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June 2006


The Greatest American Law Clerk needs perspective in order to be happy.  The grass is always greener on the other side, so they say.  However, if one has perspective (i.e. is educated, or even better, has experienced the other side) happiness is simply a choice.  The GALC must choose wisely because you can not become the Greatest American Lawyer if you are unhappy.

Seeing the GAL get sued has opened my eyes.  I want to care about my client and not about fees.  I want to work toward the goal of obtaining my client's wishes, not toward the goal of 2200 or more billable hours/year.  The GAL made a decision to care about his client and still must answer to a firm that, like so many, lives and dies by the billable hour and fees.  I sure hope that doing what is right for the client gets rewarded here.  Even more so, I hope that the attorneys are held accountable for their actions because I would hate to find out that behavior like this is condoned.  For if it is, what incentive is there for a new attorney to work toward becoming the Greatest American Lawyer?  Better yet, where can a GALC gain perspective if all around him is corrupt?  Fortunately, I am not overly worried because I have now truly seen both sides of the practice of law, up close and personal, and choose to side with the GAL.  Perspective has enabled me to see the other grass, but I am in the green grass and I am happy.  ~Brian

GAL Gets Sued.

This post deals with a recent lawsuit filed against GAL by his former firm over ethical conduct by that firm. You may recall that there were a number of cases that came with me when I left my old law firm. I have paid well into six figures to my old firm and quantum meruit fee splits since I left. But there was one case I settled recently where it appears the old firm is not entitled to a quantum meruit fee. The case involves a young girl who was seriously injured in an auto accident. I represented her at my old firm and developed a very close relationship with the family. After I told my partners that I was leaving the firm, there was not much doubt about whom this client would select as her attorney moving forward. Consistent with the rules of professional conduct, a joint letter was drafted to each client indicating that I was departing the firm and allowing them to circle which firm they wanted to represent them moving forward. We had agreed that I would not contact these clients. The letter would indicate that the client could call me or the old firm with any questions.

One letter, however, never saw the mailbox. It turns out that a named partner in the firm intercepted the letter and threw it away. A couple of weeks after I had left the firm, I received a call from the client’s mother indicating that the client was extremely upset and quitting the case. When I inquired as to why she was quitting, the mother told me that she was extremely upset that she could not have me as her attorney. It turns out that the named partner from my old firm had called her up after throwing away the letter and indicated that she had a contract with the firm and that she would be reassigned to another attorney at the firm. Implicitly or explicitly, the client was led to believe that she had no choice of counsel.

It was a bold power play made by an attorney who literally had no relationship with this young, vulnerable and scared client. The lawyer’s contact had caused such extreme distress to this young lady, that she spent days crying. I am certain she wondered as to why I never told her that I was leaving the firm. How could she trust me if I didn’t even care enough about her to let her know I was departing? Of course, I did not know that the letter I had signed had been intercepted and thrown out by the partner.

After the case settled, I wrote a very nice letter to my contact at the old firm noting that there was an outstanding issue as to their entitlement to a fee. I told them that I had never heard the partner’s side of the story and invited him to contact me so we can discuss what had occurred. Instead, my old firm filed lawsuit, serving me by hand on Friday afternoon, just prior to leaving for the weekend on my tenth wedding anniversary.

I am sure that it is beyond their comprehension that they don’t get paid on cases where they have breached their ethical duty to the client and then fired. As in most states, the state I practice denies firms any quantum meruit claim on cases where they are terminated with just cause. But my old firm can only think in terms of what they’re entitled to. In addition to counting every penny on billable cases, they apparently were outraged by this suggestion that they might be denied their fee. In the firm’s 30-year history, many attorneys have left the firm under contentious circumstances. None has been sued before.

I find it interesting that they ended up doing what I didn’t have the guts to do. I could have sued and asked a court to deny them their fee. I don’t want to have to be the one decide whether or not they are still entitled to a fee. I would love to have a jury decide that issue. I would love to get the issue in front of a local jury.

I figured they would propose some sort of resolution or arbitration in order to avoid airing their dirty laundry in public. But it occurs to me know that they don’t view what they did as wrong or bad. To them, there is no client. It is only fees. They are so blind to any other consideration that they can’t see what they have now done to themselves.

In my perfect world, a local jury in front of our local court would have decided this issue. They’ve set the table and I can hardly wait to see what kind of meal is served up by Lady Justice. (Of course, their quantum meruit portion sits in the trust account waiting resolution).

How Come There is Never Time for The Most Important Things?

One of the true pitfalls of the hourly billing system is that it creates disincentives to do those things that may be the most important for your firm. Focusing on billing a certain number of hours per year, or if you’re a partner, making sure the associate attorneys bill some minimum number of hours per year, distracts you from the things that may be more critical from your firm’s success. These certainly include matters of strategic planning, execution of case strategy and management of team members. Somehow, lawyers who are managing to get their 50 hours of billable time in per week forget there are much bigger issues in play. When success is defined by hours, not outcomes, it doesn’t take too long before people forget where the real end zone is for their clients.

I know when my firm is too busy because, even though we aren’t focused on billable hours, the most important items can still get lost in the shuffle. These last two weeks have been good for our firm because the workload is down. Most firms would say this is a bad thing. I say that these periods are critical for law firm growth and market positioning. When else would you ever find the time to attend to such important matters as client relationships, process redesign, strategic brainstorming with staff and new technology deployment.

Bad Lawyers Negatively Impact The Market For All Lawyers

I recently posted about an important issue.  Do bad lawyers generate more work for everyone?  Based on an experience with a company re-staining my cedar deck at home, I suggested that bad lawyers do create market profits for other (even good) lawyers.  I was not promoting bad lawyers.  And my observation about bad lawyers caused me no  pride.  I always tell new clients that we can only prey that the other party hires a good lawyer.  I dread bad lawyers since they drive up my client's costs for no good reason. Responding to lawyer bullshit, fighting about non-issues and dealing with bad lawyer excrement does nothing to advance the ball for my side.

Luckily, I received several comments to my observation which cause me to reconsider my concerns.  Here is one comment that is worth bringing to the front page.  RJon Robins took up my challenge, and made this counter-argument to my premise that bad lawyers increase profits for all lawyer.....


Do bad lawyers drive up the cost of legal services? If you were a Bar Official concerned with the legal industry on a macroeconomic level, or a robotic economist concerned only with the raw quantity of hours the answer would probably be, "yes."

But if you are a solo practitioner, or even an individual rainmaker in a larger firm, who is interested not only in the quantity of work you have, but also the quality then the answer is decidedly "NO."


You stated that ". . . bad lawyers drive up profits for good lawyers." I have to respectfully disagree with you on this point as well.

What in the heck am I talking about? How can there be more work, but less profit? Let me explain...

Bad Lawyers create bad client experiences. Clients with bad experiences of lawyers often postpone or delay seeking the services of a good lawyer until it's either too late to do anything, or else nearly impossible to achieve good results.

Good Lawyers who can't achieve good results because of the delays by clients to seek counsel or mistakes made by previous counsel, often end up with a share of the blame; Even though it's not their fault.

Consequently, two of the three most valuable things a good lawyer can get in exchange for doing good work for his/her client never happens: Referrals & Appreciation. And sometimes it's even hard to get paid. But it gets worse. . .

You took the time to understand what went wrong with your deck. Decks are pretty simple to understand & you were fortunate that the Deck Dr. had the good sense & knew how to explain the situation to you ahead of time. As you pointed-out one of the things that makes a bad lawyer, well...a bad lawyer, is the ham-handed way s/he manages client communications & expectations. The Deck Dr. may have gotten more work because of the previous shoddy job, but it took him more time, energy & money to overcome your reservations about who to hire to refinish the deck, or maybe just scrap the whole thing & use some other material altogether.

In other words, a client who has a bad experience with a bad lawyer is going to be more apprehensive & the good lawyer is going to have a more difficult time assuring him/her that this time it will be different. And besides, it's not always so easy to tell what's wrong with a legal case from just looking at it, like a deck. And last but not least...

We've all had the experience of helping a client to achieve a mediocre "best of a bad situation" result, when we know we could have done so much more if only previous counsel hadn't screwed it all up or the client had come to us earlier. I don't know about everyone else reading this, but I always find it difficult to get all charged-up and put on my Rainmaking Hat to go out a Make It Rain on days like that.

Sorry for the crass commercial message, but if I don't say it for myself, who will? If anyone reading this is interested in learning some practical & proven small firm management & client communication skills should take a look at Turning Your Clients Into Gold

Loving My Tablet PC

About six weeks ago, I ordered a Lenovo (IBM ThinkPad) Tablet PC. It took a couple of weeks for my staff to transition into my new computer, getting it set up with the appropriate software and connectivity options. But I’m now at the point where it has replaced my old laptop on my trusty laptop cart.

What do I think thus far? This computer rocks. I never appreciated the unexpected benefit of being able to turn your screen and lye it flat on the computer, converting the laptop into a tablet. The ability to carry a computer around like a notepad is truly transformational. Whether I am with a client or in court, I am no longer forced to sit behind a computer screen in order to use technology. The Lenovo is lighter and smaller than a normal laptop. There is no cd rom drive making it much thinner. The one-note notepad, which allows me to write directly on the computer screen and store notes in a single location, provides central information management. These benefits were fully realized at trial two weeks ago. I had all of my exhibits and depositions bookmarked in Adobe. I was flying around the courtroom with my laptop in hand, as I used my stylist to navigate between depositions and documents; I quickly realized that neither the witness nor the Judge could keep up with their paper copies. This gave me the ability to stay ahead of everyone and to read through the key materials while people flipped pages. I moved through my cross examination quickly in a completely focused strategic fashion. By the end of the testimony, the Plaintiff had recanted all of the prior testimony that supported their claims resulting in a directed verdict. By halfway through the examination, the witness was actually looking at my Lenovo as though it was alive and evil. She stopped disagreeing with me ‘because she knew my computer had all the right answers.

Seeing Yourself Through Your Law Clerks Eyes

My most longstanding virtual law clerk took a job with me as a summer law clerk. He’s been working here for the last three weeks. I remember the Monday morning he was to show up in the office. It occurred to me at about 6:30 am that I had never seen him before. For all I knew, he could have been a six foot four transvestite.

Turns out, he’s a normal looking guy with a strong business sense and an appreciation for the insanity that sometimes prevails in this environment.

Brian tells me that the experience thus far has been rewarding and that he feels he has gotten to do more than any of his compatriots working for the silk stocking firms. I look forward to hearing more from Brian, not only because it makes me feel like I’m on the right track. It also occurs to me that Brian is uncorrupted by this system, a law student in between a second and third year still completely naïve to the realities that is large law firm life (especially for an associate).

When Brian called me just before his first day of work, he asked me what the dress attire was. I told him if he wore a suit, he was fired. He probably thinks now that it was prophetic of exactly the way it was going to be.

One of the benefits of having a summer law clerk, or virtual law clerk for that matter, is being able to see your firm through the eyes of a soon to be new lawyer. He is one of the many benefits to hiring law clerks. We all have a duty to mentor.

We All Need a Mentor

In order to have the opportunity to be the Greatest American Law Clerk (GALC), an attorney must be willing to give time, effort, advice, and guidance.  All lawyers do it differently.  Some get but don't give while some give but don't get in return.  Regardless, the GALC can not become the GAL without mentoring.  The Greatest American Lawyer knows this and understands that the firm, and ultimately the profession, will not succeed without this mentorship.  So why is such a lasting dynamic so difficult to find? 

A mentorship takes two dedicated individuals.  The GALC should undoubtedly be seeking a mentor.  The difficultly lies in finding a willing mentor.  The GAL is a mentor.  The GAL is always willing, able, and excited about the opportunity to help mold the next great legal mind.  The GAL continuously challenges the GALC by testing his abilities, improving his deficiencies, and rewarding his contributions.  The GAL simply treats the GALC the way he would have wanted to and always will want to be treated in the legal profession.  In return, the GALC is productive, innovative, and most importantly, loyal to his mentor.  The GALC is aware of how fortunate he is and never hesitates to say thank you because he knows that most attorneys do not have to, and choose not to, mentor.  The GAL is different though, and as a result, the GALC will be different.

So who should your mentor be, or conversely, who should you mentor?  Well, that answer is up to you.  Let the GALC assure you that you have to have been mentored and returned the favor to a new mentee to be the GAL.


The Fattest American Lawyer

One of the interesting things that has occurred as a result of my new law firm start up is that I have gained weight. I’ve done okay at jogging, but not near as well as I did when I was jogging to and from work every day most days of the year. I know I can’t be a great lawyer if I am out of shape. I am not really sure why it is my eating habits have declined. I am sure it probably has a lot to do with the fact that I am under more pressure as a new law firm.

But I’m not too dumb to realize that health is an important part of my success. Father’s Day was a bit of a wake up call. At age 42, I found myself worrying about my health in general. I realize that I won’t be there for my kids if I let the pressures of work increase my chances of, for instance, heart attack. All lawyers need to recommit to living a healthy lifestyle. I’ll let you know how my recommitment goes. Now that summer is here, it makes getting motivated a heck of a lot easier. Do you need to recommit to health?

Using Down Time on General Business Tasks

We have just settled a large number of litigation cases. Because litigation is so time intensive, we now have time to refocus on other important business matters. One of the difficulties of running any law firm is the fact that client time is not necessarily business time. When you get those opportunities to focus in on your business model, solidify relationships, do general marketing and refine internal processes, you really need to take advantage. I know that the plate will again be full all too soon. So we’ve taken this time to work on business issues. Instead of having team members looking for things to do, we have simply refocused them on all of the miscellaneous stuff that really makes a law firm great. This includes sending matter conclusion letters to clients whose cases we have resolved, sending exit interviews through Survey Monkey to the same group of folks, documenting our internal processes, refining processes that need improvement and the like.