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Practice Points


January 29, 2016

Tips for Representing a Client with Diminished Capacity


The ethical issue of representing a client with diminished capacity frequently arises in estate and probate practice. Oftentimes, an adult child will bring a parent to an attorney’s office to prepare and execute estate plan documents, because the parent has recently been diagnosed with dementia or “is not doing well.” These are the last-minute preparers. Sometimes the parent has an estate plan, but now the adult child brings the parent into the attorney’s office to make changes. Beside the obvious question of undue influence, there is the question of capacity to execute legal documents. Finally, there are the parents with an estate plan appointing an adult child or children to act as personal representatives of the parents and their estates, and other family members raise claims of mismanagement or abuses of power against the representative. The attorney faced with these situations must ask herself whether the client lacks capacity to make any legal decisions, whether the attorney may represent or continue to represent the client, and/or whether the attorney is authorized to notify others of the client’s risk of harm.


Determining Capacity
As with most state statutes, the California Probate Code sets out guidelines for determining a person’s capacity. Although attorneys are not typically licensed physicians, the criteria set forth in the code provide the basic framework for the attorney to assess the client’s capacity. Similarly, the American Bar Association, in conjunction with the American Psychological Association, has published a handbook for attorneys to refer to when making similar assessments in regard to the client’s mental capacity. The basic presumption is that a person is of sound mind and, therefore, legally competent to make his or her own decisions, which includes the capacity to execute legal documents. Depending on the circumstance, the attorney must review the applicable capacity standards when representing a client. For instance, if the client is brought to the attorney to amend a trust, the legal standard of capacity is different than making informed health care decisions.


Determining whether the client lacks capacity to perform a task, typically involves assessing whether the client is able to effectively communicate and understand the decision and its consequences. When questions of capacity arise, the attorney must properly assess and document the client’s capacity. A simple conversation with the client will give the attorney the opportunity to make an assessment of capacity.


Protecting an Incapacitated Client
Once the attorney has determined the client is incapacitated, what can he or she do for the client? What steps can the attorney take, if any, to protect the client at risk of harm? Is it ethical to file a conservatorship or notify third persons of the client’s incapacity?


American Bar Association’s Model Rule of Professional Conduct 1.14 states that when representing a client with diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” The “normal client-lawyer relationship” involves communicating with the client, informing the client of the progress of his or her case, and maintaining the client’s confidences. How is the attorney to continue representation with a client who cannot effectively communicate with the attorney and/or is unable to understand the information given to the client? What happens if the attorney learns during the representation that a third party is abusing the client, but the communication was made in confidence?


In those situations, the rule permits a lawyer who believes the client has diminished capacity or may be at risk of harm and cannot adequately protect his or her own interest to “take reasonably necessary protective action” including “seeking the appointment of a guardian ad litem, conservator or guardian.” Essentially, the attorney is given the right to reveal confidential communication to protect the client. Of course, the attorney must always be guided by the client’s best interests.


Other states, such as Utah, Illinois, and Arkansas, have adopted the rule 1.14, giving attorneys not only guidance, but also the affirmative authority to take “necessary protective action” for their clients. “Necessary protective action” includes notifying family members or public agencies if the client is at risk of substantial harm, financial, physical or otherwise.


California State Bar has proposed, but has not adopted, a similar rule. Instead, attorneys must follow the current Rules of Professional Conduct and Business and Professions Code, which requires the attorney to avoid “interests adverse to a client” and “representation of adverse interests.” Filing a conservatorship on behalf of your client to protect him or her from potential financial elder abuse is representing interests adverse to a client. After all, a conservatorship is essentially restricting the client’s freedom and taking away rights, such as management of one’s own finances.


In California, attorneys are limited in what they can do to protect the client, because of the duty to maintain the client’s confidences “at every peril” to the attorney. However, a California attorney may reveal confidential information to prevent criminal acts that may result in substantial bodily harm or death. Otherwise, the attorney may not reveal any confidential information, without the client’s informed written consent. Usually, a client with diminished capacity could not give such informed consent. Thus, the California attorney may have violated her ethical duties if a report is made to third parties, even if the report is made for the client’s protection. The important thing for all attorneys representing clients with diminished capacity to remember is that the client’s needs and desires are the highest priority. In those states following the ABA model rules, the attorney is authorized to take affirmative action, and arguably may have violated her ethical duties by failing to take affirmative action, to protect the client from potential and/or actual abuse.


Resources
ABA News, “Who is the client, and other questions in dealing with diminished capacity”.

ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers


Candice A. Garcia-Rodrigo, Rodrigo Law Firm, Rancho Cucamonga, CA


 

January 29, 2016

Stop Living in Misery: You Deserve Better


In the article “Stop Living in Misery: You Deserve Better,” published on January 26, 2016, in Above the Law, author Jeena Cho ponders this question: Why are so many lawyers unhappy? Cho states that nobody decides to go to law school with the aspiration that they will hate their job. So why do so many lawyers end up there?


Cho says that she was once in what she dubs the “Miserable Lawyer camp.” She pulled all-nighters and worked 70 or more hours per week. She would get that “awful feeling in the pit of [her] stomach on Sunday nights and it would magically disappear during Friday happy hours.” (Sound familiar?) Cho says that she chose to live like this because she didn’t think there was an alternative. She legitimately thought that lawyers were supposed to be miserable. And if you weren’t miserable, you weren’t doing it right. But Cho points out that misery is not a natural part of being a lawyer—it’s a choice. And with a little effort, you can change your negative thinking.


Cho says that the first step in making any change is “awareness.” When working with lawyers, she likes to “explore the details, the specifics, the root of the unhappiness.” She says that lawyers often identify things like “lack of autonomy, not having an understanding of the bigger picture—how her work fits into the larger project, ‘emergencies’ that could’ve been prevented with proper planning, lack of feeling that her work matters, lack of teamwork, interpersonal conflict, and dealing with people who suffer from . . . ‘A**hole Syndrome.’”


To start this exploration yourself, Cho says you should create “quiet space” (which she acknowledges can be hard to find when you feel like you are drowning). But you need to be able to look at your situation from a calm and centered place. You need to create a space to “respond rather than react.”


Cho recommends creating this space through the “practice of mindfulness.” This can be done by just quietly sitting for a few minutes each day. With practice, Cho says she has learned that she can more easily identify the causes of her problems and she can notice her emotions without getting carried away by them.


For Cho, exploring the areas of work that caused her dissatisfaction ended up being a gift. She says she was better able to relate to her clients and produced better work product when she began to understand and master her emotional reactions.


Cho stresses that if you are miserable, it is up to you to do something about it. If you practice being miserable, it will become your default reaction. But if you practice bringing something better, then that is what will get stronger. Cho she approaches each situation with kindness, empathy, and compassion. She encourages her readers to reflect on what will work for them.

Keywords: solo and small firm, litigation, solo practice, advice, Susan Cartier Liebel


Emily J. Kirk, Thompson Coburn LLP, St. Louis, MO


 

January 7, 2016

"5 Signs You're Not Ready to Open a Solo Practice"


In the article “5 Signs You’re Not Ready to Open a Solo Practice,” published on January 5, 2016, in Above the Law, author Susan Cartier Liebel discusses a personal checklist that every attorney should go through before deciding to go it alone.

 

According to Liebel, if you fall within any of the following categories, you may not be ready to go out on your own:

 

  1. You need someone to tell you what’s next. According to Liebel, this is a “biggie.” She states that if you lack self-motivation and rely on others to get you started, you are going to have problems. Entrepreneurship requires working alone. Accordingly, you must be the type of person who gets things done. If you are the type of person who needs a boss telling you what is next or encouraging you to accomplish tasks, Liebel advises that you’re not ready.
  2.  

  3. You can’t take the heat. Liebel acknowledges that running a business is stressful and can even be overwhelming at times. Solo practitioners must “produce quality legal work, represent your clients well, and deal with their stresses, too.” Accordingly, Liebel states that to go out on your own, you have to perform well under pressure. If you don’t perform well in such circumstances, or find yourself turning to food, caffeine, recreational drugs, or alcohol to cope, Liebel encourages you to think long and hard about whether you are ready to take on the stresses of running a legal services business where you are responsible for other people’s lives.
  4.  

  5. You’re going in blind. Liebel stresses that you have to do your homework when starting any type of business. She points out that you can become very knowledgeable about the basics of running a business before you open your doors. She suggests looking to the Internet or reaching out to others who are doing what you want to do. With the wealth of available information, Liebel states there is no excuse for not being knowledgeable about how to succeed in running a successful practice.
  6.  

  7. You lack passion for practicing the law on your own. Liebel says that while passion is an overused word and it isn’t her number one prerequisite for success in going out on your own, it still plays an important role. Starting a solo practice is a significant commitment and if you don’t believe in what you are doing, you will have no internal emotional support to handle the inevitable bumps in the road. Passion reminds you why you are working so hard and it keeps you moving forward. Liebel says if you aren’t starting your practice feeling passionate, you’re not ready. At least not right now.
  8.  

  9. You’re a copycat. Liebel reminds attorneys that building a business is a creative expression of “who you are, your goals, your mission, and desires in life.” When business stagnates, she states there is often a tendency to look to see what others are doing to succeed. But Liebel cautions that what works for others isn’t likely to work for you. She states “[i[f you don’t have a firm handle on why you are doing what you are doing, the uniqueness of what will make you successful, and your particular circumstances, you’re just going to be a copycat.” Liebel emphasizes that if you’re a copycat, you aren’t ready to open your own practice. At least not yet.

 

Liebel concludes by saying that to be successful in opening a solo practice you have to be honest with yourself. You have to know what you want in life and how having your own solo practice will get you there. She reminds attorneys that passion is important and preparation is key. But understanding yourself and your motivation is most important of all.

 

Keywords: solo and small firm, litigation, solo practice, advice, Susan Cartier Liebel

 

Emily J. Kirk, Thompson Coburn LLP, St. Louis, MO


 

August 11, 2015

The Right and Wrong Reasons to Form a Partnership


In the article “The Right and Wrong Reasons to Form a Partnership,” published on August 4, 2015, in Above the Law, author Susan Cartier Liebel equates partnerships to marriages. She states that, like marriages, “[h]alf [of partnerships] will last a lifetime, the whole being greater than the sum of its parts; growing together, getting stronger through adversity and compromise.” But she cautions, “[t]he other half will end up in a bitter and nasty separation and dissolution, fighting over assets and the custody of the clients.” Accordingly, Liebel recommends that you consider the right (and wrong) reasons to form a partnership.

 

Liebel lists the following as the “wrong” reasons:

 

  • I want someone to bounce ideas off of. Liebel suggests that lawyers need to have avenues available to seek guidance and mentorship. But lawyers can get that through relationships with peers, law school alumni, bar associations, and the like. Online educational sources and continuing legal education programs are also available. Lawyers can find networking and educational opportunities that will allow them to collaborate without having to share “financial intimacy.”
  • I want to be able to take a vacation and know my clients are taken care of. Liebel acknowledges that time away from the office is a reality, but she recommends that solos consider building strong reciprocal relationships with other solos and small firms so that they can cover each other when necessary. Liebel also suggests discussing any planned or unplanned absences with clients ahead of time so that they will know that a plan is in place to take care of their needs—even without a partner in the office.
  • I don’t want to take all the financial risk. As Liebel says, going solo is a calculated risk—period. Accordingly, Liebel suggests that (instead of partnering) lawyers consider various options for setting up office space to help defray some costs (e.g., sharing office space or services).
  • I’m not very good at (fill in the blank). Liebel states that sharing profits with someone because of concerns about not being good at certain administrative tasks, marketing, etc. is not a good reason to take on a partner. It is, however, a good reason to hire someone who is proficient in that skill.
  • I want to partner with someone who can teach me. Again, Liebel recommends that lawyers can get guidance and education for free or through low cost programs and associations rather than “giving away . . . hard-earned dollars.”

 

Liebel also provides a short list of the “right” reasons to take on a partner:

 

  • You share a similar vision of where you want your law practice to go, how you want to get there, and are committed to it for the long haul
  • You respect each other’s abilities as lawyers and trust each other to make decisions in your absence
  • You bring something of comparable value to the partnership, such as complimentary skill sets
  • You recognize your equal responsibility to develop business
  • You share a work ethic and morals
  • You work well together

 

Liebel concludes by saying that partnerships can be wonderful experiences when entered for the right reasons with the right partner. And if you are considering a partnership, she recommends having a partnership agreement that spells out all of the financial agreements between the partners while together—and if the partners should part company.

 

Keywords: solo and small firm, litigation, partnership, partner, Susan Cartier Liebel

 

Emily J. Kirk, Thompson Coburn LLP, St. Louis, MO


 

June 8, 2015

Solo Practitioners Need a Break, Too!


In the article “Who Will Take Care of Your Clients When You Can’t,” author Susan Cartier Liebel addresses a common concern for solo practitioners: how to get away on a summer vacation or other extended absence without compromising client service or losing clients altogether. This is a very legitimate and real concern for solo practitioners—and failing to “get away” is not always a viable answer for the long term.

 

When solo practitioners are away from the office, client needs must still be met. While it may be fairly simple to inform opposing counsel of your absence or to reschedule court appearances, issues may still arise in your absence and clients want to know who to turn to when they do. Accordingly, Liebel recommends building a network with other solo and small firm attorneys who are willing to cover for you in your absence. Liebel also recommends establishing this network far in advance of any scheduled absence so that incoming clients are advised at intake that there will always be an attorney available if you are away. Having this type of coverage will give you—and the client—peace of mind from the beginning of the relationship.

 

Although you likely have a casual network of attorneys that you could turn to in an emergency, Liebel recommends taking steps to formalize the relationship with any attorney that you may regularly rely on to cover for you in an absence. She suggests having a written agreement with the lawyer regarding handling your clients, including any payment of fees for coverage and/or permanent transfer of files, if needed, depending on the length of the absence.

 

Leibel acknowledges that coverage networks may not protect solo practitioners from losing business 100 percent of the time. But, as Liebel points out, having a formalized network of attorneys on whom you can call during times of absence should generally ensure that your clients’ needs are met while allowing you to address needs outside the office (vacation or otherwise).

 

Keywords: solo and small firm, litigation, solo practitioner, vacation, small firm network, formal agreement

 

Emily J. Kirk, Thompson Coburn LLP, St. Louis, MO


 

November 7, 2014

How to Prepare for Oral Argument


One of our committee’s more popular social media posts related to the article “How to Prepare for Oral Argument” which was originally published in the Lawyerist on March 5, 2012, and republished on March 2, 2014. Because so many people enjoyed the post and its tips, I felt it would be beneficial to summarize the article and share those tips here.
In the article, author Sam Glover encourages litigators to use “modular” approach when preparing for oral argument. He argues that oral arguments are dynamic and preparation should mirror that.


Glover suggests the following approach:


    1. Ditch the outline. Outlines encourage rigid thinking. If you rely on an outline too much, you will be thrown off by questions and may repeat information or skip issues altogether.


    2. Practice intense preparation. The single most-important component of a great oral argument, according to Glover, is preparation. It is imperative that you find the time. For every oral argument you must know four things: the facts, the law, your argument, and what you want.


    3. Organize and practice your argument. Glover says he writes each issue he wants to discuss or each point he wants to make on a separate index card. Then he takes a card and practices his argument around that topic or idea. Usually, he says, the oral argument organizes itself as he does this because he refers to the other cards as he goes. As the argument takes shape, he then lays the cards on the floor to sort them and put them in the order that makes the most sense, trying to group them by only a few main topics. Those main topics then become a concise roadmap for the court. Glover suggests practicing and then taking breaks. He also suggests practicing your argument with non-lawyers. If they look bored, you aren’t doing a very good job.


    4. Commit your argument to memory. Outlines, binders, and indexes are all distractions. The best way to argue is from memory. As you memorize, Glover says to practice the argument out of order so you understand the issues. The goal is not to remember the argument word-for-word, but to know and understand what you want to say about a topic whether or not you are interrupted.


    5. If you can, moot your argument. Although not every argument merits the time and expense of a moot session, if you can do it, you will elicit invaluable information and feedback. You may even learn what you will hear from the bench.


    6. Last-minute prep on the day of your argument. The goal is to quiet your nerves and give yourself one last refresher of the facts, law, and argument. Glover says what works for him is to get dressed and walk his dog. While he walks, he runs through his argument out loud two or three times. He then repeats the exercise in the car on his way to court. No notecards or outlines are used. When he gets to court, he sits down and jots his main “talking points” on a legal pad. When his case is called, that’s all he takes to the podium.


Ultimately, Glover reminds his readers that preparation is key. If you have adequately prepared, you will be confident behind the podium and will rarely be surprised by what happens in the courtroom.

 

If you have your own tips for oral argument preparation, please share them with the committee through our LinkedIn page.

 

Keywords: litigation, solo, small firms, oral argument, tips


Emily J. Kirk, Thompson Coburn LLP, St. Louis, MO


 

February 21, 2014

The Temptation to Depose Every Expert


In “The Temptation to Depose Every Expert,” author Gregory P. Joseph discusses the fundamental issues that every attorney should consider before automatically succumbing to the temptation to depose experts.


Under Rule 26(a)(2)(B), expert opinions and exhibits that are not promptly disclosed are commonly excluded from consideration.  Given this, the author suggests that attorneys should think long and hard about whether taking an expert’s deposition opens the door to allowing the expert to expand upon what is memorialized in the expert report. Many times, if an expert expands upon or offers different opinions, data or exhibits, the court may consider it appropriately submitted. Thus, Joseph offers that attorneys should consider four lessons before deciding to depose an expert witness.


First, attorneys must consider whether they may well be better off not deposing an adverse expert. The expert has already submitted the report and it must set forth all of the facts and opinions the expert plans to testify to. If new facts or opinions are offered outside of discovery, those new items are presumptively excluded under Rule 37(c)(1). 


Second, attorneys should weigh tactical considerations. Deposing an expert will leave him or her better prepared to withstand cross-examination at trial. If no deposition takes place, the opposing attorney will be more of an unknown quantity to the expert which can be advantageous.


Third, since the 2010 amendments to Rule 26(a), there is less to ask about in an expert deposition. Rule 26(a)(2)(B)(ii) was amended to eliminate the phrase “data or other information” and substitutes “the facts or data or other information considered by the witness in forming [the opinions].”  According to the committee note, this amendment “is intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney-expert communications and draft reports.”  This amendment, along with Rule 26(b)(4)(C), provides expert reports and communications between the expert and counsel with work-product protection, except to the extent the communications:


• relate to compensation for the expert’s study or testimony;

• identify facts or data that the party’s attorney provided to the expert and that the expert considered in forming the opinions to be expressed; or

• identify assumptions that the party’s attorney provided to the expert and that the expert relied on in forming the opinions to be expressed. 


Given the interpretations that have been given to these exceptions, an attorney is only likely to get identification of facts and assumptions, and the attorney should already have what he or she needs in that respect, and perhaps all that can be gathered, in the report itself.


Fourth, if an attorney decides to go forward with a deposition, he or she must be careful with what is asked.  An attorney never wants to open to the door to inadvertently asking for testimony that is otherwise precluded by Rule 37(c)(1).  Never should an attorney ask a traditional catchall question like:  “Do you have any other opinions as to this case that we haven’t discussed?” 


If an attorney opts for an expert deposition, the attorney should do his or her best to instruct the witness to answer only those questions being asked and ensure the witness understands that the questions and answers are limited to opinions or theories discussed in the expert report only.  If an expert wanders from those opinions or theories, the attorney taking the deposition must object and do whatever he or she can to limit the testimony if it is in the client’s interest to do so. 


Considering all of these issues, Joseph states that the answer to the question of whether an attorney really wants to depose an expert is often “no.”  But, there are also risks of not deposing the expert. For instance, the expert may testify to issues at trial that the attorney does not know or expect. The attorney may be less comfortable confronting the expert for the first time at trial. The attorney may also be uncomfortable about a Daubert motion without a deposition. But, by not deposing, the attorney will not have opened the door to additional testimony through the deposition testimony, will not have signaled elements of the cross-examination or the weaknesses in the expert’s analysis making it vulnerable to a Daubert attack, and will not have left a sterling cross-examination in the deposition room while allowing the expert to arm himself or herself with a series of plausible explanations that undercut the progress that may have been made during the deposition. 


Even without a deposition, Joseph notes that expert discovery can still be taken. It is well settled that an opposing party can be served with a Rule 34 document request and adverse experts with Rule 45 subpoenas to obtain unprotected expert material. If an attorney goes this route, though, he or she must be prepared for the same types of discovery requests to be served regarding his or her own experts and every effort must be made to ensure experts will be able to comply. 


Keywords: litigation, solo, small firms, expert deposition, adverse experts, testimony, Rule 26, Rule 45, Rule 37, cross-examination, Litigation journal


Emily J. Kirk, Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, IL


 

January 8, 2014

Highlights from E-Discover Roundtable


On December 10, 2013, the Solo and Small Firm Committee hosted a roundtable entitled, “Small Cases, Big Costs: Managing E-Discovery Without Getting Squeezed.” John Shamblin of Cohen Kennedy Dowd & Quigley moderated the discussion between litigators Jeffrey Close of Chatman & Cutler, LLP and Benjamin Sanchez of Sanchez Law Firm, and Navigant’s Ryan Bilbrey.  


The panel discussion highlighted that responsibilities for complying with e-discovery requirements vary not based on the size of the firm, but rather on the size of the case. Thus, it is important for all litigators to talk to their clients up front to determine the size of the matter and the client’s capabilities and preferences.


Litigators must quickly understand where their clients store electronic documents and must assess what it will take to adequately search, collect, and review documents. Panelists stressed that it is of utmost importance for firms of all sizes to be aware of the latest technology and court requirements relating to e-discovery so they can educate their clients from the beginning of a case.


Panelists also stressed that equally important is building relationships with opposing counsel related to e-discovery needs. Meeting and conferring with opposing counsel regarding what it actually needed helps to narrow potential sources of data to those are really needed to effectively litigate cases and ensure that e-discovery plans are defensible in the eyes of the court.


Listen to the complete discussion from the roundtable.


Keywords: litigation, solo, small firms, e-discovery, roundtable, document review, opposing counsel


Emily J. Kirk, Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, IL


 

December 18, 2013

Coming to a Court Near You—Restricted Discovery


Discovery can be expensive and burdensome. In an attempt to streamline the process, the Judicial Conference Advisory Committee recently proposed several changes to the Federal Rules of Civil Procedure to clarify the federal rules while reducing discovery. Unfortunately, the changes to Rule 26, including eliminating the “reasonably calculated” standard, would not only abolish an integral part of federal discovery but also reduce judicial discretion over the discovery process. Although these changes pose immediate concern for federal practitioners, states frequently model their rules after the federal rules, so all litigators need to understand the impact.


Federal judges have traditionally had broad discretion to allow or limit discovery. They are empowered to consider practical concerns like proportionality and burdensomeness when supervising discovery. The proposed changes eliminate that discretion by making proportionality a threshold requirement rather than a simple consideration. This standard will require the requesting party to make an initial showing that the information sought is proportional to the burden and expense of the opposing party and a “likely benefit” to the case at large.


The new requirement is concerning because it shifts the burden to the requesting party to demonstrate that the opposing party will not be excessively burdened. This creates a situation in which the party with limited knowledge of its opponent’s capabilities, capacity, financial resources, and access to electronically stored information is now required to make a proportionality representation to the court based on imperfect knowledge and generalized assumptions. Furthermore, the proposed changes will largely shift the burden of discovery onto judges and their staff through more requests for leave and hearings on discovery disputes.


Eliminating the reasonably calculated standard is particularly problematic in complex litigation like pharmaceutical, environmental, or intellectual property cases, in which almost all of the documents and information needed to prove liability lie within the control of the defendant. Moreover, it is not uncommon for a million-page discovery production to result in only a handful of trial exhibits. That is not only inevitable but also a reality of complex litigation—not a flaw in the federal rules. Reducing the scope of discovery, thereby reducing the knowledge shared between the parties, will impede settlement and force parties to try cases with incomplete information.


If the purpose of discovery is to search for the truth, codifying categorical limits serves only to obstruct that pursuit rather than to promote it. Stripping federal judges of their discretion and restricting the ability of parties to meet their burden will never be an adequate alternative to professionalism.


Keywords: litigation, solo practitioners, small firms, Federal Rules of Civil Procedure, federal rules, discovery, reasonably calculated standard, judicial discretion


Eric S. Johnson, Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, IL


 

November 26, 2013

Juror Use of Social Media: Closing the Evidentiary Back Door


In “Juror Use of Social Media: Closing the Evidentiary Back Door,” author Andrew B. Flake, a partner in the Atlanta, Georgia, office of Arnall Golden Gregory LLP, describes the problematic reality of juror access to social media and the harms it can cause to the trial process.  While eliminating juror access to social media is likely impossible, Flake provides several suggestions to trial counsel to address this growing issue.


Juror access to social media creates a host of risks to the trial process. The judicial system is set up such that parties to a jury trial have the right to expect that the only evidence considered by jurors is that which has been presented by the lawyers and approved by the court.  However, with most jurors having access to smartphones, jurors have the ability to access extra-judicial information immediately.  Jurors can scan news feeds, conduct their own research of a crime scene, and read commentary that may influence their views without lawyers being able to evaluate that influence. In such circumstances, the lawyers and the court have no way to control the accuracy of the information obtained. 


Beyond problems with accessing the Internet or reading social media, external communications are also a growing issue. If one juror posts about a trial and another juror happens to read it, there is an indirect circumvention of the prohibition against jurors discussing a case before deliberations. Jurors are prohibited from making up their minds about a case until the evidence is closed, but if a juror posts or expresses a view about a case, they are in violation of that duty.  It is also possible that witnesses and other parties to a trial may read postings and be unduly influenced.


To address these problems, Flake suggests trial counsel and the court utilize the following suggestions:


Preventative Measures
Trial counsel should start a dialogue early with opposing counsel and the court. Trial counsel can work to educate the court on these problems and the implications. With the court’s leave, trial counsel can research the social media profile of prospective jurors and include appropriate topics in a juror questionnaire. For instance, trial counsel can ask jurors how many social media accounts they have, how often they post, user profile names, etc. The answers to these types of questions can identify jurors who may be at risk for inappropriate social media access and usage.


Jury Instructions
The court should provide and enforce detailed preliminary jury instructions concerning Internet and social media use.  The instructions should be comprehensive and identify the types of conduct that are prohibited.  The court should be encouraged to repeat these instructions throughout the trial.  Additionally, the court should explain to jurors why their conduct is restricted.  Jurors take their jobs seriously and understanding why social media access is unfair to the parties will help deter unauthorized research and posting.  The court should also warn jurors of the consequences of a violation, including the impositions of punishments like fines, contempt, or imprisonment. 


Dealing with Violations
Despite all precautions that may be taken, violations will still occur.  The burden of monitoring potential improper use of social media by jurors during trial will fall to trial counsel.  Someone on the trial team should, on a daily basis, run searches for party names and information about the trial, to identify whether or not any improper communications appears to be coming from jurors.


If a violation is discovered, a full assessment of the situation should be made.  If a material violation is discovered, the court will have a range of remedial options including removing a juror, issuing a curative instruction, or declaring a mistrial.  Unfortunately, some violations are not discovered until after a verdict is rendered.  If post-trial questioning is permitted, trial counsel should pose questions to determine whether anyone saw or read anything online about the trial or subject matter.  If evidence of a violation materializes, trial counsel may need to pursue a motion for a new trial if the circumstances demand it.


Keywords: litigation, solo practitioners, small firms, social media, Internet, juror, jury instructions, Trial Evidence Committee


Emily J. Kirk, Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, IL


 

November 7, 2013

Users of LinkedIn, Beware!


In the article “Users of LinkedIn, Beware!”, which appeared in the Fall 2013 issue of the ABA Section of Litigation’s Professional Liability e-newsletter, authors Karen Painter Randall and Steven A. Kroll discuss ethical and professional liability concerns attorneys and law firms should consider when establishing a social-media presence. Today, many attorneys are taking full advantage of social-media websites, such as LinkedIn, for advertising and business-development purposes. However, as the authors of this article point out, attorneys need to be aware of their individual state’s rules and ethical opinions on using social-media websites to advertise and solicit clients.


One issue attorneys face when using LinkedIn is whether or not to accept “endorsements” of skills and expertise from their connections or to permit testimonials about their services to be posted on their page. Randall and Kroll caution attorneys from accepting these endorsements without first reviewing applicable ethical rules. For instance, ABA Model Rule 7.1 provides that an attorney is not to make any false or misleading claims about his or her services. A recent South Carolina ethics advisory opinion following this approach stated that information on business advertising and networking websites is deemed both a communication and advertisement, and information communicated must not be false, misleading, deceptive, or unfair. Thus, in the case of LinkedIn endorsements or testimonials, they are permitted as long as they meet these criteria. Other jurisdictions, such as Florida, however, have taken a stricter approach. A recent opinion by the Florida Bar’s Committee on Advertising recommended prohibiting the endorsement of one’s “Skills and Expertise” unless that attorney is actually certified in that area of practice. 


Ethical issues also arise out of listing areas of practice in the “Specialties” section of either attorneys’ personal or law firm’s webpages. Many jurisdictions strictly enforce what individual attorneys and firms can list as a specialty. New York, for example, prohibits law firms from listing the firm’s services in LinkedIn’s “Specialties” sections because New York Bar rules only permit individual attorneys to state that they are specialists if they have been certified in a particular area of law. However, law firms in New York are allowed to identify areas of practice.


Ultimately, at the current time, there are no uniform rules governing the use of social media by attorneys. Attorneys are responsible for knowing the rules in their own states and for implementing reasonable policies at their firms to regulate the use of social media.


Keywords: litigation, solo practitioners, small firms, social media, LinkedIn, professional liability, ethics, expertise, practice areas, state rules, advertisement, client solicitation, ABA Model Rule 7.1


Emily J. Kirk, Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, IL


 

September 24, 2013

The Virtues of Going Virtually Solo


In the Financial Post article titled “The rise of the sole practitioner,” author Jim Middlemiss discusses solo practice with David Thompson and Mike Seto, both of whom run their own virtual office. Without a physical, standing office location, these attorneys are granted flexibility not afforded to those in a large firm, even a bit more than those solo practitioners with a brick-and-mortar office. With a virtual office, many of the aspects of the practice are flexible, including hours and location. Both Thompson and Seto discuss the benefits of meeting at their clients’ offices, in the clients’ own “environment.”  This strategy, which saves the client not only money but precious time as well, is easily appealing in this cost-sensitive economy. It is not simply the clients that are cost-sensitive, however. Cutting costs and limiting overhead are key topics in this article as well.


Today’s technology makes it ever easier to become a solo practitioner. Your computer can now do many things that required an entire staff in the past—accounting, billing, word processing, even virtual meetings. Without having to carry the cost of a fully staffed office, solo practitioners are still able to compete with large firms. The volume of clients may be less, but the quality of the work does not have to suffer.  Seto also mentions that technology makes clients more “sophisticated” as well. They know exactly what they want, they have done their research, and they are going to find an attorney who can execute for them.


Whether you meet in a local boardroom, a coffee shop or through the screen of your computer, be aware of costs—costs for yourself and costs for your client. Keep your overhead low, your clients’ costs down, and your business virtually booming.


Keywords: litigation, solo practitioners, small firms, virtual office, cutting costs, overhead costs, technological advances


Virginia Sierra, Cohen Kennedy Dowd & Quigley, P.C., Phoenix, AZ


 

April 16, 2013

Blog Discusses Five Technologies That Have Changed the Solo Practice


Thomson Reuters blogger Jeremy Byellin recently weighed in on how solo and small firms can make the most of technology in their practices. Rather than giving an abstract pitch on the benefits of technology, Byellin identified the following five specific technologies that have changed his solo practice.


Cell Phone
For those solo and small firms that do not have full-time office staff to handle calls and take messages, the cell phone is a simple and fast way to maintain client communications while also allowing for flexibility and mobility in the office environment.


Scanner
In the wake of e-filing and the advantage of generating electronic backups of client documents and filings, the value of a scanner to a legal practice is undeniable. Byellin recommends opting for a scanner that has an automatic document feeder, and promises that the efficiency benefits will certainly outweigh any increase in price.


Tablet
Tablets can essentially allow lawyers to take their office with them anywhere they go.  Document readers available for iPad and Android operating systems allow lawyers to review client files on the go. Additionally, tablets are also a great tool for conducting legal research on the numerous electronic databases available today. Finally, while tablets do not offer the full array of formatting available on computer word processing applications, lawyers can still use their tablets along with a Bluetooth keyboard for legal writing.


Internet Fax Service

While many individuals and organizations send documents via email, transmission of documents via facsimile is still the predominant method in many regions. An internet fax service can give a firm the ability of sending and receiving documents via facsimile without the necessity of buying and maintaining a fax machine and the associated telephone line. Instead, for a small annual fee, the Internet fax service allows for the sending and receiving of faxes virtually through a normal email account. And, because the faxes are sent and received through a normal email account, lawyers can even send and receive faxes through their tablets.


Accepting Credit Cards
New mobile apps and credit card reader attachments for smartphones have made it easier than ever to accept credit cards. Accepting credit cards, according to Byellin, will increase the number of paying clients that a solo or small firm receives, as the option to use a credit card may allow certain clients to tender the up-front retainer that they otherwise could not.


While there are certainly countless other technologies available to help augment the practice of law, Byellin believes implementing the five technologies discussed above can make an immediate and notable impact on solo and small firm practices.


Keywords: litigation, solo practitioners, small firms, technology, blog


Alison Clemency, Cohen Kennedy Dowd & Quigley, Phoenix, AZ


 

November 29, 2012

Law School Launches Program to House Solo Lawyers


In late October 2012, Chicago-Kent College of Law established a “Solo and Small Firm Incubator” program. Pursuant to the program, five would-be solos and one two-person law firm opened offices on the sixth floor of the law school, their alma mater. 


The “Solo and Small Firm Incubator” program is a one-year program designed to provide real client experience under the guidance of clinical faculty and alumni. The seven participants, all of whom are 2011 and 2012 Chicago-Kent graduates, were selected through an application process that included submitting detailed business plans for their practices. The law school provides office space, technology, and access to legal research tools in its for-fee law firm. “The Law Offices of Chicago-Kent,” also provides periodic workshops on business management and practice-related topics, as well as a network of committed faculty advisors and mentors that provide guidance and, hopefully, referrals.  The participants are required to contribute 10 hours each week assisting on cases in the clinic.


Chicago-Kent College of Law is the latest law school to implement this type of program.  City University of New York, University of Missouri-Kanas City, the University of Maryland, and Pace University have established similar programs.


Keywords: litigation, solo practitioners, small firms, Chicago-Kent College of Law, incubator program, business management


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

October 17, 2012

Social Media and Marketing Tips


A Legal Marketing and Technology Conference recently took place in San Francisco. One of the topics discussed was the importance of social media, including blogging and online marketing, for the solo and small firm practitioner. Morgan Smith, the owner of Cogent Legal, was a panel participant, along with Stacy Stern, president of Justia.com, and Jeena Cho, a bankruptcy attorney with the JC Law Group. Morgan, a self-admitted “reluctant blogger,” acknowledged that blogging helps business in multiple ways even if monthly readership is not large. In addition to potentially bringing clients in the door, blogging helps score article assignments and speaking engagements. Stacy and Jeena then each provided tips for blogging.


Stacy’s five useful tips:


  • “Blogging is the most efficient form of social media in terms of generating business. It enhances your reputation as a go-to person in your practice area, generates leads, helps you rise in search engine ranking and more.”
  • “What makes a successful blog? High-quality posts, original content, and consistency. . . . Aim for at least once a week.”
  • “Don’t make the mistake of being overzealous in using keywords. Google recognizes keyword stuffing, so it won’t boost your search engine ranking as you might have hoped. Google also recognizes misspelling and poor grammar. Use synonyms, proofread, and—most important—write useful, thoughtful posts.”
  • “Follow reporters who cover your area of law in both major media and local media, and if they report on something relevant to your area of specialty, then quote or cite them in a blog post you write on that topic. Reporters Google themselves, and when they see you’ve referenced them, they’re likely to start following you and may cite you as an expert or quote you in the future.”
  • “Set up your firm profile on Google Plus and Google Places. . . . it will increase your ranking in Google searches.”

Jeena’s four useful tips:


  • “Anticipate the questions that potential clients will have, and answer those questions in your blog posts (or on podcasts or videos).”
  • “Track your analytics to see which blog posts are most popular. Write more on those topics that resonate.”
  • “If you use WordPress for your blog . . . then use plug-ins that will attract readers to your archived posts. For example . . . have a “Related Posts” plug-in that provides links to similar blog posts.”
  • “Be patient: It took [Jeena] about 50 posts, or a year, to see return on investment, i.e., measurable business and results generated from her blog.”

Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

September 18, 2012

Is It Smart to Lower Overhead to Lower Fees?


Many solo and small-firm practitioners have had success in lowering fees and increasing business by lowering their overhead. Although there are many benefits to reducing overhead expenses, San Francisco small-firm practitioner Tom Wallerstein cautions lawyers to consider the risks in cutting overhead costs.


For example, many lawyers have abandoned the traditional office to work from a virtual office in their homes. While this is cost-effective, a physical office can provide credibility for clients, motivate the lawyer, and keep the lawyer focused on work. In addition, cutting payroll should be carefully evaluated. One thing to consider is whether the employee performs billable work. Employing someone who bills will increase profits, provided the firm is generating sufficient work to keep the employee occupied. Thus, Wallerstein advises that “keeping overhead low by hiring fewer associates makes little sense.”


Also, careful consideration is required when deciding which nonbilling employees to eliminate. For example, a younger associate may need less assistance from a secretary than a senior partner who still dictates memos. Nevertheless, attorneys should not be spending otherwise billable hours copying invoices, stuffing envelopes, and formatting briefs. Administrative assistance, when streamlined, can be invaluable to a law practice and set the stage for future growth.


Cutting overhead costs is smart when the economics call for it. But, if you can afford it, don’t skimp on the essentials.


Keywords: litigation, solo practitioners, small firms, cutting costs, overhead


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

August 14, 2012

Developing a Business Plan for Your Practice


Whether you realize it or not, all law practices have a business plan. Even the lack of a plan can be a plan itself. But if you are always “running short” at the end of the month or are not aware if your firm is profitable, it is probably time for a formal business plan.


A good first step is to talk to colleagues who have business plans and are happy with them. Other practitioners suggest reviewing templates that can be found online at the U.S. Small Business Administration site or other local resources within your state, including the local chamber of commerce. In addition, resources can be located in books discussing sole proprietorships and/or small businesses.


What should your business plan contain? Daniel Van Loh, an attorney with the Minnesota law firm of Deckert & Van Loh, suggests that a business plan should contain six items: an executive summary briefly outlining your practice’s profile and goals, a market analysis, a company description, an outline of organization and management, a sales and marketing strategy, and financial projections for your firm. For solo firms, Van Loh and Minnesota solo attorney Joe Flanders also suggest that a business plan should address your practices’ sustainability, its affordability, its accessibility to clients, a mission statement, an overhead estimate, and annual projections for the first five years.


A business plan should include detailed information about the “what, where, when, why, and how” for generating revenue. However, while it is important to consider the advantages of a business plan, solo and small-firm practitioners should keep in mind that the top priority is growing the practice and having a strong focus on marketing.


Keywords: litigation, solo practitioners, small firms, business plans, marketing, management


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

July 25, 2012

Attorney Fees Award Based on Size of Requesting Firm


A March 22, 2011, decision from Hon. Mary H. Murguia, U.S. District Court, District of Arizona, could supply a basis for reducing solo and small-firm attorney fees requests simply because of the size of the requesting attorneys’ firm.


In Skydive Arizona, Inc. v. Quattrocchi, the plaintiff sought $3,030,330.00 in attorney fees under 15 U.S.C. § 1117(a) for the defendant’s violations of the Lanham Act. No. CV 05-2656-PHX-MHM, 2011 WL 1004945, at *1 (D. Ariz. Mar. 22, 2011). Applying the lodestar method for calculating attorney fees and citing the State Bar of Arizona’s 2007 edition of the Economics of Law Practice in Arizona, Judge Murguia awarded the plaintiff $1,063,555 in attorney fees because the requested attorney billing rates exceeded the prevailing market rate as reflected in the State Bar of Arizona publication. Id. at *2–3, 5. Judge Murguia found that the requested billing rates were unreasonable, in part, because they exceeded the median rates charged by attorneys from Arizona firms with a comparable number of practicing attorneys, partners, and associates. Id. at *3. Given Judge Murguia’s holding, litigants could attempt to use the Skydive Arizona decision to reduce solo or small-firm attorney fees requests on the basis of their size if the requested billing rate exceeds the prevailing market rate for firms of comparable size.


There are, however, at least three reasons that Skydive Arizona is or should be limited in its effect on solo or small firm attorney fees requests. First, it appears that Judge Murguia relied on the 2007 edition of the Economics of Law Practice in Arizona to support her holding because it was the only evidence (other than affidavits from the plaintiff’s attorneys) offered in support of the attorney fees request. Skydive Arizona, 2011 WL 1004945, at *2–3. Citing Ninth Circuit case law, Judge Murguia indicated that she would have considered “evidence of rate determinations in . . . similar cases or . . . affidavits from non-interested attorneys concerning the reasonableness of the rates charged by [the plaintiff’s] attorneys or of their reputation within the community” if offered. Id. at 3 (citing Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1215 (9th Cir. 2003) and United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)).


Other recent decisions from of the District of Arizona have upheld attorney fees requests supported, in part, by affidavits from non-interested attorneys in the relevant community. See, e.g., St. Bernard v. State Collection Serv., Inc., 782 F. Supp. 2d 823, 827 (D. Ariz. 2010) (the plaintiff submitted affidavits from five noninterested Arizona attorneys, evidence that the counsel’s rate had been constant for several years, and data from the Laffey Matrix); Shelago v. Marshall & Ziolkowski Enter., LLC, No. CV 07-0279-PHX-JAT, 2009 WL 1097534, at *2 (D. Ariz. Apr. 22, 2009) (the plaintiff submitted evidence of affidavits from noninterested attorneys, the Laffey Matrix, and a consumer-law attorney-fee survey). Consequently, the holding of Skydive Arizona appears to have been the result of the evidence and arguments presented by counsel and not the result of a general rule to be applied in all cases.


Second, the Skydive Arizona decision may be based on an incorrect application of the relevant case law. Under the lodestar method for calculating attorney fees as articulated in the Ninth Circuit, a reasonable billing rate should “reflect[] the prevailing market rate in the community for similar services of lawyers ‘of reasonably comparable skill, experience, and reputation.’” Skydive Arizona, 2011 WL 1004945, at *2 (quoting Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005)). By its own terms, this standard should not take into consideration the size of the firm requesting attorney fees. Because the plaintiff’s attorneys in Skydive Arizona came from one of the larger firms in Arizona, it is likely that this issue was never raised with the court. As briefly mentioned above, the decision states that the court relied only on those “portions of the Arizona Bar’s 2007 edition of the Economics of Law Practice in Arizona” that the plaintiff’s attorneys cited and attached to their briefs, which presumably included the data Judge Murgia cited relating to the size of the requesting attorneys’ firm. See id. at *2.


Third, although Judge Murguia stated that the court “must use the lodestar method [as articulated by the Ninth Circuit] for calculating attorney’s fees” under the Lanham Act (see id. at *2), other forums may have different or varying standards for determining an award of attorney fees. Arizona courts, for example, appear to apply Arizona law “to determine the necessity for and sufficiency of evidence to establish the reasonable value of attorneys’ fees sought,” even where the claim providing for the award of attorney fees is based on the substantive law of another forum. See Taylor v. Sec. Nat’l Bank, 20 Ariz. App. 504, 508, 514 P.2d 257, 261 (1973) (applying California substantive law to a contract claim but using Arizona law to determine the value of the attorney fees sought); see also Aries v. Palmer Johnson, Inc., 153 Ariz. 250, 257, 735 P.2d 1373, 1380 (App. 1987) (reasoning that the recovery of attorney fees is a substantive matter, whereas the calculation of the reasonable value of attorney fees sought is procedural and governed by the law of the forum). In view of this case law, it is arguable that awards for attorney fees based on federal law should be calculated using Arizona law (which, under certain circumstances, does not require use of the lodestar method), when the federal claim is brought in Arizona court. Thus, depending on the law of the relevant forum, Skydive Arizona may have little to no effect on solo and small-firm attorney fees requests.


Accordingly, although Skydive Arizona may provide a basis for reducing solo or small-firm attorney fees requests, there are also grounds for distinguishing and limiting its scope and effect.


Keywords: litigation, solo firms, small firms, attorney fees, Arizona


—Cameron LaDuke, Cohen Kennedy Dowd & Quigley, PC


 

July 3, 2012

Professional Liability for Solo and Small-Firm Attorneys


While there are many advantages to solo and small firm practice, there are also potential pitfalls that are important to recognize to keep up with best practices and to protect yourself and your client. This article discusses areas of exposure to professional liability claims, how to deal with them, and how to best avoid them in the future.


According to studies, law firms with five or fewer attorneys make up 70 percent of all legal-liability claims. These claims generally fall into seven basic categories: conflict of interest, calendaring issues, failure to know the law, improper drafting of pleadings or contracts, inadequate discovery, clerical errors, and breach of fiduciary duty to the client. The practice areas with the largest number of claims include real estate, securities, trusts and estates, corporate and business transactions, collection and bankruptcy, and intellectual property. Attorneys should be well versed in the area of business transactions in particular because of the high litigation costs.


If an error does occur and the client’s rights are compromised in any way, attorneys should report the error to the client in person as soon as possible. If face-to-face communication is not possible, the telephone should be the next option to report the error, but voicemail should be avoided. Email should never be used to break this type of news.


To avoid potential professional liability, some recommended practices include meeting with potential clients up front before taking them on in a professional capacity to avoid email/Internet fraud, running conflicts-of-interest checks before receiving any confidential information, and discussing attorney fees and costs with the client up front, confirming the understanding in an engagement letter. When representation ends, send a closing letter to the client. If you choose not to represent an individual, send him or her a declination letter discussing potentially applicable statute-of-limitation dates and advising him or her to seek other counsel to preserve any rights.


Keywords: litigation, solo practitioners, small firms, professional liability


—Kevin C. Moyer, James E. Rogers College of Law, University of Arizona


 

June 5, 2012

The Chilling Effect of Sanctions on Small and Solo Firms


Sanctions can undeniably have a tremendous impact on law firms, regardless of the size of the firm. However, with respect to small and solo firms, the effect of sanctions can be fatal. Accordingly, the threat of sanctions can completely change the way small and solo law firms perceive the risk of litigation. Indeed, in one real-life scenario, a small-firm attorney was sanctioned $50,000 and ordered to pay the attorney fees of the opposing party for bringing claims that the court found to be frivolous.


Currently, because of heavy case loads, courts are more willing to use sanctions against attorneys that bring cases and motions without merit. However, the line between “frivolous” and “incorrect” is not always easy to draw. Many commentators reason that the imposition of sanctions without commenting on the merits of the case can certainly have a chilling effect on small and solo firms to litigate “close” cases. Indeed, the imposition of such sanctions is likely to have a stronger impact on young solo attorneys who are more likely to make mistakes, especially the ones who do not have mentors from whom they can seek advice.


On the other hand, other commentators reason that sanctions are merely intended to deter future attorney misconduct. Nevertheless, the real problem is the threat of sanctions. That is, solo attorneys are more vulnerable to tactics used by big firms that are intended to intimidate solo and small firms into dropping their claims or going out of business. This is particularly true in light of the fact that almost no insurance carrier provides insurance against sanctions. Thus, if an attorney is sanctioned, it is going to come out of the pockets of the small and solo firms.


The increase of sanctions undoubtedly creates one extra factor that solo and small firms have to take into consideration when determining whether to litigate a close case. This, in turn, moves the American system, which was designed to protect meritorious cases from such threats, one step closer to the British system, where the loser pays.


Keywords: litigation, solo practitioners, small firms, sanctions


—Norayr Zurabyan, Loyola Law School, Los Angeles


 

May 22, 2012

State Bar of California Aims to Add Mentorship Regulations


The largest state bar in the United States, the State Bar of California, is moving toward implementing a mandatory internship/mentorship program or a form of hands-on training for those who intend to practice law in the state. This change could force law schools to change their curriculum to the benefit of graduates, especially those intending to immediately start a solo or small-firm practice.


For a lawyer to hang his or her own shingle, he or she must be able to draft a motion or a contract, take or defend a deposition, and interview a client. These skills are not normally taught during law school, but rather in a working/mentoring environment. Generally, the ideal transition is from law student to big-firm associate to a solo or small-firm practice, if that is the attorney’s goal. These steps ensure on-the-job training to prepare for solo or small-firm practice. If a new member of the state bar decides to hang his or her own shingle, these skills may be lacking. With the recent swing to more new lawyers starting their own firms before joining an established firm, California’s proposed program would help to better prepare them. An internship or mentorship program implemented in some form during law school would produce graduates ready to perform on their own.


The State Bar of California wants new lawyers to be prepared to tackle practical tasks from the get-go, which may be great in theory, but some question the practicality of the state regulating law-school curriculum. Law schools have typically taken a stance against the state bar regulating this type of training, as a change in curriculum could adversely affect the school’s ranking. Schools are, however, adding these types of programs because they recognize the benefit.


Keywords: litigation, solo practitioners, small firms, California, state bars, law schools


—Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

April 13, 2012

Why and When Should a Solo or Small Law Firm Get Bigger?


Solo practitioners and small firms often struggle with whether and when to grow. One of the main reasons that solo and small law firms may decide to expand their employee base is unexpected excess demand for the firms’ services. However, even if the law firm does have excess demand for its services, it may still be legitimately reluctant to hire new employees due to concerns over preserving a favorable culture or the uncertainty of future business.


When faced with a choice of too much work on the one hand and not enough work on the other, the logical decision may seem to be to postpone the growth of the firm. This decision is critical. For example, a new client may perceive the firm as not having sufficient resources to handle a larger matter. Accordingly, a new client may decide not to hire the firm, fearing that the firm will not be able to handle the matter with its limited resources. Hence, having more employees may in fact promote demand for business.


One potential solution is to hire contract attorneys. While there are advantages, the solution also has its share of disadvantages. For instance, it is very likely that temporary attorneys will not work with the same zeal as associates because they will be unsure of their future. In addition, clients may perceive differences in the quality of work delegated to contract attorneys over work delegated to associates. Indeed, client perceptions will have an effect on their decisions to hire one firm over another.


Another solution may be to create a group of well-trusted, loyal, and experienced associates who are not contract attorneys and who do not engage in 40- or 60-hour workweeks. Thus, they are available when a firm has a need. Such an associate group could allow solo and small firms to quickly increase or decrease their employee base as the need arises. In addition, an arrangement like this may be easier in the current legal market.


Keywords: litigation, solo practitioners, small firms, business management, business growth


—Norayr Zurabyan, Loyola Law School, Los Angeles, California


 

March 28, 2012

E-Discovery on a Budget


E-discovery can be astronomically expensive. It is especially disabling to a small case. The e-discovery dilemma is, in large part, the result of the current pricing system established by vendors, most of which use the per-commodity pricing system and charge hundreds of dollars per gigabyte. A simple license and annual maintenance plan or a monthly subscription fee does not exist. And, the e-discovery technology was initially developed for large cases with large data sets in such a way that vendors with revenue streams based on processing/hosting terabytes of data cannot adapt to smaller projects. Moreover, products that have been designed to work with large data collections cannot easily scale down to small sets of information.


These big products have big prices that are beyond the scope of most small firms and small case budgets. Thus, solo and small-firm practitioners (and their clients) must pay exorbitant fees to proficiently process electronically stored information (ESI) or face the penalties: findings of spoliation of evidence, summary judgment, sanctions that can include adverse inferences and jury instructions, and even state bar complaints.


The problem can be illustrated through the following example of a forensically sound collection of 800 GB (the size of one hard drive of a typical computer) and a data set that yields 200 GB of reviewable material. A typical ESI vendor will charge $200 per GB for processing, plus $50 per month per GB and $90 per month per user to host the data. If a case lasts 18 months, the total cost is just under $350,000. And, if we accept the commonly cited assumption that the reviewing process will comprise 60–70 percent of the total project price, the project cost—to process, maintain, and review the data from one computer—will be close to $1 million.


Are there small-case programs? Is there a way to process and review small volumes of data for a reasonable price? Are there inexpensive, but reliable, ways attorneys can use themselves to host and review the same data? Low-cost programs designed for small cases have begun to appear and, for the most part, are modestly priced given their capabilities. Functions can be limited for each product as compared to a higher-end option, but they may suffice for your specific needs. A Google search reveals several options, including eDiscovery DIY, Lexbe e-Discovery, Bit-X-bit in-a-box, and LexisNexis Total Litigator. And more products may be on the way.


Keywords: litigation, solo practitioners, small firms, e-discovery, budget


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

March 16, 2012

ABA Launches Solo, Small-Firm Resource Center


The ABA Presidential Task Force on Solo and Small Firm Membership Development, at the direction of ABA President William (Bill) T. Robinson III, began working on the implementation of the Solo and Small Firm Online Resource Center in August 2011. The Online Resource Center is available for all lawyers free of charge. It provides a wide array of information helpful for small and solo firms.


Development of the Online Resource Center began because of the reality that many small and solo firms do not have access to the same resources as bigger firms. The Online Resource Center provides online articles, news, CLE programming, books, and other resources relating to topics that include marketing, practice management, insurance, technology, forms, and more. Moreover, it provides information about work-life balance, networking events, and discounted items and services.


The Online Resource Center is a tremendous asset to all lawyers, but especially those with solo and small-firm practices.


Keywords: litigation, solo practitioners, small firms, ABA Solo and Small Firm Online Resource Center


—Norayr Zurabyan, Loyola Law School, Los Angeles, California


 

February 28, 2012

Time Management Is Crucial to Business


In “Effective Time Management: The Gift that Keeps on Giving,” Michael Moore discusses several important time-management issues that are useful to solo and small-firm practitioners. Running a solo or small firm is like running any small business. Duties include managing your firm’s sales, marketing, managing the budget, managing human resources, administration, maintaining leverage, and delegation. And you have to practice law. Effective time management can maximize the time you are able to practice law, which makes the most money for your business. Time management may include delegating the business tasks to an administrator or an outside resource for a price. As Moore puts it, “A lawyer’s time is most effective when spent doing what they do best, practicing law.”


The time it takes to practice law is, in and of itself, quite significant even without working on other business tasks. Client management is a large part of firm time management. Lawyers deal with many inexperienced clients, and, as a result, lawyers should create checklists for client intake to make the most of both your and clients’ time. Checklists can streamline the collection of relevant information for conflict checks, financial due diligence, contact information, and fee agreements. Along with collecting information for yourself, you also need to address client concerns and manage expectations for the duration of their representation (in other words, the legal strategy and process, range of results, and overall cost). “Effective use of client management techniques and addressing client expectations will result in more effective use of time with each client,” Moore says.


Lawyers should also have an effective plan for their career. Moore discusses five focus areas for creating success:


  • Professional Goals;
  • Personal Productivity;
  • Revenue Generation;
  • Marketing; and
  • Professional Growth.

 

“A more effective plan for your career means more effective use of your time,” he says.

Set goals for yourself and your clients, manage those goals, and delegate what is not worth your time. Build your business on what works best for you, and spend your time being successful.


Keywords: litigation, solo practitioners, small firms, time management


—Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

February 17, 2012

Can Coworking Help Your Solo Practice?


Have you considered coworking? Coworking legal communities are appearing across the country in mid- to large-sized cities. If you are in need of a more professional space for your practice, coworking is a cost-effective way to have your own office space without the expense of private office rent.


Coworking involves sharing office space with other professionals. Depending on the setup, you may have access to many amenities generally available in a large office that are highly beneficial to both your business and your clients, including broadband Internet access, tech support, print/copy/fax/scan capabilities, mail services, front-desk services, and a kitchen area. There is an array of sizes and setups for coworking communities, ranging from closed-door offices with conference rooms to large, open communal working spaces. Monthly membership fees or “rent” will depend on the type of space you require.


As a solo practitioner, coworking can be an excellent stepping stone between your home office and your own (expensive) private office space. It can be a great transition for your business, not only geographically, but also in client growth. Ideally, coworking communities are a diverse assortment of professionals building their small businesses. This diversity can be a networking advantage for all involved. Your step from the home office to this professional setting should cause growth through networking within your coworking community, and it should help your current clients to view your workspace in a more professional light.


Check your area for coworking communities. See what is available to you and determine whether it is time to move the location of your firm out into the business world.


Keywords: litigation, solo practitioners, coworking, office space


Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

January 26, 2012

Tips for Decreasing Health Insurance Coverage Costs


An article from Insurance News discusses one of the biggest and most important business expenses for solo and small firms: health insurance, which firms offer employees not only for their own protection, but also to attract potential employees by providing adequate health benefits. The 2010 Patient Protection and Affordable Care Act (PPACA) requires insurance carriers to spend 80–85 percent of their revenue on paying claims. Only the remaining revenue may be used for business operations. Carriers cannot pay their clients to stay under the revenue cap, but they can agree to dramatic savings on premiums. Law firms can increase their savings by offering high-deductible plans.


Increasing the deductible on health-insurance benefits can save solo and small firms money while not discouraging qualified employees from working with them. For example, if a law firm employing 100 people raises an individual deductible from $250 to $1,000 and agrees to pay for any costs that exceed $250, it risks paying $75,000 if all employees reach the $250 point. However, “100 percent of them are not going to hit it” says Pat Looney, a benefits consultant in Leawood, Kansas. Indeed, Looney states that only 17 percent of insureds hit their deductible, nationally. Accordingly, a 100-person law firm’s likely risk is payment of $12,750, while it saves substantially on premiums.


Using a high-deductible plan does not mean that law firms must eliminate traditional preferred-provider organizations. Rather, a firm can offer dueling plans from which its employees may choose. The very healthy and very sick prefer health savings accounts (HSAs). When employees control their health-care dollars, they are more prudent with choices.


Law firms should also consider Medicare for their older attorneys. Many attorneys work into their later years, stay on the firm’s health plan, and transfer considerable risks to relatively healthy employees. Using Medicare may decrease insurance rates for healthy employees.


Keywords: litigation, solo litigators, small firms, Patient Protection and Affordable Care Act, health insurance


Norayr Zurabyan, Loyola Law School, Los Angeles, California


 

December 20, 2011

Making Your Firm Small, but Mighty


No one said it would be easy opening your own firm, but accomplishing the goal of hanging your own shingle may just be worth the hardship. To make your firm thrive you need to build relationships. Use your law school classmates for referrals. Then build a rapport with your clients and other lawyers. Network. Use your local bar association and the American Bar Association resources to meet other lawyers who can feed you cases (and, of course, you in turn will do the same). In your day-to-day practice, meet as many lawyers as you can and involve yourself in as many cases as you can. Ultimately, once you have built a strong rapport with your clients and other attorneys in your area, the goal is to have an equal balance of referrals from both.


Now that you are drawing cases in, the leg work begins. You are the master of your domain, and clients appreciate that it is you and you alone handling their matter. They do not have to contact a whole team of people for an answer. They can go directly to their source—you. You are also not conflicted in cases as you are in a large firm environment because they may have represented the other side at some point. You set your own hours, and, while they may be longer hours, they are yours to set. You write your own briefs; in a small firm, there are no associates to write them for you. It takes more time, but you also have more control. You invest the time needed to win your case. As a solo practitioner, you are less likely to delegate the work. You sift through the boxes of documents, you answer the questions, and you do the leg work. Do not be discouraged—your personal investment in these cases will not only pay off in the knowledge you gain from doing the research and the respect you earn from your clients, but also in the personal victory and pride you experience when you return a successful verdict. You are small, but you are mighty.


Read more about the successes of solo practitioners.


Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

November 29, 2011

Going Solo: Challenges and Solutions


For a variety of reasons, including flexibility and independence, more lawyers are establishing solo practices than ever before. The influx of technology, including office management software, legal research tools, and handheld devices has to some degree begun to level the playing field between solo practitioners and larger law firms. This has also translated into decreases in overhead, increases in revenue, improved time management, healthier attorneys, and happier clients. However, the stress associated with the practice of law and running a business remains.


In “Solo Practice in the 21st Century,” Maggie Green describes some of the challenges of embarking on a solo practice and suggests potential solutions to overcome them. Her recommendations include creating a business plan and budget that identifies both short and long-term financial and non-financial goals. It is also important to organize your practice by creating an office procedure and always following the procedures you create. Then, a solo practitioner should focus on doing great work in a specific practice area. Creating a website will help you give a great first impression and go beyond the walls of your office to connect with clients and other professionals via blogs, tweets, and email. Finally, a solo practitioner can reduce overhead by practicing in a home or shared office space.


Solo practitioners who employ measures to improve efficiencies, stay organized, remain focused, and develop valuable relationships to expand their professional network and obtain mentors will prove invaluable at the beginning stages of a solo career.


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

November 18, 2011

Law Firms Begin Implementing Firm Procedure Programs


“They teach you contracts, precedents. Then the firm that hires ya, they teach ya the procedure. Or, you could go to court and watch.”


—The Official Clio Blog, quoting “My Cousin Vinny”


Traditionally, law school taught prospective lawyers basic contract law, how to rely upon precedents, etc. The hiring law firm taught those same individuals procedure. This system, however, required a large job market for recent law school graduates—a system that does not exist today. The current recession has pushed students into law school that are trying to evade the recession as well as reducing the number of job opportunities for law school graduates altogether. Not only are law schools producing more graduates with fewer positions to fill, but those practicing attorneys who lost their jobs due to the recession are vying for positions as well. And, attorneys who have been in practice already know procedure, making them better candidates for the few available positions.


Law schools have acknowledged this growing problem and are adding programs to teach students procedure, thus equipping them with the tools to start a solo or small-firm practice without the help of large-firm training. The University of New York School of Law has been running an 18-month program that provides pseudo “on the job training” to students in the areas of billing, technology, bookkeeping, and taxes. The University of Missouri-Kansas City School of Law and the University of Maryland School of Law have also implemented solo-and-small-firm incubator programs. All three schools are specifically targeting students desiring to open their own business in the form of a solo or small firm. Other schools are following the lead and plan to implement similar programs.


For more information, see The Official Clio Blog.


Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

October 5, 2011

Checklist for Creating a Unique Website for Solo and Small Firms


As the competition between U.S. law firms grows at an unprecedented pace, it becomes extremely vital for solo and small firms to wisely choose their firms’ promotional methods. There are many legitimate promotion strategies that law firms typically employ. However, one promotion method that should always be used is a distinguished website.


Although a website requires significant detailed work to become notable and successful, using a checklist will provide helpful guidance. Accordingly, it is vital to outline all the steps and the details of the plan for a great website prior to developing the project. The following methods are some of the tactics that solo & small law firms can adopt to ensure an impressive website.


Determine a Well-Defined Target Market
A well-defined target market can be accomplished by first defining the distinct users of the website. After creating a separate record of competitors’ universal resource locators (ULRs), it is important to ascertain the strengths and weaknesses of their websites. Finally, the website should stand apart from the crowd by its unique personality; this theory is known as unique selling proposition in marketing.


Identify the Firm’s Objectives
Identifying the firm’s own objectives will make the promotion strategy more efficient. Firms can also accomplish promotional efficiency by matching firms’ objectives with their website. Thus, solo and small firms will be able to avoid causing inconvenience to clients, because clients will not visit law firms for matters in which the attorneys are not specialized.


Finding a Proper Name and Design for the Website
In the web-driven twenty-first century, professional name and design are crucial. To create a website that is visually pleasing, use whitespace and matching colors, logos, or other branding images. However, the website must be reasonably safe and easy to navigate to ensure security and prevent prospective client frustration. Additionally, the loading time of the pages should also be optimal not to turn away a potential client.


Receiving Constant Updates and Monitoring Traffic
Solo and small firms can also track statistics about their website visitors by installing Google Analytics. The website must be designed in a manner to enable firms to make constant updates to avoid having an outdated website.


Norayr Zurabyan, Loyola Law School, Los Angeles, CA



 

August 31, 2011

Easing the Changeover from Solo Practice to Small-Firm Operation


The transition from solo practitioner to head honcho at a small law firm can be a tough one, but in his article, Small Law: How to Transition from Sole Practitioner to Small Law Firm Without Growing Pains, former solo-turned-small-firm principal Joshua Stein shares some tips that will help ease the way.


Among the lessons learned by Stein and shared with others is the idea that working “amidst chaos” is a bad idea—even if it’s “organized chaos.” To help keep things in order, Stein suggests using an online document management system and sticking with a consistent method for the naming of documents and versions of documents.


Stein also offers other helpful suggestions for those thinking of turning their solo practice into a small firm, such as creating and maintaining an office procedures manual, having extra supplies (including printers and monitors) on hand at all times, and buying items that are used on a regular basis (such as paper and printer cartridges) in bulk. In addition, Stein proposes that lawyers forgo secretarial support “if they are comfortable and facile with computers” and hire “recent college graduates who got high grades from great schools.” He also states that small firms should make sure the associates they hire are computer savvy as well.


The full article, which contains more of Stein’s tips on moving from solo practice to operating a small firm, including his warnings concerning possible hiccups with payroll taxes and the use of independent contractors, can be found on the TechnoLawyer blog.


Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA


 

August 12, 2011

Branding for Solo and Small-Firm Practitioners: Consistency is Key


In the name game, small firms have lost sight of what is important: building your brand, not building (and rebuilding) your name. In Above the Law, Jay Shepherd advises that creating a brand name for your law firm or incorporating your specific type of practice is a clear and consistent way to communicate what your firm is about.

 

Small firms tend to forget they are running a business and, when it comes to a name, merely focus on boosting their partner’s egos (or their own). Partnerships change, and with it the name of the firm changes as well. The greatest cost here is not that of new stationary, as it seems many firms believe. Adding to and subtracting from the name confuses your clientele and breaks down your firm’s brand. Potential clients cannot remember the name of the firm because it has changed three times in the past eight years. Make your name memorable.

 

Small firm titles with six or more surnames just seem to drag on and, in the end, are abbreviated by the first couple names in the title anyway. So why not nip it in the bud? Create a consistent name—one that stands out and one that embodies what you do and who you are as a firm.

 

Keep your name the same, brand yourself, and make that name the first thing that pops into a potential client’s head when he or she thinks of your practice area. This will help save some stationary costs as well.


Virginia Sierra, Cohen, Kennedy, Dowd & Quigley


 

August 3, 2011

Starting Salaries for Law School Grads Fall as More Take Jobs with Small Firms


The National Association for Law Placement (NALP) recently completed its employment study related to 2010 law school graduates. The research reveals that the aggregate starting private practice salaries fell 20 percent for 2010 law school graduates. But, as explained by NALP Executive Director James Leipold, the drop is due primarily to graduates taking a larger percentage of jobs with small law firms.


    This downward shift in starting salaries is not, for the most part, because individual legal employers were paying new graduates less than they paid them in the past. . . . Aggregate starting salaries fell because graduates found few jobs with the high-paying large law firms and many more jobs with the smallest law firms.


Indeed, 53 percent of the law firm jobs taken by the class of 2010 were in firms of 50 or fewer attorneys, compared with 46 percent for the class of 2009. The proportion of jobs in firms of more than 250 attorneys decreased from 33 percent for the class of 2009 to 26 percent for the class of 2010.


Leipold stated that it was “significant” that more graduates were establishing themselves as solo practitioners right out of law school and were satisfied with their career choice. Fewer sole practitioners are reporting that they are seeking another job nine months after graduation. As a result, Leipold stated that entrepreneurial skills may be more valuable to law school graduates as a solo practice “becomes the norm for a larger percentage” of graduates.


The full study contains information regarding the average starting salaries for 2010 graduates as well as demographic information.


Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


 

July 15, 2011

Solo and Small Firm Economics


Understanding the economics of your firm will lead you on the path to financial success. When running a solo or small practice, it is easy to forget the business side of your law firm. However, as the controller of your firm it is imperative to consider these financial benchmarks.


Net income. The components are compensation, fringe-benefit costs, and retirement-plan contributions. These should equal 50–75 percent of your gross fees. The remainder of your fees should go to your firm’s overhead expenses. If a firm’s overhead expenses are nearer to 50 percent, it does not necessarily mean less income. An attorney with staff will have higher overhead expenses; however, the amount of work the staff can produce increases net income.


Gross fees. The recommendation is to set a flat or a fixed fee and require an advanced fee deposit. Keep a tight watch on all billable time and soft costs (such as copies, faxes, and long-distance calls). There is no way to guarantee payment of billable time; however, good service and client relationships help encourage them to pay.


Realization. Your gross income can only be counted when it is actually paid by the client. Therefore, the emphasis is back to advanced fee deposits and payment of billed time.


Trends. Create a budget. Your budget will create and a focus on finance and financial communication within the firm while setting a standard for performance. A budget will also force you to plan and track trends while motivating you when your firm is trending downward.


The factors above are critical to your firm’s financial success. In addition, do not forget the qualitative factors of your practice that do not generate fees. Pro bono work, mentoring, and new business development activities are also highly important.


Focus on the economics of your firm and put on your hiking boots as you trek down the path to financial success.


Virginia Sierra, Cohen, Kennedy, Dowd & Quigley