Tag Archives: attorney

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.


One Lawyer’s Secret Weapon

yrtA lawyer I know, he has a Secret Weapon. When I get around to revealing it, you’re going to be surprised, because it’s so obvious. But it totally works.

First, a pop quiz:

Question One: What do you do when you’re trying to negotiate with an opposing lawyer over something small, but important–say an extension to respond to discovery–which, among professionals–people who wear white collars and silk ties to work, who attended years and years of expensive schooling, passed excruciatingly difficult examinations, swore an ethical oath–would seem to be an easy thing to agree upon–what do you do when this opposing lawyer unreasonably refuses, without any explanation, this simple, routine request?

Question Two: What do you do when you’re sitting across from that same lawyer in a cramped conference room, taking his client’s deposition and, over the course of several hours, he repeatedly insults and demeans you, challenges you to justify every third question, asks no less than five times “how much longer” you’re going to be, persistently interrupts you mid-question to interject the start of what will surely be a long, inappropriate speaking objection, and instructs his client not to answer at least seventeen times?

These questions are not directed to what you do the next day, or whenever you ultimately resort to serving objections, or moving the court to compel answers to the deposition questions and seeking sanctions, or asking the court to appoint a discovery referee.  I’m asking what do you do in the heat of the moment, while your heart rate is still elevated.

If you’re me–and believe me I’m not bragging here–you take everything personally, get pissed off, turn beet red and start talking with the snappy sarcasm of a desperate salesman in a Mamet play. You see: I haven’t mastered the Secret Weapon. I can talk a good game. I’ve written over and over about the wisdom of maintaining a professional, cooperative demeanor in litigation. But when the rubber meets the road I struggle to avoid stooping to an unprofessional opponent’s level, or (gasp) worse. No, I haven’t yet mastered the Secret Weapon.

But you can. The good news is that YOU CAN master the Secret Weapon. When the lawyer I’m thinking of is faced with the above, or worse, he pulls out his Secret Weapon and does this: he simply acts nice. He meets rudeness, lack of professionalism–you name it–with an oversized bucketful of fluffy pink kindness.

It’s impressive to see. Picture Roger Federer being pelted with a barrage of ugly, aggressive cross-court winners and absorbing and converting the energy, speed and spin of each angry ball, only to gracefully return it with nothing more than an easy, gentle lob. In fact, like CIA assassin Jason Bourne, whose manner of calm resolve seems actually to increase in a disturbing direct proportion to any rising threat of imminent capture or death, this lawyer’s attitude of kind, gracious, solicitude seems to actually grow in direct proportion to the lack of professionalism of an opponent.

He invariably takes the high road. He literally kills them with kindness. Is it always easy for him? I doubt it. Is he sincere in his “attitude of kind, gracious, solicitude”? Who cares. He’s getting the job done. In most encounters, his weapon immediately deflates a situation that in my fat, clumsy hands would become a runaway train wreck. It works. It really does. Try it next time you’re dealing with a total asshole less than professional member of our profession, you’ll see.


Can’t We All Just Get Along?

fdreDo you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced \(ˌ)kō-ˌä-pə-ˈrā-shən\–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

  •  Is not capitulation.

  • Is not an abdication of appropriate and vigorous advocacy.

  • Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id.citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

  • “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

  • Consider what discovery is truly needed, and not just desired.

  • Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”


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.


American Lawyer, Eastern Mindset

MarbleandtheSculptorcover-683x1024I have long found much to admire about Keith Lee’s writing in his well-regarded Associate’s Mind blog. His voice is intelligent, but accessible. His tone is informed, but not condescending. His consistent message about the state of our profession is tough, but not without optimism.

I was pleased to find all of these qualities and more in his recently published first book, The Marble And The Sculptor.

What I particularly appreciate about Lee’s thoughts, as expressed in his words, is how they are often infused with precious pearls of Eastern wisdom. It is refreshing, at a time when the business of law threatens to eclipse what was once regarded as a noble profession, to encounter a fellow lawyer who strives to penetrate deeper into what it means to undertake a legal education, to prepare for and pass the bar examination and, finally, to carve out one’s own place within our profession. The decision to commit to this profession is a serious one, and Lee invariably addresses these issues with unflinching candor.

As an undergraduate student of Western philosophy, I occasionally flirted in a superficial way with Eastern thinking on issues of metaphysics, epistemology and religion. But I never let my guard down or did the work necessary to really grasp the Eastern mind. Again, when my wife and I traveled throughout Asia during our sabbatical, I was confronted and tried to learn about the Eastern religions, the teachings of the Buddha, the Hindu belief system and others, including radical Jainism. But regardless of my immersion, those teachings remained essentially foreign to my Western-bred mind.

Lee forces me to revisit the Eastern mind, but to apply that way of thinking to my own chosen profession as a lawyer attempting to practice here, in America. As the rapidly growing blawgosphere demonstrates, pretty much anybody can write about law. The difference in reading Lee is not only that he has something to say, but what he says carries a much larger, often universal import. His how-to manual for newly-minted lawyers would not require much revision to serve as a how-to manual for success in any career, or even in life. I believe it is his Eastern mindset that gives Lee’s words their added wisdom, their depth.

Much of Lee’s advice for succeeding both as a law student and a lawyer comes down to one quality: discipline. It’s not an accident that Lee came to law school, as he puts it, “a bit later in life” at twenty-seven. After college, he spent a year as a runner/project assistant/gopher at a large law firm. Yet, even after this experience cemented his certainty that he wanted to be a lawyer, he did not enter law school right away, but instead moved to Canada to train as an ichi deshi to a shihan (master) for nearly a year. He briefly describes this experience as

” . . . crazy and awesome and painful and beautiful — one of the best and most difficult experiences in my life. It’s the sort of thing that’s hard to encapsulate in words. Sleeping in a storage closet under the stairs in the basement of the dojo on a thin mat. Subsisting primarily on rice, vegetables and PB&Js (okay, and beer on occasion). Training five to eight hours a day, five to six days a week. Bleeding toes and cracked ribs. Scrubbing toilets and washing mats. Friendships gained and lost. Intense spiritual moments of training and camaraderie, intense times of loneliness and introspection. No TV, no movies, no cellphone.” (Id. at 97-98.)

Not exactly Club Med. But perfect training for the mental discipline needed to become a successful professional. Describing the training during this period, Lee writes:

“After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wander. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.” (Id. at 98.)

This focus on discipline as the key to growth as a lawyer is echoed throughout The Marble And The Sculptor. From one’s selection of law school electives, to developing key relationships, to balancing the competing demands of family and law school and, later, law practice, he returns again and again to the notion of discipline. Lee writes:

“Every lawyer, every person you meet, was once young, naive, and ignorant as you are. It is now your personal responsibility–no one else’s–to mature and develop into a competent lawyer who is fit to be trustworthy of a client’s problems.” (Id. at 21.)

Another vein that travels throughout the book is the notion of humility, which I believe also finds its genesis in his Eastern studies. There is a tendency, after you’ve devoted years of your life and a small fortune to finish law school, excelled on law review or moot court or whatever, to take yourself pretty seriously as a brand new lawyer. Lee gently reminds readers that, as new lawyers, you don’t know shit.

But his purpose isn’t to cut baby lawyers down. Rather, Lee is interested in teaching the kind of humility that is found in Eastern thought and easily seen in the martial arts, in the interest of helping you on your path to becoming a professional. He writes:

“After obtaining my black belt, did I consider myself a master? When I received my JD and passed the Bar, did I consider myself an expert lawyer? Of course not. They’re ridiculous propositions.

Traditionally, a black belt has only meant one thing: you were now considered a serious student. Everything before was playtime. Training wheels. Getting a black belt only signifies that you have mastered the basics and are ready to begin dedicated study. The same is true with a JD. Having a JD doesn’t indicate mastery of the law. It’s merely a signifier that you are probably ready to step onto the playing field. What follows is up to you.” (Id. at 102-03 (emphasis in original).)

Readers of Lee’s blog, as well as his new book, quickly learn that his choice of title for the blog, Associate’s Mind, was no accident, but reflects this essentially Eastern attitude of humility toward our profession. He writes:

“So, during my final year of law school, I started a legal blog titled Associate’s Mind, a play on words of a concept in Zen known as shoshin, or ‘beginner’s mind.’ A ‘beginner’s mind’ refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would.

I wanted to adopt this mindset in my practice of law. The idea that an associate should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before them. ” (Id. at xii.)

I encourage you to read Lee’s new book, and to subscribe and follow Associate’s Mind. You will find there pearls of the kind of wisdom our profession desperately needs at this difficult time.


How Well Should You Know Your Arbitrator?

bvccffThis cautionary tale comes from a case called Mt. Holyoke Homes, L.P., v. Jeffer Mangels Butler & Mitchell, LLP (No. B243912). The facts are straightforward. Mt. Holyoke Homes hired Los Angeles law firm Jeffer Mangels Butler & Mitchell to provide legal services in connection with a real estate development.

When lawyers at the Jeffer firm failed to timely challenge the California Coastal Commission’s exercise of jurisdiction over Mt. Holyoke’s application for a development permit, Mt. Holyoke sued the firm for legal malpractice. Jeffer Mangels petitioned to compel arbitration, which was required under its engagement agreement with Mt. Holyoke. The law firm also sought to recover unpaid legal fees.

The parties jointly selected Retired Judge Eli Chernow to serve as the arbitrator over the malpractice action. According to the case, Judge Chernow made the following disclosures at the outset of his engagement:

“Judge Chernow disclosed that Defendants’ counsel had represented a party to a mediation before him within the past five years, but stated that he was not aware of any relationship with any party or attorney involved in this matter that would impair his ability to act fairly and impartially. Judge Chernow later disclosed that he had known Benjamin Reznik for many years. He also disclosed that he had conducted an arbitration and a mediation involving Adler more than five years earlier. The parties agreed to his appointment as arbitrator despite these disclosures.”

Judge Chernow ultimately issued an award in Jeffer Mangels’ favor on the grounds that its members had not breached the applicable standard of care nor caused Mt. Holyoke’s damages. He awarded the law firm $18,132.81 in unpaid legal fees, $285,000 in attorney fees incurred in connection with the arbitration, and over $150,000 in costs.

Smelling a rat, one of the Mt. Holyoke plaintiffs scoured the internet looking for evidence of bias on the part of the arbitrator. According to the case:

“She discovered for the first time a previously undisclosed resume in which Judge Chernow had named Robert Mangels, a name partner in JMBM, as a reference. She found a link to the resume on the Internet site of the National Academy of Distinguished Neutrals. Mangels was the first of three “References” listed on the resume.”

Reasonable minds will differ on whether this was really smoking gun evidence of bias. Judge Chernow signed a declaration attesting to the fact that the “resume” had been prepared 10 years earlier and that “he had listed Mangels as a reference only because Mangels was a well-known and highly-regarded litigator who was familiar with his abilities as a neutral.”

The trial court, unimpressed with the internet revelations, granted Jeffer’s petition to confirm the arbitration award and denied Mt. Holyoke’s petition to vacate the award. But—you guessed it—Mt. Holyoke appealed, and the California Court of Appeal held that it was error for the trial court to deny the petition to vacate the award based on the revelations of Judge Chernow’s . . . er . . . sordid past with Robert Mangles. The Court said:

“ . . . the connection between the undisclosed fact of the arbitrator’s naming an attorney as a reference on his resume and the subject matter of the arbitration, a legal malpractice action against the law firm in which the same attorney is a partner, is sufficiently close that a person reasonably could entertain a doubt that the arbitrator could be impartial. We conclude that Judge Chernow was required to disclose the fact that he had listed Mangels as a reference on his resume. Judge Chernow did not state in his declaration that at the time of his required disclosures he was not aware that he had listed Mangels as a reference on his resume, and there appears to be no reasonable dispute that he was aware of that fact at that time. His failure to timely disclose this ground for disqualification of which he was then aware compels the vacation of the arbitrator’s award.”

The real loser here is Jeffer Mangels or its malpractice carrier, who now have to re-try and, presumably, re-win the malpractice case. Perhaps there really was bias, though I doubt it. Judge Chernow is a pretty well-respected neutral. However, this case highlights the risks if you don’t know your arbitrator really, really well (or if you actually do know your arbitrator really, really well). I never said arbitration wasn’t risky, expensive and unpredictable.


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.


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