1. law, govt and politics

Young Lawyer's Survival Guide:
How to Build a Successful Practice and Retire those Student Loans
Preface
It is ever more challenging for lawyers to find a secure source of income. Fewer and
fewer law school graduates obtain employment within the first nine months after graduating.
For those who manage to find employment, after a year or two on the job, they come to realize
that having a boss is either too stressful or financially oppressive (sometimes both). The vast
number of lawyers will be confronted at some point with the need to build their own practice.
Some lawyers, indeed most people, still believe in the myth that starting one's own
business is risky. "At least with a job, you get a guaranteed check." The opposite couldn't be
more true. If you have 20 clients, and 2 fire you (maybe they ran out of money and couldn't
afford you anymore), you still have 18 others and enough work to get you by. But if you have
one job at one firm and you lose it (for any reason or no reason at all), you are in a jam! As hard
as it is to get over the "It's risky" myth, you need to. Once you are established and see how this
works, there is no turning back… provided you learn and obey the skills shared in this short
book.
This book is not aimed toward making the process sound easy, although it is not all that
difficult. Instead, the aim is to impart upon young attorneys information concerning what it
takes to succeed, where the risks are, how to minimize those risks, and how to recognize and
adapt to current trends in the practice of law which are driven by technology.
Many people chose law to make a lot of money. When you decided to become a lawyer,
what, in your mind, did the "future you" look like? Part of this book's purpose is to dispel the
myth that the legal profession is overflowing with easy money and opulence. In fact, you
probably have already experienced the "law school let-down." Surely, you don't need advice
which heaps despair onto disappointment. Do not worry. This book does not do that.
The fact is this: Despite growing feelings of despair and anxiety over whether your
choice of law was worth it, building a successful law practice is not all that hard to do. Law
school teaches young people how to think like lawyers. It does not teach you how to think like
business people. The despair most young lawyers feel is because they spent $150,000 to get an
education and do not have a clue on how to use that education and turn it into a source of
income.
This book contains a mix of advice. Some of the advice applies to all forms of business,
while some is specific to the practice of law. You should take special care when reading the
advice that is not specific to the law. Here is the deal: You spent three years learning how to
think like a lawyer and apply legal principles. If this book was more of that, it would be an utter
waste. Obviously, three years of education to think like a lawyer is sufficient to think like a
lawyer, notwithstanding that most young lawyers might have their doubts. Maybe one of those
law school years, or even a semester, should have been dedicated to survival in the marketplace.
Because law school gave no attention to this subject, it cannot be over-emphasized: You should
take special care when reading the advice that is not specific to the law. This is a key ingredient
to everyone's success - not just the success of lawyers.
What this book is not: This book is not a "proof." It is designed to be concise and one
which can be read in a single session. Citations to proof and recitals of statistics cannot be found
here. If you need confirmation of any claim made herein, you can do your own homework.
This book promises only one thing. It contains the information you need to get a solid
start. With this foundation in place and in practice, you will find, through experience and
hindsight, that it is not that difficult to earn $100,000 or more per year while working only a few
hours a day. From there, you are on your own, and you can steer your practice in the direction
that best suits you - whether you want an easy life, or whether you are obsessed with making
vastly more money and want to do what it takes to become rich.
2
Post-Preface
About the Author
These "pointers and tips" books are not as valuable to the readers unless they know
something about the author. Was the author born with a silver spoon? Is he some sort of
genius? Did anyone pay his way? Maybe he was unusually lucky.
If you are in a state of despair over seeing your potential dream evaporate, I was you 20
years ago. I was in my third semester at the University of Texas, School of Law. I hated it. I
was in despair. I was racking up student loans. I was in the bottom half. Everyone knew by
then that students like me were not going to be employed when they graduated.
I had other talents. One was computer programming. I liked it and was good at it. I was
doing it part-time for $12 an hour. I probably could have obtained higher pay as a programmer
approximating $15 per hour. Over time, I could have probably earned substantially more; yet,
the top law students were lucky to get $45k jobs upon graduation. Law did not look very good in
comparison to computer programming, which I was enjoying.
I told everyone, "I'm done." I stopped going to classes. I did not go for six weeks. Exam
time came. I told myself, "Self, what the heck. Go take the exams. If you fail, you're not
coming back anyway, so what's it matter? Why burn a bridge? The holiday break is coming."
I showed up. My classmates were shocked. "Wow, Jeff! What happened to you?
Where have you been?" I told them I was done but explained why I showed up anyway.
I took the exams. I made C minuses, up to B's. "Holy cow! This, I can do! I'll just coast
through and skip whenever I don't feel like going." So, I went. I did not skip as much, but I
skipped regularly. I stopped taking notes altogether. I was the only one in the class who just sat
back and listened. I would read as much as I wanted and no more. I stopped worrying about
trying so hard like I used to do.
I graduated. I obtained my license. The rest is history. It has been a good life compared
to all the suffering I see among so many lawyers. I suffered during some small episodes. But all
and all, it has been an easier life than I ever could have hoped, with typical pay over $100k a
year working an average of a few hours a day (2 or 3 hours). The rest is just time I burn on
hobbies or piddling around. This was not handed to me. I had to go out and make it happen. It
was not as hard as I had been thinking back in the days of despair. Had I known then what I
know now, I would have not been so afraid to go solo.
I worked as an associate for six years. The final push to go solo was not of my own
making. It took my getting laid-off with debt galore and $4,000 in the bank. Putting my
desperation before my pride, I then learned, after calling Uncle Sam, that the maximum
unemployment benefit back then was about $950 a month. I was forced to swim and learned
how. By the way, I never took a dime of unemployment.
3
And to think... I was a hair's width from dropping out of law school because I did not
think I would ever get that $50,000 job!
4
Chapter 1
$100,000+ per Year Working only a Few Hours a Day: LOL!!!
"LOL!!!" This is a typical reaction of a young, directionless or undisciplined lawyer
who has no clue how the business of law works. The first point of order is to get over this
disbelief and transform "LOL" into "AAMOF."
What have you heard about the going rates charged for young lawyers, 3-year attorneys
and 5-year attorneys? Probably somewhere around $200, $250 and $300 per hour, respectively.
If you have reason to doubt these rates are really being charged, then, you should go to
your local courthouse. Find the clerk for one of the judges and ask him if he can steer you to a
case file you can see, where a lawyer attached an affidavit in support of a claim for attorney's
fees. This can be a collection case. Most typically, you will find these affidavits in collections
cases where default judgments are rendered. Read the affidavit. Find a few more files and
repeat the process. Ask the clerk if attorneys charge these rates. Ask other lawyers. You'll
have to conclude it is true. They do.
"Okay," you say, "but they give many more hours of their time and bill for fewer hours."
This is often true. This is where the rub lies. There are hoards of attorneys out there who just
cannot bill for all their time. Sometimes, this is a mental block because a lawyer is incapable of
believing he actually deserves that kind of money. Sometimes, the lawyer just cannot believe
clients will pay these rates. Sometimes, it is a calculated practice because the lawyer knows the
client cannot afford to pay for all the time the lawyer must spend on a case. The previous three
examples are prevalent out there in the market. The first two are not justifiable. They only
reveal the lawyer's lack of self-confidence. The third is a reality in many cases. You will have
to deal with it, but you can minimize this reality and maximize your income by following some
basic guidelines which are discussed later. For one thing, the area of law you practice dictates
how much of your time you will wind up "giving away." (More on this later).
So, we need to first just go with the assumption, for now, that, "Yes, you can charge for
and be paid at the going rate for all your time." Now, it is time for some easy math.
There are 40 work hours in a week. There are 52 weeks in a year. We can deduct two
weeks for vacation and round down to 50 weeks. This leaves 2,000 hours in a year. At $200
per hour, this is $400,000 per year. It is a dream come true! But you know, and I know, and
you know I know, getting to the point of billing and collecting $400,000 a year is not just a
dream come true; it is not easy to do. There is an attorney glut out there in many respects. It is
difficult to find enough clients to achieve eight billable, collectible hours every day. However,
it should not be much of a problem to procure enough clients to afford a mere two hours a day.
This book promised advice on how to earn up to $100,000+ per year while working only a few
hours a day. Two hours a day, billed and collected, will get you $100,000.
"Well," you say, "if all that is involved is working four times as much, I'll work eight
hours and earn $400,000!" Some attorneys are fortunate and can do that. This book is designed
5
for the more typical experience. We need to focus on the first $100,000. After that, you are set,
and you do not need book advice anymore.
In short, if you learned anything from this tiny chapter, the following points should be
burned solidly into your psyche if you are going to succeed financially.
a.
Yes, you are worth the going rate.
b.
Do NOT try to be a cheap or inexpensive attorney - not even on the pipe-dream of
getting volume.
c.
Bill for all of your time when you can.
d.
You can bill for all of your time when:
i.
your work was as efficient as that which the client could get out of an
experienced attorney, and
ii.
your client can afford to pay it without undue sticker shock (a little sticker
shock is okay).
6
Chapter 2
How Do I Get My Clients?
By being a prepared and confident attorney. Until then, clients are irrelevant. So, this
chapter was named in a deliberately misleading way in order to impress upon you that losing
clients is much easier than keeping them. In order to keep them, you need to deliver
competence and efficiency. This cannot be over-emphasized. This chapter focuses on
efficiency. The next chapter discusses competence.
The law practice delivers personal services. For that reason, attorneys are in a unique
situation. You can charge $200, $300 and higher hourly rates with no inventories, minimal
equipment, and almost no overhead.
But wait! We need office space. We need receptionists and legal assistants. We need
copiers as big as Volkswagens. We are attorneys. This is what attorneys do.
This is part of the "entitlement myth" under which so many attorneys suffer. If you want
to guarantee failure, go out right this minute, sign a 3-year lease, get a big copier and hire a legal
assistant. Good luck with that. While you are at it, run some ads that cost you $1,500 per
month. You will be broke before you know it. You will be back to blasting out resumes for a JO-B, and you will think, "Well, I guess I'm just not cut-out to build my own practice."
In the market - the brutal market where supply and demand rule - lawyers are not entitled
to anything. They have to figure out what customers want. A client comes to you for your
service. He might be a contractor who built a building and the owner refused to pay his final
draw of $24,000. This has put him in a pinch. He needs you to help him collect.
Does he care whether you have a receptionist? Why of course, he does! When he dials
your number, the odds are pretty slim he wants to talk to you. He is more interested in how your
receptionist's kids performed in the school play.
Get over it. Receptionists are expensive ego-strokers for lawyers. Clients do not care if
you have one, and in fact, they would probably rather you did not. That way, they know their
calls are not being filtered. When they dial the number, the person they want to talk to is the
person who answers… you! That's service!
You are meeting demand by not taking on unnecessary overhead. A receptionist/legal
assistant will probably cost you $2,400 per month. At $200 per hour, that is 12 hours you have
to work to pay for him or her. Back in the days of old, typing was considered a special skill.
These days, typing is a universal skill. The market knows this. Efficiency is the name of the
game. The job of legal assistant will soon be listed among endangered species. You cannot give
away six days of your work to stroke your ego and try to use a receptionist as a means to
convince clients that this little status symbol means you are successful. This six hours is almost
30% of your monthly goal at two hours per day. Do not waste it.
7
If you think in terms of $200 per hour times eight hours per day, the outlaw for a
receptionist or legal assistant sounds tiny in the grand scheme, but remember there is an attorney
glut out there. You are not likely to find eight billable, collectable hours every day. Consider
the fact that most who are reading this book would dream of making even $100,000 per year.
This includes veteran attorneys who have many years of experience. This goal involves only two
hours per day. And this is your dream! Think about that. Think about it until it burns the
myth right out of your head. Attorneys everywhere are struggling to find two hours per day to
bill and collect. Do not base your foundational plan on more than two hours per day.
The 12 hours you waste on a receptionist - who only gets in the way of client satisfaction
- is costing you almost one-third of your goal. This book is about setting a foundation to make
good money. Set the foundation first, and if later, you have enough money to stroke your ego,
then, hire staff. But unless you are extremely busy and really need the help (hint: you must be
making $350k to be that busy) do not say you were not told how wasteful and destructive egos
can be.
"O.K. I'll work by my lonesome in a nice office somewhere." If you cannot predict
where this book is going next, you are not getting it yet… but you will.
What do you need to do your job? You need a brain, a computer, a phone, a fax and a
small cache of office supplies. Did "office" make that list? Far too many attorneys are so fixed
inside the "entitlement mentality" that they just cannot imagine the humility of practicing from
home and being mobile and "on the go." Too bad. This, again, is a number-one reason why
lawyers cannot succeed in starting a practice from scratch. Get over the ego. There are ways to
deal with it and hide the shame from the client.
Be confident when you have to tell a prospective client you do not have an office in some
office building somewhere. When they ask, "Where do you office?," tell them something like
this:
My practice keeps me moving so much, from clients' places of business, to the
courthouse, to mediations, etc., that I couldn't justify paying for an office when
I'm not there barely 1/2 the time. If I am at home and a client needs a motion
right away, I can just do it right then and there. It's better than having to hop in a
car, fight traffic, and all that jazz. I just meet clients at their places of business, or
if they prefer, at a restaurant. I love meeting clients over a meal or a cup of
coffee. It gets me out and about.
You would be surprised at how many clients say, "Okay, when can we meet?" They
want to talk more about their case and what you can do to help. They are far less interested in
your justification for not paying rent for an office that you do not need.
The same goes for legal assistants. Tell the client:
Attorneys get paid these hourly rates to put out top-quality legal documents which
are precise. Can you imagine how frustrating it is to have non-lawyers putting
8
legal language into my documents? They never do it right, and I wind up doing it
myself. The only people using legal assistants these days must not know how to
use computers. That's all I can think of. Either that, or they can justify gouging
you with higher bills with all that overhead you'll see over there.
Back to the topic offices. Even the most basic office arrangement these days comes at a
cost of at least $1,000 per month. This is another five hours at $200 an hour. Based on our two
hours/day goal, you just saved another two and one-half days of waste. If you need a conference
room for a deposition, take it at opposing counsel's office or call another attorney who will let
you borrow his for a couple of hours.
Add to this your phone. If you are going to have a formal office, who here figures on a
single phone line? "That's not what attorneys do. You need at least 2 phone lines - maybe 3."
Yeah, right. What you need is a cell phone. How could it possibly be better for you or the
client that you would have multiple phone numbers and have to check your messages at multiple
places? Just give them your cell number and be done with it. This is your "office number."
By not having an office, you can also avoid having to pay for a business internet
connection, in addition to the one you already have at home. Not only that, you might as well
figure at least $100 per month in gas saved from not going back and forth from your home to an
office. You just saved another $400 per month. This accounts for yet another billable day.
So, between the receptionist we did not hire, the office we did not rent, the phone lines
and internet service we did not subscribe to, and the gas, this comes to nine and one-half days
(out of the 21 working days per month) of your having to work to pay everyone else but yourself.
Your odds of making $100k for yourself just vastly improved. Under the traditional myth, you
would have spent almost half of all your earnings paying everyone but yourself. You would
earn $50,000 a year…. and this is presuming you survived long enough to establish your
business.
Many attorneys wonder whether they should buy malpractice insurance. This is a
personal "comfort" decision. However, bear in mind these things: Young attorneys and new
solos tend to be more eager, and this translates into "diligent." They are also more careful
because they are scared. Cases in malpractice against new attorneys are rare. This also might
have much to do with the fact that new attorneys do not tend to get cases where the stakes are
high. There are not too many, if any, attorneys who will sue another attorney over a $5,000 or
$10,000 mistake. Instead, they will tell their respective, aggrieved clients to go file a grievance.
Malpractice insurance does not provide coverage against grievances.
What about software and websites? It is a good idea to get a cheap book-keeping
software like Quicken or QuickBooks. There is a dirt-cheap legal billing software out of
California going by the name, "RTGBills." It is easy to use and very adequate. We use it. As
far as websites, they tend to fit into the "ego" category and are not likely to bring you any
business whatsoever.
What about e-mail addresses? Are plain-old "gmail" addresses good enough? Sure.
9
How about special phone numbers that you can forward to your cell phone? You can do
this, but it is hard to see the point why you would. Either way, people are calling your cell. It
is kind of like having a spam box in your Outlook program. I thought the idea of spam boxes
was so that you did not have to see the spam. The idea lost its appeal once it became obvious
that you need to check your spam box for possible non-spam which was trapped.
"Should I incorporate or form an LLC?" As regards incorporating, it is not worth it.
You will not be shielded from personal liability for malpractice or any other tort you commit
personally. In the early stages of your career, no creditor will make you a loan that you do not
have to personally guarantee. Incorporating is one of those "ego" things. But if the filing fee
does not bother you to throw away, then go ahead. You can do your own research as to choice
of entity.
When I was forced to go solo, this is what I did. It was not because I was smart. It was
because I was nearly broke and had student loans, a mortgage, a car payment, credit card debt
and only $4,000 in my name! My parents were in no financial position to loan me money, either.
It was up to me (though my wife was a new attorney getting her start taking court appointments
for about $30k a year or so - she had her own big debts, too).
The bottom line is this: Sure, there are plenty who are reading this book, and at this
point, would jump for joy to even make $50,000 per year and keep their "entitlement mentality"
intact. As they say, you can lead a horse to water… Despite those who cannot let go of their
counter-productive egos, there still remain plenty who will actually "get it." $50,000 is for UPS
drivers and school teachers… not licensed attorneys.
10
Chapter 3
Competence
The previous chapter was dedicated to efficiency and helping new attorneys to
understand that the lawyer's "entitlement mentality" is destructive to the foundation of building a
successful law practice. This chapter deals with being a competent attorney.
In major metropolitan locales, attorneys can successfully fake competence. Repeat
business is not as important, so long as the population density can sustain "the next unfortunate
client who comes to me for legal services." Therefore, in all candor, Chapter 2 (on efficiency) is
far more important than this chapter when it comes to a strict "business" view of managing a law
practice.
With that said, most attorneys do have an honest yearning to be competent attorneys. In
many cases, about the only sunk cost out there for satisfying a lawyer's ego is the cost of
competence. This is a "sunk" cost because you have already incurred the cost of an education whether or not you have actually paid for those $100k+ student loans. At least if you are
competent enough to play on intellectual par with the big-shot attorneys, you can take pride in
that. Most of us want that. It is easy to get.
The myth that the top graduates are the smart ones is an unfortunate one. The myth that
the attorney who had to take the bar three times cannot compete with the intellect of the big boys
is, likewise, unfortunate. You have the same license. You have access to the same research
materials. Go for it. Bone up. Hone your knowledge and skills.
It is surprising how people will go to lengths to buy fancy cars, watches, suits, offices,
staff, etc., but you cannot get them to part with hardly a dime toward "professional
development." This means research materials. Every good lawyer has access to robust research
materials.
"Well, that one's super-easy. I'll just go to the law library when I need to research."
Wrong! Let me say it again. Wrong!
If you lived in the library, you might do ample legal research. For the rest of us, if we do
not have convenient access to quality research materials, we will justify in far too many cases
why we do not need to go through all the trouble to drive across town, find parking, etc. in order
to go perform the required research at the library or a friend's office. If this describes you, stay
out of litigation unless you want to become comfortable with losing on a very regular basis.
The best lawyers are researching almost every day. They do not run around half-cocked,
thinking they remember some statute they researched three years ago, let alone three weeks ago.
The practice of law is like peeling an onion. The layers are very, very thin. Good lawyers
know this. Aside from the most mundane, monotonous tasks, such as drafting a simple deed or
will, they go back and double-check their memories on a regular basis (not to mention
confirming there has not been a change in the law).
11
For example, let us say that the law relating to non-judicial foreclosures provides that the
creditor must give 20 days' notice of intent to accelerate the debt. Let also say a non-movant in a
motion for summary judgment is entitled to 21 days' notice of the hearing on the motion. It is
easy to conflate rules like these when relying on memory alone. As they say, it is not if you will
commit malpractice; it is when.
As another example, the rules of procedure might provide that, in counting the days on
the calendar, you start counting on the day following the day the motion was served by the other
party. However, the statute on non-judicial foreclosure might provide that, for its purposes, the
day the notice is mailed is counted. Have you ever heard the phrase, "A day late and a dollar
short?"
It cannot be emphasized enough: The practice of law is like peeling an onion. Research,
research, research. You will do this the rest of your life.
12
Chapter 4
Which Research Tools?
Hard books and bookshelves are pretty, but practically dead. Do not even bother with
those. Further, books become obsolete, while quality on-line research materials are regularly
updated.
How about one of those encyclopedic treatises? They cover so much material; they are
like the "Cadillacs" of legal knowledge. They come with almost every option.
Mistake! It is arduous and painful for the authors and co-contributors to keep up their
monster volumes and thick books. Think about it from your own perspective. You just wrote a
1,876 page work covering the rules of civil procedure. Six months later, four of those rules
were slightly amended. Is there any chance you would be a little burned-out on that project and
not so motivated to keep it going indefinitely? Even if you were a good worker-bee and still
were motivated, will you find every place in the book where those rules are mentioned so that a
proper update is made? It is not unusual to go to the subject indexes in these treatises to find
references to sections that no longer even exist within the work! This is enough to tell you, "stay
away!"
Cardinal rule #1: Statutes and court opinions NEVER misquote themselves.
This is why these are called "primary law" and all the rest is lumped into what we
call "secondary materials."
However, there is a purpose for these treatise works. If done well, and with an eye to
readers who need to gain a stable framework for a particular area of practice, they are useful
tools at helping an attorney to see the forest through the trees. These works, however, should
not be considered adequate when it comes to the ultimate need to "peel the onion." Read them
once on a topic of interest and throw them away. There is no point in owning them if you can
borrow them, read them at a library, etc.
For daily use, primary law (cases and statutes) and a good set of forms are all that is
needed. "But forms aren't primary law," you assert. True, and you might even get away with
knowing all you need to know from only the primary law, but you will be missing something
huge - something law schools do not teach and even practicing lawyers take for granted every
day.
The law is more than just statutes and opinions. It is based largely on custom. Custom
is what contributed to law-making in the first place. Imagine knowing all the elements of a
deed. Every day, thousands upon thousands of deeds are filed in the courthouses. They are
almost identical in their lay-out, organization and overall appearance. You could, of course,
create your own form of deed which looks entirely different and technically, have a valid deed.
But do you want people thinking you are goofy or even worse, inept? People become
accustomed to seeing ideas expressed in certain, predictable formats. Follow those formats.
Tweak them if you have a special need (and you will). But stay within the bounds of
conformity. For this reason, yes, you need a very good form set.
13
"Okay. So where should I get my primary law and forms? Come to think of it, I can
Google all this stuff and find it pretty quick, and it's free." Nope. Going on the cheap when it
comes to research materials makes you a cheap lawyer. Half-cocked and ready to stumble
around every corner. If I was your client, I would be rid of you in a heart-beat. You are going
to cost me big sooner or later.
Here is what you need: Westlaw.
Okay, so Lexis and all the inferiors are going to raise a terrible fuss over that statement.
Well, opinion is not libel, and their emotions are of no concern. Westlaw is the most expensive,
so do not over-subscribe. Believe me, their reps will pressure you to add all kinds of bells and
whistles. You can run the tag up very fast.
Why Westlaw? Their key number digest. Years ago, we became disgusted at Westlaw
always raising their rates - year after year. We called the Lexis representative and subscribed to
Lexis. It was a fair amount less expensive. It was hardly a week into it and we knew we could
not live without West's key number digest system. We actually kept West and had to endure the
dual subsciptions for the year. Oh well. Live and learn. Now, this was back around the year,
2000. It could be that Lexis has improved and caught up with Westlaw. This would be for
others to research and judge. I have been there and done that. I am no longer interested in
experimenting.
You have to be able to Shepardize/KeyCite by POINT and not the whole case. You also
need the digests because they are by POINT. Here is an example: You are researching a case,
and it is fairly close to what you want, but not quite. You want to see which other cases cited the
subject case on that particular point. Without this capability, you will get the whole list of cases
that cite the subject case for ANY reason - including all those irrelevant ones. So now, you see
that 63 cases have cited your case for "God knows what?" Good luck finding the one or two
cases you really want to see.
What will happen is you will stop short in your research because you are not going to sift
through all 63 cases. You stop and hope what you did was enough. This is weak. Law school
introduced you to research tools, but it did not show you how to evaluate them well enough.
Law school did not force you to research enough. So, what happens, when you become an
attorney and your research actually becomes important to someone other than you, is that you
either believe people like me, or you find out the hard way. But find out, you will. Do not listen
to attorneys who tell you that something less is good enough. I cannot stand West as a company
because they are always trying to milk me for every penny. But sometimes, you have to make a
deal with the Devil.
In any event, if you are looking at a product that does not have a comparable digest
system, in terms of years of coverage, subject matters covered and overall quality, you now
know what to do. Key number digests and KeyCite are a given. On top of that, you need at a
minimum (and probably a maximum):
14
a.
case law for your state with the ability to find all citing cases to a case with a
single click (not a word search),
b.
your state's statutes annotated, and
c.
forms for family law, probate, real estate, estate planning, litigation and basic
entity formation documents.
These practice areas will keep you diversified and versatile. You can expand on them as
you see fit. But for most attorneys, this should be ample. Do not subscribe to less. If you do,
you will regret it - hopefully not unwittingly. Some attorneys might aspire to practice in federal
court. If so, add primary law for it as well. But there is no reason to think federal court is
necessary. The whole premise of this book assumes only a state-law based practice.
The main point of this chapter is to get good quality research materials and forms in order
to maintain high quality while delivering services efficiently. It does not cost much to be
properly equipped with the highest quality research materials and forms, especially when other,
superfluous costs are properly avoided.
Special attention needs to be paid to the chapter on "Versatility." This chapter goes
hand-in-hand with it, but you can keep reading in order.
15
Chapter 5
Which Practice Areas?
This is not as tough a choice as some would make it. The answer is straight-forward.
Go with the masses and be versatile.
Many attorneys have some attraction to mastering some cryptic area in the law where
only spiders dare venture. Maybe it lends to the coupling of pride and mystique.
But reality is different for the masses, and if a young attorney is fumbling around trying
to figure out how to start a practice - and even whether he or she can succeed - this young
attorney is what is nowadays considered "typical." The typical attorney is not going to succeed
by hanging a shingle with a sign that says, "We specialize in environmental law."
The following chapters briefly explore the various staples out there. With the exception
of criminal law, a solo attorney is well-advised to have a solid working knowledge of all the
areas discussed. They are intertwined. You cannot master one without being a jack of trades in
the others. There are not too many areas, and you will not learn all of them overnight. But learn
them, you must. Do not be afraid to take on cases before you feel confident in a certain area.
This is discussed more in the chapter on "Versatility."
16
Chapter 6
Criminal Defense
Some attorneys just cannot see themselves doing criminal law while others can. It is not
necessary to do criminal law in order to build a good practice. On the flip-side, some "criminallaw only" practices are fairly lucrative. The main point here is that criminal law is in demand.
DWI's, drug offenses and minor assaults are extremely plentiful. Yet, there are many attorneys
who vie for these cases. Remember, the goal is to get enough business to average two billable,
collectible hours per day. Criminal law might not give you all that, but it can help. For some
attorneys, criminal, by itself, will supply them with more than this two hour/day goal.
The beauty of criminal law is it is considered virtually "paperless." No thick files or
boxes full of documents. No discovery. A very bare-boned pre-trial procedure. In fact, it is
such a stripped-down area of law that flat-fee arrangements are very, very common. The workload in these types of cases is far more predictable than in other court-based practices. That said,
it seems most criminal attorneys take on these cases, knowing they will run the defendant
through the typical process of arriving at a plea bargain.
While the practice often requires this standard protocol because the clients are often
guilty and everyone knows it, there are frequently cases where a diligent, competent criminal
defense attorney can actually "do right." Though they tend not to, criminal attorneys should
conduct research as much as civil attorneys. This research will pay-off. Many times, mens rea
is an issue that could be diligently and successfully argued, but some of the more sluggish
practitioners simply do not care to bother with it. Which is likely to get better referrals?
a.
He got me probation.
b.
He got me off.
When the second guy refers his buddy, you now have much better ammunition to justify
a bigger retainer or fee. Still, in a great many cases, you do not have the luxury of getting an
outright dismissal, and even the guilty criminals appreciate probation a lot more than jail.
Criminals (even your decent folk who just happen to get a DWI) often hang around others with
similar habits. These clients, once you represent them, are great sources for referrals.
17
Chapter 7
Family Law
The next big area is family law. Family law is in great demand. In addition to divorces,
there are custody and child support modification and enforcement, and parentage cases. These,
alone, can fill a steady diet.
But beware. Family law clients are mostly, but not always, "something else." They
make criminal clients look more respectable. They will demand, whine, complain and bother
you incessantly - after hours and even on weekends and holidays. You will even encounter some
clients who appear to be off their rockers. This is part of the family practitioner's life. It is
impossible to stop it. These clients just cannot control themselves, as irrational as it is. Rather
than try to control it, you have to learn to bill for it. Every time they call, bill them. Keep the
pressure on them to pay, pay, pay. The more they demand of your time, the more you get after
them for more money. (More on billing and collecting later).
Keep in mind that with litigated family law cases, you will often do more work than you
can bill. It is not that you cannot justify the hours spent. You can. Typically, however, the
client runs out of money and cannot get any more. At that point, it is all on you, so be efficient,
cut to the chase, and get a reasonable settlement.
Many family law clients should be considered as "special." These types of clients, in
fact, are so "special" that you are better served with a different sales pitch - one that violates what
the professors taught you about professionalism without really violating it. More importantly,
one that tends also to work in other practice areas. This pitch involves being a real junkyard dog
- or at least convincing the client that this is who you are.
Family clients are often very mad, and to them, you are an appendage they want to use to
inflict pain on their opponent. For clients like this, walk with a swagger and talk tough.
However, still be professional with opposing counsel. It is easy enough to do. Whatever you
do, do not sell your clients short in cases like these. It needs to appear that you scraped and
tugged for every single penny. Otherwise, they feel shorted and will not be good referrals.
Bear in mind, too, that they are quite likely to be unhappy even with a good deal. The law
simply does not offer castration and smacking upside the head as remedies.
Novice attorneys enjoy some built-in legislative protections in family law. In many
jurisdictions, if not most or all of them, trial judges in family courts have vast discretion in terms
of property division and quite a lot less discretion when it comes to child support.
In terms of property division, the court's high discretion serves as protection against
malpractice liability and grievances. As long as you can defend your efforts and your diligence,
you can point to the court's discretion, along with the client's craze and general repulsive attitude,
for the disappointing result. As regards child support and the court's lower discretion, there is
not a whole lot of wiggle room, and no matter how brilliant an attorney you are, the statutes set
forth the precise amounts which are presumed to be fair. Court's are going to follow those
statutes, and when they do, there is no room to blame you for not being a smart attorney.
18
Finally, family law clients can also be great sources of referral, provided they feel you
fought for them and "protected" them. Do not worry when these clients are not happy. It goes
with the turf. In the next 60 days, they will refer their friend or sibling to you. Also, if your
family law client is not financially strapped post-divorce and can afford some incidentals,
sometimes, you can get a will and power of attorney out of them. Sometimes, you get to explain
to them, "If you would have incorporated your business before you married, property division
would have been a lot more favorable." Then, they realize it is time to have you go ahead and
incorporate.
19
Chapter 8
Construction Law
This is a first love. Contractors and materials suppliers typically know each other and
tend to remain in their respective trades for life. Many also have employees.
It is doubtful that law school taught anyone about mechanic's liens; yet, this is a staple in
construction law. In some jurisdictions, and maybe all of them, be sure to know the difference
between mechanic's liens and payment bonds since some projects - especially government
projects - cannot be liened in the traditional sense.
Construction is a hot-bed for litigation. Downward wage pressures have led contractors
to sub-contract work out to some of the lowliest people on the planet. It is a dispute waiting to
erupt. On the flip-side, some project owners can find fault in everything. Invariably, they are
going to hold back one or more draws and refuse payment. Another dispute waiting to happen.
On a side-angle, you have the contractors who have been stretched thin on profit margin and
have incurred cost overruns. Not only that, they have unreasonable project owners finding fault
everywhere and refusing to pay. As a result, subcontractors go unpaid. They need help getting
paid, too.
It is much like the "perfect storm" for litigators. The only twist is - and this is a good
twist - this area of law relies heavily on mechanic's lien laws. Most lawyers never bother to
spend the time it takes to prepare and litigate mechanic's liens correctly. It can be confusing if
you are not dedicated to figuring it out, but once you do, it is easy. It does not take a lot of time
to figure it out, either. As a fourth angle, sometimes legal malpractice cases pop up in your
favor because some attorney took on, and bungled, a mechanic's lien. You can get a legal
malpractice case out of this and be the shark who eats other sharks.
If you pursue this area, know the mechanic's lien laws very well. It will pay…. and pay
regularly. In addition, many of the clients have employees. Another reason not to have an
office is because when you meet your business client at the client's office, you see the employees
and they see you. They will ask you to do legal odds and ends for them, too. Some of this
"incidental" business can turn into nice chunks here and there.
In summary, construction law is great for lawyers. Guaranteed repeat business is
practically a given, and you can frequently get some incidental business from employees. Even
the business owners will use you for other things - whether it involves buying a piece of land, a
new home, a will, etc. But to get in this door, it is essential that you firmly grasp mechanic's lien
law.
20
Chapter 9
Collections
Collections law is somewhat similar to construction law, only the competition among
lawyers for it is greater. It is more "boiler-plate" since the nuances of mechanic's liens are not in
the equation. Therefore, more attorneys are qualified to handle generic collections.
Collecting against consumers is not a good staple. It really is hard to squeeze blood from
turnips. Collections against businesses (business to business transactions) are more suited for
litigation and tend more to justify the cost of an attorney. Therefore, repeat business for
commercial collections will come with regularity.
It is good to have a reasonable mastery of property exemption laws in your jurisdiction.
These are laws which prevent creditors from seizing certain assets presumed to be so basic to
life's needs that the law simply prohibits seizing them. Also, familiarize yourself with any
versions of fair debt collection practices acts. These generally apply only to household and
family consumers and not to businesses. Know them to be sure you are in compliance. Despite
some over-emphasis and paranoia which derives from a concern about violations of such acts,
the reality is that you need to be familiar with them and that is about all.
Also, know the laws on how to collect judgments. You MUST know this if you are to be
effective for your clients. This does not mean you will collect all the judgments, but you
certainly cannot afford to allow a judgment to remain uncollected simply because the debtor does
not feel like paying.
Just like with construction law, collections involves businesses with owners and
employees. Additional legal work will derive from these owners and employees. You just
need to be versatile enough to handle it. One of the last things you want to do is lack versatility.
In fact….
21
Chapter 10
Versatility
This topic needs to be set aside on its own. You need to be versatile. There is an
oversupply of lawyers out there. You do NOT want to have a collections client ask you if you
can help with a real estate purchase and then, you say, "I don't do real estate, but I can hook you
up with a friend who does."
There is too much risk in that. Your friend - whether a friend or not - may hit it off with
the client. Your friend helped with the real estate deal, and now your client asks your friend,
"By the way, do you think I need to update my will?"
The opportunity costs of not being versatile are just too high. Worse, you can lose
existing clients to the competition.
This is the reason for the previous emphasis on why you need such a robust source for
legal research and forms. With a good resource, you can handle diverse areas in the law with
confidence. Never turn down legal work that will pay at the going rate unless:
a.
you know you will not take the time to learn to do it right
b.
this)
it is a huge case and it is "out of your league" (decimal places alone do not dictate
As a corollary to the rule above, if the only reason you would tend to shy from handling a
matter is because you feel you lack knowledge and confidence, perform some research first
before declining. You might find you can do it with relative ease. In so many cases, once you
turn down a client and force him or her to go elsewhere, you are not likely to see that client
again.
This is one of the greatest beauties of a good research resource. The more you research,
the more you expand upon your ability to take advantage of new opportunities. The more you
research, the more comfortable you become with your ability to quickly research and learn.
Keep in mind that in the early days of becoming a lawyer, you will spend an inordinate
amount of time researching. Hours will be devoted where experienced attorneys spend minutes.
This is okay. It is not a sign of your intellectual incapacity. It is something we all must go
through. You are learning some new things about the way lawyer's think. You are learning
how concepts are organized within a gargantuan framework of "the law." You will encounter
recognizable patterns as you spend more and more time just perusing the key number digests.
Heck, spend hours. Waste time there. Lots of it. Just look, look, look. There is a world of
knowledge in there.
For example, who would have thought that there were separate key numbers for vacating
a divorce decree versus setting aside a judgment by filing a bill of review? They are both
judgments, are they not? You need to know that topics are often splintered in this way. It does
not necessarily make sense that they are splintered, but they are. Just accept the imperfection
22
and learn to deal with it efficiently. You will only become comfortable with this after many
hours of sifting through the digests just to see what all is there. An experienced researcher
already knows about these limitations and is familiar with how to quickly navigate around them
to insure a thorough research session. You cannot be the family lawyer who believes that all he
needs to do is look in the digests under Divorce -> Decrees and Orders -> Vacating. You must
also know that you need to look under Judgments -> Vacating and Setting Aside.
Although it has not been stated previously, you need to approach everything with
"Murphy's Law" in mind. Ask yourself, "What could go wrong? What might happen to cause a
big fight?" When you ask these questions, you ought to routinely tell yourself, "Hmmm….
Interesting question. I need to research that." This will make you work more, bill more, be a
better lawyer and provide a service that is actually worth those unconscionably high rates you
charge. It is a win-win for the lawyer and the client.
Never be worried that you have to tell your client you need to spend some time
researching as part of the project and that you will bill for that time (unless it is a flat-fee).
Young attorneys worry about this all too often. Clients might not expect to be told that you need
to charge them to learn. But that is life in the profession. If you feel the need to explain, tell
the client to go to the law library at the nearest university so he or she can have an appreciation
of how much law there is out there. Tell the client that the world would not be overrun by
lawyers if they all knew "the law." If "the law" was something a trained lawyer could ever grasp
completely, we would not have any lawyers at all - just judges who knew "the law" and doled
out justice.
If you have really done your homework, and there is just not an answer to be found on
"what's the rule when…," know that this is fairly common. The statutes and case law do not
cover everything. Do your best and find the closest analogies. Reason your way to an informed
and reasonable argument for why the rule would be "x" if it was squarely presented in the courts
of appeals. This is what good lawyers do. This is not solely the domain of big firm attorneys.
This type of access is available to all attorneys, and there are plenty of solos out there who are
every bit as diligent as the big firm attorneys (even though they only have to work 1/3 of the time
to make the same money).
Finally, get to know other lawyers and talk to them regularly - about anything. Do not
be afraid to call a lawyer out of the blue because you saw he authored an article or his name was
given to you by another lawyer. Lawyers are notorious for freely helping each other and letting
you bend their ears. Do this all the time. If you need them to help a little more than just a
quick call, you can say, "Hey, I drafted a petition I'd like you to review and get your input on. If
you could help me out, I'd appreciate it. I'll take you to lunch. My treat." When, you have
some experience behind your belt, as they say, "Pay it forward." Help the young attorneys who
are now looking to you as an experienced and successful lawyer.
23
Chapter 11
Real Estate
A good many lawyers would love to crank out deeds all day. It is easy work. However,
it is not likely any will get the volume necessary to sustain a full-time real estate practice. Know
real estate because you need to know it, you will enjoy doing it, and it is a nice break from
litigation and the daily grind of trying to pull teeth.
Real estate litigation also erupts on a regular basis. Understand real estate. You should
become familiar with the basics of real estate conveyances. These include how reservations and
exceptions work and what happens when they fail or were not mentioned in the conveying
instruments. Other important topics include adverse possession, trespass and easements
(whether implied, by adverse possession, estoppel, etc.). The basic idea that drives so many
doctrines surrounding real estate is this: "A grantor cannot convey a larger estate than he
possesses." The validity and enforcement of restrictive covenants are also important.
24
Chapter 12
Probate and Estate Planning
Like real estate, these can often be a stress-free pleasure. Most matters do not involve
litigation and disputes. They are transactional in nature even though you might need to appear
in court. It is hard to build a practice which solely relies on probate and estate planning. Many
lawyers would love to do just that.
Included in probate are: probate (of course), determinations of heirship and
guardianships. Some states, if not all, even have various non-court and streamlined court
proceedings on settling estates. For example, to chain title to real estate from an intestate
decedent to his heirs, Texas allows the filing of an affidavit of heirship among the real property
records. This rule is found in, among all places, the Property Code. So beware, as stated
above, you have to be a jack of all the trades before you can master any one of them.
As regards estate planning, this typically includes a relatively simple will, a durable
power of attorney for financial matters, a power of attorney for health care and a physician's
directive (living will, or "pull the plug" order). Clients do need these from time to time. It is
refreshing when they do. The work is easy and non-controversial. The matter is open and shut
typically within the same day (except for the meeting to get the client to come in and sign and
pay).
In the days of old, back when the federal estate tax kicked in at $600,000 in 1993, estate
planning used to be synonymous with "tax avoidance." Now that the exemption is $10 million
for a married couple, there are not many people in the nation who need to worry about federal
estate taxation. Thus, the practice of estate tax avoidance has dwindled away (though some
states have a state-version of the estate tax which might be helping to keep tax planning aspects
alive and well).
Nonetheless, stick with the meat and do not worry much about the gravy. The vast
majority of people simply will not have a large enough estate to give rise to estate tax concerns.
The odds are that you will never have even one person this rich sit before you as a prospective
estate planning client. So, why waste time learning it? Your clients just need simple planning
devices to make sure their wishes are carried out in an orderly manner. There are some
challenges sometimes when it comes to proper estate planning, so while this area of practice is
pleasurable, it is not always dull.
For example, consider this: A decedent had you prepare his will providing, "I leave my
real estate to my daughter, Jane, and my Merrill Lynch account to my step-son, Joe. The rest and
residue, I leave to Jane and Joe in equal shares." Let us say the rest and residue is not worth
much - basically pots, pans and furniture. Now, suppose that, before he died, the decedent sold
his real estate and placed the proceeds in his Merrill Lynch account. Ouch!!!! You can look
the law up for yourself with your new subscription to your research provider of choice. These
are things you must consider when you are helping people plan their estates. So, yes, it is nice to
be able to confidently know about issues like these when you are helping people plan their
25
affairs. It is good for you, and it makes your client more confident in your commanding ability
to spot and deal with issues.
Today, basic estate planning which you can still use and readily market has to do with
setting up testamentary trusts, setting up certain assets to avoid probate and that sort of thing.
Plain Jane powers of attorney and directives to physicians are routinely part of a package. These
are extremely basic instruments. If you plan to prepare wills and you did not take, or pay
attention to, estate planning in law school, the law school textbooks are very good for grabbing
the basic concepts surrounding wills and intestacy. The textbook written by Prof. Stanley
Johansen of the University of Texas was really quite good. You just need to know some basic
issues that arise, such as testamentary capacity, undue influence, formal requisites of wills,
pretermitted children, class gifting, lapse, anti-lapse and such. These are basic concepts.
Though it is a concern in all practices areas, it is especially the case with estate planning
that lawyers are always trying to peddle more complexity and more product than the client needs.
Do not do this. Tell your clients many lawyers would do this, but you are honest, and you are
going to be straight with them. You appreciate their business and want them to appreciate you
and refer their friends. For example, how many lawyers are peddling health care powers of
attorney which name their spouses as attorneys-in-fact? This is the default rule by statute when
there is no health care power of attorney. Do not oversell. Respect your clients, and they will
respect you back. This will garner you five extra estate plans for the one health care power of
attorney you did not overreach to sell. Make a point of showing your clients how you are on the
up-and-up when you could have abused them easily. Do not get too righteous and teary-eyed
about it, though.
26
Chapter 13
Personal Injury
Unless defending, be very selective about these. Liability better be clear and damages
had better not be "manufactured." Insurance adjusters are instructed to cut settlements to the
bone. Clients are still thinking, from seeing all those junkyard dog commercials, that a bruised
elbow, together with a back injury which cannot be detected by medical science, is worth a
fortune.
The reality is you will get a few bones thrown your way just so the carrier can be rid of
you. In all likelihood you will look back at all the effort you had to go through to gather
medical records in the sea of hospital accounting bureaucracy, coupled with your reliance on
some seedy chiropractor to ramp up a "dubious at best" damage model, and you will realize you
did not make all that much at an hourly rate anyway. This is not really practicing law. This is
extracting "nuisance money." You will feel cheapened by it.
Some lawyers have done excellent jobs of setting up grist-mills to do just that. They
even make good money at it. But is this why you went to law school? If you did, apologies are
hereby extended. Go for it.
Personal injury is good for solos in rare cases. Be able to spot those cases, and decline
the rest. You will decline FAR more than you accept.
27
Chapter 14
The Clients. Where are the Clients?
Young attorneys just want to get out and start making money right away. Are we there
yet? Are we there yet? Luckily, this book is short enough to read in a single setting.
First, we have to work on the sales pitch. With a glut of experienced lawyers out there,
why should I hire a noob like you?
You better exude confidence and command without being arrogant. Talk to clients in
terms they understand. Clients, believe it or not, are embarrassed to show their ignorance. You
can sit there and tell them, "If I agree to take your case, the first thing we will do is bring a claim
for breach of contract and alternatively, for quantum meruit."
Trust me. After you make the above statement to your prospective client, he will not
have a clue if you know the law. Law school taught you a whole new jargon. You need to
know that jargon. Your client does not. He just needs to know that you do. But how is he
going to know that you understand it?
Clients are not afraid to ask a few questions, but most will not allow themselves to ask
too many - either to hide their ignorance or for concern that they need to respect your time. If
the client does not fully understand what you will do, the odds are that he or she will feel the
need to go to another lawyer to compare notes on what both lawyers have to say. If he feels this
need, your odds of reeling him in are reduced. However, even if he does get a second opinion, if
you are the better communicator, the client often comes back and never mentions how he sought
another consultation.
Therefore, it is imperative you talk to clients in terms they understand and without being
condescending or impatient. You tell them:
The reason we need to add a claim of quantum meruit is because sometimes there
is a technicality where a contract is found not to really exist. Let me give you an
example. Let's say a guy is in the lawn-mowing business and was hired by my
neighbor. He shows up by accident at my house and starts mowing. I smile and
watch. Even bring him a glass of iced tea. Then, when he finishes and asks for
payment, I tell him 'What contract? I didn't hire you.' Quantum meruit is a
theory that was developed to solve this problem. It applies when one party
provides labor or materials to another with an expectation that the other will pay
for them, and when the other voluntarily accepts the goods or services knowing
the person providing them expects to be paid. Believe it or not, it's a simple
concept, but there are many attorneys out there who don't even know to include it
in their lawsuits.
The client gets it. The doubts in your use of legalese have been resolved. He knows
you are studious, intellectual, practical and understanding. And he knows he can count on you to
keep him informed at his comfort level so that he does not have to worry whether he is in good
28
hands or not. Further, you told him, indirectly, you are a better choice than many other
attorneys.
It is surprising how many attorneys are not able to talk to their clients in this way. If you
can develop this skill, your ability to close the deal and get the retainer go up - way up. After
you close the deal, you need to continue to deliver in this way. Keep the client informed. These
days, it is really easy. Just a quick e-mail with an update.
Do not just use your skills to close the deal and then turn from Jekyll to Hyde, leaving
your client in the lurch. He parted with his money for you - he wanted you. It is like not
getting a second date when, on the first date, it appeared that the stars aligned, the heavens
opened and the sun shone through. Now, she will not return my calls! How distressing! It
feels like betrayal at its worst.
Next, do not be too stuffy. Feel free to dress casually. Dockers and a short-sleeve,
button-up shirt are fine on a hot day. If a full suit is your thing, go for it. But either way, do not
be stuffy.
Third, when you communicate with a client orally, try not to be like Ben Affleck in his
impersonation of Keith Olbermann ("This is something up with which we will not put."). You
are dealing with normal people. Talk to them in a normal way.
Fourth, when you communicate with a client in writing, use at least a modicum of proper
grammar. Spell properly. Avoid run-on sentences. (Hey, I know. This little book is not the
perfect example of an editor's dream. But it is free, and it gets the point across on topics great
editors never bother to cover and young attorneys really need to know.) Clients will judge you
on your writing skills. You are their voice. If you need to get The Little Brown Reader to brush
up on grammar, do it. Seriously.
Fifth, crack a light joke here and there. Offer a light ridicule of the profession, the court
system, a certain applicable law, or whatever. Break the ice. Do not be a class clown, though.
Just make the interview a comfortable one.
Sixth, it is a sign of weakness if you cannot bring yourself to talk about your fee. You
better get over any weakness you have to address that topic with the same authority as you exude
when discussing the law. Do not sit for 45 minutes without bringing up the subject of money.
In reality, money needs to come up within the first five minutes. This does not mean you have
to fully vet the issue and propose marriage so quickly, but you need to weave the issue in and out
and begin early. Do not wince, and NEVER offer to negotiate your terms - EVER. If the client
feels compelled to negotiate, let the client initiate the negotiation process. Then, stand firm.
You have priced yourself right.
That said, do not weave back to the topic of money so often that the client gets the
impression you are salivating over it but afraid to be direct about it. Eventually, and not too far
down the line, you need to come to the punch line. "How much do you have?" That is a pretty
blunt question when you have no clue. If you do that, be prepared for an answer that totally
29
disappoints both sides. The client does not know what he is supposed to answer. (re-read the
previous sentence)
If he has $20,000, he is not going to tell you this on a $10,000 case. That would be the
same as saying, "Money is no object." If he has $2,000 but says "a couple hundred," you have
forced a bad situation. It is your fault. You will have to diplomatically chuckle, without being
condescending, and explain $200 is unrealistic. Instead, follow below on how to steer the client
where you want him to go. The client should unwittingly know the answer you want before you
ask the question.
Try to figure out what the client has by asking some not too direct questions:
What kind of business are you in? What do you sell? Is the other side saying
your prices are inflated compared to the product's quality? No? What's a typical
profit mark-up? Do you sell a lot of these products without regular complaints?
How much would you say your sales are over the course of a year? How often do
your customers default and refuse to pay? Ok, well you're sitting here needing a
lawyer to collect. Have you set money aside for when these occasions to need
collections attorneys arise? If not, how do you figure on paying for a lawsuit?
Typically, you get some good information in the matter of a few minutes, but you will not
get an answer like, "Yes. In fact, I have $5,000 in the bank, and I can write a check for that
now." Instead, you get answers like, "Business is okay, but it hasn’t been stellar. Times get
tight from time to time. They're kind of tight now. But, if I have to, I can come up with a little
money. I need to get this bill collected. That deadbeat customer has put me in a pinch."
You have to dance a little more. So, you can follow up with something like this:
Ok. Here's what you need to know. Lawsuits aren’t cheap. At $200 an hour,
you don't want me spending 40 hours on a $10,000 case. There's unpredictability
involved to some degree in terms of how far this has to go, but you can be assured
that I bank on having repeat customers. That's why I need to do my best to get
your money at the least cost to you.
But no matter what, there are just minimums to what has to be done. To file a
suit, you can figure $250 for the filing fee to file the petition. This is paid to the
court clerk - not me. I don't see a dime of it. Count on another $80 or so to get
the defendant served by the process server. We're at roughly $350, and you can
see I am still at $0 for me to eat.
I need to review your paperwork. It looks fairly straight-forward. With a small
amount of research, figure on roughly 3-4 hours to get your petition drafted and
filed with the clerk. Let's just say 3.5 hours as a very decent estimate. To get
started, I will need $1,050. This will secure your lawsuit being filed. From
there, we need to see where it goes.
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But you'll have a little time to wait, and if needed, come up with any additional
expenses we need. Maybe they call up, or have an attorney call, and just want to
ask where the payment should be mailed. If so, we dismiss the case, and we're
done. This would probably be another $200 to do the work to get it dismissed.
You know what? I didn’t consider that dismissal part when coming up with the
figure a second ago. It's going to have to be done, so add that in. I will need
$1,250 to start.
If they want to play silly like they don't owe, then, we need to address the strategy
of sending a round of discovery. I know it costs you to do this, but it costs them
as well. Answering discovery costs more than sending it. The other side might
get the message that it really is smarter to just pay up than it is to fight. This is
how it works in our world. First, we have to file the suit and see what posture the
other side takes.
On a case like this, you can get pretty far along for $3,000 or so. We can also
add a claim for attorney's fees so that if we go to trial and win, you can recover
those back as well. But this whole lawsuit thing is a lot like sophisticated poker
between lawyers. Are you going to crack over a mere $3,000 in attorney's fees
and drop your suit? If so, the other lawyer did a great job for his client. He got
his client out of a $10,000 debt he owed you. Not bad for $3,000. So, I need to
know. Do you have the fortitude and wherewithal to file this case and to stick
with it once we file it? I don't want it sitting and languishing. We either show
the other side we mean business, or we look weak."
In many cases, you have the client pulling out his checkbook and writing a check for
$1,250. Read all that again. Notice all the bait-lines? The thing is littered with them! The sad
reality (or opportunity, if you want to see it that way like I do) is there is absolutely, positively
100% truth in these statements. It is better for everyone to know how it really is from the get-go.
Use reality as a big selling point.
If the client hesitates but does not directly say he wants to negotiate, do not cave. Do not
EVER offer to negotiate out of the blue.
I can see how this probably has you in a pinch. I get it. I totally do. How can
you afford to pay me when your customer is not paying you? This is just one of
those times when you get yourself kind of stuck. But I'm telling you exactly like
it is. You can go shop around if you like. This town is flooded with attorneys.
Some are probably cleaning windshields at intersections and would love to take
your case for $500. But one thing for sure is you get what you pay for. For
$500, you're going to get a slug. I hate to say it, but it's true. How some lawyers
feel compelled to feed at the bottom is unfortunate. But that's because we have a
glut of lawyers out there. A lot of not-so-good ones, too. Check out the
grievance records at the state bar. Every month, they have about 40 lawyers who
have been reprimanded for taking clients' money and doing next to nothing and
never returning the clients' calls. That's like 500 lawyers a year! And those are
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the ones who get caught! It's crazy in a way, but that's the way it is. The streets
are littered with these guys. These poor guys aren't getting paid what it takes to
live. They've got your money, and instead of working your case like they should,
they have to catch up on their past due bills and go find the next client. That's
what happens all day, every day throughout this city. It's a big city. I can't bring
myself to do that to people. So, I tell them up-front what it really takes to do a
good job like a real lawyer should. It keeps them from wasting their limited
money on the wrong attorney and then, being too broke to hire the one they really
needed.
Once in a while, the client simply cannot afford you, or he really wants to take a chance
on finding the $500 lawyer. Let him go. You will be better off if you do. Seriously, the
situation described about taking money and doing nothing happens all the time. You do not
want to be that lawyer. Get enough money to insure you are happy with the client and motivated
to handle his case with diligence.
If the client feels he needs to negotiate, he will tell you sometime around this point. He
will say, "Can we get started for $1,000? I can pay you a thousand right now." If this is a good
number for you, take it. But do not let him off the hook that fast. Immediately after his offer,
do not accept. Ask, "If we do that, I need to know how long you'll need to get the other $250."
Hey, it all counts. Do not leave money on the table. If he can come back the next Friday
with the rest, you got everything you set out to get. This is called "a win." Take the $1,000
now, and tell him:
Okay, I'll do all the work necessary to get the suit filed, but I'll hold off on the
filing until you come Friday. That way, we can use that $250 to cover the filing
fees. By the way, we aren’t going to have any issues on payment around 45 days
from now after they answer, are we? We're going to have a pending suit, and I
don't want to be the poodle whose bark is worse than his bite.
You will get your assurance for future payment. Always litter your pitch with bait which
is based on reality. It is 100% true, and your client deserves the truth. If your client is not
apprised of the realities, you will be the one who suffers along with your client. You are
preparing the client to plan his budget now so he can continue to afford you to do more work
later.
Then, as soon as the client leaves, you deposit the check, and immediately draft the
petition (you should have made him leave the file or a copy of it). This way, you have earned
the fee. If he changes his mind the next day, you can say, "Hey, I stayed up late last night and
finished the petition. We're ready to file the suit. All you need to do is come in and get me the
filing fees."
Guess what? You are on the case, and there will be no turning back. His cost is sunk.
He is not backing down now. Then, you get to remind him, "Remember what I told you
yesterday? When you get me, I promised you 'Johnny on the spot.' I am not bragging, but you
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are fortunate you came to me." The client feels good. You are right. He did get a good
attorney, and this is now established as fact (provided you remain competent and diligent as
discussed throughout this book).
Bear in mind, this book is not designed to teach you about the need to have the client sign
a proper attorney-client agreement. You can go to law treatises for that sort of stuff.
"But," you say, "I'm still a baby lawyer. This guy's going to read me like a book. How
am I supposed to convince him to pay that kind of money to a baby lawyer?
I've told you everything you need to know about the law and lawsuits. Granted,
you can find an attorney with some grey hair out there to take this. But if he's not
one of those bottom feeders and he's worth his salt, he'll want easily double what I
am asking. He's not going to want to do any research and pay close attention to
your case. Yours is one of 200 cases he's juggling around. He's happy to get
your money, but your case, itself, is a nuisance to him. He's probably a bit tired
of the grind. With me, I promise you diligence. You can obviously see I know
the law. I promise you I am efficient and I care about keeping your costs low. I
want you to be a repeat client. If you're lucky enough to never need a lawyer
again, I want you to recommend me to people who do need a good lawyer.
That's how we make it in this trade. Word of mouth is the best advertising there
is. It's not possible for any lawyer to guarantee a result. In fact, the law prohibits
lawyers from guaranteeing a result. But I can tell you this. My reputation is my
stock in trade. You will get the best quality service from me, and I know what
I'm doing. I'll keep you apprised and show you all the law. You'll see it for
yourself.
More often than not, you will reel them in. Sometimes, you will not. Do not let that
discourage you. Sometimes, you are not the reason why they declined. Some clients were
coming to you hoping they could find a cheap lawyer. They are broke, but yet, they are rich on
sob stories or promises of future payment. You better be grateful this client got away. Broke.
Not likely to pay the bill when it came due anyway.
Bear in mind, not all clients must be required to pay retainers. Some, you can tell, are
established enough to trust but verify. How do you verify? They pay their bills timely. Do not
let them get too deep into you. Here, I am speaking about business clients. It is generally good
to hold strong on the retainer requirement for any individual. They tend to expect to pay
retainers as well. If the client, whether a business or not, appears to be shady or in financial
straits, get your money up-front. You better get all of it because it is fairly likely all you might
ever see.
Most importantly, when you do reel them in, deliver what you promised. Do the work
without delay. Do not put it on the back-burner. Earn your fee fast. Keep them apprised.
Show them any law you find. Show them the letters you write. Show them motions you draft.
Show them the receipts for expenses and how they matched with what you told them. "No
hidden mark-ups, just like I told you." Go over the law with them if it needs some explaining.
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As you educate your client on all this legal mumbo-jumbo, he comes to learn that, in fact, you
really do know what you are doing. He also sees that you really do work for your money. Do
not just take his money and never show him pleadings, motions and correspondence. Give him
visual proof that your charges were justified. At that point, he will recommend you to others.
So, as you can see, you can, and do, gain a rapport fast.
Do NOT talk big about filing a suit when you are too scared to file one. You better get
over that fear fast, fast, fast. File your suit. You will have plenty of time after you file (and are
waiting for service of process and an answer) to bone-up on procedure and figure out what to do
next. If you file the suit, and the defendant does not timely answer, do not wait in the hope that
he answers since you do not know how to move for a default. Read and figure it out. Fast.
There is no point in delay. Delay builds bad habits. Most (maybe as high as 70%) of the
attorneys out there are guilty of this. Also, clients do not want to do the dirty work of putting
their information together to support a defense case or to respond to discovery. Do not let these
clients delay. When they lose interest, you lose interest. When you lose interest, you are not
billing. You are not preparing their case. You are risking possible malpractice.
This example client and case involved a simple collection matter. There are hoards of
these cases out there. If you do not feel comfortable in business "intellect" (the stuff of profit
margins, cost of goods sold, etc.), these are very basic concepts. Get familiar with them. It will
make you a better lawyer and a better salesman.
What if the client is dead in the wrong? He is being sued for $18,000 on an account, and
there is no question that he owes it. He is defenseless. But he came to you, did he not? Why?
Is he needing more time? A payment plan? You can help with these.
Here's the deal. You know where this is going. I don't really need to spell it out.
It's pretty clear. If you need some time, I can buy you some time. What kind of
time do you need? How about a payment plan? I bet I can get them to entertain
it.
What's in your budget? Keep this in mind: Lump sums often talk.
Sometimes, your best deal comes from buying yourself out for a single, one-time
payment. We can tell them, 'It's this or nothing. Good luck. My client's
judgment-proof. You'll have to stand in line behind the other 20 creditors in front
of you.' What are your thoughts here?
Note that the sample sales pitches are just that - samples. They give you a pretty good
idea of how to deal with uncomfortable issues while maximizing the odds of getting what you
want. You know which subjects make you uncomfortable. Practice to yourself and then, put
your practice to the test.
Let us say you have never had a trial or even presented a motion in a real court in front of
a real judge. How about this question? (You know it is coming) "How many trials have you
had?" This is a toughie. But you can be prepared. It is coming. Practice. For what it is
worth, there is not an experienced trial attorney, dead or alive, who was immune from this
question when he or she was a baby lawyer like you. We have all endured it. Just practice your
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pitch while you grow your experience. Then, before long, you will have some good fish stories
to brag about during client interviews.
Finally, get some trial experience on smaller cases. Take some small claims court stuff.
Win or lose, you need to get in front of a jury and get comfortable. The first will make you
tremble. After the third time, it is old-hat. Try to pick cases where you feel you have a solid
chance. Do not experiment by trying a case where you know you are going to get pounded. All
this does it accustom you to expecting to lose. You will have plenty of cases where you can
win, and those are the skills you need to hone - skills on how to win - not on how to lose
gracefully.
Juries, by the way, are very much interested in justice. They do not hold a baby lawyer's
obvious inexperience against the client's case. In fact, sometimes, juror sympathy for a shaking
baby lawyer gives you a handicap. They almost want to cry like mothers for that sweet, young
attorney out there swimming alone among that old, nasty shark the next table over.
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Chapter 15
Oh No! Not Procedure
Yes! Procedure! It doesn't matter how much substantive law you know, you, as a
licensed attorney, are worthless without a command of procedure. This does not mean you need
to know it backward and forward before offering your services, but you better get a command of
it in short order.
In fact, when I was laid-off, I knew an attorney friend who did family law, and he knew I
had a mastery of procedure. He would get non-family civil cases but could not take them
because he, admittedly, was a "cookie cutter family lawyer." Sometimes, he would have a
family case that could use a heavy dose of procedure, too. He was an invaluable source of
referrals. Hint: Get to know procedure and hang with some attorneys who do not know it very
well and do not even want to try to learn it.
I will never forget a time about five or six months as a new solo, my friend came across a
family client whose ex-wife was trying to open up the years-old divorce and nab his retirement in
a bill of review proceeding. We received a $20,000 retainer on that one! That was bold for a
young punk like me, as well as my friend who was only two years older, but we got it and went
straight to the bank. Neither of us received that big of a retainer before that. It was a recordsetter. I was 29 or 30 years old at the time.
Family lawyers are notorious for not knowing and using all the tools of procedure at their
disposal. Motions for summary judgment are practically unheard-of in family courts. If you
have a good basis to seek summary judgment on an important property issue in a divorce case,
go for the gusto! The poor judge might be caught off guard and deny it, but a confident and
knowledgeable judge will be impressed and grant it without hesitation. You will catch the eye
of everyone in the courtroom just by arguing it because no one in the courtroom has ever seen
this before.
Mastering procedure is easy to do. In fact, it is a shame that the profession ever made up
a distinction between "substantive law" and "procedure," as if to imply procedure is dull and not
important. Cases are won or lost on procedure every single day. Try telling an attorney who
failed to attach a controverting affidavit to his response to a motion for summary judgment not to
worry, "It wasn't substantive law."
There is only one good way to go about learning procedure. In all states, there is always
some procedure guru who wrote a 500 page paperback book with the rules of procedure and lots
of commentary and case law discussion on the rules. These books are typically $80 or a bit
more. This is a rocking-good deal! Get the book. That book should never leave your side. It
goes to court with you and follows you like a little brother.
It is 500 pages. Read it. Front to back. Do not wait and read selected parts as issues
arise. Read the whole thing - preferably before you have ever even met with your first
prospective client. If you cannot discuss and demonstrate a command of court procedure, you
are winging it. It is a weak position to be in as you are trying to convince the client to pay you a
36
retainer. You look strong in front of a client when you can whip out a big book with micro-thin
pages and within seconds, point the client to the rules that will drive how his case is to be
handled. Impressive! That book is your #1 right-hand man!
When you come across any parts in the book you do not quite understand, go on-line to
your new subscription to annotated statutes and go read the annotations to the rules in question.
When you read enough of them, you will have a reasonably good understanding.
Your goal, as a new lawyer, is to be "hot stuff" in the client's eyes. A "young shark."
Have a solid command of what pleading and motion practice is like. Use your knowledge to
minimize the need to go back and amend your pleadings and motions because you did not know
how to do them right in the first place.
A case in point involves motions for new trial. If you miss the answer deadline, a default
can be rendered against your client. You can file a timely motion for new trial to set aside the
default judgment. These are more often granted than not because judges do not like to see
attorneys go down in flames over malpractice.
But try explaining to your client that you have to file a motion for new trial. Why?
Because you missed a deadline. This is not a proud moment. Know the rules. Minimize the
likelihood of having to be embarrassed like that. Do not set yourself up with opportunities for
the client to doubt your competence.
The same goes for amending pleadings. Lawyers have to amend to add causes of action
all the time. This is not a sign of lack of skill, but it is a sign that the lawyer doing the amending
is vulnerable as the case was originally pled. So, take your time to craft good pleadings and
motions based upon solid research.
Do not throw the kitchen sink into your pleadings and motions "just because." In a
malpractice case, do not plead breach of contract if you know it will not get you any mileage. In
fact, in many jurisdictions, this is referred to as "splintering" a cause of action. It is frownedupon, and usually the theory which is considered superfluous is easily attacked and defeated in a
motion for summary judgment. There is no point in throwing in the kitchen sink when it will be
met with a motion for summary judgment and you will do all the work to respond and lose
anyway. Plead what your case will support in the law and no more. Client's get feedback along
the way, as rulings are made in a case. Even an "unimportant" adverse ruling is seen by the
client as cause for concern. "Is my case bad? Does my attorney know what he's doing?"
The same goes for litigious evasion when it comes to responding to discovery requests.
You can almost always tell the inexperienced and lazy attorneys by their answers to discovery
requests. They load them with objections and give barely any responsive information. Do not
be tempted to go that route. It is inartful. It is lazy. It conveys the wrong idea to the client.
Your client thinks, in the beginning, you are a real tough lawyer, but ultimately, a motion to
compel is going to force you to go back to the client and tell him why all of your objections were
worthless and a waste of his money. He has just seen you lose the first battle and waste his
money in one fell swoop! If you are inclined to evade discovery because it will be a lot of work,
37
you need to tell your client to get you some more money to pay for that work. This is just the
cold life of lawsuits and litigation. Do not run from headaches. Turn them into billing
opportunities.
If you take anything from this chapter, just know that attorneys who do not have a
command of all aspects of procedure have no business in court, and they have no business taking
on matters that will go to court. This eliminates about 60% of the business out there. Get your
book and read it. If you are not inclined to master procedure, do yourself a favor and avoid
malpractice and worrying about when you will be discovered to be the "non-litigator who got in
over his head." These attorneys are everywhere.
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Chapter 16
Other Paperbacks on Substantive Law
Usually, there will also be inexpensive paperback books available which cover
substantive areas, such as probate, punitive damages, real estate, etc. These are also very good
to have and highly recommended. On-line research sources as recommended early in this book
are good, but there is just "something" about having a quick reference book where you can flip a
few pages and find your answer. While such books exist in raw form (statutes only), get the
ones with commentary and case law cites.
These books are not a substitute for a good on-line subscription service. But you will
find yourself being more productive not having to go on-line all the time when a clear answer is
right in that little book - right where you expect to find it. When you know the answer is in
Section 51.002 or 51.003 of the Property Code, that little book will get you there at lightning
speed compared to on-line sources. This is especially helpful when sitting with a client and
discussing the law of his case. The on-line stuff is better for gaining a "deeper" understanding
of some nuance that is not covered so well in the nifty, little book.
39
Chapter 17
It's Time to Shag Clients
Finally, the subject of where to get all these clients. Bear in mind something important.
Getting your first clients is often not as easy as adding clients to your portfolio. So, you may
have to do some unpleasant, but necessary things.
One way is to cold call. "I'm an attorney in the area helping businesses with collections
on delinquent accounts. Can I speak with your person who handles accounts payable?" To this
day, my attorney friends cannot bring themselves to believe this method was a primary
component in starting my solo practice. "Why the shame of it! Having to grovel like that."
Meanwhile, they still ponder whether law school was really worth it. Go figure!
There are other ways, too. Keep your eyes and ears open. One attorney boasts how
easy it was to start a family practice by frequenting topless bars. "So many of the people who
go there have marital and child support issues. They are basket cases. Plus, you pick up some
criminal defense, too. And hey, you get entertained along the way." (If you're into that sort of
thing. I never found them entertaining and would not go if you paid me.).
If you have young kids and go to PTA-type meetings, once you are known as an attorney,
inevitably, single parents will be asking you about divorce and child support questions. If you
enjoy a game of pool, go to a pool joint with your friend. Challenge a few other guys you met
over a beer to a game of pool. Strike up some conversations during the game about law
practice:
You're a lawyer?
Yeah.
Do you know anything about construction cases?
So, you picked up your first construction case from the guy in the pool hall. Ask him
some questions:
Were you the only one who got burned?
Oh no! That evil scam artist burned the tile guy, the electrician and the
drywall guy. Probably others, too.
Really? Proving this pattern may help our case. Can you find these guys?
You might pick up a handful of other clients from this one, little case. (Bear in mind,
you need to apprise your clients about the prospects of a possible "limited pie" and simultaneous
representation of multiple clients. Be versed in the rules of professional conduct.)
40
If you attend church, this can be a good venue to find clients. The idea is basically,
when you are out and about among people, make it known you are a lawyer. You do not have to
say, "I'm a lawyer, and I need business." You can just say something, like, "What do you think
about the new law that X?" Then, the conversation strikes up, and when you appear versed in
conversing on law, it will become obvious to them. They will ask, "Are you are lawyer or
something?"
You have to be around people for them to know you exist. Do not sit around thinking
that your intellectualism will draw clients. It will not.
If you get some trial experience behind your belt, your name will get around. There are
plenty of clients out there who pick attorneys simply because they are known to go the distance
for their clients. In fact, there are other attorneys out there who take on cases but are like deer
the headlights. They took the case hoping it would settle, but they cannot get it settled. You
will get calls from these attorneys asking if you want to be "cut-in" on the case for helping to try
it if necessary. Other attorneys who took on cases but are not comfortable with procedure will
call you once in a while and say something like, "I need help responding to a motion for
summary judgment."
Do not ignore phone calls. Make your cell phone number available. Take calls after
hours and on weekends. A client who calls you after hours or on a weekend and can actually
reach and talk to you is a good thing. Clients need regular hand-holding. While you take all
the legal mumbo-jumbo for granted because of your comfort with it, many clients are not
comfortable at all being involved in a lawsuit. The number-one reason for grievances, bar none,
is for not returning calls. Typically, this is also coupled with sitting on clients' files and doing
little to nothing on them. Then, if a retainer has been paid and the work has not been done, when
the client asks for a refund, the procrastinating attorney will be in a jam because that retainer was
spent a long time ago, and he or she does not have money in the bank to give a prompt refund.
This is how we do it. You waded through all this to get here. No miracles. No magic.
No special skills. But you will never get these people if you do not have the skills as described
in the previous section to close the deal. Moreover, you will never get these people if you fail in
the first few months because you were misguided enough to load yourself up with overhead and
guarantee yourself failure.
You will lose all of your clients en masse if they are buddies and you foul-up on one of
their claims. They will all see you as incompetent. You will lose them all en masse when the
landlord shuts your doors for non-payment of rent. And you might be glad that the suffering
from all the monthly overhead ended anyway. So, get the "entitlement mentality" out of your
head. You do not need to spend money on overhead, except for the basic research materials, a
computer, the internet, a cell phone and some office supplies. You should never be in a
financially precarious situation when it comes to being a lawyer. There is no point in it. You
are paid for your knowledge. You have footed that bill and likely will be paying it for years.
You do not need more bills.
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Finally, do not represent friends and family, with one small exception. It is okay to
represent them with something simple and "transactional-like." But if you do, charge them the
going rate - or not less than 75% of it. Friends and family bring an additional burden on you
when it goes beyond this. Once you get deep into it, how are you going to withdraw and fire
your client? What if it does not go the way they hope and they start beginning to believe their
misfortune is your fault? This is not an "it might happen." This is an "it will happen." You will
feel used, and your relationships will become strained. It is very difficult to say, "no," but you
are best-advised to develop this habit before bad circumstances visit you.
As should be obvious, if you follow the advice in the prior chapters, this chapter almost
takes care of itself. You still have to make yourself known, but that is about it. Amazingly, too
many readers walk away after reading this book as if they just read a "think positive" book by
Tony Robbins or Suze Orman. The big critique is, "You still didn't tell me how to get clients." I
wish there was a mathematical logic to solve this problem, but there is not. There is not a soul
on the planet who can tell you, "If you go to the bingo hall on Thursday evenings, you will walk
out with 1.5 clients." Sorry. It does not work that way. As a counter-critique (fair is fair),
young attorneys feel like their prestigious JD degrees and new law licenses ought to entitle them
to something. Then, when they realize they are not client-magnets, they are looking for
someone else to magnetize them. Sorry, you will have to magnetize yourselves. This book
shows you the concept of rubbing two pieces of iron together to create a magnet. You have to
do the rubbing. I cannot do it for you, nor will anybody else. As you make your attempts, do
not give up going to the bingo hall (or wherever) because you did not get a client that day. There
were people there listening to you and sizing you up. They are thinking about maybe talking to
you about preparing their wills in the future. They were not ready to discuss it that night.
Also, if you do not enjoy the venue in which you try to find your clients, you are
probably wasting your time. You are not fun if you are not where you want to be. When you
are not having fun, you are not as approachable - whether you think it shows or not. Find
something fun which involves people who are potential clients.
If you try to build clients without building relationships, it is more difficult to build a
steady practice. Using the bingo hall example above, if you give up on the bingo hall idea
prematurely, you missed out on those people who were planning on discussing their needs with
you in a week or two. Many people, first and foremost, want to be comfortable with, and know,
you before they start entrusting you with their legal needs. So, the attorneys who are not out
building relationships are missing out on half of what it takes to build a clientele.
Obviously, you need to use some common sense about the crowd you run with. Your
broke contemporaries are not likely going to be hiring you. You need to focus some part of your
life on building relationships with those who can afford to hire you. Often times, you can predict
the particular needs of such people, too. At bingo halls, the needs more typically will involve
wills, estate planning, probate and real estate.
If you are a dedicated introvert and will not work to change this trait, I apologize that this
message appears so late in the book. You might as well not read any further. Law is, ipso facto,
the practice of regulating human relations. You cannot take humanity out of it. A confirmed
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introvert will need someone who can get clients and business. Usually, a job as an associate, an
assistant district attorney, etc. are where introverts need to go.
Next, you need to know when to say "when."
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Chapter 18
Avoiding the Most Common Mistake of Solos with Client Bases
How is it that so many solos out there have decent client bases but are still on the verge
of broke, living paycheck to paycheck and wondering if law school was worth it? Perhaps they
carry too much overhead. This was covered in the first few chapters. Too much overhead is a
sure way to minimize a lawyer's pay and satisfaction. Read those chapters again if you have
begun to question the lessons of them.
On another note, many of these lawyers just do not know how to pick clients. They are
so eager to have clients that these attorneys act like sex-starved cats - not discriminating in the
least.
Here is what happens when you take clients who cannot afford the going rate: You get
multitudes of clients who cannot afford you. This might sound like a good initial problem to
have, but it is a horrible problem. You do not believe this? Go look at all those struggling
lawyers with lots of clients. They cannot get away from it. They have pigeon-holed themselves.
These clients' cases last for months, and some can last for a couple of years or more. They go
on… and on…. and on…. and the client cannot afford to pay you anywhere close to what you are
worth. Maybe you are averaging about what your pizza delivery guy makes.
This is no way to go. But you signed them up. What are you going to do? You can
withdraw, perhaps. But it is work to withdraw. Now, you are doing all the work to withdraw
for… you guessed it... no money.
"On the flip-side, he's really not a bad guy, and he pays $100 or so when he can." Now,
you have started your own corporate culture. It clamps its tentacles into your psyche. It
emotionally drives you to keep making bad decisions. You are guaranteed a miserable life if
you do not select your clients well from the starting gate. It is better to have no work than to
take grossly sub-par work. Decent work will come along if you follow the advice in this book.
Wait for it, be discriminating, and catch the clients who can pay you enough to make you happy
cleaning up after their messes.
You will have to become comfortable with idle time - lots of it. If you missed this, here it
is again: You will have to become comfortable with idle time - lots of it. But that is okay.
When you really make $200+ an hour for a real hour, it is a good living at two hours a day.
Have fun when you do not have work. Do not load up on miserable work that does not pay.
Do not let clients who paid well in the beginning suddenly stop paying. Keep the
pressure on them. If they are tapped, try to wrap up their matter expeditiously and with minimal
work (assuring the maintenance of good professional standards). If you are smack in the middle
of the matter with tons of work to go and the client is irretrievably tapped, you have to get off the
case. This should be either the client's fault or just bad luck. It should never be your fault.
You should make it clear up-front that litigation is expensive and that your client needs to be
financially capable of going the distance - whatever that might entail. At least this way, the
client must admit that it was uncertain and the client took the risk anyway.
44
What about pro bono? Is this a good way to start a client base? How about we answer
a question with another question? Have you ever handed out a piece of cheese to a dog? You
are bound to get the same dog over and over, and if there are other dogs witnessing this gracious
act of charity, they are sure to be there as quick as they can. The simple answer is, "no."
"But in law school, they taught us all about giving back to the community. They told us
the giving comes back in spades." Frankly, it does feel good to do a nice deed here and there.
This book does not aim to discourage this. But remember, you have $150,000 in student loans
and are broke. Let the law professors do the pro bono work while you get on your feet and away
from the brink of credit default. Sure, you can count on pro bono work for giving you the
satisfaction of a true act of charity. But if you expect to build a practice that way, you need to
start back at page 1 of this book.
Routinely, you will see, as you establish in practice and get out and meet other
established attorneys, those attorneys who regularly do $20,000 worth of work on a case where
they have been paid $3,000. And you wonder why they doubt whether law school was a good
idea? Law school was fine… except it did not teach them the art of making money. Thinking
is not making money. Foregoing money is not making money.
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Chapter 19
You're Smarter than You Think: Beat this into Yourself
Have you had those moments yet where you tell some lawyer, "Wow! That was smart.
How do you come up with these things?" I remember the first time I did. It was back as a new
attorney on one of my very first cases.
My boss, who was in his 60's at the time, handed me a personal injury defense file and
said, "I want you to take this Thibodeaux file, review it, and draft a motion for summary
judgment." I replied, with a blank look (am I supposed to know what he means?), "Ok."
So, I take the file and go over it and over it. It is not very thick. I understand the nature
of the claims. The plaintiff was hit by another driver while rounding a turn in the road. The
defendant driver was working for Atchison-Topeka Railroad. Our client, Thibodeaux, was the
landowner. The plaintiff alleged the other driver was negligent and Thibodeaux was also
negligent. Thibodeaux did not keep the brush trimmed and caused driver visibility to be
impaired.
I look. Look. Look some more. Finally, I go back. "Craig, I have gone over it
backwards and forwards. I understand what the claims are about, but what exactly am I
supposed to base a motion for summary judgment on?"
Craig tells me, "My young man (he was Irish). Did you see the grazing lease in there?"
I said, "Yes, I saw it." He replies, "Well good. There's your summary judgment. Go prepare
it." Craig was a fabulous mentor (he is now deceased).
Honestly, I was clueless. I could not bear to return back to the library table with that file
to sit and stare at it blankly while racking my brain aimlessly for another hour. "Craig," I
confessed, "I honestly don't see it. I don't even know where to begin."
"My dear boy. They taught you in law school that one of the elements of negligence
involves 'duty.' Did they not?" I replied, confidently, "Yes. That, I know." Then, he says,
"Well, go do your research. Find out, as between a landlord and his tenant, who has the duty to
keep the place up."
"Holy cow! Craig, I have to ask. How do you come up with these brilliant moves?"
Craig was great. He could have said he was a genius, but he told me like it was. "As you go
through life as a practicing attorney, you are going to get your butt kicked around the block a few
times. It's going to hurt, too. Those are the best lessons you will ever learn. It's going to hurt
so bad, you will find ways to pass that favor down to the next lawyer."
He was right, too. Not only that, I appeared for my first time in district court ever. I
argued the motion for summary judgment, and we won. It was so exhilarating for a baby
chicken like me who just barely left the egg shell. Craig talked to me after the ruling.
46
So, how does it feel to be a 500-pound canary? (He was giggling like a kid and
grinning ear to ear) This is just the beginning of your career. You're going to be
doing a lot of butt-kicking, my boy. Most attorneys throw their garbage to their
baby lawyers and teach them how to get used to losing. That's not a good way to
teach a young lawyer how to become successful and expect more of himself.
You're going to be expecting a lot of yourself.
Then, he proceeded in front of me to call some attorneys we were working with on another case
and brag to them how his baby attorney kicked the tails off of two veteran attorneys. He was
proud. I think he honestly loved teaching more than practicing law.
Our next case right after that was a tortious interference case against Tandy Corp. (Radio
Shack) by a franchisee who claimed Tandy squelched a deal he had lined up to sell his store.
The short story there was it was a successful case which required no more than about three
months. I prepared discovery requests asking for, among other things, identities of Radio Shack
dealers who complained to Tandy about the new policy of Tandy. Tandy responded, "None have
complained." Our clients took issue. They told me I might call the Radio Shack Dealers
Association and talk to them. The RSDA was a group of dealers who banded together to try to
prod Tandy to be more equitable to franchisees.
I called the RSDA and told them what was going on. The lady who headed the RSDA
talked to me. She laughed in amusement. "We have a newsletter we put out every month, and
we send a courtesy copy straight to the President in the Ft. Worth tower. I know this topic has
been in our newsletter several times with dealers explaining how oppressive and possibly illegal
it was. It's widely known."
I said, "You have to be kidding me! Look, we have a mediation Monday (it was Friday).
Can you find these articles and fax them to me?" She said, "You'll have them first thing in the
morning." I went to the office that Saturday morning, and in the copy office, we had a ream of
that old, thermal fax paper rolling all the way to the floor and curled up several times. I made
good copies and called Craig and Carl. "We've got it! It's for real. Tandy is going to be treating
us to a royal lunch."
It was a good lunch.
Was this genius? Was it luck? No. It was just like life. That one event concerning the
RSDA taught me that you build your cases with information. Much of this information is not in
the law books. You have to seek it everywhere. This does not require special acumen or
intelligence. It is just work and persistence, the same as legal research.
I miss Craig. But he was tough, too. He knew when to shake me up. One time, he told
me to subpoena a judgment debtor and get him in and take his deposition. So, I went to the
form-books and found a subpoena. I plagiarized it nicely and had it served on the debtor.
About a day or two before the deposition, Craig tells me to grab the file so we can
prepare for the deposition. I brought him the file. He opened it up. He looked at me with a
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stare that just pierced my gut. "Where are the documents?" I knew I was in deep doo, but I did
not know what he meant. I asked, "What documents?" He said, "Why didn't you make him
bring his documents? Do you know what a subpoena duces tecum is?" This was not going
well.
I learned very quickly what a duces tecum was. "How the blank, blankety, blank are you
going to find out what this guy has to collect? Are you just going to sit there and hope he
remembers and tells the blanking truth? We have to call off the deposition. We can't go
forward like this. I have to call the client and tell them we have to reschedule. We billed the
client for this and wasted his money." I do not know what dying exactly feels like, but at that
time, I felt like I wanted to go dig a hole and fall in it and never come out.
I left his office, and some time later (it might have been the next day), he calls me back
in. "I need to ask you a serious question," he said. "Are you sure you want to be a lawyer?" Of
course, I was sure, but I felt so bad I honestly wondered for the moment. I anticipated the
prospect that this meeting was going to be the last time we saw each other. "Look," he says,
"lawyers can't be sloppy like this. Not everyone is cut out for it. It's nothing to be ashamed of
if you aren't. Just do yourself a favor and figure it out now. Don't waste your life trying to be
something your heart is not into. You have an accounting degree. Maybe you should be an
accountant." I was dying all over again. My eyes were watering. Then, Craig tells me:
Look. I am not telling you that you're not good enough or capable enough. If
this is what you want to do, you are smart enough to do it. You just need to
know that, as a lawyer, you're nobody's friend. The plaintiff hates you. You're
representing his defendant. The plaintiff's attorney hates you. You're trying to
kick his tail, and you might even get him sued for malpractice by his own client.
Your client hates you. You are billing him to death, and he can hardly afford
you. Any one of them will sue you if you give them the right opportunity. Law
school taught you to be too nice. That's all good and well in academia, but in the
real world, you have a bull's eye painted on you. Kill or be killed. Is this the life
you want?
Well, I did not go through law school to be anyone's fool, and so, of course, I needed to
make some adjustments. Then, he told me, "I don’t know how many times I have to tell you
that I pay damn good money for all those books in the library. Your answers are in there. Pretty
much anything you ever want to know. Stop acting like you need to know all the answers in
your head. I want to see you buried in those books every day." He did. I kept my promise to
him on that.
There were three difficulties Craig had trying to teach me. The first was to research.
The second was to plagiarize, and the third was to go for the jugular.
So, now, you know why I emphasize research so much. I would very regularly (twice a
week, or so) have 25 books from the Southwestern Reporter laid out all over the library on tables
and chairs, opened to particular cases in my trail of research. This was my habit for the whole of
my career there. Craig's wife, Susan, used to lightly joke about it. In fact, even after I went to
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another firm later, this remained my habit. It still is. The only thing which has changed is that
the days of hardbound books are over. I still always inundate myself in case law - not for the
heck of it, but on my clients' cases. I want to know where my case stands and what I can expect
to do or not do with it. I hate surprises and being schooled by other lawyers who did better
research.
If my client is going to get his tail whipped, I am going to find it out, and I am going to
make sure there is no other reasonable conclusion to draw from applying the pertinent laws to the
facts. If I find cases supporting my client, I want to make sure my research trail is at an
acceptable end. This means more research.
There is a mental process involved which is difficult to describe. The best way I know to
describe it is that I research, not to win, but to do my best to not lose. This means not stopping
once you find cases which support your point. The other lawyer is finding cases to defeat you.
You have to do complete research. After you find cases to support you, you have to find and
debunk all the cases which the other side might find and use. Maybe the following quote will
resound with better clarity to you:
If you know the enemy and know yourself, you need not fear the result of a
hundred battles. If you know yourself but not the enemy, for every victory gained
you will also suffer a defeat. If you know neither the enemy nor yourself, you will
succumb in every battle.
― Sun Tzu, The Art of War.
After learning the importance of research, the next issue was plagiarism. I would find
hoards of cases to cite in my motions and briefs, and I would cite to them abundantly. In my
briefs and motions, for example, I would write something like, "An affidavit in support of a
motion for summary judgment may be based on the testimony of an interested witness, and
summary judgment may be granted if it is uncontroverted. Jenkins v. Jones, 312 S.W.2d 518,
523 (Tex.Civ.App. - Dallas, 1982, no writ)." Then, I would turn my drafts over to Craig.
Typical Craig. This is how it would go:
Is this what the Jenkins case says?
It is.
Are you sure of it?
I'm pretty sure (he was making me start to doubt my memory).
Well, why didn't you just quote the exact language in the case so we don't have to guess?
So, I went back to the drawing board. Craig was very patient. He let me spend hours
trying to get things right. I came back with the next draft:
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Didn't we talk about this already?
I changed it. See? Here, here and here.
But what about these? And those? And those?
If I change everything, there won't be an original thought left.
Nobody wants you to be original, my dear boy. When you're being original, you're
going to make mistakes. You're going to raise doubts. Plagiarism is bad in academia.
In the law, plagiarism is the name of the game. Bring it back when you're finished.
The biggest tug and pull for Craig was to get me to stop letting people dilly-dally with
me. Ours was a small-town practice about an hour outside of Houston. We were working in
Brenham as local counsel on the biggest case I will have ever experienced in my life. It was a
major pipeline/storage facility explosion that killed people and damaged houses miles away.
People felt the seismic tremors as far as 70 miles away. There were over 2,000 plaintiffs
spanning a dozen or so lawsuits. We represented the pipeline company.
We had a satellite office in Sealy about 40 miles away. One of the partners there
recalled the day of the event vividly: "I was in my usual place that morning (the John) reading
the newspaper, and all the sudden: Woooooommmmm!!! What the hell was that? It was like
the floor raised up a foot or so. I thought a train must have derailed. 10 seconds later.
Wooooommmm!!!! What in the hell was that?"
My charge was to get the county tax appraiser's mapping data under a public records
request. I was new in town, and I had made a friend in the tax office. I wrote the records
request letter and mailed it. My friend called. He said I had made his boss uneasy with that
letter. It asked for the entire county's mapping system. The county had dedicated years to
putting that parcel data together, and we were basically trying to scam it from them for free. His
boss needed to consider it and talk with the county's attorney. I said fine.
A week goes by. Craig wants to know where his data is. I apprised him I had not yet
heard back. He tells me, "Well call them up and stick a deadline on them. Tell them we need
this stuff."
I did call, but I was my friendly self. I was just the messenger, but delivering the
message a lot more nicely than my principal would have me. The short of it is more time goes
by. Nothing. Craig says, "You go over there and tell them we're not jacking around." I went
over there, but was nice in saying it. "Hey, guys. Craig is pressuring me."
They dilly-dally. More days go by. "Go to your office right now. You write them a
letter saying if they don't give us the data, we are going to sue them. Bring it to me." I was like,
"But Craig, we don't need to be ticking these people off." The reply was brief and to the point:
50
"It's my blanking case. Go do it!" So, I did what he said. Remember, this was a small town.
We were getting ready to jack real hard with the county. And this was our county.
I prepared the draft. It was stern and to the point like he liked it. "Send it certified
before today's mail comes." It was out that day.
The following day, I get a phone call from my friend: "My boss says you can pick up
the discs tomorrow after lunch." We got our data.
Craig was chipper as can be with the news. I brought him the discs the next day. The
conversation went:
So, my young attorney. How do you feel now that you got those discs?
Good. (I tried not to blush from pride)
G.D. right, you feel good! People out there will play with you. They don't want you
thinking you're more powerful than them just because you’re an attorney. Well, my
boy, you are an attorney, and you are more powerful than them. The proof is in the
discs! You're going to be a very good lawyer.
From that point on, he called me "Cheep, Cheep" when he praised some part of my work.
At first, I did not get it. He was referring to a 500-pound canary. He died only about 2 years
into mentoring me. The last several months, he suffered badly with cancer. I remain grateful
just to have these memories. To this day, I still have my good friend in the tax office, although I
left Brenham to come back to Houston over 15 years ago. I never gloated to my friend about the
mapping data tiff and who got their way. What good would gloating have done? I got the data
and kept a good friend.
Not everyone is lucky enough to have a "Craig" like I did. The irony of it was that Craig
taught me I did not need a Craig. Go figure. I did well on my own. I have had some fun trials.
I have done several appeals. I have a good number of published opinions. Although I tried to
get before the Texas Supreme Court a few times, the best I got from them was a Memorandum
Opinion reversing the court of appeals after it ruled against me. At least I can say I was
victorious in the Texas Supreme Court.
So, this is my message to you: There are some great mentors out there. You are very
lucky if you find one. But do not feel unlucky or any less for it if you do not find a mentor like
that. Great mentors are there to teach you why you do not need them. They are not there to
make it easy for you. They are there to make you do your job - and nothing less.
You are smarter than you think. Beat this into yourself if nobody else will do it for you.
All you need is to do is keep plugging and never stop learning.
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Chapter 20
Think Inside the Box
As an attorney, you must not forget to think inside the box. All those academian musings
back in law school were the real deal. Many lawyers like to think that practicing law is nothing
like what they teach you in law school. They believe they have graduated beyond academia.
They now think outside of the box. Wrong!
There are certainly things law school fails to teach. The big failing is how to run a law
business. But all that theory…. that is not just for the professors. That is the law. It is the way
law works. These worldly lawyers who left lofty academia for real life are occasionally missing
some nice gems. I will share two real stories.
The first involved a situation where my friend's sister, an attorney, was appointed as an
ad litem for a little boy whose foot was cut off in a riding mower incident. An insurance
adjuster met directly with mom and dad to enter into a release whereby the carrier would pay
about $70,000 into an annuity that would pay out quite a bit more when the boy reached
adulthood. These are fairly rare cases out in the sticks outside of Houston, but they do happen
once in a while.
My friend's sister, as an ad litem, was asked to approve the settlement and recommend it.
Not having litigation experience in the civil arena, she wondered if my friend (her brother) could
call me and run it by me real quick. So, we talked on the phone. It was a simple set of facts:
Dad was working on a ranch - do you know the J____ ranch?
No.
Oh, it's a huge ranch owned by the J_____ family. They're mega-rich.
Ok.
Anyway, dad was going to be receiving a load of lumber, and he thought it would be fun
for his boy to see the big equipment unloading it. So, he took his son with him. When
they got there, his boy was sleeping in the front seat. The lumber hadn't arrived yet, and
it was a cool enough day. So, he rolled down the window and let the kid sleep. He was
going to wake him up when the big trucks arrived. In the meantime, he thought he'd
finish some mowing that he started earlier. While he was mowing in between a barn and
a fence, he put the mower in reverse to back up, and he ran over his kid's foot. The kid
woke up and walked up behind him. Dad never saw it coming.
Man! That's tragic.
Yeah. It mulched his foot, and so he's an amputee, now. The insurance adjuster came
and talked to them. They are wanting to pay them about $70,000 to put into an annuity.
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These folks don't have an attorney?
No. Well, actually, they tell me they did go to an attorney and get some advice about the
insurance adjuster's offer. They said the attorney was being honest and saying that since
dad did it, they should just take the money and feel lucky. He told them there was no
point in them paying an attorney to help them get the money that was already on the
table.
Well, I've never seen an insurance adjuster be charitable like that. There has to
be something more to this. Was dad an employee of the ranch?
Yeah. I think so. I'd have to double-check. But I'm pretty sure.
Okay. See if he was on the clock when this happened and let me know.
Okay. I'll call you back in a few minutes.
(ring)
Yes. Dad was an employee and he was on the clock.
Don't approve it, yet. Tell them hold off on the deal. Let me research it.
Respondeat superior, baby! How on earth did that other attorney miss that? Maybe he
figured the liability all went away because dad did it. Maybe he figured that dad could get sued
for subrogation if the carrier had to pay. A wash.
Nope! Digging into those murky areas of law where only the spiders go, there can be
found a couple of interesting doctrines. The first is parental immunity. A parent is immune
from a claim of negligence by a child. No claim against dad.
The second is vicarious immunity. Can dad's immunity inure to the carrier since the
covered event resulted from dad's negligence? Nope again! The cases - and there are fewer in
the entire history of the state than you can count on the fingers of one hand - hold clearly
something very simple…. "Screw the carrier. That's what insurance is there for."
Was it brilliance on my part to come up with this answer? You bet it was! I was
brilliant enough to know not to assume I had the law all in my head. I was brilliant enough to
go dig until I found my answers and was confident in them. This took some hours. Not
minutes. It was work.
That was a hell of a nice fee at 1/3 of the settlement amount! I remember my initial
phone call to the carrier's attorney to introduce myself and tell him the deal was dead. He was
cordial but thrown-off a bit. I remember him telling me, "Well, that number might be a little
low and you might get it up a little higher." Yeah, right. A little higher. Not to mention it was
53
one of those tippy-toe cases to litigate. The carrier could not pound dad. It would only bolster
our case! It settled quickly.
The second example involves a case of defective roofing shingles. My clients were
referred to me by another attorney who told them they did not have a case but should get a
second opinion. They came to me. I am leery of any case another attorney rejects, but I will
give them a listen.
So, the client comes to me. I ask him to tell the story.
We bought a house. As part of the deal, the lender required a new roof. So, the new
roof was put on, and we closed on the house. It was a few months later, when it started
raining a lot, I was going to bed one night, and I was kind of drowsy. It was quiet. I
heard this "tick… tick… tick…" I figured it was like the second hand on a clock. But
as I kept hearing it, "tick… tick… tick…," it suddenly dawned on me. We only have
digital clocks. So, I grab a flashlight and go up into the attic. I shine it around, and the
roof was leaking bad.
Okay. Where was it leaking?
Everywhere.
("Smart a___," I thought to myself). No really. I need you to be more specific.
Was it over the living room, the bed room, the kitchen? Where was the leaking?
Everywhere. I mean everywhere.
You mean literally everywhere?
Yes. Everywhere. So, I got a video camera….
You got a video of this?
Oh, yeah.
You wanna…
… of it leaking everywhere?
Yep.
Let's see it.
Here you go.
(Popping the video in and waiting a few seconds) Holy crap! I didn't think this
was possible. It's leaking everywhere!
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That's what I told you. You should have been in my shoes when I discovered this in my
own house!
The house was messed up pretty bad. The conversation turned to the warranty. Surely,
the manufacture has a warranty. Yes, they did. In fact, the attorney who rejected the case did
his research. He found and printed the warranty, and he gave it to my clients along with his
sincere condolences.
The warranty was limited to replacement of the defective shingles and the pro-rata cost of
labor to replace them. The manufacturer had already replaced the roof. No claim was left
there. But the manufacturer denied the cost of having to gut the house and get rid of the water
damage, mold and mildew. It expressly excluded in big, bold, upper case letters, "THIS
WARRANTY EXCLUDES ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGE OR LOSS TO THE
STRUCTURE OR DWELLING AND ALL PERSONAL PROPERTY LOCATED THEREIN.
THIS WARRANTY IS THE EXCLUSIVE WARRANTY, AND ____ HEREBY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE."
As soon as he saw this, the prior attorney forgot to think. "Clearly, the disclaimer is
conspicuous and disclaims all the damages. You can look right in the U.C.C. and see how the
warranty of merchantability is disclaimed."
I considered this a bit differently. This was a case screaming for a remedy. A hundred
doctrines started racing through my mind like flash cards. Next, next, next, next, stop!
Unconscionability!
How can this warranty be conspicuous? Did my client ever see it? No, he never saw
anything. Where was this warranty language printed? On the packages of shingles. There is
no way a typical homeowner could be expected to ever see those packages. Contractors pick
them up, install them, and throw the paper in the garbage. BIG SHINGLE, INC. has a problem!
I scour the U.C.C. and find the provisions on disclaimers and unconscionability. I spend
probably four hours researching all the cases. I was happy with the legal principles I found in
the statutes and cases so far. I made up my mind at this point that I was going to file suit. But
you never know…. Do not just quit researching because you found enough to justify suing.
Research and find out just how badly you can crush your opponent. You never know what you
might find.
So, I dig, dig, dig some more after that. BIG SHINGLE has been sued before
somewhere. Yes, it has. A hefty handful of times. A good several hours was spent reading
cases that were not directly on point and were not really helpful. I needed my case.
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It so happened I finally came to Pennsylvania. My case! The issues were on all fours.
There, the Pennsylvania court of appeals held that the warranty disclaimer was ineffective
because it was inconspicuous and unconscionable.
More flash cards. Next, next, stop! A freaking knowing violation of the Texas
Deceptive Trade Practices Act. Treble damages. The Pennsylvania court of appeals has told
them, in no uncertain terms, their warranty is unconscionable and unenforceable. Yet, they
ignore it and continue to act like they have the upper hand on my despairing clients. My clients'
case is a knowing violation. How can BIG SHINGLE possibly deny knowledge? It is right
there in a public, published opinion by the court of appeals.
That was another case that paid a nice chunk and was easy to litigate.
Fish stories are fun. But nobody enjoys these incessant stories as much as the guy who
caught the fish. So, I will stop with the stories here (but more to come later). On a final note, I
ask you to try to imagine how much research I have done on cases I have rejected or initially
signed up but decided to abandon. If I could get paid for all that, too, I would be a very rich
person. Do not be afraid that your research will lead you to bad news. It is not time wasted.
That research sticks with you. You will use it somewhere else. You will also use it to avoid
spinning your wheels on lost causes.
The point of this chapter is that law school is for real. It taught you hoards of doctrine in
the first-year contracts course. You learned hoards of doctrine in those other courses, too. Do
not forget those. Do not start thinking, like many lawyers, that law school was just some fantasy
that should remain boxed inside the sphere of inexperienced academicians. These doctrines are
for real, and they will come back and reward you. But you have to research.
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Chapter 21
Take on the Big Guys: It's only a War of Words
When you have a complete and well-rounded working knowledge of all the basic
ingredients that make up the baloney we call "the law," you will have occasions to go up against
some big players. I will share one such story.
I had occasion to represent a doctor who worked in the state prison system. He was sued
by the system's pharmacist for libel. Because Doc was a state employee, the state took on his
defense. The assistant attorney general undervalued the plaintiff's case (I probably would have,
too). But there was a bigger problem.
Doc lost - big. A $375,000 judgment for libel. All through the case, the assistant
attorney general told Doc that plaintiff was blowing smoke. "Even if they win, it's a libel and
'hurt feelings' case. The state includes up to $100,000 in indemnity for its employees. No jury
will ever award $100,000. Don't worry. We're trying this one."
After the judgment was rendered, Doc gets a letter. "Sorry it didn't go well for you.
And by the way, libel is an intentional tort. By statute, indemnity is not available for intentional
torts."
Well, I knew it would be a tentative case to complain about a "he said/she said" over
whether the assistant attorney general undervalued the case. Even so, sometimes stuff happens,
and it is not malpractice just to estimate and guess wrong. There has to be more before I can
consider what can be done.
It so happened the state brought an appeal for Doc. In their appellate brief, Point of
Error #1 complained that the trial judge kept out the state's offer of the indemnity statute into
evidence. The state wanted the jurors to know that a plaintiff's verdict would be coming out of
the taxpayers' pockets.
Bam! My client was telling the truth. He was misled into thinking there would be
indemnity. The appeals court affirms. I make a demand on every assistant attorney general in
the signature block in the pleadings, all the way up to the top - to the head honcho himself. I
mean The Attorney General. He was listed as an attorney for my client in those pleadings.
I received a rather unabashed attempt to intimidate me. This came from the Office of the
Solicitor General. The Solicitor is legal counsel for the Attorney General. The letter was
succinct. I was off my rocker, and I obviously had no clue about the law of official immunity.
If I was to carry on, they would have my tail sanctioned.
Honestly, it was a bit intimidating - not because I doubted my knowledge of the law - but
because these guys were being pretty sharp. Maybe an older, wiser attorney, despite justice,
would have said, "These are waters in which attorneys should not swim." I was only 31. I was
"it." There was no firm or senior attorney to back me up. This decision was on me. I had some
odd thoughts swirling around in my head. These guys certainly have connections and maybe
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people who will back them up. I wondered if I was going to be harassed by local police and
given bogus speeding tickets, or who knows what? But I put my nerves aside. I did my
research. In fact, you can rest assured I did it before I ever sent the demand letter. Now, it was
time for me to keep doing my job.
I told them in a reply that we obviously see the case law from different perspectives. I
told them I was fully aware of the law on official immunity. I showed them the malpractice
cases against state doctors. Those cases had held that state doctors do not benefit from official
immunity because the public policy will not extend immunity to professionals who render
professional services and who inflict harm while doing so. To me, it sounded undeniably like an
attorney fit right in to this reasoning. How could it not? So, I told them I had no choice but to
continue on. I asked them to reconsider before I filed suit.
They dilly-dallied. Put me off. Put me off. Put me off. This went on a long time.
Maybe 3 or 4 months. They kept telling me, "Give us some time. We have people to
coordinate, but I am telling you, if you file, it's going to be your biggest mistake you ever made."
I told them, "Hey, limitations is coming up. You leave me no choice." They were playing me.
They figured I would cower and choose to let limitations expire.
Well, a week goes by, and The Attorney General, himself, was served with citation of my
lawsuit in the luxury and privacy of his own home. The Solicitor calls and says, "If it goes away
now, you'll have a $75,000 check in the mail." Given that our realistic best day ever would be
$100,000 per the indemnity cap, my client said, "Take it." I agreed with that decision. It helped
the client settle that judgment.
The moral here is you will have opportunities to take on some big kids if you look for
them and are not afraid. They are scary, but they make good stories. Do not take them lightly.
But do not be a coward if you are convinced in the integrity of your cause.
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Chapter 22
Hone Oratory Skills by Simplification
Develop skills which help you unequivocally get your point across to judges. Although it
is imperative that you must know the layers of the onion and be able to dissect each element of a
claim, these are what you use as your basis for making your points. These are not the points you
make.
The only way to describe this task is by example. I once had a personal injury defense
case. Prairie View A & M University was sued for premises defect, and my client, a contractor
for the university, was sued for negligence. The plaintiff had serious 3rd-degree burns when he
was working on a steam pipe. The valve was supposed to be closed so that he could open the
pipe and work on it. However, it turned out that there was a by-pass around the valve in
question, and nobody closed the by-pass valve. He cracked open the pipe, and his skin melted
off.
Sovereign immunity was the university's defense. Of course, it does not apply when
there is a defective condition on premises owned by the government and the government has
knowledge of the defect. I was piggy-backing on that concept as well for my client, though I
also had some other defenses.
During trial, the plaintiff was convinced to non-suit me and go only after the university.
But I could not get the university to drop its cross-claim against me for contribution. So, I was
stuck for the long haul. At closing, plaintiff argued that my client was not to blame. It was the
university's fault. "Put 100% on the university."
The jury came back with a plaintiff's verdict. They tagged my client for 25%. Both the
state and my client appealed.
During argument on appeal, the state went first. They discussed the law on premises
defect and knowledge of the defect, etc. You know, things like, "A person has knowledge of a
condition when he is aware of circumstances which indicate that the condition exists." Bla, bla,
bla. It was clear enough - provided you were versed from a lot of research and briefing. But
appellate judges do not research as much as the litigants. So, it is now my turn to argue….
I am up at the podium, making my spiel about something on official immunity or
whatever (I forget), and then, one of the justices stops me, "Ah, counsel. But wasn't there proof
in the record that the university knew of the defective condition?" (Kind of makes you think the
state never expressed this idea clearly enough). My reply was succinct:
I am glad you asked that question, Your Honor. I am not so sure this issue was
adequately addressed earlier. These pipes are carrying hot steam. Steam is
extremely dangerous. These guys working out there worked with each other
every day. They liked each other. Now, the dangerous condition is not about
valves and hardware. It's about steam. The dangerous condition has to be that
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there is steam in the pipe when there should be none. In fact, that was the way
the trial court instructed the jury. If anyone actually had knowledge that there
was steam in those pipes and then, they tell the plaintiff to go ahead and crack the
pipe open, that's pretty much the same as attempted murder. The facts of this
case just do not support that.
The court of appeals reversed and rendered a take-nothing judgment. In the opinion, the
justices said how bad they felt for the plaintiff, but the law is the law.
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Chapter 23
Don't be a "Settling Attorney"
The streets and courthouses are filled to the brim with settling attorneys. I am referring
to those attorneys who are hell-bent on settling because they are ill-equipped to go all the way.
Sometimes, you have no choice, and you just have to take what you can get. You are
constrained by bad facts or bad law - maybe both. But in way too many cases, cases are settled
too quickly.
I see attorneys all the time with decent cases to litigate who will go into a mediation
knowing fully-well they are going to take the other side's last offer that day. They are afraid of
the consequences of what happens if a settlement is not reached. "Maybe I'll have to go to trial,
and I am not so sure I can do that."
If you have a good position and you know how to reasonably value your case, then, by
gosh, stick to it. Minimize your flexibility. I recall a mediator in a construction case once
telling my defendant client at the conclusion, as the settlement documents were being signed, "I
want you to know your attorney is so stubborn and made settling this case so difficult that he
saved you at least $20,000." That made me feel good (he was right, too).
I have seen how to watch and pick up on cues to know when the other side is ready to
throw in the towel. Learn these skills. One of my favorite mediation tactics is, when you feel
you can get it settled but the other side might be posturing, tell the mediator, "This is getting
problematic. We need just us attorneys to step out and have a quick talk without the parties
present." You will always be permitted to do this. Then, I start sizing up the other attorney.
Watch his demeanor. See if he is squeezing for a few more peanuts.
In one case, I did this where the issue was a will contest. Testamentary capacity was at
issue, as were undue influence and lapse of gift. The other side had a difficult case, and we
definitely knew that much. At my typical "just the lawyers and mediator" meeting, I started
talking to opposing counsel. I recall being about $75,000 apart or something along those lines.
He was saying things like, "My clients aren't going to settle at your offer. We are way far apart.
You need to go a little higher." Forget "way far apart;" the key word, "little" was the nail in his
coffin. (Of course, you would figure I would not have let him know that he leaked it, but I did).
After that, we went back to our separate rooms, and I told the client what we said. I told
the client we could force them to take our offer, but they were finagling. My client wanted it
over. She did not like the stress. I told her that it was her call if she wanted to make a small
gesture - another $5k or so. She said she would be thrilled to end it at that. I said, "we will."
Then, the mediator came in. I told the mediator:
Ok. I'm going to tell you where we're at and where they're at. We're at our end.
They'll take our last offer. In fact, I could stick to our guns and ram it down the
other side's throat. This case is over. He's begging. He's done. He'll take it.
In fact, you can go tell him that. I don't care. Tell him I know he's done. He's
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going to take what we offered. He's groveling. I'm serious, tell the guy I know
his gig's up. I've told my client, and she knows it. But she wants it done, and
against my advice, she wants me to throw in another $5k to close it down. I told
her I have it closed, but she doesn't have as much stomach as I do for this stuff.
So, $5k is it. Tell this guy it's over.
They took the deal.
In the "foot case" mentioned earlier in this book, there was an episode during mediation
which ought to be a real tip for a young lawyer. The dollar amount in this case was pretty good.
We were young attorneys for the plaintiff. The mediator was one of those higher-end, boutique
mediators with a good reputation for getting cases settled. She tried to play a nasty little trick on
us right in front of the clients.
The other side had offered their top authority: $250,000. I said, "This isn’t going to get
it done." My partner loved hearing that number (I did, too). We could have walked out then
and there and made a nice fee on an easy case. Not me. There was more. I told the mediator
that the family (the boy) would not get enough out of a $250,000 settlement. So, here is what the
mediator says: "Well how about this: Take the $250k, give $200k to the clients and accept $50k
as attorney's fees. It's a great deal!"
Say what! I was livid, but I did not show it. I had to take control of that situation fast,
or we were going to cheat ourselves out of a good fee. My partner was salivating more than me.
I did not give him a chance to say a word. Immediately, I told the clients:
Look. The mediator is just doing her job. No doubt $250k is a lot of money, but
everyone in this room - including the mediator and opposing counsel (he was
there, too) - knows the value of this case is higher than that. I am not inclined to
sacrifice our fees in order to settle below what this case is worth. We're not
settling today. Give us a little more time.
The clients were okay with my proposal, but I still had not gotten over being cornered
into that situation. I wanted to explore the flexibility of the other side before we packed up and
left. I had noticed the insurance adjuster kept periodically walking down the hallway regularly
and leaving the office for a few minutes. On a hunch, I figured him to be a smoker. So, I asked
opposing counsel, "Why is the adjuster always walking back and forth? Is he a smoker or
something?" They laughed and said, "Yes, he constantly smokes." Well, I was a smoker, too!
I said, "I've been dying for a cigarette. You all don't care if I go join him, do you?" They said,
"No. Go ahead."
So, I met the adjuster out in the parking garage. "Hey, you're among the dying breed of
smokers, too, I hear." I sparked up and told him the deal: "Everyone knows this case is worth
so much more. It's killing me we can't get you guys up well north of $250k today. But that's
what they say the deal is. So, I'm stuck here. But I thought I'd come take a smoke break since
they told me you're a smoker, too. We gotta work this out." He said, "Yeah. I'm sure we can
do better. I have to go get some authority, but it's not going to happen today." I said, "Cool.
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Do me a favor here. Go back and get the real number. These folks are good people. Their kid
lost his foot. I know it was on Dad, but we all know $250k isn't where it's at. It's well north."
He said, "Yeah. But on the other side Dad did it. That devalues the case. If it was Pedro the
yard guy, you'd be way on up there." I told him I knew that and to just go get a real final
number. I recall saying something to steer him where we wanted to go. Something like,
"Honestly, I wouldn't feel right trying to talk my folks into $400k."
Really, Mom and Dad would have done the $250k. They were ready to take $70k before
I got involved on the case. This was a family tragedy, and Dad was suffering from horrible guilt.
Mom's nerves were in tatters. The boy had a very good recovery. He needed a prosthetic, but
he could play sports as good as any other kid. There really was not any disability involved.
Mom and Dad just wanted to close this tragic chapter in their lives and move on.
We concluded for the day, and within four or five days, we settled at $385,000. That
was a hell of a lot better than a $50,000 attorney's fee, plus my client's came out substantially
better on the net, too. So, as unusual as it was, watch out for a mediator trying to put you on the
spot in front of your clients. Do not be too tempted by a quick fee when you know you can do
better. Believe me, a $50,000 check for our attorney's fees would have been a very good day.
We hardly had to work the case, the facts were so simple.
Size your opponent up. Watch for the slip of the tongue. Show them you see your case
through tunnel vision even when you do not. Mean it. Do not let them know you are posturing.
Be bold. When you catch them groveling, let them know the jig is up.
These are fun stories, but any real work-a-day lawyer has done his share of groveling.
Me, too. I am talking about using tactics and mind-sets to minimize the groveling, rather than
making it your habit.
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Chapter 24
Popular and Misinformed Critiques
Because of some comments and reviews of this book, this chapter was added to address
some of the more egregiously erroneous critiques. Here goes….
"This book doesn't acknowledge reality. In the real world, clients don't have
money. Clients aren't out there beating your door down to pay you $200 an hour."
The critics who say this missed some of the most salient points. First, a goal of making
$100k+ a year for two hours a day of billing is FAR from having to beat rich clients off with a
stick. We are talking about two hours a day - not ten hours a day. Big difference. Second, if
anything, this book in fact tells the reader - point blank - the world is filled with people who
cannot afford you. That is the whole point. Find the ones who can, and bear in mind, you only
need enough of them to support billing two hours per day on average.
Here is a similar criticism: "People that can afford a lawyer go to a law firm. Sorry
to burst the bubble."
False. Very false. There are many people who can afford lawyers. The reason these
people can afford lawyers is because they watch their money carefully. Many of these people
are scared to go to law firms for fear they will be raped, pillaged and plundered. They are quite
happy to think they are not being bent over by the type of solo you are being taught to be provided they believe that this solo is competent. I rounded up some good business clients and
individuals and built up to around $100k or so a year before I decided I wanted to stroke my ego
with an office. As a matter of fact, my first office at that point was a deal I cut with a business
client who had a nice building. I got free rent, plus a fixed monthly amount of money, as part of
a retainer to do the company's legal work. Still, it came with no money out of pocket.
The next criticism goes like this: "Yeah, right. The book totally misses the fact that
there are just some practices out there where you can't operate without legal secretaries
out of your home like some schmuck."
This book never attempted to claim this is not true. Of course, there are various types of
practices where this is not going to work. It was never suggested that you can be a major
litigator for a half dozen Fortune 500 clients by drafting briefs as you sit at home in your briefs.
I assumed that the reader who is interested in this book decided to read it because the
reader has big debt, few to no good-paying clients and very limited resources. If you are making
more than $100k (for yourself - NET before income tax), go ahead and find an office if you
want. You have cleared a hump, and you have more flexibility. This book is not for you. In
that case, I would suggest the book, The Millionaire Next Door, for teaching you how your
typical millionaire is a first-generation millionaire, who is self-employed and practiced living
well below his means over the course of his lifetime.
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On the other hand, if you have your office, your secretary and all that overhead, and you
are making under $100,000, sorry…. you are a schmuck. In that case, definitely go read The
Millionaire Next Door. I would not take on a business plan that makes me find $130,000 in
billable hours to take home $85,000 gross before taxes. That would mean I just gave away
$45,000 of my income to pay someone else. $45,000 is a lot of money. Clients are precious and
few enough. You are much more secure with a plan for building up to two hours a day than you
are with a plan that calls for three or four hours per day - or even two and one-half hours. As I
said, if you get up to the $100k range, then you can think about offices or whatever it is that will
make you feel you "look" like a lawyer.
The only thing I can tell a newbie is, "The world is flooded with these types." I covered
them extensively in Chapter 18. It bears re-reading if the message is not clear.
It is hard enough to find sufficient good-paying clients to even collect a steady $400 a
day (two hours), and all these attorneys who are schlepping away for crappy clients to pay
overhead before they pay themselves are proof as to how precious a good client is. The funny
part is they almost all admit it is just to keep up some appearance. I do not hear them say they
are billing and collecting even as much as four hours a day (that would be a gross of $200,000 or
more). So, why will they not do their own paperwork, answer their own phones and lick their
own envelopes? They cannot be that busy. We are talking about only two hours a day. This
fluff overhead is all for looks.
Here is another criticism: "The book mentions all these practice areas, but it doesn't
tell you how to become versed enough in them to build them up."
People who claim this are probably not able to get over the cold, hard truth. Nobody is
going to hand this knowledge to you. Probably 40% of this book is drilling into your head the
importance of research. It tells you what to research. You learn by research.
How about this one? "I do take some exception in that you make it sound like you
can have a great practice on a home office and no staff, and that may be so if you keep
things simple and no more cases than you can personally manage, but working in a solo
practice, the whole reason my job (admin assistant) was needed was that if the boss did
everything himself, he'd have damn little time for handling cases."
Just how much administrative work is involved to handle a two hour/day practice? How
many checks are you going to be writing and receiving and in what volume? How could you
possibly not have enough time to keep up with your own administration? You would be lucky
to deal with more than one or two bookkeeping entries a day. Of course, you have to track your
own billing time. No administrator can do that for you. They can transcribe some dictation.
But if you can use a computer and type, do you really need transcription services?
Another familiar one: "… the first money in the month goes to expenses---so you're
essentially getting a hundred cents on the dollar, while after you've made your nut, you are
moving into your tax and paying 16.3% social security bracket. In other words, when
business is slow, you're losing money, it's ok to take a case for less when you really need the
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money instead of seeing it go to someone else after you've spent some time on the phone
just setting the next lawyer up to be the better deal. Your competitors in the law will lower
their fees in slow times, and you will still need to make your expenses. I'm all for work 2
hours at $200 daily, but sometimes it gets down to will you do an uncontested divorce for
$500 when nothing else is happening."
There are compound issues raised here. The first one is about not taking in enough
money to pay your overhead. As stated in the critique above, then, "… you're losing money."
Unbelievable that a lawyer would work some amount during the month and actually lose money.
How much did you have to bring in before breaking even? $3,500? $5,500? More? Think
about how much money that went to everyone else but you. This completely reinforces my
points.
The second point was about taking cases for less because you really need the money.
Well, yeah. Look at what you did. You need money to pay everyone but you. So, what about
this situation even if we do not have excess overhead? Why not just take the $500 divorce
because you are not doing anything else? Because you are setting precedent with this client.
You do not think he tells people he refers what you charged him?
Word of mouth is your #1 referral source, and this is not because you choose to make it
that way. It just is, and you have no choice over that. You are pigeon-holing yourself. You will
become known as "the lawyer who'll take your case for $500." And if you tell the next guy,
"Well, that was then; I don't need the money so bad right now. Today, my fee is $1,500," you
still have a problem. This new client knows you represented someone else for $500. Now, you
want $1,500. He feels you are trying to rip him off. He is going to shop around. Do you see
how you pigeon-hole yourself into these traps where there is no ultimate escape? Again, if it is
not clear enough, read Chapter 18 again.
One of my law partners and I used to sit and laugh all the time about how these
multitudes of attorneys simply refuse to believe in themselves - especially when it comes to
getting retainers. My partner's favorite story is about an attorney in the same practice area as
him who was his chief competition in the area. He knew him well, and they got along fine and
talked all the time. His competitor would ask him, "So, what's a typical retainer that you are
getting for divorces?" My partner told him $5,000 (he gets more than that on more head-ache
type cases and will even refuse to accept $10,000 on some). His competitor just flat-out refused
to believe him - laughed openly back and said, "I don't believe that. People don't have that kind
of money." My partner just said, "Oh, well. It's up to you. Believe whatever."
What else could my partner say? We have this discussion with each other all the time.
Why? Because it disappoints us there are so many attorneys out there who lack the guts to
demand a good fee. This only harms us all. It would be nice to engage in a little price-fixing,
but since that is illegal, at least we would hope other attorneys will listen and get their rates and
retainers up where they belong.
We are amazed at how attorneys are so afraid to get good retainers. We are not rich and
do not want clients to get away, either. Trust me. But I would rather have one $5,000 case than
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ten $500 cases. So, you "takes your chances," and 1 out of 10 times, you will get the $5,000
retainer. That way, you are not overloaded working on ten $500 cases.
It is regular practice to get these $5,000 cases and to even have the same client on the
same case bring additional chunks here and there for another $3,000, $2,000, $3,000, $2,500, and
so on…. It is not atypical to earn $15,000+ on a custody dispute case. But, in so many of those
family cases, no matter how much you get, you will work substantially more than what you get
paid (thus, my lack of affinity for family law - I rarely do it). I made $165k a few years back
(before the above-referenced partner and I joined up). He told me, "You must have worked your
tail off." I said I spent probably 4 - 5 hours of an 8-hour day just doing nothing. He
appreciated then, what civil practice had to offer, but he will never bother to learn it. He has
found his comfort zone, makes decent money and accepts all the pimples that come with it. At
least, unlike so many others among the hoards, my partner did not say, "No way! You couldn't
possibly make $165k working half-time!" He at least gets it.
The next critique is not really a critique. It is more disbelief. Some just cannot believe
a substantial part of billing on a case is billing for research. "Clients aren't going to pay you to
research." In fact, much of what I do involves research, and you can bet I bill for it. The
Appendix at the end will show you a real-life set of 3 bills on a short-lived case (you will see
how to bill). Following that, you get to see a real-life Response to a Motion for Judgment Nunc
Pro Tunc. You will see how all that research pays off.
The next statement is a very sincere one, and I will not bash it like the others. It goes
like this: "I like this read a lot, but I am still doubtful about the 'research your way to
competency' approach. The author himself had a tremendous resource in his Mentor,
Craig. And unfortunately, those positive mentors are extremely few and far between for
today's new graduate."
This young attorney is right. I would not trade my Craig for 100 books like mine. You
know why? Because Craig MADE me accept the message. It was that, or else.... With my book,
many people are not going to take it to heart. I cannot ram the advice down anyone's throat like
Craig did for me. If you will not follow my advice, I cannot fire you and put the fear of God into
you.
The rest really is true.... Craig's purpose was primarily two-fold: to get me to research
my way into competence and to "grow a pair." You really do not need a mentor to tell you this.
Deep down, you know it. Those who really think they must have mentors are no different than
old, fat people who will not lift a barbell without some young, fit instructor yelling at them to
"lift!" If the instructor is not coming, they are going to skip the work-out and stay fat and out-ofshape. Do they really need someone to tell them to do what they already know they need to do?
Did you know that Texas has a Health Spa Bond Act? WTF???? How do I know this? I
never had a case involving a health spa in my life. As a young lawyer, when I had nothing to do,
I would just pop open the statutes and start with the Property Code, or the Civil Practice &
Remedies Code. I would just read down the list of topics covered. If I thought a subject was of
interest and might be useful down the road, I read it. So, that is how I know there is Health Spa
67
Act (but I never read it). If I ever get a health spa case (which I will not), I know at least that the
act is there. I spent lots of time doing this. I have probably had cases which had subjects in just
about every volume in the Vernon's Texas Statutes as a result. There is something to take away
from every volume.
68
Chapter 25
Of Greed, Beemers and the Plight of the Worker
I saw another critique which deserves special attention and its own chapter. The reviewer
apparently thought I was teaching callousness and obsession with money. I sure hope not! You
are encouraged to put all my advice into a proper context. When I saw the critique, I felt I
needed to address this because I can certainly see how people can get the wrong impression.
Basically, the gist of the critique was: "There are many struggling people out there. Don't
forget where you came from. Are you going to be a better person because you suck every
dime out of a struggling person so you can drive a Beemer?"
It is a fair enough critique. It means my message was not clear. Money is not
everything. This is precisely the reason for this book's focus on only $100k with plenty of time
left to do other things that make you feel fulfilled, whether it be charity, more time with the kids,
caring for an elderly parent, a mix of those - whatever.
Believe it or not, as a 1-L student in law, my dream was the Beemer and the high life complete with leaving hard-working Americans behind and rubbing elbows with the elite. Did I
have a dream, or what!) I changed over time and became quite well-adjusted to the comfortable
life. The high life takes too much effort to chase what I would refer to as "just more money."
For me, there comes a point when stress should not have to be over money. It is like Maslow's
Hierarchy of Needs (for you psychology majors out there).
Rather than be a money-grubbing, callous, greedy lawyer, consider just some of my
experience and why I chose the strategy I espouse in this book. Life will throw you expected
curves that money cannot fix. They are coming in your future. However, the luxury of having
time and not being hard-up for money will help you address some of these curve-balls.
For example, try devoting hours during the day, every day for months, in and out of
hospitals and nursing homes, trying to keep your elderly mom alive while she is on life support
much of the time, and scared to death during the times when she breathes on her own. Had I not
made livable money with minimal hours, my mom would be dead. I have been told on more
than one occasion by teams of doctors to pick coffins because they did everything they knew to
do and it was out of their power. I stayed in there, read up, talked with these docs and spent
hours upon hours in the ICU's and nursing homes every day. I was not busy driving a 3-Series (I
did not own) and scamming hot chicks on the beach (I never visited). Mom is doing better and
still appreciates being alive. She is lucid and loves nothing more than to talk your ear off.
I attribute her beating the odds to two things: (1) vigilance as regards her medical
treatment (which took being virtually ever-present so you can get time to direct the care of
doctors and nurses), and (2) my constant presence giving her the spirit and will to live. She is
still needed, and her work here is not complete. I am grateful for that because I know that one of
these days, it will be over and there will be nothing I can do that will ever turn back the hands of
69
time. Even a sick, old person in her waning days has much to teach a person about his own
character and what it means to be a good person.
I am proud to have been fortunate enough to be able to do what I have done. The practice
of law would never have taught me this kind of introspection. Had I been debt-ridden and a
slave to a job or a document review project, I would have had to do what 85% of America does:
institutionalize your parent and hope he or she dies quickly and easily so that you can get past
your guilt and get on with your future.
For most people, the "middle class" way is never going to allow you to avoid this harsh
reality. Your employer does not give a flip about your mom and whether she dies when it
comes to getting in the way of your billing 1,500 - 2,000 hours a year. They will extend
condolences for a while, but they are empty condolences, and you will be passed-up due to your
"lack of performance." Your employer does not care if your kids feel they are unimportant to
you because you are too busy to attend their activities and play active roles in their development.
To be blunt, your employer only cares about whether you are worth keeping on the payroll.
If you are solo or have your own shingle and have bills and debts to pay, your $30.00 an
hour document review and low-to-no-paying clients are not going to let you have the time to deal
as adequately as you would desire when life throws those curve-balls. I respect the plight of
people who are stuck in this situation, but that is because they are stuck. If they can find a way
out, they should. It is not good for the soul to be stuck like this.
I am not sure how some readers might get the impression that helping people is not a
main ingredient mentioned in this book. Remember all that talk about being competent and
diligent? In many cases, incompetent, sluggish attorneys are not helping their clients like they
could. You might look back on the cases I shared and see if I helped people or not.
How about that shingle case? I helped a new couple get their first, little starter home
fixed up after it was almost totally ruined by defective shingles. I helped that couple after a
previous attorney they consulted turned them down and said they did not have a case. I would
say that my efforts were a major "life-saver" for them. They had a mortgage and a ruined home.
As a young, hard-working couple, life ahead would have been pretty bleak had I not found a way
to do a good job and get them the help they needed. There are many such examples throughout
my career. Your career, done right, should also include many similar examples, but you should
not equate the ability to help people with finding yourself stuck in the plight of the middle class.
Corporate America loves a good worker-schlep. A worker who will put aside the needs
of his family members and even let them die - just so he can get his $30 an hour. A worker who
would choose a paycheck over the fact that his or her kids really deserve parents who spend
more time in their lives. This is what working for corporate America takes. This is, sadly, the
life of the masses, and they have to learn to accept it and cope.
70
Once accustomed to working for peanuts or having to work 50 hour weeks to make
$120,000, you have been trained, to your own misfortune, to take this mindset of the "slavish
worker" into your private practice and all through the rest of your life. All I can say is, "I feel
the plight of that person."
I wrote this book because I care about people and their struggles. I do not like what the
corporatization of this country has done to the American soul. Nobody should ever invite people
into misery by enticing them to believe that stories of the worker's plight are "patriotic, heartwarming, demonstrate good character, etc." Corporate America has perverted what it means to
have character. Just look at the way people have to neglect freedom and full-bodied lives in
allegiance to the almighty dollar. How heart-warming is it to skip the vast majority of your son's
or daughter's school plays, sporting events, etc. because "you're a good, patriotic worker who
knows what tough times are like?" Somebody has to break the mold of the worker's plight. Start
with yourself and pass it on to your kids and to those whom you love and care about.
In short, there is nothing at all wrong with making $100,000+ for two to three hours a
day. It is what you give in return that counts. It is what you do with the rest of your time that
counts. Life can be a struggle for all kinds of reasons. Money does not have to be one of them.
71
Chapter 26
Conclusion
Building the type of practice outlined in this book involves skills you must develop on
your own. If it is not in your character already, you will have to change your character. The
process is straight-forward and non-technical. You either "click" and get it, or you do not.
A colleague who reviewed this mini-book had this to say: "For all those attorneys who
feel victimized by the law school scam, they will read this, and even though it is true, they are
not going to do anything about it. These people just have victim mentalities." This is a revealing
truth, except I remember my days of despair when I was thrown out into the pond and had to
learn to swim. Many of these "victimized" attorneys are only in temporary jams.
The biggest impediment to a lawyer's success is his or her own ego. For so many
lawyers, the ego is both foolish and cowardice. Moreover, damage to an ego this big is bound to
result in deep despair - the kind of despair that makes you question whether law school was
worth it (as you think back to how you felt like king of the world when you stepped upon the law
campus for your first day as a new 1-L).
The most common problem lawyers have is that they are too afraid that they will not look
like lawyers if they do not start taking on overhead to put on a show for clients. This is selfdefeating for the profession as a whole. Lawyers are driving themselves close to sub-standard
wages just to keep competing to look successful. Clients are paying you for your knowledge and
skill. If you can deliver the same result out of a gutter, they will be just as happy. Of course, I
would not suggest you let them see your gutter.
Moreover, many lawyers can talk the big talk about $200, $250 and $300 an hour, but
how many of them really make that much based on the number of hours they work? The truth is
that a great many are working their tails off to make a rate commensurate to that of a UPS driver
or school teacher - maybe even less! This is not the life intended for a lawyer who spent
$150,000 to get an education, put aside three years of life to do this, and sat for one of the most
grueling written exams known to mankind.
Stay lean on expenses. Get good clients who can pay. Make them pay what your
hourly rate really is. Do not take small chunks and work hours and hours knowing, as you
should, that full payment can never be expected. If you want to go without pay, you might as
well go to the beach or go fly a kite. Legal work is work, and it is the type of work that deserves
the rates in full - or darn close to it.
In addition, know for a fact that conspicuous consumption and being broke go hand in
hand. Study some income and wealth statistics. The median household income is roughly
$50,000. This is household income. When a lawyer makes $100,000 and the lawyer's spouse
makes $60,000, you are on the top of the totem pole. This is, contrary to popular belief, not
middle class. This is upper class. Yet, too many people in this income category are strapped
and miserable. It is because they do not know how to live below their creditworthiness.
72
This problem does not only vex lawyers. It defines what it is to be "American." Know
these basic income, wealth and credit statistics so that you can adequately size-up your clients
and their abilities to pay. These statistics abound all over the internet. Look up "wealth and
income distribution." Find the average consumer household debt. "The guy with the
McMansion and the Mercedes is having a slow month, but not to worry, he's good for it. Just
look at his house and his car." Think again. This guy cannot pay your bill. Watch him very
carefully. Do not let him get too deep into debt to you. A couple thousand or so is okay. Over
$5,000, and you are risking it beyond what should be an ordinary level of discomfort.
If you follow the basic principles in this book, you will succeed. It takes a bit of time.
Not too much, though. Maybe a year or two. Then, you will find that, indeed, you can make
$100k+ per year by working only a few hours a day. As you are working your way up the totem
pole, you will encounter the hoards of attorneys who are miserable, and you will begin to have
doubts here and there because they speak as if they know that "reality for lawyers means being
overworked and underpaid." Have faith. They are wrong. Learn what not to do from people
who are not happy.
Remember all you learned in this book. Certainly, you will be able to easily discern
what makes most lawyers miserable by getting candid answers to a mere few, simple questions.
You will see that they are violating the rules set out above. They are likely "entitlement
mentality" lawyers who just cannot dispel the myth and feel driven to perpetuate the façade that
success is demonstrated by high overhead, voluminous clients, and being overworked.
On a few final notes, you will see lawyers regularly out there just bickering away and
getting snotty with each other and sometimes even to courthouse personnel. Especially in family
law, for whatever reason, this is prevalent. Family lawyers really seem to let themselves have a
personal attachment to their cases and clients' positions. Law is business. Keep it professional.
Do not let a client's stress become your stress. You do your job the best you can, and that is it.
Roll with the punches. Do not return snide remarks with those of your own. Getting snotty and
trite really drags a person down. I do not know how these lawyers remain functional while
carrying on like they do day after day.
Do not interrupt others when they are talking. This rule should apply everywhere, not
just during oral arguments in court. It is aggravating to see lawyers cut each other off, and sigh
and roll their eyes and laugh and chuckle. This does not gain you any ground. It looks
unprofessional, and it is. No need to get loud when making a point, either - unless your
audience really is hard of hearing.
If you have exhibits and case law to cover during a hearing, make copies for the judge
and opposing counsel. Be organized. Find whatever method gets everyone to the documents
they need to find with no gaps in time. It is aggravating to also see a disorganized lawyer who
sifts through a mound of papers looking for a document while everyone sits and taps. I once
tried a difficult will contest (and lost). But after the verdict, the jury told me, "Sorry the facts
weren't good for you, but we have to say… you were the better lawyer by a long shot. When
you needed a document, you knew right where it was and pulled it out in 1 second flat. The
73
other attorney was so disorganized. It took her forever to find her exhibits." (Had my facts
been a smidge better, this professional appearance could have made the difference)
Go watch lawyers in court. Go to family courts. Go to civil courts. Go to criminal
courts. You will find that the various attorneys behave differently in these different venues.
Listen for those cases which come up where there is an interesting, thought-provoking issue. I
cannot speak for family law anywhere else, but if I was going to practice it in Houston, I would
rather first learn attorney etiquette in the civil courts, and then, go practice family law. This
does not mean lawyers without good etiquette are not smart. You can learn from all of them.
Listen to how they make their points and counter-points.
Also, dress well in court. This is especially a message for the women attorneys. (Sorry,
ladies) Men have basically a single dress code. Their wardrobes are predictable and drab. Put
on a suit with a matching jacket and wear a tie. Women, on the other hand, have great latitude.
The standard is not clear. Spandex is out. Pantsuits are in. Short skirts are out. Businessskirts are in. Those decorative-looking sweatshirts with beads and colors are not courtroom
attire. Look sophisticated. You can look sharp on a tiny budget. Resale clothing is good for
both men and women who are on a tight budget. Nobody will know you bought resale. I have
done it and make no bones about it. It can be a bargain. You do not stock away wealth by
spending your income.
It was not previously mentioned, but right here is the best place to say this: Record your
time. All of it. Write it down. If you do not, you will forget the time you spent on minor
matters. The 0.2 hour tasks add up. You need only 10 of those to make your 2 hour day. If
you do not write down your time, from my own experience (during bouts of laziness), you will
lose 20-25% of your pay or even more. Never bill 0.1 hours. I tried it a few times. Clients are
repulsed by it. Wait for two 0.1 hour tasks and combine them into one 0.2 hour billable item.
If the 0.1 hour task cannot be paired and collected elsewhere, forget about it. This is your probono and charitable work - not sticking clients with 0.1 hour items.
You will write-off (never bill) for some of your time. It happens. Keep it to a
minimum. Do not send a client an unrealistic bill and discount it. It is stupid. Billing for
$15,000, less a $12,000 discount…. $3,000. When you do this, you are revealing that you
work for cheap. Never let clients know you work for cheap here and there because you did
some extra work that you know you cannot collect from them. Just do the work and do not bill
for it. Learn from these situations and minimize the freebies. You can become very effective at
it in many civil practice matters. This talent is harder to master in family law and flat-fee cases.
Also, you need to get used to accepting the fact that you are smart. Even if you had
trouble with the bar exam, you are smart. The bar is about memory. The practice of law is
about research and preparedness. These are vastly different and have no relation to each other.
If this rule applies to the bar exam, you know it has to apply equally to the "name" of the law
school an attorney attended. The practice of law is not reflected by the LSAT or your GPA. The
tests are fantasy. They are testing your memory. Even in the courtroom, you can bring your
case law and notes. The days of tests are gone. It is now time to work. Competence in the
74
practice of law is one thing and one thing only…. research. The more you do, the more you
know.
When you are young and starting out, your intellect is not reflected very well by your
income. But if you remain diligent and conscientious, your income will catch up to your
intellect in the very foreseeable future. For what it is worth, my starting pay was $2,000 a
month. So put that in your pipe and smoke it! Looking back, I would not change a thing if I
could. It took me months to land the $2,000 job, and this was after I sunk deep enough in
despair to start thinking about joining the army just so I could run away from my life.
Finally, if you hone these skills and find the capacity to exceed your current ambitions for
money, just keep in mind some of the other pointers in this book about all of the non-monetary
aspects which are part and parcel of living a comfortable life. How much money do you really
need? Live a good life below your credit score. Your next read should be a book entitled, The
Millionaire Next Door. As an attorney, millionaire status is attainable. In fact, I would have to
ask, "How can you not attain it?" The answer to this question is, "By doing that which people
who will never be millionaires are doing." I would plot the road toward financial security with
the advice and examples contained in The Millionaire Next Door. I would not try to achieve this
status by swinging for homeruns, making life more complicated than it needs to be, and trying to
look like a lawyer. After that, read Dave Ramsey's, The Total Money Makeover.
Hopefully, you enjoyed the pointers in this book and learned what real lawyers do to
sustain reasonably successful practices without $300,000 in stress for $40,000 in pay. A little
luck never hurts, either. Good luck!
P.S.: There is an appendix below which might help you to understand billing, research and
drafting.
Constructive input is appreciated. Were some topics not covered? Could some have been
covered better? Just want to say you liked it or didn't like it? Send mail to [email protected]
75
Appendix
This appendix contains some materials on a real case I handled back in late 2002 - early
2003. I was still somewhat new as a solo back then - maybe about 2 1/2 - 3 years into it. The
bills are real. Frankly, you will see that back then, I violated my own principle. My going rate
back then was $175.00. I gave this client a rate of $135.00 because it was a new car dealership
and they always needed legal work every month without fail. I do not violate this principle
anymore.
After the bills, you will see the product of all that billing. It looks to be about $4,400
worth of billing. I happened to remember this little example because it was the first and only
time I included a clever, but not so poetic, limerick in a response filed with the court.
The case was one in which a plaintiff secured a default judgment against the dealership
because the manager dropped the ball and forgot to tell me he had been served with a suit.
Fortunately, I found some mistakes which plaintiff's counsel made. We were going to file suit
for a declaratory action that the judgment was not binding against our client who, we maintained,
had not been sued properly. The other side tried to file a Motion for Judgment Nunc Pro Tunc,
which is a proceeding to correct clerical-type errors in a judgment. The error pertained to how
the defendant, my client, had been named in the suit. I responded to the Motion for Judgment
Nunc Pro Tunc. "Poof!" went the default judgment.
Notice in the Response how I point out that opposing counsel did not complete his
research and that the authority he cited (which many lawyers would have probably never found)
had been overruled. I would put up a $5.00 bet this guy was not using Westlaw. Also, notice I
used extensive block quoting from the case law. I wanted to make sure the court has no concern
as to whether I am properly citing cases.
Did my client pay for all that research? Yes. It was worth it, too. Do all my clients,
whether businesses or people, and regardless of the type of case, pay for my research? Yes.
And it is worth it to them, too. As long as you do good work, who can dispute whether it is
worth it? Even bad news, if it is the right news, is worth it.
The examples follow on the next pages.
76
MATTHEWS
&
EASLEY
JEFFREY R. MATTHEWS
A TEXAS PROFESSIONAL CORPORATION
9610 LONG POINT RD., SUITE 360
HOUSTON, TEXAS 77055-4265
TOBY C. EASLEY
PHONE: 713-223-4000
FAX: 713-464-3814
December 16, 2002
VIA FACSIMILE: (281) 359-5277
D_____ H______, Controller
ALL AMERICAN PONTIAC BUICK GMC
18225 Eastex Freeway
Humble, Texas 77396
Re:
Bill for Services Rendered; Lam, et al. v. Premier Pontiac, et al.; Cause No.
766903, in the County Civil Court at law No. 1 of Harris County, Texas.
Dear Mr. H_______:
This is a bill for services rendered in the above-referenced matter.
12/10/02
2.5 hours. Conference w/D_____ H_______ to discuss his receipt of notice of
default judgment. Review Plaintiff’s Original Petition and Default Judgment
faxed by H_______. Research case law, Texas Rules of Civil Procedure and
Texas Rules of Appellate Procedure for methods of attacking default judgment.
Research requirements on proper party designation, service of process and
requisites that must be strictly followed during default proceedings.
12/11/02
0.3 hours. Conference w/P_____ M_____ to discuss facts underlying case and his
position with regard to settlement. Advise M_____ that further investigation will
needed into whether there was strict compliance with default proceedings in order
to advise All American of its options prior to making any settlement offer.
12/13/02
3.7 hours. Research court’s records to determine status of pleadings, service of
process and requisites for obtaining default judgment, including notice of
judgment. Conference w/H_________ to discuss alternatives available and
recommend possible range of settlement. Additional research on TRCP 28 and
support for the holding in the Chilkewitz case decided by the Texas Supreme
Court. Conference w/M______ to extend settlement offer authorized by
H_______ and to discuss action to be taken in the event Plaintiff fails to settle.
Total Attorney’s Fees:
Total Expenses:
$ 877.50
$
0.00
Total Charges:
$ 877.50
6.5 hours @ $135/hour
77
Please make your check payable to Matthews & Easley, P.C. Thank you very much.
Yours truly,
Jeffrey R. Matthews
78
MATTHEWS
&
EASLEY
JEFFREY R. MATTHEWS
A TEXAS PROFESSIONAL CORPORATION
9610 LONG POINT RD., SUITE 360
HOUSTON, TEXAS 77055-4265
TOBY C. EASLEY
PHONE: 713-223-4000
FAX: 713-464-3814
February 28, 2003
VIA FACSIMILE: (281) 359-5277
D_______ H_______, Controller
ALL AMERICAN PONTIAC BUICK GMC
18225 Eastex Freeway
Humble, Texas 77396
Re:
Bill for Services Rendered; Lam, et al. v. Premier Pontiac, et al.; Cause No.
766903, in the County Civil Court at law No. 1 of Harris County, Texas.
Dear Mr. H_______:
This is a bill for services rendered in the above-referenced matter.
12/19/02
0.5 hours. Conferences w/P_____ M_______ and Doug H________ regarding
Murphy’s request to continue settlement discussions.
01/06/02
2.8 hours. Prepare Plaintiff’s Original Petition and Correspondence to M______
regarding service of process.
01/08/02
0.3 hours. Conference w/M______ to inquire as to whether Lam and Nguyen will
waive service. Left message w/G______ to inquire.
01/13/02
0.3 hours. Conference w/H_______ to relate communications w/M______ and
suggest course of action.
Total Attorney’s Fees:
Total Expenses:
$ 526.50
$
0.00
Total Charges:
$ 526.50
3.9 hours @ $135/hour
Please make your check payable to Matthews & Easley, P.C. Thank you very much.
Yours truly,
Jeffrey R. Matthews
79
MATTHEWS
&
EASLEY
JEFFREY R. MATTHEWS
A TEXAS PROFESSIONAL CORPORATION
9610 LONG POINT RD., SUITE 360
HOUSTON, TEXAS 77055-4265
TOBY C. EASLEY
PHONE: 713-223-4000
FAX: 713-464-3814
March 28, 2003
VIA FACSIMILE: (281) 359-5277
D_______ H_______, Controller
ALL AMERICAN PONTIAC BUICK GMC
18225 Eastex Freeway
Humble, Texas 77396
Re:
Bill for Services Rendered; Lam, et al. v. Premier Pontiac, et al.; Cause No.
766903, in the County Civil Court at law No. 1 of Harris County, Texas.
Dear Mr. H_______:
This is a bill for services rendered in the above-referenced matter.
03/06/03
15.5 hours. Review Plaintiffs’ Motion for Judgment Nunc Pro Tunc. Research
case law cited by Plaintiffs. Research additional case law on the doctrines of
misnomer, misidentification and idem sonans. Prepare first draft of Response to
Motion for Judgment Nunc Pro Tunc.
03/07/03
5.3 hours. Obtain records pertaining to court proceedings ending in default from
County Clerk’s office. Perform additional research of case law. Incorporate
revisions into final draft form.
03/10/03
1.5 hours. Incorporate exhibits into response and file same at courthouse.
Review motion for continuance filed by G______. Copy H______ with response
and Plaintiffs’ motion for continuance.
Total Attorney’s Fees:
Total Expenses:
$3010.50
$
0.00
Total Charges:
$3010.50
22.3 hours @ $135/hour
Please make your check payable to Matthews & Easley, P.C. Thank you very much.
Yours truly,
Jeffrey R. Matthews
80
NO. _______________
NORTHPOINT PONTIAC – BUICK §
IN THE DISTRICT COURT OF
GMC TRUCK, INC.
§
§
Plaintiff
§
§
HARRIS COUNTY, TEXAS
VS.
§
§
LONG T. LAM and
§
LINDA NGUYEN
§
§
Defendants
§
______ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW, NORTHPOINT PONTIAC – BUICK – GMC TRUCK, INC. and
complains of LONG T. LAM and LINDA NGUYEN, Defendants, and for cause of action would
show the following.
Discovery Control Plan
1.
Discovery is intended to be conducted under Level 1 as set forth in Texas Rule of Civil
Procedure 190.
Parties
2.
Plaintiff, NORTHPOINT PONTIAC – BUICK – GMC TRUCK, INC. is a Delaware
corporation that maintains its principal offices in Harris County, Texas.
3.
Defendant, LONG T. LAM is a natural person who resides in Harris County, Texas.
Counsel for this Defendant has agreed to file an answer without the need for issuance of citation
and service of process.
81
4.
Defendant, LINDA NGUYEN is a natural person who resides in Harris County,
Texas. Counsel for this Defendant has agreed to file an answer without the need for issuance of
citation and service of process.
Jurisdiction & Venue
5.
The Court has jurisdiction over Defendants because they are natural persons who
reside in the state of Texas.
6.
The Court has jurisdiction over the controversy because Plaintiff seeks a declaratory
judgment.
7.
Venue is proper in Harris County because the Defendants are residents of Harris
County.
Facts
8.
On or about December 9, 2002, Defendants, through their counsel, faxed a copy of a
judgment rendered against Premier Pontiac and requested that Plaintiff advise when it will pay
the judgment.
9.
The judgment was rendered May 20, 2002 in Cause No. 766903, Long T. Lam and
Linda Nguyen v. Premier Pontiac and Texas Department of Transportation, in the County
Civil Court at Law No. 1 of Harris County, Texas.
10.
NORTHPOINT PONTIAC – BUICK – GMC TRUCK, INC. is not a debtor to the
judgment. However, Plaintiffs insist that Plaintiff pay the judgment anyway. Plaintiffs continue
to threaten that they will procure the issuance and service of a writ of execution to extract
payment.
82
Declaratory Judgment
11.
Plaintiff requests a declaratory judgment that it is not a debtor to the judgment in issue
and that it is not liable for the payment of same.
Attorney’s Fees
12.
Plaintiff requests attorney’s fees pursuant to Chapter 37 of the Texas Civil Practice &
Remedies Code.
Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants be
cited to appear and answer herein and that upon final trial, Plaintiff have and recover from
Defendants, jointly and severally, the relief requested herein, together with costs of court.
Respectfully submitted:
MATTHEWS & EASLEY, P.C.
____________________________________
JEFFREY R. MATTHEWS
State Bar No. 00788824
TOBY C. EASLEY
State Bar No. 00787411
9610 Long Point Rd., Suite 360
Houston, Texas 77055-4265
Office:
(713) 223-4000
Facsimile:
(713) 464-3814
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LONG T. LAM AND
LINDA NGUYEN
VS.
PREMIER PONTIAC AND
DEPARTMENT OF
TRANSPORTATION
CAUSE NO. 766903
§
IN THE COUNTY CIVIL COURT
§
§
§
AT LAW NO. 1
§
§
§
§
HARRIS COUNTY, TEXAS
NORTHPOINT PONTIAC-BUICK-GMC TRUCK, INC.’s RESPONSE TO
PLAINTIFFS’ MOTION FOR JUDGMENT NUNC PRO TUNC
TO THE HONORABLE JUDGE OF THIS COURT:
NORTHPOINT PONTIAC-BUICK-GMC TRUCK, INC. responds to Plaintiffs’ Motion
for Judgment nunc pro tunc as follows:
(1)
The misnomer doctrine does not apply in default cases. De La Fuente v. Castillo,
740 S.W.2d 113 (Tex.App. – San Antonio 1987, writ denied); Uvalde Country
Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985);
(2)
There is a defect in service. Avila v. Avila, 843 S.W.2d 280, 281-82 (Tex.App. – El
Paso, 1992, no writ); Faver v. Robinson, 46 Tex. 204 (1876); and
(3)
The relief requested by Plaintiffs would make the Judgment exceed the live
pleading. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884
(Tex. 1985); Faver v. Robinson, 46 Tex. 204 (1876); Mullin v. Roberts, 423
S.W.2d 576 (Tex. 1968).
Misnomer Doctrine Rejected by Texas Supreme Court / Plaintiffs Cite to Bad Law
The most analogous case to which Plaintiffs cite is Cockrell v. Estevez, 737 S.W.2d 138,
139 (Tex.App. – San Antonion 1987, no writ). Plaintiffs rely on the following holding in that
opinion:
“A misnomer of a defendant does not render a judgment based on personal
service, even one by default, void, provided the intention to sue the defendant
actually served with citation is so evident from the pleadings and process that the
defendant could not have been misled.”
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In Cockrell, the San Antonio court of appeals quoted this language from 2 R. McDonald,
Texas Civil Practice, §6.04.1 (1982), without reference to any other statutory or case law
authority. It turns out that this reliance on the treatise was misplaced, and the San Antonio court
of appeals later admitted it.
Less than two months after its issuance of Cockrell, the San Antonio court of appeals
issued De La Fuente v. Castillo, 740 S.W.2d 113 (Tex.App. – San Antonio 1987, writ denied).
In De La Fuente, the court of appeals revisited its holding in Cockrell and stated that, in cases of
default, the doctrine of misnomer has been rejected by the Texas Supreme Court. The relevant
part of De La Fuente is quoted as follows, beginning at page 114 of the opinion:
“Appellee relies on the following:
A misnomer of a defendant does not render a judgment based on
personal service, even one by default, void, provided the intention
to sue the defendant actually served with citation is so evident
from the pleadings and process that the defendant could not have
been misled. 2 R. McDONALD, TEXAS CIVIL PRACTICE §
6.04.1 (1982).
Appellant's reliance is misplaced. [FN 1]
[FN 1] This Court recently cited to R. McDONALD § 6.04.1 in a
published opinion.
Cockrell v. Estevez, 737 S.W.2d 138
(Tex.App. – San Antonio 1987, no writ). In Cockrell, however,
this Court held, on the basis of idem sonans, that service of process
on "Cockrell" was valid even though the petition and citation were
for "Cockrall." Idem sonans has no application in the instant cause
where the names are "Roberto" and "Norberto."
The issue in this case is whether the record shows strict compliance with the
Rules of Civil Procedure relating to the issuance, service, and return of citation.
Whether or not appellant was misled is irrelevant in determining the outcome of
this appeal. The statement from R. McDONALD has no bearing in this appeal
from a default judgment by writ of error.
In Uvalde Country Club v. Martin Linen Supply Co., 685 S.W.2d 375 (Tex.App.
– San Antonio 1984) rev’d, 690 SW.2d 884 (Tex. 1985), a petition named "Henry
Bunting, Jr." as a registered agent for appellant. Citation was issued to "Henry
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Bunting" and the sheriff's return showed service on "Henry Bunting." In a direct
appeal by writ of error from a default judgment, this court affirmed and held that
since appellant was personally served, appellant was not misled by the misnomer.
Uvalde Country Club v. Martin Linen Supply Co., 685 S.W.2d at 378 (citing R.
McDONALD, TEXAS CIVIL PRACTICE § 6.04.1). Our Supreme Court
reversed this court. In a per curiam opinion, the Court did not allude to the fact
that appellant was personally served or that appellant was not misled. The Court
held that the record did not show that the person served with citation, "Henry
Bunting," was authorized to receive service or that he was connected with
appellant. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884
(Tex. 1985) (noting that our opinion conflicted with Faver v. Robinson, 46 Tex.
204 (1876)).
In Faver, suit was brought against "John R. Favers" based on a promissory note,
attached as an exhibit to the petition. The note was signed by "John R. Faver."
Citation was issued to "Favers," and the sheriff's return showed service upon
"Favers." Judgment was rendered against "Faver." The Court set aside the default
judgment.
Here, the record shows a petition naming "Roberto De La Fuente" and citation
issued to "Roberto." Although judgment was entered against "Roberto," it is
undisputed that this suit and judgment was intended to be against appellant,
Norberto De La Fuente. We hold that the citation and service, as reflected in the
record, does not support a default judgment against appellant, Norberto De La
Fuente on appeal by writ of error. See Tex.R.Civ.P. 101, 106, 107.” (emphasis
added).
Undisputed Facts in This Case
The following matters are all contained in the record of the default proceedings
herein. They cannot be disputed.
1.
In the Original Petition, Plaintiffs named as Defendant, “Premier Pontiac.” (Exhibit
1).
2.
A writ of sequestration was issued and served. The officer’s return states that
“Premier Pontiac Closed Down, Out of Business.” (Exhibit 2).
3.
Plaintiffs filed their Original Amended Petition, wherein they named as Defendant,
“Northpoint Pontiac-Buick-GMC Truck, Inc. d/b/a Premier Pontiac Buick GMC.”
(Exhibit 3).
4.
As to damages, Plaintiffs still only requested relief from “Premier Pontiac.” (Exhibit
3).
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5.
Plaintiffs identified the registered agent for “Premier Pontiac Buick GMC” to be
served as “Prentic Hall Corporation System.” (Exhibit 3).
6.
Citation issued commanding service on “Prentic Hall Corporation System.” (Exhibit
4).
7.
The return of service shows citation was served on “Prentice-Hall Corporation
System.” (Exhibit 5).
8.
Default Judgment was rendered against “Premier Pontiac” and not “Northpoint
Pontiac-Buick-GMC Truck, Inc.” or “Premier Pontiac Buick GMC.” (Exhibit 6).
Error No. 1 – There Was Not Strict Compliance for Service on Northpoint
The record establishes that “Prentice-Hall Corporation System” was served instead
of “Prentic Hall Corporation System,” as specified in the petition and citation. This is fatal
error in a default setting.
In default scenarios, it must be shown that Plaintiff strictly complied with the service
requirements. Because the law abhors forfeiture by default, strict compliance will not yield
to equitable doctrines of misnomer and the like. See De La Fuente, supra – overruling its
prior holding in Cockrell that misnomer will not defeat a default judgment if the true
defendant was not mislead.
In Avila v. Avila, 843 S.W.2d 280, 281-82 (Tex.App. – El Paso, 1992, no writ), the
court of appeals overturned a default because of a minor misnomer in service. The court
wrote:
“The variance between names--whether in petitions, in citations or reflected in
return of service--need only be slight to sustain a writ of error. Examples of cases
where courts have reversed default judgments on such slight misnomers are
legion: Hendon v. Pugh, 46 Tex 211, 212 (1876) (service was on "J.N. Hendon"
when the named defendant was "J.W. Hendon"); Faver v. Robinson, 46 Tex. 204
(1876) (service was on "John R. Favers" while judgment was taken against "John
R. Faver"); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d
884, 885 (Tex. 1985) (service was on "Henry Bunting" while the registered agent
named for defendant was "Henry Bunting, Jr."); De La Fuente v. Castillo, 740
S.W.2d 113, 114 (Tex.App. – San Antonio 1987, no writ) (petition named and
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service was on "Roberto De La Fuente" while usury defendant was named in the
underlying note as "Norberto De La Fuente"); and out of this Court, Fleming v.
Hernden, 564 S.W.2d 157, 158-59 (Tex.Civ.App. – El Paso 1978, writ ref’d
n.r.e.) (citation by publication defective where defendant was referred to variously
as "Kent Kidder," "Kent Ke dder," "Kent A. Dedder" and "Kent A. Kedder."
Appellee relies upon this Court's opinion in Daylin, Inc. v. Juarez, 766 S.W.2d
347, 351 (Tex.App. – El Paso 1989, writ denied), to support his contention that if
the record as a whole shows the correct party was served, that is all that need be
shown to uphold the default judgment. In Daylin "C.T. Corporation Systems,
Inc." was the registered agent named in the petition. The sheriff's return showed
service on "C.T. Corporation System." This Court did indeed find that "[t]he
record as a whole supports service on the correct agent." Daylin, 766 S.W.2d at
350; see also Payne & Keller Company v. Word, 732 S.W.2d 38 (Tex.App. –
Houston [14th Dist.] 1987, writ ref’d n.r.e.) (judgment upheld where petition and
citation reflected registered agent "Philippe Petitfrere", the return reflected
"Philipee Petitfreere"); Popkowski v. Gramza, 671 S.W.2d 915 (Tex.App. –
Houston [1st Dist.] 1984, no writ) (judgment upheld where there was dispute of
fact whether handwritten return of service said "Michael Poprowski" or "Michael
Popkowski"). Popkowski is easily distinguished as it involved an issue of
disputed fact, which the appellate court was required to presume in favor of
judgment. Daylin and Payne & Keller on the other hand, cannot be reconciled
with the strict construction required by the majority line of opinions.
We will follow the established line of authority. To the extent that Daylin
contravenes the rule that strict compliance with the Texas Rules of Civil
Procedure is essential on issuance, service and return of citation to uphold a
default judgment under direct attack, it is overruled.” (emphasis added).
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Of interest in the above-quoted language is the fact that the court of appeals
overruled Daylin, infra. Daylin originally found no error in the fact that the petition
designated “C.T. Corporation Systems, Inc.” as the agent for service, and the return
showed that “C.T. Corporation System” was served. This would present a perfect case
for application of the misnomer argument that the Plaintiffs are trying to assert.
However, the court of appeals, in Avila, supra, later overruled its own holding in
Daylin. Presumably, if the issue was before it again, it would now hold that service on
“C.T. Corporation System” will not support a default when the petition calls for service
upon “C.T. Corporation Systems, Inc.”
Also, as recognized in Avila, the Texas Supreme Court overturned a default because
judgment was taken against “John R. Faver” when the record established service on “John R.
Favers.” Faver v. Robinson, 46 Tex. 204 (1876). In the case at hand, the petition calls for
service on “Prentic Hall Corporation System”, but service was achieved on “Prentice-Hall
Corporation System.” There should be no reason to distinguish an extra “s” from an extra “e-”.
As old as the Faver opinion is, it remains solid precedent. As recently as 1985, the Texas
Supreme Court reversed a court of appeals for issuing an opinion that conflicted with Faver. See
Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985).
Therefore, the error, though slight, is not something that can be corrected or
excused in a post-default judgment proceeding. Avila, supra; Uvalde, supra; Faver,
supra.
Error No. 2 – To Revise the Judgment Would Make It Render Excessive Relief
In their Original Amended Petition, Plaintiffs request judgment for damages against
“Premier Pontiac.” The Judgment complies, and awards them damages against “Premier
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Pontiac.” Now that they cannot enforce the Judgment against Northpoint Pontiac-Buick-GMC
Truck, Inc., they want the Judgment revised to name Northpoint Pontiac-Buick-GMC Truck, Inc.
as the debtor.
As stated above, the Texas Supreme Court overturned a default because judgment was
taken against “John R. Faver” when the record established a suit against “John R. Favers.”
Faver v. Robinson, 46 Tex. 204 (1876). See also Uvalde Country Club v. Martin Linen Supply
Co., 690 S.W.2d 884 (Tex. 1985) (reversing a court of appeals for issuing an opinion that
conflicted with the rule in Faver). Obviously in Faver, the judgment varied from the relief that
could be granted under the state of the record. Therefore, it had to be reversed.
In Mullin v. Roberts, 423 S.W.2d 576 (Tex. 1968), the Texas Supreme Court held:
“It is the rule that both a default judgment and a judgment nihil dicit must accord
with the pleadings. '(A)nd, like a judgment by default, the amount and terms of
the judgment (nihil dicit) must be ascertained by reference to the petition'. See
also Continental Oil Gas Production Co. v. Austin, 17 S.W.2d 1114
(TexCiv.App.), where it is said that the term 'judgment by default' is now
generally applied to a default made after an appearance, as well as before.
The error in the judgment in the respects we have discussed is disclosed by the
papers on file, and relief therefrom may be obtained by the defendant in this
appeal by writ of error. The judgment is not subject to correction or modification
by this court under the record.” (citations omitted).
Accordingly, the Court is without authority to take any action to make the Judgment
render different relief than Plaintiffs requested in the Original Amended Petition. Plaintiffs
requested damages from “Premier Pontiac,” and this is all they can receive.
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A Poem and a Little Prayer
In urging misnomer, the Plaintiffs resort
to request nunc pro tunc from this esteemed Court.
Debtor, they claim
has a new name because the reach of their lien falls too short.
Misidentification and misnomer are differently viewed.
The former applies when the wrong party is sued.
Misnomer, Plaintiffs say
can apply here today to maintain this default without feud.
But Plaintiffs are wrong. It’s now much too late.
To make such a change and seal an ill fate.
Neither doctrine applies
as was held by the wise
and fair Supreme Court of our state.
In giving due thought, we hope they concede,
by telling us so, by word or by deed;
that judgment toward one, absent hypnosis,
cannot be toward two – lacking mitosis.
To commence a new suit is all that we need.
The closest case that Plaintiffs can cite
is Cockrell v. Estevez, and it’s not right.
From San Antonio, the opinion was rendered.
But later, the same court admitted it was hindered.
In De La Fuente v. Castillo, it shed some new light.
Our Supreme Court has ruled in many a case
when there’s a default, strict rules we must face.
“Bunting, Jr.” is not “Bunting” and “Favers” is not “Faver”.
In cases of default, misnomer’s no saver.
In deciding this case, the Supreme Court sets the pace.
Through filing their motion, Plaintiffs have tried.
By artful response, Defendant replied.
Counsel’s no poet.
Your Honor now knows it.
We pray Plaintiffs’ motion will be denied.
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Respectfully submitted:
MATTHEWS & EASLEY, P.C.
____________________________________
JEFFREY R. MATTHEWS
State Bar No. 00788824
TOBY C. EASLEY
State Bar No. 00787411
9610 Long Point Rd., Suite 360
Houston, Texas 77055-4265
Office:
(713) 223-4000
Facsimile:
(713) 464-3814
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has been sent to the
following counsel of record by the manner indicated.
Dated: ____________________________
______________________________
Jeffrey R. Matthews
T_____ G_____
3303 S. _______, Suite 101
Houston, Texas 77056
Phone: (713) 621-____
Fax: (713) 621-____
___ CM, RRR; ___ Facsimile; ___ Hand Delivery
D____ R. R_____
2626 _________________, Suite 230
Houston, Texas 77054-_____
Phone: (713) 661-_____
Fax: (713) 661-_____
___ CM, RRR; ___ Facsimile; ___ Hand Delivery
92