October 25, 2010

Things They Never Taught Us in Law School: You Can’t Get Blood from a Stone

By: Marshall R. Isaacs

Law school taught me that there are two basic elements to any civil action: (1) liability and (2) damages. Unfortunately, my ivy-league educated professors were raised on a diet rich in Fortune 500 clients. If my professors had been able to peer over their bloated bellies into the pedestrian world of close corporations, they would have discovered a small but equally important third element which I refer to as “collectability.”

With small business squabbles rarely making the syllabus, most law students don't learn about about close corporations until stumbling across them in solo practice. What young litigators fail to recognize, however, is that close corporations are very different animals from the Coca Colas and Microsofts they learned about in law school. Litigating against a close corporation can be like petting an unfamiliar dog. The consequences are obvious.

For those lawyers who have never operated a business, a quick lesson is in order: Most small businesses are closely-held companies or “close” corporations. A close corporation is not a specific business entity such as a partnership or a sole proprietorship. Close corporation simply refers to a business with only a handful of shareholders, often family members.

The success of a close corporation can be wickedly deceptive. Many close corporations which appear to be booming, in reality, operate in the red. How many times have you walked into a bustling restaurant on a Saturday night and thought to yourself, “Wow, this place is making a killing!” That’s probably not the case. Consider the following:

• The restaurant’s owner doesn’t earn a penny until he has paid for his rent, electricity, salaries, liability insurance, large appliances (e.g. ovens, refrigerators), silverware, stemware, inventory, menus, telephone, legal fees, uniforms, furniture, health code and building violations, advertising, licensing fees, signage, employee benefits, cleaning supplies, pest extermination, accounting fees, plumbing repairs and decor.

• The restaurant owner probably pays 40% of his profits towards taxes and social security. Does he pocket some cash? Not so much these days with the prevalence of credit and debit cards.

• The restaurant is completely empty on weekdays.

• When the owner isn't around, the restaurant’s bartender lets all of his friends drink for free.

• Restaurant owner’s credit is bad so he can’t get a bank loan; Restaurant owner doesn’t qualify for stimulus funds.

• Beyond his expenses, the restaurant owner still has to feed his family, pay for his kids’ private school tuition, put gas in his Beemer and cover the mortgage and balloon-payment on his depreciated mini-mansion.

In the end, many seemingly successful entrepreneurs have little or nothing. And that little or nothing gets stuffed into a plain white envelope and locked up in a dresser drawer.

What can we learn from this scenario?

If you represent a plaintiff against a close corporation and the claim is not typically covered by insurance, there may very well be no pot of gold at the end of the rainbow. Don’t automatically assume that defense counsel is bluffing when he tells you, “Sure, my client screwed your client; but where are you going to get your money from?”

You might be tempted to respond, “If the Defendant is broke, how is he paying you?” Yet, this is another misguided assumption. For example, some of my clients are friends, family or former clients whom I defend for little or nothing. Other clients can afford to pay me just enough to string the case along until they can afford to settle or until Plaintiff has died, moved away or thrown in the towel.

So how can you determine whether a defendant is broke or just bluffing?

1. Hop onto Westlaw. Westlaw has a wonderful public records database which allows you to access lawsuits, judgments, liens, bankruptcies and corporate records. Ask yourself: Is the defendant involved in multiple lawsuits? Are there unsatisfied judgments or tax warrants against Defendant? Are any of Defendant's properties involved in foreclosure proceedings? Is the defendant’s business well-established or is it new? Has defendant operated under a number of other corporate names in the past?

2. Perform a Google search. Are there negative reviews, comments or complaints about Defendant on the Better Business Bureau’s website, on RipoffReport.com or in someone’s personal blog?

3. Trust your gut. If it waddles like a duck and it quacks like a duck, it’s probably a duck.

4. Write a CYA (Cover Your Ass) letter. Write a letter to your client outlining your findings and advising that litigation may result in nothing more than a paper judgment. If the client insists on proceeding with the lawsuit, ask the Client to confirm his or her decision in writing.

5. Get out while the getting is good! Even when my clients chose to proceed, I generally opt to reject the case or ask to be relieved from pending litigation. In my opinion, paying for a paper judgment is like spending the day feeding dollar bills into a Skee-Ball machine only to be rewarded with a cheap plastic key fob.

Liability and damages are important but they don't mean anything if, as is frequently the case in this economy, a judgment isn't collectible. Do your research, litigate responsibly and never squander your client's precious retainer fees when it appears that you may be trying to get blood from a stone.

July 27, 2010

WestlawNext Review: Google for Lawyers

By: Marshall R. Isaacs

A few weeks ago, I received a phone call from my Westlaw representative, Laura. I picked up the phone and instantly responded, “I’m not interested…I have that book already.” However, what Laura had to offer was something revolutionary. For those of you who don’t know me, I've used the adjective revolutionary only twice in my life, the first time to describe the internet and the second time to describe internet pornography. WestlawNext is revolutionary.

Don’t get me wrong, I loved the old Westlaw. But I loved it in much the same way I love my boisterous, alcoholic uncle. When he's drunk, he's in his "natural language" phase and won't shut up. When he's hung-over, he's in his "terms & connectors" phase and won't give me the time of day. Fortunately, Westlaw appears to have completed its twelve steps and is now clean and sober. Like Cassius Clay, the new Thompson Reuters product has found religion, taken on a new name and is poised to capture the title in the legal research arena.

Having used WestlawNext for a few weeks, the simplest way for me to describe it is, “Google for Lawyers.” The days of terms & connectors and natural language queries are over. Now you can plug in anything; a word, a citation, a key number, and WestlawNext will list the most relevant results. You are no longer tasked with selecting databases; WestlawNext automatically categorizes search results by caselaw, statutes, treatises, forms, etc. According to Thompson-Reuters, WestlawNext employs a new algorithm which increases search efficiency by an average of 64%. Wary of statistics, I decided to put WestlawNext to the test. My name appears in four reported decisions so I plugged the words “Marshall Isaacs” into WestlawNext’s search box. WestlawNext displayed 31 cases. My cases came up as result numbers 21, 23, 26 and 30. When I performed the same search in the old Westlaw using natural language, I didn’t come up until result number 43. My test may have been somewhat unscientific, but I certainly found what I was looking for more quickly using the newer product.

My older colleagues will also be delighted to learn that Thompson Reuters has made the once onerous task of Shepardizing obsolete. Negative treatment, case history and citing references are now conspicuously identified in tabs at the top of every case.

The pièce de résistance, however, is that WestlawNext now operates like a Microsoft Office product. You can create folders in which to save your research, highlight relevant paragraphs and tag cases using a post-it-note-type feature.

Many of you no doubt want the answer to the 64 million dollar question, “How much more does it cost?” Of course, the answer depends on the amount and type of services you order and the number of users. WestlawNext costs my office roughly 33% more than Westlaw. However, I was pleasantly surprised to discover that my new package comes standard with a handful of useful databases such as New York Jurisprudence and New York Business and Legal Forms which would have increased the price of my old Westlaw package by far more than 33%. In short order, WestlawNext is a bargain for a litigation practice like mine.

June 21, 2010

Dear Michael Getnick, Don't be a "Gray Davis"

By: Marshall R. Isaacs

U.S. News and World Report and Best Lawyers magazine are planning a joint-venture to rank law firms. In response, New York State Bar Association President Michael Getnick has cast his vote to adopt an American Bar Association resolution to examine the magazines’ efforts.

Mr. Getnick: I applaud your call to action, however, you are headed in the wrong direction.

To quote our State’s highest Court, “The Legislature has delegated the responsibility for maintaining the standards of ethics and competence to the Departments of the Appellate Division (see, *** ** Judiciary Law § 90[2].” Wieder v. Skala, 80 N.Y.2d 628, 609 N.E.2d 105, 593 N.Y.S.2d 752 (1992).

The ranking of one law firm above another is effectively a determination that the lower-ranked is less competent. Such a determination can only be made by the Appellate Division. The magazines have no business ranking lawyers. And that’s that.

Perhaps I’d understand if the State or Federal Government were considering such a measure. But we’re talking about the guys who write the stuff you read while sitting on the toilet. Actually, most people I know would reach for the People magazine with the soiled cover before grabbing the mint-condition Best Lawyers.

ABA President Carolyn Lamm, also missed the mark. According to the ABA Journal, she urged the House to table the measure, saying it may violate existing law such as the First Amendment.

Now, I’m no legal scholar, but a brief review of her BarBri notes should have allayed Ms. Lamm’s fears: For commercial speech to be protected under the First Amendment (1) it must not be misleading and (2) it must not conflict with a substantial government interest. Lorillard Tobacco v. Reilly, 533 U.S. 525, 121 S.Ct. 2404.

The Magazine’s rankings clearly conflict with the Appellate Division’s interest in determining competence. As for the second prong of the test: How can a lawyer ranking system be anything but misleading? Law firms are so incredibly diverse in practice concentrations, geographic location, clientele, size and experience that ranking them would be akin to ranking people. Our legislature tried that once. If history serves me right, it didn’t work out too well. The result of the rankings were such:

1. Whites
2. Blacks

Clearly, we can’t ignore the magazines’ intention to rank law firms, as Ms. Lamm would have it. The results have potential to spark their own, miniature civil war. But we shouldn’t be dignifying their efforts either.

Didn’t it occur to anyone present at the meeting that the whole idea of ranking law firms is just plain wrong? Didn’t anyone consider that the magazines might be overstepping their bounds, even potentially committing a criminal act? Had I been at the ABA’s meeting, I would have demanded we pass a resolution requesting the Attorney General to look into some form of injunctive relief or charges of obstructing governmental administration.

Moreover, why waste valuable resources on an investigation? If you are one of the fourteen people who’ve read my article “Apparently Bigger is Best,” you’d already know Best Lawyers’ methodology: This year’s Best Lawyers are selected by last year’s Best Lawyers. And, by Best Lawyers' own admission, the lion’s-share of votes come from large law firms. So, in essence, we already know how the rankings will play out. They should look something like this:

Tier 1 Law Firms
Jones Day
Greenberg Traurig
Skadden Arps
Kirkland & Ellis
Sidley Austin

Tier 2 Law Firms
Getnick Livingston Atkinson & Priore, LLP

Unranked - Insufficient information available (i.e. Proceed with caution!)
Marshall R. Isaacs, Attorney at Law
Jane Smith, per diem attorney and single mother of two

Are we really to believe that Best Lawyers will scrap years of R&D only to spend a fortune developing a new model? Can a leopard really change its spots? You’d have better luck asking General Motors to make the Hummer eco-friendly.

Perhaps a second history lesson is in order. In the 1990’s Enron bullied California into deregulating its energy policy. When Enron stepped in and took over the reins, rolling blackouts ensued and California's electric rates soared. Small retailers were the hardest hit. Many were unable to keep up with their electric bills and were forced into bankruptcy. Another casualty of the crisis was California’s Governor, Gray Davis.

Dear Michael Getnick: Don’t be a Gray Davis. Show some spine. U.S. News and World Report and Best Lawyers are nothing more than wolves in sheep’s clothing. We small firms and solos rely on YOU to be our watchdogs and to protect our integrity. Please don’t let the magazines pick-off the smaller members of your herd.

May 17, 2010

Beware of CLAUDE: The Curse of The Contingency Fee!

By: Marshall R. Isaacs

The contingency fee is the bane of my existence. It’s been overused, abused and now mars my beloved profession.

Every day, I get calls from potential clients who are interested in my business litigation services. A typical call lasts about twenty minutes. I get the basic facts and determine if the case is a good fit. Then I quote my hourly rate. That’s where most calls end. The client was looking for a “contingency-fee lawyer.”

A few weeks ago, I got a call from someone being sued for a hundred thousand dollars or so. He asked if I could defend him on a contingency fee basis. When my momentary incredulity subsided, I knew it was time to write this piece.

Let’s be clear, the contingency fee is well-suited to a limited number of legal specialties such as personal injury and consumer collections. If you are using it otherwise, you’re probably doing yourself, your client and your colleagues a disfavor.

The contingency fee is perfect for personal injury. In personal injury, the attorney’s fee is generally secured by an insurance policy. When the case settles, the Good Hands People mail the plaintiff’s lawyer a check for thirty-three and a third percent. It’s a beautiful thing.

Volume consumer collections are also ideal contingency fee cases. Most collection lawyers handle thousands of cases for only a handful of clients such as medical offices or credit card companies. Each case is worth only a few hundred or a few thousand dollars. Collection lawyers work on the Pareto Principle or 80/20 rule. That is, they receive eighty percent of their fees from twenty percent of their cases. The remaining cases are usually negligible and, in the end, neither the attorney nor the client cares what happens to them.

The contingency fee is not, however, appropriate for the vast number of cases in which it is currently utilized. With few exceptions, no attorney should accept a contingency fee in a complex litigation against an uninsured defendant (“CLAUDE”).

The biggest problem is that no one has any money in this economy. Even then, money is incredibly easy to hide. Moreover, cases involving fraud, unpaid wages and breach of contract often come into being because the culpable party stole money or ran out of it. Thus, the attorney who accepts CLAUDE on straight contingency is likely excavating a dry hole.

A second problem is that defendants often interpose a counterclaim for tactical reasons. Even if frivolous, the unwitting contingency fee attorney suddenly finds himself working for free.

Finally, contingency fee plaintiffs tend to take advantage of their attorneys. As they are not being charged, contingency plaintiffs are undeterred from calling, emailing or visiting the office as often as they like, without regard for their lawyers’ time and obligations.

When it comes to CLAUDE, use of the contingency fee can also be prejudicial to the client. I have seen it time and time again: Upon realizing that there is no pot of gold at the end of the rainbow, Plaintiff’s counsel becomes discouraged and begins to neglect CLAUDE. When the client calls, the attorney limply mutters, “I’m working on it,” assuming the attorney picks up at all. That’s when the ethics and malpractice allegations start to fly. I know this because I’m the first person the disgruntled client calls.

One option I strongly advocate is the “hybrid” or “mixed” retainer, which involves a combination of the contingency fee with an hourly or flat-fee rate. A common contingency fee rate is 33 1/3%. A mixed retainer, on the other hand, might involve a 20% contingency fee and an hourly rate reduced from $250 to $125 per hour. The mixed fee ensures that the attorney ultimately receives at least some compensation for his or her services and deters clients from overstepping their bounds.

In my opinion, the contingency fee is a necessary evil. It gives the “little guy” affordable access to our justice system. But beware! If you use a straight contingency fee, CLAUDE may come back to haunt you!

April 16, 2010

It's a County, Not a Fiefdom!

By: Lisa Solomon and Marshall R. Isaacs

As all litigators know, the New York State Unified Court System is, in practice, far from unified. Administrative procedures (such as how to submit an order to show cause) vary—sometimes wildly—from county to county. As if that weren’t enough, many judges also have their own “Part Rules.” One would think litigators across the state could take solace in the fact that New York State’s Civil Practice Law and Rules (CPLR) provides a framework for lawsuits to play out the same in Richmond County as they do up in Clinton County. Unfortunately, that’s simply not the case. For reasons not fully known, various counties have seceded, in part, from the CPLR-nation. And it seems that the ranks of dissenters are growing. Kings County has long turned a blind eye to one of the CPLR's provisions. More recently, Westchester has implemented procedures that deprive litigants of rights provided for in the CPLR.

Kings County: Note to Self!

CPLR §3216 provides that the Court may dismiss an action where a plaintiff unreasonably fails to file a note of issue. However, dismissal is permitted only after the Court has first served a written demand by registered or certified mail requiring the defaulting party to file within ninety days. CPLR 3126(b)(3).

Kings County does not subscribe to subsection (b)(3). Instead, Kings provides for a “NINA” date (Note of Issue/No Appearance necessary). If the plaintiff inadvertently fails to file a note of issue on or before the NINA date, the case is summarily dismissed. Don’t believe me? See for yourself: http://www.nycourts.gov/courts/2jd/kings/civil/motiontrialsupport_faqs.shtml#8.

Westchester Supreme: No Reply at All

Under the Westchester County Compliance Part Rules that went into effect in September 2009, a party wishing to make a discovery-related motion must request a pre-motion conference to, “permit the Court the opportunity to resolve issues before motion practice ensues.” So far, so good. If the issue is not resolved at the pre-motion conference and motion practice is necessary, “a briefing schedule will be established by the court attorney-referee(s).” Still sounds fine.

But wait. If the discovery dispute is not resolved at a pre-motion conference, the court attorney whips out a form scheduling order. The form—which provides for a motion to be brought on by order to show cause—contains blank spaces in which the deadlines for the service of motion and opposition papers are entered. The form then explicitly states that “[n]o reply papers shall be accepted.”

CPLR 2214(b) gives every movant the right to serve a reply. The form scheduling order used in the Westchester Compliance Part deprives movants of that right.

What to do?

Of course, a movant's attorney might challenge the court attorney and insist on the right to bring a discovery motion on notice rather than by order to show cause; or, the lawyer might insist on the right to submit a reply even if the motion is brought on by order to show cause. But how likely is that scenario? What lawyer worth her salt wants to upset the court attorney she deals with on a daily basis? And what if the court attorney refuses to allow a reply? What attorney in his right mind would bring the administrative judge up on mandamus?

It's not surprising that Westchester doesn't provide for submission of reply papers and that Kings snubs the certified mail requirement of 3216: it's less work for them that way. But the salutary goal of paper-reduction doesn’t justify depriving litigants of the legislatively-mandated rights provided by the CPLR.

The Appellate Division Won't Stand for These Procedures; Will the Organized Bar Stand Up for its Members?

The appellate courts have already had occasion to spank Supreme Court judges for implementing procedures that conflict with the CPLR. See Richard's Home Center & Lumber, Inc. v. Kownacki, 247 A.D.2d 371, 668 N.Y.S.2d 906, 372, 907 (2d Dep't 1998) (Supreme Court improperly limited defendants to filing summary judgment motion only after court certified discovery was complete); Hochberg v. Davis, 171 A.D.2d 192, 575 N.Y.S.2d 311 (1st Dep't 1992) (directing Supreme Court justice to rescind his part rule requiring judicial consent before the filing of a written motion); Goldheart Int’l, Inc. v. Vulcan Constr. Corp., 124 A.D.2d 507, 509, 508 N.Y.S.2d 182, 183 (1st Dep’t 1986) (mem.) (Supreme Court has no authority to refuse to entertain a motion) Grisi v. Shainswit, 119 A.D.2d 418, 422, 507 N.Y.S.2d 155, 158-9 (1st Dep't 1986) (per curiam) (A party cannot be deprived of his right to make a written motion or a record.)

How long do we idly sit by as our CPLR is gradually dismantled? A handful of brave lawyers may be willing to challenge overreaching courts. Wouldn't it be better, though, if bar associations—on the state and/or county level—raised these issues on behalf of their members?

Lisa Solomon was one of the first lawyers to recognize and take advantage of the technological advances that make outsourcing legal research and writing services practical and profitable for law firms of all sizes. Through Lisa Solomon, Esq. Legal Research & Writing, she assists attorneys with all their legal research and writing needs, including preparing and arguing appeals and drafting substantive motions and trial memoranda. Through Legal Research & Writing Pro, she shows other lawyers how to start and run successful practices as contract (freelance) attorneys and teaches lawyers in all practice areas how to write more persuasive briefs.

March 16, 2010

Demise of the Civil Litigator

By: Marshall R. Isaacs

In recent years, there has been a noticeable decline in the skill level of New York civil litigation attorneys. They say, “Don’t blame the player, blame the game.” When it comes to litigation, I say blame both.

Consider this amalgam of several of my recent experiences:

A client of mine was sued in Kings County Supreme Court for failing to pay fifteen thousand dollars for consumer goods she ordered four years ago. According to my client, the product she received was a knockoff and was worth significantly less than the purchase price. Plaintiff’s counsel served my client with the Complaint by mailing it to my law office via certified mail. My client is a North Carolina resident whose only connections to New York were the three emails between her and the Plaintiff.

For those of you who don’t litigate, there are four or five significant problems with Plaintiff’s case. I called my adversary and explained the problems as diplomatically as possible. I then offered my full authority of three thousand dollars to settle. Perhaps I had been unwittingly condescending because my adversary exploded into a fit of rage. “See you in court!” he declared and slammed down the phone.

After the phone call, I did some research on my adversary. He had been admitted for a little over two years and had spent those two years as an associate in a large law firm.

The light bulb went on.

The case is now well over a year old. My adversary will not budge on his $15,000.00 demand. I stand corrected. He also wants attorney’s fees, though there was no written contract providing for them. My adversary has not taken any action to move his client’s case towards trial. I suspect either he or his client or both are out of money. My client has since lost her job and can ill-afford to pay for a motion to dismiss. The case file sits in the Clerk’s office, gathering dust.

The above anecdote underscores three reasons for the substantial decline in skilled litigators: (1) Staggering unemployment rates have spawned a bumper-crop of solo practitioners; (2) Many of these solos have no litigation experience or have practiced only in Federal Court and are unaware of the vast nuances of New York civil practice and; (3) Hubris.

I have practiced New York State litigation for over 15 years. I have won jury trials and have obtained reversals in the Appellate Division. Conservatively, I have been in court a thousand times. I still make missteps and I make them often. This is due, in no small part, to the lack of uniformity within the inaptly-named New York State Unified Court System.

To show just how disjointed the court system is, let’s look at the New York City courts. In New York City, there are five counties. Two of the counties (Manhattan and Bronx) are governed by precedent set by the Appellate Division’s First Department while the other three (Brooklyn, Queens and Staten Island) are governed by caselaw from the Second Department. Within each county there are three levels of trial court, Supreme, Civil and Small Claims. Within these courts, there are special parts for commercial cases, no-fault cases and self-represented cases. In addition, there is a separate Family Court and Housing Court. Each county Clerk has its own rules, each court has its own rules and each judge has his or her own Part rules. To complicate matters, courts and judges often don’t follow their own rules.

If I make frequent mistakes, imagine what I see from younger and less-experienced attorneys. The impact of this problem is obvious: Cases take longer to resolve (if they resolve at all) and clients pay more in legal fees; Disciplinary and lawyer malpractice cases increase as do professional liability premiums; meritless cases are unnecessarily filed and the courts become ever more congested.

The first step to solving a problem is recognizing that you have one. Young solos and experienced non-litigators, heed my warning: New York State civil practice can be a nightmare. If you are inexperienced in state litigation and have been asked to defend or prosecute a civil action, I suggest the following:

1. Recruit an experienced trial lawyer to work with you Of-Counsel. Half a fee beats a whole fee plus a disciplinary proceeding, fee arbitration or a malpractice claim. Conversely, ask a skilled attorney to accept the case and to allow you to serve Of-Counsel.

2. Find a mentor. Seinfeld references notwithstanding, the mentor-mentee relationship is wholly underrated. If attorneys love to hear themselves talk, then the same is doubly-true of experienced attorneys. When I opened my own shop, I constantly turned to former co-worker Pat Lyons for advice. I credit Pat with much of my success. Nine years later, Pat turns to me as often as I turn to him. It is a unique and gratifying relationship.

3. Trust but verify. It goes without saying that adversaries can be disingenuous. That doesn’t mean you should shun everything they say. On the contrary, listen intently to your adversary’s position and then do your homework. If a defendant’s attorney claims his client has no money, ask for proof such as tax returns and financial statements. Search Westlaw’s Public Records database. Multiple lawsuits, outstanding judgments and tax liens are good indicators of a party’s viability. Perhaps there truly is no pot of gold at the end of the rainbow. If an attorney claims he has caselaw supporting his position, ask for citations. Read and Shepardize the cases. If the law is truly unfavorable, put aside your ego and advise your client that a discontinuance or unfavorable settlement may be in order.

4. Focus your CLE on civil practice. David Siegel’s CPLR Update Lecture is a must.

5. Reject the case. If you can’t secure the help of an experienced attorney, CLE and gritty determination alone probably will not suffice. An attorney who is not competent to handle a particular type of case is ethically required to turn that case away.

While I recognize that there are few options for the young or inexperienced solo, State Court litigation is not an ideal first choice. Until New York adopts mentoring programs like those in Ohio and Georgia, solos dabbling in litigation are urged to exercise a great deal of caution and restraint.

September 8, 2009

Observe, Ask, Suggest

By: Charles J. Siegel, guest blogger

Observe, Ask Questions & Suggest Solutions –

I am a litigation attorney and I had a unique legal education. While still in college one of my roommates brought me an application for what he said could be a great paying summer job. His father was a court clerk and the courts in New York City were hiring provisional court officers to help fill vacancies that were created as a result of the vast expansion of the courts. This expansion was due in part to the implementation of the “Rockefeller” drug laws. Since I had nothing better to do, I took the test and was called up in July. The year was 1973.

As a result I learned several valuable lessons that have help me through my legal career. I discovered that if you watch various attorneys handling an assortment of legal matters over a period of time, you will gather immeasurable knowledge that can help and guide you through your career. There is just so much one can get from one’s legal studies and keeping up with the “law”. Watching and observing can help you better understand the procedures in court. This allows you to be relaxed and feel confident when you have to stand up and conduct yourself inside a courtroom. I discovered that by the time I started my legal studies, I had an immense understanding of the law, court procedure and the rules of evidence. Even today, I will take the time to watch and observe my colleagues handling their cases in court.

The second valuable lesson I learned was that of always asking questions. I find that most lawyers, myself included, love to talk. I discovered early on while still working in the courts, that unless your are their adversary, if you asked a lawyer why he or she did something or did not do something, they will be quick to relate to you their reasons, their theories and their mindset. I learned so much from other practicing attorneys, by just asking questions and “picking their brains”.

Finally, I discovered early on in my legal career in the district attorney’s office and while working in my firm, that when you go to someone with a problem or just asking for advice, also suggest a possible solution. It will help you develop as an attorney and also demonstrate to senior partners that you can solve problems and handle complicated matters.

Charles J. Siegel is the managing attorney of a 12 member insurance defense firm located in lower Manhattan. Mr. Siegel has been admitted to practice in New York for over 25 years. He is also a member of the bar in Florida and New Jersey. Mr. Siegel has lectured over the years to various claim departments and organizations in the area of Premises Liability, Auto Liability, New York Labor Law and Bad Faith. Mr. Siegel is proficient in a number of Microsoft software programs, such as Word, Excel & PowerPoint. He holds course certificates from Long Island University and C.W. Post College in Computer Repair, Computer Programming and Web Page Design. He has been a member of the New York State Bar Association for the past 18 years and is the immediate past chair of its’ Electronic Communication Committee (ECC) which has among other responsibilities general oversight of the NYSBA Web site. Mr. Siegel is also a member of the Executive Committee of the Torts, Insurance & Compensation Law Section (TICL) and presently chairs the section. He also chairs the TICL Information Technology Committee and is responsible for the Web site www.nysba.org/TICL.

August 21, 2009


By Lenny Sienko, guest blogger

When I was a young lawyer thirty-one years ago, I showed up at "Motion Term" one Monday morning at the Delaware County Courthouse in Delhi, New York, the county seat some forty miles from my new office. While I waited, I was treated to an invaluable, free CLE session as I watched and listened to the senior lawyers appear on their matters and argue before the Judge.

When the session ended, I was invited to join all of the other lawyers for lunch at the modest restaurant across the square from the courthouse. The back room was fully occupied by tables and chairs pushed together into one long table, filled on both sides by lawyers who had appeared in court and others who had been title searching at the County Clerk's Office. That luncheon was the first of many over the years during which we questioned, answered, argued, shouted, laughed, and carried on as lawyers are wont to do. It was great fun. I made friends and learned about the practical aspects of the business of law. We settled cases. We plea bargained. We exchanged tips and forms. We complained about the latest depredation by the legislature, designed to make our practice more difficult. We looked forward to our weekly Monday lawyers' luncheon. I learned that this tradition had been carried on since lawyers traveled to the county seat by horseback and steam locomotive. At least we no longer had to share the beds at the boarding house.

As the years passed, many of the senior lawyers passed on and were not replaced. The luncheon tradition finally fell by the wayside a few years ago, diminished by the "new" individual assignment of Judges to cases and the rescheduling of the Monday motion term. Young lawyers no longer had the opportunity on Monday mornings to sit in those old, high-backed wicker chairs and learn as others argued. I was disappointed that the friendly interaction amongst colleagues young and old we once shared seemed to disappear. I missed our friendly rivalry and needed something to take it place.

What does any of this nostalgia have to do with innovation?

I have found that lawyers' use of so-called "social media" has helped fill the gap left by the loss of "Motion Term" and Monday luncheon. These days, when I have a question for my peers, I post it on the NYSBA General Practice Section listserve and wait for the dozens of responses. Lawyers young and old from across the state ask and answer questions, share forms, refer cases, and discuss the "latest and greatest" from the Legislature. We discuss cases with names redacted and recommend tactics and strategies, just as we once did. The audience is scattered through the ether; but the discussion is familiar.

If I want to talk to other lawyers, day or night, across the country and around the world, I can get an answer from my "followers" on Twitter. As I did years ago, I have accepted invitations from other lawyers to join them on Linkedin, Plaxo, FaceBook, and FriendFeed. I get to "talk" to my classmates from law school, young alums from other law schools, solo practitioners, and associates and senior partners from larger firms. We are voluntarily enjoying a great dialog, which I find mentally invigorating and professionally stimulating. My circle of friends upon whom I can call for advice and guidance has expanded from a dozen or so regulars at Monday lunch to hundreds.

I read an enormous amount of material each day and night, coming to me in e-newsletters and RSS feeds, but also on legal blogs and Twitter. I read quickly and do a kind of "mental triage". I save links to the items, sites, etc, which interest me AND will interest other lawyers. This is a very broad spectrum of possibilities. I choose 4 or 5 a week and post them to the General Practice Blawg. Sometimes I just can't help myself and the number increases to as many as 10 posts for the week. Sometimes at Monday Lunch I was the last one talking as the bills were handed out to the diners.

Every Friday night, I go to the General Practice Blawg site and click on the site's RSS feed, which gives me the material for a weekly e-zine, "wEbrief", in quickly convertible form. I update any of the "blurbs", short paragraphs, which may be outdated. These are the content of wEbrief. The General Practice Blawg serves a few hundred readers. wEbrief gets sent as a "blast email" to a couple of thousand Section members. I also "repurpose" the posts for my own blawg, which is linked to a feed to Twitter, Friendfeed, and FaceBook. My conversations go on day and night, seven days a week--not just Mondays.

Does all of this innovative interaction profit me? Did my ersatz Monday luncheon tutorials profit me? I won't get rich; but the answer is "yes" to both questions. More importantly, the new social media keep me from being socially and professionally isolated, just as the old luncheons did.

Lenny Sienko installed his first Macintosh computer in his solo practice office in 1986. It replaced a teletype with shiny paper attached to a "blackjack" modem. He is a charter member of the NYSBA President's NYLawNet Committee (now the Electronic Communications Committee), editor of wEbrief an electronic newsletter, and the General Practice blogger-in-chief. He can be reached at most social media sites by his ubiquitous "lennyesq".

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The Upside of Solo/Small Firm Practice

By Elissa Hecker, guest blogger

The beauty of being a solo practitioner or part of a small firm is that one has more freedom to work with clients on a personal basis, and foster relationships. Unfortunately when working in a large firm, many attorneys do work for clients who they never meet.

An attorney’s job is to zealously advocate for her client. However, in addition, it is the solo or small firm attorney who can add the personal touch, both as lawyer and counselor.

It is important to know how to listen to clients, and what to listen for; ask the right questions, probe, and counsel through frustrations, ambivalence, anger, hopes and dreams.

It is crucial to listen and be a guide of sorts to help clients find their inner strengths. In effect, our legal guidance and experience should be able to help our clients become better advocates in their business dealings, while we help with legal and business strategies. What many people don’t realize is that the mere act of listening can help alleviate pressures that exist in our clients’ worlds, which will then lead to clearer heads and better decision making. Often clients may be afraid or concerned to challenge an agreement, potential dealmaker or an adversary. It is our job to use our legal problem solving skills, so that clients can maintain their good, and avoid the bad, relationships. We do our jobs so that our clients can do theirs. At the end of the day, we are a significant part of their support systems.

I believe in always trying to negotiate well so that every party walks away with something, obviously with favorable results for my clients. Rarely will there be an exchange where, though terse some discussions may be, both sides (and their attorneys) continue to respect and appreciate each other. That leads to continued business relationships, which benefits everyone.

Elissa D. Hecker of the Law Office of Elissa D. Hecker, practices in the fields of copyright, trademark and business law. Her clients encompass a large spectrum of the entertainment world. In addition to her private practice, Elissa is Past Chair of the Entertainment, Arts and Sports Law (EASL) Section of the NYSBA, Editor of the EASL Journal, member of the Board of Editors for the NYSBA Bar Journal and Co-Chair and creator of the EASL Pro Bono Committee. She is also a frequent author, lecturer and panelist, a member of the Copyright Society of the U.S.A. (CSUSA) and a member of the Board of Editors for the Journal of the CSUSA. Elissa is the recipient of the New York State Bar Association’s 2005 Outstanding Young Lawyer Award. She can be reached at (914) 478-0457 or via email at: EHeckerEsq@yahoo.com.

August 14, 2009

What Does It Mean To Be Successful?

By Warren Redlich, guest blogger

I'm honored to be asked to write a guest post for Smallfirmville. I run a small law firm in the Albany area.

One thing is on my mind at the moment about small firm practice: What does it mean to be successful?

On first hearing that question, many will think of hard work, long hours, studiousness, intelligence, and perhaps passion. These are helpful for those who want to be successful, and they are very important in order to be a good lawyer. But there are plenty of good lawyers who are not successful.

The general public thinks we're all rich. Those of us in the world of solos and small firms know that's far from true. We all know solid attorneys who work long hours but may never crack $75K in annual income. Breaking that down to hourly pay for the amount of time worked, they could probably make more in a variety of trade jobs that wouldn't require a six-figure student loan debt.

So what's the secret of success? It comes down to one word: Revenue.

Revenue drives the practice of law. You can be the best lawyer in the world, but your skills and experience are meaningless without clients to help. And if you don't have clients, you don't have revenue. Perhaps you can have clients without revenue, but that only works for a few trust-fund beneficiaries.

A lawyer who controls the revenue is in control. Lawyers who do not bring in revenue depend on those who do.

When revenue is hard to come by, firms panic. In the current economic meltdown we've even seen them vanish.

If you accept that revenue is important, that brings us to the next question: How do successful lawyers generate revenue?

The generally accepted wisdom is that if you do good work for your clients, then in the long run there's a good chance you'll get more work from them and they'll refer other business to you. And then you'll have steady long-term revenue. That's true to an extent. But for many areas of practice it is difficult for clients to determine the quality of the lawyer's work. The best criminal defense lawyers see many of their clients go to prison. The finest divorce attorneys will have many angry clients.

The real truth about that pearl of wisdom is customer service. If you talk to your clients, keep them informed, listen to them, return their phone calls and answer their questions, they will appreciate that you pay attention to them.

Unfortunately, that still assumes you had clients to start with. There's a chicken and egg problem. You can't do good work for your clients, nor provide them with good customer service, unless you have clients.

Maybe in the good old days you'd catch on with a firm and work for a partner who had steady revenue. You'd work hard and learn from the partner, and one day he'd ride off into the sunset leaving you with the practice. Except that doesn't happen much any more, and maybe it didn't happen all that much then.

So where does revenue come from? The first and most obvious answer is luck. I lucked into the revenue that sustains our firm. Having little work to do, and knowing something about the Internet, I started a fairly basic Web site for my budding solo practice. About two years later, after I had started looking for jobs, I suddenly Web site, calling, and then hiring me. I had revenue.

Others luck into revenue in different ways. Maybe it's some kind of networking or political connections. Or just stumbling into the right niche at the right time.

The second step, after you've lucked into a source of revenue, is maintaining and expanding it.

I did a fairly good job with what you're supposed to do - doing good work for the clients as well as providing good customer service. That may be enough for some kinds of luck. We get some repeat business and client referrals, but our areas of practice and client base are not going to generate enough business on their own. So we depend on the magic Web site.

It was important to understand where the revenue was coming from and why. Fortunately - luck again - I had the computer skills to analyze our Web site's traffic. We were getting a lot of visits to our Web site from people searching Google and Yahoo for phrases related to what we do. Over the past several years I have applied some of the keys to being a good lawyer toward being a successful lawyer. You may remember these from above: hard work, long hours, studiousness, and passion. I poured all of that into understanding "search engine optimization" and putting it to work for my law firm Web site. In doing so, I found other ways to generate more traffic to my Web site, and to turn more of that traffic into paying clients. And that turned a struggling solo practice into a growing small law firm.

One lawyer I know has lectured to lawyers and other relevant professionals consistently in his field for many years. He also writes "the book" in his field. I'm just guessing, but it probably all started for him with some luck - landing the right job, helping him develop the right skills, and then being asked to lecture once or twice. That luck was only the beginning. He's put countless hours into writing and lecturing. That seems to work for him, generating referrals from those who attend his seminars.

This is one critical break between good and successful. Many lawyers do not want to put the same time and effort into developing revenue that they put into doing good legal work. I sympathize with that attitude. I remember the early days of my legal career. I had a job where I just focused on doing good work for the clients. The company I worked for generated all the work and I didn't have to worry about revenue. It was bliss to an extent, but eventually I learned the hard way about the connection between revenue and power.

When I tell lawyers about building Web site, they don't want to put the time in. They want someone else to take care of it for them. It seems like lawyers feel that way about marketing in general. We try the Yellow Pages because someone tells us it will work, and we see others doing it. But it stinks. We hear about "Top of Mind Awareness" and try doing TV, radio or print ads. That might work for some, but for most of us it's just another waste of money.

You can't expect that revenue will just fall in your lap if you do good legal work. You have to work to generate revenue. And that's the secret of success. Hopefully I'll remember that.

Warren Redlich is a successful attorney in Albany, NY. You can learn more about him at http://www.redlichlaw.com or http://albany-lawyer.blogspot.com.