kaufman

The art of saying goodbye starts very simply with a list: should you say goodbye?

Does the client pay his/her bill or not?

Does he/she fight you over the amount you have charged?

Does he/she follow your advice or just use you to justify his/her bullying behavior to others?

Is she trying to become your friend and making it tough to bill her?

Does she contradict your every action on her behalf by saying she never told you to do what you are doing?

Do you leave a conference with her/him scratching your head and wondering what the heck is wrong with you?

These are just a few warning signs that you need to withdraw from the case before you do any of the list below.

Change your billing rate for the client

Continually negotiate your bill

Wonder if the ethics board is going to get involved in a potential suit because the client just isn’t happy with whatever you are representing her on

If you see any of these actions on your part in any of your cases, the time has come to say goodbye to the client.

The best way is to be honest. Tell the client there are certain standards and assumptions that you have to bring to any case as a good and responsible attorney. You have to tell him/her that it is your own standards that force you to part ways with her/him.

Stick by your guns. File a withdrawal in court. Allow the client time to find other representation while you are continuing to be kept on the books as her or his attorney. Then burn a cd with all the case work to hand on to the next attorney or if the client chooses to represent him or her self then send the cd to the client.

And write a note to yourself about lessons learned.

Sometimes a client will come to my office and bring a number of other people with her (or him or them). This may or may not be a good idea, depending on circumstances. For example, if the client is a legal minor (I don’t represent them now, but I did once upon a time) I will need the client’s parent or guardian to sign the contract and pay the bills. But sometimes the client will have to tell me things they don’t want their parent or guardian to know about. Things which can be critically important to their case.

On the other hand, sometimes I am being hired by a legal adult. But they want to bring their husband/wife with them. Usually this is OK as whatever they say to me is also protected by the marriage privilege. But not always. And, again, sometimes there are things I need to ask or know about which the client does not want their husband/wife to know about. Worse, what do I do with long-term couples who are not married? There is no privilege then. You can be forced to disclose anything I say to you or you say to me. That’s not good.

There is an exception for circumstances where there is a language difficulty and an interpreter/translator is needed. But every state I know of has a specific statutory exception for interpreters/translators who are working with the lawyer.

This issue is a regular topic among lawyers. We worry about it a lot. There are different approaches we take. Some allow everyone to stay for at least part of the meeting but absolutely ensure that they have some private time with the client. Enough time to be assured that the client has told the lawyer everything. Others prefer to explain the risk to the client and let the client decide. If your lawyer takes this approach, take it from me: s/he’s just being nice. Dump the witnesses and talk to the lawyer on your own. It’s so much safer.

This may, actually, be a running theme on this blog. But I just can’t help it. It appears that big firms charge 2 or 3 times as much as I do, even when I charge the same hourly rate (which I don’t–my rate is about 60% of theirs). Why, then do the big firms charge so much? Well, consider this for an answer:

Suppose a case has an odd fact that affects whether or not a particular law applies. A small firm lawyer looks up the law and proceeds accordingly. S/he may not even bill the file for “checking a statute” but could, depending on exactly what is being checked. But if it does take some time to research, s/he only bills the research time (maybe 0.6 hours). But if the question comes in a BigLaw firm, the partner asks the question (billing 0.1 hours) of a Senior Associate, who thinks about it (billing 0.2 hours) before passing the question to a Junior Associate to research. The Junior Associate then looks up the answer, writes a 2 page memo for the file (billing 1.2 hours because first you get the answer, then you have to write it up so someone else can understand what you did and why you got the answer you got) and sends it back. The Senior Associate (assuming no typos or additional questions) reads the 2 page memo (billing 0.4 hours) and sends it to the partner who scans it (billing 0.2 hours) before calling the client to answer the question (billing 0.2 hours) . This totals 2.2 hours v. my 0.6 hours. Finally, in BigLaw firms, the client is frequently billed for photocopies and secretarial time to type the memo.

Does this help?

Now you know why I like to work in my own small firm.

When faced with a sales clerk pressuring you to sign AT&T cell phone contract or buy that dish network tv contract that bundles all of your services together, do you sign papers after you read them? Or do you sign first, read, then regret later.

Most of us sign first. We all know better but in the midst of hurrying through our day we sign before we read. Signing before reading in the examples above are pretty harmless. We all sign things that promise the moon but don’t deliver. But those contracts are just small time offenders.

The big offenders are when we need to bring in attorneys. Big ones like starting a partnership, entering into an employment agreement or a non-competition agreement, buying a house. Those are the ones that make huge amounts of trouble down the road. What we don’t know in those sorts of contracts can literally bankrupt us.

When setting up a partnership, entering into an agreement with a realtor or neighbor, make sure to bring a lawyer to read through the papers. Yes, yes, we all know you have a degree in rocket science. But it doesn’t take a rocket scientist to read legal papers. It takes a specialist in law. A lawyer can translate the language into understandable English and make sure you are protected as you go into further negotiations with the other side.

How come law is hard to understand, you ask? Law has its own language. Law, especially U.S. law, started in England. Law in England progressed from the Celtic customs to Roman law, to the Anglo-Saxons and Vikings and then to the Norman Conquest. No wonder U.S. law is complicated. There are still some of those words in the law. The biggest change came with the Norman Conquest in 1066. The official language of the country shifted from Anglo-Saxon to French and then developed into English. We still see some of the results of this in legal language. For example, in a will you will frequently see “bequeath and devise” but it will seem redundant and old fashioned. It’s not redundant but it may be old fashioned. Why? Because you “devise” real estate you don’t bequeath it. Why not? Because the Normans took the land from the Saxons but not their personal property. So the Saxon’s “bequeath” their personal property and the Normans “devise” their land. And we do both.

Worse, words that in any normal sense would mean one thing have completely different meanings in a legal brief. There, I said it. One of those legal words. Brief. A brief in legal terms is a paper that explains to the Judge why you and your client are in Court. It is not a short statement. Frequently it’s just the opposite. So forget all you ever knew about dictionaries and meanings.

Just remember, don’t be intimidated into signing legal documents. Ask for the time to review them. If they say, don’t worry, be happy, just sign on the dotted line, walk away from the table and call your lawyer. If you don’t, you’ll be calling us soon enough.

Fall. Times to restock the supplies, restore the verve for new projects, resolve to make more, do more and be more in the weeks that close out the year.

One way to restock is to look at paper, ink cartridges, printers, and anything else that is mechanical. All mechanical things have an unsettling way of knowing when to break down. Does the attorney need papers scanned in? That’s when the scanner goes haywire. Does the attorney have a trial coming up? That’s when the color printer for exhibits crashes. Does the paralegal have time to enter? That’s when the database that captures time for the attorney goes haywire. Does the courthouse have a date set for a trial? That’s when a clerk signs up too many cases to too many judges and the case the firm was gearing up for gets moved into the future. Sigh.

So what is a firm to do? The simple answer is to review all the possible things that can break down. In our case, this is quite simple. Do the scanners work? Check. Do the printers work? Check. Does the database work? Check. Can we stop case assignment mistakes? No, we can’t. But we can check online and monitor when our case comes up, who the judge is and what courtroom is assigned.

Another way to restock is less material and more practical. Plan ahead. Plot out those hearings and trials, briefs and research. Plan the motions and depositions. Hook up the G.P.S. Find the numbers to call to see if the State snow plows have cleared a path to court. If the snowplows in your neck of the woods are unreliable, locate and reserve hotel rooms online to be absolutely sure to get to the court on time. Get tire chains, heavy winter coats and any other winter gear and put them into the truck of your car. Check your tire pressure and fluids weekly in the cold months. Don’t forget the jumper cables either.

November is nature’s way of telling you that humans are not in control. Nature is. Man may propose solutions, but nature will dispose of you if you are not prepared.

My fee agreement says I don’t charge for normal overhead. That means that I don’t charge for “in-house” copying, scanning, faxing or telephone calls. I also don’t charge for normal postage. But I do charge for things like FedEx, Kinko’s copying/scanning etc. I also charge for long-distance and international calls.

Many lawyers, though, do charge for these things. Why? Personally I think it’s because they don’t calculate their overhead correctly. Theoretically, overhead should cover all these things. But some lawyers (maybe to keep their hourly rates looking low) bill these things separately. Of course, others just do it to run up the bill. I don’t.

Your lawyer wrote a sentence in a legal document referring to “my sister’s, D.Z. Kaufman’s, partner”. Who is being referred to? The partner of my lawyer’s sister? The partner of your sister? Your lawyer’s sister is your partner? Your sister is your lawyer’s partner? My partner who is not my sister? My sister’s partner? Some other person? Maybe I should write it as “my, D.Z. Kaufman’s, sister’s partner?” Clearly it can be very confusing. Worse, you could end up describing the wrong person.

But there are solutions. One is to define who are the people are at the beginning of the document. Lot’s of lawyers do that. But it can make the document really boring to read. Another solution is to break it into several sentences: “I am D.Z. Kaufman. My sister is Amy. Amy’s partner is Sarah. Sarah …” Another solution is: “My sister Amy’s partner, Sarah, …” Another solution is to drop all the family relationships entirely and just discuss “Sarah.” The choice can be important depending on what you (the client) want to do.

That’s why grammar and precision are so important. It’s also why lawyers, many times, are excessively precise. Finally, it’s why a lot of legal documents can seem silly. But if you are not sufficiently precise, a brawl will start the minute people start looking at what was actually written, not what was intended.

Call me when the fun starts.

I. Do you know someone? Check Facebook.
II. Where were you? Check Facebook.
III. What were you doing? Check Facebook.
IV. Were you bullied or being a bully? Check Facebook.
V. How much do you make? Check Facebook
VI. Where do you shop? Check Facebook
VII. What “toys” do you have? Check Facebook
VIII. What is your health? Check Facebook
IX. Were you injured? Check Facebook
X. Are you litigation happy? Check Facebook
XI. Do you use drugs or alcohol? Check Facebook
XII. Do you have an opinion about ***? Check Facebook.

It’s absolutely amazing what a wonderful free investigative tool Facebook is. Keep in mind, if you are on Facebook the other side is watching you all the way.

If you have any of these things, should you encrypt them? Well, if you have anything you wish to keep private you should. What? You think only those with something to hide should use encryption? Well, do you have any PINs for your credit or debit cards? What about your Social Security Number? How about any private information about your bank accounts? What about legal materials from your lawyer? A draft will perhaps? You do have important private information you don’t want bandied about. And you aren’t in any way disreputable.

So what do you do? Well, encryption is cheap and easy. I use TruCrypt but there are others. I’m not going to endorse any specific software. But you should use something.

By the way, use it on your smartphone too.

Lawyers are the professionals you hire when you are working on the nuts and bolts of your life. Litigation lawyers are the ones you hire when those nuts and bolts in your life go bad.

Here are a few points to remember.

1. Read your retainer letter carefully.

2. Re-read the retainer letter so that you will understand what your attorney needs.

3. Sign the retainer letter.

4. Send the signed retainer letter and the check for the retainer to your attorney so he can start working on your case.

5. Pay your bills on time. Do not try to renegotiate the cost of the litigation as soon as you see the bill.

6. Turn over any and all materials related to the case. Do this as soon as he asks for them. The more information he has starting out and the sooner he gets it, the better he can help you.

7. Search for more information you think might be relevant. Just because he didn’t ask for it does not mean it’s not important.

8. Don’t surprise him with additional material or changes in your testimony at deposition or trial.

9. Don’t make him guess what information and documents you have.

10. Be completely honest with him throughout the case.

11. Give him a cast of characters with all contact information and your assessment of whether or not they are on your side.

12. Make a list of all the people who will testify against you.

13. Prepare a timeline with key events highlighted.

14. Return his calls in a timely manner.

15. Tell him when something new has come up in the case. Let him know when you have found more papers you need to turn over.

16. Call him when you have questions. If he cannot talk to you when you call, schedule a time to call him back. Leave a message with your questions on your case, either on his voicemail or with his associate/paralegal. That way he can be prepared to answer them when you call back.

17. When you turn over the materials, make sure you keep a copy for yourself. If you need to keep the originals, then scan the documents and email them to him.
18. Tell your attorney whenever you will be unavailable for a scheduled deposition. Do this as soon as possible to give him time to change deposition or hearing dates.

19. Make time to meet with him for any and all preparation sessions.

20. Make time to answer any questions he has when he reviews your materials.

21. When you meet with your attorney to prepare for depositions or trial, he will ask you to review materials he has gathered throughout the case. Make time to review these materials. They are important. They represent a lot of thought the attorney has made on what questions the other side will ask you. You must get comfortatble with how to answer the questions the other side will ask. If you have any questions when you are reviewing the material, call him and ask.

22. Do not answer questions that are not asked at your deposition. Don’t volunteer information.

23. More importantly, never volunteer information that you never discussed with your attorney.

24. Do not tell your attorney how he should conduct the case once the case goes to trial. You hired him because you wanted his litigation skills. Let him do his job.

25. Continue to be completely honest with him throughout the case.

26. After the case is over, thank your attorney by paying his bill as soon as he sends it to you.

The litigation lawyer is the one who will work very hard to protect your reputation, business, contractual obligations and peace of mind. Remember, when you help him, you help yourself.