Free Practice Help

Need help with your law practice but can't afford to hire a team of business experts? There are a number of free sources, some from the most surprising places. Here's one.

The Leading Edge is the name of an international professional association of independently owned accounting and consulting firms. It's also the name of their thin but highly informative (and free) quarterly magazine. Each issue has at least one very good article on a timely topic that even a lawyer can find extraordinarily useful. Take the Fall 2008 issue.

There is a terrific article on surviving an economic downturn titled "Sculpt your business to survive and thrive." It discusses both what to do and, more importantly, what not to do when the economy goes sour.

The author, Editor Ann Gynn, points out that all too often companies begin setting up lines of credit when they find they need more money. Bad timing. Granted you may not have much choice, but you really need to be planning for the future and not just reacting to the present crisis. Gynn makes a numer of other great points in her article and she's worth checking out because she's written a number of other business articles that are equally good, but let's get back to that line of credit info and you'll see why timing matters.

It's easier to get a line of credit when the economy is going good and you don't really need the money. Might not make sense, but it's true. Then, when things get tight, your credit line is already set up and you can access it immediately instead of having to wait days or weeks or longer for approval, allthewhile being kept in suspense on whether or not it'll be approved and how much the credit line will be for too. It's often also easier to get an unsecured credit line set up when things are going good and your needs are minimal.

But wait, don't just set it up and ignore it. Use it.

The best way to increase your credit line is to use it. But the key is to pay it back timely too. On time and on term. That way you begin to build up a track record of creditworthiness that is obvious and helpful for future needs.

Check with your accountant and see if they are part of the the Leading Edge Alliance and get on the subscription list. You can also email them direct by clicking here. You can also email jsuter@bradyware.com for a free subscription.

The last quarter's issue is available online by clicking here. It's got a good article on negotiating too.

Ron Burdge
www.TheLawCoach.com
Helping attorneys win cases since 1978.

Outsourcing Ain't Easy for Lawyers

Seems like every couple of weeks attorneys get emails from offshore companies interested in taking on US legal work and research at low cost to the US attorney. Tempting on costs, but confusing on ethics.

Now the ABA Standing Committee on Ethics and Professional Responsibility has given some guidance by releasing Formal Opinion 08-451, Lawyer's Obligations When Outsourcing Legal and Nonlegal Support Services.

Nothing is inherently illegal or unethical about outsourcing but an attorney has an obligation to provide competent legal services for their client under Rule 1.1 of the ABA Model Rules and an obligation to properly supervise lawyers and nonlawyers under Rule 5.1.

In considering the outsourcing issue, the ABA decision notes that the client's attorney is obligated to make resonable efforts to ensure that the outsource lawyer conforms to the Rules of Professional Conduct and that the outsource lawyer's conduct conforms with the lawyer's professional obligations to his client and, notably, that these provisions apply even when the outsource person, lawyer or not, is directly affiliated with the hiring lawyer's firm.

To deal with the issue, the ABA Standing Committee made some outsourcing conduct recommendations:

1. conduct background checks of the outsource entity and its lawyer and nonlawyer staff
2. interview the lawyers involved to determine their educational background
3. when working with an intermediary, check on its hiring practices to determine the character of the employees who might have access to client data
4. investigate the security measures at the provider's premises, including computer network and disposal systems
5. it may even be prudent to conduct a site visit to get an impression of the professionalism of the lawyers and nonlawyers involved
6. if the outsource lawyer is in a foreign country, the local attorney should ascertain if the legal training in that country is comparable to US training, if ethical principles differ, and if the foreign country has an effective professional discipline system

The ABA Committee noted that if these steps aren't taken the attorney can still outsource the work but there will be a "heightened duty to scrutinize the work produced" for the client.

Other things need to be thought about too, though, including the possibility that confidential client information may be disclosed or seized in locally foreign court proceedings in the outsourced country.

So, it's obviously a little harder and riskier to use outsourced legal services, especially from a foreign source, but not impossible if done right. But, what about the client? Does the attorney have an obligation to tell the client?

In a previous decision back in 1988, the ABA had said that the working relationship with temporary or contract lawyers who were closely supervised by the firm did not have to be disclosed to the client. Now, however, the ABA Committee says that of the outsourcing's typically "tenous" relationship between the local lawyer and the outsourced lawyer, most of the time the client will have to be informed. Just as important, under Rule 1.6 confidential information still can not be disclosed to the outsourced lawyer without client consent.

Here's some outsourcing tips and suggestions for the US attorney to keep in mind:

1. don't outsource legal work without a confidentiality agreement in place to prevent wrongful disclosure of confidential client information
2. check with the outsourced lawyer for any conflict of interest
3. get client consent to outsource the work
4. either don't mark up the cost of the outsource work or get client consent to a reasonable markup that is related to overhead or other tangibly related firm costs
5. have a written agreement with the client on what outsource costs will be passed on to the client and at what rates
6. don't try to make a profit on the outsourced work cost being passed on to the client

Even with all of that, you still have to be careful of Rule 5.5's admonition not to assist in the unauthorized practice of law.

This whole outsourcing thing is fraught with danger so be cautious first and be careful later and be concerned at all times.

Ron Burdge
www.TheLawCoach.com
Helping attorneys help clients and win cases since 1978.

Lawyer Emyth Tips

“There is a myth in this country — I call it the E-Myth — which says that small businesses are started by entrepreneurs risking capital to make a profit. This is simply not so. The real reasons people start businesses have little to do with entrepreneurship. In fact, this belief in the Entrepreneurial Myth is the most important factor in the devastating rate of small business failure today. Understanding the E-Myth, and applying that understanding to the creation and development of a small business, can be the secret to any business’s success.” Michael E. Gerber, The E Myth Revisited (1995).

Gerber’s book has become a staple of the business world and is a remarkable analysis of why some businesses succeed and others fail — and what you can do to make sure your own business is in the former category and not the latter. While his book discusses concepts applicable to any business, some of them may require a small amount of tweaking to better fit the business of lawyering but they do fit.

If you have not read The E Myth Revisited, then you should because it’s well worth the small cost. Learning its lessons can make you money and save you money in your law practice. One of his points is that you need a business development plan. True.

A good business development process emphasizes “development.” The long-term goal of every business owner is to build their business up to the point where they can step down from it, either by sale or semi-retirement, etc. That takes long-term thinking about how to build the business.

Merely showing up and doing the work will only get you from the beginning of each day to its end. That is only working “in” your business and not working “on” your business. And merely showing up to do the work has nothing to do with developing your business, no matter what the business is about.

You have to plan on developing your business, increasing your client base, and refining your business processes if you want to increase your income stream while decreasing the work effort needed to produce the income stream.

That takes planning and systemization of all your law firm processes so that the practice can run itself with less of your daily involvement in the processes themselves. If you systemize everything then you systemize for your eventual success. But you have to know what you are aiming for if you expect to hit your target.

You can not succeed in any business if you don’t know what the primary aim is for your business. That’s true in all types of businesses.

What is the most important thing that you want others to know about your business? Note that we did not say “about you” because that is not what matters. Your law firm is you. That is why your law firm’s primary aim is all that matters.

Correctly phrased, the question is “what is the most important thing that you want others to know about your law firm?” Whatever it is, that should be the primary aim of your law business. Figure it out and let others in your law business know what it is.

Figuring it out involves asking some fundamental questions:

- what kind of law do you want to practice?
- how many hours a day do you want to work? How many days a week?
- what do you want your life to look like right now or in the coming years?
- what do you want to do on a day to day basis?
- what do you want other people to think about you?
- what do you want to be doing two years from now? Five years?
- where do you want to live? How do you want to live?
- how much money do you need to do those things?
- how much money will you need when you stop doing those things?

Just as in archery, you have to know where your target is if you expect to hit it. But always recognize that your primary aim can change over time. And that was never truer than in these difficult economic times.

Plan for your business and you plan for your success. Determine what you want people to say about your law firm and you know your firm's primary aim. Then focus on it for even more success.

And somewhere along the way, get a copy of Gerber's book and read it. Then figure out how to apply it to your daily practice.

Ron Burdge
www.TheLawCoach.com
Helping Lawyers Win Cases Since 1978.

Procrastination Can Kill Your Case

General George Patton had one thing to say about planning vs action. His advice? "A good plan, violently executed now, is better than a perfect plan next week." Same thing is true in litigation.

To put it another way, procrastination can kill a good case. There's a lot of advantage to being proactive in litigating your case, but carefully and effectively so.

From new client intake to closing the file, a smart trial attorney is always planning for the next step, the next stage. If you devote some time and thought to planning early, there's less risk of getting caught by surprise. Starting at the beginning you should be planning what discovery you will need to do and in what order. Carefully rank the priority of your discovery and plot the sequence of it. Determine what discovery is really necessary and what can wait or even be ignored, based on the pro and con of each discovery effort or tool available. Pick low priority discovery and deliberately hold that back for use in response to your adversary's unexpected surprise move, if one comes. And if it doesn't come then it won't matter anyway.

But when you are caught by surprise, you are often better off by taking a quick and decisive response rather than dwelling on issues and plotting a response. That's why advance planning and ranking of the priority of your case flow can be extraordinarily useful.

A strong and quick response is seldom what your adversary is expecting when they deliver a strategic blow that they are counting on as a surprise. It has the advantage of confusing your adversary by making them think that perhaps their surprise move was not so much of a surprise after all. It can also make them think you have been waiting for them to make that move so that you could respond with your planned move which, of course, can have the double benefit of making your adversary wonder what's next?

There's a lot of advantage in being unpredictable in your litigation.

Of course, one could also argue that a bad plan is better than no plan at all too. Doing nothing is often worse than making the wrong move in the litigation chess match.

So, let's translate.

When you get paper discovery that you weren't expecting, consider firing something back that is equally unexpected by your adversary. When you are notified of a last minute new witness as your trial nears, quickly decide on a response and stick to it. Motion in limine? Quickly serving paper discovery or noticing up a discovery deposition, even though the discovery deadline has expired? Strategically ignoring it? Identifying a new fact witness of your own?

But don't overlook the value of strategically doing nothing in the face of an aggressive adversary. There is tremendous value in creating the uncertainty of a non-response or low key response. It exudes self-confidence. You can outwardly appear unflappable while inwardly seething with controlled anger. It is true what the deodorant commercials used to say: never let them see you sweat.

Whatever your response may be, hopefully you had it planned in advance and are able to quickly react when you need to. Procrastinating by failing to do advance planning in your case now can mean losing your case later. And no one likes losing.

Ron Burdge
www.TheLawCoach.com
Helping lawyers win cases since 1978.