The Practice

Milberg Weis plea deal

I guess BigLaw operates differently. A partner at Milberg Weis has pleaded guilty to conspiracy to obstruct justice. Interesting.

I am not sure a solo would get off so easily. I assume that David Bershad will next be disbarred. He should be. Quickly. Without hesitation. And any other partner who is convicted should be disbarred, including Bill Lerach, who has formed a new firm and is "considering retirement." Retire or not, if you break the law like this, you should lose your license to practice. It makes us all look bad!

Credit Cards: The Debate Continues

Okay, so you either take credit cards or you do not. Simple enough proposition. Either you think it helps your practice or you think it is more trouble than it is worth.

Well, the fine folks (and I mean that) at the State Bar of California have come out with an ethics opinion, 2007-172, about credit cards. Read it, digest it, and if you are in California, read this month's California Bar Journal where it is discussed in an MCLE segment.

Now, decide for yourself. (Oh, and for the record, I have no official opinion, but wanted to provide this information.)

Stop the madness!

I know I post on this every so often. I still don't get it. Why do lawyers insist on playing games in trying to resolve disputes? Why do we try to hide the ball? What is hoped to be gained?

Look, my goals are very simple in handling cases and yours should be too: resolve the case most favorably to a client at a fair price. It is that simple. So, if you have a choice of doing A, which does not move the case towards conclusion and costs the client money, or doing B, which moves the case towards conclusion at some cost to the client, go with B. You will be happier every time.

Okay, so I am idealistic. Want a dollars and sense reason to do it? Imagine your client challenges your bill at the end of the case. In California, we have mandatory fee arbitration. You go to the fee arbitration and the arbitrator says to you "Mr. Stein, why did you force your opponent to file a motion that you lost when you knew you would lose? You charged your client 2 hours for that." It doesn't matter what your answer is. You just lost credibility to the fee arbitrator and that statement may get the client to think that not only does he have a fee arbitration issue, but he may also have a malpractice case.

It doesn't matter if he actually has a malpractice case, if he thinks he does and files a claim with your insurance or files a lawsuit against you, you have to pay your deductible. Now you are out of pocket the money for the fee arbitration and your deductible.

So, before you do something, make sure that you are moving your cases towards resolution.

Oral Arguments: What not to say

I was listening to oral arguments last week in court. The judge had issued a written tentative ruling. I had read the ruling (it wasn't one of my cases) and the ruling made sense. The losing side requested oral arguments. The argument went something like this:

"Your honor, you don't cite any case or rule that supports your position. We want to know the authority for your decision."

Judge: "Counsel, you can argue your case, but you cannot get argumentative with the court. Do you have any argument about the merits of your motion?"

(I took the liberty of not citing this word for word.)

The message here: if there is a tentative ruling that you belive is wrong, argue the merits of the motion. Do not tell the judge that he/she is wrong. Judges make mistakes, but that is why we have an appeal process. Unless this is some bizarre situation, you will be in front of the judge again. Don't make enemies over one ruling that you may not like.

Thinking outside the box and marketing

There is a reason I think Ben Glass is one of the best legal marketing minds around. Just as you read about things outside of the law on this blog, Ben is the only one I know who is blogging about marketing and college hoops.

You know how you can tell this is a great post? When is the last time I linked to another blogger's blog and told you to go read the article? Last year sometime? It feels like it. This is a must read if you are serious about marketing your practice.

Great Customer Service Works

I had an interesting experience this week with customer service. I cancelled my satellite service. (It was DISH Network, whose slogan is "Better TV for all.") The short version:

I called customer service. I spent time talking to a guy who kept trying to get me to not cancel. He then told me he couldn't take my cancellation request. I then was transferred to a woman who told me her ID was, and I swear I am not making this up, "SUX." When she asked why I was cancelling, I explained it was poor customer service. She tried to get me to stay, but I kept insisting it was poor customer service. She then asked, ready for this?, if I had anyone I would like to refer to DISH. I explained to her I don't refer friends or family to a place where I receive poor service.

Last night, I got a phone call from DISH. Some guy in Texas wanted to know why I cancelled. I explained it to him and he said "Well, you shouldn't let two bad service experiences effect your decision." Needless to say, I now consider it three.

Some of you are thinking: "Has Jonathan lost it (more so than before)?" No. I had three bad experiences that stick out in my mind. That is about two too many.

How does this affect you? Your client's don't deserve any bad service. Sure, things happen. And when something goes poorly, you better get on the phone with the client and make it up to them ASAP. If a second thing goes bad, then you will probably lose the client.

Look, no one who is reading this offers some service or product so unique that you can't be replaced. As much as we want to differentiate ourselves from our competitors, there are 1,000 attorneys who can handle PI cases. There are 100 other insurance claims experts in California. There are tons of people who can set up a small business. You can be replaced.

You want to differentiate yourself? Providing excellent customer service to your clients will do that. Not everyone can provide excellent customer service. And the happy client will refer their friends and family. You can't make everyone happy in every situation, but provide your best customer service to all of your clients and good things will happen. (And happy clients don't file bar complaints!)

As for DISH, I think they should change their slogan: "DISH Network. Better TV for all, as long as you don't mind bad customer service."

Trial tip: Use a trial disclosure

I will preface this post with the following: I don't know the laws in every state and this may or may not apply to you!

In California, we have three "levels" of civil suits: small claims court, limited civil, and unlimited civil. Basically, small claims court is for disputes under $7,500 with no attorneys. Limited civil is under $25,000 and unlimited is for anything. The other difference between limited civil and unlimited is that limited civil cases have limited discovery - 35 discovery devices (total number of questions) and one deposition per party.

I file a fair number of cases as limited civil cases. Why? Well, if the case is worth less than $25,000, I can get the case to trial faster. That is one of my goals in litigating cases. I like things moving fast - the insurance companies do not.

However, before I file a limited civil case, I send my client a written letter, a few pages long, that explains the process and the cap on damages. I get them to sign off on it and send it back to me. Why? It is simply a matter of protection - I want them understanding what we are doing and why so there are no misunderstandings later!

If you have a process similar to our limited jurisdiction cases, you should consider something like this as well.

The joys of an apology

You know what - I screwed up. Not a little screw up. A big screw up. How big? It was so big that if you took all 500+ posts from this blog, printed each one out 10 times on a separate sheet of paper and stacked them up, it would still be 100 times bigger.

And on Monday, I apologized to the person I screwed up with. In front of other people. And I meant it. Every word.

It was a great thing. The attorney I apologized to accepted it and wrote me a nice note yesterday. The attorney who saw the apology, a well respected member of our bar, called me later and told me it was the right thing to do.

Take a few minutes, think about someone you may have wronged, and then consider an apology. It really does feel good.

------Jonathan

Law School Consortium Project: Are you involved?

The Law School Consortium Project is one of the best things for sole practitioners and small firm lawyers, especially those who like social justice type work. LSCP provides an opportunity to network, learn from others who are of a similar mindset, obtained continuing education and stay on the cutting edge. And, while you do this, you get to serve one of the most underrepresented groups of Americans - the lower income folks.

Now, we all know I am not a bleeding heart. And, we all know that I believe you have to run your law firm like a business. You are in the business of law. But, you also need to do good. (What, you think this is new? I wrote about doing good last year too!)

And you know what, doing good is a good business model. Let's see, you get:

• Continuing education;
• Networking;
• Meeting some very nice people, including Lovely Dhillon, the executive director, whose name is close to fitting, but she is about 10 times more wonderful;
• Staying in touch with your alma mater;
• Being able to help people who might not otherwise be able to help you;
• Access to a listserve with some really smart people;
• Oh, and the big one: One more way to even things up with big law.

Now, this last one should not be the focus, but let's be honest: If Big Law wanted us and we wanted them, we wouldn't be sole practitioners. And, it feels dang nice when you kick the c**p out of Big Law. Yes, it does. These firms have entire sections devoted to pro bono. They call press conferences when they do pro bono work. They get all excited like a kid in a candy store when they get some good press from taking a pro bono case.

And you know what? At the end of the day, solos take pro bono cases for two simple reasons: we want to help someone and we believe in giving back. It is that simple. And by joining the LSCP you get to accomplish all of this.

So, go look at the list of member schools. If you are an alum of one of these schools, get in touch with them and join. And then let me know you did it. I would love to see 50 new members of the LSCP from my blog.  (Oh, and you law students: get involved now - it will make a ton of difference when you graduate!)

---------Jonathan

Resolving Disputes

It is common in trial work to run in to disputes with opposing counsel. We may disagree about the scope of a subpoena or discovery responses. We may disagree about the extent of a medical examination of the plaintiff. And most of these disputes should be resolved short of the courtroom.

However, I have noticed a disturbing trend lately: a failure to meet and confer. California's discovery statutes require the parties meet and confer to attempt an informal resolution to any discovery dispute, except for a few rare examples. I find this to be a good way to resolve disputes without the time, expense and energy of going to court. However, it seems a growing number of attorneys choose not to meet and confer require motions to be filed to do anything.

I don't know why this trend has developed. I wish I did, but alas, I may not be that smart. Meeting and conferring has several benefits:

1. You are complying with the law. That's a good thing for attorneys.
2. You are working cooperatively to resolve a dispute, which is the point of the system, isn't it?
3. You do not have to worry about being sanctioned. Sanctions suck!
4. You do not have to spend time and effort preparing motions that could have been avoided with a 10 minute phone call.

I would encourage everyone, but especially younger attorneys, to meet and confer and try to resolve disputes amicably before you end up in a long law and motion fight.

--------Jonathan