By the time Mr/Mrs. XX gets into my office s/he is angry, frazzled and scared. S/he is also worried about what the whole thing will cost, how much trouble the lawyer is going to create and will probably have talked with his or her friends, neighbors, and others about whether she should take the crumbum who is making her life difficult to court. S/he will also have been warned by many of these self-same people about the lawyer, and given a great deal of (free) legal advice, only some of which is worth what she paid for it. So by the time Mr/Mrs. XX walks into your office, her story of he done me wrong can be so short or long or convoluted or laden with side notes and comments, that I need to dig for more information just to find out the basics. How to do this? Well, I try to be kind in asking questions. (Those of you who know me are surprised by this statement I know. But it’s true. I try to be kind. I try to be the law confessor of wrongs. I try to be the one Mr/Mrs can come to for action. Getting a clear, accurate, factual, complete tale is often the making or breaking of a case.

So let me help you unpack your case of woes against the crumbum. Take all the time you need to do this. It will be cheaper in the long run. And believe me, it will take time. So I try to listen with the right side of my brain and not go all analytical on her while she is talking. I try to sit tight. There’s plenty of time to do that after she gets the full story out of all the things the crumbum has done.

I was recently listening to Louis Black rant about mortgages being tough to read. He is right. When I refinanced my house I had to use a ruler to follow the fine print. Then I had to constantly refer back to figure out who they were talking about. It was infuriating. So Listening to Louis Black rant made me think.

Good lawyers win in court when they tell a compelling story to the jury and judge. Likewise, good lawyers win clients when they can listen to the client’s complaints and say it back to them in understandable legal language so the client knows a) that the lawyer understands; b) that the lawyer can explain in clear, understandable English, what the legal issues are, and c) what the lawyer is planning to do to help them win their case. For lack of a better name, I call this ability a Law Side Manner or LSM.

Some lawyers, the lucky ones, have a naturally high-level LSM. Most do not. The rest of us have to work at it. But developing LSM is a learning curve. Don’t expect to know it all at once. I will be posting more on what this manner looks like and how to use it to win more clients and stay on top of client relations.

That depends. As long as there is agreement among the lawyers, it should be no problem. But in litigation, games arrive immediately.  In some courts, Maryland for example, you can fax documents to the other side, but you must also mail them, or it is invalid.  In D.C. faxing documents is not a problem and you don’t have to mail them.  In Virginia, if the lawyer puts his fax number on the pleadings he is consenting to service by fax and you don’t have to mail them.  That’s why many Virginia lawyers do not put their fax number on their pleadings.  I do, but I’ve been getting so many junk faxes that I make people call me first so I can turn on the fax machine for them.  (But I successfully objected last year when some smart guy tried to fax me 2 70 PAGE documents.  On a Friday evening to boot.)  In Federal court, documents are sent by email routinely and if you do not accept emailed documents the judges will be upset.

Me?  I prefer email but will cooperate as much as I can.  But I do email and fax and mail the same documents on a regular basis.  Frankly, I prefer to email and mail only but ….

So why do lawyers fight about it?  Sometimes it’s because they are trying to get a strategic advantage.  For example, under the Rules, you get (usually 3-5 days) extra time if the papers are mailed as opposed to being hand-delivered, emailed or faxed.  So they want the extra time.  Other times, they want to set the table to argue that your Motion is late and therefore they don’t have to respond and the Court should ignore it.

One not-so-amusing anecdote illustrating the problem:  In Fairfax, Virginia, we needed a local rule that all Motions and Oppositions etc. that were faxed out had to be delivered before 4:00 p.m. on Friday.  We did that because papers that were due on Friday were being faxed out at 11:00 p.m. Friday night in an attempt to shorten the notice for opposing lawyers who wouldn’t see the papers until Monday a.m. and the hearing was for the next Friday.

Amazing, truly amazing.  Many firms charge for in house copying and scanning.  I don’t.  Why not?  Because it’s part of my cost of doing business.  I don’t charge for electricity so I don’t charge for copying costs.  But I’m seeing many firms charging up to $0.50/page for copying and scanning in house.  I’ve even seen fax charges of over $1.00/page.  Frankly, I don’t understand why they do it except that their clients let them get away with it.  It just seems to me that firms that do this are nickel-and-diming their clients.  I won’t do that.

I do charge for big jobs that I have to take to Kinko’s. Why?  Because if the job is that big and it’s out-of-pocket charges, then the client should pay.  But I don’t add on a mark-up to the charge.  It’s just the charge itself.

I.  Send a letter to the opposing counsel demanding that the case be withdrawn and explaining why there is no contract or there is no breach of contract.

II.  Research to figure out whether or not there are counterclaims available to my client.  Many possibilities come to mind depending on the facts.  Some possibilities to consider including are fraud, unjust enrichment, interference with business, unfair trade, and defamation.

III.  File any answer and counterclaim and accompany them with detailed discovery demanding all the papers and list all the witnesses involved in the case.  Don’t forget to include demands that they admit or deny key facts.

IV.  Notice a deposition of the other side’s key witness as soon as possible.

V.    Prepare for summary judgment (where possible, no SJ in Virginia)

We all got a big reminder yesterday about cell phones and disasters.  Cell phones and text messages do not work right after an event like an earthquake hits.  The cell phone lines get overloaded and in some cases, text messages and voicemail does not get delivered until hours after the event.

But those of us who were old fashioned enough to keep our landlines, were ok.  That technology was not knocked out, happily because the earthquake was not as bad as it could have been.

The short story is have backup to your cell phone technology.  Always wear suspenders and a belt.  Or, as my mother used to put it, always wear clean underwear because you never know…..