Pharmacist Liability: Should you Use Foam Boards During an Appellate Argument?

SANCHEZ VS. WAL-MART STORES. On March 2nd, 2009 I used several foam boards to argue a case in front of the Nevada Supreme Court.

The top board explained that for 40 years in 8 Nevada Supreme Court Cases the Court has held that bartenders are not liable to persons injured by drunk customers. The Court's previous analysis was that injuries were not proximately caused by serving drinks. The customer's drinking and driving was a superseding, intervening cause of the injuries. Greg Sanchez was killed by a woman who was a prescription narcotics abuser. Seven Las Vegas pharmacies continued to dispense narcotics to the abuser AFTER notice from a Nevada State Task Force that she had been taking 4500 pain killers over the last few years.

The pharmacies took the position that pharmacists are just like bartenders. They dispense the drugs just like a bartender dispenses drinks. Bartenders are immune from lawsuits thus pharmacists should also be immune for dispensing narcotics to a customer who drives and kills someone.

What I tried to do is use the above foam boards during the Nevada Supreme Court argument to retain bartender immunity while opening the way for pharmacists to be held liable. Basically, I showed that this is not a causation issue. It is a duty issue. Foam boards allowed me to discuss the elephant in the room as part of my opening remarks. The elephant was attached to the main board by velcro. I ripped the elephant off to begin the discussion that pharmacists are not like bartenders. I explained that the previous line of cases from Hamm to Snyder were improperly decided on proximate cause grounds because drinking and driving was not unforeseeable. I went on to explain that this was a duty issue.

As shown in the lower board, I moved the Hamm through Snyder small board up so it was under duty instead of under proximate cause. This allowed me to argue that the Court could determine that there is no bartender's duty to injured persons, thus keeping bartenders immune from liability, while opening the door to show that pharmacists, who have received written notice from the Task Force that the customer is a potential abuser and are regulated by 10-15 statutes and regulations, have a duty to injured 3rd parties. I was able to argue this appeal visually and with no notes because the information was on the foam boards--it was a foam board powerpoint!

This was an issue of first impression in the country. Should the pharmacies bear some responsibility for the death of Greg Sanchez when the pharmacies have actual knowledge that their customer is a prescription abuser? The burden/duty is minimal -- call the abuser's doctor to verify the narcotics prescription or just not fill it.

Use of foam board powerpoints allowed me to create a visual that helped me explain my argument.

Cross selling estate planning - What do you say to a client?

What do you say if a client asks you "Why do I need a trust?"

Here is a script [use CASE acronym]:

The benefits of a trust are:

1-Confidential-your will & property are not public record
2-Age control-you can give 1/3 to your child at 18, 1/2 the balance at 25 and the balance at 30. If you don't have a trust, the child gets it all at 18.
3-Save money-the cost of probate is about 5% of your estate. For about $2,000 you save 5% of the value of your estate because no probate is needed.
4-Estate taxes-if the client is married, there is an estate tax saving.

Tell the client "Trusts and estate planning are not my specialty, but I can have _______ our expert call you & answer your questions?"

What to say to people

When you go to an event, please
DO THE FOLLOWING
1--Have 20 business cards within easy reach (eg shirt pocket or purse). Hand out business cards to the people at the table.
2--find out the names of the other people at the table and get their business cards.
3--Start a conversation by asking them about themselves:
     a--How long have you lived in Las Vegas?
     b--Where are you from?
     c--Why did you move here (or what brought you to LV?)
     d--What kind of work do you do?
4--wear a badge with your name and firm on it. 
5--dress like you are going to a jury trial I.e., 
       Men: wear a suit & tie
       Women: wear jewelry and dress appropriately (this is hard to describe-- court, wedding, etc.)

DO NOT
Sit around very long with friends or co-workers and just talk to them!

AND--NEVER ask women if they are pregnant or "How long before delivery". Ask my friend, Al Marquis, "Why?" for more info on this issue.

What Attorneys Should Tell Their New Secretaries-Part 1

The main reason secretaries don’t do what they are supposed to do is that their boss does not tell them what is expected.

The list below is intended to be updated by you AND YOUR SECRETARY every few months so your secretary knows what you expect.

1. Appointment Calendar. Please keep my calendar up to date.

2. Appointments – I like my Assistant to calendar all matters--personal and business, including appointments, lunches, dinners, reminders etc. You have absolute authority to calendar anything from 9:00 a.m. thru noon and from 1:30 p.m. to 4:00 p.m. on Mondays and Wednesdays. On Friday mornings I like my appointments from 9 to noon only. I prefer lunches to begin at 11:30, but 12:00 is OK. I like appointments about an hour apart, but not for an hour after any court appearance and/or lunch. However, if I have court, the client with the next appointment should be told that I may be delayed. I try to save Tuesdays and Thursdays to do paperwork. Therefore, I like to be asked if I want an appointment set on Tuesday, Thursday and Friday afternoons. I usually will "OK" the appointment, so if I'm not around and the client has to get in to see me, go ahead and make the appointment, but tell the client that you or they will have to call back to confirm. If this is a new client, you should check conflicts before I speak to them. It is embarrassing to start talking to them about their problem only to discover that they are being sued by one of the other attorneys in the office. If I have an appointment with a current client, I like their file pulled prior to the appointment. I would like you to review my calendar 7-14 days ahead (everyday) so you are aware of conflicts (and handle them or ask) and so you can correct matters that have changed. Always confirm appointments on the day of the scheduled appointment and inform me that confirmation has been made. When making appointments, take into consideration where I’ll be and factor in the drive time, i.e., do not make an appointment on the opposite side of town from another appointment. Also, please give me driving directions to each appointment via Google Maps. Better than that, call and get directions from the person I am going to see.

3. Calendaring – When entering anything on my calendar make sure you enter it correctly, using the file number and name. It will be much more convenient for me to keep track of that time without looking up that client’s info.

4. Hearings – Please indicate on my calendar who will attend a hearing when an associate is working with me on a case. If I am to attend alone, just put my initials. If I am attending with the associate, put my initials and the associate’s first name parenthesis. (PSA/Julie W.) Do not use the initials of the associate because I do not know them by their initials. Always write out their full first name and then put the initial of their last name (as seen above). Please also make sure that all the documents to the hearing (Motion, Opposition, Reply) have been previously scanned in the computer and are available.

5. New clients – When calendaring a “new client” consultation, first check conflicts and be sure to put “M&A NEW TIME - PSA” for the file - File # 2-7. Include Attorney Meetings and Shareholder Meetings as File #20-7.

6. Travel – Do not calendar any appointments for me the day before I am to leave on a trip unless I approve of it first. When you have made travel arrangements for me, ask me if I need a rental car. Please ask ahead of time for directions from the Airport to the Hotel. Print out driving directions for me every time using www.maps.google.com. When booking my flight, please input my flight information into my Outlook calendar so that I can see the date and time of departure and arrival ahead of time. I prefer flying Southwest Airlines unless otherwise specified. Please give me my SWA itinerary, boarding pass and hotel itinerary the day before I leave, along with the driving directions to and from the hotel to the airport.

7. Roll Call – When I am going to be out of the office, make sure that it is on roll call. I want the roll call to indicate where I am that day. If I am out for vacation, then it should say “Phil Aurbach – Vac” or if I am at a seminar, mediation, arbitration, deposition… etc then it should say “Phil Aurbach – Out (depo/seminar/med/arb, etc). That way people know where I am that day. Also, send out an email a couple days before I leave to all attorneys letting them know when I will be gone (giving dates) and to please get with me prior to my departure if there is anything they need.

8. Calendaring Things to Review.

a. Include on my Calendar the due date for responses, such as an answer to complaint or response to motion by me or by the other side. I really appreciate the "double check." This lets me know you are watching deadlines for me.

b. When I do something on a file, please ask me for a review date if I don't remember to give you one. Also ask whether I want the file pulled on the review date or just be reminded to review the file and why, e.g. 3/1/96 RV file to see if we received a response to my demand letter, interrogatories, etc. Put this in my calendar.

9. Every day look at each appointment scheduled for the next 7 days and make sure they have not been canceled OR moved, i.e., that they are still valid. If they have been canceled, please be sure, if they are on the group calendar (conference rooms), to take them off as soon as the appointment is canceled in case someone else in the office needs to reserve the room.

10. E-mails - you do not have to respond to every email I send you acknowledging receipt of same. Only respond when there is a question asked or information needed.

11. My Desk. Please check and pick up things from my "OUT BOX" every couple of hours. It makes me feel more organized when my OUT BOX is empty. Also, always bring in a pad and pen when you come in - just in case, for notes or instructions.

12. Telephone Calls. When people call in and ask for me, say: "I'm not sure if he is in the building, may I tell him who is calling? [Then ask] May I tell him what this is regarding?" Also, if they haven’t already told you, ask “who referred you?”

a. If they won't say, but they want me to call them back, you are authorized to then tell them “that Phil sometimes won't return the call if the caller won't give me more information or explain the reason for the call.” And if they only give you there first name (for example: Andy) say, “He knows 5 Andys and I am not supposed to even give him messages if I don’t get 1^st, last name and what its regarding. We have had attorneys in the office who returned calls to someone our client was suing then tried to disqualify us because we spoke to someone who called & didn’t leave their name and what the call was about. I hope you can see why the firm has this policy.”

b. If they tell you what they are calling about and I can't take the call at that moment, tell them that I am on another line or with clients and get the correct spelling of their name and their correct t/p number. It is embarrassing for me to call someone I know and mispronounce their name because I am reading a major spelling error on your phone message e.g. if you tell me Jim Bradshaw called instead of Jim Bradlow. If the caller has left a voice mail message and you are not able to ask for the correct spelling, please indicate in your email message to me that you are not sure of the spelling by indicating with this: (sp?) that way, I’ll be able to indicate I’m not sure of the correct pronunciation. If you come across a hard to pronounce name and it doesn’t sound anything like it is spelled, give me a phonetic spelling of the name. That will help me out also.

13. Tell me when a secretary (instead of the client, attorney, or friend) is on the line. It can be very embarrassing when I say "Hi Jim, has your secretary found out she’s getting fired?" (or something else personal to Jim Bradlow when I pick up the phone) and then I find out it's his secretary on the line waiting ‘til I get on the line to put him through. Let me know if it's a long distance call on the line. I might want to take it even if I'm busy since it would be "on their dime."

When initiating a conference call I like to be the LAST person that you add to the conference. Also, please remember that our phone system only allows the initiating caller to conference in 5 people. Example: You initiate the call to Joe, Tom, Bill, Mike and Bob. This is the max number of people that you can have the call, so it will be impossible for you to conference me into the call; therefore, you must only have 4 people on each call because I will be the 5^th person to be conferenced into the call. If there will be more than 5 people on the conference call, you can use our conference call dial-in system. You will give the participants the toll free number to call at an allocated date and time (1-866-228-9900) then you will give them their guest code to enter. You will then call the toll free number at the allocated date and time and enter the host code. Each person should then be on the line waiting for the call to begin. You can then transfer this call into my office. After using this service you will get an e-mail from the software company. Forward this e-mail with a client number in the subject line to bookkeeping.

14. Timesheets. I enter my own time into our system, but I need you to remind me what came across my desk such as affidavits of mailing, notices of motion etc. Open a “new” email at the start of your day to log incoming/outgoing faxes, drafts of letters and pleadings to help capture as much of my daily billing as possible. Put the file # first, the case name in ( ) and write the entries in, i.e. 1557-22 (Ajax) Receipt and Review fax from Smith regarding confirmation of depositions set for October 4^th and 5^th, 2006. Send this to me at the end of your day in case I forgot to bill for reviewing these matters. Please "bug" me if I procrastinate getting my time into our system. I think you are organized and "watching out for me" when you do this.

15. Notes. I sometimes give verbal instructions. I really like to see you take notes on a yellow or steno pad and then cross off each one as you do it. This makes me feel like you are organized and that you will remember the instruction so I can put it out of my mind.

16. Mailing Boxes/Packages: DO NOT SEND ANY PACKAGES/BOXES I GIVE YOU BY US MAIL. ONLY SEND VIA FED EX OR PRIORITY MAIL.

17. Transcription tapes. I usually like assignments transcribed the same day or by the next day. I feel much more organized when I know my dictation gets typed the same day. I also like you to read the rough drafts and pencil or redline your suggested changes. That is, read for content as well as spelling and grammar. Please proofread and use spell check!!! If I have given you a tape at the end of the day and have told you I need it done before you leave...if you have only spell checked the document and not proofread it, TELL ME THAT on the draft so it won’t bug me while reading the document and I find errors in content, etc.

18. Rough Drafts. I like you to attach exhibits, enclosures, or attachments to the rough draft of letters, affidavits, pleadings, or documents. That way I can double check that we are sending the right exhibits to the right person. The fewer errors, the more confidence I have in my Assistant. Make sure nothing goes out without my initials or signature showing I reviewed it.

19. Use Colored Folders.

a. Green Folders. Review - Put rough drafts you transcribed or other documents that associates have drafted and need to either be revised or initialed by me in a green folder labeled "To do."

b. Red Folder. Urgent correspondence, pleadings or documents should be placed in a red folder labeled "Rush." Put this folder on my chair so I see it when I sit down.

c. Manila Folder. Junk Mail - Open my junk mail and put it in a separate, manila folder labeled "Junk Mail" and don't paperclip it--staple it if you need to attach some of the papers together.

d. Yellow Folder. Mail - Open it and put it in a separate, yellow folder labeled "Mail."

e. Blue Folder. For Signature - I like these placed in a blue folder labeled "For Signature."

f. Purple Folder. Faxes – I would like the faxes that arrive throughout the day stapled and placed in this purple folder for my review. Do not forget to print out the initial fax page that states where the fax is coming from and the date so that you can put the correct file number on it and send it down to billing.

Part 2- What you should tell a new secretary

21. Files.

a. I like my pleadings files organized as shown in the office or secretary manual--only one row of tabs on the side, don't have proof of service as a separate tab, just on the bottom of the particular pleading. I like, if possible, a motion, opposition, and reply to be all in the same file--although I know sometimes this is not possible. Pleadings files should be labeled 1, 2, 3 etc.

b. On the day before a hearing, I like the file pulled, check to see if there is proof of service, and put on my desk. That way I don't panic trying to find a file 5 minutes before court.

c. I get off center if I can't find a file. Usually it's buried on my desk or at my house, so I try not to focus my frustration on my Assistant, but the fewer times this happens, the more I feel that my Assistant is really organized.

d. If a file gets too thick please make another file.

22. Clients. I really like you to know who my clients are and the status of their case. That really impresses me. It usually impresses them and I hear about how great my Assistant is from my clients. This makes me appreciate my Assistant.

23. New Clients. Please check conflicts before setting an appointment for a new client to come in and before you give me a phone message to return a new clients call. If a potential conflict does come back, when you send it to me via email, please say: “On the conflict check for (whomever), So and So came back as a client of M&A for 3 weeks in 1999. The file is currently closed (or open, whatever the case may be). All new clients that come into the office must fill out a New Client Information Form. Please make sure you get any referral information at that time also. (i.e. who referred them to this office). There is a $400.00 fee for Initial Consultations, although I sometimes waive this fee. After conflicts have been checked and a blue sheet has been completed, you must add the new client to my “Current Case List” which should be updated on a weekly basis.

24. Miscellaneous Inquiries and Correspondence. I like a file created called Miscellaneous Inquires- (year) and one called Miscellaneous Correspondence - (year). They should go to the file room at the end of February of the next year and new ones started for January 1, (year). Miscellaneous inquiries should also go on our billing computer as a cross reference in case another attorney starts to take a case for an adversary of the person I met with as a miscellaneous inquiry.

25. Case List. I would like for you to get a status report from each attorney I am supervising.

26. Rolodex. I keep all of my phone Contacts in Outlook. Periodically I will tell you to add or update t/p numbers or addresses of friends, family or other numbers that you might need or I have used in the past.

27. Things to Do List. When things start to get busy, I like you to have a yellow pad "things to do" list so I can go over the priorities periodically.

28. Vacation and Sick Days. Before you go on vacation or if you call in sick, please have someone handle these duties and send me an email or voicemail as to who you picked to:

a. answer my phones,

b. check my email,

c. check my voice mail,

d. check your voice mail,

e. open and sorting my mail,

f. check my calendar, scheduling appointments, etc.

29. Office Manual. Please read the office and secretary manual several times. They contain a lot of useful information.

30. Ask Questions. I am open to questions; even ones you might think are too trivial. I would rather spend the time to do things right the first time.

31. Helping Others. I appreciate it when you help other secretaries in the office. If you think there will be a conflict in getting my high priority work done as well as the other attorneys' work, please come discuss this with me so I can talk to the other attorney and he or she and I can prioritize our work.

32. Nose to the Grindstone. I get irritated when I perceive (whether based on the true facts or assumptions) that my Assistant is making too many personal phone calls or is having frequent and extended personal conversations with other co-workers. I will usually say “lets get back to work” before I come unglued.

33. Priorities. When things in the office get busy or I am preparing for trial, etc., I prefer my IN BOX to only contain P1s and P2s. All P3s should be kept at your desk until things slow down or I have a moment to review them.

34. Being out of the Office for Appointments, etc. Please send me an email that you are leaving for the afternoon or that you will be gone for awhile for a doctor/dentist appointment, etc. Do not assume that just because it was on Roll Call for that day I have seen that information. That, plus it is easy with so much going on during the day that I may have forgotten you have the appointment and need to be reminded. If your appointment is in the early morning and you will be in late, please call the receptionist and have her send me an email reminding me that you will be in late.

35. I like my secretary to be at her desk. If you have to be away from your desk for any extended length of time (to send a fax, meet a client in the lobby, etc.), please email me where you are going. Have the runners do as much of your large copy jobs and faxes as needed.

36. Following up. There is always follow up to do on files whether for Mediation/Arbitration which requires retainer fees, agreement execution, exhibit production, general compliance pursuant to agreement. Keep a tickle system to make sure all the follow ups are being met.

37. Naming Documents: When naming documents, I like the year-mo-day then whose document (not plaintiff or defendant-use their names) then the name of the document, e.g., 2009-03-14 Jones Motion to Consolidate.

38. New Duties. Let me know if you come across some things that I do or do not like so I can update this list periodically.

Don't Kiss Butt

Don't Kiss Butt. This is opposite of Nike's infamous slogan "Just Do It." If you are overly friendly, as if you are the shareholder/partner’s new best friend, when in fact you just met him or her, your friendliness will be interpreted as butt kissing, even though that is not how it was intended. Remember, in all of your communications, it is not your intended message which matters, it is how your message is received. Be clear on what is important—doing quality legal work is the most impressive thing you can do from a shareholder/partner’s perspective. Respecting that shareholder/partner is the second thing. This means being quiet when the shareholder/partner speaks i.e., not trying to speak over him or her; telling him or her that you appreciate constructive feedback, even if your pride is hurt; and executing the tasks you are given in a thorough and efficient manner. Here is a tip: Argue with the Shareholder from the outside. Instead of saying, "we will lose the Motion for Summary Judgment because there are factual issues about whether the light was red or green," say it like this, "What is the opposing attorney [or judge] claims there are issues of fact about whether the light was red or green." You will find the response and attitude of the Shareholder will be night and day depending on how the issue is presented.

How to be a Lawyer with Integrity

Practice Law with Integrity. What is integrity? Integrity is more than honesty. Integrity is a conclusion that others reach when your words, actions and values are aligned. For example, honesty is a value. Most people, of course, want to be perceived as honest. If your goal is to win, even if it means lying, cheating, or stealing, you may win in the short term, but you will not win in the long term and your reputation will suffer. Most attorneys are not that blatant. Some attorneys will shade the truth just enough to defeat summary judgment or answer interrogatories vaguely. Do those attorneys win in the short run? Sometimes. Do their adversaries recognize what is happening and remember? Of course. You do not want to develop this type of reputation. Once tainted, your reputation is difficult to re-establish.

What to Say to People You Meet

Know What to Say to Potential Clients--memorize a script. What do you say when someone asks you “What kind of law do you practice?” Or “What is your specialty?” This 3 to 10 seconds might be the most important words you speak in terms of client development. You want to differentiate yourself from other attorneys and leave the person with a memory that will stick with them. For example, “I work on contracts and real estate matters including litigation involving contracts and real estate. In addition, we have over 30 attorneys in the office and can handle most everything. What line of work are you in? Who is your attorney?” People like to talk about themselves so ask questions like “How long have you lived in Las Vegas? How did you get into that line of work? How do you handle the growth in your business in terms of [managing people i.e., hiring, firing basically HR issues--see if there is work for our employment dept] “How much space does your company occupy and where are you located? [see if there is lease work for our transactional dept], “Do you have a will and trust? [see if there is any work for our estate planning dept] and if they don’t have a trust, ask “Do you know why trusts are so popular?” Then tell them, “Trusts save you the costs of probating your assets--no attorneys or court fees, they are totally confidential because there are no public documents filed with the court listing all of your assets, you can give money to your kids in increments when they are 21, 25, 30 or more instead of the kids getting all of the assets at age 18, you can sell property after someone dies without a court order, and finally you can save federal estate taxes.”

How to be a Good Attorney-Develop an Area of Expertise

Develop an Area of Expertise. Work toward an area of expertise. It is almost impossible to be a general practitioner these days. To name a few, estate planning is very different than corporate work which is different than transactional work which is way different than litigation. In litigation, there are many specialties such as real estate law, bankruptcy, personal injury, etc. If you like working on homeowner association work (i.e., forming them, drafting CC&R’s, representing property mangers or boards of directors in general or special elections, etc.), then learn as much as you can in that area. Study the statutes. Study the cases. Study the psychology of group decision making. Everything you learn is like adding more and more heat to a pot of water. At 211 degrees, not much visible happens. All you have is hot water. When you really learn an area of the law, it is like water that reaches 212 degrees and the steam that is produced has the ability to power a locomotive or a generator, you will develop ability, skills and confidence.

How to Deal with Opposing Counsel

How to Deal with Opposing Counsel. Most attorneys need to learn how to "recognize" instead of "respond" to opposing counsel's tactics. At some time in every attorney's career, he or she will be in a heated exchange with opposing counsel. Tempers flare and the stress level reaches a boiling point. All of this can be avoided simply by recognizing what is happening. When you feel your stomach churning and the anger welling up inside, a neon light should flash in your mind. Usually one of two things is happening: Opposing counsel interrupts you and does not allow you to finish, or opposing counsel makes a personal attack on you.

It is easy to deal with counsel who interrupt you. First, you must recognize what is happening. Then, you must realize that opposing counsel probably doesn't even know he is engaging in such obnoxious behavior. When you feel anger begin to brew during your discussions with opposing counsel, do not respond with anger. Once you recognize the source of your anger is opposing counsel's rude and interruptive behavior, calmly explain to him that he is interrupting you and that you are not being allowed to finish what you are saying. In most cases this will be sufficient.

However, there are many attorneys who still do not realize what they are doing, even after being told. You must then use more forceful tactics to get your point across. A useful technique is to tell opposing counsel (after he has interrupted for the third time): "Tell me when you are through so I can tell you my position without being interrupted." Then every time he interrupts, you say, "You are interrupting me. Why don't you let me finish? I allowed you to completely state your position and it's only fair that you do the same for me." Remember, the bottom line is that the attorney who constantly interrupts does not realize that he is being so obnoxious. Therefore, you must constantly remind him that he is interrupting you. This can be accomplished in a calm, controlled way without using any derogatory language. It is only through this approach that you will be able to educate counsel and allow him to alter his conduct with dignity.

When opposing counsel makes a personal attack, your feelings of anger are the same as when you are interrupted. However, the remedy is not as easy. Opposing counsel's words or body language may clearly indicate "you are wrong." This attorney is allowing his ego to get in the way of effective communication. He wants to show you that he is right and you are wrong. Most attorneys' responses are extremely defensive. Nobody likes to be told that they are wrong by words or by shaking of the head and a sigh, as if you just came out of the psychiatric ward. The first order of business is to recognize (instead of respond) to the personal attack. When you feel anger beginning to overcome your normally calm personality, that same neon light should make you stop and recognize what is happening.

Once you recognize the reason for your anger, you need to determine the exact basis of the personal attack. For example, you and opposing counsel may disagree on what documents an expert may be required to produce. When this breaks down into name-calling because "you aren't bright enough to know the rules," or that your opinion is unprofessional or unrealistic, you must quickly focus on the exact nature of the disagreement. Then, you must do two things.

First, tell counsel in no uncertain terms that "I do not appreciate your personal attack on me. There is no reason to attack me personally because we disagree." You must tell counsel that "We clearly have a difference of opinion regarding what documents the expert is required to bring. Let me make sure I understand your position. It is your belief that the expert is not required to bring the documents that we have been discussing and I believe he can. We will let the judge resolve that dispute. However, just because we disagree, that is no reason for you to personally attack me."

Then attempt to determine what issues you can agree upon. At the very least, you and opposing counsel can crystallize your positions, i.e., determine whether you disagree and the basis of each of your theories. It may be that once you are fully informed of the basis of opposing counsel's objections, you will agree with him. It is much more difficult to accept the validity of opposing counsel's point of view if he has made a personal attack upon you, especially if your response escalated the attack. It is a waste of time to defend your position just because your ego is involved. However, dealing with this personal attack in a way that recognizes what it is and precisely focuses on the dispute that caused the attack will greatly assist you in resolving the dispute in a calm, stress-free manner. Many attorneys feel that interruptions and personal attacks are what lawyers are supposed to do. These attorneys have had the wrong role models. Life is too short to unnecessarily add to an already stressful profession.

Here is a tip:

Assume that opposing counsel will not agree with anything that you want or do. If you expect opposing counsel to agree to a reasonable request, you will be disappointed 80-90% of the time. Why not assume opposing counsel will reject your proposals, ideas and settlement terms. If they agree--great. If you assume their only purpose in life is to see if you are tenacious enough to press the case to trial, then your expectations will never be crushed and you will not get angry. Assume opposing counsel knows their client has no defense to your case and that the only thing they can do for their client is to see if you will get tired of their roadblocks, hurdles and insults. Many attorneys are motivated at the beginning of a case, but after 4-8 months, their attention is drawn to another case and they hope you will go away. Make a call, wait a day or two, then write a letter, wait a day or two, then file a motion. Assume you have to follow that procedure EVERY TIME. If you get an agreement on an issue, don’t assume that opposing counsel is your new best friend. Instead, assume that you will meet with the same opposition on every other issue. Be polite but move the case forward.

You Can't Play Chess Without Knowing the Rules

Know the Rules. Practicing law is like playing chess. You must know the rules to decide which of your pieces you will move, in what direction to move them, and what your responses are to an opponent’s move. A person who does not know the rules should never go up against even a beginner chess player who knows the rules. The same goes for litigation. You must know the NRCP, and the EDCR--that means having read them over and over and basically knowing all of them. If you don’t memorize them, you will learn them the hard way. From a transaction standpoint, understanding the law insures that your client is adequately protected. For example, if you are a tenant on a ground lease, knowing that you want to record a memorandum of lease. If you represent a lender, understanding lien rights is critical. If you represent a landlord, documenting your rights and remedies may determine how quickly you can evict a tenant (e.g. if you can evict a tenant on five days statutory notice, but your lease requires a minimum of thirty days notice, you have failed to provide the landlord the maximum protections afforded by statute).

Keeping Your Supervisor Advised of the Case Status

Keep the supervising shareholder advised as to the status of the case. Many young associates do not grasp the significance of this rule because its breach is not within their life experiences--yet. Imagine being organized. Having your day planned. You are expecting to get through 10 matters on your desk. Then you get a phone call. Your associate is sick. There is a hearing on calendar. The associate was supposed to prepare for and attend this hearing. The client who has a lot at stake will be at the hearing. You drop everything and run to the hearing. On the way to the hearing you realize that you know virtually nothing about the case. What you do know is that the client will be livid if you ask for a continuance. You do your best at the hearing. When you come back to the office, how do you think you will feel about not being kept advised about the case? Warm and fuzzy?

What if there was no hearing, but you run into the client or the client calls you and says, “What the heck is going on in my case?” Do you think you will have similar feelings? How do you think the shareholder feels if he or she wakes up in a cold sweat when the case floats from the subconscious to the conscious at 2:00 a.m. and wonders if the complaint was filed before the statute of limitations ran or whether the expert was named before the deadline ran?

If, however, you keep the shareholder advised, and you periodically ask his or her opinion about something related to the case, you will make the shareholder feel important, you will have a double check in case you have unknowingly committed malpractice or violated an ethical duty and you will prevent the shareholders from developing associate-induced ulcers or insomnia.

When you need to update me, write your updates emails like Points and Authorities. Tell me the point up front, then walk me through the details. Otherwise, I have to read to the end of your email to see that you are telling me that Smith's attorney, sent you the invoice we think our client needs to get reimbursed from her insurance company for the mold issues. Then tell me the details -- so I don't have to read all of the details if I understand.
A better way to keep me updated is to send the shareholder a copy of such an email to our client--so you bill once for giving me and the client an update. This avoids double billing the client or not billing for time spent giving me an update after you have updated the client.

How to Bill More than 2000 Hours per Year

How to Bill More Than 2000 Hours a Year. You will be more than noticed--you will stand out if you surpass this goal. It sends several messages to the partners/shareholders: This associate cares enough about our clients to work hard moving the cases forward. It also communicates that this associate does not abandon a client just because it’s 5:00 P.M. Make no mistake it’s not about the hours! It is about client commitment. The associate who bills a lot of hours but fails to move his or her cases forward also gets noticed for the wrong reasons. Send the partner/shareholder that is responsible for the case a rough draft of letters to the client until the shareholder has enough confidence in you that he or she says, “Stop sending all those to me.” That means only send them when something important happens. Usually an associate needs to practice law for 2-3 years before he or she knows how to differentiate what is important from what is not important. Here are some tips to move cases forward which will indirectly cause you to bill more than 2000 hours a year:

a. Keep the Client Advised of the Status of the Case. There are 4 types of letters/emails that MUST be written to clients covering the following topics:

(1) Confirmation Letters/emails. There is a time for a telephone call and a time for a letter. Discuss alternatives with clients, but confirm in writing their choices and any contrary advice you may have given. Discuss personal and sincere efforts to get discovery from opposing counsel, but confirm the result in writing. Discuss settlement terms with opposing counsel, but confirm the bullet points in writing. Always be honest; only confirm what was actually said.

(2) Cover letters/emails. Send a cover letter explaining ANYTHING you send to the client, and the client should get a copy of everything. This gives the client an idea of the work that is being done on the case and its purpose. It is absolutely essential that you explain what you are enclosing. For example, “I have enclosed Interrogatories which I have attempted to answer. Please complete the answers and fax your changes back to me so I can review them and finalize the document. To avoid additional cost to you, I need to finalize them within 30 days. Otherwise, the opposing counsel will write letters and file motions asking that we be ordered to answer or lose the case. We will be required to respond to opposing counsel and this increases the cost to you.”

(3) Status Letters/emails. At least once a month write a letter telling the client what is happening--even if nothing is happening.

(4) Crossroad Letters/emails. Whenever possible, explain the alternatives in your status letter/email Use the ACUP acronym to remember what goes in a crossroad letter.

i. the Alternatives for the client to choose,

ii. the Cost of each alternative,

iii. the Upside and downside of each alternative, i.e., the risk and reward of each alternative, and

iv. the Probability of success of each alternative.

v. For example: “We could file a motion for summary judgment or wait for a trial setting. A motion for summary judgment explains to the judge that the case is so clear that there is no need for a trial--a decision should be made immediately in our favor. This will cost approximately $1,000 to $3,000. The probability of success is low, but it will force the other side to respond with theories of their case and this will help us prepare for trial. If we wait for trial, you will save $1,000 to $3,000, but we may be surprised by something they bring up at trial. The riskier approach is to do nothing, but this is a checkbook issue that you need to decide."

vi. For transactional attorneys, it can be disappointing to everyone if a transaction does not close. However, your job is to protect the client by explaining the risks so the client can make an informed decision whether the risk outweighs the reward. You should explain it verbally and follow it up in writing, and to let the client evaluate that risk. Then, call the client after they receive the letter and discuss these alternatives. Confirm in writing the client’s choice.

b. Keep a current list of all of your active cases on your desk. Before you leave each day, look at the list and see if you failed to perform any necessary tasks and if you remembered to bill clients for work you did for them that day. Then bill the time you forgot to record.

c. Take clients’ calls immediately if at all possible. Otherwise, return the client’s phone calls the same day or the next day at the latest. This is how you let the client know he or she is important to you. Write down your time for all telephone calls.

Improve Your Listening Skills

Be a Good Listener. When you listen correctly, you send a clear message to the speaker that you understand them. When people are understood, tension and arguments end.
a. Bad listeners can be placed in 5 general categories:
(1) Identifiers-stop listening and usually interrupts because they can't wait to tell you their similar experience;
(2) Derailer-changes the subject too soon. This shows that they are not interested in what you are saying;
(3) Filterer-hears only what they want to hear;
(4) Sparer-hears what is said, but quickly belittles it or discounts it;
(5) Placater-agrees with everything they hear just to be nice or avoid conflict.
b. Good listeners. There are 4 ways to listen to a client (or a significant other, supervisor, secretary, etc.) and each is better than the other:
(1) Be quiet. Although being quiet and not interrupting shows respect for the speaker, it is the least effective listening technique. When you are just being quiet, you are usually formulating responses or arguments to prove that you are right and the speaker is wrong instead of sending a message to the speaker that what the speaker has said is important even if you disagree.
(2) Repeat back word for word what was said. A better method than to remain silent is to repeat back to the speaker in his or her own words what he or she has told you. For example, if someone says “I went to Sally’s house to tell her about Fred. I then went to tell Tina”, you should say “Oh, you drove to Sally’s then to Tina’s house.” This sends a message to the speaker that you understood what they were trying to say. If the speaker says “right” or “exactly” or similar words, you have some immediate feedback that the speaker feels understood.
(3) Repeat back a summary. An even better technique is to repeat a summary of what the speaker has said. Continuing with this example, you should say “Oh, you visited some friends?” It takes effort to concentrate enough to make mental notes and repeat back a summary. This is sensed by the speaker and the message that is sent to the speaker is that you are really listening.
(4) Reflect back the emotions. The best listening technique is to decide what emotion the speaker is experiencing and show that you understand by saying, "You were so mad at Fred that you told Sally and Tina?” Or, “So you were embarrassed when..." or "That must have made you nervous..." or "I'll bet you were really scared when...." If you could train yourself to repeat what the speaker says in a questioning manner, the speaker will believe that you are interested in what he or she has to say. For example: "Guess what, Mom! The cigarette lighter won't light the grass on fire if the grass is green!" Mom's typical response is to come unglued and rant about using the cigarette lighter. Another response that fosters communication would be: "You were trying to light the grass on fire with the cigarette lighter?" and "The green grass wouldn't light? Did you have permission to use the cigarette lighter?" In this example, nodding and repeating a summary of what your child said gives the child the feeling that he or she is really being understood. Such active listening fosters communication rather than stifling the discussion in a dictatorial manner.

How to be a good attorney-know your client's goals.

How to Determine Your Client's Goals. The easiest way is to ask, "What is your objective?" It is dangerous to assume you know what the best outcome is for your client. In a transaction, usually both the seller and the buyer (or the lender and the borrower of the landlord and the tenant, etc.) want the deal to close. However, at what cost? Understanding what the client wants (and/or needs) will help you negotiate. For example, if a client must close a transaction to obtain tax-related benefits, the “need to close” drives the deal. Contrast this with a seller who has a valuable piece of property and is only willing to sell on exceptionally favorable terms. Knowing what the client wants (and/or needs) insures that you will negotiate and document the transaction correctly. With regard to litigation, plaintiffs usually want money, property or an injunction. Defendants want to prevent the plaintiff from obtaining that relief.

Articles about Phil

ARTICLES

Phil Aurbach: Attorney by Day, Inventor by Night
https://vegasinc.lasvegassun.com/news/2011/apr/18/attorney-phil-aurbach-scores-big-serves-ace/

Phil Had a Score to Settle
https://lasvegassun.com/news/2008/aug/21/he-had-score-settle/

Hennessy Foundation Hosts Leadership Breakfast With Attorney Phil Aurbach 
http://foundation.vegastennis.com/getarticlescreen.event?id=100063358

Nevada Supreme Court upholds Phil's Client's $5M Judgment for Breach of Contract against Health Insurance Company
https://lasvegassun.com/news/2004/nov/23/insurer-loses-appeal-of-arbitration/

Las Vegas Review Journal: Nevadans at work
http://www.reviewjournal.com/lvrj_home/2004/Sep-26-Sun-2004/business/24816282.html

Phil Represents Receiver for Harley Harmon Mortgage

https://lasvegassun.com/news/1998/mar/31/judge-sets-fees-for-receiver-in-harmon-investment-/

Phil's Law Firm
MARQUIS AURBACH

www.maclaw.com

Leigh Aurbach
https://lasvegassun.com/news/2003/mar/25/gown-center-organization-collects-donated-dresses-/

https://lasvegassun.com/news/2006/mar/20/letter-focus-on-real-tragedy---neglected-children/

https://lasvegassun.com/news/2008/nov/12/chamber-announces-leadership-program-participants/

Phil & Leigh buy the first Smart Car in America
http://www.zapworld.com/node/590