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October 2017 Archives

Sometimes a client's story will be so interesting you'll think to yourself that it would make a great book or movie. However, before you go penning your client's story, you might want to consult a lawyer. Good thing you know one.

While your own life story might be now intertwined with your more interesting client's life story, before you publish anything, you better get permission from your client(s) and consult your state bar's ethics rules. Nearly a full year after getting disbarred for writing it, an attorney is now being sued by the client subject of their tell-all book.

Setting an amount for an initial demand can often be a rather nerve-wracking exercise in futility. You know the other side isn't going to just say yes, but on the off chance they do, are you going to regret coming in too low?

If you value the case at a certain dollar amount, what's the litmus for settlement value on an initial demand? If you go too low and still get rejected, will you sour future negotiation attempts? Can you even negotiate in reverse?

Constructing a Flexible Fixed-Fee Project

Law firms are looking everywhere for alternative fee agreements that work.

Flat fee, hybrid fee, premium fee, break-up fee, budgeted fee; the list goes on. Some firms won't even work for money where bitcoin will do.

Here's something a little old and a little new: the project fee with a construction feature. In the construction business, they call it a "change order."

While you may think that some lawyers dress oddly enough to look like they're actually in costume, when push comes to shove, it's probably not a good idea to show up to court in your Halloween costume. If you do, consider changing out of your costume before walking into the courtroom, as even a lawyer dressed as Thomas Jefferson is not safe from disbarment.

Unless you plan on wearing your normal work clothes as part of your Halloween costume, or your costume involves wearing a suit or attire that is actually appropriate for court, leave the costume in the office, at home, in your brief case, or maybe just underneath your suit (think Clark Kent/Superman). Particularly given the recent creepy clown controversy, the courtroom is not a place to show off your Halloween costume.

Essential Project Management Skills for Small Firms

In professional football, 53 players can make the team.

Because only 11 can play on the field at a time, they typically divide up into offense, defense, and special teams. Each of these teams has a specific purpose under the guidance of an assistant coach.

Project managers are like assistant coaches. Their job is to make sure everybody executes projects effectively and inefficiently.

For the ABA's Pro Bono Week, you might be trying to avoid the lawyers in your office that seem all too excited to put your name on a list of volunteers.

But, if the callous half of your brain forgot to schedule your vacation for this week, then you're going to get stuck doing some pro bono work because quite frankly, there's no good reason not to volunteer and you should.

If you need more convincing that doing pro bono work is good for you, your practice, and your community, below you'll find five reasons you should be doing pro bono work.

Should Your Firm Get a Spanish-Speaking Receptionist?

Por supuesto!

Of course, your firm should have a Spanish-speaker. More than 50 million Americans and potential clients speak Spanish.

And it's no wonder, given that most of the Southwest used to belong to Mexico. It is a wonder, however, that most lawyers do not correctly pronounce "Los Angeles."

This week is the ABA's Pro Bono Week. Basically, the week is touted as a time to celebrate those who do pro bono work, and encourage those who don't, to start.

Doing pro bono work is one of those things that attorneys say they'd like to do more of, while also saying they're unable to due to time or money issues. However, pro bono work doesn't have to be viewed as a financially losing proposition.

Here are a few helpful tips on how to do pro bono work without losing money.

The Future of Unbundled Legal Services

Attorney Forrest Mosten, also known as the Father of Unbundling, has a dream.

One day, clients will come to lawyers for legal help. But first lawyers must offer limited scope services as an option.

So it's not a paradisiacal dream with seascapes and sunsets, but we're supposed to be working here. And who knows, maybe in the future we will all dream of representing clients on a limited basis.

Good Luck Advising Clients About Gun Laws

The initial shock of the Las Vegas shootings may wear off, but the public is still dazed about what to do in the aftermath.

According to polls, Americans have not changed their opinion about gun laws since the mass shooting. The massacre raised concerns about semi-automatic weapons -- especially those equipped with "bump stocks" -- yet many people don't know where to stand on gun control.

For lawyers, it is mostly about advising clients what not to do. It's not going to be easy, however, because guns laws are as unsettled as public opinion.

Why You Want a Holiday Trial Date

Having a trial date around the holidays is often thought of as a blessing to civil plaintiffs and criminal defendants. That's because basic human nature and holiday cheer can work in concert causing juries to render massive verdicts and questionable acquittals.

If this sounds a bit far-fetched, it's likely due to the fact that there is little to no research to support this notion, but, nevertheless, this notion has been around for quite some time. Despite the lack of evidence, a Pennsylvania courthouse once suspended all trials from mid-December through New Year in order to avoid the inherent juror bias.

For some folks, a quiet environment is absolutely necessary in order to get anything done. But for most people, a new study confirms what we already know: a little bit of background noise helps with creativity.

While this finding is not groundbreaking, another insight explains one of the bigger mysteries: Why the background noise is more distracting in your office compared to a cafe, or other public place. And no, the answer does not have anything to do with the highly caffeinated coffee dust suspended in the air.

Who Wins in Politics v. Prosecutor?

Keri Borzilleri, a Baltimore prosecutor, was a loyal public servant.

She had worked for the city for nine years and had been a champion for the people and her employer. When her boss ran for another term, Borzilleri had his back like a soldier. But he lost, and she got fired.

Borzilleri sued in Borzilleri v. Mosby; however, she learned loyalty is in the eyes of the office-holder.

Improve Your Legal Career With a Sponsor

In the final scene of the last Star Wars movie, a promising Rey holds out a light saber to Luke Skywalker like a protege reaching for her master.

Moviegoers won't know how that relationship turns out until "The Last Jedi" is released in December, but it will definitely balance the forces of good and evil. Will the relationship go toward the Force or will it turn to the Dark Side?

It's a classic question in a futuristic tale, but it plays out everyday in real life. So are you are looking for a mentor or a sponsor? And how will you know when you find the right one?

While everyone wants to make more money for the work that they do, there are times when you might need to make extra money, which is a little bit different.

Unlike small firm attorneys who can only really make more money by generating business, raising their hourly rates, working more hours, or setting up ethical referral fee arrangements, solo attorneys are uniquely positioned to make extra money outside of the legal field.

Here are five tips on how to earn those extra dollars.

Anything goes when it comes to collecting fees because collecting fees isn't easy, right? Well ... while collecting fees isn't easy, you surely know that anything does not go. In fact, often there are rather strict rules.

Complicating matters even further is the hesitancy among attorneys to discuss fee and billing issues not just with other attorneys, but even with clients. There's a fear that raising billing issues or problems with collecting fees will reflect poorly on the attorney or their firm, or may upset a client.

To help, here are five tips on client billing:

Why One-on-One Motivation Is Important for Your Firm

When a colleague goes down, it can be painful for everybody close enough to experience it.

Gordon Haywood, the professional basketball star, is a good example. He suffered a horrific injury on the opening night of the season, and both teams, the crowd, and television viewers felt it.

It's an unavoidable fact of life and a lesson for team motivation: you have to take care of individuals first.

In many states, the bar association will provide the public with referrals to qualified attorneys within a specialty. Often, these lawyer referral services are outsourced to local, regional bar associations, and/or certified groups. This allows clients to connect with attorneys more local to them, as well as to minimize the costs, burden, and ethical dilemma for the state-wide organization.

For firm lawyers, personally being a part of a referral network can be an avenue to generate clients for the firm. For solo lawyers, state or local bar association referral services can be their bread and butter, especially for practitioners that qualify for the conflict attorney panels, or to be named as court appointed attorneys. Depending on your locale and specialty, you might be surprised by how many referrals you might be able to get.

What to Save When Your Office Is on Fire

As the California fires raged, confusion reigned.

An army of fire fighters attacked the flames from all directions. More than 100,000 people fled. Innumerable buildings and victims disappeared in the ash.

Lawyers, too, lost their homes and offices in the rush to safety. So what would you save from your office if you only had five minutes?

There are only a few things worse than sitting down to type out a motion, letter, or any other piece of writing and being struck with a case of writer's block. However, for attorneys, the writer's block problem is amplified because of the ethical issues surrounding billing. Can you bill the client for banging your fists against the keyboard while staring blankly at an empty word document?

Like bathroom breaks, or other short breaks, whether continuing to bill your client while working through your writer's block will depend on what you're doing to do so, and what's on your mind while doing it. While each state has its own set of legal ethics, generally, whether or not you can bill will depend on where your head is at.

Unsent Text Message Is Valid Will, Court Rules

Perhaps the cycle of life is the same as the cycle of law when it comes to wills.

In Queensland, Australia, a court has accepted an unsent text message as a valid will. The text was found in the deceased man's phone after he committed suicide.

As in any probate case, it marked the sad end of a life. But it happened at a time when informal wills are making a comeback.

E-discovery has come a long way since it first debuted. Papering your opponent has never been easier and no longer requires spending hundreds or thousands of dollars on copying and a crosstown courier. Now, it is routine for document dumps to be fully contained on a single flash drive, or DVD-ROM, or even in an email.

However, while digitization makes e-discovery easier, the age of the internet has brought with it an entirely new language that lawyers and discovery professionals from coast to coast must learn to understand: Emoji.

Legal Hurdles to Las Vegas Mass Shooting Lawsuits

With 58 dead and nearly 500 wounded, it's possible that just as many lawsuits could be filed in the Las Vegas massacre of Oct. 1.

But so far only two lawsuits have been filed, and legal experts say their chances for recovery are not very good. After all, the killer is dead and gunmakers have never been held liable for such shootings.

It's not exactly a crap shoot, but it will take some luck and good lawyering. Attorneys are going for the casino.

Open Your Law Practice in a Tiny Office From Amazon

They say tiny houses are the next big thing, but what about tiny law offices?

"How is that going to work?" you may ask. And who are "they" anyway?

"They" are tiny house builders from a popular television show. They haven't built a tiny law office, but you can buy one from Amazon for less than a Lexus.

Filing an answer to a complaint is easy, right? Just deny everything, cut and paste in every affirmative defense available, do a find and replace for your clients' names, and viola! you're done.

But what happens if one of your boilerplate affirmative defenses just doesn't fit? Should you assert a laches defense if your client is sued within a week of an incident? Will the plaintiff move to strike, seek sanctions, or worse, call you out on social media? Oh the humanity!

So you've decided to take your appellate practice to the next level. Assuming you got the practice off the ground in the first place, and you've mastered the skills it takes to win a federal appeal, you might be thinking it's time to take the big SCOTUS plunge.

But, even getting a case picked up by SCOTUS is a real trick, particularly for private attorneys. The U.S. Supreme Court bar has no shortage of members, but only a select few of the most active members of that bar handle a majority of the cases.

Here are a few practical tips to help you expand your appellate practice.

Guardianship Cases Tackle Lawyer-Hospital Relationships, Conflicts of Interest

It's not hard to win a case when the opposing party doesn't show up for court.

That's how April Parks was doing it in Clark County, Nevada. She was awarded guardianships once a week, and had up to one hundred wards at a time.

It was easy pickings because the wards were too disoriented, incapacitated, or demented to go to court. Of course, there is more to the story.

Las Vegas Shooting Victims Offered Free Legal Aid

In the aftermath of the Las Vegas shooting, no lawyers emerged as heroes.

It rarely happens when disasters strike anyway because most often attorneys arrive later to make a case. But there is no bleeding in the courtroom.

Sometimes, however, lawyers can help victims when their wounds are still fresh. It's time now, because many people need a hero in the wake of the Las Vegas shooting.

Yes, you have a duty to be civil with the court, your clients, opposing counsels, and even opposing parties. That means refraining from ad hominem attacks against judges, individuals, and even your opposing counsel, no matter how badly they're annoying you. Seriously, you can get disciplined.

However, there are several ways to sneak in polite trash talking into your pleadings. And while non-lawyers might see the language and think nothing of it, when it gets read by a lawyer, the natural tendency is to shout out: "Shots fired!"

Below, you'll find some magic language that is sure to get under your opposing counsel's skin without raising the ire of the court.

Why You Never Threaten Opposing Counsel

If you learn anything from street law, you learn never to threaten opposing counsel -- especially in writing.

It's not just bad practice, it's a potential bar complaint. It could even land you in jail.

Paul Muckle apparently never learned his lesson. You just can't threaten to kill opposing counsel.

Writer's block can hit anyone at anytime, and it can have consequences that range from annoying to downright devastating. For us lawyers, when we're drafting a motion, we're not trying to write the next great American novel, but strict deadlines can lead to high pressure, high stress writing situations which are naturally conducive to writer's block.

Fortunately, legal writing is professional writing. It serves a purpose, and as such, there's no need to stress over the actual craft of writing, meaning that the anxiety can be saved for the merits of the actual argument. Legal writing isn't rocket science, but there are definitely a few formulas that you can use to simplify the process.

Below, you'll find five tips on how to get past writer's block when drafting a motion, or other legal pleading.

How to Gain Credibility as an Inexperienced Lawyer

As a young lawyer, I found myself answering questions from a group of 100 or so judges and attorneys.

The big question -- other than the one I asked myself about how I got there -- came from a veteran jurist. "How do journalists decide what is newsworthy?" he asked.

I hadn't yet tried a case, much less a high-profile one, but I realized then the value of knowing one thing that others don't. That's a big secret to gaining credibility when you are inexperienced attorney.

When it comes to the question of non-lawyer ownership of law firms, there are often a few voices in the crowd that seem to insist it would be good for one reason or another. But, even being as fair as possible, none of those reasons are ever really that good.

And when it comes to non-lawyer ownership saving solo law firms, well, that just seems oxymoronic. If a non-lawyer owns a solo law firm, is it even a solo law firm?

What's a Primary Care Lawyer?

A primary care lawyer has nothing to do with health care, unless you consider 'peace of mind' a healthy thing.

The primary care lawyer is like a primary care physician in that he is the go-to guy for all concerns. More like a first responder, actually, she answers the client's first call. After that, it may require a specialist.

So now that we've got the terminology clear, do you want to be a primary care lawyer-person? Here are some considerations:

Being a litigator or trial attorney sometimes means going out on a limb with an untested or novel legal theory.

Testing the waters of a new theory, or even a new law, can be scary. Judges will often scrutinize your case a little more closely and you won't have the benefit of practice guides or precedent to tell you what to do. What's worse is that there's no clearly established precedent to rely upon either. But on the plus side, judges do like hearing cases of first impression.

Here are three tips on pursuing a novel litigation strategy:

How About a Pop-Up Law Firm?

If you can't get a traditional practice off the ground, maybe it's time to hang your shingle on a kiosk.

So what if people think you're an ambulance chaser. Why not just buy an ambulance and cut to the chase?

Maybe some lawyers will laugh at you, but you could be laughing all the way to the bank. The pop-up business is a $50 million industry.

Should I Use Emojis in Court?

An emoji is worth a thousand words, and that's a legal problem.

According to a Santa Clara University Law School professor, emojis and emoticons have popped up recently in at least 80 U.S. court opinions. The problem is they can be misunderstood.

"As emoticons and emojis play an increasingly important role in how we communicate with each other, they will increasingly raise legal issues," says professor Eric Goldman.

Patent attorneys are often cast out from the traditional legal community of sharks, rainmakers, and ambulance chasers. But, unlike every other type of lawyer, of which there seems to be too many, there is a constant demand for patent attorneys.

The demand is driven by two primary factors: the ever growing economy, and the lack of qualified patent attorneys. Unfortunately for new attorneys, becoming a patent attorney isn't as easy as choosing a specialization like family law, contracts, or civil rights. But, for those attorneys that can branch out into IP, the reward could be well worth the extra effort.

What's in Your Disengagement Letter?

A lawyerly disengagement letter is a bit like a 'Dear John' letter.

Attorneys write them at the end of legal engagements, ideally with kindly advice and well wishes. When the relationship ends badly, however, the disengagement letter becomes more of a "CYA letter."

Here are some keys to making sure your disengagement letters protect your client's interests and your interests, too.

How to Capitalize on Media Mentions

So you got your Andy Warhol minutes of fame from a news story, but now what?

Start a reality TV show? Hire a crowd? Hang on, we're not going there. That's for politicians.

We're lawyers, and we use social media, websites, and blogs. Here's how to make your Warhol minutes last a lifetime: