A PSA For DRI

The Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.* 

I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun.  Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees.  With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.

The benefits of membership  include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters.  There are expert witness databases and certain substantive law committees have very active listservs.  There’s also a blawg, DRI Today.  The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources.  I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years. 

Take a look at DRI.  There’s a discounted membership for lawyers practicing 5 years or less.  And if you’re interested in joining, let me know and I’ll hook you up.

*With guitar!
** Including Canada.

Don’t Be The Third Lawyer For The Same Client On Any Case

A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor.  This is surely one of the bigger risks when you take over for someone else.  But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.

I’m thinking in particular of the problem or “unworthy” client.  Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem.  Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.

There is no question that many clients have legitimate reasons for seeking new counsel.  Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with.  But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.

If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly.  First, learn and know the file before the substitution is signed and you take over.  This can and arguably should include a heart-to-heart conversation with your predecessor(s).  As uncomfortable as this can be, it’s worth the effort.  Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case).  Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic.  Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome.  Because you simply can’t.

On the Beauty of Process: The E-Myth Attorney

Like many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds.  But, it contains advice which, if followed, can be transformative. 

What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice.  They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them.  And if your business doesn’t run well without you, what happens when you can’t be in two places at once?  Ultimately, your practice will fail.” (From the Preface, xvii.)

The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs.  There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business.  As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise.  I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business.  That thinking is noble and all, until it comes time to pay off student loans or put a child through college.  Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive  about being a highly ethical professional, but also thinking like a business person.  This is exactly the premise of The E-Myth Attorney.

How should a lawyer think more like an entrepreneur?  The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.”  It’s not complicated.  Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.”  (64)  How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee.  Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time.  Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.

Of course lawyers don’t make burgers, fries or lattes.  But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability.  For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing.  These aspects are required for every client, every case.  Most intelligent law practices already have systematic procedures for these tasks.  But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing.  Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access.   A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims.  Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained. 

The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee.  Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover.  And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies. 

But, for me, the E-Myth is ultimately about appreciating process.  I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates.  I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place.  I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession.  It will make our practice better and our life easier.

Sage Advice to New Law School Graduates: Keep In Touch

Congratulations 2012 law school graduates!  Welcome to the war.  Wear sunscreen.

Seriously, though, I have a piece of advice I wish I had known and followed almost 20 years ago.  Make a list of every person with whom you attended law school (not just your graduating class, but all 3 or 4 years) that you know/knew even remotely.  Don’t limit it to people you hung out with or even liked.  Make it every single person who would recognize you or your name.  For every person you list, do everything thing you can to gather that person’s contact information and put what you have (even if it’s only an email) in your Outlook or digital or old school address book.  Then, as often as you feel comfortable, but at least every Christmas (or commonly recognized holiday in mid-December, Kwanzaa or whatever), reach out to that person with some kind of communication (written or phone) wishing them well.  A holiday card on actual stationary will do the trick.

This process will be a lot easier if you start right away with an email or other note wishing the new graduates among them good luck on the bar exam.  When bar results are announced, reach out and congratulate those on your list who passed.  Suggest you’d like to keep in touch.

I cannot overemphasize how much of a career shaping or changing habit this can be.  Many (ok, let’s face it, most) of you are going to struggle for the next 12-24 months trying to secure agreeable employment.  But every graduate will eventually find something.  This is just the beginning.  The people on your list will move.  Their career and life choices will take them in directions both vertical and lateral.  Yours will, too.  From my experience, the farther we get from college or law school, the more we wish we’d kept in touch.

If you adopt my suggestion, fast forward 20 years and picture that classmate you marginally knew in 2012, but with whom you made an effort to keep in touch, in the year 2032.  He or she is no longer a fresh law school graduate.  He or she is a senior partner at a firm, or active in business, or maybe at home raising a kid.  Or maybe, he or she has just been hired as assistant general counsel of a potentially great client who, as it turns out, needs counsel in your practice area.  Or he or she is a rising star at a prosecutor’s office or other government position and in a position to influence lateral hiring.  The possibilities are endless.  The point is that, with a minimal, but regular,  expenditure of effort, you could be positioned to leverage relationships to help shape your career in ways you cannot presently imagine.

And I don’t mean to suggest that such relationships exist just to be leveraged.  Who knows, with just an occasional email or note, that acquaintance from law school could grow to be your best new friend.