Strategist - The FindLaw Law Firm Business Blog

March 2017 Archives

3 Signs It's Time to Retire From Your Law Practice

It might be time to retire if: Your aged parents look younger than you do, you don't recognize that old person in the mirror, or you have more hair in your nose and ears than on your head.

Come now, we're joking. After all, people can lose their eyesight and go prematurely bald early in life.

Aging and retiring are two different subjects, but let's face them together for a moment. Here are three signs that it's time to retire:

Making time for family, traveling the world on vacation, disconnecting from the office, and keeping up your health and exercise -- these are all things lawyers tend to struggle with. With the pressures of a legal career, many lawyers spend a lot more time grinding out billable hours than they spend on themselves.

Of course, we all wish we had a better work/life balance, right? Well, maybe not. When it comes to perks that could make lawyers' lives a bit more balanced, many of those perks are going unused.

Remember jury trials, one of the hallmarks of the American justice system? You sure don't seem to see many of them around anymore. In 1962, for example, there were nearly 11,000 civil and criminal trials in federal courts, according to the ABA's "Litigation Online." By 1985, that number had risen to 12,529. But by 2002, federal courts heard only a little more than 8,000 cases -- a decline from the 60s, despite a massive increase in civil and criminal filings.

Today, it seems, almost everything is concluded before trial, whether by settlement or plea bargain, and juries may be becoming a thing of the past.

Cookie-Cutter Law Practice: Recipe for Success or Excess?

If a cookie-cutter law practice sounds tempting to you, maybe you should consider another line of work -- like baking.

"Cookie cutter" lawyering is not supposed to sound alluring; it's generally used in a pejorative way. It suggests a high-fructose, low benefit, no-brainer business model.

Ah, but easy money smells so good. After all, why reinvent the wheel when it turns a profit so well?

Here are some reasons that cookie cutter law practice is really a recipe for excess:

Lawyers love to get worked up about obscure grammar and style rules, almost as much as they like to get in a huff over obscure laws. (Emoluments, anyone?) There's the long-running fight pitting case law aficionados against the caselaw'ers. A recent First Circuit ruling that was decided on the lack of an Oxford comma opened up a new front in that ongoing war. But frankly, that stuff is old news.

The newest major legal writing fight revolves around one of the most pressing issues facing lawyers today: Should you put one or two spaces after a period?

Remember fax machines? If you're like many of us, you probably haven't touched one in years. After all, didn't faxes disappear into the technological netherworld, alongside beepers, dial-up internet, and the Walkman?

No, they didn't. Faxes are still around, and they've even been adapted for a very contemporary use: spam. And that fax spam, also known as junk faxes, is still causing lawsuits -- 4,860 lawsuits last year, according to the Wall Street Journal.

Jacoby & Myers Loses Appeal to Associate Nonlawyer Investors

How many lawyers does it take to own a law firm?

One -- the rest are banks, landlords, and service providers who own everything that keeps the practice afloat.

So it's not a good lawyer joke, but comedy is sometimes born of sobering truth and many attorneys know the challenges of struggling to stay in business. If only there were an investor ...

It's not going to happen, according to a federal appeals court. Not even Jacoby & Myers, the poster boys of law firm expansion, could persuade the judges that attorneys should be able to reduce costs to clients by sharing ownership with non-lawyers.

Dealing With Difficult Opposing Counsel

The toughest lawyer I ever met had the credentials to prove it.

In college, he was a Golden Gloves boxing champ. He got knocked down one time, but got back up and knocked out his opponent.

He didn't go directly to law school, taking time to explore a career in rodeo first. That's right, he jumped on wild horses and bulls because he enjoyed the ride.

But this man was also the most civil and respectable attorney I ever met -- and very successful in the courtroom. That's because being "tough" does not mean being difficult.

In the spring, a young man's fancy might turn to thoughts of love, if you believe Tennyson, but for the rest of us, well, we'll content ourselves with a little extra sunshine and a healthy bout of cleaning. For lawyers and legal professionals, the season, which officially started last Monday, is a good time to take stock of your practice, straighten things up, and maybe finish up some housekeeping items you've put off over the past months.

So, to help you out, here is some of our best spring cleaning advice, from the FindLaw archives. For the thoughts of love, though, you're on your own.

Workplace Perks That Lawyers Actually Want

What do you really want?

It's a question that sometimes comes up in the crisis stage of a relationship. One partner feels inadequate or frustrated, and the other is stifled about communicating his feelings.

Maybe I'm getting too personal here, but the point is that sometimes lawyers don't seem to know what they want professionally either. Because the attorney-employer relationship shouldn't be a guessing game, here are some perks attorneys actually want:

You spend your days dealing with divorces, or insurance claims, or digging through millions of pages of discovery. Then, when it comes time to head to an industry mixer, you're expected to make small talk with strangers about -- what? Sports? The weather? You'd rather not.

But if small talk is a big obstacle to you, your business could hurt. After all, networking can be key to bringing in clients and building your name. So, to help you out, here are some quick tips to improving your casual conversation skills and overcoming your disdain for small talk.

Solo Attorney Takes New York's 'Bona Fide Office Rule' to the Supreme Court

Ekaterina Schoenefeld is a one-woman law firm working out of a duplex in New Jersey. She is also a force to be reckoned with, so get used to pronouncing her name.

Admitted to practice in New Jersey, New York and California, Schoenefeld sued in 2008 for a declaration that New York's law requiring out-of-state attorneys to maintain in-state law offices to practice there is unconstitutional. She has pushed the issue to the U.S. Supreme Court, and three bar associations and countless lawyers are following her in support.

Schoenefeld argues that New York's Judiciary Law Section 470 violates the U.S. Constitution's Privileges and Immunities Clause. It does not require in-state practitioners to have physical offices, only out-of-state lawyers. That's not fair, she says.

If you are starting to think she is right, join the club. Here are a few words from her sponsors:

3 Reasons You Shouldn't Cap Hourly Fees

Capping your hourly fees is like going on a Jenny Craig diet.

For most people, any diet is hard to do. But Jenny also costs money. The best-case scenario is that you will get skinny.

Same thing with capping fees. It's a difficult discipline. It will definitely cost you money. And if you don't make enough money to put bread on the table, well, you get the point.

Sure, capping fees is great for clients; they like their lawyers lean. And it may pay off in the long-run if it keeps clients coming back. But maybe you actually want to make more money for desserts at the end of the day. Here's some food for thought:

Things aren't what they used to be. Today's lawyers face a constantly shifting legal landscape. Technology has made it possible to run a paperless law firm, to outsource tasks across the globe, or to find yourself swamped in endless eDiscovery. The internet has made it easier for people to find (and review) lawyers online, but it has also empowered clients to demand more for less. Meanwhile, growing corporate legal departments are handling more tasks in house, while smaller clients are increasingly seeking out DIY solutions.

Is your practice ready for this "new normal"? Take one quick quiz to find out.

The EPA and the National Endowment for the Arts aren't the only government programs facing massive cuts under President Trump's proposed budget. In the proposal released last Thursday, the President urged Congress to fully eliminate funding to the Legal Services Corporation.

Under the proposal, the nation's largest funder of legal aid wouldn't receive a single federal cent -- a move that has plenty in the legal community fuming.

Lonely Lawyer? How to Deal With Isolation

In a scene from the movie 'All Is Lost,' an aging Robert Redford is desperately alone in a life raft in the middle of the ocean as a cargo ship passes him as if he weren't there.

It is a painful metaphor for so many people in the world -- those nameless souls who watch as the world passes them by. They sit on street corners as drivers avoid making eye contact with them; they hide from the rain and cold under cardboard shelters; they labor alone in law offices late at night ...

Alright, so being a lonely lawyer is not as bad as being homeless or lost at sea. But if it is a problem in your life, consider these ideas:

Lawyers can't ignore social media anymore. Facebook can be a way to reach potential clients, for example, while a strong Twitter account could help increase your profile in the legal community.

At the same time, social media is not "one size fits all." Attorneys need to understand the differences between the main social media platforms and adjust their strategies accordingly.

Police Get Search Warrant for Everyone Who Googled a Fraud Victim's Name

Do not Google these words: "Douglas" and "passport photo."

If you do, you could find yourself on the wrong end of a search warrant. The Edina Police Department has obtained a search warrant for anyone who Googled that name in connection with a theft of $28,500 from a Minnesota bank earlier this year.

"Douglas" is not the suspect; he is the victim. Police have concluded that the suspect Googled the victim's full name to search for a passport photo. The suspect then used a downloaded photo to create a fake passport, which was presented to the Spire Credit Union to complete a fraudulent wire transfer.

What's your 'Net Promoter Score?' You don't know? Well, you should. A Net Promoter Score, or NPS, is a measure of client loyalty, the odds that a client will come back or recommend you to others.

For an industry that relies so heavily on referrals, knowing your NPS is essential. And it's pretty easy to figure out, too.

Pros and Cons of Being a Public Defender

What are the pros and cons of being a public defender?

First of all, public defenders are surrounded by pros and cons every day. They are the dregs of society, the cast-offs, and the remorseless left-overs from a time when life was innocent. And those are just the district attorneys.

Just kidding. In the criminal defense business, you have to have a bit of gallows humor to deal with the real likelihood that you may never win a case. Unless you count plea bargains as wins. Then you will win 95 percent of your cases.

So here are some things to think about:

A lawyer who made material misrepresentations in a lawsuit may be sued under New York's 'attorney deceit' statute, even if there was only a single act of misrepresentation.

The suit, brought by Canon, the camera and photocopier company, involves accusations that a New York attorney and his firm colluded with their clients during a dispute over a Canon dealership. Canon claims that the attorney knowingly filed false papers with the court during litigation over the dealer agreement, Bloomberg reports, in a story that comes to our attention by way of the ABA Journal.

A bill intended to curb class action lawsuits passed in the House of Representatives last week. H.R. 985, the Fairness in Class Action Litigation Act of 2017, would make major changes to class action litigation, limiting attorney's fees and narrowing what plaintiffs can be certified as a class. It has, unsurprisingly, faced strong opposition from plaintiffs' lawyers. The bill is one of several litigation and tort reform measures passed by the House in recent days.

Still, the bills' enactment as law still remains uncertain.

4 Tips for Beating the Small Law Firm Blues

Merle Haggard wasn't a lawyer, but he knew how to sing the workin' man blues -- the same song that small firm lawyers sometimes hear late at night.

"Works hard every day, might get tired on the weekend, after drawing some pay. Back to work on Monday with a little crew, drinking beer that night and singing the workin' man blues."

It's the downside of small firm practice, where lawyers often earn less than BigLaw attorneys and get overworked wearing many hats -- sometimes clerk, paralegal, and lawyer rolled into one. And if you're a solo practitioner, you are the office manager, tech staff, and secretary, too.

But the blues are really about singing your way out of the doldrums and finding a breeze. Here are some ideas to get you there:

Gender Bias in Silicon Valley and Beyond

Two years ago this month, one of the nation's biggest venture capital firms prevailed in the most-watched gender discrimination case in the history of the Silicon Valley.

Ellen Pao, a former partner at Kleiner Perkins Caufield & Byers, accused her former employer of discriminating against her because of her sex. The firm, which has funded Google, Amazon, and hundreds of tech companies, won the lawsuit and then quietly moved on.

As for gender discrimination in the Silicon Valley, however, not so much. According to reports, women are still fighting an uphill battle for equality in the high tech hub of the world.

Where do you stand on the Oxford comma? If you're like a sizable minority of Americans, you could do without it. But if you're an intelligent, thoughtful person who cares about your writing, you make sure you've got an Oxford comma in place when needed. That's because the Oxford comma can be essential to creating clear writing.

Don't believe me? Then you've yet to read O'Connor v. Oakhurst Dairy, yesterday's First Circuit decision that rested entirely on the lack of an Oxford comma.

Working from home isn't just for tech workers and Instagram celebrities anymore. About one quarter of the workforce telecommutes frequently, a number that's more than doubled over the past decade.

Now, that number is starting to include more and more BigLaw associates. Morgan Lewis, Philadelphia's largest law firm with 2000 attorneys across almost 30 offices, announced last week that it will let its associates work from home starting this May.

When it comes to building your practice, client satisfaction is key. Happy clients mean more clients, either through repeat business or future referrals.

And while winning, however you define it, is the key to client glee, there are a few other practices attorneys can employ to help make sure their clients are satisfied. Here are some of our top tips, taken from the FindLaw archives.

How to Tell a Client you Made a Mistake

"Lawyer to the Colombian Drug Cartel," Time magazine called him. With the article for an introduction, I called him for an appointment. It's easy to get inside places when you have press credentials. I had a burning question:

"How did you become that guy?"

He told me a story that every lawyer should remember: Do your best not to make mistakes because some clients will not accept an apology.

You all know the maxim: the best bloggers are the best lawyers. Alright, maybe that’s not a widely adopted saying just yet. But, when it comes to your writing, lawyers could learn a thing or two from blogging.

No, we’re not suggesting that you format your next motion for summary judgement as “56 Reasons Defendant Is Entitled to Judgement as a Matter of Law — Number 27 Will Shock You!” But there are a few bloggy skills that can improve most lawyers legal writing.

A Chinese Path to Law Office Cost-Efficiency

There's an ancient Chinese proverb that rings true even today: "Those who know when they have enough are rich." I am not Chinese, but I know frugality when I see it.

Years ago, I worked in Los Angeles for a publishing company owned by a Chinese family. They also published the largest Chinese-language newspaper in Taiwain and employed hundreds of people on two continents.

Yet the owner never showed off his wealth. He could have driven a brand new luxury car to work, but he drove a modest older model. He could have occupied an elegant corner office, but chose to work above the dirty press room.

There's a lesson here for running a cost-efficient law office: save money and make more money.

Just in time for International Women's Day comes another suit alleging gender discrimination in the legal industry.

Two lawyers at Chadbourne & Parke filed a class action lawsuit against their firm, alleging that Chadbourne discriminates against female partners in its compensation system. And while the suit isn't new, having been filed last summer, a recent memorandum of law in support of class certification gives the suit's claims more force. In 2013, male partners at Chadbourne earned 40 percent more than their female counterparts, according to the filing.

'Eat This, Not That' of Social Media Ethics for Law Firms

When it comes to avoiding ethical issues, isn't it just a Ten Commandments of Thou-Shalt-Not's?

"Don't lie." "Don't cheat." "Don't steal." But how boring is that? Plus it's like a million years old!

So let's break the mold and have a little fun with it. After all, what could be more fun than taking some risks with social media lawyer ethics?

Here's a twist on a list from Eat This, Not That, tailor-made for the modern world of social media. We're going to skip a lot because, like ethics violations, there are just so many:

First Murder Trial? Consider the Facts

Stephanie Morales, a 32-year-old prosecutor handling her first murder trial, looked across the courtroom at her opponent -- the community's best known criminal defense attorney.

James Broccoletti , who had been practicing criminal law longer than his opponent had been alive, was defending his fourth client against murder charges in three months. All three of his other cases ended in acquittal or dismissal.

"There seems to be somewhat of a mismatch as far as the lawyer for the commonwealth and the lawyer for the defense," said former Virginia Beach Commonwealth's Attorney Harvey Bryant. "Experience is very important."

So how did Morales do in her first murder trial against the toughest opponent in town? Here are some things to remember:

The Trump administration has brought a new, hard-line approach to immigration enforcement, looking to ramp up detentions and deportations. Now, deportation fears are starting to impact some criminal proceedings, as undocumented immigrants take a more cautious approach to law enforcement.

In Denver, Colorado, for example, several cases have been dropped after witnesses, concerned about their immigration status, skipped court.

Tips for Following Your Passion in the Law

Chloe, the star of "Beverly Hills Chihuahua" and a voice of inspiration for those who search for meaning in the drudgery of life, said it best:

"Rough. Rough."

Just kidding. For those of you haven't watched a dog movie since Lassie, they are all dubbed nowadays. But Chloe didn't actually say anything in the climactic scene. She found her bark, and that made all the difference.

What we're talking about, or barking about, is this: lawyers, too, can find their passion in the law.

Lawyers are skilled professionals, dedicated, focused, highly trained -- not so unlike, say, a Swiss watchmaker. But our precision workmanship isn't the only thing we share with our cuckoo-crafting Swiss brethren.

Like the Swiss watchmakers before us, lawyers are facing significant market challenges. The answer to surviving may be in the Swatch.

The internet is a dangerous place and attorneys are increasingly being targeted by hackers seeking to hold important files for ransom or make a buck off insider information. As a result, more and more attorneys are turning to cyber insurance to help protect against the costs of an attack.

Even the ABA is jumping on the cyber insurance bandwagon. The Association announced this week that it will begin expanding its cyber insurance offerings to cover more lawyers and firms.

If you come across a stack of legal reporters in a law firm today, you know they're largely for show. The vast majority of our legal research takes place online, through services like Westlaw. And thank God! Searching through the Federal Reporter (600 volumes and counting in the current series) is hardly a joy.

But, if you are relying exclusively on computer research, you may be missing out.

We've got a lot of prisoners in the United States -- nearly a quarter of all the prisoners in the world. Yet, despite such a high incarceration rate, the actual workings of the criminal justice system occur largely outside the public's awareness.

In an effort to shed light on a system "shrouded in secrecy," Harvard Law School's Fair Punishment Project and Slate magazine are launching "Trials and Error," an ongoing series focused on "the reality of the justice system, and how to fix it."

Working With Startups and the Value of Saying 'No'

A young, ambitious entrepreneur came into the office with the next big thing.

Having made millions in other enterprises, the client was confident this was the business that would set him up for life. He wanted to record videos of young women at parties, like Mardi Gras, and sell them online.

"I don't think it's a good idea," I told him, saying that another company was already risking privacy violations in a similar venture. To his credit, the client listened and came back another day with a different idea.

The founder of that other company, by the way, later fled the country after a judge issued a warrant for his arrest in a bankruptcy case. Girls Gone Wild made about $20 million in its first two years, but civil and criminal lawsuits soon followed and forced the founder into bankruptcy.

Tips for Your Law Firm Social Media Policy

Have you ever seen a retraction or correction of a news story?

They are rare and often inconspicuous when they do appear. After all, nobody likes to highlight their mistakes.

The real problem, however, is that retractions and corrections do little to erase false impressions that have already been published. Words -- especially in the social media world of instant publication -- are very hard to take back.

For this reason alone, law firms must have social media policies.