Wednesday, February 21, 2007

Airlines lawyer up ...

We recently took a week of vacation. I'm now digging out from the pile that creates. I'm currently in the office at 10:10 pm, and don't know when I'll be going home.

Anyway, on the flight down there was an interesting moment. The fasten seatbelt light was on, and I think we were either in the descent or ascent part of the flight. A passenger asked a stewardess (yes, I said stewardess not flight attendant - sexist pig) if she could go to the bathroom.

The stewardess said something like: "FAA regulations prohibit me from saying yes."

The passenger did not get it. She asked again, as if she hadn't heard the answer. The stewardess said something like "I can't tell you yes." The passenger asked at least one more time, and got a similar answer. The stewardess walked away to her next task.

The passenger sat there for about thirty seconds, talked with the passenger in the next seat, and then got up and went to the bathroom.

I'd love to know what the training was for flight crew on this issue. Were there actually lawyers in the room during the training? Ya gotta love America. :-)

Tuesday, February 20, 2007

Article about lawyers in the Wall Street Journal

Saw an interesting article in the Wall Street Journal a few weeks ago and was waiting to write about it. The article is written by Cameron Stracher, titled "Meet the Clients". Stracher criticizes law schools for not teaching law students practical skills, and for "giving students the false idea that being a lawyer is all about intellectual debate."

I mostly disagree with the article, but it is a good read and I like a couple of insights. My favorite is where he challenges law school clinics, which always seem to have a "liberal tilt" (I assume he's referring to clinics for victims of domestic violence, or AIDS sufferers). He wonders where the clinics are for small businesses struggling to deal with claims made against them under the ADA. I would love to see a law school open any kind of clinic for small businesses.

The main thing I disagree with is the notion that law school should be more practical. Stracher implies that law schools should ready their students to hit the ground running the first day after they graduate. He misses the diverse ways students can go through law school. First of all, there are different kinds of schools. Some are known for the intellectual side of things, most notably Yale. Others are focused on the practical side. I'd say Albany Law School was like that when I was there, and I suspect it still is.

But even within schools, students can go for either side of things. I was mostly uninterested in a practical education when I hit school. I took several "useless" classes like Jurisprudence (legal philosophy), and another class where we tried to get into the minds of the Justices on the Supreme Court. Other students focused on practical courses, both to help them pass the bar exam and to ready themselves for their chosen area of law. The practical students also did more than clinics. They got part-time jobs during law school (full-time in the summers), again working in their chosen area of law. One recent grad who has done work for me recently took this route. He had far more experience in criminal law when he started helping me than I had when I opened my own firm, and he did excellent work right from the start. I was nowhere near as ready when I graduated and just lucked into the right job where I was coddled for months before I had a chance to endanger a client.

These jobs outside school are where students get their practical experience, and it's far better there than from law school professors. Most professors spend little time in the active practice of law. Some never had much experience in the first place. They are generally excellent at teaching the intellectual side of the law, and that's how they get to their position as law school professors. It is my personal opinion that the intellectual training provides more and more benefit as the attorney gets experience, helping to connect the dots so to speak.

Stracher makes some comment about new lawyers being unable to handle things. But that's not that big of a deal. If the lawyer is in over his head, he should ask for help, either from someone more senior in the firm or from an experienced local attorney, or even their adversary. I've found that the attorneys on the other side are often very helpful in teaching young lawyers how to handle things. There are a few who try to abuse the young lawyers, but most, at least in the Albany area and even some in New York City, recognize that mentoring that young lawyer is important for our profession and the good deed will be repaid someday in some way. I've certainly found that.

The other thing that struck me while reading Stracher's article was something that cannot be taught in schools and probably can't come through experience. It would be nice if lawyers cared about their clients. I find many lawyers lack empathy for what the client is going through. It's easy to become jaded and that does not lead to good customer service. I'll use speeding tickets as an example.

Most lawyers have no sympathy for the speeding ticket client. In the world of criminal defense, speeding tickets are nothing. I have yet to see a client get jail time, probation, or any consequence more serious than a fine. The most serious cases involve potential license suspensions or revocations, but that client is not new to the system. After you've just pled a client to a deal with 5 years in state prison, it's a little hard to be concerned about someone who may have to pay some fines.

But it is our job to take care of that client. And we will be more effective in that effort if we understand what the client is going through. So what is the client concerned about? First, the traffic stop experience was traumatic. The sense of security she had in her car was shattered. A guy in a uniform with a gun and a badge shined a flashlight in her eyes and spoke rudely to her. (Yes, I chose a male cop and a female driver - sexist I'm sure.) He handed her a ticket that is incomprehensible to non-lawyers. It says that a plea of not guilty must be submitted within 48 hours. The ticket was printed on thermal paper and it's faded and or blackened and is now hard to read. Another thing on the ticket says that she has to be in Court on such and such a date, and the address for the Court on the ticket is a PO Box. Is she supposed to report to the post office? And another thing on the ticket says that a warrant may be issued for her arrest if she doesn't show up.

She's worried about the fines and other costs that will come. Traffic tickets in most of New York State do not indicate the fine on the ticket. She's worried about her insurance rates. Maybe she's worried about her license as well. Maybe mom is calling worried about her son and how this will affect his future.

When this prospective client calls, the lawyer should address these concerns. We need to understand how scary this experience was for her. We need to tell her that the 48-hour rule, the court date, and the warrant thing are all false. We need to reassure her that it's not that bad, and that we can take care of this for her.

Once the client retains us, we need to address further concerns. Did the lawyer get my paperwork? Is he taking care of that court date on the ticket (yes, the one that isn't a real date)? Two months go by and she hasn't heard from the lawyer. She's worried about the status of her case.

It is my general sense that many lawyers utterly fail at this, not only on speeding tickets but in general. I'm still not satisfied at how my office does with this on our speeding tickets - we have hired a new associate whose principal responsibility will be to make sure the tickets are handled well, and just as important, make sure the clients know we're taking care of their cases. So hopefully we'll get there.

The key to taking care of these things is empathy. The attorney must be able to get inside the client's head to get a sense of what they're worried about, in any case, and address those concerns. For most clients this is not hard at all. They will either tell you straight up or will tell you if you ask. It's tougher in the criminal cases, especially the client has mental health issues. But it's even more important in those cases, because if those mental health issues are not addressed, the client is likely to have further problems. In the busy world of the practicing lawyer, it's hard to find time for empathy. For me, it seems that clients really appreciate it and it leads to many referrals. So it's not just being a good human being. It's also good business.

I should also mention practical limits to empathy. You need to have boundaries. I get the occasional speeding ticket client, or prospective client, who is very demanding. They ask the same questions three or more times on the initial phone call. They want a guarantee (we're ethically prohibited from making a guarantee - and it's also dishonest in my opinion). In these and other ways it becomes clear that this person expects to be the attorney's most important case. I generally reject those prospective clients. If it seems like it's been a long call, I check my phone to see how long it's been. Most clients hire me within 5 minutes. If the call has gone over 10 minutes I will usually tell them to find another lawyer. I've had cases where I figured this out after I was hired and have offered a full refund if the client will find another lawyer. In some cases this boundary setting wakes the client up and they become better clients. In others, they get angry and I let them move on to the next lawyer.

I suppose that ethically all clients are supposed to be equally important. But it ain't true. The client I had who was facing a potential life sentence (he got 18 1/2 years) was far more important than any of my other clients. The client who lost his leg in an accident, and who I've known for over three years now, is more important than most of my other clients. And plain and simple, if your $300 speeding ticket is your lawyer's most important case, then your lawyer is not successful, and may not be all that good of a lawyer.

I just don't think it's possible for law school to teach these things. You either had to learn this growing up or you have to get it from doing it. Nevertheless, I enjoyed reading the article and recommend it.

By the way, while looking for the link to the article discussed above, I found another article by Stracher about the troubles of being a lawyer.

Thursday, February 08, 2007

Why it's hard to be a trial lawyer

I had lunch with a friend the other day. He's one of the smartest and hardest working lawyers I know. The kind of guy who reads every decision and knows every nook and cranny of the law relevant to his field. He was telling me about a couple of cases he had. In one, he won the unwinnable case. In the other, he lost the unloseable case.

We make decisions as trial lawyers. Should we have a jury trial, or go with a bench trial (where the judge serves as the "finder of fact")? Or you're in a situation where the case has gone very well for you, and you have to decide whether to put in more evidence. The prosecution's case was very weak - do you have your client testify? Should I ask the witness one last question?

You can do a trial, have a fantastic case, do everything correctly, and on top of that things break your way during the trial that you didn't even expect, and yet you can still lose. Or on the other hand, everything can go badly for you and you win anyway.

Winning is great. You feel very up after you win. But for me at least, and I think for many other trial lawyers, you still second-guess yourself on those decisions. Even when you win. I usually don't sleep well when I'm on trial, and it's the worst after the trial is over. I can't stop thinking about those decisions, what I did, and whether I should have done something else.

Losing is unpleasant, and the negative feeling from a loss is much, much greater than the positive feeling from a win. Sometimes you see ahead of time that you're going to lose, or at least that you're likely to lose. For me those are the easiest cases emotionally. You still do the best you can, and you agonize over some decisions, but losing in a case like that isn't such a big deal. I sleep better on those cases than I do on the wins.

Losing a good case is extremely hard. You have trouble moving on to other things. It is depressing and you can go into a funk, sometimes for a week or more. We suffer tremendous self-doubt afterwards. I've talked to several other trial lawyers who feel the same. The friend I mentioned above was talking about how he lost the unloseable case. The loss was months earlier, and yet he was so animated in describing it. A loss like that is so frustrating, so upsetting, that we just can't let it go. It can make you "gunshy," afraid to take risks in future cases.

Losing weighs so heavy on me that I question whether I should really be a trial lawyer. On the one hand it causes me to question whether I'm good enough. Maybe I lost because I'm just not that good as a trial lawyer. And on the other hand, the psychic damage from losing is so powerful that I just feel like I should find another line of work.

Of course I believe I am a good trial lawyer. To say I have a strong ego is a severe understatement. Most trial lawyers have very healthy egos. It's really a requirement. Anytime I have lost a trial where I should have won (or won when I should have lost), it always comes down to one simple thing: the finder of fact was just plain wrong. Usually that's a jury, but sometimes a judge. I think they get it right about 80% of the time, maybe 90%. That's not too bad, but not great either.

In my egotistical way, I have talked about how winning and losing affects me. As attorneys we must remember that the impact on our clients is far more serious. One lawyer friend of mine put it this way at a seminar: "I've never lost a trial. Many of my clients have lost trials, but I've never lost one."

When we lose a trial, our client loses much more than we do. Criminal defense clients, in particular, can lose their liberty, their right to vote, their jobs, and much, much more. We move on to the next case, but the case we just lost was their only case.

It's very important to communicate this to our clients, and I have a way of doing this. I tell them something like the following, usually when they ask me whether they should take a deal or go to trial -- "I love trials. I get paid more for doing it, and if we win, it's a great feeling. If we lose, I don't go to jail. I get to keep sleeping at home. You're the one who does the jail time if we lose, so you have to decide what to do here."

Getting back to the lawyer's pain of losing, one other thing really stands out. It doesn't feel that bad to lose when you represent a guilty client in a criminal case. You still fight hard, and do your best to win the trial. It still bothers you a bit when you lose. But when a guilty client goes to jail, it's not that upsetting. The worst is losing when your client is innocent. It happens. I can't think of anything more unpleasant in my work than that experience.

It's tempting to throw your hands up, and give up on the system. I can't do that. It is a flawed system, but I'm not aware of any alternative that comes anywhere close.

Monday, February 05, 2007

Paralegal wanted

Someone asked, so I figured I should post it here. We are looking to hire a paralegal with experience in criminal and traffic cases. See our listing on Craigslist.

Sunday, February 04, 2007

Lawyer Website for sale? Frustrations of running a law firm.

I'm mostly joking with the first part of the title. I would sell if the right offer came along, but I doubt it's coming.

Our law firm has been operating for nearly four years now. We've gone from Warren in a fairly small room with little revenue to what is now a very different situation. I'm now managing 2300 square feet of space in a gorgeous building. I have employees, independent contractors, and tenants. I lost money in the first year, made a pittance in 2004, and in 2005 firm profit was getting closer to the salary I had when I left the clerkship. We don't have the numbers yet, but there's a good chance I made more in 2006 than I would have at the state (assuming I still would have had a job) - but maybe not. Revenue is now strong and steady.

I still enjoy being a lawyer. Like most trial lawyers, I love litigation -- getting a case ready for trial, conducting depositions, cross-examining witnesses, arguing to judges, etc. I'm particularly fond of criminal defense, though some of my other cases present interesting challenges.

Unfortunately, and also like most trial lawyers, I don't get to do those things enough. I spend far too much time managing a business. There are parts of running the business that I like. As should be obvious to any reader of this blog, I not only like working on the firm's web presence but I'm also really good at it. The firm website gets over 1500 visits a week and generates most of the firm revenue. In general I like doing marketing and sales for the firm. It's the managing I don't like. Managing the office space and equipment. How was I supposed to know that copiers and phone systems could be such a pain? I particularly dislike managing people. The dream is to find employees you don't have to manage, but that has so far escaped me. We've got an ad out now for a paralegal so we'll see how that goes. So far the vast majority of the resumes have been inappropriate - only one or two look even close to what we want.

I'm so excited about the traffic court directory my brother and I are building (closing in on 1000 courts, NY almost finished, NJ well under way and MA starting any day now) that I'd almost rather stop being a lawyer and devote my time to that. If someone handed me a check for a million dollars, I'd hand over and spend the next couple of years building and other law-related websites. Or maybe I could merge with another firm and serve as the "marketing partner". I'd even be happy to work 40 hours a week in that role, making court appearances and doing lawyer work along the way. Running a law firm is not a 40-hour a week job. It doesn't really stop. We'll be vacationing soon and I'm sure I'll spend at least 4 hours a day on the phone.

Good friends who know me and the legal business tell me I'd be crazy to sell the site or merge with another firm. Our firm is doing well. Things will work out - I'll find the right employees. Business will continue to grow and I'll make plenty of money running my own firm. But it's not about the money, and my ego is so big already that having a successful law firm with my name on it means little to me.

There's something about my life to date that suggests what's going on in my head. I've got the 4-year itch. I've never done anything in my life for more than four years. Four years in Guilderland Elementary School (first grade was in Wisconsin); 3 in middle school and another 4 in high school. Four years of college. Three years of grad school and another three in law school. A year in Japan. Three years with Allstate and another three with the judge. And now I'm approaching four years in my own firm. It just feels like time for a change.