6/27/04 6/27/04

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.

6/27/04 6/27/04

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.

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.
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.
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.
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.
Give the judiciary the support and respect it deserves. Judges at any level are among themost 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.

6/27/04 6/27/04

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.

6/27/04 6/27/04

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 (tm)." 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).

6/26/04 6/26/04

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.

6/22/04 6/22/04

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.

6/22/04 6/22/04

Clock Watching

Here is a clock that causes you to waste time.

6/22/04 6/22/04

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)

6/22/04 6/22/04

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.

6/22/04 6/22/04

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.

6/21/04 6/21/04

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.

6/21/04 6/21/04

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).

6/21/04 6/21/04

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.

6/21/04 6/21/04

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.)

6/21/04 6/21/04

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?

6/21/04 6/21/04

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.

6/21/04 6/21/04

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!

6/17/04 6/17/04

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.

6/17/04 6/17/04

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.

6/17/04 6/17/04

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?

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