Strategist - The FindLaw Law Firm Business Blog

August 2017 Archives

Life can be a wonderful, albeit chaotic, and hopefully long and bounteous event for most attorneys. The chaos, though key to providing the variance that keeps life interesting, can sometimes raise the ire of court, like when you get a flat tire on the way there.

When disaster strikes last minute, do you know what to do in order to remain in the court's, and your opposing counsel's, good graces? What you do can make all the difference.

Here are three tips to help keep you out of trouble when it becomes clear that you're not going to make it to court on the day you're supposed to be there.

Are Your Law Firm Videos Really Helping?

Many lawyers are frustrated actors, but that doesn't mean they should be making movies.

After all, how many people actually want to watch a lawyer video? According to a new report, not that many.

The good new is, however, the numbers explain what consumers really want from attorney videos. And it's not special effects.

Sometimes scheduling conflicts cannot be fixed. While you may be able to perform super-human feats, being in two places at the same time just isn't possible. Fortunately, help is usually just a call, or even a click or tap, away.

Contract attorneys can perform all sorts of various tasks for you. One commonly assigned task is making "special" appearances on behalf of an attorney at record in court for the less important hearings and conferences, like scheduling or arraignment.

Below, you'll find three practical tips for hiring appearance attorneys.

What to Do When Your Judge Is a Creep

The judge asked an accused prostitute whether she did it because she liked the money or because she liked the action.

Other times, he commented on the attractiveness of female lawyers in his courtroom. He gave them nicknames, like "Ms. Dimples," "bun head" and "Star Parker." His name, Judge Gary Kreep.

For real, you cannot make this stuff up. But what can you do when your judge is a real creep?

Judge Makes Rule So Women Can Speak More in Court

If there were a poster boy for an old boys club, Judge Jack B. Weinstein could pose for the picture.

He's white, male, and 96 years old. They don't come much more "experienced" in a male-dominated profession than that.

But contrary to outward appearances, Weinstein may be the most progressive judge in New York. One legal publication calls him "a hero" for women and diversity.

Should a Non-Lawyer Head Your Law Firm?

Non-lawyers running law firms -- what could possibly go wrong?

"Human sacrifice, dogs and cats living together, mass hysteria!" Maybe that's an over-reaction, but it's a fact that more non-lawyers are running big law firms. And they have been successful enough for a few sequels.

So what's going right with this new creature in law firm management -- the non-attorney, chief executive officer? Here are some things to consider in deciding whether to get one:

At one time, customer loyalty punch-cards likely took up a significant portion of your wallet or purse. You had your favorite sub sandwich shop's card, your favorite café's card, and even your McDonald's coffee punch card. However, today, paper punch cards are rarely used as most businesses' loyalty punch cards have gone the digital route.

Regardless, customer loyalty programs are still incredibly effective at increasing business, particularly in the retail, airline, food, and service industries. However, when it comes to lawyers and law firms, should clients be offered rewards or discounts for loyalty? After all, technically, lawyers are part of the service industry.

Black Attorneys Still Underrepresented in Law Firms

In an age when a black lawyer became President of the United States, it is surprising that black attorneys are the least represented ethnic group at American law firms.

According to a new survey, law firms have made little progress in diversity hiring. Only three percent of lawyers -- including associates and partners at more than 300 firms -- are black.

"Black lawyers are the least represented at every level," the ABA Journal reported.

There are few things in a lawyer's life worse than losing a case. One of those fates worse than a defeat is the dreaded negative online review.

Review sites like Yelp! allow the public to review attorneys based on their experiences. That means if you simply fail to return a potential client's phone call, they can go online and post a one star review, and say you never even bothered to call them back.

Below, you'll find five of the top tips to help you control your online reviews and reputation.

Why Fly Coach If You Can Get a Private Jet?

Partner: "I'm taking the jet today."

Associate: "Can I help with your bags?"

Secretary: "No, but you can load mine."

If only your law firm had a corporate jet, you too could live like the rich-and-famous. Some lawyers can justify the expense of a private jet, but obviously it's not for everybody. Or is it?

Lawyers are not taught to be business oriented. Sure, we can pierce or protect the corporate veil, and litigate on behalf of or against businesses, but when it comes to running a law firm, the ordinary business principles of growth and scale don't seem to benefit legal consumers.

A big law expat made legal news headlines for calling out the backwards business nature of law firms. William Glasgow, a former big law chief level executive, explained that, unlike other businesses that charge less for their products and services as they grow, law firms do the opposite. When a company that makes a product grows, usually, the cost of their product goes down. But, as a law firm grows, the rates it charges clients increase.

How to Minimize Risk of Malpractice as a Solo Lawyer

One of the hallmarks of good advocacy is to see a case from both sides.

Like being the devil's advocate, it helps to see the strengths and weaknesses of a situation. This is especially appropriate when it comes to assessing the malpractice liability of your law practice.

So consider your liability from an insurer's point of view because virtually every carrier will ask these questions to assess your risk of malpractice:

Tips for Drafting Equity Partner Agreements

Non-equity partnership agreements, once a rarity in law firms, transformed the traditional partnership model.

Since the beginning, law firms have had single-tier partnerships where all have equity in firm growth. Only a handful of major firms, like Cravath Swain & Moore, hang on to that business model today.

While economics can change everything, non-equity partnership agreements are in vogue at most large law firms. For many firms, however, the traditional equity partnership is a standard. Here are some tips to consider in two key areas:

Even though paying for it is painful, advertising can be a lot of fun. Thinking up catchy campaigns that will capture the attention of potential clients is a creative process that can pay off big time. Using pop culture references in advertising can often appeal to certain audiences, and if your ad is good, you might get lucky and it will go viral.

While intellectual property laws do allow for some fair use of others' creations, or even when there are no intellectual property laws at issue, going too far with pop culture can result in a public relations disaster.

Just about every lawyer, at some point in their career, will be faced with a client that either doesn't want to pay a bill, or won't approve a budget or "not-to-exceed" estimate.

When it's a regular client, pursuing the regular dispute resolution procedures, or maybe letting the client slide on small portion of the bill, might be financially tenable. But, when it's your biggest client, or a client that accounts for a significant portion of your firm's book of business, the regular course of action might not be the best course of action.

In your entire legal career, you've probably never started a client meeting by saying: "I have an idea so crazy it just might work." Perhaps if you have a flare for the dramatic, you've probably used that line with a drinking buddy, or even pulled it out during a meeting with a colleague or partner, but never in front of a client.

So ... what do you say when you need to get a client to go along with a novel litigation strategy? Generally, to get a client to loosen the purse-strings for any reason, you need to explain the risks of failing to do so, along with the potential benefits. Below, you'll find three tips to help convince your client that your novel strategy is worth pursuing, and no, none of them involve crowdfunding.

When it comes to online marketing for lawyers and law firms, one of the hottest areas that lawyers are investing in is social media. However, those "promoted" posts and advertisements on social media might not help as much as naturally good content that's consistent with your branding.

For the most part, users of social media tend to skip over promoted posts and advertisements. However, if the promoted post contains high quality content, rather than a traditional or direct advertisement, it is more likely that the consumer will engage with the content. For attorneys, being seen as a real person on social media, rather than a lawyer whose time is too important for the average consumer, can actually help get the phone to ring.

Millions of PACER Documents Made Free

PACER, your favorite tool for getting federal court documents, may not be your favorite for long.

CourtListener, a service of the Free Law Project, now offers every free written order and opinion that is available on PACER. And unlike the court's preferred provider, CourtListener does not require a user account with the typical conditions.

The service does not replace PACER, but it makes research a lot easier and cheaper. The Free Law Project also threw in a bonus: a legal scraping toolkit.

Common Mistakes When Starting a Law Practice

What's the most common mistake an attorney makes when starting a law practice -- besides choosing to become a lawyer?

Just kidding. Starting a law business may be the best thing about entering the practice of law. It's the great American dream -- now that home ownership is just a dream -- to own your business.

There are common mistakes that almost every new lawtrepreneur makes. Here are the common mistakes you should avoid when starting your law practice:

A London law firm is in hot water after an Indeed.com job ad that was purportedly posted by the firm offered a junior associate salary of just $12,885.00 per year. The salary is more than a few dollars below the minimum wage. This translates to roughly $7 per hour, assuming a 40 hour work week (which we all know, only working 40 hours a week for a junior associate is the pipe-iest of pipe dreams).

The firm denied ever posting the ad, but regardless, it has caused, and will continue to cause, needless headache and loss of reputation. Now, when prospective clients search the law firm by name, they are likely to turn up an article about the questionable job posting. Making your firm stand out from the crowd is important, but standing out for the wrong reasons can be terminal.

In the Robert Murray v. John Oliver case, the recent decision to remand the case back to state court is making headlines. However, those headlines and articles tend to focus on what's happening, and all the comedic language, rather than the strategy behind it all.

Despite the careful analysis of the court's decision to remand, there is very little about why HBO's attorneys tried to remove the case to federal court.

When it comes to defamation claims, is it better to be in state or federal court?

What Does the Future Look Like for Personal Injury Lawyers?

Personal injury attorneys, it's time to take a good look at yourselves in the mirror.

If you think a future with driverless cars and fewer accidents will kill your practice, you need to slap yourself in the face. That's not how technology works.

It's supposed to make life better, and that includes your practice. Here's how it's going to work, for better or worse.

Women Get Fewer Chances as Lead Counsel

Women lawyers serve as lead counsel in only 25 percent of all cases in New York courts, according to a new study.

The New York State Bar Association survey found an even lower percentage of women served as lead counsel in private civil cases. The lowest representation occurred in complex commercial litigation, where 19.5 percent of the lead counsel were women.

"In short, the more complex the case, the less likely that a woman appeared as lead counsel," the bar association reported.

How to Manage Yourself at Your Law Firm

When it comes to law firm management, wouldn't it be great if there were an app for that?

Actually, there are dozens of software programs and management systems that you could employ. In a few years, a robot will be able to take over firm management. But what about you?

This post is about managing yourself and understanding that self-management leads to better firm management. It's a little old-school lesson in self-discipline:

Running a small or solo practice is no easy task. Whether you are truly solo, or have a few underlings, or a couple other attorneys, on your team, most small law shops have to deal with the same basic challenges.

According to a recent survey and info-graphic published by Thomson Reuters (FindLaw.com's parent company- thanks mom and dad!), over 80 percent of small firms reported not only an increase in price competition, but also an increase in competition from non-traditional legal services providers.

Below are the four of the top challenges that solos and small firms face. As you can see, the times may be changing, but the same issues seem to be persistent.

When it comes to structuring contingency fee agreements, most state bars allow quite a bit of latitude, so long as fees are reasonable. There may be some required magic language about the fee being negotiable that's mandated in your agreement, or some limits, but for the most part, lawyers are as free to undercut competitors and competitively price their services as they are to set prohibitively high fees.

In contingency matters specifically, one of the hot button issues that often results in conflict between clients and attorneys is when costs get deducted, or charged after a loss. No matter how clearly you communicated it to your clients, when the settlement check comes in, ten out of ten clients will tell you that they believed costs would be deducted from the recovery first, then your contingency percentage, rather than the other way around, regardless of what your agreement says. However, if you actively negotiated this term with the client at the outset, it's more likely they'll remember when the check arrives.

BigLaw Gets Bigger Piece of Market Pie, Report Finds

Like America's middle class, midsize law firms are struggling as BigLaw takes a bigger bite of the legal market.

A new report from Thomson Reuters shows that the largest firms are separating themselves from smaller firms in the demand for legal services. Michael Abbott, vice president of client management and global thought leadership at the company, says it reverses a trend a few years ago that showed clients moving work to smaller, less expensive firms.

"While the overall market continues to struggle to find traction this year, we are seeing signs of improved strength across 'Big Law,'" Abbott said. "The market tier made up of the largest firms is showing more widespread stability and growth than their smaller counterparts."

Checking In or Checking Out on Vacation?

College student: 'I am interested in pursuing law, and I was just wondering, on average, how many weeks of vacation a starting out lawyer would receive?'

Columnist: "Ha, ha, ha. Oh my gosh! That's a good one. Next question."

As if lawyers actually take vacations ... it's more about managing the time you take to get away from the office. The "checking-in" method can help.

We've all probably heard the joke about the lawyer that dies, goes up to heaven, and sees St. Peter at the pearly gates. St. Peter looks the lawyer up and down, then says: "There must be some mistake, you look far too young. According to your billable hour log, you should be 172 years old."

Traveling for work can have its perks, unfortunately those perks don't include double billing, or even being able to bill your clients for first class plane tickets. That whole fiduciary duty thing can really put a damper on traveling in style.

Below, you'll find three tips to help lawyer while on the road, rail, or in the friendly skies.

They said it was bound to happen. It was just a matter of time. Now your client came to a decision, and it was one of a painful kind. Cause now it seems that you wanted to save them from liability, and that's the one thing they kept preventing you from doing. So rather than realizing they're wrong, they fire you.

After all that, are you going to be liable when your now-former client destroys their case, their business, and their life, in spectacular fashion, while misinterpreting your advice?

Of course this will vary from jurisdiction to jurisdiction, and even from practice to practice. Below, you can read some tips on how to avoid malpractice claims after getting canned (keep the salt shaker handy, as you'll need a few grains for the following).

What's Your Liability for Client Communications to Third Parties?

Among President Trump's covfefe's, dictating Donald Trump Jr.'s statement about a meeting with a Russian lawyer registers high on the Richter scale.

The exact impact will be determined by history. Right now, it's big enough that the special counsel has convened a grand jury amidst growing evidence concerning the Russia affair.

It is a lesson for Trump but also for attorneys who dictate information for clients that is destined for third parties.

Public Defenders Seek Judicial Relief From Caseloads

Public defenders say they have so many cases indigent defendants are not getting adequate representation. Now tell us something we don't know.

Well, did you know one veteran judge says the caseloads have reduced the constitutional right to counsel to a "hollow shell"? Did you know a state Supreme Court is considering placing limits on criminal filings to deal with the problem?

David Henderson, arguing to the New Mexico Supreme Court, said public defenders are turning cases away. Already, he said, there are not enough attorneys to represent clients at bail hearings.

Hell hath no fury like a Florida judge who receives an improperly formatted brief. Luckily for the BigLaw lawyers for Darden Restaurants, the line spacing violation only landed them a scolding and striking, and not a denial, nor sanctions.

The pleading in question here was a motion for summary judgment. Rather than the standard double-spacing required by court rules, the motion had lines spaced at one and a half. Additionally, compounding the matters of form were nearly double the amount of acceptable lines of footnoting (clearly this brief was submitted before the lawyers had a chance to read our post on excessive footnoting).

A lawyer's desk can definitely leave a lasting impression on clients and colleagues. But only the junior associates are really going to be impressed with how high you can stack pleadings on your desk.

You, and those that know you, might be able to excuse your messy desk as a personality trait, or as evidence of your non-traditional, outside the box thinking. But what about new clients, or opposing counsel?

To help you find your system for keeping a clutter-free desk, below you'll find a few handy tips. After all, you have to find something that works for you, your working style, and your level of required clutter.

Sometimes justice is elusive. Statutes, regulations, and precedent, will not always line up exactly with an injury, harm, dispute, or with what just feels right. However, thanks to the way the justice system works, certain catchall-type causes of action can be applied in new ways. Unfortunately, most defense attorneys aren't just going to roll over.

Among the most commonly used catchall cause of action for novel claims is a wrongful termination in violation of public policy. This common law cause of action requires that a plaintiff have a public policy upon which their wrongful termination claim is based. However, the public policy is open to interpretation and can be based off statutes, regulations, contracts, policies, or even general societal norms. Similarly, statutes like 42 U.S.C. 1983 can be used to bring new claims alleging violations of a person's constitutional rights (although Bivens claims were recently limited).

South Dakota's Legal Weed Hopes: Ruined by a Missing Phrase?

Is it possible that the authors of South Dakota's marijuana initiative were stoned at the time they drafted it?

After all, marijuana proponents invariably use the hallucinogenic drug. Memory loss and paranoia, for example, are common side effects.

And apparently, the authors forgot to include a critical phrase in their ballot draft. The state attorney general says now the ballot measure legalizes only paraphernalia -- not marijuana.

Amidst the controversy over the in-depth searches of electronic devices on the border that are lawfully happening, the New York City Bar Association has chimed in with some advice for attorneys that could be subject to these border searches. The ethics opinion explains what an attorney's ethical obligations are when it comes to a border search of their electronic devices that contain client data, or privileged information.

The opinion provides some rather detailed advice, including a requirement that an attorney promptly notify any and all clients whose data or confidential information may have been disclosed as a result of a border search. The most important thing to remember as you protest the search: remain calm and polite, and take reasonable steps to protect your client's data.

Below, you'll find some of the steps provided in the NYC bar's ethics opinion.

Is the Law Firm Office Manager Stealing?

At what point do you call out your office manager for taking money from the law firm?

When she takes $25,000 for bail on a case? When she pays off the lease on her Mercedes Benz? How about when you realize there's $2.1 million missing from the firm account?

Apparently, that's what it took for attorney Bernard Charbonnet, Jr. to do something about it. Unfortunately, his office manager was gone before he realized the money was gone.

What Is Excessive Footnoting?

A recent sua sponte striking of a motion is making headlines over the rationale provided from the bench: excessive footnoting. Although footnotes aren't really a good persuasive writing technique (why are you trying to distract your readers?), pleadings all too often contain them, and courts, not trying to be the arbiters of style, allow them.

But now you maybe asking: What exactly constitutes excessive footnoting?

Good News, Bad News for Women Lawyers in 2017

The good news is that more women are becoming law partners.

The bad news is, that represents only about 25 percent at the leading firms. And somewhere in between the good news and the bad news is a question:

With more women going to law school than ever, where are they going after that?