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The Perils of A Family Business or How to Save Thanksgiving

via The Perils of A Family Business or How to Save Thanksgiving

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Pet Peeves of In House Counsel

     After many years of dealing with in house counsel I have acquired a treasure trove of information about what bothers in house counsel the most about their outside law firms.  Experienced lawyers have learned most of these lessons and make efforts to avoid making these mistakes.  Here is just a smattering of things which irk in house counsel about their outside lawyers.

1.         Junior Associates

In house counsel  do not necessarily dislike junior associates.  It is nothing personal.  Instead, what in house counsel understand about junior associates is that they most often do not know how to bill.  Often the supervising partner does not adequately supervise the work of Junior Associates by providing deadlines, objectives, and time parameters.  The failure to provide this information to a junior associate often results in a “runaway associate” who spends a good portion of his or her time running around in circles and charging a pretty penny for it.  The amazing thing is that, when this happens, it is almost always obvious on the client’s bill.  Major corporations do not want to pay for time wasting endeavors which results from a  failure to supervise the associate’s general lack of direction and focus. Appropriate supervision will likely eliminate this problem.

2.         Repetitive Time Entries

There are very few memoranda of law that take 10 separate days to revise.  Appellate briefs to the Courts of Appeal or to the United State Supreme Court might be an exception.  However, for the average memorandum of law, it is a red flag to in house counsel when an attorney’s time entries show “revised brief” every day for an entire week.  This typically means that the lawyer making such entries is either lazy (he or she does not want to adequately describe what they are really doing) or disorganized (they do not have a game plan for completing the work and, instead, simply massage it each and every day in order to fill up an eight hour day).  These types of time entries raise a red flag with in house counsel.

3.         Failure to Complete Projects

Invoices can be wonderful tools for experienced lawyers who can read between the lines.  Sometimes, a clever in house counsel, with a spare moment, can line up an attorney’s invoices for several months and determine that the attorney working on a particular file starts projects but never really completes them.  This can be evidenced by an entry such as an “Initial preparation of Motion to Compel.’  Of course, a lawyer who is drafting a Motion to Compel should file it, argue it and tell the client about the result.  If there was no result it tells the client that the work was never completed.  If the work was never completed the client is left to wonder: “why should we pay for it ?” This is a reasonable question.

4.         Insufficient Time for In House Counsel to Review Pleadings

In house counsel  often complain that they are crammed with a brief to review which has been provided at the last minute.  As you can imagine, this could be annoying.  Accordingly, when dealing with inside counsel, on a substantive matter, it is important that sufficient lead time be provided so that in house counsel can devote the time necessary to review your work.  Generally, it is a good idea to send in house counsel an email which states something like: “just a reminder, we are preparing the brief on this matter which is due to be filed at the end of the month.  We expect to have  a draft for you by x date.  Please let us know whether that will be sufficient time for you to review or whether you would like it earlier.”  Such an email will ultimately save you the wrath of in house counsel.  Moreover, in house counsel might actually get the impression that you are organized which is a quality that lawyers are not often associated with.

5.         Research, Research & More Research

Every lawyer should be a client at least once in their lives.  Every lawyer should receive a bill for legal services.  If you are unfortunate enough for this to happen to you, then you might know how in house counsel feels when he receives your bill which is replete with hours and hours of research for things which, some lawyers might believe, outside counsel should “know off the top of their head.”

The question of what a lawyer knows “off the top of his or her head,” and what needs to be researched, can make for an interesting debate.  Lawyers with some level of seniority often think that they know certain things “off the top of their head” but, sometimes, they are wrong.  Accordingly, a quick check of the statutes or case law is in order in many instances.  Nonetheless, what in house counsel often complains about are hours and hours of research in which it appears that, from reading the time entries, the associate is teaching themselves the law.  Remember that the associate’s goals and the client’s goals are sometimes diametrically opposed.  It is the associate’s goal to appear educated and well versed in the law to the partner.  It is the client’s objective to obtain a quality result for the lowest possible cost.  Thus, repetitive time entries reflecting research, research and more research is another indication of a disorganized and unnecessarily expensive approach to litigation.

6.         Failure to Have a Game Plan

Every case has to have game plan.  We will likely write more about this on this blog in the coming months.  Failure to have a game plan is the same thing as beginning a road trip without a map or a set of directions.  Ultimately, you will find that you are running around in circles hoping to arrive at your destination only to determine, at some point, that you are lost.  Getting lost is okay; everybody gets lost sometimes.  What separates the good lawyers from the disorganized lawyers is the lawyers who start out with a road map and generally follow it.    Preparing a game plan, and then ignoring it, serves no purpose.  Having a game plan, and following it, makes you look confident and organized.

7.         Not Having a Budget or Burning the Budget You Have Already Created

In house counsel loves a budget.  A good budget allows in house counsel to answer the question directed at him or her by their superiors about litigation – “how much is this going to cost?”  With your budget in hand, in house counsel can reply easily to that question.  A budget should include appropriate caveats which explain that litigation can be unpredictable and is, to a certain extent, driven by the conduct of other parties to the case.  Nonetheless, having a set of general guidelines in place will likely assist you in getting paid and give in house counsel a general level of comfort that you know what you are doing.

Finally, having a budget in place but ignoring it, is not good either.  If you budget $50,000.00 for a case and spend $150,000.00, without communicating with in house counsel, you are setting yourself up for a problem.  Nobody likes to receive a big bill without explanation.  Imagine that you have estimated your monthly electricity bill at $250.00 per month only to open up the next bill and, somehow, it has risen to $1,500.00.  Would you be happy?  Of course not.

8.         Timely Communication

I make it a practice to write a status letter to the client after every significant event such as a major deposition or hearing.  Many in house counsel keep a calendar just like you.  As a result, more often than not, they know when a big hearing or deposition is taking place.  While many in house counsel might be too busy to call you regarding the results of the hearing or deposition, that does not mean that they are not driving home in their car, at the end of the day, wondering what happened at the hearing or deposition.  As a result, the organized lawyer makes an effort to communicate with the client at regular intervals to avoid the client having to ask themselves “what is going on with that case?”

9.         Attention to Detail

It should probably go without saying that the client does not expect to see typographical errors in their pleadings, incorrectly cited cases or misspelled names.  A quality legal product has been proofread, organized and clearly and succinctly espouses a client’s argument.  Sloppy work will get you fired.

10.       Understanding the Client’s Business

Every client is in a different business.  Just because some clients work in the same business and are competitors  does not mean that they operate their business in the same way.  While there are certain common factors among them, it is likely that each business has its own philosophy, traditions and sets of procedures.  The wise and organized lawyer understands these things and makes an effort to learn, individually, the nuances of each client.

Conclusion

The organized and proactive lawyer will make an effort to master the above skills when communicating and representing a major corporation in litigation.  In house counsel sometimes have a low tolerance level for things which should be obvious to the lawyer.  Mastering the basics of the attorney-client relationship in the corporate setting is essential to a successful outcome.

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Pet Peeves of In House Counsel

After many years of dealing with in house counsel I have acquired a treasure trove of information about what bothers in house counsel the most about their outside law firms.  Experienced lawyers have learned most of these lessons and make efforts to avoid making these mistakes.  Here is just a smattering of things which irk in house counsel about their outside lawyers.

1.         Junior Associates

In house counsel  do not necessarily dislike junior associates.  It is nothing personal.  Instead, what in house counsel understand about junior associates is that they most often do not know how to bill.  Often the supervising partner does not adequately supervise the work of Junior Associates by providing deadlines, objectives, and time parameters.  The failure to provide this information to a junior associate often results in a “runaway associate” who spends a good portion of his or her time running around in circles and charging a pretty penny for it.  The amazing thing is that, when this happens, it is almost always obvious on the client’s bill.  Major corporations do not want to pay for time wasting endeavors which results from a  failure to supervise the associate’s general lack of direction and focus. Appropriate supervision will likely eliminate this problem.

2.         Repetitive Time Entries

There are very few memoranda of law that take 10 separate days to revise.  Appellate briefs to the Courts of Appeal or to the United State Supreme Court might be an exception.  However, for the average memorandum of law, it is a red flag to in house counsel when an attorney’s time entries show “revised brief” every day for an entire week.  This typically means that the lawyer making such entries is either lazy (he or she does not want to adequately describe what they are really doing) or disorganized (they do not have a game plan for completing the work and, instead, simply massage it each and every day in order to fill up an eight hour day).  These types of time entries raise a red flag with in house counsel.

3.         Failure to Complete Projects

Invoices can be wonderful tools for experienced lawyers who can read between the lines.  Sometimes, a clever in house counsel, with a spare moment, can line up an attorney’s invoices for several months and determine that the attorney working on a particular file starts projects but never really completes them.  This can be evidenced by an entry such as an “Initial preparation of Motion to Compel.’  Of course, a lawyer who is drafting a Motion to Compel should file it, argue it and tell the client about the result.  If there was no result it tells the client that the work was never completed.  If the work was never completed the client is left to wonder: “why should we pay for it ?” This is a reasonable question.

4.         Insufficient Time for In House Counsel to Review Pleadings

In house counsel  often complain that they are crammed with a brief to review which has been provided at the last minute.  As you can imagine, this could be annoying.  Accordingly, when dealing with inside counsel, on a substantive matter, it is important that sufficient lead time be provided so that in house counsel can devote the time necessary to review your work.  Generally, it is a good idea to send in house counsel an email which states something like: “just a reminder, we are preparing the brief on this matter which is due to be filed at the end of the month.  We expect to have  a draft for you by x date.  Please let us know whether that will be sufficient time for you to review or whether you would like it earlier.”  Such an email will ultimately save you the wrath of in house counsel.  Moreover, in house counsel might actually get the impression that you are organized which is a quality that lawyers are not often associated with.

5.         Research, Research & More Research

Every lawyer should be a client at least once in their lives.  Every lawyer should receive a bill for legal services.  If you are unfortunate enough for this to happen to you, then you might know how in house counsel feels when he receives your bill which is replete with hours and hours of research for things which, some lawyers might believe, outside counsel should “know off the top of their head.”

The question of what a lawyer knows “off the top of his or her head,” and what needs to be researched, can make for an interesting debate.  Lawyers with some level of seniority often think that they know certain things “off the top of their head” but, sometimes, they are wrong.  Accordingly, a quick check of the statutes or case law is in order in many instances.  Nonetheless, what in house counsel often complains about are hours and hours of research in which it appears that, from reading the time entries, the associate is teaching themselves the law.  Remember that the associate’s goals and the client’s goals are sometimes diametrically opposed.  It is the associate’s goal to appear educated and well versed in the law to the partner.  It is the client’s objective to obtain a quality result for the lowest possible cost.  Thus, repetitive time entries reflecting research, research and more research is another indication of a disorganized and unnecessarily expensive approach to litigation.

6.         Failure to Have a Game Plan

Every case has to have game plan.  We will likely write more about this on this blog in the coming months.  Failure to have a game plan is the same thing as beginning a road trip without a map or a set of directions.  Ultimately, you will find that you are running around in circles hoping to arrive at your destination only to determine, at some point, that you are lost.  Getting lost is okay; everybody gets lost sometimes.  What separates the good lawyers from the disorganized lawyers is the lawyers who start out with a road map and generally follow it.    Preparing a game plan, and then ignoring it, serves no purpose.  Having a game plan, and following it, makes you look confident and organized.

7.         Not Having a Budget or Burning the Budget You Have Already Created

In house counsel loves a budget.  A good budget allows in house counsel to answer the question directed at him or her by their superiors about litigation – “how much is this going to cost?”  With your budget in hand, in house counsel can reply easily to that question.  A budget should include appropriate caveats which explain that litigation can be unpredictable and is, to a certain extent, driven by the conduct of other parties to the case.  Nonetheless, having a set of general guidelines in place will likely assist you in getting paid and give in house counsel a general level of comfort that you know what you are doing.

Finally, having a budget in place but ignoring it, is not good either.  If you budget $50,000.00 for a case and spend $150,000.00, without communicating with in house counsel, you are setting yourself up for a problem.  Nobody likes to receive a big bill without explanation.  Imagine that you have estimated your monthly electricity bill at $250.00 per month only to open up the next bill and, somehow, it has risen to $1,500.00.  Would you be happy?  Of course not.

8.         Timely Communication

I make it a practice to write a status letter to the client after every significant event such as a major deposition or hearing.  Many in house counsel keep a calendar just like you.  As a result, more often than not, they know when a big hearing or deposition is taking place.  While many in house counsel might be too busy to call you regarding the results of the hearing or deposition, that does not mean that they are not driving home in their car, at the end of the day, wondering what happened at the hearing or deposition.  As a result, the organized lawyer makes an effort to communicate with the client at regular intervals to avoid the client having to ask themselves “what is going on with that case?”

9.         Attention to Detail

It should probably go without saying that the client does not expect to see typographical errors in their pleadings, incorrectly cited cases or misspelled names.  A quality legal product has been proofread, organized and clearly and succinctly espouses a client’s argument.  Sloppy work will get you fired.

10.       Understanding the Client’s Business

Every client is in a different business.  Just because some clients work in the same business and are competitors  does not mean that they operate their business in the same way.  While there are certain common factors among them, it is likely that each business has its own philosophy, traditions and sets of procedures.  The wise and organized lawyer understands these things and makes an effort to learn, individually, the nuances of each client.

Conclusion

The organized and proactive lawyer will make an effort to master the above skills when communicating and representing a major corporation in litigation.  In house counsel sometimes have a low tolerance level for things which should be obvious to the lawyer.  Mastering the basics of the attorney-client relationship in the corporate setting is essential to a successful outcome.

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Happy Halloween from Haber Slade

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The Coral Gables Chamber of Commerce Happy Hour

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Great dinner with great lawyers

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How To Spot a Client That is Likely To Be Trouble

When I first started practicing law, I wish someone had told me how to spot a client that was likely to be trouble. This is an art form, learned over time, which could have saved me and/or some of my partners substantial time and effort over the course of the last 25 years. And, judging from the sheer number of “Motions to Withdraw” being heard routinely at Motion Calendar, I have come to realize that I am not the only one who has been challenged by this issue. So, I decided to put together a list of things to watch out for, which is by no means inclusive, dispositive or all encompassing. Rather, the list, when taken together, may provide some guidance on the warning signs lawyers may want to consider when taking on a new client or keeping an old one.

1. Warning Sign # 1- The Prospective Client Refuses to Sign the Retainer
This is not a good sign. The retainer is an important part of the attorney-client relationship. A client who refuses to sign the retainer is likely not getting off on the right foot with his or her lawyers.

2. Warning Sign #2 – The Client, Once they Retain you, Questions Every Invoice.
It is normal for a client to question the invoices received from lawyers. After all, legal fees can sometimes be hard to understand. A client who questions a lawyer’s invoice is normal. A client who questions every invoice is not.

3. Warning Sign # 3 – The Client Calls Your Office Every Single Day

There are cases which justify a client contacting his or her lawyer on a single litigation matter every day. Injunction cases. Emergency matters. During trial preparation. However, the average case does not require daily client contact. It is one thing if the lawyer is calling the client every day; it is quite another if the client is calling the lawyer every day.

4. Warning Sign # 4 – The Client is Nasty to Your Staff.
We value our staff. They make our office work effectively. Without them, we could not be as good as we are. We take exception to people (including other lawyers) who are not nice to them.
5. Warning Sign #5 – The Client Routinely Does His or Her Own Research.
I like having clients who think and do their homework. It shows that they are interested in their case. However, a client that does his or own research on every issues suggests that either the client does not trust the lawyer or that the client is focused on the case in an unhealthy manner.

6. Warning Sign #6 – The Client Cannot Accept the Deadlines Provided by the Rules of Procedure and Demands a Faster Resolution.

It is hard for some people to understand that a defendant normally has 20 days to answer. To someone who may be owed money, or who has been wronged in some manner, twenty days may seem like a lifetime (not to mention routine extension requests which are almost always granted). What separates the good clients, from the problematic clients, is that the good clients accept it when you tell them that we have to give the defendants twenty days to answer. The problematic clients cannot accept this and are also more likely to question the fact that the other parties have 30 days to file responses to discovery. A client who argues with you about the deadlines set forth in the rules of civil procedure should either get themselves a seat on the rules committee or find another lawyer.

7. Warning Sign #7 – The Client Sends Threatening Emails to you and Your Staff.
The attorney-client relationship is supposed to be productive and mutually rewarding. When the client starts to send emails that are contentious, and impolite, it is time to start re-evaluating the relationship. Not every client keeps their pinkies elevated. We understand that. However, for those clients whose angst about deadlines, timing, delay and cost become an interference it is time to look hard at the relationship. Today’s nasty email often becomes tomorrow’s problem.

8. Warning Sign #8 – The Client Routinely Shows up at Your Office Unannounced.
Lawyers are schedule and deadline driven, by necessity. A client that comes to your office, routinely unannounced, often interferes with that. Couple that behavior, with those identified above, and you have a recipe for a problem.

The Warning Signs above, taken separately, are often not a cause for concern. Litigation, particularly high stakes litigation, can be stressful. Clients sometimes get stressed, as do their lawyers. The problem comes in when all the warning signs above coalesce into a single person and a single relationship. Lawyers often wait until the situation gets out of hand before filing a Motion to Withdraw or when it becomes too late when the case is on the eve of trial. This is why the attorney-client relationship must be continually evaluated by the lawyer to ensure that is both productive and mutually rewarding.

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