Want Clients? Look To Those Who Care About You Most

One of the first things a business development coach will tell you is to identify people whom you believe can help you in your quest to build a practice. If you’re like me, this might cause you to look around and compile a list of people you think might hire you directly. If you’re an employment lawyer, for example, you might try to identify business owners and human resources directors you know who could have an immediate need for your services and finding a way to market to them.

This is probably not the worst approach. After all, you’re doing something in a calculated effort to build business, which is certainly better than nothing, right?

But better than nothing is not necessarily the best. I’ve lately come to think there is indeed an even better way. Based largely on my own experiences, as well as what I’ve seen with friends and colleagues who truly qualify as “rainmakers,” I believe now that the highest return on effort (ROE), at least when you’re first building your practice, is to leverage those who you are close to and who probably care about you most. Sure the two approaches might overlap; if a close relative happens also to own a business that, as all businesses do, needs employment counsel, then there’s no difference. But what I’m describing here does not involve asking a friend or relative to send you work directly, but allowing that person to act as a conduit to boost your chances of getting business through an introduction or referral.

Let me right away clarify two things. First, what you’re after isn’t a free lunch. You’re not looking for someone to hand you an envelope full of cash; you’re seeking the opportunity to perform quality legal services for a person or business who genuinely needs that legal service. Second, I do not mean leverage in the sense of use. Do not use those closest to you to get ahead. You will feel like a user and your friends and family will feel used. Don’t be a user.

On the other hand, if your relationship and trust are such that you would not hesitate to do something–take a chance, even–to give your friend or relative a boost, then why not give them the same opportunity? I would argue (based on experience I’ve had acting as a conduit to build my friends’ businesses) that the friend or relative who goes out on a limb to help grow his/her friend’s business is the one getting the biggest emotional reward. Have you ever enjoyed giving gifts more than receiving them? Plus, the one getting the business opportunity still has to do the work, while the one who did nothing more than make an introduction or referral gets to sit back and feel good.

What I’m talking about involves a two-step process. First, it requires letting that person close to you know that she can help you and that you’d appreciate that help. This is necessary because it does not immediately occur to everyone that they can help you or that the help is wanted. Some might even hesitate to make an introduction or referral–particularly if they are not familiar with the practice of law–because they are worried it will be viewed as meddling in your business.

The second step requires explanation. You must help those around you understand exactly what you do and who your clients typically are. An easy way to do this is to explain a recent case you handled. If you were successful on behalf of your client (hopefully you were in this particular story), explain how good it made you feel to help that person or business through a tough situation. You want to sell yourself without sounding like your selling yourself. The point is to make that person who knows you, who trusts you, and who would probably like to do whatever he/she can to make your life better understand both that you would appreciate their help and how they can help.

This can be a lot easier if you’re in a position to assist the close friend or relative toward reaching his or her goals first. I’m a big believer in “paying forward,” looking for opportunities to do a good turn for another without any expectation of payback. I know now, in a way I never understood before, that there really is karma when it comes to relationships and good deeds in the business world. Unless they are direct competitors, people generally want to feel like they’ve played an important role in a close friend or relative’s success.

Want To Lose Your Trial? Be Late And Keep A Jury Waiting

The ABA Journal reported on Friday that a Pennsylvania judge held a lawyer in contempt and increased the bond for his client when they were late for a jury trial. “We were all here at 9 a.m. for a jury trial and the defense table was empty,” said the judge, who had dismissed the prospects not long before the two arrived. “We wasted a jury panel.” The lawyer later claimed that personal problems kept him up late and the hotel failed to give him a wake-up call.

Readers can receive this in many ways. Some will say, good for the judge, he did the right thing. Others will think it’s over the top and the judge was out of line. After all, everyone has been late at one time or another. Is contempt and a $1,000 fine (which the judge ordered later) really appropriate?

I don’t know. I suspect if I was the judge the outcome would have depended on whether I was particularly irritable that morning. Not very even-handed, I know. But whether a lawyer is held in contempt for being late, or simply slapped on the wrist, the lesson we should learn from this particular Pennsylvania judge is the same: don’t be late for a jury trial. Ever. Period.

I’ll confess I’m sometimes challenged when it comes to getting somewhere on time. I make this confession so you won’t mistake me for someone who is self-righteous about his meticulous habits. But there are two events for which I take great pains to be on time. One is to catch an airplane and the other is for trial.

It’s been my experience that most judges presiding over a jury trial tend to put the interests and needs of those serving jury duty at or above his/her own. If you are before one of these judges, the quickest way to earn the judge’s scorn is to keep an impaneled jury waiting. (It doesn’t help that, when you keep the jury waiting, you’re also keeping His/Her Honor waiting as well.) In case it’s not obvious: the judge’s scorn often translates to the jury’s scorn, which you don’t want.

My mentor has always had a rule that the hotel where he stays and sets up his war room during trial must be the very closest possible hotel to the courthouse. It doesn’t matter if this is a den of filth, replete with vermin and cockroaches. He knows when he’s in trial he’s at war. There’s no time to be tied up in one of those unpredictable traffic jams. If you know you can walk to the courthouse in a reasonable amount of time, rain or shine, it’s one less thing to worry about. Worry = wasted mental energy, and mental energy is precious during trial.

If you don’t believe me, just ask Berks County, Pennsylvania Judge Stephen B. Lieberman. But leave my name out of it.

Demystifying The Notion Of A “Mediator’s Proposal”

Every lawyer whose practice includes mediating civil cases is bound at some point to come face to face with the concept of a “mediator’s Proposal,” also called a “mediator’s number.”

Here’s what happens: the parties have been mediating several hours or all day and they’ve reached a stalemate. For sake of example, let’s say that the plaintiff in an employment dispute has reduced her demand to $250,000, but signaled she does not intend to negotiate further without some radical movement by the defendant. At the same time, the defendant employer’s counsel has told the mediator they do not intend to come above $150,000.

At this juncture, the mediator could adjourn the mediation, particularly if she feels the parties have been negotiating in good faith and there are legitimate, insurmountable obstacles to settlement. However, if the mediator believes both sides genuinely would like to resolve the dispute, but just can’t reach a consensus, even after considerable arm-twisting, she may offer to give a “mediator’s number” as a theoretical last-ditch attempt to reach a settlement. (I say theoretical here because most hard-working mediators will continue the process even after the mediation session has adjourned through telephone calls to the lawyers and/or corporate representatives for both sides.)

The mediator meets together with all counsel, but not the parties or corporate representatives. She gives the parties a number at which she thinks the case should settle, recognizing it is going to be less than the plaintiff demands, but more than the defendant is presently willing to offer. In the hypothetical above, the mediator might give $210,000 as her “mediator’s number.” The attorneys consider the number and either recommend to their client that they take or reject the number. Any party that is willing to accept the number advises the mediator confidentially. In this way, if only one side is willing to accept the offer, the other side is not made aware of this fact, which would surely jeopardize the willing party’s ability to credibly negotiate for a more favorable number at some later time. However, if both (all) parties confidentially accept the “mediator’s number,” she advises counsel and a settlement is reached.

I’ve heard of another version of this, in which each party confidentially tells the mediator his/her/its “bottom line” number. If the parties are within a previously agreed upon percentage or dollar amount, the mediator then discloses this spread as a “bracket” and urges the parties to find a meeting place.

I’ve never had a dispute in which the mediator gave a “mediator’s proposal” and the case did not ultimately settle at or near that number. But that doesn’t mean a “mediator’s number” is a good idea in every case. First, if you get a clear impression that the mediator is not completely impartial, then you might get a number that is skewed in favor of your opponent. It’s not always easy to tell if the mediator is biased, since part of her job is to “sit on” both sides in order to get them to come to the table. What you might interpret as evidence of bias might actually be a mediator doing a damn good job.

Second, if you and/or your client are truly entrenched in your position, and you really do not want to pay much more than you’ve offered, a “mediator’s number” could have the adverse effect of giving your opposition some undeserved false hope that her case is worth more than it reasonably should be. Until proven otherwise, I generally expect neutrals, both mediators and arbitrators, to “split the baby” in every instance. Thus, in my example above, I think it is much more likely that the mediator will conjure a number somewhere in the middle between the parties’ respective positions, than that she would give a number that is especially favorable to the defense–even if she thinks the plaintiff’s case stinks. Remember, the mediator’s job is to get the case settled, not make sure the settlement is appropriate to the facts of the case.

Finally, the possibility of a “mediator’s proposal” illustrates a larger point concerning mediation. Just as attorneys come in varying sizes, shapes and skill sets, so do mediators. It pays to be picky when selecting your mediator. Do your homework. This does not mean holding out for a mediator that is bound to be on your side. On the contrary, it can be much more important to have a mediator whose opinions your opponent (and her client) are likely to credit. But you should hold out for someone you reasonably expect will work hard to settle the case.

If You’re Going to Blog, Skip The Gimmicks

I came across an unfortunate recent post on the Lawyerist (aka “the Puddle”) entitled, “5 Tips to Draw Readers To Your Blog.”

I say unfortunate because, at least on my reading, the post seemed to suggest that, if your legal blog is not getting sufficient readership based on quality writing about compelling topics, perhaps you can “juice” your stats a bit by employing one or more of the following gimmicks (my term):

1. Frame everything in a “top 5″ list format;

2. Attack conventional wisdom;

3. Make it funny;

4. Bash law schools;

5. Write about Apple.

6. “Bonus” gimmick: blog about celebrities and sex.

Two of these “tips” are completely legitimate suggestions. Attacking issues from an unconventional angle and weaving in some humor (assuming you’re actually funny) are terrific ways to improve blog posts and enhance readership. But, in my view, the others are bollocks.

The author, Andy Mergendahl, freely admits that it’s only necessary to resort to this gimmickry when all else fails:

“But how to attract readers? Sure, you can . . . strive to write well on topics you’re knowledgeable about. I’ve tried that. I’ve combined my experience with my own independent study to provide a lot of sober advice on good lawyering. Almost all those posts were greeted with a yawn, followed, I suspect, by an immediate click over to Buzzfeed.”

Clearly if your “sober advice on good lawyering” is greeted with a yawn, the solution is to “go blue” or, if even that fails, do some law school bashing.

A couple of other solutions come to mind: blog about something else, or (gasp) don’t blog at all.

I’ll freely admit I crave more readership. I recently had a conversation with my good friend Mark Suster about his blog. Imagine my awe, or was it shame, as I learned that his esteemed blog garners almost as many views in a single day as I boast in an entire year! Talk about blog envy. (No, it’s not always that small. It shrinks when I swim in cold water. I swear it does.)

But regardless how desperate we get for readers, gimmicks aren’t the answer. Leave the racy pictures and stories to Above the Law or The Superficial or whatever. Don’t get controversial for the sake of being controversial. Write what you think and you feel. If it flies in the face of conventional wisdom or raises eyebrows, great. But don’t adopt a pose just to boost your numbers.

Sure, I’ll bust out the occasional “top 5″ post. If I’m feeling especially saucy, I might quote Neil Young or pop out some particularly pure alliteration. But not to get more readers. If I use gimmicks at all, it’s because I blog as much for my own enjoyment as anything else. And you should, too.

Useful Tips From A Recent Bench-Bar Conference

Because I pay attention to analytics, I know that my most popular posts are those in which I have passed on advice or comments from a judge or judge’s clerk. People apparently find and read my blog because they want to get some inside scoop from the bench, as opposed to my witty, original repartee. Best not quit my day job, I guess.

At any rate, a talented Michigan appellate specialist I know attended a recent appellate bench-bar conference and brought back some wise comments from the judges and court staff, “of which,” as Bob Marley sings, “I’ll share with you.”

1.  When Briefing the Facts.

When briefing the facts, don’t misrepresent the facts or get too argumentative. Eliminate most adjectives in the statement of facts section. Also be wary of including too many facts and dates. Dates that aren’t relevant to the issues to be decided by the appellate court are distracting and tiresome. Also bear in mind that the appellate court rarely needs to know the entire procedural history.

2. When Briefing the Law.

Briefing the law requires honesty. Do not mischaracterize the law generally or the holding or import of a particular case. Strive for economy; view the page limit as an outer limit, not a goal to reach. Another problem specific to appellate briefing is the tendency to raise too many issues. Judges complain that lawyers often fail to recognize and identify the appropriate standard of review. Judges should be treated as “generalists” who may need a primer on the law in the area and a tutorial on the industry involved. Bear in mind the “ABCs” of good brief writing: Accuracy, Brevity and Clarity. Do not attack opposing counsel in the brief.

3. When Arguing Before An Appellate Court.

The judges cited “reading from a prepared text” as among the most common errors in oral argument. Treat the argument as an opportunity for both the lawyers and the judge(s) to be educated. Do not fail to answer the questions the judge(s) actually asked. Be sensitive to “cues” from the bench as to what a judge believes the real or dispositive issue to be. Do not attack opposing counsel in oral argument. If you are lucky enough to be arguing before a state or the US Supreme Court, be prepared to answer the question, “What rule are you asking us to establish?”

There. Now go kick some appellate ass.

Six Steps To A Safer Layoff

I recognize I’m about 3 years too late with this post. The truth, however, is that employers can be forced (or strategically choose) to reduce their workforce even outside a recession.† So, without further apology, here are my 6 steps to effecting a layoff in a way that eliminates, or at least reduces, your exposure to employment-related discrimination or retaliation claims and suits:

1. Be forewarned about the WARN Acts.  The biggest challenge for employers contemplating a “mass layoff,” plant closure, etc. can be WARN Act compliance. California employers are required to comply with the Federal WARN Act (29 U.S.C. 2101, et seq.) and the more rigorous California version (Cal. Labor Code Secs. 1400, et seq.). The specific ins and outs of what triggers Act compliance, exceptions and consequences are unbloggably‡ complicated. You should consult a knowledgeable employment lawyer* on this–no exceptions!

2. Offer severance in exchange for a release. I feel like a flight attendant describing how to use a seat belt, but I’m amazed that there are employers that do not premise a severance payment on execution of a release/waiver of claims. In order to “buy your peace,” the severance must give the employee something to which he/she is not already entitled. In other words, don’t propose the release after you’ve already agreed to pay severance. This kind of release/waiver agreement needs to comply with certain requirements, including timing and lack of ambiguity. You cannot demand the employee sign the waiver on the spot. Depending on the circumstances, you’ll need to allow the employee some time to consider the terms. Again, involve experienced employment counsel.*

3. Develop, and preserve evidence of, objective, nondiscriminatory criteria justifying both the need for the workforce reduction and why the affected employees were selected. Maintain this evidence for up to 4 years. I’m thinking here of meeting minutes, Power Point decks, etc.

4.  Review the list of affected employees. “Issue spot” each employee to evaluate the risks associated with the layoff. These include, not only risks of a claim that an individual employee was the victim of discrimination, but also that the architecture of the reduction disparately impacts a protected class. Look at age (40+), race, gender, disability and religion, FMLA leave, etc. Here, again, use knowledgeable employment counsel* to assist in this analysis.

5. Have upper level management, one or more layers removed from immediate managers and supervisors, decide who will be affected by the layoff. This helps reduce the likelihood of claims that an individual manager had a nonobjective discriminatory or retaliatory reason to select a given employee. It also strengthens the theme that the layoff was objective and necessary, as opposed to a mere “pretext” for an unlawful termination.

6. On the day of the layoff, meet separately, in-person, with each affected employee. Ideally, have an additional manager or HR representative in the room. Resist the urge to say more than necessary about the layoff. Remember that anything said to the employee, if later believed by a judge or jury, can be used against the company if a claim or litigation results. Having the second “witness” in the room reduces the likelihood or believability of a fabrication.

Good luck. Oh, and did I mention the importance of involving experienced employment counsel?*

†Yes, I’m aware there are people far smarter than I who believe we haven’t yet escaped the recession.

‡As far as I know I coined this term.

*Shameless use of link for self-promotion is acknowledged. The question becomes whether, by pointing out and acknowledging the self-promotional use of repeated links to my LinkedIn profile which, by implication, advertises me, variously, as “experienced” and “knowledgeable” employment counsel, I am somehow absolved of the sin of shameless self-promotion, or whether, the fact that, in addition to the link, I also used this footnote to attempt to absolve myself of said shameless self-promotion, is itself equally, or even more, shameless. To quote Bill Murray, “We’re getting into a weird area here.”

Cross-Examination: Equal Parts Preparation And Spontaneity?

Everything I’ve ever read and heard about trial preparation, including cross-examination, points to preparation as the single most important element of success. I know that strategy has always served me best. But what about the role of spontaneity? Surely, it’s not for new or uninitiated trial lawyers. But a recent post at The Velvet Hammer, in which Karen Koehler, an experienced trial lawyer, describes her experience cross-examining an expert at trial, highlights spontaneity as a crucial part of her strategy. She says:

“Us lawyers spend a lot of time preparing for cross, thinking about cross,  going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect.  But here is the truth.  There is no one perfect way to do cross that works on all expert witnesses.  There is no magic bullet that will work every time.  Did I read his report in advance – yes.  Did I read a few depositions he had given before yes (thanks Ben Wells).  Did I make some notes – yes.  Do I know the chapter approach – yes.  Do I know the rules approach – yes.  Have I gone to reptile – yes.

But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn.  Being able to be in the moment.  Not focusing on obscure minutiae.   Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible.  This is what is needed in cross.  At least for me.” (Emphasis added.)

In Cross-Examination: The Mosaic Art, John Nicholas Iannuzzi discusses this intersection between preparation and spontaneity. He says:

“[A]s you cross-examine on your feet, even if you have a full-blown cross-examination script in hand, you are not hide-bound by that script, but are continually revising and adjusting the cross-examination to accommodate the twists and turns that inevitably arise as the witness twists and turns to elude the thrusts of your questions. Therefore, that capacity and flexibility to improvise and formulate cross-examination quickly, while on your feet, is the same capacity which permits you to formulate your attack well, quickly, and professionally, despite the shortness of preparation time.” (p.127)

The key element here would seem to be confidence. Solid preparation builds confidence. This also holds true when taking depositions. If I am for some reason ill prepared, I remain glued to whatever outline I’ve created. When extremely well prepared, I feel far more comfortable drifting from my script, comforted by the knowledge it is available for me to retreat to, if necessary.

It would seem, then, that  preparation and spontaneity do not play equal roles, since spontaneity thrives on preparation. For most of us (who are not Robin Williams) the converse is probably not true.