 2–20 lawyers or so in any metropolitan area, much less survey them for diversity.

I figured the members of my state’s solosmall listserv, who come from all over the state, would be able to give me a better idea of small-firm diversity. So I asked, and although I got well over 50 responses, almost nobody told me whether they had encountered diversity in small firms. Instead, I got responses like this:

[T]his resembles a camel in the Sahara, looking for sand. There’s plenty of it, but so what?

I’m really not sure what that means. I also got a lot of reactions like this one, suggesting that many lawyers took the question personally:

My firm consists of two lawyers – one fifty something woman, one thirty something man. Does the fact that we are both white mean that we have a diversity problem?

And a few anecdotes noting the existence of a person who is a member of a racial minority somewhere nearby:

There is an attorney of Chinese ethnicity in the Stearns County attorney’s office. Is that enough diversity for you?

(That one may have been a joke, to be fair, but there were many others essentially identical to it that were definitely not jokes.) Many of the responses went similarly, with an account of the sender’s firm’s makup, and a challenge — “Is that diverse enough for you?”

Just by asking about diversity, I guess I set myself up as a target for people who either don’t want to talk about diversity or don’t believe there is a diversity problem in small firms. I felt like I was asking the NFL about concussions.

It would be easy to assume that these comments come from people who are defensive because their own firms lack diversity, but that is not necessarily the case. Some of the lawyers I quoted about are diverse in their own right, or come from firms most would consider diverse.

So in the end, I still don’t know whether small firms are diverse, much less whether or not we should consider the existing level of small-firm diversity to be a problem. What I do know is that most small firms don’t do a lot of hiring. A very small firm may hire just a handful of people during its existence. That’s not a lot of opportunity to introduce diversity, and I wonder how many small firms even consider diversity when taking on a partner. Maybe a lot. Maybe none. And if small firms tend to be homogenous as a result, is that a problem?

One person who responded came at the issue from a different angle:

I started my career in Biglaw and periodically hang out at events where someone is addressing the “lack of diversity” in the profession – without questioning the unspoken assumption that “the profession” is big firms. Biglaw was invented by old white guys between 1900-1970, and it continues to bear all the hallmarks of its era. Expecting it to accommodate difference in any meaningful way is (in my opinion) like expecting a cruise ship to sprout wings and fly. That’s just not what it’s for.

So after hanging my shingle, imagine how fun it was to discover where the missing “diversity” was hiding… in plain sight, in solo practice. Pretty much every Title VII protected class I can think of is “overrepresented” among solos and smalls relative to Biglaw.

In other words, maybe solosmall, taken as a whole, is more diverse and that’s a problem.

Still, I am no closer to an answer, so I will try again. Do you think small firms are diverse? Do you think the level of diversity you have observed in small firms is a problem? Why?

Featured image: “Image of businesspeople’?? silhouettes in a rush” from Shutterstock.

  1. I did follow up with one of the owners. He said his first two hires were women, although the next few happened to be men. And even though the firm photo had only men, they recently hired a female lawyer who was not yet on the website. He said he was sensitive to the perception that his firm lacks diversity, and that the firm is doing its best to address it.
     

Do Small Firms Have a Diversity Problem? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Pad & Quill’s Handmade iPad Mini Cases

Tue, 02/25/2014 - 00:11

I basically gushed about Pad & Quill’s iPad 2 cases when I reviewed them in two years ago, so I was excited to get a pair of cases to review with my iPad Mini.

The Pad & Quill Graduate Collection

Pad & Quill’s Graduate Collection cases are bound like library editions of classic literature. When closed, that’s pretty much what it looks like — although if you look closely, you’ll see wood grain instead of trimmed pages. And not many library books have an elastic band holding them shut.

The bindery cloth is touch, and Pad & Quill claims it is much more durable than previous materials. It feels great in the hand, too — I just love to hold it.

The wood frame is a bit lower profile than the iPad 2 cases I tested. The rubber “bumpers” that hold the iPad Mini in place are slimmer, so the whole thing fits nice and tight, with the wood flush with the surface of the display. The “bookmark” makes it easy to get your iPad out, if you ever want to remove it.

The cover has an embedded magnet so that when you open the cover, your iPad switches on. There are spaces cut out of the wood for the iPad Mini’s speakers, volume buttons and mute switch (this is hard to access, though), headphone jack, rear microphone, and rear camera (which is covered by the elastic band when the case is closed).

The only part about the case that I really don’t like is the plastic “button” that passes through the wood to press the power switch. It sticks out too far — beyond the edge of the cover, in fact — which means it is easy to accidentally press. Even the elastic band can activate the switch.

On further testing, it’s not the button that is the problem. The wooden frame on my Graduate Collection case is just slightly misaligned with the cover, which means the magnet that triggers the wake/sleep function is just slightly misaligned. That means even light bumps will move the magnet and wake the iPad, so that I get the “click” sound of it going back to sleep. This does not happen with the Contega case I reviewed below. So it is a quality-control issue, which seems natural with any handmade product, and I’m confident Pad & Quill will stand behind their products in a case like this.

The other negative to the Graduate Collection cover is that it does not really offer a reliable way to incline the iPad Mini, either for more-comfortable typing or for video watching. Depending on the surface, you may be able to prop it up for video watching, but you might want the Contega for that, instead.

Pad & Quill’s Handmade iPad Mini Cases is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Strategic Planning for Small Law Firms

Mon, 02/24/2014 - 14:45

This article was originally published in the January issue of Minnesota Bench & Bar.

Pressed for time and averse to business jargon, solos and small law firms may be overlooking benefits of strategic planning that include more and better business over the long term.

If a small law firm is perfectly happy with its current status and future outlook, then it does not need a strategic plan. But really, how many firms can claim to be perfectly satisfied? Most small firms want more business and better business. To achieve this goal, these small firms need a strategic plan.

If you don’t know where you are going, after all, any road will get you there. Following many roads in random directions is inefficient and ineffective. If you do know where you are going, you can follow a specific and direct path to success.

When asked what their law firms should accomplish in the next few years, most small-firm leaders will say that they want to be more successful. They will say that they plan to do this by working harder and smarter. These vague aspirations, however commendable, do not constitute a plan.

It is not surprising that many small law firms lack strategic plans. Their counterparts at larger law firms have staff to manage the firm, so that the lawyers can concentrate on clients. Solos and small-firm lawyers must do it all themselves. As a result, strategic planning often takes a back seat to client matters.

What is Strategic Planning?

When attorneys hear the term “strategic planning,” their innate cynicism often takes over. They envision hours spent with a high-priced consultant who spouts arcane business jargon and then presents obvious recommendations. In other words, these attorneys envision a complete waste of their time and money.

Put these preconceptions aside. Strategic planning is not all that complicated. It is simply a process that forces a law firm to pause briefly to carefully consider where the practice has been, where it is today, where you would like it to be in the future—and how you can make this happen.

In other words, strategic planning is a process in which an organization defines its goals and then creates a plan to achieve these goals. The process forces busy lawyers, who are often scrambling to keep up with the day-to-day tasks of lawyering, to actually anticipate the future. Most plans cover one to three years.

A successful small law firm strategic plan should consider a firm’s unique culture and vision, emerging trends in the legal market that might provide opportunities, emerging threats in the market that might dictate a change of course, and any needed operational changes.

Plus, a strategic plan can be simple. In fact, less is more. Law firms should not try to accomplish too much, too soon. If initial goals are too ambitious and not reached, firm members will likely get discouraged and resist future efforts. Success in achieving smaller, simpler goals can create the momentum and confidence needed to achieve more difficult goals down the road.

Why Do Law Firms Resist?

Common obstacles to strategic planning include:

  • Lack of incentive. Strategic planning requires an investment in nonbillable hours, which are not rewarded by most law firm compensation systems. Many firms resist spending time on an activity that brings no reward.
  • Lack of consensus. Most law firms are democratic institutions that rely on consensus in order to get things done. Strategic planning may uncover difficult issues and spark differences of opinion. Many firms resist conflict and simply hope that a problem will go away.
  • Lack of leadershipStrong leadership is required when dealing with difficult issues. Often, when consensus is hard to achieve, a managing partner operating alone lacks the skills and political capital to effectively manage significant changes.
  • Lack of execution. Once created, even the best strategic plans must be implemented. This takes time and resources. Many firms find it easier to ignore a plan and concentrate on client matters.
  • Lack of accountabilityStrategic plans often impose no adverse consequences for inaction. Even if they do, the firm may not enforce these consequences. When lawyers fail to follow through on a plan’s tactics, they must be held accountable.
Step by Step Planning

1. Assess status and gather facts. One popular and straightforward strategic planning tool that can be used by a small law firm is a SWOT analysis, in which lawyers identify the firm’s strengths, weaknesses, opportunities, and threats. Most firms will already know what these are, but have never carefully considered them all in one place. Do not get carried away. Identify only the most important elements in each category. To be more thorough, use these questions to trigger discussion.

Regarding the marketplace:

  • Who are our competitors?
  • What do they do better than we do? What do they do worse?
  • What is our reputation in the marketplace? How can it be improved?
  • How can we distinguish our firm from our competitors?

Regarding internal issues:

  • How would we describe our firm culture?
  • What are our core values?
  • Do we have the right leadership? Are there gaps?
  • Are we getting work out efficiently, effectively, and in a timely manner? Which improvements are needed?
  • Are our marketing efforts adequate, or should they be upgraded?
  • Do we have the right number of the right kind of employees? Are our training needs being met?
  • Are any of our lawyers close to retirement? What changes will this bring about?
  • Is the firm the right size or should it be smaller or larger?
  • Are professionals and staff compensated fairly and consistently with our culture?
  • Does our technology allow us to compete in today’s culture?

Regarding external issues and trends:

  • Will any practice areas be impacted by changes in the coming years in the regional economy, legislation and regulation, and/or political climate?

Regarding clients and services:

  • Who are our top clients and what kind of work do we do for them?
  • How will their needs change in the future?
  • Which are our most profitable practice areas?
  • Should we reduce or eliminate some areas while growing or adding others, in order to meet client needs going forward?

When assessing client needs, do not rely only on lawyer perception of these needs. Lawyer and client perceptions may not be in alignment. Solicit direct client feedback via confidential interviews (usually for larger clients) and client questionnaires (usually for smaller clients). This information can also be used to identify (and plan for) future opportunities or potential loss of business.

2.  Organize and rank. The above discussions will uncover a lot of information. You cannot possibly deal with all of this information at once. To keep the strategic planning process simple and focused, concentrate on perhaps three or four issues. If these issues are not immediately obvious, discuss one further question:  What worries us most about the firm’s future? The answer to that question will inform your list.

Some of these issues may be longstanding problems that have not yet reached crisis level, but have been neglected for too long. Thus, strategic planning not only forces small law firms to consider the future, it also motivates them to proactively tackle lingering problems that have been holding them back.

3.  Create a plan. With the information gathered and priorities ranked, it is time to create an action plan. This document should be short and simple. It should address:

  • What are the three or four realistic goals for this plan? Don’t be tempted to expand the list. Less is more.
  • How will we achieve these goals? What are the specific tactics (including “to-do” lists).
  • Who is responsible for accomplishment of a tactic?
  • What are the final deadlines and interim deadlines?
  • How will the firm measure and reward results?
  • Will the firm offer disincentives to ensure accountability?

4.  Just do it! The most difficult part of any small law firm strategic plan is execution. The best strategic plan will be wasted if it just sits on the lawyers’ desks gathering dust. To avoid this result, progress towards meeting plan goals must be monitored regularly.

Constant monitoring is critical to hold people accountable, so everyone involved knows who is walking the talk and who is not. Results must be measured and communicated. It is also critical for making revisions. Perhaps some assumptions were incorrect or a tactic is not working as planned. Perhaps a lawyer has left the firm. A strategic plan is a flexible, living document—not etched in stone.

Most often, monitoring is best accomplished by holding regularly scheduled meetings each month. These meetings can be short, allotting just enough time for each person to give an update. If changes need to be made to the plan, a little extra time can be added.

Including Others

Associates and Staff. There are pros and cons to including associate attorneys and law firm staff in the strategic planning process. On the plus side, they can provide a unique perspective on issues, providing a more accurate and well-rounded picture. Including associates and staff also sends a positive message that the firm is inclusive and values the opinions and contributions of everyone—not just the partners.

On the other hand, associates and staff do not have an ownership stake in the firm and will be less immediately affected financially by any changes that are part of the strategic plan. Also, there may be certain issues that are better kept confidential.

When it comes to inclusiveness, there are no hard-and-fast rules. In the opinion of many experts, expanded participation should be seriously considered for some parts of the process.

Outside Consultants.  A disciplined small law firm should be able to work through the strategic planning process on its own, but many find this process far easier when it is facilitated by an outside consultant. A skilled consultant can:

  • Keep the process moving along by avoiding side-tracks;
  • Rein in uncooperative partners;
  • As an objective outsider, obtain more accurate perceptions about the firm from the partners;
  • Question long-held (but possibly outdated or incorrect) assumptions and beliefs that cannot be raised by partners due to firm politics; and
  • Provide an independent and objective voice to the process when individual lawyers are tempted to favor their own vested interests over the firm’s.

Although all types of businesses engage in the strategic planning process, law firms offer some unusual challenges. It is usually best to retain a consultant who has worked with law firms and is attuned to their economics and business development practices. In addition, an experienced consultant will have a better understanding of the unique lawyer personality and what makes lawyers tick.

For all of the reasons mentioned above, solo practitioners should also engage in the strategic planning process. On one hand, the process is simpler. On the other hand, it can be harder for a solo practitioner to stay on track without peer pressure to do so. Even solos can benefit from the discipline imposed by an outside consultant.

Conclusion

Small law firms that want more business and better business cannot achieve these results simply by wishful thinking. They need a direct roadmap to get from where they are today to where they want to be tomorrow. They need to follow that route without getting side-tracked.  They need a strategic plan.

Featured image: “Creative businessman looking to develop innovative business plan” from Shutterstock.

Strategic Planning for Small Law Firms is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

This Post is Privileged and Confidential

Thu, 02/20/2014 - 20:47

But you started reading it anyway.

We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words privileged and confidential — or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected email or the surfer of a law firm website. Disclaimers seem to have spread like a consensual virus — a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his own materials.

Website Disclaimers

Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an email or contact form sent to the law firm until the firm has agreed to enter into an attorney-client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.

There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. The Virginia State Bar Committee on Legal Ethics did issue an opinion that compared websites to advertisements in the Yellow Pages. Just as a prospective client who obtains a lawyer’s phone number from a Yellow Pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an email message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer  a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.

Website disclaimers are designed to address the exact same situation repeatedly: stranger v. law firm. No disclosure of an existing client’s confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).

Email disclaimers, however, are a different and dangerous breed.

Email Disclaimers

They probably have their roots in that antiquated technology: the facsimile transmission (which our ancestors colloquially referred to as a fax).  Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer starting putting a disclaimer on the fax cover sheet. That way, the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using email, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected email with a warning to those who receive messages that were not intended for them.

Now, probably 80% or more of the emails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the email is “privileged and confidential;” most suggest that the email “may” be privileged and confidential (how I should determine whether it is or not is not explained), and either ask or demand that I notify the sender, and destroy the email and any paper copies I may have printed.

There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing.  Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule).  So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.

Undermining Disclaimers Through Overuse

Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).

In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.

Using Disclaimers Appropriately

Appropriately used, disclaimers may allow lawyers to rescue misdirected emails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the email is not clearly apparent on the face of the email.  Those disclaimers should be sparingly used, appear at the beginning rather than the end of the email,  and state that information in the email is confidential or privileged only when it really is. That way, unintended recipients might really sit up and take notice when they see privileged and confidential declared in an email.

This was originally published on November 17, 2008. It was (lightly) revised and re-published on February 21, 2014.

Featured image: “confidentiality” from Shutterstock.

This Post is Privileged and Confidential is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Dropbox Amends its Terms of Service to Add Mandatory Binding Arbitration (Also, No More Class Actions)

Thu, 02/20/2014 - 20:28

Here is the new provision in the new terms of service:

We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

From now on, you’ll be using the American Arbitration Association if you have a dispute with Dropbox. Oh, and no more class actions, either:

No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.

Presumably, this would include things like a disagreement over whether Dropbox should have given up your files to spy agencies or law enforcement without a fight.

Don’t worry, though, you can opt out — but only until April 23rd. (It doesn’t look like the opt-out applies to the class-action waiver. You’re just SOL for that.)

Dropbox Amends its Terms of Service to Add Mandatory Binding Arbitration (Also, No More Class Actions) is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Your Clients Really Are Crazy

Wed, 02/19/2014 - 21:57

Lawyer and psychotherapist Elizabeth Wittenberg starts her article, “Are Your Clients Making You Crazy? How to Avoid Drama with Maddening Clients,” with this eye-opening quotation:

Statistically, over 9 percent of American adults have a diagnosable personality disorder … .

In other words, it is not your imagination; some of your clients really are crazy. In fact, depending on the kind of law you practice, the percentage of your potential client base with a diagnosable personality disorder is probably substantially higher than the average.

Personality Disorders

A personality disorder, according to Wittenberg, is an “enduring pattern[] of behavior and subjective experience that affect[s] a person’s thinking, feeling, relationships, and impulsiveness.” And, she says, “Often the affected person sees these patterns as perfectly reasonable and appropriate despite their dramatic, negative impact on her daily life and the lives of those around her.”

People with personality disorders have “limited life scripts” and usually behave in “fixed, unyielding ways” that often force people around them to play implicitly-assigned roles like caretaker or bad guy. In other words, personality disorders have a sort of ripple effect on those around the person with the disorder — clients with personality disorders can make you crazy, too.

Common Personality Disorders

Here are a few common personality disorders you might see in your practice:

Disclaimer: I am not a psychologist; everything in this post is based on Wittenberg’s article, which you should definitely read.

Narcissistic Personality Disorder

Narcissistic personality disorder is a condition in which people have an excessive sense of self-importance, an extreme preoccupation with themselves, and lack of empathy for others. (from NIH.gov; also, see Wikipedia)

Wittenberg says clients with NPD are often cooperative and engaged, at first, but they will start blaming others and lashing out if unexpected problems arise. She says it is very difficult for clients with NPD to take responsibility for anything, or even to admit they played a role in their problems. And they don’t like to be called on it. Clients with NPD may storm out of your office if you point out the role they played in creating their problems.

Narcissism often conceals extremely low self esteem, which narcissistic individuals conceal beneath a self-important shell, reinforced by affirmation and acclaim from people they admire. Wittenberg recommends helping narcissistic clients maintain their self-esteem by treating them with utmost courtesy and respect. Go along with their desire to see you as worthy and high-status. Let them think of you as “the best,” but be careful not to appear to compete with your client. As exceptional as your client wants to think you are, you must come in second to him. Suppress your irritation at your client’s bragging and witticisms; narcissistic clients need your endorsement, and they will probably settle down and stop begging for it if you stroke their ego a little bit.

Where things get especially difficult with a client is in settlement, particularly in criminal matters, where the client may have to acknowledge some responsibility. You must convey to the client that you are on her side, and explain why it is necessary to accept some responsibility while preserving as much self-esteem as possible.

Do not fell into the trap of getting demoralized while working with a narcissistic client, who will never recognize the quality of your work. Satisfy yourself that your work is up to par, and do not get preoccupied if your client does not recognize it.

Antisocial Personality Disorder

Antisocial personality disorder is a mental health condition in which a person has a long-term pattern of manipulating, exploiting, or violating the rights of others. This behavior is often criminal. (from NIH.gov; also, see Wikipedia)

According to Wittenberg, “[p]eople with Antisocial Personality Disorder or features of this disorder often come into contact with the legal system. That’s because a key marker of this disorder is ‘failure to conform to social norms with respect to lawful behaviors … .” That does not necessarily mean criminal behaviors, but people with ASPD have an “overriding motivation to pull something over on others,” and take pleasure in consciously manipulating people. You are as likely to find them at the head of a corporation as in the back of a police cruiser. They are reckless, lack remorse, and are highly impulsive. They either rationalize the harm they do to others, or don’t care.

People with ASPD need to control others and to feel powerful. Like narcissistic clients, they may brag and deny responsibility for their problems, but they will do it in different ways. A client with ASPD is more likely to brag about illegal activities and characterize illegal activity as something everyone else does, too. They also lie a lot.

Put this together, and clients with ASPD can be dangerous to work with. Wittenberg says “[t]he most important thing … when working with antisocial clients is … to maintain safety.” Schedule meetings when other people will be around. Adopt a firm and direct approach so you are seen as strong, not weak. Be rigid when it comes to expectations, billing, and other aspects of the representation. (Antisocial clients are a good reason not to be lenient with payment plans, or not to accept them at all. They will take pleasure in skipping out on your bill.)

In order to forge a relationship with an antisocial client, you have to play to her need to control. Make yourself useful to her by showing her you can help her get what she wants if she works with you. In discussing the legal matter, focus on consequences, not legality or morality.

Antisocial clients will tell you only what they think you need to know, and usually omit details in their narratives. You must elicit detail without challenging your client, which could send him into a rage.

You will probably feel uncomfortable with antisocial clients, and possibly contemptuous of them. You may even be afraid of them.

If you find yourself working with antisocial clients, do not allow yourself to be intimidated or cheated. Be skeptical of everything you hear (a good quality for a lawyer, anyway), be safe when meeting with your client, and protect yourself financially with adequate retainers.

Borderline Personality Disorder

Borderline personality disorder (BPD) is a mental health condition in which a person has long-term patterns of unstable or turbulent emotions. These inner experiences often result in impulsive actions and chaotic relationships with other people. (from NIH.gov; also, see Wikipedia)

People with BPD are, in a word, unstable. They may even be suicidal, and often engage in other self-destructive behavior. “Clients with [BPD] … can be lots of fun to work with, until suddenly they’re not” says Wittenberg. The trouble is, you may not get any clues that a client has a borderline personality until it emerges later in the representation. In fact, in the beginning, she may be the perfect client — up until something happens to upset her idealized form of your representation.

In legal matters, BPD may introduce intense, inappropriate anger. Clients with BPD may fly off the handle and abruptly terminate relationships — including your representation. Threats of ethics complaints and malpractice lawsuits inevitably follow, when a borderline client terminates your relationship in anger.

Clarity, consistency, and structure will help avoid this result. Regular status calls or emails are especially important to borderline clients, and you should be prompt in returning communications, even if it’s just to acknowledge that you will follow up.

Representing a borderline client can be a roller coaster ride. Resist the ups and downs by staying calm and level. Borderline clients challenge you to reject them. If you stay the course, you will be able to do the work you were hired to do.

You Cannot Avoid Clients with Personality Disorders

Dealing with clients with personality disorders sounds like a lot of trouble, and you may be tempted to resolve never to represent such clients. But, discrimination laws aside, personality disorders may not be clear at the outset of the representation, for one thing. For another, if a tenth (or more) of your potential client base has a personality disorder, chances are good you will end up dealing with a disordered client sooner rather than later, anyway.

If you understand your clients’ personality disorders just well enough to work with their needs, you can still be an effective advocate while making your clients happy.

This was originally published on March 6, 2013. It was revised and republished on February 19, 2014.

Featured image: “Crazy businessman making funny faces” from Shutterstock.

Your Clients Really Are Crazy is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

The Best Way to Blog

Wed, 02/19/2014 - 11:26

Clean, simple, responsive law blogs.

A good law blog is a powerful tool for professional and business development. Thoughtful, well-written blog posts attract readers, comments, links, likes, and shares. A good blog builds your reputation and expands your network.

The critical component of a great law blog is, of course, the words on the page — the content. That comes from you, the blogger. But it also matters where you publish that content, and we think we have just the place.

We launched Lawyerist Sites last year to build custom websites for law firms. Now, we are adding clean, simple, responsive law blogs for just $20/month.

Ready to sign up? Get started now!

The clean, beautiful design (here is what it looks like) puts your words where they belong: front-and-center. After all, readers are why a blog exists. Your blog will draw them in and make them feel welcome. The focus is on you and your writing, but we also make room for your photo or logo, your social media profiles, and About and Contact pages that you can modify yourself.

Your blog will be responsive, too. Even with an audience mostly made up of lawyers (notorious Luddites that we are), nearly a third of Lawyerist’s readers visit from a phone or tablet. Non-lawyers are even more likely to visit from a mobile device. Your blog will look great no matter what size screen it is being viewed on.

Your blog posts will also be featured on Lawyerist in at least one of the following ways. First, every post in the network is featured in the “More from Our Network” section of the Lawyerist front page. Second, we will take the best posts and put them right up top, in the “Featured Posts” section of the front page, with a link back to your blog. Third, we will highlight posts from our network in our email newsletter with (as of this writing) over 22,500 subscribers.

Finally, our blogs are easy to set up, because you should be writing, not fiddling with settings. If you can send an email, you can operate a blog. And every blog comes with personal customer support. We will take care of the technology so you can focus on writing.

Get started now or learn more about blogging with Lawyerist.

The Best Way to Blog is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

A Criminal Defense Lawyer’s Trip to Rock Bottom and Back

Tue, 02/18/2014 - 10:18

There are two primary outcomes in a desperate struggle with addiction. The first is to keep going until you die. The second is to get caught.

After roughly a year and a half of active addiction to cocaine, Chuck Ramsay appeared to have decided upon the first. He looked in the mirror, admitted to himself he had a problem, but didn’t know how to keep living without coke. So he decided he would just keep using – keep using coke until he died.

“I just loved the feeling.”

Then, abruptly, his life veered toward the second outcome: Ramsay was caught for using coke inside the courthouse while representing a client facing a felony charge. This was 2009. In 2010, Ramsay faced disbarment—fortunately the Minnesota Supreme Court opted for a 90-day suspension—but in 2011, just one year later, despite the arrest, the night in jail, the professional discipline, the shame and discredit he brought upon himself and the profession, Ramsay was an “Attorney of the Year” in Minnesota Lawyer.

In short, Ramsay went from loving cocaine to loving himself (and others) more than the feeling coke gave him, which turned out to mean everything in his recovery.

Falling in Love with Cocaine

It starts with a feeling.

“I absolutely loved it,” Ramsay said. We sat across from each other at Claddagh Coffee (for the Irish, the Claddagh ring represents love, loyalty and friendship) on West 7th in St. Paul, Minnesota, two mugs of coffee between us on the table. Ramsay’s no-bones admission: “I just loved the feeling.”

This feeling—Ramsay refused to describe it, refused to glamorize it—is euphoria. Cocaine is a stimulant, an “upper.” Ramsay was 18 his first time, after a high school grad party in the 1980s, and the feeling latched itself to him.

Then followed two decades of occasional use before the feeling got stronger, led to what Ramsay called his steep decline, and he began to use more and more often, in greater and greater amounts, until he found himself in a courthouse with his hands behind his back, cuffed. By then, cocaine had become his performance enhancer. Cocaine made him a super lawyer. So much so that Ramsay was plowing through grams of coke on the day of his arrest, soldiering on, winning another favorable result for another client.

The prosecutor, however, noticed his mood swings. Someone saw Ramsay leaving the restroom, sniffing and pinching his nose. In came the drug dog. They found cocaine residue on a table and in his briefcase. Earlier, Ramsay had yelled at the bailiff because there were no conference rooms available. Ramsay thought they were interfering with his ability to meet privately with his client. “I was oblivious,” he said. In reality, the authorities were busy gathering evidence against him.

Ramsay didn’t have a clue he’d been caught until the moment of his arrest.

By then Ramsay had roughly a decade behind him in practice as a criminal defense lawyer. Ramsay had come to believe, that through sheer force of his will, he could govern the outcome of his cases. The facts didn’t matter. The evidence didn’t matter. He believed, not in God, but in Chuck Ramsay. He believed, like the egomaniac he said he was, in his power to guide the moon and stars.

So it was that Ramsay thought he could control his use of cocaine by setting ground rules.

“How the hell can I go on without using?”

“We are all terminally unique,” Ramsay said, referring to people who suffer from addiction but don’t quite know it yet. Addicts rationalize. They believe they’re different from everyone else, special, immune from disease. These ground rules were Ramsay’s immunization: He would use once a month, on the weekends only, never on a weekday.

You know what happens. One by one, those ground rules gave way, even those that weren’t explicit. Ground rules, perhaps a sign of addiction in themselves, weren’t enough to keep Ramsay from spiraling. He said, “If taking drugs in the courtroom helped me to be number one, I would’ve done it.” He paused, looking at me. “I did do it.”

Just as troubling was his “alien,” as he called it, the physical testament to the havoc coke wreaked on his body. Ramsay blew his nose in the shower and the lining of his sinuses fell out on the tile floor.

The alien looked like strips of raw bacon.

Losing Cocaine

“How the hell can I go on without using?” he asked himself after the arrest.

But in a case that marked the start of Ramsay’s period of active addiction, roughly a year and a half before the arrest, the client had been accused of taking part in the violent gang rape of a woman in her apartment. (Not that it should matter, from a criminal defense lawyer’s perspective, but Ramsay had reason to believe in his client’s innocence, which only added fuel to the fire.) On the eve of trial, the father of the client laid a hand on Ramsay’s shoulder and said, “I trust you, Mr. Ramsay. My son is in your hands.” To hear those words, to feel the hand on his shoulder, meant the loss of Ramsay’s power to guide the moon and stars, to control the outcome without breaking his ground rules.

On Sunday night, Ramsay put the finishing touches on the case, though he didn’t need to. He was prepared, but he felt he had to, wanted to, so he used cocaine to work through the night without sleep. The sun came up. Jumping from the desk to the shower, Ramsay stood under the water, exhausted, so he used again, and again at noon when he started crashing.

“I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine ….”

Ramsay worked the case. Ramsay won the case. He went on to rack up several more wins. Win after win after win—all while on coke—proving to himself and everyone else that he was a super lawyer. “I took it seriously,” he told me. “I am a ‘super lawyer.’” But after the arrest came a much different thought: “I was honestly scared shitless that I would become this inferior attorney because I didn’t have cocaine,” he said, and worried he would promptly fall into a slump of mediocrity.

On the morning of our interview, I was nervous to meet Ramsay, knowing I’d sent him a number of very pointed, very personal questions about his struggle with addiction, which has surely been the seminal challenge of his life. Yet, as he reached out to shake my hand, I felt a certain calm energy. Right off he told me he didn’t want this story to be just about him. He told me he was doing this to help other lawyers struggling with the disease of addiction. “There’s a huge stigma,” he said, “both those addicted to alcohol and certainly those addicted to drugs. It doesn’t have to be that way. It’s a disease. It’s a disease no different than cancer.”

Here lies the debate. Some people, even some addicts, believe addiction is not like cancer; choice is within the addict’s power, willpower will help one overcome. Others believe, like Ramsay, that disease is disease, worthy of both medical (and if the situation warrants it, spiritual) attention.

Ramsay appears to fall somewhere on both sides of this debate. I suspect that many addicts who have “come back” like Ramsay fall on both sides as well. Ramsay didn’t want this story to be about him, but this is one man’s life and no other’s, and to the extent it is a story about Chuck Ramsay, it’s also about all of us. Whether or not addiction is a disease, we are all susceptible in varying degrees, and we owe it to ourselves and to others to do our best to come back.

So it happened that the week of our interview marked the five-year anniversary of Ramsay’s arrest in 2009, and far from falling into a slump of mediocrity, it has been just the opposite for him. It turns out he never needed cocaine to be a super lawyer.

Learning to Love Yourself

Ramsay is in his late-forties now, and cocaine is still as much a part of him as it was at 18, though he hasn’t used since relapsing 10 months post-arrest. His worst vice these days is the Claddagh coffee. “I’m an addict,” he told me, and while the feeling Ramsay said he loved is no longer latched to him, recovery is a life-long process.

At first, he worried about his law practice — and whether he would have a license to practice at all. He worried about the two separate notices the court required he send to clients, one for the initial arrest and the other for the 90-day suspension. He also worried that recovery would change his personality, the essence of who he was.

“Addiction is the great equalizer. Humans are humans.”

As often as Ramsay mentioned cocaine during our interview, he also mentioned the person he used to be, with or without coke — his short fuse, his belief he could control everything and everyone around him, and the recurrent thought he had that he had to be “the best” at whatever cost.

Here is Laurel Dalrymple, writing for NPR in the wake of Philip Seymour Hoffman’s death from heroin: “Addiction is the great equalizer. Humans are humans.” To a greater or lesser extent, because we are human, we all have it — the potential for megalomania, the control issues, the fear and anxiety, the possibility of becoming addicted—to something, anything—and to forget or ignore the most important thing of all: to work on being better.

Ramsay told me that this is the big secret of recovery.

Kicking drugs and alcohol is just one part of learning how to be a better person. “If you only knew,” Ramsay said, “about all the lawyers and judges and prosecutors in treatment.” You might be, in other words, more likely to come forward. There is no need to come out and declare yourself an addict or alcoholic. Make a call to your jurisdiction’s version of Lawyers Concerned for Lawyers, which does not rat on those who call for help. (Indeed, the ethics rules in Minnesota make what you say to LCL privileged; check your local rules for guidance.)

As part of learning to be a better person, Ramsay knows that he is responsible for nothing but his day-to-day effort. He is not responsible for the outcome of a case, as much as he would like to control the outcome. Call it God’s plan. Call it a higher power. Call it whatever you want, but his job as a criminal defense lawyer today is less about Chuck Ramsay as it is about the people he defends.

Perhaps a piece of objective evidence speaks louder: Ramsay was among those bestowed with the “Attorney of the Year” honor in 2011 for his work on the Source Code Defense Litigation Team, which helped coordinate a massive attack on the government’s proof regarding breath tests in thousands of DWI and implied consent cases across the state. (Aside: Only two or three clients left Ramsay after he sent the court-ordered notices; many of Ramsay’s clients understand a thing or two about addiction, which is one—perhaps the salient—reason Ramsay handles mostly DWI-defense and implied consent cases today.)

As much as any honor or award stands as an objective indicator of success, it’s a testament to the fact that Ramsay, as he works to be a better person, makes of himself a better lawyer — certainly just as good a lawyer off cocaine than he was on it.

At one time Ramsay “absolutely loved” cocaine. Now it’s about drinking Claddagh coffee and sharing his experience with addiction, running marathons and doing Crossfit, practicing law, being a father to his children, and (yes) going to recovery meetings. And life, he told me, is “absolutely amazing.”

I believe him.

Featured image: “Cocaine” by Lee Morley is licensed CC. The image has been cropped.

A Criminal Defense Lawyer’s Trip to Rock Bottom and Back is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority

Thu, 02/13/2014 - 12:08

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic.

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.

If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.

In this article, I explain six different methods to knock down adverse authority and illustrate them with examples from the best litigators. At least one method should apply to your opponent’s cited authority. If not, you may consider settling the claims.

Your Opponent’s Case Is Not Binding

Say you are before the Sixth Circuit and your opponent relies heavily on a prior Sixth Circuit opinion. Without even reading the opinion, your initial assumption would likely be that the case is binding. But you may be able to argue that the opinion does not bind your court. Here are three ways to do so.

First, you could show that your opponent’s authority conflicts with binding authority, such as a recent Supreme Court case or a newly-enacted statute or regulation.

Second, you could establish that the prior case did not actually address the precise issue in your case. In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the issue before the U.S. Supreme Court was whether a public agency’s moratorium constituted a “taking” under the Fifth Amendment. In representing the agency, Chief Justice Roberts explained why a prior Supreme Court decision did not control.

Nothing in First English, or, for that matter, Justice Brennan’s dissent in San Diego Gas & Electric, 450 U.S. 621, requires or even suggests that a temporary moratorium on development be treated as a per se taking. Indeed, notwithstanding petitioners’ repeated and profound misreading of the Court’s holding in First English, the Court never reached the merits of the takings issue, even in dictum.

. . .

Notwithstanding petitioners’ repeated attempts to convey the impression that the Court actually determined that a taking had occurred in First English, this Court specifically declined to review the merits of the takings claim. The Court expressly “reject[ed] [the] suggestion that . . . we must . . . resolve the takings claim on the merits before we can reach the remedial question.” Id. at 312-313. Leaving no question as to the scope of its holding, this Court stated: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321 (emphasis added).

By quoting the opponent’s cited case, Chief Justice Roberts left no room for doubt on whether a “taking” was at issue in that case.

Third, you could argue that your opponent relies on mere dictum, not a holding. This argument is especially effective when the dictum is from an intermediate appellate court. But it is not as persuasive when the dictum is from the highest court in the jurisdiction, unless the court’s composition has changed since the prior decision.

Use a Seemingly-Adverse Case as a Sword

I love using cases that my opponent cites to support my argument. My opponent cannot then argue—and maintain credibility—that the case is logically flawed. In the next example, the defendant used plaintiff’s cited case as a sword to prove that the Copyright Act preempted the conversion claim.

Plaintiff relies on Seastrunk v. Darwell Integrated Techs., Inc., No. 3:05-CV-0531-G, 2006 U.S. Dist. LEXIS 46576, at *17-19 (N.D. Tex. July 10, 2006), which actually supports preemption here. In that case, the court concluded that the conversion claim was not preempted for the sole reason that plaintiff alleged that the defendant “withheld [plaintiff’s] software in its tangible forms.” Id. (emphasis added). That case stands for the unremarkable point that the Copyright Act does not preempt claims for conversion of tangible property (such as a compact disc), even if that tangible property contains the plaintiff’s intellectual property (such as the music on the compact disc). But in this case, Plaintiffs allege that Defendant only converted “Plaintiffs’ intangible copyright property.” Thus, Plaintiffs’ conversion claim is preempted.

Point Out Any Distortions

Another great way to refute your opponent’s authority—and to undermine his or her credibility—is to point out that the attorney has misrepresented the authority. This is exactly what Chief Justice John Roberts did in his reply brief in Intergraph Corp. v. Intel Corp. He represented a subsidiary (Intergraph) and argued that its parent corporation (Intel) could not have licensed the subsidiary’s patents because the subsidiary never consented to the license. Chief Justice Roberts effectively identified the misrepresentation.

The lone Delaware case relied on by Intel, Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171 (Del. 1988), likewise supports Intergraph’s position. In that case, the court held that “in a parent and wholly-owned subsidiary context, the directors of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholders.” Id. at 1174 (emphasis supplied). In its brief, however, Intel distorts this quotation by substituting the words “parent company” for the words “directors of the subsidiary,” thereby falsely implying that it is the parent company, and not the directors of the subsidiary, that actually manages the subsidiary’s affairs. Intel Br. 24-25. The fact that Intel must deliberately distort the language of this decision highlights the futility of its position.

When pointing out a misrepresentation, attack the sin, not the sinner. In other words, resist the urge to call your opponent names. If your opponent misleads the court, it digs its own credibility grave.

Flawed Reasoning

For adverse cases that are not binding, you could demonstrate that the reasoning behind the decision is flawed. You could argue that an adverse case relied on authorities that, on close examination, do not support its holding. Or you could show that the logical extension of your opponent’s cited case would create absurd results, as Judge Frank Easterbrook did in Kissinger v. Reporters Committee for Freedom of the Press. The issue was whether the lower court erred in granting a remedy without first concluding that the Freedom of Information Act was violated. In Point Made, Ross Guberman sets forth Judge Easterbrook’s argument (key language is italicized):

The remarkable thing about the district court’s opinion (which was adopted by the court of appeals) is that it awarded extraordinary equitable relief under the FOIA without ever finding that a violation of the FOIA had occurred. The court apparently found that the Federal Records Acts of 1950 . . . had been violated by an improper removal of the notes. It then invoked its equitable jurisdiction under the FOIA to restore the notes to the agency for disclosure under FOIA. This holding necessarily means that anyone can sue an agency and compel it to retrieve records removed in violation of the agency’s records-management rules; it supplies, in effect if not in design, a private right of action to enforce the Records Act. This holding cannot be reconciled with the fact that . . . the Federal Records Act . . . [does not] create a private remedy to enforce agency record-keeping obligations.

Although Judge Easterbrook was referring to the flawed reasoning of the lower court, the same principles apply to attack adverse cases.

But do not waste time or space discussing the flawed reasoning of a binding case. Even if your trial court wants to agree with you, it cannot disregard the binding authority; don’t ask a court to do something it cannot do.

Almost Everybody Agrees with Us

Many people prefer to follow the crowd. So, too, with judges. (They are people, after all.) Thus, if you spend time researching, you might find that the majority of courts agree with your, not your opponent’s, position. This method of refuting adverse authority is highly persuasive when binding authority is lacking. Here is an example from Justice Elena Kagan when she was the Solicitor General:

In contrast, the majority of the courts of appeals that have considered the question have held, in accord with the court of appeals in this case, that the statutory maximum penalty in a drug conspiracy case turns on the jury’s determination of the type and quantity of drugs involved in the conspiracy as a whole. See United States v. Seymour, 519 F.3d 700, 709-710 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008); United States v. Stiger, 413 F.3d 1185, 1192-1193 (10th Cir.), cert. denied, 546 U.S. 1049 (2005); United States v. Phillips, 349 F.3d 138, 140-143 (3d Cir. 2003), vacated on other grounds by Barbour v. United States, 543 U.S. 1102 (2005); United States v. Knight, 342 F.3d 697, 709-712 (7th Cir. 2003), cert. denied, 540 U.S. 1227 (2004); United States v. Turner, 319 F.3d 716, 721-723 (5th Cir.), cert. denied, 538 U.S. 1017 (2003); Derman, 298 F.3d at 42-43.

In just one sentence, Justice Kagan explained that the “crowd” agreed with the government’s position. But her citations would have been more persuasive had she included parentheticals showing how the cited cases support the proposition.

Different Facts = Different Outcome

Sometimes your opponent’s best authority is a binding case. The go-to method in this situation is to distinguish the adverse case. Although distinguishing adverse authority is commonly used, attorneys often do it ineffectively. Attorneys usually state that the adverse cases are “distinguishable” and then list the facts and holding of each case without explaining why the cases are distinguishable, losing the judge in the details. And judges don’t like to be lost.

In the following example, the former Solicitor General, Paul Clement, dismantles his opponent’s leading case. In Equifax Information Services, LLC v. Soutter, the district court certified the class and one issue for the Fourth Circuit was whether the alleged inaccuracies in about 300,000 credit reports presented common or individualized issues of fact.

The district court failed to understand the individualized nature of the inaccuracy question before it because the court viewed this case as a close cousin of the FCRA class this Court approved in Stillmock v. Weis Markets, Inc., 385 Fed. App’x 267 (4th Cir. 2010). J.A. 712–13. But this case is nothing like Stillmock. There was only one “question” in that case, and it could generate a common answer for all class members: whether the defendant’s “repeated identical conduct” (printing receipts showing the consumer’s entire credit card number in violation of the FCRA) was willful. Stillmock, 385 Fed. App’x at 273. . . . Each consumer [in Stillmock] had been exposed to an “identical risk” as a result of uniform conduct. Id. at 273. The court could answer the question of willfulness once, on a classwide basis, because each class member had experienced the same violation based on the same conduct under the same circumstances. Under these unusual circumstances, this Court not surprisingly viewed it as a relatively simple process to resolve the FCRA claims on a classwide basis. See id. at 272–75. But the FCRA claims at issue here are entirely different. Hundreds of thousands of individual inaccuracy determinations cannot be equated with a single, unitary willfulness determination.

Mr. Clement discussed only the relevant details about the adverse case and specifically identified why the case did not apply. As a result, the judges could easily grasp the key distinguishing fact between the two situations.

Concluding Thoughts

You have just learned six methods to refute adverse authority. Many times, just one method is sufficient. But for your opponent’s best authority, you should attack it with more than one method. For instance, you could demonstrate that a case is not only distinguishable but also not binding on your issue. And the best place to refute your opponent’s best authority is in your initial motion or brief. (Don’t take my word; ask Justice Antonin Scalia and Judge Richard Posner.) By affirmatively addressing the adverse authority, you can present it in a light most favorable to your client without sounding defensive.

Featured image: “Miguel Flying Kick” by Boso is licensed CC BY 2.0. The colors in this image have been adjusted and a vignette filter was added.

The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Encryption: Enabling Basic Client File Security

Tue, 02/11/2014 - 17:55

If you do not encrypt your files, do you lose sleep worrying about losing a laptop full of client data? If not, you should. The data on most laptops is worth more than the hardware. A lawyer’s laptop is a treasure trove for an identity thief.

All a thief has to do is plug your hard drive into their own computer to get access to all the important data. Here’s how that works:

Here’s the thing: encrypting your client files is easy. It is easier than setting up your email software. It is easier than creating a pleading caption in Word. It is easier than backing up your files. It is easier than most of the five things I wish you would learn about computers. It is easy enough that you should already have done it. If you have not, though, here is how:

  • On Windows Vista, Windows 7 Ultimate, or Windows 8 Pro, go to the Control Panel, click on BitLocker Drive Encryption. Click Turn on BitLocker. Windows will walk you through the remaining steps. If you want the full nitty-gritty manual, Microsoft TechNet has a tutorial that makes it look way more complicated than it is.
  • For all other versions of Windows, download TrueCrypt, install it, start it, and go to Setup > Encrypt System Partition/Drive. Select Encrypt the Windows system partition, and let TrueCrypt walk you through the remaining steps. Once again, a nitty-gritty manual, this time from University College London.
  • For Mac users, go to System Preferences, click on Security, then FileVault, then Turn On FileVault.

Turning on encryption — including downloading TrueCrypt, if you select that option — should take about a minute. Your computer will take longer to actually encrypt your data, but you can use your computer while it’s finishing up. And once your files are encrypted, you really don’t have to think about it anymore. Your computer will encrypt and decrypt on the fly. You can still open, edit, email, and print files as you always have. But you will have the peace of mind that comes with knowing your client files are a lot safer.

So now that you’ve got no excuse, get to it. Even busy lawyers can find a minute or two to drastically increase client file security.

This was originally published on March 31, 2011. It was revised and the video was added on February 11, 2014.

Featured image: “combination lock dial” by LEOL30 is licensed CC BY-NC-SA 2.0.

Encryption: Enabling Basic Client File Security is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

How to Keep Track of Your Time

Mon, 02/10/2014 - 01:07

Tracking your time rather than reconstructing it at the end of the month turns out to be really important. As in, not-overbilling-your-clients-by-23% important. Whether or not you share your time records with your clients in real time, you do need to keep a time log.

Hopefully that is a no-brainer for everyone who reads this post, but I doubt it. I have known plenty of lawyers who reconstruct time at the end of every month — or every couple of months — from their calendar, emails, and memory. Even if you only put together your bill at the end of the month, you need to track your time as you go. These are the major tools for doing that.

However you decide to track your time, pick a method and stick to it. When you sit down to assemble your invoices, the fewer places you have to go to get the raw data, the better. The more methods you use to track your time, the more mistakes you will make.

Paper

There is nothing wrong with paper. In fact, paper has a lot of advantages when it comes to tracking time. Just keep a cheap notebook or a stack of index cards with you at all times, and write down what you were doing and how much time you spend doing it.

(There are all kinds of print-your-own templates and fancy timekeeping notepads out there, if you want to get fancy, but you don’t need them.)

Spreadsheet

Spreadsheets are pretty ideal for timekeeping, and with Google Docs, iWork, and Office cloud apps, they are quite portable. In fact, with Google Docs, you can even have multiple people billing time on the same spreadsheet at the same time.

Text File

Text files can work really well for timekeeping, actually.

In Notepad (Windows), you can enter a timestamp by pressing F5 (this does not work in other apps). Do this every time you change tasks, add a few notes, and you will have a running time log. If you put your text file time log in Dropbox, you can access it from your phone and tablet, making your time log portable.

If you use AutoHotKey (Windows) or TextExpander (Mac), you can add timestamps in other apps (the F5 shortcut only works in Notepad on Windows), and set up shortcuts for your frequently-billed tasks. Text files are not fancy, but they make for quick and easy time records.

(If you want to get really fancy, use an app like Drafts to automatically append your notes with a timestamp to a timesheet.txt file in your Dropbox.)

Passive Tracking Software


Timekeeping is tedious. There are ways to take shortcuts and bill more accurately, though. Chrometa, for example, tracks what you are doing on your computer and phone (you can also add time manually) and assemble time sheets or export your time to FreshBooks, QuickBooks, Clio, Xero, and Basecamp. I’ve tried Chrometa before, and it really is easy to use.

TimeSnapper is a similar idea, but it also takes screenshots of your computer screen to help you see what you were doing.

Timekeeping Software

There are plenty of software packages that include a timekeeping component. I have mostly used Freshbooks, but all practice management software has timekeeping functions, and so do many accounting packages. The nice thing about tracking time this way is that your invoices are basically assembled as you go.

So there are plenty of ways to track your time, but there is only one criteria for picking one: pick the one you actually use. The tool is basically irrelevant; the important part is capturing your time accurately as you go.

Featured image: “Old stopwatch closeup with selective focus” from Shutterstock.

How to Keep Track of Your Time is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Find Out How Much You Are Overbilling Your Clients

Fri, 02/07/2014 - 00:57

Ask someone how much they worked last week, and they will probably overestimate the number by 5–10%, according to a study published by the Bureau of Labor Statistics. And the more someone thinks they worked, the greater their overestimate is likely to be, says the Economix blog at the New York Times.

Humans (well, American humans, at least) have really inaccurate memories when it comes to the time they spend working, in other words.

Lawyers are even worse when it comes to remembering billable time. Viewabill, a service that allows clients to see what their lawyers bill in real time, says that waiting until the end of the month to record your time means adding 23% to the bill.

Delayed Billing Adds Inaccuracy — And Cost

That number comes from Viewabill’s aggregated data. By comparing timely entries to delayed entries, co-founder David Schottenstein estimates firms that keep time regularly are saving their clients as much as 23%:

Viewabill thinks its software changes behavior through transparency, because clients can see the time as it is entered. If you know your clients can see what you bill in real-time, you are less likely to record all your time at the end of the month. (Again, Viewabill’s aggregated data bears this out.) Schottenstein says Viewabill is like an empty police car next to the freeway. Even if clients don’t check in very often, they could — and they can see when time was recorded no matter when they check in. This strongly encourages lawyers, to change their behavior.

You don’t need Viewabill to ensure your timekeeping is accurate, of course. But you do need to record your time as you work. The more frequently you record your time, the more accurate it will be. If you wait until the end of the month and then reconstruct your time, you are probably overcharging your clients.

“Capture More Time!”

Many timekeeping products claim to help lawyers “capture more time.” Time Matters, for example, cites “[c]aptur[ing] billable hours and client expenses while you work to prevent revenue leakage” among its benefits. Rocket Matter says you can “Forget about losing track of precious billable time or expenses.” Amicus Attorney says it will help you “capture more billable time.” You can see similar claims from most practice management and timekeeping-and-billing software.

The idea is that, by making it easier to record your time, you will record it more frequently, so that you are less likely to miss things. This makes perfect sense, and it does turn out to be true, according to Schottenstein.

If you bill more frequently, you are likely to capture time you would miss if you tried to reconstruct your time at the end of the month. But, he says, your bills will still go down. That’s because you probably aren’t missing 23% of your bill. The time you overestimate you spent is almost certainly greater than any missed time you might catch with more-frequent timekeeping.

Teaching Old Lawyers New (Timekeeping) Tricks

Whatever the benefits of real-time timekeeping, some firms really don’t want to do it. Or at least some influential partners at those firms don’t want to. Faced with clients who wanted them to use Viewabill, two large firms (one a prominent employment law firm based in San Francisco, another a large employment law firm in DC and Cleveland) mounted a spirited defense that included spreading a bunch of uninformed FUD about the cloud.

Why? Well, assuming the lawyers at those firms aren’t trying to pad their bills by 23%, the most-likely reason is that, as one firm admitted to Schottenstein, 80% of its billers do not put in their time until the last two days of the month. Apparently, they are willing to fight for their right not to change. You can’t always teach old partners new tricks, even if it means overcharging clients.

But clients are not yet insisting on real-time timekeeping and transparency. They probably will, eventually, no matter how hard the holdouts try to convince them not to. Eventually, those firms will be forced to accept greater billing transparency, and those partners will have to change. If that 23% figure is anywhere close to right, corporate clients will not stand for end-of-the-month billing for long. Sooner or later, they will make real-time billing a condition of representation.

How About Alternative Fees?

If waiting until the end of the month to record time means you will be overbilling your clients, then you probably ought to stop it, and start billing in real time.

A partial solution might also be to stop using time to measure the cost of representation — at least when you don’t need to. If you quote flat fees or use subscriptions, unbundled services, or alternative fee arrangements, you can stop tracking time altogether. No timekeeping, no padding (inadvertent or otherwise).

Except sometimes hourly billing really is best, so don’t give it up entirely. Just use other options when they make more sense.

And when you do bill by the hour, consider doing it in real time. Don’t wait for your clients (or ethics boards) to find this article and start asking questions.

Update: Viewabill added some context to its numbers on Twitter, in response to some questions from @DiligenceEngine and @abziegler:

@abziegler @DiligenceEngine @samglover case-by-case, but CalBar suggests block billing = 10-30% overbilling. http://t.co/pll87wW90a

— Viewabill (@Viewabill) February 10, 2014

@DiligenceEngine @abziegler @samglover It also tends to correlate with amounts slashed by judges in fee disputes. Ex: http://t.co/vf69T1HFpS

— Viewabill (@Viewabill) February 10, 2014

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Featured image: “Businessman and earning balance concept” from Shutterstock.

Find Out How Much You Are Overbilling Your Clients is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Rocket Matter Adds Box Integration

Wed, 02/05/2014 - 22:11

Rocket Matter just added Box to the cloud storage services it integrates with. (Box prematurely announced the integration back in November.)

Like its Dropbox integration, you can associate Box folders with your matters and navigate your client files from within Rocket Matter, making the integration fairly seamless. You can also associate billable time with anything in your Box folders. This is consistent with Rocket Matter’s general user experience, which is focused on letting you add time entries from anything you are working on at the moment, facilitating real-time billing.

Here’s how to set up the integration.

Box is more business-focused than Dropbox, which makes it a great choice for growing firms. Dropbox is a great, simple file sync product, but if you have more-complicated needs, then Box might be a better fit.

Here are the cloud storage integrations offered by the “big three” cloud-based practice management software providers:

  • Clio: Box, Dropbox, Google Drive, and NetDocuments.

  • Rocket Matter: Box, Dropbox, and, interestingly, Evernote.

  • MyCase: As far as I can tell, none.

Rocket Matter Adds Box Integration is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Clio Unveils a Beautiful New UI Design

Wed, 02/05/2014 - 09:50

I met Jason LaRivière, Clio’s new creative director, right before Clio unveiled its beautiful iOS app last year. I was impressed. Legal software is not generally known for being great-looking, but bringing LaRivière on board showed Clio was serious about changing that unfortunate-but-accurate trend. The iOS app suggested a redesigned Clio could not be far behind, and today, Clio launched it.

Here is LaRivière, talking about the changes:

If you log into Clio right now, you can see the new design, and it is impressive. The old design was … fine. It got the job done. But done well, design is more than just window dressing. Consistent behavior throughout an app makes it easier to use. Better typography makes it easier to comprehend what you are seeing on the screen. Better layout makes it easier to get the information you need at a glance.

The new Clio design uses color typography, color blocks, white space, and fewer borders to separate elements. There are fewer obstacles that stop your eye, and more subtle cues to what is important on the page you are viewing. Clio has a detailed walkthrough of the changes to the design and UI, but here is a look at the list of matters, which shows the new design well:

There is still some work to be done. The calendar, for example, has not changed that I can see. The matter profiles look pretty much the same, as well, with the old, cartoon-y icons. But I imagine Clio users will see frequent changes over the coming months, until the new design permeates the user interface.

According to its press release, this is just the beginning. Along with the redesign came under-the-hood changes that provide the groundwork for future upgrades. Clio promises efficiency-enhancing upgrades throughout 2014.

Tasks No Longer Require Due Dates

I don’t know when Clio made this change, but while exploring the new design, I noticed that due dates are now optional for tasks. This is a feature I’ve been saying Clio needs for a long time, so I was pleased to see it. It makes Clio much more friendly to GTD practitioners.

Trivia for Font Geeks

Both Clio and its new signature font, Gibson, are Canadian.

Clio Unveils a Beautiful New UI Design is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Best Law Firm Websites, 2014 Edition

Mon, 02/03/2014 - 21:50

Out of over 50 nominations, we have narrowed the field down to the ten best. There were many good nominations, but the top ten are some really excellent, responsive websites.

Responsive web design turned out to play a big factor in getting to the top ten. A responsive website should look good on any screen, from a big desktop display to a smartwatch. Law websites still have a way to go on this, though. Many great-looking nominations — including some websites built in the last year — wound up in the discard pile because they are not responsive.

Apart from responsiveness, however, I will not explain the criteria I used to pick these ten websites. Great website design is in the eye of the beholder, and it is up to you to take a look and decide which you like best, according to whatever criteria is meaningful to you. Cast your vote at the bottom of the post. Lobby for your favorites in the comments, or tell us why we’ve done a horrible job coming up with this year’s top ten.

Without further ado, the top ten …

Best Law Firm Websites, 2014 Edition is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

This Lawyer’s Epic Super Bowl Ad Will Blow You Away

Mon, 02/03/2014 - 14:15

This ad aired locally in Georgia during an entire two-minute commercial break. It has everything. Walls of flame. Sledgehammers. Heavy metal soundtrack.

Just watch.

(h/t Deadspin)

This Lawyer’s Epic Super Bowl Ad Will Blow You Away is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Law 101: Service > Business

Sun, 02/02/2014 - 23:22

Of the many changes in the legal profession in recent years, perhaps the most seismic shift has concerned our relationships with our clients. Clients no longer face limited options when choosing an attorney. Any client seeking legal representation these days can turn to Google, which gives them a staggering number of options. Lawyers are so numerous these days that clients can afford to be selective – and when you consider the number of law students and recent graduates, it’s clear that trend will only intensify in the near future.

As a result, the legal profession has experienced a commoditization of sorts. Legal services are now viewed by many clients as the same as other services, and they tend to approach finding representation just as they would looking for a good realtor. If that sounds far-fetched, contrast the expectations between visiting a doctor and visiting a lawyer. When visiting a physician, the patient is at the mercy of the doctor’s schedule and generally accepts the inevitability of delayed appointments. That’s not at all the case with law firms. Today’s clients feel empowered to express more autonomy and expect higher standards of service, and many will change attorneys at the first feeling of dissatisfaction. This naturally has driven an increase in competition between firms, who must now find new ways to differentiate themselves in a very crowded marketplace.

Yet the solution for distinguishing oneself as an attorney does not have to be complicated. It is, in fact, quite simple: a new direction that can help firms rise above the competition while improving the legal profession overall. Stellar customer service.

By exemplifying the best of client service, firms can accelerate their market visibility, please their clients, and drive referrals and repeat business. If you think that sounds too simple, remember this: poor client-attorney communication and substandard service are problems that have dogged the profession for decades.

Consider the following ways most law practices can improve their service, thereby accelerating their businesses as well.

Courtesy

No doubt every law firm believes they offer courteous service, but many clients would disagree. Consider how many lawyers share this experience: a client calls to find out her next court date but you’re tied up in court and can’t take her call. From there, perhaps you head to a deposition, then another meeting, with the result being that the client doesn’t receive a return call or answer until the following day.

Then there’s the matter of answering calls from prospective clients. Many clients make a list of lawyers they found on Google and begin dialing numbers until they speak with a live human — and that person becomes their attorney. Busy lawyers without support staff will innocently lose out on significant business, thanks to simply being busy and possibly understaffed.

There are basic standards of good customer service that time and again, harried attorneys fail to meet. You can leave your clients waiting in a reception area while you finish a call or you can greet them on time and offer them a beverage. It’s a small difference, but it tells new clients that they are valued and respected from the start. Think of it from your perspective; what kind of treatment would you like to receive upon walking into a restaurant, car dealership or Apple store? No doubt you’d like to receive exceptional attention that tells you the business genuinely cares about your satisfaction. Offer excellent customer service and your clients will know they are in the hands of world-class experts — security that is especially appealing to people who are confused and anxious over their legal case.

Communication

It used to be that attorney-client communication involved significant work, from multiple phone calls to mailing cumbersome documents. Even communicating something as simple as a new court date meant typing up a letter, printing and signing it, then getting it in the mail and verifying its receipt. In fact, these communication and administrative tasks have traditionally been so time-consuming that attorneys have often been forced to hire paralegals to handle it or reduce their caseloads while managing it themselves. Even when the communication using these antiquated methods was effective, it still posed a burden on law practices.

The good news is that today’s attorneys have technology to communicate swiftly and securely. Where many fall short nowadays, though, is in making the effort to communicate enough. Set aside a dedicated hour to make phone calls, instead of returning calls while driving from a meeting to the office, so clients have your full attention. Remember that their case might be their first experience with the legal system, so taking the time to explain basic processes and terms in order for them to understand every step of their case trajectory can go a long way. Clients may not even know enough to ask the right questions, which means that overcommunicating is always a smart idea. The amount of interaction will vary from case to case and by type of law, but the general rule of thumb is to make sure your clients feel informed and supported at all times. This isn’t just part of the rules of professional responsibility, it’s the baseline of a client-friendly practice.

Transparency

This goes hand-in-hand with communication. A client who has put his legal matters in your hands is entrusting you with more than just a piece of business; this may well be a life-altering financial and lifestyle matter for him. To honor that trust, you must provide full transparency as a matter of course. Too many attorneys assume their clients only want to know major developments and omit details that their clients care about. By making all case developments available, the client has the power to choose whatever level of awareness he desires.

Ultimately it helps to think of your client as a collaborative partner who can assist you in achieving the best possible outcome in the case. Just as you would like your client to provide as much helpful information as possible for you, your client deserves visibility into all ongoing developments and decisions. Again, think of this partnership in terms of visiting your physician. Just as you’ll provide your doctor with detailed descriptions of your symptoms, you’ll probably be anxious to hear a test result or diagnosis as soon as possible. Provide that same transparency to your client.

Engagement

Before software systems made case statuses available in the cloud, many clients wanted to hear from their lawyers every day, whether or not there was vital information to communicate. Simply hearing their attorney’s voice reassured them that they hadn’t been forgotten and were receiving dedicated legal service. Today’s software platforms make a new version of that possible; clients can log in to view their case developments around the clock.

But while that’s undeniably a positive thing, clients still want personal attention. Letting them know of their next court date is good, but reaching out to truly connect with them is exceptional. Be attentive and available, and you’ll build a client-attorney relationship that extends beyond this immediate case to their future legal needs. Again, remember that what may be viewed as business as usual to you can be a highly emotional and major life event for a client. By truly engaging with each person, you’ll earn trust as well as glowing referrals.

Setting Expectations

Even promising attorney-client relationships can go awry because of mismatched expectations. Let’s face it: we live in a world where Hollywood courtroom dramas and crime shows have created skewed ideas about everything from trial outcomes to DNA testing to settlements. A client inexperienced in the legal system will need you to set realistic expectations. That means not creating a sense of false hope when defending someone in court and explaining legal policies that may surprise a client.

Your relationships will also benefit by taking into account the differences between clients. When representing an organization that regularly uses lawyers, you’ll often find it has defined strategy policies on working with outside counsel. Everyday clients, on the other hand, will often require more education and hand-holding if they’ve never hired a lawyer. Remember that these clients often lack foresight into the processes and strategic decisions that can arise in a case; preparing them in advance can give them time to brace for all outcomes.

Conflict Resolution

Clients today are much more likely to insist on having a say in their case decisions and direction. While this is understandable, good communication will go far in avoiding most disputes. Establish case objectives up front and thoroughly analyze the case before agreeing to pursue it. If you disagree on taking a case to trial, make the cost benefit of an early case resolution clear to your client, compared to the expense of a long trial and appeal. Always explain your reasoning when formulating a strategy and be sure the client understands the rationale for your decisions.

Ultimately you will benefit from drawing clear lines on authority. By identifying who is responsible for what, you’ll be able to avoid a significant number of attorney-client disputes. Generally speaking, attorneys have implied authority over legal and tactical matters, while the client has the right to make strategic decisions on factors such as expenses or calling witnesses. Rule 1.2 provides firm guidelines on who has the right to decide to settle cases, enter pleas, call witnesses, testify, and waive jury trials; communicate authority to your client and the beginning and there will be fewer surprises and disagreements.

The Latest Technology

One of the most advantageous recent developments in the legal field is availability of practice management software. With the right platform, attorneys can offer their clients a full-service digital resource that lets them pay bills, view their accounts, answer questions on court dates and case developments, and review documentation — all at their convenience. Secure emails can be sent, tracked and received from mobile devices and stored for future consultation; clients can also receive notifications to stay on top of important alerts and appointments.

This is especially appealing in our fast-paced world. Clients with unpredictable schedules will appreciate the round-the-clock availability of their case information; in our digital age, most people expect the convenience of online payments and accounting. Offering a tech-friendly practice suggests to clients that you have your finger on the pulse of our times and are likely to be on top of intelligent legal strategies as well.

While winning cases will indeed help build a positive reputation, providing stellar customer service is just as important in building a successful practice. Combine the best of legal representation with excellent personal service and you’ll make a name in your market as one of the most popular — and well-respected — attorneys in town.

Featured image: “Waiter holding empty silver tray over gray background” from Shutterstock.

Law 101: Service > Business is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs

Freshbooks is Awesome, but Not For Accounting

Fri, 01/31/2014 - 10:49

I really love Freshbooks for timekeeping and billing. There is no better option for solos and very small firms. But in 2012, Freshbooks changed its tagline to “cloud accounting.” Here’s the announcement, from Freshbooks founder, Mike McDerment:

So here’s the news: from this day forward, FreshBooks is Cloud Accounting. We’re not changing our name, we’re just changing the way we describe our services.

In fact, Freshbooks hadn’t changed anything about the software when McDerment made that announcement. Changes have come trickling out, though. One of the first “accounting features” introduced after the name change was the ability to create a balance sheet — by entering the numbers yourself. At first, I thought it was a joke. It wasn’t. The feature is still present in Freshbooks, and it has not changed.

A balance sheet is not something you can sketch on a cocktail napkin. Real accounting software generates a balance sheet using real numbers generated from your accounts. It’s not something you just make up yourself and then hand over to your accountant for tax preparation.

Then, Freshbooks announced the ability to import expenses from your bank accounts. That’s right, just expenses. And the data you get for your checks, for example, is not particularly useful. You don’t even get a check number to help you identify the check in question.

Further, Freshbooks ignores your deposits. I guess it assumes that the only deposits will be payments on the invoices you send through Freshbooks. If you do happen to have deposits that are not tied to an invoice, you have to enter them manually.

Speaking of payments, because Freshbooks does not match them up with your bank accounts, you do not get all the information you need. If you accept credit cards or use PayPal for processing payments, for example, you will pay a fee on every transaction. But Freshbooks does not account for those fees, so your profit and loss report will overstate your income by the amount of those fees. In other words, if the invoice is for $100, and someone pays with a credit card, there will be a fee of, say, $3. Freshbooks will show a deposit of $97, which leaves a $3 expense unaccounted-for.

But perhaps the most glaring omission is any sort of bank account register, which means there is no way to reconcile your accounts. This is a pretty fundamental omission. If you cannot even reconcile your accounts, you are not doing accounting.

Look, Freshbooks is fantastic timekeeping and billing software. If you are a solo or a very-small firm, there is nothing better. (Although if you want good timekeeping and billing bundled with practice management software, use one of our recommendations.)

But in advertising itself as “cloud accounting,” Freshbooks is misleading, at best. Freshbooks is excellent billing software with a few inadequate accounting features grafted on. It is not accounting software. It is woefully unsuitable for accounting.

(I did reach out to Freshbooks with my concerns, but I never received the promised response.)

Freshbooks is Awesome, but Not For Accounting is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

Categories: Teknoids Blogs