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.

Ron Burdge

www.TheLawCoach.com

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.

Ronald Burdge

http://www.thelawcoach.com/

Helping Attorneys Win Cases Since 1978

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.

Ronald Burdge

www.TheLawCoach.com

Helping Attorneys Win Cases Since 1978

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."

Ron Burdge
www.TheLawCoach.com
Helping Consumer Law Attorneys Help Consumers. Every day since 1978.

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.

Ron Burdge
http://www.TheLawCoach.com/

Helping Trial Lawyers Help People Since 1978

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.

Ron Burdge
www.TheLawCoach.com
Helping Lawyers Help People

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.

Ron Burdge
http://www.thelawcoach.com/

Helping Consumer Lawyers Since 1978

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

http://www.thelawcoach.com/

Helping Lawyers Practice Law Better Since 1978

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

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.