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This cautionary tale comes from a case called Mt. Holyoke Homes, L.P., v. Jeffer Mangels Butler & Mitchell, LLP (No. B243912). The facts are straightforward. Mt. Holyoke Homes hired Los Angeles law firm Jeffer Mangels Butler & Mitchell to provide legal services in connection with a real estate development.

When lawyers at the Jeffer firm failed to timely challenge the California Coastal Commission’s exercise of jurisdiction over Mt. Holyoke’s application for a development permit, Mt. Holyoke sued the firm for legal malpractice. Jeffer Mangels petitioned to compel arbitration, which was required under its engagement agreement with Mt. Holyoke. The law firm also sought to recover unpaid legal fees.

The parties jointly selected Retired Judge Eli Chernow to serve as the arbitrator over the malpractice action. According to the case, Judge Chernow made the following disclosures at the outset of his engagement:

“Judge Chernow disclosed that Defendants’ counsel had represented a party to a mediation before him within the past five years, but stated that he was not aware of any relationship with any party or attorney involved in this matter that would impair his ability to act fairly and impartially. Judge Chernow later disclosed that he had known Benjamin Reznik for many years. He also disclosed that he had conducted an arbitration and a mediation involving Adler more than five years earlier. The parties agreed to his appointment as arbitrator despite these disclosures.”

Judge Chernow ultimately issued an award in Jeffer Mangels’ favor on the grounds that its members had not breached the applicable standard of care nor caused Mt. Holyoke’s damages. He awarded the law firm $18,132.81 in unpaid legal fees, $285,000 in attorney fees incurred in connection with the arbitration, and over $150,000 in costs.

Smelling a rat, one of the Mt. Holyoke plaintiffs scoured the internet looking for evidence of bias on the part of the arbitrator. According to the case:

“She discovered for the first time a previously undisclosed resume in which Judge Chernow had named Robert Mangels, a name partner in JMBM, as a reference. She found a link to the resume on the Internet site of the National Academy of Distinguished Neutrals. Mangels was the first of three “References” listed on the resume.”

Reasonable minds will differ on whether this was really smoking gun evidence of bias. Judge Chernow signed a declaration attesting to the fact that the “resume” had been prepared 10 years earlier and that “he had listed Mangels as a reference only because Mangels was a well-known and highly-regarded litigator who was familiar with his abilities as a neutral.”

The trial court, unimpressed with the internet revelations, granted Jeffer’s petition to confirm the arbitration award and denied Mt. Holyoke’s petition to vacate the award. But—you guessed it—Mt. Holyoke appealed, and the California Court of Appeal held that it was error for the trial court to deny the petition to vacate the award based on the revelations of Judge Chernow’s . . . er . . . sordid past with Robert Mangles. The Court said:

“ . . . the connection between the undisclosed fact of the arbitrator’s naming an attorney as a reference on his resume and the subject matter of the arbitration, a legal malpractice action against the law firm in which the same attorney is a partner, is sufficiently close that a person reasonably could entertain a doubt that the arbitrator could be impartial. We conclude that Judge Chernow was required to disclose the fact that he had listed Mangels as a reference on his resume. Judge Chernow did not state in his declaration that at the time of his required disclosures he was not aware that he had listed Mangels as a reference on his resume, and there appears to be no reasonable dispute that he was aware of that fact at that time. His failure to timely disclose this ground for disqualification of which he was then aware compels the vacation of the arbitrator’s award.”

The real loser here is Jeffer Mangels or its malpractice carrier, who now have to re-try and, presumably, re-win the malpractice case. Perhaps there really was bias, though I doubt it. Judge Chernow is a pretty well-respected neutral. However, this case highlights the risks if you don’t know your arbitrator really, really well (or if you actually do know your arbitrator really, really well). I never said arbitration wasn’t risky, expensive and unpredictable.

” . . . and a donut without a hole, is a Danish.”

–Caddyshack

In a media dialogue between two minds I greatly admire, Scott Adams, the creator of Dilbert, and Associate’s Mind blogger and newly-published book author Keith Lee, the notion of setting goals recently took a severe beating.

Adams kicked off the goal-bashing in an entertaining Wall Street Journal piece, “What’s the best way to climb to the top? Be a failure.” Waxing autobiographically about the twists and turns that ultimately led to his huge success as a cartoonist, Adams suggests that goals, like diets, are basically a recipe for failure or disappointment, or both. He says:

“To put it bluntly, goals are for losers. That’s literally true most of the time. For example, if your goal is to lose 10 pounds, you will spend every moment until you reach the goal—if you reach it at all—feeling as if you were short of your goal. In other words, goal-oriented people exist in a state of nearly continuous failure that they hope will be temporary.

If you achieve your goal, you celebrate and feel terrific, but only until you realize that you just lost the thing that gave you purpose and direction. Your options are to feel empty and useless, perhaps enjoying the spoils of your success until they bore you, or to set new goals and re-enter the cycle of permanent presuccess failure.”

So, since “goals are for losers,” Adams suggests we settle into a comfortable couch and spark some high-resin Bob Hope, right? Sadly, no. Instead, he suggests the recipe for success is found in developing “systems.” Unlike goals, systems are not only durable but evolutionary. He writes:

“Throughout my career I’ve had my antennae up, looking for examples of people who use systems as opposed to goals. In most cases, as far as I can tell, the people who use systems do better. The systems-driven people have found a way to look at the familiar in new and more useful ways.”

For his part, in a post entitled “Goals Are For Losers,” Lee embraces Adams’ mantra hook, line and sinker. Because Lee tends to focus on our development as lawyers, he suggests that systems are the path to success as a lawyer. He says:

“This focus on systems – and systematic improvement – can apply to almost every aspect of being a lawyer. Want to improve your writing? Develop a system in which you consistently write and receive feedback. Want to improve oral argument skills? Get together with other lawyers and set up an informal meeting/group devoted to affording lawyer the opportunity to engage in oral arguments and receive feedback. Think mock trial team from law school. Hell get your firm or the local bar to sponsor/support it. You can’t just skate by and hope to succeed as a lawyer. You have to work at it.”

I’m here to say that I haven’t heard so much empty linguistic sophistry about “systems” from intelligent minds since I finished that awful Hegel seminar my last quarter at UC San Diego. Both Adams and Lee are spot on that systems are indeed the path to success. And Adams is absolutely right that all of us are going to encounter failure along that road. After all, failure and adversity are what teach us resilience and build our character.

Where both go wrong, however, is in the suggestion that we abandon goals. Whaaaa?

What is a system without a goal? It’s just an exercise. We wouldn’t “consistently write and receive feedback,” as Lee suggests, for the sake of writing and receiving feedback. We use this system to help reach the GOAL of becoming a better writer. If you were going to take time out of your otherwise busy life to “set up an informal meeting/group devoted to affording . . . the opportunity to engage in oral arguments and receive feedback,” you would do so in order to reach the GOAL of becoming a better oral advocate. (Brief aside: don’t bother “setting up” any such thing, just join Toastmasters.)

There are perpetual students who obtain multiple degrees and never really leave school. But they have a system–just no goal. Goals are the key to success, as the authors’ own success aptly–but perhaps unwillingly–illustrate. Keith Lee would never have become a lawyer without setting the GOALS of graduating from college, getting into law school, then completing law school. He wouldn’t have built a wildly successful and influential blawg without the GOAL of building a quality law blog. And, he would not have a new book worth reading if he had not set the GOAL of finishing a book worth reading.

The key here is not to abandon goal-setting. Rather, once you set a goal, develop a system to reach that goal. And be flexible about adjusting that goal if it begins to seem unrealistic or you suffer a major set back, which is reasonably likely.

On the other side of the coin, when you achieve a goal, don’t spiral into depression, feeling “empty and useless, perhaps enjoying the spoils of your success until they bore you.” Set a new goal! Reach higher and farther.

And read Dilbert. Often.

I’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as “creating the conditions [necessary] for successful spontaneity.”

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.

Much of my approach to marketing my law practice derives from the two years I had one-on-one business development coaching sessions with Bob Kohn of Kohn Communications. First and foremost, he helped me get past the discomfort I had with asking for business (though I’ll confess this is still tough for me). In particular, he helped me appreciate that offering my services as a lawyer is quite different from trying to recruit a friend into Amway.

Even if one-on-one business development coaching is beyond your means, you can still benefit from the Kohn Communications model, since Bob and his brother Larry distilled their approach into a fine book, Selling in Your Comfort Zone (ABA 2009). One of the strategies Bob taught me, which he discusses in the book is giving “value-in-advance.” To do it justice, I’m going to skip my own description of this concept and simply quote the Kohns:

“‘Value-in-advance’ is the strategy of offering something for free as a way of allowing your targets to experience a sample of the benefits that you offer. If you were selling a product, then ‘value-in-advance’ might be a sample of the product.” (Id. at 71.)

According to the Kohns, value-in-advance serves multiple purposes. Among these–and why it is especially useful for me–is that it creates a reason/opportunity to reach out to one’s targets that is, at its best, positive and, at worst, neutral. In other words, by trying to offer something valuable in advance, you are taking an uncomfortable, potentially negative experience, and making it a hopefully positive one for both you and your target. Even if the “value” you offer in advance is not ultimately useful to your target, the exchange will likely be viewed at worst as neutral.

The Kohns point to how Gillette sent free Mach III razors to potential customers as a simple example of value-in-advance. Because I sell information, advice, strategy and representation rather than razor blades, I prefer to provide information, advice and strategy in advance, whether it is by an alert, a speech/presentation or providing counseling without charging for my time. Further, since I practice in an area–employment law–which experiences almost constant changes in the law, I truly believe that the information I provide for free brings value to my audience, or targets.

Many people I consider business development “targets” are not really potential clients. Rather, they are often folks whom I believe are, or will be, positioned to refer potential clients to me at some point in the future. For some reason I don’t completely understand, I find it much easier to “sell” myself to referral sources than to prospective clients. In any event, another type of value-in-advance which the Kohns discuss, and which I find both easy and valuable, is to bring together–through introductions–people whom I believe will benefit in some meaningful way from knowing one another. One example could be introducing a lawyer or accountant who specializes in the entertainment industry with a contact in the entertainment industry who could benefit from their services.

The Kohns discuss this kind of giving value-in-advance as follows:

“Introducing quality people to each other communicates compatibility and capability. It demonstrates that you know quality people. And, as those people interact with each other, it strengthens their emotional connection to you.” (Id. at 73.)

One would be naive to ignore the potential risks of making introductions, and I don’t make them blindly. The Kohns acknowledge these risks. They say:

“Many people are afraid to make introductions because of the possibility that the people you introduce may not get along. Or worse, they may do a deal that goes badly. It is important that when you make an introduction, you are proud of the people you are introducing. Also, you don’t need to make warranties. Rather, you should state that you are introducing people with the understanding that they get to know each other and decide for themselves if they feel comfortable working together.” (Id. at 75.)

Venture capitalist Mark Suster, who is not only a friend, but also someone I’ve come to view as a kind of “success mentor,” creates an even stronger argument for being “judicious” in deciding whether and to whom to make introductions. In his blog, Both Sides of the Table, he writes:

“Intros. They’re the lifeblood of networking – the currency of mavens. They are your route to angel money. Your entrée to sales meetings.

We couldn’t live without them.

But when misused, overused or abused they can diminish your personal brand, consume your valuable time and waste time of the relationships you value the most.

* * *

[H]ere’s the thing – every time you send an introduction you’re obligating people. At a minimum you’re obligating them to ignore the email and feel like an arse for not responding to your introduction. More likely they either end up finding an excuse not to meet, delaying a meeting indefinitely or in most cases actually taking a meeting.

Over-introducers also consume a lot of personal time in making intros. It is very time consuming doing intros the right way. Ask yourself the tough question about how you might spend that time more productively getting your job done well.”

Suster’s post has some useful thoughts and guidelines on when to make (or not make) introductions, and I recommend it.

The real takeaway here is that giving value-in-advance, whether through free razor blades, alerts about employment law developments or making quality introductions, can be a terrific way to market your product or practice without overtly marketing your product or practice. Check out the Kohns’ book for other ideas.

Being lawyers, many of us suffer from the tendency to believe we can service all of our clients needs, whatever they are and wherever they take us. I think part of the reason is that, as professionals, we naturally like to control everything, and the thought of relinquishing any little bit of control causes anxiety. I suspect another reason has to do with a worry that other lawyers are direct competitors, even if their practices differ geographically or in terms of subject matter.

I hesitate to suggest that we’re worried the other lawyer will do a better job for our client (though they might), but it’s scary to think another firm, even if hired as a partner in a particular case or project, will take the opportunity to aggressively pursue our client, to take it/them away from us permanently.

Yet another concern could arise from a fear that, if we involve another professional and they do a less-than-stellar job or overcharge our client, or both, it will reflect poorly on us. It surely will, on some level, at least if we are involved in selecting and/or hiring the associated professional.

On a purely rational level, we know these concerns shouldn’t prevent us from doing what’s best for our clients. If that means hiring a tax specialist because a deal or case raises issues outside our skill set, it’s generally a no-brainer decision. Similarly, if I’m a litigator licensed only in California and I’m handling a case in, say, Nevada, which requires the involvement of a lawyer who is both licensed and venued in Nevada, even if I am admitted pro hac vice, I won’t let my poaching fears prevent me from doing the right thing.

But what about a borderline case. For example, I most often practice in the Los Angeles area. I know the courts, the procedures and many of the judges in LA, Orange County, Ventura, Santa Barbara (because I actually live in SB), Riverside and San Bernardino. If I am assigned to handle a case in Bakersfield, or Fresno, or even San Diego, should I be thinking about hiring local counsel in those venues?

I want to suggest the answer is yes, I should at least think about whether it makes sense to involve a local counsel in any case that I’m planning to handle that is as far away as Bakersfield is from LA, even if, after I think about it, I conclude it is unnecessary. In other words, it is an issue that should be spotted and resolved just like any other.

I recognize this doesn’t really advance the ball, because it doesn’t provide any guidance when one should, not only consider hiring a local lawyer, but actually do it. Here are some thoughts on this bigger question.

1. Hire local counsel when you have reason to believe you will be “home-towned.” What does this mean? I see “home-towned” as any instance in which your client could suffer prejudice from the fact you are foreign to the jurisdiction. This is not always readily apparent, and could require some impression gathering from colleagues or acquaintances. I’ve long heard, for example, that judges and juries in San Diego do not receive Los Angeles lawyers well. I could speculate forever on the genesis of this (assuming it is true), but I’ve heard it over and over.

Now, this does not mean I think it’s necessary to hire a local San Diego lawyer or firm  every time I have a case pending there. Rather, it is more likely that I would only hire someone local if my case was clearly headed to trial, or if there was some unusual issue that made me think my client would benefit at all from having someone local there with or instead of me. The possible scenarios are endless. It’s a judgment call.

2. Hire local counsel when you’re in a venue that has strange or unfamiliar procedural rules. In California, we are required to comply with the California Code of Civil Procedure, the California Rules of Court, the Local Rules of the county and, often, the judge’s own rules. And we hope none of these conflict. Sometimes we encounter a county or judge with some bizarro rules about how things must be filed or served, or both. I can tell you there is nothing more comforting than being able to pick up the phone and talk to someone who regularly appears in the particular court, before the particular judge.

3. Hire local counsel when it’s otherwise a good idea and you can hire someone whom your judge knows and respects. This can be particularly important if your opposition knows the judge well.

4. Hire local counsel when you expect the entire jury will speak with an accent you don’t have. I’ll admit to occasionally having Southern Drawl Envy. You know what I mean if you’ve ever had to speak at a conference and follow some smooth-talking  storyteller from South Carolina or Georgia or someplace. It can be humbling to realize how utterly ordinary we sound.

5. Hire local counsel when there’s a reason to think some past event or news will cause your client to suffer geographical prejudice. Did your client just shutter a factory in the town where you’re about to start trial, putting hundreds or thousands out of work? You’re going to need to deal with that, and a local perspective will be valuable.

One final word. The verb “hire” as used here doesn’t mean your client needs to break the bank with yet another full-time billing machine. Often, it will suffice to have the local counsel merely available for consultation purposes, or to help pick the jury, or participate in a particular hearing.  The additional investment should be minimal and could pay dividends.

As the ink from California Governor Jerry Brown’s pen dries on Assembly Bill No. 10, which will raise the hourly minimum wage in our state to $9.00 effective July 1, 2014 (and again to $10.00 on January 1, 2016), employers need to consider the ramifications of this change beyond the obvious increase in take-home pay of hourly workers.

Here are key areas that will be impacted by the increase:

Salary Basis Test For “White Collar” Exemption – In addition to meeting other criteria to qualify as an exempt employee under one of the “white collar” exemptions (i.e., executive, administrative or professional), exempt employees must earn a salary that is at least twice the minimum wage for full-time employment. This minimum increases in July, 2014 to $37,440, and to $41,600 beginning in January, 2016.

Commissioned Sales Employee Exemption – To qualify for this exemption, employees must earn in excess of 1.5 times the minimum wage for all hours worked. This rate will increase to $13.50/hr on July 1, 2014, and $15.00/hr on January 1, 2016.

Employees Who Furnish Own Tools or Equipment – When employees are required to furnish their own tools or equipment necessary to their performance of the job, they must be paid twice the state minimum wage. This rate will increase to $18.00/hr on July 1, 2014, and $20.00 on January 1, 2016.

Calculation of Overtime, Vacation, Sick Leave, Paid Time Off and Meal and Rest Period Premiums – Employers must adjust how these are calculated to reflect the minimum wage increase.

Employer-Required Split-Shift Premiums – If an employer requires an employee to work a split-shift, the employer must pay the employee a premium, of one hour’s pay at minimum wage, in addition to the employee’s regular earnings paid for that shift. (If hourly wage exceeds state minimum wage, difference may be credited toward split-shift premium.)

Voluntary Crediting Agreements – Employers with written agreements with their employees for crediting meals or lodging expenses against the minimum wage will need to adjust this crediting to reflect the increase.

Posting The New Wage – Employers will be required to conspicuously post the new wage in an area frequented by employees where it may be easily read during the workday.

Cities With Higher Minimum Wage – Certain California cities, including San Francisco and San Jose, may impose a higher minimum wage and/or adjust their minimum wage more frequently. Employers should ensure they comply with all applicable federal, state and local laws.

Few of us aspire to be a briefcase carrier when we start law school, but that’s what many of us find ourselves doing when we first pass the bar. At least if we’re lucky. I know everyone might not share this view, but it can be pretty nice to get paid to finish the education you started in law school by carrying the briefcase for a lawyer who’s been trying cases for a while. Not everyone is a good role model just because they’ve got experience but, as I’ve said before, you can learn at least one thing from every lawyer you meet.

One of the first things I learned during my bag carrying apprenticeship was not to forget when you were in trial, or about to start a trial, that jurors, or potential jurors, are literally everywhere around the courthouse.

I learned this the hard way, of course, when I made the mistake of talking loudly about the our motions in limine with the partner as we were walking out of the courtroom. “Shhhh,” he said. I didn’t know at first what he was talking about; it seemed like we were all alone in the hallway, or alone enough, so that I could speak freely. “The walls have ears,” he said. I still didn’t understand until, a few steps later, I noticed the familiar face of one of our prospective jurors, leaning against the wall, reading a dog-eared paperback.

When we got outside, and we were very clearly alone, he said, “Remember when you’re in trial that jurors are literally everywhere. And they hear and see everything.”

I was reminded of this point last week when working with Juryology blogger Rich Matthews on drafting a post about working with jury consultants. Rich pointed out that jurors pay attention to how parties and their lawyers act outside the courtroom. Are you or your client rude or impatient in getting through the security screening process coming into the courthouse? What about in the courthouse cafeteria during lunch? It is all information and they take it into the deliberation room.

I knew about one prominent LA trial lawyer who had done well, and owned a couple of exotic cars, but would only drive his Jeep Grand Cherokee when he was in trial. He felt it was important for jurors who saw him arrive at the courthouse (or leave at the end of the day) to see him driving a sensible, American-made car.

When someone at my firm is in trial, associates are encouraged to come down to watch at least a portion of the proceedings. But they are admonished in advance to (1) dress well, (2) behave with extreme decorum in the courtroom, and (3) do nothing to create the impression they are affiliated with the firm or the client, lest the impression they create is a poor one.

I can trace four periods in my life that significantly shaped my writing.

First, I’ve always been a passionate reader. Reading the good writing of others is not only great fun, it’s indispensable for learning to write well.

Second, in college I double majored in Philosophy and Literature-Writing. These years taught me to write very quickly. In a pinch, I would often leave myself only a very few hours–sometimes only 2 or 3–to write a paper that I could have worried over for days. I didn’t realize it at the time, but this habit of procrastination–not recommended for everyone–which required me to organize my thoughts and write coherent prose very rapidly, was probably the best preparation for the writing skills I use almost everyday as a lawyer.

Third was law school. I don’t like to think that law school did much to shape my writing. I didn’t get along with the IRAC method† at first. As you can imagine, philosophers and literary thinkers tend to (1) doubt anything called a “Rule,” (2) live in the realm of “Analysis,” and (3) sometimes never get to any “Conclusion.” If you’re a law student who struggles with adapting to IRAC, I feel your pain. Take refuge in the knowledge that you’ll one day grasp the beauty of the IRAC method. You’ll master it eventually, or fail the bar exam.

I did benefit from Law Review, however. The journal experience helped me get the hang of editing the writing of others. It also helped hone my citation skills and attention to detail.

Without a doubt, the biggest influence on my legal writing has been the tireless editing and revision by my longtime mentor. For the first five or so years of my career, I always dreaded getting back any first or second draft. Would it be as consumed with red ink as the one that came before?

But he persisted and his tutelage paid off. I learned to write much more crisply and economically. My legal writing became less linguistically rich, but shorter and clearer. And while there were things he did that occasionally drove me absolutely batshit, I really appreciate the time and effort he took working with me to help develop my writing and advocacy skills. I’m now flattered on those rare instances when he seeks out my input on an issue or document.

Now I am occasionally the one with the red pen marking up someone else’s work. This is a big responsibility, and should be treated as such. I came across an interesting New York Times interview of Jonathan Klein, the C.E.O. of Getty Images. Among the issues he discussed was “leadership lessons” he learned from his time at Getty Images. He said this:

“I’ve learned a lot from my executive coach. Anytime someone came to me to show me their work, I would critique it. I would almost behave like a schoolteacher–my mother was a teacher–and bring out the metaphorical red pen. And what I didn’t appreciate at the time is that before you mess around the edges, you’ve got to say to yourself, ‘Am I going to make this significantly better, or am I going to make it only 5 or 10 percent better?’ Because in fiddling over the small stuff, you take away all the empowerment. Basically it no longer becomes that person’s work. After a while, those people get into the habit of giving you incomplete work, and then you have to do it for them.”

Heavy is the hand that carries the (not-so-) metaphorical red pen, right? At least with respect to my writing, I always felt that my mentor’s revisions made the end product “significantly better.” In other words, the red ink was clearly worth his time, my attention and the attendant blow to whatever misplaced or unearned sense of “empowerment” I had as a baby lawyer. But I recognize that I don’t always revise someone else’s work either to help make them a better writer or to make the product “significantly better.” Rather, I’m just making it sound more like I wrote it. And, as Jonathan Klein points out, that’s the wrong approach. I need–we all need–to learn to go easier with that red pen.

†For the benefit of readers outside law, IRAC means Issue, Rule, Analysis and Conclusion. It is how law students, lawyers and judges typically approach a set of facts. In a nutshell, one “spots” or identifies an Issue, articulates or recalls the Rule, Analyzes how the Rule should be applied under the particular facts, and reaches a Conclusion.

Many litigators, even those who do trial work, have only a hazy idea about how much value a good jury consultant can bring to trial preparation and presentation. I’m here, with my friend, colleague and Juryology blogger Rich Matthews, to change that. In this post I’m going to identify five ways a good jury consultant can improve your chance of winning at trial.

First, though, I want to acknowledge a challenging hurdle in getting a jury consultant involved in any case. Often, our clients hold the view that lawyers have the education, training and experience needed to do quality jury research, in addition to our day job of mastering and presenting the legal issues, so hiring a jury consultant is needlessly duplicative. Rich dispels this view right away. He says:

“Clients make the mistake of thinking lawyers should be experts in jury research, and it’s often true that the lawyer who would like to hire a trial consultant doesn’t know what to say to the client about that. I would say that it’s like hiring any other expert for the case– lawyers are skilled at the law, jury consultants are skilled at social research. They are two different disciplines entirely.”

How can you effectively use a jury consultant on your case? Here are five ways:

1. In The Courtroom During Voir Dire.

I’ve either heard it said, or said it myself, either way it’s true: selecting a jury is the least understood process of a trial. This is because most schools don’t teach it and the only way to learn is by doing it and not only are trials precious commodities these days, but judges frequently take over the function of voir dire. As a consequence, many of us are ill-prepared to do voir dire well.

Jury consultants can help in formulating the right types of questions to sound out potential reasons why your client could benefit from challenging particular jurors. “Lawyers,” Rich says, “tend to have the wrong priorities in voir dire. They prioritize arguing their case over the most important thing in voir dire which is to get jurors talking and responding to each other.”

Even if the process is spread over multiple days, such as selecting a jury for a long cause trial, everything moves pretty fast in voir dire. A good jury consultant can help slow the process, or at least help your trial team sort through the mass of data being generated in this tight time-frame, so that intelligent decisions can be made about the need for specific juror challenges.  As Rich points out, jury consultants are skilled at “tracking all the hundreds of bits of data flying in the courtroom all the time and coalescing that into judgment.”

2. In Developing A Jury Profile Before Trial.

Before anyone enters the courtroom, a jury consultant can help the trial team develop a plan for what kinds of jurors (1) they are likely to encounter in a given venue, and (2) of these, which may come into the case with particular biases that will impede their ability to receive and process evidence fairly (by “fairly” here I naturally mean in a way that is favorable to my client). As Rich says:

“While attorneys are keeping up with developments in the law and managing your cases, the best trial consultants are monitoring all kinds of public opinion data and trends. So trial consultants start out in a much better position to develop a profile for the jury for counsel to follow during jury selection.”

Thus, even if your client is resistant to the cost of having a jury consultant present in the courtroom during voir dire or other crucial parts of the trial, there may still be value in the lesser investment of involving a consultant before trial starts.

3. Working With Focus Groups.

You know those parts of the case which you’re most worried about? When the trier of fact is a panel of jurors, those parts of the case are often not legal issues, but “juror issues.” Rich notes that “easily the best way to assess your case’s juror issues, as distinct from the legal issues,” is to work with a jury consultant and one or more focus groups. “Lawyers,” Rich says, “think like lawyers and focus very closely on the precise laws, whereas jurors are more ‘gestalt’ kind of thinkers and are more interested in a broad kind of justice and morality. This difference in focus will lead lawyers to overestimate the impact of a statute/rule/jury instruction on laypeople. The only way to get on the same plane as laypeople is with a focus group.” Anyone who has done focus group research knows it’s going to yield the most valuable information–useful conclusions–if the research is directed and interpreted by someone with the proper training.

4. Case Evaluation.

Most of us, myself included, tend not to think about involving a jury consultant until after the decision to take a case to trial has been made. Rich feels this is a mistake, since we tend to develop a kind of tunnel vision about the quality of our case or defense, and pass that on to influence our clients. Instead, “it’s imperative  to consider the ‘social zeitgeist,’ or what is happening in the collective social consciousness — as well as understand the predictable places where laypeople will deviate from how lawyers think —  when valuing a case or deciding whether to take it to trial.” Good jury consultants should be able to channel into this and inform your case evaluation.

A bonus to involving the consultant earlier than later is that he or she can help you shape your discovery to fit a theme that is likely to resonate with jurors, as opposed to the more common approach of trying to pigeonhole evidence gathered at random into a theme that is developed for the first time on the eve of trial.

5. Witness Preparation.

A consultant can help prepare a witness for testimony in deposition or a trial in a way that most lawyers cannot. I’m afraid I have to agree with Rich when he says:

“Lawyers have proven woefully inadequate at witness preparation. Most lawyers think that reviewing the facts and saying ‘Just remember to tell the truth’ constitutes good witness preparation. It doesn’t. Imagine a witness who actually has skills at testifying– not just what to say, but how to say it; how not to bait the bear; how to tell his or her story to jurors. It’s so much more than just ‘Here, re-read your deposition transcript and make sure you follow it precisely or else we’re going to be in trouble.’”

Ok, I’m not that bad at witness preparation, since it’s something I’ve long recognized to be crucially important. But yes, Rich, we get the message!

One last word on hiring a jury consultant, devote the time and effort to finding a good one. As Rich says, there are “lots of mediocre consultants flooding the marketplace.”

This article originally appeared in the Los Angeles Daily Journal.

Lawyers, on the whole, make pretty poor business owners. Ask any MBA graduate or marketing guru. I never gave this a second thought during my first decade of practice, when I was too busy wondering why I wasn’t earning as much as some of my classmates (while admittedly earning more than others) to think about the bottom line. It turns out, however, that stars really must align in order for a billed hour to ripen into a collected greenback. A client is needed who not only can afford to pay, but who will pay. This axiom is apparently so obvious that most law schools don’t waste even a minute teaching it. Go figure.

Talk of alternative fee arrangements is all the rage. While opinions differ about which arrangements work, or are really “alternative,” I can identify one arrangement that is virtually guaranteed to fail, eventually: I call it the “hourly-contingency” model.

I was introduced to the mechanics of the hourly-contingency model by a colleague with whom I worked a few years back. I considered him a dunce then, and I remember him as one now. But I’ve come to realize that the hourly-contingency model as he structured it — however inadvertently — is actually a common practice by litigators everywhere, from solo practitioners to BigLaw firms.

Here’s what I’m talking about. A client finds her way into your office with a set of facts that simply scream for redress. It’s a business spat, a breached contract or a real estate deal gone bad. Her case is sufficiently textbook. There are promising facts on the plus side and manageable details on the negative. The biggest plus of all is a solvent defendant. You discuss costs; she’s prepared to pay. You sign her up and you’re off to the races.

Things start out well. The opposition balks at your demand. This was expected. You file a complaint, exchange discovery, some documents, emails, computer files, etc. Some key early depositions are conducted. The facts that made the case attractive remain strong and you continue to believe you can manage the negatives. But one thing does change: your client, so gung-ho to sue and so prompt to pay at the outset, has been slow to return calls and even slower to pay her bill. As soon as her A/R hits 90 days you call her in for the “talk.”

As you expected, money has gotten tight. Your client still wants to pursue the case and promises to pay, but just simply can’t right now. You extract a small check toward her A/R, send her on her way and privately vow to handle the case more “economically” going forward, at least until your client gets current.

Only your client never gets current. And your opposition decides to ramp things up, making it impossible to handle the case more economically. A few months and another “talk” with the client yield nothing, not even another check toward her now rapidly growing A/R. Well, you think, the case should settle soon, and she can get current with the proceeds …

Where the story goes from here doesn’t matter. Or, actually, it makes all the difference, and that proves my point. Either the case settles or gets tried, a favorable result is reached and the client pays up, or things don’t go well and you end up eating a substantial chunk of your bill. When this happened to my … er … colleague, he ended up eating about $80,000 in unpaid fees, not because the client did not want to pay, but because she couldn’t and he had allowed the case to get into this unfortunate posture.

The hourly-contingency case. You bill clients for your time, but there’s no guarantee you’ll collect unless you win. But it’s not a true contingency fee because there’s no bonus for a great result to justify the gamble of taking the case on contingency. It’s not what either the lawyer or the client intended, but both acted in concert, if purely through inertia, to allow it to happen.

How do you keep an hourly case from unintentionally going contingency? It turns out it’s not terribly complicated, but it does require discipline. And it begins with a retainer check. I left this out of the hypo above, and I could just hear readers muttering under their breath, “Of course there’s a retainer, right?”

I left out the part about the retainer because lots of lawyers do business with new clients without a retainer. It’s not because lawyers, even those who lack business acumen, do not understand the wisdom of collecting a retainer up front, it’s that we really don’t enjoy doing it. It’s an uncomfortable conversation. But it’s a necessary one. Lawyers who are diligent about getting a retainer fee are less likely to get stuck holding the bag if a case, a client, or both go south.

Lawyers and clients can agree to apply the retainer to the first billings, or for the funds to be held in client trust until the close of the case, and applied to unpaid invoices or refunded at that time. Beware: all but the wealthiest clients will want — and may expect — the retainer to be applied right away. But this would be no help at all in our hypothetical above. The upshot is that it takes discipline, both to ask for the retainer, and to retain the retainer until the case is closed and the client is current.

If it takes discipline to protect yourself with a retainer, it takes far greater discipline to recognize you’re sliding into the hourly-contingency situation and to cut the client off. This is particularly true if, as in our hypothetical, you share your client’s belief in the quality of her case. And could there be a more uncomfortable conversation? The temptation exists to believe if you just hang on a little bit longer the case will settle and you’ll get paid.

It’s only with discipline, by tempering that temptation, that you can prevent a case that’s headed for the hourly-contingency sinkhole from getting there. Leave this particular alternative fee arrangement for someone else.