Saturday, June 28, 2008

Know Your Opponent

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

When I get a new case, the first question I want answered is, "Who is opposing counsel?" The answer to that question will shape the strategy I employ, the resources I use and the goals I set. Knowing your opponent is crucial in knowing how to handle your case. Is opposing counsel practicing outside of his field of expertise? Has he lost his last six trials? Or does he have a top flight reputation, an attorney who only accepts cases he believes he can win and win big?

But how do you learn these things? How do you get an accurate picture of whom you’re up against? Consider the following suggestions when sizing up opposing counsel:

Search Martindale Hubble. Use Martindale Hubble online. It’s easy to use and it’s free. It will let you know whether opposing counsel is rated and will provide you some general background information, including what law school he attended, year admitted to the Florida Bar and academic and bar accomplishments. It also provides a link to the attorney’s web page.

Search the attorney’s web page. After visiting Martindale, visit the attorney’s web page. You can learn a lot about a firm just from how its web page looks. Is it professional looking? Does it look like the firm invested some time and money developing its web page? Does the firm even have one?

Look up the attorney’s profile on the web page. Has he published any articles? Are they on the webpage? You may want to print and review them. Has he received any awards? What are the attorney’s practice areas? Does he practice in a specialized area? Is he a jack of all trades?

Search the internet. Do a Google search for the attorney on the internet and see what you find. Perhaps you’ll find one or more of the articles he has written. Perhaps you’ll find an article about him and his practice. Perhaps you’ll come across an article where he is quoted on a given legal issue.

Perform a jury verdict search. Go on Westlaw and perform a search of all of opposing counsel’s jury verdicts. How many cases has he taken to trial? How often has he won and how often has he lost? When he wins, how big does he win, and when loses, how badly does he lose? What types of cases does he take to trial and what types of cases does he win once he gets there?

Do a caselaw search. Do a search on Westlaw of any appellate opinions where opposing counsel wrote a brief, whether for the appellant or the appellee. See if his arguments convinced the appellate court to find in his favor.

Ask friends. What do attorneys whom you know and respect say about opposing counsel? Is he good at what he does? Can he be trusted? Is he aggressive? Overly so? Or is he mild mannered and easy to get along with? Is he the type to conceive and implement long term strategies or does he does he shoot from the hip?

Check with the Florida Bar. Call the Florida Bar and ask if opposing counsel is an attorney in good standing. Has he been suspended or reprimanded? An attorney with a history of ethical problems may prove problematic.

Read. Read legal news columns. Read similar columns in your local business newspapers. Get accustomed to reading what your potential opponents are doing -- whether they have been appointed to a board, given a lecture or recently switched firms. Keep abreast of what attorneys in your community are doing. That attorney you read about today may be on the other side of the "v" tomorrow.

When you first get a case, don’t just research the facts and the law. Research opposing counsel. What you find may be more useful that what you find in the law library.

Sunday, June 22, 2008

Life at the Firm

A law firm is a microcosm. It is a miniature universe, with its own inhabitants, its own rules and its own social construct. To survive in it, you must play the role of anthropologist - you must study this world - its social order, its social behavior, its laws, its politics, its values and its beliefs. And to thrive in it, you must abandon your role as anthropologist and become part of the tribe, you must stop observing this world and start adapting to it, embracing it and making it your own. Do less and run the risk of remaining an observer, an outsider, never becoming part of the clan. Outsiders don’t stick around. They either leave to observe the next tribe or are asked to do so.

So life at the firm begins with learning about life at the firm. No doubt, you will make the following observations:

There is a hierarchy. Like any society, a firm has a hierarchy. As a new member of the society, you start at the bottom. Ignore the pecking order, presume your stature is greater than it is, and you will upset others, namely those above you whom you perceive are beneath you. Being that they are above you, they have the power to make things easy for you or make them difficult. What they do is largely a reaction to what you do.

The firm has a code. Each firm has its own rules, a code if you will. Some are written down, such as in an employee handbook. Most are not. No doubt, you were introduced to some of them during your interview. You picked up some more during lunch conversations with other attorneys. Some rules are obvious and some are universal to every firm.

The hard part is figuring out the not so obvious ones, the ones that define your firm and make it different from others. When are you expected to be in the office? When should you leave? Are inter-office e-mails encouraged? What should an inter-office memo look like? How about interactions with the staff? What is encouraged and what isn’t? To learn the code, seek out a mentor, a senior associate or junior partner, who can teach you the code in its entirety.

Each attorney has a code. In addition to the firm code, every attorney abides by his own code - a set of rules, eccentricities and pet peeves, by which he lives. Some are reasonable, some are not. Some make sense, some do not. Your job is not to tell these attorneys to stop insisting that others do things their way. Your job is to do things their way. Learn each attorney’s writing style, research methods and drafting techniques. Learn how they interact with clients, with other attorneys in the office and with the staff. They do things their way because they believe it is the right way to do things. If you want them to perceive you’re doing things the right way, emulate them. Conversely, learn their pet peeves, and avoid them.

The firm has values. Each firm has a set of values. Some are explicit and can be found in their mission statements. Others are less obvious. Whatever they are, they guide the firm. You will be expected to live by them. If you do not share the firm’s values, if you do not share the firm’s vision, you will not thrive there.

The firm has a dress code. Each law firm has its own dress code. Some expect you to wear a suit each day, some are casual year round, and there are many permutations along the spectrum. But what is considered dressing up and what is considered casual? As with everything else, you need to observe what is considered appropriate and acceptable attire and emulate it. This may require some adjustments in your wardrobe. This will be money well spent.

You’re in or you’re out. If you are going to join a firm, you have to jump in with both feet. Sticking your toe in the water isn’t going to do. You have to embrace the firm’s goals, its mission, its values, its structure, its rules and its hierarchy. Do less, and you will never truly belong. Do less, and you will remain an observer. And the days of an observer are always numbered.

Saturday, June 14, 2008

Getting Published

If you want others to see you as an expert in a given practice area, consider getting published. Published articles tell others that what you have to say is important enough and authoritative enough to be in print. But how do you get your article published? Consider the following in order to get your idea read by hundreds, possibly thousands, of others.

Brainstorm. So what do you want to write about? Sit down and brainstorm different ideas worthy of being transformed into articles. Where are you going to find your sources of inspiration? A landmark U.S. or Florida Supreme Court decision can serve as the basis of an article. How about a recent legal trend? A "how to" piece on how to take a deposition or retain an expert? How about an issue a client has asked you to look into? If you’re going to be a writer, always be on the lookout for ideas and ask yourself, "Would this make a good article?" Once you start thinking like a writer, you’ll never be short of ideas to turn into publishable pieces.

Compile a list of potential publishers. Before you sit down to write, decide where you want to get your article published. Compile a list of publications, including trade journals, newspapers, magazines and newsletters, which might be interested in your idea. You don’t know which publication to pitch your idea to? Most bar and trade associations have their own magazines and newsletters, and their editors are always looking for articles to fill the pages of those publications. If you can’t think of any publications to write for, look at the web pages of these associations to see what publications are out there.

Read the publications you want to write for. If you’re going to write something a magazine wants to print you first have to know what it wants. To do this, you need to read the publication. Don’t pitch a story without first knowing what types of articles appear in the pages of that publication.

Read the writer’s guidelines. Many publications provide guidelines about what articles they are looking for, how they want articles pitched, and to whom. Read them carefully and follow the recommendations.

Write a query letter. Once you know who you’ll be writing for, write a letter pitching your idea. In the letter, provide a brief summary of your proposed article, a proposed title, why the piece is relevant to the publication’s readers, your qualifications to write the article and a brief history of your writing experience. To save money on postage and speed up the process, determine whether the publication accepts email queries.

Study the masthead. Most magazines and journals have a masthead, which contains the name of their various editors and staff writers. The list is important, because it will tell you who the different editors are and which one you should address your query to.

Update your resume. The editor you’re pitching your idea to will likely ask to see your resume. Therefore, make sure yours is updated. Include any writing experience and editing experience you have, whether as an editor on law review, a writer for the school newspaper or a contributor to a firm newsletter.

Start small. If you want to see your article in a national magazine or trade journal, start out small and work your way up. Generally, the bigger the publication, the more likely that it does not work with novice writers. Those big publications are looking for authors who have written articles elsewhere and have a proven track record. Generally, the smaller publications are open to working with new writers. Start small, get some experience and climb the ladder to the bigger magazines and trade journals.

Gather clips. Make sure to save any articles, or clips, you publish. Editors will want to see them to get a flavor of your talent and style.

Avoid editors’ pet peeves. If you want to increase the odds that your article will be accepted for publication, avoid the pet peeves of the decision makers. Make sure your query is flawless, with no typos or grammatical errors. If an editor doesn’t want you calling to pitch an idea, don’t. If you’re given a deadline, meet it. If you’re asked to make revisions, make them. Trust that the editor knows best about what the final piece should look like.

Writing an article is only half the work. The other half is getting it published. To get your article published, look for publications which would be interested in your idea, and when you find them, pitch your idea in a persuasive, convincing way. Start out with the smaller publications, and soon you’ll have enough clips to see your name bylined in a piece which is read nationally.

Sunday, June 8, 2008

What Judges Expect from the Lawyers Who Appear Before Them

Having attended my share of motion calenders, special set hearings and judicial receptions and luncheons, I have been afforded the opportunity to hear what judges expect from the lawyers who appear before them. What never ceases to amaze me is how uniform their expectations are. Some are obvious. Others are not. However, they all bear repeating:

Be respectful to the court. Never interrupt the judge or speak over her. Surprisingly, it happens more than you think.

Be respectful to opposing counsel. Never interrupt, belittle or berate opposing counsel. Also, never address opposing counsel. Your arguments are always to be directed to the court.

Don’t mislead the court. If the court misunderstands the facts or misconstrues the law, set the record straight. The misunderstanding may benefit your client, but it is an underhanded way to get the upper hand. And by the way, the judge likely will find out that you snookered him. Nothing upsets a judge more than feeling taken advantaged of by the attorneys that appear before him.

Do your best to work things out before appearing before the judge. Most judges agree that many of the motions that land on their desk, particularly discovery disputes, should and could have been worked out without the need for a hearing. Attorneys need to treat the court for what it is - a last resort after they have exerted every effort to work things out on their own.

Don’t waste the court’s time. Judges have many more cases on their dockets than they should. So, not only should not you set for hearing motions that you should be able to resolve with a phone call to opposing counsel, you should make every effort to get to the point on those occasions when judicial intervention is warranted. Cut that ten page motion to six pages. Cut that six page motion to three. Reduce those five arguments to three and those three arguments to two or even one. Figure out the crux of your argument, articulate it succinctly and then stop talking. The court will find your brevity refreshing.

Judges talk to each other about the lawyers that appear before them. Many judges know that lawyers compare notes about the judges they appear before. Guess what? Judges compare notes about the lawyers that appear before them. That lawyer who was rude and obnoxious, who thought that it did not matter because what does one judge’s opinion matter? Well, that judge, who was taken aback by that behavior, may have share the experience over lunch with his colleagues, who will remember those comments the next time that attorney appears before them. Everything we do before a given judge may affect how every other judge perceives us.

What you do reflects on your firm. Just as what you say before one judge may affect how other judges perceive you, what you say may affect how that judge and other judges perceive your firm. You are your firm every time you step before a judge. Your reputation is inextricably tied with your firm’s, and everything you say and do either improves that reputation or diminishes it.

Be self-deprecating. When you think of arguing a motion, humor probably does not come to mind. Of course you should never joke at the expense of opposing counsel or the court. But at times, injecting a bit of humor goes a long way in reducing the tension and stress, particularly if it is self-deprecating in nature.

Judges are no different than the rest of us, and they have the same expectations as the rest of us. Just as we expect good service with a positive attitude when we go to our favorite restaurants or retail stores, judges expect that the lawyers who appear before them to provide good service - to be prepared. They also expect them to do it with a smile, namely, to act professionally.

Sunday, June 1, 2008

Travel Tips for Associates

The next time you have to travel for a deposition, hearing or a meeting with a client, keep the following in mind to ensure that your trip goes off with a hitch.

Confirm everything. Confirm everyone’s attendance - the court reporter, the witness, opposing counsel, co-defense counsel. Have your secretary call everyone and confirm that they will be there. You don’t want to find out a key party can’t attend after you’ve already boarded the plane.

Make flight arrangements early.
Once you learn you have to travel, make flight arrangements. The sooner you make them, the better fares you’ll get. Also, when reserving a flight, purchase refundable tickets. Often, hearings or depositions are canceled or rescheduled at the last minute. If that happens, you don’t want to be stuck with a non-refundable ticket.

Make sure your car rental agency has its vehicles on the airport’s premises.
Time is money. Make sure if you’re going to rent a car, that the car rental agency has its vehicles at the airport. Taking a shuttle to an offsite facility can be very time consuming.

Get a weather report.
Check the weather to ensure you’ll be dressed appropriately. Traveling from Miami to New York in January requires a change in wardrobe.

Find convenient accommodations. Instead of staying at a hotel near the airport, find a place close to the deposition or hearing site, to ensure you arrive with plenty of time.

Get detailed directions. Before you leave the office, get detailed directions from the airport to your hotel and from your hotel to the deposition or hearing site. And don’t rely on Mapquest. Online map sites can be wrong and confusing. Call ahead and obtain detailed directions directly from the hotel or the court reporter’s office.

Prepare an itinerary. Have your secretary prepare an itinerary that has all your travel arrangements, directions and any other relevant information. This one-page reference source will prove very useful as you from one from place to the next.

Take everyone’s phone numbers. Have everyone’s phone numbers, from the court report to opposing counsel, in case you need to reach them for any reason.

Allow plenty of time. Whenever you travel, allow plenty of time to get there. Assume there will be traffic, that airport security will be slow, that weather will be bad and that flights will get delayed. Plan accordingly.

Pack snacks. Sometimes you won’t have time to grab lunch when you’re running from the airport to your deposition. Pack some protein or snack bars in your briefcase in case of such an emergency.

Take extra work. Because you’ll be giving yourself plenty of time when you travel, you’ll face some dead time in the airport. Take extra work with you so you don’t lose precious billable time. A lot of things can go wrong when you travel for work. You can avoid most problems by planning ahead. Plan wisely.