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

Start the New Year Right

It's a good idea to freshen up your office look and the start of a new year is a good time to do it. Changing your office environment can improve office morale, increase efficiency in many cases, and send a subtle message to both old and new clients that says volumes about you and your practice without ever saying a word.

We all know that first impressions count and you only get one first impression so here's some tips to apply starting now.

1. Clean out the clutter. The best thing, and the easiest thing, you can do to improve your workplace is to clean up the clutter. Throw it away or put it away. Somewhere under all those papers and files there's a desk and you might want to clean it too while you're at it. The rule of thumb is that you should never touch a piece of paper more than once and if you follow that rule you can prevent the clutter from stacking up in the future but for now, go through everything on your desk top and clear it out. Do something with it. Process it, file it, or read it and throw it away. New clients will be impressed and old clients will be amazed.

2. Now that your desk is cleared of the clutter, look it over. The second rule of thumb is that if there is anything on your desk that you don't use every day, then put it somewhere else. Sometimes too much "stuff" is what makes the clutter. Okay, now move around your office and ask yourself the same question about the furniture and furnishings. Sometimes less is more. Less furniture and furnishings can mean more space and room and that clear space can actually enhance your peace of mind.

3. Move the furniture. It's probably been sitting in the same spot for years and that spot is probably up against the wall. Think about the President's Oval Office. Nothing is up against the wall. The desk is set out. There's a sitting area in the middle of the room. There's room to walk around every piece of furniture in the room and you know what? The room actually looks bigger because of it. You can do the same thing for your own office too. You don't need new furniture and probably not even more furniture. You just need to have it in the right spots. Old spots can be a sign of a stagnating mind and maybe a stagnating business too.

4. Use comfortable and relaxing furniture for visitors. To help put clients at ease, always have a small table and a comfortable armchair in the room, maybe two. And they don't have to be leather covered with all those brass tacks down the edges and seams. Those pieces loudly say "I cost money and you're going to pay for sitting on me." That may not be the best message to send in a time of a bad economy.

5. Check your lighting. One of the easiest things you can do yourself to freshen up an office is to make sure your rooms are well lit. The rule of thumb is a minimum of 100 watts for every 50 feet. Quite often offices have too few lights or too low wattage in them. And an all too often overlooked item is the dirty light switch plate. They get dirty over time and if they can't be quickly and easily cleaned, get a screwdriver and some new ones and just replace them. It's dirt cheap to do and it gets rid of the dirt.

6. Get new art on the walls. A lot of offices have "the usual" sort of office art hung at the same height all around the place. Doing that can actually make the art less noticeable. Get out of the rut. First select art that your clients might like to look at, not just art that you want because you happen to be the one that likes it. Next, hang the art so it "fits" the room and the furniture in it. If you're a guy, you probably have no idea what I mean so go ask your wife. Or, you could ask an interior decorator to stop by (you might even have one for a client if you're lucky) and help you out with some ideas. Some furniture stores will even give you their decorator's time for free or if you buy a chair and some art to hang. It's well worth it and you don't have to spend a fortune.

The start of the year is a good time to freshen up the appearance of your office. While you're at it, take a look at your hourly rate too. It's a good idea to consider your numbers once a year too. But that's another story.

Burdge Law Office
www.TheLawCoach.com
Helping Attorneys Improve Their Bottom Line Since 1978

Bankrolling Cases Can Bust You

In hard economic times, it serves a lawyer well to monitor your receivables. When clients don't pay their bills on time, you are essentially loaning them money. And that's no good for you.

Same for costs advanced that don't get paid back to you on time. Whether it's fees or costs advanced, it's still money out of your pocket at a time when the Law Firm can least afford it.

Problems with clients who don't pay their bills on time can be avoided.

Start with a clear attorney-fee agreement or engagement letter. Make sure the client understands what will happen when the fee bill is not paid, right from the start. Then don't let the billing pile up unpaid. Take prompt steps to collect what is owed for your fees. Don't just send the bill out and hope. Hope is nice, but it won't pay your salary.

One way to speed up the process is to e-bill your clients via email and offer credit card payment arrangements. Most firms give 15 to 30 days to pay a bill and adding a week for the mailman delivery only weakens your Law Firm's cash flow. Get the bill delivered faster and you'll get it paid faster.

But if the bill is not paid on time, follow up during the next 30 days when overdue with email or mailed reminders or perhaps even a phone call. If there is no payment within 60 days of sending it out, consider notifying the client that you will withdraw from representation if the bill is not paid within 7 or 10 days. And if it is not paid, withdraw.

If you don't insist on prompt bill payment, you become just another bill that's easy to ignore.

A close working relationship with the client is key to prompt bill payment too. Clients need to be told that the attorney-client relationship requires client assistance too and that includes prompt payment of the fee bill. Otherwise, the Law Firm is making a loan to the client (quite literally) by allowing the fee bill to go unpaid.

Yes, lawyering is a profession. But don't forget that a Law Firm is a business too and if you don't treat it like one, no one else will.

Ron Burdge
www.TheLawCoach.com
Helping Attorneys Mind Their Business Since 1978.

Smart Business Updates

One of the best sources of smart business info seems to be the folks at The McKinsey Quarterly. If you don't subscribe, and you care about your law business, you should get it. It's free and invaluable.

The email update is written in plain English for business people that just want to get the story quickly and simply and accurately. And much of what they write about can help you figure out how to run your law practice better and more profitably.

Here's some recent article titles, for instance:
Just-in-time strategy for a turbulent world
Creative destruction and the financial crisis
The adaptable corporation

You can see from the titles alone (and there's a whole lot more of them) the possibilities for your firm's strategic marketing planning. This is a free resource that helps you think, and in this marketplace, that can be critical.

You can get the RSS feed link here: http://www.mckinseyquarterly.com/rss

Ron Burdge

www.TheLawCoach.com

Helping Attorneys Manage Their Business

Free Practice Help

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

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

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

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

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

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

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

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

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

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

Outsourcing Ain't Easy for Lawyers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawyer Emyth Tips

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

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

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

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

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

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

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

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

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

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

Figuring it out involves asking some fundamental questions:

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

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

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

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

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

Procrastination Can Kill Your Case

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

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

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

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

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

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

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

So, let's translate.

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

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

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

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

20 Questions to Ask in Preparing for Settlement Conferences

Courts are using settlement conferences to resolve lawsuits more often than ever. No matter whether the settlement conference is with the judge or privately held, being prepared for it is critical to successfully representing your client and getting the best deal you can.

In a somewhat novel approach, US District Court, ND Ohio Judge John Adams has an excellent standing order for settlement conference preparation that you can read by clicking here. He wisely suggests some specific questions to carefully think over before a settlement conference occurs.

To those highly recommended questions we have added some of our own thoughts to create a list of the 20 questions you should ask of yourself and your client. Knowing the right questions to ask, and what the answers will be, is crucial to a successful settlement conference.

For each case there undoubtedly are unique considerations, but this is a good place to start with:

20 Questions to Ask Yourself and Your Client to Prepare for a Settlement Conference:

1. What is your goal in the litigation?

2. What issues need to be resolved, inside and outside of the case?

3. What are the strengths and weaknesses of your case?

4. Do you understand the opposing side's view of the case?

5. What is wrong with the opposing side's view of the case?

6. What is right with it?

7. On what factual and legal issues do both sides of the case agree?

8. On what do both sides of the case disagree?

9. What are the impediments to settlement?

10. What remedies are available through litigation or otherwise?

11. Are there possibilities for a creative solution?

12. Do you have adequate information to discuss settlement? If not, how will you get sufficient information to make a meaningful settlement discussion possible?

13. Are there outstanding liens involved? Do you need to include a representative of the lienholder?

14. What is the most powerful thing you will say in your opening statement?

15. What is the one thing that the opposing side will say in its opening statement that concerns you the most?

16. What is the most your client can get in court?

17. How long will it take to get the judgment paid?

18. What will the legal costs to the client be at all key points throughout the case?

19. If your client wins a significant verdict, what are the odds the opposing side will appeal it? And how long will an appeal take and what will it cost the client?

20. What is the value to the client's peace of mind gained by striking a settlement now?

There are strong advantages to discussing these questions and the answers with your client when you prepare the client for the settlement conference. If a personal client prep conference is not possible, consider creating a "client version" of the list and sending it to the client and asking them to review the questions and develop their own answers before the settlement conference begins.

Being prepared is the key to successfully stepping through each stage of the litigation process and the settlement conference is no different.

The Golden Rule in Litigation is simple: the more you know about your case, and your opponant's case, the more likely it is that you will get what you want. By the way, the reverse of that is just as true.

Ron Burdge

www.TheLawCoach.com

Helping Attorneys Win Cases Since 1978

Referring Cases the Right Way

How you refer a case can be crucial. You can make a great impression on the referral attorney or you can make them wonder why they are hearing from you. Style and technology can make a huge difference. It's not something that most attorneys even think about, but you can cement your professional relationship and enhance your reputation, all while helping a client get the best representation possible.

A distant attorney wanted me to look over a case that he thought was beyond his area of experteise but the way he did it was nicely done and there's a valuable lesson to be learned here for all of us who sometimes refer cases to other attorneys (and we all do sooner or later) and want to get the most out of it.

First, he called before sending it and spent no more than a minute laying his groundwork. Not much more than who he was, what he did and why he wanted my help, the basic facts of what he wanted to refer, and that he'd be mailing it out since it was not time sensitive. Short. Brief. To the point. But the personal touch of the phone call (before the mailing) was a smart and thoughtful move. Much, much better than just dropping something in the mail or pushing a button on the fax machine.

Then the package arrived a few days later and I was even more impressed.

He could have just copied all the docs involved, stuck them in the envelope, and let me figure it out myself. Wisely, he didn't. He scanned all the relevant docs into pdf format and then loaded them all on a SanDisk Cruzer usb memory stick and put it in an envelope with a nicely written one page cover letter and a one page summary of each each that he wanted my thoughts on.

Putting the scanned docs on a usb memory stick was a clever touch. It certainly picques one's interest. And that's what you need to do when you want someone to give you (and your client) some of their time for free. And remember that making a good referral helps your client out, is an opportunity to help others learn about you, and helps you build your own business at the same time.

But you can make the referral in a way that enhances your client's chances of getting the best representation possible and, at the same time, enhances the chances that the receiving attorney will look for chances to refer cases back to you too.

The key here was that the referring attorney did not just put the scanned docs on any old usb memory stick. No, he put them on a Cruzer and noted in the cover letter that I should feel free to keep the Cruzer usb stick after reviewing the docs. It didn't cost much, and it was a terrific move.

For those who don't know, the Cruzer is SanDisk's clever usb memory stick that comes in various sizes and has the ability to load programs and other "self-starting" programs on it such that people who use it don't need to have the programs that your data is in just to read or pull up the data. I've used a Cruzer for several months now and love it (I'm not getting paid for this either). But this isn't a commercial for the Cruzer (you can click here to see and read more about it).

The point of it is that this attorney was wise enough to realize that, first, his client needed more advanced help in a specific area of law than he was comfortable with. Second, he identified who could help his client out (in other words, pick your referral attorney for his or her experience and experteise), and then he went the extra yard to impress that attorney with his-her professionalism and brevity (admit it, none of us really enjoy reading another attorney's multi-page letter) and then tossed in an extra bonus (here the Cruzer stick).

If you want to be noticed, if you want your referral letter to go to the top of the stack of incoming mail, that's the way you do it. Smart. Real smart.

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

Staying Current with NLRG's Free Newsletter

Where do you turn for help to stay current on topics perhaps outside of your normal legal comfort zone? Would you like a free source that is brief, to the point, readable, and written by someone who knows what they are talking about? I've got one for you.

This blog might sound a little bubbly as you read thru it, but they aren't paying me anything for what I'm going to say here and you can only take it as one lawyer's opinion.

A great free source that we've read for years is the National Legal Research Group's "The Lawletter" publication (click here for link). It's a concise 4 page read with each page usually only having one article, each page a different topic or area of law, and always authored by one of their researchers, 40 of whom are full time attorneys. We've used NLRG on special assignments before too, so we know from experience that they have great research and writing skills. They've put those skills to work in The Lawletter and it shows.

The Lawletter topics are always current and the articles always very readable and very usable for attorneys wanting to know something outside of what they already know.

At least once every issue or two we'll spot an article that deals with an issue we currently are either facing or expecting to come up in a pending case file. That tells us that NLRG not only writes well, but knows what issues are hot at any given moment.

For instance this month's issue had an article on "Obtaining Testimony from Uncooperative Out-of-State Witnesses" that details, with citations, exactly how to handle that. Did you even know there was something called the Uniform Foreign Depositions Act? Did you know the majority of US states have adopted it? We sure didn't and that can come in handy for any attorney's practice.

Check out the current issue of The Lawletter by clicking here. The info is great and the price is too (it's free).

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

Free Expert Witness Tips

If you'd like to get a free newsletter that periodically has tips on how to make the most of an expert witness, including pitfalls and traps, here's a tip for you.

Flagel, Huber, Flael & Co, www.fhf-cpa.com, distributes a periodic newsletter on Litigation Support that almost always has an article on using an expert witness. Granted much of it is often aimed at using an expert accountant or other similar expertiese, but the general tips are very useful and come in a compact and easy to read format.

The one I just received included ar

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ticles title "Why proper training and experience are essential in an expert" and "Daubert study highlights expert witness vulnerabilities." Every issue is worth taking the time to read.

And you can't beat the cost. It's free. Their website has a ton of specific types of calculators that are extraordinarily useful too. Check them out by clicking here.

Ronald L. Burdge
www.TheLawCoach.com
Helping Advocates Help Clients Since 1978

Big Type, Little Brief, But is it Better?

Well, Virginia sure knows how to rein in its talky lawyers.

The Virginia Supreme Court, like many other courts, has encouraged lawyers to shorten their briefs (no pun intended) to fewer pages but now they've forced the issue by mandating a larger typeface in all briefs, without changing the maximum page limitations.

Instead of the former 12 point size, the new rule change mandates a 14 point typeface. Heck, even the footnotes have to be in 14 point typeface.

What you used to be able to fit into 25 pages (when you used 12 point typeface) now would take 32 pages.

That means Virginia attorneys will be forced to hone their written arguments to a fine edge and a small word count. Strong arguments will push weaker arguments out of the appeal brief, purely because of the page limitations, but that's not necessarily a bad thing.

In front of a jury you might want to argue lots of different points but in front of an appeals court, which routinely gives great deference to trial judges and jury decisions anyway, you are probably better off focusing the court on a few of your strongest arguments and letting the weaker ones go by the wayside.

The downside is that novel and risky arguments will play out less often, even though they are often the arguments that force courts to consider different viewpoints, untried and unproven, that can move the law forward in the best interests of all concerned, and the law itself. A good example is the large, multi-defendant racketeering case that was tried in federal court in Cincinnati over many months in the late 1970's that resulted in several dozen defendants being convicted of several hundred counts of criminal activity. More than a dozen big name defense attorneys fought hard for their clients through the trial and on into the appeal. Amidst it all was a solo practitioner from a rural town who represented one of the small players in the racketeering case. At the court of appeals he was the only one to argue a very novel approach to the law which the court of appeals ultimately agreed with, reversing dozens of the criminal convictions on a legal argument that some of the best minds in criminal law thought was a waste of time.

If that attorney was forced to play by Virginia's new rules, he probably wouldn't have made the novel legal argument that ultimately won. Brevity can be important, sure, but there has to be room for fair argument too. Maybe Virginia has struck a good balance with their new typeface size rule. Only time will tell.

Will other courts follow Virginia's lead? Probably not very quickly. After all, nothing seems to happen quickly in the court system. But it's a start and the odds are that sooner or later it could happen where you are.

Meantime, you're probably better off at the appellate level if you take the Virginia cue now. One thing's for sure: judges will appreciate it and so will their law clerks.

Ronald L. Burdge
www. The Law Coach .com
Helping attorneys be their best, everyday.

The Value of Professional Assistant Week

In the legal profession, attorneys run into roadblocks constantly and to deal with them you have to have two things: a sense of humor and a great assistant. You can get by with just a sense of humor by itself but you'll go nuts in the process. You have to have the right legal assistant. Period.

For one week out of the year (perhaps thanks to Hallmark?) we get to express our appreciation to those who help us get through every day, and Lord knows they deserve more credit than they ever get. Their contentment and happiness is crucial to your success as an attorney.

Your assistant is the interface between your clients and yourself. Clients will not feel appreciated and pleased if your assistant just doesn't "click" right with them in every call, every interaction. It may be hard for many attorneys to realize how critically important it is to have a great assistant, but it's a fact of business.

Think about the last time you went to a restaurant and how the whole experience was affected by the interaction of each person along the way --- and you never even met the chef or the owner! It's a fact. If the waitress/waiter is not attentive and helpful, friendly and cheerful, it will affect the whole experience and your opinion of the restaurant itself will suffer. It's the same thing with your assistant.

Find the right assistant and everything works great. Get the wrong person for the job, and you professional life will be terrible.

So, the moral is make sure you get the right person in the right job, especially your legal assistant. And then pay them good. And then take every opportunity to make sure them realize that you realize just how important they are to you. Start by telling them when the opportunity arises. And then show it when you can. A good assistant doesn't expect to be treated as though they can walk on water, but they do expect to be treated with respect, courtesy, and appreciation.

But that calls for a whole other discussion...so let's talk about Professional Assistant Week. It's time to make sure your assistant knows how appreciated they are.

One of the best ways to make sure your assistant, and every female support staff member, is happy is flowers. While a male assistant might not be appreciative, there is something about flowers that say "thanks" with sincerity to women. For a male assistant, you'll have to come up with something far more specialized to the person.

For our firm, we try to share humor whenever we can, wherever we find it. Sometimes we even get to cause a smile to brighten up someone's day. When you can, that's a great professional assistant gift.

For us, the Burdge Law Team is more than just lawyers. Each of our attorneys has an assistant, and an entire staff, of dedicated professionals who tirelessly work to squash every lemon and make every manufacturer pay for it.

For them, this week is dedicated. Today they each received a beautiful (and humorous) lemon flower arrangement like the one pictured above with the heartfelt thanks of our attorneys and our clients. Our professional assistants work hard every day to help our clients get rid of their lemon car or lemon truck or lemon rv or lemon boat, or deal with another Consumer Law issue. Because of that, a lemon flower arrangement just seemed right. For your law practice, try to find something that works with your "firm theme".

And say "thanks" too. Flowers are nice, but a personal statement of appreciation is worth so very much more to your assistant. They know that you are a very busy professional, so the fact that you took a minute to express your thanks will say more than the words will ever accomplish.

Try it. No, we should have said try it right now.

Ronald Burdge
www. The Law Coach .com
Helping Consumer Law Attorneys Win Cases Since 1978

Click here to see a list of some of the topics we can help you with on your road to success.

How to Write a Letter to a Client

Law school teaches young would-be-lawyers a lot of things but there are a lot of basics that they don't teach law students at all. One of them is how to write an effective letter to a client. Historically the most common grievances come from lack of clear attorney-client communication skills.

After awhile, letter-writing gets to be automatic but until you get there (and as a reminder even if you are already there), here's some tips on what a client letter should cover, in the order they should appear in the letter.

1. The Why. Tell the client why you are writing (to update them on status of their case or an issue, to ask a question, to provide an answer to a question they asked, to send them documents to review, etc).

2. Just do it. Provide the update, ask the question, give the answer, explain the documents, tell them what you want them to do, etc. Do it.

3. Get a response. If your letter requires a response from the client, tell them how (via email, phone, etc) and when you need their response (a firm deadline). If your letter does not require a response, then say that (so the client doesn't wonder if they are supposed to respond). If a conference with the client is needed, then ask the client to make an in-office or on-phone (say which way you want it to be) appointment to discuss the issue and their resulting response.

4. Explain it. Tell them why or how the immediate inquiry fits into their case at that moment, so they understand why it matters and why it is important to respond.

5. Predict the future. Tell them what will happen next in their case, so they realize that you are working on their case and that you need their response in order to proceed to the next step of the case.

6. Say something good. Use the opportunity to say something positive or provide reinforcement to the client. Your letter may cause concern so your client will appreciate hearing some "good news" in their case, even if it's only your opinion or reassurance that things are proceeding normally as far as you are concerned.

7. Express thanks. Thank the client for their continued patience and assistance and say that if they have any question to let you know and how to contact you (phone, email, etc).

More tips on letter writing:

Generally, your message should be sent in the manner that you expect a response to occur (if you want them to email you, then you use email to send the message, etc). However, always remember that some things require the personal touch of a phone call.

The letter should generally be less than one page or two at the most. Everyone knows that lawyers sometimes like to talk at length. Lawyers often fail to realize that non-lawyers don't like to read (or listen) at length.

If appropriate, a copy of the letter should be put in your follow up tickler system as a reminder for a specific future deadline date.

First-timers need to remember the above. Later, after years of letter writing, you may need to remind yourself again. Good client communications are critical for long-term professional success.

Ronald L. Burdge
www. The Law Coach .com
Helping Consumer Law Attorneys Win Cases Since 1978.

Two Bucks is Worth It

Some things you see are so cheap you can't hardly find a reason not to get them. This is about one of them.

A lot of attorneys still miss the point that the practice of law is a business first and a law practice second. Other attorneys understand that but still have a hard time figuring out how to treat it like a business. One way to start is to begin reading publications that are directed at the business side of your law work because you law work should be about your business.

While in an airport lounge recently I picked up a copy of Business to Business magazine and was surprised to see how much of it was useful to the legal profession. Highlighted articles dealt with a variety of topics that affect a law practice everyday.

"Alive & Well" is an interesting discussion of the policies and politics of health care. If your law firm is concerned about health care costs, and who isn't, then you can get a good dose of health care issues right here. If you aren't at the Delta lounge in Atlanta, you can read (or listen) to it by clicking here.

If you're in charge of hiring, you probably ought to read "The Mellennials Cometh" which is also in the April issue. I learned a thing or two that I'll keep in mind for the next associate hiring and you probably will too.

There's a fascinating article on "The ROI of giving" that talks about the generous return on investment a business can get from charitable donations, a topic discussed a few months back, which deals with stats and studies that show a real benefit to being beneficial.

There's lots more in this issue, and every issue, and it's certainly worth the very modest $24 annual subscription cost. They didn't pay us to write this but, speaking of business to business, maybe they should've.

Ronald L. Burdge
www. The Law Coach .com
Helping Consumer Law and Other Attorneys Win Cases Since 1978

A Disposable Laptop?

Finally. An ultralight laptop that's so cheap you can just throw it away if it breaks, without losing sleep over it. And it only weighs 2 pounds. Light, small, cheap. What more could you want?

The Asus Eee pc has been getting rave reviews that all seem to start out with the fact that it costs less than $400 but quickly point out that it has a solid state hard drive (no moving parts), a built in camera and Wi-Fi and comes loaded with a decent set of 40 basic programs that'll get you running right out of the box. And it'll keep you running for over 3 hours on the battery too.

This is one laptop you have to check out. Read the review in PC Today magazine by clicking here at PCToday.com or check the company's website by clicking here.

Ronald L. Burdge
www. The Law Coach .com
Helping Consumers and Consumer Law Attorneys Since 1978.

Handling Abusive Deposition Tactics

Every once in a while you see an article that you wish you had seen years ago. This story is about one of those.

We've had lots of depositions where the opposing attorney obstructed and interfered with a smooth orderly deposition before. You can takes years, and dozens of depositions, before you begin to figure out how to deal with some of these people. Or you can check out the Ohio Trial "Abusive Deposition Tactics" article published in the Winter 2008 issue by Ohio Association for Justice.

Authored by attorney Rebecca Castell and attorney Raymond Tisone, you'll get great examples and tips, with lots of references to the Civil Rules. If you haven't seen it, go online here to find out how to join OAJ and get a copy. The OAJ membership cost is worth it just to get a copy of this article alone.

The topic is similar to Salt Lake City attorney Robert Sykes' article in The Utah Trial Lawyers Association, December 4, 2003 title "Abusive Deposition Objections: How To Ethically Even the Playing Field" which is another good article on this topic.

A classic example of "lawyers gone wild" appears on YouTube here. If you haven't seen the off-screen fight between two lawyers, and the hapless witness caught in between, it's worth a look. It's a great example of what not to do.

If you've been lucky and have not had to deal with an opposing counsel who abuses the deposition process, then now is a good time to read the OAJ article. You don't want to be reading it later and mumbling to yourself "so that's what I should have done."

Ronald L. Burdge
www. The Law Coach .com
Helping Consumer Law Attorneys Win Cases Since 1978

Ohio Attorney General e-Newsletter on Consumer Law

Ohio Attorney Marc Dann is working hard to find ways to help consumer advocates protect consumers everywhere. He's off to a good start already but now he even goes himself one better.

Attorney General Dann has started a monthly "e-newsletter" that will bring the latest updates on consumer laws, fraud alerts, and prevention tips to your email inbox. Each issue promises to provide links to more in-depth resources to help advocates protect consumers and their clients.

Among recent articles was a list of the Top 10 consumer complaints, showing auto issues at the top spot, followed by credit issues, and more. That list will certainly tell you the heartbeat (or heart ache) on the street. Most people don't know that a more detailed explanation of the Top 10 and other AG office activities can be found in the annual AG Office's report (click here for the 2007 Report).

Tips for online shopping were noted and a nice article on the problems of Tax Refund Anticipation Loans, which is perhaps one of the more clever ways to get into consumer's wallet without all the usual appearances of a ripoff.

If you're a consumer advocate, this free newsletter is for you. It's off to a great start and I strongly recommend you sign up for it. It'll keep you up to date and, best of all, it's free.

You can subscribe by sending an email to ConsumerEnewsletter@ag.state.oh.us or by just telephoning them at 1.877.AG4Ohio.

Ronald L. Burdge

http://www.thelawcoach.com/

Helping Consumers, and Consumer Law Attorneys, Win Cases Since 1978