Flying Solo

Volume 40 Number 1

By

About the Author

K. William Gibson is the editor of Flying Solo: A Survival Guide for the Solo and Small Firm Lawyer (Fifth Ed.), to be published by LP in 2014. He is the recipient of the 2013 Samuel S. Smith Award, given annually by LP.

Law Practice Magazine | January/February 2014 | The Management IssueI MIGHT NOT HAVE SAID THIS A FEW YEARS AGO, but there has never been a better time to start and build a small law practice. I say this for several reasons. Clearly, one of the major reasons has been the rise and proliferation of technology, which has leveled the playing field considerably. Small-office lawyers no longer have the disadvantage of not having an army of law clerks, paralegals, associates and junior partners to throw at even the smallest case.

I have been a solo off and on since 1980. These days I work mostly as an arbitrator and mediator in personal injury litigation. In that line of work, I meet a lot of lawyers, on both the plaintiff and defense sides. They come from big firms—usually the defense lawyers—as well as from small ones—usually the plaintiffs’ lawyers.

It’s easy to generalize, but I think that both my small-firm and large-firm colleagues would agree that life is different when you are out there on your own, regardless of what kind of law you practice. Small-firm lawyers, including solos, have a lot in common. Lawyers who work in larger firms also have a lot in common. What big-firm lawyers have in common is not the kind of law that they practice but the way they practice law. What they have in common is the way that their practices get managed. What they have in common is a similar level of support in running their offices. From a solo’s perspective, it appears that large firms have an abundance of management resources while solos have the opposite problem.

BRIDGING THE GAP

That disparity used to be more pronounced, and the small-firm lawyer, with his or her lack of resources, was always playing catch-up. Now, with a little creativity and flexibility and a lot of technology, an enterprising solo practitioner can turn what looks like a negative into something positive.

Only a few short years ago, the differences between large and small firms would be apparent in the ways that a large-firm lawyer and a solo practitioner might handle a lawsuit. If you were to watch two experienced lawyers—one a solo and the other from a large firm—try a case against each other, you probably could not tell which was which. Both would know the law, and each would be proficient at putting on a persuasive and effective case. The difference between the two would, instead, be in what was going on behind the scenes, outside of the courtroom.

The big-firm lawyer would have a supporting cast working as many hours as necessary to prepare the trial documents, locate and interview witnesses, hire and work with experts and prepare visual aids for trial. With all that help, he or she would likely be able to submit every required component before the court-imposed deadline. In the case of the equally skilled solo, there may have been only one person back at the office to work on trial preparation. This meant that, in all likelihood, the solo practitioner would do his or her own trial preparation and would always be scrambling to meet deadlines.

Now that so many things are available online and can be accessed with a laptop, tablet or smartphone, the landscape has changed. Recently one of my small-firm colleagues tried a two-week trial against a big-firm opponent with only an iPad in front of him. Who would have thought that a tablet computer would change the legal landscape? Who would have thought that it would be the small-firm lawyer who impressed the jury by being so organized and prepared? For more on how to use an iPad in trial and elsewhere, I recommend Tom Mighell’s books, iPad in One Hour for Lawyers (Second Ed.) and iPad Apps in One Hour for Lawyers, both published by the ABA’s Law Practice Division (LP) in 2012.

Legal and factual research is easier than ever, and is mostly free. Large law firms that, even five years ago, had an unlimited budget for Westlaw or Lexis no longer have an advantage over the small-firm lawyer whose bar association provides a service such as Fastcase for free. Big law firms that used to have an advantage by having an investigator on staff to track down witnesses, take photos of accident scenes and the like no longer have an advantage over small-firm lawyers who can find anyone via Facebook. For more on free and low-cost research, check out The Cybersleuth’s Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web (Twelfth Ed.) by Carole Levitt and Mark Rosch, published by LP in 2012.

I recall in the early 1990s paying a “forensic artist” what seemed like a lot of money to draw an illustration of my client’s shoulder, which he had injured in a car accident. The illustration was very helpful in trial as I explained to the jury what a rotator cuff tear looked like. Today I could get that same illustration for free in five minutes online.

In another case, I was lucky enough to find an aerial photograph of the intersection where my client’s accident had occurred. Today, as an arbitrator in personal injury cases, every lawyer either provides a Google Earth photo of the location of the accident or suggests that I look it up myself.

Trying cases is only part of the job, though, and even the day-to-day management of the office has become easier for the small-firm lawyer. In my office we used to have to do payroll manually. Now it is all done online, cheaply and quickly. Payroll checks get deposited into employees’ bank accounts. Payroll taxes get paid automatically. I can attest that in the pre-Internet days, payroll was a major chore that had to be done twice a month.

Technology has saved the small-firm lawyer from paying employees to do a lot of repetitive tasks. Today no one has to stand at the copy machine making copies of case-related documents. A decade ago, every document—from pleadings and motions, discovery documents, medical records, deposition transcripts, all the way to jury instructions—were copied and mailed by U.S. mail or FedEx at an extraordinarily high annual expense. Today documents get scanned and sent as email attachments.

Technology has made the management of the law office so much easier that the small-firm lawyer now has time to focus on getting and serving clients. Nobody went to law school to be a small law firm office manager, but that is what most of us spent our time doing. Today, while the buck still stops with the owners of the small office, office management takes less time and can more easily be delegated.

MARKETING

Even marketing is easier today than it was when I started practicing. Back then everything had to be done the hard way. Lawyers went to seminars to learn how to create the perfect brochures for their waiting rooms. They spent a small fortune on their Yellow Pages ads. Some lawyers ran for the legislature or school board just to get their names out in the public eye. Lawyers served on boards and committees in part to meet new clients. Many lawyers found that they were so busy with committee meetings they did not have time to go to the office and do the legal work that they were hoping to get.

Today, online resources such as Facebook, LinkedIn, Twitter and other social media platforms allow solos to reach audiences far and wide. It is easier to reach out to potential clients and to let them know exactly what you can do for them. Clients who used to look for a lawyer in the Yellow Pages now find their lawyer online. Small-firm lawyers do not need to hire a marketing director or marketing consultant to create and maintain a public image. A Facebook page, a blog and an informative and useful Web page give potential clients more information than the Yellow Pages ever did and help the small-firm lawyer compete for business with larger firms.

LP has recently published several books on social media and the Internet that should be of help to solos and small-firm lawyers. They include:

Solo and small-firm lawyer videos are now widely available on YouTube. LP even gives out annual awards for the best lawyer videos. You can see them all at youtube.com/user/LawPracticeTips.

What a difference a few years of technological improvement make.

THE SOLO PERSONALITY

The reasons that lawyers choose to work in a small law office may have as much to do with personality and temperament as anything else. Many lawyers have chosen to forego the amenities and conveniences of a large law firm simply because they did not want to work in a large organization. It may be because they prefer the independence that goes with working alone or as part of a very small group. For the solo lawyer, that independence involves being able to chart one’s course without having to seek the advice or consent of superiors, peers or subordinates. It may be as simple as needing to be in charge.

Independence may have to do with being able to come and go as one pleases without being accountable to a boss. The solo who leaves work early to coach soccer, to go for a run or even to go home and take a nap must answer only to himself or herself. All of this independence and lack of day-to-day accountability means that a successful solo will need to develop good work habits and a strong work ethic. The good news is that, with all this technological help, today’s solo can have the best of many things. He or she can have independence and freedom and still make a good living.

One need look no further than the trend of partners in big firms leaving to start their own small firms. These lawyers were all likely earning a good living at their big firms but were willing to make the leap to a small firm. Only a decade or two ago, big-firm lawyers would not have left to start their own small firms. Why now? Technology is only part of the answer.

In the old days, corporate clients did not hire small-firm lawyers except in cases where the lawyers in those firms were so specialized that the clients did not care that they were in small firms. High-profile litigators come to mind. In cases where clients were willing to give a case or a project to a small firm, they invariably kept the rest of their legal work at the big firm. Why? The old saying goes that “Nobody ever got fired for buying IBM.” Likewise, no corporate counsel ever got fired for hiring an Am Law 50 firm.

More recently, history shows, many of those large firms—especially firms in New York and other large cities—have priced themselves out of the market for a lot of legal work. Big law firms, with brand-new associates making nearly $200,000 per year, find themselves at a competitive disadvantage for all but the highest-end legal work.

Corporate clients, starting about the time of the recession of 2008, have increasingly pressured big law firms to charge less, charge for matters on a flat-fee basis, not charge high hourly rates for new associates and generally be more efficient in handling their legal work. No surprise then that lawyers at many of the big firms figured out that they could leave and start their own small firm, get legal work from their old firms’ corporate clients by offering the same quality legal work at a lower price and still make a good living. The good news is that corporate clients are no longer afraid not to buy from IBM, particularly when there is a high-quality alternative available.

Corporate clients are now interested in getting the most bang for their legal buck, and if that bang comes from moving legal work to a lower-cost small firm, so be it.

One key to all of this is technology. By using technology this new generation of small law firms can set up shop in cities and towns that offer lower rent and that have a labor pool that does not command New York salaries. These firms can even locate in cities close to where their corporate clients’ offices are located, thus becoming more available to the clients.

To be fair, the lawyers who are leaving big firms and starting their own firms likely have done legal work for big corporate clients while working at the big firms. Their experience and relationships give them an advantage not enjoyed by a small-town lawyer who has only represented individuals or small businesses. But the good news is that business clients are increasingly willing to hire solos and small firms. Most small-office lawyers will likely continue to do what they have always done: perform legal work for regular people and small businesses in their respective communities. It is also true, though, that small-office lawyers who develop expertise and legal skills that have a national or international reach can now market those skills outside of their communities.

Some breakaway firms operate in a traditional manner, with all lawyers working under the same roof, while others take a nontraditional approach and have lawyers scattered across the country, working out of their homes or in individual offices. These firms argue that their corporate clients don’t care where the lawyers are housed as long as the work gets done well and at a reasonable price.

CHANGES ARE COMING

Lawyers have been working from home offices for several years, but the trend toward virtual offices, where most if not all client interaction is online, is a recent phenomenon. Stephanie Kimbro discusses this trend in her new book, The Consumer Law Revolution: The Lawyer’s Guide to the Online Legal Marketplace, published by LP in 2013. Kimbro is also the author of Virtual Law Practice: How to Deliver Legal Services Online, published in 2010 by LP.

With consumers going online for “almost every other consumer need” according to Kimbro, it should not come as any surprise that they are also seeking legal assistance online. This goes beyond merely searching Google for a lawyer, then calling or emailing to schedule an appointment. Kimbro describes what she calls “branded networks” as companies that create a brand around legal forms and documents that are marketed directly to consumers.

Why is this important to small-firm lawyers? Because those branded networks invite lawyers—often solos and small-firm lawyers—to join their network and provide legal advice, for a fee, to customers who need it and to provide content for the network’s website.

In addition to discussing branded networks, Kimbro offers advice on website development and online marketing, two areas where most solos often need help.

KEYS TO SUCCESS

One key to success for any aspiring small-office lawyer is to recognize that you are walking alone on a tightrope and that you need to have a safety net to keep you from getting hurt should you fall. Your safety net can take the form of dedicated employees, trusted colleagues and/or a concerned spouse. Your safety net should include routines, systems, policies and procedures. Your safety net can also include a self-evaluation of your strengths and weaknesses. It can be something as simple as not getting overextended with litigation that will take all your limited resources for an extended period of time.

One overlooked key to success is taking care of yourself, both physically and emotionally. More solos have failed because of health problems, including everything from heart attacks to drug and alcohol problems, than have failed because they lacked courtroom skills. Most bar associations offer everything from counseling to classes on every aspect of law practice management.

The truth is that if you plan to practice alone or with another lawyer, you will need to make sure that things go right more often than they go wrong.

Learning to practice law as a solo involves skills that need to be learned. No one is born with them, and few law schools teach them. The heartening news is that there are now abundant resources to aid solos and small-firm lawyers.

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