Strategist - The FindLaw Law Firm Business Blog

March 2018 Archives

New Business Models for Law Firms

'Horseback Law' is probably not what you think it is.

It is not equine law, where lawyers specialize in all things horse-like. "Horseback Law" is Google's law business model, a legal service tailored for fast-moving startups.

"Lawyer rides up, assesses the problem, offers feedback and moseys on," says practitioner-savant Carolyn Elefant. If you feel like saddling up, here are half a dozen new business models for law firms to consider.

A recent decision of the Wyoming Supreme Court upheld a law firm's billing practice of using 15 minute increments. The court held that barring evidence of abusive practices, so long as the billing increment is reasonable and not excessive, it's all good.

However, before those attorneys that bill to the tenth of the hour consider a change, it may be worth noting that doing so may actually require more work when it comes to time-keeping. As the Wisconsin high court explained, their holding was supported by evidence from the law firm that they often didn't bill for short tasks. Also, the firm did group multiple short tasks into the same increment, rather than billing short tasks as separate billing increments.

When a government entity settles a lawsuit, it's rather uncommon for it to not actually have the present ability to pay for the settlement. Interestingly though, that is exactly the predicament one New Jersey city has recently stumbled into.

The city of West Wildwood is coping with the aftermath of a settlement it couldn't really afford. On the other hand, the town probably couldn't afford not to settle. Fortunately, the plaintiff in the matter, a former and current employee, was agreeable to a payment plan to help the matter resolve at the rather agreeable amount of about $1.75 million. While generally frowned upon, agreeing to a payment plan is one way a party without enough liquid assets can settle a case.

Plaintiff's Attorneys On Board Fatal Uber Crash Case

The lawyers at Bellah Perez are getting a head start in their case against Uber for a fatal accident involving a self-driving car.

Their client, the daughter of Elaine Herzberg, wasted no time in retaining the Arizona firm. In the first-ever case, her mother was killed by an Uber car two weeks ago.

The attorneys will have plenty to work with as the media has jumped all over it, publishing videos, statements and other potential evidence in the case. It's not often that discovery is delivered with the morning paper.

While the world of litigation funding is often castigated into the realms of the seedy boardrooms of evil banking corporations, litigation funders are taking big risks, particularly given that third party litigation funders are prohibited from having any say in the actual litigation. Not every third party funded case is Peter Thiel paying for Hulk Hogan's litigation against Gawker.

Recently, there have been public concerns over litigation funders having dubious motives, beyond just maximizing investment profits, as well as some proposed legislation.

Social Media Shouts '#MeToo' and BigLaw Listens

In case you missed it, social media is a force to be reckoned with in the law.

It's not just a medium for social connections, like Facebook. And it's more than a referral medium, like LinkedIn.

Social media has the power to change the law, like it just did at BigLaw. Munger, Tolles & Olson has abandoned mandatory arbitration agreements for its employees because social media said so.

With gourmet food trucks still riding high on the popularity wave, there's bound to be at least one lawyer out there asking: Why not set up a mobile law office a la a food truck? After all, it could serve up legal services a la carte.

There's no doubt that some lawyers are attracted by life on the road (in a food truck). Just about every lawyer remembers hearing about Kim Pearlman's famous hot dog stand, "Law Dogs," which served dogs with a side of free legal advice. Clearly, today, we have the technology to take the "Law Dogs" model to the next level, but apart from the question of whether an attorney would actually want to have an office inside a brightly decorated rolling box, one has to wonder: Would it even be ethical? Below, you can read about a few of the many potential ethical issues of lawyering out of a food truck style office.

Attorneys are often expected to put in long hours at the office. Just because the courts or businesses close at 5, that doesn't mean you have to (or can) stop working. Associates know all too well that after 5 is when the phones go to voicemail automatically, and you can actually get work done.

However, there's a fine line between working long hours and being a workaholic. Though neither is really good for your health, a new Harvard Business Review study suggests that the workaholic mindset is worse for your health than working long hours. Surprisingly absent from their report is any mention of the revolutionary finding that the sky is blue.

When it comes to lawyers in the state of Florida, playing fast and loose with the rules seems to be in line with what the internet has come to expect from the entire state.

However, in an uncharacteristic move for the state's reputation (but definitely in keeping with the brilliant minds over at the Florida Bar), the state's supreme court amended the rules for qualified lawyer referral services to incorporate non-lawyer owned, for-profit, online services and directories. Prior to the state's supreme court handing down the new rule, the Florida Bar was asked to amend the rules to completely prohibit lawyers within the state from accepting referrals from non-qualified sources and non-members of the state bar. The bar had a better idea though.

Believe it or not, your font choice, or lack thereof, can tell a reader something about your writing. For example, Times New Roman has become regarded as the font of least resistance and can tell readers that the writer is simply apathetic.

However, unless a court requires a particular font, and you're not using Comic Sans or any overly embellished fonts, your legal documents, including court pleadings, can benefit from putting some thought into your font choice. For many lawyers, putting any time into thinking about font choice seems wasteful, but there are plenty of good reasons why lawyers should think about their font choice. Here are a few reasons to consider:

Former Model's Lawsuit Against Cosby and His Lawyer Proceeds

Litigating in the press is one thing; litigating against the press is another. Neither is a good idea.

That's a tip from -- among others -- the press. Attorney Martin Singer apparently hasn't learned it, even after the California courts gave him a really big tip.

Singer, who represented comedian Bill Cosby, threatened to sue the press after model Janice Dickinson accused Cosby of drugging and raping her. But in Dickinson v. Cosby, the lawyer and the joker will have to face the press and a jury.

Sadly, lawyers across the country can't just shout out in unison: 'Alexa! Make me a thousand dollars a week!' Well, while we can say the words, neither Alexa nor Siri are likely to comply.

However, one day, we could very well live in that world as legal technology doesn't show any signs of slowing down. An AI legal assistant could, in theory, perform intake, file setup, task management, legal research, and more. And as we approach that world, certain questions are going to come up, and likely to be chief among those questions is whether it is ever appropriate to charge a legal client for a virtual assistant's time, or work product.

The British Are Coming -- to American Law Firms

So the British are coming, but this time to American law firms.

The last time -- if you exclude the Beatles' invasion -- the English came to crush the colonies. We all know how that ended, but what about the latest rush of barristers and solicitors?

What are they doing, invading our law firms? Isn't it bad enough with the robots taking our jobs already?

Tips to Make a Coworking Space Work for a Solo Lawyer

'Coworking space' is not new anymore, and so we have learned how to use it.

It wasn't even new when people started using the term; it used to be "office sharing." It meant sharing expenses by working with other people in close quarters.

With the ascension of tech companies, however, coworking space evolved to become entrepreneurial space. As it turned out, coworking is also perfect for the modern solo practitioner.

If your law firm has a Facebook page and you don't use Facebook Live, you'll want to pay close attention to this post. Facebook Live presents an excellent, free marketing opportunity for lawyers and law firms. In case you missed that, yes, your firm can use Facebook Live as a marketing tool for free.

Basically, any neutral or positive engagement you can get on Facebook is good for your social media marketing. After all, Facebook is a huge audience. And if you already have followers on there, the Live video option is a great way to engage with them in a profound manner. Time and time again, businesses are learning that it's the quality of the social media engagement that counts.

Lawyer Sues Client Over Bad Yelp Review

Alisa Levin knows the client from hell.

Like most horror stories, it didn't start that way. Levin, a Chicago lawyer, was ghostwriting documents for another lawyer who represented Paul Abramson, a California resident.

She literally never met the man, and everyone was innocently going about their business when something sinister came out. It was a dispute over her bill.

False Lawyer Advertising: Close but No State Bar

Lundy Law did not break false advertising law with its commercials.

However, according to a federal judge, the Philadelphia law firm did stretch the truth to the breaking point. Judge Cynthia Rufe said the managing partner lied in a television commercial.

With an endorsement like that, it's no wonder Lundy Law is advertising for business. How close can you get to the line without crossing it?

When business is booming, it can often feel like a waste of time to track performance metrics. However, taking the time to measure what you are doing right is as important as figuring out what you are doing wrong.

The 80/20 rule may seem random, but there is certainly some validity in identifying what actually makes you, or your firm, money. Despite the fact that tracking time is generally part and parcel of the job, it can often be rather difficult to identify the right metrics to track to increase profits. Below you can read about two types of metrics you can track to make more money.

When you opened the doors to your law practice, you probably didn't expect to spend the number of hours you do on administrative and management tasks and duties. And as most lawyers that run a practice learn, management responsibilities are much less exciting than lawyering responsibilities.

Interestingly, making the right business management decisions can actually end up freeing up your time to do what you want: practice law. Below, you can find three tips on how to run your law firm more like a business so you can spend more time lawyering.

How and When to Use Secondary Sources

A funny thing about legal research methodology is that traditionally you started with secondary, not primary, sources.

What's funnier today is that while technology has completely changed legal research, starting with secondary sources is still the go-to method.

Only now it's about how and when to do it with the new tools available to researchers. Here are some pointers from cutting-edge reference attorneys.

Succession Planning and Heading to Retirement for Solo Lawyers

Did you ever have that moment when a teacher or a speaker pointed in your direction, and you turned around only to see no one behind you?

That's what it's like when you are a solo practitioner at the end of your career and you don't have a succession plan. It looks like there's no one to take over and it's all on you.

Of course, solo practitioners are the champions of doing things their way. Here a few more ways for solos to head towards retirement without dropping off the deep end of a career.

Implicit bias is not so easy to grasp, but the findings make it painfully clear: Everyone is biased, one way or another. Unfortunately, the solution is also not so easy as it requires individuals to recognize their own biases. To help, some courts, like the ones in Seattle, actually show jurors videos explaining the concept.

And now, a recent appeal challenging a Seattle jury's (pre-video showing days) decision based upon the jury's implicit bias is making headlines for the novel theory. Essentially, the petitioners, employees of a Seattle Public Utility, are seeking a retrial due to the court's denial of the plaintiffs' expert on implicit bias and for not specifically reminding the jury to rule without considering their own implicit bias. Notably, the jury decision was reached before showing the implicit bias video was standard practice.

Most lawyers are aware of one of the biggest risks inherent in practicing full time: It can be lonely at the top. If you work too hard and neglect life, your family and friends may end up hating you, and in some cases, may all leave.

If the stress of lawyering, or the associated long hours, aren't making you an intolerable mess for your family to be around, consider yourself blessed. But if you feel like you may be headed in that direction soon, it may be a good idea to take some time to take stock of where you are and what you can do to change the course your on. Parenting and lawyering at the same time is not easy.

Support may be available, but you need to be willing to accept it.

For many small firm and solo practitioners, blogging is part of the job. In order to keep those search rankings up, and keep potential clients impressed by the freshness of your content, maintaining a blogging habit is good for any firm's SEO.

However, lawyers and law firms need to be a little bit careful when it comes to the subjects they blog about. Though there may be a natural instinct to write about current, or former, cases, according to a recent (probably unnecessary) ethics opinion, doing so raises ethical considerations that shouldn't be ignored.

Shocking! Judges Can't Electrocute People for Not Answering Questions

'Shocking' barely describes the treatment of Terry Lee Morris.

When he refused to answer questions at his criminal trial, Judge George Gallagher ordered deputies to jolt the man with 50,000 volts of electricity. They administered the punishment through a shock belt, which is supposed to be used for security purposes.

Morris was convicted of soliciting sex from a minor and sentenced to 60 years in prison, but a federal appeals court reversed and remanded for a new trial. In a classic understatement, the appeals panel said it had "grave doubts" about whether the man was treated fairly.

You spent years training your legal secretary (because an associate would've been too expensive, ungrateful, and wouldn't have learned anyway), and your secretary is really good. But if you plan to go into semi-retirement while relying on your secretary to keep the wheels turning and profit machine churning, you might want to think twice about how hands off you go. Too much, or not enough, semi-retirement, could lead to full suspension or worse.

A recent case involving attorney discipline involved just one such scenario, and the semi-retired attorney, in the autumn years of his career, is now facing a six month suspension (where he'll get to test out full time retirement). However, the case here does not stand for the proposition that a lawyer, like a judge, cannot go on senior status or into semi-retirement. But, there are lessons to be learned.

Below, you can read three tips on how to avoid facing discipline for going into semi-retirement.

How Not to Get 'Ghosted' by Clients

If you get ghosted by a client, there's not much to say.

Literally, it means the client is not talking to you anymore. No call-back. Nothing. Like a ghost.

There's not a lot you can do about it, either; that's why getting ghosted hurts. But here are some things you can do to make sure it doesn't keep happening.

It's hard to deny that President Trump is having a big impact on the government. However, an unforeseen one is the jamming up of the court system due to the executive branch's failure to follow the rules for changing the rules.

The Administrative Procedure Act, passed in the 1940s, requires that federal agencies provide opportunity for public comment and a notice period, as well as reasonable justifications, prior to making changes to, adding or deleting regulations. Recently, the APA has been used to successfully challenge deregulation in immigration, housing and environmental changes sought by the executive branch.

Change of Venue Due to Publicity?

It's sometimes risky to ask for a change of venue based on pre-trial publicity.

In the internet age, it's very possible that people have heard about a high-profile case beyond the borders of one courthouse. Plus, potential jurors in another town may not be as sympathetic to a party in a case as those in the original venue.

So is it really a good idea for Oberlin College, a defendant in defamation/business interference case, to ask for a venue change to a courthouse 30 miles away?

Picture this: you get on a roller coaster ride. They strap you in. The ride starts. Mid-ride, a sharp knife comes out and cuts your nose off. At the end of the ride, as you're returning, still strapped in and bleeding, there's a clear disclaimer warning you that riding the ride means you assume the liability of having your nose chopped off.

Now ask yourself where your email disclaimer is located? It seems that most attorneys and firms have resolved to append a lengthy, sometimes emphatic, legal disclaimer at the end of every email. And while the disclaimer, regardless of what it states, may be of limited (or no) benefit, the logic of a disclaimer as a footnote simply fails. But if you have an email disclaimer, here are some tips:

Federal Rule of Civil Procedure Rule 12 provides quite a bit of help to litigators looking to avoid trial. Apart from the various motions to dismiss that can be filed under 12(b), subsection (c) also provides an effective tool to end cases through motions for judgment on the pleadings.

Typically, a motion seeking judgment on the pleadings can be filed any time after an answer has been filed and the time to respond to the answer -- under subsection (f) or otherwise -- has passed. However, the motion can also be filed pretty much at any time up to when the verdict gets handed down. For defendants, strategically, a 12(c) motion differs from one filed under Rule 12(b), as the option to amend a complaint once as of right under Rule 15 vanishes.

When it comes to summary judgment, plaintiff lawyers are often guilty of forgetting the fact that either party can file one. If you have solid evidence that can't be disputed, you may very well be able to prove your claim without going to trial.

While not many cases will actually be good ones for an offensive summary judgment motion, cases that don't really present factual disputes pop up from time to time. These are the cases where the law may be unsettled, or rarely, where there's no doubt as to liability and/or causation.

How do you end your emails? Do you do it the same way for adversaries, clients, colleagues, and prospects?

For most attorneys, it can seem overly insincere to end a scathing letter, or any correspondence, with "Very truly yours," "Warmly," or even "Regards" (of any kind -- best, warm, cold, or otherwise).

Additionally, while thanking a potential client for their consideration is an appropriate ending, it doesn't really work for adversaries (unless you need to grease the wheels of adversarial justice). Basically, there's no one sign-off that will work for every scenario, so it's best to have a handy list, which you can find below.

You don't have to represent a celebrity to end up trying or defending the case of the century. The press and the media can take almost any case, and with enough work, force the public's attention towards it to the point of sensationalizing the case into popular culture.

In high profile cases, attorneys will face ethical dilemmas that don't befall most litigators. For the most part, the public doesn't really seem to care about what's happening in the majority of cases. But when the spotlight is shining, any mistake you make, and even your strategic decisions, will be amplified through the press.

If you find yourself considering taking on a celebrity's case, or maybe a case you took unexpectedly turned into a media frenzy, below you can find a few tips to help you handle a hot trial.