Strategist - The FindLaw Law Firm Business Blog

July 2017 Archives

Getting the opportunity to serve as outside counsel for a government entity is highly sought after. For the firms that get the opportunity, it can equate to a big payday. As a recent AP article showed, states like Florida are just hemorrhaging money on legal battles, and losing, and paying even more.

Whether your firm focuses on representing entities or individuals, there are government outside counsel opportunities that you can pursue. For attorneys at all levels of experience, there are conflicts panels that can, in some areas, produce a relatively steady stream of individual clients that the government cannot represent. However, getting an assignment from a conflict panel pales in comparison to being selected as private outside counsel for an entity.

According to a new study published in the Wall Street Journal examining recent statistics found that individual tort lawsuits are down. By a lot. Maybe even "Winter Is Coming" -style numbers.

The hard numbers show that in 2015 less than two people per 1,000 filed tort lawsuits, whereas in 1993, that number was closer to 10 people per 1,000. The types of cases that have seen a significant decline range from medical malpractice to motor vehicle and product liability and other tort claims. In 1993, these filings made up over 15 percent of all filings, whereas in 2015, these only accounted for four percent.

Donating Recoveries? Game On!

It's bad enough that former athletes often go broke, but add to that corporate profiteering on their images after they retire -- really?

"Come on, man," as Charles Barkley would say. Don't know basketball? Then how about Chris Spielman, former pro football player? Now a television analyst, Spielman is suing Ohio State University for using former athletes' images without their permission.

He is donating any recovery to help other student athletes at a time when the federal government is cutting back on donating settlements to third parties. For litigants with causes, sometimes it's a game of strategy.

We've all been there before. Caught, like a deer in headlights, with absolutely no knowledge whatsoever about a particular legal concept. So rather than diving into real legal research, we jump on Google to run a basic search. Then, viola! A page pops up.

We read it over, surprised with how in-depth the wiki-page went, and how authoritatively it was footnoted. But, relying on Wikipedia for a legal citation, or as the authority for a legal issue, is like going to England for a beach vacation in January. It's technically possible, but also just a really bad idea. Printing up a page from Wikipedia for your client file, or billing a client for Wikipedia research, is definitely something to avoid, or risk being publicly skewered.

Being a lawyer can sometimes be really rewarding. Not only can you help people in their time of need, but you get to make a living doing so. 

Despite the tinge of conscience, where there's potential to recover for your clients, there's potential for real profits for your firm. The new cases that are being filed against Opioid makers on behalf of individuals, tribal nations, and even counties and whole states, are being compared to the cases filed against big tobacco.

Tips to Make Your Law Firm Stand Out

Marvin Mitchelson, the famed Hollywood divorce lawyer, had an office that stood out.

From his office-length window across from the Los Angeles Country Club, he could see the hustle headed toward Rodeo Drive. He adorned his space with antique furniture and ornaments that rivaled Hearst Castle -- a reproduction of Botticelli's Venus hung over his desk.

But that's not really what we're talking about when it comes to having a law office that stands out. We're talking more about attracting new lawyers to join your firm.

There are at least a dozen ways to make your firm stand out to prospective associates: offer flexible work; have progressive leave policies; provide more benefits. But we're going to go with some less oblivious attractions:

Not many lawyers ever actually get to grapple with the great legal conundrum of the Parrot Evidence Rule. Surprisingly, it's somewhat similar to the Parol Evidence Rule, apart from the easy to forget part. But rather than dealing with extrinsic evidence of contract terms, it deals with the unverifiable ramblings of birds that can mimic speech. (Note: this may be the first ever definition, albeit unofficial, of the rule since my fellow FindLaw writer Chris Coble coined it, so strap in, folks).

Recently, a murdered man's parrot has been center stage in the media due to the bird's rather apropos exclamation "Don't f****n shoot!" While the bird never made it to the courtroom, the statement was considered as evidence, just not in court. Notably, commentators are crediting the bird with helping police piece together the murder, but all things considered, that might just be a cute gesture.

Whistleblower cases can present legally fascinating constitutional law actions involving a few different First Amendment issues. When a whistleblower discloses information to the public, or an appropriate agency with oversight, not only are there constitutional protections, there are frequently statutory protections as well.

But what happens when that evidence is illegally obtained, or the disclosure of that evidence violates another law? Will your client's claim survive?

BigLaw Gets Another Boutique Law Firm

Closing in on almost 4,000 lawyers, DLA Piper picks up law firms like a tire tread picks up rocks -- it's rolling.

Continuing its worldwide expansion, the BigLaw firm has brought in another boutique law firm. Liner LLP, and about 60 attorneys, will join Piper's offices in downtown Los Angeles and Century City.

It represents a trend that is gaining strength, as law firms announced a record 52 mergers so far this year.

Lawyers, take a moment to be proud of your profession. For the past several years, law firms have ranked highest on the Human Rights Campaign's "Corporate Equality Index."

This year's report shows that law firms are, again, ahead of the curve when it comes to providing transgender employees with equal rights. While the Human Rights Campaign's numbers show an increase in the number of law firms that have transgender friendly policies, the National Association for Law Placement's 2016 report found that the number of openly LGBT attorneys rose from 2.3 percent in 2015, to 2.5 percent in 2016. Large firms, with over 700 attorneys, reported the highest percentage of openly LGBT associate attorneys at 3.8 percent, as well as LGBT partners at 2.2 percent.

Below, you'll find three important policies your firm should implement to protect the rights of transgender employees in order to attract and retain top talent, and not just from the LGBT community.

Tips on Productivity: Go Slow and Steady

Many years ago, I drove a 1969 Volkswagen almost 1,000 miles up and down the California coast to attend a deposition.

It was a beautiful trip, especially along the cliffy stretch between San Simeon and Carmel. Not everybody gets to see it because sometimes rock slides cover the highway. As I look back now, I realize how that drive taught me something about life.

Slow and steady wins the race. It's as true on a road trip as it is in law life. Here are some tips to help you manage your productivity in a busy law practice:

When drafting a pleading, most practitioners focus on proving their case to a judge, and never give a second thought about the general public as an audience. This may seem like the right strategy, but there are certainly some advantages to simplifying your legal writing so that the general public can understand your case, too.

For starters, judges might not be as smart as you think you are. If you are unsure about the definition of a word, they might be as well. And if you're unsure about a word you're using, the general public, with its 8th grade reading level, will more likely than not be confused. Focusing on readability is good, not just for the public, but also for your judge.

Your legal writing style, believe it or not, matters. Judges, and their clerks, appreciate clear writing devoid of unnecessary terms and phrases. However, when it comes to legal writing, court and local rules, and even individual judges' standing orders, tend to focus on formatting, citation, presentation of exhibits, and other more logistical matters.

One of the great stylistic legal writing debates involves whether to capitalize party designations. Unfortunately, though seemingly logistic, this is not something courts usually provide official guidance on. Matters of style are left to the attorneys to figure out, or sometimes it's left to an attorney's boss to dictate. The current popular school of thought preaches the use of concise, plain language. This means that, as much as possible, a pleading should be understandable by a layperson. But what about capitalization?

Solo Lawyers: Tips for Working on Your Summer Vacation

'Working vacation' is an oxymoron, especially for solo attorneys.

So why do we plunge head first into the ritual? It's like starting a journey, knowing that you'll never get to your destination.

But such is the attorney's fate, and so we soldier on with our lattes in life. Here are some ideas for your next working vacation:

Time to Raise Your Billable Rate?

When is it time to raise your billable rate?

When you want to buy a new BMW. Just kidding, sort of.

Deciding when to raise your rates depends on a number of factors, but always involves calculating the bottom line: how much do you need to stay in business?

What's Your Practice Worth?

Thinking about selling your practice?

If so, the next question may help you make up your mind. How much is it worth?

It's hard to say, kind of like explaining to clients the value of their case or the reason for your hourly rate. It's a complicated question but boils down to this: How likely is it that your clients will actually continue with the potential buyer?

A handful of attorneys are lucky enough to have the problem of dealing with public backlash for representing unpopular, high profile clients. When the media makes your client a villain, it's not always easy for a lawyer to step to the side and not be cast in the same light. But, with high profile clients comes media attention, which is, basically, lots of free advertising.

Even when attorneys are maligned publicly for being willing to represent the reprehensible, the process of name/brand recognition is at work. Seeing the recent critical articles written about O.J.'s pending parole might make some lawyers wonder whether tying their shingle to unpopular causes and names is really a wise choice. After all, bad press is good press, except when it's really really bad, right?

Have you been waiting for an exciting niche area of law to take your practice to new heights? If so, and you are in any way, shape, or form technically capable, you may want to consider studying up on the laws surrounding drones.

The mass production of unmanned aircraft systems, more commonly known as drones, that exploded onto the market over the past few years, has heralded a whole new set of legal concerns for businesses, individuals, the general public, and government entities. Unfortunately, there currently are not enough lawyers to help navigate these emerging legal concerns. Even major firms are trying to enter the field, as it is just that hot.

A train needs coal, a car needs gas, and a lawyer needs clients. Solo practitioners, you didn't go to law school to learn to market your legal practice, or to learn to build websites; you went to learn to be a lawyer. While lawyers are known to be persuasive in the courtroom and in legal writing, the same isn't necessarily true when it comes to persuading new clients to hire you.

So, how do you create successful acquisition strategies as a solo lawyer? The new playbook by FindLaw's Lawyer Marketing can help. Offered as a free download, "Client Acquisition Strategies for the Solo Practitioner" provides important insights on some best practices to help solos land new clients.

Law Firms Resist Changing Business Model, Despite Growing Competition

Lawyers are not very serious about changing their business model, according to a recent survey of nearly 400 law firms.

Less than one-fourth of the survey respondents said they were seriously considering a change in their legal service delivery model. Nearly two-thirds blamed the reticence on the law firm partners.

The Altman Weil "Law Firms in Transition Survey" says lawyers are not ready to change, despite a competitive pinch from legal tech and legal service providers. Surely, there have to be lawyers somewhere doing something about it?

Ethical Issues With Referral Fees

There's a joke that aspiring attorneys go to law school because they aren't good at math.

But it's no joke when it comes to calculating referral fees and fee-splitting between attorneys. Make a mistake, and it could cost you that law license.

Fortunately, there are some professional rules for that and they can save you a headache when trying to figure it out.

How to Kill Email and Save Time

Email can be a time-killer, so why not fight back?

When junk mail starts to outnumber legit mail, it's time to put them to sleep with the fishes. And what about those old emails that keep hanging around like cheap friends? You don't have time for this!

But you don't wanna whack the good guys, so whatta you gonna do? Well, say hello to my little friends:

What to Do When a Client Puts a Gun to Your Head

"But for the grace of God, goes John Bradford."

It's a quote attributed to the religious reformer, commenting as prisoners were led to execution. He was later burned at the stake.

It's also apropos for lawyers who have advocated for clients, only to have them threaten them. Like Jack Swerling's client, who was convicted after holding him at gunpoint.

Academics Can't Explain 'Astonishing' Decline in Plaintiffs' Win Rate

Plaintiffs mysteriously lost twice as many federal cases in 2009 than they had 24 years earlier, according to a new study.

Two University of Connecticut law professors said the plaintiffs' win rate declined about 50 percent from 1985 to 2009. It was a trend the professors cannot explain.

"I'm an academic, I don't like to speculate," said Peter Siegelman, who co-authored the study with Alexandra Lahav.

Fight for Your Right to Party, or How Lawyers Can Take Vacations

Move to France.

That's the short answer to how lawyers can demand vacation days. In France, employees are entitled to five weeks of paid vacation each year by law.

Unlike most countries, however, the United States has no right to paid vacation or paid holidays. So if you are an American lawyer, you may have to work a little harder to take time off.

'Participatory Defense' Helps Public Defenders

It's a hard thing, defending so many people in court that you don't even recognize your clients' faces.

But that is a given for many public defenders, like those in Santa Clara County, California, who handle scores of cases each day in the turnstiles of criminal court. For some 124 attorneys, there are about 37,000 clients a year.

That's why "participatory defense" is the new black for public defenders. It's a new name for an old school practice in criminal law.

Lawyer Blames Junk Email for Missed Deposition

It's hardly news when a lawyer misses an important email because it happens all the time, right?

After all, what with all the junk mail from vendors and others, it's easy to overlook an important email once in a while. But what if that important email went straight to the junk mail?

Attorney Stan Davis, whose case could be dismissed over it, is asking a judge to decide the issue. But many lawyers know the answer because they have been there, done that.

Law Firms Beef Up Specialty Business

When President Trump fired half of the U.S. Attorneys in the country, they had to go somewhere.

So Andrew Luger, a former U.S. Attorney, joined Jones Day as a partner in its investigations and white collar defense practice. He supervised large-scale white collar investigations and prosecutions for the government.

His transition back to the private sector comes at a time when government prosecutors are "increasingly" investigating companies and their officials, according to Jones Day. It is a trend that is affecting large and small firms.

Tax Lawyers, Should You Get a CPA License?

The 'Accidental Tax Lawyer' is not the name of a movie. It's a title from a blog post about a lawyer thinking about going back to school to become a certified public accountant. But if it were a movie, it would be a mid-life, coming-of-age story because it speaks to all who wonder about that other road in life.

Only the road to becoming a CPA after law school is harder than doing it the other way around. At least, that's the story from these bloggers: