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Big revelation: I was never a model associate. Despite my present willingness to freely dispense advice on how to make your career all that it can be, I was pretty consumed as a young lawyer with setting and adhering to strict boundaries and trying to maintain a work-life balance. While I was relatively efficient with my time and regularly achieved solid results, I never set any records for billing massive hours or being the earliest to arrive or the last to leave the office. My stats were underwhelming, at best.

I recognize now that, in my preoccupation with boundaries and balance, I was just delaying the inevitable realization that ours is just not a profession that conforms well to individual desires for boundaries and balance. We’re in a service industry, and we’re forever beholden to both clients and courts. Both are demanding. Without either, we’re sunk.

Although it’s technically possible to “skate by” as a young lawyer like I often did, there comes a time when reality catches up to you. Once you develop your own clients and cases, you suddenly realize there is no longer a safety net–the buck stops with you. You’re no longer worried about disappointing a partner with the quality of your research or writing in a memo or a brief. Instead, you’re worried about losing the case or the client, or both.

I’ve spent the past decade or so learning to adjust to this new reality. It was harsh at first, a little bit like my experience as a Southern Californian visiting Alaska in January for depositions. But I’ve evolved and actually developed some strategies to cope with the sturm und drang that is inevitable in an active litigation practice.

Recognize It’s Cyclic

The first step I’ve found useful is to be objective and recognize that, for most of us, episodes or periods of extreme stress tend to be cyclic. There will be demanding times and slow times. When I find I’m in a particularly demanding period, I remind myself that this will at some point pass and life will return to normal. At least my practice is cyclic and I know there will come a time when I’m slow again and hungry for excitement. If you are reading this and shaking your head, “no, there’s never a break,” then I think you might need to take a look at changing how you manage your professional life. Seriously.

Communicate With Those Close To You

I’ve only had the experience of being married to another lawyer. But if your spouse or significant other is not a lawyer (or even if they, too, practice) it can be challenging for them to comprehend the extreme stress we experience when we are preparing for trial, or are in trial, or are just too friggin’ busy. Communication can be key to making it through these periods. Even if you bore your family to death describing what you’re working on, they will appreciate being included and better understand the challenges you’re facing and the stress you’re under.

Get Outside And Get Some Exercise

Speaking for myself, the first thing that seems to happen when I go into “lockdown” mode is that I forget all about exercise or diet. I tend to be chained to my desk and I give in and eat a lot of crap I generally avoid when I’m more in balance. If I don’t actively force myself to get outside, I’ll pass several days sitting at my desk, only venturing outdoors long enough to get to and from my office or pick up lunch or dinner. Really unhealthy! I’ve learned, however, if I set my iPhone alarm to go off at 3 in the afternoon, I can force myself to leave the office and walk for at least a half hour. This not only provides a break with some mild exercise, it reminds me there is a world outside  that hasn’t stopped spinning just because I got busy. This small slice of exercise, daylight and reality can be refreshing and helps me not to be so irritable about being so busy.

Look On The Bright Side

Although I’m stressed and missing my family and chained to a desk getting fat, I actually find that our profession is most exciting and rewarding to me when I’m either in trial or getting ready for a trial. There’s something about this time, when a case is (hopefully) starting to really come together and make sense and we are nearing the point of no return that I find stimulating. I try to appreciate these times and, again, remind myself it’s all cyclic and before too long things will slow down and return to “normal.”

(I so wanted to accompany this post with a still photo from the scene in Training Day in which Denzel Washington, wielding a sawed-off shotgun, tells Ethan Hawke’s character, “You know I’m surgical with this bitch!” Sadly, I couldn’t find a good still from that scene, so I used this lame stock photo instead.)

I’m a big proponent of serving written discovery that is “surgical,” that is, as narrowly drawn to fit the facts of the case as I can make it. Why? First, because I am a lawyer, my time is expensive. I don’t like to waste my client’s money writing discovery that is not likely to yield anything of value. But it’s not just that.

Drafting and serving unfocused and overly broad discovery will lead, in most instances, only to objections (“Overbroad!”) and, even if there are substantive responses, chances are they’ll be weak and of little value. As I’ve earlier written, you and your client should almost always “go to the mat” if necessary to obtain complete discovery responses. This means time spent reviewing the crappy objections and responses, writing one of those spectacularly painful “meet and confer” letters, getting a spectacularly painful letter in response, possibly writing another and/or having an unpleasant telephone call, followed by a motion which you may or may not win because the discovery was crappy and overly broad in the first place. All of this is time-consuming and, therefore, expensive for your client. In most jurisdictions, moreover, the court has discretion to force the party who loses a discovery motion (which could be you) to pay the other side’s attorney’s fees. Ouch!

A second reason I try to make my discovery surgical relates to how I want to be viewed by my opponent. While there are certain times when, for strategic reasons, I want my opponent to view me as unsophisticated and/or unprepared, I usually desire to instill the opposition impression. Nothing shows I haven’t a clue more clearly than 100 unfocused interrogatories, most of which skirt the real issues in the case. On the other hand, well drafted discovery shows not only that you know how to practice law, but also that you know what facts will win or lose the case. If your opponent happens also to know what she is doing, she will take you more seriously throughout the case, including at important times like when you are mediating or discussing settlement. If, on the other hand, your opponent is a lawyer who has gotten in over his head, recognizing that you know what you are doing will make him that much more eager to resolve the case before trial. Fear of submitting a case to judge or jury can be huge leverage.

So that’s my spiel for why it makes sense to serve surgical discovery. What about the how? A couple of ideas. First, it should be no big mystery at the discovery stage what the major theories of liability or defenses will be. I recognize we often refine theories and defenses based upon what we learn in discovery, but the complaint and answer at least frame the case in a general way. I like to take the jury instructions for the theories and defenses and draft discovery that seeks facts (and documentary evidence) that will support or defeat each element of a cause of action or defense. I recognize this isn’t revolutionary, but it works.

In addition, I like to involve at least some of the expert witnesses who will ultimately consult and, potentially, testify on behalf of my client as early as I can in the case. By meeting with these experts earlier than later, I can understand the technical issues likely to be in dispute. I may involve the expert in drafting discovery requests that are likely to yield meaningful information. I recognize that involving an expert early in the case can be costly. On the other hand, early expert involvement can ultimately save your client money in lots of different ways, starting with drafting useful cost-effective discovery, and including explaining earlier than later how the case you and your client thinks is so good actually sucks on a technical level.

So, go on, be surgical with that . . . er . . . interrogatory.

I asked several top Southern California mediators I know personally or by reputation to share their best “tip” for success at mediation. In exchange for their labors, I promised the prestige and notoriety of being featured on this humble but aspiring blog. Several neutrals cheerfully responded and provided some great tips. The following are the best 6 responses I received:

Jeff Kichaven (www.jeffkichaven.com): “Prepare, prepare, prepare.  Get your brief to the mediator a week before the mediation.  Give the mediator time to read it, think about it, read it again, and call you to discuss it.  That phone call – 10 to 20 minutes at most – can be the most important time in the whole mediation process.   Be sure to discuss:  (1) What are your biggest challenges in the mediation?  (2)  What are your expectations of the mediator?  (3)  What should the mediator know about the personalities of the participants?  (4)  Is an Opening Joint Session a good idea?  And, (5), What should happen if you or the mediator think that the other has a “blind spot” or just doesn’t get something?  The answers can vary widely from case to case!  Once the mediator knows your thinking on these subjects, he can prepare for the “people issues” as thoroughly as he can prepare for the legal and factual issues.  The mediation will be specially designed to meet your needs, and the needs of your client, in this particular case.   This kind of preparation will help get the mediation off on the right foot, and almost always lead to greater client satisfaction with the result, with the process, and with your performance as counsel.”

Mark Loeterman (www.mlmediation.com): “Information translates into power, both in litigation and at mediation. The careful use of information is an integral part of your bargaining strategy. At the outset, it is important to plan what information you need to obtain from, and provide to, the other side so the parties can have a meaningful negotiation. Lawyers are guarded about the information they reveal. They fear giving up some advantage or losing the opportunity to surprise an unsuspecting witness. Here are some practical steps for handling information most effectively. First, solve the information gap. Ask the other side questions that are designed to buttress your position or better evaluate risks. Next, consider offering discreet information which shows strength and confidence in your case, such as an analysis of damages or a case citation that supports a decisive legal principle. On the other hand, negotiators must understand how they can protect their most important and sensitive information. If you want to learn how to perfect these “blocking” skills, simply watch a politician being interviewed. Adroit politicians use a range of techniques to avoid answering even probing questions. Information is a valuable commodity. Thoughtfully timing and presenting select pieces can yield significant concessions from your adversary. The mediator can arrange an exchange of information that is orderly and reciprocal, and can clarify the positions being taken, assuring that no party feels vulnerable and manipulated by a one-way disclosure.”

Michelle A. Reinglass (www.reinglassadr.com): “Some parties have difficulty giving up their lawsuit. If asked, “Are you ready to settle and put it behind you?” they may answer “yes”, but their actions belie that. The plaintiff may have difficult letting go of the one thing that has kept him/her going-the chance to get redemption, or revenge. The defendant may not want to let go because of the fear of looking weak, or setting precedent (despite promises of strict confidentiality with “teeth” for a breach). Fortunately most cases do settle, but for those that can’t, I follow them until the “end”, which is too often predictable. So, how can a party going to mediation wean themselves away from the lawsuit? First is getting reality checks about the merit, value & risks of their position. For most that will require “processing” to reach that understanding. Second, is seeing the positive picture of their life without the lawsuit as a major part of it, draining (more like “sucking out”) their energy and good health. It helps to focus on their positive goals beyond “revenge”, giving themselves their own redemption, not relying on someone else such as a judge or jury, to give it to them, which will often be disappointing; or focusing on getting a job, or performing better in their personal and business lives, or putting their energy back into running their business without employees distracted by depositions , “gossip”, or their own fears. I have often said that litigation is negative energy. I enjoy mediating for the opportunity to bring people and businesses back into the positive energy of life, rather than the drain of a lawsuit.”

Jan Frankel Schau (www.schaumediation.com): “Be prepared to be flexible. You can’t map out your strategy until you know what or who is driving the conflict, what path will work best for an exchange of communication and until the necessary emotion and anger and disappointment is expressed–to somebody–even if indirectly to the other side of the dispute.”

Mike O’Callahan (www.mocadr.com): “My single best tip for a successful mediation is for counsel to budget and make time and properly prepare for a pre-mediation call with the mediator. The call is independent for each party involved in the litigation and lets them know you have read their brief and you can question specific areas without the posturing that some lawyers feel they must do in front of their clients. Too many times counsel submit their briefs less than 5 days before and throw something together at the last-minute or they send a 160 page brief the night before the mediation. Either way the brief is not very useful. An opportunity missed to educate the mediator by counsel. The mediator has to be proactive and make sure the parties know there is a deadline for the briefs to be submitted that will allow the mediator time to review before the pre-mediation call. The call can then be used to determine what, if any, settlement discussions have taken place and the potential range of exposure for the parties before they walk in the door for the mediation. Also, it allows the mediator to ask for supplemental information before the mediation and focus on common ground to form a global resolution at the mediation.”

Hon. Michael A. Latin (ret.) ([email protected]): “The mediation, though designed to bring the parties together, is still part of an adversarial process. Therefore, appear fully armed and loaded with all of your ammunition. Bring all of your critical reports, documents, deposition transcripts, and even a critical witness if necessary. Remember, that while you have been living with this case for a year or more, the mediator has very little concrete information when the mediation begins. Often, the two sides give completely opposite versions of the state of the evidence on the same issue. One side may be more truthful than the other or there may be information gaps that prevent one or more parties from making a fair evaluation of their case. If the mediator doesn’t have anything tangible in front of him or her to evaluate the relative strengths of the parties’ positions or representations, resolution becomes problematic – particularly where one side is either incorrect or misrepresenting facts. Give the mediator the tools to flush out those issues during the mediation by bringing everything you have in your possession that may refute misrepresented or contested facts. This includes documents and information that has not yet been turned over. Your opponent cannot evaluate those things about which he or she is unaware. I have had several cases that have settled because one side, which had information about which the opponent was unaware, decided to share the information at mediation. Appear with all your ammunition!”

Even though you tuned in to hear from experienced mediators, I’ll add my own three cents. First, I completely agree with the suggestions that counsel take advantage of the opportunity to have a meaningful pre-mediation call with the neutral. This can be HUGE. Second, if there is a way to create and communicate to the opposition the illusion that you are fully prepared to start trial tomorrow, this can create leverage. (Obviously this is not possible in a pre-suit mediation, and difficult if there’s no joint session.) Third, unless and until you really know and trust the mediator (or settlement conference judge/magistrate), I would resist requests to prematurely share your final, bottom line offer or demand. The neutral’s top priority is to reach a compromise, not to act in your client’s best interests (that’s your job); unless you know from experience you can trust his or her promise to keep your final number confidential, I wouldn’t risk sharing it.

My college roommate and Venture Capital Badass Mark Suster maintains a well-respected VC blog, Both Sides of The Table. He recently quoted some advice his wife, Tania (brilliant, beautiful, Wharton MBA, ex-consultant, serious media chops), gave to a friend who was starting his first real job. I have no idea what kind of job. As I read it, however, I couldn’t help thinking it was the kind of sound advice we all wish we’d received (and, more importantly, followed) when we were brand new lawyers. I can’t resist sharing it. With kind thanks to Tania and Mark, here’s what she said:

Secrets of the real world – stuff I learned the hard way

General Advice

1. Don’t expect constructive feedback without asking directly for it. Most businesses have formal programs in place to give you feedback. Most bosses are too busy to put in the real effort to help you. Many just ask you to fill out the forms for them. It becomes more administrative than constructive. If you ask for feedback in a pleasant, non-defensive way you will likely get it.
2. You won’t really have a mentor unless lightning strikes. But if you seek one out, most talented employees would gladly become your informal mentor. This can be your most valuable career management tool so use it. It can be a great way to build advocates that will move mountains for you in the future.
3. People won’t communicate expectations clearly (you must ask, clarify, ask again). Knowing the expectations of your senior employees (and peers) is invaluable to your success and asking people’s expectations is the clearest way to get them to think about it in the first place. The easiest way to beat expectations is for you and your boss to agree them two-ways and check on progress periodically.
4. Constructive criticism stings, but we all need it. So seek it out, push for real feedback and be open to hearing it whether you agree or not. If you’re defensive you’ll never get real criticism. It’s much easier for your boss to avoid the confrontation or putting the time into thinking through what you could do better.
5. Don’t overly rely on HR. Make your boss and her boss your primary allies. Your career is best navigated though line managers. HR should be able to manage the sensitive information you give them separate from your line managers but in my experience they do not so be careful. They are not your free psychoanalysts.
6. Show up early. You may be a morning person – you may not. But nothing gets noticed more than which employees constantly turn up late. Even if bosses say they don’t care – they do. Nothing tarnishes your reputation more quick than being THAT person. The one always slipping in late.
7. Be humble. Nobody cares where you went to school or how great of a student you were. Get over yourself. Don’t be arrogant. Don’t try to act like a managing partner from day 1. It’s OK to be junior. Nobody expects you to be managing the whole division. In fact, they’ll resent you if you try to act like you are.

Working with Your Boss

Sit down with your boss asap and tell her you want to do an amazing job. Ask her:

• What could I do to exceed your expectations? What have past employees done that made your life much easier? What tips would you pass along from the most successful employees who have had this job?
• What is the worst thing I could do in this job that you want me to avoid?
• Whom should I emulate? Who is great in this role that I should learn from?
• How can I best help you?

What to do in Your First Weeks

• Interview your peers, people in your role/team: set up a meeting and ask them same questions as above, plus:
• How can I best work with my boss, what does she love/hate?
• What mistakes did you make that I can avoid?

What is Your Job, Really?

• Your job is to make your boss’s job easier – to help your boss succeed.  Always have that in mind even if it’s not in your immediate job description
• NEVER bring your boss a problem without bringing him a few potential solutions. Be associated with problem solving, not problems, it creates a positive halo around you
• Say “yes” to work even when don’t want to. Everybody loves employees who take on projects with enthusiasm. The world is filled with people who sigh when assigned work.
• BUT if you do become overwhelmed with work it’s ok to say “I need your help prioritizing my tasks because I have too much on my plate.”  Make it a positive thing. The worst thing is to take on too much work and under-deliver.

Other Notes

• Schedule in your calendar and in your bosses calendar a few check in meetings and ask for feedback and make it a formal conversation. Prepare them in advance by providing a list of the things you’re working on developing and tell them you’d love feedback on how to improve at those things.  You might want to preface with ”I want to learn how I’m doing so I can improve, please give me constructive criticism!” Mostly you don’t want them to feel like these meetings are obligations, reasons for hours of preparations or ways for you to be defensive about your job.
• So take the feedback on and don’t get defensive. The more you get positive measurement on your work the more likely your boss will be aware of it at the annual review time. Make sure to thank you for his time (he is likely busier than you are, after all!)
• After you feel stable in your role and with your relationship with your boss – make sure to get to know your boss’s boss. Don’t let your boss love you but his boss not know who you are! This WILL come in handy in your career but you have to manage this cautiously.

It’s really a shame I did not meet my longtime mentor (with whom I still practice) before I started college or law school. It would have made life much easier for legions of professors who had to suffer through my unfocused and sometimes wordy writing.

Of course, because one of my majors was Literature-Writing, I was exposed pretty early to writers who really made an art of brevity, from Beckett to Hemingway to Didion to Amy Hempel (regardless what readers think of the literary gifts of these writers, they all practiced a less-is-more philosophy in their writing). And I recognized and appreciated their care and economy in constructing lean sentences that seemed to express a kind of nihilistic void through an absence of language.

But it was not until after I started practicing law and had a mentor who took the time to work with me one-on-one to . . . er . . . adjust my writing style to make it more palatable and persuasive, that I came to understand and appreciate the beauty of brevity. Among his teaching methods, the most powerful involved using a felt-tip pen to excise any (I mean any) word that was not absolutely essential to my letter or brief.

I’ve come to think that there are two reasons crisp, clear writing that gets quickly to the point should be encouraged for lawyers, and neither have anything to do with expressing any “kind of nihilistic void.” First, judges and clerks simply don’t have–and won’t take–extra time to sift through a Faulknerian* experiment to grasp our point. I’m told they often do not get past our introduction or opening paragraphs. If our opponent has better mastered the art of writing in a clear, tight style, it presents no mystery that his or her points, even if not better, will be more seriously considered because they were easier for the judge or clerk to read and grasp.

An equally important reason to strive for brevity is that saying more with less tends to force us to really focus our thinking. A first draft might contain lots of “throat-clearing,” or excess verbage as we struggle to figure out what we’re trying to say. Like the carving of a sculpture, however, revision into subsequent drafts should refine and clarify our point. We often see that what began as one exceptionally verbose argument is better expressed, and more persuasive, if broken into two or three separate points.

In Lawyering, James Freund makes this point about brevity:

“One of the grim realities of our profession is that lawyers tend to be terribly long-winded. . . . The most common enemy of conciseness is the lawyer’s reluctance to sort out the material from the insignificant. One hopes this doesn’t evidence his inability to do so; a lawyer who can’t tell the one from the other suffers from the most serious of shortcomings in his chosen profession. If he can distinguish significance but chooses not to do so — out of laziness, or a misconception of its importance, or bad judgment in his utilization of time — he is not beyond redemption; but the adverse effect on the reader is precisely the same as if he totally lacked the capacity.

I find conciseness in a written communication to be quite difficult to achieve at the outset. One doesn’t start out to write a concise piece. Until all the thoughts are in front of you, deciding what’s material and what isn’t can be a tricky task. Crispness is usually the product of a late draft in your rewriting process. As you re-read your draft memo, try to decide which of the thoughts are essential to the analysis, which are collateral to it (but still of some significance), and which are essentially irrelevant or immaterial. This last category should be deleted, as tending to interfere with the flow of thought. Matters that are collateral/relevant, however, should be retained without throwing the reader off the main track.” (50-52) (Emphasis in original.)

One thing I’ve observed about my own quest for brevity is that, after several years of practice, I have begun to find it easier to write more concisely from the very first draft. Anything serious still seems to require some revision (not to mention careful, careful, careful proofreading!), but because I approach the project with an expectation that it will ultimately be crisp and tight, my initial draft seems to reflect this plan.

*I happen to love Faulkner. But reading his best work, like the opening pages of Absalom, Absalom, can be really tough going. I doubt that even Faulkner would expect a judge to accompany him on that journey.

From Day One it is hammered into the head of every lawyer headed for trial: Ask Only Leading Questions. But is this truly gospel?

McElhaney, quoting Mauet and others, doesn’t think so. Not only does the repetition of “Isn’t it true that . . .” become tedious and tiring, it limits the examiner’s ability to expose the witness as a braggart or someone giving well-rehearsed testimony.

He also offers an excellent illustration of a circumstance in which use of non-leading questions can actually produce a more powerful result. He describes a lawyer trying a medical malpractice case involving a brain-damaged newborn. At deposition, the doctor was asked who had the duty in the particular hospital to resuscitate a child who wasn’t breathing: the doctor, nurse, anesthesiologist–who? The doctor responded: “We really don’t have any rules. It’s kind of a grab bag.” (McElhaney, Litigation, 183.)

McElhaney points out that the lawyer could have covered the while point during cross-examination at trial with one leading question:

“Q.  Doctor, you really don’t have any rules for who is in charge of infant resuscitation. It’s kind of a ‘grab bag,’ isn’t it?

A.  I guess so.”  (Id.)

Instead, he advocates a series of questions calculated to make the admission and use of the unfortunate term “grab bag” more powerful.

“Doctor, explain the hospital’s rules about who has the duty to resuscitate a newborn child who is not breathing.

(The doctor tries to sugarcoat it a little.)

A.  Well, of course, it’s a concern that everybody has, so there is not exactly a precise set of guidelines.

Q.  Pardon me, Doctor, but we’ve talked about this before?

A.  Yes.

Q.  And that’s not what you told me then, is it?

A.  No.

Q.  What did you tell me then?

A.  It’s kind of a grab bag.

Q.  A ‘grab bag’?

A.  Yes.” (Id.)

Something McElhaney does not highlight, but I think is hugely important, is that, because of the doctor’s prior deposition testimony, the examiner never lost control of the witness. Regardless how the doctor may have tried to squirm around and potentially offer a new hierarchy of responsibility for resuscitating a child (perhaps he had misspoken in his deposition and, on reflection, concluded that the duty falls to the anesthesiologist), the examiner had crisp prior deposition testimony available to keep the doctor in line.

“Ask only leading questions” is definitely one of the ten commandments of cross-examination, but it’s a rule that can be broken when the examination is handled carefully and where the resulting testimony is expected to be more powerful.

An important change to California Labor Code 2751 takes effect January 1, 2013. That’s next week!

The change requires California employers who pay their employees sales commissions (regardless whether commissions are all or just part of the worker’s compensation) to enter into a written employment agreement. The law previously only required an agreement for out-of-state employers with no permanent and fixed place of business in California. Note that simply setting forth compensation terms in an employee handbook or written commission policy will not satisfy this obligation.

Here’s the fine print:

• Again, the agreement must be in writing.
• It must explain how the commission will be computed and paid.
• It must explain how a commission is earned and any conditions required for the commission to be earned.
• The employee must be given a signed copy of the written agreement and employers must obtain a signed acknowledgement from the employee confirming receipt. This signed acknowledgement should be kept in the employee’s personnel file.
• Employers who wish to terminate or change the commission policy, should do so by a written amendment or new written agreement that supersedes the earlier agreement (again, with a signed acknowledgement of receipt).
• This agreement is not required for short-term productivity bonuses.
• This law does not apply to independent contractors.

Happy New Year employers!

Much earlier in my career as an “outhouse” lawyer (i.e., one who works at an outside law firm, servicing corporate clients), the prevalent view among my newbie colleagues was that being the member of an in-house corporate legal staff would be a dramatic “lifestyle” change. By this we meant that one chose the in-house route to trade the higher pay (if only slightly) and chance at partnership for reasonable working hours and no pressure to measure one’s life in billable hours or cultivate client relationships.

It only took about a year before I came to understand the absolute fallacy of this view. At least the reasonable working hours part. I’m sure there are a few of those cushy in-house jobs out there, but the in-house lawyers I’ve known and reported to work as hard, often harder, than I’ve ever worked. And while outside lawyers face pressures to bill hours and attract and keep clients, our in-house counterparts can face equal or greater, albeit different, pressures.

Depending on the industry and corporate culture, our in-house counterparts have responsibilities we don’t see but exist nonetheless. There’s pressure from management that often do not understand or appreciate the value lawyers bring to deals and cases. There’s also pressure to procure and supervise the best possible legal representation, while controlling continually rising legal costs. Finally, in-house legal staff members face the same pressure we all face to manage and balance a myriad of responsibilities within the time constraints of a (hopefully) normal workday.

So enlightened, I’ve come to see how the most valuable outside lawyers are often those who sympathize with these pressures and try to make life easier for the in-house clients to whom they report. Sure, there are “bet-the-company” and unique white-collar trial lawyers who are hired for their prized trial skills and fantastic record, or highly specialized tax or real estate investment trust experts who bring rare knowledge to the table. These will always be in demand. But, like it or not, most of the rest of us are replaceable commodities. I consider myself an excellent lawyer, but I practice in a city with thousands of excellent lawyers, many of whom have the same knowledge and skills I possess. So what sets me apart?

Well, I try to recognize the challenges my in-house counterparts face and take steps to make their lives easier. This is not always easy or even possible. Cases can spiral out of control. Lawsuits sometimes expose the frailties of a company or weaknesses of their policies–not to mention mistakes or other transgressions of management or individual employees. When this happens, my in-house counterpart becomes the dreaded messenger of bad news, unappreciated or worse.

One of the best ways I’ve found to make a client’s life easier is to take steps to improve our communications and information exchange. I do this by trying to shift my perspective, so that I attempt to view the situation and our communications less from my own point of view and more through my client’s eyes. This can be a transformative exercise, and it only takes small changes to make a big difference. Here are three examples of what I mean:

1. I try to improve the frequency of my reporting on the progress of a case, even when very little is going on. The importance of frequent client reporting of events becomes clear when I shift my perspective and consider the ominous void or “sound of silence” that occurs when months pass without any kind of update.  Remember most in-house lawyers report to someone up the food chain; they do not look so good if asked about the status of a case and they cannot provide anything beyond a stale update you provided several months back. Making my in-house counterpart look good to her superiors when they ask what’s going on with a particular case makes her life meaningfully easier.

2. When I do report on an event, I also try to anticipate questions my client will ask and tailor the report accordingly. I think: what questions would I have if I was on the receiving end of this update, and I try to answer those. I’ll readily admit that I rarely anticipate every question, but I try.

3. The narrative we provide on billing invoices is also really important. We may find it lamentable that the days of lawyers billing simply “for services rendered” are long gone, but the reality is that clients look hard, not only at the time and amount we bill for a task, but also how we describe what we did. I’ve always tried to imagine myself on the receiving end of the bill. Would the time and narrative make sense to me? Would it seem reasonable? One suggestion I got from a colleague a while back was that invoices should be written so they show the progression of the case, like a report. I’m not sure if this is realistic, but I do think it makes sense to think about billing descriptions from the perspective of my client and I try to do this as much as possible.

These may seem like minor changes, but that’s the point. If we change, even if only slightly, our perspective, and try to experience the situation and our communications through our client’s eyes, we might be able to make their lives easier. Is there a better holiday gift? Ok, chocolate maybe.

From the District Court:

1. Avoid making frivolous or blanket evidentiary objections in motions for, or oppositions to, summary judgment. This is one instance where the “kitchen sink” approach will simply piss the clerk off, since she will have to research and decide upon the merit of every single objection, regardless how pointless. Give her a break!

2.  Be flexible at oral argument. If the judge issues a tentative, use that information to tailor your oral argument. Try to address issues the court may have missed or evidence in the record that may have been overlooked but support your position.

3.  Read and comply meticulously with local rules and the judge’s standing order. Standing orders will be either posted on the judge’s Procedures and Schedules webpage or will be issued and posted to the docket once the case is assigned.

4.  Stand whenever you speak to the judge. Speak at the lectern, unless the court givs you leave to do otherwise. (And, of course, we know never to traverse the well, don’t we?!?)

5.  Avoid overly broad protective orders. Make sure an issue is ripe for a protective order (i.e., your client knows for sure it will disclose confidential information). Provide specific information to the court describing the documents and an explanation of the harm that will result if not protected.

From the Ninth Circuit:

Don’t worry–I’m not going to name names. Actually, I’ve been fortunate and personally had only limited personal experience with clients who should be considered “unworthy.” But I know they’re out there. Although inability (or lack of genuine intention) to pay fees can be one major characteristic of the unworthy client (pro bono representations excluded), it isn’t the only characteristic.

J. Foonberg, in his How to Start and Build A Law Practice (1976), put together a pretty decent list of the kind of clients that can be trouble. Here are a few he suggests you avoid:

1. A client hiring you as the third lawyer on any case.

2. Clients “who proclaim loudly that you can have all the money recovered–they’re only interested in the principle.”

3. Clients who want to use your telephone, assistant and office space to conduct their business.

4. Clients who ask for a loan of money against their case.

If you pass on these clients, you’re passing up on some business–but you might be avoiding some expensive headaches, as well. In fairness to all of the unworthy clients out there, I suggest there are an equal or even far greater number of unworthy lawyers. Perhaps I’ll explore this concept in another post.