A relative told me something that I already knew: That I had been selected as a personal injury Super Lawyer. They knew because it had been published by the New York Times.

Yeah, well, kinda sorta. But not really. Super Lawyers is a supplement to the magazine; an advertising supplement. You don't have to pay to be listed, you only pay if you want your name displayed prominently in a large box or page with a story about you that looks like news. Sort of an advertisement within the advertisement. I think the marketers call it an advertorial. I declined their offer to pony up big bucks for such an honor many months ago.

But now comes the other issue: What, exactly, do I do with this "honor"? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? A mockery of a pseudo-faux award? A mockery of a sham of....OK, you get the idea.

I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. So if we are vetted, then perhaps this really is something to be proud of?

But what kind of vetting actually takes place? Super Lawyers claims on their website that:

Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. (Update: Now I do.) They have a full page of words on their website to describe their process, but it doesn't seem very revealing to me. They have a "research department" that assigns "point values" to different criteria.

I must confess that this all seems pretty meaningless to me. If you want to know if I'm good at what I do, it seems you would have to read a brief I've written, read a deposition I've taken or perhaps watched a trial. Even if a lawyer comes in second at trial, an observer might still be able to gauge how comfortable s/he is inside the well of the courtroom. Everything else is, shall we say, hearsay. Inadmissible.

But that little logo sure looks nice, doesn't it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) And I can't just say that Super Lawyers is making stuff up, because I could be very wrong about that. I just don't really know. And they don't really reveal the way they do their analysis, despite all the words they use to talk around the issue.

So what will I do? I don't really know yet, though putting it on my website (the website that I hate) and then linking that "honor" back to this post showing my complete ambivalence might be one option. At least it would educate the legal consumer a bit about those that put such things on their sites or on their office walls.

And I am also left with the impression that this is a notch above being in the Million Dollar Advocates Forum. Of course, that didn't really set a very high bar.

See also:

• New Jersey Law Journal report potentially misleading (Super Lawyer Blog)

• N.J. High Court Weighs Proposed Easing of 'Super Lawyer' Ban (NJLJ)

• Superlawyers with Cheese, Please (Simple Justice, 9/23/07)

• NJ Stupidly Outlaws "Super Lawyers" and "Best Lawyers" (Larry Bodine, 7/23/06)

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Update: Super Lawyers was sold in February 2010 to Thomson Reuters, which might tend to give it more legitimacy, though it isn't without its problems regarding conflicts.

Labels: Law Practice, Marketing, SuperLawyers

Another guest blog today, this from Patrick Carrajat, an elevator expert in New York that has testified for both plaintiffs and defendants. He writes today from the point of the engineering expert and the needs of the plaintiff's counsel, but his points and check-lists can be modified for other purposes.
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FINDING THE RIGHT EXPERT

There are several ways to locate the technical expert you need. Referral agencies abound, both on-line and traditional and either can serve the purpose of finding a suitable expert. The inherent pitfall with both type agencies is that they often are mere repositories for resumes and have little, if any knowledge of the proficiency of the expert being recommended. A quick internet search will turn up web pages for experts in virtually any field, but again you are simply given the information the expert chooses to post. In both of the above scenarios the onus will be upon you to investigate the background of the expert further, talking to their clients and interviewing the expert to see if they are right for your case. The best way to locate a suitable expert is either the old fashioned way, call a fellow attorney in a firm known for its personal injury practice and get a name or the new fashioned way, post your need to the NYLIST (New York State Trial Lawyers Association) or other such plaintiff oriented forums and see who is most recommended. Now that you located several names by any of the above methods how do you decide if the expert is right for you and your particular case?

INTERVIEWING THE EXPERT

In our hectic times it is virtually impossible to meet with each expert candidate personally so the telephone interview is the prevailing means of selecting your expert. The initial contact with the expert should begin with your disclosing the name and nature of the case since many popular experts may have already been retained by adverse counsel. Presuming that the expert has not been retained by another party and is willing to be retained by you these are questions that you should ask prior to deciding on your choice of expert.

1. How long has the expert been in practice?
2. How often has the expert been retained?
3. How often has the expert testified?
4. What percentage of testimony has been for the plaintiff?
5. What courts has the expert been qualified in?
6. Has the expert ever be dis-qualified as an expert?
7. Does the expert write their own affidavits and 3101(d)(1) or 26B filings?
8. Does the expert have copies of prior trial testimony?
9. Does the expert maintain files on opposing experts?
10. Does the expert maintain files of EBT (deposition) testimony by them?
11. Does the expert maintain files of EBT's by others?
12. Does the expert maintain files of current appellate decisions pertinent to their field of expertise?
13. Will the expert assist you in preparing discovery items?
14. Will the expert write deposition questions for you?
15. Will the expert write trial questions for himself?
16. Has the expert actually worked on the type of equipment involved in your litigation?
17. Has the expert served on any code committee relating to the subject equipment?
18. Has the expert served on any industry groups?
19. Has the expert participated in seminars in their industry?
20. Has the expert conducted or been a panel member on such seminars?
21. Has the expert published any articles or books on the subject?
22. What professional associations does the expert belong to?
23. Does the expert maintain a library of technical articles and Code books?
24. If the field requires licensing does the expert have a current license?
25. Does the expert have a current CV to fax or e-mail to you?
26. What are the names of the last three attorneys worked for where the case was lost?
27. Does the expert have a client list of references to fax or e-mail to you?

Presuming that the above questions have been answered to your satisfaction proceed to checking selected references paying particular attention to the three cases that were lost. Once you are satisfied that you have found a suitable expert move to retain them at once.

DEALING WITH THE EXPERT

Most experts, like attorneys place a high value on their time and you will be best served by giving all information available to your expert as soon as possible. In virtually all cases involving a malfunctioning piece of equipment an on-site inspection will be required, arrange it as soon as practical after retention. The main purpose of this on-ste inspection is to allow the expert to precisely identify the equipment involved and protect the expert on cross. Any thinking defense attorney will, on cross ask when the on-site inspection was done. If the answer is never the next question will be, "So you are giving opinions today but you were not even interested enough to look at this piece of equipment?"

Give the expert ample time to prepare deposition questions and ask the questions even if you do not understand the reason for them being asked. Have the expert interview the plaintiff in person or over the phone, let the expert hear the plaintiffs story directly, minor details that mean little to a layman can be significant to the expert.


Every expert after jury selection should have an extensive meeting with the trial attorney and it should benefit both the lawyer and expert. The lawyer will have a good picture of the jury and can assist the expert in reaching the jury in a positive sense. Request that the expert dress for the meeting as they will dress at Court, make comments if appropriate.

YOUR OBLIGATIONS TO THE EXPERT

Once you have retained your expert you have certain obligations:

1. Promptly send your signed retainer and check (if requested) to the expert. Many experts are in high demand and will be contacted by multiple parties in a major case. The mere fact that you spoke to the expert does not, in most cases, mean that they cannot accept a retainer from another party if you have not formally retained them. Fax or e-mail your intentions and advise the expert when a signed retainer will be mailed.

2. Keep your expert in the loop. No expert wants to receive records or copies of depositions a week before trial (and yes it happens). No expert wants to be asked at trial if they have reviewed a deposition only to realize the deposition was never given to them (and yes it happens). No expert appreciates a call asking if they can do an on-site tomorrow.

3. Be sure you know what the expert wants you to ask for in discovery. Any qualified expert can give you a list of items they feel they need to properly address the issues in your case.

4. Don't "paper" the expert. No expert, aside from those testifying to physical injury wants 200 pages of medical records. Most experts do want the original aided report from the police or emergency service responders and possibly the ER reports to see if the injury is consistent with the reported malfunction.

5. Know what your retainer agreement requires of you financially and pay your expert on a timely basis, the only thing they sell is time and their expertise. You will find it difficult to have a relationship with an expert who has been unpaid or waited more than 30-60 days for payment.

6. Don't attempt to have your expert "shade" their opinion, most will not do it and those that do are violating the ethics of the profession. Your expert will put their opinions in the most favorable light for your client consistent with the admissible evidence reviewed.

Labels: Law Practice

It may be a long time before the legal field recovers from the massive layoffs from this past year. Some folks could be out of work longer than imagined, and it appears that some may need a bit of help on what to do. As you can see from this utterly miserable description of life as a cast-off lawyer coding documents in the basement of BigLaw firms for $28/hr. (via ATL), there are some people with big time degrees that are trapped into thinking that BigLaw is all the law that exists.

'Taint so.

So, without further ado, here are 10 tips for lawyers without a job, from a guy who started from scratch:

1. Make business cards. You are not unemployed. You are self-employed. Big difference.

2. Don't tell people you don't have an office. You do. It's your home office. All you need is an address and a computer to do research and writing.

3. You never know where business might come from, except you know it won't come from sitting at home watching Oprah. So get out of the house and talk to people. The waitress, the cabbie, the dog-walkers, the people in the supermarket. The doorman of your friend's building. Maybe you'll meet someone who needs legal assistance, or knows someone who needs legal assistance. Or you'll get a date. Who knows? You might find that extricating someone from a bad marriage, representing an abused child, saving someone from an overly aggressive district attorney, or helping an immigrant get a green card, to be one of the most satisfying things you've ever done with your law degree. But you won't know if you don't try.

4. Tell people you're an attorney. That doesn't mean you scream it from the top of your lungs, but it comes naturally when meeting new people (see #3) when they say, "So what do you do?" You'll have your card in your pocket. Because they might know someone, who knows someone, who needs you. In a big, bad way.

5. Start a blog. Or offer to guest blog for an existing one. Or write an article for a legal publication. Or an op-ed for the local paper. Most lawyers love to write. A few even do it well. Now is your chance to write like a human. You must have an interest in something legal or you wouldn't have picked law for a career. You can write about anything. Except how wonderful you are an as attorney. That would suck. Because that's an advertisement. And people hate self-promotional clap-trap. Everything else is fair game. Get your name out there. And claim your Google reputation while you're at it.

6. Dress nicely when going to the grocery store. That doesn't mean a suit and tie, it just means looking neat and clean. Because you don't know who you will meet. You can't open doors if you push them closed by looking like a slob. And you will, of course, have your card in your pocket. Just in case.

7. Join listservs. These are not only great places to swap ideas on the law, but other lawyers often run into temporary overflows. They need someone to handle a court conference. Or draft a memo of law. Or help with an appeal. And when that happens they will turn to their listmates for help. And you will be there. Of course, your new friends will also be there when you start to wrestle with questions of where to file something and other picayune procedural stuff that BigLaw never taught you.

8. Don't be proud. My first job out of school was high end medical malpractice cases at a prominent personal injury firm in New York (Fuchsberg & Fuchsberg). Then I went out on my own. My first stationery was a business card taped to a piece of white paper and xeroxed onto good paper. I had a Mailboxes, Etc. address for my office. My first regular client argued parking tickets for commercial businesses. I started making appearances and doing depositions for $75-$100 a pop. With overhead near zero I turned a profit. I got by till the better stuff came in.

9. Keep your ears open for other business opportunities. These opportunities might be outside the law, or closely related to it. After all, if there are too many lawyers, well, I'm sure you understand that old supply and demand thing.

10. Don't stop looking at the traditional avenues of employment. The above tips were not designed for you to start a new practice. It just might lead that way. Or not. No one has a crystal ball. All you are doing is creating opportunities. And with that comes the potential that some firm, some where, gets some big business and needs to staff up. Your resume is ready. And when they Google you they will find a few things you've written while you were self-employed. And you might have a really interesting story of how you changed someone's life.

Labels: Law Practice

One day the scandal will happen, and I want to make sure my clients don't get caught up in it. The problem is simple: Our court files are open to the public and all manner of private information gets place into those files. Attached to motions in personal injury cases, for example, may be pleadings, discovery responses and deposition transcripts containing a spectacular wealth of information.

Those records may contain social security numbers, birth dates and places, maiden names, kids names, schools attended, and the answer to almost any other type of "security" question that people ask in order to verify identities.

In the pre-Internet days this wasn't as much of an issue. While the records rooms of the courthouses were open, the problem of identity theft hadn't exploded. But the Internet has made the acquisition of information vastly easier. In some places with electronic filing, a trip to the courthouse to look at the physical file may not even be needed anymore.

Back in those pre-Internet days I used to send reports of my significant verdicts and settlements into the New York Jury Verdict Reporter, which in turn would send its publication of verdicts and settlements out to subscribers. Potential clients would then have published synopses of my cases so that they could see what types of actions I had handled. This was particularly important since I was a solo practitioner, and I could understand how a new client would like to see a track record for such an attorney.

Those jury verdict reporters were (and continue to be) valuable tools in trying to determine the value of a case in settlement negotiations. Just as house hunters like to look at "comparables," so do lawyers. These verdict reporters also sometimes had information on experts, unless you were like me and refused to provide those little tidbits.

When the Internet came along, I put up those settlements and verdicts on my website, again so potential clients could see what I had done in the past. I stripped out the names of my clients though, as I began to appreciate the power of too much available information.

And I also elected to remove the names of doctor-defendants. About a year after one particular case had settled, I saw my prior adversary on the street and he mentioned to me that his doctor-client had Googled himself and found his name on my site. (There was no confidentiality agreement.) He wasn't happy. So I deleted his name, and the names of all other individual defendants. Why? Because I didn't want some future defendant to fear settlement because their name would come up on my site in a Google search. That would be a disservice to my own client.

All of this brings me back to the too-much-information issue in the courthouse files. Several years ago I stopped putting social security numbers into any document likely to be filed, as well as dates of birth. This information can be given privately to defense counsel if they need it to track down records. But the court file doesn't need it.

So far I've yet to have a defense lawyer complain, and for good reason. What's good for the goose is good for the gander. Neither side finds it beneficial to have more personal information than is absolutely required in an open file.

One day the scandal will come. Some big case some place will settle and a wealth of details will be stolen from the court files to steal an identity.

And the only question is, which lawyer will have allowed it to happen?

Labels: Law Practice, privacy

I've received the letter a few times, beseeching me to join the "Million Dollar Advocates Forum." Oh boy! That looks mighty impressive. So I investigated to find out what, exactly, it is.

And now I'm here to report: It's a great way to make money for the guy that thought it up. And little more. You pay him $1,200 and he gives you a certificate (gold embossed and suitable for framing!) and the right to use one of those groovy logos that you see to the right on your website. It is to me, short and simple, a marketing program.

The Forum is a "prestigious" group that is "limited" to those that have "won" million dollar settlements or verdicts. If you Google Million Dollar Advocates Forum you will find no shortage of lawyers boasting of this faux honor. But if a lawyer already lists such results on a website, why pay this guy $1,200 in cold, hard cash for this piece of marketing? You don't need his logo or piece of paper to prove you've handled a big case.

I found this bit of hype from the website interesting:

There are over 3000 members throughout the country. Fewer than 1% of U.S. lawyers are members.

Read carefully, for that bit doesn't mean that only those 3,000+ lawyers have handled million dollar cases. No, it means that of those that have handled million dollar cases that is the number that forked over their money for the logo and certificate.

And I think it's also worth noting that having "won" a million dollar case doesn't mean a lawyer is good. What if, in better hands, the case could have been resolved for three million? All of a sudden that million-dollar-lawyer moniker isn't much to brag about.

But wait, there's more! And you don't even have to order by midnight tonight. You see there is also a "Multi-Million Dollar Advocates Forum," and lucky for you that certificate (gold embossed seal and suitable for framing!) can be had for only an extra $1,000. Or $1,700 if you apply for both at once.

It's also interesting to note that if you defended a million dollar case, you don't qualify, because you have not "won" a million dollars or more. I'm not sure why defense counsel wouldn't be on the same footing as the plaintiffs' folks, for while funding of the case is certainly vastly different, the courtroom skill set is pretty similar once you step into the well. (My father likes to tell the story of the first lawyer to lose a million dollar malpractice case in New York. Rather than hurting his reputation, he became the million dollar go-to lawyer for the big cases.)

So if you see that little logo on someone's website, or the certificate on the wall, don't be too impressed. If the lawyer handled million dollar cases, and handled them well, and wants you to know, s/he will likely list them on their website or tell you in person.

The logo should mean little to the potential client seeking counsel. The certificate seems to be worth the price of the paper it's printed on. Unless you were the guy who came up with the idea and raked in the dough for creating that certificate. In which case it means $1,200 being transferred from your bank to his.

Do you detect sour grapes on my part? You bet! I'm bummed that I didn't think of this first. Who needs to work when you can get, according the web site, over 3,000 people to pony up that kind of cash for a piece of paper? Who knew there were thousands of lawyers out there so willing to part with their cash for this token? According to this 2002 article, the old fee was $450. It has almost tripled since that time. Now that is a great business model for a company that provides a website, logo and piece of paper.

The "Forum" is the brainchild of Donald F. Costello. Costello is himself a personal injury lawyer out in California (though he says he is no longer accepting cases), and his website features the logos that he created three times as well as three additional mentions of the "Forums" in the text. Visitors, however, are unlikely to know that he is the one that created this little business out of whole cloth.

Curious as to whether his company had the backing of any bar association anywhere in the United States, I shot him an email. And the response from Costello?

"The Million Dollar Advocates Forum has no relationship of any type with any bar association or any other group.

Update: See comment #5 by fellow New York attorney Gerry Oginski. He wrote in a March 2009 post about some company called Elite Lawyers of America is trying to suck $500 out of attorneys for a lucite obelisk proclaiming their greatness.

Updated x2: The Wall Street Journal Law Blog picked up where I left off, quoting this piece, in The Million Dollar Advocates Forum: A Valuable Service or Something Else?

Labels: Law Practice

It is, perhaps, the most bizarre of legal specialties: Celebrity Lawyer. It must be a specialty, because the media insist on tagging California attorney Gloria Allred that way.

Allred managed to get her mug in the news by suing Octomom Nadya Suleman. Leaving aside the little issue of whether Allred has standing to sue -- apparently on behalf of a child welfare advocate with no apparent connection to the case -- at least I understand what an Octomom is. But a "celebrity lawyer?" This headline comes from New York's Daily News: Octomom Nadya Suleman sued by celeb lawyer Gloria Allred for exploiting her babies.

Now I understand what a matrimonial lawyer is. And I know what an entertainment lawyer is. And certainly what a personal injury lawyer is.

But what the hell is a "Celebrity Lawyer?" Do all celebrities have the same issues? Think about it. Criminal defense. Real estate. Securities. Immigration. Corporate work for those that have their own productions companies. Child welfare if you're Britney Spears. Adoption if you're Madonna.

The list of potential legal needs is limited only by the many ways people need to protect themselves from troubles.

So someone who pitches her services as being a "celebrity lawyer" is, in fact, saying that she is a Jane-of-all-trades (and, therefore, master of none). But should a major media outlet buy this self-promotional aggrandizement?

Allred's website starts with this bit of vomit-inducing narcissism:

Gloria Allred is the most famous woman attorney practicing law in the nation today, a tireless and successful advocate whose high-profile legal battles ...

I don't know the lady but I hate her already. Anyone who writes about themselves that way seems to have an ego so large it would ultimately get in the way of any legal issue presented. If I'm a client, I don't want the case to be about the lawyer. I want it to be about me. My issue. Not the lawyer's desire for fame.

It's clear that Allred does a fine job of getting her mug in the news, and therefore she probably gets cases as a result. But why anyone would hire such a person for a specific problem is utterly beyond me.

I once knew a lawyer with lot of high profile clients, and he asked me to try a medical malpractice case with him. The lawyer had decades of experience. We went to verdict. He was, in my 24 years of experience, the worst trial lawyer I ever saw. Lots of shtick, but no preparation. No concept as to how a medical malpractice case should be handled. Rookies I've tried cases against were far better. But he had high profile clients, and that begot more high profile clients. What he lacked were actual courtroom skills. Every time I saw his face in the news I knew his clients would hang.

Hiring a "celebrity lawyer" is, perhaps, the dumbest thing a person can do if they need actual legal help.

See also:
Celebrities + Lawyers = One Train Wreck After Another (Legal Pad)

The (shudder) "Octomom" is gonna face Gloria Allred in court. Allred, consistently described in news articles as "feminist celebrity lawyer Gloria Allred," is going after the mother of 14 for being unfit...

Labels: Law Practice

Every blogger gets spam. I expect it from the various hustlers who permeate the web. But I didn't really expect it from a law firm. From a big law firm.

Labels: Law Practice, Marketing, Spam

Much has been written about Marc Dreier's substantial theft of his firm's assets and the raiding of the attorney escrow fund where client funds were held.; as much as $380 million may have been purloined. Everyone has discussed that he is the sole equity partner holder.

But what of the non-equity partners? As of today their web site lists 49 such individuals. Can they be held responsible for the firm's losses? Given that the firm shockingly has no malpractice insurance (though the insurance carrier may well have tried to disclaim coverage anyway), this surely must be a cause of sleepless nights for the non-equity partners.

The short answer is, yes, they might be liable under New York law. I happened to have litigated the issue back in the 90's on behalf of my father after he separated from Fuchsberg & Fuchsberg, where he was an income partner. Fuchsberg tried to claim that, despite 20 years of representing to the world that my father was a partner, he was in reality a glorified employee. The arbitrator disagreed with Fuchsberg's employee argument, and the final verdict landed on the front page of the New York Law Journal.

So -- aside from the details of a written partnership agreement that I obviously don't have access to -- below are the types of issues that will have to be sorted out to determine whether the Dreier non-equity partners are really partners for the purpose of sharing in the losses. Some of the issues listed below come from D'Esposito v. Gusrae, Kaplan and Bruno

• Was the individual listed as such in Martindale-Hubble, on the firm's letterhead, website and/or tax return;
• Did the partner receive distributions of net profits from the firm, and if so, was this a fixed amount (indicating more employee-like) or did it fluctuate (more partner-like);
• Was the partner responsible for the firm's rent or losses;
• Was the partner a signatory of the partnership and/or operating agreement;
• Did the partner make any kind of capital investment;
• Did the partner exercise any control over partnership affairs.

Bad times are ahead for those that made partner and might now be on the hook for losses that could throw them into bankruptcy, even though they didn't own any of the firm's equity. Rest assured that the partnership agreement is being read today by a gazillion lawyers with a fine-toothed comb.

Addendum: One critical place the lawyers will need to look to sort out the liability issue is the income tax return filed for partners (form K-1). That form lists the percentage of profits that they are entitled to as well as the percent of losses (regardless of whether there were actual losses prior to this). Any non-equity partner that is responsible for losses on that K-1 may be in for particular trouble.

See also:
Dreier Troubles Show Danger of Single Equity Partner Structure (Weiss @ ABA Journal)

Labels: Law Practice

This is a story of how one courtroom in Brooklyn is responsible for wasting over $10 million in legal time. Every year. And that calculation is conservative.

The scene for this nightmare is one of our local trial courts, the Supreme Court Building in Brooklyn. The courtroom is called the Central Compliance Part, or CCP as it is known to its denizens. And each day in this massive ceremonial room, a couple hundred hours of lawyers' time is wasted. When this is annualized, the numbers are truly frightening.

To understand this misery, a little background is in order. All civil litigation starts, after the filing of complaints and answers, in an "Intake Part" where a preliminary conference is held and a discovery schedule is worked out. At that preliminary conference a compliance conference date is also set to mop up any outstanding issues. If your adversary decides to show up on time you could be done in a half hour.

But when you return for that compliance conference, you will not leave in a half hour. No way. The calendar will have over 100 conferences and motions on it. Over the course of a morning some 200 lawyers can easily come and go through this model of epic legal inefficiency. Today's calendar, for example, had 75 conferences. It looked like this: /ConferencesCCP.pdf
Now add to that the motion calendar with 72 motions and cross-motions involving 54 different cases, which looks like this: /MotionsCCP.pdf

Now ask all the lawyers to show up at 9:30, in one place.

Even if you can work out any remaining issues with your adversary, and you can accomplish what you need in 10 minutes, which is often the case, you may not leave this room for two to three hours. Even if you work everything out and submit a proposed order with no issues that need judicial intervention, you might still wait for an hour for a signed order to be returned to you. And this waste doesn't count the time going to and from court.

The system is so bad that a cottage industry of "per diem" lawyers has even grown up around it. These folks will, for about a hundred bucks, take care of your conference or routine motion. They make their living by running around from courtroom to courtroom on behalf of others who have conflicts, or who can't spare half a day to do 10 minutes of work. While this may be seen as a boon to some who want to go this route, it also means that if you are on the other side of a per diem who has booked several different things in different courtrooms, you may be left cooling your heels waiting, and waiting and waiting, while they make their living elsewhere and waste your time.

This is no way to run a courthouse. The lawyers all know it. The judges all know it. The clerks all know it. Everyone hates it. Except for the per diem lawyers running around the courthouse putting their band aides on a septic system.

Having now ranted a bit, let me add my suggestions for fixing this very broken system that is wasting hundreds of hours of legal time every day on matters of simple discovery.

First: The court must create an electronic template for their compliance orders that the attorneys can use, with required dates for completion and a future conference. That is the easy part;

Second: Every Preliminary Conference should have a provision whereby the attorneys are required to have a conference call at least 20 days before the compliance conference so that they can use that template to create a stipulated order to complete outstanding discovery;

Third: All completed orders can be submitted via email to the court, with blanks left for future court dates and a place for the attorneys to note their availability or unavailability due to conflicts. The court then prints, signs, and files and the lawyers retrieve the order via eLaw.

Fourth: Any unresolved issues must be subject to a court conference call with one of the court attorneys. Scheduling is done by email with a specific time to call in;

Fifth: In the event of a real issue that has defied resolution, or an unreasonable or obstreperous lawyer is involved, a court conference is scheduled;

Sixth: Some lawyers don't, ahem, get paid to move cases efficiently. They get paid to be unreasonable. Wasted time means more billable hours. The court has to start treating the directives in preliminary conference orders more seriously and be stricter with problematic firms as the judges do in the federal system. This will ultimately force lawyers to work things out, or risk the wrath of the court for being unreasonable or routinely ignoring orders.

The system is broken. Badly. It needs to be fixed.

And so, to the Powers That Be in Brooklyn, I beg and beseech you. Fix it. Just 200 hours of wasted time a day -- and it is really much more than that -- is 1,000 hours a week, which is over 50,000 hours per year. At $200/hour that is $10,000,000/year.

Out of just one courtroom.

Labels: Judiciary, Law Practice

Law firms are laying people off left and right, according to a story in the New York Times today as well as extensive coverage in the legal blogosphere. Above the Law even has a category, Layoffs, dedicated to the subject.

Or at least you would think the layoffs were coming left and right. The reality is that the layoffs appear to come mostly from BigLaw, not necessarily SmallLaw.

Lawyers like to think that, for the most part, we are recession resistant. Because if things go south, there are companies struggling with bankruptcy, litigation among feuding companies over deals gone south, and investigations galore.

But, according to the Times, the legal field seems to be contracting because the companies are so cash poor from the credit crisis, they don't want to waste their cash on lawyers. According to the Times:

In downturns of years past, law firms exploited corporate failures and bitter, protracted lawsuits to keep busy and keep billing. But in this still-unfolding crisis, the embittered and the bankrupt have been relatively slow to appear, at least in court...

A wave of big company litigation -- those suits that pit armies of associates against each other -- has also not materialized. A recent survey by one big firm, Fulbright & Jaworski, found fewer large companies reporting new lawsuits against them this year. Although executives may desperately want to sue one another over recent losses, they may not know how big those losses are or want to know how big they are. In any event, cash is precious in this downturn, and litigation is both costly and risky.

And what does that mean for the BigLaw firms that generally handle this stuff? Lost jobs and altered billing practices for those that aren't nimble enough to change their (high billing) ways. And that includes, interestingly, a contingent fee. More from the Times, buried deep in the article:

"Rather than having hourly rates, we are increasingly negotiating flat fees or fixed fees, or success fees," which include a premium based on predetermined conditions, said Ivan K. Fong, chief legal officer and secretary at Cardinal Health in Dublin, Ohio, and chairman of the Association of Corporate Counsel. Some law firms have resisted those changes, he continued, but may find they have to accept clients' wishes.

Success fees? Yeah, I've had those for awhile.

The problem with BigLaw is that some things can't get cut back. Like that big fat rent bill from the Class A accommodations and the fancy wood-panelled offices. A healthy chunk of an associate's billing goes to overhead, another healthy chunk to the partners and another chunk to the bloated salary of the associate who is two years out of law school.

SmallLaw, by contrast, generally doesn't have these problems. SmallLaw doesn't need to charge $800/hour because they don't need to feed the vast BigLaw machine. And that means an opportunity for some.

Over at Legal Blog Watch, Carolyn Elefant asks this question in Should You Stay or Should You Go Now:

If you're currently employed as a lawyer, should you stay at your firm or jump ship now? This Dallas Morning News story quotes experts who agree that, in this economy, it's better to remain at a lousy job and take the paycheck instead of trying to find a new position. But I'm not so sure that's the best approach.

In a deep recession, with companies looking to cut back on anything possible including ridiculously high legal fees, savvy lawyers might not be so keen on staying with a BigLaw firm with diminishing work. They may strike out on their own if they can grab a client or two to take with them while they build their practices. While no one answer is right for everyone, it seems clear that starting up one's own firm in a recession might actually be a viable option for some.

My guess is that we are seeing the beginning of a big shake-out in BigLaw. The pressure will come not just from existing clients that may balk at paying the outrageous fees they command, but from below where former others are now hard at work recruiting their former clients (and new ones) with the same talent. But at half the cost.

Labels: Law Practice

The "I'm Sorry" letter from Dallas attorney Jeff Murphrey raced around the internet last week. It raced because he had very creatively skewered opposing counsel Dale Markland for not having the decency to adjourn a deposition while he suffered the ravages of Hurricane Ike (I'm Sorry You're A Jerk (Lawyering 101: Professionalism).

It seems that not only was property damaged, but so too was reputation. Markland, it may come as no surprise, was not pleased at being the butt of Murphrey's letter and its wide dissemination. If you were Googling "Dallas Attorney Dale Markland" you would find a number of unflattering stories on the now famous "I'm Sorry" letter. And that's bad if you happen to be Markland.

So how does a person you fight back and regain one's Google reputation? Dan Solove dealt with the subject of easily ruined reputations in the digital age in his terrific book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, which I reviewed last year. He would no doubt be interested in the path Markland is now taking to battle back.

If you're playing a bit of catch-up here, this was some of the substance of the original letter from Murphrey after Markland demanded expenses and attorneys fees for a busted deposition:

I am sorry that a hurricane hit Houston.

I am sorry that I had no power or water at my house as a result of the hurricane.

I am sorry that I had to extend my stay out of state because of the hurricane.

I am sorry that CenterPoint energy did not bend more quickly to your desires and restore power to my home so that I could return to it sooner.

I am sorry that upon returning to my home on Monday, September 22, 2008, I discovered a roughly 50 ft. X 6 ft. swath of human excrement, used condoms and all the other niceties that come with a raw sewage leak in one's backyard which drains into one of the main bayous in Houston.

I am sorry that I had to threaten City of Houston officials with lawsuits and local news exposure in order to get them to even agree to meet with me about cleaning up the problem.

I am sorry that these city officials chose a date that interfered with our deposition and gave me no other option.

I am sorry that the Houston Public Works Department had to use a fire hose to blow human excrement out of my yard on the day our deposition was scheduled.

I am sorry that the city required my presence at the debacle noted immediately above...

I am sorry that you are the only lawyer in this case that consistently goes out of his way to be unaccommodating and unprofessional with the other lawyers. I am sorry you are from Dallas.

This stuff then appeared not only on my humble little blog, but in far more prominent spaces including Above the Law, the WSJ Law Blog, the Houston Press and elsewhere.

So Markland has now acted, not just escalating a battle between he and Murphrey, but for a far more important reason: to reclaim his name in the event that future potential client's Google him.

And so the Markland and Hanley website is now up, with the most prominent feature being Markland's response to "the Hurricane letter." In fact, this fledgling site only has those two pages (at the moment). Markland notes at one point some of the abuse he has been subjected to:

A telephone call from The Texas Lawyer asking me to respond to all of the scorn I was being subjected to on internet blogs and in emails circulating throughout the country. Not being a blogger, I was unaware of the scorn which had been directed at me by a segment of at least the lawyer populous. Directed to one particular blog site, I found bloggers, apparently some being lawyers, calling me a liar and a scoundrel.

The details of his end of the story are now up there, relying significantly on the assertion that he was unaware there even was a problem with the deposition until he was changing planes while traveling there. He writes at his site:

The hurricane in the Houston area occurred on September 12/13;

Mr. Murphrey cancelled the deposition on September 23 when I was already on my way to Fort Wayne, Indiana for the deposition;

I will offer up one bit of wholly unsolicited advice to Markland: The best way to reclaim your Google reputation is not only by creating that web site (and obviously expanding it to describe your firm and the actual lawyering that you do), but to start blogging. Why? Because by doing so you will be creating more content that will, over time, hopefully bury the hurricane story so that it is but a trifle. When people Google you in the future, you'd rather have that on page five than page one.

You've been introduced to blogging the hard way, but having now been forced into that sphere, you may want to make the best of it. Though you'll have to do it well.

========================================
After posting this, others have weighed in:

• The Stars At Night; Are Big And Bright ... (Above the Law)

  We're sorry Mr. Markland, but Murphrey's original letter was funny. Beyond that, it seems like you and Murphrey need to sit down and work things out. Maybe you can even use a "telephone" and talk thing through. But if you insist on using forms of communication that can reach a wider and unintended audience, we'll continue to do our part.

• Lawyers duke it out over post-Hurricane Ike depo (Texas Lawyer)

  The upside to the situation, Markland says, is that he's now in a better position to understand -- and to advise clients on -- the dangers of the Internet age.

Labels: Blogging, Law Practice

Over at Legal Antics, Nicole Black has a great letter from Dallas Attorney Jeff Murphrey to his opponent in a case, Dale Markland. The problem stems, apparently, from Markland's failure to be accommodating on a deposition date when Hurricane Ike blew threw town, causing damage to Murphrey that needed to be attended to. This included excrement and other raw sewage and other nasty details. His apology letter is an instant classic. (Addendum: You can read both sides of the story if you want to decide was the discourteous one. See update below.)

Contrast that letter to a recent conversation I had with opposing counsel in one of my cases. He made a motion and I needed more time to respond. It went like this:

Me: I need another two weeks on the xyz matter to put in my papers.
Him: Do you have a reason?
Me: Yes
Him: What is it?
Me: I would grant you the same courtesy if you asked.
Him: Good enough for me.

The lesson to all those that think they can gain some litigation advantage when the other side has a problem? What goes around comes around. The professional courtesy you seek two years from now either on this case or an unrelated one, either because you have a conflict or your kid became ill at a very inconvenient time, will not be returned if you fail to extend those courtesies yourselves.

(Also at Above the Law, WSJ Law Blog, Houston Press, and no doubt elsewhere)
=========================================================
Updated 10/13/08: Recipient of "I'm Sorry" Letter Fights Back with New Website To Regain Reputation

Labels: Law Practice

There is an article out today at LawyersUSA (Insurance industry woes rattle personal injury lawyers) in which I am quoted a bit. I had written previously about how the problems on Wall Street might affect the personal injury bar. (See, Wall Street Meltdown and Personal Injury Law.)

But in addition to the problems of insurance companies going belly-up, causing delays or worse in cases getting resolved (and forcing lawyers to carry the expenses even longer than they otherwise would), another problem also exists. The tightening credit market will likely effect the ability of personal injury lawyers to fund cases. If lawyers can't get a line of credit from the bank -- not because the attorney isn't creditworthy but due to panic and fear in general -- it means that they have to get funding from lawyer funding companies that charge outrageous interest rates.

But where to those lawyer funding companies get the money from, even if you agree to pay the high interest rates?

Hard times are ahead for the personal injury bar if the lawyers don't have their financing already lined up for their cases. And even if they do, people will now have to worry if that financing contracts or disappears altogether.

Labels: Insurance Industry, Law Practice

The listserv may be the single greatest tool the solo or small practice lawyer has. And this post explains why.

This is also a story about some of the best lawyering I ever did, and its connection to a listserv. While I suspect that the lesson may be old hat to many readers -- since you are obviously already connected or you wouldn't have found this blog -- I'm going to spill forth anyway on the odd chance you do not already belong to a listserv, or that this gets passed by a friend to at least one less-than-connected attorney.

The story involves the case I just blogged about in June that went to verdict. But if you think I'm going to brag about a brilliant legal argument or devastating cross-examination tip that I picked up and used, don't worry. It isn't about that.

Rather, it's about how a good listserv can spill forth a spectacular amount of small nuggets of information, any one of which can help turn a case. In the one I just tried, I had been alerted to an imminent change in the law. That change turned a 100K case into a seven figure case.

By way of background to appreciate this, you have to know that the car accident that injured my client occurred in July 2005, and that the car that did the damage was a leased vehicle. The Graves Amendment was then passed by Congress just three weeks after the accident. And that amendment destroyed the vicarious liability that existed in New York that held leasing companies responsible when their drivers caused accidents.

Within days of being retained by my client, and while she was still institutionalized in rehab, I learned through a listserv that a House-Senate conference had agreed to this amendment that would eviscerate her rights to recover for her injuries. I learned of the legislation just one day before I was to go on vacation, and I had no idea when President Bush would sign it. So I typed up a Complaint at home and rushed it into the courthouse the next day for filing, beating the presidential signature.

I'd like to tell you the best lawyering I ever did had something to do with one of my trials with fancy openings or summations, a great bit of research finding an obscure case or a brilliant legal argument. Or perhaps a story of an argument from the Second Circuit or New York's First or Second Appellate Departments.

But instead, the blunt reality is that the simple participation in a listserv alerted me to the passage of damaging legislation. Being connected kept me up to date. Being connected got my client to the courthouse door in time. There was another person injured in this accident, by the way, and his lawyer didn't file in time. I never asked, but I think it is safe to assume he was not connected to people who were discussing the latest of legal events.

So the utterly simple and routine act of typing up a standard personal injury complaint and getting it filed right away turned out to be one of the best things I've ever done for a client. Without it she would have been stuck with the insurance policy limits of the two cars involved, 25K and 100K. Instead, she was able to proceed against the owner/lessor for injuries that clearly exceeded those minimal policies, for an ultimate recovery that exceeds those numbers by seven figures.

And so if you are not connected to such a group in your geographic area, or at least your practice area, then find one. Or create one. This is all the more important for the legions of solo and small firm practitioners, giving you not only the opportunity to swap the latest in news, but the latest in court rules, judicial temperaments and local gossip that just might one day mean all the world to your client.

The constitutionality of the amendment, by the way, is currently on appeal.

Update: Just one day after posting this, the Graves Amedment Was Upheld by the 11th Circuit Court of Appeals

Labels: Law Practice

Over at Susan Cartier Liebel's Build a Solo Practice she puts out a couple of statistics I hadn't seen before:

Solos comprise more than 50% of all private practice attorneys in the country. In some states, like New York, they are as high as 81%.

With such a huge predominance of BigLaw in the news, I never realized that I was actually in the majority, not the minority.

But the stats lead to different questions, starting with this: What, exactly, is the definition of a solo?

Does this mean one lawyer, and one lawyer only (along with support staff)?

Or does solo mean that there may be a few associates, but 100% of the equity (and responsibility and liability) of the firm sits with one person?

What definitions are used to create these stats, and what definition should be used?

I'm not going to pretend I know what the "right" answer is, though I think that the element of 100% of the risk is more important than 100% of the work. This is especially true given that many solos may outsource some work when times get busy, creating a vast gray area of per diem, "of counsel," and part-time lawyers that make precise definitions difficult. I just don't know how any of this is factored in when statistics are compiled.

And I am more than a bit curious as to what others think, and with that, here is a shout out to:

• SoloBlawg (Ben Cowgill);
• Home Office Warrior (Grant Griffiths)
• Solo in Chicago (Peter Olson)
• The Inspired Solo (Cheryl Sisk Schelin)
• Legal Research and Writing Pro (Lisa Solomon)
  
• The Greatest American Lawyer (Enrico Schaefer);
• Chuck Newton Rides The Third Wave (Chuck Newton);
  
• And, of course, Carolyn Elefant, author of Solo by Choice.

I hope to hear back on other blogs and in the comments here.

Update - Responses:

• See What's a solo? (Carolyn Elefant)
• Eric Turkewitz asks, "What is a Solo?" (Susan Cartier Liebel)
• What Is A Solo Practitioner? (Chuck Newton)
  

Labels: Law Practice