Author Archives: Alex Craigie

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com.

We’ve Relocated, Please Visit Our New Address.

we-have-moved-signIf you’re reading this, you’ve reached the old site for At Counsel Table. We’ll be closing this site shortly. You can still get the same reliable, high-quality, 100% irony-free, individually crafted blog posts at our new location: www.AtCounselTable.com. Please visit us there.

If you’re trying to reach attorney Alex Craigie, visit my spanking new web site: www.CraigieLawfirm.com.

See ya.


My Newfound Obsession With Process

???????As the launch date for my solo practice approaches, I find myself obsessed in a way I never was before in my law practice about the subject of process. I have developed the belief that my own practice is far more likely to be both successful and satisfying if I establish a solid set of systems for how my business will operate.

This isn’t brain surgery, of course. I’ve been influenced by blogs I’ve read and the excellent law practice start-up books by Carolyn Elefant and Jay Foonberg. Specifically on the subject of process, however, I learned a lot from The E-Myth Attorney, by Michael Gerber, Robert Armstrong and Sanford Fisch.

The central notion of The E-Myth Attorney, about which I’ve previously written, is that law firms, whether a solo practice, small partnership or large firm, should adopt and meticulously implement specific systems for every single thing the business does, from greeting clients, to filing papers to making coffee. Ideally, under the E-Myth model, these systems will be reduced to a handbook that can be handed to every new employee as they walk in the door. As Gerber, et al. write:

“With the right systems, your law firm will . . . reflect your vision about practicing law. What is going to make your firm unique? Why should prospective clients pick your firm over all others? What special place will your practice occupy in the community?

In the beginning, maybe it was just about the money. Get the clients in the door and start generating as many fees as you can. But we all know that’s not a sustainable business model and, more importantly, will not ultimately serve you or your clients.

But when you implement systems, you create the machine that can work independently of you. You give your employees the roadmap they need to do the things that need to get done.

•  This is how we greet clients.

•  This is how we draft documents.

•  This is how we take a deposition.

•  This is how we prepare for trial.

•  This how we manage our finances.

•  This is how we generate leads and convert them into retained clients.

•  This is how we hire great people.

And so on and so on . . .” (Id. at 66-67.)

Applying this concept to my own world, what kind of systems am I developing for my new practice? First, a major priority for my firm is to be as paperless as possible while maintaining a reliable filing system. While litigators in California are still required to serve documents in paper by mail (in addition, perhaps, to email or fax service), I think this practice will soon be history. Already most courts I deal with do fax and electronic filing. Most lawyers I deal with prefer to receive documents by email. So, I suspect there will be only limited need to serve or hand-deliver anything in paper form before too long.

Embracing paperless practices, if done systematically, will reduce overhead associated with having a file clerk (or, gasp, doing it myself), and it will reduce storage space (and attendant cost). Using the system I’m developing will, moreover, make it easier to instantly access a document without the need to carry large, bulky files with me wherever I go. So, the system will be to convert any document I receive by mail, fax or email into a pdf file that can be saved–and is immediately saved–in an appropriate sub-sub-sub folder created for a particular client, matter, category (discovery) and sub-category (interrogatories). Again, I recognize that this isn’t rocket science, but it is one example of how I’m focusing lots of energy at the outset in developing systems for each aspect of my practice that can be reasonably systematized.

Of course, not everything can be done according to a system. Part of the reason lawyers are in demand and charge a financial premium is that we are taught not to think one dimensionally about a legal problem. In other words, the solution to a problem that best serves my client might not be the most obvious solution. It might require an innovative approach that is exactly the opposite of what our system would prescribe. But this is not an exception that swallows the rule. Rather, it is by subjecting tasks that are logically capable of systematization to a rigorous system, that we are freed up to devote time and mental energy to solving our client’s most complex problems in innovative ways.


Taking The Plunge–Going Solo–But Not Without A Plan!

A diving dachshund pursues a sinking tennis ball underwaterAlmost exactly two years ago, I enrolled in the excellent 14-week class, provided by the Women’s Economic Ventures (WEV) organization in Santa Barbara, on how to write a business plan and start a business. You see, six months earlier, while recovering from emergency surgery to repair the first (of two) detached retinas, I had a vivid and exciting dream about leaving my firm and opening a solo law practice. Well, on March 1st, I’m finally doing it!

My wife had taken and absolutely loved the WEV course to develop her own business plan (to start a unique school for adult women). When I told her about my plan to open my own law practice, she absolutely insisted I take the WEV class, even though I’m . . . not . . . really . . . a woman. Q’est que c’est?  you’re wondering.

It turns out that, despite the moniker, the Women’s Economic Venture classes are open to men. Or men who are brave enough. Out of a class of 30, only 3 or 4 us were men. But I really found the class to be practical and useful. It forced me to think about all sorts of important things crucial to successfully starting a business that I would probably not have thought about until I was 15 months in and potentially struggling.

Like what, you ask?

For starters, there’s cash flow. Even if I am lucky enough to have a plate full of paying work the day I open my doors, under most billing models I have to do the work, submit an invoice, then wait to get paid. I might wait 30 days, or 60, or 90, or . . . Unless I had a bottomless well of cash (if I did I’d lawyer pro bono, or do something else entirely), doing a cash flow analysis as part of a business plan was the only way to have the slightest clue how much I’d need to set aside to get started. And even then I can only forecast how much I’ll bill, how much of that I’ll collect and when I’ll collect it. Educated guess work, but guess work none the less.

Then there’s a marketing plan. I’m not foolish enough to think that being a good lawyer is enough. According to the State Bar website, there are 181,474 active lawyers licensed to practice in California. I’ve got to somehow differentiate myself from the other 181,473 lawyers in order to get hired. Unfortunately, being tall isn’t enough. But the WEV program provided a lot of help in this, including some excellent written materials and exposure to marketing professionals who volunteered their time to help students shape marketing plans.

These are both critical pieces of the puzzle of starting a business from scratch that I could have foolishly skipped over, thinking that two decades of practicing law was preparation enough to jump ship and start rowing. Or swimming. Or treading water. Or . . . Apparently, I’m not alone. While Carolyn Elefant, writing in Solo by Choice (Decision Books 2008), which many consider the Bible of launching a solo law practice, advocates starting with a business plan, she also recognizes that not all solos share this view. She writes:

“For other lawyers, though–especially new or aspiring solos unable to identify immediate sources of revenue–a formal business plan might seem like an exercise in futility.” (Id. at 246.)

But, again, Carolyn urges against falling into this trap:

“Quite the contrary. A ‘business plan’ (which is just business-speak for a simple outline that helps you look ahead, allocate and prioritize resources, and identify future opportunities) will be extremely helpful whatever your circumstances.” (Id.)

One part of the business plan that I would easily have skipped, had I not been doing a class, is the development of a mission statement. It’s not that a mission statement is such a foreign concept. It’s just that I see a mission statement as the kind of guiding principle for larger entities, corporations and nonprofits. Why would a solo employment defense lawyer need a mission statement?

It turns out that this process of formulating a mission statement, even if it’s never communicated to anyone, is a good exercise for understanding why you’re launching your own practice at all. While I recognize there are lots of new lawyers who might be going solo out of necessity, if you’re making the move from a comfortable position in a large or small firm to the uncomfortable, but exhilarating, position of a small business owner with no safety net, it’s a good idea to think about why you’re doing it and what you want your business to look like.  Carolyn Elefant echoes this sentiment:

“A mission statement embodies all that you hope to accomplish in starting your firm. It articulates your vision of what you want to create. Most of all, a mission statement serves as a beacon for your practice, a light that helps illuminates [sic] your path on those days when the judge tears you apart in court, when opposing counsel drives you to tears with insults, or when a problem client brings a disciplinary action against you.” (Id. at 251.)

And my own mission statement? Are you interested? Here goes:

“The Craigie Law Firm exists to provide small and mid-sized companies with a cost-efficient alternative when facing an employment claim or lawsuit. By combining skilled lawyering with a clear explanation of each step in the dispute resolution process, and a sincere willingness to work under alternative fee and billing arrangements, the Firm strives to bring confidence and predictability to the challenging circumstances of a lawsuit.”

It’s kind of weird to read it again after some time has passed. On reflection, I would probably change it slightly. Specifically, I’ve always prided myself on being a litigator–a courtroom lawyer–who’s strongest skills are dispute advocacy. Hence, the mission statement’s focus only on clients “. . . facing an employment claim or lawsuit.” In the two years since I crafted this statement, however, I’ve really come to appreciate the preventative role an employment lawyer should play in his client’s business. So, a revised mission statement would probably give dispute prevention equal billing with dispute advocacy.

I’m candidly elated at the prospect of launching my own practice. Wish me luck.


Learn To Negotiate Like A Transactional Lawyer

negotiationI recently had lunch with  Mark Fingerman, a Los Angeles lawyer who has successfully transitioned from being a litigator to a full-time mediator. As I often do, when I get an opportunity to talk shop with mediators, I asked Mark some of his tips for successful negotiation. To my surprise, although Mark had been a litigator his entire career, his advice was to go a different direction entirely. “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”

This notion immediately made a lot of sense. After all, while it’s the mission of a transactional lawyer to get the best possible deal and terms for his client, their negotiations should very rarely result, as it so frequently does in the litigation context, in a stalemate. While a party to a lawsuit will sometimes view proceeding to trial as the best alternative to a negotiated agreement (aka “BATNA”), the job of transactional lawyer is generally to reach agreement and get the deal done.

While Mark’s advice made a lot of sense to me in the abstract, I started thinking what does this mean? What does it mean to negotiate less like a litigator and more like a transactional lawyer?

I followed up with Mark after our lunch, and suggested this might be fertile ground for a blog post. He was pleased for the opportunity to explain his statement in more detail, and also suggested that this very topic is one that he covers extensively in a CLE program he offers to law firms and bar associations called Mediation: Prepare to Succeed.† Here’s what Mark said:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

A major difference I see in Mark’s approach from the approach we typically take is his shunning of our common tendency to try to leverage the mediator to apply pressure on our opponent that we cannot otherwise apply. This is indeed a departure.

After all, we often draft extensive mediation briefs, with cites to specific exhibits, that are little different from the brief we might submit if the neutral were sitting as an arbitrator who would issue an award, and not a mediator engaged to facilitate settlement. In an earlier era, it was common to do a mini-presentation of the arguments and evidence we expect to present at trial. In sum, we attempt to persuade the mediator of the merits of our case, with the hope she will step into the next room, caucus with our opponent, and, acting as our “super advocate,” pound them into submission.

So, if there’s no pounding, what should go on? Just as Mark points out, the mediation becomes less about applying pressure and more about “focusing . . . on reality and problem solving.”

This is all good. But I still found myself wondering more about how transactional lawyers approach negotiations. So I consulted a book about lawyering from the perspective of a career transactional lawyer. In Lawyering: A Realistic Approach to Legal Practice, M&A specialist James C. Freund says this in his introduction to the discussion of negotiating a deal:

“Most of what takes place in the course of negotiations can be characterized as either attempting to get a leg up on your adversary or striking a compromise between your respective positions. I firmly believe that the key to effective negotiating lies in achieving a functional balance between these two seemingly inconsistent aspects. If all your efforts are directed toward gaining advantages over your adversary, you will undoubtedly come on too strong; and where the parties possess relatively equal bargaining power, with freedom to consummate the transaction or not, you may cause your client irreparable harm–such as losing the deal.” (Id. at 188 (emphasis added).)

Again, from a transactional lawyer’s perspective, the goal is not to pound the other side into submission or walk away with no deal. Instead, in the interest of getting the deal done, Freund counsels that we strive to achieve a balance between getting a leg up on our opponent and striking a compromise. Makes sense, doesn’t it?

†Mark Fingerman encourages anyone interested in this presentation to reach him by email at: mfingerman@adrservices.org.


3 Ways To Make Your Brief Read Better On An iPad

24toys-articleLargeThanks to some of my Michigan colleagues, I learned today for the first time that a growing number of appellate court justices are reading briefs on an iPad. I guess it’s pretty clear that I’m out of touch. (I feel like Dr. Evil, on Austin Powers, when he demands the government pay him only $1 million.)

Fortunately for me, and for you, Daniel Sockwell, writing in the Columbia Business Law Review, is not so out of touch. In a piece entitled “Writing a Brief for the iPad Judge,” he offers some really useful advice for writing an appellate brief if you know your judge may end up reading it on an iPad. How would you know? By asking the clerk, of course.

Here are 3 of Sockwell’s tips:

1. Use Fewer FootnotesSockwell writes that “[o]ne of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage.” Unfortunately, this advantage is “lost if footnotes require the reader (judge) to constantly scroll to the bottom of the page for citations or substantive material.” Sockwell feels this compounds the risk that the judge or her clerk might not bother to read the footnotes at all.

2. Choose Your Font With Care. Sockwell notes that, while “the effective resolution of an iPad [is] closer to print,” there is a risk that “some of the best print fonts can become jagged or difficult to read at screen resolutions.” What should you do? Unfortunately, Sockwell leaves us wondering, though he does point us in the direction of an entire book on the subject of fonts (the perfect gift for that typography nut in your life). I started to do some of my own online research to find out what kind of fonts read best on iPads, but I came up short. I’m going to go with the plan to use a simple font rather than anything really creative. If someone has some clearer suggestion, maybe they could leave a comment.

3. Go With “Scientific,” Rather than Traditional Legal Hierarchical Headings. We typically use traditional hierarchical headings in briefs that are printed (e.g., Part I, Section A, Subsection 1, etc.). This method apparently doesn’t work well for documents read on an iPad, because it’s easy to lose track of which “Section A” one’s looking at. Instead, Sockwell urges brief writers to adopt the scientific hierarchical headings (e.g., Part 1, Section 1.1, Subsection 1.1.1, etc.).

Sockwell includes one more point: be sure to adhere to local rules, even if it means making a stylistic sacrifice. While double spacing of lines might look horrible on an iPad, it may be required by the local rules, at least until rules are universally updated to reflect the reality that more and more judges are reading briefs on iPads.


The Bygone Era of “Junk Science”

620-best-television-comedy-tv-show-ever-sanford-son.imgcache.rev1352136944844I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

0811868656Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).


Should Young Lawyers Specialize?

"One word . . . plastics." -The Graduate

“One word . . . plastics.”
-The Graduate

I never for a moment thought about pursuing a career as a transactional attorney. I entered law school for the wrong reasons. I knew I could think, write and argue reasonably well. I was a liberal arts major (Philosophy and Literature-Writing) and did not really appreciate how such skills could translate into success in the business world. And I did not think I would enjoy a career as an educator.

So, I did exactly what I would urge no one do today: I took the LSAT, got into law school, and went to law school, without having any particular passion about the law.

If anyone had asked back then–and I don’t think anyone did–what I planned to do with that law degree, what area I’d practice in, what I wanted to do everyday, if and how I would make a difference, I wouldn’t have had a clue. When I was interviewing and starting my career, there were vastly more jobs in litigation, so I became a litigator. I started out doing insurance defense, but not the interesting kind, and immediately grew bored with fender-benders (“Was the light red or green?”) and slip-and-fall lawsuits (“Was the banana you slipped on yellow or green?”). Fortunately, I got hired right away at a boutique firm that did more interesting work (at least from my perspective). I quickly became a “specialist” in automotive product liability litigation, specifically suits relating to the performance of automobile air bags, which was an emerging technology at that time.

I remained a “specialist” in this area, with a smattering of other kinds of cases, for about the first 10 years of my career. However, I eventually figured out that, deep down, I’m not really a gear-head, and it shouldn’t be a big surprise that the lawyers who really excel in automotive product liability litigation, and who most enjoy what they do, are those who are interested in cars. Well, duh!?!

I eventually migrated to employment law for a number of reasons. First, and most practically, it was the only area that I was able to get any early traction in terms of developing my own clients. Equally important, however, being the opposite of a gear-head, I found I enjoyed disputes that arose out of (often flawed) interpersonal relationships in the workplace. Also, I had long felt that employment law was fertile ground for building a book of business, since every, EVERY employer, particularly in California, needs an employment lawyer. If they haven’t needed one yet–they will!

I had not intended this post to be a memoir. I recognize that my career path probably makes dry reading. But I wanted to tackle a topic that I think is important for law students, recent graduates and those still in the early years of their career: should you attempt to specialize? Like most people, I’m narcissistic and can only approach a personal question by starting from my own experience.

In any event, I posed this question to someone who has a fair amount of expertise in helping lawyers make the most of their legal careers. Gideon Grunfeld, the President of Rainmaking For Lawyers, was gracious enough to provide this valuable insight:

“Too many lawyers get shortsighted advice about whether they should specialize and what that means. There are substantive areas, such as tax, ERISA, and patents, where specialization is almost a necessity. But there are many areas, such as business litigation, where specialization can be counterproductive. Rather than focusing on the substantive nature of the law and, for example, specializing in trade-secret litigation, it’s better to encourage young lawyers to identify the clients they most want to serve. Thus, for example, if someone has a passion for high-tech start-ups, they can focus on cultivating relationships in that world and position themselves to solve the full panoply of legal issues that arise for that market or audience. For most young lawyers this is a more robust not to say more fun way to practice law and build a client base.”

I tend to agree with Gideon’s advice. I like the notion of letting one’s specialty develop organically. In my case, it developed because someone close to me gave my business development efforts a big jumpstart by referring employment cases my way. I found I liked it and wanted to pursue it further. This is pretty much the opposite approach from deciding I wanted to practice entertainment law because I like to go to the movies (which I do).

What I would really caution against is remaining in a practice that never brings you any thrills. Even though I’m not a gear-head, there were parts of my products liability practice that I found compelling. I recognize that this is not the market for young lawyers to quit a job on a whim. On the other hand, there is nothing wrong with developing a mid or long-term career plan to move away from an area that brings you no joy, with the hope of finding something more fulfilling. If I was still fighting cases about people who tripped on a public sidewalk, I’d have to open a vein. But that’s just me.


How Will You Cope When Your Trial Technology Lets You Down?

frustratedPerhaps I should say how will you cope “if” rather than “when” your trial technology takes a giant lets you down, but I’m a pessimistic fatalist, or a fatalistic pessimist. Or something.

But the internet is all abuzz about Michael Bay’s meltdown on Monday during a Samsung press conference at the CES 2014 Conference. If you’ve missed the viral video, it’s not really that earth shattering. But, let’s agree that it’s lucky for Bay that he doesn’t have to count on his public speaking skills to earn a paycheck. If you or I were presenting evidence and our computer or Trial Director program went screwy, apologizing and walking off wouldn’t be a realistic option.

But this stuff does happen. And, like a jazz musician, you’ve got to improvise. Even if you are meticulous in your preparation and think you’re prepared for anything, chances are something could happen that will catch you off guard. I’m of the view that, rather than fooling yourself into thinking you’re so well prepared that nothing will surprise you, it’s a better idea to expect that something will go wrong–or at least something unexpected will happen–and prepare yourself up to deal with it. That’s more fun, anyway.

Concededly, one way to reduce the chances your technology will fail you is to rely on it less. Many trial lawyers still use overhead projectors because they’re almost fool-proof. Or they say they use them because they are almost fool-proof, but the real reason is they can’t be bothered to learn Powerpoint or Trial Director. Whatever their reasons, I have no quarrel with going old school, low-tech, if it conveys the message and wins the case. A good trial lawyer with nothing but an easel will do far better than a so-so lawyer with the most advanced technology available.

The problem with resisting technology in trial presentation, though, is that the internet, gaming and effects-driven movies have made people–some of them your potential jurors–almost numb to anything that lacks a wow factor. There’s also the brute fact that some of these technologies really are brilliant and, frankly, should be embraced to the extent they can help lawyers, good and so-so alike, present otherwise dry or complex information in a way that engages jurors.

Regardless whether you embrace technology or remain a caveman lawyer, you need to embrace the unexpected. I’m going to go out on a limb and suggest that, given the fascinating life he’s led, there’s a decent chance Michael Bay could have conjured an extemporaneous presentation that was even more compelling than what was written on the broken teleprompter. But he needed to be prepared for the possibility that the teleprompter (or something else) would let him down.

I like the idea of trying to take a bad situation and turn it to your advantage. If a jury or other audience sees you confronted with a technical malfunction or other problem, it can be more than just an opportunity to let the jury, the judge and your client down. To fail miserably. It’s equally an opportunity to gain credibility and respect because you did not let the mishap derail your presentation. You get bonus points if you find a way to weave genuine humor–not corny or forced–into the situation.


When You Realize Clients Don’t Grow On Trees

cash1Some lawyers are lucky enough to breeze through a successful, maybe even lucrative, career without ever thinking once about finding new clients. This post is intended for the rest of us.

If you are in private practice, in business for yourself or a member, at whatever level, of a law firm, chances are pretty good that you will not excel in your career without becoming at least passably adept at identifying and developing new clients. I know there are some firms and some clients in which one can succeed simply by expanding the amount of work the firm does for an existing client, or you may be lucky enough to inherit a retiring or expiring lawyer’s book of business. Good for you. Even so, except in the rarest cases, only a fool would presume any single client will remain loyal forever.

If I haven’t convinced you, I don’t know what more to say, except to suggest you heed the often-quoted advice from financial planners that you keep an emergency savings account with several months–even a year’s worth of expenses set aside. Your job will never be secure. (Of course, that’s really true for all of us.)

For most of us, though, it’s not a matter of whether you need to cultivate clients, but when. When I conceived of this post–which could easily be (and sometimes is) the sole subject of an entire book, I had in mind addressing two issues that I’ve personally had to confront in my quest to develop my own stable of clients. These are: (1) the inevitable time squeeze and (2) the concept of freely giving.

1. The Time Squeeze.

As writer Mohsin Hamid points out, “Time is our most precious currency.” If you’re like me, you are going to feel a “squeeze” or shortage of this precious currency when you really commit to building business. To illustrate what I mean, let’s imagine that you work at a firm that expects–expressly or otherwise–that you will work and bill 1,900 hours in a given year. (When I say “bill” in this context, I’m referring only to hours that are chargeable to a paying client, i.e., excluding any hours spent doing pro bono, management activities, continuing education, networking and bar association events.)

Next imagine that, before you started on your quest to develop a book of business, you routinely spent 100 hours a year doing any of the other non-chargeable things listed above, including pro bono. For this illustration then, you are expected to devote 2,000 hours every year to both the practice and business of being a lawyer. If we give you a 2 week vacation, then you will be working and recording time–both chargeable and otherwise–40 hours per week. For most people earning a full-time salary, this sounds pretty fair. I don’t disagree.

The “squeeze” I was referring to comes when you start adding in time committed exclusively to finding new clients. I didn’t plan to write a compendium of all of the possible ways you could spend this time, but a quick and dirty list could include: attending events at professional networking, local state and national bar and practice area associations/groups, follow-up breakfast/lunch/coffee meetings with members of these groups to develop a rapport and cultivate a referral relationship, writing articles, lecturing, providing training and useful information to prospective clients, and developing a (hopefully) growing stable of contacts to be mined for potentially lucrative relationships (with the attendant breakfast/lunch/coffee meetings to develop a rapport and cultivate a referral relationship).†

How much time would you expect to spend doing these activities–if you really want or need to grow a book of business? 1 hour a day? 2? 3? If you averaged just one hour a day devoted to these activities, you’ll be adding about 250 hours to your 2,000 hour year, meaning you’d be working a total of 2,250 hours, or 45 hours a week, assuming you took a 2 week vacation (but no other holidays, so plan on working on Thanksgiving!). Again, many would view this as a fair investment, given the prospect of increased earning potential and job security.

But . . . if you can do it with a commitment of only 1 hour a day, I’d be both impressed and amazed. I say this because, each networking event I attend (roughly weekly) consumes at least 3 hours, including travel. The professional organization to which I belong creates an opportunity to have a “troika” follow-up breakfast or lunch with two other professionals from the group after each meeting. Assume, with travel, each of these meals consumes at least 2 hours, then I’ve already used up 5 hours for the entire week. Which would be fine if this activity alone was enough to gain all the new business I need. Unfortunately, doing this activity alone won’t be enough. Not nearly enough.

I think you’re starting to see what I mean by time squeeze. At this juncture, I probably spend between 10-15 hours of each week devoted to marketing efforts, though some of these are candidly spent on nonchargeable work at the front end of every new client or case (in other words, when I get a new engagement, I invariably spend hours looking at the matter, communicating with the (potential) client, researching a judge, budgeting, etc., none of which do I typically treat as chargeable). If you combine that with the responsibility to work chargeable hours, additional hours required to handle law practice management tasks, CLE, etc., it’s starting to look like a 2,500 hour year, which may be fine if you’re single and do nothing but work, but if you have a family . . .

Everyone faced with this time squeeze must decide their own best way to deal with it, because it presents a challenge. Do you spend less time with your family, forego personal time or regular exercise, reduce billable productivity? There’s no way to please everyone, but you’re only going to short-sell yourself career-wise if you’re in private practice and don’t make client development a serious goal at some point.

2. Freely Giving.

I’ve previously written about giving value-in-advance. This is really just an extension of that advice. In his excellent book, The Marble and the Sculptor, Associate’s Mind blogger Keith Lee included a chapter entitled “Attracting Clients and Business Development.” He discussed this notion of freely giving this way:

“So the big question, one that almost all new lawyers struggle with, is: How do you attract clients?

At the most basic level, it means being willing to give without expecting anything in return. This is often difficult for many people. People, not just lawyers, expect quid pro quo for the things they do. But it is often especially true for lawyers, as their trade is knowledge. Lawyers have received specialized, narrow training in a field and they tend to want to closely guard this knowledge as it enables them to charge clients hundreds of dollars an hour in return for access and use of that knowledge. It can be anathema to attorneys to share information freely as it might somehow devalue their knowledge assets.” (The Marble and the Sculptor (ABA 2013), at 68.)

This reluctance to freely share knowledge must be resisted and, ultimately, overcome. Why? Because sharing information without expectation of compensation creates a store of goodwill and provides prospective clients with an easy way to appreciate your expertise. Because in the real world many prospective clients will be unwilling to hire a lawyer for the first time without some kind of assurance that the lawyer is up to the task. Because it is one way to stand apart.

†A long time ago (relatively speaking) I wrote a post encouraging new law school graduates to make an effort to stay in touch with every person they got to know during school. If you followed this advice beginning at graduation, by the time you were in serious client development mode, at least some of those classmates would be in a position to refer business your way, whether they are in-house, general counsel or just fellow professionals. One really successful rainmaker I know used this method to jump start his book of business, which now hovers in the $3 million range.


It’s Resolution Time At Counsel Table

new-years-resolutionAs my wife will attest, I’m distrustful of resolutions, whether they’re made at New Year’s or some other momentous occasion, like discharge from rehab. But I’m going to take this New Year’s Day to make a resolution relating to client service: In 2014, I’m going to try very, very hard to change the way my clients think about lawyers.

This is not at all original. In fact, this is one of J. Dan Hull’s notorious “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.” Here’s what Dan says about this rule:

“This rule, like Rule One, is not so intuitive. But it’s the most challenging. The “under-promise but over-deliver” and “exceed customer expectations” notion of keeping good clients is a great idea. But I just don’t think it works that well for lawyers. I think that clients, rightly or wrongly, and whether or not they are even aware of it, in fact have low expectations of lawyers in the first place. For two reasons:

A. Traditional Pervasive Distrust of Lawyers (General–Deserved & Undeserved)

There is a pervasive (let’s face it, ancient) cynicism and suspicion about lawyers which even our most loyal and valued clients carry around with them. Some of it is unavoidable and not our fault. It’s based on everything from literature, TV, movies and lawyer jokes to a genuine misunderstanding of what lawyers must do to perform well. It’s deeply rooted in world culture.

B. Real Experiences-Based Distrust of Lawyers (Specific–Deserved)

But most of the distrust is our fault because either (1) our substantive professional services are merely “adequate” and/or delivered without passion or real caring–clients can sense that–or (2) we view clients almost as adversaries (they joke about us; we joke about them), which gets communicated to clients in every step of our work for them. See The First Post.

Let’s not kid ourselves. Why ‘try to exceed expectations’ when the overall lawyer standard is perceived as low to mediocre? If your clients are all Fortune 500 stand-outs, and the GCs’ seems to love you and your firm, is that because your service delivery is so good–or because other lawyers they use are so ‘bad’ on service? Why have a low standard, or one that merely makes you look incrementally more responsive and on top of things than the boutique on the next floor up? Why not overhaul and re-create the whole game?

If you read the better writers on services, like Harry Beckwith in Selling The Invisible, you pick up on this simple idea: Rather than ‘under-promise/over-deliver’, which is essentially job specific, why not change the way people think of lawyers generally and what they can expect from them generally? Get good clients–those clients you like and want–to keep coming back to you by communicating in all aspects of your work that you care deeply about your lawyering for them, you want to serve their interests on an ongoing basis and that it’s a privilege to be their lawyer. Show them you fit no lawyer mold.

Oh, yeah. One catch–and the hardest part: it’s got to be true.”

So how do I plan to execute? After all, a resolution without a plan is just an empty promise to oneself. I’m going to work on three core areas that tend to fuel a lot of client disappointment in their lawyers.

1. Communication. I’m going to work hard to improve my communication habits and practices. This includes a resolution to respond to any email or phone call from a client the same day. I’m going to report more, and more often, what’s going on in our case. (Yes, it’s our case. We’re in it together.)

2. Transparency. I’m going to strive to better involve clients in strategy development. Of course there are all kinds of clients, and some would prefer not to be involved; others want to plan every move. But those who want to participate will have the opportunity.

3. Value. Clients often hate to involve lawyers because they assume we are out to financially “gouge” them. I’m going to turn this on its head. I resolve to bring more value-in-advance. I will think of at least one way to save my client money at every step in any litigation. I will work harder to keep clients aware of major changes in California employment law–for free!

There. Now pass the champagne.


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