Court Warns of Attorney Trust Account Scam

If you haven't gotten one of those international emails from a foreign company asking for your help with a legal matter, you probably will. Be cautious. As with any email nowadays, it may just be a scam.

The Supreme Court of Ohio Office of Attorney Services issued a warning to lawyers about an internet scam affecting lawyer trust accounts. Multiple individual attorneys and law firms have contacted the Ohio Supreme Court about the scam.

Here’s how it works: An Ohio lawyer receives an e-mail purportedly from another lawyer for collection of a debt. A follow-up e-mail arrives from the supposed debtor (who is also the client), seemingly legitimate, who sends a bogus check (often drawn on an overseas account) for payment.

The Ohio lawyer is instructed to pay the debt by wiring some of the funds to the creditor and to keep a portion of the funds as payment for his/her attorney fees. The Ohio lawyer then deposits the check in his/her Interest on Lawyers Trust Account (IOLTA), wires funds to the creditor, and retains the agreed upon amount as attorney fees.

Meanwhile, the check goes through international banking channels until it’s eventually discovered that insufficient funds are available in the account to cover the amount. The bank debits the IOLTA for the amount of the returned check, while the lawyer has wired “good,” client funds to the purported creditor. The proposed client is often an actual Asian-based company so it sounds legitimate but the scammers have no real connection with the company at all.

To make it even more convincing, the scammers use real lawyers’ names in the initial e-mail. The moral of the story is clear: be careful.

If an unknown attorney asks you to become involved in a financial transaction involving a foreign company, be wary. Since your Trust Account funds are not your money, an attorney who disburses funds, before a deposited check actually clears the bank, is taking a very big risk. Don't do it until you can verify that in fact the international check has cleared and the funds are in your bank account.

You can report a suspected online crime by contacting the FBI at www.ic3.gov.

Ronald L. Burdge

www.TheLawCoach.com

Helping lawyers protect their clients, and themselves, since 1978.

A Trial Lawyer's Brain Scan

In a remarkably graphic way, the diagram above shows what the brain scan of a trial lawyer would look like if you could do it in the midst of trial. It also explains why trial work is challanging and exciting. Each of those balls represents one piece of evidence that has to fall into place in the course of the trial at just the right time, all of which are moving, and the orchestration of which is mind boggling.

Ronald L. Burdge

http://www.thelawcoach.com/

Helping lawyers win, one case at a time.

My hours were cut but I want to keep my job. What do I do now?

Economic times are tough for everyone. Employees and employers alike. But what do you do when your hours get cut and you want to keep your job?

A young attorney, out of law school only a few years, faced tough news and asked us how to deal with it. After working his first two years after passing the bar exam, all of it in the same mid-size law firm, he received news recently that his full time job was going part time. With student loans looking over his shoulder, he could only start calculating the hard economic reality of losing 40% of his income. His 5 day a week job was cut to 3 days, with no guarantee it won't get cut more in the coming weeks or months.

"I can't live on what I make now but I don't want to lose my job. I like what I do and where I do it but there's no guarantee it won't get worse. What do I do now?" His questions echo the fears of many young attorneys. Are you in that spot? Well, there's a few things to keep in mind.

First, keep in mind that most law firms don't like cutting associates or cutting their hours. The cost of replacing a trained associate, even one with only a few years of experience, is horrible for the law firm. The fear of losing a good young associate is as real for the law firm as is the fear of losing employment for the young associate. If cutting hours was avoidable, it would have been avoided. But the simple fact is that in an economic downturn, sooner or later the loss of business affects even the best broad-based, diversified law firm too. It may not be consoling, but consider yourself lucky you didn't get your hours cut sooner.

Second, get a grip on the present and move on. Okay, so you've got less income next week than you had last week. Figure out what you have to do to deal with it. Don't dwell on it and don't commiserate with others who are sulking and doing nothing about it. That won't help. Find a way to adjust your living expenses first. Don't just give up and start looking for another job. First, the job market is crowded with all those associates who lost their job, or got their hours cut, before you. It's tough. Second, even if you are only working part time, that's better than no time. Don't walk away from a job you like during tough times if you really want to keep it. Find a way to budget yourself by either reducing your costs of living or increasing your money to live with. In other words, look for a part time job to supplement your law work. That may be hard to find too, but it's likely better than walking away and hoping for the best.

Third, stand up. That's right. Stand up. The reason your hours were cut is probably because you were "sitting down" in the crowd. If you want to be the last person they cut, make yourself so valuable to the law firm that they can't afford to cut your hours and risk your departure. But if your hours were already cut, then turn the situation around. Show that you have a value they don't want to lose. So, how do you do that? What do you say? What do you do? Well, standing up is the starting point.

Okay, you've got a choice. You can start showing up 3 out of 5 days a week, just as you are scheduled now to do. Or, you can stand up and stand out.

If you want to keep that job, and get back to full time work sooner, make sure the law firm realizes that you can face adversity and overcome it. You need to prove you will not quit. You need to show the law firm that you value your work more than even the firm does. Don't take the loss lightly. You want a job? Fight for it.

Ask your employer if you can keep working your regular schedule and make it clear that they only have to pay you for the days the law firm can afford right now. If you understand that times are tough, then tell the firm that you understand but you value your work and don't want to abandon your clients or serve them less than what they need and that you're willing to do whatever it takes to support the firm. Note that we didn't say "you're willing to do whatever it takes to keep your job."

The reality is that you get to keep your job by supporting the firm.

The firm is concerned about tough times too and your willingness to help the firm get through tough times and still be successful is, itself, proof of your remarkable value to the law firm. Associate attorneys come and go. The ones the firm wants to keep are those who are dedicated as much to the firm as to the profession itself. Of course, all this assumes that you like where you work. If you don't, then take the cut in hours as an opportunity to move on and find a job that fits you better.

But if your hours were cut and you like your job, then start thinking about what you can do to get your employer back on its economic feet because that is what will get you back to full time work. More importantly, in the process of it you will prove to your law firm that there is no associate attorney who is willing to work as hard, work as long, work as loyally, to help the firm achieve its success.

And why should you want the law firm to succeed? Because, at the end of the day, if the firm doesn't succeed, neither do you. And if you help the law firm increase its success, then you will succeed too.

Ronald L. Burdge

http://www.thelawcoach.com/

Helping attorneys achieve success, every day, since 1978.

Reinventing Yourself: Where the Jobs Are Today

San Francisco is hiring computer game testers. The CIA is hiring "analysts" for its spy programs. California wineries are hiring workers. "Green" buildings are abounding so laborers are needed. In Florida, boat captains are needed for charter boats and in the oil fields.

Okay, none of this has anything to do with law. Or does it?

Many graduating seniors from the '09 class are still unemployed. Law students entering their final year and graduating in '10 may face the same dearth of opportunities. Heck, even well established law firms are struggling. So it's not surprising to see some graduates opting for non traditional work, both inside and outside the legal arena.

There's nothing "bad" to striking out on your own in such hard times. There's lots of great examples of others who left their traditional training and backgrounds to find new work during an economic downturn. Indeed a hugh chunk of the current Fortune 500 companies got their start during an economic downturn.

Thomas Edison did it. The man who founded Federal Express (Fedex) did it during an economic downturn. The stories are actually legion and great examples of creativitiy.

If your job prospects are suffering, now may be the perfect time to figure out what you love to do and go do it. In fact, it may be the very best time.

One place to get started could be the Alternative Lawyer Jobs web site here: http://www.alternativelawyerjobs.com/ .

There's also a great article written by Michelle Borchanian posted by the Michigan Bar, titled "Getting from Here to There: A Lawyer's Non-Traditional Legal or Non-Legal Job Search" here: http://www.michbar.org/journal/article.cfm?articleid=679&volumeid=53.

A little web surfing and you'll undoubtedly come up with more resources.

Ron Burdge

http://www.thelawcoach.com/

Helping attorneys do their best, at whatever they decide to do, since 1978.

How to Protect Your Law Firm from Embezzlers

Fraud is on the increase, reports the Association of Certified Fraud Examiners (ACFE), and leading the pack is the category of occupational fraud. That means employee fraud and in a law office that can cost you big time, in both dollars and client relations.

The ACFE is the world's largest anti-fraud organization, dedicated to reducing business fraud. In their 2008 Report to the Nation, they found that nearly a trillion dollars of business annual revenues were siphoned off due to fraud. Now, their newest report indicates the level of business fraud is rising.

Driven by hard economic times, a recent ACFE national report says that instances of fraud have increased in the last year over past years and they report it is expected to continue to increase.

The report, "Occupational Fraud: A Study of the Impact of an Economic Recession", blames the increase on "intense financial pressures during the economic crisis." The mere existence of an opportunity for fraud to occur was not enough, according to ACFE.

Occupational fraud includes law firm embezzlement. The National Law Journal recently reported on a host of examples of law firm embezzlements, which are more commonly commited by support staff, usually those in charge of check writing or other accounting tasks that involve firm funds. Often, the victimized law firm doesn't even report the embezzlement. Almost always, the firm owes a fiduciary duty to its clients and partners can end up having to make up the loss themselves.

It all heightens the importance of careful hiring and monitoring of employees, particularly those charged with money responsibilities. Most law firm staffers are hard-working and honest to a fault. But in every barrel, there's probably a bad apple somewhere.

Still, there are things that can be done to protect a firm from financial loss or to catch it before it becomes huge. Here are a few tips.

1. hire carefully, check references carefully and require consent to a criminal background check. After all, if the thief doesn't get in the door, you're ahead of the problem. Sometimes just knowing that you are going to do a background check can discourage a bad applicant.

2. require 2 signatures on checks. The vast majority of employee embezzlement occurs because one person has check writing authority and that just makes it too easy.

3. review all accounts monthly. A partner who has no check writing involvement should review account statements monthly and very, very carefully. It takes more time to be careful, but only minutes to lose thousands. Catching a problem early can't end the problem before it becomes devastating to the firm. And change your reviewer periodically too so that all partners share the responsibility. You don't have to know how to balance a check book to wonder why the same person's name keeps showing up in the payee column or other regularities.

4. account reviews should alternately be private and with the check writer. One month the partner should request the account records from the check writer and do a private closed door review by himself or herself. The next month, the check writer should sit down with the partner and go through the review together.

5. change check writers periodically. Many law firms leave the same person in charge of firm accounts for years or even decades. Changing account control just simply helps to keep people honest.

6. watch for signs of drug or alcohol or gambling problems with key employees. Those are frequently involved as causative factors in employee theft.

7. don't count on your accountant to catch anything. Accountants just add numbers up. Generally they can't tell you anything about the entries being made themselves. But an accountant can tell you if something looks out of line. For instance, they may spot too many or too large a "Misc" expense category.

These are just a few tips that come to mind. In these times, economic pressures are everywhere. With a few precautions you can sharply reduce the dangers to your firm.

Burdge Law Office

www.TheLawCoach.com

Helping lawyers help their clients since 1978.

Getting Free Case Law

Westlaw and Lexis aren't cheap, but they offer things you can't get elsewhere. But what if you don't need all that high-powered help? Maybe you just want the basics. Law Technology News had a recent article on some free case law resources and we added a couple of our own too.

Here's some web sites where basic legal research can be done to find cases to help your client for free or near-free.

www.Casemaker.us is available as a benefit for many state bar association memberships, but if you aren't a member, there are some other sources to tap. Everyone has their own preference but here's some to take a look at:

www.Findacase.com

www.lawguru.com

www.Findlaw.com

www.precydent.com

www.lexisone.com

www.plol.org , the Public Library of Law

www.altlaw.org

www.justia.com

www.megalaw.com

There are others out there, but if your budget doesn't allow a paid service for your research, these are some places to start out.

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases since 1978.

Palm, iPhone, & DataViz Documents to Go

If you've owned a Palm for years and thoroughly enjoyed using DataViz Documents to Go, then loving the iPhone and still toting your Palm has been irritating. Well, the irritation may be coming to an end.

Why? Because Documents to Go (DTG) should soon be available for your iPhone.

DTG was considered by many to be the Cadillac (okay, maybe we should say Lexus now) of the word processing programs for the Palm and it was one of the reasons the Palm was such a success, especially with lawyers. You could take your document and load it on your palm and then edit it on the road using DTG. Then you could print it out and you were ready to go.

iPhone, on the other hand, was static with documents.

There was no editing on the iPhone itself and you had to use internet sources or tricky tactics to use the iPhone not to actually edit on the phone but to go on the internet and edit documents there. That was a hassle because it meant figuring out how to upload the doc, use the iPhone to get to it, edit it there, and then wait until you returned to the office to be able to do much about it. Hassle, hassle, hassle.

Well, DataViz says (on their Twitter, click here) that they have just sent the final DTG app to Apple for approval and posting to the store. In a few days you could have DTG on your iPhone.

It still isn't clear what all the app will do but it's logical that DataViz will want it to be as much like the "normal" version as possible. You can bet that means that you will be able to view Word, Excel and likely PowerPoint files on your iPhone. The technical challange deals with being able to edit any of those. The Word documents very likely will be editable on your iPhone and maybe even an Excel spreadsheet, but PowerPoint just may not be ready for prime time yet. We'll have to wait a few days to see.

Still, DTG on an iPhone is long overdue. They aren't talking price yet but whatever it is will likely be no more than the Palm version and probably much less, given the average app price. Regardless of the price though, we'll very likely order up DTG asap. QuickOffice just never was my cup of tea.

Meanwhile, iPhone plans to reduce its third operating system Summer 2009 and intentions are to enable some significant editing abilities and that undoubtedly is part of what pushed DataViz to get DTG out the door. If they wait too long, the market share projections for DTG could well change as other products come online.

When we get the new DTG, we'll be able to see what's real and how much of the old DTG is lost like vaporware. For now, cross your fingers and get your credit card ready.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients since 1978.

Great Site for Free Software Utilities

Downloadpedia is a great site we just stumbled upon. We all use software to do our work and it's worth a look to find a lower cost alternative to the higher cost commercial programs if you can.

They bill themselves as a free content software encyclopedia and that's pretty much what it is, with loads of free software and utilities that is largely open source, including iPod software too. Some of it is deliberately tagged as "for the experienced user" so you have a warning of what you might be getting into, but most of it is for the average, everyday user who just wants to get something done.

One of their best projects, they've put together a list of 50 great free utility programs that you are bound to find something on you can use. Everything from adware and spy programs to website rippers and pdf and more programs in between.

There's even a page with hundreds of free icons and buttons that can be quickly and easily copied for your use in powerpoints or other projects.

Highly recommended. It's worth checking out.

Ron Burdge

http://www.thelawcoach.com/

Helping Consumer Lawyers Helping Their Clients Since 1978

SLAPP Suits Get SLAPPed Back

Picture this. Your client has a legitimate claim and negotiations are fruitless so you file a lawsuit. Then, the defendant files a creative counterclaim that you know has no real legitimate basis.

So why did they file it? To SLAPP your client, that's why.

Merchants and businesses have figured out that they can sometimes get what they want by using (some say abusing) the very system that the consumer is using: the Courts.

A socially unhealthy way to silence critics of any endeavor is to hit them with a lawsuit that can tie them up, both their time and their resources. Such lawsuits have been called a Strategic Lawsuit Against Public Participation ("SLAPP") and the purpose is nothing more than intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Fighting a SLAPP lawsuit is not easy and not cheap, and that is often the very purpose of filing it.

Winning the lawsuit is often not real goal of a SLAPP lawsuit at all. The merchant's goals are accomplished if the consumer-defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons their own cause in exchange for having the SLAPP lawsuit dropped. A SLAPP may also intimidate others from taking the same course.

Well, finally there's a new case that says you can slap back. It comes out of New Jersey and may provide some relief to this sort of vindictive and abusive lawsuit. The case is James LoBiondo Jr v Grace Schwartz, decided May 14, 209, Case A-86/87-07. In a long-running series of lawsuits between the parties, the high court has now made it clear that people who file SLAPP lawsuits can get SLAPPed back.

LoBiondo says that the common law cause of action for malicious use of process can be a legitimate claim by a SLAPP suit victim. In some states it's called abuse of process. To win such a claim the victim has to prove a complaint was filed without probable cause, that was caused by malice, that ended in favor of the victim, and that the victim suffered "a special grievance." That last part is a little puzzling, but the Court indicates it will use some flexibility to determine what a special grievance may be.

The right of free speech or to petition the government, if actually infringed, will satisfy the special grievance element of the claim, according to the Court.

The advice of counsel defense is available to defend a SLAPP suit but when asserted, the victim may also sue the attorney too, but there is the additional need to prove the attorney's primary motive was an improper one.

The New Jersey Court adopted the Restatement 3rd of the Law Governing Lawyers and the Restatement 2nd of Torts to lay out the principles and elements of the claims the victim can use.

The bottom line is that SLAPP suits have been used by some parties to intimidate and plaintiffs and prospective plaintiffs from asserting their rights and now the Courts are finding such lawsuits can trigger abuse of process claims back against the abuser. That's only fair.

The purpose of the law should not be to provide the rich and powerful with a means to silence their critics. Such abusers of the legal system should themselves become the target of "SLAPP-back" lawsuits until they stop.

Ronald Burdge

http://www.thelawcoach.com/

Helping consumer advocates win cases since 1978.

Arbitrators Gone Wild

Binding Mandatory Arbitration, bma, has gotten rave reviews and acidic condemnations. What you think depends on which side of the argument you are on. But one thing is for sure, it's going to be tougher to get around now with Hall St. Assocs. LLC v Mattell Inc (2008), 128 S. Ct. 1396 (Mar. 25, 2008), a case that hasn't garnered as much tought as it probably deserves.

Before Hall St, there was some argument that an attorney could make that if an arbitrator ignored the law in making their decision, then the decision itself was flawed and could be attacked in court. Not so, now. You think it was bad before? It could get much worse.

Now, the Supreme Court has basically held that ignoring the law is not an appealable ground to attack an arbitrator's decision in court.

Before Hall St, Wilco v Swan (1953), 346 US 427, left some room for doubt and some attorneys successfully argued (though it was not often) that if an arbitrator ignored the law and their decision was actually contrary to applicable law, then the decision was flawed to the point that a court could set it aside. Now? Simple: you're stuck.

What the Supreme Court seems to have concluded, in its "supreme" wisdom, is that no matter what the arbitrator does or says about the law, their decision is "right" even if they get it all wrong.

Now it seems more likely than ever that no matter how badly the arbitrator miscontrues or misapplies the law, even to the point of being totally opposite to what the law says, that's tough. It seems like an extraordinarily harsh result, even for a Court that seems to love arbitration as a mechanism that is little more, in reality, than a private system for "justice."

Still, some courts have said that ignoring the law may actually be "where the arbitrators exceeded their powers" and can justify vacating a bad arbitration result. Comedy Club Inc. v Improv W Assocs. (9th Cir 2009), 553 F.3d 1277, 1290, in spite of Hall St.

The result? Arbitration decisions are likely to be upheld even if the arbitrator was mentally "out to lunch on the law" when the decision was made, unless you're in the 9th Circuit. For the rest of the US? It's still anybody's guess.

For now, with a little help from the Hall St., it looks like it's time for arbitrators gone wild --- and so long as the courts are enthralled with the notion that a secret private form of justice can somehow still be justice, then there's little we can do about it.

The moral of the story? Make sure you trust your arbitrator because unless they are totally drunk or schizoid, whatever they decide is probably what you'll be stuck with.

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.