Tag Archives: solo practitioner

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.


Another Reason to be Concerned About Reduced Hiring of New Lawyers

I was talking the other day with a young lawyer about, guess what,  the challenges facing new graduates.  This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice.  The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers.  I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice.  It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal.  Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade. 

I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared. 

This is because the training and experience we receive in the first years are pretty important in our development as a lawyer.  Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing.  But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law.  I know there are respected bloggers who would take issue with this assertion.  And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop. 

I’m not talking about the ability or experience conducting legal research.  Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense.  What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain.  I’m referring to judgment about when to take a case and when to say no.  Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you.  Judgment about how to shape and deal with clients’ expectations.  Judgment about how to manage a client who is persistently untruthful about the facts.  Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide. 

It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time!  This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area.  But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.   

What will be the impact to our practice and profession from this training vacuum? It could be significant.  For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door.  Our shrinking, already overstressed courts will become a repository for even more meritless cases.  I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam.  Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.  

The real victims, though, could be clients.  Clients who are misled, overencouraged, underwarned or led down the wrong path.  Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist.  Or at least told that the odds of winning don’t look too good.

Enough.  I tend to dislike writers who do nothing but diagnose a problem.  A proposal for a solution, even something half-baked, is the least a writer should do. 

Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations.  As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation.  If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack.  If economics dictate that tuition needs to increase to make this additional training possible, so be it. 

Local, county, state and national bar associations should also help fill the void.  There is no shortage of continuing legal education programs, at least in those states which require it.  But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers.  I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students.   Perhaps these programs could be coordinated with pro bono opportunities.  I’m just thinking out loud . . .

 I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers.  It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training.  Not just sloppy lawyering or calendaring mistakes, but errors in judgment.  I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.

*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).


A Scarcity of Solo Practitioners and Independent Bloggers? I Don’t Think So.

In a recent post on My Shingle, legal blogging rock star Carolyn Elefant laments the demise of the solo physician.  Among her chief concerns are an anticipated lack of physicians available to care for patients in rural settings and an erosion of physician autonomy.  However, she suggests that both the legal profession and legal blogging face similar concerns.  She writes:

The same concerns that flow from the gradual extinction-by acquisition of solo doctors in the medical profession are evident in both law-related blogging and broader legal profession.

I’m not sure I agree that this is a valid concern on either front.  Is there really a risk of large-scale migration from would-be solo practitioners to law firms? Doubtful.  While many students enter law school with an expectation of at least starting their profession at a law firm, the news I read suggests that firms are actually hiring fewer new lawyers, meaning more are, by choice or necessity, opening a solo practice.  Those same news reports warn that, even if the economy shows signs of long-term improvement, law firm economics have changed permanently, particularly with respect to the practice of staffing cases with newer, untrained lawyers at high rates.  We are unlikely to witness a mass exodus of solos in favor of law firm life any time soon, simply because there is a shrinking demand for them.

Additionally, from my admittedly unschooled understanding of the overhead of running a medical practice, I hold the opinion that it is increasingly easier for lawyers to start and maintain a solo law practice, while it is increasingly difficult to start and maintain a medical practice.  While I presently practice in a Big Law environment, replete with layers of infrastructure, there is no question in my mind that technology has made it easier than ever before for a lawyer to open and effectively operate a solo law practice.  A computer, printer/scanner, some key software and a place to work is about all that’s really required for a bare bones practice.  (Though this presumes the practitioner has both clients and skills.)

I presume that the infrastructure required for even the most spartan medical office (not to mention the cost of purchasing an ongoing practice) has, if anything, become more expensive with advances in technology.  I know my own health care providers always have several pieces of squeaky-clean, cutting-edge machinery, each of which probably costs more than my car.  As Ms. Elefant correctly points out, while the costs of medical school and other expenses continue to rise, the amount health insurers pay for procedures  has remained constant, if not declined, making it more and more expensive to be a solo physician.  It’s no mystery solo doctors are fleeing to hospitals and group practices.

I share her view that our profession benefits from solo and independent lawyers, and would definitely lament any sign of their demise.  But, unless I misunderstand Ms. Elefant’s argument, I don’t see sufficient similarities between maintaining a solo medical practice and a solo law practice to make me concerned that solo lawyers will become scarce anytime soon.

Are quality independent law bloggers becoming extinct? I’m not sure I  share this concern, either.  Purely by virtue of her tenure in the blawg community, I trust Ms. Elefant both when she describes the “independent voice” that characterized legal blogs a decade ago and when she suggests that group blogs lack the spark or edge of the early legal blogs.  My feeling, however, is that the business of practicing law has changed so substantially due to the explosion of technological tools and the recent turbulent years of the economy (What’s that overused catch phrase? Oh yeah, “the New Normal.”) that what was considered edgy a decade ago really is “normal” now.  Perhaps the “New Normal” should morph into “What are we supposed to do now?” or “Where Do We Go From Here?”

I suspect also that, beyond the proliferation of group and corporate-sponsored blogs which might not have the same spark and edge of early solo-written blogs, there is still a strong community of independent voices out there who write what they personally think, without the group dynamic or corporate “dilution” effect.  They might just be harder to hear amidst the louder noise around them.

Ms. Elefant’s underlying message is valid.  Our profession and clients need solo and independent lawyers, and the legal blogosphere benefits from ample  solo and independent voices.  The question is, do we really need to worry?


Should the California State Bar Add a Skills Requirement?

The California State Bar has apparently formed a task force to explore whether to “develop a regulatory requirement for a pre-admission practical skills training program” for new lawyers.  Is this a good idea? 

I think requiring a prospective new attorney to complete some kind of practical skills training is a really good idea.  With some caveats. 
First, the requirement  shouldn’t be one-size-fits-all.  In the perfect world, every prospective lawyer would get some exposure to various practices before he/she focuses, by choice or necessity, on a single area.  Many of us litigators will wonder until we retire what it would have been like to practice as a transactional lawyer (and vice versa).  That said, it would take a major overhaul of  the American style of legal education to expose everyone to a little bit of everything.  A more palatable approach would be to give prospective admittees a range of reasonable options for fulfilling the requirement. 

The second caveat would be to avoid attaching a mandated proficiency level to the skills requirement.  In California, at least, passing the bar examination is hard enough.  Of the 4,382 people who took the California bar exam this past February, only 42 % passed and only 53% of those taking it for the first time passed.  Those kind of statistics can be really discouraging to someone who invested  3 or 4 years of their life and roughly $100,000 toward a professional career.  We don’t need to make the admission process more intellectually challenging.

I would argue that we do, however, owe both new practitioners and the consuming public an obligation to help ensure someone who holds a license to practice law has some basic practical skills.  By the time I graduated law school and passed the bar examination in 1993, I had already “clerked” for two litigation firms.  I had been exposed to depositions and court (as an observer), I had written, copied, blue-backed (remember those?), served and filed pleadings and motions.  In short, I had a decent idea what courtroom lawyers did for a living.  Although the early 1990s are typically remembered as a “challenging” job market for students and new admittees, most of my classmates who desired experience during the summers and their second and third years of law school found it. 

From what I read and hear, the present legal job market makes the “challenging” early 1990s look almost like a “boom” period.  At a time when new admittees who graduated at the top of their class from a top-tier school are struggling to find a position as an associate anywhere, it makes me believe the opportunities to gain practical experience before passing the bar examination are more limited.  This will need to be addressed or our profession (and reputation) will (further)erode. 

The major criticism of a skills requirement is that it will increase the cost of legal education.  I fail to see the link between ensuring that bar applicants have some skills to go along with their theoretical training and higher law school cost.  It may be necessary to adjust the nature of what is taught, meaning more clinical programs.  Or, the solution could  be training through volunteer or pro bono programs which, in addition to fulfilling the skills requirement, provides the disadvantaged with greater access to needed legal services.

Without the training I received during my two years as a “law clerk,” I still would have received training at the first firm who hired me as a lawyer.  The problem now, as I see it, is that many are graduating law school, passing the bar and entering the marketplace without a job, forcing a great number of those who intend to enter private practice to open a solo practice without any skills training.  These newly minted professionals will learn, eventually, by a process of trial and error, but woe to those who hire them!


What You Want To Know About Your Opposing Counsel, Part I

One of the first things I look at when I get involved in any new case is who is my opposing counsel.  Though I’ve never practiced in a small town, the legal community in Southern California is smaller than you’d think when it comes to lawyers who concentrate their practice on a particular area, such as employment discrimination or product liability lawsuits.  If the lawyer is someone I’ve come up against before, I generally have a pretty good idea what to expect.  But if the name or the firm is unfamiliar, I like to do some research, to find out who I’m up against.  Here’s what I look for, why, and where I look to find it:

1. Firm or solo practitioner.  Is he or she a part of a partnership or a solo?  This is usually evident from the caption of the complaint or letterhead if we’re in the presuit stage.  Why do I care? If it’s a mega-firm, I expect the opponent is well-funded (by their nature, big law firms tend to be expensive, though not always) and I’m likely to encounter a “team” of lawyers on the other side.  This doesn’t make the case easier or harder to win–it’s just a factor.  If it’s a smaller partnership or solo, and the case is one taken on contingency (where the lawyer fronts time and expenses) the ability of my opponent to properly fund the case, through trial if necessary, may become a factor.  Sometimes I will see an anomaly.  If, for example, a partner from a high-powered BigLaw firm has taken a small case on contingency (a rarity), it suggests he or she may have some personal stake in the outcome.  Perhaps the party is a family member or close personal friend.  In either event, the lawyer may not be as objective about the case as if it was an arm’s-length representation.

2.  Bar number.  How seasoned is my opponent?  Assuming they were not previously admitted elsewhere (a dangerous assumption), I can make an estimate based on Bar number.  Whether I’m facing a new lawyer or a veteran does not, by itself, make the case harder or easier to win.  But I know from experience that a sole practitioner fresh out of law school will tend to exercise different judgment than someone who has been practicing for a few years or longer.

3.  Website.  I access the opponent’s web site.  I still sometimes encounter lawyers working by candlelight who have not invested in a website.  When this is the case I picture (perhaps unfairly) a caveman (caveperson) lawyer on the other side.  The problem is that some cavepersons really do know how to build and try a case (and connect surprisingly well with jurors–some of whom are also cavepersons), so it’s not any automatic comfort.  Assuming there is a website, this provides a wealth of information.  For example, do they focus their practice or dabble in every area under the sun.  Do they have a professional picture, or are they wearing a flowered Hawaiian shirt?

In Part II of this post, I will explore additional sources of information and what kind of information I consider useful and why.


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