Tuesday, May 8, 2012
This post from Susan Van Dyke at Slaw.com gives advice from a legal marketing expert about what clients want in their lawyer.
The nine themes clients want include:
1. Know my business.
2. Don’t sue us.
3. Ignore me at your peril.
4. Show me value.
5. Communicate with me.
6. Stay in touch.
7. Seize opportunities to learn about us.
8. Manage my expectations.
9. Anticipate my needs.
“Law students to seasoned partners ought to commit these to memory and practice them daily. It’s a formula for success. How do I know for sure? For 17 years clients have told me so.”
Hat tip Susan Cartier Liebel (@SoloPracticeU)
Monday, May 7, 2012
You may remember back in April we told you about a new blog, Hang Shingles, started by a recent law grad who, facing no job prospects, decided to go solo working out of his apartment bedroom. At the time, our new solo had $3500 in the bank, $130k in student loan debt and had just picked up his fourth case (two of the four are pro bono). So how's he doing now?
It turns out he's picked up a few more cases, billed his first 40 hour week and most importantly is getting lots of support from the local community. In particular, he's found an attorney willing to mentor him in connection with preparing real estate title opinions about which our new solo knows nothing. As he says, the generosity of others is making it "impossible" for him to fail.
Here's an excerpt from a blog entry called "Busiest Day Yet."
I’m pursuing another project: title opinions. I spent the afternoon at my county abstracting company. They were super nice, and sat down with me and spent like an hour going through abstracts with me. I know, I know, it is really risky and one law professor has already told me not to do it. Here is the thing though; I also sat down with a lawyer in town who offered to proof each title opinion I do at the start, so I have an experienced eye looking at them before they go back to the customer. Then, I sat down with a realtor who offered to refer buyers to me. Could people be any more generous? Did you read what I wrote? A lawyer, who I would be taking business from, offered to proof my title opinions for free. He also offered to let me use his law library for free. People are just making it impossible for me to fail at this.
I’m going to take this very slow, and make sure I know what I’m doing, but let’s be honest, title opinions are a good way to make some money for a small practice like mine, and I’m going to pursue it. I just hope the criminal work will keep me afloat.
I don’t think I could have done what I did today in a big city. I had a lawyer, a realtor, and an abstracter each take like an hour out of their day to sit down with me. Just awesome, thank you. Trust me, if down the road I’m established and some young lawyer comes to town trying to do what I’m doing, I swear I’m gonna take him out for steak dinners like every night.
For balance, one commenter (April 20, 2012 @ 7:45 p.m.) warns that some real estate agents may have ulterior motives for wanting to help the new guy learn how to prepare title abstracts so you best be on your toes.
On the more altruistic side, our new solo talks about interviewing for a part time teaching gig at a local community college to help pay some bills. After mentioning to the interviewers that he's trying to start his own law practice, they load him up with free food left over from a staff party. Just goes to show the power of community support.
Click here to read more of the blog Hang Shingles.
After shedding 1300 jobs in March. From The AmLaw Daily:
The legal sector rebounded from some of its recent employment woes last month by adding 3,900 jobs, according to preliminary data released Friday by the U.S. Bureau of Labor Statistics.
Revised data released by the bureau at the same time showed that those gains came on the heels of the legal sector losing 1,700 jobs in March—400 more than originally estimated. Factoring in last month's increase, the legal sector's total number currently stands at 1,120,900—the industry's highest total since June 2009 and 6,900 jobs ahead of last year's total through April. While such figures may inspire optimism within the legal industry, they remain below the industry's prerecession employment highs. In April 2008 the sector employed an estimated 1,166,000—roughly 45,000 more than it does now.
You can continue reading here.
Over at the ABA Journal Blog, there's a podcast featuring three expert trial lawyers who offer tips to new lawyers on trying your first case. Click here for the link to the podcast and below is an excerpt from the transcript:
I have a question for all of you. First off, what are some of the things they teach you in law school about trying cases that in hindsight are just absolutely ridiculous? Jim, do you want to start first?
Jim McElroy: I don't remember being taught a thing in law school about how to try a case. There was, I think, one trial techniques class offered that I wasn’t permitted to take for some reason. But I don't remember anything that I learned in law school about trying cases.
Barbara Ashcroft: Let me just follow up on that. I agree with Jim. Even when I was in law school, unless you took specifically a trial advocacy class, you're learning only theory and substantive law. You're not learning the practical application of law. Here at Temple Law School we're really huge in trial advocacy and a lot of the other law schools are now as well. But during the time I went to law school, there were no types of skills training.
Stephanie Francis Ward: Steve, what do you think?
Stephen Hurley: One of the things we teach or that is taught in trial advocacy today that I think gets my goat is teaching students to ask permission to move around the courtroom. I can't tell you how many students who've been through trial advocacy walk in the court and say to the judge, "Your Honor, may I approach the witness?"
As I tell them, anytime you ask the judge for permission there's a 50/50 chance the answer will be no. One is better just doing it and having the judge say, "Not in my courtroom". I think you'll find that most judges, as long as one moves around the courtroom with a purpose, they’re not going to stop you.
Barbara Ashcroft: I think I have a little bit of a disagreement on that, Steve, only because I think that when a judge will say to you, "Hey, don't move around my courtroom," then you've sort of gotten spanked in front of the jury. Where I think if you ask initially, "Your Honor, may I move around the well of the court," there's a better opportunity for you to show the jury and also respect to the judge. I think we differ a little bit there.
Stephanie Francis Ward: Maybe is that part of your trial strategy? I mean if you have a judge that doesn't want you to ask his permission, maybe it's good to get spanked in front of the jury.
Stephen Hurley: In a close case, the lawyer that takes command of the courtroom is the one most likely to win. I would rather have the judge tell me in front of a jury, "Don't do that," than to be, at least for my initial impression to the jury, to be one of a supplicant. It can all be cured by doing homework–
Barbara Ashcroft: Absolutely.
Stephen Hurley: You go into the judge's courtroom the week before and you watch what the judge is doing and you'll know from that. But in the absence of not doing homework–which isn't a good thing–in the absence of that, I would prefer to take the chance on the judge saying no. Most judges will say it in a very kind way, especially to a young lawyer.
Jim McElroy: I would take a middle ground here and say that when approaching a witness, I'd go either way, but when entering the well–especially in California, I notice, and especially with heightened security around the judge's safety, all that kind of stuff–entering the well, walking toward the judge into the well is something that generally I would encourage a new lawyer to request permission for.
Usually, you’re handing documents–at least in California courts–to the bailiff or someone else who then approaches the bench with the documents. But on the rare occasion where you need to approach the bench with a document or something, I think the better course is to ask the judge if you may approach.
At some point, it happens to all of us. At the Chronicle of Higher Education, Eliana Osborn offers her advice. Here’s one of the comments following the article:
I have a lot of stories that I can tell, to zip up class interest. Sometimes I tell half a joke, then move on, and wait to see if someone'll ask about the rest. Anything about sex or toilet paper always perks students up. Or a relevant, or even irrelevant, celebrity anecdote. This works for me because I have a very good memory for stories and am rather jocular anyway. But a lot depends on your in-class persona. I agree that long classes do require a lot of changes in activities. Some other possibilities: going around the room and having everyone comment ("everyone name a color"). Or ask everyone born between January and April to comment. Or--whatever. The point is to shake up the expected order. You can often do that by getting students to participate in a non-threatening way: "Suppose I wanted to tell a story about a dentist. What would be a good first name for a dentist character?"
Sunday, May 6, 2012
Carol Andrews has some good advice about dealing with first-year students here. They are 1) students need specific suggestions and examples of how to study, 2) students need to master the law, not merely understand the law, 3) students need to learn how to self-assess their study skills and progress, and 4) students need more, incremental retroactive study.
Concerning 1, she states, "The amount of work necessary for the first semester of law school is beyond the grasp of many incoming law students. Specific advice better conveys this essential point." Her point 1 is related to her point 4. She thinks that law students over-focus on preparing for class and that law teachers promote this bias. She argues that "Class preparation is only one aspect of law school learning. . . . They must learn to retroactively review and synthesize the law throughout the semester at incremental levels." This is excellent advice. I believe that law students should review what they've learned in a class the same day as they had the class. They should also synthesize what they've learned every week. They also need to relate the new material they are learning to the material they have already learned.
Concerning 2, she writes, "Most law students need to know the law better than they do. It is not sufficient for them merely to understand the law. The students must know the law well enough to enable them, under time pressure, to read and accurately assess the exam itself, to identify the issues, and to apply the law to new factual settings. They must be nimble manipulators of the law. They must master the law." She adds, "I have realized that most disappointing grades are due, not to errors made in the four hours of the actual exam, but instead mistakes made in the four days or four weeks or four months before the exam. . . . the bigger problem usually is that the students never got to the mastery level of learning the underlying law." She concludes: "Mastery requires hard, smart work throughout the semester, and students cannot easily identify when and if they reach the mastery level." Again, I think that Professor Andrews makes an important point. Too often, I meet with students who only half-way understand a concept. I think that her advice concerning point 4, would go a long way in solving this problem.
Professor Andrews's point 3 is that students need to be able to self-assess their learning skills and progress. This point, of course, is one of the foundations of legal education reform. As I noted last Thursday, law schools need to produce self-regulated learners. As I mentioned in that post, the best article by a legal scholar on developing self-regulated learners is by Michael Hunter Schwartz.
Jason Stanley has an interesting piece in the New York Times (The Stone) about the false dichotomy between the practical and the theoretical. He writes, "But once one begins to bear down upon the supposed distinction between the practical and the theoretical, cracks appear. When one acquires a practical skill, one learns how to do something. But when one acquires knowledge of a scientific proposition, that too is an instance of learning." He continues, "when one reflects upon any exercise of knowledge, whether practical or theoretical, it appears to have the characteristics that would naïvely be ascribed to the exercise of both practical and intellectual capacities." He adds, "I have argued here (and at length elsewhere) that once one bears down on the supposed distinction between practical knowledge and knowledge of truths, it breaks down. The plumber’s or electrician’s activities are a manifestation of the same kind of intelligence as the scientist’s or historian’s latest articles — knowledge of truths."
He concludes: "The distinction between the practical and the theoretical is used to warehouse society into groups. It alienates and divides. It is fortunate, then, that it is nothing more than a fiction."
While Professor Stanley doesn't mention legal education, I immediately thought about legal education as I was reading his article. There is a false dichotomy between theory and practice in our field, too, and we must eliminate it if we want to improve legal education.
New scholarship on law school teaching - including a practical skills writing component in doctrinal courses
The article is entitled Beyond chalk and talk: the law classroom of the future by Professors Timothy W. Floyd, Oren R. Griffin and Karen J. Sneddon (all of Mercer) and can be found at 38 Ohio N.U. L. Rev. 257 (2011). From the introduction:
Law schools are rethinking the traditional Langdellian classroom as they construct the law classroom of the future. Although the reform of legal education has long been heralded, law schools are now on the cusp of actual change. Carnegie's Educating Lawyers and the Clinical Legal Education Association's Best Practices for Legal Education are promoting a rethinking of the law classroom. Also encouraging the examination of legal education are changes in the incoming student population, such as the influx of students from the Millennial Generation; technological innovations; and shifting realities and economics of law practice, such as the increased focus on efficiency and collaboration. These changes are informed by recent developments in adult learning theory, neuroscience, and cognitive psychology. All of these sources lead to the conclusion that learning is best when students are self-regulating, engaged, and motivated learners, and when the learning process is active, experiential, collaborative, and reflective. One of the best ways to cultivate and develop this learning environment is to have students write a variety of assignments and receive content-specific feedback in a variety of courses.To that end, this article serves as both inspiration and a resource for the law classroom of the future. The critical component is the inclusion of writing exercises that engage the students and enhance student learning to better prepare students for the practice of law. The featured exercises are drawn primarily from the authors' experiences teaching civil procedure, professional responsibility, and trusts and estates. The exercises range from in-class exercises that take as little as five minutes of class time to extended projects to be completed outside of the classroom. We will highlight the theoretical underpinnings, transferability of these exercises to other courses, and manner of assessment. Each exercise is designed to be academically rigorous, foster the development of self-regulated learners, and reflect the realities of current law practice.
An article from yesterday's New York Times explains that many of the problems that led to Dewey & LeBoeuf's collapse are symptomatic of the legal profession at large. A more mercenary, "eat-what-you-kill" approach to law practice that has eroded collegiality among firm members and clients who now balk at paying for lawyers for tasks that can be performed more cheaply by off-shore legal service providers are among the reasons commentators say that Dewey will give-up the ghost on May 15.
Interestingly, like law schools that cooked their books in order to increase their USNWR ranking, the NYT article notes that Dewey inflated its revenue-per-attorney figures to bolster its image among peer firms for purposes of the annual AmLaw 100 rankings.
The circumstances at Dewey may turn out to be extreme. But the firm’s messy decline lays bare the harsh realities of today’s law practice, and shatters the perception, still held by many members of the bar, that however transformed in recent decades by the realities of the market, law is at heart still a guild, a brotherhood (and increasingly a sisterhood) — in short, a profession more than a business.
. . . .
In what appears to have been an increasingly desperate effort to hang onto its prestige and profits, Dewey violated some unwritten but still sacred rules of the profession. As the exodus of partners began last year, the firm’s managers publicly disparaged their departing colleagues. In the once-collegial profession, when partners left — no matter what the circumstances, short of embezzlement or fraud — the firm wished them well and said nothing to disparage them.
By contrast, Dewey issued a statement saying that the firm was moving in a “new direction” and that departing partners “didn’t like the change” and were part of “firm-initiated reductions,” implying they were asked to leave. “Trashing your partners: How classy is that?” Mr. MacEwen said. It was also almost surely untrue. “It should be obvious that the partners who leave are the most mobile,” he said.
And the firm seems to have violated another unwritten law: it inflated its revenue in the annual American Lawyer survey of law firm rankings, the AmLaw 100, the equivalent of the Fortune 500 for law firms. The annual survey, which relies on self-reporting, is indispensable to clients, other lawyers and law school graduates choosing firms. After Dewey partners provided Bloomberg News with profit numbers that differed sharply from what the firm had reported to American Lawyer, AmLaw restated Dewey’s 2010 and 2011 results, which dropped Dewey’s revenue per lawyer in 2011 to $750,000 from $900,000 and lowered the firm’s rank based on revenue to 28th from 22nd in 2010. Dewey has defended its reporting and said the discrepancies resulted from differing methodologies.
. . . .
Today, firms bargain over rates and compete fiercely for both their own talent and for clients. Clients have figured out that much of what lawyers do is a commodity that can easily be outsourced far more cheaply. Law firms always had a few dynamic partners who wielded disproportionate influence both within and outside the firm, and another group who may have been highly skilled and specialized, but were rarely seen by clients. They were supported by a broad base of lower-paid associates who developed their skills at client expense and performed, in many instances, relatively menial and repetitive tasks. “There’s a dawning recognition that many partners don’t add much value other than their legal work,” Mr. Clay said. “Many are being asked to leave, or to accept a nonequity, salaried partner status.”
Mr. Saft, the former Dewey partner, contended: “The partner guarantees are symptomatic of the underlying change in the practice of law over the last several decades. Before that, law firms were partnerships. It was an institutional practice, not individuals with portable books of business. Now, everyone has become a free agent. It has changed and destabilized the nature of the legal profession. And once it takes hold, it accelerates. Other firms say they don’t do it, but I wonder if that’s really true.”
You can read the full article here.
The ABA Commission on Ethics 20/20 will not recommend any changes to the ABA policy forbidding nonlawyer ownership in law firms. However, some countries and the District of Columbia do permit nonlawyers to be partners.
Opponents argue that permitting the practice would threaten the profession’s core values and would lead to external regulation of the legal profession. Proponents argue that nonlawyers already hold key management positions in law firms and that a change in the rules would regularize what is already happening.
The arguments pro and con are fairly complex. You can read this summary on U.S. Law Week online. I suspect that, like it or not, a change is inevitable, sooner or later.