Don’t Be That Attorney — Learn to Take Your Lumps With Aplomb
Ah, memories. Like the corners of my mind.
I came across a news article about an attorney who is experiencing the sting of a footnote by an appellate court, and it reminded me of my own footnote experience.
First, my experience. In one of my more bizarre cases, I represented a small business in an action against Bank of America. The bank had closed my client’s checking account because they suddenly decided it was a competitor. That’s fine, but they did so without notice, took out all of the money, refused to return it for ten days, and were returning all checks that were presented as NSF checks (all while happily charging my client fees for the bounced checks). We sued for the loss of profits due to the company’s damaged reputation.
Bank of America brought in the most impressive accountant imaginable, who worked into the testimony that he is so trusted that he is the guy who tabulates the votes for the Academy Awards. You just had to love him. I wanted to invite him to my next barbeque.
But during his examination, I noticed that he had made a terrible mathematical error in his accounting. I couldn’t believe what I was seeing. He testified that even if all of our evidence was true, our damages would only be about $90,000. But in the string of equations, he had made one error that amounted to a factor of about ten.
Rather then to show him his error on cross-examination, and afford him the opportunity to try and dance around it, I left it until my closing argument. I picked up the blow-up and showed the jury the math error, arguing that if we believed Bank of America’s expert, then my client had suffered $900,000 in damages, once the math error was corrected (which was far more than we were seeking).
The jury gave us every penny we asked for – a nice six figure judgment.
Bank of America unsuccessfully appealed on about a thousand grounds, and one of them was that it was improper for me to claim a math error by their expert. I kid you not – Bank of America argued that if their expert testified that 1 times 100 equals 10, then that testimony can only be refuted by another expert, and it was therefore error for me to argue otherwise without any such evidence. Like I said, the appeal was unsuccessful.
So here is the footnote part. It was almost as though the Court of Appeal wanted to show that no expert is perfect (they apparently really liked him too), so the Justice writing the opinion dropped a footnote and noted that my expert had also made a mathematical error of . . . drum roll . . . one dollar. Really? That rated a footnote?
In reality my expert had not made an error. Apparently it was not clear from the record that my expert had rounded the cents when he was testifying, but the chart he was referring to was correct. But that doesn’t keep me from giving the expert grief every time I retain him. “Stan, would you please double check your numbers this time so we don’t get another footnote?”
At least the footnote dealt only with my expert and not me. The attorney in the news article I was reading was not nearly so fortuneate. The attorney is Jerry Albert, an Assistant U.S. Attorney. The article is not clear on exactly what happened, but apparently Albert was cross-examining the defendant in a criminal trial and summarized some testimony from a prior proceeding. The court decided that he had mischaracterized the testimony, and on that basis ordered a mistrial.
The matter was appealed, and after the initial decision came down, the government moved to have Albert’s name removed from the opinion, since it spoke critically of his alleged misstatement, asking instead that he be referred to only as “the prosecutor”. The result? The Ninth Circuit Court of Appeals amended the opinion to add this:
[U]pon initial release of this opinion, the government filed a motion requesting that we remove Albert’s name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney’s Office for the District of Arizona, “Northern Arizona Man Sentenced to Federal Prison for Arson,” (January 31, 2012)…. If federal prosecutors receive public credit for their good works — as they should — they should not be able to hide behind the shield of anonymity when they make serious mistakes.
Albert could have taken his lumps, which initially consisted only of the references in the original opinion. Likely few people would have ever seen the opinion or learned of his alleged misdeed. But by trying to hide the mistake, he and his office created the Barbra Streisand effect, creating much more buzz about Albert than ever would have occurred. Because of his attempt to have his name removed, many who otherwise would not have done so have now written about Jerry Alberto, including me.
Don’t fan the flames. Don’t be that attorney.
Posted in Rules for the Practice of Law, Your Own Law Firm | 
Tags: Aaron Morris, Court of Appeal Footnotes, Experts, Streisand Effect | 
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Think Twice Before You Send that Demand Letter Out of State
How Metabolic sees the case
The case of Metabolic Research, Inc. v. Scott J. Ferrell, et al. is turning out to be a fascinating case on several levels, including liability considerations for attorneys and SLAPP issues. Briefly, here are the facts as set forth in a recent opinion of the Ninth Circuit Court of Appeals.
Scott J. Ferrell is an attorney practicing in Orange County, California. He apparently believes that a supplement being made by Metabolic and sold by GNC (Stemulite) is bad stuff. To that end, he sent demand letters to Metabolic and GNC in Nevada and Pennsylvania, respectively, accusing them of violating the California Consumer Legal Remedies Act by way of false advertising, and threatening to sue them (presumably in California)* if they did not stop their (allegedly) evil ways and agree to an injunction to that effect.
In California, Ferrell’s letter would likely have been determined to be part of the litigation process and therefore protected, UNLESS it was deemed to be extortion. (See Flately v. Mauro.) In California, the issue would have proved very interesting, because while Ferrell was not demanding any money, the hallmark of true extortion, the injunction he was demanding was so onerous – including a requirement that all profits be disgorged – that Metabolic claimed it would have put it out of business. Nonetheless, in California it might have been decided that the letters did not cross the line, and Ferrell would have been safe from suit.
But Ferrell’s letters were sent outside of California. In November 2009 Metabolic filed a lawsuit in Nevada State Court against Ferrell, charging extortion and racketeering based on his demand letter. Ferrell removed the case to Federal Court (I never would have done that for the reasons that follow), and then brought a motion to dismiss based upon Nevada’s anti-SLAPP statute, claiming that the lawsuit amounted to a SLAPP because it was suing him for engaging in litigation.
Motion DENIED. The District Court found that “Nevada’s anti-SLAPP legislation only protected communications made directly to a governmental agency and did not protect a demand letter sent to a potential defendant in litigation.” Again, as would be appropriate in California but not necessarily elsewhere, Ferrell took an immediate appeal.
Appeal DENIED. Federal courts do not like interlocutory appeals, and will find a way to reject them. The court did an in-depth review of Nevada’s anti-SLAPP statute, and concluded there was no right of immediate review of a denial of an anti-SLAPP motion. The court referred to this as a “run of the mill anti-SLAPP motion” (ouch), and held that a District Court judge affords sufficient safeguards to protect defendants from SLAPP actions without the added protection of an immediate appeal. However, to twist the knife a little, the Ninth Circuit threw in that Ferrell could have proceeded by way of a writ of mandamus, and that it was offering “no opinion on how we might have decided” such an application had it been pursued.
Lesson 1: Consider that when you send a demand letter out of State, you may be subjecting yourself to an action in that jurisdiction.
Lesson 2: (And I have seen this over and over) Don’t remove a case to Federal court just because you can. The motion may well have been decided the same way in State court, but I think the odds would have been far better.
* That’s not me presuming, the court opinion used those words.
Posted in Business, Starting Your Own Firm, Starting Your Own Law Firm, Your Own Law Firm | Tags: Anti-SLAPP, Extortion, Motion, SLAPP, Starting Your Own Law Firm | No Comments »
Sleazy Attorney Technique No. 8: The Phantom Settlement Offer
Yesterday’s post about flat fees made me think of a war story which just happens to illustrate Sleazy Attorney Technique no. 8.
When I first started practicing I had to be hit over the head with this technique a few times before I knew what was happening. I tend to assume the best of people until they give me reason not to, and the first few times this happened I wrote it off as a simple mistake until I finally realized what they were doing.
Here is the scenario. You represent the plaintiff in a breach of contract action, and the opposition is about to take the deposition of your client. You’re all sitting around the conference table ready to begin, and opposing counsel turns to you and says, “Before we go on the record, I don’t want to go through a whole deposition if we don’t have to, so I was just wondering if you got a chance to present our settlement offer to your client?”
There was no settlement offer, as the attorney well knows. His goal is to plant a seed of doubt in your client, hoping it will blossom into conflict. The client will wonder, “why isn’t my attorney communicating settlement offers to me? Is he trying to keep this case going?”
I’ve seen many variations on this technique, so be on your toes whenever the opposing counsel is in a position to indirectly communicate with your client, such as at depositions and settlement conferences. Some attorneys apply the technique through their clients, instructing their client to contact your client to deliver the message.
So how do you protect against this sleazy attorney technique? Just explain the technique to your client, and tell them to expect it. Explain that you are required to present all settlement offers, no matter how absurd, and that you can get in trouble with the Bar if you fail to do so, so the client never needs to worry that you won’t communicate a settlement offer. So if opposing counsel ever claims otherwise, he is just employing this tactic.
Back to my war story, a funny example coming from a tragic situation. This attempt to drive a wedge between you and your client is not limited to phantom settlement offers. I represented a client who had been defrauded out of almost half a million dollars, and the con artist was represented by his attorney daughter. It was truly sad to watch this woman have to defend her con artist father, and you could see that she desperately wanted not to believe what had happened.
In any event, I guess the fruit doesn’t fall far from the tree as they say, because during my deposition of her father, she launched into one of the most extreme applications of this technique I have ever seen. Her father was evading all the questions so I had to keep pushing, and his daughter suddenly blurted out the following diatribe:
“Counsel, you told me at the beginning of this case that you were going to turn this case into a cash cow, that you were going to churn the file and run up the attorney fees for your client, and I hoped you were just posturing, but I have never seen an attorney spend so much unnecessary time on a case just to get a big fee out of it.”
There was this moment of stunned silence, I turned and looked into my client’s eyes, and we both burst into almost uncontrollable laughter. What the attorney failed to realize or anticipate when she made up this whopper was that I was handling the case for a flat fee. If, indeed, I was spending a great deal of time on the case, then she had paid me a tremendous compliment, because whether I spent 100 or 500 hours on the case I was going to be make the same amount.
Had I been representing the client on an hourly basis, the trick might have worked. I can imagine it would be hard for any client to believe that an attorney would engage in such theatrics to gain a tactical advantage. Make sure you educate your client on this possibility.
Flat Fee Arrangements Promote a Winning Practice
Flat fee arrangements are amazingly liberating.
Most of my fellow litigators won’t take a case on a flat fee, either because they are concerned that they will grossly underestimate the time the case is going to take and end up with an effective hourly rate of $25, or simply because they think they’ll make more on a straight hourly basis.
I acknolwedge that some cases just do not lend themselves to a flat fee because of the unknown factors, but when you have a case with a reasonably predictable time factor, a flat fee is a fantastic way to go, not because it earns you more (although it can), but because it allows you to do more.
This may be counterintuitive to some, and probably blaphemous to attorneys that are only in it for the money, but I’m in it to win and a flat fee gives me greater freedom to do what I need to do to win.
Say you have a case that is crying out for a demurrer. On a straight hourly arrangement, your discussion with the client goes something like this:
You: ”I really think we should bring a demurrer. The third cause of action for breach of contract fails to allege performance, and here they really can’t honestly allege performance, so I think that will get rid of that cause of action.”
Client: ”So if you bring this motion the case is over?”
You: ”No, it will just get rid of that one cause of action if we prevail.”
Client: ”How much will the motion cost?”
You: ”With the motion, the reply and going to court, I can probably do it all in ten hours, so $4,500.”
Client: “So I pay you $4,500 and the motion may not work and even if it does it doesn’t end the action it just gets rid of one cause of action?”
And what the client is thinking is: “Damn attorneys, he’s just trying to run up the bill.”
With a flat fee, all those conversations are eliminated. If I think a demurrer is needed, I bring it. If I think more discovery is needed, I propound it.
And this isn’t pure altruism. Yes, I do this to win, but being free to do everything I want to do on a case may allow me to prevail on the action much more quickly, making the flat fee a winning bet for me financially.
A few tips for flat fees:
Educate the client as to the fantastic deal you are offering, because other attorneys lie. Less scrupulous attorneys snare clients with a small retainer, never disclosing what the case could ultimately cost. So, one attorney is offering to handle the case with a retainer of $5,000, and there you are quoting a flat fee of, say, $25,000, not including trial. You need to make the client understand that a small retainer is a false economy if the fees ultimately go far beyond the flat fee you are offering. In one case I quoted an amazing flat fee for a client because he had limited funds and I really wanted the case because it presented a cutting-edge legal issue that would give me bragging rights if I won. When I didn’t hear back from him, I called to see what was going on. Turns out he had shopped my offer around, and another attorney had expressed shock and outrage that I would quote such a high number, telling the client the case would never cost near that amount. Three months later the client was back at my door, asking if I would still handle the case for the amount I had quoted. The attorney he retained had already billed him more than the flat fee I had quoted.
Always offer an hourly and flat fee arrangement. To counter the above problem, your fee agreement should always offer both a flat fee and hourly arrangement. The client may have reason to believe that the matter is going to settle quickly, and therefore thinks a flat fee would be a waste. Be sure to include language that the flat fee is not an indication or estimation of what you think the case will cost on an hourly basis.
Make clear that you get to drive the bus. The agreement must provide that under the flat fee arrangement you have discretion to decide what is necessary to prosecute or defend the action, and that any requests by the client that you deem to be unnecessary will be billed on an hourly basis. Without this provision, the client will decide that since it is not costing him anything, you should take the deposition of everyone living in Malibu, just in case they know anything.
Break the flat fee into parts. Some attorneys that offer flat fees hedge their bets by quoting a flat fee that covers all the way through trial, knowing that most cases don’t go to trial. Not only is that unfair to the client, in my opinion, but it also results in sticker shock to the client and allows them to fall prey to those aforesaid lying attorneys. At a minimum break the flat fee into two parts — one for pre-trial and another if the case goes to trial. However, a flat fee for a trial can put you in an awkward position if, for example, defendant has a change of heart and stipulates to judgment. (I had that happen twice in back-to-back cases. I guess I’m just scary looking or something.) My fee agreement provides that the flat fee for trial is payable in advance, but will be treated as a cap, not earned upon receipt. I keep track of my hours, and if I pull off a quick victory, the client gets the flat fee back, less my regular hourly rate.
Liberate yourself! Go for the flat fee.
Let Me Google That For You
I just had one of those “how did I not know about this great website” moments. But first let me tell you how I’m going to use this site.
Here is how the call typically goes.
Caller: ”I just got fired and my union isn’t doing anything about it.”
Me: ”Oh, I’m so sorry, we don’t handle wrongful termination cases that involve union workers. There are some additional procedures when a union contract is involved, and we feel that clients are better served by attorneys who specialize in those type of cases. Unfortunately, the attorney I used to refer those to got out of the business, so I’m looking for a good referral. If you do find a good attorney, would you do me a favor and call me back with your experience so I’ll know if that would be a person to whom I can send union cases?”
Caller: ”How would I do that?”
Me: ”Call me back?”
Caller: ”No, find an attorney.”
Me: ”How did you find me?”
Caller: ”I Googled you.”
Me: ”Good. Do the same thing, just add an additional search term to get an attorney that handles union cases.”
Caller: ”How would I do that?”
And so it would go.
Now with Let Me Google that For You (lmgtfy.com), I can find the information the caller is seeking, and send it to them in an email. It gives me a link I can send with all the search results. Click this link to see what the caller receives.
OK, I probably won’t use it. But I could.
“Freemiums” are a Great Law Firm Marketing Tool
“Freemium” is a business model that works by offering a product or service free of charge (typically digital offerings such as eBooks) while charging a premium for advanced features, functionality, or related products and services. The word “freemium” is a portmanteau* combining the two aspects of the business model: “free” and “premium”. Thanks Wikipedia.
Freemiums are a great way to promote a law firm. A potential client visits your blog and is greeted with an offer of an essential report for free. And why would you do that? Because you must capture the client’s email address in order to provide the free report. This allows you to follow up with the potential client, and the report with all your contact information remains in the hands of the potential client so he or she can contact you when ready.
Clients shop for attorneys. Hopefully your website will be enough to generate a call, but that may not seal the deal. On many occasions a potential client has called, I’ve wowed them with my fount of knowledge, and sent them back to my assistant to schedule an appointment. A few minutes later, the phone rings again, and it is the same client calling to discuss the case, not realizing she is calling the same firm. She is just working her way down the Google results and calling every attorney she finds. A freemium can distinguish you from the pack of attorneys clients are going to call.
Most attorneys I discuss this technique with have never considered using a freemium as a marketing tool, and can’t even envision how they would do so. Of course, whether the freemium approach is suited to your firm will depend on the nature of your practice, but I can’t imagine too many circumstances where it would not work.
A bankruptcy attorney could offer the report, “Ten Things You Must Know to Survive a Bankruptcy.” I’d want that report. A probate attorney could provide, “Five Steps to a Painless Passing.” Okay, that’s sounds a little macabre. I’ll have to work on that one, but you get the idea.
Needless to say, the report should provide valuable information. I’ve occasionally download a free report and found that it offered no information but rather was just an ad for the service being offered. Irritating your potential client is not an effective marketing technique.
And speaking of effecting marketing, I came up with this topic because of the excellent implementation of a freemium by Lilach Bullock. I “followed” her on Twitter (sounds a little stalkerish), and her auto response (I’m assuming it was automated) was the following:
“Thanks for following me. I would like to give you a FREE copy of my Ebook – 5 Crazy Ways to get buyers to your website.”
She then provides a link to a page that required me to give my email address, and a few seconds later her report was in my inbox. I considered just providing the link here, but she may want it to be a reward for following her on Twitter, so that would blow the whole deal.
The report is very good; one of the best freemiums I have ever received. If I had paid five bucks to put this on my Kindle, I would have considered it money well spent. Ms. Bullock does tweet A LOT but she seems to be providing very good suggestions for Internet marketing from what I have seen thus far. Be sure to follow her on Twitter (@lilachbullock) to get your copy.
Speaking of Twitter, be sure to visit Pay With a Tweet. You offer your freemium in exchange for a tweet about it. I haven’t tried it, but it sounds like it could be a great way to build some buzz.
* And thanks Wikipedia for the word of the day. ”Portmanteau” - a word or morpheme whose form and meaning are derived from a blending of two or more distinct forms (as smog fromsmoke and fog). I’ll be sure to work that into my next brief.
Posted in Business, Income, Internet Marketing, Starting Your Own Firm, Your Own Law Firm | Tags: Aaron Morris, Freemiums, Law Firm Marketing | No Comments »
Don’t Let the Client’s Problems Create Problems for You
Being actively concerned about your clients’ problems will naturally come with the territory if you have a heart. When you are representing someone who is about to lose their home due to fraud, or lose visitation of a child through a custody battle, you can’t help but be awed by the life-altering nature of your representation.
I still lose sleep worrying about my clients’ cases. Sometimes the stakes are just so high I shudder at the potential outcome. I have complete confidence in my own abilities, backed by a great success rate, but you can never eliminate all the vagaries of litigation.
However, I now have fewer sleepless nights because I eventually realized that the stress was coming from two directions, and a roadblock could be placed in one of those paths. There is the unavoidable stress that is going to come from any litigation because you want your client to prevail and are concerned that the judge or jury will reach the wrong conclusion. But there is often another source of stress created by the client. That stress can be eliminated if you are firm with the client.
For example, I used to have continual problems with discovery responses. The requests would come in, and my paralegal would immediately send them to the client with a deadline for the client’s input, far enough in advance of the due date for us to meet with the client and finalize the responses. Inevitably that deadline would come and go with no response from the client, and we had to act like bill collectors, bugging our own client for the responses, while seeking extensions from the other side and hoping we won’t ultimately be sanctioned.
In some extreme cases, I even had clients that simply refused to respond to discovery, especially requests for admissions. There’s something about requests for admissions that sends some client into orbit. They think that admitting to any fact, no matter how innocuous, provides the other side a victory.
“Admit that Exhibit 1 attached hereto is a true and correct copy of the contract.”
“I won’t admit to that!”
“But it is a copy of the contract. We attached it to our complaint.”
“I don’t care. They’re up to something. I won’t admit it.”
This is a perfect example of making the client’s problem your problem. If the client doesn’t want to cooperate in the process, he is free to make that decision. Now when the deadline comes, the client gets one friendly reminder. The next “reminder” is a nice letter telling the client how much we have enjoyed representing them, and how we are saddened that we cannot continue representing them because of their decision not to cooperate in the discovery process. We enclose a substitution of attorney for them to sign. That always generates a phone call from the client, and we schedule an appointment to sit down and prepare the discovery.
In one case a woman came to me in tears, because she thought she was about to have her case thrown out of court. She was representing herself in the action, and had been served with a motion for summary judgment. Based on her understanding of motion deadlines, she thought the opposition was due the following day. She had no idea how to oppose the motion, so she was sure that she was going to lose her case.
I looked at the motion, and found that her fears were based on a misunderstanding. She had calculated the deadline under the rules for standard law and motion matters, not knowing that a motion for summary judgment provides much more time for an opposition. In fact, she had 60 days remaining to file her opposition. As you can imagine, she was thrilled with this news. She left with my fee agreement, promising to sign and return it with the required deposit. And in fact, she did return with the signed retainer, albeit without the fee deposit, 60 days later. Having dodged the bullet once, she waited until the day before the opposition was due to seek to hire me.
The old me probably would have scolded her for waiting so long, and then proceeded to set everything aside so that I could deal with the motion on an emergency basis. But the wiser me declined the case. I hated that the client would probably lose her case for failing to oppose the motion for summary judgment, but I did not create the problem and would not pay the price for her delay. I have no problem with emergencies, but I am not going to put my name on a rushed pleading.
In retrospect, I realize she was probably setting me up. Both times she visited me, she said the money would be forthcoming, but that I had to deal with the emergency. When I alleviated the emergency the first time, she just waited until it was once again an emergency, hoping I would deal with the motion before realizing she was not going to make good on her promise to pay me.
Circumstances like this will arise often in your practice. Emergencies can be a great source of business. I have been referred a number of trials because it is known that I am willing to step in on the eve of trial when a conflict arises. But for a successful and fulfilling practice, you decide which emergencies you want to deal with, and don’t let the client create stressful deadlines for you.
Embrace the stress that naturally comes wanting to win for your client, but keep things in perspective. Remember that almost all of the problems faced by clients are self-inflicted to some degree. A woman may be going through a horrible divorce through no fault of her own, but she is the one that decided to marry the schmuck in the first place. A homeowner may be at risk of losing his home because he used it as collateral for a loan, but he made that decision. Your task is to do your best to get the clients out of these predicaments, not to take on the weight of their bad decisions.
Don’t Be That Attorney – What Part of “Without Cause” Don’t You Understand?
Forgive me if I periodically vent here, but I’ll use my diatribes to illustrate important points.
One of my fundamental points is that the practice of law is far more enjoyable if you are on the right side of a case. You can feel great about what you are doing, knowing that you are on the side of justice. You get to fight the good fight with your super hero cape blowing in the wind, while the other attorney knows that his or her only function is to obstruct justice.
Don’t be that attorney.
A case of mine provides an example. My client was a skilled professional who was hired by a company pursuant to an employment agreement. The agreement provided that our client could only be terminated for cause, and if our client was terminated without cause, he would receive a year’s wages as severance. The company breached the agreement by terminating our client without cause and failing to pay the severance. We sued for breach of contract.
Upon receipt of the complaint, the attorney for the company called with the usual posturing, saying that he would bring a string of witnesses to testify that my client had been a terrible employee who couldn’t walk and calculate fractals at the same time. I knew better, so I called his bluff. If the facts were so clear, I suggested we both save our clients a lot of money and use one of our jurisdiction’s expedited programs. We have a program that most attorneys are not even aware of, whereby an entire case can be submitted on declarations and decided very quickly. If that’s too scary, there is an expedited jury trial method where both sides get three hours to put on their case and six or so jurors decide the matter, with no right of appeal.
The only issue in this case should have been whether or not there was cause to fire my client. If defense counsel was so confident that he could show cause, then let’s do it. You put on your evidence, we’ll put on ours, and the judge or jury can decide. Come on, defense counsel. As Dirty Harry would say, “You’ve got to ask yourself one question. ‘Do I feel lucky?’ Well do ya, punk?”
Apparently the answer was no. Defense counsel declined my offer and instead filed a demurrer, based on “uncertainty”. Really? Uncertainty? The complaint alleged very clearly that my client was terminated without cause, and that the company was therefore required to pay the year’s wages.
“But whatever could that mean?”, asked the demurrer. Instead of just answering the complaint, the company paid probably thousands of dollars in legal fees to argue that it could not possibly determine the basis of the claim from the wording of the complaint. Defense counsel claimed we should have alleged additional facts regarding how the termination was without cause.
How can one provide more detail about how a termination was without cause? That’s like alleging that Diet Coke is sugar free, and the other side asking for more details about how it is free from sugar. Maybe if we had used stronger words? “Plaintiff was absolutely, positively fired without cause.” Or perhaps, “Plaintiff was really, really, really fired without cause, and that’s no lie.”
I wish I could credit my brilliant oral advocacy, but in overruling the demurrer, the court would not even allow oral argument. The court said the complaint was fine and ordered the defendant to answer. And so the case went, with the company paying tens of thousands to its attorney until it ultimately settled for the full amount owed.
What did that defense accomplish? Can defense counsel feel good about the time he spent on that case? I’m probably just naïve, but I believe that has to take a psychological toll. What is the distinction between a con artist that tries to cheat someone out of their money, and an attorney who tries to do the same thing by way of litigation?
Don’t be that attorney.
All Clients Will Shop On Price if That is the Only Distinguishing Factor
I’m not here to spread doom and gloom about the legal job market, but these articles keep catching my eye. The latest if from the TaxProf Blog, where Paul Caron reported on a service he described as the eBay for lawyers, with the terrible name Shpoonkle. The Shpoonkle service allows clients to post their legal problems, and member attorneys bid on the work.
The site was started by a law student concerned about his $140,000 in student loans and the poor job market. Apparently his concerns are well founded. Caron cites the Association for Legal Career Professionals, which reports that only 64% of law graduates in 2010 had full-time jobs that required a J.D.
What I found interesting was the very negative response to the service from another blogger, Scott Greenfield on Simple Justice. He suggests that “[a]ny lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated.”
Why so? Although Shpoonkle might make the process a little more structured, this bidding war among attorneys has been going on since advertising was legalized. Mill practices like simple Chapter 7 bankruptcies, uncontested divorces and traffic ticket defenses have competed on price for decades, and that is as it should be. Any system that discourages competition and forces an artificially inflated price should be rejected. Providing affordable legal services is something we should all strive for.
Even more sophisticated matters are being shopped around by clients. Recently a prospective client called to say he was retaining me after consulting with seven other attorneys. He confided that I was on the high end of prices he had been quoted, but that he had been impressed by my even-tempered approach, while all the other attorneys had wanted to go to war. But that’s really just another way of saying that he thought I’d be less expensive in the long run.
The takeaway here is to know that clients will always shop on price if that is the only distinction among attorneys, and it is your job to make it about something else. When a client balks at my proposed fee agreement because two other attorneys quoted lower hourly rates and deposits, I explain that is a false savings if those attorneys take twice as many hours to perform the work. If I know they are going to continue shopping or are considering another attorney, I provide them with a verbal shopping list.
“I’d be happy to represent you, but please go with the attorney who gives you the greatest comfort level. Let me give you a couple of things to look for. Most attorneys will probably tell you that you can’t recover your attorney fees in this type of case. I have found two techniques that make it possible, although certainly do not guarantee, that you will recover your attorney fees. Be sure to ask whichever attorney you choose if they have a means to try to recover your fees, and if they don’t, have him or her give me a call so I can walk them through the process. Also, it’s always the hope that a case can be resolved without the time and expense of going to trial, but you want someone who is comfortable in a courtroom in case that becomes necessary. I’ve taken more than a dozen of these cases to trial. There is a real trick to getting the proper jury instruction on the elements, so be sure your attorney has gone thorough the process a few times.”
This speech is completely honest and provides a great service. I have successfully obtained attorney fees for my clients using a method that is so cutting edge that it is not in any reported decision. The second technique simply involves the use of Requests for Admissions, which many attorneys don’t understand provides for the award of attorney fees or simply never use them properly to set up such an award at the conclusion of the case. It does concern me that the client may be penny wise and pound foolish and go with another attorney who won’t know or apply these techniques to get the client their attorney fees. A client could nonetheless hire the less expensive attorney and take me up on my offer to educate him, but that has never happened. Understandably this generous offer to educate their attorney leaves the client thinking, “why would I hire an attorney who has to call another attorney to figure out how to handle my case?”
Back to Shpoonkle. It should not be assumed that an attorney who competes on price and bids for work is anything other than a fine attorney. (Don’t most attorneys representing insurers bid for the work, agreeing to take a greatly reduced hourly fee?) He or she may just be new and looking for some experience, and/or feel good about providing services to those who fall between the cracks; too much money for Legal Aid and too little money for most attorneys. I don’t know any attorney who does not provide pro bono service, voluntarily or otherwise, but it is unreasonable to assume that it is enough to cover all people in need.
P.S. Thanks to Scott Greenfield for finding and posting this great video:
Posted in Income, Wages, Your Own Law Firm | Tags: Aaron Morris, Shpoonkle, Your Own Law Firm | No Comments »
