Category Archives: The Business of Practicing Law

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.


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.


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.


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.


Be A Superlative Local Counsel

asdfreI previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.

One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.

But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.

With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.

1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.

2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.

3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.

4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.

5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.

6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.

A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting  procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.

7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.

8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.

9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.

Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.


Learn To Give “Value-In-Advance”

qw22113Much of my approach to marketing my law practice derives from the two years I had one-on-one business development coaching sessions with Bob Kohn of Kohn Communications. First and foremost, he helped me get past the discomfort I had with asking for business (though I’ll confess this is still tough for me). In particular, he helped me appreciate that offering my services as a lawyer is quite different from trying to recruit a friend into Amway.

Even if one-on-one business development coaching is beyond your means, you can still benefit from the Kohn Communications model, since Bob and his brother Larry distilled their approach into a fine book, Selling in Your Comfort Zone (ABA 2009). One of the strategies Bob taught me, which he discusses in the book is giving “value-in-advance.” To do it justice, I’m going to skip my own description of this concept and simply quote the Kohns:

“‘Value-in-advance’ is the strategy of offering something for free as a way of allowing your targets to experience a sample of the benefits that you offer. If you were selling a product, then ‘value-in-advance’ might be a sample of the product.” (Id. at 71.)

According to the Kohns, value-in-advance serves multiple purposes. Among these–and why it is especially useful for me–is that it creates a reason/opportunity to reach out to one’s targets that is, at its best, positive and, at worst, neutral. In other words, by trying to offer something valuable in advance, you are taking an uncomfortable, potentially negative experience, and making it a hopefully positive one for both you and your target. Even if the “value” you offer in advance is not ultimately useful to your target, the exchange will likely be viewed at worst as neutral.

The Kohns point to how Gillette sent free Mach III razors to potential customers as a simple example of value-in-advance. Because I sell information, advice, strategy and representation rather than razor blades, I prefer to provide information, advice and strategy in advance, whether it is by an alert, a speech/presentation or providing counseling without charging for my time. Further, since I practice in an area–employment law–which experiences almost constant changes in the law, I truly believe that the information I provide for free brings value to my audience, or targets.

Many people I consider business development “targets” are not really potential clients. Rather, they are often folks whom I believe are, or will be, positioned to refer potential clients to me at some point in the future. For some reason I don’t completely understand, I find it much easier to “sell” myself to referral sources than to prospective clients. In any event, another type of value-in-advance which the Kohns discuss, and which I find both easy and valuable, is to bring together–through introductions–people whom I believe will benefit in some meaningful way from knowing one another. One example could be introducing a lawyer or accountant who specializes in the entertainment industry with a contact in the entertainment industry who could benefit from their services.

The Kohns discuss this kind of giving value-in-advance as follows:

“Introducing quality people to each other communicates compatibility and capability. It demonstrates that you know quality people. And, as those people interact with each other, it strengthens their emotional connection to you.” (Id. at 73.)

One would be naive to ignore the potential risks of making introductions, and I don’t make them blindly. The Kohns acknowledge these risks. They say:

“Many people are afraid to make introductions because of the possibility that the people you introduce may not get along. Or worse, they may do a deal that goes badly. It is important that when you make an introduction, you are proud of the people you are introducing. Also, you don’t need to make warranties. Rather, you should state that you are introducing people with the understanding that they get to know each other and decide for themselves if they feel comfortable working together.” (Id. at 75.)

Venture capitalist Mark Suster, who is not only a friend, but also someone I’ve come to view as a kind of “success mentor,” creates an even stronger argument for being “judicious” in deciding whether and to whom to make introductions. In his blog, Both Sides of the Table, he writes:

“Intros. They’re the lifeblood of networking – the currency of mavens. They are your route to angel money. Your entrée to sales meetings.

We couldn’t live without them.

But when misused, overused or abused they can diminish your personal brand, consume your valuable time and waste time of the relationships you value the most.

* * *

[H]ere’s the thing – every time you send an introduction you’re obligating people. At a minimum you’re obligating them to ignore the email and feel like an arse for not responding to your introduction. More likely they either end up finding an excuse not to meet, delaying a meeting indefinitely or in most cases actually taking a meeting.

Over-introducers also consume a lot of personal time in making intros. It is very time consuming doing intros the right way. Ask yourself the tough question about how you might spend that time more productively getting your job done well.”

Suster’s post has some useful thoughts and guidelines on when to make (or not make) introductions, and I recommend it.

The real takeaway here is that giving value-in-advance, whether through free razor blades, alerts about employment law developments or making quality introductions, can be a terrific way to market your product or practice without overtly marketing your product or practice. Check out the Kohns’ book for other ideas.


When Should You Hire Local Counsel?

889900Being lawyers, many of us suffer from the tendency to believe we can service all of our clients needs, whatever they are and wherever they take us. I think part of the reason is that, as professionals, we naturally like to control everything, and the thought of relinquishing any little bit of control causes anxiety. I suspect another reason has to do with a worry that other lawyers are direct competitors, even if their practices differ geographically or in terms of subject matter.

I hesitate to suggest that we’re worried the other lawyer will do a better job for our client (though they might), but it’s scary to think another firm, even if hired as a partner in a particular case or project, will take the opportunity to aggressively pursue our client, to take it/them away from us permanently.

Yet another concern could arise from a fear that, if we involve another professional and they do a less-than-stellar job or overcharge our client, or both, it will reflect poorly on us. It surely will, on some level, at least if we are involved in selecting and/or hiring the associated professional.

On a purely rational level, we know these concerns shouldn’t prevent us from doing what’s best for our clients. If that means hiring a tax specialist because a deal or case raises issues outside our skill set, it’s generally a no-brainer decision. Similarly, if I’m a litigator licensed only in California and I’m handling a case in, say, Nevada, which requires the involvement of a lawyer who is both licensed and venued in Nevada, even if I am admitted pro hac vice, I won’t let my poaching fears prevent me from doing the right thing.

But what about a borderline case. For example, I most often practice in the Los Angeles area. I know the courts, the procedures and many of the judges in LA, Orange County, Ventura, Santa Barbara (because I actually live in SB), Riverside and San Bernardino. If I am assigned to handle a case in Bakersfield, or Fresno, or even San Diego, should I be thinking about hiring local counsel in those venues?

I want to suggest the answer is yes, I should at least think about whether it makes sense to involve a local counsel in any case that I’m planning to handle that is as far away as Bakersfield is from LA, even if, after I think about it, I conclude it is unnecessary. In other words, it is an issue that should be spotted and resolved just like any other.

I recognize this doesn’t really advance the ball, because it doesn’t provide any guidance when one should, not only consider hiring a local lawyer, but actually do it. Here are some thoughts on this bigger question.

1. Hire local counsel when you have reason to believe you will be “home-towned.” What does this mean? I see “home-towned” as any instance in which your client could suffer prejudice from the fact you are foreign to the jurisdiction. This is not always readily apparent, and could require some impression gathering from colleagues or acquaintances. I’ve long heard, for example, that judges and juries in San Diego do not receive Los Angeles lawyers well. I could speculate forever on the genesis of this (assuming it is true), but I’ve heard it over and over.

Now, this does not mean I think it’s necessary to hire a local San Diego lawyer or firm  every time I have a case pending there. Rather, it is more likely that I would only hire someone local if my case was clearly headed to trial, or if there was some unusual issue that made me think my client would benefit at all from having someone local there with or instead of me. The possible scenarios are endless. It’s a judgment call.

2. Hire local counsel when you’re in a venue that has strange or unfamiliar procedural rules. In California, we are required to comply with the California Code of Civil Procedure, the California Rules of Court, the Local Rules of the county and, often, the judge’s own rules. And we hope none of these conflict. Sometimes we encounter a county or judge with some bizarro rules about how things must be filed or served, or both. I can tell you there is nothing more comforting than being able to pick up the phone and talk to someone who regularly appears in the particular court, before the particular judge.

3. Hire local counsel when it’s otherwise a good idea and you can hire someone whom your judge knows and respects. This can be particularly important if your opposition knows the judge well.

4. Hire local counsel when you expect the entire jury will speak with an accent you don’t have. I’ll admit to occasionally having Southern Drawl Envy. You know what I mean if you’ve ever had to speak at a conference and follow some smooth-talking  storyteller from South Carolina or Georgia or someplace. It can be humbling to realize how utterly ordinary we sound.

5. Hire local counsel when there’s a reason to think some past event or news will cause your client to suffer geographical prejudice. Did your client just shutter a factory in the town where you’re about to start trial, putting hundreds or thousands out of work? You’re going to need to deal with that, and a local perspective will be valuable.

One final word. The verb “hire” as used here doesn’t mean your client needs to break the bank with yet another full-time billing machine. Often, it will suffice to have the local counsel merely available for consultation purposes, or to help pick the jury, or participate in a particular hearing.  The additional investment should be minimal and could pay dividends.


Don’t Try This Alternative Fee Arrangement At Home

rewwThis article originally appeared in the Los Angeles Daily Journal.

Lawyers, on the whole, make pretty poor business owners. Ask any MBA graduate or marketing guru. I never gave this a second thought during my first decade of practice, when I was too busy wondering why I wasn’t earning as much as some of my classmates (while admittedly earning more than others) to think about the bottom line. It turns out, however, that stars really must align in order for a billed hour to ripen into a collected greenback. A client is needed who not only can afford to pay, but who will pay. This axiom is apparently so obvious that most law schools don’t waste even a minute teaching it. Go figure.

Talk of alternative fee arrangements is all the rage. While opinions differ about which arrangements work, or are really “alternative,” I can identify one arrangement that is virtually guaranteed to fail, eventually: I call it the “hourly-contingency” model.

I was introduced to the mechanics of the hourly-contingency model by a colleague with whom I worked a few years back. I considered him a dunce then, and I remember him as one now. But I’ve come to realize that the hourly-contingency model as he structured it — however inadvertently — is actually a common practice by litigators everywhere, from solo practitioners to BigLaw firms.

Here’s what I’m talking about. A client finds her way into your office with a set of facts that simply scream for redress. It’s a business spat, a breached contract or a real estate deal gone bad. Her case is sufficiently textbook. There are promising facts on the plus side and manageable details on the negative. The biggest plus of all is a solvent defendant. You discuss costs; she’s prepared to pay. You sign her up and you’re off to the races.

Things start out well. The opposition balks at your demand. This was expected. You file a complaint, exchange discovery, some documents, emails, computer files, etc. Some key early depositions are conducted. The facts that made the case attractive remain strong and you continue to believe you can manage the negatives. But one thing does change: your client, so gung-ho to sue and so prompt to pay at the outset, has been slow to return calls and even slower to pay her bill. As soon as her A/R hits 90 days you call her in for the “talk.”

As you expected, money has gotten tight. Your client still wants to pursue the case and promises to pay, but just simply can’t right now. You extract a small check toward her A/R, send her on her way and privately vow to handle the case more “economically” going forward, at least until your client gets current.

Only your client never gets current. And your opposition decides to ramp things up, making it impossible to handle the case more economically. A few months and another “talk” with the client yield nothing, not even another check toward her now rapidly growing A/R. Well, you think, the case should settle soon, and she can get current with the proceeds …

Where the story goes from here doesn’t matter. Or, actually, it makes all the difference, and that proves my point. Either the case settles or gets tried, a favorable result is reached and the client pays up, or things don’t go well and you end up eating a substantial chunk of your bill. When this happened to my … er … colleague, he ended up eating about $80,000 in unpaid fees, not because the client did not want to pay, but because she couldn’t and he had allowed the case to get into this unfortunate posture.

The hourly-contingency case. You bill clients for your time, but there’s no guarantee you’ll collect unless you win. But it’s not a true contingency fee because there’s no bonus for a great result to justify the gamble of taking the case on contingency. It’s not what either the lawyer or the client intended, but both acted in concert, if purely through inertia, to allow it to happen.

How do you keep an hourly case from unintentionally going contingency? It turns out it’s not terribly complicated, but it does require discipline. And it begins with a retainer check. I left this out of the hypo above, and I could just hear readers muttering under their breath, “Of course there’s a retainer, right?”

I left out the part about the retainer because lots of lawyers do business with new clients without a retainer. It’s not because lawyers, even those who lack business acumen, do not understand the wisdom of collecting a retainer up front, it’s that we really don’t enjoy doing it. It’s an uncomfortable conversation. But it’s a necessary one. Lawyers who are diligent about getting a retainer fee are less likely to get stuck holding the bag if a case, a client, or both go south.

Lawyers and clients can agree to apply the retainer to the first billings, or for the funds to be held in client trust until the close of the case, and applied to unpaid invoices or refunded at that time. Beware: all but the wealthiest clients will want — and may expect — the retainer to be applied right away. But this would be no help at all in our hypothetical above. The upshot is that it takes discipline, both to ask for the retainer, and to retain the retainer until the case is closed and the client is current.

If it takes discipline to protect yourself with a retainer, it takes far greater discipline to recognize you’re sliding into the hourly-contingency situation and to cut the client off. This is particularly true if, as in our hypothetical, you share your client’s belief in the quality of her case. And could there be a more uncomfortable conversation? The temptation exists to believe if you just hang on a little bit longer the case will settle and you’ll get paid.

It’s only with discipline, by tempering that temptation, that you can prevent a case that’s headed for the hourly-contingency sinkhole from getting there. Leave this particular alternative fee arrangement for someone else.


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