How Important Is A Lawyer’s Computer Skills?

When lawyers charge by the hour, it is natural to question how much of their time is wasted because they aren’t proficient at using software such as Word and Excel.

D. Casey Flaherty, who works as a lawyer in the Law Department of Kia Motors, decided to test the computer proficiency of lawyers.  As reported in an article published in the American Bar Journal, the results weren’t pretty.  The audit covers basic tasks that litigators would use to create or manage documents.  Flaherty reports that he can complete the audit in about 30 minutes.  Some lawyers have taken as long as 8 hours.  Here is how Flaherty reported the results:

I’ve administered the audit 10 times to nine firms (one firm took it twice). As far as I am concerned, all the firms failed—some more spectacularly than others.  The audit takes me 30 minutes. So, somewhat arbitrarily, I selected 1 hour as passing. The best pace of any associate was 2.5 hours.   The worst pace was 8 hours. Both the median and mean (average) pace rounded to 5 hours.

So should you administer a similar test to your lawyer before deciding whether to hire him or him?

For most people, the answer is pretty clearly no.  Flaherty is in a position that most people who hire lawyers aren’t.  He works for a deep pocket that retains large numbers of lawyers, most of whom charge by the hour.  Moreover, much of the work Kia Motors needs lawyers to perform involves lawsuits that involve large numbers of documents and data.  Thus, for Flaherty and Kia Motors, it is especially important to be concerned about the computer efficiency of its lawyers.  I don’t know how much Kia Motors spends annually on its outside attorneys, but I wouldn’t be surprised if more computer-savvy lawyers could save the company hundreds of thousands of dollars.  Few people can make a similar claim.

I therefore suggest that you take a somewhat different approach.  Technology is an increasingly important aspect of running a modern day business.  You should be concerned if a law firm appears unable to handle the business basics well–especially communications with its potential or current clients.  The most common complaint filed made against lawyers is that they don’t return phone calls and are otherwise unresponsive.  I’d rather that you focus on your lawyer’s ability to run an office effectively than the specific number of hours it takes them to complete a certain task on Excel.

This is not to say, however, that Flaherty hasn’t performed a useful service by shining light on an otherwise underappreciated source of lawyers’ inefficiency.

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Marketing Advice Lawyers Receive

The American Bar Association Journal on July 1 published an article entitled, “50 simple ways you can market your practice.”

It is directed to lawyers and contains such gems as:

17.) People sometimes need to be convinced that their legal problem is severe enough to hire you, and it’s up to you to persuade them. That said, turning someone away when they really don’t need a lawyer is good for business, too. It’s a good way to build trust.

and

23.) The best elevator speech? “Hi, I’m a lawyer. What do you do?”

Even if you set aside the issue of whether elevator speeches are appropriate or effective ways to sell something as complicated as legal services, the actual words that lawyers are encouraged to say are robotic, if not downright lame.

It would be easy several other specific pieces of marketing advice that is directed to lawyers.  But there is a much more important pattern and lesson here.

A majority of the marketing tips listed in the article make it seem that marketing a law firm is nothing more than completing a series of techniques and tricks.  And, for example, if only a lawyer adds Google Analytics to their website, attends trade association events, and don’t hand out too many business cards all at once, everything will be fine.  But marketing isn’t a discrete series of steps that need to be mastered. What’s missing from the ABA Journal article and much of the advice that lawyers receive about marketing is a sense that client service should a focus.  That’s the pattern behind the ABA Journal list and others that I have seen.

The broader lesion is this:  Lawyers aren’t likely to change the way law firms operate by themselves.  Real and lasting change will only take place when clients play a much larger role and exert more control of the client-attorney relationship.

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“I don’t know what this lawsuit will cost because there are so many factors involved, and I don’t control many of them.”

Can’t tell you how many times I have heard experienced litigators voice this sentiment when asked at the beginning of a case to estimate what the attorneys’ fees will be.

That world is beginning to change rapidly.

Large law firms that often represent the largest corporations used to have more leverage than anyone when it came to saying that it was just too hard to provide an estimate.  But increasingly not only are they providing an estimate, they provide a budget that the client can monitor on a daily basis.

What happened to create this change? Two primary factors—technology that allows lawyers and clients to interact online in real time, and faster and larger computers that crunch huge volumes of numbers.  The second factor is often called “big data.” It has widespread applications well beyond the relationship between lawyers and clients.

Here’s one example of how “big data” helps large law firms and their clients create budgets for a civil, non-criminal, law suit.  Imagine that you are involved in a lawsuit in which one of your supervisors who works in Houston has been accused of age discrimination.  The case has been assigned to a particular judge.  Should you spend the money to file a summary judgment motion?  In the pasts lawyers would use their gut feeling and their personal history with the judge to answer the question.

But now there are data bases that can help answer that question much more precisely.  Specifically, computers can now crunch vast amounts of time entries submitted by lawyers to other clients and create budgets based on historical performance.  Thus, for example, the database might reveal that this judge has heard 13 summary judgment motions in the past five years on this issue, and granted five.  Moreover, the attorney time for filling this motion ranged from $30,815 to $63,007. I made these numbers up, but you can see the power of this approach.  Rather than relying on the lawyers gut feeling, large corporate clients increasingly have access to information that allows them to know in advance what the attorneys’ fees in a particular lawsuit should be based on historical data.  That in turn allows the client to help set a budget. And when lawyers charge by the hour, cloud-based computer systems allow the client to see how much the lawyers are spending on their case every single day.  This is what some large law firm lawyers are already doing.  And in my opinion this will be the future for lawyers who represent smaller companies or who are involved in smaller disputes.

So the next time a litigator tells you that they couldn’t possibly tell what defending a certain lawsuit will cost? Ask them why they can’t at least provide an estimate or a range of expected attorneys’ fees based on their historical results.  If they really are experts, they should be able to tell you. There are unknown factors that influence the cost of a law suit. But just because you can’t predict attorneys’ fees precisely doesn’t mean that you can predetermine a range in which they are likely to fall.

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Most lawyers who give up their licenses or have it taken away never again work as attorneys. But it is generally possible for a lawyer to be reinstated and earn back their right to be a lawyer. Thus, you as a client may encounter a lawyer who once was disbarred but now can be your lawyer again.

The question is: Should you? In other words, if someone was once disbarred for some form of misconduct should you even consider working with them if they get their law license back?

I suggest that you tread carefully, but it would be a mistake to automatically exclude or disqualify working for a lawyer who was previously disbarred.

Before analyzing this question, let’s clarify when this issue even comes up.

Before deciding whether to work with a previously disbarred lawyer, that lawyer needs to be otherwise qualified to handle your case or issue. They need be affordable and available and have the right expertise. If they don’t have these qualities, you shouldn’t be working with them whether or not they have been disbarred before of have had any disciplinary history. So the question of working with a disbarred lawyer comes up only if there is a good reason to believe that they would otherwise be a good fit for you. In practical terms, that means that you need to decide whether you would consider interviewing a lawyer who was once disbarred.

As indicated above, my answer is a qualified yes. You should consider working with such a lawyer. I would interview them. Most of the time, you will probably decide to work with a different lawyer—one that doesn’t have a disciplinary history. But before deciding whether to interview a lawyer who lost their license and was later reinstated, you need to evaluate two primary issues.

First, you need to know what the lawyer did to lose his or her license. There are certain offenses that for me are pretty much disqualifying even if an attorney has been reinstated. For example, if the lawyer embezzled money or cheated their clients, I suggest that you look elsewhere. There are enough honest lawyers out there where you don’t need to consider working with one who was a cheat. This may sound harsh. I know that we are a country that likes to give people a second chance, and that we believe in redemption. But there are certain offenses that are so severe that I think you as a client are better off just finding another lawyer.

But contrary to what most people think, lawyers can be disbarred for a whole range of technical violations that don’t implicate their basic competence or honesty. For example, many lawyers lose their license for mishandling client funds; they might deposit a check in the wrong account and inadvertently bounce a check. In many states that is considered to be the equivalent of stealing and lawyers get disbarred for it. Lawyers are also subject to all sorts of rules about things such as when they can talk to witnesses, whether they can they split fees with other lawyers, how they supervise their staff members, and how they advertise their services. In some states lawyers can also lose their license or have it taken away for activities that solely relate to their personal lives, such as drinking and driving. So you have to decide for yourself just how serious the lawyer’s offense was, and whether it is relevant to the work he or she might do for you.

The second factor you need to consider is what is involved in getting reinstated. In some states, such as California, lawyers who are disbarred need to wait a minimum of five years before they can even apply to be reinstated. In addition, if their offense involved causing former clients to lose money, they are generally required to reimburse those victims. In addition, a fairly high percentage of lawyers who have been disbarred need to demonstrate that they have the skills to manage a law office or that their drinking or drug problems are behind them. In short, some states make lawyers jump through a lot of hoops before they are permitted to even apply to get their license back. So you should find out what is requited in your state.

But as a general rule, the tougher a state is on lawyers seeking to be reinstated, the more you should consider at least interviewing a lawyer who did jump through all the required hoops. If a lawyer managed to convince the state bar that they are worthy again of being a lawyer, perhaps they might be the right choice for you. In some states, this much easier to do than others, so look into what your particular state requires of lawyers who were once disbarred.

Ultimately you have to decide whether or not to interview or consider hiring a lawyer who was previously disbarred. This can be an intensely personal and emotional decision. I don’t suggest that you hire a previously disbarred lawyer only to give them another chance. Clients need lawyers to help them with some of the most important issues and problem they confront in their lives. This is not the time simply to be charitable. You need to make the right decision for yourself; you need to find a lawyer who you like and trust and has the requisite experience. But depending on what the lawyer did, how difficult the reinstatement process is, and the extent to which the lawyer has the right skill and experience to help you, I would at least consider hiring a previously disbarred lawyer.

And by all means if you do interview a lawyer who has been reinstated, you should talk to them about what happened, what they learned in the process, and how they can assure you that the mistakes they made to get disbarred won’t happen again. Most of all, interview them just like you any other lawyer. Ask them the tough questions that will help you determine if they are the right lawyer for you and your situation.

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If Target or Costco Ran A Law Firm

What if law firms provided the level of customer service, consistency, and value that we have come to expect when we visit stores such Target or Costco?

It seems almost like a trick question, doesn’t it?  Most people’s experiences of law firms are filled with anxiety, uncertainty, and a feeling that it’s going to be far too expensive for what you get.  It’s almost exactly the opposite of the experience we have with the best retail brands.

So what would it take to bring some of that Target or Costco touch to the law firm world?  This is one of the many questions that was addressed at the recent Reinvent Law Conference in Silicon Valley.

The answer is simpler than many people imagine:  Allow non-lawyers to split fees with lawyers.

In the United States, lawyers can only run businesses with other lawyers.  That’s one of the basic “ethical” rules that govern how law firms must operate.  In most states the law is known as Rule 5.4 of the Rules of Professional Conduct.

Rule 5.4 is a big reason why you don’t see a combination accounting firm/law firm, even though that combo makes a ton of sense as a way to serve business clients.  In addition, lawyers can only pay referral fees to other lawyers.  Most importantly, non-lawyers can’t invest in law firms.  This limitation prevents venture capitalists from providing the money that would allow a nationwide branded law firm from coming into existence. That’s what prevents someone from spending the money to start a law firm that looked more and operated more like Costco and Target.

In the UK, this world is becoming a reality.  In 2007, the British Parliament passed a law, The Legal Services Act, which among other things allowed non-lawyers to start law firms and invest in them. The result has been innovative new ways to consume legal services, ranging from websites that allow you to download legal documents to law firms. that promise to offer business clients predictable fixed prices.  We tend to think of the England as a very traditional place; we imagine barristers in court still wearing powdered wigs.  But the reality is that, at least with respect to how law firms are regulated, the United States is much more of the dinosaur and the UK is much more innovative.

So if you could find a good lawyer in a different way, would you?  If you wanted the process of hiring and working with a lawyer to be more convenient and a better value, would you be willing to consume law differently? Would you be willing to go to a mall to get help from a lawyer?

If the answer to any of these questions is yes, clients will need to be part of the movement to make these changes.  The 300 or so people who attended the ReinventLaw Conference are willing to change the legal system dramatically.  But right now, most lawyers are resisting change.  And based on my experiences, the American Bar Association, one of the leading lawyers’ groups, is much more likely to be an obstacle to change than a supporter of it.

So the bottom line is this:  If you want to see the law firm model change, it won’t change from the inside.  It will take the involvement of clients, prospective clients, and other non-lawyers.  It will take a good and steady tug on that leash.

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The Law Books Are Just Props

It’s one of the most familiar images in lawyer advertising–the attorney who is sitting or standing in front of a shelf full of law books. Sometimes the image is taken in a lawyer’s office or conference room, and sometimes it’s in what looks like a law library. For many, this image connotes class. And for some, it suggests that the lawyer is smart, having read of all these large and imposing volumes.

There is a reason why the books look old and distinguished. Many have’t been printed in hard copy for years. Twenty years ago when I was in law school, legal research was a labor-intensive and manual exercise. All of the law books were printed in these bound volumes and the supplements that showed the most recent court decisions were printed on extra thin paper. And if I wanted to to see which cases had referred to a particular court decision, I also had to look that up manually. Law firms needed to devote a large amount of floor space to their law library. Those days are long gone.

Today, a vast majority of legal research is conducted online. The law books are mostly for show. Remember that the next time you see this image in lawyer advertising or when you are sitting in a lawyer’s office or conference room. Hiring a lawyer is too important a decision to be influenced by such images. So please repeat after me: the law books are just props.

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Legalese Translator What Is An Attorneys’ Service

Lawyers who are representing clients in a lawsuit, either the plaintiff or the defendant, will periodically mention that they used an attorneys’ service.

On some level, everything a lawyer or lawyer does could be thought of as an attorneys’ service. That’s why the phrase is often misleading to non-lawyers.

The phrase,’attorneys service’ has a very precise meaning in the context of a lawsuit. It refers to an outside company hired by the law firm to physically take legal papers to the courthouse and have them filed with the court clerk. It’s inefficient for a lawyer to take the time to drive or walk to the courthouse and potentially stand in line to perform a largely administrative task. That’s where the attorneys’ service comes in. They employ messengers who for a flat fee will deliver the papers to the court and return with a copy bearing the court’s date stamp. That’s how lawyers prove that they filled court papers on time and didn’t miss any deadlines.

If you are filling out any of the court documents yourself, find out whether you can use your law firm’s attorney service. You too may be able to avoid having to take time from your job to physically go to court to file documents. And if you are like most people, and your lawyer is filling out or drafting all the court documents, at least you now know what your lawyer means when they use the term, “attorney service.”

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Burning Through Your Retainer

“I know lawyers who won’t even start discussing settlement until they have burned through their retainer.” This comment was made by a family law attorney about other lawyers in that field.

I wish I could say the comment shocked me, but it didn’t. There are some lawyers who feel entitled to the retainer they collect. They view it as a minimum payment for every case. That, of course, isn’t what a retainer is designed to do. It’s supposed to be a way for the lawyer to make sure that clients are serious about moving forward. It’s a way for the lawyer to deal with a legitimate problem–clients who ask the lawyer to do work on their behalf, but don’t pay for the lawyer’s work. The retainer is especially appropriate if the attorney and client haven’t worked together before.

But that doesn’t mean that the lawyer is automatically entitled to be pocket the entire amount of the retainer. Retainers come into play when clients are paying by the hour. Thus, lawyers are entitled to the retainer only if they legitimately devote enough time to cover the retainer amount.

As the client, there are a few things you can do to avoid lawyers who see the retainer as a minimum down payment. First and most importantly, avoid non-refundable retainers. Second, negotiate the smallest retainer you can. It’s hard to know in advance which lawyers have the entitlement mentality, so protect yourself and put the lawyer in the position of having to invoice you for the vast majority of the hourly work they do for you. You can save thousands of dollars in legal fees by holding firm and negotiating a small initial retainer.

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Legalese Translator What Does Leave To Amend Mean

You have been sued and your lawyer calls you to tell you the good news: The judge granted your request to dismiss the other’s side’s lawsuit or portions of it “with leave to amend.”

A motion to dismiss is an attempt to get rid of a lawsuit (or a part of it) right after it is filed. If it’s granted, the case can be over or a part of the lawsuit can be thrown out for good. Lots of defense lawyers like to file these motions if they can.

The idea behind “leave to amend” is pretty straightforward, but it may involve tricky strategic considerations when you have been sued.

“Leave to Amend” is a judge’s way of saying, “I’ll give you another chance.” In other words, when a motion to dismiss is granted or approved by the court with “leave to amend,” the result is mixed for both sides. The plaintiff has at a minimum been delayed, but he or she does get another chance to file the lawsuit.

Motions to Dismiss can be expensive when you are paying by the hour. They often cost $10,000 or more (depending on your lawyer’s hourly rate and the complexity of the issues involved). That’s why you and your lawyer need to carefully weigh the benefits relative to the risks that the court will give the the plaintiff another chance to file the lawsuit. Some lawsuits suffer from a technical defect. For example, the lawyer who filed the lawsuit forgot to include some allegation that is required by law. If it’s easy for the lawyer to cure the defect, it’s probably a waste of your time and money to pay for a motion to dismiss. The judge will likely grant the other side “leave to amend,” and you will just be paying your lawyer to help educate the other side’s lawyer how to make the lawsuit better for the person or entity that is suing you.

On the other hand, some lawsuits are big enough and some issues are important enough to risk having the judge give the other side another chance. Judges are often reluctant to throw out a lawsuit without giving the plaintiff’s lawyer at least one additional chance to fix any problems with the lawsuit. Thus, you should discuss with your lawyer the likelihood that you will have to pay to file more than one motion to dismiss (one to try to dismiss the lawsuit in its initial form, and then potentially another when the other side takes its second chance).

There is no hard and fast rule as whether you should take the risk that a motion to dismiss will be granted with “leave to amend.” Sometimes it’s a good risk to take and sometimes it isn’t. But a client can’t make a sensible strategic decision about this issue unless you know what “leave to amend” means and how it may impact your specific lawsuit.

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