I Am Done...
No...I'm not done with MyShingle, though my infrequent postings over the past few months may have given you that impression. Rather, I am done with the initial draft of a book project on a topic related to starting a law firm that I have been working on for the past two and a half years. By my Word Perfect word count, my draft comes in at 363 pages (double spaced, Arial 10 pt. font) and 142,395 words. Whew! I know that I'll still have some more editing, as well as a couple of inserts to add here and there, but I am considering my draft officially complete, with just 9 hours to spare before my end-of-2006 deadline.
I'm wishing all of you a Happy New Year! I know that it will be a good one for me. I'll resume more regular posting in 2007.
The Smallest Things Have the Biggest Impact
When I reflect on my thirteen years as a solo, what comes to mind first aren't my major victories, but instead, my small moments. I actually have at least three small moments that have influenced the course of my practice, but today, I'll discuss just one: the day I changed a judge's mind.
Back in the early days of my law firm, I handled court appointed criminal work, about ten to fifteen cases a year, primarily to get hands on experience in court. After a year, when I had some experience under my belt (but still remained awfully naive) I was assigned to represent a sixty something, petty offender who'd just been released from jail (for some drug or petty theft) and had been arrested in a drug buy, found with a syringe in his sock. In an effort to secure his release on bail (he'd only been out of jail for a few months and did not want to go back), I concocted some story about how he had the syringe as part of a needle exchange program, and also argued that with his many ties to the area, he wasn't likely to flee. I secured my client's release pending trial.
Now, my client had more experience with the "system" at that point (his "rap" sheet, i.e., his list of priors dated back to the 1970s and was 4 pages long). He told me that he'd be off parole in 6 months and that we needed to postpone any trial until after that, because, otherwise, he'd face a more severe penalty. I agreed to follow this strategy (besides, from what I had already learned, it often took more than 6 months to get to trial anyway).
A few weeks later, I showed up in court with my client for a routine status hearing. My client kept falling asleep and snoring loudly and though I'd nudge him and tell him to wake up, his behavior persisted. Eventually, the judge took notice and ordered my client to the back of the court to take a drug test. When status call concluded, the judge called me to the bench. "Your client's a walking pharmacy," he said. I'm going to lock him up pending trial." "Your honor," I exclaimed, "My client is entitled to a hearing." "Well," said the judge, "You can have a hearing if you want, but my mind is made up!" The judge set a hearing for after lunch.
Now, I knew if my client was locked up, our delay strategy wasn't going to work any more. Plus, I thought that the judge was unfair. My client's release was not contingent on passing a drug test and my client was undergoing treatment, trying to break a decades old habit. During lunch, I called my client's drug treatment counselor and gathered statistics on the success of older addicts in breaking their habit. I called the client's daughter and gather information on how difficult it would for her father if he were sent back to jail.
When we returned from lunch, I put on a rousing argument for my client. I quoted the statistics and the daughter, I shared my personal experience about the client and his intelligence and effort to get himself back on track. I must have spoken for fifteen minutes because when I finished, the prosecutor whispered to me "wow - that was great" and he didn't oppose my request. The judge said "I was prepared to lock your client up, but you changed my mind." And he told the client he was lucky to have me as his attorney.
The hearing was entirely inconsequential - just a hearing on whether my client would remain in jail pending trial. Just a silly, small thing. But that hearing made me realize that I have the power to move people, to change a judge's mind. And whenever I go to the line for my clients before a judge or a jury, I remember that day and try to summon that power.
As solos, what we do is small by biglaw standards. No multimillion deals, no mega corporations as clients. We represent individuals, small companies, often helping them with day to day matters that aren't earth shattering the greater scheme of things. And yet in our small way, we make a big difference.
What's your small moment? Please share it below or in a cross post at your blog.
Lawyers as the Bearers of Bad News
The recent shootings at a Chicago law firm by Joe Jackson, a disgruntled and crazed client have spawned a search for reasons behind the tragedy. This article, Lawyers balance inventors' hope (12/17/06) explores one rationale: that Jackson, like other inventors who seek patents, hold an unrealistic hope of success. According to one patent attorney quoted in the article, "probably less than one in 100" will ever make money on an invention. As the article describes:
Attorneys tread a fine line between being upfront with clients and killing their dreams. "If everyone took a negative attitude, if they said, 'It's too hard, or it will take too long,' then where would our society be?" said Paul Juettner, another patent attorney. "Then Thomas Edison wouldn't have done the things he did -- or the Wright brothers."
In patent law, as in other fields, attorneys must act as the bearers of bad news, the ones who put a damper on expectations. It's probably one of the worst parts of being an attorney, but if we don't occasionally tell our clients "no," or at least ask them to consider a variety of different options, who will?
SIGN UP NOW - FREE TELESEMINAR AND CHANCE TO WIN A DELL!
Readers - I'm happy to announce that Nader Anise is holding his annual FREE teleseminar for lawyers. I've called in twice now and both times, have come away with some really interesting information. In contrast to many others who hold free "give-aways" like this, Nader does not use it as a "teaser" - he gives away real ideas that you can implement right away. Plus - if you sign up, you have a chance to win a new computer!
Because I was busy, I'm late to post this - the call takes place 1 pm Dec. 19. So go sign up NOW!
P r e s s R e l e a s e
FOR IMMEDIATE RELEASE
Contact: Evy Pasvantis · Tel.: (888) 510-1520 · Email: EPas@NaderAnise.com
Biggest Marketing Event for Solo Lawyers and Small Law Firms Features Hot Topic, F-R-E-E Dell Laptops
Nader Anise’s 5th Annual “Lawyer Appreciation” Teleseminar Expected to Draw 800+ Lawyers
Boca Raton, FL – December 7, 2006 – The biggest event for solo practitioners and small law firms (aka, “lawyerpreneurs”) by telephone is getting bigger – and it’s f-r-e-e. Nader Anise’s 5th annual “Lawyer Appreciation” teleseminar is expected to draw 800+ lawyers from around the world.
This year’s topic is, “SPEED – How to Achieve Super Fast Success Marketing Your Law Firm.” Anise selected it because, “It is one of the most common questions I receive about marketing – how do I build my law firm FAST?” Among the topics Anise will cover include: advertising, referral generation, internet marketing, strategy, direct mail, profitability, sales, blogs and publicity.
And for the first time ever, Anise is giving away up to two brand new Dell laptops, f-r-e-e. Each is valued at $819. Every attorney who registers for the teleseminar will be automatically registered to win. The winner will be randomly selected. In addition to the winner receiving a Dell, the attorney who invited the winner to register (if applicable) will also receive a Dell.
Details of the Nader Anise “Lawyer Appreciation” Teleseminar are as follows:
Title: “Speed – How to Achieve Super fast Success Marketing Your Law Firm”
Speaker: Nader Anise, Esq.
Date: December 19, 2006
Time: 1:00 pm EASTERN TIME ZONE (U.S.)
Duration: 2 hours
Cost: F-R-E-E (normally $197)
To register for the teleseminar or to get more information, go to www.LawyerAppreciation2006.com. Number of phones lines available are limited.
Nader Anise is an attorney and is the highest-paid legal marketing expert in the country.
A teleseminar is simply a seminar conducted over the phone. Sophisticated conference call technology is used that allows one person to speak and many people to listen, regardless of their location.
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Even the Best Lawyers Have Bad Days - But They Know How To Cover When They Do
Perhaps the greatest fear that I hear from most shinglers-to-be is the fear making mistakes. For example, many lawyers contemplating solo practice, whether fresh out of school or after a tenure at biglaw, have never argued a motion, filed a complaint or taken a deposition (sometimes they've never even observed others doing it). They're afraid that if they take a case on that involves these skills, they'll make a mistake. And they're concerned not so much about a grave error that would trigger malpractice liability, but rather, the smaller errors that cause public embarrassment and humiliation in front of a judge or the client.
Guess what? It's not just new solos who make these kinds of little missteps, who have days when they can't get a coherent argument out or break a witness on cross examination. Everyone does - that's why we call our profession the "practice," rather than mastery of law. But what more experienced lawyers do have is a bag of tricks that they can use to cover errors or mitigate them. Consider this nifty trick that Ron Miller of Miller and Zois' Maryland Injury Lawyer Blog discussed in this post entitled Cross Examination of the Witness That Cannot Be Cross-Examined. You need to read the post in its entirety to appreciate the story, but to briefly summarize, if you can't lay a hand on a witness, compare him to a greased pig. The story is a great example of how to explain away any lack of effectiveness - and then - turn it to your advantage.
Bill Less and Prosper!
Yeah, yeah, I know - it's not about price, it's about value; talk about price and you'll forever be haggling over cost with your clients. I buy all of that...and yet, sometimes, clients do measure value in terms of price. Let's be honest - aren't there matters where clients would hire a 700 person law firm instead of you if they could afford it? I'm not saying that's true for all cases (for example, for most day to day business matters, a small firm is always preferable). But let's face it - look at how many dotcom companies went with large firms like Wilson, Sonsini and the former Brobeck, Phleger instead of small fry because they provided legal service for free or at cut rates in exchange for a stake in the company.
In any event, this is all a set up for the main point of this post, which is this nifty tool for selling your fees and your value, all in one shot. The tool is AmLaw's recent chart showing associate billing rates by class for a number of geographic markets. According to the chart, associate rates in New York range from around $260/hr for a first year up to $425-$485 for an eighth year. Rates don't go nearly as high in Buffalo, where the $130/hr billing rate for a first year and the $210 rate for an eighth year are just half of those in the downstate, metro New York market.
So how does all of this help solos and small firms? First, if you're a Boston area solo or small firm competing for business with biglaw, the chart can help you set your rates. For example, if you've got a decade of experience, you don't want to charge much less than $275 an hour, the going rate for a first year at a large firm. And if you set your rates at $350, you can argue that you're worth it, because you've got double the experience of a 5th year who bills at $485.
The comparison works even better for flat fees and "value billing charges." Say you decide to charge a flat fee of $18,000 for an appeal that you predict will take you 40 hours to research, brief and argue at your most efficient. That's around $450 an hour, $360 even if you take 10 hours more than planned. Moreover, a $18k appeal is a pretty good deal for a company. Now, let's take that same appeal to the big Boston law firm. Figure 30 hours for the 5th year associate to reseach and draft the brief ($14,550 at $485/hr), with 15 hours research and proofing assistance from the first year ($4125 at $275/hr). But then once the briefs have been filed, we can assume that an upper level partner will argue the case, so he or she will need at least a conservative 8 hours of review and prep at $600/hour. Suddenly, that appeal is up to $23,475, $5k above what you've offered, not to mention better value, since when you argue the case, you'll have the benefit of having done the research yourself.
So take this chart and laminate it, and stick in it your desk drawer for the next time you draw up a fee proposal. And to paraphrase Mr. Spock, bill less and prosper!
Sometimes, A Bright Line Rule Just Isn't Fair
This week's ABA e-report (12/8/06) includes this article Bright Line Blunder, about a Virginia Court of Appeals decision to dismiss a litigant's notice of appeal filed by her attorney during a period of time when his license was suspended and he didn't even know about it.
From the article, these are the relevant facts, which arose out of a contested divorce proceeding:
On June 7, 2005, the trial court held a hearing, and on July 11, 2005, it entered a final decree [against the wife]. The wife’s trial lawyer was granted leave to withdraw on July 1, 2005, and her new lawyer filed a notice of appeal on Aug. 9, 2005. The husband then moved to dismiss the appeal as improperly perfected. (Neither of Patricia Jones’ lawyers is named in the appellate ruling.)
At the time he filed a notice of appeal, the second attorney’s license had been suspended by the Virginia State Bar Disciplinary Board. The suspension was in response to an order entered by the District of Columbia Court of Appeals that had suspended the lawyer’s license for failing to cooperate with the District of Columbia Office of Bar Counsel. Ultimately, the Virginia State Bar suspended the lawyer's license for 30 days, beginning July 26, 2005, and ending Aug. 25, 2005.
The court dismissed the notice of appeal, finding that it was a nullity since it was filed by an attorney without authority to practice in Virginia. The court cited precedent that an appeal filed by a foreign attorney who'd not been admitted to practice in Virginia was a nullity and that the case of a suspended attorney was not different. Because it applied a bright line rule, the court found it irrelevant that the attorney was unaware of the suspension.
Stupid result, in my view. Where an attorney knowingly files an appeal and isn't licensed to practice, he deserves blame for the result. But where an attorney doesn't know, why should the client be penalized? In this case, the events all took place over a short period, with the former attorney withdrawing at the beginning of July 2005, the new attorney filing notice of appeal August 9, 2005 and the suspension ending on August 25, 2005. Had the client's new attorney realized that he was suspended through the end of August 2005, he could have asked the client's former attorney to lodge the appeal (or the client could have filed pro se) and stepped in to the case when his suspension concluded. The court's approach rejected this sensible outcome and penalizes the client for an easily avoidable situation.
Obviously, courts ought to enforce their rules. But when a court's decision penalize slitigants' for their lawyers' misdeeds, courts ought to balance the necessity for strict enforcement against the potential harm to the litigant. As for lawyers, there's a lesson here as well: we must always remember that when we violate rules, even inadvertently, we may hurt those who more important than ourselves: our clients.
The Limits of Managing Client Relationships
More lawyers are focusing on managing client relations, adopting techniques from putting ourselves in our clients' shoes to soliciting feedback through surveys to treating them with respect. But sometimes, no matter what we do, clients get frustrated and angry - often not with their lawyers but with the inherent limitations of our justice system - and this kind of tragedy results.
Calling All Solo and Small Firm Lawyers Nearing Retirement
For those who aren't aware, I'm currently finishing up a book on solo and small firm related matters. But my publisher is also at work on a terrific guide to retirement for solo and small firm lawyers. He's looking for lawyers in their 40s, 50s and 60s for a questionaire to find out how they've planned (if at all) for retirement and their own personal outlook about this upcoming stage of their career. If you fit the bill, you can contact him at this email: email@example.com and ask for a survey. As far as I know, there aren't any other books on the market that focus on this important issue, so your input would be extremely valuable.
My Shingle Turns 4 (slightly revised as of 12/7/06)
In honor of MyShingle's 4th anniversary, here's a gift for readers. First, my original Welcome Message which I retrieved from the Wayback Machine since I still haven't successfully uploaded my pre-Typepad files (I still long for the days of slash). And here's a look perhaps into MyShingle of the future: