Monthly Archives: June 2004

Stop Start Continue

Barbara Payne at Blog for Business has this great brainstorming tip she found in the Winning at Work newsletter:

Next, get three pieces of flip chart paper and label them “Stop” “Start” “Continue” — then ask your staff to work in groups of 3. First group brainstorms answers to the question: “In order to (raise revenue by XX dollars, solve this issue, etc.), what do we need to stop doing?”

Second group does it with “In order to (raise revenue by XX dollars, solve this issue, or whatever), what do we need to start doing?

Third group brainstorms this one: “To (raise revenue, cut costs, solve this issue, or whatever) what do we need to continue doing? Hint: Brainstorm about what’s working really well.

Then rotate everybody around so that everyone gets a chance to give each question their best shot. Now you summarize all the points, assign a financial impact to each point that’s been raised, make it all into a report that says exactly what you will do (lay someone off? cut a program?) if your stuff doesn’t work.

I love the “stop – start – continue” method. What would your firm’s three questions be?

Five by Five – Fred Faulkner

These Five ideas come from Fred Faulkner, a blogger I met at the ABA Techshow blogger’s dinner.  Fred works for the ABA and maintains the ABA TECHSHOW site

While I’m not a lawyer, my past three years working in the legal industry has led me to these observations about the practice of law and what needs to change for it to survive for the future.  These are in no particular order, but are somewhat all related.

1) Embrace Technology –
Get with the program folks.  There are a plethora of technological tools that will help you not only practice law better, but give you more time to have that balanced life everyone is talking about.  Those who have found the balance have learned to leverage technology to give them the freedom they need to get away from the office. 

2) Loose the Billable Hour -
It may have been a profitable way of doing business in the past, but there are proven ways that show lawyers can get a better ROI on their time and investment in their practice by <em>not</em> being in a billable hour environment. 

3) Understand That Practicing Law is Not Any Different Than a Regular Business -
It doesn’t matter if you are a solo, small firm, or a multi-national firm, you still need to understand overhead, payroll, management, administration, cost-per-employee, and other “business” activities to make sure you are in the black at the end of the month. 

4) The Practice of Law is Not a Boys Club Anymore -
Women are here to stay in this profession, and in many cases they are better than men in the courtroom.  Every individual brings certain qualities to the courtroom, male or female.  Women can also bring the rain into the firm just as much as a male, so they should get equal opportunities. 

5) Practicing Law is a Service, and Therefore Should Be Able to Marketed as One -
I know that marketing is a little taboo in the legal profession.  Not that it isn’t allowed, but just not like most any other business.  There are ethics that must be followed in any profession, but marketing your ability to be able to provide a service should not be as restricted as it is.  Firms need to understand that marketing is crucial to the future of the profession (as well as all mentioned above).  I know it is still in its infant stages, but lawyers need to understand that it can be done ethically, as part of everyday business, not be penalized than working on billable hours, and still be done right.

Those are my five things.  If we can get off this high horse of “if it isn’t broke, don’t fix it” attitude, the legal profession will be better off. 

Five by Five – Ann M. Byrne

 Here is a Five by Five contribution from Ann M. Byrne, author of the Quid Pro Quo blog. 

1. Rambo lawyering is out; civility is in.

Let the law be known as the profession where lawyers can be vigorous advocates and go out of their way to respectful and considerate to others. Lawyers would promptly return calls. Lawyers would keep their clients fully informed and encourage them to promptly and completely respond to valid discovery requests. Lawyers would adhere fully to the spirit and the letter of the court rules and rules of professional responsibility. Lawyers would cheerfully and graciously share tips, forms, best practices, and other information with other lawyers.

2. Lawyers and the law would embrace technology and new ways of doing things.

Many others have spoken far more eloquently than I could about technology and its role in the practice of law. I came to the legal profession from another career and had used computers intensively for years. I was astonished to see that only the secretaries had computers. I was amazed that the lawyers touched only the paper files and routinely misplaced their contents. I was stunned to see the index cards for checking conflicts and looking up case law. I could not understand how these people functioned. Everywhere I looked, people were drowning in paper. Things have improved some over the years I’ve been in practice. Yet, even today when I read the statistics on the number of lawyers who do not use any case management software, I am shocked.

Lawyers say they don’t have time to learn how to use a computer, a computer program or a feature of a program. Lawyers also say that the systems they use work quite well and that they see no need to change they way they do things. I am reminded of the industries that saw no need to change how they did business and which are no longer in business today.

Lawyers have little incentive to be efficient, especially if they work on a billable hour model. Other billing models haven’t convinced me, yet. Any way, very little of the practice of law is based on what makes sense or is efficient. The whole system needs to be revised and made more efficient and more modern. There are some bright spots of change on the horizon, which is encouraging.

The ability to successfully implement technology in the practice of law would, in my ideal world, be as highly valued as the ability to successfully try a case or the ability to write a cogent brief or the ability bring in clients. Lawyers and law firms would recognize that it takes many different abilities and skills to be successful in the practice of law. Each of those abilities and skills would be valued and considered when compensation and promotion decisions are made.

3. Lawyers and law firms would make a commitment to revamp the practice law; then execute their plans.

Staff would be included and will be valued participants in the process. Everyone would look high and low for all the things that we have always done that don’t need to be done and can safely be omitted. Then we would stop doing them. We would ask your clients which of the things you do for them that they don’t need, don’t want, or don’t find helpful. Then we would stop doing them. We’d ask clients what things we could do for them that would be more helpful to them. Then we’d look for ways to do them and we would start doing them. Then we’d look for inefficiency and waste. We’d figure out how to get rid of it. Then we’d eliminate it.

If we’ve been hankering to try something, we’d go ahead and give it a whirl. When we find the right situation, we’d make the time to get it done. Then we’d do it. We’d expect some things to not work out and we’d value what we learned from the attempt. We’d share what we learned, our successes and our misses. We’d make this revamping an on-going process until we had completely revised our practices, our courts, and our profession.

4. Lawyers and law firms would institute a sabbatical program for lawyers, perhaps along the lines of the MacArthur Fellowship, funded by lawyers and law firms for the benefit of the profession.

Everybody needs a break or a change of pace at some point in their careers. Why not allow lawyers to go work for a limited time to improve access to justice, to develop e-lawyering programs, to do pro bono work in an entirely different area of law, to help reinvent local, state, or federal government, to work on projects for courts, or to undertake some other worthwhile project. There are literally thousands of things that need to be done. Lawyers are wonderful problem solvers. Let’s figure out a way to tackle some of those challenges and get them resolved! What a great way to recharge our batteries and get a new perspective.

5. There will be laughter in law offices.

Most of lawyers I know have wonderful senses of humor and love the work they do. They see the humor in a funny situation and their peals of laughter are an elixir. May each of us be blessed with at least one good belly laugh a day. You just feel great after a good laugh. Have one along with your apple every day!

Five by Five – Ambivalent Imbroglio

The next contributor is the anonymous law student author of Ambivalent Imbroglio with this post:

 

1. Close down Lexis and Westlaw and bring an immediate and permanent end to for-profit legal research. The law belongs to the people, not Westlaw. The services now provided by these companies should be done by public employees paid by tax dollars, then the cost of legal research and representation would drop for everyone. See also Carolyn Elefant’s suggestion #1. Same idea, mine just goes further; instead of having one free Lexis/Westlaw account per library or school, every computer w/internet access should have free, unlimited access to the publicly-funded, non-profit replacement of Lexis and Westlaw. This new database should also be searchable by Google and any other search engine.

2. Dissolve the ABA’s cartel-like stranglehold on law schools and legal education. This would involve eliminating current requirements in most states that you have three years of law school before you can even take the Bar. Perhaps we should eliminate the Bar exam, as well. See Scheherazade’s suggestion #1 . But even if some sort of qualifying credential is required to practice law, it should not require any sort of formal training. If there’s a Bar exam or something like it, and you can pass it without a day of formal education, you should be able to practice law.

3. Reduce firm salaries and billable hours requirements by half, across the board, while at the same time doubling salaries for public defenders, legal aid attorneys, non-profit attorneys and all other “public interest” practitioners. That wouldn’t even the playing field, but it would go a long way. See also Scheherazade’s suggestion #4.

4. Make lawyers accountable for the work they do. I really don’t know how to do this, but perhaps a google-able database of lawyers and the cases they’ve worked on would go some way to making attorneys accountable for the work they’ve done to protect big tobacco, to help Enron rip off its shareholders and the American public, and convince the Bush administration that it doesn’t have to follow the Geneva Convention.

5. Require law schools do more than pay lip service to public interest law. Again, I’m not sure how to do this, but law schools need not be factories for producing BigLaw drones. For a start, professors who make jokes to their classes about how rich attorneys can get by screwing their clients should be fired. Becoming a lawyer should not be about making money.

Combined, my suggestions should go a long way to taking the money incentive out of the practice of law. Making the best available legal research free to all will reduce the overall demand for attorneys—more people will be able to do their own research and represent themselves. Freeing law schools from the dictates of the ABA will allow new schools to spring up, and eliminating the law school requirement altogether will allow the number of lawyers to skyrocket. All that great competition (lawyers love competition, right?) will mean no one will get much money. And, since legal research will be free, lawyers will be able to charge much less there, as well. Reduced firm salaries will become a necessity; therefore, law students will be much less motivated to go to BigLaw anyway. Plus, since they won’t be paying such high tuition (because there are more law schools and because some people won’t go to school at all to become lawyers), students will graduate with much less (or no) debt, removing another reason many people now go to BigLaw. Finally, if lawyers are forced to make a public accounting of the work they do, we’ll have fewer people writing terror memos and defending companies that destroy the environment and public health and all those other bad things. The world will be a better place, and all because of these five things.

What was it Aerosmith said? Was it, “dream on”?

Five by Five – Russel Trust

These Five by Five come from reader Russel Trust:

 1.  Law Firms should be limited to no more than 100
lawyers.
 Why have law firms turned into corporations?
Maybe because law firms don’t look like law firms,
they look like corporations.  There is no collegiality
when partners don’t even know each others names; there
is no professionalism when a law firm needs a CEO.  If
law wants to stay a separate, distinct manner of
business, it has to stop doing business like any other
corporation.

People hate corporations.  People had the anomie, the
isolation, the inhumanity of it.  Sure, it’s useful,
but only to a point.  Why do so many lawyers leave the
practice?  Perhaps in part because they can’t stand
the atmosphere.

True, 100 is still too large a firm size, but at least
it is a start.

2.  Abolish All Mediocre Law Schools.  One of the
reasons the practice of law is so troubled, is that
law firms can always find another monkey to do their
document review/boring research/etc.  There is no
excuse for a Stanford Law graduate to have to look for
a job when a Georgetown grad has a job.  The flood of
lawyers that the sub-par schools deluges the
profession with keeps salaries down and partnership
tracks long.

Thus, we should permanently close all sub-par law
schools.  I’m not just talking about Hastings and New
York Law School, I mean American University, Fordham
Law, Duke Law, et cetera.  Don’t try to tell me
there’s a “top 14″ these days.  Face it–there are
good reasons you were rejected by Harvard Law.  You
just are not that smart.

3.  Increase Pay of Government Attorneys.  Big time;
you want the best, you gotta pay for the best.  A lot
of lawyers would love to do work for the public
interest instead of helping some big company avoid
paying its taxes.  Those lawyers who do that should be
rewarded.

4.  Fully Fund the Public Defender System At All
Levels.
 Ineffective assistance for poor people will
lead to a fundamental undermining of the legal system.

5.  Cap Billable Hours At 1850. In the 1950s, the ABA
said that billable hours per year should be about
1300.  And now, with Lexis, Westlaw and the internet,
billable hours are supposed to be longer?  You’ve got
to be kidding me.

Working longer still does not equal working better.
The money-hungry part of the profession must be
capped, lest it drain out any joy.  Being a lawyer
does not mean being rich; it used to mean being a
member of one’s community, of playing a vital role in
society.  Just because asshole corporate lawyers have
perverted the practice, doesn’t mean we’ve lost
forever the lawyer-statesman.

Five by Five – Charles E. Petit

The first contribution to the Reader’s Edition of the Five by Five comes from Scrivener’s Error author Charles E. Petit.  His references are to the posts from Week Two.

  1. Simplify the ethics rules and then enforce them. The only ethics rules we really need are those that govern the behavior of military officers: “Thou shalt not lie, cheat, steal, or tolerate others who do” and “The appearance of a conflict of interest is a conflict of interest until proven otherwise.” There can certainly be regulations that define administratively how to comply; but they need not include unenforced (and unenforceable) rules like MRPC 4.4. Really, now: when is the last time that you know of an attorney who was actually disciplined for harassing a potential witness? And, conversely, when is the last time that you know it happened? (Statistically, about thirty seconds ago.) In this state, disbarments are almost always for one of three classes of “offenses”: comingling or converting client funds (even if there is no harm and it is corrected), a felony conviction, and offenses related to substance abuse (even if not so charged). Please don’t tell me that everyone is following all of the other rules, unless you really want to see coffee all over the front of your clothes.

    As an obvious corollary, whatever rules we do have must be realistically enforced equally against everyone. Being a bee inside of a big law firm should not excuse anything, contrary to the assumption of MRPC 5.2(b). That’s the “Nuremburg Defense” writ large. Similarly, it shouldn’t matter whether one is representing a plaintiff, a defendant, a government agency, an administrative claimant, a buyer, a seller, a securities issuer, or whomever; one’s duties are the same, and one should be held equally accountable. That’s not to say that every transgression justifies disbarment, or even discipline of any kind; people do make honest mistakes, and sometimes circumstances leave an attorney no “acceptable” course of conduct. It is to say, however, that the nature of one’s clientele should not diminish one’s responsibilities.

  2. Reinforce that clients are people, not causes. This is one place that I think the case method does active harm. When we read cases in textbooks—especially those that are followed by a string of hypotheticals, each linked to one or more other cases—we lose sight of what a lawyer really does, and for whom. Consider, for example, the story I told about Jenkins some time back. If one looks just at the opinion in some casebook, one might think that somebody other than lawyers won. I’m afraid not; winning in the Supreme Court just resulted in a remand, followed by another appeal (this time unsuccessful for the plaintiff).

    Instead, at some point—and I think it vital that it be earlier rather than later—law students need to learn that there are people behind every lawsuit. Even when there are corporations involved, those corporations don’t act for themselves; instead, there are people who make decisions to act (or not). There are costs to litigating—and, sometimes, to not litigating—a dispute, or to contract and transaction negotiation, that go far beyond the attorney’s fees in the case. Perhaps this is more an indictment of our courts’ turn toward law and damages as the only appropriate means of decision, disfavoring equity and equitable remedies (which are hellaciously difficult to value in a contingency matter!). It is absolutely, however, an indictment of the “black-letter law” result of most casebooks.

    This is perhaps more obvious to me than to most attorneys, because my clientele is intensely emotionally involved with every dispute, whether actual or potential. Books (and articles, and songs, and symphonies, and paintings…) are children to their creators, being sent out into the world. Some parents are abusive or neglectful; but not most. Most care deeply—often too deeply from an “objective” point of view—about how their children are treated, even after they “leave home.” The emotional cost of copyright litigation is often far, far greater to the actual creator of a work in dispute than is any possible financial reward; conversely, the emotional cost of doing nothing can be unbearable.

  3. Adopt the Louisiana Rule for naming parties in interest. Ernie Svenson can correct the details if I get them wrong, but Louisiana requires that insurance companies that may have either exposure to damages or a duty to defend be named as parties in interest in civil suits. This is the tip of the iceberg; leaving aside “John Doe” lawsuits, I think that all parties in interest should actually be named in lawsuits. Not just “Melinda J.,” but her “next friend”‘s name too. The business about “the existence of insurance coverage inflaming the jury against the big corporate defendant” is both hogwash and counterintuitive. There are very, very few people who don’t believe that almost all corporations have insurance coverage for anything for which they’re sued. And it’s not just corporations; it’s drivers, and doctors, and law partnerships, and… So we’re kidding ourselves if we try to pretend otherwise; and self-deception does not make for good resolution of disputes.
  4. Eliminate state regulation of the law in favor of a national system. With teeth. Scheherazade (point 1) and Carolyn Elefant (point 5) argue persuasively concerning interstate restrictions to practice. I do not think they go far enough. If we are taught “black-letter law” in law school, and that is all that is required for the [unbelievably foul and offensive expletives concerning the parentage of the authors deleted] multistate “bar exam” and multistate “professional responsibility exam,” then that should be good enough to have a license to practice. Instead, all of the resources that go into those worthless exams and state-by-state monopolies should be poured into a meaningful character and fitness examination, perhaps a mandatory six-month internship following graduation before granting the license to practice, and programs that will benefit clients. Sure, states are going to have procedural and substantive quirks in their laws; for that matter, so do federal courts. Just try filing a late amicus brief in the Seventh Circuit if you’re used to doing so in the Ninth Circuit and see what happens! The point is that basic qualification does not, and should not, depend upon those quirks; that’s what day-to-day research teaches. If a given state bar wants to require a ten-hour CLE-like course on state civil procedure and highlights of substantive law, that’s fine, and probably a good idea. Division of territories that, but for the legal profession’s avowed (and illusory) “self-regulation,” would be per se antitrust violations is not.

    State-by-state regulation also creates some serious problems of its own, particularly in cross-border situations. It’s not just a case of “reciprocal discipline” being at one extreme nonexistant and at the other draconian. It’s that the differing standards create a bar with isolated but insulated pockets of both competence and incompetence, obscene expense and market rates so low that it’s difficult to support a family.

  5. Give the judiciary the support and respect it deserves. Judges at any level are among the most poorly paid members of the legal profession when compared to their responsibilities. “Doing more with less” really means “doing more for the big cases, because I don’t have the time to give to little ones.” Most judges work tremendously hard and tremendously long hours, and frequently agonize over decisions far more than do the lawyers in front of them. Consider this statement: “the Court itself spent easily over one hundred hours researching the law and analyzing the evidence in the instant case and reached its final decision after months of careful consideration.” Admittedly, this was in a matter that everyone involved agrees was cutting-edge, and resulted in a summary judgment opinion noting in the first paragraph that it “presents a question of first impression in the Ninth Circuit.” But even when the law is clear, the facts may not be; or the application of the law to the facts may not be; or the balance for admission of an expert’s opinion between relevance and prejudicial effect may not be. If something reaches past the dismissal stage, there is almost by definition at least some potential merit to both sides’ positions.

    Ernie (point 2) understates the case, if anything, for appointment of judges. It’s not just the potential influence of campaigns, campaign contributions, and so on; it’s the appearance of partiality aside from the money. I live in a largely rural area, which means rather conservative and law-and-orderish. At least two judges currently sitting on state courts in this area were elected based on platforms promising to be “tough on crime.” What does that say to a defendant, particularly a poorly educated or non-English-speaking defendant, about his chances for a fair trial in front of those judges? It’s the appearance of impropriety here that is enough to call the concept into question. Then there’s the constitutional question—one largely punted to date—of whether an elected judiciary is a “Republican Form of Government” (Art. IV, § 4), when the only example of such at the time the Constitution was drafted was the Constitution itself, with its appointed and tenured judiciary.

Five by Five – Kevin Heller

Kevin Heller, author of Tech Law Advisor writes a response to my second Five by Five only “half tongue in cheek.”  Check it out here.

Two by Four to take on Five by Five?

Proving the adage imitation is the sincerest form of flattery, Dennis Kennedy announces his new “Two by Four” feature:  

The Two By Four ™.” It’s based on the old mule training proverb that you need to whack a lawyer, er, mule with a two by four just to get the mule’s attention. It will be a weekly collection of of four items from two well-known experts of things that most businesses already know or are already doing that it will take a whack from a two by four to get lawyers and law firms to pay attention to.

Dennis is a great friend and has been one of those fantastic acquaintances I’d never met but for this blog.  I do need to check with at least one intellectual property lawyer to see if he’s infringing, though.

(This is my first test trying out BlogJet — If it works, I’ll write more).

Five by Five – Third Edition

Been cleaning up the blog a bit today. Dennis Kennedy suggested I make it easier to link to each edition of the Five by Five, so I’ve added individual categories for each week’s group of posts. Week One is here. Week Two is here.

I’ve also cleaned up my sidebar a bit and am working on editing the rest of my categories down to a manageable ten or so. If the maintenance results in a rehash of old posts for those of you reading the RSS feed, I apologize.

I’ll also have the new Five by Five up by tomorrow. I’ve gotten several great suggestions on how to improve the practice of law and I can’t wait to share them.

Administration and Other Stuff

A few things:

First, my new Weekly Five is up today. I need to rename the list (in my sidebar) because I don’t want it to be confused with my Five by Five feature.

Second, if you are expecting an e-mail from me, a lot of spam filters are bouncing my e-mail provider. I’m trying to get that sorted out today.

Third, today my site will have its 15,000th visitor. Now, I know that the Typepad statistics are somewhat misleading (no measure of rss and atom feed views), so I don’t know if the fifteen grand number is at all realistic. I’ve been blogging since the end of January of this year, and posted my 200th item this week, so I’m pretty happy about the response from everyone and I wanted to thank all of you for visiting, commenting, and reading the stuff I post about.

Clock Watching

Here is a clock that causes you to waste time.

Quote of the Week

“People may not remember exactly what you did, or what you said, but they will always remember how you made them feel.” – Unknown (via Mariano Delle Donne’s Blog)

Next Week’s Five by Five

The response to this week’s Five by Five has been so overwhelming, I’m opening it up to everyone. Leave a comment in this post, or e-mail me with your answers to this question:

If you had the power to change five things about the practice of law, what would you change?

I’ll post the responses next Monday, along with my own.

Googlize your Firm

Anyone who is anyone has been given several G-mail invites to hand out like exclusive backstage passes(I don’t have one yet, so that confirms my belief that I am not anyone). Google has gotten people talking about their service (that is going to be free anyway) for months before its official rollout.

This got me thinking about what my firm could give away to build buzz and get our new name out there. I don’t want to just give away trinkets, mugs, calendars, etc. Instead, weve been thinking about doing small business incorporations for free. No strings attached. Of course, we’d pitch our monthly service pricing package to each small business and hope they’d retain us as their counsel. We might even pay the $150 filing fee to the Illinois Secretary of State out of our own pockets.

Why do I think this might work? Well, not everyone gets the deal. We limit the number we do every month to five or so, and businesses that want their free incorporation must apply by giving us a business plan or some other evidence they are likely to be around for a while. So, even though we are doing the work for free, we are getting to pick the applicants most likely to succeed and become long term clients. Mirroring the G-mail plan, current clients will get anywhere from 1-5 “invites,” and anyone who is referred by an existing client automatically gets one of the free monthly slots.

All of the month’s clients will have to come to a seminar where we cover the basics of incorporation, so we don’t have to cover the basics with each one individually. We’ll even bring in a CPA to cover tax issues with them.

Assuming we can cover ourselves from a malpractice standpoint, we will essentially be paying $150.00 (plus the time, of course) to acquire a new client and build goodwill. I’d love your comments.

Five by Five Bonus – David Giacalone

We have a bonus contributor to this week’s Five by Five. David Giacalone, former author of the EthicalEsq. weblog and current proprietor of haikuEsq. chimed in with these five ideas:

1) A renewed commitment by the individual lawyer and law firm to accept only work that can be done diligently and competently.

2) An acceptance by law firm management of the responsibility to create an ethics-friendly and client-friendly environment (which will often mean lower hour/fee targets for each lawyer).

3) A realization that “the client comes first” applies to fees, too, and does not mean that the lawyer gets to $cr*w the client.

4) An effort to take full advantage of the digital revolution in ways that mean better service for clients, while sharing the cost savings, and permitting willing clients to perform as many functions/tasks as possible for themselves.

5) And, corny as it may sound, the renewed understanding that lawyering is a profession first and a business second; folks who switch that priority should be urged to look elsewhere for a livelihood.

Fully embracing suggestion (5) would make (1) to (4) inevitable. It would also mean vigorous efforts by the legal profession to use the digital revolution and self-help law to make civil justice available to all Americans.

Five by Five – Ernest Svenson

Most of you know Ernest Svenson by his nickname (and blog), Ernie the Attorney. Ernie’s one-line bio says, “I’m a lawyer who likes change; I may have chosen the wrong profession.” Ernie is an business litigator and blogger extraordinaire. Here are Ernie’s Five:

1) Modify the contingency fee system to eliminate the conflict of interest that often arises when an attorney has a stake in the outcome of a case that is dependent on physical injury to a client or the client’s relative.

2) All judges should be appointed (not elected), or at a minimum disallow financial contributions from lawyers to judicial campaigns.

3) Create official video recording of all open court proceedings (this will encourage better behavior on part of attorneys and judges and be used against those who are incompetent, sleeping in court, or otherwise not behaving in a civil manner).

4) Wi-Fi in all courthouses and allow attorneys to bring in laptops and cell phones, but sanction them if they disturb proceedings by having phones ring or if they use the camera phone feature in violation of a court rule.

5) Eliminate requirements that attorneys get minimum hours in CLE for ‘civility’ or ‘professionalism’. I support efforts to enhance the profession by proclaiming that professionalism matters, but you can’t legislate behavior that is aspirational. If it’s not an ethical requirement then the people who are the problem are going to keep doing what they are doing (and they would probably do it even if it WAS required).

Five by Five – Evan Schaeffer

Evan Schaeffer is the author of Notes from the (Legal) Underground. I knew Evan as a lawyer before I knew him as a blogger, as he and I both practice in the Judicial Hellhole known as Madison County, Illinois. Evan thinks I asked him to participate in this week’s Five by Five because he and I are friends. Truth is, Evan has carved out a niche in the blogosphere as a funny and insightful commentator on our legal system. Evan’s other blogs, the Illinois Trial Practice Weblog and the Illinois Personal Injury Weblog focus on his plaintiff’s personal injury practice. Here are Evan’s five ideas:

Here are five ideas for changing the practice of law, each designed to make depositions more civil, presented in the form of a memorandum to a typical lawyer-opponent:

1) You and I both know that speaking objections aren’t allowed. Yet you and I will both try to slip a couple past anyway. Idea: Let’s agree we’re going to continue violating this rule, if that’s what it’s going to take to make us feel like real lawyers, but let’s also agree to stop if either one of us calls the other on it. Then we shouldn’t do it anymore for the remainder of the deposition.

2) You and I both have lots of documents to exchange. But is it fair to dump them on one another just before a deposition starts? Idea: Let’s give each other documents at least a week before we know the other will need them, assuming a timely request has been made.

3) You and I are both very tired. Like many lawyers, we’re sleep-deprived. That’s why our deposition could disintegrate into a shouting match after only about a half hour, even though we’ll both regret it later. Idea: Let’s try to get more sleep, and let’s quit shouting. Shouting doesn’t accomplish anything.

4) You and I both know how to use the phone, even if we don’t know the judge personally. So why are we constantly threatening to call the judge, rather than just picking up the phone and doing it? Idea: Either call the judge, or don’t call the judge, but let’s stop threatening to do it unless we’re going to follow through.

5) You and I are both much more experienced than the new lawyers coming onto the scene. If we wanted to, we could run rings around them. But do you remember how nice it felt as a young lawyer when an older colleague helped us out a little? Idea: Go easy on the young lawyers, because we were young lawyers once ourselves.

Five by Five – Denise Howell

Denise Howell is the author of the Bag and Baggage weblog, and is one of the pioneering legal bloggers, having started Bag and Baggage in 2001. She is an appellate and intellectual property lawyer with a large Los Angeles law firm. Denise’s Five by Five:

1) Law should be practiced like yoga is practiced. Yoga practitioners know that the way to progress is to seek out the masters–those who have acquired, through time, dedication, and experience, skills so incredible they play havoc with the laws of the known universe–and work with them day in and day out. Yoga practitioners know to give their fellow practitioners plenty of space and respect. They learn by thoughtful and constructive critiques of their efforts, not abstract PowerPoint bullets and fly-ins. They know how to nurture their competencies and push their weaknesses to and beyond a new edge. “You may notice your mind shuts down when confronted with a challenge. Trust your intuition. Find a deeper resource.” My yoga instructor gave this advice while holding the class in a particularly long camel. It applies just as well to the tough spots that comprise a lawyer’s day. It makes little difference what law school someone went to, or how well they did in their class. The most law school provides is a rudimentary toolbox; someone needs to show you how to use the tools.

2) Just blog it. Just syndicate it. Lawyers have been trying to blog and syndicate their Web offerings since they first put up their original (pretty horrendous) sites–they just don’t know it yet. When they finally figure this out on a large scale, we’re going to be in for a sea change in how lawyers communicate with each other and the world. Blogging–both behind the firewall and in public–is good for lawyers in so many ways. It’s good for writing and research skills. It’s good for visibility and accountability. It’s good experience performing on a larger stage. And it’s not just good for lawyers, but the rest of the world as well. Blogging lets lawyers wrestle–in an open, accessible way–with difficult issues that matter to society at large. It lets lawyers provide front line reports from important legal proceedings the mainstream press might overlook or is ill equipped to handle with the same level of expertise.

Syndication takes all this visible and user friendly goodness and makes it even more so. Lawyers were scared of email when it first arrived; now it’s indispensable. So too it will be with blogging and syndication, and the sooner the legal field gets this, the better. As Seth Godin writes in his 07/04 Fast Company column, Rules for Off-Roading at Work: “Far better to be a lot less showy and a lot more bold.”

3) Law is a knowledge business; treat it like one. The legal world historically has chased would-be clients to financial centers, leased expensive space, insisted its minions put in long hours there, and hoped this would somehow help the bottom line. The fact is this strategy serves no one, including actual and would-be clients. I’m not saying firms should abandon their downtown office space, but they should be cognizant and supportive of how their own personnel and their clients actually work (or would prefer to work, given the choice). This means satellite offices and support facilities in areas closer to where people live. It means underwriting home and mobile office expenditures. It means helping lawyers achieve a balance between family and work by helping remove the roadblocks on both ends.

4) Leading, not bleeding.
This point follows from the last. If law is a knowledge business, lawyers have to find ways to be on the leading edge of available technologies and not perpetually clinging to antiquated, yet “proven,” IT. If the legal field would otherwise steer clear of something invaluable like wireless networking, due to security or compatibility issues, it needs to bring its considerable spending clout to bear to help drive development in the right direction.

5) Bottoms up. Remember those junior people with the rudimentary toolbox from point one? Just because they have much to learn doesn’t mean they don’t have much to teach. The same goes for all the non-lawyers in the legal field. These are the profession’s best ties to the real world. The practice would greatly benefit from giving them a greater voice and greater participation in policy decisions. (Bottom up reviews are one idea. Blogging behind the firewall is another.)

Five by Five – Scheherazade Fowler

Up next is Scheherazade Fowler, prolific author of the Stay of Execution weblog. According to her bio, she is a “young lawyer, an extrovert, and an insatiably curious woman living in Portland, Maine.” Scheherazade’s contribution to this week’s Five by Five:

1) Abolish the bar exam. It’s nothing more than ridiculous hazing. We all know that nobody remembers anything they learn for the bar exam, that the things everyone learns for the bar exam aren’t the law anywhere except for some fictitious “Multistate” jurisdiction that doesn’t conform to any actual place, and that the bar exam tests only one’s ability to outwit a particularly devious multiple choice testing service and/or a temperamental and unpredictable group of bitter essay graders. It has nothing whatsoever to do with functional mastery of subject areas, with compassion, judgment, or preparation to help clients. It instead serves the following functions: A) it enriches Bar/Bri, and perhaps a few lesser-known bar prep services, as well as the authors and graders of the exam. B) It empowers the bullies at the Board of Bar Overseers, who hassle and sneer at any nontraditional applicants, or people have life experience or pasts that might have given them wisdom or direction prior to entering the career of law. C) It keeps bright, qualified, ambitious, energetic young applicants off the market and in misery from May through August, without letting their energy, enthusiasm, brains, or knowledge benefit the profession, and without letting them learn any practical skills at all. Instead, they get sick to their stomachs and devote their days to memorizing the difference, according to the strict Multistate Bar Examiner Rules, between a springing executory interest in land and a shifting executory interest in land. D) It keeps bright, qualified, ambitious, energetic applicants in limbo from July through late October, wondering whether they’ll get the nod or whether they’ll instead have to repeat the misery. This benefits nobody, not the students, not the legal profession, and not the clients or the existing pool of lawyers.

There might be some good reasons that something like the bar exam was conceived. Maybe it was meant to be a means of testing basic competency in certain subject areas. That’s a sensible function. It seems to me that if a degree from an accredited law school doesn’t serve that function we as a profession might think about looking at the core curriculum of these accredited law schools instead of inventing a ridiculous test. Or we might test core competencies in subject areas and let people take those tests following a semester or year of study of the subject matter—when it’s likely that such knowledge has been learned in a way it might actually be retained. Demanding that people shovel huge amounts of obscure knowledge covering twenty or thirty subjects into their heads for a one-time test is almost a sure-fire way to minimize retention. This seems to undercut the stated goal of minimum mastery of a subject area. Or maybe the unstated goal of the bar exam is less noble: maybe the bar wants to keep these new lawyers off the market a little longer. There are still better ways we could do that. We could at least require them to apprentice to us for slave wages, like the medical profession requires of its residents. That would be more intellectually honest than pretending we are asking them to prove themselves when we’re just stalling. Or we could require them to do pro bono work, so that their talents and energy would perhaps be of service to human beings in the world and could provide them with useful skills, and would still keep them out of our hair for six months or so before we’d have to compete with them on the merits. But instead we ask them to learn obscure nuances that aren’t even the law in any jurisdiction, and that we all expect them to forget the day after they have taken the exam. This, to me, is the cruelest and most senseless act of hazing that the legal profession engages in. There are many alternatives to the bar exam, all better than the current system. The fact that we don’t change it is an indictment of the profession—our blind conservatism, our fear of change, our fear of young minds, I don’t know what. If the purpose of the bar exam is to keep the young graduates out of the profession, shame on us. If it is to require them to attain useful practical knowledge, let’s get real. Do you remember anything you learned for the bar? I don’t. Why do we make people do it?

2) If I had some money, and I were in charge of a big law firm, I would absolutely do the following two things. I would immediately abolish my summer associate program, and with the seven or eight hundred thousand dollars or more that I would save on salaries and lunch tabs, etc. over the course of a summer, I would set up a shop in India, or Romania, or perhaps even Ireland if the exchange rates were decent. And there I would set up a nice document review, research, and writing shop. Why on earth would I pay inexperienced people $2500 a week to do work that I could have done for a fraction of the cost, by well-educated, intelligent, English-speaking talent—talent that can work all night long and get me an answer in the morning because of the wonders of time zone differences. There’s not any kind of imperative that research, writing, and document review take place on site; a .pdf and a Westlaw password are pretty transportable. As head honcho at BIGLAW, I am aware that only a tiny fragment of my associates are going to last more than three or four years—neither they nor I have any illusions that this charming courtship will really lead to a long-term commitment. Why on earth should I take on that overhead? Why would I wine and dine these people who are, essentially, extremely expensive resources that are hardly irreplaceable. No, I’d eliminate the summer associateship and instead invest in smart folks overseas who can do more work, year round, at a fraction of the price. Like these guys are doing. Expect it.

To be honest, if I ran BIGLAW I’d have some grave doubts about whether I was meeting my fiduciary duties to my clients if part of the overhead of my firm were these lavish summers. And if you’re a client, why on EARTH are you paying fees that let your law firm take law students out to $100 lunches? Why are you paying for fountains and town cars and tickets to baseball games? How does this help your shareholders? If your law firm is profligate with its money, that means you are paying that firm too much. Invest in the firm that is thinking about how to bring value to you. I expect in the future that value is going to be offshore. Legal research, writing, and document review can and will move to smart folks who can do it for less money. If I ran a law firm, I’d be leading that trend. Those who will resist will couch their resistance in terms of “prestige” and “reputation” and wave their hands around saying “you don’t know what you’re getting if you farm out this kind of work.” These appeals to an ill-defined notion of “quality” will work perhaps for a little while, but ultimately are doomed, because the truth is that a lot of the work young lawyers do isn’t rocket science, and even if it were, talent is not the exclusive province of three or four New York law firms. It just isn’t. Knowing this, I would want to be the first “prestigious” law firm brand to exploit a worldwide talent pool and an extraordinary wage differential. That firm will be positioned to make great profits in the near term, and to be nimble enough to compete when savvy clients demand truly competitive rates.

3) I don’t think I fully understand the connotations of the word “profession” when people say that “Law is a Profession.” It appears to be used to imply something noble, exclusive, honorable, and dignified. That’s cool. I agree that law is a profession in that way. We’re all working to help sort out the consequences of human decision making, and the social consequences and procedures around decisions that are challenged. That’s a noble goal, and all (or most) of us doing it are doing something highly worthwhile. It is service in the best sense. But sometimes I hear the term “professional” used as a means of bullying someone into conformity, a way of expressing discomfort with informality or stylistic or aesthetic differences. Like the article on law blogs that suggested that it might be okay for a lawyer to blog about the hobby of sailing, but that it might not be professional to blog about an interest in NASCAR. I think that is a hijacking of the term “professional.” All of us, if we’re pursuing the highest good of the law, in a way that is courteous and thoughtful and earnest, are “professionals” paving a noble road. The style a person brings to that endeavour, the way he or she dresses or speaks while doing it, that’s not appropriate fodder for attack. To the extent some people in our profession use the idea of a “profession” as an excuse for conformity or a silencer of innovation or honest expression, I think that is wrong.

4) We should be more ashamed of ourselves. I am a capitalist at heart, and I don’t believe in government-induced salary caps, but I do think that social mores are powerful and that greed is ugly and shameful. I think there should be a real sense of social shame if you are earning more than 10 times more than the lowest-paid person in your office. Maybe that multiple isn’t right—maybe it should be 8 times, or maybe it should be 15 times, I haven’t thought through the multiple. But there should be a point at which people are just ashamed to look their assistants in the eyes, or the guy driving their cab or painting their house. Ashamed to look the court clerk in the eyes. I think many people in the legal profession are past that trigger point, whatever it is. Do we lawyers really think 10 minutes of our time is six, eight, twelve, forty times more valuable than 10 minutes of a fellow human being’s time? If we do, we should be ashamed of ourselves. And if we don’t we shouldn’t bill people as though it were.

5) Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm. That’s a clear, measurable, statistic that I argue is relevant to the measure of the success of a firm and the attorneys within it. What if having lawyers with intact families were part of the measure of the prestige of a law firm?

Five by Five – Carolyn Elefant

First up in this week’s Five by Five is Carolyn Elefant, solo practitioner, and author of the My Shingle weblog. Carolyn’s site is more than a blog. She’s collected hundreds of links and resources for lawyers looking to go out on their own.

So, Carolyn, if you had the power to change five things about the practice of law, what would you change?

1. Every law school and courthouse library should be required to make full service LEXIS (not the junky lexisone service currently available free) and Westlaw, i.e., all the libraries and citation service, available at no cost on at least one computer. In fact, law schools and courts should make a free LEXIS and/or Westlaw (or both) account a condition of taking service from these companies.

To me, this proposal is really a no-brainer – and frankly, I don’t know why there hasn’t been an outcry for free research service by the bars, law libraries and the courts. Access to free legal research service in this manner is the cheapest way that I can think of to improve the quality of legal services for all. Many solo attorneys do not have access to this type of service and either rely on “manual” research which is incredibly time consuming and not nearly as effective (even law librarians will resort to LEXIS to answer questions rather than stumble through the decennial digests – and they are supposedly research experts) Moreover, the ability to run a search not only in one’s own jurisdiction – but across the board and to search law review articles might give practitioners ideas on arguments that they might raise. I would even go so far to argue that death row clients might not be there had their attorneys had access to LEXIS and Westlaw which would have afforded a whole range of issues to raise during a capital trial.

LEXIS and Westlaw already offer full service LEXIS and Westlaw packages to law schools for so-called “academic” purposes, so free service is not unprecedented. Moreover, it’s not as if these companies would lose customers by giving away service for free. Biglaw attorneys – and indeed, all attorneys with a decent budget – are always going to purchase some computerized research package to have 24-7 access and avoid a possible line at the free kiosk. Moreover, free LEXIS and Westlaw in libraries and courthouses would also give the general public a way to research the law, which after all, belongs to us.

2. The bar associations ought to encourage more mingling and cooperation between big firm, small firm and government attorneys.

I’ve said it before, but what I love most about the blog-o-sphere is the conversation and discourse between biglaw, solo and government attorneys. That’s something that I’ve never experiences with the bar. In fact, there’s very little crossover between big firm and small firm lawyers at least where I practice – and my experience, I don’t think, is unique. For example, on a trip to Boston this past fall, I visited with two friends who are biglaw partners and neither even knew a solo practitioner.

I realize that some of the segregation is self-selecting. For example, a solo might not have any interest in a bar committee on corporate securities law while a biglaw attorney would not be inclined to join a bar section on general practice. Still, one would think there would be opportunities for solos and biglaw attorneys to work together on pro bono projects. However, (at least in my area), what typically happens is that one law firm will man a legal clinic for an evening. And frequently, when the bar or a legal aid group assigns a large pro bono matter, it will be handled by one firm. Why not staff the matter with, for example, a solo attorney, a government attorney and a biglaw attorney? Solos and government attorneys might also be more inclined to accept a pro-bono matter if they could work with a biglaw attorney who could more easily cover most of the costs.

All of us – biglaw attorneys to solos – share the law in common. We can learn from each other and gain a new perspective if only there were more opportunities for interaction.

3. E-filing at every court with searchable data bases.

This is a dream, I know, but every court should aspire not only towards a robust e-file system but also one where attorneys can perform word searches to pull documents from court files. The federal court developed an e-file system in-house and it has drastically cut my work load and likely that of other users. But the cases that are filed – and all of the pleadings only searchable by party name or docket number, possibly case type. Users can’t use a word search to find documents with arguments that might relate to their cases. As a result, there is a wealth of information – pleadings with legal arguments, maybe even factual information about parties who’ve been in litigation before which is still impossible to find unless you know what case you’re looking for. What a waste to spend so much money on e-filing and only have it reach half its potential.

Also, relatedly, I have noticed that at least one court where I practice is now watering down e-filing and requiring attorneys to send paper copies of documents over 25 pages which is a minor annoyance. Let’s not go backwards on this.

4. Modify the case method as taught in law school.

I don’t advocate abandoning the case method system – after all, that’s pretty much what we attorneys need to do in our careers- understand the principles in cases and analogize or distinguish them to build our arguments to the court or advise our clients. Still, to get students thinking more about how the judge reached a decision, I’d take at least one case in every course and really analyze it in depth – review the complaint, the pleadings – all materials readily available in the court file (which should be much easier now that we have e-file). I’d have students look at the briefs – many will be surprised to learn that courts sometimes don’t address certain arguments – or mischaracterize others. Perhaps students will identify certain factors – like a sloppy, typo-ridden brief or a nasty tone – that may have influenced a judge to rule one way or another. I realize that after law school, some students take on clerkships and learn this anyway. But most other law students will never have an opportunity to examine cases in this way. And, this is one exercise in practical lawyering where law professors (many of whom have never worked at a legal job) could actually be of value, since most, if not all have held clerkships and could provide insight into the judicial decision process from that perspective.

5. At a minimum, allow lawyers who have practiced law for more than three years in one state to automatically be eligible to practice in any other state touching their jurisdiction. (so for example, a DC attorney could automatically practice in Maryland and Virginia after 3 years).

I understand that bars want to uphold professional competence standards and all that, but frankly, it is just ridiculous for attorneys admitted in one state to have to either take another bar exam or fill out a lengthy admission form and pay hundreds of dollars in fees (as well as annual dues) just to go to court on the other side of the border. And pro hac vice motions don’t help much either because in many jurisdictions, the attorney of record has to appear in court with the foreign attorney anyway.

Five by Five – Second Edition

This week’s Five by Five will follow this post. The question of the week:

If you had the power to change five things about the practice of law, what would you change?

Without further delay, here we go!

Pricing New Services

My partner and I have been struggling with pricing our new services. We are offering a monthly price to clients for a set range of services, including unlimited phone calls and weekly meetings (if requested by the client). I’ll post more on our full business plan later, but this article on pricing really resonated with me. From the article:

How much should you charge for a new product? Charge too much and it won’t sell — a problem that can be fixed relatively easily by reducing the price. Charging too little is far more dangerous: a company not only forgoes significant revenues and profits but also fixes the product’s market value position at a low level. And as companies have found time and again, once prices hit the market it is difficult, even impossible, to raise them. In our experience, 80 to 90 percent of all poorly chosen prices are too low.

Companies consistently undercharge for products despite spending millions or even billions of dollars to develop or acquire them. It is true that businesses and private consumers alike are demanding more for less; the prices of personal computers, for example, have been pushed downward despite their higher processor speeds and additional memory. Global competition, increased pricing transparency, and lower barriers to entry in many of the most attractive industries have contributed to the trend. But these are not the only problems. Many companies want to make a quick grab for market share or return on investment, and with high prices both objectives can be harder to achieve.

These concerns encourage companies to take an incremental approach to pricing: they use existing products as their reference point. If a new offering costs 15 percent more to build than the older version does, for instance, they charge about 15 percent more for it. Particularly in consumer markets, they might set the price slightly higher or lower than that of their main competitor.

The incremental approach often underestimates the value of new products for customers. One of the first makers of portable bar code readers, for example, calculated how much more quickly its customers would be able to assemble their own products if they used portable readers. The company then took the price of the older, stationary readers and raised it proportionally, solely to account for the time savings. This strategy also fit in with the company’s desire to penetrate the market quickly.

But by using an existing product as the reference point, the company undervalued a revolutionary product. The portable reader not only improved existing processes but also enabled companies to redesign their supply chains. Portability and instant access to information prepared the way for real-time inventory control, vastly improved logistics planning, and just-in-time deliveries, thus eliminating the need for large inventories. Buyers quickly recognized a bargain and flocked to the low-priced product. The company, which couldn’t keep up with demand, not only failed to capture the full value of its reader but also set the market’s price expectations at a very low level. A single bad decision easily erased $1 billion or more in potential profits for the industry.

There is some really great stuff here. I’m not suggesting raising prices is always the right course, but if you offer a revolutionary service or product, don’t sell yourself (or your service) short.

From CFO.com via this post from Rob at BusinessPundit.

Advice to New Lawyers:

Chan Stroman has a great post on her Commercial Leasing Lawblog reflecting on the seventeenth anniversary of her law school graduation. Her advice to new lawyers:

“Know the difference between rabbits and elephants.” When you’re a hammer, everything can look like a nail, but not all nails are created equal. The best thing a lawyer can do is to learn what’s relevant to the client, from the client’s perspective, and exercise judgment in focusing on what’s important to the client (the elephants) and not just dot i’s and cross t’s (the rabbits) for the sake of dotting and crossing. You can actually add value by helping the client see “elephants” that they would not have been able to see but for your expertise—and your efforts to understand what’s important to your client.

Can your law firm answer these questions?

Sam Decker alerted me to this article from Entrepreneur Magazine. Read Sam’s post or the article for the whole story, but these ten questions stood out. Can you or your law firm answer them?

1. What exactly is my product or service?
2. Who exactly is my customer?
3. Why does my customer buy?
4. What does my customer consider value?
5. What is it that makes my product or service superior to that of my competitors?
6. Why is it that my prospective customer does not buy?
7. Why does my prospective customer buy from my competitor?
8. What value does he/she perceive in buying from my competitor?
9. How can I offset that perception and get my competitor’s customers to buy from me?
10. What one thing must my customer be convinced of to buy from me, rather than from someone else?

Five by Five – Second Edition Preview

After an incredibly successful first “Five by Five,” I’m proud to announce that the second edition will be up on Monday. The question of the week is:

If you had the power to change five things about the practice of law, what would you change?

My panelists for the second edition are among the most influential and prolific legal bloggers. They also are really nice, cool people. They are:

Carolyn Elefant (My Shingle);
Scheherazade Fowler (Stay of Execution);
Denise Howell (Bag and Baggage);
Evan Schaeffer (Notes from the Legal Underground); and,
Ernest Svenson (Ernie the Attoney).

Tune in next Monday for their Five by Five.

Five by Five – Jennifer Rice

Last but not least are the wonderful suggestions of Jennifer Rice, the author of the What’s Your Brand Mantra? weblog, and president and founder of Mantra Brand Communications, a brand strategy consultancy representing the voice of the customer within client organizations.

1. Focus. Pick a group like women business owners and learn what their needs are. The deeper you can understand a small group, the more effectively you can win business. You’ll begin attracting more new clients within that group because you’ll have built credibility and trust among other women just like them. Be sure to collect testimonials!

2. Find out how they perceive lawyers. Ask what their previous experience has been with lawyers; if they’ve had a bad experience, find out why. This will tell you what objections (logical and emotional) that you’ll need to overcome. You’ll be light-years ahead of the pack simply by finding out where she’s coming from.

3. If you’re a male attorney, check out how female attorneys market to women. Or find a female attorney with whom you don’t compete directly; learn new ideas and tag-team at networking events. Female attorneys are probably your strongest competition; personally, I prefer to work with women because the perceived trust level is higher. But a non-competing female attorney (or other professional like a CPA) can be a great advocate, referral partner and mentor for you.

4. Women rely on intuition more than men. Guys, you might think your argument is flawlessly logical, but women don’t make linear decisions. We pick up on small cues, usually subliminally, and incorporate emotion into our decision-making process. The end result is our ‘gut instinct’. If that bugs you, don’t try to get women clients. You won’t be on the same wavelength – which you may not pick up on, but women definitely will!

5. Yours is a relationship business; traditional advertising won’t be effective. Practice your listening and empathy skills on your wife, girlfriend, sister, and any woman that crosses your path. The quality of your relationships with the women in your life is a perfect barometer for your ability to attract female clients!

Thanks everyone! Tune in next week for another edition of the Five by Five. See you then.

Five by Five – Yvonne DiVita

We’re hitting the home stretch here in Week One of the Five by Five. Up next for your consideration are the suggestions of Yvonne DiVita, a business and technology writer, president of Windsor Media Enterprises, LLC, and author of “Dickless Marketing: Smart Marketing to Women Online.” Yvonne also writes the Lip-Sticking weblog.

Yvonne’s responses:

The 5 Worst Mistakes a lawyer can make when marketing to potential female clients:

1. Assuming a condescending attitude. We know you went to law school, we accept that you know more about the law than we do—that’s why we’re there–but don’t pat us on the hand with, “Don’t worry, I’ll take care of everything,” blather or write your sales copy as if you’re God.

2. Passing out flyers that have only men’s pictures on them or heavily promote the executives in your firm–who all happen to be male! Or, looking around us for the ‘man’ in our lives.

3. Going overboard with pink. Guess what: Pink used to be the dominant color for boys. It was considered a watered down red and too ferocious for girls. Girls were dressed in blue. This is pretty much a ‘christian’ concept, notice that the Virgin Mary is always in blue. Today, women have adopted pink wholeheartedly, but that does not mean you should have a pink flowery background on your website or throughout your offices. Trying too hard to appeal to us using the color pink will backfire every time. We know frivolity when we see it!

4. Immediately calling us by our first name. Not many women openly admit this, but we are selective about getting personal with people. Getting to a first name basis is our choice, not yours. It’s Ms. or Mrs. or Miss, and only Jane, Jill, or Sally if we offer that option. Business etiquette dictates a formal introduction. If you rush right into using our first name, we may not show it, but we’re bristling inside.

5. Talking over us. Two ways this can happen: on your website or in your sales literature, using too much legalese…find a way to simplify your information without making us feel stupid. (hire a writer, if need be.) If we’re visiting you in your office for the first time, don’t interrupt before we’re finished explaining why we’re there. You may instinctively know what we mean after only a sentence or two, but let us finish anyway.

6. Oops…you only asked for 5. Okay…never mind.

Now, the 5 best things a lawyer can do to secure a female’s business:

1. Make eye contact. In your literature, put women’s faces in prominent places and use women’s names—either clients who have given you permission to use their names, or made-up clients that represent smart, savvy women…yet, ones who may be overlooking critical needs you can provide.

2. Offer free consulting. I’m not saying you should “give away the store” but if you want our business, show us how knowledgable you are about what we need (there’s that listening thing from #5 above), and that you not only can meet our needs but that you want to partner with us to solve whatever issue it is we came to you with.

3. Follow the lead of banks and offer specific programs aimed at women. Develop workshops for women entrepreneurs, for widows, for women entering into business partnerships, for single Moms, etc.

4. Expand your marketing focus to women in all walks of life. Approach women executives differently than you would approach stay at home Moms…do this by having separate marketing materials that speak to the individual’s needs. Notice how financial firms have separate marketing materials for each service they offer, and they portray men and women together and separately.

5. ASK questions…and expect answers. Once in awhile, bring the stay at home Moms together with the business executives and entrepreneurs and listen to what they talk about. Build a community of women networking to solve family and business issues; they will ultimately see you as one of them and bring you more business.

6. Market ‘couple’ seminars or workshops to women not men. Show women and men together. Real life consists of real people, both male and female.Use the word partner…partnerships exist between couples, married, engaged, or merely cohabitating, and partnerships also exist between you and the clients you serve, making this word a powerful introduction to a long-term relationship.

7. Oops…there I go again…overkill.

Five by Five – Anita Campbell

Our third distinguished participant is Anita Campbell, the founder, president, and chief consultant of Anita Campbell Associates Ltd., a business consulting firm specializing in helping businesses in the technology, retail and varied services sectors grow. Anita is also the co-author of the Small Business Trends weblog, most noted for its “Power Blog Reviews.”

Anita’s contributions to this week’s Five by Five:

When entertaining, choose an entertainment that is not a sporting event, unless you know for sure the woman is a sports fan. One law firm I know invited half a dozen clients to a hands-on crafts class in making metal lanterns at the local museum. Intended to build creativity and encourage easy bonding, it was one of the most memorable client entertainments I have ever experienced. I can’t recall a thing about any of the baseball, basketball, or (yawn) football games I’ve been invited to over the years. But ten years later, I still have the lantern and vivid memories of the experience.

Show visible commitment to women’s business in general. For example, volunteer to serve on a Powerlink (an organization dedicated to advancing women’s business) advisory panel. Speak at local meetings of NAWBO (National Association of Women Business Owners). And, make sure you have a user-friendly bio in your marketing materials detailing this kind of commitment.

Nominate the woman whose business you are trying to get for a business or community award. Ask her to serve on a charitable board with. Do something such as this to demonstrate that you hold her in high professional regard. Women like to be around lawyers who make them feel intelligent and worthy.

In a professional services business, your best bet for getting business from women, or from anyone for that matter, is referrals. Ask other professionals in adjacent but different fields for referrals. Create referral circles, for instance, with an accountant, a financial advisor, a marketing consultant, and a management consultant. Make sure that you seek out women professionals in creating these circles.

This is something you should always do, but be especially sure you do it when you are entertaining a woman. Be respectful with female support staff at all times. Same goes for female wait staff in restaurants. If you want to get business from women, you need to show sensitivity to women’s issue. That’s tough to do when you’re belittling female support staff or berating a female server in a restaurant.

Five by Five – Michele Miller

Up next is Michele Miller, author of the great WonderBranding: Marketing to Women weblog. She is now a partner in the Wizard of Ads, Inc. marketing firm, serving clients across North America. Michele is also the author of “The Natural Advantages of Women” (Wizard Academy Press), the audiobook that has been hailed for its concepts, principles, and new scientific information that explains how the female brain is “hardwired” for personal greatness. To watch a video of Michele, click here.

Michele’s five ideas on the topic of the day:

R-E-S-P-E-C-T.
When marketing to a woman, never forget that her greatest strength lies in her individuality. You are not expected to treat a woman as being someone “special;” you are only expected to acknowledge and deal with her as an equal. Always assume that your potential client is smart and saavy. If you address a woman from that perspective, it will shine through your presentation and open many doors that are normally closed tight against the “typical” lawyer.

Give her the 4-1-1.
With four times as many connections between the left and right sides of the brain, women process information at very high rates of speed. They are not only masters of multi-tasking, they are expert gatherers of information and thrive on the word “share.” Approach your marketing from the “educational” angle and you will have clients for life – blogs, newsletters, free seminars, etc. are all excellent tools for positioning yourself as the lawyer who “cares and shares.”

Make it memorable.
Have something in your marketing toolbox that might not normally be associated with an attorney – something that shows you’ve connected with your potential client. Listening is key – what if you followed up an initial consult with a note or small gift that is related to a topic she discussed? It could be anything from the stock market to knitting. You have to go the extra mile here, but it creates clients for life.

How is the world inside your door?
Too often, business people forget that marketing is everything you do each day. Consistency of message is not just restricted to your marketing materials, website, ads, etc., but must extend to your office, and staff. Is your office conveniently located – is the parking lot safe? How is your office decorated – does it have a built-in comfort factor, or is it sterile and uninviting? What kind of magazines do you have in your waiting area…. is there reading material for both genders? How is the phone answered? The personal experience factor of a potential client is one of the biggest factors in your marketing campaign – the better the experience, the better you are at branding!

Who rates first?
As Howard Schulz, CEO of Starbucks says, “The customer comes second… employees come first.” He knows that if you focus on the happiness and stability of your employees, it naturally rubs off on to customers and clients. Are your employees given a “psychological contract” to try, succeed, and even sometimes fail if it’s for the betterment of your business? If they have your trust and training, they provide a confidence that often resonates more clearly to potential clients than anything you can do on your own.

Five by Five – Kirsten Osolind

First up in the Five by Five this week is Kirsten Osolind, the CEO and “Kinda Cool Chick” of re:invention, inc. re:invention offers marketing services for women-led businesses. Kirsten writes the re:invention blog, “a fun, flippant BLOG with points of interest about women & small business.”

Now, for Kirsten’s amazing answers to my first Five by Five questions:

What are the five worst mistakes a lawyer can make when marketing to a potential female client?


1. During your first encounter, suggest your inspiration and role model is Arnie on ”L.A. Law” or Reese Witherspooon in “Legally Blonde.”
2. Don’t bother sharing the possible adverse consequences if her case is lost.
3. Be “time stingy” and only allocate 5 minutes for her initial consultation (time IS afterall, money).
4. Forget to market to her in her world (i.e., don’t attend women’s events or write columns for women’s publications). Avoid all “gals only” networking events and media because they make you squeamish. Eeew!
5. Be openly inflexible about your billing or refuse to return any unused portion of her retainer (i.e., Be like Daffy Duck. “It’s mine! Mine! All mine!”)

Alternatively, what are the five best things a lawyer can do to secure a female’s LONG-TERM business?

1. Identify a problem, suggest a solution, and show her examples of how it will work.
2. Promise to work hard for her, even if you can’t promise or guarantee you will win.
3. Make her feel comfortable during her first appointment and reserve plenty of time to discuss the details of her case.
4. Be a good teacher and take the time to educate her about the legal environment of her business. She’ll know you have her best interests at heart.
5. Explain your fee arrangements (no hidden fees) and give her a “freebie” every now and then. Heck yes I said a freebie. A freebie every now and again will keep her coming back for more.

Five by Five – First Edition

For my first edition, I’ve asked five seriously cool women bloggers for their five thoughts on the following question(s):

What are the five worst mistakes a lawyer can make when marketing to a female potential client?

Alternatively, what are the five best things a lawyer can do to secure a female’s business?

I’m amazed at how great the ideas are, and how generous all of the participants have been with their time and advice. I’ll post each blogger’s ideas in individual posts throughout the day. Enjoy!

The Weekly Five (Week Six)

A new edition of the Weekly Five is up a bit early, as I’m going to be out of the office for a conference beginning tomorrow. Take a look.

Quote of the Week

“Having met some successful people, I can assure you that they didn’t get that way by deserving it.” – Seth Godin from this post.

Will there be a Wal Mart Law Firm?

Jeremy Wright at Ensight writes about how Wal-Mart is trying to commoditize the web design and web hosting industry. His advice to web designers includes these nuggets:

You can’t service everyone. If this is your client base, and Wal-Mart serves them better than you, you can either change your client base or differentiate. If it isn’t your client base, it hardly affects you. . . . This move may expand the segment more than crowd it. . . . Whether you want the clients who are willing to go after 5$ websites is up to you.

Jeremy cautions that focusing in areas where big businesses like Wal-Mart shine (doing it better, faster, cheaper) will lead to failure. Instead, he tells his readers they should:

1. Provide more value.
2. Have more skills.
3. Have a better relationship.

Reading his post, I wonder if legal services are capable of being commoditized. The large firms in the best position to work better, faster, and cheaper have squandered the opportunity to cut their costs because of their ties to the billable hour. A firm that bills by the hour has no incentive to decrease the amount of time it takes to do a given task or provide a given service. Until large law firms begin to approach their practice with the single-minded focus on efficiency that the “big box” stores like Best Buy, Wal-Mart, and the Home Depot do, perhaps us in small firms can be both “better, faster, and cheaper” and be more valuable, more skilled, and more likely to have a better relationship with our clients than the big firms can.

Evangelism from Evangelicals

Scoble has this great post summarizing a meeting he had with Brian Bailey, Internet technology manager for Dallas’ Fellowship Church. Scoble summarized the ten evangelizm and IT lessons that have contributed to the church’s success:

One: make it easy for everyone to learn about you — on their terms.
Two: make it easy to experience your product’s special attributes.
Three: to get word-of-mouth advertising you need to be remarkable.
Four: use IT to efficiently get close to your customers and take care of their needs.
Five: if you want to be better, make sure you’re better from the first minutes of someone’s experience.
Six: if you want to be seen as bleeding edge, invest to be bleeding edge and do so throughout your company.
Seven: extend the usefulness of your plant.
Eight: design your systems so they never go down and can expand for future growth.
Nine: don’t be religious about technology, choose what gets the job done best for the least amount of money and staff time.
Ten: when you become successful, bottle up what got you there and sell it to others.

The lessons are great, and Scoble elaborates on each. Read the post, which I think is Scoble’s best ever.

Good News for Small Firms

Thanks to Arnold Kling at EconBlog, I found this paper from William J. Baumol that explores why independent inventors and entrepreneurs contribute disproportionately to breakthrough inventions. This is good news for small firms and solo lawyers. Pull out the study whenever you are competing against a large firm for business:

The evidence shows that there is a rather sharp differentiation between the contributions to the economy’s technological innovation that are provided by entrepreneurs and those that are offered by the large internal R&D laboratories of established businesses. Large business firms, which account for nearly three-quarters of U.S. expenditure on R&D, have tended to follow relatively routine goals, slanted toward incremental improvements rather than revolutionary ideas. Greater user-friendliness, increased reliability, marginal additions to application, expansions of capacity, flexibility in design—these and many other types of improvement have come out of the industrial R&D facilities, with impressive consistency, year after year, and often pre-announced and pre-advertised. In contrast, the independent innovator and the independent entrepreneur have tended to account for most of the true, fundamentally novel innovations. . . . It is a plausible observation, then, that perhaps most of the revolutionary new ideas of the past two centuries have been, and are likely to continue to be, provided more often by these independent innovators who, essentially, operate small business enterprises.

What are your revolutionary ideas? Come on, small firm lawyers, we’ve clearly got the advantage here, so use it!

More LegalMatch News

Found this article today in ABA’s e-Journal Report on the indictment of LegalMatch’s founder and (former) CEO, Dmitri Shubov. Some excerpts:

Two days after his indictment, Shubov resigned as CEO, and Stuart Gross was named as his replacement. On May 24, another change of leadership occurred when Randy Wells, the company’s vice president of membership, officially took the helm.

One of Wells’ first projects is to contact every LegalMatch subscribing attorney about the change in management. Most attorneys are being contacted by phone, and a few clients (especially local attorneys) have had face-to-face meetings with LegalMatch management.

Wells expects the process of calling attorney-clients may take about three weeks. So far, he says, the reaction from most of the company’s subscribing attorneys has been similar to the Utah bar’s reaction: “Clients have been relieved that we took immediate action and are ready to move forward,” Wells says. “Believe it or not, it really hasn’t been a major issue.”

The person in charge of the marketing tactics of LegalMatch now appears to be running the whole show. Great!

Five by Five: Marketing to Women

The first Five by Five is on it’s way. I’ve asked some seriously cool women for their five ideas on this week’s topic. This week’s roster of experts:

Kirsten Osolind, Anita Campbell, Michele Miller, Jennifer Rice, and Yvonne DiVita.

All are bloggers, and all have a unique insight into this week’s question:

What are the five worst mistakes a lawyer can make when marketing to a female potential client?

Alternatively, what are the five best things a lawyer can do to secure a female’s business?

Look for their answers next week.

Building a Strong Client Experience

Sam Decker at Decker Marketing adds his thoughts to this great post in Mark Hurst’s new Good Experience Blog. Read both posts, but my favorite part of Sam’s comments are here:

Building a strong customer experience is a constant battle of choices between effort to consistently meet and exceed the basics before getting fancy. First be confident you’ve built a strong foundational experience and can sustain and improve that foundation. Then venture off into fancy land

Starting my new practice, I have to be constantly reminded of this. Focus on the basics first, then work on the bells and whistles.

The Weekly Five (Week Five)

The Weekly Five is up again in my sidebar. Take a look.

Monkey Business at the Zoo

I don’t post a lot of personal information on this blog, and I rarely let my sometimes sick sense of humor out in public, but I went to the St. Louis Zoo this weekend and happened upon this statue. I was laughing so hard, I could hardly snap the photo. Warning, unintentionally mature content.

Quote of the Week

The best swordsman in the world does not need to fear the second best swordsman, but the man ignorant of swords and knowledgeable about gun-powder. Mark Twain.

Correction. Reader Jack Moore writes, “A favorite of mine, too, but not exactly a direct quote. The actual quote is from Mark Twain’s A Connecticut Yankee in King Arthur’s Court:

[T]here are some things that can beat smartness and foresight? Awkwardness and stupidity can. The best swordsman in the world doesn’t need to fear the second best swordsman in the world; no, the person for him to be afraid of is some ignorant antagonist who has never had a sword in his hand before; he doesn’t do the thing he ought to do, and so the expert isn’t prepared for him; he does the thing he ought not to do; and often it catches the expert out and ends him on the spot.

Mark Twain (A Connecticut Yankee in King Arthur’s Court, Chapter XXXIV)”

Coming Soon – Five by Five

One of the ideas from my innovation weekend is a weekly forum I’ll call “Five by Five.” In weekly posts, I’ll ask five people — who are experts in their fields — to give me five ideas on a given topic. Every week, the five people will come from a different (usually non-legal) discipline, but the topic will always focus upon the innovative marketing, pricing, and delivery of legal services.

I’m already working on my list of invitees and welcome any suggestions. All participants in the Five by Five will get their choice (and I’m completely serious here) of an official “the [non]billable hour” hat or t-shirt.

As a compliment to the weekly series, I’ve set up a kind of a [non]billablehour extranet/wiki for all my readers to participate in and contribute to the discussion. I’ll unveil more details tomorrow.

Memorial Day Memory

My grandfather (age 95) came down this weekend for my family’s barbeque. He hasn’t talked about his military service much, but he and I spent the afternoon talking about his time as a Navy Commander in World War Two. He enlisted in the Navy the Monday after Pearl Harbor when a Navy recruiter showed up at his civilian flight school graduation. He was an agriculture teacher raising four young children (along with his two youngest sisters) with my grandmother in Highland, Illinois. I asked him why he enlisted in the Navy, when he could have easily gotten a deferrment (he was in his early 30’s), and he said:

When I was nine, my father took me to a parade for returning World War One soldiers. He told me that every twenty years or so, the whole world went a bit crazy and went to war. I promised my father then that I’d be ready for the next one.”

I don’t know how many nine year olds feel the same way today, but I’m damn glad men like my grandfather did then.

Entrepreneurial Development for Lawyers

From Kirsten Osilind’s re:invention blog comes this post about the Women’s Venture Fund (and Martha Stewart’s proposal to work for them in exchange for reduced jail time). The Fund has a 6 Stage Entrepreneurial Development Model that Kirsten summarizes thusly:

stage 1: Desire – a woman entrepreneur has an emerging idea, with no clear sense of what needs to be done.
stage 2: Friends and Family – the entrepreneur has developed a product or service, but they only serve a limited market (friends and family members).
stage 3: Indigenous Neighborhood Market – the entrepreneur continues to evaluate the market opportunity through personal preferences and shopping experiences but begins to extend their product and services sales to strangers.
stage 4: Local Market – the entrepreneur begins to encounter an objective market that has no affiliation to her.
stage 5: Trade Show and Conventions – the true beginning of a stabilized small business coupled with critical evaluation of the entrepreneur’s marketing concept, the larger competitive industry, and larger scale opportunities.
stage 6: Mass Market – the last and final developmental step when an entrepreneur recognizes a mass market and chooses the final form product or service she will supply based upon market demands.

The stages mirror what most lawyers go through when deciding to hang out their own shingle. Take a look at the WVF site. There is some great stuff there.

Missouri Solo and Small Firm Conference

I’m attending the Missouri Solo and Small Firm Conference at the Lodge of the Four Seasons again this year. For the money, this is the best legal conference in the midwest. Great speakers, wonderful collegiality, a great location, and a golf outing make the conference so popular, it regularly outdraws the regular Missouri Bar convention, and is sold out this year. If you are going to the conference, drop me a line as I’d love to meet you, and invite you to come go-karting on Friday night!

Great Productivity Tips

Legal Coach Ed Poll has five productivity tips on his Coach to Lawyers Weblog from a presentation he attended by Nido Qubein. Nido’s tips:

1. Call or write 4 people every week (Monday to Friday).
2. Get the “clean desk” habit — do today what you can, don’t leave it for tomorrow.
3. Return all calls on the day received (still the number one complaint against attorneys in State Bar Disciplinary Boards around the country!).
4. Read one hour every day.
5. Read the newspaper at night (it’s faster because you’ve heard some of it already and you’ll know what’s important … and you won’t start your day depressed by the murder and mayhem reported daily).

I met Ed at the ABA national convention in Atlanta about ten years ago. He writes some great stuff for lawyers and has started posting more to his blog. He needs a link from his blog to his main website though.