Barry Seidel's Law Practice Blog

Who Should Really Make a Will?

2010-06-10T17:46:00.000-07:00

Who Should Really Make a Will?
The answer to this question starts with a question.....

"Who would inherit from you if you did not make a Will?"

When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.

I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?

Think this never happens?

I GET THESE ALL THE TIME!!!

I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".

I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....

Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.

People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.

Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.

I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.

Next post - something not death related!!
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Labels: lawyering, Who Should Really Make a Will?, Wills

So and So Died, and....

2010-05-31T10:19:00.000-07:00

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. It's the first question I address when telling an associate or paralegal or secretary 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?" Well....no, the cases I work on are usually cases where they did not 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 (something I have said to clients many times, only to have them look at me like I had said something either incredibly stupid, or quite profound), it seemed like it might be a 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. I even find there is something satisfying in bringing a successful completion to someone's affairs. So, I now focus most of my attention on these cases, and have set up a probate website www.queensprobate.com. Now I have an office full of cases where 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 that not only is there anger, jealousy and other toxic emotions existing among numerous family members(generally the children of an older person), but that none of it has been talked about, often for 30 years or more. Then, the dreaded unspoken about 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.

Tomorrow - surprising answers to the question "Who should really make a Will?"

Terminal Self-Importance

2010-01-25T17:59:00.000-08:00

Part of being an effective lawyer, and an effective client advocate, is understanding the forum where your case will be heard. The Court system is not just "the Judge" or "the jury", it is also law clerks, court attorneys, and other court personnel who are the gatekeepers for all the cases trying to be heard. If you can't get past the gatekeepers, you will not be heard.

To be an effective lawyer, and an effective client advocate, I have to ask my new clients lots of questions. I have to find out all the pertinent facts, and I have to figure out what is motivating the bad people to do the things they are doing. Yes, sometimes they are just bad and greedy, but even the bad and greedy have reasons (or at least, reasons they think they can get away with it), and I want to figure this out.

Sometimes I take a big risk and play "devils-advocate" with my new clients, and speculate on the opponents arguments (Warning to young lawyers - while this may make perfect sense from your perspective, it can be a very dangerous technique). When I speculate on the opponents arguments, I always use a big disclaimer, something like "THIS DOESN'T MEAN I AM AGAINST YOU". Most clients understand this, but some will respond with "Hey, whose side are you on?" These discussions ARE helpful in understanding your own clients, and how well they grasp the realities of the legal world.

Sometimes it seems that clients think what I do is.....I listen to their side of their claim......I become inspired by the righteousness of it.......I run over to the courthouse and tell "the Judge" about it......and the Judge stops all other business so he can extract the money being withheld from my clients by the wrong-doers........and for this little bit of "work" I want to be paid exorbitant fees.........(oh - and I do this every day, to insure my extravagant lifestyle).

I call this type of thought process "terminal self-importance". In the course of interviewing a client on a new matter, and in deciding whether I want to get involved in it, (note: if you don't realize that during the interview I am deciding whether I want to get involved, and it isn't only about fees....you probably have some TSI going on) I try to assess whether the client has a realistic understanding of what actually happens in Court. Things like:

- There are so many cases in most courts, that the Judge CANNOT recall the details of each case when it is before the Court. Usually, if I have a pre-trial conference, attended by my adversaries and the Judge, the first thing the Judge will say is "What's this about?"

- When a motion is made regarding some aspect of a case, there are generally MANY other motions being heard that day. The motion is usually conferenced with the Judge's Clerk, who puts a lot of pressure on the attorneys to resolve the issues without the Court having to do it. This doesn't mean the Judge or the clerks are lazy or indifferent (though some are), the reality is there are many cases with serious issues, and one (yours) may not particularly stand out.

- You usually cannot proceed in Court without all the interested parties being notified, and without the interested parties being heard. Most Courts and Judges go out of their way to adhere to this one, often to the frustration of the terminally self-important, who need to win NOW.

- As outrageous as the issues in your case may be, they are surely not the most outrageous thing the Court has heard......that week. As an attorney I know this, because they are also generally not the most outrageous thing I have heard (that week) either. This does not mean I don't care, or that I will not give my all towards solving the problem. By having perspective, and knowing the Court's perspective, I will know how to have the case heard (and resolved) in the best way possible.

Terminal self-importance can, and should, be addressed early in the attorney-client relationship. My advice to fellow attorneys is: If you see it and can't at least discuss it, BEWARE. And....make a clear fee agreement and stick to it, clients with TSI will make you earn it!

10 Best and 10 Worst Things About Being a Lawyer

2009-08-10T18:10:00.000-07:00

It's fair to say I have a love/hate relationship with my chosen career path. It is not enough to say the career path is "lawyer". I'll be the first to admit, I don't even know what lawyers who work in big law firms actually do, nor do I know what lawyers who work for the government actually do. I only know about solo and small firm lawyering, the kind where you are your own boss in your own business. Where you figure out how to get clients and cases, you figure out how to get the work done, you figure out how to get paid, and you figure out how to figure out if you actually are enjoying it. Eventually, you ask yourself.....is this what I'm going to do until........I can't do it any more?

Some might say it's an admirable quality to keep getting up after repeatedly getting knocked down. However, which boxer would you admire more....the one who kept going back for his next beating, or the one who got out while he could still walk and talk, and became a gym teacher?

I can't say that I hate everything about law practice, or that I hate every day of practice. I want to believe that if that were true, I'd be man enough to admit it, and use my abilities for something else.

That being said, I regularly ask the question......"Why am I doing this?"

To give it some perspective, here is a top 10 list of the best and worst things about being a lawyer.

10. Best - I know a lot of stuff about a lot of things.

10. Worst - I know a lot of stuff about a lot of things.

9. Best - Sometimes people sincerely thank me for what I have done for them.

9. Worst - Very often people do not thank me, even when I have given them my guts.

8. Best - I have some great stories.

8. Worst - Most of my best stories start out, "I was involved in this crazy case once....."

7. Best - Sometimes you make a big fee for relatively little work.

7. Worst - Very often you make a small fee for pressure packed, brutally hard work.

6. Best - I make my own hours, and I have the flexibility to attend to family matters.

6. Worst - There has never been a day in the last 27 years when I did not think about my cases.

5. Best - I know many amazing lawyers who are also great people.

5. Worst - I know some lawyers who are real jerks.....though not as many as some people think.

4. Best - Some Judges are awesome.

4. Worst - Some Judges act like civil servants.

3. Best - Judges who actually practiced law generally respect what lawyers do.

3. Worst - Judges who never practiced (more than you'd think) treat the lawyers with disrespect. Wow, this one really ticks me off.

2. Best - I am really good at seeing practical approaches to difficult situations, and really good at advising clients who have serious problems.

2. Worst - Very often, people ignore my advice because of illogical personal animus towards the other side (often a family member). This happens even when I advise them not to do this, and show them how harmful it is.

1. Best - Complicated problems do not scare me.

1. Worst - Sometimes really simple people have really complicated problems. I may not be scared, they SHOULD be scared, and the fact that they are not scared ends up scaring me.

I don't know if reading this is useful for any of my readers, but it sure helps me to air it out.

Thanks for reading!!!

How to Get Good Cases for YOU

2009-03-04T17:00:00.000-08:00

It was easy to list "27 things" you could do to get any kind of legal business. I could list 27 more, if I thought it would benefit anyone. A more challenging list is the things to do AFTER you figure out your "calling". After actually THINKING about what your successful practice would look and feel like.

After getting uninhibited in a most quiet way. Not knowing what the plan is, yet. And not caring. Spending the time and effort BEFORE making the actual plans, so that if the plans work, you will really have something.

Most lawyers starting a practice think....."I want to get my practice started". And you know what? They all succeed.....they get a practice started. And then the stated goal is often, "I want to keep it going and do better". And some effort is made towards that meekly stated goal, and what is achieved is exactly what was stated.

What a luxury, what a blessing it is, to be able to re-invent. To start out with an open slate, to think of what you really want for yourself, and take steps in THAT direction.

Recently a client suggested that I work with "less Zen, more alligator". The case called for "fox", so we compromised on a "Zen-fox-alligator" continuum as a long term strategy for the case.

For one starting in practice, or growing a practice, I hope I've showed where the Zen up front is needed. Now here's some serious "fox"..... 9 solid things to get good cases for YOU:

1. Prepare a direct mail campaign to a targeted list of attorneys. For my money, in law practice, nothing gives you better conversion value (advertising that turns into actual paying business) than direct mail. Some work DOES go into this, but that's one reason it works. What is a "targeted" list? These are attorneys and law firms who are in a position to make referrals for what YOU do. That's why you have to know what you want. So you have something, so you can be one who really knows, so you can be enthusiastic, and so you can send that letter making yourself known for what YOU DO. Who do you target? This takes some thinking, but don't let thinking stop you....THINK!!! Some things just go together. When I started my Queens per diem practice, I targeted attorneys who had cases coming up in Queens.

I knew someone who really knew how to do "wrongful death compromises", a very specific matter in Surrogates Court, which happens at the conclusion of a wrongful death case. Personal injury firms hate doing them because it's a lot of work, not really what they do, and it is needed to finish a case and get paid. She targeted personal injury firms with a great mailing, and became well known as the expert in this type of case.

What else would go together? Almost any specialized legal service is sought by general practitioners. Know what they want? For you to really know your stuff, do a great job, and pay them a referral fee in accordance with ethical rules. There, I said it, THEY WANT TO BE PAID, because general practice is really difficult, and referral fees are very important. Oh, and they don't want you to steal their clients, which you won't do because you do what you do, and they can have all the rest. I received a great mailing from a lawyer who specializes in real estate litigation, particularly "partition actions". His mailing arrived when I had just consulted with someone about such a situation, and if you've ever done one, they are nasty, but sometimes the only way to go. When I spoke with him I knew right away that he LOVED partition cases. I'm not sure why, but I could tell he did. I could also tell he couldn't wait to have my client retain him so HE could start working and pay me. I kept hoping I would get more partition calls so I could refer them to him.

A few more good potential matches for a targeted mailing.

Landlord firms by collection firms.
Plaintiff PI firms by comp or disability firms.
Elder law firms by estate administration firms
matrimonial lawyers by tax, or estate planning lawyers
immigration lawyers by any other specialty.
real estate transaction lawyers by real estate litigators

the combos are endless.....if you THINK for YOU.

What goes in the mailing? Two things, sometimes three.

First, the best letter possible. The one which is reviewed and edited and rewritten until it's perfect. The one that describes what you do, why you do it, and when and why they should call you. It can fit on one page, and it will be great. Put some work into it and email it to me, we'll optimize it.

Second - a specialized rolodex card, with your specialty on the flap. I know, rolodex cards are "old school", but here's my thinking. If you send a business card, people generally extract the information and put it in their "system". If they are interested, they'll do this with a rolodex card too, and if they have a rolodex (and many do) it will be filed under your specialty, so they don't have to remember your name, they will find you when they are looking for what YOU do.....which is way better. How do you like THIS rolodex card?

It's in Rolodexes in about 2000 law offices, filed under "Queens".

The third thing you can include in the mailing is a fee schedule, but only where appropriate.

We may end up with Zen, fox AND alligator.

Tomorrow.....item 2, creating a quality website.

Good Cases for YOU....and 27 Ways to Get All Kinds of New Legal Business

2009-02-24T15:21:00.000-08:00

Roll up your sleeves, pull up a chair, pay homage to your personal muse, or do whatever you do when you embark on something new and important......Today is a two for one day. First, we will get started on How to Get Good Cases for YOU. Today will be part 1 of that. I may wax a little philosophical with this, I may go for some "zen in the law". Don't be intimidated. Don't dismiss this part and think....."I'll wait for the REAL stuff". I will tell you how to actually get the good cases for YOU, but I want you on my team first. Oh, and please don't skip to the bottom for the "27 Ways", which are not there to get the good cases for YOU. Those are there to show you how easy it is to "get business". I don't want your goal to be "getting business", I want you to know you CAN do that, it's easy. I want you to tackle the more challenging.....Getting Good Business for YOU.

Why am I capitalizing YOU? Because I wish somebody would have pointed out to ME that this was a better way to approach law practice than "27 ways". First, you have permission to envision. Envision your practice as successful. What kinds of cases are you working on? How much money are you making? Where are you being quoted? Who are your clients? Who is working for you? What kinds of cases are you turning down? Where are you going on vacation?

Hmmm, another hokey goal setting talk? Well, do you want to be successful? Or are you "hoping" to be successful. Which is more likely to actually have you DO real things towards that end? In the limited time we all have, the decisions we make each hour, each day, over how to use our time are directly controlled by how strongly we envision.

I capitalize YOU because I want you to permit yourself to envision a successful law practice, in detail. Why? Because I want you to take the steps to make it happen, and this will involve making certain decisions and acting on them. For YOU, nobody else. And to do this you have to value YOU. It's sort of a private thing. I'll respect your privacy. Have the conversations with yourself if necessary. Have them with someone you trust. Have them with me if you wish, I'll keep it confidential. The thing is, do not fear exploring what YOU want.

Phew, this is getting heavy. I will talk more about it tomorrow, and we will look at specific decisions that will move us toward our visions.

That got me a little tired, so to take a break, and for a goof........I give you 27 Ways to Get All Kinds of Legal Business......

1. Mail announcements to an expansive list of friends, relatives and acquaintances.

2. Join the referral panel of every local bar association.

3. Sign up for the 18-B panel (court appointed misdemeanor cases)

4. Take the seminars for Court Evaluator, Referee, and Guardian ad Litem appointments.

5. Work part-time as an Administrative Law Judge. At the very least you will get good blog material by doing this http://nylaw2law.blogspot.com/search/label/ALJ%20at%20PVB

6. Make yourself known to local real estate brokers.

7. Get to know various accountants, and refer them clients. Trust me, they will refer you business.

8. Refer clients to all kinds of professionals and tradespeople, and follow up.

9. Answer ads in the Law Journal for part-time and project work.

10. Place ads in the Law Journal offering specific services.

11. Sign up with lawyer temp agencies.

12. Place ads in local newspapers.

13. Place ads in out of State Bar journals, especially nearby States. I hit a few home runs with this one.

14. Let other lawyers know you are available in "conflict situations".....Quik story.....a month into my practice, a lawyer in my suite asked me to represent the other side of a business transaction. His client had a "drapery and upholstery" business. My client was the "upholsterer" and was buying that part of the business. When I looked at the contract it seemed kind of unfair. My new client said what foreign born clients always say "What do you think Mr. Barry?" I said the contract seemed kind of unfair, and he said "I think that too, but I want to buy the business, can you fix it?" So I negotiated a better deal, and the referring lawyer was kind of mad at me. At the closing he whispered to me, "Your client will never cut it, he'll pay some of the notes and go out of business" Three years later, after he paid the notes, I was his lawyer when he bought the drapery business too.

15. Do per diem work (court assignments for other attorneys). People make a living just doing THIS.

16. Do a pro-bono case because you want to. It's just good karma, and invariably the client refers you other paying clients.

17. Be accommodating to people who approach you in court. I'm amazed when lawyers blow off people who approach them in court. One more quik story - I was once coming out of Housing Court when an old lady approached me and said "Mister, is this where I make a case against my Landlord?" Rather than just say "yeah", I said "What kind of case?". She said, "I fell down the steps because he doesn't clean the garbage, and I broke my arm." I said, "This is Housing Court, but it's more for rent problems, your case would be in a different court, and you would need a lawyer for a case like that." "Are you a lawyer?"......Bottom line, case was settled for $30,000. Be nice to people who approach you in Court.

18. Be especially alert in Court's where clients tend to approach you. If you are already in Criminal Court, or Housing, or Family, or Small Claims, potential clients will approach. Be prepared.

19. Participate in things you enjoy, having nothing to do with law. Notice I don't say...."go to bar association meetings, or chamber of commerce, or political clubs". Those are full of lawyers. I played softball with a bunch of guys from Felicia's cousin's lodge in Brooklyn, where nobody was a lawyer, or even knew a lawyer. I did not join the team to get business, I wanted to play ball and be friendly with cousin Al, which I did. I also got all kinds of new business. As an aside, our catcher was in "funeral director school". If his beeper went off during the game, we all took our hats off.

20. Pay attention to "ethnic community leaders".....and not necessarily your own ethnic community. What I mean is, if you happen to get a client from a close-knit ethnic community, and the client is somewhat educated, chances are people will trust his referrals. Those referrals will come to you, IF you are paying attention.

21. Pay attention to how you answer the question "what do you do?". If you do a lot of things, don't say "general practice". Size the questioner up, and take an educated guess at what the most appropriate response would be.

22. Accept credit cards. Many lawyers don't, there are times when you being one who does, gets the business.

23. Participate in a pre-paid legal plan. I met some of the worst clients ever by doing this, but hey, you WILL get business.

24. Teach a paralegal class. I did this, it was fun. I hired the smartest student in the class, who was one of the best clerks I ever had. She worked for me while in law school, and she has been a successful attorney for many years. I also got a few small cases from other students.

25. Take speaking engagements......anywhere. I always got new business after speaking at senior centers or the library. You make a call or two with a suggested topic, and you are in.

26. If you are in a law suite, or a building with a lot of lawyers, introduce yourself to every lawyer and tell them you are available for per diem work, or referrals of cases.

27. Be yourself. It's not as stressful as the alternatives.

Tomorrow....back to good business for YOU.

Let's Get Some (Good) Business

2009-02-23T18:55:00.000-08:00

Yesterday I set forth the basic premise that any business involves 3 steps....getting the business, doing the work, and dealing with finances. I promised that today we would "get us some business".

Where does new law business come from? I can (and will) give you at least 27 places it comes from, but first I want to ask a better question. Where does GOOD law business come from and how can you make it come to YOU? Isn't it worth asking, what would be the best type of new business for YOU?

For those who are cost conscious, there's something nice about asking what YOUR good business would be. The nice thing is asking this question "doesn't cost nuthin'".......'cept maybe some time and some thought. Which leads to a "new business tip"

TIP: If you are not willing to spend some time and thought on what kind of cases you want in your new business......keep sending out those resumes till you get a job.....opening a practice is not for you. Does that seem a bit harsh? Let me assure you of something.....I promise you can get plenty of law business, plenty of new clients and new cases....it's really easy. But if you load up your plate with bad business you will have big problems doing the work, and bigger problems with your finances. And when that happens, you will also not spend QUALITY time getting new good business. You will be in that vicious cycle of "crappy cases, tons of work, small money.....crappy cases, tons of work, small money". This is called "typical general practice". And, uh, I didn't read about this in a book!

My point is, things might end up this way, it is a way to live, and a living can be made, BUT....
this is not the only way to go about it. A little forethought could have you marketing for GOOD cases and get you on the way to a successful, rewarding practice, for much more money.

What do I mean by GOOD cases for YOU? Here are a few characteristics:

1. You either know the area of law really well, or are willing to learn it. Put another way, you have a passion for it, or could acquire passion.
2. You could see yourself referring to yourself as a ".......... lawyer" and be proud of it.
3. You enjoy talking about this type of case, hearing about this type of case, and reading about this type of case.
4. You could see yourself writing a letter to other lawyers suggesting they refer you this type of case, and see yourself as being respected by other lawyers for your knowledge of this type of case, and that thought feels good. If you could not see doing this now, you would want to know enough to be able to do it in the future. (which in fact you WILL do)

Tomorrow....how to get GOOD cases for YOU, and

27 ways to get all kinds of new law business (because no matter what I say about marketing for GOOD business for YOU....people still want 27 ways to get all kinds of new law business). I will tell you at least 27 basic ways to get new law business, even though, it will be like when I walk Dovie and he pees on a fire hydrant, and I have to say to him "That's old school". He always looks at me as if to say, "Yeah, but I still like to do it sometimes".....so 27 ways it will be, old school or not.

Hasta mañana.

Law Practice (and other business) Fundamentals

2009-02-21T08:44:00.000-08:00

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", 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. GM is screwed on all three, and in my view, their Chapter 11 filing is inevitable, but that's another post. Most new law practices are initially challenged with Item #1. I maintain this is easily overcome, and will then present the challenges of #'s 2&3.

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.

Tomorrow, let's get us some business.....

Lawyering....Way Back in the Day

2009-01-21T18:37:00.000-08:00

Back in 1982, several of my lawyer suite-mates had been practicing since the 1930's. Here are a few observations about lawyering back in their day:

1. Most, if not all, of the Judges were white males. Come to think of it, this was also true of their lawyer colleagues and law school classmates.

2. Most lawyers in small firms (or solos) were general practitioners....they knew how to do many kinds of cases.

3. There were "recommended fees" for various services, set by the Bar Associations. This practice was eventually eliminated, for the benefit of "the public". Sadly, as the ranks of lawyers swelled, the relative fees for "bread and butter" legal services have plummeted. You can say it's competition, and fair market values, but the fact is when you try to do a real estate closing at market rates, you will lose money.....unless you cut corners. Whose interest is that in?

4. There was no advertising. You built your practice by word of mouth.

5. They did their research in libraries.

6. Networking and knowing people were part and parcel of the practice. I was always amazed that one of the first things the older lawyers wanted to know about a new matter was "Who is the other attorney" and "Who is the Judge". If they didn't know the players, they would delve into their pedigree and find out who they knew. After a few years, I realized I do exactly the same.

I wonder if those lawyers who were starting out in the 1930's ever thought about the lawyers in THEIR suites who had 50 years experience. The guys who started in the 1880's. The thing is, some things about lawyering have not, do not, and probably will not change. For great illustrations of this, I highly recommend two books about Abraham Lincoln's legal career. Not only are they instructive about this brilliant lawyer turned politician, they show us the origins of modern practice. The two books are Lawyer Lincoln by Albert Woldman http://www.amazon.com/Lawyer-Lincoln-Albert-Woldman/dp/0786709391 and
Lincoln's Herndon by David Donald http://search.barnesandnoble.com/Lincolns-Herndon/David-Herbert-Donald/e/9780306803536

William Herndon was Lincoln's law partner for many years. Guess what? They had business problems, they had to figure out how to best employ their respective abilities, they had to deal with Lincolns' growing fame and outside commitments and personal challenges. These books are worth reading.

Lincoln-Herndon Law offices are a historic site. http://www.oldstatecapitol.org/office.htm I haven't visited.....yet.

Here are some quotes from Abe Lincoln about law and life...

In law it is a good policy to never plead what you need not, lest you oblige yourself to prove what you can not.--February 20, 1848 Letter to Usher Linder

The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket.

Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

I used to wonder whether Abe Lincoln was "over-rated", or perhaps had the opportunity to govern during a huge crisis, and made his reputation by successfully navigating the Civil War. Studying his law career, his rise to prominence in the context of his times, is enlightening and inspiring. His top ranking is appropriate.

Gotta stop now.....a Judge Judy re-run is on.

Lawyering....Back in the Day

2009-01-19T18:42:00.000-08:00

Like any older person (hey, 26.5 years as a lawyer makes me older than lots of people) I like to recall the days of old. Quaint times when things were not as they are now. Back in the day, when I opened my law practice in 1982, things were markedly different. Doesn't seem like that long ago? In the context of law practice, consider the following:

1. Nobody had cell phones. We went to phone booths (the Courthouse was full of them), and we carried change.

2. Nobody had their "calendar" or their "contacts" in a device. We had little leather diaries that went in our breast pockets. I recently unearthed my collection of pocket diaries, from 1981 (I was important enough as a pre-lawyer to have a pocket diary) through 1997. When I looked through my old diaries I had the same feeling as when I go to my archives and look at old files, another trip down "bad memory lane".

3. Nobody had a fax machine. We never got things instantly, we never sent things instantly. I think we thought more, but now, who has time to think about such things, with all these faxes coming in. During the first "big" case I ever worked on, my clients insurance company disclaimed coverage, and informed me of this by TELEGRAM.

4. Fedex (and other overnight services) did not exist. For local stuff we used messengers. For far away stuff people....waited.

5. Most offices did have copy machines. However, I did know older lawyers who used carbon paper. I also worked on some files for older lawyers where the copies were from carbon paper.

6. Some offices had primitive computers and word processors. However, electric typewriters, "secretaries who took shorthand" and "typing services" were commonplace.

7. E-mail did not exist. Web surfing did not exist. Facebook did not exist. Fantasy football and baseball did not exist. Online poker did not exist. How did we manage to waste time???

8. In 1982, lawyer advertising was pretty new. I know we are all proud of how lawyer advertising has evolved, improving both our service to people, and our image.

When I started in practice, I was in a suite with some lawyers who had been practicing for over 50 years. I liked to talk to them about THEIR "old days", when they started in practice, in the 1930's.

More on this tomorrow.

More Pearls (and Perils) of Per Diem

2009-01-18T14:20:00.000-08:00

By popular demand....here are a few more....

Treat your per-diem appearances as if you were appearing on your own case. If that means you care more about the case than the attorney who sent you, so be it.

If there is a major problem with a case, and you think the attorneys who sent you don't know it, tell them. I'd want someone to tell ME!

Sometimes attorneys want to do per-diem work and be part of your "crew". Not everybody can multi-task their appearances and maintain quality. Not everybody is ready to adhere to the per-diem "code of honor". OK, there isn't an actual code, but the thing is, not everybody is trustworthy. My approach is, I'll try out a new person, carefully, and they have to earn trust. If they don't understand this, I don't trust them.

If something screwy starts to happen on a per diem assignment, especially if you are appearing for an attorney the first time, DOCUMENT what is happening. I've had offices "abandon me" during an appearance (by not responding to calls from court, or not having anyone in authority in their office). It doesn't happen often, but I've had it happen. My approach on these is to "protect the client" (as opposed to the lawyer), and next "protect myself". I document the problem with an eye towards protecting myself in the event things really blow up. I know, sometimes all this extra work is not worth the $100 you might get paid (cuz these bad guys will stiff you too), but you have to do the extra work and protect yourself. These are "perils" of per-diem.

Pay attention to collections!!! It does you no good to bill $100K and only collect $60K. This is especially bad when you have subbed out some of your work (and paid your crew). Most lawyers pay their per diems, but it only takes a few big stiffers to really hurt you. Here are a few tips:

1. Set balance limits for open credit and stick to them. I use $500 with new attorney clients. If they are beyond 30 days and $500, I CALL. This is very important. If they act like weasels about it, cut them off.

2. Related to #1 is, set yourself up to accept credit cards. If an attorney reaches $500 and more than 30 days, and they won't pay by credit card, cut them off.

3. Beware of high volume clients who don't pay ALL the bills. I hate when this happens and it happens with some regularity. Sometimes it's innocent, and it happens because if your bill is also your report, it may go in the file and not to the check writer. The way to curb this is to send statements which are a compilation of the open bills. When I receive a payment for invoices that are later than some open invoices, I address this immediately.

4. Beware of round figure payments "on account". This can be innocent enough, but it causes confusion. When this happens, send a memo indicating what invoices you applied the payment to, and confirming the open balance. In this memo you should ask that payments refer to specific invoices.

5. Share information with your competitors about the bad payers out there. This is more difficult than it seems. I only want to give this useful information if I am getting useful information. What do the non-paying vermin do when we share information about them? We usually see them coming to court themselves, which I always find gratifying, or they go lower in the food chain and rip off some new per diem.

6. Speaking of non-paying vermin, if some lawyer doesn't pay me, and won't work with me, or make a credit card payment, I sue in Small Claims Court. Sometimes these lawyers play games when I do this, but I persist. Recently, after some jokers adjourned my Small Claims case 3 times by asking for a hearing "by the Court", they missed an appearance and I got a default judgment. I sent them a letter and they didn't pay. So, what I did was, I paid a City Marshal $40 to serve a notice at their office (probably served on a secretary) saying that he was going to seize their furniture and computers and auction it off. Two days later I got paid in full with interest. They'll never call me again, which is just an added bonus.

Gosh I love this business!!!

Pearls of Per Diem

2009-01-13T18:26:00.000-08:00

It might be a stretch to call per-diem court appearances "Zen-like" or "other-worldly". That being said, I have some philosophical observations about making multiple court appearances on behalf of other attorneys.....

The appearance I hate most....is my last appearance.

It's harder to do two appearances than twelve appearances.

If you don't know what the case is about, you should find out before you say something stupid.

If you think you shouldn't be making the appearance, you are probably right.

When you are per-diem to the per-diem, and perhaps they were per-diem, you should make sure you are not your own grand-pa. http://www.youtube.com/watch?v=eYlJH81dSiw (This version is pretty funny, but I once saw Uncle Floyd do it LIVE, which was excellent).

If you end up covering both sides too often, you could go blind.

If you have a choice to "go make the copies" or wait for someone else to "make the copies and bring them back for you"....go make the copies.

If an appearance has a lot of parties it's efficient to be LAST, as long as you are not LATE.

The TV show that is most like per-diem appearances was M.A.S.H., especially when they talked about "meatball" surgery.

If you are on an appearance with multiple parties and you know nothing (which happens all the time), and all the other parties are blaming one of the parties for causing the accident, invariably YOU are representing that party.

If you know what you are talking about (hey...it happens!!!), and the Judge asks what the case is about.....TALK FIRST, and keep talking till someone tells you to stop.

In the movie "Defending Your Life" (one of my favorites...if you have never seen it, I highly recommend) there is a great scene featuring a per diem lawyer http://www.youtube.com/watch?v=Mbn-2OEsgr0

In a desperate per-diem situation, when all else fails, there is always......the truth.

The Other Side of the Desk

2009-01-11T16:59:00.000-08:00

Sometimes as a lawyer, I want to switch places with the client, and say "Here, you sit at my desk, I'll be the person with the problem, and you can see what it's like." There are many things people don't realize about lawyering. Here are a few....

There is never "one right way" to handle something.

There is usually not a "right answer" to any question. Anyone can find THAT, and the client would not be there if there were. Most situations are multi-layered, with results coming in inter-dependent layers. Not so simple.

We often don't know, but we know we can find out.

Sometimes the best research is "calling someone who knows".

The Courts really don't care about your case or your problems. It's not that they are mean or callous (though some are), it's that there are so many cases and so many problems that they CAN'T care. When clients don't understand this, I refer to it as "terminal self-importance".

Court clerks really know the court system. Lawyers have to be nice to them or nothing gets done.

The best lawyers are not the fancy talkers, but the straight talkers. Clients, judges and juries like them best. The best trial lawyers fit this description.

You can make a lot of money as a lawyer, but not all do. It's not a license to print money, and many lawyers struggle financially.

Ethical questions come up every day. This is not because lawyers are unethical, most are highly ethical. Questions come up because the nature of solving problems involves knowing where the legal and ethical boundaries are.

We often feel "besieged", by clients, Judges and adversaries.

Law practices have the same issues as any business....marketing for new business, controlling overhead, managing employees, with the added overlay of a "product" (legal services) that is difficult to quantify.

I don't see lawyers as a problem in society....when people say this my reaction is that lawyers reflect societal values. I would not deny that defective social values breed the legal behavior many abhor.

One skill lawyers have to have, and most DO have, is the ability to explain things. If I want something explained (like a baseball play, or a movie), most lawyers are above average-excellent at this. Many times as a lawyer, if I am trying to persuade someone, the MOST important aspect of persuasion is to EXPLAIN THE FACTS CLEARLY. Once that is done, the argument is essentially made.

OK, let's switch the seats back.

Pearls of Per Diem

2008-12-11T10:51:00.000-08:00

Throw Back the Little Ones

2008-12-03T17:35:00.000-08:00

The nature of law practice, like any small business, forces you to think about where you've been, where you are, and where you're going. I think I do this more as I get older, realizing there is not an infinite time frame to get it right.

This morning I was thinking about what I want to do, but it's so hard to stay focused on THAT. My learned thought patterns keep taking me back, thinking about what I've done....usually what I've done wrong. At best, I get to what I'm doing now, that is, what I'm presently doing wrong. Do I have to get past these to think about the future? I don't know, if you figure it out let me know, we can write a book and go on Oprah together.

I DID figure out that I want to be working on things that excite me, BIG projects and bold business ideas. I've had some of these kicking around for years, and they haven't been done. Why? WHY?? One reason is working on a high volume of small stuff, rationalized under the heading of "having to make a living". Would I be making a better living if I were working on bigger and better things? If I had the courage to go after them? If I did not "keep busy" with the small stuff?

For some reason, FISHING came to mind. If I were fishing for bigger and more exciting things to do, what would I do with the smaller fish? Give em to someone else, or....THROW THEM BACK. Naturally, this made me think of the Steely Dan song "Throw Back the Little Ones". It's an obscure Steely Dan song, but I always really liked it. Here's a link....with lyrics, give it a listen, check out the lyrics, and let me know if you like it http://www.actionext.com/names_s/steely_dan_lyrics/throw_back_the_little_ones.html

If you are fishing, and you don't throw back the little ones, and if you keep bringing them on board, you know what happens? Your whole ship smells like mackerel!!!

Law & Pizza (Part 3)

2008-08-31T08:08:00.000-07:00

The Peruvians agreed to pay Mohammed $1000 per month for 5 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. As time went on, 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?”

“Afghans.”

“Dogs?!?!”

"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-America 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.

Law and Pizza (Part 2)

2008-07-29T17:47:00.000-07:00

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 happy 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". He had enough money to do what the landlord wanted....pay 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, I understand you represent the Egyptian pizza guy on Jamaica Avenue. My name is Vincent. I represent the Scarola Flour Company."
"Oh, are you their attorney?"
"No, let's just say I take care of business for them."

Hmmmm.....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 ($1200), and if he made his future payments on time, Vincent would not visit him any more. Mohammed adjusted his budget and brought me $1200 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."

Mohammed seemed to be doing OK as a pizza man. About two years later, he called and told me he was selling the pizzeria to "two Peruvian guys". 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.

Next.....Law & Pizza (Part 3)

Law & Pizza (Part 1)

2008-07-26T08:38:00.000-07:00

(*all stories true, all names fictitious)

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 good opportunity, and it was. Over the years Omar sent me many good clients. After awhile we had a running joke. 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”. “OK, Omar, what’s the man’s name”.
“Well, his first name is Mohammed”.
And I would say “I know that, from now on just call and give me the last names.”

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 a $20,000 to some Albanian men, have discussions about future payments, and started running the pizzeria. He had also lost all his remaining working capitol 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, and it soon became apparent why. 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, he’s a blur to me now, except I remember him as “The Albanian”. He never said a word, just shrugged his shoulders. “What about the lease?” Shrug.
“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.” ……..

Next……Law & Pizza (Part 2)

Lawyers as Clients

2007-12-20T18:29:00.000-08:00

I've been a client a few times.
I think I was a good client.
I tried to observe a golden rule.
I treated the lawyers as I'd like to be treated.
I think they appreciated it.

I've represented lawyers a few times.
It was always an honor when they called me.
Usually they observed the golden rule.
I appreciated it.
When they didn't I didn't like it.
There would not be a second time for them.

I've had personal legal matters that I could handle myself.
If there was not an emotional aspect to it, I did it myself.
This seemed to work out fine.
If a personal legal matter had an emotional aspect, I hired a lawyer.
This usually worked well.

I hired a lawyer to represent me when some other lawyers did not pay me a fee they rightfully owed me.
I was emotional about it. My first lawyer did a poor job.
I had made a poor choice.
I fired him and hired another lawyer.
I enjoyed working on the case with him.
He made the bad lawyers work, and pay their lawyer, and then they had to pay me.

In my estates practice I often work with lawyers from other States.
Many things differ from State to State.
Lot's of things are the same.
Be clear about what you can and can't do.
Be clear and vigilant about fees.
Work with integrity and even the toughest situation will resolve.

I try not to generalize about groups.
It's tempting to do this about clients from different professions.
I won't generalize from some experiences which surprised me.
I will say though, that when I started in practice I revered certain occupations.
When I represented teachers who were stupid, or cops who cared not about the law, I was shocked. I admit it.
But I still won't make firm generalizations.
Are "pre-conceived notions" any different?
They are a start, and then I will either be right....or wrong.

Next post: my proposal regarding baseball and performance enhancing drugs

Legal Malpractice Cases

2007-12-09T18:14:00.000-08:00

As long as I'm not the defendant, legal malpractice cases are very interesting. Here are some things worth noting:

1. It's similar to any other negligence or malpractice case......you need liability, damages, and collectability to have a case which an attorney will accept on a contingency. Legal mal cases have the added fun of the "case within the case". That is, when you are proving that the lawyer commited some act of negligence/malpractice, you also have to prove that the underlying case was win-able.....on liability, damages, and (arguably) collectability. This creates a fascinating litigation where you are essentially litigating the issues in two cases.

2. Have attorneys ever been sued for malpractising a legal malpractice case? Yes.

3. Sometimes an attorney is contacted by a client about a potential malpractice case. What if there was malpractice, but the client still had some rights in the underlying case, and the new lawyer pursued the legal malpractice claim and ignored other rights the client may have had. Here's an example: Client was a passenger in a bus which was in an accident with a car. The accident happened in an intersection and is a "question of lights" case. The first lawyer misses the year and 90 day statute of limitations on a City bus case. Plain and simple. The second lawyer gets the case and sues the lawyer. However, the three year statute of limitations on suing the car was viable when the second lawyer took the case, but runs out during the legal mal litigation. Can the second lawyer be third partied into the case by the first lawyers lawyers? Answer: Yes. Don't ask me how I know this!

4. Lawyers are not required to have malpractice insurance. The majority of small firms and solos have it, but not all. It seems crazy not to, yet many go without.

5. Legal malpractice insurance has some quirky rules. One nasty one is the requirement to report a "potential" claim when you become aware of it. If you don't report when you could have, you may face a disclaimer when a claim arises. What are the effects of being careful and reporting a potential claim? I don't claim to know the answer to this. What I can say is, it places a lawyer in a real dilemma. I'm not embarrassed to say I've reported a few potential claims that never became claims. I hated the feeling that the carrier "opened a file", I hated the detailed report they required, and I was uncomfortable with a lawyer for the carrier suggesting things I must do to minimize THEIR exposure. On the other hand, once I reported and complied, I felt relieved that they "had my back" if the client sued. The carrier did not "drop me" and as far as I could tell, they did not surcharge me.

6. Another quirky rule is that if you drop your coverage, you lose the coverage for the times you paid for. If I had insurance in 2005, dropped it in 2006, and in 2007 I am sued for something I malpracticed in 2005, I'm not covered. If you are retiring or changing careers, and you don't need coverage for new cases, you have to buy a "tail" policy to cover your past coverage. I guess they call it a tail because it's attached near the rear end.

7. There are lawyers who specialize in these cases, both plaintiffs and defendants. Like many specialists, they generally enjoy their practices and are enthusiastic.

8. I once defended an uninsured attorney in a legal malpractice case. It arose out of a real estate deal gone bad, resulting in a forfeited downpayment. As we did discovery in the case, I saw that the plaintiff, my clients former client, must have been a difficult client (actually, that is a gross understatement). Admittedly, my client was not an experienced real estate attorney, and the case was not handled well. Nevertheless, both the client and the new attorney were very hasty to blame the debacle on my client. It appeared that both client and lawyer forfeited the downpayment rather than fight for it, and immediately sued my client. I must say, I came to dislike the plaintiff and his attorney. I realized during the trial that for me, the plaintiff symbolized every whacked out loony client I had ever had. I ripped the plaintiff up pretty good during cross-examination, and kept going till the Judge told me it was enough and I should sit down. That was a nice case to win.

9. Here's a link to a blog about legal malpractice cases. http://blog.bluestonelawfirm.com/

Next post......lawyers as clients.

Pro-se Adversaries

2007-12-05T18:30:00.000-08:00

In the per-diem practice I regularly encounter pro-se adversaries (people representing themselves). Here's a Wikipedia link with more info about pro-se than we could possibly need
http://en.wikipedia.org/wiki/Pro_se

In New York City Civil Court (jurisdiction up to $25,000), people often represent themselves. Many of these are debt collection cases, but I have been involved in all kinds of civil litigation where one side (the other side from my side) was pro-se. One might assume that those representing themselves have fools for clients. Indeed, sometimes they are fools, but if you assume it, you will prove another axiom, where assume makes an ass of u and me.

A few observations:

1. When you conference a case with a pro-se and a Judge, or a pro-se and a Judge's clerk, you will often find the pro-se suddenly has a lawyer......the Judge!! This is not supposed to happen, but it happens. Your job is to not let it happen that way. Here's a helpful tip....conference the case with the pro-se before you conference with the Court. I always tell them that we are allowed to do it, though they don't have to, and that in any event, after we talk we will have a conference with the court. I try to find out what the issues are, and I keep it non-confrontational. When we conference with the Court, I will often say, right in front of the pro-se, "We have been discussing the issues, and if it will be helpful, I'd like to summarize what we talked about" then I look right at the pro-se and say "If I don't say it right, or if I leave anything out, please stop me, I want the Court to have a clear understanding of what this is about". I then tell it as straight as I can, and if they want to jump in, I let them. I find this approach limits "court advocacy" and encourages the pro-se litigant to explore settlement.

2. Sometimes pro-se adversaries study up and they want to follow every rule, and call you on every technicality, and play lawyer with you. They have a right to do this, and they assume that this is what lawyers do. Of course, most lawyers, especially in Civil Court, don't do this. We usually try to figure out what the case is REALLY about, and find a fair way to resolve it. I laugh to myself sometimes when the pro-se defendant makes some brilliantly technical legal argument to the Judge, and the Judge says "Yeah, but do you owe the money or not?"

3. Sometimes you have to go to trial against a pro-se. This is usually after you have made exhaustive efforts to settle the case. When this happens you need to carry this case around with you: Roundtree v Singh 143 AD2d 995. Essentially, this case says that a pro-se doesn't gain any greater rights by being pro-se and unfamiliar with law and legal procedure. If they don't know how to make out a prima facie case, or if they don't know how to get their evidence in, too bad. The Court can't help them, and if this happens you must object based on Roundtree v Singh. Sometimes when you really make them follow procedure and they realize they could lose....they settle.

4. Along these same lines, sometimes if I know from the prior conferences that the pro-se is really wacky, I don't object on technicalities. I let them go on, and on, until I am sure the Judge realizes we are dealing with a nut. Then I reel the situation in. What often saves everyone in these nut-ball situations is that at the conclusion the Judge says "Decision reserved". No fireworks, most Judges will do the job, and the decision will come later.

Quik story.....I once tried a credit card debt case where the debtor owed about $10,000 and at every conference he insisted that "you cannot PROVE it was me". He was especially emboldened when he saw that I did not have a witness for trial. All of the charges on the credit card seemed to relate to restaurant supplies for a shish-kebob restaurant. However, in all our conferences I did not let on that I knew that, nor did I ever show him the bills and ask him about it. When we got sent upstairs for trial, the Judge told me to call my first witness, and of course I said "I call the defendant." He said "He can't do that!", to which the Judge replied "Yes, he can....take the stand." I then asked him questions about where he lived, what he did for a living, and the like. Most of it was not useful, but I did get him to confirm his address (at the time of the bills I had). He also confirmed that in all the time he lived there he never had a problem receiving mail. I really nailed these two items home....correct address and mail being received. I then asked him if he had ever received a bill from my client, and he denied it. I then asked him if he had ever owned a shish-kebob restaurant, and he denied it. I asked him if he had ever helped open a shish-kebob restaurant, and to my surprise he said "Yes, I have worked in these restaurants all my adult life, and I once helped my friend open one." I asked "Where was it?" Turns out it was about two blocks from his address. I then took out my $10,000 worth of shish-kebob supply charges, and questioned him about it. He denied having anything to do with it, but the big red "L" was lit up on his forehead.

When I summed up I had a grand old time. I'll spare you the details.
His summation was "He didn't prove nuthin".
The Judge said "Decision reserved"

WINNER

Thinking About Google Searches

2007-12-04T17:29:00.000-08:00

In prior posts I have talked about the importance of showing up on page one of relevant Google searches. The idea is to determine how your prospective clients will search, and having your site be google-friendly to that search.

I suspect that when most people do a google search, they realize it's all about hitting the right key words. If you do a lot of google searches yourself, you know that if your search is too broad you get too many irrelevant sites. Conversely, if it's too specific, you may get nothing. When you are the search-ee, you want to be found by as many search parameters as possible.

Some search terms are very broad, but you still need them. For example, the term "lawyer" by itself is way too broad by itself. For fun, I googled "lawyer", here's the result
http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4SUNA_en___US210&q=lawyer
Look over page one, it's interesting.

You probably won't be found with that search, although the presence of lawyers.com and findlaw.com on that first page, may get some clients your way, if the client enters those sites and you are listed.

A search term that narrows a search, which a lot of people use, is geography. Here's the google result for "lawyers new york"
http://www.google.com/search?hl=en&rlz=1T4SUNA_en___US210&q=lawyers+new+york&btnG=Search
Also interesting. I note that Andrew Bluestone's blog about attorney malpractice cases made it on page 1. Findlaw.com is on this first page, lawyers.com is not.

Let's narrow the geography further with "lawyers queens new york"
http://www.google.com/search?q=lawyers+queens+new+york&hl=en&rlz=1T4SUNA_en___US210&start=0&sa=N
Hey, I know some of these guys!! I'm not showing on this page, but I'm OK with that, I've been narrowing my practice areas. I notice Gross & Levin are on page 1....I know them and like them and respect their work. Looking at their site, I see it's a Findlaw site, and showing on page one of a google search like this, I'd say they got good value.

A little more narrow, on topic and geography, I'll google "queens new york probate lawyer"
http://www.google.com/search?hl=en&rlz=1T4SUNA_en___US210&q=queens+new+york+probate+lawyer&btnG=Search
Uh-huh, there's my Findlaw dollars in action.

A few related points.

I am not a computer expert, and you don't have to be an expert to be effective at internet marketing. The main thing to do is THINK about what kind of clients you want and how they would seach the internet for an attorney. You can then do those searches and see who is coming up and what they are doing. Search a lot, play around with it, you'll be surprised who you see and what you'll learn.

It's true that Lawyers.com and Findlaw.com, who market pretty aggressively to lawyers, cost some money. Used effectively, they can really pay dividends. If you do something that is not the usual, you can make your own site pretty easily and its a narrow enough area, you'll show up high on google searches.....and it costs zero. I did a home-made website for my court appearance business (OK - Felicia did it). It gives basic information about what we do, how we charge, etc. Here's what a search for "Queens per diem court appearances" gets...
http://www.google.com/search?hl=en&rlz=1T4SUNA_en___US210&q=queens+per+diem+court+appearances
Not only is my wecoverqueens.com showing first on page one, my blog stuff about per diem is showing too. I don't pay extra to have it show that way....it just does.

I am fascinated by internet marketing for lawyers. If any of my readers wants to discuss a lawyer internet marketing question with me, please email me.

Googling for Lawyers

2007-12-02T18:08:00.000-08:00

Some lawyers have websites. The ones who don't are thinking about it. Sometimes what they are thinking is "If I have a website, how will anyone find it?".

It's important to realize that most people will find your site through a search engine. Google is the biggest of these, though people also use Yahoo, MSM and others. The idea is the same....a person is interested in something, they type in a search, and the search engine posts links to thousands of websites. If you have a website, you want it to be found by the search engines, and more importantly, you want your site to come up on the first page of a relevant search.

What do you like to do most? What kinds of new cases do you want? What would be the best of the best? Can you describe it? If someone (a new client) was doing a google search for it, WHAT WOULD THEY TYPE IN?

There might be some combinations of words, so here's an earth-shattering suggestion......Write down all the searches you can think of for YOUR perfect new cases, and google them....ALL of them. After all, it's free. You will see some VERY interesting things when you do this. You will see many other lawyer websites showing up on page 1 of the google search. Look at their sites!!! Doesn't cost nuthin'. Notice also the "sponsored links" on Google. These are sites that are paying extra to be on page 1. You don't have to pay, but it's worth knowing about. Notice also that many of the page 1 listings are attorney listings of lawyers.com.

Here's another lawyer/googling thing worth knowing. The two big players in the lawyer/internet/advertising game are lawyers.com (owned by Martindale-Hubbell) and Findlaw (owned by Westlaw). Many of us have been approached by these two, offering various paid packages. There is some value there, but in my view the main value they offer is your listing (within their site) showing up on page 1 of the google search.

If you are thinking of listing with one of them, THIS is the main value you get. I suppose there are potential clients who go into lawyers.com and start looking around and will find you. However, more often they will do a Google search and find your lawyers.com listing. Oh, and you WILL get calls and email inquiries from it. When you do, you will want more, and you will try to enhance the way you are found.

Can you think like a potential client? The one who is going to find YOU? For the cases you really want? (Oh yeah, it's VERY important to think about what you really want)

Tomorrow, we run some sample searches......

Google Me This

2007-11-29T16:53:00.000-08:00

Whoever said "the best things in life are free" may have been talking about Google. You have to respect a company whose name is now commonly used as a verb. I "google" things every day. I try to pay attention to questions great and trivial, and if I have any interest in knowing more, I google.

Yesterday the Steve Miller song "The Joker" was playing. For the 1000th time I wondered what the "Pompatus of Love" was......so I googled it. Here is one of the answers http://www.straightdope.com/classics/a4_065.html

You want song lyrics? Here's The Turtles "Happy Together" http://www.oldielyrics.com/lyrics/the_turtles/happy_together.html

Want to know how to get gum out of hair? http://www.ehow.com/tips_2591.html

I keep track of questions that arise during the day, so I can google them later.

Why am I blogging about this? Two reasons:

1. It's fun. If you don't already do this, try it and see what I mean.
2. If you ever thought about marketing in your business or profession, (and I think about this a lot in the lawyering biz)......you must think about how people will use Google to find you. I am particularly interested in how people use google to find lawyers.

Credit Cards in the Per Diem Biz

2007-11-25T08:37:00.000-08:00

Accepting credit cards is very helpful in the per diem business. It is very easy to set up. You do not need a card swiping machine, you only need an internet connection. I do it through Quickbooks, but any bank can set this up for you. I like it for two main situations:

1. You can smoke out the really bad apples. Anyone who does per diem work knows that sometimes you get shaky payers. It's the exception, but it happens. The way I use credit cards is, after someone is 60-90 days behind, I call and ask if there's a problem. I always ask first if there was a problem with our work, because I want to know if that's the reason for the non-payment. If there seems to be some financial issue, I will offer the option of making a credit card payment for all or part of the balance. Sometimes they are pleasantly surprised and they pay in full. Sometimes they make a partial payment and agree to allow a monthly credit card payment. Sometimes they don't accept any aspect of credit card paying, and then they have been smoked out. Here's my reasoning.....I don't believe there is any lawyer who doesn't have a credit card. If the lawyer doesn't "trust me" to handle the transaction honestly, then why should I trust the lawyer by extending credit? If the lawyer doesn't want to "pay interest" on his credit card debt, why should I be giving an interest free loan? The credit card offer is a really effective way for me to cut my losses on bad payers. You might say "But you might lose the client", to which I say "Let someone else make the interest free loans".

2. Depositions: I generally make a small profit on depositions. I subcontract them out, and I disclose that I am doing this. If I charge $250 for a job, I pay $175 and make $75. I consider this fair for handling the transaction. Unfortunately, attorneys tend to pay slowly on depositions, placing me in the position of paying my subcontractor and chasing the money for my small profit. This was happening so often that it made depositions a money LOSER. My new policy is depositions are taken on credit card guarantee only (except for a few "A" rated clients). Guess what? My volume of depositions is WAY down. However, due to 100% collectability, profits are up. Credit cards transformed this from the most dreaded appearance into one of the most desireable. I actually am inclined to make my deposition fees the most competitive possible, because I have taken the collectability risk out of the equation. This is well worth the 3% or so that the credit cards charge.

Per Diem Agencies

2007-11-18T14:12:00.000-08:00

There are a few per diem "agencies" in New York. They offer court coverage in all the courts. By necessity they sub-contract out all the work. I've got nothing against them, some of them sub-contract their Queens work to me. I give them a discount in exchange for volume. They know I won't solicit their clients (One exception....if one of my clients uses an agency and I end up covering, I will call and point out that if they call me directly it's cheaper). I don't view my per diem practice as an agency. There are a few major differences:

1. We cover only one County, so we get some "expertise" in that County.
2. I am in the Jamaica Courthouse personally, so even though I am not on every appearance, I am there if a problem arises. I will also handle certain things personally, on request for most clients.
3. I have associates and steady per diem attorneys, and it never gets further removed than that. I may have a "per diem to the per diem", but when I get agency work, we often get a "per diem to the per diem to the per diem". I can't imagine this is what the client had in mind when they called. Incidentally, the record for degrees of removal on an appearance is FIVE.
4. An agency HAS to be more expensive. They are subbing it out and have to make a profit too.
5. We can trouble shoot the work when it comes in......and we often do. If someone faxes me an unreasonable request, and I know it's unreasonable because I am in Jamaica every day, I call the attorney and try to make a better plan. Agencies can't do that, and often end up with their per diems walking into the doo doo (I can't believe I called it that).

So, if agencies offer lower quality work and are more expensive, WHY are attorneys calling these agencies? There can be only one reason.....for the simple convenience of having the calendar clerk make only one call. Instead of calling the best per diem office in Brooklyn, Queens, the Bronx, and Suffolk, they make one call to the agency. This may be more convenient for the calendar clerk, but I submit it is a poor practice. Any office with a volume of appearances should NOT be using agencies, and I suspect that after trying it, they often leave. Spare yourself, call the best per diems in each County.

People have asked me why I don't expand to other Counties, and essentially become an agency. Simple....I don't believe in the business concept. If someone calls me for a non-Queens appearance, I will give them someone in another County who does what I do. I don't share in the fees on those, cuz if I did, those firms would have to charge what the agencies charge. What I try to do though, is encourage the people who use my business model in the other counties, to refer me, as I refer them, and SHUN the agencies. This is a networking technique that has worked well.

So, to sum up....per diem agencies bad....per diem specialists by County....GOOD

Per Diem Biz Relationships

2007-11-15T15:46:00.000-08:00

In the per diem biz you want to be busy....you want to have a lot of cases to cover. Ideally you want all the apperances in the same place at the same time. Of course, it never happens this way. I have ongoing business relationships with many other per diem attorneys. I don't view my "crew" as static. It's always changing, mostly growing, though occasionally people leave the fold.

Here are a few tips for potential crew members:

1. Saying "yes" to assignments is very good. When I am looking for help with coverage, I want to make one call and have the person say yes. I know that's not always possible, but if a person is consistently unavailable (after telling me to call them for work), I stop calling.

2. Be accessable. In this biz, not answering your cell phone, or not calling back within five minutes, is like saying NO. If you want work, be accessable.

3. Don't overprice yourself. Here's a surprise for some people. This is a competitive business, and it runs by the same rules as other businesses. If you price yourself too high, you will not get calls. If you can offer better terms, you get more work.

4. Don't overbook yourself. I can't stop a sub-contracted per diem from taking other work, but if you can't cover my stuff effectively, I can't use you. One way to not have this happen is to have per diem biz relationships. I always suggest to my crew that they can have their appearances covered within my crew, if this will help. This works only if the person respects and follows the next rule.

5. No client stealing. EVER. This means you do not solicit per diem business from other peoples clients. In fact, you DECLINE it if offered. I have done this many times. When appearances are being sub-contracted I always ask how the per diem wants the "contact question" handled. You have to know what to do if you must make a call from court. There are ways of handling this, but you have to be clear. This client stealing is a funny thing. I know some of my competitors solicit my accounts. It's not illegal. I just won't have a business relationship with those people. Here's how I know which competitors would solicit my accounts....If you are pretty busy in the Queens courthouses and you have never sought me or my crew out to help with coverage, I think it's because you think I will solicit your accounts. People who work with me, and have their own accounts, know I would NEVER do it. However, the fact that you worry about such a thing makes me KNOW that you would do it to me. You know who you are, so keep running your business your way. I'll stick with mine.

Something I noticed about these per diem biz relationship tips. While I wrote them for per-diem to per-diem deals, they are actually the backbone of the per-diem relationship with their lawyer/customer:

1. Say yes to the jobs.
2. Be accessable.
3. Price it right.
4. Don't overbook, be able to cover it well.
5. Work with integrity.

Being the Interviewer

2007-11-14T16:44:00.000-08:00

In 25 years in practice I've had 168 different people (yes, I counted) work for me in various capacities. This includes associates (full and part-time), secretaries, paralegals, law students, college students, high school interns, and per diem attorneys. I interviewed all of them, even the high school interns, and surely have interviewed 500 other people where the fit was not right. One way I know interviewing is a real skill is that I keep learning how to do it better. I learned strictly through experience, as will you, but here are a few tips I wish I'd had:

1. Don't talk so much. If you liked someone's resume enough to interview them, you may be pre-disposed to hiring them and are already giving them a job description and talking about your practice. The candidate will not interrupt you when you go on and on, though they may think you are a windbag who doesn't know how to interview. Stop yourself if you are talking too much. If you have described some aspect of your practice, a simple thing to do is stop, and say "What do you think about that?"

2. Listen to the candidates questions. I will come out and tell someone that I really evaluate a persons potential by the quantity and quality of the questions they ask. I am comfortable saying this because it's true. I may make a statement or describe something that's going on and ask the candidate to ask some questions about it. I try not to accept "I don't have any questions", and the fact is, if someone sticks to that answer, it is highly unlikely I'd hire them. I want a good dialogue in an interview, and I will want a good dialogue when the person is working. Remember, once a clam always a clam.

3. I did not get this one from a book, but I really like "What do you see yourself doing, career wise, in five years?". What I am looking to uncover is what I call "employee mentality". This is a person who treats the job like a job, does the minimum and will let you down in the clutch. I value longevity and commitment, and despite the number of employees I've had, I've had many long-term devoted people. I tell the candidate I won't hold them to their answer, and I won't hold an answer against them if they think they will not be with me in five years. I tell them I prefer being around people with lofty ambitions.

4. Don't be afraid to probe the resume, especially if there was something on it that impressed you. I like open ended questions like "Tell me about some of the contracts you drafted at Smucker & Jelly?"

5. If there are specific things you might need, don't hesitate to ask. Sometimes I absolutely needed someone with a car, and you don't know if you don't ask.

6. I would never explicitly ask about family life, intention to have children, lifestyle, or anything else that would offend the person or cause them to give me a legal problem. Naturally though, as an employer you have a vested interest in knowing these things. That's why you shut up and listen, and draw correct conclusions from the discussion. People will often list hobbies and interests on their resume, and you can sometimes get an impression from this, but you can tell even more about the person when they talk about it.

7. I don't think it violates any law, so I ask people if they smoke. I've hired a few, and let's just say I ask the question and weigh the answer carefully.

8. When I first started I did not call references, but now I do. I will especially call a prior job where I know the past employer or someone at the firm.

9. Trust your gut. I once interviewed someone who was working someplace else. It happens. I didn't have a great feeling, but I needed to hire someone and my "friend" had recommended her, so I offered her the job, and said that I assumed she would need to give at least 2 weeks notice. The next day she called and said she was ready to start immediately. This was a very bad sign, and she turned out to be the worst person I ever hired....and yes....I eventually fired her.

Next blog.....hiring and business relationships in the per diem world.

Hiring 101

2007-11-12T15:28:00.000-08:00

One of the hardest things about solo practice is hiring and keeping good employees. Like many aspects of real life practice, this is not taught in school. At some point you will need one or all of the following: associate, paralegal, secretary, law clerk. Part of the problem is your practice may not justify a full timer for any of those roles. What you really need is a part-timer who can fill ALL those jobs. It's never a perfect fit....you can only do your best, keep business growing at a healthy rate, and expand staff accordingly.

Here are some tips on hiring people (Note: if you are a human resources person in the corporate world, these tips are really elementary. Please realize that for us lawyers in solo practice, we ARE the human resources department, and the accounts payable, accounts receivable, mailroom, word-processing, proofreading, marketing department, janitorial crew......and practicing lawyers. Not only do we not have a human resources department, the main way we learn these things is through experience.) Sorry for ranting, here are the tips:

1. WRITE A JOB DESCRIPTION. I cannot emphasize this enough. Take your time, and write down everything you need someone else to do. Don't hold back. Look the list over carefully, and see if there are things that naturally group together. I like to go one step further and start seeing how the tasks fit on specific cases RIGHT NOW. For example, if I wrote down "draft bills of particulars", do I have one case or do I have 20 cases where this is needed? Would I let someone else do the BP on the Wilson case? No? The Wamsteker case? No? Hmmmm.

Oh, here's a related one: Write YOUR job description. By knowing what you want to do, what you expect you, the owner, should be doing with your time, you can help focus on what your "staff" should be doing.......the stuff that needs to be done that you should not be doing.

2. Write an ad for EXACTLY what you want. This is related to the job description, but here you have to condense it down to ad size. Every word is valuable, make them count.

3. If you place a classified ad, use a box # or freshly created anonymous e-mail. If you place an ad in the law journal, or the newspaper, or at a law school, you WILL get a large response.

4. When the resumes and letter come in, spend some time reviewing and thinking. I have a "3 stack system" for my first impressions. Stack 1 is for apparent possibilities. Stack 2 is for possibles. Stack 3 is no way. I sometimes make a 4th stack for funny, but then I put them with stack 3. Of course, you have to read between the lines, but don't forget to read what's there. People will tell you what they are looking for, and if it's clearly not you, don't waste your time.

5. I look at cover letters carefully. Frankly, the best resume cannot overcome a crappy cover letter. Remember, if you hire someone, the next cover letter they do will have your name on it.

6. Location counts. Sometimes it's disappointing that the best candidate would have a long commute. Experience teaches that this is a big problem. It will be tempting to rationalize this, or allow the candidate to rationalize it, but long commutes lead to big problems. I actually give extra points for proximity. The one opening I would give would be for a student or recent grad, where they might be moving from the stated address. It's worth asking.

Are we ready to interview some people?

More on this tomorrow

Per Diem Skills

2007-10-28T06:48:00.000-07:00

As Napoleon Dynamite said, you need "skills". Like Napoleon, I don't have nunchuck skills or bowhunting skills or computer hacking skills. What I do have.....are "per diem skills".

These proved really helpful at high school parent teacher conferences. At the evening conferences we had eight teachers to see. It was a mob scene of nervous, high strung parents, trying to figure out how to get their 3 minutes of face time with their child's teachers. The teachers are spread throughout the building. They are guarded by volunteer students who keep a sign-in sheet and regulate the flow of meetings. The "rules", such as they are, are not posted anywhere. You want to get it done effectively and efficiently and get out of there.

When Felicia and I got to the school and saw the situation, I said "This is exactly like doing Queens per diem appearances. What we need to do is know the rules for each part, see where the Judges are located within the building, try to figure out the verbosity tendencies of each Judge (do they conference everything or take a lot of submissions?). Most important, what happens if you miss 'first call'?"

Her look said "You really are a sick person", but of course she actually said "So what should we do?". We had a list of eight teachers on five different floors. We agreed we wanted to see the teachers together and not split up for the actual meetings.

When I have multiple Queens per diem appearances, I make a game plan. Everyone who does per diem work does this. You try to prioritize, figure out where to go first, how much time you might need, and you also need flexibility for the unexpected.

My parent teacher game plan went like this....

"First of all, we will see the gym teacher last, because its isolated on the first floor while the others are on 3, 4, 5 & 6. Also, if we miss that one it's not so bad. I would check in on 5 & 6, she would check in on 3 & 4. We would then use cell phones to see where we were on each teachers list. I then thought about it and decided not to sign in until we checked with each other, because if we were the same distance away on all the lists, we'd end up missing some and going to the bottom of those lists, a very bad result because it was getting busier as the night went on. We also agreed that from what we had heard about the social studies teacher, he would talk a lot and his conferences would run long. We agreed to factor this into our thinking. Before we split up I said what I like to say to my per diem attorneys as we set out. I said....."Hey, let's be careful out there."

The plan worked pretty well. Not perfect....we got caught with Spanish and Bio getting called at the same time. It caused us to go to the bottom of the list for the Bio teacher, but second call on Bio didn't take too long. We nailed Social Studies, arriving just as our name was called. (In the per diem world we call this "hitting your marks"). Fairly late in the evening, I realized we were allowed to use the elevator, so when we were three away on English, I took the elevator downstairs and checked in on gym. Next semester we will hit our marks better, but overall it the appearances were covered well.

In the per diem world we usually don't talk about the results of the appearances, unless we missed one. This was different of course, it was like covering one of my own cases. When I got home, of course Rebecca wanted to know how it went. So I said "Well, we had a good game plan, and got them all covered pretty well....we did have to go back and get Bio on the rebound...." She was rolling her eyes, so I told her the truth, she is doing very well and has some energetic and interesting teachers.

And I have some useful "skills".

Tower of Babble

2007-09-01T08:30:00.000-07:00

I've asked the questions at many depositions. I try to approach it with purpose, you are 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 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. I have been told there is no word in Spanish for "curb". Using that handicap, try asking questions about a trip and fall on a broken curb.

6. 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.

Welcome to Weasel-Dom

2007-08-26T16:50:00.000-07:00

Dear faithful blog readers - Entering Weasel-Dom has caused the longest hiatus of my blogging career. Sorry for the delay...... here is what happens in Weasel-dom.....

A few years ago, the lower courts were flooded with these cases. Many cases engender motion practice. In Queens, for example, the motion calendar has approximately 150 motions every day!! There are so many motions that a separate part was created just for the motions. This is the real weasel-dom habitat. These motions are usually about some technical detail.....for the claimants trying to win the case on a technicality (if they had to win on the merits they'd not start a lot of these cases). Defense motions are also trying to knock the plaintiff case out on some technical grounds, so they don't have to spend more money defending.

Wht kinds of technicalities? Here are a few.....

Was the denial notice timely served? How do you serve it? Who can you serve it on? What must it say? What can it not say?

What if the claimant is a medical corporation, but the doctor files the claim? What if the doctor is under indictment? What if the papers assigning the claim from the patient to the doctor were in the name of the medical corporation?

Does the doctor have to attend a deposition if the insurance company wants it? What if they want it on EVERY case, large and small? What if the doctor sends a billing clerk to the deposition? What if the plaintiff wants to depose the claims examiner?

Can a plaintiff combine all his claims with many patients arising out of the same accident, and make one larger case against the same insurance company?

For awhile, the courts were so inundated with motions that they were giving one year adjournment on any motion where one side requested time to respond. I observed that this did not slow the onslaught of motions at all.

The "trial" side of the calendar is also backing up the lower courts. In some ways, this part of the system works, as many of the cases do settle. Still the calendar is huge, and one sometimes wonders why they cannot be settled pre-court. Of course, it is possible that many cases ARE settled pre-court, and we are only seeing the leftovers in court.

The most interesting no-fault cases are the ones with a "fraud" defense. In these cases, the insurance company smells a rat (or a weasel) and investigates a group of claims. I am aware of a case where the "patient" had been in 8 accidents in a 6 month period, and was treated at several different facilities. Not only that, but when the insurance companies investigated further, they found ten other people in the same apartment building with a similar history. I guess they all had bad luck.

Anyway, if anyone would like to come on a tour of Weasel-dom, just e-mail me and I will arrange it.

Now.....I can blog about some other things.

New Weasel-dom

2007-08-01T17:59:00.000-07:00

I know.....everyone has had their seatbelts fastened, waiting for the trip to New Weasel-dom. Sorry for the delay, but I actually spent a few mornings in New Weasel-dom this week, getting good and weaseled up. Unfortunately, it was not conducive to the writing process, so today I crawled out of the hole, and now.....it's off to New Weasel-dom

The New Weasel-dom is "no-fault" litigation. Let me start with a disclaimer and a WARNING: I am going to give the cynical (though all too real) version of what happens. I recognize that sometimes, people really ARE hurt, and are treated by REAL doctors, and represented by REAL lawyers, and those cases are really interesting. Most of the cases in the courthouse are related to accidents and injuries, and I would not call them Weasel-dom......a hyena and vulture convention maybe, but that's another blog entry. New Weasel-dom is that small section of the car accident cases, the "no-fault" medical bills aspect.

Let's look at the most common scenario, and talk about what happens, factually and legally:

1. There is a car accident.

2. It's POSSIBLE someone got hurt.

3. There are insurance companies for both cars.

4. There are "doctors", "lawyers", and accident participants who want to make money.

5. There are laws and rules regarding who is entitled to get paid, and how much, when there is a car accident.

6. If there are a lot of claims being made, at some point insurance companies start to try to draw the line and defend themselves.

OK, so there are laws covering this stuff, and they apply to the real cases too, but their application on the marginal cases creates no-fault Weasel-dom. There are thousands of these marginal weasel-y cases in the system. You may wonder, why are doctors and lawyers filing these thousands of marginal cases? For the same reason that dogs lick their balls.....

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..........BECAUSE THEY CAN!!!!!

I would try to spare you the legal technicalities, but bear with me, New Weasel-dom is more fun with a little legal knowlege.

I only know the basics anyway....if I claimed to be an expert, you'd have the right to call me a weasel. I only want to tell you about Weasel-dom, I don't want to actually join.

The law: when there is a car accident, there are certain things which are paid by the insurance for the vehicle the injured person is in. These things include reasonable medical expenses, medications, diagnostic tests, therapies, transportation to medical treatment, and the like. It includes chiropractic, accupuncture, and psychologists. It includes lots of tests (x-rays, MRI, CT scans, EMG). You don't have to wait for a case to be "decided" as far as who was at fault in the accident. These things are paid by the "host" vehicle, the car the injured person was in, regardless of whose fault the accident was. Hence the term "no-fault".

Like many things, there were good intentions behind the "no-fault" system. The idea was, people who are hurt should not have to hold off needed treatment, while a case is being decided. This apparently used to happen. Many states now have a no-fault system, and injured people can get treated quickly, and the insurance has to pay for it. At the same time no-fault systems came in, many States also adopted a serious injury "threshold", essentially limiting monetary recovery to the so-called serious cases. One paradox arising out of this, is that the way to establish a serious injury is with as many tests and as much treatment as you can get, and so to some extent, meeting the serious injury threshold is often driven by pounding on the no-fault system.

How much treatment can someone get? When can they get it? How long can it go on? The standard is "reasonably necessary". For many years the insurance companies could not even challenge the reasonable-ness for 90 days. If you were an unscrupulous canine testicle slurper, what would you do with a system like that? You'd open "medical centers" and take every minor fender bender you could bring in, and give each "patient" as much treatment as you could think of, over and over and over again. This would often include MRI's, physical therapy, exams with orthopaedists and neurologists, dentists (for "TMJ") and even psych evaluations. Ever wonder why your auto insurance costs so much? It was common practice for the medical providers to not even send in their bills until the 89th day. A few years ago, the 90 days was reduced by statute to 30 days, which helped a bit, but the beat still goes on. You can still treat after 30 days, but the insurance company can contest the reasonableness, and other aspects of the bills.

OK....we are not IN New Weasel-dom yet, but we are getting there. When the insurance companies start contesting, a whole bunch of laws and rules apply. A whole lot of money is at stake, not on each particular case, but collectively. The system of contesting this stuff, and the intricacies and nuances of the law, and the economics of it all, has spawned an entire industry. If you can bear it, in my next post I will tell all about it....

Weasel-dom

2007-07-26T18:04:00.000-07:00

A few years ago, I was covering cases in the UM/SUM part. These were cases involving "uninsured and underinsured motorist" insurance. I won't bore you with the technicalities, except to say there were a lot of technicalities. They were always talking about the size of the type on the cancellation notices, and how you had to mail the various notices (do you count the day of mailing? what about holidays? what if the address was wrong? what if you mailed it to the attorney?). It was the Seinfeld of courtrooms, a show about "nothing". It was here I heard one of my favorite phrases, when Allstate attorney Frank Sena referred to the part as "Weasel-dom". After he said that, I noticed how all the attorneys were hunched over, how their noses wriggled, and how they avoided sunlight. Sometimes in the UM/SUM part, there were three parties to the dispute, two insurance companies (each trying to get out of paying, though one of them had to) and the plaintiff. The plaintiff's attorney didn't really have to do anything, and when I would get calls for the UM/SUM part, I would ask, "Do I have to do anything, or am I a spectator?" I even made that a box on my intake sheet. Circle one: primary carrier? Uninsurance carrier? Spectator?
I never wanted to learn about point sizes and cancellation notices, so after awhile, I only took spectator cases in the UM/SUM part.

Eventually, the UM/SUM laws evolved, and the part became less weasel-y (Is that a word?) However, there is a new front in Weasel-dom, the so called "No-fault" cases. Fasten your seatbelts.....tomorrow we are going to the new Weaseldom.....

Noxious Liquids

2007-07-14T11:51:00.000-07:00

I used to have a part-time gig working for the taxi drivers union. My friend's wife's Dad was the founder and President of the union. The union provided health insurance to the drivers, and represented them in contract negotiations with the City. They also offered the members a "legal plan". The main benefit of the legal plan was a free lawyer for traffic court. Actually, a law firm represented the union, and part of their retainer agreement required them to provide lawyers for traffic court. Sometimes the firm just couldn't make all the traffic court appearances. When that happened, yours truly got the call.

I used to mostly go to "Manhattan South" (down by Astor Place.....terrible parking, but a big Starbucks across the street) or "Manhattan North" (126th Street in Harlem....parking not too bad, but no Starbucks). Most of the cases were red-light tickets (there's a surprise). I got pretty good at them, topping out at winning 75% of the time. The way I learned to do it was watching lawyers who went to traffic court every day, and if they were nice, asking for some advice. Most were nice, and after a few visits, I knew how to do it.

OK...it's not what this post is about, but I will tell you how I used to win many of the cases. The easiest ones were when the officer didn't show, but that didn't happen too much. Traffic officers have their regular court days, it's part of the job. Any tickets where people plead not guilty get a date that is that officers day. The really good traffic cops were hard to beat, and my 25% losers were with them. They would lay out the case perfectly, and if it ever came down to credibility (drivers word versus the cop, the driver is dead meat). As one of the regulars told me, you NEVER want a traffic case to hinge on credibility.

The way to win, is to know when the officer has left out some element of the "prima facie case". This would be because either the ticket, or the officers testimony, was lacking an essential element of a case. I had a little mental checklist......date, time, where officer was, light in working order before and after, vehicle kept in continuous view, things like that. Officers who are not strictly traffic guys, cops doing their work who pull someone over and give a ticket, would frequently fill out the ticket wrong OR not testify to the required elements. If they left one out, the Judge would ask them "is there anything else?", and if they couldn't think of anything else, I'd make a motion to dismiss and Beldar Conehead Singh could go on his merry way.

Unfortunately, the union president called me in one day and said, "I'm sorry, but we can't pay you to go to traffic court any more."

Being a stellar businessman I replied "But I can't do it for free."

He said "Of course not, what happened is we need our union law firm to cover ALL the traffic court stuff, and we don't have it in the budget to pay you for the extras, THEY have to get their own people. But don't worry, YOU are gonna do the ECB cases".

I knew that ECB stood for Environmental Control Board, but I didn't see what that had to do with the taxi union.

I said "What are the ECB cases?"

"Well, those are mostly noxious liquids cases."

And so, I got to make the call that every young lawyer dreams about....

"Hi Mom, guess what? I'm starting a new thing, I represent peeing cab drivers."

Actually, there were two main kinds of noxious liquids cases. I called them either "containers" or "squirters". Containers were when a driver poured a "noxious liquid" from a container, usually a coffee cup, into the street. I sometimes wondered how the officer KNEW it was a noxious liquid and not just cold coffee. I also wondered what the officers told THEIR mothers about their job.

A squirter ticket was when the officer actually saw the driver delivering his noxious liquid streetward. Those were difficult to defend, especially if the driver insisted that he didn't do it. I mean, what could you say......I was just.......resting......or something.

I did the noxious liquids cases for about two months. Actually, it was kind of fun. The main reason I stopped was that ECB was somewhere mid-town, and you couldn't park. It was worth doing it, just to be able to tell you about it fifteen years later.

Thanks for listening.

Wills and the Dysfunctional Family

2007-07-03T17:01:00.000-07:00

Sometimes family members feud.
Sometimes its irreparable (in the eyes of the participants.....I would always beg to differ, but that's another story).
Sometimes thoughts of mortality and money will lead a person to take action.

So they make a will....with one main purpose.....to make sure that " X " doesn't get anything. Sometimes there are related purposes, to make sure that " X " gets the message, or knows what he missed out on, but the theme is often the same......." X " gets nothing.

I've done a lot of wills like this. In these situations, one thing you don't want is a will contest in the future. Sometimes the main problem the will-maker has with " X " is "he's the kind of person who would contest a will". The solution to this is something we learned in law school, which students think would never come up, but in practice is does, it's called an "in terrorem clause". Sounds pretty cool.....here's how it works. You leave " X " enough of a bequest to make it interesting, and add a clause that says effectively "If after my death ' X ' takes ANY steps to contest this will, he will get ZERO". People who are so inclined seem to love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave " X " something in the Will. Clients in this situation will invariably say "So leave him $10"....but this is not the way to do it, because " X " would have nothing to lose. A better approach would be to leave " X " a bequest of say, $15,000 or $25,000, in a million dollar estate, and let him deal with it.

Sometimes people don't want to do an in terrorem clause, but they do want to leave " X " nothing, and they want to minimize " X "'s chances in a will contest. One thing I always do, if someone is being left out, is specifically refer to them. It can be as simple as "I intentionally make no provision in this Will for X, and this is not due to an oversight". Some people go further and say something more....."I leave X zero because he .....whatever." Another one I have had, more than once, is "I leave nothing to X, for reasons which are well known to him." I didn't like it, but the clients wanted it and I did it. I always wondered if X really knew the reasons.

If there are any potential issues regarding the will-makers competancy, steps must also be taken to ensure the Will will stand. This would include using the best witnesses possible, keeping the language of the will as simple as possible, keeping detailed notes, and making sure you can document that you (attorney/draftsman) met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but I have never done it. It surely is done, but I suspect not that often, and I can see many reasons not to.

Why all the fuss about possible will contests? Consider this.....an attorney can take a will contest on a contingency fee. There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed. When Will contest cases first appear in Court, the first thing the Judge will usually say is...."any way to work this out?"......and eventually, there usually is.

Filing a Will for Safekeeping

2007-06-27T18:20:00.000-07:00

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 knowlege that when the time comes, the will will be found and its terms carried out. There are times when it's not that way, and even times when clients want and need to resort to deception and skullduggery to make their will, but keep it safe and a secret until they pass.

I always look at whether anyone with access to the will would benefit from its disappearance. I had a client recently 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 him long enough and well enough to know it's legit, but he is very concerned that his nephew would be called to his residence if he died, and the will would be gone. He also is uncomfortable keeping it in a safe deposit box, and uncomfortable about leaving it with me. I suggested that we file it for safekeeping with Surrogates Court, while he is still living. Many people, and many lawyers, don't know you can do this, but it can be very useful. It costs $40 to file. Whenever anyone files an Administration proceeding (claiming there is no will), the Clerk ALWAYS checks for wills on file. I have filed wills for safekeeping about 10 times in the last 25 years. I don't know if it ever stopped skullduggery, but whenever I do it, the clients always appreciate the advice.

Isn't it True.....????

2007-06-25T17:38:00.000-07:00

As I start my second 25 years in practice, here are a few observations about lawyering......

Isn't it true......

.....that most criminal clients are nicer than civil litigants?

.....that Judges who have never practiced can really hurt you?

.....that getting a retainer is not so hard, getting paid beyond the retainer is harder?

.....that in practice, it never matters where you went to school or what your grades were?

.....that whenever a new client tells you that people involved in the case have been "paid off", you know they are nuts and you want out?

.....that you could have been a psychologist?

.....that truth IS stranger than fiction?

.....that when you deal with extended families, very often "stupid is as stupid does"?

.....that small money cases drive you crazier than big money cases?

.....that some files are jinxed?

.....that when a client wants you to send a "lawyer letter", you know it isn't going to do anything?

.....that you don't know what people who have "real jobs" actually do?

.....that people who have real jobs have no idea what YOU actually do?

.....that you have thought about changing careers many times?

.....that you could write a book?

.....that the longer you practice, the more you realize how much you don't know?

.....that knowing how much you don't know is not only OK, it's one of the best parts about lawyering?

Per diem update

2007-06-13T18:47:00.000-07:00

The per diem (court coverage) business is getting tougher all the time. Here are the main reasons:

1. The overall volume of personal injury cases is down. This is primarily due to the vigorous defense on these cases by the insurance carriers. It has become unprofitable for most plaintiff firms to accept the lower level cases, so now, these cases are simply not in the system. This puts pressure on the per diem business because not only are there less "jobs" to cover, but many firms who used to use per diems are now covering the appearances "in house".

2. Many of the civil defense lawyers are now victims of their own success. They beat the tar out of the plaintiffs, so now there are less cases, and the insurance companies have either laid off lawyers or stopped hiring. Many of the displaced lawyers try per diem work. Some can make a go of it and some can't. The bottom line is there is more competition for less available work.

3. The competition for work has kept the fees down. I would love to raise my per diem fees, but the problem is all my competitors would love me to do that, so they could undercut me. I recently told another per diem lawyer that in this environment I would lower my fees before I raise them. He seemed to think I was nutty. He can follow his business model, I'm going to stick with mine.

4. Many of the per diem players are marketing and advertising much more than before. I suspect some of them have actively pursued my attorney accounts, and sometimes in the course of marketing they "inadvertently" have gotten in my kitchen and taken some clients. Fair is fair, and my view is it works both ways and evens out. In the end, quality will tell. One thing is for sure, the per diem business is no different than any other, you have to service your existing clients AND market for new business.

5. Some of the downturn in lawyer business spills over into accounts receivable. There are some really bad attorney clients in this biz. I've learned who they are, the hard way. I am tempted to name names, but I won't. What I will do though, is let my new competitors scoop up all THAT business, and then struggle to get paid from these deadbeats. Here's when I knew the depth of sleaze from one of these firms.......He ran up a $10,000 tab with me (you may ask, how did you let that happen? and the way it happens is every so often they send in $3-4000 when you really need it, so you stick with it, and then it gets out of hand) and forced me to sue him. We negotiated a settlement, which I had to chase him for. After it was all over, I called him and said "No hard feelings, I have a business proposal.....I know you have volume in Queens, and I would like the work, but I must get paid, SO, I will give you very VERY low prices, lower than anyone else, EVER, and I only have one condition.....I want to bill a credit card once a month". He said no. He then proceeded to stiff my biggest competitor for $6000!!!!
Yipes!!!! and I am usually the guy who defends other lawyers.

The business still has a lot going for it, but anyone thinking about trying it should remember, it IS a business.

The Why of Wills 4 (Kinship and more)

2007-05-25T17:58:00.000-07:00

In a kinship proceeding, the cousins really have to not only prove who they are, they have to prove the non-existence of prior classes (spouse, children, siblings, etc). The level of proof is high, and the money is not going to be released if its not proven.

A related situation happens when such a person makes a will. For a will to be probated in New York, you must prove to the court that all persons "adversely affected" by the will have been notified. These are the people who would inherit under intestacy. Proof of their notification is shown by their signing a waiver, or by their being served with a Citation. What happens if the decedent made a will, and the distributees are cousins? Do you have to go through a "kinship proceeding", just to figure out who to put on notice for the will? The short answer is NO, you have to show "due diligence", both in searching for these people, and in notifying them. If you have looked for such relatives and can't find them, the court may let you serve them by "publication". That's what those little notices in the newspaper are. Those notices happen after a diligent search has been shown, and the court has authorized service on these people by publication. The notices are basically saying to these people....."Hey, the Will of Joe Blow, your uncle, is being offered for probate on July 15th, show up or forever hold your peace. It's rare that anyone responds to these, though it has happened. How much diligence is "due" diligence? I have found the courts to be practical about this. If the Estate is very large, they expect more diligence. They may require a professional investigation. On a smaller estate, they will sometimes permit the attorneys to show a search using available public records, including the internet.

In the overall scheme of things, a due diligence search in the course of probating a will is a much better situation than laughing heirs and a kinship proceeding. Better for whom, you may ask. Better for the cosmic karma of the universe, something I find myself noticing more as I get older.

The Why of Wills 3 (Kinship Proceedings)

2007-05-22T18:49:00.000-07:00

This is part 3 of the things that happen when people who should have made a will, don't. I am talking here about the loners, spinsters, black sheep, oddballs, singletons, dancers to their own drum, keep their own counsel......people who die not only without a Will, but without close family members to inherit from them.

There is nothing wrong per se with being single and without children. Very often such people have close relationships with siblings, nieces and nephews. If they don't make a will, these relatives will inherit, and it seems just and proper.

Very often such people accumulate a lot of assets, and their closest relatives are cousins, sometimes lots and lots of cousins, scattered around the globe. If this person dies without a Will, and the Public Administrator administers the Estate up to the point of a kinship proceeding (see previous post), what happens in a kinship proceeding?

Simply put, the Estate is divided into two halves, for the decedents paternal and maternal sides, and the cousins on each side have to PROVE their respective interests. Of course, before they even get to prove who they ARE, they have to prove the non-existence of those relatives who would inherit ahead of them. Cousins have to prove that there is no spouse, no children or grandchildren, no parents, no siblings, no nieces or nephews. Proving a negative can be challenging.

In these proceedings we generally prove things by locating and producing certified documents. Things like birth certificates, death certificates, marriage and divorce papers, estate records, and some more obscure ones like obituaries and census records. The non-existence of spouse and "issue" (lawyer word for children or offspring) is usually proven through testimony of a non-interested witness. It can be challenging to find a person who knows enough about the decedent to testify that they knew the person well enough to say they were not married and never had children. There is a certain leniency with this kind of testimony, since one would think that if there WERE spouse and issue, they'd likely come forward.

Once spouse and issue are accounted for, cousins generally must use a geneologist to set forth a family tree, and obtain the appropriate documents as proof. These trees typically contain information about pre-deceased siblings and their issue, parents and grandparents, and aunts and uncles. The tree often contains many of these people, but they have predeceased the decedent. When the lawyers and court participants in these proceedings are referring to the proofs regarding these persons, we talk about "killing them off". Nothing personal, but as long as they existed and we can't prove their death, they'd inherit ahead of cousins, and so we try to kill them off.....by proving that they are dead.

These proceedings are designed to protect the interests of people who may have had inheritance rights. The last thing the court system wants to allow is for someone to show up later, after the money is distributed. This thought underlies many things that go on in Surrogates Courts.

Next post....even MORE on kinship proceedings.

The Why of Wills 2 (Avoiding Laughing Heirs)

2007-05-20T17:05:00.000-07:00

This is part 2 of "The Why of Wills".....

In New York, here's what happens when a person with no "close" family (no spouse, kids, parents, siblings, nieces or nephews) dies without a Will. The Public Administrator of the County where the person dies, begins to administer the Estate. The Public Administrator is a public official who steps into estate cases when there is nobody else available to act. In a County like Queens, with 2 million people, it happens quite often. They have a good sized staff, and a highly skilled law firm to represent them.

When it appears that a person has died without a Will, or if there is a Will but nobody is acting, the Public Administrator begins to administer the Estate. They do anything and everything that an Executor or close family member would do. They sometimes arrange burial, they clean out apartments and houses, they try to figure out who the closest living relatives are, they search for a Will, they receive mail, they sell houses or apartments, they marshal the accounts and assets of the decedent, they deal with claims of creditors, and anything else that may be needed.

When they reach the point where an Estate Administrator would ordinarily pay the money to the heirs, the Public Administrator will then file an "Accounting Proceeding". This is a proceeding where they set forth everything they have done, lay out all the money taken in and paid out, and ask the Court to set an attorneys fee for their attorneys, and approve the way they have handled the money and the claims. They notify all interested parties, and when the accounting proceeding is heard in Court, any disputes are resolved. The final thing the proceeding requests is the remaining money to be held by the City of New York, pending the establishment of "kinship".

A "Kinship Proceeding" should then follow. This is when the cousins have to prove who they are, and thereby claim and ultimately receive the money. This can be rather involved, and very interesting, depending on your perspective.

As a lawyer, I find these interesting. They are a lot of work, the kind of work we are well paid for. For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these laughing heir cases are often gut wrenching. The thing is, they can be simply avoided......a person whose closest family is cousins SHOULD make a will.

More on Kinship Proceedings in the next post.....

The Why of Wills

2007-05-11T18:12:00.000-07:00

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..don’t people who have “nobody to leave my money to” make bequests to charity?

WHY…..do some people have a pathological abhorrence to paying attorneys fees, and accept heavy financial consequences when an ounce of prevention would have led to a better result?

WHY…..do people hold family grudges for years and never make the first move towards resolving the issues?

I know, I ask these sarcastic “why” questions. The kind of questions we could probably answer, but what would it accomplish?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:

- if a spouse and no children, all to the spouse
- if children and no spouse, all to the children
- if spouse and children, first $50,000 to the spouse, then 50/50 spouse/children
- if no spouse or children, all to the parent(s)
- if no parents, all to siblings (or children of predeceased siblings)
- if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins.

The above is a rough sketch, and there are rules to cover EVERY situation you could think of, and they ALL come up. It is almost impossible for there not to be at least SOME cousins. It is actually fairly common to have an older person who never married or had children, whose parents are long gone, and who either had no siblings, or outlived them all. If a person like this does not make a will, their cousins inherit!!! In law school the professors refer to this as “laughing heirs”. Everyone laughs about this in law school, and probably thinks it some obscure situation that never happens in real life.

Experience teaches otherwise…..

More tomorrow….

Lord of the Fleas Part 2

2007-04-07T08:11:00.000-07:00

This is Part 2 of "Lord of the Fleas", a fictional account of a business idea I have not actually done, but which I believe would work. Part 1 is at http://nylaw2law.blogspot.com/search/label/Lord%20of%20the%20Fleas%20Part%201

.......I really didn't know what was going to happen that first day. My break even point was roughly two paying matters coming out of spending my day. Of course, I wasn't in this to break even. Come to think of it, the objective of making real profits and hitting it big in law practice, is something too many of us fail to do.

I set up my booth with a sign containing my name and the words "Lawyer" and "Abogado". Using the word abogado forced me to bring my bilingual secretary Carmen. I could have tried to consult with the thousands of Spanish speaking clients in waiting, figuring that living in NYC they probably speak SOME English. I knew better, half the time my high school Spanish is better than the clients English, and while this makes good comedy, it doesn't start an effective attorney/client relationship.

From the moment I put up my sign at 7:30 AM, drinking my Dunkin Donuts Coffee, until we left when the sun went down, I consulted on 127 matters. I know this because I kept a running log. Actually, I had not planned to keep a log, but I DID have a yellow pad and pen, so after the 5th conversation, by 8 AM, I asked Carmen to set up a log. Perspective is a funny thing. Many lawyers, upon being told that I had a day with 127 consultations, responded that I must have talked to a lot of nuts, and had a day filled with things that turned out to be "nothing". There is some truth in that. Some of the people WERE nuts, some of the matters WERE "nothing". But, that first day, I did talk to clients leading to four personal injury cases, four real estate closings, three wills, two estates, one incorporation, and twelve matters which ended up being "real" referrals ("real" because I particpated in the fees, within the ethical guidelines of course). Of the referrals, there was one med mal, one legal mal, three business transactions, five immigration matters, and two matrimonials.

The next week we were busy, working the new matters and preparing for week 2 at the Aqueduct Flea Market.....

Lord of the Fleas

2007-04-05T15:15:00.000-07:00

I once started writing a fictional piece about a lawyer who became a multi-millionaire after using one of my business ideas. The piece was written from the perspective of a dying old man explaining how he had done it. (I was thinking "Little Big Man".....#14 on my 100 Favorite Movies List http://nylaw2law.blogspot.com/2007/01/100-favorite-movies-list.html)

I never did anything with the piece or the idea, because in a strange way, I thought some day I might do the idea myself. I now accept that I will not do the idea, so I will reveal it here, where no doubt thousands of hungry young lawyers will read it. Maybe someone will DO IT!!!! In any event, describing the idea may give someone SOME business inspiration. I don't want much for it, just.....let me know if I can help.

LORD OF THE FLEAS

I'm that guy. The first lawyer to realize that setting up at a flea market would be the best marketing strategy ever. It came to me one Saturday morning at the Aqueduct Flea Market. I'm not sure why I went there, other then a vague notion that I needed sox for basketball. After buying my tube sox, I was done shopping, so instead of looking at the booths, I looked at the people. The Aqueduct Flea Market is in the parking lot of a racetrack in Ozone Park, Queens. Trolling amidst the vague odor of manure, were hundreds, maybe thousands of my past, present, and future clients.

Even on a Saturday, my idle thoughts always turned to my practice. I hated my mix of cases, and even worse, I hated the direction my practice was going......if "nowhere" counts as a direction. Twenty years in practice, and I finally had learned enough to really run a law practice. After many, many painful lessons, I knew how to evaluate cases. Knew which ones to take and which ones to run away from. Learned how to evaluate clients and their stories, how to size up the profitability of their proposed business. That’s all a law practice is, really. Hearing a person’s story, and making a business decision on whether they and their story are profitable business. No matter what anyone says, there is plenty of business out there. The real question, the one that separates the successes from the strugglers, is knowing and getting GOOD business, and staying away from BAD business.

They say Queens is the most ethnically diverse County in the nation. http://en.wikipedia.org/wiki/Queens#_note-0 The Aqueduct Flea Market is like that. It's often suggested that young lawyers "join organizations" and "make themselves known in their community". I'm not knocking that, but in those places you mostly have "other young lawyers looking for business". You want business, go where the clients are. To me, the Aqueduct Flea Market looked like a client convention, with folks milling around while carrying their particular concerns with them.........immigration, divorce, real estate, estates, comp, accidents, wills, business transactions, criminal. Unlike most people I knew at "the Lodge" or "the Club" it did not look like most of these people had a lawyer in the immediate family. They looked like people ready to spend some time at the flea market, looking at things that interested them. I wondered how many of the thousands were shopping for a lawyer. It struck me that the flea market was like a Yellow Pages without the phone calls.

This is what I did.......I contacted the managers of the flea market and asked what was involved in "taking a booth". I made a list of the supplies I’d need: table and chairs, some signs, cell phone, laptop with extra batteries, yellow pads, pens, calculator, PalmPilot, bottle of water. I was sure there would be more, but knew I'd figure those out as I went.

Then I did something I always do when thinking about a new business idea. I got out my pad and pen and calculator and ran some numbers. I'm always amazed at how many lawyers DON'T do this. The thinking and the calculations are as simple as this...."If it costs $XXX to take the booth, and I am committed for Y weekends, h0w much will it cost? Are there any other expenses (I couldn't think of any other than my time and my lunch, which I have to eat anyway)? I then made four colums regarding potential income, I called them break even, make some profit, hit a home run, and hit a grand slam. I assigned dollar values to the first three columns but did not define grand slam.

The thing is......it was a GRAND SLAM.

more tomorrow....

Yellow Pages and Internet Ads....

2007-03-18T17:44:00.000-07:00

The Yellow Pages is not as popular as it used to be. The internet serves the same function for a lot of people. However, plenty of people still use it, AND many of the same issues that applied to yellow pages adverstising will apply to internet ads.

I used to get good value from my yellow pages ads. These days I get a good return from internet listings, primarily from lawyers.com and findlaw.com. I always put a lot of thought into these adventures. So, for what it's worth, and in the hopes it will help, here are a few thoughts about yellow pages and internet advertising....

1. READ WHAT'S ALREADY THERE!!!!! I can't emphasize this enough. I used to look at the Yellow Pages lawyer ads for all the NYC and surrounding counties. Don't just thumb through them, look carefully at the categories, look at the approaches the lawyers are taking. Of course, if you specialize, look at the lawyers in your field. The more carefully you look, and the more you think about it, the more you will notice. A few examples:
- You may notice full page ads, usually for plaintiffs personal injury. If you think these ads are VERY expensive, you are right. These firms can afford it, they only need a few home runs to make these ad outlays pay off. After the full page ads, there are usually ads alphabetically by specialty. In these sections a lawyer can take a partial page, or a few extra lines. THESE are the ads most small firms should focus on. They are affordable, and you can easily calculate how much business you'd have to do to make the ad profitable.
- Some ads feature the attorneys location. I think this is smart, a lot of clients make their first call based on convenient location.
- Some ads mention fees in various ways. How to handle this is an important decision. For some reason, the contingency fee lawyers rarely talk about the percentage. It's almost as if nobody wants to compete on this aspect. This is a curious phenomenon, considering that competition and advertising has deflated the fees in most areas of general practice. In personal injury though, one third is rarely challenged. I thought about breaking ranks and advertising a 25% contingency fee, and featuring this. I wonder what sort of retribution would have ensued from all the self-righteous "we look out for our poor clients" plaintiff's attorneys. If someone tries this, please let me know.
- Try to think of the client process in searching for a lawyer for the kinds of cases you want to get. In the late 80's a lot of rental apartments were converting to co-op ownership, and there were many closings to be had. When I looked in the yellow pages, I saw that all the lawyers put their ads for co-op closings in the "real estate" sub-category of the lawyer ads. Most lawyers would consider this a "real estate" matter. I had noticed that MANY clients, who had always lived in rental apartments they were now buying from their landlords, thought of this as a landlord/tenant matter. There was a category for L&T, but it was full of eviction ads, tenant rights ads, and Housing Court ads. I called the yellow pages and asked if I could list in the Landlord/tenant section, and put the following words in my small ad "Co-ops and condos, contracts and closings, reasonable fees". This cost (in approx 1985) about $75/mo for the Manhattan and Queens yellow pages. For a year I was the only ad listed like that. I got a TON of business from those ads. The next year, a few more lawyers used my strategy. I always wondered whether they thought of it themselves, or whether the yellow pages sales reps tipped them off.
- The internet has similar considerations. The big question there is always "what kind of searches will clients do". You want to show up on the first page of the major search engines. It's worth putting in the thought and money to have this happen, and the only way is to think as the clients will think.
- Get feedback on your ads. I always ask where a referral came from, this is standard and we all do this, for a lot of reasons. I would add this....if I establish any kind of rapport with the client, I try to see what about my ad, or my internet listing, helped make the contact. I make this a regular practice. You really learn about your ads, and your potential client base, and you can make adjustments on this basis.
- Maybe this is an oversimplification (though I don't think so), you have to get out your pad and pen and calculator and RUN THE NUMBERS. This applies to a lot of things in practice, and I am sometimes surprised how lawyers don't do this....so tomorrow I will talk about it more.....

The Wacky Caterer Files for Bankruptcy

2007-03-08T19:38:00.000-08:00

This is a continuation of the previous post "The Wacky Caterer". As in that post, the story is true, the client names are changed, and the lawyer names are real.

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.
6. The "new law" had made pretty drastic changes, and it's still being sorted out.

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 http://www.kslaw.com/portal/server.pt?space=KSPublicRedirect&control=KSPublicRedirect&BioId=5837

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......
"YOU CALLED FLOYD ABRAMS!?!?!?"

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

The Wacky Caterer

2007-03-07T18:06:00.000-08:00

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.", prompting me to ask "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, "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".

Tomorrow....The Wacky Caterer files for bankruptcy....

Take My Bodega....Please

2007-03-05T17:16:00.000-08:00

This story is TRUE. Names are changed.

In my first year in practice I was hired by an Egyptian man named Abdel who wanted me to represent him when he sold his bodega. When I asked him why he was selling it he told me that his religion forbade him from selling beer, and this made it difficult to run a successful Brooklyn bodega. "I am not allowed to sell it, but everybody wants it", he told me. I asked him questions about the important issues we would be facing.....the prospective buyers, the lease, the price, while avoiding the question I REALLY wanted to ask......."What were you THINKING when you bought this place?" Realizing there are some mysteries men are not meant to understand, I got the information I needed, and received my clients clear instructions to "make the papers" as soon as possible.
When buying or selling a small business, clients don't want a lot of small talk and light hearted banter from their lawyers. They are always "very busy" and want you to just "make the papers" and get the deal closed. Of course, representing a buyer or seller of ANY business is a huge responsibility. I judge a matter's complexity by the number of "what-ifs" you have to consider in the contract. By this standard, selling a bodega is much more complicated than selling a house. You have lease assignments, trial periods, inventories, tax and liability issues, bulk sales notices, creditor claims, and financing issues, just for starters.
Abdel told me he was selling the place to an Indian, whose lawyer was named "Patel". He gave me lawyer Patel's number. I called lawyer Patel, and told him I represented Abdel, who was selling a bodega on Ocean Avenue. He said, "Oh, the Arab who won't sell beer, that place?"
We then confirmed the details Abdel had told me: price $275,000, 10% down, seller to hold notes for $175,000 for 8 years at 8% interest, closing conditioned upon landlord's consent, and a two week trial period with a representation of $8,500 in sales per week. When I had enough info to prepare a contract, I asked lawyer Patel for his clients name, and he told me Sukhbir Patel. When I asked him whether he was related to the client, he said "Oh no no, in my village 80,000 people are named Patel, he is not my relative."
When I called Abdel and told him I was ready to send out a contract, he said "Why are the papers taking so long?" I told him I was doing my best, and lawyer Patel is doing his best to work quickly with me. I then added that "When you see the contract you will notice the buyer and lawyer are both named Patel, but I asked lawyer Patel if they are related, and he told me that 80,000 people in their village are named Patel", and I chuckled.
Abdel then told me something profound, which I have remembered to this day.........."Mr. Barry Seidel, I don't give a fuck what their names are."

Once I understood that, we proceeded to contract and to a nice closing.

One footnote.....About a year after the closing, on my way back from golf I was driving on Ocean Avenue and realized I was near Patel's bodega. I couldn't resist a visit. I was warmly greeted by bodega-meister Patel, who told me that business was going well, after a slow start. He said he almost called me a month after the closing, because during the pre-closing trial period the store made the money it was supposed to, but he realized later that "many Egyptian men were shopping then, but after the closing there were no Egyptian men. I think Abdel was very tricky about that." I must have missed that class in law school, and told Patel that I did not know about such a thing, and he laughed and said "I don't blame you for that, this store didn't need Egyptians, it needed BEER......please, take a Heineken, on me."

Best beer I've ever had.

ALJ at the PVB

2007-02-28T14:39:00.000-08:00

For a few years I was an Administrative Law Judge at the NYC Parking Violations Bureau (ALJ at the PVB). The Law Journal ad said it paid $89 per 3 hour session, all you needed was five years in practice. So, at age 30 I became a "Judge".
I thought it was really cool to get the $89 for each of the Judge training sessions, and then I was sworn in and ready to commence judging. You could request which shifts you wanted, and PVB tried to comply. I figured out that the Bronx wasn't so popular with a lot of the other Judges, most of whom were either "retired" or "old and practically out of business", so if I requested the Bronx I could get the shifts I wanted. The evening choices were 5-8, 5:30 - 8:30, or 6-9. I was a big fan of 6-9, once I realized that the Clerks stopped accepting new cases at 8:30, and if you had no cases at 8:30, your 6-9 shift ended and you still got the whole $89.
I liked sitting in the Bronx in the evenings because sometimes it wasn't busy, and you were permitted to do other work. If I brought work with me and got some other work done while I was sitting as a Judge, I used to call this "LEVERAGE". Sometimes I didn't feel like doing other work, and I would spend my time talking to the other Judges and the PVB clerks, who were all very nice.
Sometimes I did some judging too. The way it worked was there was an "intake area", where the Clerks would make sure the "cases" (people who were fighting parking tickets) were "ready for trial". When they had enough people they would randomly fill the rooms, presumably to prevent Judge shopping. Believe it or not, years later I found out that one of my co-Judges in the Bronx was indicted for having cases directed to his room and "fixing the tickets". I wasn't going to risk my $89 doing stuff like that, and besides, I was having too much fun judging the cases.
When I got a full room, I always started by making a great speech. I would drone on about my procedures, and the different ways one could plead their case, and when the whole room was nodding out I would conclude with....."and remember......multiple first prize winners share the jackpot in accordance with lottery rules."
In this court there were no prosecutors, actually the ticket was considered the prosecutorial instrument. Part of my training was to notice if the ticket was defective, in which case I was supposed to dismiss it. I was obliged to do this even if the defendant did not realize the defect, and wanted to defend on some other basis. One common defect was a "wrong date". Once, in say April, 1988, I was presented with a "no standing" summons dated April 9, 1989. The defendant pled not guilty and started to explain about the sign or some such nonsense, but I stopped him when I noticed the futuristic date. I told him we had two choices......I could hear what he had to say and decide whether it made sense, OR we could wait until 4/9/89 to see whether he would in fact commit the infraction at that time. All the English speaking people in the room laughed, and then I dismissed the ticket.
One might think there were a lot of Spanish speaking customers in the Bronx, and there were, but what always amazed me was the variety of other languages. One night the first defendant was Russian, and when his case was done I said "Dasbedanya" (good-bye) to him. The next defendant was Haitian, and while we were reviewing his case I said "Le jeuz son fait" (literally 'the die is cast'), and he smiled. The next man approached and he had an Israeli sounding name and I just had a feeling, so I said "Ma shlomcha" (how are you?) when we started and "Shalom" when we were done. Finally, a Hispanic man approached, sat down and said "You e-speak e-spanish?" What could I say? I said "NO".
I did handle a large volume of cases, and I must have pleased someone in authority, because after six months I was asked to be on the "appeals board". These were cases that were appealed from the ALJ's. The Board sat in Manhattan, and consisted of the Chief ALJ and two "selected" ALJ's. When the Chief called me he said I would be the youngest ALJ to ever serve on the Appeals Board, and it was "quite an honor". I asked what the pay was, and he told me $89 for a three hour session, but we sit in Manhattan at "headquarters". I told him I felt so......"honored", but I mostly liked working in the Bronx at night.
After all, I valued my leverage.

First to Go

2007-02-25T11:07:00.000-08:00

When I began to jettison certain areas of practice, matrimonial was the first to go.

Even when I was well paid on a divorce case, from my end it never felt worth it. Put another way, there may have been some threshold of money that would make it worthwhile for me, but I never came close to finding out where that threshold was, not did I want to die trying.

I have a lot of respect for the lawyers who specialize in matrimonial, and many of them seem to enjoy their work. Legally, the cases are often interesting. There are always issues on the cutting edge of law in this field. I know this from reading the law journal, and from cases I have referred out. That's close enough for me. If there is one area of law where, as a general practitioner, I hated having adversaries who specialized, this was it. Not only did they know the law, they knew how to make sure they were well paid (very disheartening when you can't say the same), they knew the Judges, and they knew how to handle their clients. This last part is the essence of matrimonial practice, and capsulizes why the generalists should not dabble. Here is the essence........
If the case has become "personal", and is not just a business proposition for the client, matrimonial lawyers know how to give the client their money's worth, and the game gets played until it's time for it to stop.
When the case is not personal, and the clients are not overly emotional and are trying to resolve their "business" together, experienced matrimonial lawyers know how the case should turn out, and they generally get right down to it. This is where handling the clients is also key, and the discussion is along these lines....."This is how it's likely to turn out, this is what it will cost to fight over certain points, this is what we can negotiate to, etc..." This works if both clients and both attorneys are like minded. But, one lawyer who doesn't really know, leads to a client who doesn't know, and then it gets ugly. As a lawyer, you don't want to cause ugliness, nor do you want to be involved in it.
What I do with matrimonial cases now is the following:
1. I do an intake, with the understanding I am doing it so I can make a proper referral. I explain my philosophies about this to the client.
2. I try to know who the matrimonial lawyers are in each County. This is very important, because this is one field where there is a distinct home court advantage. (See my post entitled "Location location location")
3. When I am thinking of a referral, I am VERY conscious of fee tolerance and making a good match. Some clients and some cases simply do not warrant the top attorneys. Having attorneys to refer to at all fee levels is very important.

A comedian once asked, "Why is divorce so expensive?".........
Answer......"Because it's worth it."

Well, that is either funny or sad for clients going through it, but for lawyers in general practice, I suggest you ask yourself a related question.....
"Are divorce cases worth it?"........
Be honest with yourself. I have never regretted making them the first to go.

Pre-paid Legal

2007-02-22T16:59:00.000-08:00

One sure thing about starting a solo practice, there will be gaps in your cash flow. There are three hurdles to overcome: finding the work, doing the work, and getting paid for the work. The only way to develop skill at all three is experience. Eventually you learn how to get paid (mostly by figuring out why you didn't get paid a bunch of times), but in the meantime it's financially stressful. One way to relieve that stress is taking a part-time legal job, which I have done four different times. I have been an Administrative Law Judge at the Parking Violations Bureau, taught paralegal courses at Queens College, worked for a taxi drivers union, and worked at a "union pre-paid legal plan". Each of these provided steady money, experience, contacts, and most important.................law stories.
The story that follows is true, only the names are changed....

PRE-PAID LEGAL

One year into my practice I answered a Law Journal ad for a part-time attorney for a "pre-paid legal plan". The attorney who placed the ad was the union attorney for Local 831, a loose coalition of shipping clerks, mail room personnel, local delivery drivers; and warehouse workers. The lawyer, Stewart Miller, represented the union in labor negotiations and other union matters.
This union could not make great strides for its members on salary or working conditions because frankly, what leverage did they have? They were just assorted workers in assorted small companies. But the union did provide two valuable benefits to membership, a medical plan and a legal plan. Union headquarters was a two story brick office building on Queens Boulevard in Elmhurst. In the building were all the doctors, dentists and podiatrists who union members could use. It was actually a smartly run little operation, an in-house HMO ahead of its time.
The union also offered a legal plan, where members were covered for an array of legal services. Stewart received an annual flat fee from the union to offer this service. Think about the economics of this. He agreed to provide legal services for everything and anything the members needed, and within his budget he had to hope they didn't need too much. His bottom line would go down when he had more cases. The types of cases reflected the demographics of the membership: debt collection cases (not as the sue-er, always as sue-ee); Family Court (usually Welfare suing a father to pay for kids on welfare); immigration; uncontested divorces (which to my nose always smelled immigration related); and minor criminal cases.
According to the law journal ad, Stewart wanted a part-time attorney to work 15 hours per week, including 10-2 on Saturdays and one court appearance per week. He would not be there with me, so I would use his office during my "office hours". His office was small and windowless, on the first floor in the back. Not too uncomfortable really. He shared a secretary and receptionist with the medical office. His secretary, Lillian, was a very experienced legal secretary, and ran the law office day to day. I thought I could learn a lot from her. I also liked the location, the hours and the pay, so I took the job.
The idea, Stewart explained, was to resolve the cases quickly and with as little real legal work as possible. Simple economics really, if there is a way to get it done simply, find it and do it. Of course, the clients often had different ideas. When you are not paying for something directly, you want your moneys worth. As I soon found out.
Tom Johnson had a DWI (driving while intoxicated) charge pending in Brooklyn. Stewart had been in court with him several times trying to get a plea bargain, without success. The problem was, Tom refused to plead guilty to ANYTHING, no matter how light the charge. Stewart was really mad at him, and turned the case over to me, with clear instructions, "Find a way to end it!".
There was a court date coming up in two weeks, so I had Lillian call Tom for a Saturday appointment. Tom was a quiet black man, about 50 years old, who worked on a loading dock. He was also a stutterer. He explained how he had been arrested. He was at a party with his brother and another friend. They had driven there in Tom's car. At the party Tom got so drunk he couldn't drive, so his brother drove while Tom laid across the back seat. At 3 A.M. they got in an accident with another car, driven by an Israeli woman, somewhere in Brooklyn. The woman and her husband got out of there car, came over to Tom's car, reached in and took the keys. Then they called the police.
By the time the police came, Tom, his brother and friend were all standing outside the car. One officer reached into Tom's glove compartment, took out his registration and said "Which one of you is Tom Johnson?'
"Hiccup.....I am.", came the reply.
"You're under arrest."
Tom's brother and friend were screaming that Tom wasn't driving, Tom was stammering a similar tune, and the officer wasn't believing it. He put handcuffs on Tom and sat him in the police car. Meanwhile, the other officer was questioning the Israelis. Finally, the two officers conferred and decided to figure out who had been driving. They brought the Israeli woman over to the police car, in the middle of the night after a car accident, with Tom in handcuffs in the police car, and said "Is that the driver?"
"Yes."
So Tom was arrested and charged. Fortunately, his union had pre-paid legal coverage. Stewart had gone to court with him, and the assistant district attorney made the usual offer, plead guilty to "impaired" which is not as serious as "intoxicated", with a small fine and a small record. Stewart wanted him to plead. He wasn't going to. After three court appearances, Stewart gave me the case, and strongly suggested I find a way convince Tom to plead to SOMETHING. Herein lies the basic business problem with pre-paid legal. If Tom were a private client, you could point out how much more it would cost to take a case to trial, and the risks versus the gain, and how it wouldn't be worth it, and he'd probably plead. Or, he'd pay an appropriate fee, you'd work hard for the money and give it your best shot. Tom didn't have to pay, he just wanted the charges dismissed by the DA or he wanted a trial. Stewart had a dilemma.
I did not have the same dilemma, since I had to go to court for Stewart once a week anyway. I liked going to court on this case. It was far better than Family Court and some of Stewart's other legal garden spots. I went to Brooklyn Criminal court a few times, meeting with assistant district attorneys and their supervisors, trying to get them to drop the case. They wouldn't, they wanted Tom to plead to something, anything, even a traffic violation. Tom wouldn't plead to anything. Actually, if Stewart would have let me, we could have filed a written motion to obtain a hearing on the way Tom was identified. This would have been very time consuming, and would have prevented me from working on anything else. A private client would have to pay $3500 for this work, and Stewart wasn't going to have me do $3500 worth of work on one case.
Twelve court appearances and one year after the arrest, the case had to go to trial. During a pre-trial conference with the Judge, the DA made no secret of his disgust at our not taking a plea. I asked him if he knew what a pre-paid legal plan was.
A defendant has a right to a jury trial, but as a lawyer you don't always want one. You can opt for a trial with a Judge deciding the facts and the law. This is called a "bench trial". Strategically, I thought this was a good case for a bench trial, and besides, Stewart would have killed me if I took the time for a jury trial.
At the bench trial, the police officer testified that he arrived on the scene after an accident. He testified about how he had determined that Tom was the driver. On cross-examination he admitted he hadn't seen Tom driving, Tom was outside the car when the officer arrived, and that Tom was in the police car with cuffs on when the Israeli woman identified him.
The police testimony was not enough to make out a case, and I knew the DA would call the Israeli woman as a witness. During her testimony I figured out why the DA had adjourned the case so many times previously. During the past year his "star witness" had become a mother for the first time, had traveled back and forth to Israel several times, and didn't seem too happy to be in court.
The DA worked hard to get her to talk about the accident and Tom Johnson, but she was not very convincing. One exchange on cross-examination decided the case:
Me: "Do you recognize the man sitting at the defense table as the driver that night?"
The witness: "I don't know."
I was going to ask more questions, but the Judge's face and body language told me it wasn't necessary. After the DA said "The People rest", all I had to do was stand up and make an oral motion to dismiss the case, and the Judge dismissed it.
Stewart may have lost money on this one, but Tom got his money's worth.

Bad is Bad

2007-02-18T12:51:00.000-08:00

No matter what anyone says, there is plenty of law business out there. The real question, the one that separates the successes from the strugglers, is knowing and getting GOOD business. Oh, and staying away from BAD business. That’s all a law practice is, really. Hearing a person’s story, and making a business decision on whether they and their story are profitable business.
Here’s a list of the reasons bad business is so bad:
1. All time spent on bad business takes away from two things: good business and personal time. You can make up for bad business with good business, but only if you expand into personal time. Very unhealthy.
2. It saps your energy. Squeaky wheels get your grease, and that is the essence of bad business. Squeaking clients, making a noise you can’t escape and have to attend to. So you grease it, and talk to it, and e-mail and fax it. Still, it squeaks. You grease it enough, it starts to move along, nice and quiet. Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason.
3. You lose money. Putting aside clients who get quiet, and then slink away without paying, that’s bad enough. All that squeaking, all that time, your time, and in the end you made $10 an hour. It happens, and if you don’t pay attention, it happens a lot.
4. Bad karma. When you are a solo lawyer, your clients and their cases are your life. When you have a lot of cases, you always have a certain “mix”. I first realized this one afternoon at 4 o’clock, while talking to one of my lawyer friends, another solo. It was a typical “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today?”, and without hesitating I answered “Bad mix right now”. He knew just what I meant and said, “Yeah, that’s a bad thing” Since then, we always start our afternoon calls with “How’s the mix?”
5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, you know where this leads.

I have blogged previously about general practice vs. specializing. We are all bound to dabble in certain areas of law. Once you do more than a few of something, either really do it, or STOP. Here is my short list of bad kinds of cases, and the reasons they are bad:
a. Real estate closings: fixed fees with no control over your time; clients who are generally not business people, suddenly under pressure and needing you. (see previous blogs entitled "Perils of Real Estate)
b. Accident cases with minor injuries: You end up working your tail off for years, spending your own money, and the insurance company fights you every step of the way. Now, it is true that every so often you hit a home run with an accident case. But sometimes there are no home runs in the mix, just some very squeaky wheels.
c. Landlord-tenant cases: Unless you do a lot of them, so it would make sense to hang around in Housing Court all day. Hanging around in Housing Court all day on one case, is bad business.
d. Debt collection cases: a percentage of nothing is nothing. Never forget this. Yeah, you can collect once in awhile, but on all the ones where you get nothing, you never get back your time.
e. Purchase and sale of a small business: Unless you are really tough, and a super smart businessman, and ruthless, and heartless. As a young attorney, you find out right away, that compared to other small business owners, you are a wimp. A nothing. You may be able to do the papers for the deal, but you don’t even know what the deals are really about. I’m not talking about corporate mergers here. I’m talking about representing someone buying a coffee shop. If you really knew the coffee shop biz, and all the details of what went on, maybe you could effectively represent someone buying or selling a coffee shop. The problem is, if you knew that, you’d be IN the business, not “doing the papers”.

It is really easy to market for, and get, bad business. Place an ad in the yellow pages, pay to be on lawyer internet sites, do speaking engagements in the community, join organizations. These things all work, you will get business, lots and lots of bad business.
Of course, if you get enough bad business, bad becomes good, you become the specialist, and you are the bad business go-to person.
Bottom line: bad is bad, bad can become good, if you don't know bad when you are in it, bad is VERY bad. If you can figure out what good is, skip all this bad stuff, and go for good from the git-go. Get me?

TAP

2007-02-15T17:26:00.000-08:00

I learned a lot about TAP (Trial Assignment Part) when I first started doing my per-diem business. At that time, Justice Alfred Lerner presided in the Queens TAP part. When I started getting assignments to appear in the TAP, other lawyers warned me about Judge Lerner. The sentiment in the courthouse was "He's not going to like what you're doing, covering all these cases for other people and asking for adjournments".
The reality for me was, at first, he didn't seem so bad. Even better, the reality that counted was that virtually every lawyer in the City thought he was tough, and they didn't want to appear before him. From my perspective, he seemed dedicated and hard working, and singularly focused: he wanted to move the calendar and settle the cases. It was inevitable we would clash, since as my business grew, lawyers were constantly calling me to "get one more adjournment in TAP". I tried, but then it started to happen, Queens per-diem justice courtesy of his honor. A few examples: making me come to court all day every day for six weeks waiting to pick a jury, and then assigning me to pick on two cases at once; making me pick a jury immediately, in his courtroom, in front of all the other lawyers; or assigning the same hostile trial Judge every time, after we refused his settlement recommendations.
He did these things to everybody. The technique I actually admired most, was how he solved problems with trial ready cases. First, he insisted on hearing in detail what the case was about and what the settlement positions were. After this, he would hear about who wasn't ready, or who had a problem with a witness or some evidence, or some other motion that needed to be decided. At that point, he would dispense hints about his potential rulings, based on where the settlement discussions were. He tried not to commit, but made the lawyers make painful concessions. If one stood up to this pressure, he would surely be losing on the rulings in question. Of course, these techniques did tend to make the cases settle, or as we say in court, the cases were "disposed" or "folded" or "went away". Having the Judge's techniques used on me, as I covered for others, was bad for business and bad for healthy living. I decided on a radical plan and told a few of the courthouse regulars of my intentions. I decided to figure out Judge Lerner’s motivations, then make an appointment and tell him about my per diem business. I would be honest, ask him what he would permit me to do and not do, and if he could not bless it, ask him at least not to destroy it.

I made an appointment and met with him in chambers one afternoon. I told him I respected what he was doing with the calendar, and that I had started this per diem business that led to a lot of lawyers asking me to appear in his part, that I wanted to be able to effectively appear, but I understood that he wanted the part run a certain way....a way that maximized resolving cases. I also made clear that I did not expect special treatment, nor would I permit any perception that I was getting special treatment.

He thought about it and said, "I have no problem with you or anyone else appearing in my part, and making a living. I don't think much of some of the firms that ask you to do their dirty work, or for lawyers who are lazy or disrespectful to the court. When you appear in my part, know the case and be prepared to talk about it and settle it. Have someone you can call for more authority when we negotiate. If the case has a problem, be up front about it. Sometimes, if there are lawyers you should not appear for, or requests you should not make, you will have to know these situations, and turn down THAT work. In the end, that will help you, wherever you appear."

What he told me is what I adopted as the way to appear in a TAP part. In Judge Lerner's part I had a standard operating procedure. When the lawyers would come in and sit down with him, I made sure I was the one who answered his first question "What is this case about?". I did it directly and with just the right amount of detail. I then summed up the settlement positions as I understood them, BEFORE he asked. This got the action going quickly, brought any problems to the fore, and got me in and out of there quickly. The WORST thing another lawyer could do was go in there, and talk about the case like he was the Tin Man talking to the wizard...."Well you see, we were walking down the yellow brick road, when....". whereupon Judge Lerner would bellow "SILENCE!!!!!" Then he would ask ME what the case was about. If you do per diem work, and appear in TAP parts, I advise the following:

1. If your instructions are "please adjourn", call and get better instructions. 2. Have someone to call from court if necessary. I make firms give me someone's cell phone. Otherwise, invariably when you are in trouble and call, "all the lawyers are in court". If the staff says that, ask them to get someone on a cell phone. 3. Protect your reputation in the TAP part. Be candid about what you do, show that you are prepared, and if you get caught short....apologize. 4. Maintain a good relationship with the clerks and court attorneys. 5. If there is a TAP appearance you know you should not make....turn it down.

Judge Lerner had it right

Bad is Good

2007-02-13T18:13:00.000-08:00

Bad is good. That's the philosophy behind the main part of my law practice. One might call it a "niche" practice. I don't feel so lofty about it, so I call it what it is, "Queens Court Appearances". It works because of a basic business truth: Success can be as simple as finding and filling a demand in the marketplace. Put another way, making court appearances in Queens is so bad that lawyers pay me to do it for them. www.wecoverqueens.com

Essentially, I make court appearances for other lawyers on any kind of civil case in Queens County. "Civil" is a word to distinguish these cases from "criminal", another beast altogether. There is not much civil about them, just an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.

There are so many cases that it takes many months to get a trial date once you are "on the calendar". However, before a case can even go on the calendar, all "discovery" must be completed. Discovery means each party learns about their opponents case, through depositions, physical exams, expert reports, and many other techniques, all designed to keep discovery fair. Of course, someone in the sandbox is always yelling "no fair". The legal way to yell "no fair" is to "make a motion" (yelling on papers) or "demand a conference" (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences. There are so many motions and conferences that each Judge (there are 20 such Judges just in Queens County) has a "motion day" and "preliminary conference day". A typical motion day calls for 50-75 motions, all scheduled at the same time. All these matters, great and small, require lawyers to appear in court. All this yelling may be legally necessary, but for plaintiffs lawyers especially, it's bad business. All the plaintiffs lawyers are on a contingency fee: they get paid a percentage of any settlement, later........ at the end. They want to spend as little time as possible now........ in the beginning. Civil defense lawyers get paid by insurance companies, by the hour. They love to yell, its good business.

And these are only the preliminaries! Many months and many appearances later, all this legal jousting ends and the case goes on the calendar, heading towards its eventual end, the cholesterol of the court system, a civil jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep getting paid.

There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a "TAP part". It sounds cool....."Meet me in TAP. Who's sitting in TAP. Can I get an adjournment in TAP? Tap me if I fall asleep in TAP."

The TAP Judge's job is to handle the onslaught of trial ready cases in the TAP part. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. Even in the "Queens Court Appearances" business, it's a different kind of business......

Who is my client?

2007-02-11T12:46:00.000-08:00

Here's a paradox.......

"An attorney's ethics are inversely proportional to the number of ethical issues he encounters".

This is because the most ethically aware attorneys will SEE the issues as they arise, while the ethically challenged will be unaware of the problems they are about to encounter. I wonder how many law students have taken an ethics course, or ethics exam, and thought, "This is all academic; these things don't actually happen." Well, it's true in one way.....real practice is WAY stranger, and much more ethically challenging, than any law school exam. If your practice is presenting you with ethical questions to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.

Here's a recurring ethical question.......WHO IS MY CLIENT?

This arises in many contexts, but is especially prevalent in elder law, estate planning, and estate administration. Here are a few examples:

1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.

2. An adult calls you and inquires about your fees because "Mom wants to sell her house".

3. An adult calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the person who called you cannot be trusted with money.

4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.

5. Same sceario as #4, except when you meet the parent a second time, they seem to have deteriorated mentally....Upon telling this to the two children, the first one tells you that this is how it has been going, and the second one tells you that the other child has not been giving the parent their medication.

6. You start an Administration proceeding, and then find out that the Petitioner can't be bonded (as the court required) because they have some credit problems. You call one of the other adult children, ask if they could serve as Administrator, and they proceed to tell you a litany of financial improprieties committed against the decedent by your original Petitioner.

7. You are contacted by the child of a person who died six years ago. There is no will. The person who contacted you lives in the house owned by the decedent, and has lived there his whole life. There are three other children who do not lived there, and have not taken any action, until recently. The person who contacted you wants to be the Administrator.

All these scenarios are real. In fact, they are situations I have encountered in the past year alone! These situations have one thing in common. One cannot proceed until determining "who is my client?" and reconciling that with the appropriate ethical questions. Very often one can proceed but must (or should) obtain waivers from parties who could later critisize the conflict. Other times we may be able to proceed, but prudence will dictate documenting what we are doing and why.

Something I always do if a parent and child are in my office, and I sense a "Who is my client" situation.......I tell them that at some point I MUST meet with the parent alone, and I mean ALONE, and that I am doing this for their benefit. When I meet with the parent alone, I make very clear that I am THEIR attorney, that we have attorney client privilege, that I will not do anything they don't want, that they can call me on their own if they wish, etc....and, I DOCUMENT MY FILE that I have had this meeting. In some cases, I will ask an associate to sit in on the meeting, and make notes as well. It is THAT important.

Sometimes it takes some work to untangle these initial ethical issues, and sometimes clients think you are working on a side issue and causing there to be extra fees. Don't succumb to the temptation to ignore the issues. Another paradox here....."the person who doesn't want you to spend time resolving the ethical issue, is the one who really needs you to resolve it" In estate planning matters, don't be afraid to ask yourself "How is this going to look later?", and don't be afraid to ask that person (client?) across the desk "How is this going to look later?". I like being able to do right, and have it LOOK right, and have a result that will stand.

19 Quick Business Tips and Ideas

2007-01-30T18:02:00.000-08:00

Here is a quick list of tips and ideas that can help a practice. I will not elaborate in this post, I'm just going to list them and post further on some of these later. Most of these are pretty self-explanatory, and hopefully will inspire some action.....

1. Let other lawyers know you are available in "conflict of interest" situations.
2. If you want to see how other lawyers market, do some web-surfing and look at lawyer sites, especially your "competitors".
3. Make sure your office staff and family members know what kind of cases you would like to have referred.
4. Open a "case file" for marketing.
5. Spruce up your printed material, consider specialized roladex cards (I did really well with this one).
6. Pay special attention to "ethnic community leaders".
7. Answer classified ads in the law journal for special situations.
8. Establish a relationship with an older lawyer thinking about retirement.
9. Get rid of bad situations fast and effectively.
10.Find out how to get court appointments on Civil matters.
11. Have a budget for marketing, and spend the time to spend the money effectively.
12. Consider a direct mail campaign to other attorneys.
13. Consider taking payment by credit card. Its VERY easy to do.
14. Refine your intake procedures.
15. Thank your referral sources appropriately.
16. Think about how you answer THE question "What do you do?"
17. Return calls the same day. Consider telephone appointments.
18. Refer business to other professionals and businesses.
19. Pursue interests you enjoy, having nothing to do with law. Not only is this crucial for mental health and happiness, but you get more quality business from this than all the others combined. Hard to fathom, but TRUE.

Law Story

2007-01-30T17:33:00.000-08:00

This should probably be read AFTER the previous post "How I Went Directly Into Solo Law Practice...." http://nylaw2law.blogspot.com/search/label/Directly%20Into%20Solo%20Practice since this piece makes reference to people and ideas from the previous post. In any event, hopefully this true story can also stand on its own. The events below happened when I was a 25 year old attorney, practising on my own for six months. As previously, this is a true story, only the names have been changed....

LAW STORY

Mark and Sheryl Stern called about a tenant problem. They owned a 10 unit building on West 18th Street and lived in one of the apartments themselves. They were in a printing business together, worked long hours, and managed the building themselves. If the building were a candy store, it would feel nice to call it a Mom & Pop store. A Mom & Pop apartment building doesn't feel as nice.

One of their tenants, Tommy Bazillo, had a rent-stabilized lease but had been legally subletting the apartment for the past two years. As far as the Stern's knew, he was gone. The subtenant had asked for a lease, but they refused to give her one, and they were legally correct, they did not have to. They wanted to raise the rent and rent the apartment to a doctor friend, Jerry Marks. Two days before the end of his written lease, Tommy Bazillo knocked on Mark and Sheryl's door and said "I'm back in the apartment, under the law you have to keep giving me renewal leases, and I want that, unless you want to make it worth my while to leave".

Sheryl told Tommy he had given up his rights by vanishing for so long. Mark then escorted him to the street. He then went to the apartment, made a list of the very sparse items inside, placed the items in the basement for safe-keeping, and changed the lock. Two weeks went by, the Sterns heard nothing from Tommy, so they rented the apartment to Dr. Marks. He promptly commenced $30,000 worth of renovations.

The Sterns were then served with legal papers from Tommy's lawyers, for a date in Housing Court. Mark also got papers for Criminal Court, charging illegal eviction, a misdemeanor. The Sterns then did what any experienced landlord would do, they got out the yellow pages and called ME. Not wanting to show a big landlord the renovations in my office, I offered to visit them at home, for which they were most appreciative. After hearing the facts, I told them it seemed like the tenant was trying to shake them down for some small settlement, and the Housing court realities indicated that they should consider a small offer, considering the number of court appearances it might take, with their busy schedules and all, and the legal fees it might run into, and kicking and screaming they authorized me to appear in court on their behalf and offer the tenant as high as $1000.

Not to get technical, but Tommy's lawyer had gotten a court order called an Order to Show Cause, essentially the Stern's had to show the court why Tommy shouldn't be put back into possession or awarded money. On the Court date I put my Housing Court training into use and requested a conference, certain it would result in a stip, if not now, on a future date. Tommy's lawyer was willing to talk. She was also disconcerting, a short woman with glasses, serious and studious looking, strictly business. We marked the case for a conference and went out into the crowded hall. "Can you put my client back into possession?" she asked. "No", I answered, thinking about the doctors renovations.

She answered, "OK, $75,000 then."

I then did my best Gary Coleman and said "What you talkin' about"?

She replied "Look, you seem like a nice guy, but our firm specializes in illegal eviction cases, the laws have recently changed, and this case is a sure winner. Why don't we adjourn this a week and you can look up the things I'm telling you about." I took a breath and said "Even if this is technically a wrongful eviction, how can you possibly be making a claim for $75,000?".

She shot back "Rent stabilized apartment in the West Village where he has automatic renewal rights. He pays $650 now, market is $1500, take the difference for the rest of his life expectancy, he's now 24 years old. Also, the new law provides for treble damages and attorneys fees." Uh-oh.

So we adjourned for a week, and I went to the library. The laws had changed six months earlier, and this was not a nuisance case, but serious stuff. I went to visit the Sterns, who were not happy. If they weren't so furious at Tommy, and so sure he had set them up, I knew it was a matter of time until some anger was directed at me. I concealed nervousness and embarrassment at this turn of events, while my mind raced. Suddenly, an idea, "Let me see your insurance on this building?" Until that moment it hadn't occurred to me, but I had read something in the Law Journal about insurance coverage for unusual claims. The Sterns insurance policy had something in it about wrongful eviction suits, written in obscure language, but there it was. Further study convinced me they had insurance for this case, so I sent all the paperwork over to the insurance company, with a cover letter demanding that they take over defense of this case. Two days later I received a telegram (in the pre-historic era when faxes were not invented) from the insurance company disclaiming coverage. They were wrong, but that's one reason we have courts.

I wasn't sure what to do next so I called Fred. He said I'd have to bring a
"D.J. action".

"A what?"

"A new lawsuit in Supreme Court for Declaratory Judgment (DJ) asking the Supreme Court to order the insurance company to do what they were supposed to do."

"Oh". "Got any forms I can use?"

He had something very basic that he'd used in an accident case once. Not exactly on point, but a start. This was going to take some work, and some time.

I showed up in Housing Court and told Tommy's lawyer "Listen, we have insurance, but the company disclaimed and I have to file a DJ action, so you should give me an adjournment so I can do the DJ. I can't talk settlement with you because it would blow my DJ action. How long can you give me??" I held my breath and waited for her to tell me how stupid I was. But, she knew exactly what I was talking about and gave me two weeks. Two weeks turned out not to be enough so we actually started a trial. Fortunately Dr. Marks showed up in Court, without a lawyer, and told the Judge he was the occupant of the apartment, was never served with papers, but came into court because he heard someone was trying to get his apartment. The Judge must have been mad at Tommy's lawyers for not giving me a longer adjournment, because he held a hearing to see if Dr. Marks was a proper party (he was) and whether the lawsuit papers were properly served on him (they weren’t) so in the middle of the trial he declared a mis-trial. Fred said he never heard of a mis-trial in Housing Court, but who cared, I now had some time. Tommy's lawyers would have to start their case over, and of course they did.

Somehow I filed the DJ papers in Supreme Court, basically an Order to Show Cause where the insurance company would have to show why they didn't have to defend this case. I waited for their opposing papers, they never came. On the court date I was sure they'd ask for more time to oppose me, but they didn't show up and my papers were submitted to the court without opposition. Now I was really nervous. I called the insurance company and asked "Are my papers so weak that you don't think the court will order you to defend and insure?"

"Not at all". came the reply. "We know you are right, there IS coverage. We just don't think there is any damages exposure so we'll let it run its course."

"Excuse me, but are you aware of the new law? And treble damages? And rent stabilization versus market rents? Read my papers, your policy says you have to cover for damages the landlord is LEGALLY RESPONSIBLE for, and I think you have a lot of exposure here!"

"Hold on". After 15 minutes he came back on. "When is the next Housing Court date?"

"Day after tomorrow. 111 Centre Street, 9:30, Judge Bramsen."

"We'll have a money man there". Click.

Bottom line, they sent a representative to Housing Court and we negotiated a settlement where the insurance company paid Tommy and his lawyers $22,500 and the Sterns were off the hook. Tommy never showed up in Criminal Court so the Criminal charges were dismissed. There was one small detail remaining. Insurance companies are not only supposed to insure you, the coverage includes paying for your defense. They usually hire their own lawyers, but I had clearly done their work. They told me to prepare an hourly statement showing what I had done. Not having kept time sheets as I went, I had to reconstruct, and probably lost some hours. It still came out to 84 hours of work, and since we hadn't agreed on an hourly, I decided on $75 per hour, which was below market even then. This came out to $6300. They received my statement and called, saying "We all looked bad on this one, the bill is high, can we talk about it?"

"The bill is right and fair."

"We think some of the hours you charged us for are prior to when you notified us."

"How many hours is that?"

"Hmm, about four."

"What do you want to do then?"

"Cut the bill down to $6000 even".

I thought about this for about 10 seconds, and said, "I'll agree, on one condition.......have the check ready so I can come pick it up right now".

"OK".

And that was that. So much for the first of many law stories. I no longer do landlord tenant cases. The Sterns have been clients on many other matters up through the present. I love learning new things, and believe all lawyers learn something new on every case. Of course, the reality of law practice is there’s no time to bask in the glory. It’s always “on to the next case”.

How I Went Directly Into Solo Law Practice.....

2007-01-28T12:51:00.000-08:00

In 1981, I was in my third and final year of law school. I suspect most law students envision themselves actual attorneys only in the abstract, if they think about it at all. Not me, my picture was vivid. I would be a country lawyer in the City, sitting back at my desk, calm and cerebral, taking in all the facts and solving real problems for real people. Practicality for fun and profit.

Fellow students didn't talk about practicing law, only about getting into a firm and making partner. I listened intently and spoke little. The first inkling of a problem came during my second year at the University of Texas Law School. Park Avenue and Wall Street firms recruited on campus. I interviewed with 20 firms, each time it was like a bad blind date. I wondered if they hated me as much as I hated them. Easy question to answer, I never got a call back.

During my second year, I took a part time job at Montague & Smith (* all names are fictitious, all stories are true), a small Austin law firm. My first day on the job, my first assignment: Mrs. Peterson was a 50 year old woman with cerebral palsy who my boss, Joe Montague, had represented on her two divorces. He told me this client was physically handicapped but mentally functional, she was a decent client who paid her fees, so he wanted me to solve her present problem, some kind of insurance question. He wasn't sure exactly what it was because he couldn't understand her over the phone. He said to drive over to her house, straighten it out, and keep track of my time so the firm could bill her. I loved it, a mission.

Mrs. Peterson spoke loud and slurred. We walked slowly to her dinette table and she showed me stacks of papers. The whole situation was a mess....two years of Blue Cross claims unsubmitted, rejected, and neglected. Claim letters and lawsuits from doctors. No recollections, wrong recollections, misinformations. This was not a case that required any research, just plain talk, patience and persistence. I was in my element. I was a big hero at Montague & Smith when that situation got resolved, mostly because I saved anyone else from having to deal with it. They were paying me $10 per hour, and billed $100 per hour for my time. In my book, they were the greatest.

Still thinking I wanted Park Avenue, I left Texas after two years to attend Fordham Law for my third and final year. I got another part-time job with a solo practitioner named Fred Shulman. He handled mostly accident cases, plus other wacky stuff. My first assignment there, and representative of the flavor of the place: Fred's client owned a bar which was a known drug dealing location. It was about to be closed down by the Liquor Authority. The liquor license was almost suspended, and Fred had brought a proceeding to stop the suspension while the case was being reviewed. My assignment was to review the records and write something to convince the liquor authority to let him keep his license. The problem was, undercover agents had recorded many conversations of people asking the owner where they could find "Joe with the good blow", and the owner had consistently directed them to his back office. I asked Fred how we could possibly overcome this, and he said we couldn't but we had been paid to buy some time to keep them open through Christmas season. Working on a case you are supposed to lose is very relaxing. I loved working for Fred. Park Avenue firms started to lose their appeal.

Meanwhile, I was still in law school. More awkward interviews. This time I did get two call backs, one from a firm who defended accountants in malpractice cases, the other from a firm doing surety law. To this day I don't know what surety law is. Tight job market then too, no jobs at the District Attorneys office or even at legal aid. No jobs, but no panic, just an idea gnawing at me. I WANT TO OPEN MY OWN LAW OFFICE. Fact is, I had no money, no contacts, no clients, and no clue how to do this. So I sat down with the Placement Director at Fordham, "It is an unusual idea.", she said, then added "Statistically only about 3% of graduates nationally do that, and I've never heard of anyone in New York." She looked down, sorry that she had disappointed me. But she hadn't. I stood up, hesitated, and said too fast and too loud, "You mean, people actually do it? 3%? Are you sure?" She replied, "I don't know, I mean I never, I'm sorry, but wait a minute" She fumbled around in her desk while she spoke "I heard about a book.....I don't have it....I haven't read it....but I saw an ad......here it is, it's by a guy named Singer, take a look at this, you could probably get it at Barnes & Noble".

There it was, an ad for "HOW TO GO DIRECTLY INTO SOLO LAW PRACTICE, WITHOUT MISSING A MEAL", by Gerald Singer. 15 years later the trip to Barnes & Noble is a trail of smoke and dust. I flew out of her office, off on another mission. Found the book in the back of Barnes & Noble, a bright blue cover amidst the real law books. To buy or not was not a question. I started flipping through, thinking "I can't believe somebody wrote this book and I found it!" "Geez don't read it all right here. Read it on the way home."

I got a seat at 14th Street in the City and dove into the book. The F train is an express in Queens and it flies. Queens Plaza, then Roosevelt Avenue where I'm supposed to change for the local. When I looked up I was in Jamaica, five express stops past Roosevelt, heart pounding. This could actually work! This guy figured out how to go right into practice in Los Angeles. His plan was brilliant, but it would work even better in New York. I KNEW it.

Although my law office officially opened a year later, the day I was admitted to practice, I wanted to get started. That day I started a subscription to the New York Law Journal. This is a daily newspaper for New York lawyers. Besides articles about law, it also has a huge classified section, filled with ads for jobs, part-time jobs, offices, situations wanted, business opportunities, seminars, and court calendars. I started reading the Law Journal every day, still do. It keeps you in shape for daily practice. It should be read carefully and with feeling, like its the most important thing you can do for yourself. The law journal is the business transformer for entrepreneurial lawyers, you just have to plug in.

I hooked up with the Law Journal and set in motion the strategies of "How to Go Directly into practice....". In a nutshell, the idea is to find a time for space arrangement for an office, including referrals of legal work and cases. Next, introduce yourself to other lawyers in the same suite and in the building and get legal assignments and referrals. If that didn't get you busy, knock on doors in the rest of the building. Then, send announcements to every person and entity you've known in your whole life. Add in your own creativity and don't look back. You could also get on some referral panels, do a little advertising (if you have any specialized knowledge), and otherwise think like a businessperson with a valuable product to sell.

The next call after the law journal was to Fred. I told him my plans and asked if he'd let me work part-time once I was a lawyer. Money was secondary, I knew I'd need him for advice when real clients and cases came in. He was on board from the start. I used to call him all the time. Some of my best days now, 24 years later, are when he calls me with a question. I'd drop anything to take a question from Fred.

Still in school, I saw an ad in the Law Journal for a company called "Educated & Dedicated". I don't remember their exact ad, but it was basically "our clients need a messenger who can figure out what to do when they get there". The description was accurate. One of their clients was a company called "Federal Document Retrieval", who sent me to copy files at various places in New York, mostly the Federal Courts. Their clients were big law firms all over the country. I even made a few runs to the Federal Archives in Bayonne, New Jersey. "E&D" always wanted me to call them directly, never their clients, but one day I was stuck in Bayonne and couldn't find what their client wanted. Nobody at "E&D" knew what to do, so I called Suzanne at Federal Document Retrieval directly. We got the info straight, and she started asking me about myself, and I briefly told her my life story. She asked me to talk to her boss Doug, the owner. He got on the phone, had me re-tell my story and then asked "How would you like to be our exclusive agent in New York?".......and from then on I was.

I passed the bar exam on the first shot, and accomplished every law students dream, making partner in one day. Now the firm needed an office, and furniture, and telephones, and other trivial details like paying clients. My first office was located through an ad in the Law Journal, time for space with an attorney named Richard Herman at 299 Broadway. This was the deal: I paid $100 per month for a space which was actually the reception area for an insurance broker. I used to point inside to the brokers office and mention that my office was under construction "in there". My space included a desk, chair, file cabinet, and use of the library, copy machine and refrigerator, down the hall in Richard’s suite. Putting my sandwich and juice in that refrigerator was a big perk. Richard's 6 office law suite was down the hall, each office occupied by a different solo practitioner. Richard also had many "cases in progress" to refer, and the deal was 50/50. I soon found out that "cases in progress" meant cases he had signed up at various points in history and done nothing about. Those were the good ones. The bad ones were the ones he had worked on and made worse. I had a pretty good idea which cases to work on first, the ones with a chance to generate some money before too long. Also ones I had some idea how to do. Actually, some of these matters needed a phone call or two to resolve them. Like a five year old car accident case with no injuries, just a property damage claim. I think the client had forgotten about it and was thrilled when I called with news of his $1200 settlement, 1/3 to the lawyers was $400, which should have been $200 to me. But it was a little less because Richard took back his $35 in disbursements which I felt funny taking from the client. First lesson in high finance, never underestimate small-mindedness. Richard had been in practice 40 years, probably had more money than anyone could need, but made toast in his office toaster oven, adding jelly from an unmarked jar. One day I discovered his secret jelly source, spotted him scooping little packets of diner jelly into his private stock.

Most of Richard's cases were salvageable, and despite his idiosyncrasies he did help me build a client base. His referrals became very loyal to me, he never missed them and I never felt badly about it. I also had some other business building ideas. I sent out over 500 announcements to a list of friends, acquaintances, relatives, and people my mother suggested. You'd be surprised at how willing people are to hire a lawyer with no experience. Based on years as a clientologist, I now understand the psychology of this seeming folly:
people want a lawyer who has time to give their case attention, and who is affordable (a skeptic would say "cheap"). I had some decent work within a few months, directly from these announcements. Some collection cases from my friends Dad, a "deathbed will" for my cousins friend (which soon turned into an estate), an uncontested divorce referred by my family doctor.
Every one of Richard's suite mates had work for me. Some outright referrals, but court appearances on civil cases mostly. Never having been to court before, this was on the job training. One of them sent me to Housing Court. What a place! Hundreds of angry people doing the same mad dance hour after hour, every single day. Those are the lawyers and Judges. The clients, both landlords and tenants, don't dance much. They scream, at each other and at their lawyers. In Housing Court I first noticed something about the court system, and it applies to most types of courts, when there are more cases than any courthouse could possibly resolve, something must be done to finish all the cases. That something is providing both sides with an incentive to settle. In Housing Court every case gets conferenced and both sides are given options they don't like. If both sides agree to be unhappy, but sign an agreement nevertheless, you have a stipulation of settlement (called a "stip") and the court is happy. One of the things court personnel are always yelling is "Any stips? Why don't you just stip? C'mon, stip and you can get outta here!" If one side or the other doesn't want to stip, something bad is likely to happen. For a landlord, his case will be adjourned week after week while his tenant lives rent-free, and when the case finally comes up for trial his papers will be technically defective and his case dismissed. "And if you don't like it appeal, and off the record, you shoulda stipped to giving the tenant three months free in exchange for his leaving." Tenants get hammered too. If they don't stip as suggested they can get an immediate trial, and lose.

There seemed to be two kinds of lawyers in Housing Court, ones who didn't seem like "regulars" and were either screaming at their clients, screaming on the phone, or doing a stumble-mumble combo. The "regulars" seemed to float above, gliding from room to room, getting their stips working in the morning like short order cooks, and winning trials all afternoon against the irregulars.

I thought the Housing Court scene had some potential, primarily because I couldn't imagine experienced lawyers going there by choice, though it would be a good thing to boost my practice. I did a few things to get in the game. I asked all the lawyers in the suite specifically for Housing Court appearances and referrals, and took a continuing ed seminar on Landlord Tenant law. I also put an ad in the Manhattan Yellow Pages. $6 per month special introductory offer for a listing under the specialty listing "Landlord-Tenant" under the general heading "Lawyers". Since it was Manhattan, I was pretty sure there would be competition, but I would available and ready, and for $6 a month ($72 for the first year) how could it lose? When the book came out there were only five lawyers listed there! I got some calls and some real cases, not overwhelming, but decent stuff. I was surprised that many of my calls were landlords. You might think that all landlords have lawyers "on retainer", which it turns out is rarely the case, or that landlords as "business-people" would not resort to the yellow pages to find a lawyer. You might be right generally, but one of the great things about New York is that even a small percentage of such a large group is still a lot of folks. One of my landlord yellow page calls turned into my first law story......http://nylaw2law.blogspot.com/search/label/Law%20Story

Summary Judgment Motion as a Discovery Tool

2007-01-23T16:05:00.000-08:00

Let me give credit where credit is due. Back in 1982 I started my own practice right out of school, essentially following the plan outlined in the book "How To Go Directly Into Solo Law Practice Without Missing A Meal", by Gerald Singer. I will talk about this in another blog entry, but besides all the practical business and marketing advice in that book, he also gave the practical tip of using summary judgment motions as a discovery tool.

Summary judgment motions are useful for a few reasons:

1. Sometimes you win them.

2. Sometimes you get hit with a cross-motion and you lose, but better now than later. Incidentally, if the case is such that bringing a motion might end up with a cross-motion and a loss, don't make the motion.

3. You force your opponent to "lay his cards on the table". When you are on the receiving end of a summary judgment motion, do you take it lightly and put in a minimal response? Of course not, you want to make sure you defeat it, usually by raising "questions of fact". This is done by coming forth with Affidavits from persons with knowledge of the case, and documentary evidence. These are the exact things you get at a deposition or through written discovery demands. A sworn Affidavit from your adversary "locks him in" to a position, and can be used at trial for impeachment. Your opponent is no different than you....he will come forward with as detailed a response as he can. By making the motion, you bring forth his proof.

4. If you make the summary judgment and are not successful, because there are "questions of fact requiring a trial", your case is still alive and you are way ahead of the game. You have gotten "free" discovery and flushed out their position. You didn't have to pay a court reporter either.

5. Sometimes summary judgment motions get settlement discussions going. It forces the other side to address some serious attorneys fees, and it forces them to look at their evidence more carefully. Most Civil lawsuits are not actually that complicated, factually, its often a matter of the facts not really being exposed for both attorneys to look at. Once this happens, the case can often get into settlement mode.

6. Summary judgment motions force you to look at the legal bases for your claim. Of course you should have done this at the beginning, and your instincts at the beginning were probably right, but the research you do for your summary judgment motion also get you ready for the legal issues at trial, and for the proof you will need later.

I welcome comments from attorneys about this approach.

Depositions Part 2

2007-01-22T11:16:00.000-08:00

You CAN win a case taking your opponents deposition.

It won't be true in every case, but there are some cases where you can see it might happen, and you should have a strategy regarding how you are going to do it. Taking a deposition is all about "nailing down facts". I like to question a witness about something that I KNOW is in a document, before I question about the document. If I can elicit testimony about how a document was produced, and the witness' awareness of it, and its reliability, I go for it. When I then produce the document and ask for specific identifications and admissions, the witness cannot escape.

Sometimes a witness will make a stunning admission during a deposition. If you pick up on this, do not tip your hand, but DO have the witness confirm what he has said, and keep narrowing down the questions to make the admissions stronger. Don't let on to what you have, but KEEP GOING for more, as much as you can get.

If a witness is being evasive about an issue, do not accept this at face value, make a record that helps you if you need to make a motion to compel. Witnesses will often admit that a document or record exists "but its not here". Confirming that it exists, and where it might be, and what its all about, are all worth making a record.

As mindful as I am about leaving "openings" for my own witness, I really try to close all the openings for an adversary. If I think something happened a certain way, but there are possible other ways, and the witness will testify in a way that closes off the other possibilities (if only you ask).....ASK!!!!

I am almost never confrontational with opposing witnesses at a deposition. I try to be clear and calm and direct. I try never to let them fluster me, and I want to convey that I have all the time in the world, and that I will keep asking questions until they answer what I want to know. You would be surprised how often an initially belligerant witness will capitulate and start answering directly, if they know you are going to keep at it, and not embarrass them.

If you think the witness may not appear later and his transcript will be used, prepare your questions this way, so you have a useful transcript.

If you got almost everything you wanted and needed, and think you can win the case on a motion for summary judgment, go for it. A motion for summary judgment is an overlooked discovery tool. More on this tomorrow....

Jumping Out (fiction)

2007-01-20T07:31:00.000-08:00

JUMPING OUT
By Barry Seidel
(A Mike Sender story)

“We think your clients are jump ins.”
I had no idea what Jerry Pivinski was talking about. He’s one of the lawyers for Empire Bus Company, and he’d first said he was calling about my Walenda and Jonas cases. I knew them well. My two clients were Walter Walenda and Richard Jonas, passengers on a bus which had been in a nasty intersection collision with a Jeep. It was easily the best case in my office. Walenda’s case was especially good. A passenger, so no negligence on his part, and a badly broken leg with surgery, a really good injury. After 18 years in practice I’d just started referring to “good” injuries. Guess I was finally becoming a real negligence lawyer. The Jonas case wasn’t so good, soft tissue neck and back injuries, classic whiplash nonsense, a case I would not have ordinarily accepted. But since Jonas was a prior client, and more importantly, had brought me Walenda, I took his case too.
This was about three years ago. Now we were getting close to a trial date. We’d already had numerous depositions, with interminable questions about the accident and the injuries. I had also deposed both drivers, and sat there while the lawyers for six other injured parties deposed them. There had also been 12 motions made in this case. One of them was on Jonas’ case, a motion to dismiss based on the marginal nature of his injuries. I fought the motion hard, and barely beat it. Then there were the motions to consolidate, since there were eleven separate lawsuits. You’d think the lawyers could just agree to one trial, but no, some of the lawyers wanted the case heard in Brooklyn, some wanted the Bronx, so we all argued about it and the case ended up in Brooklyn. I would have preferred Queens, where my office is, but “convenience of Mike Sender” is not a basis for venue. All my Brooklyn trips would ultimately be worth it. My one third contingency fee on Walenda’s case was gonna be a nice one. We had already turned down an offer of $45,000, I thought the case would ultimately go for $150,000. Maybe more, if I had the nerve to try it to verdict. I really needed a big fee, just this once.
“What’s a jump in?”, I asked.
“You really don’t know?” Jerry said. “We get these all the time. It’s incredible.”
“You get what all the time?”
“Jump ins. You know, people see a big bus accident, and they jump in.” And he let loose a big belly laugh, which continued until evolving into a coughing fit.
While he coughed, I tried to compose myself. Could it be? But what should I say, stay cool, stay calm, find out what they have, don’t get dragged into trouble, stay cool, figure out what to do.
“You don’t think that I.....”, but he interrupted me.
“Mike, we know you a long time, and we don’t think you knew, but your two clients are some real pieces of work.”
“Now wait a minute,” I said, “Your telling me Walenda didn’t break his leg in this accident? How did he get there with a broken leg? He was picked up at the scene by an ambulance, wasn’t he?”
“Sure he was, that’s one of the best parts of this. He had broken his leg earlier in the day playing soccer. Your Mr. Jonas took him to Coney Island hospital. They set it and put him in a soft cast, gave him some demerol and told him to come back the next day for the surgeon to evaluate him. After he and Jonas left Coney Island, they saw this accident and jumped in, but I guess Walenda limped in.” More laughing and coughing, then Jerry continued, “Lemme tell you the best part, which is how we found out about it.”
“Tell me.”
“Couple of months ago one of the other plaintiffs was in here with his attorney for a settlement conference, and when he didn’t like our offer, he asked if we’d used up all our money paying the knucklehead who dragged his friend through the back door of the bus. Unbelievable, isn’t it?”
As much as Jerry jokes around, he’s a good attorney who’s been with the bus company a long time. He settles cases fairly, and if the bus company owes, they pay. If the cases have to go to trial, they go, and we live with the results.
I still needed more details, and Jerry told me everything. When the jump in question came to light, the company hired an outside investigator and really dug into it. They thought it was strange that Walenda could actually have a freshly broken leg. “Most jump ins have bullshit injuries, like Jonas.” Jerry said. The investigator confirmed that from the bus accident Walenda was taken to Brookdale Hospital by ambulance, and was x-rayed, admitted to the hospital and had surgery to set the bones properly. Jerry had asked the investigator to canvas local hospitals, looking for Walter Walenda with a tib-fib fracture that day or earlier. Sure enough, a little leg work around the ER’s had given them the basics, Walter Walenda, 11 AM, tib-fib fracture, Coney Island Hospital. With this info, they got a court order and subpoenaed the Coney Island records, and there was my client, with ER records showing a broken leg 6 hours before he was supposedly in my bus accident. And more, the investigator called one of the witnesses to the accident, who had been listed on the police report. He had previously told these same investigators what he had seen, that the bus had entered the intersection of Kings Highway and 28th with a yellow light, and the Jeep had gone through the red and blasted the bus. When asked about people entering the bus after the accident, the witness gave a detailed account of Jonas helping Walenda peel off his soft cast, and dragging him up into the bus as some of the other passengers were leaving. He remembered Jonas yelling that they were off duty EMS workers and they had to help the injured people. When asked why he hadn’t reported this before, the witness replied that nobody had asked.
“Jerry, I need to call you back”
“Sure Mike, I understand”.
My office in Queens has a sweeping view of Manhattan. I looked at the City skyline and tried to think it through. Jump ins. This is what I’m working for? I thought about the first case Jonas had, the one before this one. He was a passenger in a car which was tapped from behind. There happened to be two easy insurance companies, and he willingly went to the medical mill I sent him to. I got him a $7500 settlement in six months and he kept telling me what a great lawyer I was. Yeah right. Opportunistic little leach. When Jonas had later brought me Walenda, dealing with Jonas was offensive, but acceptable. Not only did Walenda have a great case, I liked him. He worked off the books in his Dad’s store at night and had taken a few college courses. A young guy who would eventually figure himself out. His injury had left him with a slight limp and a scar, but all in all, he had recovered well. He was quiet around me because his mouthpiece Jonas was always talking. But I had talked to Walenda alone, enough to get a read on him, and he was OK, I thought. Now I was only sure of one thing. These two schemers had duped ME.
I took a deep breath and let the full magnitude of this sleaziness work on me. I wanted to feel it, wanted to know THEM and everyone like them. What did they talk about when I wasn’t with them? Did they tell their friends about it? How did they feel lying at their depositions? How would they have felt doing it at trial? Was it any harder for Walenda? Would they have felt guilty if they had pulled it off? Not Jonas, no. Walenda? Maybe. Or maybe I just don’t know anything. Had I represented other jump ins or phonies? I had put myself in this position. Greed and good injuries, and this is what I get. Damn, I’m just trying to make a living out here.
I closed my eyes and meditated. Nothing fancy, just thinking about nothing until my mind was clear and I was able to think without anger.
I called Pivinski and asked him to fax me all his reports and documentation, the proof of my clients’ scam. Seventeen pages of evidence inched out of my fax machine. I read each page as it came out. I stacked them and set them aside, making a conscious effort to control myself. Barely succeeding.
I called Pivinski again. Had he told his co-defendants (the Jeep) what he had told me? No, but eventually he was going to have to. I asked if he could hold off a couple of days. He said “You know we have to withdraw our portion of the previous offer. You gonna try to settle with the Jeep? I think I would try, if I were you”, Jerry said. I replied that I didn’t know yet, but could he hold off a few days? He gave me two days.
Next, I called the lawyers for the Jeep. These are actually the in house lawyers for All Claim Insurance Company. Their clients are nameless, faceless numbers to them, since their client is really All Claim Insurance. Considering how close we were to a trial date, my call was not out of place. This was Steve Melton’s file. Steve and I have a long history. He was my adversary on one of my first trials, the Angel Zapata case. Angel’s foot had been run over while standing on a curb. He was a construction worker who would never be able to work again. Money would not have changed that, but this was a righteous case. Steve Melton represented the driver (for All Claim) and had half a million in coverage. Angel and I had turned down a $75,000 offer, rolled the dice and tried the case. Somehow, the jury came in with a verdict of $24,000, and it was as bad as losing. If Steve Melton felt like this was a win, he never acted like it. Angel never blamed me, but I blamed myself. Steve and I had talked about it many times in the aftermath, and he always said “Its just one of those things with juries, things like that happen sometimes.” It took a few years, but I eventually accepted it. We had settled and tried other cases in the meantime, and Angel Zapata was never mentioned, but he was always there.
Now we were talking about Walenda and Jonas. Steve told me what his file write-up showed, that there were two eyewitnesses stating his Jeep had run the light. They assessed the liability to be mostly against their client. They had $1 million in coverage, which I already knew. There had previously been a package offered to my clients of $45,000, with $37,500 offered by All Claim and $7500 offered by Empire Bus. Of the $45,000, $40,000 was for Walenda and $5000 for Jonas. I asked whether there was any further offer, if we could close it out today? Steve said, “What do you have in mind?” I said, “Look, here’s what I’ve got. Walenda has a shot to get a job with the bus company, but he’s afraid if the case goes forward, they’ll hold it against him. Could you put another $7500 on Walenda, bring us to a total of $45,000, and I’ll discontinue against Empire Bus. $45,000 is a good deal for you guys on an injury like this” He asked, “Will that close it?” I said “Yeah, it would.” He said, “Lets do it.”
Then, I called Jonas. “Can you and Walter come in so we can talk in person?”
“What’s up Mr. Mike?”
“I’ll tell you when you’re here. Can you come in today? 2 o’clock, my office?”
“We’ll be there.”

When they arrived I was smiling. As usual, Jonas was animated, Walenda was sullen. Both in their late 20's, Jonas about 5'7", Walenda about 6'2". Jonas with gray slacks and a tight black shirt, new shoes. Walenda in jeans, sneakers and a Knicks sweatshirt. I told Jonas he was looking well, and asked what he’d been up to lately. “Still doing my little projects, making deals, busy busy, ya know.”
“How ‘bout you, Walter?”
“Not much.” Looking down at the floor.
Jonas interrupted, “So, good news, Mr. Mike?”
“Well, we had a conference on the case, and the lawyer for the bus company told me some disturbing things, and we have to talk about them.”
“What kind of things?” Walter surprised me.
“Why don’t you tell me?”, I said.
Jonas stood up, “Listen man, what kind of shit is this? You’re our lawyer, don’t be playing games with us.” Walter was looking down.
“Walter, do you want to tell me?”
“No.”
So I dropped 2 extra copies of Pivinski’s papers on the desk. Jonas picked them up and started reading. Walter was still looking down. Jonas finished reading and looked at me.
I said, “Walter, I want to know about the soccer game and Coney Island Hospital.”
Nothing.
“I never even knew you played soccer, I bet you were a good player.”
“I want to know how it felt taking off the soft cast.”
“Were you going to pay Jonas a commission for coming up with this plan?”
“Shut up, man.” from Jonas.
“Did Jonas visit you in the hospital after surgery?”
“Tell me about being an EMS worker.”
“Were you going to tell me about it afterwards?”
“Does your mother know how you really got hurt?”
“Walter, what exactly did Jonas say to you when you saw the bus crash? What were his exact words. I want to know what he said.”
Jonas stood up and said “We don’t have to listen to this”, and then Walter looked up and
said, “Shut up Jonas.” He looked right at me, and then back at Jonas. Jonas looked down. Then Walter said, “Jonas, I want the lawyer to advise me what to do.”
So I laid it out for him. That the bus company had them nailed bad, and it could turn into
a criminal matter. The bus company had pulled their offer, but I still had an offer of $45,000
from All Claim. It was good for two days, after which the bus company was going to All Claim,
and then the offer would be zero.
“So lets do it.” said Jonas.
“That’s not all, is it?” said Walter.
“No.” I said. “You guys pulled a fraud on ME, but I still salvaged things, so one third as my fee doesn’t do it. I want half.”
“You son of a bitch.” said Jonas.
“Any more you advising us?” from Walter.
“Thank you, yes. From my half, which will be $22,500, I’m keeping $2500 to cover my expenses. The other $20,000 I’m giving to Angel Zapata.”
“Who’s that?” Said Walter.
“Someone who really needs the money, a client of mine who’s foot got run over and he can’t work any more. I didn’t get him as much money as he deserved, and now he’s getting a gift.”
“What about the rest?” said Walter.
“I don’t know yet, Walter. You’re going to tell me. You’ll have $22,500 to work with. I’d like to see you get rid of Jonas for $2500, and I am advising you to do that. As far as the other $20,000, tell me what you think is right. I won’t question it. The money will all come in to my account, and I will pay your share wherever and to whomever you say. If you say ‘give it to me’, you’ll get it, no questions asked. If tonight Jonas convinces you that you should be 50/50 partners, I’ll do it that way too. I don’t want to spend a second more on this matter than I have to. Tomorrow you can come up at 2 o’clock and see the receptionist. A letter will be there for you to fill in the blanks and sign. I am coming back at 3 o’clock tomorrow. If the letter is filled out and signed, it’s a done deal and you’ll have money in 3 weeks. If either of you are here, or if the letter is not filled out and signed, I’m going to the police”.
Then I handed them the letter:
Richard Jonas hereby states that he did not sustain any injuries in a bus accident on Kings Highway and 28th Street. Rather than risk litigation expenses I am electing to discontinue my portion of the lawsuit. Walter Walenda hereby agrees to settle his case arising out of a bus accident on Kings Highway and 28th Street for the sum of $45,000. Out of this settlement I agree that $15,000 shall go to my lawyer Mike Sender. From my share of $30,000 I direct Mike Sender to pay the sum of $7500 to Angel Zapata to satisfy a previous debt and $__________ to Richard Jonas to satisfy my personal debt to him. I direct that the remainder of my share be paid as follows:_____________________________________________________________
_________________ ____________________
Richard Jonas Walter Walenda

They both read the letter. Then they both looked at me. I looked at Jonas, then at Walter.
Not another word was spoken. They ambled out of my office and closed the door. I looked out at Manhattan. A crystal clear day. I had decided on my future as a negligence lawyer. I’d be jumping out.

Depositions Part 1

2007-01-20T07:01:00.000-08:00

You can't win a case at your clients deposition, but you CAN lose it.

I have handled depositions for other attorneys, where part of my assignment was to "prep the client". This can be a very uncomfortable situation. I have had prepped plaintiffs in a trip and fall case where they "didn't know where the accident happened". Another time the plaintiff told me "I guess I just fell". Another time, in a pedestrian knockdown case, the plaintiff told me he ran in front of a parked bus and then got nailed by a car which could not see him, because his friend had motioned to him that it was safe. What did their attorneys of record expect ME to do? What is "prep" in a case like that? I know that in those situations, the clients testimony is going to doom the case if I don't advise them properly. It's a dicey proposition..... how far you can go? I try to explain to the client the importance of the deposition, the purpose for it, and the consequences of the answers. Sometimes this is the first time the client realizes there is more to the case than "I got hurt, when do I get paid?". If I have to educate another lawyer's client about proving liability, shame on the lawyer, BUT, I will do it.

When I have depositions for my own clients, and the luxury of proper prep, here are a few helpful suggestions for proper prep:

1. I emphasize to the client that we are not there to "testify" or "prove the case" or "convince". We are there because the law gives the adversary the right to get more information about the case. However, they are going to have to work for it. Therefor, most importantly....."LISTEN TO THE QUESTION ASKED, AND ANSWER JUST THAT QUESTION". The way I illustrate this to the client is to say "If the question is.....'Did there come a time when you were involved in a motor vehicle accident', the answer to that question is 'YES'". That's it, let them ask you the details, answer the question asked and STOP.

2. THINK before you answer. The deposition is recorded on a written transcript, but the transcript will not show if you hesitate or think. If you need to think, think. If you are not sure what a question means, ask for it to be clarified.

3. Remember that the defense lawyer needs to establish what your claim IS, and what it ISN'T. Therefor, you will answer certain questions, especially about your damages or injuries, in the negative. Don't worry if you can't say yes to every question about your injuries.

4. The one time you can speak expansively is when asked about how your injuries affect you. Remember, when the questions start to be "is there anything else", your agreeing that there is nothing else will be used to limit your damages claim.

5. If there is some key element on liability, and you know the defendant will focus on it (like NOTICE in a premises cases, or damages threshold in an auto case), emphasize this to the client and go over these issues carefully. Ask sample questions and talk to the client about the answers.

6. Some clients don't know what to expect, and are so nervous they don't absorb your prep. I always explain to an inexperienced client that we will NOT be in court, there will be no judge or jury present, we will be sitting around a table, that I will be there next to you, that the deposition will not be much different than our prep, and that being nervous does not help (though I understand you may be anyway). I really work hard to calm a nervous client before we start, because these clients can fall apart in disastrous ways.

You should NOT let a case be lost by a poor deposition, and the onus is on YOU to control this.

Tomorrow, you can't lose your case taking your adversaries deposition, but you CAN win it.

Economics of Trial Counsel, Part 2

2007-01-19T15:59:00.000-08:00

Consult with your potential trial attorney early, and let them get started doing what they do. If you are going to part with a third of your fee anyway, you might as well get the benefit of their input early. Here are a few things they do, that you may not:

1. Bring in an expert witness on liability. You may have been thinking "maybe I will....at some point....", but if a trial attorney tells me we need an engineer, or an accident reconstructionist, it's a no-brainer.

2. Make sure you are ready to try the case on damages. This means you have a doctor who can testify, that all exchanges have been made, that subpoenas are prepared and served, and that there are no evidence "problems" that you may not realize.

3. Is your liability theory viable and legally sustainable? A trial attorney once told me that on his own cases, and on new files he picks up for trial, after hearing the basic facts he starts thinking about the PJI (Pattern Jury Instructions) for the case. Most non-trial lawyers think about that last, if at all.

4. Another trial lawyer told me that the first thing he reads in a new file he receives for trial is the plaintiffs deposition. What testimony are we "locked into", and where might there be some flexibility. What issues are the defendants thinking are problems? Incidentally, this same trial lawyer told me he is amazed at how many plaintiff cases are ruined by a poor plaintiffs deposition (more on this tomorrow).

5. Do you need to supplement the Bill of Particulars so ALL damages are included in the case?

6. In a motor vehicle soft tissue injury case, how will the New York "serious injury" threshold be met? This can be a make or break issue in the case, and should not be something that the trial attorney and client are first talking about in the hallway during trial....and I have seen this happen.

7. Have we confirmed the insurance limits. Can the carriers be placed in position for a possible excess verdict? Can pressure be brought on this issue?

I recommend having a working relationship with more than one trial attorney or firm. You may find that some firms are particularly good at certain cases. You can even run a particular case by more than one firm, and see who is enthusiastic about it, or who has an approach that excites you. Some firms are stronger in one venue than another. You can and should consider this.

Remember, bringing in trial counsel is not a negative reflection on your abilities. You will end up being a hero, you will make more money, and you will learn to prep your files better and better with each case.

Economics of trial counsel, Part 1

2007-01-17T10:22:00.000-08:00

Many firms who handle plaintiffs cases don't try the cases themselves. Not everybody knows how, some don't want to do it anymore, sometimes the "trial guy" has left the firm, and sometimes there are unsolvable calendar conflicts. What considerations should go into employing outside trial counsel?

Why? Some cases have to be tried because the offer is zero or near zero, or because a liability verdict must be taken before an offer will be made (this applies in bifurcated trial jurisdictions, unified trials have different issues). Most cases reach their maximum settlement value at the time of trial. Not at the last "pre-trial conference", but when the carrier knows the trial IS actually happening and the plaintiffs are proceeding. This might be during jury selection, or right after, or when assigned to a trial part, or after opening, or after some plaintiff testimony. Whenever the exact time is for a partiular case, the biggest single jump in value is some time after the "trial" starts. I put that in quotes because to me, the trial starts when the attorney who is trying the case is in Court selecting a jury. It is often tempting for the attorney of record to hang in as long as possible and settle the case at the last moment before he'd have to either try the case himself or get a trial lawyer in there. We all know why attorneys do this.....to avoid that "turning point". The point where they are giving up a third (or more) of the fee. Waiting like this is a big mistake.....let me count the ways:

1. The good trial attorneys may not accept the case at this late juncture (more on this in Part 2), or the attorney you want may not be available.

2. You may have overlooked something a trial attorney would have done to maximize the value, and now it's too late.

3. You may spring this on the client so late, and so ineptly, that the client does not have confidence in your trial attorney.

4. You may think you have maximized the settlement, when you don't know how much better the trial attorney would have settled for, AND THEN, your client refuses to accept the offer.

5. You develop a reputation as someone who doesn't try his cases (or bring in trial counsel), and your offers reflect this.

It is true that sometimes the attorney of record will net less of a fee after the trial counsel comes in. Simple example: You had an offer of $15,000, so a fee of $5000 was yours, with $10,000 to the client (putting aside disbursements). You bring in trial counsel and settle the case for $18,000, with fees of $4000 to you, $2000 to trial counsel and $12,000 to the client. So, the client did $2000 better and you did $1000 worse. But the thing is, this is the RIGHT way to do things, and WAY more often, the trial attorney boosts that $15,000 to offer to $45,000, and you and the client both benefit.

Of course, trial counsel is able to do this when you bring them in early enough to help you....

Insurance Insurance Insurance

2007-01-16T08:05:00.000-08:00

I could write a book about how insurance affects law practice, but I'd rather write a book about something more interesting.

However, I do have a few observations about the interaction of insurance with law practice:

1. Try as they might to act as if they represent "real clients", insurance defense firms represent insurance companies. When you have a case that forces the defense firm to look out for a real client (ie. you may have a case that a jury will bring in a verdict above the policy limits), you can exert real pressure if you play it right. My advice here is the same as any negligence case, only more so. Prepare the case for trial from the git-go. Insurance companies live for plaintiff lawyers who bumble and stumble. The cumulative effect of our bumbling is that payday comes later, and spread across an industry, it really adds up. When you play hard and tough, they notice, and they pay you.

2. You can control your caseload and workload (to a degree), insurance defense firms cannot. The economics at an insurance defense firm dictates that all the associates and partners be working close to capacity at all times. They also have to take ALL the cases the carrier gives them. Plaintiff lawyers don't have to take ALL the cases. They should take enough GOOD cases to do a quality job, and not make the mistake of taking too many marginal cases. These cases always end up taking more work, engendering more disbursements, and bringing less return than good cases. However, the WORST thing about taking marginal cases is it prevents you from doing quality, timely work on your good cases. You thereby lose the biggest tactical edge over the defense firms. If you don't have enough quality negligence cases, spend your time marketing for quality cases. Do NOT waste your time with poor liability, soft tissue injury, low potential junk. Do NOT fall into the trap of thinking these will lead to bigger cases....they will lead to more junk, and you will be seen as that kind of lawyer. When those clients get good cases they will go to "big lawyers".

3. Out of State carriers sometimes overvalue cases and will over pay early. I have had this happen a few times, so if you get the police report and you have a carrier you have never seen before, it may be worthwhile to investigate the case, send them what you have, and try to settle it pre-suit. You need a co-operative client to do this, and you have to be sure there are no surprise medicals lurking, but it is worth considering.

4. For what its worth, I find that carriers tend to over value dog bite cases.

5. If a defendant is self insured, or there is "self insured retention" in play, it is in your interest as plaintiff to fully understand the defense situation. This will prevent you from wasting time on impossible negotiations.

6. If the carrier is acting stupid, don't get angry, just move the case and prepare for trial.

7. If you do not try cases yourself, develop good relations with trial counsel. This is an economic issue, and we should act like business people. This applies to the attorneys of record, and to trial counsel. More on this tomorrow.....

Attorneys fees and settlements

2007-01-15T15:04:00.000-08:00

Have you ever been involved in a case that should be settled but isn't?

Many times the reason for this is.....one side or the other (or both) are not in a "proper" fee arrangement with their attorney. Sometimes, it might be YOU who is not in a proper agreement. I prefer situations where everyone is acting like big boys and girls, but sometimes a party is acting like a baby....they are not seeing reason, or making a reasonable offer, or accepting a reasonable offer, or even negotiating, just.......BECAUSE. And the extension of this is because...they can. Lets look at a few scenarios:

1. If there is no consequence to the client in being unreasonable, sometimes their strongest negotiating position is to be just that. In a civil litigation (I am leaving aside personal injury cases with insurance....more on that tomorrow), if both parties are paying their attorneys hourly, they should behave like adults. Sometimes one of the attorneys is on a contingency (generally the plaintiff, though I have seen reverse contingencies for a defendant), and if the plaintiffs attorney did not get strong client control from the outset, the client will cheer him on and may mis-behave. Conversely, if the defense counsel is a family member, or is "doing a favor for a good client" (slap yourself in the face if you hear yourself saying this), the client has a disincentive to negotiate properly.

2. In small matters, the ones that start out "just write a letter", you can't finish the matter properly because nobody is paying as they go, and all the details get magnified. The clients are asking the lawyers for more and more, and you could stop them with a bill, but its not that kind of case. STOP GETTING INVOLVED IN THESE SITUATIONS...... OK, I'm yelling at myself here, but if you do this, you know what I mean....stop before you start.

3. You got a retainer, started to work, but those further hourly bills are hard to come by. Until the client gets the second bill, he doesn't respect your time. If you want to control litigated matters, keep time, bill timely, and don't apologize for it. You can give your best to all your clients if you have time to give, and you will not have time if you don't control it.

4. Sometimes the clients are willing to pay, and are paying, and they are still acting irrationally and the attorneys are cleaning up. These are called "matrimonial cases". I respect matrimonial cases and the specialists who handle them, and never begrudge them their monstrous incomes. They earn it, the clients are not happy to pay them, but they understand it. The surest way for a generalist to learn about why hourly billing is important, and how cases don't settle if you don't bill properly, is to "dabble" in some matrimonial cases.

There are a few things to learn from all this. First, control your clients and your billings. To the extent you have problems with this, actively work on improving it. Second, pay attention to your adversaries attorneys fee situation. I always try to assess this at the outset. Clients are always puzzled when I ask whether they know the relationship between the adversary and their attorney, but I consider this valuable and important. Third, pay attention to what has and has not been working for you. Don't beat yourself up over mistakes, we all make them, but for G-d's sake, LEARN from them.

Tomorrow.......insurance insurance insurance

Perils of Real Estate Practice, Part 3

2007-01-14T14:39:00.000-08:00

Continuing with my "ideal" real estate matter, the one we never EVER see, here's more reality:

1. A closing is scheduled with just a few calls, in a convenient location. In reality, the scheduling takes many many calls, and even if you "delegate" this to a secretary or paralegal, it takes a lot of THEIR time. If you regularly makes these calls yourself, I challenge you to show me how flat fee real estate is remotely profitable. A tip to save real aggravation.....if you know what is realistic as far as when the closing can happen, assert yourself. Do NOT go with the clients or the brokers aggressively early date. When you do this, invariably you will make the calls, and then get to the last call, and a key player can't do it. As far as convenient locations, other than your own office, all other locations are inconvenient, its only a matter of degree. It's YOUR time, remember that.

2. The closing takes place on time and takes an hour. Uhhh, someone is usually late. When I feel really cynical, I try to arrive LAST, so at least less of MY time gets wasted. I have had a few closings take less than an hour, but I've had many more that took 2-3 hours. That would be ok, if I were on an hourly, but, well...you get the point.

3. The closing is done, and there are no post-closing escrow issues. Was it Shakespeare who said "Nature abhors an escrow"? OK, HE didn't say it, but if a post-closing escrow exists, and we're not getting paid extra to deal with it, WE lose. Of course, many times the only way to resolve a problem at closing is to hold an escrow, so at least you can close. I always try to convince everyone at the closing to "adjust" rather than escrow. The attorneys always understand why, and the clients don't, until you mention the extra attorneys fees....then suddenly they can adjust the problem. (Incidentally, this is tomorrows topic....how attorneys fees affect case settlement) You might think, if proper pre-closing prep is done, all issues should be known and resolved, but WHO CAN DO THIS FOR THESE FEES???? So you show up at the closing, get it done, and hold an escrow (for some taxes, or possession, or a judgment, or a lien, or for any number of things). The times when I have charged for a post-closing escrow issue, I felt distinct resentment from the client. Of course, the times I didn't charge, I felt distinct resentment myself. I finally concluded that I have enough resentment, so this is one I try hard to avoid.

4. You send a closing statement; the client appreciates everything you did.....and refers you all kinds of business over the years. I always leave a closing with my closing statement checked and re-checked so all the math is right, and I can send out a clear statement. Its worth the extra time at the closing to be sure. Getting back and having the numbers not work is frustrating, time consuming, and non-compensable. So, be thorough, EARN your money, and don't spend that $950 in one place.
As far as client appreciation, I've gotten some nice, heartfelt thank-yous over the years, and they are always appreciated. I've also had many occassions where I had run through brick walls for the client, and KNEW they had no idea how hard I worked, or they knew and took it for granted.
Lastly, if you are a generalist, and you do real estate to "increase your client base", and hope to be that clients "family lawyer" and get ALL their business, including the juicy negligence cases you find most profitable....BEWARE. Unless you take steps to educate your clients, they will view you as a "real estate lawyer" and refer their "real cases" elsewhere. I once had some difficult clients who I had represented when they bought their house. Six years later when they were selling, we conducted all our business by phone and mail up until the closing. At the closing the wife was in a wheelchair, the result of a pedestrian/auto accident, which was my first knowledge of this. The husband proudly told me about the big settlement, and the big fee their lawyer had made "without doing hardly anything". I told the wife I hoped she was feeling better, and was thankful for the opportunity to work my ass off for a small fee, and my future "opportunities"

and so, I shall rant no more.....

Perils of Real Estate Practice, Part 2

2007-01-08T14:07:00.000-08:00

Yesterday I outlined a simple, albeit fictional, deal, and promised to compare it to reality. Here goes:

1. You meet the client and establish a "relationship". Sometimes you start out just on the phone, and you either connect or you don't. Sometimes you have an initial meeting and you realize this client should not be buying a house, but how do you convince them of it? Sometimes you just get a bad feeling. Sometimes the initial meeting takes way longer than you thought, and you know that every aspect of the deal is going to be like that.....and that's always a profit killer when you are on a flat fee.

2. You advise them "pre-contract" so they understand the process, and if the first deal doesn't go through maybe you get paid something for your time......and for a lot of reasons, maybe you don't.

3. You get initial details on a solid deal from an honest real estate broker. Pardon my oxymorons, but in general I have come across real estate brokers who are "hard-working", "tenacious", and even "enthusiastic", but then I run out of complimentary adjectives. One thing they do a lot is CALL you, and they want one thing.....to find out when the closing is. I have had brokers who actually told my client, and the other party, when the closing was, even though we attorneys had not scheduled it yet. I guess the way they saw it, they took a shot. You can't make these things up.

4. You represent the client on the contract (which of course goes smoothly and is all done via the mail). Uhhhh, usually it goes back and forth and back and forth and takes WAY longer than it should, and engenders numerous calls to and from EVERYBODY. When brokers offer to pick up and deliver the contracts, I usually let them, let em WORK.

5. The client gets timely financing without a hitch. OK, sometimes this happens, but only because some banks are so careless they'd give a loan to a ham sandwich. Of course, when your client has trouble getting financing, everybody's stress gauges go up, and you realize your client should have gone to one of those ham sandwich banks, and everyone is blaming you for not sending him there. Any lawyer who has ever been in one of these mortgage problem deals, knows all the extra work thats coming (for no extra fees and tons of pressure)......and all the questions from the client.......is my down payment at risk? can we kill the deal? can I get an extension? can I re-apply? when is the closing? who put that mustard all over my back?

6. You review the title report and it is clean. Maybe one out of ten you don't have an issue. The rest of the time, somebody from your office who knows what they are talking about (YOU?) has to make some calls or draw some affadavits to solve a problem. Extra fees? NO, its included.

I have a few more, but I will deal with them on Wednesday, in Part 3.

Tomorrow is my 50th birthday, so I will post some random thoughts on that......for a goof....

Perils of Real Estate Practice, Part 1

2007-01-07T07:11:00.000-08:00

After 24 years, I recently decided to stop taking new real estate matters. These are what many general practitioners would call the "bread and butter" of a general practice. I am talking about basic representation for the buyer or seller of a residence. In New York, this is generally a house or a co-op apartment. I know that real estate practices differ from state to state, but I'm sure many of the business issues are the same. I also know that while I can, and will, list a litany of real estate perils, many of them have solutions. I will even try to offer some, I just won't being doing them any more.

Let's define a few "givens" in the market:

1. Clients expect to be quoted a fixed fee, for handling the matter from start to finish. I know there are attorneys who charge hourly for real estate closings, my hat is off and I bow as I say it, but generally market forces have made this a flat fee affair.

2. It is a huge responsibility for the attorney. There is a lot of money at stake, and there are often multiple deals hinging on each other. And Lord knows, we all need more pressure in our lives.

3. A real estate matter is very "client intensive". For the client this is often the biggest transaction of their life, and THEY are under pressure. This is something they love to share.

4. There are no simple deals. Think about this....here's the outline of a simple deal, where all goes well.....You meet the client and establish a "relationship"; you advise them "pre-contract" so they understand the process; you get details on a solid deal from an honest real estate broker; you represent the client on the contract (which of course goes smoothly and is all done via the mail); the client gets timely financing without a hitch; you review the title report and it is clean; a closing is scheduled with just a few calls, in a convenient location; the closing takes place on time and takes an hour; there are no post-closing escrow issues; you send a closing statement; the client appreciates everything you did.....and refers you all kinds of business over the years.............If this EVER, EVER happens, I'd say the $950 or $1250 or $1500 you received was MAYBE worth the time, but......
I have done hundreds of closings and I have NEVER, EVER had a transaction go that way. Tomorrow I will review some aspects of the usual deal, and then we can re-visit what the proper payment for such fun should be.

5. Not only are the deals client intensive, the deals rely on multiple parties performing their role correctly. On a New York co-op sale, as sellers attorney I rely on the following parties knowing their stuff and acting professionally: the buyers attorney, the buyers mortgage broker, the buyers lender, the co-op board, the co-op managing agent, the lenders attorney, the lien search company, the attorney for the mortgage payoff bank, and the brokers. Thats a lot of people "getting it right", and the consequences of any of them being a bozo are significant. Additionally, if the buyer or seller flakes out at some point (something that always seems to happen when the rest of the players are top caliber), you end up working your tail off.

I knew I might rant a bit when I started this, thats why I called it Part 1. Part 2 tomorrow....

Location Location Location

2007-01-06T06:46:00.000-08:00

Of course its true in real estate, and its true for the venue of our cases and clients. When you make that big decision to take a matter or not, you must consider the venue, not just of the case itself, but of the clients and other players.

Where I am in Queens County, New York, there are 8 counties in reasonable proximity to my office (5 boros of NYC, and Nassau, Suffolk & Westchester Counties). When a new matter is being discussed, I've learned to consider WHERE will the action take place. If there is litigation involved, we all think of this from the outset.....as a plaintiff where will I venue the case, as a potential defendant, where will plaintiff venue it, and why.

I think of non-litigation matters as having a "venue" too. Will there be meetings with clients and counsel? WHERE will they be? Here's a reality, if I have to attend meetings in Brooklyn or Manhattan during the day, add two hours. If its not the kind of case or client where you KNOW you are truly compensated for your time (and be HONEST with yourself), factor this in when deciding whether to get involved. This is primarily why I have stopped taking real estate closings on a flat fee basis (aside from all the other reasons, more on this tomorrow.....)

Is it the kind of client who will need to be in your office more than once during the matter? If they have to commute an hour each time, how long will it be till they resent that?

On litigated matters, will your adversary have "home court advantage"? Don't overlook this, and its not just because they know the Judges and Clerks and customs of the home court. A simple status conference with the court, where your adversary is there anyway because ALL his cases are there, is a big waste for you. You may be better off paying a "per diem" lawyer to go, but do you prefer that?

How much more confident do you feel when you are in YOUR home court. I know that the case is still the case, and I think they invariably turn out the way they should, BUT we are talking now about BUSINESS, and profits, and convenience, and lifestyle. I will often decide to refer a case to "local counsel", even if its in Manhattan or Brooklyn or Nassau counties (all contiguous to Queens and all close by), for business reasons. I also have cases referred TO me because of my Queens presence.

Bottom line, venue, venue venue.

Expanding Your Network

2007-01-05T09:02:00.000-08:00

Expanding your database of attorneys should be a constant, ongoing process, and you should always recognize its importance. I like to maintain an actual computerized database, so I can do searches, BUT a rolodex and a brain can suffice for this purpose. The quality of your referrals will depend on the quality of this database. If you have one, make it better, if you don't have one to speak of, start one. It takes very little effort, and pays dividends almost immediately.

I have a few tips on building the database:

1. Be a card COLLECTOR, more than a card giver. We all go to functions, lawyer functions, meetings, family events, parties. The tendency for many lawyers is to "look for business", and give out cards. Of course you should seize opportunites to give your card and try to make connections, but the real opportunites at functions is expanding your database and collecting cards. Want to make a real connection with a fellow attorney who you have just met? Ask what they do, ask them questions about it, and ask them this question "What kind of cases should I refer you?" When you get their card, make notes on it (discreetly, after they walk away, we don't want to be wierdo stalkers here).

2. Make updates and corrections promptly. We all get notices of new offices and affiliations....update your database, you want it to be accurate when you need it.

3. If you know lawyers who seem to know a lot of lawyers, do not hesitate to call and ask them for referrals......So many times I have called lawyers like this and said "Who do you like for a ______case in ______County". I always assure the attorney that I will tell the specialist where the lead came from......this type of thing is OUR currency. It should be obtained with passion, and circulated, not saved.

Incidentally, I referred to cases being in _____ County. I am always interested in the location and venue of a potential case and the various players.....more on this tomorrow.....

Making Great Referrals

2007-01-04T11:33:00.000-08:00

Let's examine what happens when you make a great referral:

1. You have provided your client great legal services. By YOUR knowledge of the clients legal issues, and contacts in the legal community, you got them to the right lawyer. You also probably gave the client some real advice, AND you got the new lawyer started right, by narrowing the issues. You would have (probably....maybe) done a credible job with the case....your specialist referral will do it better, and we all know it.

2. Referral/participation fees. You make money the old fashioned way. When you make money and someone else is doing the bulk of the work, and you are repeating this process, this sounds like smart business. In the sophisticated business world, as opposed to the lawyer general practice world, this is called LEVERAGE. Leverage, in this context, is a good thing.

3. You will receive referrals back. Remember, although you specialize in general practice, there are some areas of law that you still do, and you do them well. Every time you make a referral, you have an opportunity to market for the cases you DO want. Specialists all get calls for cases outside their field, and they refer them out (because they are specialists). BE one of the lawyers they refer cases to.

4. You expand your network. Sometimes you don't have an attorney in your rolodex, or in Outlook, or wherever. Don't turn the client away. Get the facts, and use your resources to find them an attorney. Use the internet, call your attorney friends, check the County Bar Association committee lists, but MAKE SOME EFFORT. A specialist that you call after tracking them down, and hearing you say "I'm ______ an attorney in _____ County, and I have a client who needs an attorney who can do ______, and I found you by ___________" will respect you, will probably take the case, will pay you, will refer business to you, and will be someone you can refer to again. Expanding your network is always good.......

Specializing in General Practice

2007-01-03T09:46:00.000-08:00

Is general practice a specialty?
Just "doing general practice" is the antithesis of a specialty, and will have all the pitfalls of an unfocused activity. It will have all the problems and few of the benefits that specialists reap.
However, if you do general practice RIGHT, if you "specialize" in it, it can be as rewarding as any specialty. Here are a few ideas:
1. Make great referrals. This is the backbone of specializing in general practice. It is analogous to a medical GP. Patients rely on them to identify what specialty they need, and make the referral. There are GP's who are great at this, and others whose network may be weak. As attorney GP's, our referral network is one of our most valuable assets. It should always be growing, it should be alive and lively. By the way, I encourage all GP's to receive proper and ethical fees on referrals made. Contrary to what attorneys sometimes think, the ethical rules tell you exactly how to do this. We are one of the few professionals that spells it out. I am tired of self-righteous attorneys who view the ethical rules on referrals strictly for what you can't do (and yes, there are things you can't do). But, the rules tell you what you CAN do, and you should welcome opportunites to make referrals......more on this tomorrow
2. Learn to say no and respectfully decline losing situations. If you can't make a referral, and its not for you, DON'T get involved. Have a form declination letter and USE it. Resist the urge to "just write a letter".
3. Take pro bono cases by choice, not by default. Never rationalize your mistakes (the ones where you hate the client and aren't being paid) by saying they are "pro-bono". Learn from the mistake, and find pro bono cases where you care.
4. Constantly improve the way you handle the cases you DO take.....your specialties within your general practice.
5. Specializing in general practice is a philosophical approach. Any associates and support staff should understand what you are doing. This will help your referral network develop.....

Specialize in Something(s)

2007-01-02T11:47:00.000-08:00

Generally speaking, the most successful lawyers (by any measure: financial, personal satisfaction, recognition) are the specialists. I am qualified to say this, having been a misguided generalist all these years. Here are some things we can observe about specialists:

1. They know their stuff. When we generalists are up against a specialist, we know our stuff too, to a point, but on more substantial cases we are soon "out of our element", we are in THEIR element.
2. They get paid more.....and with confidence, and they should, they give their clients value.
3. They tend to find their chosen field interesting and exciting. I have been a generalist because I find all areas of law interesting, to talk and think about, and to strategize about, but to actually DO.....not so much fun. Have we all, as generalists, had the experience of calling someone who "really knew"? I'd like to be that person all day long.
4. They have systems geared for their specialty......we have general, all purpose systems, that work....to a point....and then our inefficiencies haunt us.
5. They know the players in their field, and they know the fakers (us).

I have two main pieces of advice for general practitioners:

1. Specialize 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.

2. Specialize in general practice......I think this IS a specialty unto itself....more on this tomorrow.........

Refine How You Define

2007-01-01T06:54:00.000-08:00

Happy New Year! Todays topic can be viewed as helpful advice, and can be adopted as a resolution.......REFINE HOW YOU DEFINE
How many opportunities do we have to answer the question "What do you do?" The answer can say a lot to the questioner, in both content and tone, but it should also say a lot to YOU. Do you notice how you answer the question? Do you use vague generalities? "I am in general practice.....I do a lot of different things.....I do some real estate, some estates, some litigation.....I work for a small firm......" Do you give a disparaging answer? (How would you view someone who defined themselves as doing something they hated......and then when you saw them again a year later they said the same thing? It sickens me to recall having answered that way) Are you enthusiastic?
Here are some basic suggestions:
1. Observe how you answer that question (or would answer it, hypothetically)
2. THINK about what it indicates: (a) to the hearer, and (b) to yourself
3. Experiment with some different ways to answer, first by thinking of some, and then trying them out when asked (btw, you will be amazed how many opportunites you have to answer the question), and then follow the above.....observe your response, and THINK about what it indicates to the hearer and to yourself.
4. Keep refining how you define, it will move you in the right direction.

You will also notice that specificity, and specializing in SOMETHING(s) improves your approach to practice, and results in new, QUALITY business........

Problems with clients

2006-12-31T06:20:00.000-08:00

To one degree or another, we all have problems with our clients. Some offices have only a few, while others are virtually infested with them. Nothing can make a solo practitioner as miserable as a roster of bad cases and clients. It should be useful to look at the various species of bad, what causes it, and what to do about it.

1. Not your specialty: "I am a general practitioner, not a specialist". OK, I have the cart before the horse, THIS might be the problem unto itself. I am the biggest supporter of general practitioners, I have identified myself that way for 24 years. BUT what does it really mean? Does it mean you do EVERYTHING? Does it mean you try to? Does it mean you specialize in NOTHING? If you are a general practitioner, I'd offer this bit of advice, "REFINE HOW YOU DEFINE". Look at your biggest problem situations, the cases you should not have gotten involved with. Would you have taken them if your definition of what you do was clear, in your own mind? When it's clear in your own mind, it's clear in how you express yourself to the clients, and it will more often be clear that you are not the lawyer for that case. More on "refine how you define" in the next post.

2. Unclear fee arrangements: I recently implemented a new rule for myself. "Don't start work, or consider that I have a client, until there is a clear WRITTEN agreement laying out an outline of the case and all the fee and disbursements issues". A funny thing is happening. Writing these agreements is a lot of work, and takes a lot of concentration and effort. It seems like more work than the case is gonna be. It seems like its more work coming to terms with what I am going to do, than it might be to just start doing it......and then you have to STOP. and say, "THIS is the most important part of the case.....making the outline of what is expected and how the fees are going to work". Do not start without this. If this causes you to not start, you are ahead of the game.

3. Proving yourself: The client NEEDS help, you can see that. A little bird in your head is singing "This client needs ME". Throw that birdie some crumbs so it goes away so you can think. If that client needs help, but you are not the one, you have two choices that are way better than becoming their lawyer. One, politely decline the matter, or even better, make a great referral.

4. Not following your instincts: Client is nutty, and now is driving you crazy (You knew this when you first met them didn't you?). Did you think they'd be different with you? (Yeah) You did not have to get involved.
I think the client is not telling me the whole story (you were right). Could you have found out more of the story before getting involved? (Yes, but I would have had to work just to do THAT) Doesn't THAT tell you something?
The client has numerous civil cases and has left a trail of broken attorneys (they didn't even hide this fact, something which all attorneys know is a red flag of trouble) Were all those attorneys in the wrong? (Only when they made the same mistake you are about to make)

Bottom line: put in real effort at the outset in making your decision on whether, to what extent, and on what fee arrangement to get involved. You owe it to yourself.....

Lawyers as Clients

2006-12-30T08:13:00.000-08:00

I have often said that when my per diem practice started growing, it was a good thing because it eliminated the main problem of general practice.....the clients. Not to disparage my private clients, but here are some positive things about lawyers as clients, especially when they are hiring you for per diem work:
1. They understand that you need to clearly define the service to be offered, and the fee. Granted, the projects are often finite and simple, but I have never had a lawyer question me when I clarified the limits of the service, and defined the fees for extra services.
2. Most of them pay on time. Not all, but most. The challenge in per diem is to build a following of lawyers, and when you figure out who the dogs are, get rid of them. I will generally extend open credit to a new lawyer client, but if they start to run a tab above $500 and over 30 days, I address this immediately. I re-bill after 30 days, then fax a reminder in 45, then I call. I have also found it very helpful to accept credit cards by phone. It is very easy to set up, and if a lawyer client is running a tab that makes you uncomfortable, asking for a credit card payment is a sure-fire test of their intentions. If they don't pay, and don't agree to make a credit card payment, end the relationship.
3. They understand what you are supposed to do, and what you did. When something unexpected happens in court, as it often does, this does not cause the lawyer/client to lose confidence and question your ability.
4. The "case" ENDS....at least as far as my involvement. I don't have to maintain a file forever, and think about it, and have it get revived at unpredictable times. I get hired, I work, I get paid, its done......repeat.

These issues are all instructive in our problems with private clients, and worthy of further discussion.....

more thoughts on per diem

2006-12-29T09:35:00.000-08:00

There are a lot of ways to get per diem business. Some of the standard ways work pretty well, including networking your existing attorney contacts, word of mouth, and advertising in bar journals and legal newspapers. I have always done best with variations on direct mail, to a targeted list. The attorneys I mail to are those who have court appearances coming up.....especially the types that lend themselves to per diem coverage. For example, most Civil cases in New York have a "Preliminary Conference" ( a "PC"....we love acronyms and abbreviations in the per diem biz). PC's are good ones for per diem because they are not too complicated, but one can end up waiting around for awhile. Unlike Federal Court, where they might schedule a PC at 3:45 in the afternoon, and you have a real conference with the court, in State Court they schedule about 75 PC's every morning at 9:30 AM. All the attorneys mill around the halls until they find their adversary, fill out their little discovery order, hand it in, and leave. Its worthwhile to pay someone else to do this, and its worthwhile to try to get these appearances because you can do as many as you can get. My personal record is 16.
Another reason I like PC's, is that its fairly early in the case, and if you make a new law firm client, you have a good shot at the CC (compliance conference), PTC (pre-trial conference) EBT (examination before trial, which most human beings call a deposition), and any motions.
I like PC's so much that I price them on the low side, to help grow the client base.
In this context the "client base" are other lawyers and law firms, in many ways the best types of "clients"....more on this in the next post....

Thoughts on per diem work

2006-12-28T06:49:00.000-08:00

About 10 years ago, I started focusing my practice on "per diem" court coverage for other attorneys. Essentially, I cover court appearances on civil cases in Queens County, New York. There appeared to be a demand for this service, which I had noticed in my own practice, especially when I had to appear in Court outside of Queens. Every time I would go to another County for a motion, or a scheduling conference, or a pre-trial conference, several things would happen: I would spend the entire morning there, I didn't know the local rules and customs, I didn't know the Judges or clerks or adversaries, I didn't know where to park or eat, and I was tired when I got back to Queens. When I covered my own cases in Queens, I found these problems weren't so bad, and I also noticed how much my adversaries generally hated being there. I started thinking about what I (they) would pay, not to have to do these appearances, and $75 - $150 seemed to be the range.

Another thing I noticed was that if planned right, one attorney could handle multiple appearances in the same building (I used to actually cover two buildings next door to each other, but I'm kinda nuts). All this takes is knowing the local practices, such as which Judges have a second call at what times, which Parts allow you to just "check in", etc. It also doesn't hurt to have the Court staff helping you (or at least not hurting you). Then, all I needed was a marketing plan and we'd be in "business".....