Thursday
The E-Myth Attorney, why most legal practices don't work and what to do about it
In November 2007 Janet Varnell and I discussed how to apply Michael Gerber’s E-Myth principles to Consumer Law lawyering in a presentation titled “Lawyering E(entrepreneur) Myths” at the annual NCLC Consumer Rights Litigation Conference in Washington DC. Little did we know that within four years Gerber would publish “The E-Myth Attorney: Why Most Legal Practices Don’t Work and What to Do About It,” a companion volume to his original “The E-Myth” book.
We won’t take credit for it, certainly, but it turns out that Janet and I were right in our thoughts on how the E-Myth principles could be applied to Consumer Lawyers and many of the lawyer E-Myth ideas we talked about back then have made it into print.
While they do teach us how to be lawyers, they don’t teach “How to Run Your Business” in law school. Gerber’s new book should be mandatory reading for third year law students. It is that good. And if you are a struggling lawyer looking for a way to free up your life and get on solid financial footing, this book is for you. It is the book that Janet and I should have called Gerber up and offered to help him write.
But we didn’t. That credit goes to Robert Armstrong and Sanford Fisch, two attorneys who were inspired by the first E-Myth book. Now you get a chance to look over their shoulder and find out how to apply the E-Myth principles to successfully running your own practice. It doesn’t matter if you’re a young pup fresh out of law school or an old dog like me — there’s plenty here to apply to every stage of your law career — and it’s never too late to teach an old dog a few new tricks.
This book is full of so many great tips and advice that it should be on every Consumer Lawyer’s night stand. Don’t sit it on your desk and promise yourself that you’ll read it right after you clear that stack of papers next to it. Don’t kid yourself. Get away from the office and grab some quiet time when you can take this thin 178-page volume to heart and mind.
It’s a quick and easy read but the principles in it will both inspire and aggravate you. Inspire you because you’ll likely find yourself saying “Yeah, that is absolutely right” and aggravate you because you add “why didn’t I think of that years ago?” Either way, I promise you will get more out of this book than you likely learned about lawyering in your entire first year of practice. In fact, you’ll probably recognize for the first time some of the many mistakes you made at the start of your legal career and also see, maybe for the first time, how you could have (and will from now on) avoid them.
Some of the chapter titles include “On the Subject of Money,” “Managing the Unmanageable,” “Your Client Loves You, He Loves You Not,” “What time Do You Have?” and “The Reason Behind the Work.” Each of those, and all the other 26 chapters are invaluable.
There are chapters that explain why lawyers aren’t business people and how to fix it, the importance of knowing your numbers, the good and the bad and the ugly of handling people-clients-associates-and-others, the four kinds of money, how to handle a prospective client who asks for a fee estimate at the beginning of a case, why a business plan matters, the importance of time to a lawyer (hint: it’s a lot more than just Abraham Lincoln’s quote), why systems matter in a law practice, what to do when change comes to your practice and to your life, and, of course, the purpose behind your law practice.
The authors talk about so much that this review can’t possibly do the book justice. So instead I’ll just tell you to get the book and then pay particular attention to the wisdom found on these specific pages: 16-22, 26, 29-30, 32-43, 44, 55, 67, 73, 93, 99-100 — oh heck you should pay attention to the wisdom found all thru the book.
At the beginning of this review I said that they should make this required reading for every third year student. Actually that’s wrong.
It should be the first thing a new law student reads at the start of law school - so they get exposed to the importance of the business side of practicing law right away.
And it should also be the last thing a graduating law student reads - so that they can then see and better understand the business principles it teaches in the light of the legal training they have completed.
As Professor Kings field said in the 1973 movie, The Paper Chase, to his new law students, “You come in here with a skull full of mush and, if you survive, you’ll leave thinking like a lawyer.” If you read this book, you can start thinking like a business person too. And if you don’t think like a business person too, well, then thinking like a lawyer won’t be enough to save you from yourself.
As I read this book on the airplane last week, I recalled Janet and I saying many of these things to the 50-plus attendees of that Doing Well While Doing Good seminar back in 2007. It felt good to know that Janet and I were right in some of our thinking about the E-Myth principles and their application to Consumer Lawyers. At the same time, there was so very much more to it.
Get this book. Read it. See for yourself.
And if you know someone graduating from law school, give them your copy after you read it. They are going to need it.
Tuesday
Communicating directly with your jury in voir dire
It just isn't as easy as Perry Mason made it look. |
Of course, your questions and conversation (and that is what it should be) will revolve around the people and issues in your trial and those will often be unique to each particular trial. But there are some general guidelines that can apply to the voir dire in most trials.
Remember foremost that voir dire is the time for you to make friends with your jury. Do not cut it short and ask every question with a smile and warm expression on your face. You may naturally appear surprised at some juror comments but you should never appear dissatisfied, irritated or upset with a response.
You should be genuinely interested in learning all you can about each individual juror so ask open-ended questions that probe responses and promote conversation. Finding the right open-ended question can be extremely difficult so plan your questions out ahead of time so you can minimize the awkwardness of fumbling for the next thing to talk about.
At the same time, though, your manner should be relaxed and appear to be completely "off the cuff" and not planned out at all. The most effective voir dire should leave the jury thinking that you have nothing but a very bare outline of what you were interested in and you didn't stick to it.
One good technique is to outline the topics and areas that you want to cover. Ignore the language you want to use in the exact questions for the moment. Your starting point is just sort of a bullet list. After you are satisfied that you have everything covered, next start writing out the list of questions - phrased as if you were asking it in front of the jury. Write out every question you think would matter. When you are completely done and satisfied that you have covered it all thoroughly, read through your list one more time and put it away. Then, the day before the trial is to start, go over the list again. Finally, throw the list away.
Okay, that will be hard. But remember that it is more important to have the jury like you that it is to cover every question verbatim. Voir dire is about getting to know the jurors, yes, but it is also about getting them to feel comfortable with you and begin to like you and your manner and style. All of that is far more important than covering every little detail in every question on your list. This exercise (writing an outline and then all the questions and then discarding it) is designed to put the material in your mind in an organized fashion and not to give you a paper crutch to use during voir dire.
You can use humor as long as you do so carefully, lightly and tastefully. Be human and show compassion and attentiveness. Listen. If you don’t listen, you don’t learn about your jurors. If you don’t learn about them, you will seat the wrong jurors. And you know what happens when you seat the wrong jurors in the jury box.
Listening and engaging in conversation is critically important. Find out as much as you can about each juror. Use the customary questionnaires as a springboard for more conversation. At the same time, you have to strike a balance between inquiring and appearance obviously probing. The balance should be struck in favor of casual curiosity. Think of it as being a slightly more formal version of a dinner party where you get a chance to meet someone you do not know and learn more about them - and the object is for you to learn about them and not the other way around.
Knowing your case is critical. Keep it in mind and look for the chance to use juror responses as the opportunity to tie in your case proof and claim elements with juror experiences and responses. That can build a bridge between the jury's common experiences and the case you are going to present. The objective in this technique is to make your case personal for the jury, to get them invested in your side of the case so they want to help your client win.
And if your court process has you excuse a juror in front of the panel, always look at the juror and thank them in the same sentence that you exercise your peremptory. The rest of the panel will appreciate your courtesy and professionalism. If you excuse them only while speaking the judge, the rest of the jurors may think you are cavalier or, worse yet, don't care at all about them.
We could go on a long time about the importance of voir dire and the many books and articles that have been written, but we hope these few tips are enough for now.
Next time we will talk about your direct communication with the jury in your opening statement and why you need to be wary of the jury's sense of smell.
Thursday
Communicating with your Jury the Indirect Way is important too
Throughout the trial, always show utmost respect and courtesy toward the jury and the judge. Jurors expect it and anything less will offend the jury, even if the judge overlooks the missteps that will occur in the heat of a trial.
A level of “professional” courtesy and respect should always be shown to your opponent and all other persons in the courtroom. This is not the same thing as “utmost” courtesy and respect. Jurors know that in a civil lawsuit the two sides do not agree on something and are fighting each other over it, with the expectation that it commonly involves money.
The result is that the jury expects to see a fight. A courteous and professional fight with words, yes, but a fight nonetheless.
Control your communication with the jury. A trial is about the evidence and witnesses that are presented to the jury for their consideration. Although it should not be about the attorneys or their personal styles, human beings can not help but notice and, at times, be influenced by nonessential and extraneous information. At all times, control your dress, style and mannerisms.
If the jury thinks you are not genuine and sincere with others in the courtroom, then they may not accept your evidence as genuine and sincere - or as truthful. The result is that you may have great difficulty communicating your evidence to the jury in an accepting manner. And that indirect, subtle communication may have occurred without the attorney being fully aware of it at all.
Next time we'll talk about the direct communication with the Jury that occurs in a trial, starting with the Voir Dire questioning of the prospective jurors - where the jury gets their first view and impressions of the attorneys in the case. And the Judge.
Tuesday
Communicating with your Jury starts before you talk and continues after you sit down
When does it begin? Your communication with the Jury starts before you talk. From the moment you are both in the same room, in fact when you are walking down the hallway on your way to the courtroom, the communication is occurring.
Every physical aspect of you is being inspected by the jury pool. Your clothes, hair, demeanor, face, attitude, gait, style - everything. Before the trial starts, you are on display and the Jury’s perception of your competency is already on trial. You are “on trial” from the moment you arrive at the courthouse, long before you enter the courtroom, and long before you stand up to begin your voir dire. Knowing that fact can make a difference before your trial even begins.
Your acceptance and your credibility with a jury starts with how you look and how you act. It solidifies with what you say and how you say it.
As a trial attorney, you are both an actor and the director of the stage play that is the trial itself. The jury is the audience. Whether the audience applauds you with a verdict (you win) or throws tomatoes at you (you lose) will depend on how well you present both yourself and your version of the play. The version of the play that you present, of course, is your client’s version of the truth.
Ironically, your opposing counsel is presenting his or her own version of the same play (and their truth) and the Jury is watching both of them unfold in roughly the same time frame. Ultimately, they will applaud only one side’s presentation. They will only believe one side sufficiently to award their verdict.
The prevailing side’s version of the truth becomes, in the process, the truthful reality that is accepted by the Jury and on which they award their verdict.
In most courtrooms you will have three chances to communication directly with the Jury - voir dire, opening statement, and closing argument. You may also get a rebuttal argument, for a final and fourth opportunity. Each of those presents a uniquely different chance to communicate from the communication that will occur during the vast majority of the time that the trial will consumer each day. For that reason, the indirect communication that occurs during a trial must not be ignored. We'll talk more about that next time.
Wednesday
Finding and Using Social Media Evidence in Court
You can read the topic's paper given to the attendees by clicking here (limited time only, so get it now) for a free download to read offline later.
Here's an outline of major areas covered (lots of subtopics in each):
A. Understanding Consumer Transaction Media Methods
B. Common Industry Listing of Social Networking Sites
C. Other Jury and Individual Person Online Research Sources
D. Social Media and Litigation Implications
E. How to Subpoena Facebook and MySpace Data
F. Relevant Statutes and Ethics Opinions
Business books to read to run your law practice and keep you sanity - my suggestions are ...
Free Seminar on the Importance of Web Site Content
I strongly recommend you consider tapping into this free opportunity.
The seminar is called "Why Content Matters - And How to Make Your Mark" and he'll be talking about how you can get off the idea of spending a lot of money and instead concentrate on getting your content into a quality level to spread yourself and your impact (and your marketing opportunities) over the net - okay, casting a wider net so people can find you.
He'll talk about:
Just go to this URL: [click here or cut and past the link below into your web browser]
http://www.legalpracticepro.com/why-content-matters-webinar/?awt_l=H55KA&awt_m=L8RKOLzxcrRb1R
Jay is, quite frankly, well worth paying to listen to - and here's a chance to get it for free.
Tuesday
Referrals Matter More Than Ever - Say Thanks More Than Ever Too
Okay. So the economy is down and business is still not back to where it was a few years ago. Don't quit just yet.
Pay attention to your referrals. Those are the best sources of new clients you can have. Why? Because when another attorney refers someone to you they are saying that they know you and they trust you. And whey they say that to a prospective client of their's - it's the best thing they can say about you.
So, don't forget to thank them. In these tough times, you need every new client you can get. Be sure to let the referring attorney know how much you appreciate the fact that they thought about you, if you want to keep those referrals coming.
A personal handwritten thank you note that is written on quality stationary or a quality oversize note card, and then sent through the US mail, says volumes about your courtesy, appreciation, and professionalism. Emails are nice, but they don't give that extra emotional feeling that a human being gets when they open up a quality envelope, unfold a quality printed thank you card, and read a personal hand written message of thanks on the inside.
It says you also care about them. And you appreciate them. And you won't forget them either. And that reciprocal thought makes that "thank you for the referral" card worth its weight in gold.
Friday
A Different Closing Argument (a Guest Post)
For a different approach to handling a closing argument, here's an article that Elliott Wilcox has kindly allowed us to reprint here. It's a different idea to consider in your next case. If you don't subscribe to his Trial Tips Newsletter, I'd highly recommend it.
“The -Best- Closing Argument?”
by Elliott WilcoxHow do you structure your closing arguments? If you're like many attorneys, you probably take advantage of primacy to start strong and tell the jurors how strong your case is and show them why you deserve to win. Normally, that's exactly how I coach law students and trial lawyers to structure their closings. “Start strong,” I'll say, “disclose your weaknesses in the middle, and then finish strong.”
But... That's not necessarily the “best” way to outline your closing.
Trial advocacy is art. Unlike mathematics or science, where only one correct answer exists, art doesn't necessarily have a “best” way of doing something. Working from the same palette, Cézanne, Picasso and Dali each created radically different depictions of the human form, but none of their masterpieces can objectively be called “the best.”
The same is true of closing arguments. There are many different approaches, but we can't objectively say one of them is the “best” way of structuring an argument.
So, with that in mind, let me offer another approach for structuring your closing argument.
Rather than starting with your strongest argument, then saying “But, here's the weakness with our case,” you might want to consider starting with your case weakness before discussing the strongest part of your case. That's because the word “but” indicates, “Put aside what I just said, and pay attention to what I'm about to say.”
For example, let's pretend that during your semi-annual review, your boss tells you, “Overall, your job performance is excellent, but... your communication skills need improvement.”
If you're like most people, you probably fixated on the negative portion of the evaluation, even though the overall evaluation said you were doing an excellent job. It's just human nature - when we hear the word “but,” we tune out the previous statement and focus on what follows. Don't believe me? Just imagine the person you love most in the world telling you, “I love you more than anything else in the world. You're the most wonderful person I've ever met. I can't imagine life without you. But...”
All it takes is one word and you've completely forgotten about how wonderful you are, haven't you?
With that in mind, you may want to reconsider the structure of your closing argument. Many cases have been won with arguments that basically said, “We have a strong case that deserves to win... BUT, there are a few weakness in this case that you should know about.” If you're afraid this structure may increase the risk of jurors placing greater focus on your case weaknesses, you may want to re-write your argument like this: “There are a few weaknesses in this case that you should know about... BUT, we have a strong case that deserves to win.”
You probably won't want to try this format during opening statements, because at that point the jurors don't know anything about your case yet, and you'll want to fully maximize the power of Primacy by establishing a strong, positive image in your jurors' minds. However, by the time you reach closing arguments, the jurors have heard all of the testimony and seen all of the exhibits in your case, so Primacy doesn't play as big a role.
By the time you reach closings, the only thing left is argument. By discussing your weaknesses first before talking about the strength of your case, you may enhance your credibility with the jury and help them become more receptive to your arguments.
The important lesson is that there's no “best” way to craft your closing argument. Don't get locked into thinking there's only one way to structure your arguments or that there's a “magic bullet” that will work in every trial. Each trial is different, each client is different, and each jury is different. As the trial lawyer, it's your job to discover which structure you should use and which arguments you should make to create your “masterpiece” closing. Good luck!
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.comThursday
You Can Get More Done by Doing Less
Court Cancels Sale of Haunted House
http://www.burdgelaw.com/
Monday
Part 5. How Your Web Site Can Make You Look like a Buffoon
Tuesday
Part 4. How Your Web Site Can Make You Look Like a Buffoon
Sure, everyone just loves to see those “page not found” messages, so let’s have a web site with links that don’t work or pages that aren’t listed in the Site Map at all so the Google spider can’t find them either.
If a prospective client takes the time to find your site and then can’t find what they want in only one or two clicks, they think you could be a buffoon. Check your outbound links to make sure they all work. And then six months later check them again to make sure other people’s web sites are still out there to even be linked to.
And make sure your links are to web sites that are relevant to your site visitors. Links to irrelevant sites can actually hurt you because it can resemble a link farm. And search spiders hate link farms.
A link farm is a web page whose sole purpose is to post outbound links to as many other web sites as they can get someone to pay for. Search engine algorithms don’t like them because they have been programmed to know that it’s just an effort to make them think that the target site pages have more meaningful “real” links to them (from non-farmers) than really exist. In other words, they know a con when they see it.
There are software programs all over the net that check links on your page for free. An easy one to use, which checks the first 60 links on a web page for free is Webmaster's Link Checker. It's quick and easy to use.
So check your links regularley. And that reminds me of another common problem. We'll cover that one next time.
Sunday
Part 3: How Your Web Site Can Make You Look Like a Buffoon Without Really Trying
Part 2, How Your Web site Can Make You Look Like a Buffoon Lawyer Without Really Trying
Monday
Small Law Firm Break-Even Analyzer
While not intended for lawyers starting out on their own, the program can be used for it and can help young lawyers put on their entrepreneurial hat and plan their business future much better than the old pen and paper approach.
It's just one of several online services you can get free from Small-Business-Ideas.net. You can comjpare different scenarios, see what happens when you increase (or decreas) your income or expenses, and it reminds you of the categories of expenses that you have to account for.
We highly recommend every young lawyer try it out before you strike out solo on your own.
Saturday
How Your Web Site Can Make You Look like a Buffoon Lawyer Without Really Trying
Thursday
Spyware Disguised as Fake Security Warnings
There's nothing worse than to lose all your hard drive contents to a virus infection you didn't even suspect was coming at you. Attorneys don't have time to wrestle with computers.
Monday
Is there marketing help for lawyers?
There's a nice article over on Law.com's Small Firm Business page by Kimberly Rice titled "How Can law Firms Help Their Lawyers with Marketing?" with some great tips.
Why LinkedIn Should Matter to You: Using Social Media
The Legal Intelligencer has posted a short, less than 5 minute, introductory video to the use of social media that marketer Gina Rubel presented at a seminar. Nicely done, it gives you a brief overview of LinkedIn and other social media.
It's well worth the watch. You can view it here: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202461733777&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100621&kw=Why%20LinkedIn%20Matters%20for%20Law%20Firms
One click back in the url will take you to a list of other informative videos that are worth a look, each on different topics. While the site is heavy on the home town lawyer scene of Pennsylvania, it has lots of articles and posts that apply to the legal industry in general. It's "Today's Headlines" feed is one of my regular subscriptions and the entire site is worth a look-see.
Ms. Rubel is right to tout the advantages of LinkedIn and other social media. Learning to use it well is the one great advantage that young lawyers and upstart law firms have in the ever-competitive legal services industry.