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.

Ronald Burdge

http://www.thelawcoach.com/

Helping Consumer Lawyers Help Their Clients Since 1978.

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.

Ronald Burdge

www.TheLawCoach.com

Helping Attorneys Do Better Since 1978

Fraud Victims Take Another Beating

The 3rd US Circuit Court of Appeals has ruled that in most cases where the plaintiff wins a "substantial" verdict and the damages are purely economic, then any punitive damages should be on a 1 to 1 ratio.

The ruling in Jurinko v Medical Protective Co. opens a new chapter in the tort reform industry's fight to eventually wipe out the right of consumer and fraud victims to force big business to pay punitive damages for fraud. Although the case arose from a malpractice claim at its roots, there is no reason the court will not expand the ruling to cover all sorts of claims.

Although the US Supreme Court has not gone that far, the 3rd Circuit judges apparently decided that the Supreme Court Justices were heading that direction. Right now the ruling should be limited to its facts, where there was no physical injury and there was no strong evidence of the usual "reprehensible conduct" factors that might otherwise enhance the ratio.

In Jurinko, a jury awarded $7.9 million in an insurance bad faith case brought by a doctor who claimed that his insurer's failure to offer his policy limits led to a $2.5 million malpractice verdict against him. The doctor had a $200,000 policy and less than that was needed to settle the case but apparently the insurance company balked and the jury viewed the undetected cancer worth more than the insurance company hoped for. Well, folks, that kind of claim handling is why they own those big buildings in most downtown metropolitan cities.

Ever since the 2003 decision in State Farm v Campbell, the courts have been restricting the availability of punitive damages as a deterrent to big business fraud, greed and just plain stupidity.

What we said before about Dead Donkeys and Car Dealers (click here) is still true. If there is nothing to discourage deception and fraud, there will be no reason for merchants and big business not to consider it as nothing more than just another cost of doing business. There's a reason the right to a jury trial finds its roots in hundreds of years of social history.

A jury is drawn from the community and includes the common man, the housewife, the business owner, a government worker, and just about everyone else. That collective wisdom is the reason that a jury inherently knows what the right thing is to do in civil disputes before them.

We don't need politicians and judges to reject jury decision just because they think they know better than the everyday people who sit and listen to a dispute and decide what they think is fair.

There's a reason selling a dead donkey isn't tolerated. That's also the reason judges ought to let juries decide cases and reject the arrogant enticement to display their self-proclaimed wisdom.

Burdge Law Office
www.TheLawCoach.com
Helping Consumers, and Consumer Attorneys, Since 1978.

What Marketing Works & Partnership

When I was a child, my mother collected Wedgwood pottery. Blue and white plates with various designs, followed by brown and cream with its designs, etc. It was not the thing that teenagers paid attention to. We should have. It's marketing story, and its demise, tell us now a great deal about marketing any business, including a law firm's business. And something about making partner too.

Waterford Wedgewood, a pottery maker 250 years old, has filed bankruptcy. As at least one observer puts it, the demise came because they forgot the lessons their founder had invented. Not about pottery. About marketing.

Josiah Wedgewood, founder of the pottery company, invented most of the marketing tactics that would be used up to and beyond the internet. As Judith Flanders reported in the London Times, "Most, if not all, of the common techniques in 20th-century sales — direct mail, money-back guarantees, traveling salesmen, self-service, free delivery, buy one get one free, illustrated catalogues — came from Josiah Wedgwood."

Apparently the company forgot its marketing roots and thought that hiring the right people, but still doing the old things the old way, was all it needed to reinvent its success. Wrong. So very wrong.

We live in a time when nothing old will survive if it doesn't reinvent itself as new. I never thought I'd say it, but every facet of life and business now is part and parcel of marketing. With fewer and fewer actual manufacturing going on in the US nowadays, the service of marketing has become more and more important. Point is, it always has been that way for lawyers and law firms --- whether they knew it or not.

Any law firm or lawyer who doesn't have a web site had better have a good, secure job and lots of loyal clients (a rarity nowadays). The senior partners may have grown up with phone books, but this generation didn't and they aren't looking for lawyers in the phone books anymore. Their mantra is simple. If it isn't online, it has no "cred" and it doesn't matter.

Marketing online is king. Curiously to many partners in law firms, more than the internet is considered "online" by this generation. They view cell phones as nothing more than extension of the online experience. And television? Why, it's nothing more than a forerunner of the internet and is often viewed by both the pre-internet "tweens" and the in-internet generation as a necessary entertainment device that has uses and purposes that the internet doesn't meet. Add up the informational input from all three devices and you get the sum total of all informational and marketing input for the vast majority of this (and the next) generation of consumer purchasers.

And if they don't know about your law firm, you won't be on their shopping list.

If your law firm doesn't have a web site that is strong on marketing, and not just a billboard, it's missing out. And if you are an associate, what can you do? Well, inside the firm you can work to push the marketing in a productive and cost-efficient direction. And outside the firm you can learn to market yourself. Blog. Set up your own professional and/or personal interests web site. After all, people who make partner are usually people who have proven their rainmaking skills. Start proving it.

There's nothing that says you have to sit back and wait for it to happens; notably, there's also nothing that says if you sit back it will ever happen either. Indeed, sitting back is the same as laying down in a pine box in this profession.

The truth is that partners are not people who just "did the work." They are people who went out and found the work that needed doing.

While solo and one-on-one entertainment with video equipment, including the internet, is the obvious king of media, television and mobile devices still have their places with marketing to the current and the next generation of consumer-purchasers. You can't forget it.

In your firm's marketing budget, the right mix of internet, mobile appliances, and TV are the probably best solution right now to the effective marketing problem. If Wedgewood had done that? They probably wouldn't be in bankruptcy right now. If you don't do it? You may well end up there yourself.

Ronald L. Burdge
www.TheLawCoach.com
Because Marketing Matters to Your Survival.

Learning to Litigate

Not everyone is cut out to be a Trial Lawyer, but if that's where you find the thrill (or think you will) then there are a few tips that might help. They aren't all the ordinary tips one might think of because doing the ordinary won't make you extraordinary. If you want to know how the box is constructed, sometimes stepping outside of the box is a good way to start.

Observe. One of the best ways to learn a craft is to watch others perform it, even if you aren't sitting at the trial table. Whenever you are in the courthouse, find out if there's a trial going on anywhere and slip in and watch some of it. Notice the differences between the attorneys and how they handle each aspect of everything going on. But don't stop there. Watch for, and learn from, the reactions of the jurors and the judge and the witnesses and the parties to everything that is happening. Remember, half a trial is how you do something and the other half is how everyone reacts to it, especially the jury.

Learn the Rules. Even the worst trial lawyer can get by pretty good if he or she thoroughly knows the rules of procedure and evidence. You should read cases that interpret them and articles that discuss them. Go beyond the fundamentals. Figure out how to memorize the rules, their meaning, and to match up the rule numbers with the rules themselves. Being able to cite to a rule by its number only is incredibly intimidating to other lawyers and judges.

Read about lawyers and trials. In history, there have been a rather small number of really great lawyers. People who have tackled a trial of uniqueness or importance themselves become (or already are) unique and often important. Read about them and their trials. They run from, quite literally, Aristotle to Jerry Spence and include Clarence Darrow, Abraham Lincoln, Daniel Webster and many others. Read and absorb what they did, how they did it, why they did it, and the reasons it mattered and we know about it today. For instance, no really good trial lawyer does not realize the importance of Lincoln's easy manner and trial style. Amazingly, it is still extraordinarily valuable in a courtroom today.

Study Trial Skills. There are lots of good books written about Voir Dire, handling a hostile witness, connecting with a juror, the importance of writing skills and legal writing skills (and they are not the same thing). Look for books on trial practice skills and read every one you can find. In the process, compare them for what they say and find what will work for you. The ABA is full of good books on the topic, as are numerous other sources.

Learn about People. The one magazine that talks about understanding human action and reaction and thinking is Psychology Today. It would do you well to read an issue every once in awhile. It takes a higher-level approach to understanding human beings and how they react to what is going on around them, sometimes knowingly and sometimes not. And if you want to know what the average everyday person is thinking about and doing, don't watch the news on tv. Read People magazine. Odds are that a lot, if not almost all, of the people in a jury box have read that magazine or subscribe or pick it up at the grocery store on a regular basis. But don't read it for the articles so much as for the way it communicates with its readers. And don't stop there. Many other magazines can be found at the bookstore which deal with humanity and its foibles. Understanding a jury is more about understanding people than it is about understanding your case. That is the very reason that a broader reading of literature, including the classics, helps a trial attorney hone his skill.

Practice and Do It. Of course, nothing beats just going in a courtroom and doing it. You can practice all day (and you should), with mirrors and friends and coworkers and spouses. But the reality is that standing in a courtroom is not like standing in your living room. Until you have done at least two dozen trials, you just don't learn many of the things there are to learn about the art. And each time you have a trial, you learn something new. That's just the way it works. So, since fewer cases are actually going to trial than ever nowadays, your opportunities are getting fewer to learn the craft. Pick a case. Go to trial.

Get Feedback. Then, after the trial (or maybe even during it) ask the bailiff for their thoughts. Maybe even the judge later. If the trial is video recorded, get a copy and watch it. One of the best ways to get better at trial work is to find out what others think worked and, much more importantly, what didn't work. Then figure out what you could have done to make it all better.

Last thought: look for trial opportunities. If you are an associate, take the initiative to ask for more responsibility. Ask to sit in on a trial, even if it's only behind the bar in the gallery. Ask for a chance to be Second Chair and do as much as you can with it. When your supervisor or partner superior thinks you are ready to handle the trial, they'll let you know. But you can be sure they will never think you're ready if they don't see you taking the initiative to show your interest and desire to be a Trial Lawyer. If you want to be in the courtroom, then make it clear to everyone around you that you want a chance to be in the courtroom. And when you get that chance, give it everything you've got. Win, lose or draw, you will probably walk away with more self-confidence and knowledge and certainty about yourself than you have ever had in your life.

Litigation is an art, a science, and a craft. It can be learned, but only by those who really want to learn it. Fewer attorneys than ever know how to do it really well and those who do will be able to command a higher salary, and a higher level of respect amongst their brethren, than ever before.

Ronald L. Burdge

www.TheLawCoach.com

Helping Lawyers Help Their Clients, Since 1978