Thursday
Importance of Your Web Site's Fold
Do it above the fold.
We're continuing our series on things you can do to improve your law practice economics. Today, the topic is getting more clients from your web site and specifically the importance of the fold.
Marketers call the fold of your web site the top part of your web site page that shows on the screen. It's much like what they call the "fold" for a newspaper: that part of the page that you see when the paper lays in its normal flat folded position on a table. That's important because most often the only thing that a lot of consumers see is what is "above the fold."
So, if you want to catch the reader's attention, you have to do it above the fold. If a consumer has to scroll down to read content, they won't do it unless you have grabbed their attention above the fold.
Second lesson? Make sure that on every page of your website your contact info appears above the fold too.
Web site visitors are notoriously impatient and sometimes a bit lazy. You have to make it very easy for them to contact you. You may be the right attorney for the job, but if they can't quickly and easily figure out how to reach you, by phone or email or whatever, they'll click on down the road to someone else.
So, do it above the fold. And do it lots of ways.
That means put your toll free phone number up there. Put a contact us link. Put a box for them to fill in info to send you, but keep it short. Put your email address there. Heck, put your regular (toll) phone number there too if you want. Just put lots of "point blank" ways for the visitor to see how to reach you. Make it quick. Make it easy. That way you can make a conversion of a visitor to a client. And it'll help your business too.
Wednesday
Dragon Dictation for the iPhone is Here
Breaking News ... Dragon has just released an iPhone version of its famous dictation software and just days later (like yesterday) they updated it.
The reviews for it are pouring in and everyone seems to love it. If you use Dragon Dictation on your pc, and you've got an iPhone, this is the app to get.
Not only is Dragon a terrific program with a great track record for excellent dictation/interpretation from voice-to-type, but the iPhone app is FREE. How long it lasts for free no one can tell, so get to the iTunes Store and do a search for "Dragon Dictation" and download it right away.
A quick look-see indicates this is not a crippled, half-baked version, either. For instance if it has trouble with a name spelling, it'll check your contact names for a correction. We'll find out more and write a review of our own in the near future.
But for now folks, this is one app that'll be on the "top 10 app" list for every busy dictating lawyer.
The reviews for it are pouring in and everyone seems to love it. If you use Dragon Dictation on your pc, and you've got an iPhone, this is the app to get.
Not only is Dragon a terrific program with a great track record for excellent dictation/interpretation from voice-to-type, but the iPhone app is FREE. How long it lasts for free no one can tell, so get to the iTunes Store and do a search for "Dragon Dictation" and download it right away.
A quick look-see indicates this is not a crippled, half-baked version, either. For instance if it has trouble with a name spelling, it'll check your contact names for a correction. We'll find out more and write a review of our own in the near future.
But for now folks, this is one app that'll be on the "top 10 app" list for every busy dictating lawyer.
Ron Burdge
Helping lawyers do business, since 1978.
7 Killer Methods for Marketing Without Money + # 8
We're continuing our series on things you can do to improve your law practice economics. Today, the topic is getting more clients with marketing and specifically what we think is the #1 web site for terrific marketing tips and ideas --- and it's unusually entertaining too.
The #1 unconventional marketing tv show isn't on tv at all. It's on the web and you can watch it there or download the podcast. In fact, if you don't watch it regularly, you are missing out on great ideas and tons of tips that are free every single week. I subscribe to the iTunes podcast so it downloads automatically whenever I hook up my iPhone. Then on the drive to court (or anywhere else), I plug in the iPhone and start listening to the podcasts.
But these podcasts are so good that I invariably end up watching them at my desk on their website too and making notes on the tips I get out of it for future implementation.
The podcast is called "Help, My Business Sucks" and the web site is http://www.helpmybusiness.com/. Now I like to think my business doesn't quite suck, but with a url name like that, and all the terrific ideas and content on the site, it's no wonder that it gets lots of attention.
The #1 unconventional marketing tv show isn't on tv at all. It's on the web and you can watch it there or download the podcast. In fact, if you don't watch it regularly, you are missing out on great ideas and tons of tips that are free every single week. I subscribe to the iTunes podcast so it downloads automatically whenever I hook up my iPhone. Then on the drive to court (or anywhere else), I plug in the iPhone and start listening to the podcasts.
But these podcasts are so good that I invariably end up watching them at my desk on their website too and making notes on the tips I get out of it for future implementation.
The podcast is called "Help, My Business Sucks" and the web site is http://www.helpmybusiness.com/. Now I like to think my business doesn't quite suck, but with a url name like that, and all the terrific ideas and content on the site, it's no wonder that it gets lots of attention.
Hosted by the admittedly unconventional, but vastly entertaining and lively, Andrew Lock, I heartily recommend that every business person (he calls them entrepreneurs) subscribe to the podcast for easy listening and viewing. But don't forget to visit the website, where you'll find even more info regularly posted and just as regularly updated.
Lock is, quite simply, the single most effective guru in marketing today. And he's fun to listen to.
The site is loaded with tons of valuable content that can kick start your marketing effort or really zoom it up, depending on where you are in the marketing process. There's so much on the site that I can't cover it all here, so you just have to trust me and head over there to see for yourself.
For instance, yesterday I downloaded his publication "7 Killer Methods for Marketing Without Money." It was free, so how could I go wrong? Dig around on the site and you'll find it too, but don't forget to sign up for his free tv show updates, so you don't miss anything.
So, how good were his 7 Killer Methods for Marketing? Well when I read through Andrew's 7 Killer Methods, I smiled when I suddenly realized that they were some of the very things that I was already doing. I just didn't view them as marketing methods but, as Andrew says, "marketing is everything and everything is marketing."
The site is loaded with tons of valuable content that can kick start your marketing effort or really zoom it up, depending on where you are in the marketing process. There's so much on the site that I can't cover it all here, so you just have to trust me and head over there to see for yourself.
For instance, yesterday I downloaded his publication "7 Killer Methods for Marketing Without Money." It was free, so how could I go wrong? Dig around on the site and you'll find it too, but don't forget to sign up for his free tv show updates, so you don't miss anything.
So, how good were his 7 Killer Methods for Marketing? Well when I read through Andrew's 7 Killer Methods, I smiled when I suddenly realized that they were some of the very things that I was already doing. I just didn't view them as marketing methods but, as Andrew says, "marketing is everything and everything is marketing."
I can vouch for the accuracy of his 7 Killer Methods. They work, folks.
He is dead on with these methods and, best of all, they are free. All it takes is a little of your time and if you do it every day, it will definitely help your business get more clients.
But for lawyers, I'd add this tip as Killer Method #8 to Andrew's list: get on http://www.avvo.com/ and regularly answer the public questions posted there. It's a great way to show your expertiese to the very people who are looking for legal advice. You can even write articles (for both potential clients and potential referring attorneys) and publish them on the Avvo site. Also, you can limit yourself to answering questions just in your geographical area so you can get maximum impact and value for your time.
Okay, so the point is we can all use a little marketing help from time to time and Andrew Lock is one of the best resources out there. If you want to hear the best tips every single week, this is the web site you want to go to and the podcast you want to listen to so you don't waste your time or your money. http://www.helpmybusiness.com/ does just that. And it'll help your business too.
He is dead on with these methods and, best of all, they are free. All it takes is a little of your time and if you do it every day, it will definitely help your business get more clients.
But for lawyers, I'd add this tip as Killer Method #8 to Andrew's list: get on http://www.avvo.com/ and regularly answer the public questions posted there. It's a great way to show your expertiese to the very people who are looking for legal advice. You can even write articles (for both potential clients and potential referring attorneys) and publish them on the Avvo site. Also, you can limit yourself to answering questions just in your geographical area so you can get maximum impact and value for your time.
Okay, so the point is we can all use a little marketing help from time to time and Andrew Lock is one of the best resources out there. If you want to hear the best tips every single week, this is the web site you want to go to and the podcast you want to listen to so you don't waste your time or your money. http://www.helpmybusiness.com/ does just that. And it'll help your business too.
Ron Burdge
Helping attorneys help clients, every day.
Saturday
Knowing the Cost of Clicks on PPC
We're continuing our series on things you can do to improve your law practice economics. Today, the topic is getting more clients and pay per click, or "PPC" as it's sometimes called. The key idea here is how to find out what the web traffic is for particular key words and what they cost so you don't waste your money. There's a web site that will give you that and a lot more and it's free.
There are lots of marketing ideas out there and PPC is one of them. That's where you use one of the search engines own marketing programs to set up a PPC ad. It's really reasy to do and the best part is it's free. At least it is until the clicking starts.
You've seen these PPC ads along the top and side of the screen whenever you have run a search on one of the major web search pages. The ad costs you only when someone clicks on it to activate the hyperlink to your web site. If you use the right key words, the theory is that your ad will show up on the side of search results for those key words.
There's lots of ways to spiff it so that your target viewer is much more narrow, but what we are going to talk about today is a nifty web site that you can use to see what the actual traffic is for some of those key word phrases and what the costs are. Keyword Spy is a terrific site that'll do the job.
It allows you to plug in your key word phrase and pick a country and then it'll return to you the stats for that phrase and others like it. You can quickly see just how many people are running searches and using that key word phrase and the others that are like it. Best part? They also tell you the current cost per click (called "CPC") too.
Let's take, for instance, "Lemon Law." As of this writing, there are 35 PPC advertisers using that phrase and the CPC is $18.27 and in the US there are 201,000 searches using that phrase each month.
Another great thing about KeywordSpy is that they show you, graphically, the last ten months of stats too.
Even better, with one click you can get the background info on those 35 PPC advertisers who are using the Lemon Law phrase. With that info you can see a screenshot of their website, domain name, their PPC budget in CPC terms, the number of PPC keywords their site uses and the number of perceived PPC competitors along with even more info. It's a gold mine for marketers trying to figure out the most cost effective way of using their internet PPC dollars.
With another click you can actually read the PPC ads and get an idea of the "return on investment" of the wording, which KeywordSpy calculates for you. Another click gives you the related keywords. Or misspelled keywords. And there's lots more.
And it's all free.
You can get even more results if you register for their "lifetime free trial."
Okay, so the point is that if you want to try out some pay per click advertising, this is the first web site you need to go to so you don't waste your money. www.KeywordSpy.co.uk.
Next time, we'll talk about what I think is the single most entertaining, and effective, guru on marketing. He's remarkable.
There are lots of marketing ideas out there and PPC is one of them. That's where you use one of the search engines own marketing programs to set up a PPC ad. It's really reasy to do and the best part is it's free. At least it is until the clicking starts.
You've seen these PPC ads along the top and side of the screen whenever you have run a search on one of the major web search pages. The ad costs you only when someone clicks on it to activate the hyperlink to your web site. If you use the right key words, the theory is that your ad will show up on the side of search results for those key words.
There's lots of ways to spiff it so that your target viewer is much more narrow, but what we are going to talk about today is a nifty web site that you can use to see what the actual traffic is for some of those key word phrases and what the costs are. Keyword Spy is a terrific site that'll do the job.
It allows you to plug in your key word phrase and pick a country and then it'll return to you the stats for that phrase and others like it. You can quickly see just how many people are running searches and using that key word phrase and the others that are like it. Best part? They also tell you the current cost per click (called "CPC") too.
Let's take, for instance, "Lemon Law." As of this writing, there are 35 PPC advertisers using that phrase and the CPC is $18.27 and in the US there are 201,000 searches using that phrase each month.
Another great thing about KeywordSpy is that they show you, graphically, the last ten months of stats too.
Even better, with one click you can get the background info on those 35 PPC advertisers who are using the Lemon Law phrase. With that info you can see a screenshot of their website, domain name, their PPC budget in CPC terms, the number of PPC keywords their site uses and the number of perceived PPC competitors along with even more info. It's a gold mine for marketers trying to figure out the most cost effective way of using their internet PPC dollars.
With another click you can actually read the PPC ads and get an idea of the "return on investment" of the wording, which KeywordSpy calculates for you. Another click gives you the related keywords. Or misspelled keywords. And there's lots more.
And it's all free.
You can get even more results if you register for their "lifetime free trial."
Okay, so the point is that if you want to try out some pay per click advertising, this is the first web site you need to go to so you don't waste your money. www.KeywordSpy.co.uk.
Next time, we'll talk about what I think is the single most entertaining, and effective, guru on marketing. He's remarkable.
Ron Burdge
Helping lawyers make a living. Since 1978.
Thursday
How Do I Improve My Business? Step One to Improving Your Business.
Okay. So the economy is tanked and your phone has stopped ringing. How do you improve your business?
How do you get the phones to start ringing again? How do you get your business back to normal? How do you survive the downturn so you can keep helping consumers solve their problems in the future? After all, Consumer Law attorneys depend on consumer clients for their livelihood.
When people find themselves in financial distress, it's common for them to "hunker down" and conserve everything they can. They don't take risks they can avoid. They don't spend money they don't have to. And they get afraid of anything that they even fear can cost them money too.
For many people, that means their fear takes over. That's when they decide to put up with harassment and aggravation that, at any other time, would cause them to get angry and call a lawyer for help. Instead, afraid of unknown legal costs they are afraid they can't handle, they don't ask for help. They put up with it because they feel like they don't have any other choice right now.
Until the economy gets better, "right now" turns into tomorrow. Then, next week. Then next month. Next thing you know, it's next year. And they still aren't sure. That's understandable. But it doesn't help you make payroll.
We've been working on some ideas for you to consider ... things that can help. The first one sounds corny but it is so very true. It is, simply, to have faith.
If you're like many Consumer Law practitioners, you are struggling right now. And so are most of your clients. As hard as times are right now, and they are hard, they will pass. These times will ease up, both for you and all of us. And for our clients too, both current clients and those who have yet to call us for help.
The work that Consumer Law attorneys do, doesn't go away. It goes up and down, but it doesn't go away. New clients will call for help. How do we know? Simple. Because the people who violate the laws never really stop doing what they do. Even when they clean up their act and violate the law less often, or even if not at all, others will take their place.
What changes, in keeping with the economy of the times, is the willingness of consumers to put up with it. When personal economic security is less at risk, then the insult of unfair and deceptive conduct by a merchant is more intensely felt --- and tolerated less.
In short, consumers are more willing to find out what their rights are and less tolerant of the abuse that is heaped upon them.
So as the economy picks up, your business will pick up too. And that is true no matter all the other peripheral issues you are dealing with.
So, in tough times the first thing for a Consumer Law attorney to keep mind is that no matter how hard each day may be, have faith that each day after that will get better. It's not just a corny thing our parents said when we were kids (although they did), it's something that is true.
Now, of course there are some not-so-corny things to be doing ... but that's for next time and the days that follow. We'll talk about that next time.
Sunday
Are you practicing law in a bad economy?
Think you practice in the state with the worst economy? Think again.
Everyone seems to know that California is in the biggest economic trouble, with an economy in the dumpster, high unemployment, and no easy way to fix any of it. That makes practicing law in California tougher than practically anywhere. What may surprise many attorneys is not California at all. It’s the other states that are so very close to their own economic abyss. And that abyss can kill a law office's bottom line.
After all, when people can't afford a lawyer, people don't hire a lawyer. When that happens, they lose, the lawyer loses --- and so does the legal system itself because it never has the chance to give people their day in court. The economy in general affects the economy of lawyers specifically.
There’s a new study out that has looked at the economy of all 50 states and ranked them.
The PEW Charitable Trusts has crunched state numbers for more than a decade, with a goal of making state governments stronger in order to improve the services we all get for our tax dollars. Part of that includes reporting on the bad times and, as we all know, we are now in a blockbuster bad time.
They looked at numerous factors to come up with a scorecard for each state: foreclosures, budget gaps, loss of revenue, unemployment, how easy or hard it is for each state to raise its taxes in order to cover shortfalls, etc. All of those things affect the ability of consumers to afford legal representation.
With a “30" score being the worst and a lower score being better, here’s the “top 10" of the worst state economies, in order: California, Arizona, Rhode Island, Michigan, Oregon, Nevada, Florida, New Jersey, Illinois, and Wisconsin.
Wyoming, Nebraska and Iowa scored the best. So if that's where you practice law, don't move your practice.
So where does your state fit? Ohio is almost the center of the list while Georgia’s budget gap put it just a hair behind the auto belt states of Michigan-Wisconsin-Illinois by one point.
The worst ten states account for nearly a third of the US population and economy, which is why those states in particular matter to all of us.
What the study shows is just how much farther the US economy has to go, although there are bright spots of how hard some states are trying. Wyoming, for instance, had a 19.7% drop in revenue but managed to come with 2% of balancing its budget.
Law firms will get through this as the economy starts to get better and better, but if history has shown anything, it’ll be a longer road than anyone wants it to be.
Wednesday
Google Legal Research is Here and Now
Google the noun has become google the verb. That's old news. How about Googling your legal research? And it's here right now. Beta, yeah. But it works.
Granted Westlaw and Lexis have no reason to lose sleep right now, but it's coming. After all, they offer a lot more than just court cases and their own methodology and search techniques have been honed to fit the lawyer's mind from decades of experimentation. But Google is free, and that's tempting to new young lawyers who don't have the resources to sign up for the paid services that offer a lot more bang for the buck.
Google Scholar is a database that Google has been quietly building and they've now added the ability to search court opinions from the US District Courts, the US Court of Appeals, the US Supreme Court and from all fifty states.
It's got the familiar Google interface and the only obvious thing that distinguishes it from the "home" Google search engine web site page is the smaller print under the "Google" that says "Scholar Beta." And the searching is easy, but a bit clumsy and it'll take some time to get used to.
But it's biggest advantage? Limit yourself to one state and a time frame of say the last 9 years and plug in a specific phrase or topic, like "lemon law" for instance, and in a flash you will get all the court decision there are. No waiting. No hourglass busy icon. No time to even lift your coffee cup up off the desk. It's that fast. Okay, I know you're thinking it ... it's "google fast."
You can use the "advanced" link to limit your search to one or more jurisdictions and you can search by date ranges. Like Google itself, it's slick and simple. Maybe too simple for lawyers to get used to, but the next generation of law students? It's right up their alley.
But there's lots of questions. After all, it is beta.
Who knows how deep the content is, how often will it be updated, where does the data come from, and just how strong is Google's committment to legal research --- or does beta mean maybe it'll be around next month, and maybe it won't? No one seems to know for sure, so for now take a spin and see what you think. Like it or hate it, let us know and we'll report back.
Ron Burdge
Helping lawyers help their clients since 1978.
Friday
Marketing Lessons from a PI Firm
Jim Reed, a personal injury attorney in Elmira, New York says his firm is thriving in this down economy and he has a few ideas posted to one of TechnoLawyer.com's listserves that are well worth passing on here (and if you don't subscribed to TechnoLawyer, you should; it's a great way to stay on top of the law office technology).
I am very pleased to report that my firm is kicking butt in 2009. Our #'s for the year are up more than 25%. This follows several years of good results so our current success is no short-term blip. With that said, continuing success is our daily mantra and we do not rest on our laurels …
Our success is a culmination of many factors that we have been working on for years:• Hire great employees (and fire the bad ones!).
• Focus on niche practices & create blogs for each niche (ie. NYInjuryLawBlog.com).
• Work with a savvy marketing firm (Mark Merenda from SmartMarketing) and make marketing part of your daily "work",
• Jettison underperforming practice areas and/or partners.
• Invest in the best technology and train your entire team how to use it.
Most important of all … just do one thing, every single day, to make your firm just one little bit better than the day before.
It never ceases to amaze me that success is the culmination of many little things, done day after day, rather than some huge "new" program or project.
Check out his firm site: www.zifflaw.com and his blog at: www.NYInjuryLawBlog.com
He's absolutely right that each day you need to do at least one thing that markets your firm and makes it better than the day before. That's a great tip on how to build (and keep building) a great practice.
Ron Burdge
www.TheLawCoach.com
Helping lawyers help people since 1978.
I am very pleased to report that my firm is kicking butt in 2009. Our #'s for the year are up more than 25%. This follows several years of good results so our current success is no short-term blip. With that said, continuing success is our daily mantra and we do not rest on our laurels …
Our success is a culmination of many factors that we have been working on for years:• Hire great employees (and fire the bad ones!).
• Focus on niche practices & create blogs for each niche (ie. NYInjuryLawBlog.com).
• Work with a savvy marketing firm (Mark Merenda from SmartMarketing) and make marketing part of your daily "work",
• Jettison underperforming practice areas and/or partners.
• Invest in the best technology and train your entire team how to use it.
Most important of all … just do one thing, every single day, to make your firm just one little bit better than the day before.
It never ceases to amaze me that success is the culmination of many little things, done day after day, rather than some huge "new" program or project.
Check out his firm site: www.zifflaw.com and his blog at: www.NYInjuryLawBlog.com
He's absolutely right that each day you need to do at least one thing that markets your firm and makes it better than the day before. That's a great tip on how to build (and keep building) a great practice.
Ron Burdge
www.TheLawCoach.com
Helping lawyers help people since 1978.
Thursday
Is it identity theft or is it bank robbery --- and whose fault is it?
We've talked before about identity theft and its dangers and lots of people have. There's even a terrific British Youtube about it and the puzzling question of whether it is really identity theft at all (or is it just electronic bank robbery?). Well maybe we're about to find out.
Patco Construction Company, Inc. v People's United Bank dba Ocean Bank, no pending in state court in Maine, may tell us just whose fault it really is, besides the cyber criminal of course.
Patco was a long time customer of the bank but after losing hundreds of thousands of dollars from online theft and then getting a notice from the bank that they wanted Patco to pay it back, they decided they had enough. Patco sued the bank for the loss. 'bout time, some would say. So would I.
While the claims include negligence, breach of contract, breach of fiduciary duty, and more (what, not bailment?), fundamentally the theory is that the bank failed to live up to its most basic obligation, which is to protect its customers' funds from theft. Patco's case is one to watch. With the increasing rise of cyber theft, sooner or later a client may come to you and ask what they can do about it.
The Patco bank's claims of sophisticated "behind the scenes" security measures and computer programs didn't do much good to stop cyber thieves who dipped not only into Patco's accounts, but did so repeatedly, transferring money to accounts that Patco had never used before, and from internet addresses that Patco had never used before either. The thieves even managed to tap into Patco's line of credit for a hefty $200,000 transfer.
When you think about it, Patco's claims make sense. All banks are quick to point out, on their websites and in their paper brochures, how they have all these computer theft protection measures set up to protect your deposits from theft. Much of it is advertising directed at encouraging consumers to use the internet for electronic transfers and bill paying that are high-profit transactions for the banking industry. After all, there aren't many tellers working inside that big bank computer box. Heck, there's even fewer of them at the walk in windows nowadays.
A century or two ago people put their money under the mattress or buried it in the backyard because that was safe. Now when you put your money in the bank, it's because you think it's safe. Well, not quite as safe as it used to be.
Still, if you give a friend $50 to hold for you, it's only natural to expect that they'll have it on hand to give back to you when you ask for it later. Especially if that "friend" is a big bank that collects millions of dollars from thousands of people and then invests it and charges interest on loans and makes money off your money (which they keep). That's a simple idea that any juror can grasp.
You expect the bank to protect your money and when they don't, it doesn't really matter whether they had one computer program to stop cyber thieves or a hundred of those programs. When the money is gone, it's gone. But it ought to be the bank's fault.
So let's stop calling it identity theft and call it what it is. Bank robbery. That makes a difference because, you see, the bank is insured. Okay, so if the insurance pays off, then the bank's next insurance premium will go up. Sooner or later the bank will decide it needs to fix it so cyber theives can't get into your account. It's either that or facing rising insurance premiums or cover the loss themselves.
So when will that happen? When we all make it happen. Banks don't like losing money and they don't like paying out money either. When it starts costing them money, they'll do something about it. Until then, they will keep tellling you that it's "your" identity theft problem and that it was "your" money that was stolen and not theirs.
How Patco's case comes out will be very interesting. But, one thing is for sure, the rest of us will be watching. And you can bet that the banks will really be watching.
Patco Construction Company, Inc. v People's United Bank dba Ocean Bank, no pending in state court in Maine, may tell us just whose fault it really is, besides the cyber criminal of course.
Patco was a long time customer of the bank but after losing hundreds of thousands of dollars from online theft and then getting a notice from the bank that they wanted Patco to pay it back, they decided they had enough. Patco sued the bank for the loss. 'bout time, some would say. So would I.
While the claims include negligence, breach of contract, breach of fiduciary duty, and more (what, not bailment?), fundamentally the theory is that the bank failed to live up to its most basic obligation, which is to protect its customers' funds from theft. Patco's case is one to watch. With the increasing rise of cyber theft, sooner or later a client may come to you and ask what they can do about it.
The Patco bank's claims of sophisticated "behind the scenes" security measures and computer programs didn't do much good to stop cyber thieves who dipped not only into Patco's accounts, but did so repeatedly, transferring money to accounts that Patco had never used before, and from internet addresses that Patco had never used before either. The thieves even managed to tap into Patco's line of credit for a hefty $200,000 transfer.
When you think about it, Patco's claims make sense. All banks are quick to point out, on their websites and in their paper brochures, how they have all these computer theft protection measures set up to protect your deposits from theft. Much of it is advertising directed at encouraging consumers to use the internet for electronic transfers and bill paying that are high-profit transactions for the banking industry. After all, there aren't many tellers working inside that big bank computer box. Heck, there's even fewer of them at the walk in windows nowadays.
A century or two ago people put their money under the mattress or buried it in the backyard because that was safe. Now when you put your money in the bank, it's because you think it's safe. Well, not quite as safe as it used to be.
Still, if you give a friend $50 to hold for you, it's only natural to expect that they'll have it on hand to give back to you when you ask for it later. Especially if that "friend" is a big bank that collects millions of dollars from thousands of people and then invests it and charges interest on loans and makes money off your money (which they keep). That's a simple idea that any juror can grasp.
You expect the bank to protect your money and when they don't, it doesn't really matter whether they had one computer program to stop cyber thieves or a hundred of those programs. When the money is gone, it's gone. But it ought to be the bank's fault.
So let's stop calling it identity theft and call it what it is. Bank robbery. That makes a difference because, you see, the bank is insured. Okay, so if the insurance pays off, then the bank's next insurance premium will go up. Sooner or later the bank will decide it needs to fix it so cyber theives can't get into your account. It's either that or facing rising insurance premiums or cover the loss themselves.
So when will that happen? When we all make it happen. Banks don't like losing money and they don't like paying out money either. When it starts costing them money, they'll do something about it. Until then, they will keep tellling you that it's "your" identity theft problem and that it was "your" money that was stolen and not theirs.
How Patco's case comes out will be very interesting. But, one thing is for sure, the rest of us will be watching. And you can bet that the banks will really be watching.
Ron Burdge
Helping consumers and consumer law attorneys since 1978.
Court Warns of Attorney Trust Account Scam
If you haven't gotten one of those international emails from a foreign company asking for your help with a legal matter, you probably will. Be cautious. As with any email nowadays, it may just be a scam.
The Supreme Court of Ohio Office of Attorney Services issued a warning to lawyers about an internet scam affecting lawyer trust accounts. Multiple individual attorneys and law firms have contacted the Ohio Supreme Court about the scam.
Here’s how it works: An Ohio lawyer receives an e-mail purportedly from another lawyer for collection of a debt. A follow-up e-mail arrives from the supposed debtor (who is also the client), seemingly legitimate, who sends a bogus check (often drawn on an overseas account) for payment.
The Ohio lawyer is instructed to pay the debt by wiring some of the funds to the creditor and to keep a portion of the funds as payment for his/her attorney fees. The Ohio lawyer then deposits the check in his/her Interest on Lawyers Trust Account (IOLTA), wires funds to the creditor, and retains the agreed upon amount as attorney fees.
Meanwhile, the check goes through international banking channels until it’s eventually discovered that insufficient funds are available in the account to cover the amount. The bank debits the IOLTA for the amount of the returned check, while the lawyer has wired “good,” client funds to the purported creditor. The proposed client is often an actual Asian-based company so it sounds legitimate but the scammers have no real connection with the company at all.
To make it even more convincing, the scammers use real lawyers’ names in the initial e-mail. The moral of the story is clear: be careful.
If an unknown attorney asks you to become involved in a financial transaction involving a foreign company, be wary. Since your Trust Account funds are not your money, an attorney who disburses funds, before a deposited check actually clears the bank, is taking a very big risk. Don't do it until you can verify that in fact the international check has cleared and the funds are in your bank account.
You can report a suspected online crime by contacting the FBI at www.ic3.gov.
The Supreme Court of Ohio Office of Attorney Services issued a warning to lawyers about an internet scam affecting lawyer trust accounts. Multiple individual attorneys and law firms have contacted the Ohio Supreme Court about the scam.
Here’s how it works: An Ohio lawyer receives an e-mail purportedly from another lawyer for collection of a debt. A follow-up e-mail arrives from the supposed debtor (who is also the client), seemingly legitimate, who sends a bogus check (often drawn on an overseas account) for payment.
The Ohio lawyer is instructed to pay the debt by wiring some of the funds to the creditor and to keep a portion of the funds as payment for his/her attorney fees. The Ohio lawyer then deposits the check in his/her Interest on Lawyers Trust Account (IOLTA), wires funds to the creditor, and retains the agreed upon amount as attorney fees.
Meanwhile, the check goes through international banking channels until it’s eventually discovered that insufficient funds are available in the account to cover the amount. The bank debits the IOLTA for the amount of the returned check, while the lawyer has wired “good,” client funds to the purported creditor. The proposed client is often an actual Asian-based company so it sounds legitimate but the scammers have no real connection with the company at all.
To make it even more convincing, the scammers use real lawyers’ names in the initial e-mail. The moral of the story is clear: be careful.
If an unknown attorney asks you to become involved in a financial transaction involving a foreign company, be wary. Since your Trust Account funds are not your money, an attorney who disburses funds, before a deposited check actually clears the bank, is taking a very big risk. Don't do it until you can verify that in fact the international check has cleared and the funds are in your bank account.
You can report a suspected online crime by contacting the FBI at www.ic3.gov.
Ronald L. Burdge
Helping lawyers protect their clients, and themselves, since 1978.
Tuesday
A Trial Lawyer's Brain Scan
In a remarkably graphic way, the diagram above shows what the brain scan of a trial lawyer would look like if you could do it in the midst of trial. It also explains why trial work is challanging and exciting. Each of those balls represents one piece of evidence that has to fall into place in the course of the trial at just the right time, all of which are moving, and the orchestration of which is mind boggling.
Ronald L. Burdge
Helping lawyers win, one case at a time.
My hours were cut but I want to keep my job. What do I do now?
Economic times are tough for everyone. Employees and employers alike. But what do you do when your hours get cut and you want to keep your job?
A young attorney, out of law school only a few years, faced tough news and asked us how to deal with it. After working his first two years after passing the bar exam, all of it in the same mid-size law firm, he received news recently that his full time job was going part time. With student loans looking over his shoulder, he could only start calculating the hard economic reality of losing 40% of his income. His 5 day a week job was cut to 3 days, with no guarantee it won't get cut more in the coming weeks or months.
"I can't live on what I make now but I don't want to lose my job. I like what I do and where I do it but there's no guarantee it won't get worse. What do I do now?" His questions echo the fears of many young attorneys. Are you in that spot? Well, there's a few things to keep in mind.
First, keep in mind that most law firms don't like cutting associates or cutting their hours. The cost of replacing a trained associate, even one with only a few years of experience, is horrible for the law firm. The fear of losing a good young associate is as real for the law firm as is the fear of losing employment for the young associate. If cutting hours was avoidable, it would have been avoided. But the simple fact is that in an economic downturn, sooner or later the loss of business affects even the best broad-based, diversified law firm too. It may not be consoling, but consider yourself lucky you didn't get your hours cut sooner.
Second, get a grip on the present and move on. Okay, so you've got less income next week than you had last week. Figure out what you have to do to deal with it. Don't dwell on it and don't commiserate with others who are sulking and doing nothing about it. That won't help. Find a way to adjust your living expenses first. Don't just give up and start looking for another job. First, the job market is crowded with all those associates who lost their job, or got their hours cut, before you. It's tough. Second, even if you are only working part time, that's better than no time. Don't walk away from a job you like during tough times if you really want to keep it. Find a way to budget yourself by either reducing your costs of living or increasing your money to live with. In other words, look for a part time job to supplement your law work. That may be hard to find too, but it's likely better than walking away and hoping for the best.
Third, stand up. That's right. Stand up. The reason your hours were cut is probably because you were "sitting down" in the crowd. If you want to be the last person they cut, make yourself so valuable to the law firm that they can't afford to cut your hours and risk your departure. But if your hours were already cut, then turn the situation around. Show that you have a value they don't want to lose. So, how do you do that? What do you say? What do you do? Well, standing up is the starting point.
Okay, you've got a choice. You can start showing up 3 out of 5 days a week, just as you are scheduled now to do. Or, you can stand up and stand out.
If you want to keep that job, and get back to full time work sooner, make sure the law firm realizes that you can face adversity and overcome it. You need to prove you will not quit. You need to show the law firm that you value your work more than even the firm does. Don't take the loss lightly. You want a job? Fight for it.
Ask your employer if you can keep working your regular schedule and make it clear that they only have to pay you for the days the law firm can afford right now. If you understand that times are tough, then tell the firm that you understand but you value your work and don't want to abandon your clients or serve them less than what they need and that you're willing to do whatever it takes to support the firm. Note that we didn't say "you're willing to do whatever it takes to keep your job."
The reality is that you get to keep your job by supporting the firm.
The firm is concerned about tough times too and your willingness to help the firm get through tough times and still be successful is, itself, proof of your remarkable value to the law firm. Associate attorneys come and go. The ones the firm wants to keep are those who are dedicated as much to the firm as to the profession itself. Of course, all this assumes that you like where you work. If you don't, then take the cut in hours as an opportunity to move on and find a job that fits you better.
But if your hours were cut and you like your job, then start thinking about what you can do to get your employer back on its economic feet because that is what will get you back to full time work. More importantly, in the process of it you will prove to your law firm that there is no associate attorney who is willing to work as hard, work as long, work as loyally, to help the firm achieve its success.
And why should you want the law firm to succeed? Because, at the end of the day, if the firm doesn't succeed, neither do you. And if you help the law firm increase its success, then you will succeed too.
A young attorney, out of law school only a few years, faced tough news and asked us how to deal with it. After working his first two years after passing the bar exam, all of it in the same mid-size law firm, he received news recently that his full time job was going part time. With student loans looking over his shoulder, he could only start calculating the hard economic reality of losing 40% of his income. His 5 day a week job was cut to 3 days, with no guarantee it won't get cut more in the coming weeks or months.
"I can't live on what I make now but I don't want to lose my job. I like what I do and where I do it but there's no guarantee it won't get worse. What do I do now?" His questions echo the fears of many young attorneys. Are you in that spot? Well, there's a few things to keep in mind.
First, keep in mind that most law firms don't like cutting associates or cutting their hours. The cost of replacing a trained associate, even one with only a few years of experience, is horrible for the law firm. The fear of losing a good young associate is as real for the law firm as is the fear of losing employment for the young associate. If cutting hours was avoidable, it would have been avoided. But the simple fact is that in an economic downturn, sooner or later the loss of business affects even the best broad-based, diversified law firm too. It may not be consoling, but consider yourself lucky you didn't get your hours cut sooner.
Second, get a grip on the present and move on. Okay, so you've got less income next week than you had last week. Figure out what you have to do to deal with it. Don't dwell on it and don't commiserate with others who are sulking and doing nothing about it. That won't help. Find a way to adjust your living expenses first. Don't just give up and start looking for another job. First, the job market is crowded with all those associates who lost their job, or got their hours cut, before you. It's tough. Second, even if you are only working part time, that's better than no time. Don't walk away from a job you like during tough times if you really want to keep it. Find a way to budget yourself by either reducing your costs of living or increasing your money to live with. In other words, look for a part time job to supplement your law work. That may be hard to find too, but it's likely better than walking away and hoping for the best.
Third, stand up. That's right. Stand up. The reason your hours were cut is probably because you were "sitting down" in the crowd. If you want to be the last person they cut, make yourself so valuable to the law firm that they can't afford to cut your hours and risk your departure. But if your hours were already cut, then turn the situation around. Show that you have a value they don't want to lose. So, how do you do that? What do you say? What do you do? Well, standing up is the starting point.
Okay, you've got a choice. You can start showing up 3 out of 5 days a week, just as you are scheduled now to do. Or, you can stand up and stand out.
If you want to keep that job, and get back to full time work sooner, make sure the law firm realizes that you can face adversity and overcome it. You need to prove you will not quit. You need to show the law firm that you value your work more than even the firm does. Don't take the loss lightly. You want a job? Fight for it.
Ask your employer if you can keep working your regular schedule and make it clear that they only have to pay you for the days the law firm can afford right now. If you understand that times are tough, then tell the firm that you understand but you value your work and don't want to abandon your clients or serve them less than what they need and that you're willing to do whatever it takes to support the firm. Note that we didn't say "you're willing to do whatever it takes to keep your job."
The reality is that you get to keep your job by supporting the firm.
The firm is concerned about tough times too and your willingness to help the firm get through tough times and still be successful is, itself, proof of your remarkable value to the law firm. Associate attorneys come and go. The ones the firm wants to keep are those who are dedicated as much to the firm as to the profession itself. Of course, all this assumes that you like where you work. If you don't, then take the cut in hours as an opportunity to move on and find a job that fits you better.
But if your hours were cut and you like your job, then start thinking about what you can do to get your employer back on its economic feet because that is what will get you back to full time work. More importantly, in the process of it you will prove to your law firm that there is no associate attorney who is willing to work as hard, work as long, work as loyally, to help the firm achieve its success.
And why should you want the law firm to succeed? Because, at the end of the day, if the firm doesn't succeed, neither do you. And if you help the law firm increase its success, then you will succeed too.
Ronald L. Burdge
Helping attorneys achieve success, every day, since 1978.
Monday
Reinventing Yourself: Where the Jobs Are Today
San Francisco is hiring computer game testers. The CIA is hiring "analysts" for its spy programs. California wineries are hiring workers. "Green" buildings are abounding so laborers are needed. In Florida, boat captains are needed for charter boats and in the oil fields.
Okay, none of this has anything to do with law. Or does it?
Many graduating seniors from the '09 class are still unemployed. Law students entering their final year and graduating in '10 may face the same dearth of opportunities. Heck, even well established law firms are struggling. So it's not surprising to see some graduates opting for non traditional work, both inside and outside the legal arena.
There's nothing "bad" to striking out on your own in such hard times. There's lots of great examples of others who left their traditional training and backgrounds to find new work during an economic downturn. Indeed a hugh chunk of the current Fortune 500 companies got their start during an economic downturn.
Thomas Edison did it. The man who founded Federal Express (Fedex) did it during an economic downturn. The stories are actually legion and great examples of creativitiy.
If your job prospects are suffering, now may be the perfect time to figure out what you love to do and go do it. In fact, it may be the very best time.
One place to get started could be the Alternative Lawyer Jobs web site here: http://www.alternativelawyerjobs.com/ .
There's also a great article written by Michelle Borchanian posted by the Michigan Bar, titled "Getting from Here to There: A Lawyer's Non-Traditional Legal or Non-Legal Job Search" here: http://www.michbar.org/journal/article.cfm?articleid=679&volumeid=53.
A little web surfing and you'll undoubtedly come up with more resources.
Okay, none of this has anything to do with law. Or does it?
Many graduating seniors from the '09 class are still unemployed. Law students entering their final year and graduating in '10 may face the same dearth of opportunities. Heck, even well established law firms are struggling. So it's not surprising to see some graduates opting for non traditional work, both inside and outside the legal arena.
There's nothing "bad" to striking out on your own in such hard times. There's lots of great examples of others who left their traditional training and backgrounds to find new work during an economic downturn. Indeed a hugh chunk of the current Fortune 500 companies got their start during an economic downturn.
Thomas Edison did it. The man who founded Federal Express (Fedex) did it during an economic downturn. The stories are actually legion and great examples of creativitiy.
If your job prospects are suffering, now may be the perfect time to figure out what you love to do and go do it. In fact, it may be the very best time.
One place to get started could be the Alternative Lawyer Jobs web site here: http://www.alternativelawyerjobs.com/ .
There's also a great article written by Michelle Borchanian posted by the Michigan Bar, titled "Getting from Here to There: A Lawyer's Non-Traditional Legal or Non-Legal Job Search" here: http://www.michbar.org/journal/article.cfm?articleid=679&volumeid=53.
A little web surfing and you'll undoubtedly come up with more resources.
Ron Burdge
Helping attorneys do their best, at whatever they decide to do, since 1978.
Tuesday
How to Protect Your Law Firm from Embezzlers
Fraud is on the increase, reports the Association of Certified Fraud Examiners (ACFE), and leading the pack is the category of occupational fraud. That means employee fraud and in a law office that can cost you big time, in both dollars and client relations.
The ACFE is the world's largest anti-fraud organization, dedicated to reducing business fraud. In their 2008 Report to the Nation, they found that nearly a trillion dollars of business annual revenues were siphoned off due to fraud. Now, their newest report indicates the level of business fraud is rising.
Driven by hard economic times, a recent ACFE national report says that instances of fraud have increased in the last year over past years and they report it is expected to continue to increase.
The report, "Occupational Fraud: A Study of the Impact of an Economic Recession", blames the increase on "intense financial pressures during the economic crisis." The mere existence of an opportunity for fraud to occur was not enough, according to ACFE.
Occupational fraud includes law firm embezzlement. The National Law Journal recently reported on a host of examples of law firm embezzlements, which are more commonly commited by support staff, usually those in charge of check writing or other accounting tasks that involve firm funds. Often, the victimized law firm doesn't even report the embezzlement. Almost always, the firm owes a fiduciary duty to its clients and partners can end up having to make up the loss themselves.
It all heightens the importance of careful hiring and monitoring of employees, particularly those charged with money responsibilities. Most law firm staffers are hard-working and honest to a fault. But in every barrel, there's probably a bad apple somewhere.
Still, there are things that can be done to protect a firm from financial loss or to catch it before it becomes huge. Here are a few tips.
1. hire carefully, check references carefully and require consent to a criminal background check. After all, if the thief doesn't get in the door, you're ahead of the problem. Sometimes just knowing that you are going to do a background check can discourage a bad applicant.
2. require 2 signatures on checks. The vast majority of employee embezzlement occurs because one person has check writing authority and that just makes it too easy.
3. review all accounts monthly. A partner who has no check writing involvement should review account statements monthly and very, very carefully. It takes more time to be careful, but only minutes to lose thousands. Catching a problem early can't end the problem before it becomes devastating to the firm. And change your reviewer periodically too so that all partners share the responsibility. You don't have to know how to balance a check book to wonder why the same person's name keeps showing up in the payee column or other regularities.
4. account reviews should alternately be private and with the check writer. One month the partner should request the account records from the check writer and do a private closed door review by himself or herself. The next month, the check writer should sit down with the partner and go through the review together.
5. change check writers periodically. Many law firms leave the same person in charge of firm accounts for years or even decades. Changing account control just simply helps to keep people honest.
6. watch for signs of drug or alcohol or gambling problems with key employees. Those are frequently involved as causative factors in employee theft.
7. don't count on your accountant to catch anything. Accountants just add numbers up. Generally they can't tell you anything about the entries being made themselves. But an accountant can tell you if something looks out of line. For instance, they may spot too many or too large a "Misc" expense category.
These are just a few tips that come to mind. In these times, economic pressures are everywhere. With a few precautions you can sharply reduce the dangers to your firm.
Burdge Law Office
Helping lawyers help their clients since 1978.
Monday
Getting Free Case Law
Westlaw and Lexis aren't cheap, but they offer things you can't get elsewhere. But what if you don't need all that high-powered help? Maybe you just want the basics. Law Technology News had a recent article on some free case law resources and we added a couple of our own too.
Here's some web sites where basic legal research can be done to find cases to help your client for free or near-free.
www.Casemaker.us is available as a benefit for many state bar association memberships, but if you aren't a member, there are some other sources to tap. Everyone has their own preference but here's some to take a look at:
www.Findacase.com
www.lawguru.com
www.Findlaw.com
www.precydent.com
www.lexisone.com
www.plol.org , the Public Library of Law
www.altlaw.org
www.justia.com
www.megalaw.com
There are others out there, but if your budget doesn't allow a paid service for your research, these are some places to start out.
Here's some web sites where basic legal research can be done to find cases to help your client for free or near-free.
www.Casemaker.us is available as a benefit for many state bar association memberships, but if you aren't a member, there are some other sources to tap. Everyone has their own preference but here's some to take a look at:
www.Findacase.com
www.lawguru.com
www.Findlaw.com
www.precydent.com
www.lexisone.com
www.plol.org , the Public Library of Law
www.altlaw.org
www.justia.com
www.megalaw.com
There are others out there, but if your budget doesn't allow a paid service for your research, these are some places to start out.
Ron Burdge
Helping lawyers win cases since 1978.
Thursday
Palm, iPhone, & DataViz Documents to Go
If you've owned a Palm for years and thoroughly enjoyed using DataViz Documents to Go, then loving the iPhone and still toting your Palm has been irritating. Well, the irritation may be coming to an end.
DTG was considered by many to be the Cadillac (okay, maybe we should say Lexus now) of the word processing programs for the Palm and it was one of the reasons the Palm was such a success, especially with lawyers. You could take your document and load it on your palm and then edit it on the road using DTG. Then you could print it out and you were ready to go.
iPhone, on the other hand, was static with documents.
There was no editing on the iPhone itself and you had to use internet sources or tricky tactics to use the iPhone not to actually edit on the phone but to go on the internet and edit documents there. That was a hassle because it meant figuring out how to upload the doc, use the iPhone to get to it, edit it there, and then wait until you returned to the office to be able to do much about it. Hassle, hassle, hassle.
Well, DataViz says (on their Twitter, click here) that they have just sent the final DTG app to Apple for approval and posting to the store. In a few days you could have DTG on your iPhone.
It still isn't clear what all the app will do but it's logical that DataViz will want it to be as much like the "normal" version as possible. You can bet that means that you will be able to view Word, Excel and likely PowerPoint files on your iPhone. The technical challange deals with being able to edit any of those. The Word documents very likely will be editable on your iPhone and maybe even an Excel spreadsheet, but PowerPoint just may not be ready for prime time yet. We'll have to wait a few days to see.
Still, DTG on an iPhone is long overdue. They aren't talking price yet but whatever it is will likely be no more than the Palm version and probably much less, given the average app price. Regardless of the price though, we'll very likely order up DTG asap. QuickOffice just never was my cup of tea.
Meanwhile, iPhone plans to reduce its third operating system Summer 2009 and intentions are to enable some significant editing abilities and that undoubtedly is part of what pushed DataViz to get DTG out the door. If they wait too long, the market share projections for DTG could well change as other products come online.
When we get the new DTG, we'll be able to see what's real and how much of the old DTG is lost like vaporware. For now, cross your fingers and get your credit card ready.
Ron Burdge
Helping lawyers helping clients since 1978.
Great Site for Free Software Utilities
Downloadpedia is a great site we just stumbled upon. We all use software to do our work and it's worth a look to find a lower cost alternative to the higher cost commercial programs if you can.
They bill themselves as a free content software encyclopedia and that's pretty much what it is, with loads of free software and utilities that is largely open source, including iPod software too. Some of it is deliberately tagged as "for the experienced user" so you have a warning of what you might be getting into, but most of it is for the average, everyday user who just wants to get something done.
One of their best projects, they've put together a list of 50 great free utility programs that you are bound to find something on you can use. Everything from adware and spy programs to website rippers and pdf and more programs in between.
There's even a page with hundreds of free icons and buttons that can be quickly and easily copied for your use in powerpoints or other projects.
Highly recommended. It's worth checking out.
They bill themselves as a free content software encyclopedia and that's pretty much what it is, with loads of free software and utilities that is largely open source, including iPod software too. Some of it is deliberately tagged as "for the experienced user" so you have a warning of what you might be getting into, but most of it is for the average, everyday user who just wants to get something done.
One of their best projects, they've put together a list of 50 great free utility programs that you are bound to find something on you can use. Everything from adware and spy programs to website rippers and pdf and more programs in between.
There's even a page with hundreds of free icons and buttons that can be quickly and easily copied for your use in powerpoints or other projects.
Highly recommended. It's worth checking out.
Ron Burdge
Helping Consumer Lawyers Helping Their Clients Since 1978
Tuesday
SLAPP Suits Get SLAPPed Back
Picture this. Your client has a legitimate claim and negotiations are fruitless so you file a lawsuit. Then, the defendant files a creative counterclaim that you know has no real legitimate basis.
So why did they file it? To SLAPP your client, that's why.
Merchants and businesses have figured out that they can sometimes get what they want by using (some say abusing) the very system that the consumer is using: the Courts.
A socially unhealthy way to silence critics of any endeavor is to hit them with a lawsuit that can tie them up, both their time and their resources. Such lawsuits have been called a Strategic Lawsuit Against Public Participation ("SLAPP") and the purpose is nothing more than intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Fighting a SLAPP lawsuit is not easy and not cheap, and that is often the very purpose of filing it.
Winning the lawsuit is often not real goal of a SLAPP lawsuit at all. The merchant's goals are accomplished if the consumer-defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons their own cause in exchange for having the SLAPP lawsuit dropped. A SLAPP may also intimidate others from taking the same course.
Well, finally there's a new case that says you can slap back. It comes out of New Jersey and may provide some relief to this sort of vindictive and abusive lawsuit. The case is James LoBiondo Jr v Grace Schwartz, decided May 14, 209, Case A-86/87-07. In a long-running series of lawsuits between the parties, the high court has now made it clear that people who file SLAPP lawsuits can get SLAPPed back.
LoBiondo says that the common law cause of action for malicious use of process can be a legitimate claim by a SLAPP suit victim. In some states it's called abuse of process. To win such a claim the victim has to prove a complaint was filed without probable cause, that was caused by malice, that ended in favor of the victim, and that the victim suffered "a special grievance." That last part is a little puzzling, but the Court indicates it will use some flexibility to determine what a special grievance may be.
The right of free speech or to petition the government, if actually infringed, will satisfy the special grievance element of the claim, according to the Court.
The advice of counsel defense is available to defend a SLAPP suit but when asserted, the victim may also sue the attorney too, but there is the additional need to prove the attorney's primary motive was an improper one.
The New Jersey Court adopted the Restatement 3rd of the Law Governing Lawyers and the Restatement 2nd of Torts to lay out the principles and elements of the claims the victim can use.
The bottom line is that SLAPP suits have been used by some parties to intimidate and plaintiffs and prospective plaintiffs from asserting their rights and now the Courts are finding such lawsuits can trigger abuse of process claims back against the abuser. That's only fair.
The purpose of the law should not be to provide the rich and powerful with a means to silence their critics. Such abusers of the legal system should themselves become the target of "SLAPP-back" lawsuits until they stop.
So why did they file it? To SLAPP your client, that's why.
Merchants and businesses have figured out that they can sometimes get what they want by using (some say abusing) the very system that the consumer is using: the Courts.
A socially unhealthy way to silence critics of any endeavor is to hit them with a lawsuit that can tie them up, both their time and their resources. Such lawsuits have been called a Strategic Lawsuit Against Public Participation ("SLAPP") and the purpose is nothing more than intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Fighting a SLAPP lawsuit is not easy and not cheap, and that is often the very purpose of filing it.
Winning the lawsuit is often not real goal of a SLAPP lawsuit at all. The merchant's goals are accomplished if the consumer-defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons their own cause in exchange for having the SLAPP lawsuit dropped. A SLAPP may also intimidate others from taking the same course.
Well, finally there's a new case that says you can slap back. It comes out of New Jersey and may provide some relief to this sort of vindictive and abusive lawsuit. The case is James LoBiondo Jr v Grace Schwartz, decided May 14, 209, Case A-86/87-07. In a long-running series of lawsuits between the parties, the high court has now made it clear that people who file SLAPP lawsuits can get SLAPPed back.
LoBiondo says that the common law cause of action for malicious use of process can be a legitimate claim by a SLAPP suit victim. In some states it's called abuse of process. To win such a claim the victim has to prove a complaint was filed without probable cause, that was caused by malice, that ended in favor of the victim, and that the victim suffered "a special grievance." That last part is a little puzzling, but the Court indicates it will use some flexibility to determine what a special grievance may be.
The right of free speech or to petition the government, if actually infringed, will satisfy the special grievance element of the claim, according to the Court.
The advice of counsel defense is available to defend a SLAPP suit but when asserted, the victim may also sue the attorney too, but there is the additional need to prove the attorney's primary motive was an improper one.
The New Jersey Court adopted the Restatement 3rd of the Law Governing Lawyers and the Restatement 2nd of Torts to lay out the principles and elements of the claims the victim can use.
The bottom line is that SLAPP suits have been used by some parties to intimidate and plaintiffs and prospective plaintiffs from asserting their rights and now the Courts are finding such lawsuits can trigger abuse of process claims back against the abuser. That's only fair.
The purpose of the law should not be to provide the rich and powerful with a means to silence their critics. Such abusers of the legal system should themselves become the target of "SLAPP-back" lawsuits until they stop.
Ronald Burdge
Helping consumer advocates win cases since 1978.
Arbitrators Gone Wild
Binding Mandatory Arbitration, bma, has gotten rave reviews and acidic condemnations. What you think depends on which side of the argument you are on. But one thing is for sure, it's going to be tougher to get around now with Hall St. Assocs. LLC v Mattell Inc (2008), 128 S. Ct. 1396 (Mar. 25, 2008), a case that hasn't garnered as much tought as it probably deserves.
Before Hall St, there was some argument that an attorney could make that if an arbitrator ignored the law in making their decision, then the decision itself was flawed and could be attacked in court. Not so, now. You think it was bad before? It could get much worse.
Now, the Supreme Court has basically held that ignoring the law is not an appealable ground to attack an arbitrator's decision in court.
Before Hall St, Wilco v Swan (1953), 346 US 427, left some room for doubt and some attorneys successfully argued (though it was not often) that if an arbitrator ignored the law and their decision was actually contrary to applicable law, then the decision was flawed to the point that a court could set it aside. Now? Simple: you're stuck.
What the Supreme Court seems to have concluded, in its "supreme" wisdom, is that no matter what the arbitrator does or says about the law, their decision is "right" even if they get it all wrong.
Now it seems more likely than ever that no matter how badly the arbitrator miscontrues or misapplies the law, even to the point of being totally opposite to what the law says, that's tough. It seems like an extraordinarily harsh result, even for a Court that seems to love arbitration as a mechanism that is little more, in reality, than a private system for "justice."
Still, some courts have said that ignoring the law may actually be "where the arbitrators exceeded their powers" and can justify vacating a bad arbitration result. Comedy Club Inc. v Improv W Assocs. (9th Cir 2009), 553 F.3d 1277, 1290, in spite of Hall St.
The result? Arbitration decisions are likely to be upheld even if the arbitrator was mentally "out to lunch on the law" when the decision was made, unless you're in the 9th Circuit. For the rest of the US? It's still anybody's guess.
For now, with a little help from the Hall St., it looks like it's time for arbitrators gone wild --- and so long as the courts are enthralled with the notion that a secret private form of justice can somehow still be justice, then there's little we can do about it.
The moral of the story? Make sure you trust your arbitrator because unless they are totally drunk or schizoid, whatever they decide is probably what you'll be stuck with.
Before Hall St, there was some argument that an attorney could make that if an arbitrator ignored the law in making their decision, then the decision itself was flawed and could be attacked in court. Not so, now. You think it was bad before? It could get much worse.
Now, the Supreme Court has basically held that ignoring the law is not an appealable ground to attack an arbitrator's decision in court.
Before Hall St, Wilco v Swan (1953), 346 US 427, left some room for doubt and some attorneys successfully argued (though it was not often) that if an arbitrator ignored the law and their decision was actually contrary to applicable law, then the decision was flawed to the point that a court could set it aside. Now? Simple: you're stuck.
What the Supreme Court seems to have concluded, in its "supreme" wisdom, is that no matter what the arbitrator does or says about the law, their decision is "right" even if they get it all wrong.
Now it seems more likely than ever that no matter how badly the arbitrator miscontrues or misapplies the law, even to the point of being totally opposite to what the law says, that's tough. It seems like an extraordinarily harsh result, even for a Court that seems to love arbitration as a mechanism that is little more, in reality, than a private system for "justice."
Still, some courts have said that ignoring the law may actually be "where the arbitrators exceeded their powers" and can justify vacating a bad arbitration result. Comedy Club Inc. v Improv W Assocs. (9th Cir 2009), 553 F.3d 1277, 1290, in spite of Hall St.
The result? Arbitration decisions are likely to be upheld even if the arbitrator was mentally "out to lunch on the law" when the decision was made, unless you're in the 9th Circuit. For the rest of the US? It's still anybody's guess.
For now, with a little help from the Hall St., it looks like it's time for arbitrators gone wild --- and so long as the courts are enthralled with the notion that a secret private form of justice can somehow still be justice, then there's little we can do about it.
The moral of the story? Make sure you trust your arbitrator because unless they are totally drunk or schizoid, whatever they decide is probably what you'll be stuck with.
Ron Burdge
Helping Lawyers Help Their Clients Since 1978.
A Projector in Your Cell Phone
We have a projector here for times when we need to go to rural areas and need it. It’s about 4x4x12 in size. Compared to what is coming out now and in the next few months, it’s a behemoth. About a year ago I heard these were in development. Well, now they are in the production and near-production stage. 
The latest thing is projectors that are built into your cell phones. Samsung and others have them and there are competing technologies. Here’s a video that can make any powerpoint user salivate at the expectations and possibilities: http://spectrum.ieee.org/video?id=921
To carry a projector inside your cell phone…the ultimate in convenience. What an unexpected stunner that could be in closing arguments.
The latest thing is projectors that are built into your cell phones. Samsung and others have them and there are competing technologies. Here’s a video that can make any powerpoint user salivate at the expectations and possibilities: http://spectrum.ieee.org/video?id=921
To carry a projector inside your cell phone…the ultimate in convenience. What an unexpected stunner that could be in closing arguments.
Ronald Burdge
Helping Attorneys Win Cases Since 1978
Wednesday
Free Federal Case Law Source Online
From time to time we see something new that's worth a look. This is one of those times.
If you're a young attorney who can't afford to get on Pacer or Lexis or Westlaw to research case law, there are lots of sources out there on the net, including Findlaw, Justia and others. There's a new one worth a look too.
www.websupp.org is a free collection of federal District Court case decisions that can be useful. It fronts a simple search device, apparently based on Google, that only requires a google-type input to yield results.
The database is apparently about a quarter million written opinions and is kept up to date. We received an appellate decision from the 6th Circuit just a few days ago and by doing a simple subject search at Websupp the decision popped up in a fraction of a second.
If you can afford Lexis or Westlaw, great. If not, take a look at Websupp. The price is pretty hard to beat.
If you're a young attorney who can't afford to get on Pacer or Lexis or Westlaw to research case law, there are lots of sources out there on the net, including Findlaw, Justia and others. There's a new one worth a look too.
www.websupp.org is a free collection of federal District Court case decisions that can be useful. It fronts a simple search device, apparently based on Google, that only requires a google-type input to yield results.
The database is apparently about a quarter million written opinions and is kept up to date. We received an appellate decision from the 6th Circuit just a few days ago and by doing a simple subject search at Websupp the decision popped up in a fraction of a second.
If you can afford Lexis or Westlaw, great. If not, take a look at Websupp. The price is pretty hard to beat.
Ronald Burdge
Helping Attorneys Win Cases Since 1978
Thursday
Ethics: Can You Agree Not to Sue the Defendant Again?
It keeps coming up. Every once in awhile you get ready to settle a case and all of a sudden, when the release comes up, the defendant wants to include something that says you (as the attorney) can't sue the defendant again for some other client in the future. Can you do that?
We first saw this issue arise nearly 20 years ago and it still comes up. Again and again. Texas attorney Steve Gardner gave a great presentation in Portland, Oregon, at the 2008 NACA-NCLC Consumer Rights Litigation Conference, on this (and other) ethical issues.
What surprises us is that this issue keeps coming up again and again.
The answer isn't that tough. But apparently it's hard to accept and it's a very common problem.
Steve says it best. "Assuming you don't have such another plaintiff, can you make this agreement? Oh, hell, no."
Steve's presentation pointed out, with specific citations, that it is unethical for an attorney to agree to limit his/her future representation of victims of the same defendant. It's unethical to make such an agreement. More importantly, it's unethical to even propose such an offer.
It's really very simple. They can't ask. You can't agree.
As Steve points out, the basic concept is that "a client has the right to choose the best lawyer for the job and by taking yourself out of the mix, you are potentially denying a prospetitve, but unknown, client that option."
One attorney does not have the right to ask another attorney to agree to a settlement that requires their opposing counsel to agree in advance not to take on another case against the same defendant. And the second attorney does not have the right to agree to it either.
This kind of settlement means you are taking money now to give up your right to practice law for a future unknown client who may need your help. It's just plain wrong.
Surprisingly, though, it still keeps coming up. Time and again, defense attorneys try to get plaintiff's attorneys to agree to it. Why? Because their client wants to take Mickey Mantle out of the game. Mickey Mantle? That's you. You know, the only competent attorney who knows the defendant and how they play the game.
So, when your opposing counsel wants to offer you a very good settlement for your client and then adds that they want to make sure you aren't going to represent someone else against their client? Just say no.
You can't do it. As Steve Garner says, "it's just that simple."
We first saw this issue arise nearly 20 years ago and it still comes up. Again and again. Texas attorney Steve Gardner gave a great presentation in Portland, Oregon, at the 2008 NACA-NCLC Consumer Rights Litigation Conference, on this (and other) ethical issues.
What surprises us is that this issue keeps coming up again and again.
The answer isn't that tough. But apparently it's hard to accept and it's a very common problem.
Steve says it best. "Assuming you don't have such another plaintiff, can you make this agreement? Oh, hell, no."
Steve's presentation pointed out, with specific citations, that it is unethical for an attorney to agree to limit his/her future representation of victims of the same defendant. It's unethical to make such an agreement. More importantly, it's unethical to even propose such an offer.
It's really very simple. They can't ask. You can't agree.
As Steve points out, the basic concept is that "a client has the right to choose the best lawyer for the job and by taking yourself out of the mix, you are potentially denying a prospetitve, but unknown, client that option."
One attorney does not have the right to ask another attorney to agree to a settlement that requires their opposing counsel to agree in advance not to take on another case against the same defendant. And the second attorney does not have the right to agree to it either.
This kind of settlement means you are taking money now to give up your right to practice law for a future unknown client who may need your help. It's just plain wrong.
Surprisingly, though, it still keeps coming up. Time and again, defense attorneys try to get plaintiff's attorneys to agree to it. Why? Because their client wants to take Mickey Mantle out of the game. Mickey Mantle? That's you. You know, the only competent attorney who knows the defendant and how they play the game.
So, when your opposing counsel wants to offer you a very good settlement for your client and then adds that they want to make sure you aren't going to represent someone else against their client? Just say no.
You can't do it. As Steve Garner says, "it's just that simple."
Tuesday
What it Takes to Be a Great Trial Lawyer
One of the remarkable advantages of being a member of a multitude and variety of professional organizations is that you can be exposed to a broad spectrum of people who have great ideas. That naturally leads to a better understanding of people.
As a trial attorney, that only helps us do our job better because understanding people is the key to human interaction, which is the heart of what a trial attorney deals with everyday.
At the same time, what it takes to be a great trial lawyer is more than understanding human interaction, although just knowing that much can go a long way toward professional success. Understanding the mechanics of the legal process fulfills the equation of being a great lawyer.
That’s a lesson learned, in a roundabout way, from Nashville attorney John Day. A remarkable trial attorney and gifted speaker, his blog on all things related to Tort Law (quite aptly titled Day On Torts) is worth a regular read, no matter what area of law you may practice. He knows his stuff.
Day has written a series of articles collectively titled "What it Takes to Be a Great Trial Lawyer" and the article is terrific. I won’t spoil the fun of reading it (you can find the entire series on the web and also in the Fall 2008 Ohio Trial published by the Ohio Association for Justice), but here are the 19 points that make up Day's List:
1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.
2. A great trial lawyer has a solid knowledge of the law of evidence.
3. A great trial lawyer has a solid knowledge of the law of civil procedure.
4. A great trial lawyer takes time to think.
5. A great trial lawyer maintains a reasonable caseload.
6. A great trial lawyer does not cheat.
7. A great trial lawyer learns the facts.
8. A great trial lawyer understands the importance of depositions.
9. A great trial lawyer has the ability to pull the trigger.
10. A great trial lawyer has the ability to organize.
11. A great trial lawyer understands the need to be true to one’s self.
12. A great trial lawyer has the courage to tell the client the truth.
13. A great trial lawyer has the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.
14. A great trial lawyer has a passion for the work.
15. A great trial lawyer has an understanding of the human condition and what it takes to motivate jurors to action.
16. A great trial lawyer has an appreciation for the discretion vested in the trial judge.
17. A great trial lawyer has the willingness and ability to delegate.
18. A great trial lawyer is blessed with "luck."
19. A great trial lawyer knows that he or she is only as good as the next verdict.
His list is, as he has said, "what I must do to become the lawyer I want to be."
There is not a single thing on Day's list that should be skipped by anyone wanting to master the craft of being a trial lawyer. And there certainly isn't much to add either. Mastering Day's list can take a lifetime, but what a life's time it would be.
As a trial attorney, that only helps us do our job better because understanding people is the key to human interaction, which is the heart of what a trial attorney deals with everyday.
At the same time, what it takes to be a great trial lawyer is more than understanding human interaction, although just knowing that much can go a long way toward professional success. Understanding the mechanics of the legal process fulfills the equation of being a great lawyer.
That’s a lesson learned, in a roundabout way, from Nashville attorney John Day. A remarkable trial attorney and gifted speaker, his blog on all things related to Tort Law (quite aptly titled Day On Torts) is worth a regular read, no matter what area of law you may practice. He knows his stuff.
Day has written a series of articles collectively titled "What it Takes to Be a Great Trial Lawyer" and the article is terrific. I won’t spoil the fun of reading it (you can find the entire series on the web and also in the Fall 2008 Ohio Trial published by the Ohio Association for Justice), but here are the 19 points that make up Day's List:
1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.
2. A great trial lawyer has a solid knowledge of the law of evidence.
3. A great trial lawyer has a solid knowledge of the law of civil procedure.
4. A great trial lawyer takes time to think.
5. A great trial lawyer maintains a reasonable caseload.
6. A great trial lawyer does not cheat.
7. A great trial lawyer learns the facts.
8. A great trial lawyer understands the importance of depositions.
9. A great trial lawyer has the ability to pull the trigger.
10. A great trial lawyer has the ability to organize.
11. A great trial lawyer understands the need to be true to one’s self.
12. A great trial lawyer has the courage to tell the client the truth.
13. A great trial lawyer has the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.
14. A great trial lawyer has a passion for the work.
15. A great trial lawyer has an understanding of the human condition and what it takes to motivate jurors to action.
16. A great trial lawyer has an appreciation for the discretion vested in the trial judge.
17. A great trial lawyer has the willingness and ability to delegate.
18. A great trial lawyer is blessed with "luck."
19. A great trial lawyer knows that he or she is only as good as the next verdict.
His list is, as he has said, "what I must do to become the lawyer I want to be."
There is not a single thing on Day's list that should be skipped by anyone wanting to master the craft of being a trial lawyer. And there certainly isn't much to add either. Mastering Day's list can take a lifetime, but what a life's time it would be.
Ron Burdge
http://www.TheLawCoach.com/
http://www.TheLawCoach.com/
Helping Trial Lawyers Help People Since 1978
Sunday
Reptiles in the Jury Box
There's a new book coming out in May or June 2009 that you'll want to read. It's about reptilian thinking, and more, sitting in the jury box.
Don Keenan and David Ball have both contributed great thoughts to the cause of the lawyer's craft. Now they have honed their skills on understanding and coping with the subconscious process that works inside the mind of jurors.
Taking cues from such diverse sources as Karl Rove's tactics and teachings, Claude Rapaille's marketing concepts, Freud's analysis of the subconscious, and the strategies of New York's Moe Levine, these trial masters have penned a book titled "Reptile: The 2009 Manual of the Plaintiff's Revolution".
It promises to be a new approach and a new way of thinking to deal with the issues that tort reform (or, perhaps more accurately, but controversially, referred to as tort "deform"). Of course Barnes & Noble is taking preorders, along with Balloon Press.
Keenan is no trial slouch, either. He's racked up 142 million dollar + verdicts and settlements, a remarkable track record. Among his works, Ball has written what many people strongly believe to be the Bible on recovering damages, "David Ball on Damages." These are two powerhouse minds.
From everything said so far about it, "Reptile" promises to teach a great many lessons about the real workings inside the Jury Box, something that any good lawyer needs to understand more about.
This promises to be a book to get, read, then study hard.
Wednesday
Survival Mode & 5 Places to Start to End Up Doing Well So You Can Do Good
None of the news is good. A lot of it is downright scairy. If you haven’t kicked into a cost-cutting survival mode yet, you better start thinking about it. Take a look at just the bad news in the Rv business … in the last two days alone:
- MARY ESTHER, Fla. -- Leisure Tyme RV closed its doors today after 31 years in operation.
- Elkhart, Ind.-based Atwood, which designs and manufactures an array of products for recreational vehicles, has closed it’s West Union Iowa 120-employee plant, a year after closing one of its Elkhart plants which put 150 people out of work.
- BATESVILLE, Ind. -- Lee's RV Center filed for bankruptcy protection Feb. 12.
- LAUGHLIN, Nev. -- Laughlin, Nevada’s largest RV dealership, Paul Evert's RV Country, announced last month that they plan to close their doors by the end of April.
- GOSHEN –– Dutchmen laid off about 100 workers Friday.
- RIVERSIDE, Calif. -- Fleetwood RV closed its Riverside service center.
- STUART, Fla. -- Heron Run, a luxury motorcoach community planned near Vero Beach, Fla., announced last week that it had put its construction schedule on hold for at least six months.
- And on Monday? Over at Fleetwood the common stock now has a par value of only one penny. Folks, you can’t get much cheaper than that.
For manufacturers, it means they are holding on tighter than ever to their cash and that includes money available for settlements. You can expect prolonged delays in everything, if only to keep the money in their own pocket as long as they can. You can expect the usual tactics associated with more stalling and delay, and even more creative tactics as defense attorneys find themselves also trying to find ways to create more billable time themselves.
And what does it mean for consumer lawyers and their clients? More worry than ever over cash flow. You can expect the downward spiral of cash flow to tilt sharper down and fall even deeper. Many silk stocking law offices have already seen the defense side’s downward spiral cause layoffs to slash costs. Last week’s Law Journal had a front page article on the economics of large law firm layoffs and concluded the most cost-effective way for a firm to save money is to axe employees, the higher paid ones first.
For average consumer law firms, the crunch is real and ominous.
Firms deep into contingency fee agreements will face a killer cash crunch and already are. The “mill” firms who several years ago ramped up to “super size me” status are likely to find themselves in a supersize financial crunch just as easily as the small consumer law firm finds itself in a crunch of its own comparable size.
Switching to non contingency work is hard for all such firms, but vital if they are to survive to help consumers another day. If you haven’t started the switch yet, better start thinking about it real soon. The old saying about handling a blend of paying and contingent cases has never been truer and never more critical. It may be wish to consider throwing overboard the contingency model altogether for awhile and going to a blended "hybrid" fee model where the client pays a reduced hourly rate for your time as expended and the rest of your hourly rate is due at the end of the case, but watch your ethics requirements carefully.
Start looking to curb costs even deeper than you have been doing. Predictions are for the economy to be sour for most of the coming year, if we are lucky.
So how do you downsize and survive? There are competing thoughts. Here’s some.
Tactical reductions? Hiring freezes, reduce travel, budget cuts? That can help, but in many firms a lot of that has already been done. The economy isn’t getting better anytime soon so what’s next?
Across the board reductions in all expenses? Sure, it sounds fair but that can end up cutting too much in one place and not enough in another place.
Can continuous monitoring and improvement of expenses be enough? Sounds good but you can find yourself bogged down in penny sized details that take dollar sized amounts of time and that’s not cost effective either. You can’t ignore it, but you can’t let it be the only thing you do either.
Trim back your geographic service area? It’s obvious but often overlooked. Don’t take contingent cases on when they are 250 miles away in a courthouse that will cost you a whole day’s time for every single thing that happens. Redefine your marketplace to service the area that is most cost-effective for you.
Redefine your practice? Just because you’ve only handled one kind of case for the last ten years does not mean it’s all you can (or should) do. In this economy, you have to look outside of the box to find other areas of related and sometimes unrelated legal needs that you can help consumers fill. It’ll take time to develop a new practice area, but in this economy you may have more time than you think. And even if you don’t have the spare time, you better do it anyway or you may end up with a lot more spare time than you want. The real problem? Opening a new practice area may take time to define and then build up and you have to survive the short term crunch right now. You need improvement now and not a year from now. That’ll be too late. Find a practice area that complements what you do now. One that is a natural extension of your current practice.
Can you slash deep pocket “structural” cost reductions? You have to. The only way to make big number savings is to go after the big number expenses. It’s hateful and hurtful and agonizing, but the big ticket items in your budget have to be the first things you look at when you want to cut your costs. They are the “structural” costs to any business, law firms included. The obvious front line items are the people in the building and the building itself. Neither will be easy to do. Many businesses cut everything everywhere but not here when the truth is there is little choice. Everything else in a business is tactical and only involves relatively modest numbers in the budget. If your business is driving toward immediate trouble at 90 miles per hour, you don’t turn the steering wheel a little bit, you have to yank it to a hard side angle. If your trouble is further away, you have time to fine tune your steering somewhat, but you still better start steering your car right or you’ll end up wrapped around an economic tree. First thing you have to do is see where your own economic roadblock is waiting for you…just how far down the road can you go at the current rate before you hit the end? Okay, now start working backwards to figure out how to avoid it. Put a cost-cutting plan in place now and start implementing it now. Whether you start with big costs now or little ones all depends on how much road surface you have left in front of you.
Bottom line is that everyone around us is saying that the economy is looking worse and worse. You need to be very aggressive about cost cutting and efficiency building. And you need to do it quick. Streamline and reduce your structural costs, and change for practice model.
Where do you start?
First, you have to know where you are. Assess your assets. Know your budget and income stream predictions.
Second, forget about trying to cut costs by 10% because that probably won’t be enough in this economy. It won’t be easy, sure, but you have to shoot for at least 20% and some law firms will have to go even deeper. Still, this is reality and the sooner you start facing it the sooner you can start worrying less and the sooner your chances for survival and success will improve.
Third, look at everything. The usual belt-tightening isn’t going to work because this isn’t the usual economic downturn. Simple salary freezing or travel cost cutting and budget reductions won’t tame this monster. You will have to look at structural cuts and restructuring for survival. There are major items that drive a law firm’s costs and those big ticket items are the first place to start to get the biggest and fastest results.
Fourth, dump what doesn’t profit. Jay Foonberg once said that every lawyer should fire his worst clients once a year. You can’t wait that long. Any non-paying client is one whose case has to be reconsidered. Keep the good and throw overboard the mediocre and the bad. In this economy you can’t afford to spend your time on cases that either won’t pay enough or won’t pay it fast enough. That means two things. #1, make sure a target defendant is economically viable before you take on that new case. #2, viable defendants are fighting harder and longer so ou should think long and hard before you take on a fight that will require you to outlast a defendant whose pockets are deeper than you or your client. Tilting at windmills may be fun, but this economy is not the time or the place to be doing it.
Fifth, do it all. Cutting costs in one area will yield savings at a different rate and point in time than cost cutting efforts in a different area. You have to do it all to maximize savings right now and next week and next month and next quarter and next year. And you have to start now.
- MARY ESTHER, Fla. -- Leisure Tyme RV closed its doors today after 31 years in operation.
- Elkhart, Ind.-based Atwood, which designs and manufactures an array of products for recreational vehicles, has closed it’s West Union Iowa 120-employee plant, a year after closing one of its Elkhart plants which put 150 people out of work.
- BATESVILLE, Ind. -- Lee's RV Center filed for bankruptcy protection Feb. 12.
- LAUGHLIN, Nev. -- Laughlin, Nevada’s largest RV dealership, Paul Evert's RV Country, announced last month that they plan to close their doors by the end of April.
- GOSHEN –– Dutchmen laid off about 100 workers Friday.
- RIVERSIDE, Calif. -- Fleetwood RV closed its Riverside service center.
- STUART, Fla. -- Heron Run, a luxury motorcoach community planned near Vero Beach, Fla., announced last week that it had put its construction schedule on hold for at least six months.
- And on Monday? Over at Fleetwood the common stock now has a par value of only one penny. Folks, you can’t get much cheaper than that.
For manufacturers, it means they are holding on tighter than ever to their cash and that includes money available for settlements. You can expect prolonged delays in everything, if only to keep the money in their own pocket as long as they can. You can expect the usual tactics associated with more stalling and delay, and even more creative tactics as defense attorneys find themselves also trying to find ways to create more billable time themselves.
And what does it mean for consumer lawyers and their clients? More worry than ever over cash flow. You can expect the downward spiral of cash flow to tilt sharper down and fall even deeper. Many silk stocking law offices have already seen the defense side’s downward spiral cause layoffs to slash costs. Last week’s Law Journal had a front page article on the economics of large law firm layoffs and concluded the most cost-effective way for a firm to save money is to axe employees, the higher paid ones first.
For average consumer law firms, the crunch is real and ominous.
Firms deep into contingency fee agreements will face a killer cash crunch and already are. The “mill” firms who several years ago ramped up to “super size me” status are likely to find themselves in a supersize financial crunch just as easily as the small consumer law firm finds itself in a crunch of its own comparable size.
Switching to non contingency work is hard for all such firms, but vital if they are to survive to help consumers another day. If you haven’t started the switch yet, better start thinking about it real soon. The old saying about handling a blend of paying and contingent cases has never been truer and never more critical. It may be wish to consider throwing overboard the contingency model altogether for awhile and going to a blended "hybrid" fee model where the client pays a reduced hourly rate for your time as expended and the rest of your hourly rate is due at the end of the case, but watch your ethics requirements carefully.
Start looking to curb costs even deeper than you have been doing. Predictions are for the economy to be sour for most of the coming year, if we are lucky.
So how do you downsize and survive? There are competing thoughts. Here’s some.
Tactical reductions? Hiring freezes, reduce travel, budget cuts? That can help, but in many firms a lot of that has already been done. The economy isn’t getting better anytime soon so what’s next?
Across the board reductions in all expenses? Sure, it sounds fair but that can end up cutting too much in one place and not enough in another place.
Can continuous monitoring and improvement of expenses be enough? Sounds good but you can find yourself bogged down in penny sized details that take dollar sized amounts of time and that’s not cost effective either. You can’t ignore it, but you can’t let it be the only thing you do either.
Trim back your geographic service area? It’s obvious but often overlooked. Don’t take contingent cases on when they are 250 miles away in a courthouse that will cost you a whole day’s time for every single thing that happens. Redefine your marketplace to service the area that is most cost-effective for you.
Redefine your practice? Just because you’ve only handled one kind of case for the last ten years does not mean it’s all you can (or should) do. In this economy, you have to look outside of the box to find other areas of related and sometimes unrelated legal needs that you can help consumers fill. It’ll take time to develop a new practice area, but in this economy you may have more time than you think. And even if you don’t have the spare time, you better do it anyway or you may end up with a lot more spare time than you want. The real problem? Opening a new practice area may take time to define and then build up and you have to survive the short term crunch right now. You need improvement now and not a year from now. That’ll be too late. Find a practice area that complements what you do now. One that is a natural extension of your current practice.
Can you slash deep pocket “structural” cost reductions? You have to. The only way to make big number savings is to go after the big number expenses. It’s hateful and hurtful and agonizing, but the big ticket items in your budget have to be the first things you look at when you want to cut your costs. They are the “structural” costs to any business, law firms included. The obvious front line items are the people in the building and the building itself. Neither will be easy to do. Many businesses cut everything everywhere but not here when the truth is there is little choice. Everything else in a business is tactical and only involves relatively modest numbers in the budget. If your business is driving toward immediate trouble at 90 miles per hour, you don’t turn the steering wheel a little bit, you have to yank it to a hard side angle. If your trouble is further away, you have time to fine tune your steering somewhat, but you still better start steering your car right or you’ll end up wrapped around an economic tree. First thing you have to do is see where your own economic roadblock is waiting for you…just how far down the road can you go at the current rate before you hit the end? Okay, now start working backwards to figure out how to avoid it. Put a cost-cutting plan in place now and start implementing it now. Whether you start with big costs now or little ones all depends on how much road surface you have left in front of you.
Bottom line is that everyone around us is saying that the economy is looking worse and worse. You need to be very aggressive about cost cutting and efficiency building. And you need to do it quick. Streamline and reduce your structural costs, and change for practice model.
Where do you start?
First, you have to know where you are. Assess your assets. Know your budget and income stream predictions.
Second, forget about trying to cut costs by 10% because that probably won’t be enough in this economy. It won’t be easy, sure, but you have to shoot for at least 20% and some law firms will have to go even deeper. Still, this is reality and the sooner you start facing it the sooner you can start worrying less and the sooner your chances for survival and success will improve.
Third, look at everything. The usual belt-tightening isn’t going to work because this isn’t the usual economic downturn. Simple salary freezing or travel cost cutting and budget reductions won’t tame this monster. You will have to look at structural cuts and restructuring for survival. There are major items that drive a law firm’s costs and those big ticket items are the first place to start to get the biggest and fastest results.
Fourth, dump what doesn’t profit. Jay Foonberg once said that every lawyer should fire his worst clients once a year. You can’t wait that long. Any non-paying client is one whose case has to be reconsidered. Keep the good and throw overboard the mediocre and the bad. In this economy you can’t afford to spend your time on cases that either won’t pay enough or won’t pay it fast enough. That means two things. #1, make sure a target defendant is economically viable before you take on that new case. #2, viable defendants are fighting harder and longer so ou should think long and hard before you take on a fight that will require you to outlast a defendant whose pockets are deeper than you or your client. Tilting at windmills may be fun, but this economy is not the time or the place to be doing it.
Fifth, do it all. Cutting costs in one area will yield savings at a different rate and point in time than cost cutting efforts in a different area. You have to do it all to maximize savings right now and next week and next month and next quarter and next year. And you have to start now.
Ron Burdge
http://www.thelawcoach.com/
http://www.thelawcoach.com/
Helping Consumer Lawyers Since 1978
Tuesday
How to Use Your Assistant Effectively
Brownie Points: How to use your legal assistant effectively.
Whether you are a new attorney or only a relatively new one, we can all learn a few tips about better use of our legal assistant. Here's a few that come to mind.
In almost all cases, the legal assistant knows both the court processes and the office processes better than younger attorneys do, so you should take advantage of that experience. But do it with respect and cooperation or the whole attorney-assistant relationship can sour and when that happens you can have monumental problems that can cripple your practice, wreak havoc with your schedule, and just plain ruin your day.
Don't forget that you and your assistant are a team. There are no secrets and plenty of help passed back and forth between team members. Don't ask your assistant to do something for you that you wouldn't do for them. Don't ask them to do something for you just because "I'm the lawyer." Every experienced attorney knows that nothing runs right without the legal assistant having made it so.
Now you probably didn't think about it before but sometimes your assistant can use your help too. Don't be stingey with it. Odds are they won't need it often and the odds are even greater that they won't ask for it when they do. Try to be observant and offer up your help when it looks like it might be needed. Part of teamwork is you being willing to help them out once in a while too. Besides, it is often more important to your assistant just to know that you're willing to help out when needed, than actually even doing it.
Remember: that law degree doesn't make you omniscient and all-powerful. If you aren't sure how to do something, no matter how simple it might be, ask your assistant. Asking shows that you respect their experience and want to be able to rely on them for help. Remember that once upon a time, they had to ask someone too. They'll appreciate it and you'll earn their respect back.
Everyone wants and needs to feel useful and appreciated and asking for help is a recognition of that. If you just blunder your way through things and they go wrong, you lose respect for not having asked and you may get yourself into bigger trouble than you bargained for (both with the court and with your own office staff). Worse yet, your assistant will not like the fact that you could have avoided the problem altogether if you had just bothered to ask.
Realize that your law degree didn't teach you anything about the mechanical processes used in the law and your assistant knows more about that than you know now or will likely ever learn. Worse yet, nothing in law school teaches you how to work effectively with an assistant either. But doing just that can free up more of your time to work on productive "lawyer" work.
Your assistant is there to do the "non-law stuff" that you need help with every single day. It's just plain more economical that way. More importantly, it's a lot more productive. After all, there is no "Copier Machine 101" course in law school but there are thousands of different copiers, each with their own instructions and quirks.
Treat your assistant with respect and concern. Having an assistant is a luxury for many young attorneys but what many of them haven't learned yet is that it's a necessity too. Take your assistant seriously and ask for help or advice often. For a young attorney, there's no such thing as a dumb question. But there are lots of examples of dumb decisions that were made without realizing what your assistant already knew.
Assistants are people too. Try to never give your assistant rush work just an hour before the end of the day because it will interrupt what they already had planned to get done in that last hour. Just because you didn't plan your last hour of the day doesn't mean your assistant didn't either.
And while most assistants would gladly stay late to finish up a project, you should try to avoid asking your assistant to stay over to get some last minute work done too. They have a life at home too.
Be courteous at all times. You can earn a lot of goodwill with an easy-going and courteous but serious style. That means don't order people about, don't raise your voice and, even if you get upset at them, try never to let your anger show. After all, being your assistant may not be easy for them either.
Express your appreciation once in a while. A sincere expression of thanks means more to most people than practically anything else. It doesn't take much effort to see the reasons you should thank your assistant.
One last thing. You should try never to leave to go home at the end of the day if you assistant is still hard at work at their desk. It's just plain bad manners. There is nothing quite as lonely and demoralizing as being the only person working in an empty office and wondering why. It's a sure-fire way to get your assistant to look at the want ads to see who's hiring.
To learn more about how to effectively and efficiently work with your legal assistant, check out the ABA podcasts called, naturally enough, "A Secretary Speaks" parts 1 and 2. It'll open your eyes to what your assistant probably thinks is obvious and what you probably never would have thought of. Be sure to listen to both parts, too, because there's lots in part 2 also.
Ronald Burdge
Helping Lawyers Practice Law Better Since 1978
Monday
Detail Needed in Time Records
A new decision out of the US District Court, ED New York, reminds us of the importance of providing the court with details in your time records when it comes to fee application time. 
New York City attorney Brian Bromberg was kind enough to provide me a copy of what was a remarkably good fee decision but also one that points out the difficulties of balancing the everyday needs of a law practice to be efficient and quick, as well as detailed in our time records.
First the good news. It was a Consumer Law case where the consumer was entitled to recover $1,000 and only after apparently a difficult fight did it finally come to be. Like many defendants in similar Consumer Law cases, they fought attorney Bromberg's client's case through to verdict and lost. Then the fee application came. Ultimately, attorney Bromberg obtained a fee award of over $60,000, a terrific result in a statutory damages case that has rumblings of Stalingrad all over it. In fact, it reads as though the trial judge was looking to reduce the fees somewhere and he may have had to look hard to find it.
On December 18, 2008, in Larsen v JBC Legal Group, et al, Case No. CV 04-4409 (ETB), the court allowed most of the requested fees in an FDCPA case but disallowed a very small portion of the request for lack of the level of detail the judge wanted.
"... a number of the billing entries do not sufficiently describe the nature of the task performed by plaintiff's counsel to allow the Court to determine whether the time expended on the task is reasonable." The Court said that it could not tell from the time records what the "subject matter" was for some of the letters and phone calls required in the case's litigation, so it deducted it from the award. Overall, the amount looks insignificant in light of the final award.
The Court cited to prior cases for authority, including ACE Ltd v CIGNA Corp, 2001 WL 1286247 and Marisol A. v Giuliani, 111 F.Supp.2d 381, at 397, both NY cases, noting that the minimum detail it wanted would be a statement of the general subject matter of the time.
The Court explained the types of out-of-pocket expenses recoverable in a fee application too, noting that "as long as they were 'incidental and necessary to the representation' of those clients" they were recoverable as part of the fees and not unrecoverable overhead. That part was a decision based on logic and law and good reason, and what some might easily call "nit picking" over the fees seems minor but it does bring up a good point.
It's a point every litigator needs to keep in mind when writing up time records in a fee-shifting case. Clarity in billing helps in paying cases and it's crucial in fee-shifting cases too. More detail is always better and less detail is always riskier.
Courts quite often look to find ways to reduce fee awards and although they may have to look hard, and no matter how small the amount might be, it can still cost you. Attorney Bromberg had lots of good detail everywhere else and still came out very good, but if you aren't as detailed in your fee records, it can cost you.
New York City attorney Brian Bromberg was kind enough to provide me a copy of what was a remarkably good fee decision but also one that points out the difficulties of balancing the everyday needs of a law practice to be efficient and quick, as well as detailed in our time records.
First the good news. It was a Consumer Law case where the consumer was entitled to recover $1,000 and only after apparently a difficult fight did it finally come to be. Like many defendants in similar Consumer Law cases, they fought attorney Bromberg's client's case through to verdict and lost. Then the fee application came. Ultimately, attorney Bromberg obtained a fee award of over $60,000, a terrific result in a statutory damages case that has rumblings of Stalingrad all over it. In fact, it reads as though the trial judge was looking to reduce the fees somewhere and he may have had to look hard to find it.
On December 18, 2008, in Larsen v JBC Legal Group, et al, Case No. CV 04-4409 (ETB), the court allowed most of the requested fees in an FDCPA case but disallowed a very small portion of the request for lack of the level of detail the judge wanted.
"... a number of the billing entries do not sufficiently describe the nature of the task performed by plaintiff's counsel to allow the Court to determine whether the time expended on the task is reasonable." The Court said that it could not tell from the time records what the "subject matter" was for some of the letters and phone calls required in the case's litigation, so it deducted it from the award. Overall, the amount looks insignificant in light of the final award.
The Court cited to prior cases for authority, including ACE Ltd v CIGNA Corp, 2001 WL 1286247 and Marisol A. v Giuliani, 111 F.Supp.2d 381, at 397, both NY cases, noting that the minimum detail it wanted would be a statement of the general subject matter of the time.
The Court explained the types of out-of-pocket expenses recoverable in a fee application too, noting that "as long as they were 'incidental and necessary to the representation' of those clients" they were recoverable as part of the fees and not unrecoverable overhead. That part was a decision based on logic and law and good reason, and what some might easily call "nit picking" over the fees seems minor but it does bring up a good point.
It's a point every litigator needs to keep in mind when writing up time records in a fee-shifting case. Clarity in billing helps in paying cases and it's crucial in fee-shifting cases too. More detail is always better and less detail is always riskier.
Courts quite often look to find ways to reduce fee awards and although they may have to look hard, and no matter how small the amount might be, it can still cost you. Attorney Bromberg had lots of good detail everywhere else and still came out very good, but if you aren't as detailed in your fee records, it can cost you.
Ronald Burdge
Helping Consumer Lawyers Help Their Clients Since 1978.
Sunday
7 Reasons You Shouldn't Work for Free
There are strong reasons that you should always make new clients pay for your time and why you should make them pay during their lawsuit too. Here’s just a few that come to mind:
1. All too often, new clients will think that if you charge them nothing then you are worth nothing.
You have to charge something, no matter how little, just to earn their respect and appreciation. Besides, if your non-suit demand letter does work and you didn't charge anything then the client will think they could have gotten it done themselves. But if they had to pay you for your time, then they usually think that it was entirely your "lawyer letter" that got it done (and it probably was). The simple fact is that the only way you will get any credit for your work is if you get paid for it.
2. On top of that, no other industry works for free. It's time we stopped.
Think of it this way. If you go home at the end of the day and report to your spouse, "Honey, I wrote 16 demand letters to fraudulent car dealers who ripped off 16 new clients that came in today." And then the spouse says, "so, how much did they pay you?" and you say "nothing, but I'm pretty sure most of them will become new clients and I'll get at least a dozen new contingent fee cases out of today's work." Which, of course, prompts the spouse to say, "ok, and I'm pretty sure the dry cleaner for your suits doesn't work on contingency fee and the grocery store won't work that way either." Now folks, trust me here, that does not make for a happy evening at home.
3. This is not PI work.
Yes, I know that personal injury attorneys work on contingency. But they are after far larger sums that the normal Consumer Law attorney and the injuries are far beyond merely money so the stakes are much, much larger. They can afford to wait between "paydays" because their average returns are so much bigger when they come in and no one argues about their fee because no one ever has. Consumer Law fee-shifting still is not readily acceptable simply because it is "on top" of the consumer's recovery instead of being, as it is in a PI case, "inside" the recovery. In these economic times, most Consumer Law attorneys can no longer afford to give away their time in the hope of gaining another contingent fee case.
4. You may need new clients, but not that bad.
We all want more cases, but you don't make any money by bleeding your time out for free to get them. And if you don't make any money, you won't have any blood left to bleed out anyway because you'll be broke. Money, like it or not, is the lifeblood of your business (unless you are independently wealthy and do this work just for the fun of it, and I don't know of a single member of NACA who has won the lottery lately).
5. You mean that you actually want clients who won’t listen to you?
Clients who don’t pay you are very often clients who don’t listen to you either. Worse yet, if the client isn't paying anything at all, then they have no incentive to settle for anything less than the full amount they could conceivably get, and they often won't. The result is very likely litigation to the death, either the defendant's or your own economic near-death. Congratulations; that case you thought was so good it would settle in weeks will now drag on for months and months and months of your time, sweat and money (costs advanced). Worse yet, you may end up in a position of having to cajole the client into accepting a settlement they are uncertain of and that's the makings of a grievance which, of course, only eats up more of your valuable time with no money return from it. You want client control? Make them invest in their own case. One of the best reasons to make a client pay fees (any amount at all is better than nothing at all) is simply client control.
6. Clients who don't pay you, don't appreciate you, and are ripe for grievance issues if something doesn't turn out the way they want.
I could be wrong, but I firmly believe that in Consumer Law most client grievances come from two sources: clients who don't get enough hand-holding from their attorneys (call it a lack of communication) and clients who don't have to pay anything for their attorney's time ("they could've gotten me more and made me settle for less"). While I know studies support my first assumption here, I'm not aware of any on the second but I will take any bet on it being true. There's a reason that business lawyers rarely get grievances.
7. So, you actually enjoy groveling for fees to the Judge?
Psychologically, you are in a much stronger position in a fee-shifting case when you can explain to your opposing counsel and/or the judge that your client has been paying fees all along and is entitled to get those back as part of their recovery, than you are if you have to admit that you won’t get paid anything if they don’t give it to you. The first approach shifts the focus to the entitlement aspect. The second makes you a beggar and, worst yet, it tells the merchant’s attorney just how much control they have over you and your self-interest in advising your consumer client. Even worse than that, it tells them precisely how to make sure you don’t sue them again: “just fight the fee issue to the death every time and pretty soon that lawyer will go away” becomes the advice the defense attorney may tell their business client. And you are the unlucky recipient of the results of that “scorched earth” advice. The defense attorney says it for two reasons. First, it might actually work. Second, it justifies the big legal bill they intend to send to the merchant for fighting you personally as much as fighting the case. If it works, they become a hero to their client. If it doesn’t work, they just mumble something like “that mean SOB will never learn until we do it to them again.” They get to portray Consumer Law attorneys as “greedy lawyers” who are picking on their client instead of us being the socially conscious fighters of the little guy’s rights who do what we do for fairness and justice.
You can work for free if you like and never charge a client anything at all for working nights and weekends. Just remember, though, that no other industry works for free. Personally, I think it's about time that we stopped.
1. All too often, new clients will think that if you charge them nothing then you are worth nothing.
You have to charge something, no matter how little, just to earn their respect and appreciation. Besides, if your non-suit demand letter does work and you didn't charge anything then the client will think they could have gotten it done themselves. But if they had to pay you for your time, then they usually think that it was entirely your "lawyer letter" that got it done (and it probably was). The simple fact is that the only way you will get any credit for your work is if you get paid for it.
2. On top of that, no other industry works for free. It's time we stopped.
Think of it this way. If you go home at the end of the day and report to your spouse, "Honey, I wrote 16 demand letters to fraudulent car dealers who ripped off 16 new clients that came in today." And then the spouse says, "so, how much did they pay you?" and you say "nothing, but I'm pretty sure most of them will become new clients and I'll get at least a dozen new contingent fee cases out of today's work." Which, of course, prompts the spouse to say, "ok, and I'm pretty sure the dry cleaner for your suits doesn't work on contingency fee and the grocery store won't work that way either." Now folks, trust me here, that does not make for a happy evening at home.
3. This is not PI work.
Yes, I know that personal injury attorneys work on contingency. But they are after far larger sums that the normal Consumer Law attorney and the injuries are far beyond merely money so the stakes are much, much larger. They can afford to wait between "paydays" because their average returns are so much bigger when they come in and no one argues about their fee because no one ever has. Consumer Law fee-shifting still is not readily acceptable simply because it is "on top" of the consumer's recovery instead of being, as it is in a PI case, "inside" the recovery. In these economic times, most Consumer Law attorneys can no longer afford to give away their time in the hope of gaining another contingent fee case.
4. You may need new clients, but not that bad.
We all want more cases, but you don't make any money by bleeding your time out for free to get them. And if you don't make any money, you won't have any blood left to bleed out anyway because you'll be broke. Money, like it or not, is the lifeblood of your business (unless you are independently wealthy and do this work just for the fun of it, and I don't know of a single member of NACA who has won the lottery lately).
5. You mean that you actually want clients who won’t listen to you?
Clients who don’t pay you are very often clients who don’t listen to you either. Worse yet, if the client isn't paying anything at all, then they have no incentive to settle for anything less than the full amount they could conceivably get, and they often won't. The result is very likely litigation to the death, either the defendant's or your own economic near-death. Congratulations; that case you thought was so good it would settle in weeks will now drag on for months and months and months of your time, sweat and money (costs advanced). Worse yet, you may end up in a position of having to cajole the client into accepting a settlement they are uncertain of and that's the makings of a grievance which, of course, only eats up more of your valuable time with no money return from it. You want client control? Make them invest in their own case. One of the best reasons to make a client pay fees (any amount at all is better than nothing at all) is simply client control.
6. Clients who don't pay you, don't appreciate you, and are ripe for grievance issues if something doesn't turn out the way they want.
I could be wrong, but I firmly believe that in Consumer Law most client grievances come from two sources: clients who don't get enough hand-holding from their attorneys (call it a lack of communication) and clients who don't have to pay anything for their attorney's time ("they could've gotten me more and made me settle for less"). While I know studies support my first assumption here, I'm not aware of any on the second but I will take any bet on it being true. There's a reason that business lawyers rarely get grievances.
7. So, you actually enjoy groveling for fees to the Judge?
Psychologically, you are in a much stronger position in a fee-shifting case when you can explain to your opposing counsel and/or the judge that your client has been paying fees all along and is entitled to get those back as part of their recovery, than you are if you have to admit that you won’t get paid anything if they don’t give it to you. The first approach shifts the focus to the entitlement aspect. The second makes you a beggar and, worst yet, it tells the merchant’s attorney just how much control they have over you and your self-interest in advising your consumer client. Even worse than that, it tells them precisely how to make sure you don’t sue them again: “just fight the fee issue to the death every time and pretty soon that lawyer will go away” becomes the advice the defense attorney may tell their business client. And you are the unlucky recipient of the results of that “scorched earth” advice. The defense attorney says it for two reasons. First, it might actually work. Second, it justifies the big legal bill they intend to send to the merchant for fighting you personally as much as fighting the case. If it works, they become a hero to their client. If it doesn’t work, they just mumble something like “that mean SOB will never learn until we do it to them again.” They get to portray Consumer Law attorneys as “greedy lawyers” who are picking on their client instead of us being the socially conscious fighters of the little guy’s rights who do what we do for fairness and justice.
You can work for free if you like and never charge a client anything at all for working nights and weekends. Just remember, though, that no other industry works for free. Personally, I think it's about time that we stopped.
Ronald Burdge
Helping Attorneys Do Better Since 1978
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