Published By: Maxwell S. Kennerly, Esquire

The Business of Law

Subscribe to The Business of Law via RSS

A year ago, CareerBliss reviewed 65,000 employee-generated reviews and concluded that the “least happy job” in the country was “associate attorney.” A couple naysayers jumped in this as proof that the younger generations of lawyers are entitled complainers, but, truth is, if you ask enough lawyers of any age how they feel about their jobs, the description of life in the law begins to sound like Nabokov’s translation of the Russian word toska:

“At its deepest and most painful, it is a sensation of great spiritual anguish, often without any specific cause. At less morbid levels it is a dull ache of the soul, a longing with nothing to long for, a sick pining, a vague restlessness, mental throes, yearning. In particular cases it may be the desire for somebody of something specific, nostalgia, love-sickness. At the lowest level it grades into ennui, boredom.”

The close relationship between misery and the law isn’t anything new. Consider the law review article from fifteen years ago, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 VAND. L. REV. 871, 874 (1999), written by Patrick J. Schiltz, who is now a federal judge. It’s such a good read, and still so relevant, that it seems to vanish from every location it has been posted in the past; the best I could find was this abridged and unformatted version, and this scan of a printout of an online article that Schiltz published a year later, summarizing many of his arguments.
Continue Reading Finding Happiness As A Lawyer

[Update, April 25, 2016: And here’s an example of lawyers getting hit with a sanctions motion for the exact line of work recommended by Frank, i.e., class action objections. Like I said, if it was easy, everyone would be doing it.]

Over at Point of Law, Ted Frank, with whom I’ve disagreed before, tells lawyers to “stop complaining about the legal job market” because there’s plenty of work, if they want it:

Every month, I’m presented with class action settlements where class members have legitimate objections and want to object, but my attorneys don’t have the time because of other opportunities or commitments. Every month, I’m presented with still other class action settlements where class members would have legitimate objections, but no class member ever approaches me. … I don’t have a monopoly on class action objections or helping consumers and shareholders. At the risk of creating competition that cannibalizes my donors, go do what I do, maybe you’ll do it better.

He might be right that there’s money to be made in representing objectors to class action settlements, because there’s the potential for objectors’ attorneys to be awarded attorney’s fees for their efforts. It strikes me as a plausible line of work, although, like all contingent fee work, a risky one, and one where you’re always worrying about the origin of your next cases. I must also admit that the long-term economics are a bit concerning to me: while your potential for reward is sharply limited (because you’re unlikely to be awarded anything above a reasonable hourly rate for the time worked, and even that is only paid months or years after the work is performed), your potential for loss is not (because you can walk away from cases without recovering a dime for your work or your expenses).

But that discussion of the merits of the practice puts the cart before the horse: plaintiffs’ law firms don’t just discover viable legal claims somewhere in the world and file them, they only enter the picture after clients find and hire the lawyers. Marketing lawyers is hard work. If Frank has some suggestions for how lawyers can pick up a steady stream of strong class action objection cases then he could potentially create jobs by sharing those suggestions. Similarly, if he is indeed presented with multiple meritorious, potentially-profitable objections every year that he turns down for lack of time, then he could do what most plaintiff’s lawyers do when they don’t have the time or resources for a meritorious case: send them to other competent lawyers.

More to the point, class action settlement objections are a unique and limited market and the dangers (both to lawyers and to clients) of inexperienced lawyers trying to jump into that field aren’t great. If that’s all Frank wrote about, I’d just let it pass.
Continue Reading First Lesson For New Plaintiff’s Lawyers: If It Was Easy, Everyone Would Be Doing It

A little under a year ago, David Segal exasperated the legal blogging world with a New York Times article about how law schools fail to adequately train lawyers, leaving the hard work of an apprenticeship up to the law firms that employ recent law graduates. (My thoughts on the article, along with links to several others’ posts, are here.)

Not much has changed since then. There are still too many law schools, admitting too many students for too few jobs, and holding them for the unnecessary third year to collect an extra year of tuition. Earlier this week the Wall Street Journal again noted “some companies do object to paying [law firms] for inexperienced junior lawyers [to work on their matters], reasoning that the law firms should bear the cost of training first- and second-year associates.”

So it falls to the more experienced lawyers — sometimes themselves just a few years out from law school — to figure out how to train the new hires. Mark Herrmann’s “The Curmudgeon’s Guide to Practicing Law” does a good job of conveying to new lawyers the gestalt of how a lawyer manages himself or herself, and his columns still convey that same sense of professionalism, though they’re not quite as helpful for lawyers who are not in-house.

There’s an old saying, “fast, good, and cheap — pick two,” and it applies just the same to training newing lawyers, though with some modifications. “Cheap,” in my humble opinion, is a mixture of how much time you spent finding and vetting potential employees and how much you offered to pay them. The more effort you put into finding the right candidate and the more you pay, the better the candidate you’ll hire. Looking beyond grades to other factors like indications on their resume they have initiative or offering summer internships that give you a longer period to evaluate candidates will help you separate the truly-talented from the merely-good-at-grades. Money, too, is always an issue: sure, it’s a bad market for most law graduates, but not for all law graduates, and if you want to attract and to keep quality lawyers, you need to compensate them appropriately.

So the “cheap” part of the equation is resolved beforehand or resolved in the salary and bonuses you offer. That leaves fast versus good, and that’s where the problems start. 
Continue Reading How To Train New Associate Lawyers

You don’t have to go far to find a lawyer referring to himself or herself as “aggressive” or “tenacious” (though I have yet to see ads for a “bellicose” or “obstinate” lawyer). It’s not as common to see animals known for aggression (like the Honey Badger) since the Florida Supreme Court said it was an ethical violation for a law firm’s television commercials to make reference to pit bulls in The Florida Bar v. Pape, but there are still plenty of “bulldog lawyers” out there.

It’s not hard to see the intent behind self-described “aggressive” lawyers, who tend to show up most commonly (but not exclusively) in the fields of criminal defense and civil litigation. Someone in the market for a criminal defense lawyer or a litigator, of course, is going through one of the worst periods in their life: they’re either being prosecuted or sued, or they were recently hurt or cheated. The “aggressive” or “tenacious” lawyer swoops in to prey upon their fears and manipulate their emotions, promising them a form of rough justice that sounds loud and angry and looks like the lawyers on television.

What these lawyers don’t mention is that “aggressive” lawyers are hated by other lawyers, who discuss among themselves how to handle these obnoxious bozos as if they were mentally ill, and then try to mentor younger lawyers to not behave that way. They’re hated even more by judges, who have to strain not to hold the poor choice of counsel against the client. Putting on an obnoxious show can entertain clients, but it rarely advances the client’s case; “winning” in the law looks less like Lt. Kaffee yelling about the truth in court than like than Adm. Nelson wandering through his gardens pondering new battle tactics that will crush the French and Spanish fleets.Continue Reading Ethics, Civility, And The Aggressive Lawyer

There is no shortage of information on the Internet about how to start a solo or very small law practice, perhaps because there are too many recent law graduates unable to find firm jobs and so become “suddenly solo” young lawyers, and I don’t mean to add more general advice to that big pile. I’ve never been a solo practitioner; I am, however, responsible for my own cases and accountable for my own revenues and expenses, and I have also seen my fair share of other lawyers who struck out to be solos and then, well, struck out.

In the big picture, I think Jordan Rushie’s reality-check about starting a solo practice and this interview on The Girl’s Guide To Law School give some of the best single-article advice on the internet about running a practice. New lawyers with their own practice, if nothing else, should repeat to themselves “most malpractice and disciplinary actions result from a lack of follow-up and follow-through” 108 times daily, like a religious mantra, until the importance of process sinks in. (I’ve previously written my thoughts on marketing for young lawyers, and how litigators can improve their skills.)

Carloyn Elefant recently ignited another debate over solo practice with an anonymous guest post by a lawyer describing how his experiment in solo practice failed. Scott Greenfield challenges the author’s mistaken “expectation that he would not only be able to create a viable practice out of nothing, but that it would allow him work/life balance.” Sam Glover similarly notes that there is no free time in the first few years of a solo practice, there is merely more time for marketing and networking.

There was, in my opinion, another fundamental problem with the anonymous poster’s experiment. His business model misunderstood the nature of contingent fee litigation:

I planned to practice criminal defense, immigration, civil rights (police and corrections misconduct), and consumer law (debt defense and FDCPA).  My essential plan was to finance contingency civil rights work with revenue from flat-fee criminal, immigration, and consumer work and contingency FDCPA work.  

(Emphasis mine.)  Before I practiced contingent fee litigation, and perhaps in the first few years, I would have thought this contingency-and-fixed business model for a solo or small firm made sense. It looks like a good way to hedge bets: on the one hand the solo would have the regular income from the hourly and flat fee work, and on the other hand, have the irregular but potentially more lucrative income from the contingency fee work. I still hear lawyers talking about setting up their practice this way, mixing everything from family law to small business with personal injury or civil rights work.

Adding to the apparent sense of this business plan, there’s a handful of prominent lawyers in every city thriving on this model, usually (for reasons that will have to wait for another post) by mixing criminal defense along with catastrophic injury and wrongful death. Don’t be fooled. These success stories are the exception, not the rule, and they succeed because they have two things most solos likely don’t: a large referral network and big war chest. Their business model, however, does not scale down to the average solo practitioner’s size. Let’s review a little math to see why not.

Continue Reading The Black Swan Solo Practice Business Model That Will Bankrupt You

Few insults draw the ire of personal injury lawyers like “ambulance chaser.” Unlike “trial lawyer,” which business interests have been trying to turn into a slur for years — despite the fact that the term means little to non-lawyers and, among lawyers, can be a compliment for both plaintiff’s and defendant’s counsel — “ambulance chaser” is unambiguously derogatory, implying a mixture of greed, desperation, and exploitation.

The term is doubly insulting because it strikes at the part of our work that is the most emotionally challenging and is the source of our greatest pride: the fact that we are trying to help injured people. In the last week I spoke with a woman who cannot work or even stand anymore because of the pain from titanium clips left inside her by an incompetent physician, and I prepared discovery in a case so tragic that, in every conversation — whether with a doctor, an expert, or even the defense lawyers — there will be a moment of stunned silence in which empathy instinctively forces us to consider that, every day, we do the same thing that family did, and that we have been spared their fate by sheer luck. Mention the word “ambulance,” and I will think of how, inside many ambulances, there is a very hurt person with a sad story that could or should have been prevented, a person that may end up in my office and on my mind every day for years to come. Like it’s my fault that Ethicon makes defective hernia mesh and Bayer’s Essure is a disaster?

Yet, as an amateur etymologist, the term bothers me for another reason: there’s no clear definition. Ask Wikipedia, and it equates “ambulance chasing” with barratry (“barratry can refer to a lawyer seeking clients at a disaster site, which is also known as ambulance chasing”), but there are two problems with that. First, barratry is a notoriously difficult term to define — just ask the Supreme Court, which has been trying for nearly two centuries to define it in the maritime context, see Patapsco Ins. Co. v. Coulter, 28 U.S. 222 (1830)(“It cannot be denied, that what with adjudged cases and elementary opinions, this doctrine has got into a great deal of confusion.”) — and, second, the legal usage of “barratry” usually refers to stirring up groundless litigation.

It certainly would be wrong for a lawyer to chase an ambulance, peddle their services, and then convince the injured person to file a baseless suit, but is that really what is meant by the term “ambulance chaser?” Or does it also refer to lawyers who improperly solicit clients with meritorious cases? 
Continue Reading The Lawyer As Ambulance Chaser

The legal blogosphere spent a good deal of time discussing Horace F. Hunter last October, when the Virginia State Bar sanctioned him for the terrible ethical violation of truthfully describing his own successes — which were all a matter of public record — on his blog. Said the Washington Post:

Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

At least that’s what all of us, including Carolyn Elefant, thought it was about, but when it came time for the actual hearing the bar apparently shifted (according to Horace Hunter) its focus from the lack of a disclaimer to the failure to obtain client consent before re-publicizing the matters that were already on public records. Hunter lost, then appealed, and according to Bob Ambrogi just won his appeal on the client consent issue but lost it on the disclaimer. So we’re back where we started: a strict application of the disclaimer rule. If a lawyer in Virginia mentions one of their cases, they need to follow the rule to the letter.

I’m not a fan of the disclaimers, and I don’t think Hunter should have been sanctioned. As I wrote in the comments on Carolyn’s site back in October: 
Continue Reading Horace Hunter And The Sham Lawyer Advertising Disclaimer

Four and a half years ago, I wrote a brief post criticizing Thacher Proffitt’s hypocritical plan to fire their associates while giving under-performing partners the opportunity to “market” and “retool” themselves.

It didn’t work. A year later, the 160-year-old law firm was dead, a month after I had written about how large corporate firms were risky, transient businesses that will slough off the associates at the first sign of trouble. A year later, I came back to the subject of the broken social contract between young lawyers and their law firms, again noting that “firms show no loyalty to their young lawyers and so receive none in return.”

I thus wasn’t the least bit surprised by this recent explanation of how the mighty Dewey LeBoeuf came to its own demise:

A shared sacrifice ethos did not exist at Dewey. Mr. Davis subscribed to a “barbell” compensation system. On one end were the so-called rainmakers with big books of business who were lavished with multimillion-dollar, multiyear guarantees. Dewey’s stars were paid as much as $10 million a year. (Mr. Davis himself earned about $4 million a year, but cut his 2011 salary to $300,000.)

On the other end of the barbell were partners who worked on the court cases and deals brought in by the rainmakers. These partners were paid about $300,000, creating a dynamic where the highest-paid partners were making 30 times more than the most junior ones.

At Skadden, by comparison, the highest-paid partner makes no more than five times the lower-paid ones. One former partner called the arrangement “something closer to feudalism than a true partnership.”

They were all supposed to be partners, but the partner who can schmooze at cocktail parties and on the golf course took home $10 million while the partners who actually “worked on the court cases and deals” — you know, the ones who practiced law — took home $300,000? And they were surprised when the whole thing collapsed? 
Continue Reading Big Law Firms And The Crack Dealer Business Model

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that? 
Continue Reading How To Excel At The Basics As A Young Litigator

Yesterday, a pizza. A few weeks ago, a bouquet of flowers. A few months ago, a pound of yerba mate with a calabash gourd and a bombilla. And a bunch of thank you notes.

As a lawyer, I like to think that my work solves people’s problems or at least makes things a little better, but the pizza, bouquet, and yerba mate were all gifts I received from people whose problems I did not solve.

There’s a nice take-out-only pizza and hoagies around here, and one day a few months ago the owner asked me, you’re a lawyer, right? I am. Can I call you tomorrow? Sure.

The owner of the pizza place had some landlord–tenant issue arising from a prior place he leased. I told him it wasn’t my field, that I didn’t have any documents in front of me, that I couldn’t advise him specifically on his situation, but I could give him some general background on landlord-tenant law, I could explain how a landlord–tenant lawsuit is filed, served, and heard in small claims court, and I could refer him to someone I knew who was both competent and cost-efficient.

That was it. The whole process took about 30 minutes.

Since then, he’s offered me extra food every time I’ve stopped by. No charge. Take a drink. I put some extra fries in there. He was offended the first couple times I tried to politely decline, so now I just say thank you.

The bouquet? I told them they were likely going to lose the case, but nonetheless referred them to someone who might be able to help.

The person who sent me the yerba mate never even ended up calling the lawyer to whom I referred them.

I’ve written before about how I don’t charge a consultation fee because the fee would do me more harm than good. But there’s more to it as well: being a decent human being is also good marketing. I’ve heard that Jim Beasley, Sr., used to say “do the right thing and the money will take care of itself.”Continue Reading The Benefits Of Being Generous With Your Time