Strategist - The FindLaw Law Firm Business Blog

November 2017 Archives

CLE compliance reporting is right around the corner. If you're anything like most people, you've waited until the very last minute to make sure you have all your credits. And if you are in fact in that "most people" category, you probably don't have all the credits you need.

Lucky for you, thanks to the wonderful learning tool that is the internet, you can probably get a good chunk of the credits you need, if not all of them, while sitting on your couch, in your pajamas and eating cereal while clicking your mouse button every 6 to 10 minutes to confirm you are still alive and watching. Forget about that pricey CLE vacation. Sweetening this deal more than your sugar laced cereal is the fact that you can find quite a few free online CLEs.

Below, you'll find a few resources to score some last minute CLEs for free.

How to Leave Work at the Office -- and Not Worry About It

Anchoring is a special skill for sailors.

It requires knowing something about the bottom terrain, the tide, the type of anchor to use and more. But when an anchor is set well, the sailor can sleep peacefully knowing the vessel will not drift out to sea.

Leaving work at the end of the day is like setting an anchor. If you do it well, you can sleep at night.

The holidays are a fun time of the year around the office. People are often in good spirits and are looking forward to a little break, and maybe even that end of year bonus and merit raise (if they're so lucky).

If you have a secretary, paralegal, and/or an admin, that work for you, getting them small gifts can often be an easy way to boost morale and buy their undying loyalty. To help you figure out how to buy your employees' love, below you'll find a few tips on what to give. And to no one's surprise, it doesn't include any of that novelty legal professional garbage that we all dread getting.

Law Firm Secretary Awarded $277K for Overtime

It's not a good look when a firm practices employment law, but doesn't pay overtime.

For one Los Angeles law firm, it looked even worse when a court ordered the firm to pay almost $277,000 in attorney's fees to their former secretary.

Noemi Bernal was awarded $91,000, plus $30,000 in interest, against J.J. Little & Associates on her wage claims. With the additional attorney's fees award, it was more than adding insult to injury.

Colorado Lawyers Can Avoid Disciplinary Issues With Online Program

Lawyers can avoid disciplinary problems by completing a new online program launched in Colorado.

Administered by the state's Office of Attorney Regulation Counsel, it is the first program like it in the nation. Attorneys who use it also can earn credits for continuing legal education.

Lawyers from other jurisdictions may use the self-assessment program, with some limitations. But Illinois is already following Colorado with a similar program.

For most lawyers, Thanksgiving is the beginning of the end ... of the year, that is. And even for those lawyers that have to meet a billable hour requirement, like every other person employed in a non-retail job, once that first Thanksgiving break hits, the natural tendency is to hit the coast button.

However, nothing brings that holiday coasting to a screeching halt like an unwanted call from an opposing counsel or client with some unforeseen task or dispute. While you always want to take calls from prospective clients, avoiding a call that could throw your holiday schedule out of whack requires careful planning and preparation.

Running a small law practice can be overwhelming. In addition to being a (or the) revenue generator, you also have to be the boss and manage the business side of things too. Fortunately, small firm clients understand that since they're paying less, their lawyers are not going to have all the perks of big firm lawyers.

Unfortunately though, those same clients certainly won't understand if your small firm doesn't have all the same perks for clients as a big firm would. After all, you're not cutting costs to put more money in your pocket. When it comes to wooing new clients, small firms may need to make sure their appearance matches their big promises.

Judges are people. It might not always feel like it, but they are human beings that can get drunk on holiday spirit (or just spirits), act stupid, and embarrass themselves like everybody else. Not only is there an annual judge holiday DUI or two, from time to time, there's a really ridiculous judicial holiday drunk driving debacle.

Fortunately for lawyers and litigants, judges rarely let that holiday spirit crash into the courtroom. In fact, it is a routine caution from the bench that the holidays are not likely to impact their rulings. The warning is usually followed by a stern "bah humbug!" However, if it does happen that you get an overly festive judge, you'll find a few tips on how to handle the unusual situation below.

Why Oppose When They Can Amend?

"Judicial economy" is a hard-sell to some clients.

They don't really care about the judge's workload or the time it takes to prepare, oppose, or argue a motion. They want results, and they want it now.

If you change the expression to "client economy," however, it gets a little easier to explain. Sometimes it makes economic sense not to go to court.

Being a lawyer means seeking justice on behalf of clients. However, lawyers understand that justice, particularly in the civil sense, is about dollars and cents, more so than justice.

When it comes to persuading a civil client that it is in their best interest to settle, a lawyer's role as a fiduciary can really complicate matters. To that end, it is the ever-constant duty of the attorney to remind the client of the business judgment rule of litigation. If it makes good business sense for a client, they should settle.

Below, you'll find 5 tips on how to persuade clients to settle by getting them to think like a business, and not a spurned individual.

Don't Give Inmates Anything But Advice

Steven M. Cohen apparently was concerned about his client's oral hygiene in jail, so he gave the man a toothbrush.

That resulted in a felony conviction for delivering illegal articles to an inmate. Then the state Supreme Court suspended Cohen's bar license and ordered him to pay $8,600 as a penalty.

So what's the lesson here? If your inmate client has really bad breath, do not give him a toothbrush? Or maybe it's more about timing.

Against People-Pleasing: Why Lawyers Should Be Hardcore

Troubling the leaders of his day with questions, Socrates was the gadfly of Athens.

So said Plato, his student and chronicler of his trial. Of course, Socrates accepted a death sentence for his self-appointed role in society.

Today, lawyers are taught the Socratic method of asking questions. And sometimes, they have to be painfully hardcore about it. While lawyers often try to downplay this part of their career, maybe they should embrace it.

For elder law attorneys, an unfortunate trend seems to be on the upswing among the client base: individuals over the age of 65 filing for bankruptcy. However, given that the number one cause of bankruptcies is medical debt, this makes a bit more sense.

As Forbes explained, the 65+ demographic now makes up a higher percentage of bankruptcy filers than it did a decade ago. Some speculate that the increase is due, at least in part, to the increased cost of health care over that same time. Notably, legislation was passed in 2005 to reform bankruptcy to reduce the number of filers, but has not been effective.

Tom Petty will likely be forever remembered by plaintiff's lawyers for one reason, and one reason alone ... wait for it ... wait for it ... the wai-ai-ting is the hardest part. And if you've ever had to wait for a government entity to approve your plaintiff's settlement, you've likely wanted to slap every person after the first who sang those lyrics to you.

However, before you start the waiting game known as settlement limbo, there are a few things you can do to help make your agreement more agreeable to the entity that has to approve it.

How to Say 'Seasons Greetings' on a Budget

It's not too early to think about seasons greetings, and for some things it's probably too late.

So let's just talk about what you can do this season -- especially if you're on a budget. Assuming you're not a Grinch, let's say you can spend a couple hundred bucks to cheer up your clients.

Come on. If you're charging a couple hundred bucks an hour, you can do this.

The legal issues surrounding undocumented immigrants are varied and often controversial. When it comes to disclosing a defendant, litigant, or even a witness's immigration status, courts must exercise a careful balancing act between the probative value and the potential for prejudice.

However, a new rule in the state of Washington seeks to lead by example when it comes to handling an individual's undocumented status. It basically makes it so that a person's immigration status will always be considered prejudicial, unless, by way of motion, the court finds it is more probative than prejudicial. While the new rule does not outright prohibit the introduction of evidence regarding an individual's immigration status, it does erect barriers to its introduction.

Can 'Best Practices' Be Bad for Your Law Practice?

Before Copernicus published his book 'On the Revolutions of Heavenly Spheres,' the scientific community traditionally thought that the Earth was the center of the universe.

That's thousands of years of wrong.

So what does that have to do with "best practices" and law practices? Well, maybe the traditional way of doing things is not exactly right.

For years, grammarians and spell checkers have been telling you to capitalize the word "internet." Then, a couple years back, a change in the capitalization tide took place, and over time, the word lost its proper noun status. It even reached, or maybe was just exacerbated by, the Supreme Court.

However, despite the fact that spell checkers now have no problem with, and often recommend using a lowercase "i" in "internet," the Fifth Circuit Court of Appeals has not been persuaded by the so-called "trend" and harbors a difference of opinion. In a recent case, Alexander v. Verizon, which is actually rather fascinating for the discussion on the intersection of privacy and criminal justice, the appellate court devoted a rather lengthy footnote to the subject of capitalizing the word "internet." (See footnote 12).

Tips When Asking Clients for Testimonials

Testimonials are the next best thing to referrals -- real people saying good things about your practice.

There are pluses and minuses, however. And when it comes to lawyer advertising, of course ethics rules apply.

But if there is one watch-word when looking for testimonials, the word is "real." Here are some other tips:

It's a rare condition, in this day and age, that a non-English speaking litigant in a courtroom will get an unqualified translator. 

However, when it does happen, and it does happen, the consequences can be rather pronounced. Given the semantic nature of legal analysis, a case can be completely ruined due to the mistranslation of a single word.

Given that trial attorneys have to worry about how testimony given in English is transcribed and punctuated by a court reporter, attorneys should be doubly concerned about mistranslation compounding that problem even further. Despite the federal judiciary, years ago, taking the lead by example, as well as "motivating" states to provide better in court interpreters, the lack of qualified court interpreters is still staggering.

Hypothetical: After putting countless hours into a case you know you can win, the other side ships over a dismal settlement demand or offer that you know is garbage, and to your dismay, your client, even after being told it's garbage, still wants to accept it (without even countering).

While the public may exclaim: "Cue the tiny violin!" for many lawyers, this is uncharted territory. For some lawyers, this is a big red flag. Below you'll find a few tips on what to do when a client wants to settle against your advice.

Legal Sector Lost 1,100 Jobs in October

If you've lost a job recently, don't take it personally.

According to labor statistics, the legal services sector lost 1,100 jobs last month. Out of more than a million people in legal services, it is not a large enough loss for profession-wide depression.

But for any individual, losing a job can be discouraging. It can also provide perspective, however, about where to go next.

It is not uncommon to see attorneys practicing criminal justice change sides from defense to prosecution, or vice versa, when they decide it's time for a career change. While sometimes (or probably most of the time) this change is fueled by more lucrative job opportunities, it can also be the result of a change in a lawyer's moral compass.

Once in a rare while, the switching of sides is actually a means to an end (other than more money). When defense and civil rights attorneys seek election as district attorneys, there is often a political or social agenda spawned from their experience defending individuals and their rights.

Public Speaking Tips for Lawyers

You're a lawyer. You've done moot court. You know your way around the podium.

If you are not a litigator, maybe you are a transactional attorney who counsels clients or gives presentations. In any case, you should not be nervous about public speaking anymore.

If you are, what were you thinking when you decided to become a lawyer? Like Joan Rivers used to say, "Can we talk?"

Many miserable lawyers out there dread going into the office, or just working as a lawyer. Even if you're not not that miserable, you can certainly try to improve your day to day experience as a lawyer.

One simple way to make your day a little bit better is by adding a little humor and creativity to your duties. Below you'll find a few tips on doing so and making every day a little bit better.

Should Law Firms Offer Free Lunch, Snacks?

Should law firms provide free snacks to their employees?

Yes. Next question. Is there no such thing as free lunch?

Objection. Vague, or at least the answer is yes and no. At law firms, not so much.

Several bills recently introduced in the Senate, aimed at curbing frivolous lawsuits, sparked congressional debate that might be worrisome to many federal practitioners. The suite of bills seek to erect higher barriers for individuals to sue businesses, as well as to make federal class action practice less lucrative for attorneys.

While many senators believe that more needs to be done to stop the overwhelming volume of frivolous lawsuits, the data does not bear this out. According to Myriam Gilles, a professor at the Benjamin Cardozo School of Law, the idea of an epidemic of frivolous lawsuits harming small businesses is a "convenient myth."

Seasonal Business Cards for Marketing on a Budget

When it comes to seasons greetings, ecards are the cheapest -- and that's the problem.

Not that you have to spend money on cards, but colleagues and clients expect a little more than a digital signature. Especially when you bill $300 an hour.

So here's an idea from the budget bin: seasonal business cards! When you can custom order a bunch for 20 bucks or less, why didn't you think of that?

One of the simplest causes of malpractice involves missing deadlines, and no deadline is more critical than a statute of limitations. If you miss one, then you can almost rest assured that (or, more likely, not sleep because) you'll be hearing from your state bar, and/or reporting to your malpractice insurance carrier.

However, before breaking the news to your client that you missed the statute of limitations, you should probably do a bit of last minute research to make sure you can't magically save yourself from some serious potential malpractice liability.

Cannabis Law Firm Goes Global

Is it really a good idea to issue a press release about going global with your cannabis practice?

Hoban Law Group, a leading cannabis law firm in Colorado, apparently thinks so. The firm announced it is opening four offices in Europe and two in Latin America to serve cannabis clients.

But with federal laws against marijuana, isn't that a little like winking at a highway patrol officer as you speed by at 90 miles an hour?

When filing or defending a lawsuit with an arbitration clause, it can often work out to your client's advantage to utilize that arbitration provision, or to try to get around it.

Sometimes though, cases will get filed before a contractually required demand for arbitration is made. In those cases, defense counsel will have an important decision to make: whether to invoke the arbitration provision and quash the case, or simply continue on with the litigation, and waive that clause. In the end, the question boils down to the age old question of costs versus justice, and whether your client is willing to sacrifice one for the other.

What Is Drug Court Practice?

As the opioid epidemic continues to make front-page news, legal practitioners have opportunities to be part of the remedy.

President Donald Trump's commission on opioids has called for more drug courts to address the "worst drug crisis in U.S. history." The panel recommends drug courts in all federal jurisdictions, and encourages state and local governments to apply for drug-court grants.

If implemented, the plan will triple the number of drug courts in the country. As a result, drug court attorneys will be in demand more than ever.

Judge Tells Lawyer: No Sidewalk Speeches

Most lawyers know the ethics rule on trial publicity, but never have occasion to worry about it.

The rule prohibits a lawyer from making statements to the media that may prejudice a pending a case. There are some exceptions to the rule, but who really cares as a practical matter?

Not Paul Manafort's lawyer, apparently. At least not until a judge told him to stop talking to the press.

Even the best conflict checking system won't be able save you from getting disqualified if a case unfolds into a conflict, or some other insurmountable issue rears its ugly head. And while opposing counsel and parties may be happy to get you thrown off the case, what you do after getting kicked off can make all the difference (as to whether you or they will regret it).

After the initial shock wears off, you might be wondering what you actually need to do after a judge declares that you or your firm can no longer represent your client in court. Like with any setback, you need to pick up the broken pieces, and get out the super glue to try to fix things. Notably, getting DQ'd generally only applies to your continued representation in court. But if you're not careful and choose to continue your representation, your actions could get the successor counsel disqualified as well, and potentially land you in serious ethics trouble with your state bar.

How to Overcome Sickness From Work Stress

Alyson, an ambitious attorney, had a stroke when she was 35.

She was going to court that day, but suddenly her body went limp. She was paralyzed.

It didn't happen in a day, however. It happened over the course of a stressful career because a high-pressure job like lawyering can make you sick.

When the topic of Space Law comes up, some lawyers are bound to roll their eyes, while others will start scanning their memories of which Starship Enterprise crew member could have been a space lawyer. But in reality, right now, most space law is about as exciting as an international patent dispute, or as crazy as crazy gets.

Although we are actually pretty close to having some serious (and cool) legal issues in outer space, until commercial space travel and space tourism really take off (pun intended), space law will likely remain in the provenance of the patent lawyer, legislators, and lobbyists.

What to Do When a Witness Is Blowing a Deposition

It happens to every attorney who has appeared for a deposition.

It's that moment when it goes south, when the witness says something so cringe-worthy you don't know what happened. If only there were a pause button or a way to delete that last sentence...

You can use objections and instructions to reel in the problem witness, especially if it is your client. But then there are the inevitable pitfalls.

What to Do When You're Kicked Off a Case

It's embarrassing to get fired, and even more so when it's executed in public.

Then there's the ultimate dismal dismissal, when a judge kicks you off a case. There's no place to hide when it becomes part of the record.

So what do you do when you get booted from a case? The lawyers at Frey Buck in Seattle did it like a boss.