GPSolo Magazine - October/November 2005
What We Never Learned in Law School
Getting a solo or small firm practice off the ground presents a host of obvious obstacles and traps for the unwary businessperson: excessive spending, albeit with the best intentions; overly well appointed digs; liberal policies for case acceptance and contingent-fee commitments (because 98 percent of the cases settle anyway).
But what of the obstacles that are less well known? In this article, we offer ten suggestions that we hope will give some insight into the daily facets of practice we were never told about in law school, particularly concerning ethics, civility, and professionalism. Our experience in the legal field, and within the Philadelphia Bar Association, reflects our two different practice settings: one at a large firm, one as a solo. This article has given us an opportunity to share our experiences and to compare our legal careers so far. We also sought stories from colleagues. We were surprised that despite some obvious differences, we had many common observations.
Get involved in bar associations and pro bono activities. Bar association and pro bono involvement tend to improve relationships between lawyers and judges. The authors became acquainted during local bar association functions. When lawyers connect in both social and professional activities, we tend to get along when we are adversaries—it’s human nature that we treat people we know better than we do strangers. Moreover, active involvement in the bar association has helped us sharpen our practice skills, increase our expertise, keep up with changes in the law, and have fun doing it.
Be prompt and responsive. Keep your clients advised, and return phone calls and e-mails promptly. We both try to maintain a rule that the sun does not set before a call is left unreturned (obviously, this is much easier during the summer than the winter). We both carry Blackberries and use them, even if just to say that a full response will arrive once the present meeting or hearing is done. If you can’t personally return the message, have someone else do it. Lack of client communications is often cited as the most aggravating complaint by clients; keeping clients in the loop keeps them invested in their case.
Zealous representation does not mean scorched-earth tactics. We didn’t learn in law school that there is an extremely fine line between zealous advo-cacy and deceptive or manipulative techniques. Silence from the experienced lawyer in the face of a greener attorney’s misinterpretation is a dilemma we never anticipated. During law school’s Socratic debates, all of us were forever together, presenting a unified front. Not so in the real world. Do not rely upon your confidence in the human family of attorneys collaborating to achieve a common good. With the goal of pleasing that well-funded client, a more seasoned practitioner might seize upon every opportunity to succeed, at times treading some very delicate ethical lines in order to do this.
But don’t react to such unfortunate experiences by repeating the questionable behavior yourself. Neither of us refuses opposing counsel a favor when we have the ability to grant it; it costs nothing and builds trust and credibility with other lawyers.
Be professional in your communications with the court. Each court has its own procedures, but you will find that some rules of professional conduct are universal.
When addressing or writing to the court, identify who you are and whom you represent. Although this case might be the most important matter in your mind, we have learned it is likely only one of many matters being addressed by the court during that hour.
When in court before a judge, do not address opposing counsel, but speak directly to the judge. After all, it is the judge who must decide the issues, not your adversary. Address the court as “Your Honor” or “Judge.” Remind yourself to speak slowly and don’t be afraid to pause and think before answering questions.
Misrepresentations to the court are always unacceptable, even over such seemingly trivial matters as calendar conflicts or joint stipulation for extension of time to respond to a filing. We are constantly amazed how opposing counsel misrepresent agreements to the court.
Facts that are not properly introduced in the case or part of the record should not be used in written briefs or memoranda of points and authorities.
Always carry an extra copy of the motion or brief, in case the court cannot locate the copy that you filed.
Court staff should be treated as an extension of the court. Anyone who thinks that the judge will never hear how rudely his or her staff was treated has plainly never worked or clerked for a judge.
Show up on time for all court appearances. Character, integrity, and reputation are our most valuable assets; they are not worth trading for any client.
High volume does not equal high quality—or even high profits. Our law school experience did not prepare us for issues that can threaten the profitability of practice. Lawyers who approach specialties in volume are generally seeking economies of scale. The combination of special knowledge and volume might translate into profitability. Remember, however, that high-volume work requires significant administrative and legal support, especially in practice areas such as bankruptcy law. Because of such infrastructure costs, high revenues might not go hand in hand with high operating incomes.
Additionally, despite the degree of knowledge and focus that can accompany specialization, high-volume practice might actually dilute the quality of representation. Paralegals may be taking on work not necessarily in their area of ability or expertise, and more efficient yet less tailored representation may become necessary to generate a net profit. These survival tactics might potentially lead highly personable and even hands-on lawyers astray from the origin of their original success.
Choose your clients carefully. The practice of law is much easier if you can avoid difficult clients. Beware of a client who moves from firm to firm. Watch out for clients who make legal fees and costs a major issue. Such concerns may seem paranoid at first blush. Yet, they have been borne out by our experience and have become part of our analysis in accepting new clientele. Consider, for example, the overly savvy client who comes bearing handsome retainers and uttering convincing representations. Although we’d like to believe that such clients come because of our own brand or quality of representation, our guard is up.
A wise lawyer also once taught us that when evaluating a case, don’t become so focused on liability that you forget about damages. The most compelling case of fault without any damages is worth . . . nothing. Similarly, when evaluating a case, if you are so focused on the damages, but there is no liability, that case is worth . . . nothing.
Always be professional in marketing. The Rules of Professional Conduct govern the outer limits of the advertising and claims that lawyers may make to entice clients. If you are in a small firm or you are a solo, consider limiting the type of clients and business that you take. This will allow you to focus your efforts more effectively. One of the best ways to develop business is to establish a referral network to exchange business with other attorneys. The local bar association is the best way to learn about the practices of other attorneys. Write articles and participate in seminars to get your name out there. Don’t oversell yourself.
In small practice, owing to the intensity of the competition in the marketplace, some practitioners employ dubious techniques to acquire more clients and more money. For example, in the area of simple divorce, attorneys in a more expensive filing county might lowball potential clients with figures from less expensive filing counties. Remember: Potential clients using the Internet or even being referred to a particular attorney will ordinarily shop quotes.
Be professional during discovery. Much has been written about the effectiveness or costs of discovery in litigation. We merely note below some of our observations about the unprofessionalism we have experienced. Lawyers routinely delay producing documents to prevent opposing counsel from inspecting them prior to scheduled depositions or for other tactical reasons. Document demands and interrogatories are routinely propounded to harass or impose undue burden or expense on the other party. Responses with boilerplate objections to the discovery requests are presented.
In scheduling depositions, rather than unilaterally scheduling dates for depositions, lawyers should cooperate to accommodate the schedules of opposing counsel and the deponent. Objections during depositions should be limited to those that are well founded and necessary for the client’s interest (such as preserving privilege). When making objections during a deposition, the attorney must refrain from coaching the deponent or suggesting answers or making self-serving speeches. It is amazing how often we see this happening, particularly by older lawyers trying to intimidate younger lawyers.
Be prepared. Thorough preparation can level the playing field—or even tilt it in your favor. Attention to detail is probably the most important trait of a good lawyer. Nothing is more glaring in written work product or letters than a typo. Proofread, proofread, proofread. Know your case better than the other side does. Anticipate the questions from the judge or opposing counsel.Appreciate the practice of law. When we were awarded a license to practice law, we were granted a tremendous opportunity to make a difference for ourselves and our clients. Appreciate challenges, for they make us stronger and better as lawyers, with new ways to argue or represent our clients. Appreciate losses, for they make us wiser, and vow never to make the same mistake(s) again. Appreciate (and savor) victories. Keep a “good job” file and make copies of all the winning court decisions or even the congratulations or thank-you letters you have received. Even on a very bad day (and we all have them), opening the “good job” file will remind us why we went to law school, and why, even though law school did not prepare us for all we have witnessed in terms of ethics, civility, and professionalism, we are lucky to be young attorneys, looking forward to the rest of our careers.
Harper J. Dimmerman operates a solo practice in Philadelphia. He can be reached at firstname.lastname@example.org. Michael E. Adler is an associate at Blank Rome LLP in Philadelphia. He can be reached at email@example.com.