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January 2018 Archives

How to Build Trust With Other Attorneys

The whole point of the attorney-client privilege is that clients should be able to trust lawyers with their secrets.

So why should it be hard for attorneys to trust other lawyers? Yet sometimes it seems impossible to have a trusting relationship, whether it is an opposing counsel, a partner, or an associate. 

But this article is about how to build trust with your legal colleagues. Of course, there are good reasons to distrust attorneys -- most people do anyway.

The whole greenwashing epidemic has somewhat subsided as the consumer public has gotten a bit more savvy at spotting the bogus claims of a company being green. Even the government stepped in, years ago now, to help combat false and misleading claims of being green.

For law firms, going green can often be prompted by more than just potential cost savings on paper, despite the high cost of the technology needed to go paperless without it feeling too different. However, unless a firm's going green translates into direct savings for clients, logic dictates that an individual or small business client isn't going to care about a firm's carbon footprint.

James Woods Saved From Defamation Claim by a Question Mark

Harvey Weinstein is a misogynist, isn't he? Bruno Mars is a Milli Vanilli poser?

And a statement isn't defamatory if it's a question, right? That is in fact the case in a defamation lawsuit against actor James Woods.

Woods, who threw himself into the controversy during the last presidential campaign, beat the lawsuit by the slim margin of a question mark. A judge said it's a matter of context.

You Have a Virtual Practice and Didn't Even Know It

Every lawyer has a website, whether they know it or not.

From the State Bar to LinkedIn, your information is already on the internet for consumers to find. And when you use a web-enabled device to research, send information, download a document or file a pleading, you are effectively practicing law online.

You have a virtual law practice; you just didn't know it. It's really a matter of how much you use it.

When Can You Swear in Pleadings?

You know you can't just sling vulgarities at your opponents across the pleaded aisles of the halls of justice. Nevertheless, in pleadings filed across the country, attorneys often struggle with the age old question concerning pejoratives, vulgarities and curse words: Is directly quoting bad or taboo language, without censure, okay in a pleading?

This dilemma can often lead to the attorney's most dreaded nemesis: extreme over-thinking and paralyzing over-analysis, over something that, in effect, is trivial. And if you're in that boat right now, procrastinating on your pleading, stop reading, and just keep it simple. Censure a few letters using asterisks and get back to work on the parts of your pleading that matter. After it's ready for filing, if you have time to devote to it, you can decide whether to drop some asterisks.

Bad Habits That Are Hurting Your Law Practice Bottom Line

There are bad habits, and there are worse habits.

In a law practice, there are also those habits that are so bad they cost you time and money. Those are the worst. 

We're talking about those time-sucking, senseless habits that should have been thrown out with last year's trash. Here's a quick self-test to determine if you have fallen into any of them. 

Depending on where you'd like your legal career to go, writing for the public or professional audience can really help quite a bit. And depending on the exact audience you're writing to, you may even consider not publishing your content on your firm website, but rather through a site like Medium, or even LinkedIn.

If you're scratching your head as to why you'd not post your own (and undoubtedly amazing) content on your own website, below are a few reasons to consider.

Work-Life Balance Tips for Solo Lawyers With Kids

Stacy Ehrisman-Mickle is the poster child for a lawyer hanging in the work-life balance.

Actually, her child is the poster child because Ehrisman-Mickle had the kid strapped to her chest when she showed up in court. The judge chastised her, but it was his own fault because he denied her request for a continuance after she gave birth just four weeks earlier.

That story is history now, but the problem persists today: how do busy lawyers find work-life balance? It's especially challenging for solo practitioners who sometimes can't find anyone to back them up.

Is 2018 Your Year to Go Solo?

In the Chinese Zodiac, 2018 is the year of the dog. So what better time to go solo?

Seriously, if you have been thinking about the solo route, why wait for some cosmic event? It's about going for it.

If you need more reasons, here are some thoughts from solo attorneys who did it their way. By the way, there are a lot of these lawyer stories because 62 percent of the lawyers in America work as solo practitioners or in small firms.

Will New Tax Laws Help or Hurt Your Small Law Firm?

If a dog takes a smaller bite out of your leg, is that a benefit?

Didn't think so. Likewise, if the new tax laws take a smaller bite out of your business, it's still gonna hurt.

It is especially true for solo practitioners and small law firms. That's because a few new laws were made just for you -- woof, woof.

Although the billable hour still seems to be the gold standard when it comes to legal billing, businesses and individual clients that have been paying billable hour rates are starting to realize that the gold standard died long ago.

While litigators may need to keep track of their time if an attorney fee motion is even remotely plausible, law firms moving away from charging clients by the hour might want to start thinking about how they measure individual attorneys' productivity. As pointed out on Lawyerist, firms that use billable hours are not charging clients for outcomes, they're charging for time, regardless of what the client thinks they're paying for. As the billable hour continues to fade, naturally, so will its use as a measure of lawyer productivity.

Legal Lessons Before Cosby Retrial

Is Bill Cosby seriously laughing as he approaches a retrial for sexual assault?

The standup joker took to the stage recently for the first time in years, his scandal pre-dating the Harvey Weinstein affair that has torched Hollywood. Meanwhile, the Cosby show has dragged on with the retrial set for April.

After so many women have publicly accused Cosby of drugging and raping them, it's hard to imagine his public appearances are part of a pre-trial strategy. It's never a good look to act like nothing happened when public opinion believes otherwise.

Although law firms do not tend to adhere to the typical structure of most for-profit businesses, the politics certainly can feel rather typical. As associates try to impress partners, backs get stabbed, "friends" get crossed, and lawyers suddenly have to admit that some TV lawyer drama at least got the drama part right.

But, office politics don't have to be tricky. After all, just about everyone is seeking the same exact things in a law firm: promotion to partner and/or more money. Below, you'll find three tips to help you navigate law firm office politics.

Is Retrial Kicking a Dead Horse?

Federal prosecutors seem intent on kicking a dead horse -- no disrespect intended to Sen. Bob Menendez.

But Menendez, who had a lock on re-election until the government came after him, was nearly acquitted in a federal corruption case that ended in a mistrial last year. Now the Department of Justice wants to retry him, and his Senate situation is precarious even if he beats the charges again.

Is it politics if he is a Democrat fighting a Republican administration? Or is it just another lesson in American justice?

Under California's new legal marijuana laws, in order for a marijuana business that rents space to be licensed, the business's landlord must provide a written acknowledgment that they know their property is being used by a commercial marijuana business.

Basically, pot shops need to get their landlord's permission to operate. But, making landlords acknowledge in writing that they know their property is being used by a marijuana business might be trickier than it sounds, especially because it could potentially result in backlash under federal law (which is actually now a concern). And, what's worse, for landlords, refusing to provide such an acknowledgement could very well be a violation of California law. Talk about a catch 22. It makes you wonder what the person who wrote the law was smoking ...

In a move that has left beaver, salmon, and wildlife advocates pleased, the federal government and state have agreed to stop killing beavers in the state of Oregon in response to a threat of litigation by wildlife groups.

If you're wondering how wildlife groups can get what they want by simply threatening litigation, then you should probably take a look at their Notice of Intent to Sue. The notice letter goes to painstaking detail to explain exactly why beavers need to stop being killed, and how animals like beavers serve important roles in helping the threatened salmon population. Given that the letter worked, it seems worthwhile to examine a few of the things it did right.

Judge Suing Court Over Death Penalty Reassignment

When somebody sues a supreme court over a decision, it's a knee-jerk reaction to think that somebody is a fool.

After all, you don't tug on Superman's cape. You don't spit into the wind. Would you believe, you don't sue a court to be a judge?

That's what Judge Wendell Griffen is doing. He is suing the Arkansas Supreme Court for the right to do his job. But in this battle between judges, somebody is playing the fool.

As a lawyer, it is your job to help clients navigate the confusing, and unforgiving, legal system. We lawyers can often forget that we provide a service, rather than a product, to our clients. If clients don't understand, or even know, what you're doing for them, then they are less likely to be pleased with what you are doing.

Typically, while clients appreciate and value good results, one of the most important aspects of pleasing (and keeping) clients is clear, simple communication. Given that the attorney's role is to provide legal services, keeping clients informed and clear about their options goes hand in hand with providing good, client-oriented services. It isn't always easy to remember that our jobs require serving our clients: not just doing what we think is best for them, but rather presenting the client with their options and asking how the client would like to proceed.

Small Firm Lawyer Reality Check: Is There Really a Key to Success?

It turns out there is no key to success.

It's just a metaphor to sell the idea that success can be achieved with one, quick turn. But it's a lie.

So how do you achieve success as a solo lawyer or small firm practitioner? According to extensive research, you need something more like a keychain.

What to Do When Clients Demand More for Less

Have you ever put something on Craigslist, only to have potential buyers low-ball you so low that "dirt cheap" sounded good?

Or, if you are from the last century, did you ever have a garage sale and somebody offered to take "that junk" off your hands for nothing?

That's the same kind of thing that happens with some clients -- the low-ballers who try to make you feel like they're doing you a favor. Here's how to respond: "No, thank you."

When it comes to mediating mass tort, class, complex, or just massive, cases, fashioning a resolution that all the parties can live with, and that a court will approve, can often feel nearly impossible.

However, it is not just possible, but reaching a mediated resolution is frequently the best option for everyone involved, and the numbers back that up. For defendants, setting up a settlement fund that can be administered by a third party can help avoid the costs and negative PR of moving forward with litigation. For plaintiffs, reaching a mediated resolution allows the dispute to be resolved with certainty and in a timely fashion, as cases that go to judgment will often go to appeal and take a decade to finally resolve.

Littler Mendelson has been making legal headlines over the recent hiring of a Chief Data Analytics Officers. The role is designed to head up the firm's data analytics practice as well as help to implement new technologies.

Other large firms that utilize large amounts of data analytics, or have major technology practices, may be considering following Littler's lead. However, for small to mid-size practices, the Chief Data Analytics Officer role might be a bit over-the-top and unnecessary, though the idea could be implemented in a variety of ways to accommodate different types and sizes of practices.

Niche Legal Practices Areas That Have Taken Off in Recent Years

The bad news is some practice areas are gone. The good news is others are taking their place.

According to reports, scores of new practice areas have evolved in recent years. Fifteen years ago, they didn't even exit.

It's a trend that gives attorneys opportunities that they've never seen before. Most have evolved out of emerging technologies, new legislation, and social changes. Here are some of the new niches:

Tips for Your Law Firm Succession Planning

It's just wrong to let someone else make your estate plan without you, so why would you let anybody plan law firm succession without you?

Seriously, getting old is hard enough without people waiting around for you to get out or die. They don't call lawyers sharks for nothing.

Make your own plan to get out of practice because if you don't, somebody else might do it for you. Or, if you are part of the group circling aging colleagues, show them that famous professional courtesy.

Since 2010, the month of January has been designated as National Slavery and Human Trafficking Prevention Month, and in 2007, January 11 was declared as National Slavery and Human Trafficking Awareness Day.

If you have any doubts that human trafficking and slavery are still problems, there's plenty of information out there to show you the error of your ways. Getting informed and getting involved doesn't require personally chasing down bad guys, though depending on your area of practice, being informed means you might actually be able to help victims.

In the 2017 year end report drafted by Chief Justice John Roberts, in addition to applauding the successes of the federal judiciary, he acknowledges that sexual harassment in the workplace is inexcusable and has no place in the courthouse.

To that end, Justice Roberts explains that in 2018, the court will perform a careful evaluation of "whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee." While this is clearly better than doing nothing, the justice's statement raises the question of whether or not this discussion and evaluation should occur behind closed doors.

Pros and Cons of Becoming an Environmental Lawyer

You may love the outdoors -- until you get caught in a hailstorm.

Being an environmental lawyer can be like that, too. You may love it, but then there are those bad days.

Here are some pros and cons to consider if you are thinking about an environmental law practice. You can do it as long as you are prepared for the conditions.

A recently published book, Fire and Fury: Inside the Trump White House, received the attention of the president before it even hit the shelves. In response to a sneak peak published by New York Magazine, the book's publisher received a cease and desist letter from Trump's lawyers demanding the book not be released.

However, the cease and desist letter, as pointed out in the response letter (which is making the rounds on the internet), was wholly without merit. The response specifically points to several deficiencies in Trump's lawyer's letter, including the fact that it relies on New York law, yet threatens a cause of action that simply does not exist in New York, and additionally the C and D fails to identify a single false, defamatory, or libelous statement contained within the book or preview.

Over the past year, the FindLaw writers have done their best to impart wisdom gleaned from across the internet about the best tips for legal practitioners. From finding free CLEs to discovery tips to simply keeping your desk clutter free, we know there's an ever-changing landscape of best practices for the practice of law.

Since we know that most practitioners are too busy to keep up with all the wisdom all year long, below you can find 10 of the top practice tips from the FindLaw Strategist blog from 2017.

Here at FindLaw, we write about the law quite bit. And one topic that just never seems to get old for us, and for our readers, is writing about legal writing. Whether it's technical stuff like the capitalization of the word "plaintiff" or much more serious matters, like the capitalization of the word "internet," when there's a development in legal writing, it's a safe bet that it'll get covered right here in this blog.

Since there's practically no way anyone can keep up with everything, below you can find the FindLaw Strategist blog's top 10 writing tips from 2017.

Are Your Paralegals Getting You Into Hot Water?

Nobody likes it when somebody hovers over their work -- especially when that somebody is an attorney.

But lawyers are directly responsible for the work of their employees, and it presents a serious challenge. You have to depend on them, but you can't expect them to do everything. 

So if your paralegals are getting you into hot water, maybe it's because you are pushing them into deep water. Maybe you need to supervise just enough to not agonize.

Trial is stressful. There's no doubt about that.

No matter how planned out every last minute is, there will always be surprises that you didn't plan, and couldn't have known about. After a certain point in your preparation, you just have to stop to relax for a little bit as you simply cannot prepare for everything. Also, not being well rested for trial is one of the most common, and correctable, errors in preparation attorneys will make.

As such, before trial, you may want to consider taking a short vacation, or maybe just a spa day (or two). Taking a couple days to yourself will allow your body and mind to rest before you put both through a trial, which is both a mental and physical endurance contest (of sorts). Think of the day or two off as an ethical obligation to your client and an essential part of your trial prep.

Sessions' Pot Edict Could Be a Downer for Cannabis Lawyers

Remember when pot used to be...

Oh that's right, you don't remember when you use pot. But still, it used to be legal in an increasing number of states.

Since Attorney General Jeff Sessions has ordered his legal troops to take another look at enforcing marijuana laws, however, the good old days may be ending for attorneys who serve the cannabis industry.

Getting an emergency extension, especially for a trial date, is generally reserved for serious emergencies, like injuries, illnesses, disasters and catastrophes. Luckily for one Georgia lawyer, his judge considered the Georgia Bulldog's Rose Bowl appearance to be good cause.

In short, attorney J. Patrick Connell received, as the court lamented, a "generous" gift of a last minute trip to Pasadena for the Rose Bowl from his older brother. And despite the court noting some signs that the emergency extension could also be the result of poor preparation, the judge seemed all too excited to live vicariously through counsel. Not only was an extension granted for the Rose Bowl, but counsel was given enough time to attend the national championship game on January 8, which Georgia will be playing in thanks to their epic win on New Year's Day.

Given the new California law permitting the recreational use of marijuana, countless more lawyers are invariably asking themselves the same question: Should I break into the marijuana law business now?

If you're only doing it for the money, you might want to reconsider as the green gold rush isn't likely to trickle down too far or for too long or to you at all. And if you're doing it because you like using marijuana, again, you might want to reconsider as that's an idea that hasn't even made it to the oven to get half-baked. If you're into compliance and bureaucracy though, pot law may be calling your name.

But, also, if you are interested in watching and helping a new type of highly regulated business develop (or just struggle with keeping it's easily earned and highly taxed money), now might actually be the time to become a marijuana business lawyer.

Now Is a Good Time to Seek Pardons for Immigrants

In his farewell speech, President Dwight D. Eisenhower spoke of a military-industrial complex -- an informal alliance whereby the nation's military feeds the arms industry.

With his inaugural speech, President Donald Trump spoke of a battle against immigrants. It also has created a complex relationship between federal, state, and private parties in an evolving industry.

Immigration attorneys have seen a dramatic increase in business, and new developments are bringing more opportunities. It's the worst of times for immigrants, but the best of times for lawyers to seek pardons for them.

Kick Off 2018 With New Customer Service Goals

So maybe you've already broken your New Year's resolution; it's alright. We live one day -- not one year -- at a time.

Progress usually occurs in small steps anyway. So let's start 2018 with the number one priority for improving a law business: better client service.

After all, what good is a new office, new technology, or new practice area without clients? Exactly. Here are some client service goals to consider: