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.