Saturday, November 16, 2013

Specialize in Something(s)

Generally speaking, the most successful lawyers (by any measure: financial, personal satisfaction, recognition) are the specialists.  I am qualified to say this, having learned the lessons of the somewhat misguided generalist over many years.  (note/disclaimer - In New York, lawyers can't call themselves "specialists", and I am NOT suggesting that anyone hold themselves out to the public as a "specialist".  I am of course referring to lawyers who "focus" on particular practice areas.  For our purposes I will refer to "specialists" because it reads better than "focusers" or "concentrators")  Here are some observations about specialists:

1. They know their stuff. Generalists know their stuff too, up to a point, but on more substantial cases they are soon "out of their element".  It's an uncomfortable feeling, and nearly impossible to explain (or justify) to a client.

2. They get paid more.....and bill with confidence, as they should.  Without question, they are giving their clients value.

3. They usually find their chosen field interesting and exciting.  When I was a confirmed generalist, I proudly found all areas of law interesting, to talk and think about, and to strategize about, but to actually DO.....not so much fun.  Haven't we all, as generalists, had the experience of calling someone who "really knew" about a particular area of law?   At some point I realized it would be better to be receiving those calls rather than making them.   

4. They have systems geared for their specialty......generalists (hopefully) have general, all purpose systems, that a point....but within a specialized field are grossly inefficient by comparison.

5. They know the players in their field, and they recognize the fakers.  The specialists are also known (and respected) by the Judges, the Court attorneys, the Court Clerks, and the other lawyers in the case (if there are multiple parties). For the generalist, being in a big case against specialists is like playing an away game in bad weather after a west coast plane trip.

I have two main pieces of advice for general practitioners:

1. Specialize (focus/concentrate) in SOMETHING(s).  Even if you are still a generalist, have one or two areas where you act like a specialist. Define yourself by it...... "I'm a ________ lawyer", make systems for it, take extra CLE in it, follow all the cases, and otherwise get really good at it.  About five years ago I decided to do this with probate and estate administration.   It's been a practice (and life) changer.

2. Despite everything said above, general practice experience actually makes one a more effective specialist.  In a strange way, and especially today, general practice can be a specialty unto itself, IF one recognizes that there is great value in evaluating situations, handling matters when appropriate, but also...using your knowledge and experience to MAKE GREAT REFERRALS....which is the essence of specializing in general practice.....more on this in the next post.

Sunday, November 10, 2013

Filing a Will With the Court for Safekeeping

Questions sometimes arise about where to keep a Will, and who to tell about a Will. In a perfect world, where families are close and people communicate openly, this would not be an issue. The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowledge that when the time comes, the will will be found and its terms carried out. 

Unfortunately, sometimes it's not that way.  Sometimes clients have to resort to deception and skulduggery just to make their will, and they want to keep it a secret.  Sometimes they are comfortable having people know they made a Will, but they don't want the location of the Will to be known.  

In those situations I always look at whether anyone with access to the will would benefit from its disappearance. I recently had a client whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He has the nephew in the will for about $50,000, has some other cash bequests, and leaves the rest (about $400,000) to his best friend, and if his best friend dies first, to his friend's family.  I know this client long enough and well enough to know this is all legit, but he is very concerned that his nephew would be called to his residence if he died, and the will would not be secure.  (As an aside, in my view a person would have to be conscience-less to destroy a Will, but sadly there are a lot of folks like that)  My client is uncomfortable keeping the Will in a safe deposit box, and uncomfortable about leaving it with me.  I suggested that we file the Will for safekeeping with Surrogates Court, while he is still living.  

Many people, including lawyers, don't know you can do this.  You CAN, and it can be very useful.  It costs $45 to file.  The benefit of this is clear:  A person who doesn't like the Will can't get at it.  Furthermore, if the person dies and the bad person tries to file an Administration proceeding as if there were no Will (which is what they always do), the Surrogates Court clerks ALWAYS checks for wills on file.  This stops the bad guys in their tracks.  I have filed wills for safekeeping quite a few times in the last 30 years.  I know of a few instances where it prevented mischief.  Just as important though, is that the clients always felt better having done it, and they always appreciated the advice.

Thursday, August 15, 2013

"So and So Died, and....."

Every case has a story, a set of facts that answer the question "What is this about?"

That is always the first question. The first question I ask a new client. The first question I address when telling an associate or paralegal about a new matter, and the first question judges ask whenever you appear in court.

In the last few years I've been doing a lot of probate and estate administration cases. I always had a few of these in general practice, and was surprised how much I liked them. Sometimes when I tell people I do "probate and estate administration" they say "Oh, estate planning?", the cases I have are generally ones where they didn't do any fancy estate planning, and then....they died. This turns out to be most cases where people die, and since none of us is getting out of here alive, it seems like a recession proof, law practice growth field.

It is also sufficiently complicated that every lawyer is not trying to get into it (I like to think it's because of the complexity, but perhaps other lawyers find it distasteful). I find it challenging and not distasteful. There is actually something satisfying in bringing a successful completion to someone's affairs. So, I now focus most of my attention on these cases, and have a website devoted to it.   I now have an office full of cases where the beginning of the answer to the question "What is this about?" is always the same....

"So-and-so died, and......"

Thus begins a probate and estate administration case. In New York, probate means there is a will, estate administration means there isn't. Either way the dead person's assets are going SOMEWHERE. Ah, but where, and how, and who is involved, and what's going to happen?

Although the stories all start out the same (somebody died and...), after that it is never the same. Sometimes all falls into place, everybody is lovey-dovey, and it's just a matter of knowing what papers to file. Sometimes these cases are dysfunctional family feuds, with acrimony and bitterness that would humble the worst matrimonial case. If there are anger, jealousy, and other toxic emotions involved in a contested matrimonial, contested estate matters have that and more. It is not uncommon to find a range of toxic emotions among numerous family members (generally the children of an older person), but that none of it has been openly discussed for many years. Then, the dreaded unspoken thing happens (so and so dies....), and now all the things that have not been talked about MUST be talked about. It would be easy to say that these cases all come down to money, and many of them do, but it is also money infused with deep-seated emotional and psychological issues.

I stopped doing matrimonial cases many years ago, precisely because I did not like being involved in such bitterness. One of the things I hated about matrimonial cases was, they never ended. The parties were always coming back for more. Estates are not like that. Even when they are crazy and bitter, at some point they end, the dead remain dead, and the living move on. And no matter what they did during the case, as they fought over their relatives money, none of them are getting out of here alive either.

Perhaps I love the ultimate justice of this area of practice.

Tuesday, May 28, 2013

Law & Pizza

(*All stories true, all names fictitious. This story happened in the early 1980's)

Until I started practicing, I didn’t realize how many different things solo practitioners did. Every “small” business has legal business. All these “business people” are always "doing business." The small business chain is particularly fragile when you sprinkle the human links with some other ingredients. Start with cultural differences, add liberal doses of immorality, greed and stupidity. Stir. You now have the type of case young lawyers often get, the "Purchase or Sale of a Business."

I got a Yellow Pages call from an Egyptian accountant named Omar Haggag. He lived in Brooklyn, worked in lower Manhattan near my office, and needed me to write his landlord a letter regarding some repairs. I did the letter, the repairs were done, and Omar told me I was a great lawyer. The next week he called and said that although he was a New York State sales tax auditor, he also had a small accounting practice in Brooklyn with mostly Egyptian clients. Would I be interested in accepting referrals? I thought this would be a good opportunity, and it was. Over the years Omar sent me many good clients. Omar would call, and in his accented English say, “Mr. Barry, a man is going to call you regarding the sale of his shish-kabob cart." Most of his referrals were productive, practice builders. Some weren’t so good.

Mohammed Elgazi had purchased a pizzeria in Queens. At least, that’s what he said. What he had actually done was give $20,000 to some Albanian men, have discussions about future payments, and started running the pizzeria. He had also lost all his remaining money in Atlantic City. He was having fun making the pizza, selling it to the school kids, and being a boss. The Albanians never bothered him about the rest of the money, for reasons which soon became apparent. They had left the store many months behind in rent, owing money to all their suppliers, and delinquent in taxes. Mohammed was finding it hard to take delivery orders when every other call was from a creditor. I had him come to my office. He also brought another man. I remember him only as "The Albanian." He never said a word, just shrugged his shoulders. “What about the lease?”


“What about the taxes?” Shrug.

“What about the creditors?” Shrug.

I asked Mohammed what he wanted me to do, and he shrugged.

I called upon my years of education, and my four months of experience, and I shrugged. Now we were getting somewhere. Then I took out a yellow pad and pen. This prompted Mohammed to say something I had never heard before, but have heard many times since: “Mr. Barry, maybe you could make some papers to fix this.”

I didn't know exactly what kind of papers I could make, but I had a sense all the players would play ball. The Albanian would play because he wanted to get paid, the landlord would play because he wanted to get paid, and the creditors would play because they wanted to get paid. I also figured the landlord and creditors would prefer paying Egyptian to shrugging Albanian.

I was mostly right. Mohammed arranged some "private financing." In the military they call this "don't ask, don't tell." I didn't ask. He now had enough money to do what the landlord five months back rent and accept an assignment of the old lease. I actually negotiated a five year extension for Mohammed, conditioned upon him paying the first years rent on time, which he actually did.

The creditors were a little harder. I told Mohammed to try to negotiate with them, but if any of them gave a big problem, to have them call me. One call went like this:

"Counselor, my name is Vincent. I represent the Scarola Flour Company. I understand you represent the Egyptian pizza guy on Jamaica Avenue. "

"Oh, are you their attorney?"

"No, let's just say I take care of business for them."

Hmm... Sometimes when your client has financial problems you help them prioritize their debts. Something told me Scarola Flour Company was a priority creditor. Mohammed agreed, and told me Vincent had assured him that if he paid what the Albanian owed ($1,200) and if he made his future payments on time, Vincent would not visit him any more. Mohammed adjusted his budget and brought me $1,200 for Vincent.

"Will you make a paper with him Mr. Barry?" he asked.

"I don't think Vincent goes for papers, and I don't think we need papers with him."

So, I took care of the business with Vincent, and papers were not needed. We also got the Albanian to accept three years of notes on the amount he and Mohammed had originally discussed, with payments to start in six months. The Albanian had a lawyer who may have been Croatian. I couldn't tell, between his accent and his grunting. At least he could get the Albanian to talk. At the closing I asked them what language they spoke to each other. The Albanian shrugged, and the lawyer grunted. Mohammed then whispered to me, "Who the fuck cares."

As time went on, Mohammed seemed to be doing OK as a pizza man. About two years later, he called and said he was selling the pizzeria to "two Peruvian guys, Marco and Alfonso." He said, "This time I want you to make the papers from the beginning." So, we set out to sell the pizzeria to the Peruvians.

The Peruvians agreed to pay Mohammed $1,000 per month for five years. Mohammed asked me if I would collect the payments, for which he offered to pay me $50 (cash!!) each time. I would go at lunch time so I could get a free “two slices and a coke.” At first, Marco had the cash waiting for me. Later, there were times they didn’t have all the money, and would get the rest out of the register. I always felt bad when that happened. We would go in the back to count the money. One day, as we were counting, a mouse ran between our feet. I said, “Marco… a mouse!!!”

He said, “He's not my mouse, he comes from the supermarket next door.”

I skipped my slices that day.

After about two years of this, I got a call from Marco’s lawyer. He said, “You and your client are going to be happy. Marco is selling the pizzeria and he will pay off his balance to Mohammed.”

“Cool, who’s buying it?”



"No, two guys from Afghanistan. "

It was true. We had a closing. Marco sold to the Afghans, and Mohammed was paid. I was done with my All-American pizzeria. It had come full circle. Albanian to Egyptian to Peruvian to Afghan.

Elias Sports Bureau advises it’s the only time in history THAT has ever happened.

Wednesday, May 22, 2013

The Wacky Caterer Files for Bankruptcy

This is a true story, only the client names are changed.

The angriest person I ever encountered was in Bronx Small Claims Court. Luz Calderon had made the unfortunate decision to do one stop wedding shopping with my client, Banderas Wedding Center (Juan Banderas, President). Juan's business model was to take his modest catering operation, and expand it into a Walmart of wedding services. At Banderas Wedding Center, you could get your invitations, wedding gown, bridesmaid dresses, tuxedos, photos, videos, limos, honeymoon, band, rings, and anything else needed for that special day...on a tight budget. He was a general contractor for nuptuals, using a hapless collection of cretinous subcontractors.

I don't know how the food was at Luz' wedding. All I knew was she had not received her wedding pictures and she was not happy. When Juan first came to my office he told me he had some "small problems." He showed me six different small claims cases, three Civil Court cases, one Supreme Court case, and a friendly letter from the New York Attorney General. Luz Calderon's case was the fourth time I had gone to court for Juan. Before I went to the Bronx on Calderon v Banderas, I asked him what happened to Luz' wedding pictures. He said, "the photographer has them."
Prompting me to ask, "why doesn't Luz have them?"
"Well, the photographer wants to be paid."
"Why don't you pay him?"
"Well, he wants to be paid on this job, AND all the other jobs."
After a lot more prompting, I learned that Banderas owed ALL his subcontractors, and they were all taking the same position: no piecemeal payments. Pay in full, or we hold hostages.

Wedding photos were powerful hostages, since the customers desperately wanted them, but this was not prompting Banderas to pay for their release. He had the trump card, one which many a client has played over the years: "I don't have the money." He had small amounts of money - enough to pay me to go to court and defend him "as best as you can." Sometimes he didn't even come with me. It was me against the embittered brides. Sometimes I got to joust with the grooms too, though they always sensed my empathy, not so much for their ruined wedding day, but for their ruined lives.

Luz told the Judge her story. I told the Judge my clients story, such as it was. The Judge wanted to talk to my client, but I had to tell the Judge he "couldn't make it" that night. The Judge told Luz she would win her case, such as it was, meaning she would get a judgment which might not be so easy to collect. The Judge wanted to talk to me privately, off the record. When I approached he whispered, "what kind of piece of shit, moron, asshole of a client do you have here?" I wanted to say, "all of the above," but instead I said, "I'm just trying to represent my client the best I can, and I realize he is going to lose this case, he surely realizes it too, but there is a problem in the business." The Judge asked me what I thought the problem was, and it boiled down to this: The business had all kinds of claims against it, no money to pay, and the second any money came in, various creditors were grabbing it. The Judge then gave me some advice and said, "you can't keep representing him in these individual cases, you'll end up on one of those consumer fraud TV news shows. This client should file for bankruptcy."

From the little I knew about bankruptcy, the Judge's advice was correct. I could not continue defending the wackster on a case by case basis. We needed to stop the insanity, something I later learned was the hallmark of EVERY bankruptcy case. Unfortunately, I had never had a case with bankruptcy issues, nor had I even taken the class in law school. I only knew of one attorney who was a "bankruptcy attorney," but I didn't really know him. However, I had always meant to call him, and here was my chance.

I had never actually spoken to Barry N. Seidel, but I knew he was a bankruptcy attorney. I knew this because sometimes people mistakenly called my office looking for him. I also knew that when I was a freshman at Stony Brook, he was a junior, and we once accidentally got each others history grades. When the error was corrected, he got the A and I got the B. So, seeking to refer the wacky caterer, I made the following phone call:
"May I speak to Barry Seidel, please?"
"Who is calling?"
"Barry Seidel."

He remembered the grade mix-up in college, but he had not mistakenly been getting calls from people looking for ME. I told him I was in general practice, that I had a client who needed a bankruptcy attorney, and I had heard he did that. He said, "I am a bankruptcy attorney. I work at a big firm in Manhattan. Right now I'm heavily involved in the Texaco/Pennzoil bankruptcy. Who would the client be in the case you want to refer?"
"A wacky caterer."
"I'm not so sure I could get involved in a case like that."
I said, "I know, any chance you could refer me to someone?"
He thought about it a bit and said, "I know a guy named Jim Pagano. He just left a good bankruptcy firm to go out on his own. He'd probably be able to do a wacky caterer case."

Not only did Jim Pagano turn out to be a great bankruptcy lawyer who could help the wacky caterer, he became a trusted colleague and friend to this day. We have worked on a lot of cases together. I have found that in every area of practice, a working knowledge of bankruptcy comes in very handy. I have learned certain little things about bankruptcy that are worth sharing:
1. It is often a very strong card.....particularly when unplayed.
2. Sometimes it's the best and only economic alternative.
3. People resist doing it, but there is usually a "catalyst" that forces them.
4. As far as negotiating and business skills, it is a very interesting field, and if I were starting out and looking for something to specialize in, I would look at this field very seriously.
5. People often think of bankruptcy as being about the debtor who is filing, but many bankruptcy lawyers focus on the creditors rights side.

I have not spoken to Barry N. Seidel since, but I have always been gratetful to him for introducing me to Jim Pagano. Here is Barry N. Seidel's impressive bio.

One other related story... a few years after the wacky caterer stopped catering, he called me for some advice. He was managing a restaurant where a story had been published in El Diario (largest Spanish language newspaper in New York) saying the restaurant was a drug dealing location. The story was erroneous and El Diario printed a retraction. Nevertheless, according to Juan, business was way off. He wanted to know if anything could be done, and whether the retraction insulated El Diario from a claim. (OK, he didn't say THAT, but it was what he wanted to know.) I did not think he was calling me "officially" - meaning he was not going to PAY for my opinion, but I told him I would "look into it." A pretty stupid thing to offer, I admit, and I regretted saying it, but this is what I did...

My legal brain knew that I did not know, which generally prompts me to do MY style of research, which is where I say to myself, "who can I call?" I categorized this as a "First Amendment case" because it had something to do with a newspaper. The only First Amendment lawyer I had ever heard of was Floyd Abrams. If he were a baseball player, his nickname would have been "Mr. First Amendment."
So, what I did was, I called Floyd Abrams.

Wanna get through to a famous lawyer? Call at 7 PM. I got right through. I told him I was a solo practitioner in Forest Hills and I had this potential case. He said, "Forest Hills? I went to Forest Hills High School."
So did I.
So, we shot the breeze for awhile, and eventually he told me the law on newpaper retractions and liability. I gave the info to the wacky caterer, but did not tell him who I had called. I did tell all my lawyer friends though, and they always said the same thing:

Yeah... and I'd do it again too.

Thursday, May 16, 2013

Tower of Babble

I've asked the questions at many depositions. I try to approach it with purpose; trying to obtain information, clarify the facts, find out what happened and what did not happen. It's a challenge, bordering on fun. However, taking a deposition through an interpreter is not fun.

I have asked questions through interpreters in Spanish, French, Italian, Russian, Greek, Polish, Chinese (Mandarin, Cantonese, Fukanese, Taiwanese), Japanese, Portugese, Hindi, Urdu, Bengali, Arabic, Hebrew, Creole, Tagalog (a Filipino dialect), and ASL (American Sign Language). I never had German, either because German's all speak English or they don't have too many car accidents. I never took a deposition with a Yiddish interpreter, but I did see one used in court (Brooklyn, of course). Depositions with interpreters share common problems. Here are a few:

1. Some questions do not interpret well. In a car accident case, a lot of lawyers like to start with this question "Did there come a time when the vehicle you were driving came into contact with another vehicle." It's not a great question, it's compound and it can be confusing. Lawyers like it because it establishes certain things: there WAS an accident, with CONTACT, this witness was there, and there was another vehicle involved. I asked five different Spanish interpreters to translate this question, so I could listen to it with my high school Spanish background. They interpreted the question five different ways. One thing about this question IS consistent. When you ask a Spanish speaking witness, through an interpreter, the question "Did there come a time when the vehicle you were driving came into contact with another vehicle", the answer is always the same: "QUE???"

So you have the interpreter ask the question again, and the witness says, "The accident happened at 7 o'clock." or, "You mean was I in an accident?" or "QUE???"

2. Sometimes witnesses want an interpreter, but they actually speak English pretty well. If they understand your question they answer in English. If they don't understand the question, or, if they don't like the question, they wait for the interpreter. I don't let witnesses do this. It's all or nothing. Either no interpreter, or I want the interpreter to do a literal translation of every question and answer.

3. A related problem is when you ask a detailed question, the interpreter interprets it, the witness gives a long response in Urdu, and the interpreter translates it as "Yes". Sitting there, you know the interpreter and the witness have had a dialogue about the question, and the interpreter has taken it upon himself to "paraphrase" an answer. If this happens, I state on the record what has just occurred, then ask the reporter to read back my question and ask the interpreter to do a literal interpretation of the question and answer. If they don't do it, I advise opposing counsel that if this is not corrected I am busting the deposition. I have done that a few times, and I know other attorneys who have too.

4. Sometimes the interpreter is just not great at the particular language. They may have the credentials to do both Mandarin and Cantonese, but they are native to Mandarin and have learned Cantonese. What do you do when they just don't know the word? You see them struggling and they don't know how to say "windshield wiper" in Cantonese. So they try some combination of words like "car glass cleaner" and the witness says the Cantonese equivalent of "Que?" so the interpreter tries the Mandarin word for windshield wiper, and now the witness is mad at the interpreter and says nothing. Finally, the interpreter translates your question in Cantonese, but when he comes to "windshield wiper" he says "windshield wiper," and the witness says "Ohhhh, windshield wiper.." and answers the question.

5. Sometimes, when questioning an English speaking witness, you want to call in an interpreter who speaks "Stupidese," but that is a topic for another day.

Tuesday, February 5, 2013

Law Practice Fundamentals.

Due to deep seated psychological reasons, which years of therapy have not remotely approached addressing, I have always had it in my mind that I could not draw, paint, or do anything remotely "artistic". It's got something to do with my mother being an artist, and worrying too much about what other people would think about my artistic efforts. And yes, Dr. Freud, I know I married an artist, just to keep you amused.

However......once, in preparation for giving a talk on "Building a Law Practice", in an effort to focus on the basics of business, I made a little illustration. This is the only known work of its kind, created by my very hand.....
If I do not explain the meaning of this relic, I fear it may be later discovered and subject to mis-interpretation. The drawing is called "Law Practice Fundamentals". A law practice, or ANY business, is based on THREE basic things:

1. Getting the business.

2. Doing the work.

3. Managing the finances.

If a law practice (or ANY business) is having "problems", the source is often one (sometimes more than one) of these issues.  Most new law practices are initially challenged with Item #1.  I maintain this is easily overcome, though I have known lawyers starting out who claim to have great law skills, great work habits, and know how to handle their finances.  Yet they seem to have no time for marketing, and don't know whether and how to spend money on marketing.  Other lawyers know how to generate business, but they soon drown in it because they don't know how to manage time and/or they have too many cases (or cases they don't really know how to do)

To all these problem areas, or things that we don't know how to deal with, I would add that most empowering three letter word......Y E T.

Maybe this approach is overly simplistic, but breaking it down to these basics gives you a place to start. It also takes what can appear to be a broad question (How do I start or improve a law practice?), and targets areas for further concentration.

Maybe you don't know how to bring in business.....yet.

Maybe you don't have a field of law you you can be the "go to" person.....yet

Maybe you aren't great at billing and collecting and allocating resources.....yet.

Simple questions, with a simple (and hopefully) empowering answer.....YOU'LL LEARN (that's a fact)