Volume 20, Number 5 July/August 2003
Thinking, Solo Style
By David Leffler
One of the most daunting challenges for a solo lawyer to meet is to represent clients competently but efficiently. Solo attorneys do not have legions of support people and other big firm resources. In addition, most solo attorneys represent clients with relatively small legal budgets that will not support lengthy explorations of every possible outcome, so the solo attorney has to find a way to do a good job for less.
B ecause of this, solo attorneys are more subject to the dangers of routine thinking. Consider:
-You're busy and something comes across your desk that on first inspection is close to a fact pattern you have seen many times before. Your critical thinking stops and your judgment of the situation solidifies. Danger!
-A certain client always has unreasonable expectations, so you quickly dismiss another one of his harebrained scenarios as more of the same. Here your higher brain functions have not even kicked in before you toss this one in the mental wastebasket.
-Somewhat similar to the first example, this scenario has a fact that you believe can lead to only one conclusion, so you do not bother checking it any further. Ironclad assumptions can be our worst enemy.
Of course, shortcut thinking can be a positive thing. It does not make sense, nor is it practical, to approach each new situation without drawing on our experiences to evaluate possible outcomes. After all, isn't that what clients pay us for, our experience? Don't these shortcuts make us more efficient in our work? Why take the time to examine everything as though we were seeing it for the first time?
There is a balance that must be achieved in serving our clients efficiently but competently. Perhaps an experience that I had with a client will best demonstrate what I mean.
A client of mine called me one day with what sounded like an unsolvable problem. He had bought a new phone system for his business and paid for it by signing a loan agreement with a finance company. But before the system was installed he discovered that there were some significant misrepresentations made by the salesperson, and the phone system was in fact unsuitable for his purposes.
So there was the phone equipment sitting in his office. By the time he called me he had tried on his own to get out of the contract and now was getting letters threatening legal action. His options seemed to be rapidly diminishing. Was there anything I could do to get him out of this?
Sound familiar? I am sure that most of you have faced similar situations where a client has gotten himself or herself into a hole and now would like you as their lawyer to whip out your magic wand to make it all go away.
This was a particularly nasty fix my client had gotten himself into. Finance companies purposely write their finance agreements to make them ironclad. It does not matter that the equipment does not work as promised or does not work at all. You owe the money to the finance company and it must be paid according to the repayment schedule.
The only recourse that a borrower has is to go after the seller of the equipment. In most cases this is not a practical solution because the seller is located out of state and provides in its contract for its jurisdiction to resolve disputes, and even if the seller is local, you are faced with starting a lawsuit, winning the lawsuit, and then collecting on a judgment.
I reviewed the finance agreement attached to the financing company's demand letter, which my client had sent to me. As I expected it was airtight.
Running out of options fast, I instructed my client to send me his entire file on the matter. The file was a mess. There were letters going back and forth for six months, invoices and memos, all mixed together in no particular order.
I was looking at a messy file of a hopeless case, for which my client had made clear that he did not want me running up a big bill, since this would be throwing good money after bad. It seemed like it was time to call my client and tell him that he had simply made a bad business decision and should pay up. But instead I took the time to carefully look through the file and put the papers in order. When I did, I came across a curious document.
It was the same finance agreement attached to the finance company's demand letter, and it was signed by my client. The only difference was that the blanks in my client's copy of the financing agreement, which was a form document, were not filled in, unlike the financing company's copy, which was completed by handwritten entries.
When I first saw my client's copy of the incomplete agreement, I was not sure what I was looking at. Was this an earlier version that was never adopted? I compared my client's signature on both versions and they were identical. This led me to one conclusion.
In the rush to close the deal, the salesperson had my client sign the financing agreement without filling in the amount of the loan, the payment schedule, or other material terms. My client made a copy of this version before the salesperson left his office, and the salesperson filled in the terms at his office.
My client had signed an agreement with the material terms omitted. We all learned in our first year of law school that without the material terms a contract is not binding. Victory was at hand! After some back and forth with the financing company, they gave in.
So what were the key reasons for my success? My secret weapon frequently is to keep an open mind, no matter how desperate the situation appears. I do my best not to arrive at a conclusion too quickly, even if the situation appears to be a real loser. I am open to the possibility that I may be surprised by something unexpected. Also, there is a part of my personality that really enjoys beating the odds, so this will keep me motivated to keep thinking of solutions.
So, you should watch out for autopilot thinking and don't let cynicism or mental exhaustion sway you. I have some tools to help you achieve this, of course.
While you might not have a big support staff (perhaps you have none at all), you can create external aids to assist you. Use legal checklists, either developed by yourself or obtained from legal treatises and seminars to keep your critical thinking engaged. Do not run down the list quickly; take the time to really check to see that each element has been addressed.
Develop a circle of lawyers with whom you can discuss problems. Sometimes these can be people in your office suite; other times it can be friends from law school with whom you've kept in touch or other lawyers you have met along the way.
One particularly good source of this kind of input is the ABA listserv Solosez. There are close to a thousand lawyers on Solosez hailing from across the country and a few from around the world. Topics discussed are law, technology, office administration, and "water cooler" fodder (sports, humor, politics, etc.). I have seen incredibly insightful responses given to fellow lawyers' questions. I have also seen some irrelevant responses, and the biggest challenge in this high-volume listserve (often 50 to 150 e-mails per day) is to separate the wheat from the chaff (you may want to use the digest format). Go to the archive page at http://mail.abanet.org/archives/solosez.html and click on "Join or leave the list" to sign on to Solosez.
Another technique is to take a breather before deciding to write off a situation. Get up from your desk, walk around the office, walk around the block, or go get one of those overpriced coffees that everyone seems addicted to these days.
My overall advice in how to represent your clients competently is to remember to think. Your mind is your greatest asset, and when you stop using it and sink into routine responses, you are not using the skills that make you a lawyer.
Of course, if my client had not made that copy of the incomplete agreement, I would have never discovered it. But we solos often have a helpful angel looking after us, just to keep the playing field level. May your angel always be there for you when needed.
David Leffler maintains a solo law practice in New York City, where he assists his clients in the formation, growth, and sale of their businesses. He can be reached at email@example.com.