Minimum Wage Hike and Sick Leave Enhancements in Los Angeles & San Diego

The cities of Los Angeles and San Diego approved ordinances that will increase the minimum wage and mandatory Paid Sick Leave starting this month.

Los Angeles

Los Angeles Mayor Eric Garcetti signed an ordinance that increases the minimum wage of employees who work in the City of Los Angeles for at least two hours in a particular week. Employers with 26 or more employees will pay $10.50 per hour effective July 1, 2016. Employers with fewer than 26 employees will continue to pay the state minimum wage of $10.00 until July 1, 2017, when their applicable minimum wage will climb to $10.50.

Los Angeles employers must also provide Paid Sick Leave up to 48 hours per year, which can be provided in a “front load” method, or an accrual method, accruing 1 hour of PSL for every 30 hours worked. This is twice the annual PSL required under California state law. Additionally, Los Angeles employers must allow employees to carry over accrued, but unused, sick leave up to a limit of 72 hours. Unlike the statewide PSL law, the Los Angeles ordinance expressly allows employers to require reasonable documentation of an absence from work for which PSL will be used.

There are stiff fines for noncompliance, including a $500 fine for failing to post the required notice.

San Diego

On June 7th, voters in San Diego voted to increase the city’s minimum wage to $10.50 immediately upon certification of the election results by the San Diego City Clerk, which could occur anytime. The minimum wage will increase to $11.50 per hour effective January 1, 2017. Further increases, keyed to San Diego’s Consumer Price Index, will occur beginning Jan. 1, 2019.

The ordinance also requires employers to provide employees with one hour of Paid Sick Leave for every 30 hours worked within the city limits. While employers may limit an employee’s use of PSL to 40 hours per year, they may not cap sick leave accrual.

As with Los Angeles, there are stiff penalties for noncompliance. Employers who fail to comply may face a civil penalty of up to $1,000. Failure to comply with the notice requirement face a penalty of $100 per employee, up to $2,000.

What you should do: Employers with any employees in the cities of Los Angeles or San Diego should immediately ensure their pay practices, sick leave practices and posted notices comply with the new ordinances. Your employment law counsel can help.

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Four Critical New Laws For California Employers in 2016

Each new year brings challenges for employers and their Human Resources management, as a slew of new laws take effect, creating new traps for the unwary. 2016 is no exception. Here is a list of four new laws (or amendments) that can impact virtually every California employer.

The New Minimum Wage is $10.00

At first, this doesn’t seem like real news, as almost everyone has known the California minimum wage has been climbing since 2014. The information important to many employers, however, is the role the enhanced minimum wage plays in classification of salaried exempt vs. non-exempt employees.

Remember that an exempt employee in California must be paid a salary that is no less than two times the state minimum wage for full-time employment. Accordingly, as the state minimum wage increases from $9.00 to $10.00 per hour, the minimum annual salary for an exempt employee increases from $37,440 to $41,600. What you should do: Review compensation for all salaried exempt employees to ensure it equates to at least $41,600 annually.

Changes to Piece-Rate Compensation Requirements

Are some or all of your employees paid according to a piece-rate method? A business school definition of piece-rate compensation is: A wage determination system in which the employee is paid for each unit of production at a fixed rate. It is common in the automotive repair and garment industries, among others.

Assembly Bill 1513 added section 226.2 to the California Labor Code. It requires employers to pay piece-rate employees a separate hourly wage for “nonproductive” time, as well as “rest and recovery” periods. These hours and pay must be separately itemized on employees’ paystubs.

An additional challenge created by the new law relates to determination of the correct rate of pay. For “rest and recovery” breaks, employees must be paid the greater of (1) the minimum wage, or (2) the employee’s average hourly wage for all time worked (exclusive of break time) during the work week. For “nonproductive” time, the employee must receive at least minimum wage. What you should do: If you have employees paid on a piece-rate basis, make sure you understand and comply with the above. If not, contact your employment lawyer to get in compliance.

California Fair Pay Act

Senate Bill 358, amends California Labor Code Section 1197.5, which prohibits an employer from paying employees of one sex less than employees of the opposite sex for “substantially similar work.” Prior to the amendment, an employee seeking to prove unequal pay had to demonstrate that he or she was not being paid at the same rate as someone of the opposite sex at the same establishment for “equal work.” As amended, an employee need only show he or she is not being paid at the same rate for “substantially similar work” as measured by a composite of skill, effort and responsibility performed under similar working conditions.

Additionally, the amended law makes it unlawful for employers to prohibit employees from disclosing their wages to others, discussing their wages or inquiring about the wages of another employee. It also creates a new private cause of action whereby an employee may bring suit in court seeking reinstatement and reimbursement for discrimination or retaliation. What you should do: Audit your compensation structure to ensure both genders are paid equally for substantially similar work. Where changes are required, you may only increase the underpaid employee. Involve your employment lawyer if you need clarification or help.

Requesting Reasonable Accommodations is a Protected Activity

Assembly Bill 987 amends the California Fair Employment and Housing Act (FEHA) to expand the protections for employees who request a reasonable accommodation for disabilities or religious beliefs, regardless whether the request is granted. This means that, once an employee has requested a reasonable accommodation for a disability or religious belief, the employer may not take an adverse employment action (i.e., discipline, reduction in hours or pay, termination) in retaliation for the accommodation request. What you should do: Be sensitive to an employee’s request for accommodation, even if s/he does not use the term “reasonable accommodation.” If an employee tells you (or you perceive) s/he is disabled or has a particular religious belief/preference that requires accommodation, take the situation seriously. It may be a good idea to consult with your employment counsel.

Conclusion

Employers should remain mindful of these changes as we embark upon a satisfying and, hopefully, productive new year!

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Do The Facts Or The Law Still Matter In Mediation?

[This originally appeared in the Los Angeles Daily Journal.]

I was recently vetting some potential mediators with a colleague whose opinion I generally respect. In response to one of his proposals, I said, “yeah, but I’ve heard he doesn’t really know employment law.” My colleague responded, and I’m quoting, “I’ve become increasingly jaded that mediators believe the law and facts are impediments to the process.” This struck me as an interesting remark and I’ve continued to ponder it.

There is good reason for lawyers in the defense bar to be at least occasionally jaded about ADR methodologies. I’ve blogged a fair amount about the frustration we feel in knowing that many neutrals feel no compunction about bypassing or loosely enforcing evidence rules when conducting a binding arbitration. In my view, this undermines predictability and erodes the process. On the other hand, at least in the employment context, it is generally the defense that seeks to compel arbitration.

What about mediation? Are the law and facts of a case a waste of time–not only irrelevant, but actually impediments to the mediation process? There’s no point in fence sitting, so I’m going to commit to the ostensibly untenable view that this is both true, and false.

Yes, it’s true. All those times I diligently pursued discovery, and groomed my case to get it in front of a mediator; all that effort I spent meticulously crafting a brief, with notated exhibits; all that time I spent explaining, trying hard to educate the neutral why we had every right to whatever it was we were looking for–all that time and energy was wasted. Utterly.

This is because, from the mediator’s point of view, the deeper my client and I are entrenched in our position, believing our stance is firmly rooted in favorable law and good facts, the harder and longer she will need to work to get us to contribute, to give, to help her bridge the wide gulf that presently divides the parties.

Sure, she read my brief. She was paid to read it. And she has to know what the dispute is about. She might even be slightly impressed with my evidence gathering and presentation of the law. But beyond that, her focus needs to be much more on the dynamics of the parties. What’s at stake? Is the lawsuit ostensibly about money, but really about jealousy or feeling unappreciated? She knows the quicker she penetrates to the heart of the dispute the better her chances of finding a solution. The law and the facts–those that support a claim or defense–might really be impediments if they’re so good for one side that there’s little fear or risk.

I’m speaking here only of the very best mediators. I’m not talking about carrier pigeons, who simply shuttle demands and offers back and forth until the parties–basically on their own–get close enough that one caves simply to avoid seeing the neutral any more. Neither am I referring to mediators who use the raised-voice-cram-down method, essentially trying to procure settlement through intimidation. Interestingly, there is a place for both styles of mediators; they actually can get some cases resolved, but only certain kinds of cases, and the process can be torturous and messy.

The neutrals truly worth their fees, though, go well beyond shuttling demands and fist pounding. They take the time to get the psychic lay of the land. They determine which of the many impediments to settlement will be the biggest challenge and concentrate their energies there. In many instances, at least in the psychology surrounding what it will take to satisfy, scare or discourage the plaintiff sufficiently to reach a settlement, the admissible facts or applicable law may play only a minor role.

* * *

No, it’s false. I promised an inconsistent, untenable view and I will deliver. From the perspective of any civil defendant, the facts and law cannot be an impediment to settlement. There is nothing more important. Sure, the venue, judge and opposing counsel can play a role in the outcome of a lawsuit, but we rarely, if ever, highlight these inputs in a mediation brief or presentation. They are unspoken intangibles.

When a defendant or its lawyers permit the law and the (likely admissible) facts to take a back seat in the mediation process, it is regrettable. If it happens, the defendant trades its status as an agent, capable of acting, evaluating and defending its actions as appropriate or lawful, for the identity of a faceless, soulless “deep pocket,” nothing more.

It is routine, in cases in which the defendant has both a solid legal defense and good facts, for the mediator to harp away on the exorbitant cost of defending the case through trial and the risk, however small, of an adverse verdict. Of course it is–where else is she going to apply pressure to persuade a confident defendant to fork over what it will take to reach a settlement?

I don’t begrudge any defendant the need to think long and hard about defense costs when engaging in settlement negotiations, even if a case seemed otherwise completely airtight. But I believe a defense lawyer’s role in mediation requires him to continuously redirect the discussion back to the favorable law and facts when the neutral attempts to discount these to bring the parties closer (i.e., get my client to pay more). It is crucial to push back against this tendency to marginalize law and facts. In most instances, they are our only leverage.

This is not to say that, backstage, in confidential communications with our clients, we aren’t completely open and honest about risks and costs, regardless how solid its defense may be. In many instances, a defendant’s blind adherence to some good law and facts would be a recipe for disaster. After all, nobody knows what a jury will think and do. But these words are exchanged in private. At the mediation poker table, the defense lawyer must resist a neutral’s efforts to treat the facts and the law as impediments.

Except, of course, when the facts and the law aren’t so favorable.

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Why Would Anyone Leave BigLaw ?

When I was a law student, I understood BigLaw to be the holy grail of law practice in America. A complete stranger to the profession, all I knew was that getting an interview and a chance at a prestigious, high-paying summer clerkship at a well-respected powerhouse, say Skadden, or O’Melveny, was what (it seemed like) everyone wanted.

Sure there were rumors that young associates sold their souls and worked 90 hour weeks, but that came with the territory, didn’t it? Weren’t we all going to work hard?

Well, a BigLaw interview and offer eluded me in my early years, but I was still lucky enough to get a good job at a boutique litigation firm, and instead of making $80,000 my first year out, I made about $57,000. No big deal. But I continued to remain irrationally impressed with the big firms. And why not? They paid better–especially in the late 1990s, when the Silicon Valley challenged New York’s historical leadership in the race to throw huge sums of money at newly-minted lawyers who could barely sign their own name. Big Firms got the bigger, more interesting work. Sitting in court, it even seemed like judges accorded Big Firm litigators an extra measure of respect.

Naturally, then, I felt a combination of pride and “I’m not worthy” glee when, in my 10th year of practice, owing to a complicated series of mergers and acquisitions, I found myself elevated to non-equity partnership in an AmLaw 150 law firm. That was just over 10 years ago. As anyone who reads this blog already knows, I just recently said goodbye to BigLaw to launch my own solo law practice.

In the weeks since I announced this plan, I’ve been repeatedly asked why I’m leaving BigLaw to go solo. I think this is a reasonable topic to address. First, I’ve been disabused of the notion that the brightest minds belong in large law firms. While I felt nothing but pride in the intelligence and skills of my colleagues at Dykema, I’ve come to realize that there are amazing lawyers everywhere, not just in big firms. In house lawyers, government lawyers, sole practitioners, small partnerships, public interest lawyers–there’s no shortage of legal talent throughout our profession. 

But, more important to my professional goals, I came to realize that a large law firm was not the proper platform from which to pursue the kinds of clients that increasingly interested me: small businesses. BigLaw firms are indispensable when global titans want to sue one another over a patent violation, or when a company like Facebook goes public. I recognize these are extreme examples and there are plenty of smaller lawsuits and transactions in which it is handy to have 8-10 (or more) high quality lawyers available at the drop of a hat.

But I do think that, in most instances, small businesses have no business hiring a BigLaw firm, even a second or third tier BigLaw firm with rates that are less than stratospheric. This is because, at least in my experience, the goals and priorities of small businesses are fundamentally at odds with the BigLaw mentality. Sure, a small business can engage a mammoth firm to handle an isolated business or employment dispute. In all likelihood, the business will get stellar representation. But, whether the client realizes it or not, both the client and the matter are the firm’s lowest priority–even if the BigLaw partner handling the matter feels differently. Unless the isolated small business dispute is a “one off” situation for the BigLaw partner, he or she is trying to build a book of business from the wrong platform. Simple fact.

There were other aspects of BigLaw practice–or any firm practice–which I came to feel were incompatible with my personal and professional goals. I alluded in an earlier post to the “squeeze” lawyers experience when trying to balance a law firm’s productivity demands with the time commitment necessary to building a book of business. Unfortunately, there are no easy solutions to this, since each member of the firm must generate a certain amount of revenue if the firm is going to be profitable. Until a lawyer is controlling and leveraging substantial business, he can only be profitable by billing hours (at least in the BigLaw model).

Another aspect is the substantial overhead necessitated by offices in many states (or countries) along with a substantial infrastructure available to service the needs of several hundred lawyers. Anyone who has done the math knows that we work a substantial part of every year supporting our salary and the firm’s overhead before we generate a dime of profit. I am pursuing a solo practice because (1) I can control my own firm’s overhead, which (2) makes it possible to build a book of business without feeling the aforementioned productivity time-business development time “squeeze.” Or at least the squeeze seems more tolerable.

Make no mistake: I value the experience I gained as part of a BigLaw firm. If I had not had the experience, I would always have wondered what I’d missed. But, in the end, every lawyer must find the platform from which he can best build a profitable book of business. I’m betting my immediate future on a solo practice platform.

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A Quest To Consistently Over-Deliver

One of the very best parts about starting a new business is the ability to imagine exactly what you want the business to look like, and then make that happen. I recognize this can be both a gift and a curse. After all, if you don’t have a very clear idea of exactly what you want to do and how you want to do it, you don’t have the luxury of letting someone else decide. Fortunately, I don’t have this problem.

An interesting new company that caught my attention over the last several months, Harry’s makes and sells men’s shaving essentials. For a long time, it seemed like the market for these products was divided between über-expensive, hand-crafted products on the one hand, and a plethora of same-same boring, disposable, but affordable, shaving products on the other. Then Harry’s came along and disrupted this market, in much the same way its founders, Andy Katz-Mayfield and Jeff Raider, brought a fresh approach to shopping for stylish but affordable prescription eyewear with Warby Parker.

Why am I talking about shaving products and eyeglasses? Because in both instances, the company managed to do exactly what I want my law practice to do: consistently over-deliver. Harry’s razors are not expensive. I think they range from $10-20 for the well-made handles, with the expectation that male customers will regularly re-order the company’s high quality replacement blades and shave cream (they recently purchased the German factory that manufactures the blades). So, for slightly more than the price of the latest iteration of a plastic Gillette Mach-Facescrape XXVII or whatever, you get a sturdy shaving implement that feels like . . . quality.

Apply this same combination of craftsmanship, attention to detail and affordability to prescription eyeglasses and you’ve got the Warby Parker model.

My goal is to be neither the cheapest nor the most expensive employment lawyer in Southern California. Just as you can buy cheap disposable razors and drugstore eyeglasses, there are plenty of lawyers so desperate for work they will offer their services at unsustainably low rates. There are also lawyers looking for ways to gouge their clients. Me? I simply want to bring value. I want to make my clients feel, not just that they got what they paid for, but that they got more than they paid for. That I over-delivered.

J. Dan Hull, justifiably world famous for his “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service,” shuns the notion of simply over-delivering. He says our clients already have such low expectations of lawyers that simply exceeding them won’t do. Instead, Dan admonishes us to “Deliver legal work that changes the way clients think about lawyers.” He says:

“Rather than “under-promise/over-deliver”, which is essentially job specific, why not change the way people think of lawyers generally and what they can expect from them generally? Get good clients–those clients you like and want–to keep coming back to you by communicating in all aspects of your work that you care deeply about your lawyering for them, you want to serve their interests on an ongoing basis and that it’s a privilege to be their lawyer. Show them you fit no lawyer mold.”

I don’t know. It seems like we’re really saying the same thing. You can only change the way clients think about lawyers by consistently over-delivering, and this happens one job, or case, at a time. Hence the quest to consistently over-deliver.

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Should Young Lawyers Specialize?

I never for a moment thought about pursuing a career as a transactional attorney. I entered law school for the wrong reasons. I knew I could think, write and argue reasonably well. I was a liberal arts major (Philosophy and Literature-Writing) and did not really appreciate how such skills could translate into success in the business world. And I did not think I would enjoy a career as an educator.

So, I did exactly what I would urge no one do today: I took the LSAT, got into law school, and went to law school, without having any particular passion about the law.

If anyone had asked back then–and I don’t think anyone did–what I planned to do with that law degree, what area I’d practice in, what I wanted to do everyday, if and how I would make a difference, I wouldn’t have had a clue. When I was interviewing and starting my career, there were vastly more jobs in litigation, so I became a litigator. I started out doing insurance defense, but not the interesting kind, and immediately grew bored with fender-benders (“Was the light red or green?”) and slip-and-fall lawsuits (“Was the banana you slipped on yellow or green?”). Fortunately, I got hired right away at a boutique firm that did more interesting work (at least from my perspective). I quickly became a “specialist” in automotive product liability litigation, specifically suits relating to the performance of automobile air bags, which was an emerging technology at that time.

I remained a “specialist” in this area, with a smattering of other kinds of cases, for about the first 10 years of my career. However, I eventually figured out that, deep down, I’m not really a gear-head, and it shouldn’t be a big surprise that the lawyers who really excel in automotive product liability litigation, and who most enjoy what they do, are those who are interested in cars. Well, duh!?!

I eventually migrated to employment law for a number of reasons. First, and most practically, it was the only area that I was able to get any early traction in terms of developing my own clients. Equally important, however, being the opposite of a gear-head, I found I enjoyed disputes that arose out of (often flawed) interpersonal relationships in the workplace. Also, I had long felt that employment law was fertile ground for building a book of business, since every, EVERY employer, particularly in California, needs an employment lawyer. If they haven’t needed one yet–they will!

I had not intended this post to be a memoir. I recognize that my career path probably makes dry reading. But I wanted to tackle a topic that I think is important for law students, recent graduates and those still in the early years of their career: should you attempt to specialize? Like most people, I’m narcissistic and can only approach a personal question by starting from my own experience.

In any event, I posed this question to someone who has a fair amount of expertise in helping lawyers make the most of their legal careers. Gideon Grunfeld, the President of Rainmaking For Lawyers, was gracious enough to provide this valuable insight:

“Too many lawyers get shortsighted advice about whether they should specialize and what that means. There are substantive areas, such as tax, ERISA, and patents, where specialization is almost a necessity. But there are many areas, such as business litigation, where specialization can be counterproductive. Rather than focusing on the substantive nature of the law and, for example, specializing in trade-secret litigation, it’s better to encourage young lawyers to identify the clients they most want to serve. Thus, for example, if someone has a passion for high-tech start-ups, they can focus on cultivating relationships in that world and position themselves to solve the full panoply of legal issues that arise for that market or audience. For most young lawyers this is a more robust not to say more fun way to practice law and build a client base.”

I tend to agree with Gideon’s advice. I like the notion of letting one’s specialty develop organically. In my case, it developed because someone close to me gave my business development efforts a big jumpstart by referring employment cases my way. I found I liked it and wanted to pursue it further. This is pretty much the opposite approach from deciding I wanted to practice entertainment law because I like to go to the movies (which I do).

What I would really caution against is remaining in a practice that never brings you any thrills. Even though I’m not a gear-head, there were parts of my products liability practice that I found compelling. I recognize that this is not the market for young lawyers to quit a job on a whim. On the other hand, there is nothing wrong with developing a mid or long-term career plan to move away from an area that brings you no joy, with the hope of finding something more fulfilling. If I was still fighting cases about people who tripped on a public sidewalk, I’d have to open a vein. But that’s just me.

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When You Realize Clients Don’t Grow On Trees

Some lawyers are lucky enough to breeze through a successful, maybe even lucrative, career without ever thinking once about finding new clients. This post is intended for the rest of us.

If you are in private practice, in business for yourself or a member, at whatever level, of a law firm, chances are pretty good that you will not excel in your career without becoming at least passably adept at identifying and developing new clients. I know there are some firms and some clients in which one can succeed simply by expanding the amount of work the firm does for an existing client, or you may be lucky enough to inherit a retiring or expiring lawyer’s book of business. Good for you. Even so, except in the rarest cases, only a fool would presume any single client will remain loyal forever.

If I haven’t convinced you, I don’t know what more to say, except to suggest you heed the often-quoted advice from financial planners that you keep an emergency savings account with several months–even a year’s worth of expenses set aside. Your job will never be secure. (Of course, that’s really true for all of us.)

For most of us, though, it’s not a matter of whether you need to cultivate clients, but when. When I conceived of this post–which could easily be (and sometimes is) the sole subject of an entire book, I had in mind addressing two issues that I’ve personally had to confront in my quest to develop my own stable of clients. These are: (1) the inevitable time squeeze and (2) the concept of freely giving.

1. The Time Squeeze.

As writer Mohsin Hamid points out, “Time is our most precious currency.” If you’re like me, you are going to feel a “squeeze” or shortage of this precious currency when you really commit to building business. To illustrate what I mean, let’s imagine that you work at a firm that expects–expressly or otherwise–that you will work and bill 1,900 hours in a given year. (When I say “bill” in this context, I’m referring only to hours that are chargeable to a paying client, i.e., excluding any hours spent doing pro bono, management activities, continuing education, networking and bar association events.)

Next imagine that, before you started on your quest to develop a book of business, you routinely spent 100 hours a year doing any of the other non-chargeable things listed above, including pro bono. For this illustration then, you are expected to devote 2,000 hours every year to both the practice and business of being a lawyer. If we give you a 2 week vacation, then you will be working and recording time–both chargeable and otherwise–40 hours per week. For most people earning a full-time salary, this sounds pretty fair. I don’t disagree.

The “squeeze” I was referring to comes when you start adding in time committed exclusively to finding new clients. I didn’t plan to write a compendium of all of the possible ways you could spend this time, but a quick and dirty list could include: attending events at professional networking, local state and national bar and practice area associations/groups, follow-up breakfast/lunch/coffee meetings with members of these groups to develop a rapport and cultivate a referral relationship, writing articles, lecturing, providing training and useful information to prospective clients, and developing a (hopefully) growing stable of contacts to be mined for potentially lucrative relationships (with the attendant breakfast/lunch/coffee meetings to develop a rapport and cultivate a referral relationship).†

How much time would you expect to spend doing these activities–if you really want or need to grow a book of business? 1 hour a day? 2? 3? If you averaged just one hour a day devoted to these activities, you’ll be adding about 250 hours to your 2,000 hour year, meaning you’d be working a total of 2,250 hours, or 45 hours a week, assuming you took a 2 week vacation (but no other holidays, so plan on working on Thanksgiving!). Again, many would view this as a fair investment, given the prospect of increased earning potential and job security.

But . . . if you can do it with a commitment of only 1 hour a day, I’d be both impressed and amazed. I say this because, each networking event I attend (roughly weekly) consumes at least 3 hours, including travel. The professional organization to which I belong creates an opportunity to have a “troika” follow-up breakfast or lunch with two other professionals from the group after each meeting. Assume, with travel, each of these meals consumes at least 2 hours, then I’ve already used up 5 hours for the entire week. Which would be fine if this activity alone was enough to gain all the new business I need. Unfortunately, doing this activity alone won’t be enough. Not nearly enough.

I think you’re starting to see what I mean by time squeeze. At this juncture, I probably spend between 10-15 hours of each week devoted to marketing efforts, though some of these are candidly spent on nonchargeable work at the front end of every new client or case (in other words, when I get a new engagement, I invariably spend hours looking at the matter, communicating with the (potential) client, researching a judge, budgeting, etc., none of which do I typically treat as chargeable). If you combine that with the responsibility to work chargeable hours, additional hours required to handle law practice management tasks, CLE, etc., it’s starting to look like a 2,500 hour year, which may be fine if you’re single and do nothing but work, but if you have a family . . .

Everyone faced with this time squeeze must decide their own best way to deal with it, because it presents a challenge. Do you spend less time with your family, forego personal time or regular exercise, reduce billable productivity? There’s no way to please everyone, but you’re only going to short-sell yourself career-wise if you’re in private practice and don’t make client development a serious goal at some point.

2. Freely Giving.

I’ve previously written about giving value-in-advance. This is really just an extension of that advice. In his excellent book, The Marble and the Sculptor, Associate’s Mind blogger Keith Lee included a chapter entitled “Attracting Clients and Business Development.” He discussed this notion of freely giving this way:

“So the big question, one that almost all new lawyers struggle with, is: How do you attract clients?

At the most basic level, it means being willing to give without expecting anything in return. This is often difficult for many people. People, not just lawyers, expect quid pro quo for the things they do. But it is often especially true for lawyers, as their trade is knowledge. Lawyers have received specialized, narrow training in a field and they tend to want to closely guard this knowledge as it enables them to charge clients hundreds of dollars an hour in return for access and use of that knowledge. It can be anathema to attorneys to share information freely as it might somehow devalue their knowledge assets.” (The Marble and the Sculptor (ABA 2013), at 68.)

This reluctance to freely share knowledge must be resisted and, ultimately, overcome. Why? Because sharing information without expectation of compensation creates a store of goodwill and provides prospective clients with an easy way to appreciate your expertise. Because in the real world many prospective clients will be unwilling to hire a lawyer for the first time without some kind of assurance that the lawyer is up to the task. Because it is one way to stand apart.

†A long time ago (relatively speaking) I wrote a post encouraging new law school graduates to make an effort to stay in touch with every person they got to know during school. If you followed this advice beginning at graduation, by the time you were in serious client development mode, at least some of those classmates would be in a position to refer business your way, whether they are in-house, general counsel or just fellow professionals. One really successful rainmaker I know used this method to jump start his book of business, which now hovers in the $3 million range.

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It’s Resolution Time At Counsel Table

As my wife will attest, I’m distrustful of resolutions, whether they’re made at New Year’s or some other momentous occasion, like discharge from rehab. But I’m going to take this New Year’s Day to make a resolution relating to client service: In 2014, I’m going to try very, very hard to change the way my clients think about lawyers.

This is not at all original. In fact, this is one of J. Dan Hull’s notorious “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.” Here’s what Dan says about this rule:

“This rule, like Rule One, is not so intuitive. But it’s the most challenging. The “under-promise but over-deliver” and “exceed customer expectations” notion of keeping good clients is a great idea. But I just don’t think it works that well for lawyers. I think that clients, rightly or wrongly, and whether or not they are even aware of it, in fact have low expectations of lawyers in the first place. For two reasons:

A. Traditional Pervasive Distrust of Lawyers (General–Deserved & Undeserved)

There is a pervasive (let’s face it, ancient) cynicism and suspicion about lawyers which even our most loyal and valued clients carry around with them. Some of it is unavoidable and not our fault. It’s based on everything from literature, TV, movies and lawyer jokes to a genuine misunderstanding of what lawyers must do to perform well. It’s deeply rooted in world culture.

B. Real Experiences-Based Distrust of Lawyers (Specific–Deserved)

But most of the distrust is our fault because either (1) our substantive professional services are merely “adequate” and/or delivered without passion or real caring–clients can sense that–or (2) we view clients almost as adversaries (they joke about us; we joke about them), which gets communicated to clients in every step of our work for them. See The First Post.

Let’s not kid ourselves. Why ‘try to exceed expectations’ when the overall lawyer standard is perceived as low to mediocre? If your clients are all Fortune 500 stand-outs, and the GCs’ seems to love you and your firm, is that because your service delivery is so good–or because other lawyers they use are so ‘bad’ on service? Why have a low standard, or one that merely makes you look incrementally more responsive and on top of things than the boutique on the next floor up? Why not overhaul and re-create the whole game?

If you read the better writers on services, like Harry Beckwith in Selling The Invisible, you pick up on this simple idea: Rather than ‘under-promise/over-deliver’, which is essentially job specific, why not change the way people think of lawyers generally and what they can expect from them generally? Get good clients–those clients you like and want–to keep coming back to you by communicating in all aspects of your work that you care deeply about your lawyering for them, you want to serve their interests on an ongoing basis and that it’s a privilege to be their lawyer. Show them you fit no lawyer mold.

Oh, yeah. One catch–and the hardest part: it’s got to be true.”

So how do I plan to execute? After all, a resolution without a plan is just an empty promise to oneself. I’m going to work on three core areas that tend to fuel a lot of client disappointment in their lawyers.

1. Communication. I’m going to work hard to improve my communication habits and practices. This includes a resolution to respond to any email or phone call from a client the same day. I’m going to report more, and more often, what’s going on in our case. (Yes, it’s our case. We’re in it together.)

2. Transparency. I’m going to strive to better involve clients in strategy development. Of course there are all kinds of clients, and some would prefer not to be involved; others want to plan every move. But those who want to participate will have the opportunity.

3. Value. Clients often hate to involve lawyers because they assume we are out to financially “gouge” them. I’m going to turn this on its head. I resolve to bring more value-in-advance. I will think of at least one way to save my client money at every step in any litigation. I will work harder to keep clients aware of major changes in California employment law–for free!

There. Now pass the champagne.

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What Jurors Bring Into The Deliberation Room

On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.

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Five Ways You Can Help Your Appellate Lawyer Help You

Hopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.

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One Lawyer’s Secret Weapon

A lawyer I know, he has a Secret Weapon. When I get around to revealing it, you’re going to be surprised, because it’s so obvious. But it totally works.

First, a pop quiz:

Question One: What do you do when you’re trying to negotiate with an opposing lawyer over something small, but important–say an extension to respond to discovery–which, among professionals–people who wear white collars and silk ties to work, who attended years and years of expensive schooling, passed excruciatingly difficult examinations, swore an ethical oath–would seem to be an easy thing to agree upon–what do you do when this opposing lawyer unreasonably refuses, without any explanation, this simple, routine request?

Question Two: What do you do when you’re sitting across from that same lawyer in a cramped conference room, taking his client’s deposition and, over the course of several hours, he repeatedly insults and demeans you, challenges you to justify every third question, asks no less than five times “how much longer” you’re going to be, persistently interrupts you mid-question to interject the start of what will surely be a long, inappropriate speaking objection, and instructs his client not to answer at least seventeen times?

These questions are not directed to what you do the next day, or whenever you ultimately resort to serving objections, or moving the court to compel answers to the deposition questions and seeking sanctions, or asking the court to appoint a discovery referee.  I’m asking what do you do in the heat of the moment, while your heart rate is still elevated.

If you’re me–and believe me I’m not bragging here–you take everything personally, get pissed off, turn beet red and start talking with the snappy sarcasm of a desperate salesman in a Mamet play. You see: I haven’t mastered the Secret Weapon. I can talk a good game. I’ve written over and over about the wisdom of maintaining a professional, cooperative demeanor in litigation. But when the rubber meets the road I struggle to avoid stooping to an unprofessional opponent’s level, or (gasp) worse. No, I haven’t yet mastered the Secret Weapon.

But you can. The good news is that YOU CAN master the Secret Weapon. When the lawyer I’m thinking of is faced with the above, or worse, he pulls out his Secret Weapon and does this: he simply acts nice. He meets rudeness, lack of professionalism–you name it–with an oversized bucketful of fluffy pink kindness.

It’s impressive to see. Picture Roger Federer being pelted with a barrage of ugly, aggressive cross-court winners and absorbing and converting the energy, speed and spin of each angry ball, only to gracefully return it with nothing more than an easy, gentle lob. In fact, like CIA assassin Jason Bourne, whose manner of calm resolve seems actually to increase in a disturbing direct proportion to any rising threat of imminent capture or death, this lawyer’s attitude of kind, gracious, solicitude seems to actually grow in direct proportion to the lack of professionalism of an opponent.

He invariably takes the high road. He literally kills them with kindness. Is it always easy for him? I doubt it. Is he sincere in his “attitude of kind, gracious, solicitude”? Who cares. He’s getting the job done. In most encounters, his weapon immediately deflates a situation that in my fat, clumsy hands would become a runaway train wreck. It works. It really does. Try it next time you’re dealing with a total asshole less than professional member of our profession, you’ll see.

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Can’t We All Just Get Along?

Do you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced (?)k?-?ä-p?-?r?-sh?n–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

  •  Is not capitulation.

  • Is not an abdication of appropriate and vigorous advocacy.

  • Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id.citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

  • “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

  • Consider what discovery is truly needed, and not just desired.

  • Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”

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