Top 10 Things I Learned From 38 Years in Law Practice

10.  Trust but Verify.

9.   The Courts are an inefficient place to resolve disputes.

8.  When people seem kinda crazy, it’s because they are.

7.  Ignoring problems never makes them better, it makes them way worse.

6.  Solving unsolvable problems doesn’t pay nearly as well as it should.

5.  One of the most valuable skills to learn, and one of the hardest, is to say NO when you should.

4.  Ethical attorneys know that ethics questions arise all the time.  If you are in tune you see and consider them.  Pay attention and don’t compromise yourself.

3.  Clients are often under stress.  It comes with the territory.  Respond as if you know that.

2.  You are what you say you are, and every day you can refine how you define (yourself).

1.  Being a lawyer in private practice is WAY harder than one might think, but overall it was/is worth it.  What a long strange trip it’s been!!!

Bonus thing learned in the Pandemic:  See reality and adjust.  It's a gift we all have, IF we choose to accept it!!!

"Who is My Client?"

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

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

This is because the most ethically aware attorneys will SEE 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, and exams, 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 issues to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.

At the core of many of these situations is a recurring 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. A person calls you and inquires about your fees because "Mom wants to sell her house".

3. A person calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent and adult child, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the sibling you met with 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 scenario 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 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 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 live there, and have not taken any action, until recently they began to inquire. The person who contacted you wants to be the fiduciary.

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 the client?" and reconciling that with the appropriate ethical issues. Very often one CAN proceed but must (or should) obtain proper waivers from parties who could later criticize the conflict. Whether we get written waivers or not, prudence dictates 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.

It usually takes some work to untangle these initial ethical issues. Don't succumb to the temptation to ignore the issues.

A related paradox is -

"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 what I tell the potential client, because it's true is:  WE WANT A RESULT THAT WILL STAND  (sorting out the ethical stuff really boosts the success likelihood.  Most clients understand and appreciate this)

Pro-se Adversaries

While doing per-diem court appearances I regularly encounter pro-se adversaries (people representing themselves). 

In New York City Civil Court (jurisdiction up to $25,000), people often appear pro-se.  Many of these are debt collection cases, but I have been involved in many cases 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, you will find the pro-se suddenly has a lawyer......the Judge!!  This is not supposed to happen, but it does. Your job is to not let it happen that way. Here's a helpful tip....conference the case directly with the pro-se before you conference with the Court. I tell them that we don't have to talk but we are allowed to and we are here anyway.  I make it clear that they don't have to talk to me and in any event, after we talk we will have a conference with the court. If they agree to talk (90% of the time they do) I try to find out what the issues are, and I am non-confrontational.
When we conference with the Court, I 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 think most people are so nervous to talk to a Judge or a Court attorney, they are relieved that I am explaining it.  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 want to follow every rule, 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 brilliant 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 shouldn'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 what should be done, and the decision will be issued later.

Quick story.....I once tried a credit card debt case where the debtor owed about $10,000.   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"

When I got the decision in the mail I already knew:  WINNER

Bad is BAD

Law "jobs" may be scarce, but for the entrepreneurial, there is plenty of law business out there. One skill that separates the successes from the strugglers is recognizing and getting GOOD business, while simultaneously knowing and avoiding BAD business.  Growing a healthy law practice starts with hearing clients' stories, and making good business decisions on whether they and their story will be profitable legal business.

Bad business is bad because....

1. The time spent on bad business takes away from two important 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. Bad business saps your energy.  Squeaky wheels get your grease, which 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 meet with it.  You travel to court for it and with it.  Still, it squeaks. You grease it enough, it starts to quiet down and move along.  Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason bad business is so bad.

3. You lost money.  All that squeaking, all that time....YOUR time, and maybe you made $10 an hour. It happens, and if you don’t pay attention, it can happen a lot.  Sometimes bad business gets quiet and slinks away without paying, or makes you chase the fees.  

4. Bad business produces bad karma. When you are a solo lawyer, your clients and their cases are your life (We'd all like to deny this, but it's true).  When you have cases, you always have a certain “mix”.  I realized this one day while talking to another solo.  We were having a “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today"?  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 start our discussions with “How’s the mix today?”

5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, consider where that leads.

Here is my short list of bad kinds of cases, and the reasons they are bad (your actual bad cases may differ):

a.  Residential real estate closings:  Very often these have low fixed fees with no control over your time; plus clients who are generally not business people, and are now suddenly under intense pressure.  These problems can be managed, but it's a big challenge.

b.  Accident cases with minor injuries: You end up working your tail off, spending your own money, and the insurance company fights you.  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 soft tissue injuries that squeak a lot.  

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 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 businessperson, and ruthless, and like to live on the ethical edge. 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 or a laundromat.  These transactions are WAY more complicated and difficult than you could imagine.  

f.  Any kind of case you don't know how to do really well, or where you won't be getting enough of them to learn how to do them well.  

There are rationales and rationalizations for taking bad business.  I have heard (and acted upon) all of them:

- I'm building a client base.

- Small fees are better than no fees.

- I'm gaining experience and contacts.

- I'm not too busy with other things right now.

If you think these thoughts, and it's natural to do so, at some point you will recognize the many flaws in all of them. Hopefully this happens sooner rather than later.  

It's easy to market for, and get, tons 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.  This can and does happen, and on many levels can be an excellent result of learning the lessons of bad business.

  

Bottom line: bad is bad, but 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 right away, skip all this bad stuff, and go for good from the git-go. 

Comments are welcome!

Top 10 Things I Learned from 35 Years in Law Practice

10.  Trust but Verify.

9.   The Courts are an inefficient place to resolve disputes.

8.  When people seem kinda crazy, it’s because they are.

7.  Ignoring problems never makes them better, it makes them way worse.

6.  Solving unsolvable problems doesn’t pay nearly as well as it should.

5.  One of the most valuable skills to learn, and one of the hardest, is to say NO when you should.

4.  Ethical issues arise all the time.  Pay attention and don’t compromise yourself.

3.  Clients are often under stress.  It comes with the territory.  Respond as if you know that.

2.  You are what you say you are, and every day you can refine how you define (yourself).

1.  Being a lawyer in private practice is WAY harder than one might think, but overall it was/is worth it.  What a long strange trip it’s been!!!

The Next Big Thing in Law Practice

Limited scope representation (sometimes referred to as "unbundled legal services") may not be THE next big thing in law practice, but it is certainly A next big thing.  It's an opportunity waiting to be seized by current and future attorneys, IF we are astute enough to make it happen.
Like many things that affect the business of law, we will not be helped by ANY of the entities that ought to be helping.  We will not be helped by:

-  Law schools
-  The Judiciary 
- The organized bar
-  Legislatures at any level
-  Most of our colleagues

None of these entities care much about helping lawyers in practice, including the legions of unemployed and under-employed new attorneys.  Lawyers in their own practices all know that none of those entities actually help lawyers in practice.  They mostly pay lip service to helping "the profession" and "the public".

The really sad thing is that encouraging limited scope representation would benefit vast numbers of middle and lower income citizens, whose need for legal services is grossly underserved.  

Large new players (notably LegalZoom and Avvo) have entered the market for these underserved citizens, using the disingenuous phrase "access to justice" to describe their offerings.

There is undoubtedly a gap between legal needs and the perceived availability of legal services.  Sometimes there is truly a gap between what is needed and what potential clients can actually afford.  Purveyors like LegalZoom and Avvo attempt to commoditize various services, make them "affordable", and therefor appealing.

What they are actually doing is "unbundling" various legal services and offering "limited scope representation".  They are stepping in and filling the gap between what is needed and what is perceived to be available.

Can private lawyers offer AFFORDABLE legal services?

YES, but only IF they define what the different services are, make clear what they are going to do, and make the pricing for the various services CLEAR.

Doing or not doing this is a choice.  Lawyers have traditionally and collectively decided not to do this.  And so, we have this paradox:  While the law schools and bar associations scratch their heads in wonder over the declining "job market", there is a HUGE demand for legal services of all kinds.  This is an entrepreneurial opportunity that is lost on those who think law is about "jobs".
Law practice presents great opportunities for the entrepreneurially minded.  For "employee mentality" however...not so much.
In many parts of the country, local bar associations are belatedly recognizing the potential benefits to the public in unbundled legal services.  New York is woefully behind in this, though there was recently a barely publicized symposium about this.  The only concrete action to come from this was support for government funded legal access programs and law school clinics like "lawyer for the day".
When I suggest features of limited scope representation (document prep OR for appearing in Court on a one-time basis,) to experienced practitioners, they often express the fear that "once you file an appearance you are IN the case".  I understand the fear.  Would most Judges (or court clerks) permit an attorney to file a limited Notice of Appearance?

Probably not, but any potential problems with this could be easily solved.  The reason they would discourage it is the potential inconvenience to THEM.  Yes, sometimes there will be a client who doesn't understand the limitations of such an appearance (as much as it might be clarified or explained or written).  

The upside to clients and the courts would be massive.  Legions of pro-se litigants (as exist in Housing Court, Family Court, Surrogate's Court, Civil Court and in immigration matters) are detrimental to litigants and the court system.  

I don't think it can be argued that clients do better when they are represented as opposed to pro-se.  There is value in what lawyers can do in a court setting, both substantively and in the harder to quantify aspect of understanding and peace of mind.

Would clients pay a fair price for such value?  I'd guess yes, and it is certainly going to be worth the effort to find out.

I tend to advocate for practicing lawyers first.  Hey - we have an interest in this too!  Can there be value to lawyers in limited scope representation?  YES, but only IF....

- We clearly and logically price our services.

-  We work efficiently.

-  We offer true value, presented with clarity and transparency.

-  We make our services known to the potential clients.

In other States where unbundled legal services has been encouraged, an interesting thing happened....MANY times when a limited scope appearance didn't finish a matter, the client hired the attorney to complete the case.

It's pretty clear why that happens:  Client realize the actual value the attorney provides.

We ought to recognize our real value too!

What LegalZoom is Telling Us (Solo and Small Firm Attorneys)

Back in September I attended the fantastic Clio Cloud Conference in Chicago. I mention it because one of the keynote speakers was John Suh, the founder and CEO of LegalZoom.

When I noticed this, I approached someone I knew at Clio and said, “Really?!? You are having the LegalZoom guy speak to a group of practicing lawyers?”

His response was, essentially “Barry, you are not the only one asking about it. I suggest you keep an open mind and hear what he has to say. You may find it interesting.”

LegalZoom CEO John Suh told us that LegalZoom’s plan was/is on 3 levels. Most lawyers are familiar with level 1, where they provide legal forms for a certain segment of the potential client world.  He repeatedly used the phrase “access to justice” to describe the problems facing the consumers LegalZoom is trying to serve.  

His analysis goes as follows:  For people in the top 1% of income, where money is no object, they can and do get top quality legal help.  Then there is the bottom 15% of income, which LegalZoom wants nothing to do with (I guess these poor people should get their “legal services” from the government, or go unrepresented.)   So much for “access to justice”.

Then there is the 84% of "middle income" people (16-99% of income), who he says don’t have “access to justice” because most lawyers are not prepared to provide this in an affordable way.

LegalZoom’s second level of service was/is to supplement their forms with the ability for their customers to call a lawyer at LegalZoom for help with the forms. Yes, sometimes the law involves more than filling out forms.

At the third level, and what LegalZoom is rolling out next, is a widespread pre-paid legal plan. They intend to have the largest and most expansive pre-paid legal plan in the history of civilization. I know this must be big because they advertise on my favorite show, Shark Tank.  Under these plans the customers would be billed monthly and can then obtain legal advice from attorneys who participate in the plan. This will be a great thing for attorneys, Suh claimed, because it will create 20-30,000 new legal jobs.

He then continued that of course, for this to work, the legal services would have to be at the highest possible level, and the attorneys would have to be well vetted and subject to ongoing review by the customers. And if the attorneys don’t pass muster, before or during their involvement, they are out.

LegalZoom has "done studies" of attorneys and work quality and efficiency. Suh summarized his findings this way…

Big law firms are pretty efficient, with their attorneys working at 75% efficiency. That is, they spend 75% of their working hours doing actual legal work for clients.  Their quality is good and they use technology relatively well.

The most efficient firms are those numbering between 10-20 lawyers (“boutique" firms), who spend 80% of their working hours doing actual legal work.  Boutique firms are also more efficient because their lawyers tend to be “in their prime” (ie – no newbies and no dead wood older partners). These firms tend to use the newest technologies most efficiently.

The least efficient lawyers are the solos and small firms. According to Suh, they/we work at 40% efficiency. We spend only 40% of our time doing actual legal work for our clients.  We often focus on several areas of law and are not at a high level on any particular one.  And, we are behind on technology.

LegalZoom’s plan is to use boutique law firms for their pre-paid legal plans. The 20-30,000 new legal jobs are going there. They expect to pay the boutique firms well, in the realm of pre-paid legal, and for the firms to accept way less than their usual hourly in exchange for volume (and prompt payment) from LegalZoom. Will that work?  Time will tell.

John Suh made it clear that this pre-paid legal opportunity, and the legal work and income related to it, will NOT be made available to solos and small firms. He said solos could not stand up to the vetting and review process. He said we would not be able to serve the pre-paid legal clients well because we could not be counted on to be there, and to follow up, and to work efficiently.

He said it. I was there. There was a gasp in the room....though maybe it was just me.

At first I couldn’t pinpoint what was so upsetting about this. But then it struck me…

HE IS RIGHT!!! But also very wrong.

He is right that….solos are not as efficient in our work because we spend time on marketing, and billing, and collections, and evaluating new matters, and personnel issues, and all the other things that comprise being in practice.

He is right that….we sometimes venture outside our best practice areas.

He is right that….we are not all/always on the cutting edge of technology.

He is right that….it would be difficult to guarantee all-day availability for calls from pre-paid legal clients at a reduced hourly rate.

But he is WRONG (and disingenuous) when he talks about an access to justice problem for middle class people.  

He is WRONG to throw a blanket over the 16-99% income levels, as if people across the entire income spectrum have the same legal needs and the same issues about access to legal services.

He is WRONG if he thinks good clients want to commoditize legal service and get it through a monthly plan. Good clients don’t want that…they want their own lawyer, who they can talk to about the specific matter, and who knows them well enough to offer contextual advice. 

I don’t know if he thinks small firms and solos are destined to remain inefficient, and unknown to the many clients who should be able to find them. But if he thinks this, he is WRONG.  

This is NOT an "access to justice" problem.  It is a disconnect between the clients' actual needs (quality, affordable legal services) and our ability to provide this AND make the value of our services known to the optimal clients.

WE (solos and small firm lawyers) should be serving this market WAY better. We are uniquely qualified to do this IF/WHEN we up our game. Our fees should be commensurate with real value, that clients can see and understand (and appreciate).  Clients want and deserve personalized legal services.

Good lawyers want good clients, and this means way more than "people who can pay".  Good clients realize that legal service is not a commodity, that there is more to quality than cost.  They understand that legal issues exist in a larger context.  They understand that when a valuable service is being provided, reasonable and appropriate fees will be charged.  Good clients appreciate the value that a good attorney brings to a situation.

As a solo lawyer, I never minded that LegalZoom was doing the forms and advice thing.  One simple reason for this….I didn't want these DIYers as clients anyway.  Ironically, sometimes they end up being clients on larger matters, after the DIY documents, done on the cheap, blow up on them.  Even then, they still are generally not great clients.

I don’t think most legal issues can be resolved with some “access to justice” in the form of a consultation with a lawyer on a pre-paid legal plan.

I don’t think quality clients want their lawyer through a pre-paid legal plan. But they want their lawyer to be great, and responsive, and transparent, and to charge fairly.  Can we solos and small firm lawyers honestly say we are doing this?  If we are not, we better improve.  

We then have a bigger challenge:  Making sure our best potential clients know what we offer and how they can work with us.

With cudos to Jim Ignatowski, who gave me inspiration in a memorable Taxi episode, I will say the following.....

We solo and small firm lawyers will address these issues by making the value of our services known to clients who want and need us........OR FAIL TO DO SO!!!!

Cone of Silence

I'm proud to say that sometimes I resort to unusual methods to solve a problem.

Recently I had two people in my office who were involved in a difficult estate situation.  They were united in interest, to a degree.  They were two of five adult children who had inheritance rights.  The guy was the Executor and a one fifth beneficiary.  The woman was his youngest sister, also a one fifth beneficiary, who was living in the late mom's house.

I knew the Executor was under a lot of pressure from the other siblings to "get her out of the house and sell it".  They weren't wrong, but he had never been firm with his baby sister. 

When they came in she seemed quite comfortable with the situation as it was, and thought we were there to discuss how we (she, brother and I) would deal with the others.

I didn't like thinking that brother wanted me to do what he should have done, but I could understand his reluctance.  His sister was fragile and he cared about her more than the sibs cared about her.  He knew he should have been clear with her before, but he hadn't done it. 

It's kind of stupid to have a meeting where the most important issue is not discussed.  I tried to get him to say what needed to be said, but he wouldn't (or couldn't) do it.

After awhile I said to them "You know, this may be a situation where I want to use the Cone of Silence, do you know what that is?"  They did.  She said "It's that thing Maxwell Smart wanted to always do when he talked the The Chief".  Yup.  If you're not familiar, here's a Youtube link https://www.youtube.com/watch?v=vsNR9FnxOdY.

I said to her "What I always found funny about the Cone of Silence is it doesn't really work because other people can hear, but Maxwell Smart felt he could talk openly in there.  If we use the Cone of Silence, I will speak openly about some important things.  Are you OK with that?"

"Sure"

"OK" I said. I am activating the Cone....and I made some mechanical sounds and some hand motions to indicate we were in the Cone of Silence.

I then looked her in the eye and said "Now that we are in the Cone of Silence what I want to say is this....While your brother does not like the way the others are acting, he very much wants you to leave the house.  He doesn't want to have to evict you, and he has been praying that you don't force him to do that."

Then I stopped, slowly raised my hands to indicate that the Cone of Silence was lifted, and said
"The Cone of Silence is off now."

He was crying.

She finally understood.

It Took Me 33 Years to Realize (and Accept)....

That clients are very often people who have "problems".

Now, you might say "What kind of idiot are you that it took you 33 years to figure that out?"

I always knew problems were the driving force bringing people to my office and perhaps into Court.  If there weren't legal problems there wouldn't be much business.

What it took me time to realize (and even longer to accept) is that the genesis of many problems are the personality problems of someone in the case (often the client but not always).

What kinds of "personality" problems generate a lot of legal problems?  Let me count the ways....

- Narcissism - people who only care about themselves and cannot see things from any other point of view. 

- Closely related (and very dangerous) are sociopaths.  I've been involved with a few of these.  Their personality disorder tends to get them involved in legal matters.  In lay terms we can call them evil and manipulative.  The first time I realized I was involved with someone like this I did some research.  The best and only advice I found was "undo your involvement with such people".  Thanks.  I'll remember that....next time.

- Immorality - Many people's moral compass consists of what they can get away with.  Maybe I was naïve but I used to assume people knew right from wrong.  Now I assume they don't and hope to be surprised.

- Inability to communicate.  Some people have no trouble communicating to me what the facts and issues are..  But they are often not able to communicate in a meaningful way with the other parties.  Often the adversary has the communication issue, but many times I have wondered whether a little more effort by my client might have enabled an early resolution.  I used to ask whether my prospective client had tried to "have a cup of coffee" with the other side, but 1,187 times in a row the answer was "no" so I don't ask this any more.

- Stupidity and/or lack of sophistication.  With intelligent clients we can explain the issues, and the inter-related possible paths things could follow, depending on....whatever.  Sometimes though, you can lay this all out and the client asks "So, do you think we will win?"

- Pathological abhorrence of paying for anything (especially legal services).  There is no fancy name for this, but maybe there should be.

In practice, we spend most of our time dealing with our clients and their cases.  Their personalities and proclivities are part of our life.  Spending our time and interacting with narcissists, sociopaths, greed, immorality, stupidity, cheapness, and personality flaws in general, can be draining.  It can make you hate what you do.  Pretty sad, but don't we all know people like that?   Haven't we all felt that way?  We are destined to repeat these unhappy experiences.....

UNLESS - we are willing to leave judgments behind and ACCEPT that if we accept these clients and their matters, we may as well accept them as they are.  Maybe even appreciate them.

Accepting their matters, or rejecting them, is OUR CHOICE. 

At a certain point I chose to reject certain cases and certain types of clients, or even cases where one of the adversaries was a certain way.  I am entitled to make that choice.  So are you.

Sometimes our greatest strengths (being compassionate and understanding and smart) turn out to be our undoing.  We end up trying to fix the people rather than solve the legal problem.  We end up trying to help in ways that cannot work.  It's a formula for failure regarding the results, but more important, it's a formula for our own unhappiness.

If you choose to not be involved, be clear and know you are protecting yourself.

If you choose to be involved, accept who you are involved with, and work with who they are, instead of getting angry that they are not who you would prefer them to be.

(Y)OUR CHOICE

Your Best Friend

Law practice is a business.  Make no mistake, it is a TOUGH business.  This doesn’t mean you have to be an insensitive lout to succeed, but you should to be AWARE of many things, such as…

The clients are not your friends. 

You can like them, you can care about them, you can empathize, you can feel their pain, and you can put your guts on the line for them, but they are not your friends.  The clients may even like you, but you are not their friend.  They want you to be a professional who works on their behalf.  They have a right to have expectations, and you have a right to look out for yourself.

You have a right to be treated with respect, to be told the truth, and to be paid in accordance with your fee agreement.  Sometimes these things don’t happen, and you have to look out for yourself.  How?  By being clear and direct when there are issues between you and the client that need to be addressed.  Clients often cannot address these issues with clarity and directness, nor should they be expected to, because they are your client, not your friend.  You are the professional, you have to be clear and direct.

The Court system and the Judges are not your friends.  You can and should respect them but you should know where they (and you) are in the scheme of things.  When you interact with them, you are in a business that requires you to serve your clients, and look out for yourself.   Who are the Judges and people in the Court system?   Are they in a business, like you?  Hardly. They are civil servants on a fixed salary.  There, I said it! 

When you make work for them they don’t like you.  They MIGHT care about people like your clients, but they might not.  They don’t want to take sides or ever be perceived as doing so.  SO, unless and until you put something in their face that forces them to care, they don’t care.  Often, they “care” only to the extent you have made them have to work.  This is often a big shock to clients, who think that when a case gets filed in the Court system, “the Judge” knows about it (they usually don’t), and that upon the initial filing they are interested (they aren’t), and that the Judge will somehow become “pro-active” based on seeing the merits of your client’s position (which almost never happens).

In reality Judges want the cases to be resolved without having to actually decide them.  When cases are being discussed in Court, the Judges and court personnel routinely refer to settled cases as “going away”.  As in “what would it take to make this go away?”  Clients don’t know that the Court talks about the cases this way, but they do. 

The Judges and Court system are not your friends.

Your adversaries are not your friends.  Sometimes a little dance happens in contested civil matters.  You need to negotiate on behalf of your client, with your adversary who is acting on behalf of his client, and lo and behold, you get along with your adversary.  I’ve become friendly with many lawyers who I first met as adversaries on a case.  It makes sense….I have more in common with them than most people I would meet.  The thing is, when you are involved in a case with them, they are not your friend.  (Paradoxically, sometimes your attorney adversary is indirectly your client’s best friend, because they are the only person who can convince your client’s adversary to do what is right)

In practice, while being aware of who your friends are (and aren’t), you have to continually do the three things that comprise a law practice (or any business):

Get new work

Do the work

Deal with the money.

Friendship has NO ROLE in any of these items, the essential elements of your practice.

Here’s what many of us do.  We are friendly, because it’s EASY and we are NICE. 

But if that causes you to not be attentive to getting new work, or doing existing work, or getting paid…

Then you are being awfully unfriendly to the person who should be your best friend…

YOURSELF

P.S.. – You can and should be friendly to yourself, and friendly to others.  You can even act friendly and with compassion towards people who you realize are “not your friends”.  Just remember to care about you.

Law Practice (and other business) Fundamentals

Due to deep seated psychological reasons, which years of therapy have not remotely addressed, I always believed 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 (or more) of these issues.  All these issues can be addressed and improvements can be made.  This is a matter of clear thought, action, assessment, and adjustments.  All the things we all know and sometimes even do.

The BIG challenge is to work all three elements simultaneously.

Most new law practices consider themselves initially challenged with Item #1.  I maintain this is easily overcome, and once business is brought in, the challenges of #'s 2&3 will present themselves.  Of course, once we are working really hard (probably too hard because we half didn't expect to succeed at #1), the inclination is to stop getting new business and/or lose track of financial issues.  After all, we are SO busy, so things must be OK.

Then, after we do all that work but the bottom line doesn't measure up, we focus on that.  And fall behind on the actual work, and of course, still no time to go back to #1. 

So then, we work on #3 and chase down some money, but we have no new business, and so we begin the treadmill again.

Try not to do this.  Or shall I say....DON'T DO THIS!!!!

These things are all related and inter-related. 

When you market and network, have systems in place to handle the work efficiently.

Make good decisions on which matters to take (and reject) and think about the fees and billings and collections at the outset.  Money problems generally arise out of defects in #'s 1 & 2.  (We market for or accept unprofitable matters or we work inefficiently)

Law practice (or any business) requires seeing all 3 elements, and addressing them consistently.

Probate Complexities: Part 1

In the last post I set forth what an ideal (easy) probate would look like, noting that varying a few factors can add serious complexity.  Here are a few variations and how they play out:

- A Will that is not attorney prepared and/or supervised.  These can be harder to probate because of certain legal presumptions.  When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done.  This can be overcome, but the burden is on the potential objectants.  It is a heavy burden. 

On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution.  This is a heavy (and dangerous) burden.  It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).

Nobody can actually remember this stuff.  When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.

Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will.  They now have a burden they would not have had if they had used an attorney.

To be clear on this....the above refers to the actual Will execution.  Other grounds that someone might have to object could still be pursued.  That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.

2.  Two witnesses and a witness Affidavit.  The law in NY is TWO witnesses.  Not one.  Not one plus someone who is also a beneficiary.  Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will.  This essentially says they were there, they signed, and everything that was supposed to be done, was done.  It saves everyone from having to locate the witnesses years later.  It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.

This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step.  Very bad.  Very inconsiderate to the people trying to probate the Will later.

3.  We only have a copy of the Will, not the original.  This can be a BIG problem.  You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome.  There must be testimony regarding what happened to the original.  And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!!   You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible.  Probating a copy is very high pressure and stressful because many things can go wrong. 

This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be. 

Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive.  It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.

Next post - More probate complexities.

Probate "Complexities"

To understand things that would add complexity to probating a Will, it is useful to look at what an ideal (and easy) probate looks like.  The complicated situations occur when one or more of these simplifying factors are missing, or when some troubling variation is in play.

In an ideal situation, we have the following:

- An attorney prepared and supervised Will.
- Two witnesses have signed the Will, and also signed a Witness Affidavit.
- We have an original Will, not a photocopy.
- There are no corrections, deletions or alterations on the Will.
- The staples have not been removed.
- We know who the distributees (people who would inherit if there were no will) are, and we know where they are.  AND, even better, they will sign a Waiver.
- We have a Will that names an Executor and that person is alive, willing to serve, and doesn't have anything about them that would prevent them from serving.
- The Will doesn't do anything that would tick off an interested party.
- The terms of the Will are clear and easy to understand.
- The person's non-probate assets (i.e. - accounts with beneficiaries, life insurance policies or jointly held real estate) are distributed consistently with the apparent intention of the Will.
- There isn't a spouse  being cut out in the Will (thus triggering a right of election).
- The death certificate lists an address in the County you think it should.
- There aren't big creditor claims, or Medicaid liens, or open taxes (or years of unfiled taxes when they should have been filed)
- We know what the assets are and where they are....and nobody has been plundering them with a power of attorney.
- The person did their Will a few years ago (as opposed to a few days, or hours, before they died)

Contrary to what many people think, most Wills fit the profile above.  Things need to be done, and they can be easily done.

Of course, there are many situations where one or more of the above complexities are in play.  They can all be addressed, but they take some know-how, some expense, and some time. 

These issues are precisely the reason why I cannot answer the question "How much do you charge to probate a Will?"  I answer that question AFTER I know about the existence, and extent, of the complexities. 

Next post - How do we deal with some specific complexities?

Probate - The Non-Dirty Word

The word "probate" is often tossed around as something to be avoided.  As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.

On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.

But what is actually being avoided?  Is avoiding it worth the effort?

What is probate, actually?

In New York, probate means that a Will has been recognized by the Surrogates Court as proper.  The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called "Letters Testamentary".  That is the Executor's proof that he/she has authority to act on behalf of the Estate.

When there is a Will, in order to transfer any asset that was owned in the name of the deceased person, you need Letters Testamentary.  This applies to bank and brokerage accounts, real estate, co-op apartments, and any other assets.

If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account?  Nope.  The bank will tell you to come back with Letters Testamentary. What they are really saying is "get the will probated".

Probating a Will is a Surrogate's Court proceeding.  The specific facts and circumstances will determine whether it's simple (and many times it is) or complicated.

I've heard people say that many procedures were "invented by lawyers to make things complicated so lawyers can make money".  I see it quite differently, and I would summarize the need for these proceedings as follows:

"There is no end to the creativity and deviousness of some people when it comes to not doing what is proper, ethical, moral and legal.  The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit.  Related to that is sometimes it's just not clear that the "Will" in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)" 

Since there is no way for the Court to know in advance whether a particular Will has "issues", all Wills have to follow the procedures.  That being said, VERY often you can identify the interested parties, they can all sign a "Waiver and Consent", and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.

Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous.  If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will?  Certainly, but we lawyers didn't create a system to encourage that.  Personally, I'd rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases.  But hey, we can only play the hands we are dealt.

Probate is not a dirty word.  It's a necessary proceeding so that a Will can be carried out.  Next post, issues that can arise which may add complexity.

More "Little Things" That Affect Probate

The more one practices in a particular area, the more "little things" one encounters.  Some of them hardly ever happen, but surprisingly, some are quite common.  All these little things affect how the case proceeds, how much work the attorneys have to do, and how long the matter may take.  Here are just a few "little things"....

1.  Sometimes a person has a right to inherit, but before they receive their inheritance, they die.  We call these persons "post-deceased".  A post-deceased person does not lose their rights, their estate has whatever rights they would have had.  In Surrogates Court, an "estate within an Estate" is quite common.

2.  What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding?  Same result as above, their estate must be notified.  Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate.  Very frustrating.

3.  A person cannot serve as a fiduciary if they were ever convicted of a felony.  I once found out my client was a felon after I had gotten him appointed.  While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment.  I was called in and asked about it, so I had to testify about what I knew and when.  Not pleasant, and fortunately no repercussions, but a lesson learned.  Now I always ask.  Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago.  I told her I was sorry, but I could not file a probate petition for her.

4.  What if someone was a convicted felon but has a "waiver of civil disability" from a court?  I once had this situation, where my client was opposing the person being appointed.  In such a situation it is discretionary, and the Judge appointed this low life (my opinion).  Now we will end up fighting during an accounting proceeding because this person has acted quite badly.

5.  What if inheritance rights depend on establishing paternity?  I've been involved in quite a few of these.  There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases.  Complicated stuff but very interesting.

The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE.  Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.

Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play.  When it does, it's nice to know a lot of little things.

10 Year End Law Practice Observations

As the year ends we often reflect on the state of our practice.  When we do this, we are really looking at three things:

- How/what have we been doing?

- Where are we now?

- Where do we want to go?

Here are 10 observations gleaned from opening my own practice right out of law school, and still going at it 32 years later: 

1.  Clients are in your office because they need help solving a problem.  Thus, by its very nature, law practice involves dealing with people who have problems (on many and various levels).  If you don't like this, things will be rough.  (Note - it took me a long time to figure this one out)

2.  To do lists are OK.  Way better is a prioritized list where item #1 gets finished.

3.  Making good referrals is a win-win-win (for you, the referred attorney, and the client).  Commit to making more excellent referrals.

4.  If you have matters where you should be billing, BILL and follow up.  Not everyone has a problem with this, but some do.  If this is you, commit to improving.

5.  If you have a list of things you SHOULD do, notice how often you say this and how you are short-changing yourself.  If you say you should have a better website, or a blog, or a practice management program, start DOING IT!!  Related to this is:  If you need help, get help.

6.  If you have cases where you know you should end your involvement, take action.

7.  Recognize that even if you made some bad decisions last year, you made a lot of good ones.  A collective pat on the back is in order.

8.  While you are waiting for you career to get going, in reality it is already happening.  

9.  Knowing that you can refine how you define (yourself) is very empowering.

10. As tough as law practice can be, when you look back and are able to say "What a long, strange trip its been", you will smile and know that it was worth it.

Happy holidays and New Year to all!!!

Important "Little Things" That Affect Probate

When we "probate" a Will, we are having the Court recognize it as official and proper.  The Court then grants "Letters Testamentary" to the Executor, so they have authority to act.

When starting out with a probate proceeding, there are certain things to determine right off the bat.  These are important because they determines how simple or easy your proceeding is going to be.

Here are 3 important ones:

1.  Does the Executor have the ORIGINAL Will.  This is very important, and quite frequently clients come in and all they have is a copy.  Copies can be probated, but it is much harder.  When the client doesn't have the original, serious efforts must be made to locate the original.  Some of the places I suggest the clients look are:

- The decedent's papers and records.  They usually say they looked.  I suggest they look again.
- Safe deposit box.  If the decedent has one, very often the Will is in there. Getting it out after the person has died takes some legal work.
- With the drafting attorney.  I don't generally hold original Wills, but many attorneys do.  I suppose it increases their chances of getting the probate. Anyway, sometimes we have to extract the Will from the drafting attorneys, and sometimes it's a royal pain.  What if they died?  Moved?  Lost it?
- On file with the Court.  Many lawyers don't know a Will can be filed while a person is alive.  I've done this a few times, usually when I am concerned that an angry relative might get access to the decedent's Will and destroy it.
- In the possession of another family member.

2.  Did the witnesses execute a "witness affidavit"?  A will does not have to be notarized.  The legal requirement is that it be "signed in front of two witnesses". However, best practice for will execution is to have the Will signed in front of two witnesses and then have the witnesses sign an Affidavit, attesting that everything was done that needed to be done.  When this Affidavit is with the Will, you don't have to locate and contact the witnesses.  When the Will doesn't have the witness affidavit, and you want to probate, you have to find the witnesses and get them to sign an Affidavit.  What if their signature is illegible?  What if they died?  Moved? Don't remember anything?  I've encountered all of these.  Generally the problems can be solved, but it's much more work!

3.  Can we identify and locate the "distributees".  These are the people who would inherit under intestacy.  In a probate proceeding you have to get jurisdiction over them, as they are the only people with standing to contest the Will.  It's difficult when you (or the client) don't know who they are and/or where they are.  Also, sometimes these people present other problems.....dead, missing, mentally incompetent, incarcerated, questionable paternity, etc.  A drafting attorney should obtain this information, and press for it even if the Testator doesn't want to give it. This saves a ton of trouble and expense later.  When analyzing a new probate, the first and most important issue is always "what will be involved in getting jurisdiction?"

Sometimes potential probate clients ask "How much will it cost to probate a Will?" I would not offer a quote without at least inquiring about the these important "little things".

10 Things Many Lawyers Don't Know About Surrogates Court in New York

Many lawyers deal with Surrogates Court only peripherally.  Questions about estates and Surrogates Court come up often enough that it is worth knowing the basics.  Here are 10 things worth knowing, even if you never set foot in Surrogates Court.

1.  The Surrogate Court Clerk's offices are broken down into departments:

- Probate (Wills and will contest issues)

- Administration (Appointment of fiduciary when there is no Will)

- Accounting (Issues concerning distribution of the Estate, a/k/a "fighting over the money")

- Guardianship (protection of minors, personally and financially)

- Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)

2.  In probate cases there is a presumption that an attorney drawn and supervised will was validly executed.  In a contest the burden of proof is on an objectant claiming improper execution.  A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution.  Sometimes this is a BIG hurdle.

3.  To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest.  VERY often proposed fiduciaries are not able to qualify for a bond.  

4.  If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain "preliminary letters".  It costs some money and requires a bond, but in the end it can save the Estate a lot of money.

5.  Contrary to what many clients think, death does not absolve an Estate from creditor's claims.  A fiduciary must address claims they know about or had reason to know about.  There are a lot of rules and caselaw on this, but the bottom line is fiduciaries do better when they address claims pro-actively.  There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.  

6.  When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer.  The contents are inventoried, and if a Will is found it is delivered to the Court.  If a box is being opened after a fiduciary is appointed, the bank officer should not observing. The fiduciary has a right to open the box on their own.

7.  Nothing substantive can happen on a Surrogates Court proceeding until "jurisdiction is complete".  This occurs when all the interested parties have either signed a Waiver or been served.  In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice.  This is true even if they are not named in the Will.

8.  Whenever an interested party can't speak for themselves (some examples are minors, disabled people, missing people, or "unknowns") the Surrogate appoints a "Guardian-ad-Litem" for them.  The Court fixes a fee for the Guardian after they file a report, and they are paid out of the Estate.  I've heard cynics question this, but in my view, this procedure is absolutely essential.  I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.

9.  Estates worth under $30,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA.  These are designed to be handled without an attorney.  Most clients can handle these on their own.  Such an appointment enables a person to collect up to $30,000.  However, they would not be able to sign a deed with this type of appointment.

10.  First cousins can inherit under intestacy, but generally they can't become fiduciaries.  In "cousin cases", the Public Administrator is the fiduciary.  These Estates ultimately become "kinship cases".  This is a fascinating specialty within Surrogates Court practice.

Sometimes Surrogates Court seems like it's own little world.  It has many unique rules and procedures.  All of these are designed to ensure fairness and prevent premature or improper distributions.  Once one gets the hang of it, it starts to make sense.  Most of the time, anyway.

Bad is Bad

Law "jobs" may be scarce, but for the entrepreneurial, there is plenty of law business out there. The skill that separates the successes from the strugglers, is recognizing and getting GOOD business, while simultaneously knowing and avoiding BAD business.  Growing a healthy law practice starts with hearing clients' stories, and making business decisions on whether they and their story are profitable business.

Bad business is bad because....

1. The time spent on bad business takes away from two important 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. Bad business 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 meet with it.  You travel to court for it and with it.  Still, it squeaks. You grease it enough, it starts to quiet down and move along.  Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason bad business is so bad.

3. You lost money.  All that squeaking, all that time, your time, and maybe you made $10 an hour. It happens, and if you don’t pay attention, it can happen a lot.  And, sometimes bad business gets quiet and slinks away without paying, or makes you chase the fees.  

4. Bad business produces bad karma. When you are a solo lawyer, your clients and their cases are your life (We'd all like to deny this, but it's true).  When you have cases, you always have a certain “mix”.  I realized this one day while talking to another solo.  We were having a “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today"?  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 start our calls with “How’s the mix today?”

5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, consider where that leads.

Here is my short list of bad kinds of cases, and the reasons they are bad:

a.  Residential real estate closings:  Very often these have low flat fees with no control over your time; plus clients who are generally not business people, suddenly under intense pressure.  

b.  Accident cases with minor injuries: You end up working your tail off, spending your own money, and the insurance company fights you.  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 squeaking.  I'd also add that, relative to time spent, the most profitable cases in the history of my practice were cases I referred out (and ethically participated in the fees)!

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 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 businessperson, 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. These transactions are WAY more complicated and difficult than you could imagine.  

f.  Any kind of case you don't know how to do really well, and that you don't have a lot of.

There are rationales and rationalizations for taking bad business.  I have heard (and acted upon) all of them:

- I'm building a client base.

- Small fees are better than no fees.

- I'm gaining experience and contacts.

- I'm not busy with other things right now.

If you think these thoughts, and it's natural to do so, at some point you will recognize the many flaws.  Hopefully this happens sooner rather than later.  

It's easy to market for, and get, tons 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.  This can and does happen, and on many levels can be an excellent result of learning the lessons of bad business.

  

Bottom line: bad is bad, but 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 right away, skip all this bad stuff, and go for good from the git-go. 

Comments are welcome!