Strategist - The FindLaw Law Firm Business Blog

August 2016 Archives

A man cannot have two masters. But a legal matter can, at least when those two masters are co-counsel.

You've probably heard horror stories about co-counsel situations; anecdotes about overbearing, intolerable co-counsel, about attorneys who steal all the work, or lawyers who are inept, sabotaging your chance for a big payout. (We could go on.) But working with co-counsel doesn't have to be difficult, if you do it right.

You should use notes during a trial. After all, you don't want to forget an important issue or lose track of your train of thought.

But don't let notes become your crutch. If you're looking down at your notes every few seconds, you're doing it wrong.

Maybe you helped Donald Trump close a deal on a New Jersey shopping mall. Or maybe he consulted you, way back when, for some legal advice. Now he's running for president and you want to speak out -- without revealing anything too confidential, of course. Can you?

Of course, for the vast majority of us, this is simply a hypothetical. But for some lawyers, it's a very real question -- and some lawyers have started talking publicly about their time with Trump, raising very real questions about the ethics behind discussing former clients, even when you don't reveal any non-public information.

How Do You Respond to 'You Cost Too Much'?

Something that many solo attorneys hear perhaps all too often is the interjection: "You cost too much!" We're sure you've heard this one before.

Even with the advancement in technology making a fair number of attorney services quickly obsolete, there are still a great many tasks that should only be handled by a competent attorney. Here are a few tips for handling sticker-shocked clients.

Four years ago, Congress passed the Jumpstart Our Business Startups Act, or JOBS Act, which removed barriers that keep the public from providing capital to startup businesses; equity crowdfunding was about to be legalized. Then, just this May, the SEC's "Regulation Crowdfunding" rules went into effect. Suddenly, every regular Joe and Jane can become an investor in new companies.

It's one of the biggest changes to securities law in decades, and it could result in a lot of small time investors, and small companies, needing your legal guidance.

Lawyers Should Prepare for Two Seasonal Divorce Spikes

Are you a family lawyer that handles divorces? If so, the findings that were presented at the annual meeting of the American Sociological Association may be of interest of you. Apparently, divorce could have a correlation with the seasons.

It's old news that divorces spike after the winter holidays. But the new findings indicate that there may be a second seasonal spike.

Hiring a Remote Freelance Lawyer: Is It Right for Your Practice?

Like it or not, hiring in-office lawyers is slowly going the way of the dodo bird. Remote hiring is in. More and more, attorneys are finding themselves mobile rather than sitting down in an office. This is bad news for lawyers looking for stable employment, but as they say -- one's tragedy is another's cause for celebration.

Keep in mind a few factors before you go out to hire your first freelance attorney.

'Go ahead and move for sanctions against opposing counsel,' they said. 'What's the worst that could happen?' they said.

Well, an attorney at the Minnesota law firm Messerli & Kramer, "the worst" was having their sanction motion turned against them -- not by the opposing party, but by the judge.

You've brought some fresh blood into your firm. But if your new associate is new to the law, they come to you not-fully-formed. What are you supposed to do with this unshapen lump of lawerly potential? Mold it, of course! And that takes training.

If you're looking to set up an associate development program (and if you have fresh associates, you really need a training system) here are some ways to get it done.

Cross-Examination Tips That Will Help Your Case

Many litigators have described the process of cross-examination as one of the more satisfying aspects of courtroom litigation. It's easily one of the more combative components of being in court, and certainly a crucial one at that. If you impeach the right witness and thoroughly discredit the other side's case, you can not only seal a case, but have fun doing it.

Of course, cross-examination is only fun when you're winning. Below, we'll get into the basics of cross examination and hand out tips that will help you craft your next one.

For today's lawyer, a strong social media presence is almost as much of a professional requirement as a website or working phone line. A majority of consumers now look to social media when deciding whether to hire an attorney, according to a new FindLaw survey. Fifty-four percent of consumers say that they would be likely to hire lawyers who are active on social media, while 40 percent said that they would be more likely to hire an attorney who can be found on social media.

So fire up your Facebook and hop back on to your Twitter account. If you want to be successful today, it helps to be savvy with social media.

Augmented reality takes the real world and graphs a new universe on top of it. Unlike virtual reality, augmented reality doesn't remove the outside world, it just adds a new layer. You can use your phone to spot a Pikachu on the sidewalk, for example, or strap on some goggles and start crafting a virtual sculpture in your living room.

The most common AR application these days is, of course, Pokemon Go, the new AR app that lets you catch make-believe monsters in the real world. But by creating a new layer of reality, one that could lure users into potential dangerous situations, AR companies could be exposing themselves to liability for users' personal injuries.

You've got your paralegal organizing case files. A contract attorney is drafting some pleadings. Your legal secretary is scheduling your meetings and going through your phone calls.

But, thanks to the miracle of telecommuting, none of them are on site. So how do you know if a remote worker is actually working? How do you manage someone you can't see?

Solo Expansion: Making the Giant Leap to Small Firm

Every solo attorney has at least entertained the idea of expanding from a single person operation into a full-fledged law firm. Dreams are good, but expansion should only be undertaken if you have a plan in place.

Here are a few tricks to help you create your plan for growth.

Google uses data analytics to get the search results (and advertisements) it thinks are right for you. Wall Street looks to big data to help manage investment risk. Even police mine banking data to spot human trafficking.

Data analytics are changing how many industries work today, and they could soon reshape how you practice the law.

Is Your Law Firm Ready for 'Free Agent Season'?

Lateral hiring is becoming the standard hiring model within this industry. There was a time in the labor field where people would get hired by a particular firm, do well, and expect to stay there for the rest of their career. The reality is that this way of working is dying -- particularly for younger associates. It's basically the law firm absorption of the new gig economy.

Today, the top firms in the country are aggressively looking for ambitious young attorneys whose eyes are wandering for greener pastures outside of their current setup. Your firm may be looking for new talent, but remember, your talent could be looking for a new firm. How do you keep the current talent you have whilst growing in this increasingly cut-throat business?

A South Carolina ethics opinion on attorney fee-sharing should give lawyers considering fixed-fee legal referral programs like Avvo's Legal Services pause. Avvo launched ALS this January, as a sort of Uber for legal services. The service allows customers to pay for legal work by task, rather than by billable hour, with Avvo setting the prices. Reviewing a prenup costs $150, for example, incorporating an LLC costs $595. Customers purchase the service through ALS, who then pays the attorneys that actually do the work.

Avvo, of course, takes its own cut, as a marketing fee. And those fees, along with the pay-for-referral nature of the service, have just been called unethical by the South Carolina Bar's Ethics Advisory Committee.

New Law Firm Hiring Paradigms Look Beyond Pedigree

The legal world is changing fast and there is evidence to indicate that some of that change is beginning to wear away the old practice of exclusively hiring top-ranking grads from the nation's most celebrated schools.

For law students and new lawyers from non-T14 schools, that means you might be able to wow your next employer and land a job. For firms looking to hire, it means you might want to start relying more heavily on factors that relate to legal success -- and those aren't always related to law school pedigree.

The fight over worker status (Is she really a contractor? Is he an employee?) has become an increasingly common legal battle in the past years. The rise of the "gig economy" means that more and more people are working, at least nominally, as independent contractors or under other alternative employment arrangements. In 2005, the last time the Bureau of Labor Statistics collected data on the subject, seven percent of workers were independent contractors. In the more than 10 years that have followed, it's safe to say that the percentage has increased dramatically.

But even though a worker might be called a contractor by name, that doesn't mean she is a contractor, in the eyes of the law. A host of high profile class action lawsuits have recently asserted that thousands of "independent contractors" are actually employees, entitled to the benefits of any other employee. So what sets the two apart and how can you properly advise your clients on contractor-employee classification issues?

If you haven't been near a public school in the last few years, you may have missed out on one of the biggest public policy battles of the past decade: Common Core education standards. The Common Core State Standards Initiative seeks to set out a single, comprehensive set of standards of what every student should know in English and math in every grade, from Kindergarten to the senior year of high school. They've been adopted in 42 of the 50 states, but they face stiff resistance from some teachers and parents who reject the new standards and the increase in standardized testing that accompanies them.

But Common Core isn't just about education, testing, and college readiness -- it's also about the role of federal and local governments in education and, ultimately, about the law itself.

How to Talk to Potential Clients So They Don't Proceed Pro Se

It happens to solo lawyers with an unwelcome consistency: a client walks through your door to avail himself of your legal advice and then decides to either look for cheaper options, or worse, go about his matter pro se. What do you do?

It's been more than six years since the so-called economic downturn of 2008, but many people are still unreasonably frugal. It could be that people are worried about the recent negative predictions about the market. In this climate, how do you convince these clients that going pro se could be the worst mistake of their lives?

Live streaming is everywhere these days -- and we're not talking about YouTube or watching the Olympics online. New apps like Periscope and Facebook Live have made it simple for pretty much anyone to broadcast themselves to their social media followers.

And while a DIY self-made video might not look great embedded on your website's landing page, live streaming allows for a simple work around. Here are some tips on how to use it in your firm.

How Much Do Solo Lawyers Really Make? This May Surprise You.

Perhaps you're feeling good about last month's bar exam and you're certain that you passed. Should you take that job with the mid-size firm or should you go solo? Well, the latter choice is a little hard to pin down. Incomes are such a touchy thing these days.

How much do solos make? More than you'd think, apparently. But hold it -- what does "make" mean, anyway?

After years of demand growth, things are starting to look down for BigLaw firms. Large firms are seeing their first drop in demand since 2013, according to a recent report from Thomson Reuters Peer Monitor. (Disclosure: Thomson Reuters is FindLaw's parent company.) Demand is down 0.9 percent, while productivity has dropped 2.8 percent, even as firm headcounts have grown.

What's that mean for smaller firms and solo practitioners? Could this legal demand slump impact you as well?

You've Been Formally Prosecuted in State Bar Court. Now What?

You worked hard for your license to practice law. You studied the LSAT, got into school, passed the bar and passed moral character and fitness... and a single ethics violation means it could all be taken away, just like that.

It's all very scary stuff about a system that very few attorneys know about -- though it haunts our thoughts. How do ethics hearings work? What is this thing called the State Bar Court? And what happens when attorneys are prosecuted in it?

So, Your Client Complained to the State Bar. What Now?

It's doubtful that anyone got into this business to be liked. Still, client complaints are not something you ever anticipate. Complaints by clients can be disheartening and even career-threatening -- especially when the state bar gets involved.

In this piece, we briefly go over how and why attorneys find themselves in hot water when representing a client. It goes without saying: tread carefully or else your career as an attorney could end faster than you thought.

We've all been there. Someone, a partner, co-counsel, support staff, whoever, makes commitments at the onset of a project, and they never follow through. This isn't just a problem with unreliable associates or partners with conflicting priorities; it's something lawyers and law firms of all sizes experience.

You'll probably never get everyone to do everything they've committed to, 100 percent of the time. But there are some steps you can take to improve follow through. Here's how.

Two rules make up the bedrock of pretty much any basic writing instruction: know the difference between your and you're, and don't use passive voice. Passive voice is one of the main literary bogeymen, despised by grade school English teachers and law school writing professors alike.

But there are plenty of times when the passive tense is the perfect choice, particularly in legal writing. Here's why.

Knowing the law is one thing, being able to get legal work done well and efficiently is another. And plenty of attorneys could use a little help in the latter category. The solution may be in project management. Learning a few PM skills like effective team communication, budget management, and matter scoping can all help attorneys do their jobs better.

Here are some helpful project management tips you can start implementing today.

We all know attorneys can't disclose confidential information gained in the course of representation. But what about public, potentially embarrassing information about a client?

Can a lawyer forward an embarrassing blog post about a former client to her colleagues? Can an attorney publicly disapprove of a client's behavior, years after finishing representation? Or would such actions violate a lawyer's duty of confidentiality?

Tips for Incorporating Your Solo Law Firm

So you've decided to go solo? As you already know, it's tough out there, and getting clients can be a real chore. But now that you're committed, you're faced with a question that you may not have even considered when you decided to embark on this journey: "What kind of business entity am I?"

You have many choices, but unless you're a tax expert, making the right one can be a real challenge. Below we'll go into some of the considerations you should keep in mind in choosing a business entity for your solo firm.