Are you practicing law in a bad economy?

Think you practice in the state with the worst economy? Think again.

Everyone seems to know that California is in the biggest economic trouble, with an economy in the dumpster, high unemployment, and no easy way to fix any of it. That makes practicing law in California tougher than practically anywhere. What may surprise many attorneys is not California at all. It’s the other states that are so very close to their own economic abyss. And that abyss can kill a law office's bottom line.

After all, when people can't afford a lawyer, people don't hire a lawyer. When that happens, they lose, the lawyer loses --- and so does the legal system itself because it never has the chance to give people their day in court. The economy in general affects the economy of lawyers specifically.

There’s a new study out that has looked at the economy of all 50 states and ranked them.

The PEW Charitable Trusts has crunched state numbers for more than a decade, with a goal of making state governments stronger in order to improve the services we all get for our tax dollars. Part of that includes reporting on the bad times and, as we all know, we are now in a blockbuster bad time.

They looked at numerous factors to come up with a scorecard for each state: foreclosures, budget gaps, loss of revenue, unemployment, how easy or hard it is for each state to raise its taxes in order to cover shortfalls, etc. All of those things affect the ability of consumers to afford legal representation.

With a “30" score being the worst and a lower score being better, here’s the “top 10" of the worst state economies, in order: California, Arizona, Rhode Island, Michigan, Oregon, Nevada, Florida, New Jersey, Illinois, and Wisconsin.

Wyoming, Nebraska and Iowa scored the best. So if that's where you practice law, don't move your practice.

So where does your state fit? Ohio is almost the center of the list while Georgia’s budget gap put it just a hair behind the auto belt states of Michigan-Wisconsin-Illinois by one point.

The worst ten states account for nearly a third of the US population and economy, which is why those states in particular matter to all of us.

What the study shows is just how much farther the US economy has to go, although there are bright spots of how hard some states are trying. Wyoming, for instance, had a 19.7% drop in revenue but managed to come with 2% of balancing its budget.

Law firms will get through this as the economy starts to get better and better, but if history has shown anything, it’ll be a longer road than anyone wants it to be.

Burdge Law Office

www.TheLawCoach.com

Helping people protect themselves everyday. Since 1978.

Google Legal Research is Here and Now

Google the noun has become google the verb. That's old news. How about Googling your legal research? And it's here right now. Beta, yeah. But it works.

Granted Westlaw and Lexis have no reason to lose sleep right now, but it's coming. After all, they offer a lot more than just court cases and their own methodology and search techniques have been honed to fit the lawyer's mind from decades of experimentation. But Google is free, and that's tempting to new young lawyers who don't have the resources to sign up for the paid services that offer a lot more bang for the buck.

Google Scholar is a database that Google has been quietly building and they've now added the ability to search court opinions from the US District Courts, the US Court of Appeals, the US Supreme Court and from all fifty states.

It's got the familiar Google interface and the only obvious thing that distinguishes it from the "home" Google search engine web site page is the smaller print under the "Google" that says "Scholar Beta." And the searching is easy, but a bit clumsy and it'll take some time to get used to.

But it's biggest advantage? Limit yourself to one state and a time frame of say the last 9 years and plug in a specific phrase or topic, like "lemon law" for instance, and in a flash you will get all the court decision there are. No waiting. No hourglass busy icon. No time to even lift your coffee cup up off the desk. It's that fast. Okay, I know you're thinking it ... it's "google fast."

You can use the "advanced" link to limit your search to one or more jurisdictions and you can search by date ranges. Like Google itself, it's slick and simple. Maybe too simple for lawyers to get used to, but the next generation of law students? It's right up their alley.

But there's lots of questions. After all, it is beta.

Who knows how deep the content is, how often will it be updated, where does the data come from, and just how strong is Google's committment to legal research --- or does beta mean maybe it'll be around next month, and maybe it won't? No one seems to know for sure, so for now take a spin and see what you think. Like it or hate it, let us know and we'll report back.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers help their clients since 1978.

Marketing Lessons from a PI Firm

Jim Reed, a personal injury attorney in Elmira, New York says his firm is thriving in this down economy and he has a few ideas posted to one of TechnoLawyer.com's listserves that are well worth passing on here (and if you don't subscribed to TechnoLawyer, you should; it's a great way to stay on top of the law office technology).

I am very pleased to report that my firm is kicking butt in 2009. Our #'s for the year are up more than 25%. This follows several years of good results so our current success is no short-term blip. With that said, continuing success is our daily mantra and we do not rest on our laurels …

Our success is a culmination of many factors that we have been working on for years:• Hire great employees (and fire the bad ones!).

• Focus on niche practices & create blogs for each niche (ie. NYInjuryLawBlog.com).
• Work with a savvy marketing firm (Mark Merenda from SmartMarketing) and make marketing part of your daily "work",
• Jettison underperforming practice areas and/or partners.
• Invest in the best technology and train your entire team how to use it.

Most important of all … just do one thing, every single day, to make your firm just one little bit better than the day before.

It never ceases to amaze me that success is the culmination of many little things, done day after day, rather than some huge "new" program or project.

Check out his firm site: www.zifflaw.com and his blog at: www.NYInjuryLawBlog.com

He's absolutely right that each day you need to do at least one thing that markets your firm and makes it better than the day before. That's a great tip on how to build (and keep building) a great practice.

Ron Burdge
www.TheLawCoach.com
Helping lawyers help people since 1978.

Is it identity theft or is it bank robbery --- and whose fault is it?

We've talked before about identity theft and its dangers and lots of people have. There's even a terrific British Youtube about it and the puzzling question of whether it is really identity theft at all (or is it just electronic bank robbery?). Well maybe we're about to find out.

Patco Construction Company, Inc. v People's United Bank dba Ocean Bank, no pending in state court in Maine, may tell us just whose fault it really is, besides the cyber criminal of course.

Patco was a long time customer of the bank but after losing hundreds of thousands of dollars from online theft and then getting a notice from the bank that they wanted Patco to pay it back, they decided they had enough. Patco sued the bank for the loss. 'bout time, some would say. So would I.

While the claims include negligence, breach of contract, breach of fiduciary duty, and more (what, not bailment?), fundamentally the theory is that the bank failed to live up to its most basic obligation, which is to protect its customers' funds from theft. Patco's case is one to watch. With the increasing rise of cyber theft, sooner or later a client may come to you and ask what they can do about it.

The Patco bank's claims of sophisticated "behind the scenes" security measures and computer programs didn't do much good to stop cyber thieves who dipped not only into Patco's accounts, but did so repeatedly, transferring money to accounts that Patco had never used before, and from internet addresses that Patco had never used before either. The thieves even managed to tap into Patco's line of credit for a hefty $200,000 transfer.

When you think about it, Patco's claims make sense. All banks are quick to point out, on their websites and in their paper brochures, how they have all these computer theft protection measures set up to protect your deposits from theft. Much of it is advertising directed at encouraging consumers to use the internet for electronic transfers and bill paying that are high-profit transactions for the banking industry. After all, there aren't many tellers working inside that big bank computer box. Heck, there's even fewer of them at the walk in windows nowadays.

A century or two ago people put their money under the mattress or buried it in the backyard because that was safe. Now when you put your money in the bank, it's because you think it's safe. Well, not quite as safe as it used to be.

Still, if you give a friend $50 to hold for you, it's only natural to expect that they'll have it on hand to give back to you when you ask for it later. Especially if that "friend" is a big bank that collects millions of dollars from thousands of people and then invests it and charges interest on loans and makes money off your money (which they keep). That's a simple idea that any juror can grasp.

You expect the bank to protect your money and when they don't, it doesn't really matter whether they had one computer program to stop cyber thieves or a hundred of those programs. When the money is gone, it's gone. But it ought to be the bank's fault.

So let's stop calling it identity theft and call it what it is. Bank robbery. That makes a difference because, you see, the bank is insured. Okay, so if the insurance pays off, then the bank's next insurance premium will go up. Sooner or later the bank will decide it needs to fix it so cyber theives can't get into your account. It's either that or facing rising insurance premiums or cover the loss themselves.

So when will that happen? When we all make it happen. Banks don't like losing money and they don't like paying out money either. When it starts costing them money, they'll do something about it. Until then, they will keep tellling you that it's "your" identity theft problem and that it was "your" money that was stolen and not theirs.

How Patco's case comes out will be very interesting. But, one thing is for sure, the rest of us will be watching. And you can bet that the banks will really be watching.

Ron Burdge

www.TheLawCoach.com

Helping consumers and consumer law attorneys since 1978.

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