Okeoma Moronu recently had me on her podcast “The Happy Lawyer Project” to discuss time management and productivity, making yourself indispensable within your law firm, influential books that I’ve read in the past year, and of course, my new book, Stop Putting Out Fires. You can listen to the interview wherever you normally listen to podcasts or at Okeoma’s website.
I did an interview with the ABA about how daily, intentional learning can help you improve your practice. In the interview feature, they’ve also included some excepts from my book, Building a Better Law Practice: How to be a better lawyer in just a few minutes a day.
Jared Correia and I talk about why I’d rather be Lex Luthor than either Clark Kent or Peter Parker, how to get comfortable as a lawyer, be cognizant of your knowledge limitations, and methods of improving your craft in this month’s Legal Toolkit Podcast.
This week I was interviewed by Lee Rawles of the ABA Journal’s Modern Law Library podcast. Among other things, we get into the inside baseball of how my book Building a Better Law Practice is structured like a devotional for lawyers and why I made that choice. You can find the interview on the Legal Talk Network website, iTunes, and Google Play.
I went on the Law School Toolkit Podcast for my first interview about Building a Better Law Practice: Become a Better Lawyer in 5 Minutes a Day. Alison Monahan and I had a good conversation about the book and the practical ways in which it can help lawyers improve their craft. You can access the interview either from Google Play, iTunes, or the Law School Toolkit website.
[Setting: A rural, conservative gem of a county in middle Alabama. Plaintiff’s counsel is with one of the more well known personal injury firms in Alabama. The plaintiff himself is a dullard of a fellow, who poses me no danger of charming the jury. The judge is a charismatic guy who is wisely using this opportunity to allow his captive constituents to get to know him and the other elected civic officials in the county. The judge delivers his opening remarks and allows the jurors who believe they should excused from service to present themselves and their excuses (which are largely … hogwash), and he excuses them one and all. It is time to voir dire the jury.]
The plaintiff goes first
Counsel for plaintiff gets to voir dire the jury first. He has the opportunity to charm them and impress upon them his theory of the case. He gets to ask questions that evoke their sympathy. They can commiserate with the plaintiff because they too have had chronic back problems. Of course, the jury may not be empathetic about the plaintiff’s back problem. In this instance, several jurors suffered from back pain, but they weren’t taking opioid pain medication and they weren’t considering undergoing surgery. These jurors were just going about their lives dealing with their issues.
The accident that was the subject of this case occurred when a woman pulled out in front of the plaintiff while he was driving his motorcycle. He struck the side of her vehicle and cartwheeled over the top until he eventually collided with the pavement. There were several jurors in the panel who rode motorcycles and were sympathetic with the plight of drivers not seeing or even looking for motorcycles.
As plaintiff’s counsel continued to voir dire the jury, he had to take one issue head-on, or it might appear he was hiding from it: he worked for a giant tv-advertising, billboard-placing plaintiff’s firm. How did the jury feel about that? Oh, they had strong feelings about it! Too many ads. Too much litigation. Personal injury commercials are all you see on daytime television. Those who didn’t speak up were nodding in affirmation. The lawyer knew this was coming, but the plaintiff thimself slid lower in his chair with every response.
But aside from the one old gentlemen who appeared to hate both of us and perhaps the rest of the world around him, everyone said they could and would be fair to the plaintiff.
It’s my turn to voir dire the jury
The plaintiff had already settled his claims with the lady who had pulled out in front of him. Our trial was over whether he was entitled to any underinsured motorist benefits, and if so, how much. The plaintiff may have been disadvantaged because his lawyer’s firm is seen on televisions and billboards across the state, but I was representing a big, bad, faceless, soulless insurance company. There are few disadvantages greater than that in civil litigation. No one likes paying insurance premiums and most everyone has had a bad experience with an insurance company. I started my voir dire off by introducing myself and my corporate representative. I wanted to personalize us both. I made a joke – it fell flat. Just like the last time.
My second disadvantage was that by this time, we were approaching lunch time. In fact, I eat at 11:00 almost every day, so we were already well past my lunch time. When you’re working against the clock like this, you have to be precise and direct. There’s no room for redundant questions and wasting time.
With most of the interesting and conversational topics already taken, I set into a series of questions about insurance companies, insurance claims, bad experiences with insurance companies, and biases against my client. It was dull but necessary. My questions were drawing no responses from anyone, except the older gentleman who hated all of us. The non-responsiveness was both good and bad. No one was apparently going to hold against my client the fact that it was an insurance company, but I sure wasn’t getting a chance to establish a rapport with the jury.
After I asked my questions, I sat down. Over the next thirty minutes we struck our jury and dismissed for lunch. The case settled during lunch, which was somewhat a disappointment at this point. I’d worked all weekend only to put the landing gear down after we’d barely gotten off the ground.
The next day
My partner and I sat down to debrief the case. I express that I felt during voir dire that I had exhibited as much personality as our beige office walls. She said she feels that way each and every time she has to voir dire a jury in an uninsured/underinsured motorist case. The questions are dry and largely impersonal, but it is essential that we obtain the information. It only gets a little spicy when you have an old guy who hates everyone and wants to air his lifetime of grievances.
It is hard is difficult to effectively voir dire the jury, even when you have a theme, a plan, and know your material. Speaking of material, I need better jokes. While I work on that, here are some resources for you about incorporating storytelling into your trial work, representing clients at trial, and several litigators’ perspectives on voir dire.
Photo by Shawn.
My article “The Trouble with DOT Medical Examinations and Reports” has appeared in DRI’s In Transit newsletter. In it I discuss how a commercial driver gets medically and physically qualified to drive a commercial vehicle, and some of the systematic problems that have arisen within the existing framework.
Sometimes you’re going to have a client who wants his day in court. That client may be a plaintiff who says he’s interested in justice, not money. But unless your client is Taylor Swift, who sued someone for $1 for sexual misconduct, it’s unlikely that the client is truly not interested in a monetary award. Or that client may be a defendant who wants to be proven not liable for the allegations brought against her. Even for those clients, mediation may provide an opportunity for your client to have his day in court without having to endure the risks associated with trial.
To parse this further, I interviewed experienced mediator Bill Ratliff, who practices at Wallace, Jordan, Ratliff & Brandt, LLC, and runs a mediation blog at mediationinsights.com. Here are some of Bill’s thoughts on preparing your client for a successful mediation experience.
Giving Your Client His Day in Court via Successful Mediation
What are the best things a lawyer can do to get his client ready for mediation?
“I encourage attorneys to approach a mediation similar to a trial. Particularly, since roughly 80% of the cases that mediate settle. Preparation is the key. Attorneys should develop a strategy for the mediation. This will include opening demands/offers, who will speak and what will be said. I advise attorneys to prepare their clients for mediation as they would for trial. Explain the process to them, involve them in strategic decisions, and let them know what will be expected of them during the mediation and what they should expect from the process. Most Plaintiffs have never been involved in a mediation while many Defendants are familiar with the process and know what to expect.
“Explain to the clients that mediation is a process. For it to work, it usually must run its course. As parties invest time and energy in the process and assess the risk/reward for not settling, the money gap is hopefully narrowed and the parties are able to make a good decision at the end of the process.”
How can attorneys help the mediator best prepare for mediation?
Information is power. Educate the mediator. Do not assume the mediator knows anything other than what you have told him or her. As a mediator, I find that I am best able to help the parties that have best educated me. Attorneys should decide whether it would be helpful to meet or talk with the mediator by telephone or in person prior to the mediation. This can be done with or without the client present. Position statements or briefs filed in the case are excellent ways to educate the mediator.
How do you deal with parties who are not interested in participating in mediation?
“This is a common problem. Often one or more parties is not excited about being at the mediation. This can occur for any number of reasons. I have found that if the court has ordered the mediation, this often serves as an attitude adjustment for unexcited parties. At the start of mediation, I always remind parties that this is their best chance to settle the case.
“Unfortunately, some cases are mediated before they are ready. In these cases, we work hard to reach a resolution but I tell the parties that if we are unsuccessful, I will keep working the case after the mediation until the parties tell me to stop.”
For parties who want their “day in court, “what are strategies you use to help them see mediation as an opportunity?
“Mediation is an excellent substitute for a ‘day in court.’ During the mediation, I try to get the parties to participate and share in the process by having them express themselves. I have seen attorneys have their clients speak during opening statements and during caucuses. I think this is an excellent way for clients to vent and hopefully feel as if they have been heard. As the mediator, I try and be a good listener and ask questions of the parties to identify emotions of anger, frustration, hurt, or loss so that we can discuss those emotions during the process.
“I also encourage attorneys to make opening statements in the mediation. This gives the mediation the feel of a court proceeding. It also allows the client to see the attorney advocate for his or her position.”
What can a lawyer do to help you in the process of getting disinterested clients to engage in mediation?
“I find that clients often take their cue from their lawyer. If the lawyer embraces the mediation process, is engaged in it, and expresses confidence in the process, the client will usually buy into the process as well. Clients need to understand that there is risk in litigation. There are also costs in litigation. These costs may be monetary, emotional, and/or time. The cost, risk and reward analysis is largely what makes mediation work. Parties should be reminded that mediation is a voluntary process from which they can walk away at any time. However, it is also a proven process that works and when it works it results in an agreement the party has reached rather than a decision which is forced on the party like a verdict of the jury or decision of the Judge or arbitrator.”
As your get ready for your next mediation, keep these things in mind. Prepare yourself, your client, and your mediator in ways that lead to the greatest likelihood of success. Even clients who want their day in court can find that in a well-orchestrated mediation.
Photo by Ken Teegardin.
You may be a good lawyer, or even a great lawyer. You may regularly achieve favorable results for your clients at mediation or trial. Every party deposition you take may provide impeachment material that will render the plaintiff a disreputable puddle of deceit on the witness stand. But if you aren’t providing meaningful communication and reporting with your client throughout the litigation process, they are going to be displeased with you. This is why it’s important to building touch points into your case management processes.
Different Types of Touch Points
Touch points are influential communication actions you take that work to shape your client’s experience. There are different methods of communication, each of which has its own virtues and drawbacks.
The telephone. I know it’s old-fashioned, but hear me out. Aside from in-person meetings, phone calls are the most personal of common business communication methods. Phone calls enable you to communicate things to your client that you may not be ready to commit to writing. But phone calls have the disadvantage of requiring two or more people to be available at the same time.
Email. Email is my communication method of choice. It’s an asynchronous tool, meaning that the sender and recipient do not have to be available concurrently. Each can send, read, or respond at his leisure (within reason). But email has its drawbacks – it can be highly impersonal and impossible to convey nuance.
Several years ago, one of my staff had messed something up. I fired off an email to the effect of, “This thing happened. Let’s fix it and not do it again.” For me, that was the end of it. I wasn’t mad, and I had all but moved on. Before putting the matter totally to bed though, I needed to tell the partner we had a screw-up, so I stepped into her office to tell her about it. Before I got more than a sentence in, she responded ominously, “I know.” Apparently, the staff member had been offended by my terse email. I had no idea. As a young associate, I received an important lesson that some communications need to be in person so they’re not misconstrued.
Face-to-Face. In-person meetings are frequently the most profitable, but they require the most resources. Both time and monetary resources. And in a business in which your time is your money, time resources are monetary resources. The time you spend traveling to or meeting with once client is time you are unable to spend on other clients. However, face-to-face meetings are particularly important for building relationships and for providing the most insurance against miscommunication. There is no substitute for observing someone’s facial expressions and body language during the course of a conversation.
Instant Messaging. I know that AOL IM has gone the way of the dodo bird, but there are apps like Slack and Discord that are being implemented by many businesses to allow for easier collaboration on projects, particularly where employees are in different locations. Instant messaging tends to be informal and not particularly practical for sharing large volumes of information. But it can be a very efficient means of engaging in quick-response communications.
Letters and Written Reports. If you need to convey large volumes of information, provide evaluations with lengthy explanations, or synopsize recent developments in a case, there’s no better way than to do so in the form of a letter or report. The whole thing takes time – drafting proofreading, and revising. But there’s no substitute for the amount and quality of information that you can communicate in this format.
Building Touch Points into Your Processes
Knowing which communication methods are available to you is only half the battle. While you’re managing forty or fifty cases at a time, it can be easy to lose sight of how [in]frequently you’re communicating with your clients about their cases. This is why it’s important to build touch points into your practice management systems that help you maintain good, regular communication with your clients. Some clients will assist you with this be providing you with reporting guidelines – 45 days after a case is assigned, after party depositions, 30 days before mediation, etc. I use a spreadsheet to keep track of my more formal communications [You can receive my case management spreadsheet by subscribing to this blog, below], and others I know use calendar notices. The prompt you use to make sure you’re engaging with your clients is largely irrelevant, as long as you’re using the most effective tool for you, and more importantly, as long as you’re touching base with your clients frequently and with useful information.
Historically, one of the things I have told clients early on is that it’s common for there to be gaps of weeks or even months between the various phases of a case. There will likely be times where they don’t hear from me for a while, and that doesn’t mean anything is wrong. Instead, the lack of communication means there’s nothing to report. But I’ve learned that clients would usually rather have an occasional email from me reporting that there’s nothing to report, rather than being subjected to an undisturbed void.
You don’t want to be the lawyer who requires constant management and prodding from your clients to communicate and comply with guidelines. Regular communication with your clients, may be a soft, non-measurable metric, but it doesn’t go unnoticed and does affect your relationship.
Photo by Delwin Steven Campbell.
No new post today. I hope you and yours have a wonderful holiday season.