November 29, 2011 § 3 Comments
Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”
His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”
Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.
But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.
Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.
My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.
Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.
What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?
August 31, 2011 § 8 Comments
Federal judges have it made.
They can say what’s really on their minds without fear of an inflamed bar, or elective repercussions, or the judicial performance commission.
As Exhibit A, I offer this court order from a Texas federal district court in a discovery dispute:
As I’ve said here before, some judges have no patience for discovery disputes.
Thanks to Attorney Marcus Evans
December 22, 2010 § 1 Comment
The Christmas lull, that blessedly quiet period in the few days before and after Christmas, is a perfect time to catch up on matters that you kept shoving to the back burner for the past few months.
Like reassessing your professionalism. Where you are in your practice and where you want to go. How you’re doing. Your strong and weak points. What can you do to do a better job?
So set aside a few minutes and ponder your own professionalism. Here are a few points to start from:
- “I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi so long as I continue a citizen thereof. So help me God.” That’s the oath you took to practice law. Ever stop to think why lawyers take an oath and folks in other lines of work do not?
- I posted the Lawyer’s Creed and Aspirational Ideals here. Re-read them and even keep a copy handy in the middle drawer of your desk. Pull them out and read over them every now and again and assess how you’re measuring up. You can find and print out or download them at the Mississippi Bar website.
- Re-Read the Rules of Professional Conduct from time to time.
- Check out the bar’s resources for professionalism.
- Take stock of where you are professionally. Are you making your clients’ lives better, or are you just doing what it takes to get by? Are you becoming the kind of lawyer you idealized when you decided to become a lawyer? Are you adding something to your profession? And are you treating your practice as a profession, or is it just another job?
- If you have been practicing five years or less, have you found a mentor who is a competent attorney to rely on that attorney’s guidance and advice through thorny areas where you have doubts about how to do what you think needs to be done?
- What are your ideals, and what are you doing to accompish them?
And here’s a thought for young lawyers: Set aside an hour or so and thoughfully write the eulogy for your funeral. Yes, the eulogy you’d like to have delivered at your funeral. Include all the accomplishments and admirable traits you’d hope to have mentioned when your gone. Stick it away in the back of a desk drawer and then set out to achieve those accomplishments and develop those admirable traits. Why should you do this? Because you are writing your own eulogy every day you live anyway, and you might as well be intentional about it. Next year around this time, pull out that scrap of paper and reassess where you are. Re-draft it if you like.
And what about the day-to-day practice of law?
Lawyers are busy these days. Too busy, maybe. Today’s financial demands, compounded by spiraling overhead and household expenses, put tremendous pressure on attorneys to take on more and more work until they feel they can only succeed by adopting an assembly-line, boilerplate approach.
What concerns me about it, though, is that it seems to me that lawyers are less and less familiar with the law and the rules, relying on forms and old information to get by. Sometimes I will call a rule to the attention of a lawyer and will find that the lawyer was not even aware of it. Or I will point out a case and the lawyer is surprised that it exists. There have been times that I am convinced that the lawyer knows nothing more about the procedure he or she is invoking than what is set out in the pleadings (that often are copied from someone else or are dredged up from the bowels of the lawyer’s own computer with little additional thought). I know I’m painting with a broad brush here, but bear with me if you think this doesn’t really apply to you. You may find a few nourishing morsels if you’ll take a few minutes out of your busy schedule to read the rest of this.
Granted, the pressures of time for today’s practitioner are great. Caseloads are far heavier, and the law has become more complex over time so that what used to be a “simple divorce” now requires much more attention. Time has become more compressed for the family law practitioner. The fourteen hour workdays and weekend work so common in my early career have given way to a more sane eight-to-ten hour day and fewer weekends that allow for time with and attention for spouses and children, but the compression of time means more concentrated demands.
Have you noticed how many times on this blog that I mention the importance of reading and keeping up with changes to the code, case law and the rules? I hammer away at it because it is not only essential to your success as an attorney, but also to the benefit of your client. Too often we think of professionalism as ethics, but I challenge you to think of professionalism not only in ethical terms, but also in terms of competence and how you present yourself and represent clients.
Given all of this, I contend that it’s time to consider a few changes to the way you do business that will make you a better lawyer and make your clients more pleased with your performance. And if you are doing one or all of these, more power to you. Here they are:
- Before you file your next probate matter, read the rules and look over the applicable statutes. You will be amazed what you will find. If nothing else, you will be shocked to see what a heavy load of responsibility you are taking on by signing and filing those pleadings.
- For that matter, look back at the code the next time you file some familiar pleadings and look for changes you might have missed or some other little twist in the law you may have always overlooked.
- Carefully read over every pleading before it’s filed. Be honest: you let your secretary do most of your pleadings, don’t you? Do you know that they’re right? Are they up to date? Remember that everything you produce is a portrait of yourself.
- Read the appellate court decisions each and every week without fail. Court of Appeals hand downs are on Tuesdays after lunch, and Supreme Court’s are on Thursdays after lunch. As you run across case law that will help you in pending cases, print out the decisions and put them in those files for use in court.
- Read the rules. Lawyers who know and follow the rules generally impress judges as better lawyers because, quite frankly, they are better lawyers, and better lawyers can get better results.
- Read the statutes. Before you file that habeas, read the law. If you’re wondering how to sell a parcel of real property in an estate, look for a statute in the code. The answer to how to record and enforce a judgment is in the code.
- Use your brain. It seems to me that too many young lawyers want to get by with a fill-in-the-blank practice. No innovative approach, no novel arguments based on sound research, no extra effort. It’s so refreshing as a judge to see lawyer come into court with a soundly-prepared approach to a legal problem that is well supported by authority.
- Advise your client. If you simply do what the client says to do, you are not a lawyer, you are merely your client’s alter ego with a license; you are a tool. Guide your client in the right way to go. Influence what your client wishes to do with your judgment and knowledge. If your client demands you to do something unethical or questionable, try to persuade him or her to take another course, and if they refuse, file a motion to withdraw. Tell your client up front what the chances of success are. Never take on the cause of a client who is seeking vendetta as opposed to legal redress; the former is malicious, and the latter is justice.
These are merely a starting point. As a lawyer you have a duty not only to your client, but also to advance the profession. It only takes a little time and devotion each day. And if you are not devoted to your profession, perhaps you need to find something else to do.
Professionalism requires not only that you zealously represent your client, but also that you do it competently.
Take advantage of this quiet time and take a look at yourself and your career. It will be a rewarding investment of your time.
November 19, 2010 § Leave a comment
Channeling is communication with spirits. Some people claim to be able to communicate with the dead or others in the spirit realm, and share the communications with those here on the terrestrial plane.
That’s what an Arizona lawyer did. She convinced at least one client that she could “channel” messages from his dead spouse in the deceased spouse’s estate. She told the client that she was receiving communications from the deceased directing them to take this action and that, and she was so convincing that she continued to represent the client for three years.
Things got a little more complicated after she persuaded her client that his deceased spouse wanted the attorney and client to have sex, and they did. The client filed a bar complaint charging that the lawyer was exercising undue influence.
You can read what the Arizona courts did discipline-wise here.
Now, I am not suggesting you carry channeling beyond the bounds of propriety, assuming that channeling is itself, after all, within the bounds of proriety.
I am merely mentioning another possible career enhancement, not too far removed from the common practice of Mississippi lawyers to try to predict what the chancellor will do by hitting the ouija board with their clients. Uh, most of you still do that, right?
If you are going to get into the channeling business, please try to make it obvious to the court that your behavior is channeling and not imbibing.
And another thing you need to keep in mind: there are risks involved in channeling. There is always the danger of out-of-control séances:
October 18, 2010 § 4 Comments
One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic. And I’m not talking only about expections regarding outcome. I’m talking expectations about you, your firm, the court and the legal process itself.
The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations. You may find something useful here. I’ve copied and pasted the text for you:
CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)
We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.
Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.
We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.
Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.
Please utilize our paralegals to answer your questions and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.
You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.
Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.
The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.
The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.
We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.
What you can expect during a Trial (Contested Case)
COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.
SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like. Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same. There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.
DEPOSITIONS—the other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices. The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well. A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.
NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete. The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration. We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.
DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.
CHILDREN—Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent. Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving. Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children. Children are not your property. They are not your pawns. They are absolutely not your messenger. They are innocent individual human beings that need both of their parents, not just the “best” parent.
ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.
CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.
ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees. In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value. A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.
Thanks to the LegalEthicsForum.com for this.
September 28, 2010 § Leave a comment
From the Mississippi Bar’s BAR BRIEFS …
October 1 Is Deadline to Submit Comments on Proposed Mandatory Pro Bono Rule
The Mississippi Supreme Court Rules Committee on the Legal Profession seeks comments on two proposed rule changes. The first proposed change would amend Rule 6.1 of the Mississippi Rules of Professional Conduct. As proposed the change would make pro bono service mandatory, and would increase the fee to be submitted in lieu of performance from $200 to $500. The second proposed rule change is to Rule 46 of the Mississippi Rules of Appellate Procedure. The proposed change would increase pro hac vice admissions fees from $200 to $500. These proposed rule changes may be found on the Supreme Court website at http://www.mssc.state.ms.us/rules/rulesforcomment/rulesforcomment.html . The deadline for filing comments is October 1, 2010. Comments are encouraged and should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P. O. Box 249, Jackson, MS 39205-0249.
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I have read reports that only around 100 lawyers, out of 5,000 or so members of the Mississippi Bar have submitted comments. That’s pretty pathetic … and apathetic. This is a proposal that will impact your practice. At the risk of being boringly repetitious, I beg you to submit your comments. Just click on the link and fire away. You don’t even need to spend a postage stamp.