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Technology 4 Lives

Archive for the ‘The Business of Law’ Category

I wasn’t going to the ABA Techshow anyway, but here’s another reason

I received this in the mail a few weeks ago:

Yes, the keynote speaker at the American Bar Association’s annual technology trade show will be Ben Stein. Info/Law has a good rundown of all the reasons why the ABA should be embarrassed by this. I’d just like to point out something that I hope will be obvious to everyone.

Their keynote speaker is a man whose entire claim to fame is a cameo performance in which he portrayed a singularly bad public speaker.

Well played, ABA.

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Contrary to what you might have heard, that’s not me in this video

h/t to Jordan Rushie for bringing this to my attention. I can only dream of having this guy’s acting and musical chops. Some day, perhaps…

I can see how one might confuse me for this guy, if you look at me in my full-bearded days. I have never gotten to sing in a commercial, although we did once have our own TV commercial, for two magical, grossly-unproductive months in 2004:

We got three phone calls as a result of that commercial. Two of them were people wanting to sell us stuff. The other one wanted to sue God or something.

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Grandpa lawyer doesn’t understand your newfangled technoggoly

I wrote the headline to this post on August 17, 2011, and I saved a draft that only consisted of four URL’s. Honestly, I have no idea exactly where I was going to go with this, but the headline was too, uh, weird not to post. Rather than try to piece together exactly what sort of thesis I was going after almost four months ago, I’ll just link to the articles that so inspired me.

Obviously it was something about older lawyers eschewing newfangled technology.

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see more Lolcats and funny pictures, and check out our Socially Awkward Penguin lolz!

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Bald lawyers, unite!

From MyBaldLawyer.com

From MyBaldLawyer.com

Dangit, why did I never think of this???

If you are injured and in need of a lawyer, Chandler Mason hopes you will remember his bald head.

Mason, an Atlanta personal injury lawyer, is differentiating himself in a crowded field with billboards picturing himself and promoting his website, MyBaldLawyer.com.

I once billed myself online (in the pre-social media era, before I was actually marketing myself for business purposes) as the “Official Bald Guy of the New Millenium.” It was pretty lame. I can’t even find it on the Wayback Machine anymore. This guy is doing it right.

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A new manifesto for lawyers? Maybe…

Rachel Rodgers, the self-proclaimed 21st-Century Lawyer for Generation Y Entrepreneurs, has put out a “21st Century Lawyer Manifesto.” It proclaims a new ethic, or aesthetic, or something, for the newest generation of lawyers. I think this mostly includes the ones who came of lawyering age in the era of social media and no longer reasonably expecting to have a high-paid legal job upon graduation. The manifesto has 9+ elements (the “+” will be clear soon enough):

  1. We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
  2. We embrace our weirdness.
  3. We will not let being lawyers prevent us from being business savvy.
  4. We will not let our past with tradition rob us of a future with innovation.
  5. We will utilize technology in all of its glorious forms.
  6. We value actual morality over “ethics” rules.
  7. We understand that the true value of money is determined by what it costs us to make it.
  8. We will not live in fear.
  9. We recognize our duty to do epic sh*t now.
  10. [You tell me.]
The lawyer of the future?

The lawyer of the future?

See, #10 is a fill-in-the-blank. It’s a partly-DIY manifesto, making the whole thing delightfully (or obnoxiously, depending on your point of view) meta.

It’s worth reading the whole thing to get the nuance of each element. Overall, I absolutely support utilizing new technologies, rethinking some concepts of “ethics,” and generally shaking up the legal profession. I have no doubt that there will be vehement and altogether predictable retorts from certain lawyers about how unrealistic and irresponsible these newbie lawyers are being.

I see several problems with this manifesto.

For starters, I’m all about being “weird,” but not about being “weird” for weirdness’ sake. Maybe I’ve got that item on the list all wrong, but as lawyers we have a job to do and a broader legal system to represent. While the current system seriously eschews outside-the-box thinking in favor of a rather lockstep approach, that did not happen overnight. In truth, most outside-the-box ideas suck (cf. Sturgeon’s Law). As lawyers, for many of our clients, the stakes are quite high (livelihood, custody of children, liberty, etc.) Clients need to know that we are either using methods that are time-tested, tried, and true, or that we have worked out these new techniques and have the utmost professional faith that they will work. Otherwise, the hypothetical outside-the-box legal tactic doesn’t work, the client gets angry at the lawyer, the lawyer gets sued for malpractice and/or gets dragged before the state bar, CLE presenters use that lawyer as an example of what not to do, and everything goes right back to the way it was before. Being “business savvy” does not always equal being an effective advocate.

For another thing (and I’m not sure whose problem this is) is that replacing the current ethical regime with a broader concept of “morality” sounds awesome on paper. Try it in a contentious divorce case where one spouse wants a peaceful split and hires a newfangled “moral” attorney while the other spouse borrows $25K from a family member and hires the sharp-fanged divorce lawyer who keeps opposing parties’ extremities as trophies. I’ve dealt with divorce lawyers who, while they may be wonderful people with their families at Thanksgiving dinner, seem constitutionally incapable of even recognizing opportunities to peaceably resolve legal disputes. Decades in the nastiest divorce trenches will do that to a person. Long periods of time hearing about the worst of the worst divorce cases can sometimes make judges pretty cynical too. Not all divorce lawyers and family court judges are like this, of course, but a lawyer seeking to inject a bit of “morality” into the process should expect to get chewed up and spit back out, minus a few extremities, more than a few times.

The biggest threat to any kinder, gentler model of lawyering, then, comes not only from other lawyers who don’t subscribe to that ideology, but also from these lawyers’ own clients. Most people don’t have a clear understanding of how the legal system works (I blame lawyer TV shows). The system may be the best one conceived by humanity to resolve disputes, but it quite often sucks. It is inefficient, often unfair, and often mind-bogglingly counter-intuitive.  Clients expect justice, and they do not always understand how difficult (and expensive) true justice is to achieve. Many lawyers go for the illusion of justice through aggressive litigation, and that has become the standard model. Do not think for a second that this type of lawyer would hesitate to pounce on a newly-moral lawyer for any advantage available.

Are these reasons not to try to change the legal profession in ways that would quite possible make it fairer, more “moral,” and a more enjoyable (or at least less soul-crushing) way to make a living? Of course not. These are noble goals. The thing that “21st Century Lawyers” of the Rodgers model need to understand is that the early adopters of this model may end up martyrs to the cause. Good luck to them.

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Lawyer Networking 101

The old adage is very true for lawyers: it’s not what you know, it’s who you know. For the vast, vast majority of people, lawyers are utterly indistinguishable from one another. Some people will hire a lawyer because of an attention-grabbing TV ad, a slick website, or a clever blog (or so I’ve heard, anyway). Others might hire the lawyer who looks meanest, or toughest, or flashiest. Most people will hire someone they know, trust, and/or respect. The best (some would say only) way to get business that way is through word of mouth–either with referrals from previous clients or with networking referrals. “Networking” is a dirty word to many lawyers, but it shouldn’t be.

True, the return on investment from networking may seem low, particularly if you only go to formal networking events through a chamber of commerce or an organization whose sole purpose is to host networking events. These types of meetings tend to drop people into an environment that is only comfortable to people whose job is to schmooze corporate decision-makers 8+ hours a day. I could give you a list of rules for successful networking (and I probably will), but it comes down to one single principle:

Be Yourself.

Photo by Muriel Miralles de Sawicki

Some networking events even have free coffee!

This should not be a difficult concept, but it is for many lawyers. Lawyers do not see it as their job to be themselves; they are paid to be either warriors or Stoic gatekeepers. Very little of an individual lawyer’s personality comes out in a typical representation. That may work in some lawsuits or negotiations, but it is a terrible way to approach business development. Unless someone is looking for a brutal litigation juggernaut, they probably want a real live person for a lawyer.  I can break my one principle down into a few corollaries:

1. Non-lawyers really want to know what lawyers are like. It takes about two minutes in a conversation with a lawyer for a non-lawyer to realize that lawyers are not really like Atticus Finch, or even Denny Crane. They want to know what a real lawyer is like. Talk about business, but be yourself.

2. People like to talk about themselves, and they don’t think lawyers listen very well. Let’s face it–lawyers are talkers. Sure, we listen when a client is telling their story, but we only listen to hear what we need, then we rewrite the story in legal format and give it back to the client. To the extent people know anything about lawyers, they suspect that we are all a bunch of blowhards. The purpose of networking is not just to find out who can help your business. It is also to help others (in the hope that they will help you later). Even if you are not in a position to immediately help the kitchen floor laminate sales rep you met at the Rotary meeting, you can at least talk to them and dispel a few misconceptions about lawyers. That will come around to benefit everybody.

3. People have no idea what lawyers do. After years of introducing myself at networking events as a family lawyer (and before that a real estate lawyer) and offering a detailed description of my ideal client, I still fielded inquiries about how many people I had gotten out of jail that day. No matter what we say, it is almost as though the daily world of lawyers is shrouded in a fog of magical secrecy that non-lawyers cannot penetrate. So try talking to people in your normal human voice. It may be disappointing for them to learn that we don’t spend all day every day cross-examining Colonel Jessep, but at least a sense of the real you and your daily grind will come across.

Once you are established as a real person, you can build rapport and trust. Then you can build business. And if you build it, they will….oh never mind.

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Risk-aversion and the coming generational clash amongst lawyers

The other day a young attorney named Rachel Rodgers wrote a post at Solo Practice University called “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” The post outlines a bit of the tension between older attorneys and the hordes of young lawyers now entering the marketplace and not finding jobs, many of whom are now starting their own practices (this was largely the theme of my post from yesterday, “Too Many Lawyers?”).

It’s a complicated issue, and it’s not even entirely clear what the points of contention are. I have commented a bit at Ms. Rodgers’ post, but the blawgosphere is starting to light up about it. Ms. Rodgers states that:

Professional ethics is supposed to be a code by which we lawyers operate to ensure that we are maintaining the highest level of integrity as we practice law. Unfortunately, many experienced attorneys have taken to using the word “ethics” and all of its connotations as a weapon against any attorney serving their clients in a way with which the criticizing attorney is unfamiliar or does not approve. Sadly, given that young and innovative lawyers are blazing a trail for new ways to both practice law and deliver their services, we tend to be the target for such ridicule. I have even seen some lawyers claim that young lawyers, especially solos, cannot possibly be ethical without the hand-holding (otherwise known as chiding) of more experienced attorneys.

Not the way to run a law practice

Not the way to run a law practice

The thing about that is that legal ethics is a pretty vast field stretching back for centuries, and it is often difficult for even gray-haired lawyers to fully grasp it. Technology is fast outpacing ethics rules when it comes to advertising by attorneys–today’s ethics rules are useful for Yellow Pages ads, but not so much for blogs. That said, the question is whether the changes in ethics rules that need to happen can best be achieved through research and deliberation, which is pretty much how it has always been done, or through innovation and experimentation in a free market setting. Lawyers have never been much for a free market when it comes to how we actually practice law. We are not a profession with a great love of risk (quite the opposite, in fact).

Scott Greenfield remarked on Ms. Rodgers and her practice back in June, and Brian Tannenbaum picked up the story yesterday:

Used to be that lawyers would work for someone and then go solo. Now there’s no jobs so lawyers are going from law school graduation, right to the computer to create their law firm twitter account and Facebook fan page, and presto – a practice is born with an “experienced, aggressive” attorney. Today we fake it until we make it, as the marketers encourage young lawyers to do.

I can’t exactly be critical of a newly-licensed solo, since I used to be one (technically I was a newly-licensed shareholder in a firm of three newly-licensed lawyers, but I became fully solo within 3 years, so close enough). At the same time, I have seen quite a few sketchy schemes from solo lawyers, and the value of having a mentor cannot be denied. I think law may be the only profession where brand new practitioners are allowed to jump head first into the pool right away, so maybe we need some sort of apprenticeship system. Just a thought. Matt Brown sums up the concern very well:

No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

On the other hand, there is much to be said for reevaluating the risk-averse culture of lawyerdom. An extreme, possibly sarcastic example appeared on the blog What About Clients? the other day. A series of mantras, supposedly dating to 1836, appeared in the post “The 7 Habits of Highly Useless Outside Corporate Lawyers”:

1. Be risk-averse at all times. Clients have come to expect this from their lawyers. It’s tradition. Honor it.

2. Tell the client only what it can’t do. Business clients are run by business people who take risks. They need to be managed, guided, stopped. Don’t encourage them.

3. Whatever you do, don’t take a stand, and don’t make a recommendation. (You don’t want to be wrong, do you?)

4. Treat the client as a potential adversary at all times. Keep a distance.

5. Cover yourself. Write a lot to the client. Craft lots of confirming letters which use clauses like “it is our understanding”, “our analysis is limited to…” and “we do not express an opinion as to whether…”

6. Churn up extra fees with extra letters and memoranda and tasks. Milk the engagement. (If you are going to be a weenie anyway, you might as well be a sneaky weenie.)

7. As out-house counsel, you are American royalty. Never forget that.

I have my doubts about the historical authenticity (as does the blog’s author), but it does nicely illustrate how lawyers emphasize the avoidance of risk almost over all else. Quite often, that is exactly what corporate clients hire their lawyers to do. The question is whether that attitude should extend to lawyers’ own businesses. I used to tell my business client that I was their “professional pessimist.” In other words, they started their business to make widgets (or whatever), not to worry about contract terms or premises liability, so they should pay me to worry about it for them.

That’s not a bad way to help a client, but it’s far from the best way to run a business.

It’s not like young lawyers and old ones are fighting in the street. Thus far the debate seems to be limited to blog exchanges and ABA conferences. Sooner or later, the question of new lawyer innovation will butt heads with traditional risk aversion (some might say it has already happened), and it will be fun to watch.

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Too many lawyers?

Are there too many lawyers in America? You would certainly get that impression from blogs like Overlawyered. It is by now widely known that there are more new lawyers graduating law school than there are legal jobs available. Young lawyers, holding a brand new shiny law license and a mountain of debt, are going solo in increasing numbers. More and more functions traditionally performed by lawyers are being automated, shipped overseas, or converted to DIY by individuals and businesses looking to save money. The “circle of life” of the legal profession (and most other professions) is being interrupted by economic conditions, as older attorneys postpone retirement.

Net result: more lawyers for less work.

This is leading to a significant generational clash between older, more experienced lawyers and their younger colleagues who might have been promised the world only to find a desert. While the older generation laments hordes of fresh-faced newbies with newfangled ideas (yes, I’m overgeneralizing), the younger generation looks for ways to chart their own path and tries to innovate without getting anyone (or themselves) in trouble. I’m not convinced that younger lawyers get into ethical trouble at any greater rate than older ones, but it is a growing concern among older lawyers, justified or not.

Something will have to change about the legal profession. Technology has made legal information available to anyone, and the internet allows anyone to be their own lawyer. Despite the loudest protests of the legal profession, this change is unlikely to reverse. We will continue to have new lawyers and old lawyers, and in the quest to make a living new ideas will be tested. Some will be disastrous, and lawyers have a capacity to do more harm with bad business ideas than most other professions or industries (perhaps second only to medicine). We can fight each other and resist change, we can fight each other and doggedly embrace change regardless of the possible negative consequences, or we can help one another out and make the law work for as many people as possible. The era of the lawyer as warrior may be nearing its end. The new era has yet to be defined.

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Wishful thinking doesn’t build a law practice

Photo by Tiara at www.sxc.hu

Face it, we're long overdue for a visual lawyer joke (photo by Tiara at www.sxc.hu)

My friend Debra Bruce (a/k/a the Lawyer Coach) has an article at Law.com: “From Associate to Solo — Don’t Overestimate Your Value.” She discusses how young lawyers tend to overlook many of the expenses, both in money and time, associated with being a young lawyer. I can certainly relate to that. Law practice, as it turns out, is not necessarily the quick road to riches that it may seem to be.

You may dream of being your own boss, running a lean and mean shop with a lot less overhead than your current organization. With the technological advances of the last few years, that is undoubtedly an option. Just don’t underestimate the three crucial responsibilities in the success of any law practice: client development, collection of fees and taking out the trash.

Well, you may not really have to take out the trash, but you will have a lot of administrative duties that hinder your ability to rack up billable hours. Almost all businesses wind up writing off some accounts receivable, and for most lawyers, it takes a lot longer to bring in new clients than they expected.

I don’t want this article to dash your hopes and your belief in yourself. I want it to encourage you to do some realistic assessment and planning so that you don’t end up dashed on the rocks.

It is by now well-known that I have soured somewhat on being my own boss. There has been a steep learning curve in the realm of running a law practice, something law schools tend not to teach. Those” administrative duties” in the above quote certainly do pile up. Every profession has its unique expenses. Law has insurance, continuing legal education, and all sorts of other ethical compliance issues. Marketing is particularly tricky for lawyers, who cannot afford to leave their marketing in the hands of a non-lawyer. New York attorney Eric Turkewitz coined the term “outsourcing marketing = outsourcing ethics,” meaning lawyers have such a convoluted code of ethical requirements surrounding our advertising that we can ill afford to leave it to someone not intimately familiar with those rules (bad things have happened when marketing is left to non-lawyers).

Then there is client development. Clients will not just come to you because they need a lawyer and you are awesome. Client development is complicated, and unless you have an immediate family member with a corner office on K Street, it will not happen overnight. What’s more, the market is saturated with new lawyers. You will need to start getting creative, and that does not automatically mean going high-tech.

I started my firm in 2002 with two other lawyers. They had experience from law school doing criminal defense. I had some immigration experience and had worked for a civil litigation firm, so the plan was for them to build criminal practices and for me to develop civil clients. This was before “blog” was a household word, when most computers still had floppy disk drives. So we did our marketing the old-fashioned way: direct mail. Every day, we would get the jail roster from the Travis County Sheriff, develop a mailing list, and print, sign, stuff, seal, and stamp several hundred letters to prospective clients.

It’s not as crazy as it sounds. Not everyone has regular internet access, even today, relying on the mail. We stopped doing it for two reasons: (1) stuffing 250-300 envelopes per day sucks, and we didn’t want to hire staff just yet; and (2) more and more lawyers were sending letters and the rate of return was plummeting. Anecdotally, I heard that in 2002 about 20-25 lawyers in town were sending letters, but by 2004 there were almost 75. Now, everyone is so internet-focused, perhaps snail mail could have a Renaissance. Many people respond quite well to receiving a personalized piece of mail.

poofytoo.tumblr.com

via poofytoo.tumblr.com

Don’t even get me started on collecting fees. I’d compare it to herding cats, but all a cat can do is scratch you.

Personally, I think it is great whenever a young lawyer wants to go solo. The number of resources to assist a new solo grows every day (resources I wish existed, or that I’d known of, back in the day). It’s scary, but it can also be rewarding. What it definitely is not, is easy.

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This week in unusual litigation (R v. I update)

“R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

1. “Rakofsky Effect” has made it into Urban Dictionary:

Infinite pleading amendments as the unintended consequence of suing to censor your critics.

This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

Photo by Woodlouse, http://www.flickr.com/photos/woodlouse/, used under a Creative Commons license

This lemur has nothing to do with the case I am discussing. He's just cute.

There’s also a Twitter account I hadn’t noticed before.

2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

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