Jeremy W. Richter | Helping Lawyers Build a Better Practice

24 Apr

Preparing for the Transition from Associate to Partner

Posted by Jeremy W. Richter | Practice Management |

What makes for a good associate is not necessarily what makes for a good partner. The two have very different roles in a firm. I have written on this blog before about things you can do to be a better associate. Let me sum it up for you like this: a good associate works diligently, knows the expectations his partners have of him, and fully immerses himself in his practice areas so he can meet his clients needs. But these things alone do not prepare an associate for a partnership, which is presumably where most associates at firms would like to end up.

The trouble is most associates receive very little guidance on what partners are looking for to enable associates not only to receive a partnership offer but also to make a successful transition. To help fill that gap, I interviewed Stacy L. Moon, a shareholder with F&B Law Firm, P.C. in Huntsville, Alabama. Stacy practices in multiple areas of civil defense litigation and is active in DRI, currently serving as the chair of the Law Practice Management Committee.

On the Transition from Associate to Partner

What characteristics or qualities make for a good associate?

Curiosity – wanting to know why a court made a ruling in a case; wanting to understand how decisions are made or how a case assessment was reached.

Thinking outside the box – when given a form or “go by,” having the courage to make changes to the language because it seems too formalistic and not sufficiently clear; considering ways out of a suit (or additional claims against a party) that might not be included in the “last” pleading.

Understanding that a law school degree does not mean that person automatically knows everything.

Detail oriented.

Excellent writer.

What are you looking for in a business partner?

Because I do not have a business background, I would want someone with a business background or willing to hire someone with a business background to manage financials. I also would want someone who thinks of everyone in the office as a team, rather than people working “for” her. Also, firms should have a balance of “trees” people and “forest” people.

What helps you identify whether an associate is ready to become a partner?

Frequently, the questions an associate asks is an indicator. Are they more thought process questions or basic? Is the associate taking an interest in developing business, not just practicing law? Is the associate looking for ways to get his or her name out, as well as the firm’s? In crunch times, is the associate ok working extra hours? [In turn, in our office, in slower work periods, we understand taking advantage of those times to take care of other items.]

Is the associate demonstrating that he or she is considering the firm as a whole, not just the “work”? Biggest attitude change between an associate and a partner or shareholder is the reaction to closing the firm for weather. While I always appreciate a snow day (and I love snow), my other thought is almost always how much are we going to lose in billables that day.

Do you actively set these expectations, or is it more of a passive approach as the associate develops?

We are more passive, although we tend to eat lunch a lot, so we have an opportunity to evaluate.

Should associates expect to be groomed for the transition?

Yes. In our firm, I was given a one year “heads’ up” that the firm was considering me as shareholder. I began receiving financial reports at that point to help me see the financial aspects of the business.

What are indicators that an associate isn’t preparing himself for partnership?

I am unusual. I do NOT think working 8-5 means the associate is not preparing himself for partnership, depending on the work done. As mentioned above, the bigger indication is an associate not thinking beyond his or her cases.

What practical things can an associate do on a daily or weekly basis to prepare himself for partnership?

Read (case developments, business blogs, anything). Write (not just for cases, but articles, memos if you see a developing area of law or change in law that partners need to be aware of). Develop a relationship with co-workers, not just the partners, but include the partners.

While no two firms are the same, Stacy’s responses iterate I’ve long held and even shared on here about characteristics of developing associates. Namely, be mindful not only of your work but also of the firm’s business and developing relationships with professionals in your practice area.

Photo by amazed – l’étonné.

19 Apr

Evidence of Collateral Source Payments May Be Admissible to Show Bias (11th Circuit)

Posted by Jeremy W. Richter | Discovery & Evidence |

ML Healthcare Services, LLC v. Publix Super Markets, Inc. [No. 15-13851 Feb. 7, 2018] ___ F.3d ___ (11th Cir. 2018): Evidence of collateral source payments may be admissible to show a doctor’s bias as to his causation testimony about the treatment he provided. (download the opinion)

Robin Houston sued Publix arising from an alleged slip-and-fall at a Publix Super Market in McDonough, Georgia. The alleged incident occurred on July 24, 2012, after which Houston treated with a medical doctor who sold the medical debt for Houston’s treatment to a litigation investment company, ML Healthcare. ML Healthcare purchases medical debt at a discount rate from medical providers, using a contract that allows ML Healthcare to recover out of an tort settlement or judgment the full cost of the medical care provided. At trial, Publix sought to introduce evidence of this collateral source relationship to show Houston’s doctor’s were biased in their testimony and that Houston’s claimed medical expenses were unreasonable.

Georgia’s Collateral Source Rule

Stated in its simplest terms, Georgia’s collateral source rule allows that “the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish plaintiff’s recovery of damages.”¹⁾Polito v. Holland, 258 Ga. 54, 55 (1988) (A plaintiff as “the right to recover damages undiminished by collateral benefits). Evidence of collateral sources payments is inadmissible if it would be used only to show a reduction in damages.²⁾Id. at 56. However, evidence of collateral source payments is admissible if it serves a valid evidentiary purpose other than revealing the benefits to the jury.

In the ML Healthcare Services case, Publix sought to introduce evidence of collateral source payments to attack the credibility of the causation opinions offered by Houston’s doctors. The district court found that ML Healthcare’s business model, which included fronting medical expenses for plaintiffs to treating physicians was highly relevant and probative as to the bias of the treating doctors, as was the reasonableness of the medical expenses. As such, the district court found the collateral source evidence had the valid evidentiary purpose of impeaching the witnesses and was admissible.

Distinguishing Alabama’s Collateral Source Rule

According to this 11th Circuit opinion, in Alabama, any showing that the Plaintiff has received collateral source payments (whether insurance payments, workmen’s compensation benefits, or from a litigation investment firm) may constitute reversible error.³⁾Southern v. Plumb Tools, 696 F.2d 1321 (11th Cir. 1983). Note: My practical experience has differed, so I may need to do some additional looking into this issue. But suffice it to say that if you’re in an 11th Circuit state other than Georgia, your state law will be applied and may achieve a different result than this opinion allows.

Admissible Use of Evidence of Collateral Source Payments

The 11th Circuit upheld the district court’s ruling that evidence of collateral source payments was admissible for the purpose of showing potential bias of Houston’s treating physicians’ testimony. For ML Healthcare to be profitable it must subsidize plaintiffs who win their lawsuits. The arrangement creates a risk of bias on the part of medical providers who receive referrals from ML Healthcare and later testify on behalf of the patients/plaintiffs they have treated. If the doctor failed to provide causation testimony favorable to the plaintiff’s claim, ML Healthcare would find doctors who were willing to provide such testimony.

Because the collateral source evidence served a legitimate evidentiary purpose (other than to reduce damages, for which purpose the evidence would have been inadmissible), the district court did not abuse its discretion in admitting this evidence.

Photo by Alex Proimos.

References [ + ]

1.	↑	Polito v. Holland, 258 Ga. 54, 55 (1988) (A plaintiff as “the right to recover damages undiminished by collateral benefits).
2.	↑	Id. at 56.
3.	↑	Southern v. Plumb Tools, 696 F.2d 1321 (11th Cir. 1983).

16 Apr

Challenge Conventional Approaches to Problems

Posted by Jeremy W. Richter | Practice Management |

Reinterpreting David and Goliath

Just this morning, I began reading Malcolm Gladwell’s David and Goliath which begins by telling the well-known story of, you guessed it, David and Goliath. But in the book, he reframes the story. Gladwell tells us that we have been misinterpreting it. This is not the story of a small shepherd boy who went to war with an outsized opponent and happened to win. Instead, the story of David and Goliath is one of a small shepherd boy who turned the match to his advantage by refusing to concede to the conventional warfare his opponent was demanding.

David assessed the giant’s strengths and weaknesses and determined that he was unable to defeat Goliath on his own terms. David then analyzed his own strengths. He had honed his skills with the sling in the fields protecting his sheep. He had slain a lion and a bear by this method when they carried off one of his charges. Scientific studies have determined that a skilled slinger could release a stone with the same force as a large-caliber handgun. We aren’t talking about a little boy’s slingshot here. This sling was a weapon of war, the distance weapon that preceded the bow.

When David met Goliath in the valley for a battle to the death, Goliath had three weapons and was clad in armor. He was prepared for close-hand combat. But David refused to meet Goliath on the giant’s own terms. Neither Goliath nor the Philistine army knew it at that moment, but they had already lost the battle. Goliath was too heavy and slow-moving to react to David’s method of attack.

After descending into the valley to meet Goliath, David addressed him:

“You come to me with a sword and with a spear and with a javelin, but I come to you in the name of the Lord of hosts, the God of the armies of Israel, whom you have defied. ⁴⁶This day the Lord will deliver you into my hand, and I will strike you down and cut off your head. And I will give the dead bodies of the host of the Philistines this day to the birds of the air and to the wild beasts of the earth, that all the earth may know that there is a God in Israel, ⁴⁷and that all this assembly may know that the Lord saves not with sword and spear. For the battle is the Lord’s, and he will give you into our hand.” I Samuel 17:44-47 (ESV).

David began running toward Goliath while whirling his sling. He let go of the rope and launched a projectile toward his enemy at the only vulnerable point. Less than one second later, the stone embedded itself in the giant’s skull rendering him either unconscious or dead. The shepherd then grabbed the giant’s sword and cut off his head.

David defeated his opponent by challenging convention and refusing to meet him on Goliath’s own terms. By choosing a different strategy, David turned the odds in his own favor. His opponent did not recognize the danger he was in and was unable to defend himself against an unanticipated form of battle.

Choosing to Play 4-on-5

When I was in 10th grade, our basketball team was playing a school (who I’ll refer to as “Metro”) against whom we were pretty evenly matched. We did not have one particularly good player, but had several moderately good players. Metro, on the other hand, had one good player, while the rest of the team was made up of non-difference makers. My coach understood that if we played a conventional game, the odds of victory were in doubt. He devised a plan.

I was not a good offensive player. But I loved defense, and I was a good defender. I relished the opportunity to hassle the opposing point guard. Getting a five-second call on him at the top of the key was a rush. I envisioned myself as a white, suburban, 135-pound Gary Payton. What I lacked in talent (and mind you, there was very little talent), I tried to compensate for with tenacity.

In the pre-game meeting, the coach instructed me: “Jeremy, I want you to play defense on #25 the whole game. When we’re on offense. When we’re on defense. I want you to tell me what kind of gum he’s chewing, what kind of deodorant he wears. You stick on him the whole game. You’ll get in his head.” I’ve rarely smiled so broadly. This was to be my finest hour.

I did as instructed. When we were in man defense, I was on him. When we went to a box-and-one, I defended #25. When we were on offense and #25 was guarding our best player, I was glued to his hip. It didn’t take long for him to realize things were not occurring in the traditional way. He started trash talking and getting frustrated. His foul total started to accumulate and his productivity decreased. The score was becoming lopsided in our favor. In the third quarter, #25 drew his fifth and final foul when, out of frustration, he shoved me and said some … not nice things. I just beamed back at him. The game was not much of a contest after that.

By challenging conventions, my coach had put our opponent in their heels and attacked them with a strategy for which they were unprepared. He gave us the advantage by electing to put his offense at a strategic disadvantage.

Refuse to Play Your Opponent’s Conventional Game

When you’re litigating cases, there are going to be times you know the deck stacks against you. Either there are bad facts or bad law, and if you don’t do something spectacular, your client is going to lose. These are times when you may need to consider not meeting your opponent where she’s at, but rather begin playing a different game.

Let’s consider this scenario: Opposing counsel has an expert who is going to testify that your client is liable for the plaintiff’s injuries. You take the expert’s deposition and discover there are some holes in his opinions and analysis. The conventional thing to do is to get your own expert who will testify that your client is not liable and articulate the reasons why. This is what your opponent likely expects you to do.

An alternative approach is to hire no expert of your own. You may choose instead to just poke holes in the opinions and analysis given by your opponent’s expert. What is wrong with his calculations? Why could the accident not have occurred as he is asserting? What facts has he failed to consider or evidence is he omitting?

Do not comply with conventional approaches as a matter of course. Take a broad view of your case and consider all of the possible strategies available to you. Get an outside perspective that may shed light on a tactic you had not considered. Do not concede to fighting in the manner that your opponent is demanding. Devise a strategy that is most effective for reaching your goals, and execute it. Leave your opponent standing flat-footed, wondering what you’re doing as you sprint toward them and unleash the stone that will topple the giant.

Photo by Mr ATM

09 Apr

Are Pre-Injury Releases and Waivers Enforceable in Alabama?

Posted by Jeremy W. Richter | Contracts |

If you’ve ever been zip-lining or whitewater rafting, you have likely had to sign some sort or waiver or release. Did you stop to wonder whether it’s enforceable if you were to get hurt? Would you actually have signed away your rights to make a claims against someone? As with all good legal questions, the answer is it depends. These types of releases can be enforceable in Alabama, but as to whether any particular pre-injury release is enforceable, it will hinge on the language of the contract itself.

Pre-Injury Releases

In Alabama, parties may execute an agreement that will release claims or damages not particularly contemplated even before the claims or damages have arisen, although the parties’ intent must be clearly expressed in the agreement. See Minnifield v. Ashcraft, 903 So. 2d 818, 827 (Ala. Civ. App. 2004).[1] Specifically, parties may expressly release claims for injuries and damages. Dudley v. Bass Anglers Sportsman Soc., 777 So.2d 135, 137-38 (Ala.Civ.App. 2000).[2] The assumption with general pre-injury releases is that the parties “intended to release all claims – contract claims as well as tort claims…. If the parties had wanted to limit the release, they could have expressly reserved and excepted certain claims, including tort claims.” Reg’l Health Servs., Inc. v. Hale Cty. Hosp. Bd., 565 So.2d 109, 114 (Ala. 1990).

Parties may sign releases for injuries that have not yet occurred. “Future damages may be released if such is the intent of the parties.” Jehle-Slauson Const. Co. v. Hood-Rich Architects and Consulting Engineers, 435 So.2d 716, 719-720 (Ala.1983) (quoting W.J. Perrymore & Co. v. Penn Mutual Fire Insurance Co., 324 F.2d 791, 793 (5th Cir.1963)). “It is a well settled statement of law that ‘in absence of fraud, a release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged by the court from what appears within the four corners of the instrument itself, and parol evidence is not admissible to impeach or vary its terms.’” Jehle-Slauson Const. Co. v. Hood-Rich Architects and Consulting Engineers, 435 So.2d 716, 719-720 (Ala.1983) (quoting Conley v. Harry J. Welchel, Co., 410 So.2d 14 (Ala.1982)).

The Effect of Ambiguity on Releases

To be enforceable, pre-injury releases (like other contracts) must be free from ambiguity. Where there is ambiguity as to what causes of action are intended to be discharged by the anticipatory release, the release is unenforceable. Where no ambiguity exists, a court’s only function is to interpret the meaning and intentions of the parties as found within the four corners of the document. Pruitt v. Circuit City Stores, Inc., 678 So.2d 1166 (Ala.Civ.App.1996).

In determining if the language of the release is unambiguous, a court must give the words of the release their ordinary meaning and the release must be given effect “according to its terms and the intentions of the parties thereto.” Nix v. Henry C. Beck Co., 572 So. 2d 1214, 1216 (Ala. 1990) (quoting Alabama Code § 12-21-109). If the express provisions of a release are unambiguous, then, in accordance with contract principles generally, they will be taken as expressing the intent of the parties and will be binding and enforceable. See Id.

[1] “Although parties may execute an agreement that will release claims or damages not particularly contemplated, the parties’ intent to do so must be clearly expressed in the agreement.” The relevant portion of the release in Minnifield read as follows: “I agree not to sue Skin Worx in connection with any and all damages, claims, demands, rights and causes of action of whatever kind of [sic] nature, based upon injuries or property damage to or death of my-self or any other persons arising from my decision to have tattoo or piercing related work done at this time, whether or not caused by the negligence of Skin Worx personnel.”

[2] Alabama Court of Civil Appeals upheld validity of a release wherein signees “expressly assume all risks associated with the Tournament and I hereby release B.A.S.S., Inc., the host, sponsors and Tournament officials from all claims or injury and/or damage incurred in connection with this Tournament.” The release was found to be neither ambiguous nor otherwise unenforceable.

Photo via Shreveport-Bossier Convention and Tourist Bureau.

05 Apr

Three Ways to Make Sure Your Case Evaluations Are Useful

Posted by Jeremy W. Richter | Client Management |

I was on the phone with an insurance adjuster when she said to me, you’re not going to believe the case evaluation this lawyer down in [another part of the state] gave me. Now, I have a policy of not speaking badly of my competition, so it appeared that I was about to be entering some choppy waters. Nevertheless, I asked her to tell me about it, mostly because I was curious, but also because, what else was I going to do?

“We’ve got a construction defect case over in [geographical region omitted] Alabama. There was about $150,000 in claimed damage. This lawyer gave me a case evaluation of between $35,000 and $225,000. But not only that, he didn’t give me any explanation. So I called him back and said, ‘I need to know how you got to these numbers.’ All he told me by way of explanation was, ‘We’ve had some bad verdicts here recently.'”

There are two problems here that we need to address: the case evaluation range was too broad, and it didn’t include any data or analysis to support it.

Provide Reasonable Case Evaluation Ranges

A key to useful case evaluations is that they be appropriately narrow. Using the example my adjuster relayed to me, there’s a pretty big difference between a $35,000 construction defect case and one that’s worth $225,000. The purpose of a case evaluation is to arm your client with the information that will allow her to (1) manage her risk, and (2) make an educated decision about resolving the case. An overly broad evaluation does not effectively enable the adjuster to accomplish either of those tasks.

Your knowledge of the practice area; familiarity with the judge, opposing counsel, and the venue; and anecdotal experience with similar cases and the results those yielded are all essential to developing the skill of effectively evaluating cases. There are few things more frustrating than someone who doesn’t know how to evaluate a case. It can result in protracted litigation and thousands of dollars being spent unnecessarily.

Below is a sample of 11 cases that I pulled from about three years ago. There are examples of both good evaluations and bad among them. Some are too broad, as in Jordan v. Johnson. Others do not reflect where the case ultimately was resolved (but more about this later). For those that are too broad, I didn’t provide my client the kind of valuable information that, in retrospect, I could or should have.

Evaluating cases can be difficult. Anyone who tells you otherwise is being disingenuous. No two cases are going to develop the same. There’s no accounting for what a party might say during depositions. Even if all the lawyers agree on the value of a case, there’s no certainty that the defendant will offer the money necessary to get it resolved or that the plaintiff will accept it. Nevertheless it is incumbent upon you to present to your client settlement and verdict evaluation ranges that will enable your client to manage her risk and decide whether resolution or continued litigation is her best option.

Support Your Case Evaluations with Analysis

Raw numbers are only so useful to a client. They need the reasoning behind your valuation. What are the facts and law that caused you to reach your conclusions. Let’s look at the above example again.

“This lawyer gave me a case evaluation of between $35,000 and $225,000. But not only that, he didn’t give me any explanation. So I called him back and said, ‘I need to know how you got to these numbers.’ All he told me by way of explanation was, ‘We’ve had some bad verdicts down here recently.'”

If you don’t support your numbers with analysis, you haven’t given any authority to your numbers and have given no reason for your client to trust in them. Equally importantly, you haven’t given them any way to support their decisions when their boss is evaluating their work.

Audit Your Case Evaluations for Accuracy

No matter how appropriately narrow or well supported your case evaluations are, they aren’t particularly useful to your client if they aren’t accurate. This is a difficult thing and can be affected by many factors beyond your control. So any one case may not tell the story, but in the aggregate your case evaluations should show a pattern of cases either settling or trying within the ranges you’ve identified.

As a part of the above spreadsheet (but not included), I keep a column that reflects the accuracy of my evaluation ranges, with the goal being that I will continue to monitor my results and intentionally improve this skill so as to better serve my clients.

Continually Endeavor to Improve Your Evaluation Skills

As with any skill, you will only improve your settlement and verdict evaluation skills with intentionality. These are definitely skills worth developing. They serve your interests and your client’s. When a client can trust you to help them measure their risk and set reserves on their cases, your relationship will be stronger and the loyalty between you more established.

Photo by Official U.S. Navy Page.

03 Apr

[Appearance] Frame Your Daily Tasks in a More Productive Light

Posted by Jeremy W. Richter | Case Management |

Every day you have tasks that have to be completed. Most of them are not charming or glamorous, but carry some importance nonetheless. There are going to be times when you can barely stomach the idea of writing another report or making another phone call. It can be helpful to reframe those tasks in a productive light that motivates you to complete them.

My thoughts on this topic can be read at the ABA Journal’s “Your Voice” feature: Frame those onerous tasks in order to motivate you to act.

26 Mar

Failure to Communicate Can Cost You Clients

Posted by Jeremy W. Richter | Client Management |

In early March 2018, I flew from Birmingham to Minneapolis, where I rented a vehicle from a certain rental company that shares a name with a historic Texas landmark. Then I drove to Wisconsin. The next day I drove back to Minneapolis and returned my rental car. I took the tram to the terminal where I got my ticket and went through security. As I was getting re-dressed going through the TSA scanners and began rearranging my belongings, I realized I had left my sunglasses in the car. Looking at my watch and then at the lines, I realized I didn’t have time to go back to the car rental location, get my sunglasses, then go back through security.

I called the rental, went through about 18 automated menus, and finally got through to the rental desk at Minneapolis-St. Paul airport, Terminal 1, where the phone rang and rang and rang and … went to voicemail. I left a message explaining the situation – I had just left my sunglasses in my vehicle; if you call me back right away, you may be able to get them to me before my departure. I called seven more times after that, and no one ever answered the phone.

I called the next day, and no one answered the phone. No one ever called me back. Two days later, I saw on the rental company’s lost-and-found page for Minneapolis-St. Paul airport, Terminal 1 that a pair of sunglasses had been found. I filled out report, submitted it, and waited. And waited. Six days, I waited. Nothing. So I went to Twitter to air my grievances.

The rental car company responded to my tweet and we had a good conversation by Direct Message, and they were very reassuring. The next day, I got an email that my sunglasses had not been found. A couple days after that, the rental company’s Twitter guy sent me a message asking me to rate my experience.

The guy didn’t know what he had asked for, because he got both barrels in the most polite-but-displeased manner available to me. I owned up to losing my sunglasses. That’s on me. But then I called trying to get them to resolve a very small problem for me. Nine times, I called. I never got an answer. I had left a message immediately after the problem arose making them aware of the very small problem and asking for help to resolve it. Never did I receive any response. The Twitter guy was again very reassuring that rental company was doing everything in its power to locate my lost item and that he had asked someone from the location at Minneapolis-St. Paul airport, Terminal 1 to give me a call.

Several days later they did call, and put me on hold for ten minutes while they searched lost-and-found. They reported back that they did not find my sunglasses. The 10-minute search did cause me to wonder how thorough a search had been performed when I got my first email notice. I was promised a phone call the next day. I did not actually expect to be called back, and I was not disappointed. But I did receive another email confirming my lost item had not been found.

What if I failed to communicate with my clients like this?

Let’s apply this to a legal context with the following hypothetical: A current client calls me with a very small problem. I’m busy, so I don’t answer the phone. He leaves a message, telling me what his small problem is and that if I respond to his message quickly, I can probably solve his small problem quickly and keep it from escalating. But I don’t return his call. It’s not personal; it’s just that I can’t be bothered about it. Not only that, I ignore his next seven calls. I even refuse to answer the phone when he calls the next day. The day after that, he sends me an email, telling me his problem was worsened. Sorry, dude, I’m not going to reply. Got other stuff going on. But even if I didn’t, I’m probably not going to reply.

Days later, he calls my boss telling him about the problem. My boss believes in me, so he reassures my client that I’m a good lawyer and an upstanding guy, and he’s certain that I’m on top of it. But I’m not any of those things. The boss brings the call to my attention, so the next day, I fire off an email, “Sorry. Can’t help.”

More days go by, and my client calls my boss again. And despite all the mounting evidence to the contrary, my boss still believes that I’m not a scoundrel assures the client that I will call him. Then boss tells me to call him. Do I call him? Nope. I don’t call or respond in any way.

You know what happens next in this scenario? My client fires me. Rightfully. Not only is he going to fire me, he’s never going to use me again. And he’s going to do his darnedest to make sure no one he knows does either. He called me with a small problem, which was clearly his fault but which I could have easily solved for him. But I just ignored him altogether and with total indifference. Now his problem is going to cost him money out of his pocket that it otherwise would not have if I could only have been bothered to respond to him in a timely fashion.

When you choose not to communicate with your clients, what you are actually communicating to them is that they and their business are not important to you. I’m sure none of you would ignore your clients like that. But if you were otherwise inclined to, I would implore you not to do that. It’s not nice, and he might just put you on blast to everyone who reads his blog and follows him on social media. Or on your Google reviews. Or to the state bar. You get the idea. Just timely and effectively communicate with your clients. It’s good for everyone.

Photo by Simon Huggins.

19 Mar

Litigation Budgets Should Reflect Reality

Posted by Jeremy W. Richter | Client Management |

Law firms should base their case budgeting processes on real numbers that better enable clients to manage litigation costs and set reserves. Undoubtedly, litigation budgets can change during the course of litigation, but attorneys need to notify their clients as soon as practicable of expected upticks in case expenses and necessary budget increases.

Too often, when preparing litigation budgets for clients, lawyers copy-and-paste a set of numbers from one report to the next without stopping to consider the fees and expenses that may be associated with individual cases. Like many things, budgets require some experience to do well, but they also require attention. Clients need a budget that reflects the reality of a case. When a lawyer flings numbers at a page because he can’t be bothered to evaluate what he expects a case to cost, he does his client (and ultimately himself) a disservice.

How Do Realistic Litigation Budgets Help Your Client?

The Association of Corporate Counsel advises companies that litigation budgets will enable them to:

More closely monitor how the company’s financial resources are being utilized;
Effectively control the costs associated with litigation;
Adapt to unexpected developments in litigation;
Report up the ladder with greater confidence about the status of litigation and expectations for cases;
Establish litigation reserves with greater assurance; and
Anticipate the effects (whether positive or negative) the litigation and its resolution will have on business operations.

What Does an Effective Litigation Budget Include?

In short, everything. Different clients will have different formats in which they want their budgets submitted. But they are largely seeking the same information. Litigation budgets should capture all the billable hours and litigation expenses that you foresee, usually broken down by tasks. Task-based budgeting structures can be valuable for communicating to your clients what hurdles you expect to encounter in particular cases. Some cases are going to be more discovery-intensive or motion-heavy that others. By providing your clients litigation budgets that reflect the reality of your cases, you can clue them in to these expectations early on.

Below is an example of the type of litigation budget you could use for a personal injury case. It includes most of the tasks I usually expect to encounter through the discovery phase of a case. Note: This graph is for demonstrative purposes and does not reflect time spent on any actual cases or billable rates for my firm or me.

Does Your Litigation Budget Reflect Your Client’s Goals?

I’ve written before that you should handle litigation in a way that reflects your client’s goals and objectives; otherwise, even if you achieve positive results, your client is going to have the impression that he isn’t being heard. In the same way, your litigation budgets should reflect how your client likes to handle cases. If they want you to be aggressive with discovery and motion practice, you are likely going to have a higher budget. If the client wants associates and paralegals to do as much work on files as is practical, the budget should reflect that. Litigation budges are an opportunity to communicate to your client that you are on the same page.

Litigation budgets can serve to reinforce the attorney-client relationship when they are done well. But when a budget does not reflect the realities of a case, it can lead to surprise expenses for the client which he is not prepared to undertake. Clients can prepare to deal with higher budgets, but they find it much more difficult to deal with an unexpectedly high legal bill that requires funds to be pulled from other sources. Your client too is operating on a budget. When you provide a trustworthy litigation budget, you enable his business to operate more effectively.

Photo by CafeCredit.

16 Mar

[Appearance] Go Ahead, Let Someone Else Own Your Web Presence

Posted by Jeremy W. Richter | Practice Management |

There are a disproportionate percentage of lawyers are technologically illiterate. The world around us is evolving with increasing rapidity, but many lawyers and law firms are behind the times and making no concerted effort to catch up. In this month’s article in the ABA Journal “Your Voice” feature, I offer three things you must not do in the Age of Technology: Go ahead, let someone else own your web presence (Not!).

15 Mar

Voir Dire Is Hard (A Recent Trial Experience)

Posted by Jeremy W. Richter | Civil Litigation |

[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.

Preparing for the Transition from Associate to Partner

On the Transition from Associate to Partner

Evidence of Collateral Source Payments May Be Admissible to Show Bias (11th Circuit)

Georgia’s Collateral Source Rule

Distinguishing Alabama’s Collateral Source Rule

Admissible Use of Evidence of Collateral Source Payments

Challenge Conventional Approaches to Problems

Reinterpreting David and Goliath

Choosing to Play 4-on-5

Refuse to Play Your Opponent’s Conventional Game

Are Pre-Injury Releases and Waivers Enforceable in Alabama?

Pre-Injury Releases

The Effect of Ambiguity on Releases

Three Ways to Make Sure Your Case Evaluations Are Useful

Provide Reasonable Case Evaluation Ranges

Support Your Case Evaluations with Analysis

Audit Your Case Evaluations for Accuracy

Continually Endeavor to Improve Your Evaluation Skills

[Appearance] Frame Your Daily Tasks in a More Productive Light

Failure to Communicate Can Cost You Clients

What if I failed to communicate with my clients like this?

Litigation Budgets Should Reflect Reality

How Do Realistic Litigation Budgets Help Your Client?

What Does an Effective Litigation Budget Include?

Does Your Litigation Budget Reflect Your Client’s Goals?

[Appearance] Go Ahead, Let Someone Else Own Your Web Presence

Voir Dire Is Hard (A Recent Trial Experience)

The plaintiff goes first

It’s my turn to voir dire the jury

The next day

Don't Want to Miss Anything?

Buy my E-Book for $2.99

Recent Posts

Search the Blog