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.

Let me start by saying that I know that not everyone who graduates from law school aspires to be a partner in a big law firm. Or a small law firm. Or any law firm. I’m not suggesting it should be everyone’s or anyone’s goal. Many who make it a goal, and achieve it, come to believe it is overrated. I strongly feel from what I hear and read that partnership has become far less important to many than it was when I graduated (1993), and I doubt it was as important to lawyers of my generation compared with earlier generations. I recognize, then, that this post may not be equally interesting to everyone.

Now that I’ve cleared my throat and caused most readers to change the channel, what I want to say is that, if you do aspire to partnership there are far worse words to live by than J. Daniel Hull’s self-described “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.”

I can guess what you’re thinking. Hull’s damn Rules are meant to inform the ways attorneys provide service to their clients, not how associates should treat partners. If we adhere strictly to labels, that is true. But I want to argue that being a junior lawyer who works for, takes direction (and compensation) from and attempts to please senior lawyers is very similar to the experience of any lawyer who works for, takes direction (and compensation) from and attempts to please their customers, i.e., clients. Even if one never aspires to be a partner, then, being a good associate can still be terrific training for how to be a good customer service-oriented lawyer. And, Hull’s rules are a damn good start.

Let’s look at them.

1.Represent only clients you like.

I previously said in another post that, at first blush, this rule seems to suggest we all have the luxury to cherry pick clients. Clearly, most of us don’t have this luxury. Similarly, associates rarely have complete control over who assigns them work. On the other hand, just as lawyers can work over the long-term to shape their practices away from clients they don’t like, talented associates can try to shape their position within a firm. While it might never be possible to completely avoid working for a complete asshole, it should be possible to position yourself to work more often with senior lawyers you respect and like. If there’s more than one complete asshole, then you probably don’t want to be a partner at that firm.

2.The client is the main event.

If you get to work and interact directly with a client, that client is the main event. If not, then the partner who assigned you the work is the main event. If you wouldn’t think of filing or giving a client a document that contains typos or is otherwise sloppy (you wouldn’t, would you?), don’t think you’re going to gain traction with any partner who receives a crappy, typo-ridden document. “Gaining traction” is fancy law firm speak for “having a future.” If nothing else, have your assistant proof read everything before you give it to anybody.

3.Make sure everyone in your firm knows the client is the main event.

4.Deliver legal work that changes the way clients think about lawyers.

Here I suggest you to strive to deliver work that changes the way many partners think about many associates. I witnessed first hand during my career the erosion of how many partners regard associates. I trace it to the point in time when a handful of very lucrative Silicon Valley law firms decided to give the historically high paying New York law firms a run for their money in terms of associate compensation. This seemed to coincide roughly with the point at which late Gen X and early Gen Y law students started graduating. The buzzwords I heard a lot around that time (and I wasn’t yet a partner) was some variation of “undeserved sense of entitlement.”

The good news for associates is that many partners are now so underwhelmed with the commitment of more recent law school graduates that it’s actually not that hard to stand out. In my crude, empirically unsound and untested estimation, a Gen Y associate who puts in the same effort as earlier generations of associates could be a rock star at some law firms. On the other hand, I recognize that many Gen Y lawyers have a different sense of priorities than earlier generations, which I suspect is why partnership is not the brass ring it once was.

5.Over-communicate:  bombard, copy and confirm.

Like most clients, most partners like to be kept informed. If you find yourself working with someone who has limited tolerance for minutiae (and they’re out there) be sensitive to that and adjust accordingly.

6.When you work, you are marketing.

This is true whenever you do anything professionally, whether it’s for a client or a partner.

7.Know the client.

Know the partner. Take an interest in her practice and her clients. Think: how can I make her job/life/career easier. Take ownership of cases, deals or assignments and try to think how you can contribute more to the big picture. Don’t be afraid to make suggestions, but be careful not to do things unilaterally that might run contrary to the lead lawyer’s strategy. When in doubt, ask.

8.Think like the client–help control costs.

Think like the partner who is attempting to think like the client. Part of this is understanding and appreciating where you fit in. Ideally, you bring value to the client since it theoretically costs less for you to spend your time doing a task. This should also have a three-fold benefit to the partner and the law firm. On the one hand, it should free up the partner to spend less time doing more routine tasks and more time thinking strategically and doing more sophisticated tasks requiring experience, training and judgment for which clients are willing to pay higher fees. It should also free up the partner to spend more time marketing and bringing in new business which helps the firm grow. Finally, if leveraged properly, associates are profitable. While partners should not shrink from the responsibility of training, and cutting associate time from the bill is often appropriate, the more the above runs like a well-oiled machine the better for everyone involved.

9.Be there for clients–24/7.

I was going to say, “That’s why the firm bought you that iPhone 5,” but that’s not really what I mean. Perhaps it’s better to say that many clients expect their most trusted advisors to be there when they’re needed, without regard to day of the week or hour of the day. Associates that make it clear they will do what they can to recognize and meet this expectation will tend to be viewed as more valuable than associates who do not. I will admit that, as an associate, I jealously guarded my time away from work. As I started developing my own clients, however, I came to realize that, in doing this, I was just putting off the inevitable, since clients really do expect their trusted advisors to be available 24/7. It’s just part of the job which, as we know, is not for everybody.

10.Be accurate, thorough and timely–but not perfect.

It’s okay to make mistakes. But own mistakes when you make them. Resist the temptation to conceal mistakes or shift blame to others. Clients see right through this and so do partners.

11.Treat each co-worker like he or she is your best client.

Being graded on citizenship doesn’t stop when you leave grade school. Whether it’s made explicit or not, one thing partners consider when making advancement decisions is how well you fit in. Whether the office has 3 or 130 people, the ability to work well with others is important. If you’re rude to other lawyers, disrespectful or downright mean to staff, it can hinder your advancement. Many firms, including my own, pride themselves on having “very few sharp elbows.” Regardless how talented you may be, if you have “sharp elbows,” or an outsized sense of your own importance, or you’re just a jerk, it can make it hard for you to gain traction.

12.Have fun.

If you’re not having fun as an associate, it’s unlikely the practice of law is going to become fun if/when you become a partner, and your responsibilities extend far beyond doing great work and billing lots of hours, to include marketing and management responsibilities. If you’re not having any fun, maybe it’s time to think about doing something else.

So, if partnership is what you’re after, try applying Dan Hull’s “annoying and infuriatingly correct” Rules  to the service you provide.

Living through trial. The only thing most of us think about is winning. (Unless, like me, you get that 11 pm craving for carne asada burritos con guacamole, then you think about that, too.) After the verdict, win or lose, the last thing everybody wants is to go back through it and take stock of what happened, what went well or went poor and how we can do better next time.

But there is real wisdom, once the dust truly settles, in going back over everything to ponder, “What did we learn from this?” For institutional clients of every size, trials are a huge investment of time, money and resources. It makes a lot of sense for them, ideally in conjunction with their counsel, to do a trial postmortem. This not only helps prevent future “situations” requiring litigation but, if cases do arise in the future, it enhances the chances of success. Astute lawyers recognize the value and opportunities of this process and collaborate with their clients to do a comprehensive postmortem, possibly for free! Even if the client shows no interest, much can still be gained if only the members of the trial team come together for a postmortem session.

A generous article on this topic, “Trial ‘After Action Reviews,'” appeared in the August, 2013 issue of For the Defense. The authors, Milwaukee lawyers Ric Gass and Michael B. Brennan, point out that “Army generals as far back as Caesar in his ‘Commentaries on the Gallic War’ have learned strategic and tactical lessons through after action reports.” (Id. at 29) The article is sweeping in its scope. Among the valuable points made by the authors was the following:

“Crucial to the success of an after action review is, to use the military jargon, ‘leaving your rank at the door.’ If you are the lead counsel, you need to be willing to listen and to learn from the observations of others on your team. You were probably too busy while doing that crucial cross-examination to take in everything else in the courtroom, such as reactions of jurors, or of the judge or opposing counsel. But your co-counsel, your paralegal, or your jury consultant did watch for those reactions, and you need to hear what they saw.” (Id.)

The authors suggest some topics for review during the postmortem, including:

• Jury Research: “Did the jury research accurately predict the attitudes and reactions of the jurors and the ultimate result on liability and damages?” (Id.)
• Opening: “What worked well for us? What worked well for opposing counsel?” (Id.)
• Direct Examinations: “Did a certain witness’s testimony connect with the jury, and if so, why?” (Id.)
• Cross-Examinations: “Was the tone of the questions too harsh or too lenient? . . . How many of the admissions made on cross-examination made it into the closing argument?” (Id. at 30.)
• Expert Witnesses: “Would we use this expert again, and more importantly, why?” (Id.)
• Closings: “What worked well for each party, and why?” (Id.)

Finally, the authors point out that:

“Being a trial lawyer is a lifelong learning experience. . . . If you have had any kind of trial, but especially a major trial, you need to appreciate it for all the experience it brings and to wring every last piece of learning that you can from the experience. . . . [Y]ou need to figure out how to carry that understanding and the techniques that went right to your next trial.” (Id.)

I know first-hand how much clients appreciate it if, after the trial, you offer to travel to their offices and help your in-house counterpart prepare and present a postmortem, with the specific goal of avoiding similar situations in the future. They really, really appreciate it when you don’t charge them for the experience. If your trial counsel won’t do this for you, ask them why not. Then remember to call me.

I am a big fan of Dan Hull‘s writing at his popular What About Paris/What About Clients blog. He has intellect, wit and a literary bent. One post which often seems to show up again and again in the legal blogosphere is his self-described “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.” If you’re not familiar with the 12 Rules, and you work in virtually any service industry, they’re worth thinking about.

I’ve wondered, however, why Dan refers to his own Rules as “annoying” and “infuriating.” Though I suspect he’s being hyperbolic, I think his description is unfair. I also think that any lawyer who finds the Rules annoying or infuriating should maybe look into another line of work. Here’s why I think the Rules are not so very annoying:

1.Represent only clients you like.

Ah, what a luxury, to be able to cherry pick clients and jettison those you don’t personally like. The Rule would be annoying, infuriating even, if you took the short, as opposed to the long view. If you’re a first year at a firm and servicing the firm’s clients, you definitely don’t have this luxury. However, as your career matures, you can hopefully begin to shape your practice and client development efforts so that you can increasingly avoid clients you don’t like. And you should. The remaining Rules are much easier to follow if you’re doing work for people or companies you like and respect.

2.The client is the main event.

If you’ve been a client, a patient or customer and been treated as a second class citizen–and who hasn’t–this rings true. The minute you lose sight of this Rule you’ve begun walking the road toward extinction, at least as a lawyer. Unless you provide a unique set of skills or knowledge and there is no one else in your region to compete with, you must follow this commandment, because at least one of your competitors will.

3.Make sure everyone in your firm knows the client is the main event.

Why would this be annoying? After all, these people are on your payroll. A good way to gauge whether others in your firm appreciate the importance of the client is by what they include in internal email communications. If, for example, they let comments slip into communications intended for distribution only within the law firm that suggest they do not completely respect the client, this should set off alarm bells and a chat should follow. First, we’ve all heard examples of emails in which the sender intended only to “reply” or “forward” the message, but instead hit “reply to all,” where “all” included someone–like a client–who didn’t appreciate a comment contained in the message. It’s a matter of time before this happens to everyone. Second, we often interact with our clients through our staff or associates. They need to treasure your clients (almost) as much as you do.

4.Deliver legal work that changes the way clients think about lawyers.

This Rule really doesn’t ask you to do anything beyond what many lawyers already do: aspire to practice law effectively, efficiently and, in the case of courtroom lawyers, win! The good news is that, with so many hacks running around out there, if you hold yourself to higher professional standards you’re already applying this Rule and clients will appreciate it. The bad news is that, with so many hacks out there, doing what hacks do, for so long, it’s going to take a lot to change the way clients think about lawyers. But do your part.

5.Over-communicate:  bombard, copy and confirm.

Put yourself in your client’s shoes. How much information would you want? It has been said that, as lawyers, we “sell paper.” That’s probably an oversimplification, but there is some truth to the notion that a client cannot appreciate what he or she never sees. A good part of what we charge for is the preparation of work product–motions, pleadings, correspondence, memoranda–why not let clients see what they’re paying for?

6.When you work, you are marketing.

Since we comply with Rule 5, supra, our clients can see and evaluate our work product. If the quality is high, it is both justification for the fees we charge and an advertisement why the client should hire us, and not a competitor, next time. If the quality is not high, it’s a perfect advertisement for our competitors. If you take pride in your work product, why would this be annoying?

7.Know the client.

In my practice, which focuses on defending employers in suits and claims arising out of the employment relationship, this Rule is elementary. It is why, as I’ve said, I take every opportunity to hold meetings at my clients’ offices or facilities. As Dan has said, “The client . . . actually wants you to know him, her or it. Take time out to learn the stock price, industry, day-to-day culture, players and overall goals of your client. Visit their offices and plants. Do it free of charge.”

8.Think like the client–help control costs.

I am constantly amazed at how costs mount when a case is litigated. I am not referring necessarily to the fees charged by the attorneys themselves, because this is a topic about which I have only the slightest understanding. Beyond a hazy idea of what others charge who do exactly what I do in my region, I don’t know what goes into this equation. I’m told there are now lawyers who bill $1,200 per hour. All I can say is, really?

Beyond attorney fees, however, there is a lot we can do to control costs when a case is in litigation, including deposition costs, investigation costs, photocopy costs. Sometimes, it takes some creativity, but our interests here should be aligned with our client and we should scrutinize these hard costs just as we would if we were paying invoices out of our own pockets.

9.Be there for clients–24/7.

This is what that iPhone is for (not just to play Angry Birds and take “selfies”). Oh, what it must have been like to practice law before fax machines, computers or mobile phones. But we don’t. We’re in a different era. We should not only survive in this new environment, but thrive.

10.Be accurate, thorough and timely–but not perfect.

Again, treat your client as you expect to be treated as a client, patient or customer. But feel free to occasionally cut yourself some slack, too.

11.Treat each co-worker like he or she is your best client.

This doesn’t sound at first like a rule geared toward client service, but here’s what Dan has said about Rule 11:

“Clients love to form partnerships with law, accounting, consulting firms and service providers of all manner with genuinely functional workplaces.  They love work communities where the professionals are demanding but love what they do and solve problems together as a team of happy, focused people who stretch–but respect–one another.  It’s fun for them to watch, and fun to watch them watch you.  Clients want to be part of that.  Watching the “well-oiled” team is an image which sticks in the client mind.”

A well-oiled team is not only an image that sticks in the client’s mind, it is also a really good way to make the practice of law fun instead of pure drudgery.

12.Have fun.

Well, duh!

Could licensed lawyers ever go the way of the Dodo and S & H Green Stamps?

I came across this recent article in the Wall Street Journal about the growing interest by non-traditional law school students in signing up for selected law school courses and seeking non-JD graduate-level law degrees (i.e., a Masters) in discreet areas of the law, such as health care, etc. The article got me wondering whether anything could ever bring about a long-term shift away from a world in which graduate students incur huge debt to obtain JD degrees, sit for an arduous 18 hour bar examination, get their license, only to learn that: (1) there are too few available jobs for newly-minted lawyers; (2) many lawyers will only use a fraction of the information we learned during law school; and (3) although we are “fiduciaries” only about 31-38% of the public trusts their lawyers–anything could cause a glacial shift away from this world into one in which tasks and responsibilities traditionally handled by licensed lawyers are done instead by non-lawyers who may (or may not) have specialized training to enable them to assume that responsibility or perform that task.

While I’m just musing, some wonk has surely crunched the numbers and stands ready with a handy statistic about how much this change has already occurred. After all, NOLO has been around since the 1970s. LegalZoom and similar providers have (apparently successfully) developed products and services specifically designed to omit lawyers from supposedly “simple” transactions such as corporate formation, or the drafting of a trust or will. Sophisticated organizations, including realtor associations, already provide for arbitrations with non-lawyer industry experts serving as the neutrals to resolve a dispute. I also know of potentially expensive and protracted divorce disputes that were resolved with reduced time, expense and pain through the involvement of psychologist-lawyer mediation teams.

Let me be clear about what I am not talking about. Professors, bloggers and writers have discussed ad nauseam the disruptive and earth-shaking changes in the business of law (along with the “business” of teaching lawyers their trade) which have largely occurred over the past half-decade. I neither pretend nor want to contribute to this discussion. This is not about The New Normal, whatever you may think of that label. I don’t care whether or how NOLO or LegalZoom might impact the annual Profits Per Partner at Skadden (it won’t) or the profits of a sole practitioner in Visalia, California (it might), or will cause some random law school to shut its doors.

I’m talking instead about the future of our profession. The future of the idea that we are a civilization that needs expensive intermediaries, people specially trained to do our thinking, drafting and arguing for us. That we are a civilization in which two people who reach an agreement need two (or more) comparatively expensive people to reduce it to writing. Or that we lack the ability to argue effectively on our own behalf, without a mouthpiece, about anything more serious than a small debt or a traffic ticket. Are we still going to be that civilization in the future? Or could we ever evolve into a civilization in which lawyers are those jokers they talk about in history books? “I once saw one!”

What, if anything, does it say about the interest, ability and willingness of the public to commit to become more do-it-ourself with regard to tasks and responsibilities formerly handled exclusively by licensed lawyers? By the same token, what could it say about the interest and willingness of people who once thought they wanted to be a licensed lawyer to elect instead to focus their education on a sub or sub-sub-speciality of law (saving $100,000 + in tuition in the process)?

I’m not suggesting any of this could happen soon. Our systems are not ready for it. For example, while citizens are presently free to represent themselves in civil and criminal courts, I can’t even begin to suggest that it’s a good idea for anybody. I’ve been practicing in courts for 20 years, but it would never (ever) occur to me to represent myself in any criminal matter beyond a speeding ticket (and even then). But, like all things, this could change. If criminal and civil courts ever became pro se-friendly . . . (Don’t laugh. Stop it.)

I’m also not taking the position that a civilization without a legal profession would be better or worse than ours. Just different.

One of the first things a business development coach will tell you is to identify people whom you believe can help you in your quest to build a practice. If you’re like me, this might cause you to look around and compile a list of people you think might hire you directly. If you’re an employment lawyer, for example, you might try to identify business owners and human resources directors you know who could have an immediate need for your services and finding a way to market to them.

This is probably not the worst approach. After all, you’re doing something in a calculated effort to build business, which is certainly better than nothing, right?

But better than nothing is not necessarily the best. I’ve lately come to think there is indeed an even better way. Based largely on my own experiences, as well as what I’ve seen with friends and colleagues who truly qualify as “rainmakers,” I believe now that the highest return on effort (ROE), at least when you’re first building your practice, is to leverage those who you are close to and who probably care about you most. Sure the two approaches might overlap; if a close relative happens also to own a business that, as all businesses do, needs employment counsel, then there’s no difference. But what I’m describing here does not involve asking a friend or relative to send you work directly, but allowing that person to act as a conduit to boost your chances of getting business through an introduction or referral.

Let me right away clarify two things. First, what you’re after isn’t a free lunch. You’re not looking for someone to hand you an envelope full of cash; you’re seeking the opportunity to perform quality legal services for a person or business who genuinely needs that legal service. Second, I do not mean leverage in the sense of use. Do not use those closest to you to get ahead. You will feel like a user and your friends and family will feel used. Don’t be a user.

On the other hand, if your relationship and trust are such that you would not hesitate to do something–take a chance, even–to give your friend or relative a boost, then why not give them the same opportunity? I would argue (based on experience I’ve had acting as a conduit to build my friends’ businesses) that the friend or relative who goes out on a limb to help grow his/her friend’s business is the one getting the biggest emotional reward. Have you ever enjoyed giving gifts more than receiving them? Plus, the one getting the business opportunity still has to do the work, while the one who did nothing more than make an introduction or referral gets to sit back and feel good.

What I’m talking about involves a two-step process. First, it requires letting that person close to you know that she can help you and that you’d appreciate that help. This is necessary because it does not immediately occur to everyone that they can help you or that the help is wanted. Some might even hesitate to make an introduction or referral–particularly if they are not familiar with the practice of law–because they are worried it will be viewed as meddling in your business.

The second step requires explanation. You must help those around you understand exactly what you do and who your clients typically are. An easy way to do this is to explain a recent case you handled. If you were successful on behalf of your client (hopefully you were in this particular story), explain how good it made you feel to help that person or business through a tough situation. You want to sell yourself without sounding like your selling yourself. The point is to make that person who knows you, who trusts you, and who would probably like to do whatever he/she can to make your life better understand both that you would appreciate their help and how they can help.

This can be a lot easier if you’re in a position to assist the close friend or relative toward reaching his or her goals first. I’m a big believer in “paying forward,” looking for opportunities to do a good turn for another without any expectation of payback. I know now, in a way I never understood before, that there really is karma when it comes to relationships and good deeds in the business world. Unless they are direct competitors, people generally want to feel like they’ve played an important role in a close friend or relative’s success.

It’s amazing how I rushed into law school with no real idea what I would be doing every day of my working life. I had an inkling I would be on the litigation side of things (though I’m not even sure I knew what the word “litigation” meant). Like anyone whose imagination was nourished on a steady diet of television, I thought being a lawyer meant my days would be spent emasculating evil, dishonest witnesses in a packed, captivated courtroom. That is, when I wasn’t driving my Porsche . . . or playing golf . . . or having a power lunch at the Club . . . or whatever.

Imagine my surprise when I graduated, passed the bar and reality set in! In truth, I figured out long before graduation that most days I would be the one getting emasculated, chained to a desk, eating my power lunch at the downtown YMCA. (Don’t laugh. . . the YMCA is a Club, isn’t it?)

What’s interesting, though, is not that those golden trial-lawyer-as-cross-exam-Ninja moments are so few and far between, but rather how varied my job description can actually be from day-to-day. While I do spend the majority of my working hours litigating (i.e., complaining, pleading, advising, calendaring, moving, appearing, arguing, deposing, drafting, researching, responding, conferencing, serving, trying, introducing, direct examining, cross-examining, re-direct examining, re-cross examining, filing, noticing, negotiating, appealing, taxing, counseling, averring, answering, BILLING, reviewing, revising, disclosing, amending, second-amending, designating, counter-designating, etc.), it is surprising how much of my working day I actually spend doing none of these things.

What else do I do? It depends on the client. But in some ways I’ve come to think of it as a service as important (if less lucrative) as any of the -ing activities I listed above: I act as a Resource to my clients. More specifically, as a lawyer I gain unparalleled backstage access into my client’s “kitchen” (not just restaurant clients, either). And it turns out that what they often need is not a hired gun to fight legal battles, but rather an objective sounding board or a referral source. This part of the job is particularly rewarding with new or emerging companies because I’m bringing value by my involvement that a “hired gun” litigator just can’t bring. The more intimately I get to know a client’s business, the more interesting all aspects of my job become.

I take great care when I refer clients or contacts to other professionals. Every referral reflects ultimately on me, and I feel I have a stake in the outcome. So, while I might explore and involve myself in a variety of networks for the specific purpose of making contacts and business referral sources, I take pride that any decision I make to connect a client or contact with a professional is informed by the kind of cold, objective judgment I would use in selecting a doctor to treat me or my family.

When we take our role as a resource to our clients as seriously as we take the role of practicing lawyer we create the possibility of going past a mere attorney-client relationship. We partner. We jointly venture. We approach the most coveted role any lawyer can ever hope for: the Trusted Advisor.

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.”

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.

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.

Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ’em as you see ’em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.

Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough.  It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case.  What it’s going to cost.  How we’re virtually guaranteed a great outcome.

These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case.  I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result.  I’ll admit such honesty has probably cost me business.

It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor.  At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”

So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost?  Here are just a few:

1.  “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.

2.  “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.

3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.

In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment.  That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.