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April 28, 2006

New Gold Mine for Law Firms

In this post, Larry Bodine reports on a hot-off-the-the-presses New Jersey ethics decision that would allow a law firm to own another firm as a wholly owned subsidiary.  Took me a while to fully comprehend the implications of this ruling, but Bodine lays them out fairly concisely here:
As a result of New Jersey's decision:

• Law firms can buy and sell other law firms as investments.

    • Law firms can hire a pinpoint boutique to handle a spike in client demand, and then sell it off or shut it down when the demand falls off.  The owner firm wouldn't have to fire any of its own staff, as happened when the technology bubble burst.

    • The owner law firm can acquire a smaller firm without having to charge big-firm rates or pay big-firm salaries.  A large firm could own, for example, an insurance defense firm, pay the lawyers bottom dollar, and be able to bill out at $100 an hour.  This means big law firms won't leave money on the table.

    • Owner law firms can acquire less glamorous practices, like collection law firms (which are very profitable and make a 40% commission on debts collected) without having to sully its own reputation.  This can be very handy when the big firm has a bank as a client, and is happy to do its securities and acquisition work, but doesn't want to foreclose on mortgages.  It makes the owner law firm a full-service firm.

    • Big firms can get into profitable areas they won't touch now -- like matrimonial law and plaintiff’s personal injury law -- without having to have their own lawyers do the work.  Of course, the subsidiary PI firm would be conflicted out of suing clients of its owner.

    • Law firms can market themselves like General Motors, and have separately branded divisions, like Cadillac, Chevrolet, Pontiac and Buick.

    • Or, law firms can market themselves like General Mills, with individual brands like Betty Crocker, Pillsbury, Green Giant and Häagen-Dazs.

This decision has huge implications, not just for large firms, but solos and small firms as well.  Should small firms that specialize in collections or defense work now start figuring out ways to lure large firms to buy them out, which might bring some added stability to the smaller firm?  Or will large firm ability to buy out small firms diminish competition and increase conflicts to the point where smaller companies and individuals will have trouble finding a lawyer.  Stay tuned ....

April 28, 2006 | Permalink | Comments (4) | TrackBack

More Well-Funded Plaintiffs' Actions, Coming Soon to A Company Near You

In this post, Billions from corporations to tort lawyers, fueled by victories with contingency, Rees Morrison reports on a recent law review article that estimates that "contingent fees in tort cases are generating upwards of $22 billion in annual income and are increasing at a substantial rate." Even more interesting, Morrison notes that "the average effective hourly rate of the contingent fee bar has increased by 1,000 percent to 1,400 percent.  And much of this money is flowing from corporate defendants.  Plaintiffs firms then  invest those billions in more lawsuits, with the end result being more suits against companies and more work for their in-house and outside defense attorneys.  Morrison concludes that "Lucre like that will draw in talent and encourage investments, all to the detriment of law departments."

April 28, 2006 | Permalink | Comments (0) | TrackBack

One Way to Get Rid of the Billable Hour

In Bruce MacEwan's post, Let's Assume Everyone Here's An Adult, he floats one suggestion -- which he calls the McKinsey Billing Model -- that law firms could use to replace the billable hour. 
Under the McKinsey model (so named after  McKinsey, a management consulting firm, which may be famous in some circles, but not even well-known to me; I had to look it up), no one at the firm has an hourly billable rate.  Consultants have a "per diem" rate but it is not disclosed outside the firm or even to clients.  Instead, McKinsey has three sizes of project teams, each of which have different monthly costs.  When a project comes in, it's assigned to the appropriately sized team, which will then given an estimate of project cost based on the predicted length of time that the assignment will require.  Bruce gives this as a hypothetical example of how the system works:

"When a client asks McKinsey for help on something, McKinsey assesses the challenge and responds (hypothetically):  'Great; that will take a small team four months, so expect it to cost $880,000.'  The client decides whether that's a valuable economic proposition, and assuming they give the green light, McKinsey goes to work.

"One of three things now happens:

    * It indeed takes a small team four months, and the analysis/report/recommendation is delivered as promised.

    * It turns out to be simpler than McKinsey thought, so they report after two months, 'We think we're done; we'd like to show you what we have, and if you agree, we've stopped the clock.'

    * It turns out to be more complex than McKinsey thought, so they report after (say) two months, 'There's more to this than first appeared (if we're to deal with it in a fashion commensurate with our standards), and we now think it will take the team eight months.  Would you like us to proceed, or to call it off?'"

As Bruce explains, the McKinsey model presumes that everyone involved being "an adult," that is, has an appreciation for, and can rationally assess for themselves, what is value for money.   Bruce believes that most large firm clients have this capability, but that law firms haven't tried the McKinsey model because no other firms are doing it and no one wants to be first. 

While the McKinsey model has appeal, I'm not certain that it would work for all legal matters.  For litigation matters, I'm not sure that firms can predict the duration of litigation at the outset.  And once a client is stuck in litigation, the cost of stopping or switching to another firm could be exorbitant.   Put another way, the longer you're embroiled in litigation, the greater the value of sticking with a firm would be.  It seems like the McKinsey model would actually push upward rate pressure on clients to finish those jobs that can't simply be terminated mid-stream.  At least with the billable hour and forcing firms to give estimates, clients get some protection, as they do with "incentive" systems, where a firm, for example, charges a lower hourly rate up front and agrees to take a bonus for success.  But what protection do clients have in the McKinsey model?

I'm also not sure how the McKinsey model helps firms increase revenues off tasks that firms perform repetitively as Bruce suggests.   True, where firms have done a particular transaction many times, they don't require as many billable hours for Transaction 25 as they did for Transaction 1.  But wouldn't the same hold true under the McKinsey model?  Wouldn't the firm give a lower estimate or assign Transaction 25 to a smaller or lower-priced team because its expertise would reduce the time involved. 

Still, with so much time wasted on billable hours and the lack of incentives for efficiency inherent in the billable hour, I'd be curious to see what might happen if an alternative, even one like the McKinsey model, were implemented for large firm practice.

April 28, 2006 | Permalink | Comments (0) | TrackBack

How Much Protection Do Employers Owe to the Public At Large

Are employers obligated to protect the general public from off-the-job activity by their employees?   That's the question that Mike Fox tackles in this post, Mr. Employer -- You Should Have Protected Me.   For example, if an employer is aware that an employee has a drinking problem, is the employer liable when its employee leaves work drunk and injures or kills someone in a car accident?   Or what about an actual case in New Jersey, where an employer has been sued by the mother, whose husband molested her child  (his step-child).  The mother argued that if the husband's employer had policed  his Internet use and turned him in for viewing sties with child pornography, the husband might not have photographed the daughter and posted her photos on the Internet.  The connection sounds far-fetched, but the court refused to dismiss the case.

Fox summarizes:

The basic concept -- negligence on the part of the employer in selecting or retaining an employee -- has a long history in American common law, but extending that responsibility to conduct not related to work is a dangerous precedent. The more extenuated the connection to the workplace the worst policy it becomes.  Carried too far, it could at some point completely shift the risk of harm to third parties for all but the unemployed.

The other adverse policy that I see coming out of holding employers liable is that it gives employers incentive to ignore their employees' personal problems like drinking, drugs or pornography addiction or simply terminate employees for those issues instead of trying to work with them.  For example, in the drunk driving case, an employer would be better off simply ignoring an employee's drinking problem or firing him for showing up drunk, rather than directing him to counseling programs.  I don't think employers should be penalized for showing compassion towards employees with various problems and yet, that's the direction in which we're heading as we try to hold employers liable for employee conduct that takes place after working hours.

April 28, 2006 | Permalink | Comments (0) | TrackBack

April 27, 2006

Lured by the Sweet Smell of Chocolate

From JD Bliss comes the savory story of a one-time tax lawyer turned gourmet chocolate entrepreneur. Steven Wallace's decision to leave a Washington, D.C., tax law practice in 1988 started him down the road to founding The Omanhene Cocoa Bean Company. On the contrast between being a tax lawyer and an entrepreneur, Wallace says:

"Omanhene challenges all of my strengths and my full intellect.  That compares to tax law, where you're concerned about things like the length of a specific depreciation period for a particular asset rather than the larger strategic picture.  My company gives me an outlet for my creative side in issues like packaging and branding."

If Wallace thinks running an international business is more interesting than practicing tax law, it  can only be because he has not listed to The Complete Internal Revenue Code Podcast Project.

April 27, 2006 | Permalink | Comments (0) | TrackBack

Technology and '24'

It takes courage to confront CTU special agent Jack Bauer, but Future Lawyer is up to the challenge. He asks the question many of us have only wondered about: Why doesn't Bauer have the cool new Jabra JX10 earset when all his enemies do? So far, no word back from Bauer.

April 27, 2006 | Permalink | Comments (0) | TrackBack

U.S. Judge Offers Thoughts on Blogs

The enterprising Ian Best, at his blog 3L Epiphany, scores an interview about blogs with U.S. District Judge Richard G. Kopf of Nebraska, who recently cited to a legal blog in an opinion. Notably, Kopf says he regularly reads legal blogs and checks two in particular every day: Sentencing Law and Policy and How Appealing. As to whether blogs are legitimate forms of legal scholarship, Kopf replies:

"Blogs written by lawyers, judges, law professors and law students that provide solid information and critical analysis on subjects the authors know something about are just as authoritative as other secondary sources."

Asked about the impact of blogs on the legal profession, Kopf says:

"My guess is that legal blogs will partially fill the 'practicality' gap between the legal academy and the rest of us. Blogs provide a unique opportunity for law teachers to directly influence the development of the law in near real time."

One footnote: Best asks Kopf whether his citing to a blog was "unprecedented." It was not. I wrote back in January 2004 about U.S. District Judge William G. Young's citation to The Volokh Conspiracy.

[Thanks to Between Lawyers for the pointer.]

April 27, 2006 | Permalink | Comments (0) | TrackBack

Do Law School Rankings Harm Diversity?

David Bernstein at The Volokh Conspiracy questions the premise of a recent law review article asserting that law schools' overemphasis on rankings  and LSAT scores is hurting black enrollment. As reported in USA Today, John Nussbaumer, an associate dean at Michigan's Thomas M. Cooley Law School, in an article this month in the St. John's University Law Review, says that fewer blacks are making the admissions cutoff as law schools demand higher LSAT scores. The USA Today report says:

"Blacks are getting denied at the gate, Nussbaumer says, because schools are increasingly concerned with LSAT scores: The average law student's score has jumped from 154.3 in 2001 to 157.3 in 2005. And because blacks as a group consistently score about 9 points below the national average, a heightened focus on that one benchmark means blacks are getting a disproportionate share of rejection letters."

But Bernstein says he is skeptical that this trend, purportedly driven by the U.S. News & World Report rankings, would lead to this decline. He says:

"Any law school that wanted to admit more black students without affecting its U.S. News score could simply matriculate black students with LSATs below its median, instead of white students who also had LSATs below its median. This would not affect U.S. News rank at all, even if the black students had much lower average LSATs than the white students."

Bernstein finds good news in the article, noting that the ABA is making efforts to encourage minority students to consider law school early in their education.

April 27, 2006 | Permalink | Comments (2) | TrackBack

The Bible Bench

Howard Bashman points to an intriguing article from Mother Jones magazine, "The Bible Bench," examining the growing influence of Christian conservatives in shaping the state court bench. After describing three campaigns to unseat judges perceived as liberal, reporter Margaret Ebrahim writes:

"In the future, such confrontations promise to become more systematic, as religious conservatives across the country examine judges and smite the ones who don’t obey God's law, as they see it, or fail to agree with their interpretation of the Constitution. With 87 percent of the nation's 11,000 state judges having to face voters in some type of election, the right's well-funded assault on the courts could have a tremendous impact, not just on obvious issues such as abortion, same-sex marriage, school vouchers, medical research, and school prayer, but on the way justice is delivered day by day."

Perhaps the best quote in the article comes from retired Supreme Court Justice Sandra Day O'Connor:

"We must be ever-vigilant against those who would strong-arm the Judiciary into adopting their preferred policies."

April 27, 2006 | Permalink | Comments (1) | TrackBack

April 26, 2006

Lawyer Children Should Be Unseen and Unheard

As much as we drift toward balance between work and family, the truth of the matter is what this article title reflects -- Got Kids?  These Clients Don't Care.  According to the article:

"Last week, a panel of in-house counsel at a National Association of Women Lawyers event in Los Angeles told the crowd to keep their personal lives out of the equation: Clients should come first.  'If there's a family crisis or something with the kids or other clients, we don't care about it -- get the job done,' Linda Louie, general counsel for the National Hot Rod Association, told an audience of about 100 women Wednesday. 'You are a commodity to us -- show me how you can solve a problem.' Panelist Elizabeth Atlee, a senior counsel for BP American Inc., doesn't have a problem with lawyers leading balanced lives -- so long as that's not an excuse to blow off client demands.  Don't answer the phone if you're putting kids to bed, Atlee told the audience, but call back with your full attention as soon as you've done so -- and skip the blow-by-blow: "I don't want to hear about your kids," she said. "I'll tell you if I do -- don't tell me."

Actually, for all that I've written about the importance of balancing work and family, I agree with these sentiments.  Back in my younger, childless days when I worked for the government, one of my supervisors with children worked part time at the office with a day a week of work from home.   Unfortunately, she was never available on that day out of the office because of her parenting obligations, which annoyed me when I needed her approval to get a document out.  Working for myself, I don't have to worry that my children will interfere with my work responsibilities and I can set my schedule in such a way that my clients don't know that I have kids.  Still, the condescending attitudes expressed in the article -- i.e., that women don't realize that they need to draw a line between work and family -- are troubling and unfortunately, may prevent more women from achieving the work-family balance that they deserve.

April 26, 2006 | Permalink | Comments (3) | TrackBack

Clients as Friends Can Become Clients From Hell

If you think that "clients from hell" are bad, watch what you wish for.  As I've written over here at My Shingle, sometimes getting too close to a client can produce results that are even worse than those you'll find with difficult clients whom you despise.

April 26, 2006 | Permalink | Comments (1) | TrackBack

Net Surfing Employee Gets Off Easy

J. Craig Williams wonders whether an administrative law judge in New York  wasn't just a little too lax  in letting an employee off the hook who was warned, repeatedly, to stop goofing off on the job.   Williams elaborates:

"Here you've got an employee surfing the internet and the employer warning the employee to stop goofing off and start working.  The employee disregards the warnings.  The employer then disciplines the employee, and the employee appeals the discipline in an administrative hearing.  As if the surfing itself weren't enough, and just to top it off, the employee admitted in the hearing that he disobeyed the employer's orders to stop using the internet for personal reasons [...] But the New York Administrative Law Judge (in this link, the third one down on the right) let the employee get away with it, and ruled that the employer can only reprimand him for surfing the internet. ...

"To add insult to injury, let's add these facts into the mix.  Over the course of a year and a half, the employee was AWOL from work for 33 days, arrived late to work 49 times and left work early 23 times. Given those absences, and the allegations of internet surfing, I'm betting the only thing he had time to do at work was surf the internet. 

"Apart from his absences, the employee took his allowed vacation. But not only did he take his vacation, here's a guy who also bought his vacation tickets before he put in a request to approve that particular time off, apparently assuming that it would be approved without question.  To put the icing on the cake, the ALJ ruled that the employee's absences weren't excessive.  If that's true, I'd love to have the ALJ's work schedule -- he probably thinks working one day a week is too much."

Now often employers are, in my view, a little too strict in ensuring that workers avoid taking any personal time from the job.  But I've got to agree with Craig here -- the ALJ's decisions goes overboard to favor the employee.

April 26, 2006 | Permalink | Comments (0) | TrackBack

Podcasting for Recruitment

Ron Friedmann writes about a management consulting firm that's using podcasts for recruitment.
He writes that the podcasts put the firm on the cutting edge and make it more appealing to young job seekers.  Friedmann wonders whether large firms might use podcasts to recruit.

Why stop at podcasts though?  Why not videocasts that show associates working away happily in fancy offices with window views or images of the firm cafeteria? Associates could demand access to webcasts of firms to get a sense of how many people burn the midnight oil.  The possibilities for this kind of technology are truly endless.

April 26, 2006 | Permalink | Comments (1) | TrackBack

April 25, 2006

Claws Come Out for Supreme Fight in Connecticut

At Crime & Federalism, Norm Pattis writes that "the long knives are out, sharp and dangerous on the Connecticut Supreme Court this week." The infighting at the court comes as the result of allegations that its former chief justice, William J. Sullivan, secretly held off publication of a controversial ruling to keep it from interfering with the confirmation of Republican Peter Zarella to succeed him. Pattis explains what happened next:

"When fellow justices wondered what became of the decision, all Hell broke loose. The acting chief, David Borden, has now written a letter to the Judiciary Committee complaining of misconduct by the former chief. And Sullivan himself has fessed up to manipulating publication of the decision to benefit his favored son. Undeterred by all this sleaze, the Republican majority of the state's Judiciary Committee nonetheless voted to approve the nomination."

Today, Zarella withdrew his nomination. But he did so in a manner that leaves the door open for his appointment, Pattis says.

"He just wants to be asked again. That's the same old Karaoke sung at the College of Cardinals where soon-to-be Popes are expected to modestly decline the nomination before accepting."

Read more on this story in today's Hartford Courant.

April 25, 2006 | Permalink | Comments (0) | TrackBack

Awards Honor Best Law Firm Sites

Lawyer and marketing consultant Micah Buchdahl must be a very patient man. This year, for the fourth time, he reviewed the Web sites of each of the 250 largest U.S. law firms to compile his 2006-2007 Internet Marketing Attorney Awards for the best large-firm sites. This year's top five, in Buchdahl's opinion: Holland & Hart, Reed Smith, Kilpatrick Stockton, Bullivant Houser and Morrison & Foerster. Of his top pick, he writes:

"H&H is one of those rare law firm web sites that I actually visit from time to time between IMA reviews. I’ve seen their people at my web site programs in the past and am glad to see they are paying attention. The home page is close to textbook perfect, making use of every inch without looking like an overstuffed burrito. There are numerous well-coordinated sister sites and blogs. The nifty 'Blue' quarterly e-zine is worth subscribing to. All they could do here was screw it up. Instead, they continue to improve it. An IMA favorite and a site worth bookmarking."

Buchdahl also reviews 15 small- to mid-sized firms, with the immigration firm Siskind Susser topping the list.  His Nifty 50 highlights Web innovation by law firms. "This is the fourth time I’ve gone through the IMA process," Buchdahl says, "and law firm web sites continue to improve by leaps and bounds."

April 25, 2006 | Permalink | Comments (2) | TrackBack

Podcasts from Techshow

Our sonically challenged Coast to Coast podcast from ABA Techshow is now up, in which J. Craig Williams and I interview blogger Tom Mighell, a member of the Techshow planning board, and technology editor David Snow. With Craig on Skype, David on a cell phone in a cab en route from O'Hare airport to the conference, and me on cell outside the main exhibit hall, only Tom manages to come through consistently loud and clear. Fortunately, we are all at least audible, as we talk about what's new in legal technology.

Meanwhile, just in time for Techshow, Tom Mighell and Dennis Kennedy unveiled the first installment of their own podcast, The Kennedy-Mighell Report, which will cover legal technology with an Internet focus. The first program offers a heads-up on ABA Techshow. (Here's the RSS feed.)   

In my own conversations at Techshow, I found a great deal of interest in podcasts as tools for both information and marketing. And I now know of at least three lawyers who have their own podcasts in the works. So stay tuned to your podcast dial.

April 25, 2006 | Permalink | Comments (0) | TrackBack

Liveblogging the Blog Law Conference

While one representative sampling of the legal blogging community was in Chicago late last week for ABA Techshow, another group of legal bloggers was in San Francisco for the Blog Law & Blogging for Lawyers conference. And as bloggers are wont to do, some liveblogged from the conference, offering those of us who were not there the opportunity to take part vicariously.

One who sent us frequent reports was David Maizenberg of Decisis, who tells us that one meets good people at a blogging conference:

"[I]t gives me hope when I meet a smart and successful attorney who is also very much a soulful human being, with wide-ranging interests and a real passion for living.

"I met more people who fit that description at the Blog Law and Legal Blogging Conference these past two days than at any other law-related conference I've ever attended. I won't try to analyze it, but obviously there is something about blogging/writing that brings such people together; perhaps the freedom of expression, or the independence of mind and self-confidence it takes to stake out an imperfect and non-corporate public identity."

Maizenberg's coverage starts here. Also liveblogging from the conference was Joe Gratz, whose coverage starts here.   A recent law school graduate, Gratz must still be in note-taking mode, because his posts covering each speaker are detailed and thorough and even include the speaker's photo. Others who posted from the conference include Cathy Kirkman, Dennis Crouch, Denise Howell and Kevin O'Keefe. O'Keefe has this to say about the conference:

"No question after this conference that blogs and citizen journalism will (be) part of the fabric of law and society for years, if not forever. Law firms will accept this, just like they have accepted websites and email. Law firms who now say blogs do not play a role in their practice and marketing will change their tune before the end of the decade."

For photos of the conference, see the Flickr pages of Joe Gratz and Denise Howell.

April 25, 2006 | Permalink | Comments (0) | TrackBack

April 24, 2006

Limited Litigation in the Blogosphere

Cathy Kirkman blogs about the state of libel litigation in the blogosphere, linking to a recent  essay titled "Libel in the Blogsphere:  Some Preliminary Thoughts" by uberblogger Glenn Reynolds.   Kirkman writes that the paper posits two main reasons for a lack of online libel litigation:

(1) Section 230 of the Communications Decency Act, which immunizes  ISPs and others for publishing third-party comments; and

(2) technological and cultural aspects of the blogosphere, including  norms of rapid correction, third-party substantiation, and hostility to legal threats in the form of public exposure and criticism.

Of course, we're still in the early days of blogging, the initial honeymoon phase.   For me, the jury's still out on what happens when this initial infatuation wears off.

April 24, 2006 | Permalink | Comments (1) | TrackBack

More on Law Department Sabbaticals

Rees Morrison again posts on the topic of law department sabbaticals.  Morrison cites statistics that 23 percent of businesses in the country offer paid or unpaid sabbaticals.  But while many of these companies have substantial law departments, Morrison notes that "I have never heard of one of their in-house lawyers who has taken such a leave."   Some companies allow lawyers to take a sabbatical as they wish, while others only permit the lawyer to work for a nonprofit. 

I'd certainly take time off if I had the option, particularly if the company paid for my leave.  I'd like to know why more lawyers don't take advantage of these programs.

April 24, 2006 | Permalink | Comments (0) | TrackBack

Can A Firm Make Associates Enthusiastic Employees?

Bruce MacEwan starts this post with a quote about yet another disgruntled and unenthused law firm associate complaining about inefficiencies and poor management and treatment of employees at his law firm and others.  But unlike many other associates, this fellow did some research on management and came up with a book that MacEwan recommends to firms:  "The Enthusiastic Employee."  Granted, in today's law firm culture, an "enthusiastic associate" is almost an oxymoron. But it doesn't have to be that way -- and in fact, enthusiastic employees can substantially improve the firm's bottom line.  As the book's dust jacket reads:

"Enthusiastic employees far out-produce and outperform the average  workforce: they step up to do the hard, even 'impossible' jobs.  They'll rally each others' spirits in even the toughest times. Most  people are enthusiastic when they're hired -- hopeful, ready to work  hard, eager to contribute. What happens? Management, that's what."

Isn't that  what law firms want?   MacEwan thinks they should -- and  for those who don't believe the benefits, MacEwan reminds them:  "How much does it cost to replace an associate?"

April 24, 2006 | Permalink | Comments (0) | TrackBack

Another Blawg Review

Brandy Karl  hosts Blawg Review #54, with a "through the looking glass theme."  Most interesting of her posts is the recognition of this month's trend toward the personification of the blogosphere. Among the in-person meetings between bloggers this month were last week's LexThink Lounge  and the Blog Law and Blogging for Lawyers conference and the Volokhs' planned get together at the Berkman Center's Bloggership conference. If you have the chance, jump on this new blogwagon and reach out and touch a blogger sometime soon.

April 24, 2006 | Permalink | Comments (0) | TrackBack

The Sun Shines on Sons and Daughters Who Make Rain

Larry Bodine recognizes that women sometimes  have it tough  making it rain at law firms.  So he links to Ten Best Practices by Women Rainmakers, which lists various techniques that women can use to overcome obstacles to bringing in business.  These techniques include marketing as part of a team, focusing on a niche and seeing marketing possibilities in everything you do.  But those ideas benefit everyone, not just women.   In my mind, the tip labeled "Set Ground Rules" is the one that's most helpful to women (or men) concerned with maintaining a work-family balance.  Setting ground rules involves saying no to certain marketing endeavors, like after-hours cocktails, and instead proposing substitutes like breakfasts that better suit your schedule.  This kind of marketing rule ensures that women have an opportunity to market and to come up with marketing ideas that not only accommodate their own schedules, but might more readily accommodate a prospective client's schedule as well.

The article on best practices reminds us that successful marketing is the great equalizer in the legal profession.  As the article concludes:  "The sun shines on those who make rain."  So true.

April 24, 2006 | Permalink | Comments (0) | TrackBack

April 21, 2006

A Bevy of Bloggers at Techshow

There are many legal bloggers here at Techshow. Just some of the people I know are here include: Jim Calloway, Ernie Svenson, Reid Trautz, Tom Mighell, Dennis Kennedy, Sabrina Pacifici, Ellen Freedman, Ben Cowgill, Simon Chester, Greg Siskind, Jeff Krause, A.J. Levy, Neil Squillante, Will Hornsby, Matt Homann, Tom Baldwin. Plenty of others, I'm sure. If you're a blogger and you're here, let me know.

April 21, 2006 | Permalink | Comments (0) | TrackBack

How a Podcast Launched a Conversation

Speaking of Ben Cowgill, he blogged yesterday about how a podcast he listened to en route to Techshow sparked important conversations when he arrived. Given that the podcast he describes is the one I co-host, Coast to Coast, I was particularly intrigued by what he wrote.

The short version is that he listened to two of our podcasts, one about law firm Web sites in which Dennis Kennedy was a guest and another about Katrina in which Ernest Svenson was a guest. When Ben arrived in Chicago, Dennis happened to be one of the first people he encountered and then he found Ernie early the next day. Each time, having listened to the podcast, he wrote, "prompted a meaningful conversation that might not have occurred otherwise."

April 21, 2006 | Permalink | Comments (0) | TrackBack

Liveblogging From ABA Techshow

I am attending ABA Techshow this week, where I am speaking on two panels. A number of legal bloggers are here. Surprisingly, some of them are even finding time to blog about all that is going on. At SoloBlawg, for example, Ben Cowgill talks about the prevalence of e-discovery discussions and vendors here, noting that the importance of e-discovery is apparent everywhere -- in lectures, mock courtroom presentations, the exhibit hall and informal conversations. He adds:

"[O]ne is almost tempted to think that the 'e' in 'e-discovery' means 'everybody' because it is the topic everybody's talking at, not only here at TechShow but in the field of legal technology in general."

Meanwhile, Simon Chester from  liveblogged yesterday afternoon's keynote by G. Burgess Allison, who talked about Thomas Friedmann's The World is Flat and its implications for the legal profession. Also blogging from TechShow is Jim Calloway, who wrote not long after he arrived, "I've already picked up a couple of pointers and seen some cool new product demonstrations."

Sometimes those pointers come where you least expect them. Ellen Freedman of Law Practice Management describes it this way:

"As is often the case, some of the best conversations occur at or near the bar with people you've never before met or heard of, or with old friends. Creativity abounds, war stories apply practical context, and great information is garnered. Here is where innovation is often borne, or caught, like a contagion, and brought back to the home town."

Let us hope that innovation is, indeed, infectious.

April 21, 2006 | Permalink | Comments (1) | TrackBack

April 20, 2006

The Story Behind the Story

Norm Pattis of Crime & Federalism has done a little bit of digging to come up with this story behind the story of ineffective counsel.  Here's the scoop.  On Tuesday, April 18, the Supreme Court heard oral argument in Gonzales-Lopez (hat-tip to SCOTUS Blog for this  summary).  The case involved a defendant, Gonzales-Lopez, accused of marijuana distribution.  Gonzales-Lopez's  family hired an attorney, John Fahle to represent him  at arraignment, but Gonzales-Lopez learned of another California attorney, John Low, via the Internet and sought to retain Low instead.  The court denied Low's application for pro hac vice and as a result, a second local attorney, Karl Dickhaus was retained as local counsel.   The case was Dickhaus' first criminal case in federal court and Low was not permitted to advise Dickhaus or sit with Gonzalez-Lopez; not surprisingly, Gonazales-Lopez was convicted.

The issues at the Supreme Court address whether the denial of pro hac vice and the exclusion of Low from any participation whatsoever denied Gonzales-Lopez of  counsel.  Interesting question, sure.  But what's equally interesting is just who is John Low, this white knight brought in from California to handle the matter?  That's the question that Pattis investigates.  According to Pattis' post

"One of Mr. Low's websites boasts that he is a 'national trial lawyer.' On another website he specializes in nursing home abuse. On another he is a master of personal litigation. And don't forget the site devoted to securities fraud. If memory serves, the young lawyer has not yet been practicing a decade. Is there anything in which he does not specialize?"

Of course, it's hard to say whether Low's all around experience or Dickhaus' lack of criminal experience make him less competent in a criminal trial.  After all, Daniel Petrocelli, the lawyer who secured a civil judgment against OJ Simpson is holding his own in his first criminal trial.  At the same time, I'd be surprised if Petrocelli is licensed to practice in Texas; seems inherently unfair that Skilling should be able to choose counsel freely whereas a run-of-the-mill criminal like Gonzales-Lopez doesn't have that right.  I'm guessing the judges side with Gonzales-Lopez.  Sure, you may not have the right to the best possible attorney if the state foots the bill, but I think that most of us, conservative or liberal, would agree that when you spend your own money, you should be able to retain whatever attorney you want, whether he or she is the conventional choice or not.   

April 20, 2006 | Permalink | Comments (0) | TrackBack

More Hard Labor, Paid Suspension: What's an Adverse Action in the Context of Retaliation?

Mike Fox offers some good coverage of the recent Supreme Court argument in White v. Burlington, a Supreme Court proceeding that addresses the issue of what constitutes an adverse employment action for purposes of retaliation statutes. Many times, retaliation doesn't always result in a booming and definitive Trump-esque "You're fired!!!" White, plaintiff in the litigation, claimed that the company's retaliation for a complaint of sexual harassment consisted of being moved to another job position, in the same classification that required more physical labor and a 37 day suspension without pay for insubordination that was changed to a paid suspension.  Fox excerpts some of the questions tossed out by the justices at oral argument and cites press coverage of the decision.  As for Fox, this is a tough case with many implications; he predicts that the Court won't issue a ruling until close to the end of the Court's term.

April 20, 2006 | Permalink | Comments (0) | TrackBack

Do You Need to Waste Time Traveling to Meetings These Days?

In this post, Computer Desktop Brings Remote Meetings to the Masses, Larry Bodine reports on some of the advancements that have been made in online videoconferencing.   Though back in the 1990s, videoconferencing was supposed to eliminate travel, expectations failed to materialize because of the cost and inferior quality of available technology.   Larry reports on new PC conferencing services that work much better and provide Web conferencing for up to 100 users for a monthly fee of $1,500, still out of the price range for small firms, but probably a savings on time and travel for larger companies. (note -- there are per diem conferencing services that smaller firms can use on an as needed basis).

Being a marketing expert, Larry concludes with a way that this service can benefit law firm marketing:

"So here's the marketing angle: professional firms can use desktop meetings to confer with remote clients, without either party having to buy any expensive equipment.  The same time and airfare cost savings are gained as with old-time video conferencing.  Law firms that market their online meeting capability will be more attractive to clients and be able to distinguish themselves from competitors."

April 20, 2006 | Permalink | Comments (0) | TrackBack

New Zealand and the Gender Gap

Like in the U.S., New Zealand law firms suffer from gender disparity at the top.  Over  here at My Shingle, I've linked to this article that discusses the gender problem and how New Zealand lawyers are addressing it.

April 20, 2006 | Permalink | Comments (0) | TrackBack

Boutique Bonuses Pack a Salary-Size Bang

Boutique firms may not have the same salaries on paper as their large counterparts, but bonuses more than make up the difference, as reported in the Texas Lawyer story Litigation Boutique Pays Salary-Equaling Bonuses.   According to the article, Gibbs & Bruns,  a Houston litigation firm, paid bonuses to its 10 associates that equaled their yearly base salaries.  That's not bad, considering that starting salary for Gibbs & Bruns attorneys is around $127,000, just $8000 less than the standard at large Texas firms.  Another litigation boutique, Susman Godfrey reported bonuses of around $86,000 to $150,000 or 75 percent of associate base pay.

There are certainly valid reasons to choose a large firm over a boutique practice.   But the lesson here is don't assume that salary is one of those reasons.

April 20, 2006 | Permalink | Comments (0) | TrackBack

Welcome: How Appealing

Howard Bashman's blog How Appealing has officially taken up residence on's blog network.

If you haven't checked out How Appealing, you either a) aren't "with it" enough to read legal blogs, b) aren't a true legal-news junkie or c) need to get out from under that rock.

April 20, 2006 | Permalink | Comments (0) | TrackBack

April 19, 2006

Patent Settlements Aplenty

J. Craig Williams examines some of the patent settlements in the news.

"It's enough to make even the most seasoned litigator stand up and take notice. ... and as if we haven't heard enough about the iPod, here comes the next BlackBerry lawsuit. Can you do without your iPod?" Williams writes.

Read on here.

April 19, 2006 | Permalink | Comments (0) | TrackBack

April 18, 2006

Can Companies Deprive Employees of Right to Counsel?

The Wired GC posts about a provocative subject:  whether companies whose employees are accused of corporate crimes deprive them of the right to counsel by refusing to pay the cost of defense?   According to Wired GC's post and this article from The New York Times, companies under pressure from the feds are often cutting off payment of defense costs for employees, notwithstanding that their employment agreements or company bylaws may require the company to cover these expenses.  While it's hard to feel sympathy for corporate defendants, who often have net worth in excess of a million dollars, at the same time, the complexity of their cases also entails substantial legal fees.   Moreover, in some instances, employees are entitled to have their companies pay the costs of legal defense.  By cutting off funds, many corporate employees wind up accepting plea bargains -- which in many instances, is just what prosecutors intend by pressuring companies to stop paying employee legal expenses. 

As Wired GC concludes:

"For most corporate employees facing prosecution, even eventual reimbursement is an empty gesture. The likely result is that they plead, they sing and the prosecutors' batting average looks good over time."

For more on the topic, follow the links in Wired GC's posts to commentary by other bloggers.

April 18, 2006 | Permalink | Comments (0) | TrackBack

More on Law as a Commodity

Human Law ponders whether the legal business will soon be the commodities business.  He cites two recent articles from David Maister and Richard Susskind that speak to the coming trend toward commoditization of legal services.  According to the Susskind interview, some refer to commoditization as "supermarket law" in that it will entail the sale of prepackaged product rather than information service and open the door to the provision of these services by non-legal providers.  The message that Human Lawyer takes from these pieces is one of woe unto those firms that don't listen, because commoditization is coming sooner than we think.

April 18, 2006 | Permalink | Comments (0) | TrackBack

Hey, Juniors: Look Out for Outsourcing?

Ron Friedmann posts at Prism Legal about outsourcing, linking to a recent  round table discussion on outsourcing  at Law Practice Today.  I've also discussed the topic briefly here at  MyShingle.  Does your firm outsource?  And if you are a starting associate, do you fear that outsourcing may eventually jeopardize your raison d'etre at a firm.  There's been lots of commentary in the blogosphere on outsourcing, some from the solo community, which has discussed, for example, whether patent outsourcing might displace solo IP lawyers.  But to me, it seems that outsourcing poses the greatest risk for junior associates engaged in document review and more ministerial tasks.  So how about it -- are you juniors afraid of the outsourcing trend?

April 18, 2006 | Permalink | Comments (0) | TrackBack

Legal Malpractice and Conflict of Interest -- Again

As firms become more competitive and more aggressive with marketing, they need to remain ever cognizant of legal ethics requirements on avoiding conflicts of interest.  Otherwise, the next time a firm gives short shrift to one client to go after another, it might find itself in the circumstances that one BigLaw firm finds itself in, as reported by Anthony Lin in this New York Law Journal article, Proskauer Hit With Malpractice Suits in Florida.   According to the article, Proskauer has been sued by Ron Perelman, who last year won a $1.6 billion verdict against Morgan Stanley for similar conflicts claims.  And Proskauer has been sued in two other suits alleging that Proskauer breached its fiduciary duty to two former clients and gave them erroneous advice that cost them millions.  Allegedly, in both cases, Proskauer sacrificed the plaintiffs' interests to advance the firm's ability to develop relationships with other clients or entities in order to generate more future work.

Increasingly, large firms are becoming subject to legal malpractice suits like this one.   It will be interesting to see how large firms react:  Will they cut back on controversial decisions to minimize malpractice exposure?  Or, as I predict, work to change ethics rules so as to allow firms to represent conflicting interests without risking grievance committee discipline and malpractice exposure. 

April 18, 2006 | Permalink | Comments (0) | TrackBack

Good Legal Writing -- Do Show, Not Tell

Matthew Lerner at New York Civil Law tells us about a relatively new blog on legal writing, Ray Ward's New Legal Writer. Needless to say, Ward's blog is well-written (it had better be, given the close scrutiny it's bound to receive from his writer colleagues).  But like so much of what's been written about legal writing, the blog thus far engages more in telling about good legal writing, rather than showing how it's done (for the importance of show rather than tell, see, e.g.,   here or here).  I don't know about anyone else, but the best way for me to improve my own writing is to read other examples that really shine.   With so many briefs online these days, it shouldn't be hard to cull real life examples of fine writing, yet there's little that's plucked out and used to demonstrate good form.  Is this because so much legal writing is just serviceable and mediocre, but nothing more?  Or do we not recognize good legal writing when we see it?  Whatever the reason, I'd love to know your thoughts, but not as much as I'd love to see some really top quality legal writing.  Feel free to send it my way! 

April 18, 2006 | Permalink | Comments (0) | TrackBack

April 17, 2006

Lessons of Las Vegas

I've returned from a combined business and vacation trip to Las Vegas. Back home at My Shingle, I share some of the marketing lessons  that Las Vegas taught me.

April 17, 2006 | Permalink | Comments (0) | TrackBack

Makeup Rules Not Considered Sexist

Michael Fox at Jottings by an Employer's Lawyer posts about a recent 9th Circuit en banc decision  affirming that a female employee's termination for refusal to wear makeup  was not discriminatory.  The court acknowledged that grooming codes could be discriminatory if unequally burdensome on one gender, but found that a rule requiring women to wear makeup did not pose an unequal burden.   Reasoned the court:

"We respect Jespersen's resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self image, can create a triable issue of sex discrimination."

At the same time, two judges dissented, finding that  requiring makeup of women only is in fact a classic sexual stereotype:

"Women's faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on -- and presumably enjoy wearing -- cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah's quaint notion of what a 'real woman' looks like."

Which side do you come out on?  And how would this decision apply to law firms, I wonder.

April 17, 2006 | Permalink | Comments (3) | TrackBack

Will Fancy Gifts Help Keep Clients?

Do the golf outings and ballgame box seats sway general counsel?  That's the question that most law firm marketing departments would like answered; however, according to this recent  post by Rees Morrison, the answer may disappoint.  As Morrison writes, perks like tickets and outings do sway decision makers, despite their best efforts to stay objective.  At the same time, these perks don't influence them as much as gift givers would like:

Gilbert writes that "Dozens of studies have shown that when people try to overcome their judgmental biases -- for example when they are given information [RWM: opera tickets or football seats or Michelin four star meals] and told not to let it influence their judgment -- they simply can’t comply …"

Morrison concludes that: "in-house lawyers, showered with emoluments from marketing, lose objectivity less often than the givers hope, but more often than the recipient lawyers realize."  What do you think?

April 17, 2006 | Permalink | Comments (0) | TrackBack

Judge Scolds Lawyers for Misbehaving in the Sandbox, er, Courtroom

If you've ever spent time with children engaged in a spat (it's mine, no it's not, it's mine, no it's not, etc ...), then the conduct described in this Legal Intelligencer article, Federal Judge Takes Attorneys to Task Over Tactics, may remind you of that experience.  According to the article, attorneys on both sides of an insurance bad faith case filed 19 pre-trial motions that District Judge John P. Fullam ultimately disposed of with a two-page memorandum that denied all of them.  Wrote the judge:

"It seems clear that counsel are more interested in annoying each other than in advancing meritorious positions."

Though both sides were at fault, the judge reserved most of his criticism for Allstate and the Dechert firm lawyers who represented the insurer.   Despite all of Allstate's filing, the case still survived summary judgment and will proceed to trial.

April 17, 2006 | Permalink | Comments (0) | TrackBack

Some Non-Taxing Reading

This week's issue of Blawg Review is up and running over on  Mauled Again, the tax law blog of professor James Maule.  Maule's Blawg Review 53 has a Tax Day related theme, but believe me, it's a non-taxing read.   

April 17, 2006 | Permalink | Comments (0) | TrackBack

Should the Supremes Reign Supreme on TV?

Howard Bashman's latest column asks the question: Should Congress Mandate Supreme Court TV? 
Bashman addresses both sides of allowing TV media access, including the widely cited argument that access might diminish the dignity of proceedings or cause lawyers to "play to the cameras."  Bashman responds to this argument head on, describing his experiences in other courts that allow media access without incident and also with the point that Supreme Court cases already are well-publicized; television access wouldn't expose much more.

On the pro side, Bashman notes that while appellate and Supreme Court arguments may not make the "most riveting viewing," television access could improve accuracy in case reporting and inform the public.  While Bashman supports pending legislation to mandate access, he also proposes a compromise such as same day audio files, which would accomplish the same informational and educational goals.

April 17, 2006 | Permalink | Comments (0) | TrackBack

April 14, 2006

eBay Special: Jackson Jury Notes

Is it a mere coincidence that on the day Michael Jackson announces a debt refinancing to stave off bankruptcy, juror notes from his molestation trial appear for sale on eBay? Probably. But for a minimum bid of $500 (no takers as of this writing), you could own the juror notebooks of a Santa Maria, Calif., resident described as alternate juror number two in the trial. Here's the description:

"These are in good condition. I was alternate # 2 in the Michael Jackson Trial. I sat in the jury box for the duration of the trial. I have my original notes and badge and official certificate that says juror # 207 in the Michael Joe Jackson Trial signed by Judge Melville."

What else could you ask for: A piece of legal history and pop history, all in one. ("Good Get" award to

April 14, 2006 | Permalink | Comments (0) | TrackBack

The Divorce Petition and its Backstory

It is the stuff of Internet legend. Twenty years ago, a Texas lawyer by the name of Paul Frank Hensler filed in his own behalf what may go down in legend as the most bizarre divorce petition ever. Handwritten in a generous variety of script and block letters and creatively illustrated with pictures of trumpets, drum rolls and hearts, it prays for divorce from a woman he describes as a "transient person having her residence in a 1970 Chrysler," but whom he "loves with all his [picture of a heart] despite it all." The petition claims that the marriage had become unsupportable, "because of, ho-hum, conflict of personalities between Petitioner and Respondent, but chiefly because of conflict of personalities between Respondent and Respondent."

Reading it, one is uncertain whether to laugh or cry. Buffalo Wings & Vodka says it is a document "that will renew your faith in love." Probative calls it "hilarious." Roll on Friday says the petition is "superb," noting that the petitioner "has scrawled the whole thing in a childlike hand complete with little drawings."

But then comes de novo, who, with the help of a little Westlaw research, comes up with the rest of the story. It appears that the story is more tragic than humorous, one charted by a record in the courts, suggesting that both Mr. and Mrs. Hensler had legal, financial and personal difficulties.

Read de novo's post for what Paul Harvey would call "the rest of the story."

April 14, 2006 | Permalink | Comments (0) | TrackBack

Are Law Firms Manageable?

David Maister's piece in the April issue of The American Lawyer, titled, Are Law Firms Manageable? (and reprinted on his own site), is predictably getting attention on both sides of the pond. No surprise, given that Maister says it is in the nature of lawyers to be bad managers:

"The ways of thinking and behaving that help lawyers excel in their profession may be the very things that limit what they can achieve as firms. Management challenges occur not in spite of lawyers' intelligence and training, but because of them."

What are law firms to do? Turn themselves upside down and inside out, Maister suggests:

"Suffice it to say that unless law firms undergo a cultural revolution, not just minor changes, most will not be able to achieve their ambitions. Dysfunctional behavior by partners, currently not only tolerated but vigorously celebrated, will prevent firms from functioning as they desire."

If Maister throws down the gauntlet, Bruce MacEwen picks it up, putting forth his belief that law firms can be managed.

"What we need are one, or a handful, or exemplar firms, which will doubtless be led by exceptional individuals of uncompromised vision ('people make the times; the times don't make the people') such as Jay Zimmerman of Bingham McCutchen today or Clint Stevenson of Latham 20 years ago (who a commenter called 'Latham's Paul Cravath')."

From the U.K., the comments of Maister and MacEwen drew a response from Human Law, who warns that, unless law firms reform, the end is near:

"My view is that with increased globalisation occurring in all legal jurisdictions and now the prospect of non lawyers entering the legal services market, the times of law firms being able to dysfunction in the way that Maister describes and yet make lots of money will soon be over."

Perhaps the only hope for the business of law is, as Maister says, the fact that lawyers "compete only with other lawyers."

April 14, 2006 | Permalink | Comments (0) | TrackBack

M&A Outsourcing to India?

It is happening now, reports Larry Bodine at Professional Services Marketing Blog. Lawyers in India -- who are paid $12,200 to $21,000 a year -- are carrying out the due diligence work for an upcoming corporate acquisition financed by a major U.K. bank. But there is a silver lining, says Bodine:

"The smart US law firms will link up with the Indian-based legal providers and pass along the savings to their corporate customers.  The will be able to use to market and differentiate themselves.  They also won’t have to hire so many $125,000 associates."

April 14, 2006 | Permalink | Comments (0) | TrackBack

April 13, 2006

The Most Taxing Podcast Ever

Jim Calloway calls it "great news for insomniacs and tax geeks alike," and it comes just in time for that most revered of days, April 15. The source of Calloway's excitement is Jack Bogdanski's announcement that he will podcast the complete Internal Revenue Code -- and he won't even charge people to listen! Home page for the project is right here, where you can already find seven IRC sections ready for downloading to your computer or MP3 player. Bogdanski should be familiar with the material, since he is a tax professor at Lewis & Clark Law School.

April 13, 2006 | Permalink | Comments (0) | TrackBack

Murphy's Law of Lawyering

Indianapolis lawyer Stephen Terrell recently left a firm to open his own law office. In the process, he is learning some little-known lessons about starting a practice and sharing them on his blog, Hoosier Lawyer. This week, he learned that when only one thing won't work, it's something you need. He describes the lesson this way:

"If you have 20 outlets and jacks in your new office, but only two are absolutely crucial to your start-up operation, it is those two -- and only those two -- which won't work."

Maybe we should call it the Murphy's Law of lawyering.

April 13, 2006 | Permalink | Comments (0) | TrackBack

Scalia's 'Proudest Thing'

Could a law blogger "have any finer friend than Justice Antonin Scalia?" asks Joseph Schuman at Law Blog. It sometimes seems that the brilliant-but-quirky jurist is to legal news what the talented-but-quirky Michael Jackson is to celebrity news -- an endless source of fodder. Speaking to law students at the University of Connecticut yesterday, Scalia said that his 2004 decision not to recuse himself from a case involving Vice President Cheney was the "proudest thing" he has done on the Court, as reported by Associated Press.

Given that Scalia has no doubt done many "things" of which he should be proud, his choice of this has Norm Pattis at Crime & Federalism wondering "if he's off his rocker, or if his meds need readjusting." But Pattis is even more disturbed about what he calls Scalia's "anachronistic crusade," his adherence to constitutional originalism.  Says Pattis:

"It is difficult to take Scalia's commitment to originalist seriously. He blasts those favoring a living constitution, arguing that such folks are too free to impose their meaning on age-old terms of constitutional text. Yet the decision he makes to adhere to the words of those long-dead is just as much of a choice. Frankly, I'd choose even a bad doctor trained this century over Benjamin Rush, a famous colonial physician. So would Scalia."

Hmmm, maybe we should see what Michael Jackson thinks.

April 13, 2006 | Permalink | Comments (0) | TrackBack

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