• 
• There are at least half a dozen attorney fee decisions issued by courts every day.
• Somewhere, someone is writing a fee motion or memo in opposition, and somewhere, someone is getting a fee decision every day.
• For over 20 years I have studied attorney fee litigation and fee motions nationwide, reading an average of a dozen or more fee decisions every week. It still surprises me to see the variety of motion styles, content, and results. 
• To help everyone do their job better, I offer some tips below, that I see working every day. 
•  

How to Support Billable Rates in a Lodestar-based Fee Petition

The fee motion/petition states your case for awarding fees. It is supported by your affidavit and evidentiary attachments, which is evidence. The motion and your affidavit are supported by a non-party attorney or expert witness affidavit, which is evidence.

Suggested content to consider for each of these is listed below, and can be further explained in considerable further detail and length separately. But bear in mind that there is much more to a successful fee motion than merely providing that which is listed below, but this is where a successful fee motion starts.

The Motion/Petition:

1.         Briefly summarize the salient facts of the dispute, the dispute’s litigation history with appropriate emphasis, and establish the status of prevailing party

2.         Identify entitlement, the purpose of and legal basis upon which fees may be awarded to the movant

3.           State the motion’s question(s) at hand (what is a reasonable fee/costs in this case, etc)

4.         Specify the relief you want (i.e., the total hours, the hourly rate of each time-keeper, and the total fees and costs award sought)

5.      State the applicable legal standard(s) and the accepted process for making the decision(s), i.e., determining a reasonable fee using the Lodestar approach and the 12 Johnson factors

6.          Identify the undisputed and disputed issues in the motion

7.         Identify the evidence you are submitting on the disputed issues, explaining what each piece is and why it matters to the disputed issues

8.        (If applicable) identify sparsity of available, knowledgeable attorneys in applicable legal market area

9.           (If applicable) briefly discuss settlement efforts and degree of success

10.         Discuss use of billing discretion

11.       If Survey evidence is submitted, explain methodologies employed to establish accuracy/reliability of results (Survey Report should provide this)

The Affidavit/Declaration of Movant Attorney:

1.                Affiant identity, professional background,

2.               General and Niche Area education, training, experience

3.               Relevant professional recognition, accomplishments, publications related to niche area of law or case

4.               Relevant CLE taught or attended by movant attorney/paralegal on niche area of law or case

5.               Opinion and knowledge of sparsity of available, knowledgeable attorneys in applicable legal market area and basis for it and basis for knowledge

6.               Authenticate affiant’s attached CV

7.        Movant attorney’s knowledge of Paralegal(s) professional background, education, training, experience and basis for knowledge

8.               Time frame and subject matter of case work

9.          Authenticate Time and Costs Business Records, recordkeeping methodology, billing discretion effort

10.            Opinion and knowledge of reasonable hourly rates currently charged and rates sought in motion per Timekeeper and basis for knowledge

11.             Movant attorney’s relevant prior fee awards

12.             Other comparable fee awards in jurisdiction, in niche area of law, and/or by judge on the case

13.             Movant attorney’s comments on application of each Johnson factor to case

14.             Summary statement of any unusual problems, aspects of case that contributed to time or effort

15.             Explanation of any attached supporting documentation, survey report, etc

16.             Final Statement of each timekeeper’s hourly rate and accumulated time for case, and the total fee and costs requested

17.             Explanation of any attached supporting documentation, survey report, etc

18.           If Survey evidence is used, examine and consider use of all applicable survey charts, giving greater weight to those with more applicability to the case at hand; start with the applicable median rate and use other variability charts to modify the initial median and conclude by adjusting for inflation using the CPI online Calculator.

The Affidavit/Declaration of non party Supporting Attorney/Expert Witness:

1.                Affiant identity, professional background, education, training, experience

2.               Identify and authenticate affiant’s attached CV

3.        Opinion and knowledge of movant attorney/Paralegal’s practice area, reputation, standing in the legal community and basis for knowledge

4.               Opinion and knowledge of case’s niche area of law

5.              Opinion of sparsity of knowledge level in local legal community of case’s niche area of law and basis for knowledge

6.             Opinion and knowledge of difficult aspects of handling case’s niche area of law and basis for knowledge

7.             Opinion and knowledge of marketplace hourly rate(s) for case’s niche area of law and basis for knowledge, including, where appropriate, the affiant’s hourly rate

8.           Opinion and knowledge and reasonableness of movant attorney/Paralegal’s current hourly rate and rates sought in motion per Timekeeper and basis for knowledge

9.               (If applicable) opinion and knowledge of reasonableness of total and/or selected task hours in case and basis for knowledge

10.            (If applicable) Discuss evidence of billing discretion

11.            Where appropriate and possible, the nonparty attorney’s specific knowledge should be explained in appropriate detail.

Class Action Note: Most of the minimum contents for the Movant’s Lodestar Approach affidavit remain necessary or useful in the Common Fund Percentage approach, but bear in mind that in most if not all cases the Lodestar calculation is used by the court to “cross check” the reasonableness of the Common Fund’s percentage result. For that reason the movant’s affidavit should first focus on the evidence supporting the percentage approach and its result, by providing citations to cases showing the specific percentage commonly applied by the local court in similar cases. Should a percentage outside the norm be sought, the movant should provide specific evidence that explains and justifies seeking a percentage that is higher or lower than the jurisdiction’s normal common fund percentage award. Focus should also include an analysis and discussion of the benefits to the common fund beneficiaries, including both amounts and time saved and other aspects of the case result that benefitted both the fund and the beneficiaries.

7 Things I Wish I Knew When I First Started Practicing Law

 1. Keep Track of Your Time

Bad habits start early and grow on you. That includes time-keeping habits too. 

 If you’re a new lawyer, start tracking your time carefully from the very start. If you’re an older lawyer, well, start fixing the problem right now. 

 In my first decade I gave away more time than I ever billed - all because of a lack of tracking the time right in the first place. And I’ve been paid less for the billed time than I thought I was going to get too - because when your bill arrives later, there’s always some other bill that got there first. 

 Not tracking 15 minutes of each day - do you know what that will cost you? I ran the numbers once. It can be equal to the cost for a 7 days in Paris at a top hotel, first class airfare included. Think about that.

 Besides, when people need help right now, they will pay for help right now - tomorrow they may not be so committed to it. And being paid leads me to the second thing I wish I knew when I first started.

 ..... more tomorrow.

Ronald L Burdge, Esq.

www.TheLawCoach.com

Helping Lawyers Helping Clients

E Ron@BurdgeLaw.com

T 937.432.9500

A Farmer's Son, a Veteran, and a War Long Ago

Every Veterans Day we pause to thank those who served and to reflect on the meaning of this day by republishing a blog article written several years ago, to give tribute to the veterans in all of our families - and all the veterans who have served over the generations. We pause to note not our time but to honor the time of the millions of veterans who passed before and after us. The true story below is that of a farmer's son and a war that was only just beginning some fifty plus years ago and which now has passed from most memories, except for those who lived it. Like every war in the last 100 years, it was life and death everyday, half a world away from the evening news.

A few years ago, a local farmer came in to see me for some help. Farming bills and crop prices and debt had him over a barrel and we talked about bankruptcy and what it could and couldn’t do to help relieve his situation. He was a big strong man, the way some farmers just naturally are, both in his heart and his size. We were about the same age but he looked so much older.

His situation took about 5 months to get resolved but I will never forget the day that I learned that he was a chopper pilot in Vietnam about the same time as my older brother, Larry, was there. I had no clue and never would have guessed.

We both stopped what we were talking about, his own current problem, while he looked out the window and quietly talked about what it was like then, back in Vietnam. It was hard for me to look at this older and much heavier man and try to imagine what he must have looked like back in the days of 1966-'68. Now, he was mostly bald and probably weighed a lot more than he did back then, but like me he had been young once too. Now, he didn't move as quick as he undoubtedly did back in 'Nam either.

But you could tell from the distance in his eyes as he spoke that he had never really left it all behind him.

He talked about what it was like to fly a chopper in and out of valleys and hills and fire, dropping down as quickly as he could and picking up a wounded soldier or two and getting back out of there, wherever "there" was, as fast as he could. Nothing but plexiglass between him and the bullets.

He said he loved flying helicopters then, but that he was never in his life as scared as he was in those few minutes between the time just before he would land and when he was back out of the worst of the fire. He said they were the longest minutes of his life. He called it dodging a lifetime of bullets, scared to death that one of them had his name on it.

He had a dusty old baseball cap in his hand as we talked. It hung loosely in his hand as he gazed aimlessly out the window. It was from some team that didn't really matter, I'm sure. His eyes were never in the room with us as he calmly and matter-of-factly talked of how men died around him and also of those who came back like him.

You could tell he had memories he wished he didn't have. He said the worst feeling he had from the whole war was that every time he'd lift off the ground he knew that while he was getting out of there, he was leaving other boys behind. He'd fly away, his heart pounding loud in his chest, while the fighting went on below him.

After a long while, he stopped talking and we just sat there, not talking at all. I could see that things were going on inside his mind and I just didn't know what to say. I was dumbstruck by this seemingly now-gentle giant of a man who had been through hell. Truth be told, I didn't think I had a right to say anything at all. After what seemed like the longest time, both of us returned to the present moment. He never spoke about it again.

It's been years now. I don't even remember his name. Probably most of the guys he saved didn't remember it either. I haven't thought of him since then until my older brother sent me a recording he found on the internet, called God's Own Lunatics (click below) that explained what it was like to be one of those foot soldiers on the ground. I clicked on it, listened, and the memory all came back to me.

I recall that he was the son of a local farmer who had gone off to war and came back all grown up - to be his father's son, a farmer again. Something about beating your swords into plows seems appropriate for me to end this note but it also seems so trivial a thing to say. I can still recall his face.

We all owe veterans a whole lot more than any of us will ever be able to repay. If you know someone who served, shake their hand and thank them. You don't need to say why. They'll know. And remember on this Veterans Day that there are lots of vets that aren't around for you to thank, so say thanks to those who still are. Thanks, Dad. And thank you, Larry. Two of the wisest bravest men I have known in my lifetime. Veterans.

What are the Smartphone Apps that Attorneys Really Need?

If you are anything like us, and you probably are, your tablet and smartphone are loaded up with apps that you sometimes use and probably a lot that you don't use. It can be overwhelming.

But what apps do attorneys really need?

That's the question posed by Ohio attorney Tami Kamin Meyer whose article by the title above that you can read here.

GoodReader and Dropbox are obviously on the list, along with some others that make it an interesting read and worth your time.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Helping Clients

Ohio - Arbitration Clause Can't Take Away Statutory Rights

Arbitration sucks, we've said it before and we'll say it again. Arbitration sucks. 

But whatever you think about it, in Ohio a binding mandatory arbitration clause can not be used to take away a consumer's rights under Ohio's Udap law, the Ohio Consumer Sales Practices Act. Still, more and more arbitration clauses are trying to not only take away a consumer's right to go to court, but to also change the laws they can use.

Ohio's Udap law, the CSPA, makes it illegal for any merchant to do anything that is "unfair or deceptive" (the words in the law) to a consumer. And if they do, then the consumer may be able to recover triple their actual damages, attorney fees, and up to $5,000 in non economic damages for aggravation and inconvenience, etc. Car dealers hate this law.

Its no wonder then that a Cleveland area internet-based car dealer, was sticking mandatory and binding arbitration clauses in its sales paperwork with consumers. But it went one step further and added a sentence that said "The non-prevailing party shall pay, and the arbitrators shall award the prevailing party's arbitration costs and expenses, including reasonable attorney's fees." Lawyers call that a "loser pays" clause and it means that if you are going to sue the car dealer then you sure better win or they might go after you to make you pay their attorney fees. But that's not what the the law in Ohio says.

In other words, some car dealers not only want you to not be able to go into a courtroom where the public can find out what they did to you, but they also don't want you to be able to use consumer protection laws against them at all. Ah, c'mon, guys, don't you think that's a little too much?

Well the Eighth District Court of Appeals thought so when it decided Tamara Hedeen v Autos Direct Online, Inc. on Sept 25, 2014, and tossed out the arb clause.

Dayton, Ohio attorney Beth Wells reports that the appellate court ruled that "where a consumer's CSPA (Ohio's Udap law) claim is subject to binding arbitration, limitations on a consumer's right should not be allowed by a private arbitration forum." A couple of pages later in the court decision, the appellate judges threw out the arbitration clause entirely and held that the consumer buyer now has the right to go to court.

In the consumer's case, the court noted, she had bought a used 2011 Mercedes online for $28,000 and later discovered that it had sustained over $20,000 in undisclosed damage and over $7,000 of the damage had never been repaired. It's things like that which explain why some car dealers don't want consumers to go to court at all. She filed her case against the dealership with claims that they had committed unfair and deceptive acts in violation of Ohio's Udap law and Ohio's little-known Motor Vehicle Sales Rule, OAC 109:4-3-109.

A public court, where the public can see what is happening in our Justice system - that's what Justice should be all about. A Big Round of Applause to Attorney Beth Wells on a job well done.

The Law Coach

www.thelawcoach.com

Helping Lawyers Help Clients

Women Lawyers Just Don't Handle Trials The Same

Now, there's nothing wrong with that. It's just a fact. And every man who has tried a case against a woman attorney knows it.

They view things differently. And that gives them a different viewpoint on the witnesses, the evidence, the Jury - simply everything.

And perhaps that difference can be their most distinct advantage in a courtroom.

Learning to use that advantage may be the key.

Photo from http://woman.thenest.com

That's why if you are a woman lawyer you may want to be in New Orleans in September. 360 Advocacy puts together some terrific conferences and Sept 14 to 16 they are gathering some of the best women trial attorneys for a conference for women, taught by women, aimed at maximizing trial skills for women. Frankly, it's a terrific idea.

The CLE conference is promoted as "Trial Skills from the Woman’s Perspective features a faculty of women trial lawyers and trial consultants who will not only teach you all aspects of litigation, but will teach you those skills in ways that make sense to you, have the look and feel that resonate with you, and allow you to use your unique skills and approach to your best advantage."

Although 360 Advocacy typically focuses on topics related to the plaintiff personal injury bar, we have attended similar PI trial skill conferences before and found the trial skills they teach are mostly universal and apply to most areas of law - the focus is often on trial skills and not just a single area of law.

If you can go, it's very likely worth your time and money. And if you aren't aware of the 360 Advocacy group, they have a lot of useful white papers, resources, and useful info.

Ronald Burdge

www.TheLawCoach.com

Helping Lawyers Win

Trial Skills from the Woman’s Perspective features a faculty of women trial lawyers and trial consultants who will not only teach you all aspects of litigation, but will teach you those skills in ways that make sense to you, have the look and feel that resonate with you, and allow you to use your unique skills and approach to your best advantage. - See more at: http://www.360advocacy.com/conference-details/trial-skills-from-the-womans-perspective/#sthash.EqHa5D1w.dpuf

Now YOU Can Follow the CIA

 
The CIA is famous for its secret legal briefs to justify electronic eavesdropping and following of all of the rest of us. Well, it turns out that now you can follow them too.

Although burdened with all of the spying work, the CIA found time to open their own Twitter account on June 11. No doubt before doing so they put a team of their crack agents together on what their first tweet should be.

While we can never know the months of research, meetings, group conferences, and thought that went into it, they did come up with an astounding and insightful first tweet, "We can neither confirm nor deny that this is our first tweet."

Yeah, that took a lot of work. Knowing who it is though, the real question is - if you "follow" them, will they also "follow" you? Be careful out there.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Help Clients. For More Than 25 Years.

Lack of Good Faith in Mediation Prompts Sanctions

A federal Magistrate Judge in Pennsylvania imposed sanctions against a corporate defendant for failing to mediate in good faith. It's a warning with reading about.

In Grigoryantis v Safety-Kleen Corp., US District Court, WD, PA, Case No. 1:11-cv-00267, on May 28, 2014, Magistrate Judge Kelly found the defendant liable for attorney fees and plaintiff's travel costs because the defendant attended a mediation with no intent to make a settlement offer because discovery had not concluded in the case and it was against their policy to make a settlement offer until discovery was closed.

The court noted that the defendant had opportunities to advise the court of its policy and thereby avoid the mediation scheduled but it failed to do so.

While the plaintiff had complied with the court order to provide a pre-mediation settlement offer to the defendant, the court also noted that the defendant did not comply and did not provide a pre-mediation settlement offer to the plaintiff. Apparently plaintiff's counsel was notified of the defendant's "no offer policy" by the mediator at the mediation itself.

In its 14 page decision the court noted that other courts had imposed sanctions in similar situations.

The moral of the story for all lawyers is simple. Never attend a mediation without authority to actually engage in the mediation process. If your client does not want to settle yet, then the mediation is premature and should be postponed. If you are not in a position to fully advise your client on all things necessary to negotiate, then don't schedule a mediation in the case.

The legal process can be hard on the parties and the lawyers and even, at times, on the court itself. Compounding that with a lack of good faith can result in serious damage to your reputation and your client's interests.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases For More Than 25 Years

What is the best source of good brief writing tips?

Scribes, the American Society of Legal Writers, often sends grammar, writing, drafting and other tips to its members and each one is a jewel. It seems like every day or two I get one of these email tips and each one is to the point and worth repeating to new associates and young attorneys - actually anyone who writes legal documents of any kind and wants to stay on top of their game.

For instance, today's grammar tip came from Ann Taylor Schwing and is a brief guideline on how to use bullet points. "Often a listing of specific items need not or should not be numbered. Numbers may incorrectly indicate a hierarchy or ordering of the items. In these cases, bullets work well."

She is right, of course, but in spite of the hundreds and hundreds of legal documents I have written, drafted, and filed in courts all over the country, it never occurred to me that there was a logical and good reason not to number items in a list. She goes on to explain how to make bullet points read well and be recalled well. Her tip is well worth a read --- but then again every tip from Scribes is well worth a read.

Scribes membership is open to all attorneys and their avowed purpose is to clear, succinct and forceful style in legal writing. Membership cost is remarkably inexpensive too (just $65 a year).

This started out to be just a pointer on where you can get some terrific tips on legal writing style but perhaps has turned into an endorsement of Scribes membership. Take it as you will, but Scribes writing tips (and Scribes itself) is a terrific source and reminder of how to improve and keep your writing quality at its top level. We would gladly pay $65 a year just to get their constant emailed writing tips. The rest of the membership benefits are bonuses.

Ronald L Burdge

www.TheLawCoach.com

Helping attorneys do better for more than 25 years

Practicing Law Profitably

Here's a link to an updated version of a presentation on Practicing Law Profitably that was given in 2009 at a national conference in Philadelphia. Think of it as an early Christmas present from us to you!

Ron Burdge

www.TheLawCoach.com

Helping lawyers help clients for over 25 years

Did a Penguin Sit on Your Web Site?

Penguin is the new sheriff of search results.
Watch out for the itchy finger on the trigger,
it could be aimed at your website.

The Penguin was turned loose by Google. That's bad news for some lawyer websites - but also a golden opportunity for many others.

First the bad news. If you don't know what Penguin means then check your web site analytics and see (you do have analytics installed on your web site, don't you?). Analytics gives you all sorts of measurements on your web site activity. Sort of a stethoscope by which you can tell if your web site's heart is beating. A strong heartbeat means your phone is ringing and new potential client emails are coming in.

Some reports from lawyers are that their web sites are getting only 60% to 70% of the traffic they got the month before Penguin walked all over them. And one lawyer reported their analytics show they were only getting 12% of the web site traffic they were getting before Penguin - that is a very serious drop akin to falling off the mountain. They are in total website rebuild mode right now. Maybe you should be too.

Do you know what Penguin did to your web site ranking? Well, you better find out. Take half a dozen of your keywords and run a search and see where your web site is in the results. That can quickly give you an idea of how much work lays ahead of you or your SEO.

If you are getting fewer client calls than last month, if you are getting fewer web site visitors than last month, if you are getting fewer email inquiries from your contact page than last month, it very likely could be because Google's Penguin sat on your web site and flattened it with a search engine ranking penalty that knocked you backwards in the results ranking for your keywords.

Most lawyers and law firms don't have a search engine optimization web site techie full time. Most don't even have one part time. Most just had their web site built a year or two or more ago and are now just resting on their site, maybe adding some new content every few months. Maybe not. Well, Google's Penguin won't let you do that anymore.

Every once in a while search engines re-tune their engine. They call it their algorithm - that's their super-secret formula that their search engine uses to decide what order to put the search results in when someone runs a search on, say, "divorce lawyer" or "auto sales fraud" or "lemon lawyer near me" etc. Many lawyers put their keywords in their website long ago and their web site has been on autopilot ever since.

Well, on May 22 we all experienced what some SEO folks are calling a massive search result change in rankings - but it didn't happen to everyone. For some, they stayed in about the same place in the search rankings. For many though, there was a very serious drop.

Google's effort was apparently intended to discredit what is perceived to be "spammy" web sites which show little real and meaningful content or maybe lots of links out (what we called "link farms" back in the early days). It's not that links are bad, but paid links created just for the sake of making money from doing the linking has never been like by Google.

Now for the good news. There's an opportunity here for every lawyer that wants to show up on the first page of Google search engine results.

A lot of lawyers have no clue that Penguin is on the loose, pushing their website further and further down into the search results. For those who know and act on it, they have a chance to surpass long-established lawyers and law firms and leap ahead of them in their search results. For them, Penguin could bring a smile to their face.

Penguin now recognizes what Google calls "hilltops" - those are what the minds at Google have deemed to be valuable content-rich web sites of authority in their field. Typically, those web sites rose significantly higher in search results (thus, became a hilltop), while web sites that Google thinks are less authoritative fell into the "valleys" of the search results - more like being thrown out into the desert, we'd say.

Fundamentally, it looks like Google's new Penguin search algorithm is putting a high emphasis high-value, entertaining and informative, authoritative content - and on what SEO whitehats call "earned links." Those are links that someone makes to your web site simply because you have great content on it.

Does that mean that outbound and inbound links to and from like-minded websites is worthless now? No, because Google (like all search engines) looks at both outbound and inbound links for your site to see if the linking is with relevant content and Google is smart enough to figure out the difference between a relevant link and a spammy link.

Will things change anytime soon? Not likely.

But can you really afford to sit by and do nothing for now? No.

What can you do? The SEO crowd seems to still be debating that one. But there is a growing consensus that there are a few things that can have a faster favorable impact on your search result ranking.

First, start building what Google calls "assets" into your web site pages. Those are things like downloadable ebooks, white papers, pdf documents, your self-authored studies, etc. Google likes to see them because they show thoughtful analysis and not just marketing. And they can start to earn you valuable inbound links from those hilltops. So start to work on driving mentions of your web site content by others who are not on your web site along with those valuable inbound links. Add new content that informs and entertains. That will earn links and Google is looking for them because it considers them to be evidence that your web site contains authoritative content that others value.

Good inbound links are more important than ever.
The Penguin says so.

Second, work on your links. Make sure the outbound links on your website, and the inbound links coming to your website, are the right links. If you have links out to lawyers in other areas of the country who practice law in your field, that's okay because their content is relevant to your content. But if you have links going out to websites whose content is not relevant to your own web site content, now might be a very good time to prune them back or get rid of them altogether.

So if you don't have links on your site which go out to other relevant websites with valuable and useful content, now might be a good time to start building them.

One idea for lawyers that serves both purposes, creating your on-site assets and creating inbound links at the same time, is to publish Legal Guides on Avvo which can be a source for your own on-site content. Combine that with active participation in the Q-A section at Avvo and you can build both links and traffic to your site. You can see examples of Avvo Legal Guides by clicking here.

There's a lot more you could do, sure, but you can start with going over your website in detail and fine-tuning every aspect of it.

There's a solid explanation of what Penguin can mean for you, posted by Chad Pollett, over at ContentMarketingInstitute.com, along with a copy of Google's pre-Penguin-launch video. If you care about being on Google's first page - and you should - then watch the video and read Pollett's explanation. It's sort of like, this is what they said before and now that they have done it, here is what it means to you.

Now, it's time for all of us to get to work so we can please the Gods of Google, who realize full well that they are the elephant in the search room that can not be ignored.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Helping Clients Every Day

Free CLE Books from OBAR 2 Days Only

OSBA, the Ohio State Bar Association, has unlocked its hundreds of CLE course handbooks for free access by all Obar members until end of day Wednesday, May 15, 2013. Come and get 'em, folks!

Obar has over 300 ebooks, in 3 different device formats, all available for free but you have to move fast.

You can download any of them for free. If nothing else, you should save those of interest to you for later reading.

You can access the free OSBA ebook library right now by clicking here www.ohiobar.org/ebook. Some of the very best legal minds in the country have authored these Continuing Legal Education course books.

OSBA

This is your one and probably only chance to get thousands of pages of great practice info on all sorts of topics, tech tips, trial practice advice, negotiation strategies, probate practice advice, going paperless, using movies to learn trial practice techniques, understanding financial statements, business law, depositions, legal writing, using powerpoint, debt collection laws, building your practice, appellate practice, jury reading, better memory tips, using adobe acrobat, getting organized - you name it and they've got it and it's free.

Check it out today. After tomorrow, it'll be too late! And you can't get a better price than free, folks!

Ronald Burdge

www.TheLawCoach.com

Helping lawyers win cases and get more clients, since 1978.

AAA shows no neutrality in arbitratiion solicitations

Justice in an Arbitration Straight Jacket
Pic source - Consumerist.com

In public the American Arbitration Association touts itself as a neutral arbitration provider that helps people "resolve conflicts out of court." Well, actually that does not appear to be the real purpose of AAA.

The real purpose appears to more likely be to cater to the interests of large corporations and prevent consumers and ordinary people from being able to exercise their constitutional rights. If you think AAA is a neutral group that takes no interest in who is right and who is wrong but just wants to help people find cheap and fast and easy solutions to legal problems, you'd be wrong.

The are doing full blown solitications and training sessions to help teach big business how to use mandatory binding arbitration to sneakily take away consumer rights and keep people from ever being able to publicly air their gripes in a courtroom - and, of course, AAA is making more than a few bucks in the process too.

You can read more about it at Public Justice, where folks like Senior Attorney Paul Bland are dedicated to protecting people and promoting open access to American Courts and Justice.

To learn more, check out Twitter at #forcedarbitration, click here.

This was part of what we blogged about before when we contrasted the high controversy over gun rights with the total lack of controversy over your court rights. It all brings to mind the old saying about "snooze, you lose."

Every chance we, as lawyers, get - we should be telling our clients to reject arbitration clauses whenever some business tries to foist it on them. We should be leading the charge and encouraging others to come along for the ride to restoring our rights.

After all, it is so very true that Arbitration Sucks - and it is sucking Justice right out of our lives everyday.

Ron Burdge

www.TheLawCoach.com

Helping lawyers, everyday.

What Objections Are Proper in a Deposition?

Deposition arguing is never good

Many attorneys continue to be perplexed over what objections are "proper" when defending a deposition. Well Susan Minsberg gave a terrific answer at Lawyerist.com. Turns out that there are only 5 proper objections and those proper objections may be different than what you and I thought.

Her blog on it is located here Proper Deposition Objections. It's a good refresher reading.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases Since 1978

112 Best Business Books Collection

Internet Marketing Expert Andrew Lock

There are few marketing people who know Marketing, and Internet Marketing in particular, as well as Andrew Lock. He's been at it for years, helping businesses and entrepreneurs understand how to reach people with their products and ideas.

A sought after speaker who pratically invented the video podcast business (with a title like "Help, my business sucks" how could he lose?), for several years we have talked about his amazing and remarkable knowledge of the marketing process and his incredible grasp of using the internet (and much more) for marketing.

Want to know how he got so smart? Well, maybe it had something to do with his personal library of the very best business books written by the very best people.

If you also read business books, like us, and just don't have the time to see what's new unless you are walking through an airport - here's your chance to get a peek inside his library. Heck, you can walk away with 112 of his best books if you want.


Andrew Lock's 112 Best Business Books Up For eBay Bids

Andrew has boxed up 112 of the best business books he has ever read and put them on eBay. They just went up and for about a dime a book, you can get the best business books written by the best business minds in the country. The current bid is less than $12 (as of Nov 21, 2012) and there are 6 days before the sale closes.

We've got some of these books and have read others in his collection but certainly not all of them. We highly recommend bidding on the Andrew Lock Business Books Collection. And if you get them, you'll have lots to read every time you get on a plane - and you won't have to stop in the bookstore and pay publisher prices to do it.

Ronald L Burdge

www.TheLawCoach.com

Helping Lawyers Run Their Business for Over 30 Years

Is Big Money Buying Votes Today?

With so much "new" money being thrown at the election this year, one thing is very clear.

This will be the year when we all learn whether or not the 1% can buy an election with their money. Whether it is true that if you say it often enough and loud enough, people will believe it - whatever "it" may be.

Or, if the people who vote are smart enough, and tenacious enough, to ignore all the negative advertising and just figure out on their own who the best person is for the job of helping them live their lives every day and fulfill their dreams for their families tomorrow.

In one country we know of, by law all the advertising stops two weeks before the election. All the rhetoric dies down. Calmness tries to return. Rational thinking has a chance to take over.

Given the literally hundreds and hundreds of millions of dollars that the "superpacs" have thrown behind the politicians they want us to elect for ourselves, but really just to help them out, shutting off the advertising machine is not that bad an idea. Calm, rational thinking sanity would have a chance to return.

No one can be sure what this election cycle will prove. Not today. Not in the near future either. But one thing is for sure. Only a politician can say that corporations are people. They are not. They are a legalistic imaginary creation. They are not a bad thing. They are not a good thing. They are just a thing.

Legalistic imaginary Things should not be able to buy our vote. We hope they don't buy your vote today.

Ronald L Burdge

www.TheLawCoach.com

Helping Attorneys Help Clients, for More Than 25 years

Things a Lawyer Can and Can't Do

Ethical Things That Lawyers Can and Can't Do

Practicing Law "101" - the rules still are getting ignored. And not always by younger, inexperienced lawyers.

There are some new cases from the Ohio Supreme Court that came out today, dealing with failures to comply with ethical obligations by Ohio attorneys and they serve as a reminder to all attorneys, in and outside of Ohio. Since the same old things happen, it might be good to take a few hints from these recent suspensions.

Attorney Fee Agreements. While most states still do not require a written fee agreement in an hourly rate case, that isn't the case with a contingency fee case. Regardless of that, though, why take a chance on a misunderstanding? Last time we heard, most grievances occur for two reasons - lack of regular client communications and fee disputes. Put it in writing may not be the rule but it is the smart thing to do. 2012-Ohio-5012 (failing to use a written contingency fee agreement; failing to register for electronic filing with Court where case is pending).

Continuing Legal Education. This is a no-brainer - and you would think that it takes brains to get through law school and pass the bar exam, so this should never be a problem. But it continues to result in hundreds of suspensions every year across the country. You have to comply with your state's continuing legal education requirements. No if's. No but's. No way around it. 2012-Ohio-5004 (failing to maintain continuing legal education requirements).

Giving Legal Advice While Suspended. Another no-brainer. It is hard to understand how this one can happen by any intelligent person, let alone a lawyer, but apparently it can. 2012-Ohio-5004 (giving legal advice while suspended).

Failure to Cooperate. If you get a letter from the Bar Grievance Committee, ignore it at your own peril. Merely failing to cooperate with an investigation is, all by itself, grounds for disbarment or suspension. 2012-Ohio-5004 (failing to cooperate with investigation).

Trust Account Screw-ups. Okay, so you have a Trust Account. Now use it. And use it right. Don't just throw all the cost deposits and settlement money in and figure it out later. And messing with it? You think the bank doesn't have records? If the Bar investigator doesn't get a straight answer from you, it doesn't take much to get the bank records and figure it all out - without much any help from you at all. Keep precise and accurate Trust Account books. Balance them regularly. Know how much each client has in the Trust Account. Oh, and keep your own money out of it. 2012-Ohio-5014 (failing to reconcile Trust Account monthly; failing to maintain individual client records of Trust Account funds).

Practicing law can be fun (and profitable too), but not if you spend your time dealing with ethics complaints too.

Ronald L Burdge

www.TheLawCoach.com

Helping Lawyers do Their Best, for Over 30 Years

Kentucky - the Only Bar Assn to Offer Free CLE

We belong to the State Bar Associations in both Kentucky and Ohio, along with a number of local bar associations. Kentucky, however, is unique in what it gives back to its members.

In a time of tightening budgets, Kentucky's judicial centers have suffered the same budget cuts as other states, if not worse. 282 employees statewide were cut, $25.2 million cut from the Judicial Branch funding, and repeated trimming. They even imposed three furlough days during 2012 when all non-elected court personnel stayed home and offices closed.

But the state Bar Association continues to do the one thing they have done for years for their members. Free CLE.

It's All the CLE You Need and it's Free.

Like other states, Kentucky has a mandatory continuing legal education requirement - but with a difference. They also give an annual Fall program that meets the CLE requirements for free to KBA members, the Kentucky Law Update. It is a remarkable member benefit in these continuing tight times for the legal profession.

The program goes back to 1984 and is presented annual in various cities across the state so it is convenience for all bar members. It is designed to be of value and use to all members, regardless of their years in practice. It is a terrific member benefit.

You may think that membership dues for KBA must be a lot higher than other states, right? Wrong. It is actually just a few dollars apart from our Ohio State Bar Association membership dues ($305 in Ohio, $310 in Kentucky) - where there is no free CLE for members. So five bucks gets you all the CLE you need, including ethics. That's a bargain.

It seems obvious but also seems to be ignored - the fact that CLE programs are often presented by association members who get paid nothing for their effort (although they do get "bonus" teaching CLE credits), so why doesn't EVERY state and local bar association do what Kentucky does? You'll have to ask your state and local bar associations that question.

This is one area of a lawyer's life where Kentucky does it better than the other 49 states, without a doubt. But for those of us who are also Kentucky lawyers, we just smile.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Help People, Everyday

Getting the Judge to Yes, Part 1

A happy judge is a friendly judge

We all know that if your judge understands the merits of your case, it not only makes the legal process easier for you and your client, but it can be a tremendous boost to more quickly getting a fair settlement too. Here's part one of the discussion.

When it comes to getting a trial judge to say and do the things that help you press opposing counsel to settle with you though, the judge may not start out believing in the merits of your side of the case and he/she may never get there without your help. The time for you to start that process is not when you are first standing in front of the judge.

If they don't understand the reasoning behind the law or at least emotionally sympathize with your case or your client, you'll have a tough time from start to finish. While you may think that appellate judges may be smarter about the Law in some respects, and that may help you post-verdict, the simple truth is that a settlement sooner had means settlement money of more immediate use - and that can be valuable to both you and your client. It also makes your life easier.

Getting the judge on your side starts first with drafting the Complaint in a way that is reader-friendly and rouses emotional appeal of the reader, be it the judge, a clerk, or a local reporter cruising through the clerk's office that day just looking for something to write about. Remember, the Complaint is the one document in a case file that many judges will actually read, sometimes before an Answer is even filed (besides, the Answer hardly ever really says anything meaningful or detailed anyway).

You might as well make your Complaint interesting and take advantage of the opportunity to educate and entertain. Your goal is to make the reader finish reading it and say to themselves "what the defendant did here is just wrong." 

Law is Generally Rooted in Morality

Notice that I did not say that you want the reader to say something like "the defendant violated Revised Code number so and so." That's because all laws are fundamentally based on morality and if morality isn't on your side, the law probably isn't going to do you much good in the long run. So put enough well-worded info right up front to give basic facts in a readable way that shows your client was wronged.

Notice that I said both info and facts. The facts tell the story of what happened but it is the info that explains why what happened is also a moral wrong. You need both of them to tell a persuasive story of wrongful conduct. 

The first few paragraphs of your Complaint is not the time to lead the horse to water and then cross your fingers and hope that they will figure it out. Be blunt. Be complete.

One of the best opening paragraphs I ever read in a Complaint sounded like the opening few minutes of a 60 minutes story or one of those (real) news magazine shows like 20-20 or something, using plain ordinary words that casually led me to the writer's reality. I grabbed my attention from the start and at the end of it, I knew who was right and who was wrong.

There's an old newspaper rule that can help you and it says that the first paragraph of any story should tell the reader who, what, when, where, why, and how.  That can help you cover the bases but it shouldn't be your goal and you may not want to always include the 5 w's in paragraph one.

With that in mind though, the first paragraph of your Complaint should grab the reader and explain the basic thrust of your case in an emotional way that cries out for justice. Avoid reciting the law, legal citations, and legalese in the first few paragraphs - there's plenty of time for that later. And forget about the elements of a cause of action when you write those first paragraphs - that has nothing to do with it. Think of it as you would your closing argument or opening statement. You want to tell your story and say it in a way that makes them agree with you and your side of the case - very, very quickly and very, very strongly.

That's why we think the opening paragraph should focus on the moral and emotional aspect of the facts at hand and do it in a way that makes the judge decide right away that if what you say is true then you should win the case. We all know that judges can find the law (or the reason) to let you win if they want to do so - you just have to make them want to do so.

An angry judge is not good for you

The place to get the judge on your side is at the start of the case. Mostly because getting raked over the judicial coals later on, well, that is no fun at all. 

During the pretrial and conferences later on, you can talk all you want about statutes and social goals, legislative intent, etc, but at the end of the day you have to have the judge on your side or your life in the courtroom can get very, very difficult for you and for your client. 

And it all starts at the beginning - before you ever enter the courtroom. 

Come back soon for tips on what to do if your case is already going on - more to come.

Ronald L Burdge
www.TheLawCoach.com
Helping Lawyers Win Cases, for Over 30 Years