Articles Posted in Managing Your Practice

About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers.  The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..

Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.

The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down.  To be sure, you have to a plan in place to get inquiries on new cases.  And you have to have the ability to prepare and try the cases you accept.  But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.

Forbes recently published a fascinating article about Steve Susman’s thoughts on saving money in litigation. 

The article reports that Susman has launched a website called "Trial by Agreement" that "provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions."

The "Trial by Agreement" website has form pretrial agreements and trial agreements that lawyers can use in their own cases.  Here is a list of the proposed pretrial agreements:

We all know that as lawyers have an obligation to cite known adverse precedent to the court.  
 
There are two reasons why this rule should be followed (other than the all-too-obvious point that the rule exists).  First, the failure to cite adverse precedent means you have lost the opportunity to either distinguish it or say why it should be reversed. 
 
Second, you will lose credibility with the court – something that will hurt you in all future cases before that same court.  Thus, you may win a single battle (if the both the judge and the opposing counsel miss the case), but  then risk losing a war that will be fought over the rest of your career.

Associate’s Mind is a fine blog that is well worth adding to your RSS feed list.  Today’s post, Becoming a Good Lawyer Requires Failure, is an exceptional piece.  Do not be mislead by the headline, which I suspect was selected to grab attention (and it does.  Readers will be happy to see that  the piece makes it very clear that failure should not come at the expense of clients.

Keith Lee, the blog’s author, reminds us that blogging, social media campaigns, etc. do not make one a good lawyer.  What does?  Here is an excerpt of his post:

Becoming a good lawyer requires failure. It requires screwing up a motion and having to re-draft the entire thing. 3 hours of research down the hole only discover a new case that destroys your argument – then writing off that time from your billing and not charging the client because it’s your fault. It’s mis-communication between lawyer/client/opposing counsel/third-party counsel/doctor/court reporter throwing everyone’s schedule out of whack.

Two lawyers who have been involved in an arbitration and federal court battle over fees from Fen-Phen cases appear to be at the end of the litigation road.

The Tenth Circuit Court of Appeals recently upheld an arbitration award of over $8 million dollars, finding that one lawyer breached a written agreement to refer Fen-Phen cases to the other.  The referring lawyer kept some cases for himself and referred some cases to another lawyer.  

The decision in Abbott v. Law Office of Patrick J. MulliganNo. 10-4113 (10th Cir. Sept. 21, 2011), has little to offer us from a legal standpoint except to remind us how difficult it is to overturn an arbitration award on appeal.  

In Wright v. Wright,  No.  M2008-01181-SC-Rll-CV (Tenn. March 29, 2011) the Tennessee Supreme Court  explains how trial courts should determine a “reasonable” attorney’s fee amount when the attorney represents a minor. Trial courts and lawyers should know:

(1) an evidentiary record should be made in support of an attorney’s fee on behalf of a minor;

(2) an affidavit from the attorney seeking a fee, specifying the amount of time and type of work spent on the case, should be provided to the trial court;

The Attorney at Work site has a helpful post that reminds us of ten ways to avoid malpractice claims.

Here is an excerpt: 

4. Document, document, document. It’s not practical to document everything on every matter, but document as much as you can in some contemporaneous manner. Letters are fine, but emails, detailed time entries and marginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes and major client instructions or decisions. Memorialized communications help confirm what was said or done for the client should you need to look back to explain why or what work was done, to justify an account, or to defend on a malpractice claim.

It comes of no surprise to lawyers that there are lots of lawyers looking for work.  Our office receives resumes from lawyers almost on a daily basis,  and many have impressive backgrounds.

This article from the June 29, 2011 New York Times describes the state of the employment market for new in the country.   The writer explains that in Tennessee it is estimated that there will be 389 jobs for lawyers each year from 2010 through 2015.  However, 735 people passed the Tennessee bar exam in 2009.  Thus, if the bar exam completion rate stays the same, Tennessee will have 346 more new lawyers than jobs in each of the coming years.

The Tennessee numbers are pretty close to the national average, which reveals that there will only be legal jobs for one-half of the lawyers passing the bar exam.

Some plaintiff’s lawyers are "givers" and others are "takers."   There are a fair number of givers, lawyers  who step up to the plate time and time again to help advance the cause of civil justice in this state and nation. Some give knowledge, some give time, some give money, and some give all of the above – and each of us is indebted to every single one of them.

On the other hand there are "takers."  These lawyers spend thousands of dollars every month advertising for clients but refuse to give money to support legislative efforts designed to support the rights of those clients. They are lawyers who make a good living representing plaintiffs but refuse to give time or money to support the state or national trial lawyers association. They are lawyers who constantly  talk about their big settlements and their big cases but somehow never have the ability to write a check to help the cause.  They are lawyers who ride around in $60,000 cars but refuse to give a political contribution to a pro-civil justice candidate. They are lawyers who seek the help of the association or its members when they are need, but turn away when asked to help. These men and women thrive off the efforts of others, giving nothing, taking whatever they can, and smiling all the way to the bank.

If you are a "giver," please keep giving. You already know that a rising tide lifts all boats and that our willingness to share advances the cause that we believe in with our heart and soul.   If you are fortunate enough to have earned a good income as a result of your hard work as a plaintiff’s lawyer, you should give serious consideration to support of AAJ through its Leaders Forum program.   Your money will be used to help inform the public about the critical role that trial attorneys play in holding wrongdoers accountable for their actions and thus assist in reframing the debate about the civil justice system.  The contribution is significant, a minimum of $1000 per month, but over 400 of the best lawyers and firms in the country  step up to the plate every month and give extraordinary support to AAJ.  You can sign up here.