SEPTEMBER 2008 VOL. 80 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION
A Special Issue on Law Practice Management: What Does the Future Hold?
Understanding the perils and Articles by opportunities in 21st-century Richard S. Granat law practice Susan Raridon Lambreth Roland B. Smith and Paul Bennett Marrow Gary A. Munneke Arthur G. Greene and Sandra J. Boyer Alan Feigenbaum
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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS SEPTEMBER 2008
LAW PRACTICE MANAGEMENT: WHAT DOES THE FUTURE HOLD? BY GARY A. MUNNEKE 10
20 eLawyering: Providing More Efficient Legal Services With Today’s Technology BY RICHARD S. GRANAT 28 Practice Group Management: Passing Fad or Permanent Part of Our Future? DEPARTMENTS BY SUSAN RARIDON LAMBRETH 5 President’s Message 33 The Changing Nature of Leadership in 8 CLE Seminar Schedule Law Firms 16 Burden of Proof BY DAVID PAUL HOROWITZ BY ROLAND B. SMITH AND PAUL BENNETT MARROW 50 Attorney Professionalism Forum 39 Managing and Marketing a Practice 52 Editor’s Note in a Globalized Marketplace for 53 Language Tips Professional Services BY GERTRUDE BLOCK 56 New Members Welcomed BY GARY A. MUNNEKE 60 Index to Advertisers 43 Professional Staffing in the 21st Century 61 Classified Notices BY ARTHUR G. GREENE AND SANDRA J. BOYER 63 2008–2009 Officers The Ethics of Outsourcing 64 The Legal Writer 48 BY GERALD LEBOVITS BY ALAN FEIGENBAUM CARTOONS © CARTOONRESOURCE.COM
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2008 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.
NYSBA Journal | September 2008 | 3
PRESIDENT’S MESSAGE BERNICE K. LEBER “Helping Lawyers, Helping Clients”: Protecting Client Rights, Enhancing Our Image
he freedom from indefinite and Clause 39 of the Magna Carta. During unlawful imprisonment lies at this period, “prisoners started initiat- Tthe very heart of our Anglo- ing habeas [corpus] proceedings to American judicial system and the challenge the factual and legal basis of “Great Writ” of Habeas Corpus has their detention.”5 The Habeas Corpus long been recognized as the vehicle Act of 1679 codified the writ in order vindicating that right.1 Habeas corpus, to stem the abuses of power by King literally meaning “that you have the Charles I and his ministers; it came body,” is an ancient writ employed to to be known as “the second magna bring a person before a court. From its carta, and stable bulwark of [British] inception, its purpose was to guard liberties.”6 However, the English The Report addressed that issue, and against indefinite and unjust deten- Parliament recognized that there were more: since 1789, the writ has been tion by the King.2 On June 12, 2008, in certain times when the writ should be lawfully suspended four times in the Boumediene v. Bush,3 the United States suspended: (1) for periods less than approximately 230 years of the United Supreme Court held that indefinite and one year; (2) when adopted in response States – twice within the continen- potentially unlawful detention with- to conspiracies against the Crown or tal U.S. (when Congress authorized out trial instills the courts with a right all out rebellions; and (3) when lim- President Lincoln to do so in order to review the detention of enemy com- ited to suspected crimes of treason. to advance the Civil War and later batants at Guantanamo and, further, Interestingly, at early English common on, to assist President Grant in deal- that the designation of Guantanamo law, courts “exercised habeas jurisdic- ing with the emergence of the Ku detainees as “enemy combatants” tion over writs filed by enemy alien Klux Klan). Congress also authorized and procedures for review are not an detainees.”7 In a series of cases, the suspension of the writ twice outside adequate and effective substitute for courts determined that non-citizens had the U.S. in areas within U.S. jurisdic- habeas corpus. In light of our House of the right to challenge the legality of their tion (when Congress granted power Delegates’ support for the Boumediene detention on habeas review, not only in to the governor of the Philippines decision in a resolution adopted at court in England but also overseas. during a rebellion there and in 1942, the June meeting held recently in Closer to home, here in the 1600s immediately following the bombing of Cooperstown, I decided to devote this early colonists also claimed a right to Pearl Harbor).9 Notwithstanding the column to this issue. In particular, I habeas corpus, for example, for refus- limitations of the Suspension Clause, want to highlight the fine “Report on ing to issue a guilty verdict against Congress can still deny the privileges Executive Detention, Habeas Corpus William Penn and William Meade of habeas corpus so long as it cre- and The Military Commissions Act of for their “criminal” participation in ates an adequate and effective habeas 2006” (the “Report”)4 prepared by our Quaker worship. Bushell was eventu- substitute. The Supreme Court has Committee on Civil Rights, chaired ally released by writ of habeas corpus, taken a hard look at attempts to create by Fernando A. Bohorquez, Jr., that “when the court decided that jurors these substitutes and held that it must resulted in that resolution. The Report must be free to return verdicts based provide the same rights and remedies underscores the importance of our on the evidence and un-coerced by the commensurate with traditional habeas Association continuing to address courts.”8 Accordingly, the Constitution corpus review.10 issues that affect our clients, the public preserves the writ but also suspends it Today, more than 260 detainees are and our profession. in times of national security. Under the kept at Guantanamo Bay, only 20 of Habeas corpus has played a tra- Judiciary Act of 1789, the courts have whom have been formally charged ditional role as a bulwark against statutory authority to issue writs of with a crime.11 With the Authoriza- arbitrary and unlawful detention. habeas corpus. The modern day habeas has its roots One might ask when the writ of BERNICE K. LEBER can be reached at in 13th century England, specifically habeas corpus has been suspended. [email protected].
NYSBA Journal | September 2008 | 5 PRESIDENT’S MESSAGE A Note From the President tion for Use of Military Force (AUMF) and formally resolved that important Assisting our members – especially that empowers the President to use all issues remain open after Boumediene, our solo and small firm practi- necessary force against those he deter- among them the standards applicable tioners – with the challenges of law practice management in this mines “planned, authorized, commit- to the habeas proceedings concern- increasingly difficult economic cli- ted or aided terrorist activities on 9/11,” ing detainees; the specific rights that mate is, as you know, a theme of and the Defense Department establish- must be afforded them in the pro- mine in “Helping Lawyers, Help- ing the Combatant Status Review Tri- ceedings against them; and the rights ing Clients.” To that end, Robert bunals (CSRTs) to determine whether of non-citizens detained as “enemy Ostertag, one of our former Bar individuals detained at Guantanamo combatants” in other extraterritorial Presidents, is chairing the Special Bay were “enemy combatants,” certain locations under the de facto control Committee on Solo and Small Firm detainees who deny membership in of the United States.17 However the Practices that I formed when I took al Qaeda moved for a writ of habeas issues are ultimately resolved, this office in June. The Task Force will corpus in Boumediene v. Bush.12 The much is clear: lawyers for detainees – be reporting on issues that affect Federal District Court for the District of many of them New Yorkers who work the small and solo practice. Columbia denied the writ. The District tirelessly, pro bono – raised and will On a similar note, Prof. Gary Mun- of Columbia Court of Appeals affirmed continue to raise serious constitutional neke, who heads our Committee on the ruling. While the detainees appealed issues over the terms of their clients’ Law Practice Management, special- the decision, Congress passed the confinement, the meaning of due pro- ly designed this month’s Journal on Detainee Treatment Act (DTA) which cess of law and the right to effective the future of law practice manage- ment. It gives me great pleasure to eliminated writs of habeas corpus from assistance of counsel. While no one invite you to read this extraordi- the federal courts and gave the D.C. would question the importance of our nary issue, dedicated exclusively to Court of Appeals exclusive jurisdic- Government proceeding with trials in the various facets of law practice tion to review CSRT decisions. After Guantanamo that preserve these fun- management, including leader- the Supreme Court held that the DTA damental rights, we have been called ship and business plans, the use of did not apply to cases pending when upon to consider the impact and pro- online resources and more effec- it was enacted,13 Congress responded priety of law on our clients, every tive utilization of associates and with the Military Commissions Act of day we work and wherever we work. paralegals. It is a singular tribute 2006 and (again) denied federal courts As lawyers who toil in the trenches to the hard work and dedication jurisdiction regarding habeas corpus every day, the issues raised by the of our Law Practice Management actions by detainees since 9/11. statutes and in the Boumediene decision Committee and Gary. Most impor- tant, it is only one example of the The U.S. Supreme Court held in are ones which we must continue to tremendous resources offered by 14 Boumediene that § 7 of the Military invoke for our clients, both as lawyers this committee and the State Bar. I Commissions Act of 2006 was unconsti- and as members of the State Bar, for urge you to visit Gary’s committee’s tutional because detainees have a right our profession and our future if we Web site at www.nysba.org/lpm. to challenge the legality of their deten- are to remain a just society, true to our Finally, please write to us if you tion by means of habeas corpus. They constitutional principles. ■ have any thoughts on how we can were not barred from seeking the writ better help you help your clients. 1. Hamdi v. Rumsfeld, 542 U.S. 507, 554–55 (2004) Your e-mails are always welcome or invoking the Suspension Clause’s (Scalia, J. dissenting). at [email protected]. protection because the CSRTs desig- 2. Black’s Law Dictionary, definition of habeas nated them as enemy combatants. The corpus (8th ed. 2004). 3. Boumediene v. Bush, 128 S. Ct. 2229 (2008). outside the United States. The Court held, however, Suspension Clause in the Constitution that while aliens have the right to a full and fair 4. http://www.nysba.org/HabeasReport. may, moreover, only be read to apply hearing prior to sentencing, they do not have quali- 5. Report on Executive Detention, Habeas Corpus fied access to U.S. courts. when public safety requires it in times and The Military Commissions Act of 2006 by the 10. Report at 37 (citing Sanders v. United States, 373 Committee on Civil Rights at 12. of rebellion or invasion. Thus, § 7 of U.S. 1, 14 (1963)). the Military Commissions Act of 2006 6. Report at 13 (citing 1 William Blackstone, 11. Demetri Sevastopulo, Ban Detainess from US, Commentaries 133 (1765)). operated as an unconstitutional sus- Urges Attorney-General, FT.com, July 22, 2008. See 7. Report at 15 (citing Rasul v. Bush, 542 U.S. 466 Report at 3 (citing Jeffrey Toobin, Camp Justice, New pension of the writ. Citing the need for (2004)). Yorker, Apr. 14, 2008 at 32). the “delicate balance of governance,”15 8. Report at 17 (citing Max Rosen, The Great Writ – 12. 128 S. Ct. 2229 (2008). A Reflection of Societal Change, 44 Ohio St. L.J. 337, 13. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). the Court decided that it could not 338 (1983)). 14. 128 S. Ct. at 2240. allow the political branches of govern- 9. Report at 20–27. During World War II, two 15. Id. at 2235 (citing Hamdi v. Rumsfeld, 542 U.S. detainees (one German, one Japanese) also chal- ment to switch the Constitution on and 507 (2004)). lenged the right of the President to try them by mili- off at will, where they (not the Court) tary commission. In those cases, the United States 16. Id. at 2259 (citing Marbury v. Madison, 2 L. Ed. 60 say “what the law is.”16 Supreme Court affirmed that aliens could challenge (1803)). both the construction and the validity of the statute 17. The 100+ page Report was issued prior to the U.S. The House of Delegates of our and underlying basis for detention and question the Supreme Court ruling, but the debate was held on Association considered the Report existence of a “declared war” – whether within or June 21, nine days after the Court decided the case.
6 | September 2008 | NYSBA Journal
NYSBACLE Partial Schedule of Fall Programs (Subject to Change)
The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.
Keeping Current With Automobile Litigation Risk Management for the Solo/Small Firm Fulfills NY MCLE requirement for all attorneys (6.5): .5 ethics and (registration: 12:30 pm; program: 1:00 pm – 5:00 pm) professionalism; 6.0 professional practice October 21 Buffalo September 12 Long Island; Syracuse October 28 Albany September 19 New York City November 6 Westchester September 25 Albany; Buffalo November 20 New York City
Starting Your Own Practice Practical Skills Series: Probate and the Administration (registration: 8:00 am; program: 8:30 am – 6:00 pm) of Estates September 16 New York City Fufills NY MCLE requirements for all attorneys (7.0): 1.0 ethics September 23 Buffalo and professionalism; 2.5 skills; 3.5 pratice management and/or pro- fessional practice Incapacity October 23 Albany; Buffalo; Long Island; September 17 Albany New York City; Rochester; Syracuse; Westchester Bridging-the-Gap: Crossing Over Into Reality Article 9 of the UCC (Please note: NYSBA’s coupons and complimentary passes (program: 9:00 am – 1:00 pm) may not be used for this seminar) October 28 New York City Fulfills NY MCLE requirements for all attorneys (16.0): 3.0 ethics and professionalism; 6.0 skills; 7.0 practice management and/or Practical Skills Series: Basics of Bankruptcy professional practice Fulfills NY MCLE requirements for all attorneys (7.5): 1.0 ethics (two-day program) and professionalism; 2.5 skills; 4.0 practice management September 17–18 Albany (videoconference from NYC) October 28 Buffalo; Syracuse October 30 Albany; Long Island; New York City +Ethics and Professionalism (video replay) September 19 Canton +Update 2008 (video replays) October 29 Albany; Binghamton Practical Skills Series: Basic Matrimonial Practice October 31 Rochester Fulfills NY MCLE requirements for all attorneys (6.5): 1.5 ethics November 5 Buffalo; Utica and professionalism; 2.0 skills; 3.0 practice management and/or November 6 Ithaca; Plattsburgh; Saratoga professional practice November 13 Jamestown October 2 Albany; Buffalo; Long Island; November 14 Canton New York City; Rochester; November 18 Long Island; Suffern Syracuse; Westchester November 21 Watertown; Tarrytown December 3 Poughkeepsie Retirement Accounts in Elder Law Planning December 5 Loch Sheldrake October 3 Albany October 31 Syracuse Emerging Issues in Environmental Insurance TBD Long Island; New York City; (program: 9:00 am – 1:00 pm) Tarrytown October 31 New York City Update 2008 Tenth Annual Institute on Public Utility Law October 10 Syracuse November 7 Albany October 24 New York City Update on Landlord/Tenant Practice Handling DWI Cases in New York (program: 9:00 am – 1:00 pm) October 16 Buffalo November 13 New York City October 23 Long Island October 24 New York City ADR November 13 Albany November 14 New York City Business and Family Entities: What the Divorce Practical Skills Series: Basics of Mortgage Foreclosures Lawyer Must Know and Workouts (program: 9:00 am – 12:45 pm) Fulfills NY MCLE requirements for all attorneys (6.5): 3.0 skills; October 17 Buffalo 3.5 practice management and/or professional practice October 24 Long Island November 19 Albany; Buffalo; Long Island; November 14 Tarrytown New York City; Rochester; Syracuse November 21 Syracuse November 20 Westchester December 5 Albany December 12 New York City
† Does not qualify as a basic-level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)
GARY MUNNEKE ([email protected]) is a Professor of Law at Pace Law School in White Plains, New York, and is Chair of the New York State Bar Association’s Law Practice Management Committee and a regular contributor to the New York State Bar Association Journal. He also serves as a member of the Board of Governors of the American Bar Association, and Co-Chair of the New York Fellows of the American Bar Foundation. Professor Munneke is a graduate of the University of Texas at Austin and the University of Texas School of Law. The views expressed in this article are solely those of the author and do not represent the views or policy of the American Bar Association, its Board of Governors or House of Delegates.
Law Practice Management: What Does the Future Hold?
By Gary A. Munneke
ll lawyers need to be effective managers, even if they do not serve as managing partners or Amembers of the management committee of the firms where they work. Information about practice man- agement is relevant to lawyers of every age, practice setting, and status. It is important to remember that law practice management is not the academic discipline of studying how law was practiced circa 1950, or 1900 (although as a professor, such historical inquiry is intrigu- ing). Management of the law firm and the delivery of legal work, as well as the development of personal manage-
NYSBA Journal | September 2008 | 11 ment skills is a subject that lives best in the present and es, and economics of the organizations where they work. future tense. Becoming the best possible lawyer (or law If they can identify those trends that may have an impact firm) should be an everyday activity, and no examina- on their practice, they may be able to make decisions that tion of present competence should ignore the constant will influence the trends themselves or increase the likeli- imperative to improve – to find ways to thrive, not just hood of favorable outcomes in the future. If they simply survive. This issue of the New York State Bar Association wait until events unfold, they may find the only decisions Journal takes a look at some of the trends that will affect left to them are how best to cut their losses. the practice of law in the near term, and offers sugges- The articles in this issue of the Journal are intended to tions as to how lawyers and law firms should plan for provoke thought about future directions in the field of and respond to the changes that these trends will bring law practice management, which will in turn lead read- in the future. ers to think strategically about ways to mold their own It is just as important to appreciate the trends that will management practices. A short preview of the articles drive law practice management as it is to understand the may be useful. nuances of practice management in the present. Ample Richard Granat, co-chair of the American Bar evidence supports the proposition that the practice of law Association’s eLawyering Task Force, discusses the evo- has changed dramatically in recent decades, as has the lution of online legal services in his article, “eLawyering: management of law firms. Although it is not possible to Providing More Efficient Legal Services With Today’s predict the future with certainty, those lawyers who make Technology.” Having created a Web-based law firm him- thoughtful, informed guesses about what the future holds self, Granat speaks from experience. He points out that will be more likely to weather the winds of change than while the number of law firms with some kind of online those who simply wait for events to overtake them. Those presence has increased dramatically, most do not offer who study the future (futurists, as they call themselves) sophisticated interactive services for clients. Some firms, often speak in terms of “alternative futures.” To them, the as well as non-legal service providers, now offer a variety future is not cast in stone; rather it is influenced over time of legal services online, and most observers believe that by countless variables of less-than-certain predictability. growth in this sector will continue. For law firms that still While some factors may operate beyond our control as do not have Web sites, as well as those with purely infor-
The articles in this issue are intended to provoke thought about future directions in the fi eld of law practice management.
humans, we have the ability and opportunity to affect mational sites, questions about how online services will others, and thereby move in the direction of a future we impact the marketplace for legal services abound. For consider favorable. those firms that want to make the move to eLawyering For example, take global warming: A variety of scien- services, decisions about how to structure and manage tists have presented evidence to show that the average such non-traditional services may be daunting. global temperature is rising, and that such warming Thinking back to the changes in law practice that were will have a profound effect on climate, eco-systems, and triggered by the introduction of personal computers in human economies. Some pundits suggest that there is not the 1980s, Susan Raridon Lambreth, a well-known con- enough information to know for certain whether global sultant to law firms with Hildebrandt International, in warming is a long-term trend or a cyclical pattern. An “Practice Group Management: Passing Fad or Permanent individual who accepts the reports that global warming Part of Our Future?”, examines how practice manage- is real may be able to act in ways that will contribute to ment has evolved as firms have become larger and more ending or ameliorating global warming, like reducing the dispersed. Lambreth argues that the more de-centralized consumption of bio-fuels by taking public transportation. firms become, the more critical it is to have effective man- The same person might protect against certain risks asso- agement to ensure a strategic position in the marketplace ciated with global warming, such as a rising sea level, by and to integrate practice groups, branch offices, recruit- not buying beachfront property likely to be inundated if ing, marketing and resources. It is not enough today to the direst predictions come to pass. think of the organization as a monolithic entity, but rather Lawyers and law firms also have the opportunity to as a collection of distinct practice groups, with particular look at the future of law practice, and make decisions about how they manage the office, staff, clientele, servic- CONTINUED ON PAGE 14
12 | September 2008 | NYSBA Journal
CONTINUED FROM PAGE 12 utilization of associates and discuss when to hire parale- management needs. Although this model demands great- gals and when to hire lawyers. In a related article, NYSBA er management resources and attention, the investment Law Practice Management Committee member Alan of time and dollars in the management of these functions, Feigenbaum provides an overview of bar ethics opinions Lambreth concludes, translates directly to bottom-line on outsourcing legal services and summarizes the ethi- profitability. cal mandates that U.S. lawyers face before sending their A related issue for law firm management is the often- work overseas. overlooked topic of leadership. Managers are not neces- In addition, NYSBA President Bernice Leber offers her sarily leaders, and a firm’s management team may lack thoughts on the importance of practice management for the vision or the ability to communicate its vision to New York lawyers, and regular Journal contributor David the rest of the organization. In “The Changing Nature Paul Horowitz, in his column Burden of Proof, examines of Leadership in Law Firms,” Roland Smith and Paul the role of differentiated case management in the litiga- Bennett Marrow, reporting on their research for the Center tion process and urges lawyers to make the system work for Creative Leadership (CCL), postulate that leadership for both themselves and their clients. involves a set of skills related to producing change, and Collectively, these articles and columns raise a host of that these skills can be studied and learned within the practice management issues for law firms large and small. law firm context. Only by exercising this transformative An impressive panel of authors offers a variety of insights leadership, Smith and Marrow argue, will law firm lead- as to how lawyers will have to manage their practices ers be able to successfully surmount the challenges of the differently in the coming years. The legacy value of tra- increasingly complex law practice environment. ditional lawyer-client relationships and delivery models This author provides a different look at practice has diminished over the past two decades. The thrust of management in “Managing and Marketing a Practice these articles seems to be that new, innovative and more in a Globalized Marketplace for Professional Services.” efficient practice models will supplant older, traditional, Adapted from the 2008 Presidential Summit on inefficient ones. There will be winners and losers in this “Globalization and the Practice of Law,” which was Darwinian environment, and the demise of centuries-old inspired in part by the Journal article “Economic firms in recent years is testimony to the reality that his- Globalization and Its Impact Upon the Legal Profession,” tory is no guarantee of continuity. by former NYSBA President James Moore.1 In addition It would be foolhardy to think that the articles in this to Moore, the panelists included Dean Mary Daly, James issue represent all the emergent issues for the future of Duffy, Calvin Johnson, and Professor Laurel Terry; it was practice management, or perhaps for the future of law moderated by former NYSBA President and Chair of the practice itself. The Law Practice Management Committee Committee on Standards of Attorney Conduct, Steven is committed to an ongoing effort to provide useful infor- Krane. This article moves the discussion from the general mation to lawyers on how to stay ahead of the curve. The principles of globalization to the more specific topic of Committee will continue to disseminate useful informa- how law firms should manage their resources strategi- tion through a regular column and other articles in the cally to compete effectively in the global marketplace. Journal. The Committee will also deliver shorter articles Economic globalization will touch every law practice in and links in the State Bar News, The Complete Lawyer (cir- New York and the rest of the United States, not just a few culated to all NYSBA members), the Committee Web page large firms in Manhattan and Los Angeles (as many law- at http://www.nysba.org/lpm, and a Vendor Resources yers would like to believe). Guide. The Committee will sponsor on an ongoing basis Arthur Greene and Sandra Boyer get down to nuts live, downloadable online tele- and video-conferenced and bolts in an article titled “Professional Staffing in the continuing legal education, and books from the State 21st Century.” Greene, the author of several ABA books Bar and other publishers. In May, the Law Practice on law office organization, staffing and financial manage- Management Committee introduced an electronic news- ment, and Boyer, an experienced consultant and advisor letter, which is circulated to members quarterly. We also on law office human resources, note that the delivery of provide up-to-date information on CLE programs, publi- quality legal services requires recruiting and sustaining a cations, and resources on law practice management that quality staff, including both associates and support staff. you can use in your practice. For more information on the One trend from recent decades, which Greene and Boyer work of the Law Practice Management Committee, feel predict will continue to expand, is the use of paralegals free to contact the NYSBA Staff Director of Law Practice to handle routine legal work, allowing lawyers to con- Management, Pamela McDevitt, at pmcdevitt@nysba. centrate on more complex, high-level tasks. Paralegals org, or Committee Chair, Professor Gary Munneke at will not replace associate attorneys, but rather permit [email protected]. ■ neophyte practitioners to work in different ways. The 1. James C. Moore, Economic Globalization and Its Impact Upon the Legal authors provide a five-step program for more effective Profession, N.Y. St. B.J. (May 2007) 35.
14 | September 2008 | NYSBA Journal
BURDEN OF PROOF BY DAVID PAUL HOROWITZ
DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject. Help Is Here, Whether You Want It or Not
Introduction to the demands of adversaries, clients, from a time during which parties only he September Journal is devoted and the court system. Then, just when appeared in court to resolve disclo- to issues of law practice manage- it’s time to leave for the two-hour com- sure disagreements, to one in which Tment, a topic of ever-increasing mute home (often, the best part of the nearly every facet of disclosure is importance for most attorneys. After day), we realize we have done nothing regulated and supervised. DCM has all, who among us, looking back at to advance the individual cases we are also, as it is evolving in many coun- bygone law school days, does not rue responsible for. ties, meant the effective end of the the fact that we were not taught some- Now, the general purview of this Individual Assignment System (IAS) thing, anything, about time manage- column is disclosure and evidence. For model, although some counties, such ment, accounting or human resources? readers, depending upon their practice as New York County, have struggled In retrospect, most of us would glad- area or areas, day-to-day case and to maintain a “pure” IAS system, while ly have sacrificed studying the Law office management issues will vary operating within the time limitations Against Perpetuities or the Rule in significantly and don’t necessarily lend imposed by DCM. Once a request for a Shelly’s Case for something a bit more themselves to uniform systems or solu- preliminary conference is filed, many practice-minded and practical. Taught tions. counties now assign all cases in the to “think like lawyers,” many of us However, there is one constant for county to a centralized “intake part,” failed, during our legal spawning, to the civil litigator in New York state when the initial scheduling order (the develop an appreciation for those non- courts that can provide help in manag- preliminary conference order) is draft- sexy, non-stimulating, and generally ing and moving civil cases forward. It ed by the attorneys, to the extent they non-remunerative (in the immediately doesn’t cost anything, requires no fancy are able to agree. The case is then gratifying sense) skills of law practice equipment, and is guaranteed to move conferenced, and issues in dispute are management. cases along, with or without effort on resolved either by agreement or by the Then, newly minted and proud as the part of the attorneys involved. I am court. If a law secretary conducts the peacocks and peahens, we eagerly writing, of course, about Differentiated conference, the parties have a right to arrived at our first jobs where our Case Management (DCM), and its see the judge for a final determination bosses railed against our lack of busi- built-in scheme of preliminary, compli- of any disputed issue or may consent ness acumen, constant re-invention of ance, and pre-trial conferences. to have the law secretary decide the the wheel, and all-around naiveté. Of issue or issues in dispute. course, those now seem to be the good Differentiated Case Management Cases falling under DCM are old days, since advancement in the Pursuant to Uniform Rule § 202.19–Trial assigned to one of three “tracks,” each profession inevitably brings the pres- Courts,1 enacted in 1999, DCM was corresponding to the perceived com- sure of increased responsibility and, implemented statewide. DCM applies plexity of the case and each with its eventually, individual case manage- to categories of cases, as well as to own time frame for completing dis- ment responsibility. counties, courts or parts of courts, closure. The first track, “expedited,” Moving a civil case from timely as may be designated by the Chief requires that all disclosure be com- commencement to the point where it Administrator. While the manner of its pleted within eight months.2 The sec- is ready for trial in our New York state implementation throughout the state ond track, “standard,” requires that court system involves many challeng- has not been uniform, there are cer- all disclosure be completed within 12 es, not least of which is the need to pro- tain characteristics shared by courts months.3 The third track, “complex,” actively move cases forward in the face in all counties where the program is requires that all disclosure be com- of competing cases and clients. All too in effect. pleted within 15 months.4 Uniform often we spend all or most of any given DCM has transformed the court Rule § 202.19(b)(2) requires compliance day putting out fires and responding system during the disclosure phase with the time frames unless they are
16 | September 2008 | NYSBA Journal The parties obtain additional time for “shortened or extended by the court disclosure without the case running afoul depending upon the circumstances of the case.”5 As with any court rule, of the court’s deadlines. except when expressly prescribed by law, “upon such terms as may be just the preliminary conference order ods of time, are typically scheduled and good cause shown,” the court may for completion of disclosure.8 before a “real” trial date is set. extend a DCM time frame.6 3. A pretrial conference must be At the preliminary conference, par- Thus, at the time of the first confer- held within 180 days of the filing ties devise a disclosure schedule, sub- ence, when a case is assigned a track, of the note of issue.9 ject to approval by the court. The the parties know how much time they 4. At the pretrial conference, a trial Uniform Rules specify five matters have to complete disclosure. In fact, date must be set, which is to be for consideration at the preliminary since the assignment of a particular no later than eight weeks after conference: case to a particular track is usually pre- the pretrial conference.10 1. simplifying and narrowing fac- ordained, litigants will know, from the While the scheduling of preliminary tual and legal issues; outset of a case, how much time will be and compliance conferences in DCM 2. establishing a timetable for the allotted for disclosure. courts generally occurs as set forth in completion of all disclosure Although many aspects of DCM the rules, many courts are not able to proceedings, within the time are inflexible, there is an element of schedule the pretrial conferences as frames set forth in Uniform Rule flexibility when it comes to the assign- required or, if they do hold the confer- § 202.12(b) (non-DCM cases) ment of a case to a particular track. For ence as required, set a trial date within or Uniform Rule § 202.19(b)(2) example, if the case would typically be eight weeks. In that case, the pretrial (DCM cases); assigned to an “expedited” track, and conference becomes merely the “first” 3. adding necessary parties; the parties have reason to believe that pretrial conference and subsequent 4. settlement; disclosure cannot be completed in the conferences spread over varying peri- 5. removal to a lower court; and allotted time, a request can be made at the preliminary conference to have the case assigned to the “standard” track, thereby obtaining, at the outset, four additional months for disclosure. Another area of flexibility is where, in the course of conducting disclosure, it becomes clear that a case assigned either to the “expedited” or “standard” track will not be ready for trial within the allotted time. In this situation, a request can be made at a compliance conference to have the case re-assigned to a longer track, i.e., from “expedited” to “standard,” or “standard” to “com- plex.” In this way, the parties obtain additional time for disclosure without the case running afoul of the court’s deadlines.
Scheduling Uniform Rule § 202.19 sets forth the schedule for conferencing a DCM case. It provides the following: 1. A preliminary conference shall be held within 45 days of filing a request for judicial intervention (RJI).7 2. A compliance conference must be scheduled no later than 60 days before the date set forth in
NYSBA Journal | September 2008 | 17 6. any other matters that the court time for completion of disclosure as Conclusion deems relevant.11 well as provide a forum where, among Many members of the bar do not like Compliance conferences are de- other things, case resolution can be the strictures imposed upon them and signed to monitor the progress of dis- discussed. Of course, making these their clients by DCM. There is cer- covery prior to the deadline for filing conferences work requires preparation tainly a valid debate to be had, at the note of issue. Required in DCM on your part, as well as preparation another time and place, over the extent courts, they may also be held in non- and the active participation on the part to which case “disposition” has sup- DCM courts. In addition to enabling of your adversaries and the court. planted case “resolution” as a result of the court to monitor the progress of the To ensure that cases are moving in DCM in some courts. parties in completing disclosure, the a timely manner through the DCM Nonetheless, with DCM approach- compliance conference provides an system, the court must hold a compli- ing its 10th birthday, and, for the fore- opportunity for parties to expand, re- ance conference no later than 60 days seeable future, here to stay, my recom- vise, and otherwise tailor and refine before the deadline established for the mendation to my colleagues is: “Don’t the scope and manner of disclosure. completion of disclosure. At the confer- fight it, embrace it.” Make the system Most important, they provide an op- ence, among other things, a deadline work for you and your clients. For portunity to resolve disclosure dis- for filing the note of issue must be set, every one of us who procrastinates, putes in a less formal, and far less if not already set at a prior conference gets sidetracked, and cannot see the time-consuming manner than the or in a prior order.14 forest for the trees, DCM has imposed making of a motion. It is important for practitioners to a roadmap and timetable for arriving Pretrial conferences are required in know the manner in which confer- at a conclusion in civil cases. DCM cases12 and non-DCM cases.13 ences are scheduled, and deadlines One inescapable fact for most cases The pre-trial conference is an oppor- enforced, in the particular county in most counties is that the time from tunity to discuss with the court any in which an action is pending. Of commencement to trial has decreased outstanding issues, including any new paramount importance is ascertain- in the DCM era. For every plaintiff’s issues arising since the time of the last ing whether or not the court issues a lawyer who has bemoaned delays in court contact, to address potential trial notice pursuant to CPLR 3216 at any getting to trial to obtain justice for a issues, and to explore the possibility of of the conferences and, if so, whether client, and for every defendant’s law- settlement. uniformly throughout the county or yer who has demanded vindication for While DCM conferences may on a case-by-case basis. Failure to do a client at trial, this change has been involve long waits in very busy cen- so may result in a dismissal “for failure beneficial. tralized parts, the opportunity to regu- to prosecute” which, although subject So, learn the rules of the DCM larly sit with adversaries and the court to vacatur on a proper record, will system, use them to advantage, and to hash out disclosure and other issues, not permit re-commencement under a once-unattainable goal can be real- when properly done, can hasten the CPLR 205(a). ized: A trial date for civil cases that broadly satisfies the “speedy” man- date of CPLR 104.15 ■
1. 22 N.Y.C.R.R. § 202.19(a). 2. 22 N.Y.C.R.R. § 202.19(b)(2)(i). 3. 22 N.Y.C.R.R. § 202.19(b)(2)(ii). 4. 22 N.Y.C.R.R. § 202.19(b)(2)(iii). 5. 22 N.Y.C.R.R. § 202.19(b)(2). 6. CPLR 2004. 7. 22 N.Y.C.R.R. § 202.19(b)(1). 8. 22 N.Y.C.R.R. § 202.19(b)(3). 9. 22 N.Y.C.R.R. § 202.19(c)(1). 10. 22 N.Y.C.R.R. § 202.19(c)(2). 11. 22 N.Y.C.R.R. § 202.12(c). 12. 22 N.Y.C.R.R. § 202.19(b)(1). 13. 22 N.Y.C.R.R. § 202.26. 14. 22 N.Y.C.R.R. § 202.19(b)(3). 15. “The civil practice law and rules shall be liberally construed to secure the just, speedy, and inexpensive determination of every civil judicial proceeding.”
18 | September 2008 | NYSBA Journal eLawyering: Providing More Efficient Legal Services With Today’s Technology By Richard S. Granat
he phenomenon of eLawyering has swept through serve large corporate clients, while solos and small law the legal world with amazing speed. Until recently, firms generally serve consumers and small businesses Tlawyers practiced law the same way that genera- – it is difficult to make generalizations about these two tions of lawyers before them had practiced. The tools of different worlds. By and large, large law firms compete the trade, such as they were, tended to be passed down for a finite number of large corporate clients, whereas from experienced lawyers to newer lawyers without the markets for consumer legal services are constantly much change. The computer revolution, which began in shifting, with some practice areas contracting, such as the 1980s, however, has changed the way lawyers work Chapter 7 bankruptcy, while other practice areas, such in dramatic and fundamental ways. Today, lawyers in as immigration, are expanding. Consumer markets can every field of practice, every geographic locale, and every be segmented by type of substantive practice area and type of organization use technology to improve their effi- also by client demographics. For example, one special- ciency, productivity and profitability in countless ways. ist in divorce law may serve primarily a middle-income clientele while another divorce practitioner may represent The Internet very wealthy clients with vast assets. Yet, a large propor- The Internet deserves special attention because of its sin- tion of the consumer market remains underserved by gular potential to transform the way lawyers deliver legal services to clients. The advent of eLawyering provides RICHARD S. GRANAT ([email protected]) is President of DirectLaw, Inc. He unprecedented opportunities for enhancing the produc- received his J.D. from Columbia Law School, an M.S. from the University tivity of all lawyers, but particularly those in solo and of Pennsylvania and a B.A. from Lehigh University. small law firms. In addition to service delivery, smaller organizations are discovering enhanced opportunities for marketing online legal services to consumers and small businesses. Although this article focuses primarily on the needs of solos and small firms, larger organizations are adopting eLawyering models as well. However, because the legal profession is highly stratified – large law firms tend to
20 | September 2008 | NYSBA Journal Very little accurate market the legal profession because of affordability and access issues. It is this consumer market in which eLawyering research data exists on the offers the greatest prospect for meaningful change in the delivery of legal services. opinions of U.S. consumers and their view of the legal The Changing Legal Landscape Since 2000, a new category of non-lawyer/legal informa- profession. tion Web sites has emerged, which sites offer direct-to- consumer, very low-cost legal solutions. The legal infor- mation industry of self-help books and forms has gone More significantly, this is an amount that will continue online. The solo and small law firm segment of the legal to increase – at the expense of practitioners. As legal profession is squarely in its sights. Because legal informa- information sites become more sophisticated and incor- tion solutions can often substitute for the professional porate more rule-based, intelligent Web applications that services of an attorney, legal information sites present a substitute for the judgment and the labor of an attorney, new reality, which lawyers generally, and solos/small they will thrive. Because of their private corporate struc- firms in particular, will need to address. ture, these companies have access to more capital and There are now literally hundreds of Web sites that superior management resources than the typical small provide legal resources and information, in areas such as law firm. While utilization of an “intelligent” legal form wills, divorce, adoption, bankruptcy, business incorpora- is not a substitute for the services of an attorney, for many tion, child support enforcement, living trust creation, debt consumers smart legal forms and supporting legal infor- counseling, immigration, trademark search, copyright mation content provide a result that is “good enough” registration, patent registration, and landlord-tenant law. and evidently is proving satisfactory to thousands of Sites such as these offer Web-enabled legal forms, legal consumers. information services, advisory systems, law guides, FAQ guides, and other tools for legal problem resolution, short What Consumers Want of delivering what could be called “full legal services.” Why do consumers look for alternatives to lawyers? The These new alternatives are capturing or acquiring answer is not always obvious. Consumers will avoid clients from both the “latent” market for legal services using a lawyer unless they really must because: and from existing law firms. And these Web sites are • They cannot afford lawyers, who may typically very efficient. Once content is published to the site there charge from $200 to $500 an hour, or more. is little else that the publisher has to do to generate cash • They do not trust lawyers to always represent their flow, except to market the site on the Internet and provide best interests. customer support. Consumers pay with a credit card. • They believe that lawyers are inconvenient and inef- Cash goes directly into the publisher’s account within 48 ficient to use. hours of purchase. • They dislike paying hourly rates. The revenues from the purchase of legal form content, • They perceive lawyers as high risk in terms of ben- whether the legal forms are automated or not, can be efits versus cost. viewed as a royalty stream that continues to flow to the Consumers will sub-optimize and seek the assistance publisher, for as long as the product is available for sale. of an independent paralegal, for example, rather than the There is a cost in maintaining the currency of legal form full services of an attorney in the interest of economy, content, but it is relatively insignificant. Many legal forms even though it is far from the perfect solution. Thus, craft- are stable in terms of content and do not change greatly ing marketing strategies for law firms that serve consum- from year to year. ers and small businesses requires a deeper understanding The effect of the legal information Web sites on solos of what consumers want and why they are seeking alter- and small law firms is just beginning to be felt, but they natives to lawyers. are already having an impact. For example, in the area Very little accurate market research data exists on the of no-fault divorce, sites, such as www.completecase. opinions of U.S. consumers and their view of the legal com, www.legalzoom.com, www.selfdivorce.com, profession. For good, in-depth research on this issue one www.divorcelawinfo.com, www.divorcenet.com, www. may look to the United Kingdom. An organization called docupro.net, and www.uslegalforms.com, have processed Which?, the largest consumer organization in Europe and more than 50,000 online divorces in the past 18 months. the equivalent of our Consumers Union, has extensively If the average legal fee for an uncontested, no-fault studied consumers’ opinions of lawyers. Its most recent divorce is about $1,500, then approximately $75 million findings show that in legal fees have been drained from lawyers’ practices • 29% of consumers reported that legal services were nationwide. poor value for their money;
NYSBA Journal | September 2008 | 21 • narrowing of the prohibition against unauthorized practice of law that enables non-lawyers in many areas to provide legal advice and create legal docu- ments for consumers. It will be a long time, if ever, before similar reforms happen in the United States, but it will be interesting to see what happens in the United Kingdom during the next few years as these reforms take effect. The U.S. legal profession can learn from the experiments that are being carried out in the United Kingdom and the impact of these experiments on consumer choices. What do consumers want? Which? has also conducted extensive research on what consumers seek from their lawyers. The dominant theme is better customer service. Consumers want • information about what their case is going to cost; • an idea of how long their case will take; • progress updates on their cases; • prompt response to letters and phone calls; • prompt responses to their complaints. Which? also reports that consumers want legal advice and legal services to be delivered • online, by phone and even by text; • beyond usual business hours; • linked to related services, such as the purchase of a home; • together with unbundled and do-it-yourself (DIY) legal services. • 23% said their solicitor did not listen to their opin- Because consumers of legal services in the United ion; Kingdom are not greatly different from consumers in • 30% did not feel well informed about charges; the United States, there is much to be learned from this • 40% said that despite being unhappy with the ser- research. From consumers’ perspective, the system for vice, there was no point in complaining because the delivering legal services must be re-designed to address Law Society would not do anything anyway; and their needs by creating a new value proposition; elimi- • 63% thought it would be a good idea to get legal nating the necessity of meeting at the lawyer’s office; services at supermarkets or retail banking institu- increasing the speed of the transaction; and offering ser- tions. vices at a flat fee. For these and other reasons the United Kingdom is Lawyers need to devise models that meet the needs in the process of de-regulating the legal profession. The of consumers, or else the migration of consumers to less goal is to promote greater consumer choice and create the valued, and often less effective, alternatives will continue framework for introducing modern methods of manage- unabated. But lawyers can address this trend by doing ment, modern technology, and capital into the delivery the following: of legal services. Sometime in 2009 the following reforms • Increasing the transparency of the transaction between will take effect: client and lawyer by moving away from hourly pric- • independent regulation through a Legal Services ing towards fixed pricing and/or pricing by result. Board that is not dominated by the legal profession; The lack of transparency in lawyer pricing creates • independent complaints handled by a new Office tremendous anxiety on the part of consumers. A con- for Legal Complaints; sumer can obtain a fixed price from a home builder to • authorization of alternative business structures build a $1 million home (with allowances for unfore- that would permit non-lawyer entities to invest in seen circumstances), but cannot receive a fixed price and develop law firms and create new legal service from a lawyer for a relatively simple divorce. delivery structures; • Improving productivity of the legal transaction and • abolition of the prohibition against splitting fees passing the savings on to the client. Consumers sus- with non-law firms in order to encourage more pect that lawyers are using information technology innovative marketing arrangements; and to increase their productivity by automating more
22 | September 2008 | NYSBA Journal routine legal tasks such as document production. few years, as the “connected generations” come of age. They resent the fact that productivity enhancements The size of the connected generation born between 1970 are not passed along to the consumer in terms of and 1986 is approximately 76 million. Whatever trends lower prices. Without competition from other kinds are now in place will accelerate over the coming years of providers, the legal profession has no incentive as these people mature and come into the age at which to lower prices. Instead, legal fees tend to increase they require legal services. They have grown up with over time. Full service stock brokers were impacted computers and look to the Internet first, before checking by online discount stock brokers, resulting in price the Yellow Pages, reaching for a telephone, or consulting reductions. A competitive economic environment for with a professional face-to-face. legal services would have the same result. Moreover, for those in the generation born since • Changing the structure of the relationship with cli- 1986, a defining cultural-historical characteristic is that ents. The lack of transparency of lawyer-client trans- they spent their formative years in the Internet era. This actions and the increasing level of fees compound “iGeneration” has no memory of (or nostalgia for) a the inconvenience of communicating and working pre-Internet history, which greatly differentiates them with a lawyer. While it is necessary to appear in a from older generations that had to learn to adapt to doctor’s office for a physical examination, it is not “new” technologies. The iGeneration takes the Internet necessary to be physically present in a lawyer’s for granted. Sites launched since 1998, such as MySpace, office in order for the law firm to do its work. YouTube, iFilm, Internet forums, Wikipedia and Google Yet the prevailing mode of doing business often are part of the global cultural ecosystem. requires that the client give up half a day of work or Connected consumers use the Internet for business more and travel to a lawyer’s office for advice at the and social networking, shopping, product research, and lawyer’s convenience, not the consumer’s. finding a mate. They value: • innovation; The Connected Generations • immediate results; The pressure to change the way legal services are deliv- • authentication and trust; ered to consumers will increase dramatically in the next
NYSBA Journal | September 2008 | 23 • interactivity; and This is a good beginning for understanding the con- • a high level of customization. cept and attitude of eLawyering. At its core is a law firm Online consumers behave differently from consumers Web site that incorporates interactive and Web-enabled of prior generations: applications that support interaction between lawyer and • They look to the Internet as the first place to go for client along a number of dimensions. information. • They use comparison sites as a tool for decision Creating an eLawyering Practice making. The first step is to build a “strategy map” that identifies • They want to try before they buy. who and where your existing and potential clients are • They look for communities of interest where opin- and how you can serve them more effectively over the ions and information can be exchanged (see, for Internet. A highly localized and neighborhood-based example http://www.avvo.com). practice serving lower income families may find that, in • They seek digital spaces that are interactive. fact, the Internet is less relevant to its client base. On the • They will interact with a Web site before talking to a other hand, a law firm that serves small businesses in a professional. specialty area such as intellectual property, immigration • They may consult with a professional, but only fol- or employment law, and is seeking to expand its practice lowing digital exploration. from a single city to statewide, will find the Internet quite The connected generations want to do business over relevant and useful. the Internet with attorneys. They intuitively understand Time, pricing, convenience, the degree of emotional eLawyering concepts, even if most lawyers do not. hand-holding needed, the possibility of unbundling transaction components, the degree of specialization that What Is eLawyering? is required, and the degree to which the transaction lends The concept of eLawyering can be traced to the begin- itself to self-help approaches, are all factors to take into nings of the Internet, when early law firm Web sites such account in creating a strategy map for adding an eLaw- as http://www.visalaw.com first appeared. In January yering dimension to a practice.
A law fi rm that serves small businesses in a specialty area and is seeking to expand its practice will fi nd the Internet quite relevant and useful.
2000, William Paul, then president of the American Bar In order to develop a competitive strategy, it is neces- Association, created the ABA eLawyering Task Force, sary to think like a disrupter. The growth of companies and the idea of eLawyering was formally recognized as like Southwest Airlines, the University of Phoenix, and a way of delivering legal services. Paul’s vision was that Wal-Mart follows a common pattern. Each of these com- lawyers would be able to use the power of the Internet to panies started with a solution that made it easier, simpler serve clients of moderate means who have been priced and more affordable for customers to solve a critical out of the legal market. problem in their lives. Each of these companies then Undoubtedly, eLawyering will grow in importance in identified a group of customers that typical suppliers in coming years, just as shopping online has experienced the industry considered insignificant and then adopted year-to-year growth. Marc Lauritsen, co-chair of the an approach that made it difficult for traditional suppli- eLawyering Task Force of the Law Practice Management ers to respond. Section of the American Bar Association, in an article in As Clayton M. Christensen2 points out, when Sony Law Practice magazine,1 succinctly defined eLawyering as entered the consumer electronics market, it didn’t com- all the ways in which lawyers can do their work pete with the leading tabletop radio providers by making using the Web and associated technologies. These better radios. Instead, it introduced a portable and inex- include new ways to communicate and collaborate pensive transistor radio that was designed for teenagers with clients, prospective clients and other lawyers, who wanted to listen to ball games or music without produce documents, settle disputes and manage legal being supervised by parents. When Apple introduced the knowledge. Think of a lawyering verb – interview, investigate, counsel, draft, advocate, analyze, negoti- iPod, it didn’t compete with the Sony Walkman. Instead, ate, manage and so forth – and there are corresponding it created a unique platform so that this same demo- electronic tools and techniques. graphic could carry their music libraries in their pocket.
24 | September 2008 | NYSBA Journal The lesson here is that non-clients of your law firm can Web-enabled law firm should consider the following become great clients if you figure how to reach them with applications. an alternative offering that meets their needs. Sometimes, the best target customers or clients are those that lack the Client Extranets skills, wealth, success or time to consume existing prod- A client extranet is a secure and private space for each ucts or services. Removing barriers to consumption can client, where the client can communicate with his or her create a pathway to growth. attorney securely, documents can be archived, the client Once you figure out what kinds of clients you want can check the status of the case or matter, and legal fee and how you will serve them, you can translate the billings can be presented and reviewed, if not actually strategy into a Web site development plan. This plan will paid electronically. A client extranet permits personaliza- estimate investment costs, revenues, and the intangible tion of the client experience; security of communication; benefits that result from the creation of a Web-based legal and the convenience of having all of one’s documents and service delivery system that is a platform for interactive transactions with the attorney documented and in one Web-enabled applications. private and secure Web space. This is key. Many law firms have what could be called A client extranet can be costly to create if you program “first generation” Web sites that consist of little more the entire application yourself. Few lawyers possess this than an expanded Yellow Pages advertisement. A much level of programming skill, so a more practical alterna- smaller number of law firms have “second generation” tive is to create a client extranet around applications that Web sites that provide rich, substantive content and legal are hosted by third parties, such as Findlaw, Microsoft’s information. A still smaller number of law firms actually Sharepoint, and WebEx Web Office. These are easy to set provide applications that help clients solve their legal up and reduce the cost of entry substantially, as no cus- problems over the Internet in a way that is both satisfy- tom programming has to be done. ing and price competitive. Examples of Web-enabled law firm sites include: Web-Enabled Document Automation • www.illinoisdivorce.com, Within a secure extranet client space, clients can provide • www.mdbankruptcylaw.com, data through an online questionnaire. The data can be • www.visalaw.com, and used to create documents through the use of Web-enabled • www.mdfamilylawyer.com. document assembly solutions such as HotDocs Online These are true eLawyering Web sites that offer legal and Rapidocs Online. The client enters data directly into solutions directly to middle-income consumers. The number of such sites is on the rise, although not all sites are operated by lawyers. A law firm that has a first-generation Web site is not engaged in eLawyering. Such sites do not provide any interactive applications and are little more than brochures in digital format. Often these sites exist within a larger law firm directory and the firm has no control or access to the Web site itself in order to be able to add interactive applications. They are not “interactive service” sites. For these firms, the practice of law is business as usual. On the other hand, a law firm Web site that is based on eLawyering concepts goes beyond presenting flat legal content and helps clients collaborate with their lawyer and do legal tasks over the Internet. These Web-based, interactive applications save lawyer time, often increase lawyer productivity and profit margins, and provide a more satisfying experience for the client. The law firms that are moving into this next stage may be described as “Web-enabled.” They are committed to using the power of the Internet to change the way they practice law by creating highly interactive Web sites. For these law firms, the Web site becomes the primary way in which the law firm relates to its clients and manages the flow of legal work. To accomplish this objective, a
NYSBA Journal | September 2008 | 25 an online interview; this reduces the time that the attor- Client Appointment Scheduling ney must spend on the interview process, and results in Clients can make appointments to see their attorney an instantaneous generation of a draft ready for a law- directly through the Web site using third-party applica- yer’s more detailed review. tions such as Microsoft’s Appointment Scheduler and Traditionally, document automation has been used by other Web-based scheduling applications. This reduces lawyers within the office environment to speed up the the amount of time spent playing telephone tag. production of documents of all kinds. This is important, but it does not have as dramatic an effect on the law firm Client Data Intake work process as client-centered and Web-enabled docu- Clients can provide data through online forms that are ment automation. By moving the document automation the basis for an office consultation. Providing the data in process onto the Web and enabling the client to provide advance enables the lawyer to fully prepare for the office data online – without initial lawyer intervention – a major consultation and often reduces the time required for the increase in lawyer and client productivity occurs. in-house consultation. Although in this case the forms themselves are not being created, there is still a major Creating automated document saving in attorney time; the attorney has all of the client’s financial data at hand when the client walks through the templates that work on the Web is door for their first meeting. not a trivial undertaking. Interactive Legal Advisors The Next Step Some law firms are creating interactive legal advisors. Like The next step involves productizing the legal service – online document assembly, the client answers questions that is, systemizing the production of the service rather through an online questionnaire, but instead of a legal than custom crafting the service every time you produce document being created, the intelligence engine generates it. Often this means integrating a digital application with a legal answer by manipulating a series of “if-then” state- the production of the legal service. Unlike the “DIY” legal ments that offer a legal answer to the client immediately. form companies discussed above, a law firm must still While these interactive legal advisors are not easy to provide a human service, but the time required can be program, they can be used for a long time without major greatly reduced by using online software applications. By revision. Interactive legal advisors can be designed with shifting a portion of the legal work to the client, attorney a trap door to alert the lawyer of potential problems time is released for more complex matters or other pur- that require more sophisticated analysis and direct legal suits. In many industries, the customer as a co-producer advice. (The U.S. Immigration Service has several such of a service or product has resulted in great leaps of pro- legal advisors on its site that determine, for example, ductivity and efficiency. the immigrant’s eligibility for U.S. citizenship.) Attorney Creating automated document templates that work on time is saved, and some attorneys have figured out how the Web is not a trivial undertaking. All of the major doc- to monetize such applications by either charging a small ument automation systems require some skill in the use fee or generating advertising revenues to offset develop- of a scripting language. If the firm has already automated ment costs and make a profit. In these cases, the firm is documents that have been used on the desktop, the task functioning more like a legal forms company than a law of importing these documents for use on the Web is made firm, but with a properly designed “trap door,” the user is much easier. DirectLaw, Inc. already has large inventories guided to the attorney when a complication arises. of state-specific, automated legal documents which can often be used with minor adjustments. These predefined The New Billable Hour document templates can be used to generate first drafts, The only way to get out from under the endless chore which are then further customized by the attorney. of keeping track of hours and billing clients in six- or Other kinds of online digital applications save attor- 15-minute increments is to devise automated applica- ney time and increase law firm productivity. Below are tions, such as using Web-enabled document automation some examples. and Web advisors, and then monetizing those applica- tions by charging clients either on a subscription basis Online Calculators or a transaction basis – independent of the time factor Online Web interview forms can be used to collect finan- involved to use the application itself. The price must be cial data that is the basis for a calculation and offers the set at a level that reflects added value to the client, per- client an immediate, useful legal result. Examples include haps less than you would charge on an hourly basis, but the child support calculator at http://www.mdfamily given sufficient volume levels, resulting in a net profit lawyer.com Web site and the Chapter 13 eligibility calcu- that is greater than what you would secure if you charged lator at http://www.mdbankruptcylaw.com. by the hour.
26 | September 2008 | NYSBA Journal Online Legal Advice The Future Lawyers are providing legal advice by telephone and Figuring out how to incorporate interactive technologies e-mail, publishing both the questions and the answers into law firm business models will be both a challenge to a client’s secure Web space for future reference by the and an opportunity, particularly for firms that offer per- client. Often such legal advice is offered at a fixed price sonal legal services to the broad middle class. The initial per incident – see, for example, http://www.dcselfhelp outlook is promising that law firms and the legal profes- law.com and http://www.dcdivorceonline.com. This is a sion will rise to the challenge of offering services on the convenient service for clients who have relatively narrow Web as they move toward experimenting with delivering questions and want a quick answer. Lawyers can answer legal services over the Internet. these questions during times of the day when they are not The future belongs to law firms that learn how to use busy, maximizing use of time that normally has marginal Internet technology to disrupt their competition by offer- billing utility. ing a client experience that is both low cost and high qual- ity. The Internet is changing the way legal services are Online Case Management delivered to moderate and middle-income individuals Data about and within cases can also be made avail- and small-business entities. Combining digital applica- able over the Internet for clients to view and analyze. tions with traditional human service is a way to increase Information that clients see can be restricted to certain small law firm profit margins without increasing the fields when they log in, at the same time keeping clients amount of time that the attorney spends on each transac- up-to-date on the progress of their cases. This will bond tion. For many attorneys, liberation from billing on a time the client to the law firm in the same way that a consumer basis, together with the capacity to practice law anytime bonds with an online brokerage firm – by using it regu- and in any place, is a dream come true. ■ larly. All of the major case management software vendors are, or will soon be, offering Web-enabled versions of 1. Marc Lauritsen, The Many Faces of E-Lawyering, L. Prac. 36 (Jan.-Feb. 2004). their desktop applications, which can be made accessible 2. Professor at Harvard Business School, author and co-founder of to clients through a client extranet. Innosight.
Online Dispute Settlement Video- and Web-conferencing applications can also sup- port forms of online dispute settlement and mediation. An online dispute settlement space can be set up easily by renting Microsoft Sharepoint Application and dedi- cating it to a particular case or controversy. The appli- cation contains, within a single and secure Web space discussion group, functions, document uploading and archiving, calendaring, and e-mail notification, which provide all of the elements for asynchronous conversa- tions.
Multimedia Communicating with the connected generations should not be limited to textual material. An interactive law firm Web site utilizes the maximum advantage of the benefits of multimedia. Educating clients about their legal situ- ation can be done using multimedia programming that engages the client or prospective client in ways that plain text cannot. Some law firms are integrating video and podcasting into their Web sites to complement the textual explana- tions. Web sites, blogs and podcasts offer unprecedented opportunities for reaching connected clients in unique ways. You must determine what sets you apart and con- vey your differentiated message consistently using the media of the online generation. That way, clients will get to know you in an authentic and compelling way before they even set foot in your office.
NYSBA Journal | September 2008 | 27 Practice Group Management: Passing Fad or Permanent Part of Our Future?
By Susan Raridon Lambreth
ost law firms have implemented new practice of substantive law or powerful partners (key rainmak- group structures or have made significant chang- ers or founders). These groups were usually simply an Mes to their existing structures in recent years, administrative convenience. In some firms, they also as they have realized that centralized firm management provided a place for powerful partners not otherwise alone is not the most effective way to manage the multi- in firm management to have a formal management role, million dollar businesses that law firms have become. Law e.g., rainmakers or key senior lawyers. In most, if not firm management can take the firm to a certain level of all, firms, however, the role was at best reactive and was efficiency, effectiveness and profitability. But then, reach- internally focused. ing the next level – and sustaining profitability – requires Starting in the late 1970s to early 1980s in most mar- decentralizing some aspects of management back to the kets, many firms established smaller business units, often practice groups and their members. called “practice groups,” underneath the larger adminis- If your firm does believe that strong practice group trative groups (often called departments). These practice management is important, how can you achieve it? groups were formed to respond to client and market Practice group management requires six key elements to succeed, each of which will be addressed below. SUSAN RARIDON LAMBRETH, J.D., M.B.A. ([email protected]) is A Brief History a consultant and Vice President of Hildebrandt International. She consults In the 1950s or later, depending upon the market, law to law firms and heads the Hildebrandt Institute Practice Group Leader firms began to create loose administrative groups, often Training Workshops. called departments or sections, built around broad areas
28 | September 2008 | NYSBA Journal pressure for specialists in legal and industry knowledge, firm management, with little management below that. and generally had primarily a marketing and business Today, however, operational management at the business development role. In some firms, the practice groups had unit level is critical to any large or multi-office firm that two main functions: marketing and associate manage- hopes to compete in the war for talent or the race for ment. Yet, they were still largely reactive, other than in higher profits per equity partner or that simply wants to their marketing activities. capitalize on its growth. For the most part, however, the firm itself was still As background, the elements below apply to firms either centrally managed by firm management or there regardless of their practice management structure. Most was strong democracy, i.e., partner autonomy, particu- large firms (more than about 200 lawyers) have a matrix larly at the practice level. Thus these early practice group structures failed in most, if not all, firms. The larger departments played an almost entirely administrative The management of a law role, if any, and were not fulfilling many of the respon- sibilities of practice management. In fact, in some firms, fi rm must evolve as it grows. these groupings were merely “titles” of power and influ- ence or, worse, became fiefdoms for powerful partners. structure with two levels of practice management, such Even if the department leaders had been fully empow- as departments with practice groups reporting to the ered to run the departments as “business units” of the department leaders, and offices, client and industry firm and there was partner buy in to “be managed,” these teams as part of the secondary matrix structure. Most departments were too large and diverse for the depart- small and mid-sized firms have only a one-level struc- ment leaders to lead and manage effectively. ture, typically consisting of practice groups. There is not The smaller practice groups also typically failed a need for departments in these firms, as having two because their roles were too narrow to be effective or levels of practice management would only cost more in they had too little authority. The groups were not respon- management time and would mean needing more people sible or accountable for many areas including their work to fill the leadership roles (and there are rarely enough intake, their profitability, and their workload manage- strong leaders for all the roles anyway). ment. Without these key roles, the groups could not effectively fulfill their stated functions in marketing or 1. Firm Strategy associate management because all these areas are highly Many firms today have had limited success implement- interdependent. For example, if a practice group leader ing practice group management because they did not did not control intake, a partner in the group (or even in start with a clear vision for the firm or a strategy that set another group) could bring in work that was inconsistent forth the goals and objectives they were trying to accom- with the group’s strategy; this would have a negative plish. Without a strategy that differentiates the firm from effect on all the efforts the other group members had been many other similar firms, a practice group structure and making to enhance the group’s market position. effective management can only take the firm so far. The Each of these historical models and the variations on buggy-whip manufacturers of years ago may have man- them were unable to effectively delegate the functions aged their companies well, but they lacked a strategy of practice management to the practice group level. The that reflected market changes, namely changing modes practice groups were not able to manage the work, the of transportation. people and the clients. In many firms, the structures Practice management is not a “magic bullet” or pana- either existed mostly on paper or had so little authority cea that can substitute for a strategy. On the other hand, they could not perform the functions of running a busi- for the strategies that most law firms have – which typi- ness unit of the firm. As a result, partners in some firms cally involve enhancing their market position in selected became somewhat cynical about the potential of any practice areas, attracting better clients and retaining top practice group structure. talent – practice management is usually critical to achiev- The management of a law firm must evolve as it ing their strategy. grows. What worked when the firm had 150 lawyers in If a firm has a clear strategy, and is striving for a defin- two offices most likely won’t work with 800 lawyers in 10 able position in the marketplace, then practice group offices or 2,000 lawyers in 20 offices and four countries. management is often one of the keys to achieving the While there are certainly elements of good management strategy. The three overall objectives of practice group that are consistent across firms of any size, the range of management are application of these management principles, and the time • to help the firm implement its strategy; that is required to put them in place, will usually increase • to build firm competitiveness; and as firm size and scope increases. Many large firms histori- • to manage the work, the people and the clients cally were able to compete successfully by using strong effectively.
NYSBA Journal | September 2008 | 29 Each of these can be achieved if you implement all the key Many firms are making fast strides away from individ- elements required for effective practice management. ualistic systems toward a practice group-driven system (in those firms, however, partners may even be penalized 2. Compensation System for a purely individualistic focus that undermines group The second element critical to successful practice group activity). Firm management needs to define for the law- management is compensation. One psychologist we work yers what constitutes valuable non-billable or investment with in our leadership training says the research shows time. This can include client relationship management, that despite the articulated goals of your strategic plan, if matter management, firm and practice management, new there is any disconnect (we stress any disconnect) between product development, target client plans and implemen- the plan and your compensation system, your compensa- tation, credibility builders (e.g., well-placed articles and tion system is in actuality your firm’s strategic “plan.” keynote speeches), pro bono matters, professional devel- The point is that if you hope to implement strong prac- opment and training, associate mentoring and associate tice group management, then your compensation system supervision and training. must be aligned to support that. In fact, anything that you Second, there must be significant compensation to have in your strategic plan or firm-values statement that motivate and reward the practice group leaders (PGLs) you hope to achieve must be incentivized in your com- for spending substantial amounts of time performing pensation system or it is unlikely to be accomplished. their roles. While the time demands of PGLs will vary by
There must be incentives for partners to contribute to group activities instead of focusing primarily on building their individual practices.
The compensation system must value non-billable the maturity and competitiveness of the market, the size or “investment” time for activities that are necessary of the group and the “personality” issues in the group, for strong practice groups, including time developing most practice leaders in large firms spend between 400 and implementing practice group business plans. This and 800 hours in this role. In smaller firms with relatively includes valuing the effort and time that practice group small practice groups, they usually spend 300 to 400 leaders and other lawyers devote to their practice groups. hours. Aligning your compensation system to support practice Investment time (often referred to as “non-billable” management involves several components. time) for good management must be highly valued. First, all the lawyers in the firm, but particularly the According to a survey we conducted in 2005, in “AmLaw partners (because associates and others look to them as 200” firms with strong practice management, between role models), must believe that their compensation is 10% and 50% of a practice group leader’s individual based in part upon how they contribute to the practice compensation is based on how well he or she performs group’s activities. For one partner, this might mean head- the job. But, a practice group leader’s contribution to the ing up a new practice group mentoring program. For firm is not measured simply by his or her non-billable another, it might mean helping others in the group land time on practice group management. Success in the role, new business. There must be incentives for partners to as measured by many economic and qualitative metrics contribute to group activities instead of focusing primar- is a key factor. ily on building their individual practices. Third, the practice leaders must have input into the Most significantly, a portion of the partner’s com- compensation of all members of their group. Organizational pensation should be based on his or her contribution to psychologists will tell you that managers or leaders will the group. There should be an expectation that all group not be effective in their jobs if they do not have input into members contribute to group goals and activities (in most the compensation of the people they manage. In most firms, this means at least 300 hours per partner invested law firms currently implementing strong practice group in his or her primary practice group). If the firm allows management, the PGLs have lengthy meetings with firm “secondary” memberships, a secondary group member management, providing detailed input about each of usually contributes at least 50 hours (and usually much their people. On the other side, each partner, in his or her more) to that group. In many firms, providing this incen- compensation interview, is asked about the colleagues tive poses one of the most difficult challenges because he or she worked with firmwide and particularly in the their compensation systems primarily focus on individu- group, as well as the practice group leader. Later in the al origination and production. compensation process, the practice leaders should be
30 | September 2008 | NYSBA Journal Goals of Practice involved in the post-compensation feedback sessions for Management each partner in their group. It is not feasible for practice leaders to manage their people without knowing what • Inspire and motivate/create an excitement messages firm management is giving them at compensa- about practicing at the firm. tion time. • Enhance sense of ownership and belonging. • Continually improve service, work and compe- 3. Partner Buy In tence. The next element is partner buy in or, as some firms • Allocate expertise to matters in the most describe it, a “willingness to be led or managed.” This effective manner for client and firm/group objec- becomes even more critical if the firm does not have tives. (1) a clear strategy, or (2) a compensation system that • Attract more profitable, value-added and chal- promotes the desired behaviors to implement the firm’s lenging work and clients. strategy and support practice management. • Develop real teamwork and integration. Partners must accept the importance of management, • Improve morale and retention of all profes- both at the firm level and at the practice level. Unless sionals. the individual partners are willing to relinquish some • Continually improve profitability – at the (though not all) of their autonomy and accept individual source where profit is created. and group accountability, effective practice group man- agement will not be successful. Many firms have devel- oped structures and appointed the right people to be practice group leaders will end up either “burning out” leaders of the practice and compensated them for their or “burning bridges.” Then, at some later point when roles, but these firms have still had very limited success firm management realizes the need to obtain buy in and from their practice groups because the partners have not does so, many of the best candidates for practice group bought into the importance and benefits of practice man- leader are not willing or able to do the job. agement and agreed to be held accountable. For practice management to work, partners must “Buy in” means that partners in the firm value the function like “owners” and major contributors of the management of the firm and the practices and are willing group. This demands a significant contribution of invest- to put the interests of the firm and their practice group ment (non-billable) time to the firm in the form of above their personal practice. In some instances, lawyers associate management, recruiting, training and develop- will need to sacrifice what is in their best interest for the ment; research and development; business development; greater good of the firm or the group. For example, a part- knowledge management; and so on. In many firms today, ner might have an opportunity to bring in a new client for partners are expected to devote about 700 hours a year in the firm and get “credit” for the business generation. But, addition to billable time. They are also expected to partici- in firms with strong practice management, the practice pate in group activities, work in a cooperative and collab- group leader typically reviews and approves new matters orative way, and integrate their practices into that of the for intake (subject to firm review after that approval). The firm (rather than act as solos under the firm’s “roof”). practice group leader might not approve that partner’s matter because the matter might result in a “strategic” or 4. Accountability and Support “positional” conflict with other work that members of the From Firm Management practice group are pursuing. Reining in individual part- Practice management requires that firm management hold ner autonomy regarding intake is often difficult and can the practice leaders and the group members accountable meet with resistance, but intake approval is a critical part and provide real support, rather than mere lip service. of the job if a practice group leader is to be effective. This means taking steps such as the following: Another factor that affects individual partner auton- • The firm managing partner or executive committee omy is work assignment. A partner might want to use a must regularly meet with the practice leaders about favorite associate on the next transaction he or she brings their group plans and their progress on their goals in, but the practice group leader might ask (or “tell”) the and the metrics that have been set for their group. partner to use a different associate so the second associate Typically, at least twice a year, there is a formal gets experience on that type of project. Without control meeting with one or more members of firm manage- over work assignment, it is difficult, if not impossible, for ment with each department chair or practice group a practice group to be able to provide the right develop- leader (depending on the firm’s structure). mental opportunities to all its associates. • Firm management must spend time providing guid- When firms appoint practice group leaders and expect ance to the practice group leaders on firm strategy them to start functioning without firm leadership having and holding them accountable for their group’s first obtained partner buy in, our experience is that most activities and performance.
NYSBA Journal | September 2008 | 31 • The members of firm management who decide on who is weak or non-confrontational who will not “rock compensation must appreciate effective manage- the boat” or hold them accountable. ment of the practices and send clear messages to both the practice leaders and the members of the 6. Firmwide Practice Groups and Primary group that investment time for practice group activi- Assignments ties is valued. The sixth element required for strong practice manage- Members of firm management must be role models for ment is having firmwide, not office-by-office, practice the behavior they want their partners to exhibit. groups and primary assignments. Office-oriented prac- tice groups (such as the real estate group in the New York 5. Leaders With Clear Authority and Responsibilities office) typically result in internal competition, balkaniza- The role or job description of your practice group leaders tion and a lower external market profile. needs to be defined and clearly and widely communi- In addition, all lawyers should have one primary cated. It is amazing how many law firms set up practice practice group assignment. This is critical to internal groups, and even appoint leaders, yet have no clear job accountability, group performance, i.e., group members description detailing what the practice group leaders contribute significant time to their primary group and, should do strategically and operationally. A key charac- in the long term, market position. In most firms, lawyers teristic of successful organizations is role clarity – people can also have one or more secondary groups. The num- know what is expected and what the “roles” are. ber depends on the firm’s desired market position (being Thus, the practice group leaders need a clear job known as experts externally), the number of practices description that vests real authority. At a minimum, prac- the firm offers and what they are, i.e., how much synergy tice group leaders must have authority in the areas of there is between practices, how insulated they are from intake; workload management and staffing; profitability, economic or other downturns, and how sophisticated pricing and budgeting; planning and business develop- and specialized the work the firm handles is. ment; and significant input into the compensation deter- In some firms (about 40% of large firms), associates are minations of their group members. given a primary assignment to a department in their first Then, firm management must appoint as practice one to three years, rather than a practice group. However, group leaders those strong individuals who are willing to prevent the historical problems with associate “pools” and able to put their role as practice group leader above and lack of meaningful mentoring and supervision of their personal practice and who will be accountable for associates, the department typically has active man- the success of the group. Just as a managing partner must agement of the associates’ workload and professional treat the firm as his or her most important client, the development, through its assignment partners or practice group should be the most important client to the practice management professionals, until the associates select or group leader. Note that practice group members should are assigned into a practice group after about three to not elect their respective practice group leaders; this five years. typically results in the selection of those who are either rainmakers they depend upon for business or a partner Conclusion Practice management is critical, whether you are in a firm of 100 or 2,000 lawyers, to really take advantage of your firm’s platform. The larger and more diverse and dispersed a firm becomes, the more attention must be focused on effectively managing the firm. Growing a firm requires a significant investment, in both time and actual dollars (for recruiting, for integration, for market- ing activities, etc.). The investment in effective management, especially practice management, will help ensure that the firm gets a significant return on the investment in growth. This return can be measured by increased profitability, but it can also be measured by factors such as the firm’s market position, acquisition of new clients, and retention of key lawyers and other talent. If your firm implements each of these key elements, practice management can enable you to achieve many important benefits and, in particular, can provide your firm with significant advantages vis-a-vis its competitors. ■
32 | September 2008 | NYSBA Journal The Changing Nature of Leadership in Law Firms By Roland B. Smith and Paul Bennett Marrow
t its most fundamental level, leadership is about nical and professional expertise is no longer sufficient. producing change, while management focuses on Attorneys must adopt new and enhanced leadership skills Acreating processes to produce predictable results. as well. The well-worn, familiar, tried-and-true methods This article explores the practice of leadership in law and lessons of the past are, and will be, inadequate. firms today and discusses what will be necessary for law Additional factors are also in play: the expectations of firms to succeed and thrive in the future. It draws heav- incoming junior associates and even seasoned rainmakers ily on early returns from research that spans hundreds of and specialists are shifting rapidly in a highly competi- attorneys in large, global and midsized U.S. firms, con- tive talent market; clients are demanding a new quality of ducted by the Center for Creative Leadership (CCL®).1 advice and counsel and are pressuring attorneys to compete These initial findings provide a foundation for a deeper for fees. discussion about what constitutes effective leadership. The traditional practice model is under pressure. This Subsequent articles will feature a case study involving a model is based on the following assumptions: partner- large global law firm, a discussion of practical and tacti- ship means lifelong stability; an associate, often from cal strategies and actions, and a summary of our final an elite school, who proves to be a star, will move up to research findings. ROLAND B. SMITH, PH.D. ([email protected]) is a senior faculty member at Need for a New Practice Model the Center for Creative Leadership, a nonprofit educational institution Today’s law firms operate in a climate increasingly char- devoted to leadership development and research. acterized by complexity, economic turbulence, growing and varied competition, and accelerated change on every PAUL BENNETT MARROW ([email protected]) is an attorney and front. In short, the landscape is changing in new and radi- arbitrator practicing in Chappaqua. cally different ways. Simply ensuring high levels of tech-
NYSBA Journal | September 2008 | 33 partner, become an owner and remain so until retirement such as finance and human resources, these core leader- or death; any associate not making partner after a certain ship responsibilities simply cannot be delegated to non- time will be expected to move on; lateral entry at the attorney staff members. senior level is very uncommon; growth isn’t a measure of A recent article in American Lawyer points to the types success; mergers are rare; clients are loyal to a firm, not a of complex issues these strategic lawyer-leaders face as specific individual. organizational models shift.4 In less than 20 years, the In recent years, a new practice model has gained a total number of lawyers practicing has almost tripled – foothold.2 The number of owner-partners has decreased growing from 25,994 in 1986 to 70,161 in 2005.5 Though and ownership power has become more concentrated. gross revenue is expanding, some firms are finding that Growth now comes from many sources, including merg- it isn’t keeping pace, leading to a dilution in revenue per ers and lateral entry of new attorneys. Clients are less partner or lawyer. inclined to remain loyal to a firm and more likely to fol- Although large-firm lawyers represent only 10.5% of low an individual attorney who moves from one firm to the U.S. legal profession, their impact and influence on another. The market for lawyers has become global, with the practice of law globally are significant.6 During the competition coming from many new areas. Any firm last decade, larger law firms have begun migrating to interested in long-term survival must be able to cope with a more centralized corporate model for managing cer- the loss of high-performing partners and their support tain business functions, such as accounting, marketing, teams. human resources, training and development – freeing lawyers to focus on what they do best in the interest of the client and the profession. Many midsized and smaller The number of owner-partners has firms are now following suit. As a result of such changes, there is growing recogni- decreased and ownership power has tion that the practice of law is not only a noble profession, become more concentrated. but also a competitive business.7 That means leaders must be skilled in clarifying strategic direction and in influenc- ing and aligning various constituencies to achieve com- Individual partners and practice groups now are mitment to the firm’s objectives. evaluated on the basis of hours billed and fees collected, which leads to internal competition. The winners typi- The Current State of Change Within the Industry cally claim firm resources and higher incomes. One con- In 2005 and again in 2007, we conducted surveys to sequence is that lawyers operating at even the highest determine the nature of the complex challenges faced levels are positioned outside the policymaking cadre of by organizational leaders around the world. Of the 350 the executive committee, which brings into question the leaders participating, 93% believed the challenges they power of the firm to exercise ultimate control. face are more complex than those of five years ago, while Law firms must deal with an assortment of competing 85% believed the definition of “effective leadership” has external and internal pressures; moreover, economics has changed in the same time frame. replaced culture as the glue holding firms together. As a Similar research is now under way to determine the result of such changes, firms are beginning to recognize changing nature of leadership unique to law firms. To the need for a new leadership dynamic. date, we have interviewed or surveyed more than 150 What is the context in which partners operate today, partners in leadership positions from multiple firms with and what challenges can they expect to face in the future? significant operations in the United States and around the How have some firms’ practicing senior and managing world. Further in-depth interviews are planned with 300 partners worked to develop leaders who can navigate lawyer-leaders from 20 firms. this new world? Representative, verbatim responses from our inter- view database show lawyers are struggling with a host of The Case for the Lawyer-Leader issues.8 The challenges they face include the following. Industry consolidation, increased client demands, com- petition for lawyers, the emergence of non-traditional Building Strategic Leadership Skills competition and a softer global economy: strategic lead- • Leading in times of change. ership is imperative if firms are to survive and thrive.3 • Developing a clearer understanding of what being a Strategic lawyer-leaders can make all the difference. leader means. They are able to create a vision for the future, design a • Finding guidance about how to be a managing part- competitive strategy, build an agile, flexible and inclu- ner. sive culture, and attract, retain and develop a top-flight, • Developing the tools that will help me meet my committed talent pool. Unlike administrative operations challenges in making effective change in my office.
34 | September 2008 | NYSBA Journal • Improving teamwork and collaboration in client • Maintaining market share and recruiting/integrat- service and business development are challenges for ing talent are our challenges. our firm. • Growth in keys areas is a challenge, agreeing on the • Becoming an excellent communicator is a challenge. key challenges is another challenge. • Developing the courage to take unpopular posi- • Marketing our culture. tions. • Deciding with whether or not to expand. We are • Understanding the firm’s long-term vision. Ability caught in the middle between the trend toward to bring groups of people together with different becoming a mega-firm or a niche firm. We are strug- views, foster a healthy respect for different views gling with where and how much to grow. With that and manage in a way that people feel included. comes the problem of keeping the firm’s culture • Working more effectively and efficiently – ability to intact, especially as we grow globally. prioritize and manage time and to delegate effec- tively at all levels. Questions While most attorneys clearly possess the ability to make Managing Talent and Promoting Sustainability sense of challenges and make choices based on available • Understanding the new generation of attorneys information, implementing those choices in a timely man- coming along and how they look at the world differ- ner is often a challenge. Firms need to be more agile to ently. They don’t want to work as hard but want to survive and thrive in the future. But making the change make as much money. How can we sensibly accom- may be an uphill battle. Here are four questions that indi- modate them in order to keep the good ones? cate why speed and business agility may be a struggle for • Succession planning/leadership development. the majority of attorneys: • Improving firm culture to secure talent. 1. How receptive are most attorneys to change? • Creating the right environment in which such 2. In general, are attorneys risk takers or are they more recruitment (the recruitment of targeted laterals) risk averse? and retention can take place. 3. Are most attorneys easy to influence or hard to con- • Finding new attorneys that fit our economic model. vince? 4. In general, are attorneys “high trust” or “low trust” Making Decisions and Setting Strategic Direction individuals? • Spending too much time on building consensus; being too slow as a result. Defining Leadership Within Law Firms • Developing a consensus on who we want to be, In discussions with lawyer-leaders, we have found a lack what’s our future direction, what areas of practice of consensus and clarity about the definition of leader- do we want to be involved in. How do we achieve ship and the role of the leader-lawyer within the firm. growth goals – gradually or through acquisitions? Part of the disparity may be attributed to an inability Growing too fast may corrupt the corporate culture to differentiate leadership from management. Managers and we want to maintain the culture we have. produce a degree of predictability via a set of processes, • Getting partners that are focused on their practice to which may include planning, business development, think strategically. budgeting, staffing, organizing, resource allocation and • Implementing the strategic plan and managing other functional roles. In many cases, these functions can expectations relative to revenue. be delegated to non-lawyers. • Repositioning assets and finding alternatives where Leadership is about producing change, often to a core competencies are sluggish (due to the soft econ- dramatic degree, and with an extremely useful outcome. omy). Creative leadership is the capacity to think and act beyond the boundaries that limit our effectiveness. While non- Retaining Clients and Promoting Client Satisfaction lawyers can provide insight, help to integrate change and • Clients expect more today and want costs contained. help to accelerate the process, leadership is the responsi- • We need to continue to ratchet up the quality of ser- bility of the lawyer-leader. vice in order to retain clients. Leadership is not currently taught in any significant man- • We need to achieve internal cohesion and client sat- ner in law school. In fact, many leading schools and academ- isfaction. ics do not see it as part of their charge. In a recent article, Ben Heineman, Jr., Distinguished Senior Fellow at the Harvard Managing Growth, Developing New and Existing Law School Program on the Legal Profession, states: Markets and Practice Areas But today, law schools and professional associations • Integrating mergers and maintaining revenue and may not have a broad vision of lawyers as leaders – or profits per partner. may be ambivalent or muted about it.9
NYSBA Journal | September 2008 | 35 Heineman was speaking more broadly about the role 1. Self-awareness – the ability to read one’s emotions of lawyer as leader in a social context, but his comments and recognize their impact while using gut feeling have implications within the firm as well. He outlines to guide decisions. several “qualities of mind” that are consistent with lead- 2. Self-management – the ability to control one’s emo- ership success when he states: tions and impulses and adapt to changing circum- We are seeking lawyers who are not just strong team stances. members, but who can lead and build organiza- 3. Social awareness – the ability to sense, understand tions: create the vision, the values, the priorities, the and react to others’ emotions while comprehending strategies, the people, the systems, the processes, the social networks. checks and balances, the resources, and the motiva- 4. Relationship management – the ability to inspire, influ- tion. Working on teams and leading them are intercon- ence and develop others while managing conflict. nected: much of leadership today is not command and How many of these competency areas did you study control of the troops but persuasion, motivation, and in law school? How many are effectively taught within 10 empowerment of teams around a shared vision. your firm? Does mastering these competencies count While the passage from law school to lawyer may toward billable hours? be difficult and may require support, the journey from Our recent law survey is consistent with a study lawyer to lawyer-leader may be even more treacherous; conducted in 2005 that explored the make-up of top- it requires self-awareness, flexibility and the acquisition performing lawyers. That study indicated that top per- of new skills, knowledge and experiences. formers are more visionary, provide their teams with Many firms have turned to business schools to learn much-needed perspective, and engage associates and the business side of managing a professional services peers in critical discussions and decisions. They are effec- firm. While these programs have been effective in pro- tive coaches and provide long-term development and
This research confi rms that, although technical excellence and intellect are critical factors for success as a lawyer, emotional intelligence is the differentiating factor for successful leadership. viding awareness, discipline and methodology relative mentoring. The study also found that a flexible leader- to business practices, they have not provided enough ship style that varies with the specific situation generates insight into how law firms can effectively use their exist- the best results.13 ing leadership capital to leverage success and transform This research is consistent with other historical studies their operations. on leadership impact. It confirms that, although technical In a recent survey of independent law firms,11 manag- excellence and intellect are critical factors for success as a ing partners identified the following competencies need- lawyer, emotional intelligence is the differentiating factor ed to lead their organization effectively into the future: for successful leadership.14 • Adaptability • Building and mending relationships Accelerating Firm Transformation • Building effective teams Based on several decades of leadership research and • Change leadership work with individual leaders, we believe that people can • Coaching learn, grow and change, and that self-awareness is both • Collaboration (working across boundaries effectively) the cornerstone for individual development and the foun- • Credibility dation for group and organizational success. In general, • Decisiveness attorneys tend to place less significance on self-awareness • Driving innovation when starting a development journey.15 The most effec- • Influence tive leaders, though, are able to systematically gain more • Leveraging differences self-awareness and make adjustments based on an assess- These competencies reflect the higher levels of emo- ment of their strengths and vulnerabilities. Those leaders tional intelligence needed for effective leadership. Daniel with the highest probability for success create a plan for Goleman12 identifies four main emotional intelligence development, share that plan and receive feedback (both constructs: internally and externally). Partners with a higher level of
36 | September 2008 | NYSBA Journal self-awareness and mastery are better prepared to posi- We refer to senior leaders as “talent orchestrators” tively impact both their group and the broader firm. because their actions determine the direction and speed of leadership development activities among the others in the firm. Talent orchestrators must champion invest- ments in leadership development; they must act as coaches, mentors, role models and developers of future leaders. Specifically, senior leaders must undertake the following actions: • Developing a leadership strategy that complements the strategy of the firm. The leadership strategy spec- ifies how many leaders are needed to implement the firm’s strategy within a given time frame – and with what skills, abilities and experiences. • Assessing the gap between current leadership capa- bilities and those required by the firm’s strategy. • Sanctioning investments in leadership development that will close the gap between current leadership capabilities and those required. • Taking part personally in mentoring younger leaders, presenting content in leadership development pro- grams, reviewing talent and selecting future leaders. CCL maintains a database of results from Benchmarks,® • Leading transformations in the firm’s systems, poli- a 360-degree assessment tool that measures how indi- cies, technologies and business practices, while vidual leaders are performing against the skills and simultaneously engaging younger leaders in these perspectives most critical for success. You can personally activities to develop their understanding of how the begin (or accelerate) the process of self-discovery around firm must change to meet competitive challenges. leadership effectiveness and emotional intelligence by Some senior leaders may require individual coaching asking yourself how well you perform against key factors in these activities, or the senior team collectively may from the Benchmarks® database. require coaching as it works through the various tasks How would you say you are doing relative to associated with its new role in the development of future • participative management, leaders. The senior team may seek assistance from human • putting people at ease, resource professionals inside the firm – individuals we • self-awareness, refer to as “talent accelerators” since they provide the • balance between personal life and work, systems and processes required to accelerate leadership • straightforwardness and composure, development. Because leadership development is a new • building and mending relationships, activity for most law firms, many may require external • doing whatever it takes, support to help them: • decisiveness, • assess current leadership talent; • confronting problem employees and • create a leadership strategy; • change management? • review and align talent management systems, How would your peers, your leader or those working including succession planning; for you say you are doing in these same areas? • develop a comprehensive approach to leadership The development of individual leadership skills and development for the firm that addresses current and competencies will require a dedication to leadership future leaders; development not previously displayed in most of the • offer specific courses in leadership customized to firms participating in our research. Development initia- the needs of the firm tives must address the current senior leaders of the firm, • provide individual coaching for current or high- who set the context within which the development of potential leaders; and other leaders will occur, and the upcoming generations • assist senior leadership in combining organizational of new leaders. In short, developing effective leadership change and leadership development. skills will require moving from a heroic, individual and While there is much work to be done, the good news is independent model in which attorneys achieve greatness that law firms can draw liberally upon the experience of through their own efforts, to an interdependent model corporations, nonprofits, the military and other govern- that emphasizes both individual and collective input and mental organizations, and others that have been involved accomplishment. in leadership development activities for some time. As
NYSBA Journal | September 2008 | 37 late adopters rather than early movers in this arena, law NEW YORK STATE BAR ASSOCIATION firms can benefit from the latest techniques, which have demonstrated both greater impact and faster results than earlier approaches to leadership development. For exam- Improve ple, it is now widely recognized that classroom learning is necessary but not sufficient to produce leadership your bottom line by… capabilities and alignment among leaders at the top of an organization. Instead, on-the-job learning that involves Developing your real challenges, teamwork and coaching produces more desirable results than classroom learning alone. professional skills With the benefit of such knowledge, the challenge for most law firms is not the design of leadership pro- “ I value my NYSBA membership grams that can produce desired results, but rather gaining because of all the wonderful opportunities it provides. It gives the commitment of senior partners to make the invest- me the opportunity to meet ments required. A changing environment makes leader- great people, see great places, ship development an imperative, though. Firms can no and the chance to stay on top longer assume that leaders will simply emerge from the of all the important happen- ranks of senior partners. Moreover, they can’t assume that ings in the practice of law in New York. The tangible benefits I individual leaders, no matter how exceptional, can create receive include high-quality CLE, the shared direction, alignment and commitment required and networking and public to undertake new strategies and the organizational trans- speaking opportunities.” formations they imply. Attention to the development of a John H. Snyder new body of aligned future leaders will be required, as has NYSBA member since 1999 been the case in more complex organizations in the public and private sectors. As in these organizations, progress in developing leadership begins with senior leaders who There are many ways in which the New understand the competitive advantage superior leader- ship provides. In the next article in this series, a global law York State Bar Association can help you firm will highlight its journey through this development develop your professional skills. Three process and expand on its approach and methodology. ■ opportunities that stand out in particular are: Sections, committees and CLE. 1. Roland B. Smith, Leading in Times of Complexity and Uncertainty: The Changing Nature of Leadership in Law Firms. Ongoing, unpublished research. Center for Creative Leadership, 2008. 2. Marc Galanter & William D. Henderson, The Elastic Tournament: The Second Scores of attorneys – just like you – take an Transformation of the Big Law Firm. Stanford L. Rev. Vol. 60. Indiana Legal Studies Research Paper No. 108. Univ. of Wisconsin Legal Studies Research active part in NYSBA’s 24 Sections and 60+ Paper No. 1058 2008. committees, and fulfill their mandatory CLE 3. Matthew S. Winnings, The Power of Law Firm Partnership: Why Dominant Rainmakers Will Impede the Immediate, Widespread Implementation of an Autocratic requirements with our outstanding selec- Management Structure, 55 Drake L. Rev. 165 (2006). tion of New York law-specific continuing 4. Alison Frankel, 2006 Am 100 Law Firms Feel Growing Pains, Am. Law. May 1, 2006. legal education seminars and products. 5. Id. 6. Richard Sander, The Racial Paradox of the Legal Profession, in Symposium Empirical Studies of the Legal Profession: What Do We Know About Lawyers’ Lives?, Sections, committees and CLE – some of 84 N.C. L. Rev. 1755 vol. 5 (2006). 7. Shawn W. Cutler & David A. Daigle, Using Business Methods in Law: The the best investments you can make in your Value of Teamwork Among Lawyers, 25 T. Jefferson L. Rev. 195, 195 (2002). career, your practice, and yourself – all 8. Smith, supra note 1. 9. Ben W. Heineman, Law and Leadership. 2006. An essay is adapted from available through NYSBA membership. the author’s lecture, “Law and Leadership,” delivered at Yale Law School on November 27 as part of The Robert H. Prieskel and Leon Silverman Program on the Practicing Lawyer and the Public Interest. 10. Id. 11. Smith, supra note 1. 12. Daniel Goleman, Working with Emotional Intelligence (Bantam Books 1998). 13. Susan Snyder, The Case for Lawyers Who Lead (The Hay Group, August 2005). www.nysba.org/MemberBenefits 14. Center for Creative Leadership. 2003. Leadership Skills and Emotional 518.463.3200 Intelligence. http://www.ccl.org/leadership/pdf/assessments/skills_ intelligence.pdf. 15. Smith, supra note 1.
38 | September 2008 | NYSBA Journal Managing and Marketing a Practice in a Globalized Marketplace for Professional Services By Gary A. Munneke
he subject of globalization is fairly new to most Kate Madigan, then-President of the New York State practicing lawyers. Even as transnational com- Bar Association, believed strongly that members of the Tmerce increased in recent years, and revolutions bar need to understand and appreciate this globalization. in transportation and communication birthed an unprec- She organized a Presidential Summit, at the New York edented interconnectedness throughout the world, most lawyers practiced within narrow jurisdictional boundar- GARY A. MUNNEKE ([email protected]) is a Professor of Law ies of geography, licensure and the needs of local clients. at Pace Law School in White Plains and a member of the Board of A few so-called “international” law firms dominated the Governors of the American Bar Association. international commercial arena, but most lawyers were This article is adapted from materials prepared for the New York State unaffected by transnational and cross-border commerce. Bar Association Presidential Summit on “Globalization and the Practice Those days are over. From Main Street to Wall Street, of Law,” held on January 30, 2008, at the Marriott Marquis in New York lawyers of every practice area, every size of firm, and City. The summit was organized under the leadership of NYSBA President Kathryn Grant Madigan and included Steve Krane as moderator, and every jurisdiction are affected by globalization. It may Dean Mary Daly, Professor Laurel Terry, James C. Moore, James Duffy and involve a dispute between a foreign supplier and a local Calvin Johnson as panelists. grocery store; it may be a testator’s ownership of foreign real estate; it may be a company’s efforts to sell its prod- The views expressed in this article are solely those of the author and do ucts in an emerging market like China. The list could go not represent the policy or views of the American Bar Association, its Board of Governors or House of Delegates. on and on, but the message is clear: this is not the legal profession we inherited from our parents.
NYSBA Journal | September 2008 | 39 State Bar Association’s Annual Meeting in January 2008, While some of Friedman’s analysis may be subject to to explore questions of globalization as they affect the criticism, the basic premise that globalization is trickling practice of law in the United States – particularly New down from governments to companies, to work groups York. The Summit addressed issues that will influence the and individuals, is unassailable. Nor is the corollary that economic competitiveness of American law firms in the a new economic environment will require new responses coming decades. It was the goal of the panel to provide in order for participants in the global marketplace to practical guidance for lawyers to deal with globalization become and remain competitive. And this will apply to in the management and marketing of their practices. lawyers and other professional service providers as well Certainly, the legal profession in New York is diverse in as to producers of commercial products and services. terms of practice settings, firm size, clientele, resources, Because most lawyers have not had to deal with global- ization in the same way that businesses engaged in inter- national trade have had to come to grips with the need to change, these lawyers have not thought a great deal For many years, thinking about about what globalization means to them. Interestingly, a a global marketplace for goods and 1999 American Bar Association conference on the future of the legal profession, titled Seize the Future: Forecasting services was largely the domain and Influencing the Future of the Legal Profession, addressed of academics and visionaries. economic globalization among a variety of other issues affecting lawyers. In their article titled “The Territory Ahead: 25 Trends to Watch in the Business of Practicing and involvement in international legal practice. Yet, Law,”2 which was based on a survey of practice manage- regardless of where lawyers and law firms are located ment experts, authors Simon Chester and Merrilyn Astin or what they do, a common thread running through the Tarlton described the number one trend as Summit was that globalization will have an impact on The global practice. Large firms are opening offices us all. throughout the world to follow the internationaliza- Preliminarily, it may help participants to focus on tion of capital, clients, and cultures. Others ask why what the term globalization means. As early as the 1960s, they need the real estate. The Internet allows a law- author Marshall McLuhan described the emergence of a yer in Tucumcari, New Mexico, to practice in Bali. global village where nations, cultures and people were Instantaneous communication powers a practice, with instantaneously and continuously interconnected with scant regard for time or place. each other. A variety of other futurists have weighed The issues associated with globalization are multi- in on the subject, but for many years thinking about a faceted and complex. It would be a mistake to try to “boil global marketplace for goods and services was largely the the ocean,” by addressing all aspects of globalization. domain of academics and visionaries. Meanwhile, in the Summit panelist James Duffy points out: real world, globalization proceeded apace. As a general proposition, globalization can be found New York Times columnist Thomas Friedman, through in five different areas: economic, cultural, political, his books The Lexus and the Olive Tree and The World Is religious, and social systems. [The Summit Panel Flat, has perhaps contributed more to the populariza- addressed] only a small portion of the economic aspects tion of conversations about globalization than anyone. of globalization, namely, the provision of legal services. In an article he wrote for the New York Times Magazine,1 [It did] not have time to discuss, let alone defend or Friedman described the timeline of globalization: criticize, the entire concept of economic globalization Globalization 1.0 (1492 to 1800) shrank the world from let alone cultural, social systems, etc., issues. a size large to a size medium, and the dynamic force To further clarify the focus, panelist James Moore, in that era was countries globalizing for resources author of an earlier article on globalization, which and imperial conquest. Globalization 2.0 (1800 to appeared in the New York State Bar Association Journal,3 2000) shrank the world from a size medium to a size described a short list of topics that fall within the ambit of small, and it was spearheaded by companies global- economic globalization in the legal profession. He raises izing for markets and labor. Globalization 3.0 (which started around 2000) is shrinking the world from a eight questions, and a number of sub-points under some size small to a size tiny and flattening the playing of the questions. field at the same time. And while the dynamic force Question 1: What are we talking about when we dis- in Globalization 1.0 was countries globalizing and the cuss economic globalization? Can you give some concrete dynamic force in Globalization 2.0 was companies glo- examples of this phenomenon? What are some of the fac- balizing, the dynamic force in Globalization 3.0 – the tors causing this phenomenon to occur? It is a political thing that gives it a unique character – is individuals issue in the United States. What about elsewhere? Are and small groups globalizing. there any forces which might slow it?
40 | September 2008 | NYSBA Journal Question 2: What are some of the specific ways in to whatever crisis comes along. Yet, in times of change, which economic globalization is affecting the delivery of this approach may not be enough. Thinking proactively legal services? means anticipating and preparing for both the threats • Multi-jurisdictional practice and the opportunities in this competitive marketplace; • Outsourcing of legal services and lawyers who anticipate how globalization will affect • Dispute resolution who their clients are, how they will market their services • Ethical considerations to clients, and how they will deliver services to clients, • Pro bono have the greatest likelihood of succeeding in the evolving Question 3: What are some of the ways in which globalized practice environment. cross-border contracts are being affected by economic In order to translate insights about potential impacts globalization? on the practice of law, lawyers need to think strategi- • Dispute resolution cally about what this means for their own firms. It is • Choice of law not enough to make generalizations about what might • Venue hypothetically happen in the future; it is more productive • Damages to sit down with partners in a retreat or in a series of con- Question 4: What skills will be valuable for attorneys versations or even in an online discussion to develop a practicing in a global economy? strategic agenda based on the best available information. Question 5: Within law firms, how will economic Because information is constantly in flux, this agenda globalization affect lawyer recruiting? Lawyer retention? should be updated periodically over time. Lawyer compensation? When a strategic agenda is created, it cannot be rel- Question 6: Today, standards for lawyer conduct are egated to a back shelf until the next partners’ retreat. It established by the political state. In a global economy, needs to be communicated to the entire firm, including which entity will establish and enforce standards for associates and support staff if they were not engaged in lawyer conduct? the process, although some firms bring all employees into Question 7: In a globalized world economy, will some the planning loop. To the extent that the agenda requires services presently provided by lawyers be provided by changes in policy, staffing, resources or client relation- non-lawyers? If so, what services will remain for lawyers ships, firm leaders need to take steps to follow through to provide? to implement the changes. Question 8: Why would economic globalization be With respect to clients, many law firms recognize that important to a lawyer or law firm practicing real estate, in a competitive, essentially de-regulated marketplace trusts and estates, and personal injury litigation in for professional services, relationships with clients are on upstate New York? shifting sands, at best. The firm that thinks strategically In addition to asking questions, the Summit panelists should be able to assess its client base and ascertain how engaged in detailed discussion of the topics addressed, to enhance its position in the market. This may mean including the following: re-working the firm’s marketing plan, or creating one if • Dean Mary Daly discussed the off-shoring and out- none exists. In simple terms, marketing is communicat- sourcing of legal and law-related services. ing to the clients you want to represent what specific • Professor Laurel Terry offered her thoughts about the impact of globalization on the practice of law and professional responsibility, noting the impor- tance of understanding global and comparative per- spectives. • New issues in law firm staffing. The global market- place presents an entirely new set of problems that do not exist in traditional domestic hiring, such as labor laws in foreign jurisdictions, competition with foreign law firms and other service providers, and cultural differences between American and non-U.S. employees. At the end of the day, lawyers all need to gain greater insight into the challenges that globalization brings to the practice of law, and they need to do more than think about what to do – they need to feel compelled to act. Lawyers tend to be reactive, using their analytical skills and ability to think on their feet and to respond
NYSBA Journal | September 2008 | 41 services you seek to deliver and why you are the most cutting edge in technology, compared to other industries capable entity to deliver those services. Many lawyers are and professions. Sixth, law firms will have to become uncomfortable about marketing, more than 30 years after more entrepreneurial and less institutional. They will the landmark case of Bates v. State Bar of Arizona declared have to find ways to build business without sacrificing that lawyers had a constitutional right to truthfully com- professionalism. Seventh, and finally, lawyers will need municate their availability to potential clients. Bates dealt to be expert managers to streamline their organizations to with advertising legal services, although advertising is reduce costs, improve productivity, enhance quality, and really a sub-set of marketing, i.e., one of a number of assess performance in order to prosper. ways to build a clientele. In reality, lawyers have always This may seem like a daunting list, but it is achievable engaged in marketing, even when they were not allowed for those organizations committed to succeeding in the to advertise. Then, as now, the most successful marketers new globalized world. The work involved in thinking were the most successful practitioners, and the lawyers strategically about building a 21st-century practice is who could bring in new clients and keep old ones were not unlike disaster planning, which involves identifying the rainmakers. potential risks, developing realistic plans for coping with What does this mean in the globalized marketplace? those risks, and implementing plans sufficiently to assure First, it means that the old marketing plan may not work consistent readiness for the time when disaster strikes. in the global environment. At the very least, it should As in the case of disaster, it is too late to plan when the be re-examined to determine its validity. Second, com- storm is bearing down on your office. And like disaster petitive pressures increase as the number of potential planning, many firms put off addressing issues about the competitors multiplies. Law firms no longer compete future, because too many pressing demands always seem with other firms in their city, or state, or nation, but with to get in the way. law firms and other providers around the world. Third, Change begets opportunity for those who prepare to the stakes are higher. It takes more resources to operate seize the day; those who wait to respond may find them- on the global stage. Law firm capitalization will be more selves marginalized in a professional world they do not critical in assembling the resources to become and remain know or understand. In either case, the future is here. ■ competitive in the emerging multilateral environment. Fourth, expertise will have increasing currency. It will 1. Thomas L. Friedman, It’s a Flat World After All, N.Y. Times Mag., Apr. 3, 2005. not be enough for lawyers to be generalists; they will 2. Simon Chester & Merrilyn Astin Tarlton, The Territory Ahead: 25 Trends to have to have special knowledge, special skills, and spe- Watch in the Business of Practicing Law, L. Prac. Mgmt. (Jul./Aug. 1999). cial contacts to stand out from the crowd. Fifth, lawyers 3. James C. Moore, Economic Globalization and Its Impact Upon the Legal will need to leverage technology. Most law firms trail the Profession, N.Y. St. B.J. (May 2007) 35. Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.
We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression. NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law. Call 1.800.255.0569
NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM
42 | September 2008 | NYSBA Journal ARTHUR G. GREENE ([email protected]) is a Principal of Boyer Greene, LLC, a law firm consulting organization with offices in Ann Arbor, Michigan; Bedford, New Hampshire; and Reno, Nevada. He received an LL.B. from Boston University Law School and his undergraduate degree from Syracuse University.
SANDRA J. BOYER ([email protected]) is a Principal of Boyer Greene, LLC; she is also a co-founder and President of the Network of Leading Law Firms. She is a graduate of Olivet College.
Professional Staffing in the 21st Century By Arthur G. Greene and Sandra J. Boyer
here is a sense of unease among some lawyers. Client Trends They are reading about how change in the global In the past 10 years, the legal profession has gone from Tmarketplace has begun to affect lawyers through- a supply industry to a demand industry. This means out the United States and in the far corners of the world. clients are now in control; they are insisting on quality While they take comfort in being somewhat distant from service at a competitive price. They are taking a more the front edge of the curve, they also know there are no active role in the management of their cases and are barriers at the state line that will protect them from the controlling both the practice methods and the billing inevitability of change. practices of their lawyers. These are some of the emerg- For most lawyers, the foundational issue of staffing ing trends: has always been of paramount concern. One of the tough- • Clients are choosing individual lawyers and not law est decisions for the solo practitioner is whether to hire an firms when placing their business. associate. It can be an expensive move, and one not to be • Clients will pay high fees for a lawyer’s expertise taken lightly. For the small firm, the question is whether and experience. to grow. Most firms of fewer than 10 lawyers will not • Clients are not willing to pay for associate training grow absent an affirmative decision to do so. Firms of at client expense. more than 10 lawyers tend to grow naturally unless an • Clients are not willing to pay for routine research. affirmative decision not to grow is made. And, for the • Clients expect their lawyers to be technologically midsized or large firm, the issue is whether the pyramid proficient and to bring savings to their case through structure still works. the use of technology. The question in each of these situations, of course, • Clients expect their lawyer to develop a team of involves the degree of support required to provide the lawyers and paralegals that will bring efficiency and necessary level of service to the firm’s client base. In light expertise to the work at a reasonable and competi- of changes in legal relationships, however, there are new tive cost. factors to consider before making any hiring decisions.
NYSBA Journal | September 2008 | 43 Hiring Decisions Associate Career Development Lawyers must recognize that there is a substantial over- The recent associate salary increases – to over $160,000 in lap in the roles of associates and paralegals. The overlap major metropolitan law firms – affect all firms. Financial was specifically highlighted by the original American Bar realities require firms to provide better associate training Association definition of the term paralegal (then referred and career development. Firms that have studied associ- to as legal assistant), adopted in 1992, which read, in part, ate turnover consider the cost of a lost associate to be that a legal assistant’s function over $200,000. The analysis includes the cost of recruit- involves the performance, under the direction and ing, unprofitability in the first year or two, time partners supervision of an attorney, of specifically delegated spend in training and losses involved in getting a new substantive legal work, which work, for the most part, associate up to speed. Firms will need to focus on: requires a sufficient knowledge of legal concepts such • meaningful mentoring; that, absent the legal assistant, that attorney would • fast-track training; perform the task.1 • client development skills; • case planning and budgeting; and Partners must hire skilled • career development and planning. It is increasingly clear that firms must make associates lawyers who can become leaders more profitable, more quickly than in the past, and must and owners of the fi rm. avoid or at least reduce turnover. In some settings, these goals may be accomplished better by hiring fewer associ- ates, paying them at higher levels and giving them more The paralegal cannot “practice law,” which means accept- training and practical experience early in their careers. ing cases, setting fees, giving legal advice, planning It is important to understand that for the long-term strategy, making legal decisions, and appearing in court. continuation of a law firm, partners must hire skilled Under the supervision of a lawyer, however, a paralegal lawyers who can become leaders and owners of the firm. can perform most other work. Many firms have become much more selective in moving Any hiring decision involves answering a threshold associates to partner status, because the overall compen- question as to whether to hire an associate or a paralegal. sation pie may not allow it. Therefore, hiring standards, In making such a decision, consider the respective skills orientation, training and retention are, and will continue and talents of each professional. to be, an essential part of associate development. Effective An associate: associate development requires commitment from part- • knows the law or how to find it; ners to be successful and is essential in the succession • desires to learn from the partner; planning of a law firm. • may lack experience; • wants to be a valuable associate; Expanding the Role of Paralegals • may want to be considered for partnership; and The need to pay higher salaries and provide better train- • can become a future leader of the firm. ing for associates argues for an increased role for para- A paralegal: legals. The highest level work should be performed by • has practical skills; associates, but associates will be more productive with • knows office procedures; the support of well-qualified paralegals who can perform • knows legal procedures; the majority of the routine work on most files. The com- • has case management skills; bination can be profitable. • provides good client service; and Expanding the role of paralegals makes sense, yet • understands partner expectations. many lawyers have trouble doing it. Unfortunately, most There are some key differences between associates and lawyers tend to be set in their ways. They resist change. paralegals. Most associates are in training to become part- For many, their inability to break with habits of the past ners. They will serve in a support role for a limited period has prevented them from making good use of paralegals. of time. A paralegal will never be a partner and career Lawyers who have enlarged the role of paralegals paralegals will provide long-term support. Associates have changed the practice of law; they have also expand- will be able to cover court hearings or conduct complex ed their own horizons. They have become managers and legal research. If those services are needed, an associate supervisors of work. They are able to work at a higher should be hired. If the support role does not involve court level, spending a larger portion of their time counseling hearings or complex research, however, a paralegal may clients and arguing in court. be the more appropriate choice. They tend to be more Some firms have had enormous success in the utiliza- thorough and detail-oriented, which means they excel at tion of paralegals; others have struggled and question case management and client relations. whether paralegals are in their best interest. An examina-
44 | September 2008 | NYSBA Journal tion of successful firms demonstrates that the following Unfortunately, if the lawyer does not have a receptive key ingredients are always present in their paralegal attitude, the effort will fail. programs: • The lawyer and client have confidence in the parale- Profitability gal. Properly managed and properly priced, it is possible to • The lawyer assigns the proper work. generate significant profits from the work of paralegals. • The paralegal has full involvement on the files. However, it takes more than simply hiring paralegals. • The lawyer properly prices the paralegal’s work. Make sure that the law firm manager runs an analysis • A set, billable hour expectation is established for and prices paralegal work at the appropriate level. It paralegals. would be a mistake to expand the role of paralegals and Confidence makes all the difference. If the lawyer has move a greater portion of the work to them if they are confidence in the paralegal, all things are possible. If the operating at a loss. lawyer lacks confidence, very little is possible. And cli- While there are a number of complicated formulas ents will take their cue from the lawyer. Clients can tell that can be utilized to determine whether paralegals are whether the lawyer has confidence in the paralegal and returning a profit, the simplistic “Rule of Three” is a good will act accordingly. starting point. Under the Rule of Three, the paralegal’s revenues from billable hours worked should represent Hiring Paralegals three times their salary. Under this concept one-third rep- Training is essential. The problem in many firms is that resents salary, one-third represents overhead and fringe some individuals have been hired or elevated to the posi- benefits, and one-third represents profit. Consider the tion of paralegal without the proper background or with- following: out the proper credentials. Nothing can harm a paralegal Rate Hours Revenue Salary/Profit initiative more than having unqualified individuals in $80 times 1,500 = $120,000 divided by 3 = $40,000 some of the positions. $100 times 1,500 = $150,000 divided by 3 = $50,000 The firm should look for individuals with good analyt- $125 times 1,500 = $187,500 divided by 3 = $62,500 ical abilities, good written and oral communication skills, $150 times 1,500 = $225,000 divided by 3 = $75,000 $150 times 1,650 = $292,500 divided by 3 = $97,500 maturity, judgment, common sense, initiative, dedication, a professional attitude and a willingness to learn and Law firms start by making a profit on paralegal hours; expand their skills. Lawyers need to look for qualified and but, in addition, to the extent a paralegal can take on mature career individuals who will inspire confidence a larger portion of the more routine work on a file, the and will get along well with the supervising lawyer. lawyer can justify a higher hourly rate for his or her own This last is very important. The paralegal must be a work. The lawyer has a more limited role, thus there is good match for the supervising lawyer. Some lawyers no increase in cost to the client. The concept is significant. have difficult personalities; some have large egos. When By shifting more work to the paralegal, the lawyer can putting together a lawyer and paralegal team, some handle more files and focus his or her time on a higher combinations will prove to work better than others. level of work at a higher hourly rate. Finding the right personalities is not easy but, in the last analysis, it will have a large effect on whether the Better Practice Management lawyer develops the necessary level of confidence in the The management skills of the lawyer and the quality of paralegal. paralegal work product are directly related. The lawyer If the paralegals are expected to perform “lawyer with a talent for delegating work and motivating and work,” they must have involvement on files much like supervising others will have success working with para- the lawyers who would have otherwise performed the legals. Although there will be differences due to the varied tasks. The paralegals need to establish a rapport with the roles of paralegals, there are important work management client, understand the issues in the case, understand the concepts that have general application. They include client objectives, and be generally informed of what is • selecting the right team; going on at all times. Only with a complete understand- • avoiding excessive layering; ing of these matters can the paralegal effectively take on • balancing associates and paralegals; and this high level of responsibility. • providing adequate supervision of the paralegal. To achieve this, the lawyer needs to be able to accept the paralegal as a colleague. The lawyer must open up to A Five-Step Plan for the the paralegal and share concerns and problems, which Better Utilization of Associates may include admitting not knowing all the answers. A firm that makes a commitment to hiring associates The lawyer needs to understand that it does not take a always wants to get the most out of these neophyte law- law degree to make a significant contribution to a case. yers, and to prepare them to be productive members of the
NYSBA Journal | September 2008 | 45 firm. This does not happen by accident. However, if the • assisting associates to develop practice skills and firm follows an organized plan, as described below, it can knowledge more quickly; significantly improve the likelihood that associates will • building future leaders of the firm; attain the expectations of the firm when it hired them. • building loyalty; • enhanced client service from associates; and Step 1: Establish Criteria by Which to Hire Associates • an understanding of client development and its and the Number of Associates importance. Firms must understand the type of associate who can be Successful mentoring programs incorporate (1) orga- successful within their firm culture, the skills needed to nization and structure; (2) a mentoring manual to serve practice within the firm and the expectations of associ- as a guide to the process, including a position descrip- ates once they are in the firm. Firms must decide on their tion created for both the mentor and the mentee; (3) an growth strategy prior to hiring associates. Will hiring be effective pairing process; (4) regular communication; driven by need because the workload within the firm (5) regular evaluation of the process and the pairing; and demands it? Will it be driven by the need to fill office space (6) identified goals and objectives of the process. and the work developed once the associate joins the firm? Or will it be driven by an established firm growth plan? Step 4: Provide Client Development Training Agreed-upon skills criteria and a growth strategy are both Associates must develop a “client development mental- essential to long-term associate retention. ity” early in their careers. Their future may well depend on their ability to develop clients, not only to serve them. Step 2: Provide Effective Orientation and Training Many lawyers believe they are incapable of developing A strong orientation and training program is vital, if clients or marketing skills; however, this is not true. Firms associates are to hit the ground running earlier and more can help associates develop these important skills in a effectively and develop their productivity and profit- number of specific ways: ability at an early stage. Most firms are developing and • Teach the associates about the firm, including ser- implementing a thorough lawyer orientation program vices offered, practices within the firm, the client that provides base, who the lawyers in the firm are and what they • an administrative overview; do, core specialties, what type of clients to develop • a firm overview; and areas of growth within the firm. • a financial overview; • Share the expectations of associates in regards to • a professionalism overview; and business development. • a career development overview. • Understand the client-development skills and abili- The key to the success of the associate orientation ties of the associates and focus on how to use them program is to implement it consistently, update it as to develop business. needed and communicate regularly. An effective train- • Teach associates what clients expect from lawyers. ing program should follow the orientation program. An • Develop and use individual practice plans and base organized training effort should be developed. All associ- them on years in practice. ates should participate in the effort to insure they become • Use internal and external resources to assist associ- quality, skilled lawyers who can become productive and ates to develop a client development mentality early profitable partners. When new lawyers are deciding in their careers. which firm to join, they quite often are interested in the orientation and training program. They want assurance Step 5: Provide a Career Path for Associates that if they join the firm, they will have the opportunity Associates want to join and stay with firms that provide to develop professionally. a clear career path that benefits them and the firm. Create Successful associate development is a win-win for a culture where associates understand the progression both the firm and the associates. toward partnership; where they can learn, develop and gain knowledge in their practice area; where they can Step 3: Provide a Meaningful Mentor have client interaction; where they are evaluated regu- Whether a mentoring process is formal or informal, it larly and effectively; and where they can become part of is important that somebody is responsible for insuring the team. associates develop appropriately. Successful mentoring provides several benefits, including but not limited to A Five-Step Plan for • developing associates who are able to build strong Expanding the Role of Paralegals practices long-term; The steps involved in expanding the role of paralegals • developing associates who can be integrated effec- in a firm parallel, but are different from, those required tively into the firm; for associate development. It may seem obvious that a
46 | September 2008 | NYSBA Journal generic staff development plan will not be as effective as ery of legal services to clients, as opposed to performing one targeted to the special needs of associates and para- purely clerical or administrative functions. Two other legals, but many firms do not focus on this important common staffing arrangements deserve mention. distinction. Contract Attorneys Step 1: Establish Hiring Guidelines Many firms employ contract lawyers to whom they Start by having the lawyers agree upon certain minimum pay a salary and who have a set amount of hours to be standards for the hiring of paralegals. This will tend to billed. Some contract lawyers do not have a billable hour elevate the paralegal to a higher competence level than expectation but are used on an as-needed basis. Many an ad hoc hiring program. Whenever possible hire an times contract lawyers fill a need in a specific practice experienced career paralegal. And, as part of the process, area. Contract lawyers can enter the partnership track if give attention to whether the lawyer and the applicant their performance substantiates it and the firm’s growth will make a good match. plan calls for it. Work is delegated to them from partners and associates. They are not expected to develop busi- Step 2: Provide Lawyer Education ness, but if they do, they can be compensated based on A key to developing strong paralegals is assuring that an agreed-upon amount. Some contract lawyers are per- lawyers in the firm understand their supervisory and manent; others are used on an as-needed basis such as if leadership roles. To the extent necessary, firm should the firm has a large litigation case or a difficult merger/ educate lawyers about acquisition. • the role of the paralegal as permitted under the Rules of Professional Conduct; Outsourced Support • the client service advantage of using paralegals; Some firms believe that outsourcing legal work offshore • the cost savings to the client from expanding the is the wave of the future, and some believe that as much paralegal role; and as $5.8 billion in wages will be sent offshore by 2015. Is • the firm profits possible from paralegal work. this a serious consideration for law firms? There are sev- eral things to consider, such as the following: Step 3: Develop Practice Management Standards • Will communications be an issue? Have each practice group establish practice management • Will clients accept that their work is being shipped policies and standards. The policies should describe out of the United States for processing? how files are to be handled, including the relationship • Can outsourcing enhance firm profitability? between the roles of the paralegal and the associate. In • Will the time zone differences provide a benefit in the right circumstances, it may promote the experienced turnaround time and will it outweigh the risks? paralegal as a resource for training new associates. • What kind of document review will be needed by lawyers in the United States? Step 4: Establish Written Guidelines for the At this point, there may not be enough information Utilization of Paralegals available to make a final decision regarding the use of The firm should develop and publish written guidelines outsourcing, but one thing is for sure: research carefully for the proper usage of paralegals. The standards can before implementing outsourcing practices. include appropriate functions and should also cover levels of involvement and communication. The firmwide Conclusion standardization of the guidelines is essential to an effec- Although staffing needs for law firms have evolved over tive program. the course of recent decades and will continue to change in the future, certain fundamental principles are not Step 5: Set Goals likely to change. Lawyers and law firms can leverage There should be annual goals for the paralegal program, their productivity by hiring and training qualified asso- upon which progress can be measured. Without goals, ciate attorneys and paralegals. Moreover, the success of it is impossible to keep momentum going for annual these staffing decisions will be enhanced by a good staff- improvement. ing plan. Developing a professional staffing plan will assist law firms to better meet client demands, enhance Other Professional Staffing Considerations profitability and provide consistency in the growth of Associates and paralegals are not the only support staff the firm. ■ at many firms – there are secretaries, receptionists, filing clerks, and others whose jobs may vary according to the 1. ABA By-Laws § 21.12, as amended Sept. 1, 1992. type of practice. The common thread for associates and paralegals is that they are directly involved in the deliv-
NYSBA Journal | September 2008 | 47 ALAN FEIGENBAUM ([email protected]) is an associate in the Litigation/Regulatory department of Weil, Gotshal & Manges. He received his J.D. from Cardozo Law School and a B.A. from Tulane University. The Ethics of Outsourcing By Alan Feigenbaum
utsourcing tasks to non-lawyers, whether in the York attorney and an overseas non-lawyer.3 The Florida United States or abroad, raises a host of issues Bar Association has raised the same concern.4 To effec- Oregarding attorneys’ ethical obligations to their tively fulfill this duty, the Opinion advises attorneys to clients. These issues have been fleshed out in advisory obtain background information about any intermediary opinions issued by the bar associations in various states. employing the non-lawyer, conduct reference checks, Specifically, the New York City, Los Angeles County, interview the non-lawyer in advance by telephone San Diego County, and Florida Bar Associations have or Webcast, and communicate with the non-lawyer provided guidance to attorneys on the ethical consider- throughout the assignment. There is undoubtedly an ations that must be addressed prior to outsourcing work increased challenge with properly discharging the duty overseas. to supervise a non-lawyer overseas. That challenge Each of these opinions focuses primarily on the fol- may well require New York attorneys to spend more lowing ethical mandates: (1) the duty to avoid aiding a time supervising than they otherwise would with non- non-lawyer in the unauthorized practice of law; (2) the lawyers in the United States; this, in turn, might increase duty to supervise; (3) the duty to preserve client confi- costs to the client. dences; (4) the duty to check conflicts; (5) the duty to bill appropriately; and (6) the duty to obtain client consent. Duty to Preserve Client Confidences Although each of the opinions provides that under cer- Third, assuming the outsourcing assignment will require tain circumstances an attorney may ethically outsource the attorney “to disclose client confidences or secrets to legal support services overseas to a non-lawyer, ensuring the overseas non-lawyer,” the attorney “should secure that the requisite ethical mandates are adhered to may the client’s informed consent in advance.”5 Moreover, prove difficult in practice. the attorney should take measures to help preserve The discussion that follows focuses on the New York those confidences, including “restricting access to con- City Bar Association’s Opinion, taking into account any fidences and secrets, contractual provisions addressing additional considerations or distinctions set forth in the confidentiality and remedies in the event of breach, and opinions of the Los Angeles County, San Diego County periodic reminders regarding confidentiality.”6 Clients and Florida Bar Associations. may understandably be concerned about disclosing confidences or secrets to overseas non-lawyers, and Duty to Avoid Aiding the Unauthorized New York attorneys must adequately address these Practice of Law concerns before making any such disclosure. To ensure First, with respect to the duty to avoid aiding a non- adequate protection, the Florida Bar Association recom- lawyer in the unauthorized practice of law, the New York mends that the overseas non-lawyer provide assurances City Opinion explicitly states that to fulfill this duty, the that “policies and processes are employed to protect the attorney must “at every step shoulder complete respon- data while in transit, at rest, in use, and post-provision sibility for the non-lawyer’s work.”1 This means that the of services.”7 attorney cannot lessen his or her ultimate responsibility for the competence of the work product, but rather must Duty to Check Conflicts “ensure its quality.”2 Fourth, attorneys should not outsource tasks to overseas non-lawyers before doing a sufficient conflicts check. Duty to Supervise Satisfaction of this duty requires two checks. The New Second, the duty to supervise is inherently difficult York attorney has to consider whether the overseas considering the “physical separation” between a New non-lawyer is performing or has performed work that
48 | September 2008 | NYSBA Journal is adverse to the attorney’s client. And, the New York must provide advance notification prior to outsourcing attorney has to question the overseas non-lawyer’s the work.16 Most important, the attorney must satisfy employer about its conflict-checking procedures to the duty to act competently. To do so, “the attorney must see whether it has any conflicts with handling the out- know enough about the subject in question to judge the sourced work. quality of the work.”17 Thus, for example, an attorney who has no knowledge of patent law who outsources Duty to Bill Appropriately a motion for summary judgment on infringement of a Fifth, because the overseas non-lawyer cannot perform patent to Legalworks cannot satisfy the duty to act com- “legal services,” it is not appropriate for the New York petently. Absent such knowledge of the applicable legal attorney to “include the cost of outsourcing in his or issues at stake, the attorney cannot possibly assess the her legal fees.”8 Unless the client has specifically agreed quality of the work performed by a company such as otherwise with the attorney, the attorney should “charge Legalworks. the client no more than the direct cost associated with The Los Angeles County Bar Association’s Opinion outsourcing, plus a reasonable allocation of overhead considered whether an attorney in a civil case can ethical- expenses directly associated with providing that ser- ly contract with an out-of-state company to draft a brief.18 vice.”9 The Florida Bar Association found that a law firm Like the San Diego Opinion, the Los Angeles Opinion “may charge a client the actual cost of the overseas pro- concluded that outsourcing of this sort is appropriate if vider, unless the charge would normally be covered as several of the ethical duties discussed above are satisfied. overhead.”10 In a contingency case, however, the Florida Namely, the attorney must be competent to review the Opinion found that it is “improper to charge separately work, have ultimate responsibility for the brief submitted for work that is usually otherwise accomplished by a cli- with the court, refrain from charging an unconscionable ent’s own attorney and incorporated into the standard fee, protect client confidences and secrets, and ensure fee paid to the attorney, even if that cost is paid to a third there is no conflict of interest with the entity hired to draft party provider.”11 the brief. As to whether the fee is unconscionable, the Los Angeles County Bar found that “the amount paid by the Duty to Obtain Client Consent attorney” for the out-of-state company’s work “is not Finally, the extent to which a New York attorney must determinative on the question of whether a fee is uncon- obtain client consent prior to outsourcing work to over- scionable.”19 ■ seas non-lawyers depends upon the significance of the work to be outsourced. For example, if overseas non-law- 1. N.Y.C. Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 2006-3, at 3 (2006) (N.Y.C. Op.). yers are expected to play a “significant role in the matter,” 2. Id. or will be performing an “important document review,” the New York attorney should obtain client consent prior 3. Id. at 4. to outsourcing the work.12 The Florida Bar Association 4. Fla. Bar Ass’n Proposed Advisory Op. 07-2, June 18, 2008, at 2 (“Attorneys who use overseas legal outsourcing companies should recognize that provid- arguably takes a broader view and recommends that law ing adequate supervision may be difficult when dealing with employees who firms obtain “prior client consent to disclose information are in a different country.”) (Fla. Proposed Op.). that the firm reasonably believes is necessary to serve the 5. N.Y.C. Op. 2006-3, at 4. 13 client’s interests.” 6. Id. at 5. The Los Angeles and San Diego Bar County Bar 7. Fla. Proposed Op. 07-2, at 3 (emphasis in original). Associations’ Opinions focus more on the specific 8. N.Y.C. Op. 2006-3, at 5. instance of outsourcing the preparation (such as draft- 9. Id. at 5 (citing ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. ing) of a brief. For example, the San Diego Opinion 93-379 (1993)). considered the extent to which a California attorney can 10. Fla. Proposed Op. 07-2, at 5. ethically outsource a brief to India-based Legalworks.14 11. Id. The key issue addressed by the San Diego Opinion was whether Legalworks was engaged in the practice of law. 12. Id. at *6. In the hypothetical posed by the San Diego Opinion, the 13. Fla. Proposed Op. 07-2, at 4. California attorney had retained “full control” over the 14. San Diego County Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 2007-1 (2007). client’s representation and “exercised independent judg- ment” in reviewing Legalworks’ brief.15 As to whether 15. Id. at 5. the attorney had a duty to inform the client prior to out- 16. Id. at 6. sourcing the work to Legalworks, the San Diego Opinion 17. Id. at 7. instructs that, if work to be performed is “within the 18. L.A. County Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 518 (2006). client’s ‘reasonable expectation under the circumstances’ 19. Id. in L.A. Lawyer, Nov. 2006 75, 77 (citing Shaffer v. Super. Ct., 39 Cal. Rptr. that it will be performed by the attorney,” the attorney 2d 506 (1995)).
NYSBA Journal | September 2008 | 49 ATTORNEY PROFESSIONALISM FORUM
To the Forum: persons have been removed from the charges can be bargained away in civil My firm represents a number of compa- country and, if the trend holds, we litigation. EC 7-21. nies in the construction business, and could reach 500,000 deportations by the Several cases demonstrate the reach they are frequently sued by construc- end of the year. of DR 7-105. Realuyo v. Diaz, 2006 WL tion workers who are injured on the The number of illegal aliens living in 695603 (S.D.N.Y. 2006) (Daniels, J.) was job. Lately we have had several cases this country is estimated to be between a matter in which the court denied in which the injured plaintiffs – not 12 million and 28 million. The Center fees where an attorney’s discharge was employees of any of our clients – are in for Immigration Studies reports that based on inappropriate demand letters this country illegally. One of our clients half the immigrant population in Texas making flagrant and direct threats to ini- wants to know whether it would be (the state with the fastest growing tiate criminal charges. In re Geoghan, 253 permissible to report both the plaintiff immigrant population) is illegal. Over A.D.2d 205, 686 N.Y.S.2d 839 (2d Dep’t in this case, and his employer, to the the past two decades, immigration 1999), presented another example of authorities. accounts for virtually all of the national extreme misconduct that predictably led My client has not proposed threat- increase in public school enrollment. to disbarment. The attorney demanded ening criminal charges. Instead, he pro- Your question, though one for lawyers $10,000 with threats of “false and mis- poses simply to provide the authorities and judges, is thus presented in a con- leading testimony” that would assist a with the documentation and deposi- text that has captured the attention of pending prosecution. Accord Jalor Color tions obtained during discovery. These many Americans. Graphics, Inc. v. Universal Advertising show that the plaintiff is here illegally, The New York Code of Professional Sys., 2 A.D.3d 165, 767 N.Y.S.2d 615 (1st obtained employment illegally, and Responsibility provides guidance for Dep’t 2003); In re Glavin, 107 A.D.2d that his employer hired him knowing the specific questions that you raise. 1006, 484 N.Y.S.2d 933 (3d Dep’t 1985); about his status, or, at least, that he was The prohibition is quite generally In re Gelman, 230 A.D. 524, 245 N.Y.S. hired without a required pre-employ- drawn, however, and therefore leaves 416 (1st Dep’t 1930). ment investigation. There is no intent considerable leeway for good judg- While direct and extreme threats to threaten or to gain an advantage in ment and common sense. clearly invoke the proscriptions of DR the litigation, although an advantage DR 7-105: “A lawyer shall not pres- 7-105, thinly veiled threats, carefully could result. ent, participate in presenting, or threat- My client feels that because he has en to present criminal charges solely to learned what he has about this worker obtain an advantage in a civil matter.”1 The Attorney Professionalism Committee he should, as a good citizen, inform the EC 7-21: “Threatening to use, or invites our readers to send in comments proper authorities. My questions are: using, the criminal process to coerce or alternate views to the responses What is my client allowed or required the adjustment of private civil claims printed below, as well as additional to do? What am I, as the client’s attor- or controversies is a subversion of that hypothetical fact patterns or scenarios to ney, allowed or required to do? Would process. . . . As in all cases of abuse of be considered for future columns. Send my firm or my client face any liability if judicial process, the improper use of your comments or questions to: NYSBA, either of us were to make such reports? criminal process tends to diminish pub- One Elk Street, Albany, NY 12207, Attn: Signed, lic confidence in our legal system.” Attorney Professionalism Forum, or by Concerned Professional DR 7-105 is very short, consisting e-mail to [email protected]. of only one section and one sentence. This column is made possible through Dear Concerned Professional: It simply prohibits lawyers from using the efforts of the NYSBA’s Committee on Thank you for the question. It reflects criminal charges solely to advance a Attorney Professionalism. Fact patterns, the growing awareness of the impact of civil matter. Roy Simon’s Annotated names, characters and locations presented undocumented workers. Not many days Code, drawing on EC 7-21, offers a in this column are fictitious, and any resem- pass without an evening news report on rationale for the rule. If a person has blance to actual events or to actual persons, illegal immigration – ineffective border committed a crime, it ought to be dealt living or dead, is entirely coincidental. These control, the effect on education and with by the criminal justice system. On columns are intended to stimulate thought healthcare systems, and the practical the other hand, if citizens are allowed and discussion on the subject of attorney problems and unintended consequences to threaten or to use criminal charges professionalism. The views expressed are of strict enforcement. Recent statistics for leverage in civil matters, there may those of the authors, and not those of the are staggering: in 2007, 280,500 persons be a substantial “chilling effect,” and Attorney Professionalism Committee or were deported by ICE (U.S. Immigration thus deter the resolution of legitimate the NYSBA. They are not official opinions and Customs Enforcement). Such depor- civil claims. Finally, there could be a on ethical or professional matters, nor tations have increased each year since loss of confidence in our system of should they be cited as such. 2003. In the first quarter of 2008, 94,237 justice if citizens believe that criminal
50 | September 2008 | NYSBA Journal crafted to evade the letter of the rule, found. Does the threat relate to past may be “too cute by half,” and provide conduct that is not likely to reoccur? If a basis for sanctions. Compare Revson the threat relates to on-going misbehav- v. Cinque & Cinque, 221 F.3d 71, 81 (2d ior, there could be an argument that the Cir. 2000) (attorney threats to bring intent was a legitimate desire to inhibit civil RICO action, mentioning that illegal conduct. In your case, the “good other attorneys have been convicted in citizenship” claim may not ring true if similar cases, was not sufficiently overt your client also hires undocumented to warrant sanctions), with NYSBA workers. Committee on Professional Ethics, In response to the question – “what Formal Opinion 772 (2003) (“NYSBA am I, as the client’s attorney, allowed or Op.”) (threat to present criminal charg- required to do?” – the best guidance is es unless action is taken to remedy a NYSBA Op. 772 and a Bar Association civil wrong is likely to create a pre- of Nassau County opinion: sumption of DR 7-105 violation). Thus, DR 7-105(A) is intended to The question presented to the Forum preserve the integrity of both the shows your obvious awareness of the system of civil liability and the ethics rule, and perhaps a hope that criminal justice system by mak- reliance on the “solely to obtain” lan- ing sure that a lawyer’s actual or guage may excuse the true objective threatened invocation of the crimi- of the client – to gain advantage in nal justice system is not motivated a personal injury suit initiated by an solely by the effect such invocation undocumented worker. The New York is likely to have on a client’s inter- cases and ethics opinions recognize that ests in a civil matter. When, howev- there are limits to the DR 7-105 restric- er, a lawyer’s motive to prosecute tion on lawyer conduct. However, there is genuine – that is, actuated by a also is some willingness to look care- sincere interest in and respect for fully at an obvious attempt to cynically the purposes of the criminal justice navigate between the letter and the system – DR 7-105(A) would be spirit of the rule, which as indicated inapplicable, even if such prosecu- above is designed to protect the sys- tion resulted in a benefit to a cli- tem of justice as well as the litigants. ent’s interest in a civil matter. For example, linking a veiled threat of NYSBA Op. 772 (2003). criminal prosecution with a demand for The inquiring attorney is not ethi- payment is likely to create a presump- cally required to report alleged tion of improper intent in an otherwise illegal conduct testified to by ambiguous communication. an adversary party deponent. As noted in NYSBA Op. 772 (2003), . . . [T]he mere failure to report “intent” and “purpose” are primary con- required information to an admin- siderations. When intent and purpose istrative agency (such as, e.g., the are at issue, resolution seldom is subject Immigration and Naturalization to summary determination. A decision Service or the Internal Revenue is fact intensive and is determined case- Service) . . . would not constitute by-case. Conduct of the lawyer and the the type of fraud on a tribunal giv- client, timing and substance of commu- ing rise to a reporting requirement nications, and the overall context of the under the code. proceedings will often reveal whether Bar Ass’n of Nassau County Comm. on the use or threat of criminal charges Prof’l Ethics, Op. 94-20 (Inquiry 536). was solely to gain an advantage, or ABA Informal Opinion 1484 whether there was a higher purpose. (December 1, 1981), decided under DR Can the attorney articulate a plausible 7-105(A) and EC 7-21, similarly found alternative explanation for the threat? that a “law firm may ethically continue If an alternative explanation becomes civil litigation while at the same time difficult or strained, a bona fide, appro- assisting the clients in presenting the priate or legitimate reason may not be facts to the prosecutors for such action
NYSBA Journal | September 2008 | 51 as the prosecutors determine to be Disciplinary Rule through actions of for our client. Our retainer was based appropriate.” another. It has been long held that on an hourly rate, which has been In sum, assuming that the purpose the unethical acts of a client (or the paid in full. Our total fees amounted for filing criminal charges is more than client’s employees) can be imputed to to $7,500. the mere advancement of the client’s the attorney. In re Robinson, 151 A.D. My partner wishes to speak to our interests in this civil matter, you may 589, 136 N.Y.S. 548 (1st Dep’t 1912), client and ask her to voluntarily pay activate the criminal process against aff’d, 209 N.Y. 354 (1913). DR 1-102(A) our firm a bonus because of the excep- the plaintiff-deponent. However, you extends to persons beyond one’s law tional result and the small fee we are not required to file, or cause to be firm, and includes the lawyer’s clients. received. I feel very uncomfortable filed, any criminal charges for illegal If an attorney relies on the client to for- with his plan. activity that may have been disclosed mulate the threat of criminal charges Can you help alleviate my concern? during the civil proceeding. to accomplish an advantage in civil Sincerely, The follow-up concern, of course, litigation, the attorney may be exposed Uneasy Partner is whether you ultimately could be to DR 7-105 sanctions by aiding and liable for making a threat, or acting abetting the client’s conduct. Accord 1. Roy Simon’s Annotated Code points out that on it, after a report is made. In deter- ABA Model Rule 8.4(a). the ABA Model Rules, adopted in 1983, completely dropped the DR 7-105 prohibition. ABA Formal mining whether you could face liabil- Assuming that the client is not aid- Opinion 92-363 (1992) commented that the omis- ity, the answer will turn on whether ing or abetting you in a violation of sion was deliberate. Courts and commentators the charges are invalid or question- DR 7-105, substantive immigration law justified the deletion of DR 7-105 as “redundant and overbroad.” Committee on Legal Ethics v. Printz, able, whether any associated demand and the New York Penal Law do not 416 S.E. 2d 720 (W. Va. 1992) (seeking compensation constitutes criminal coercion, com- prohibit a reporting of undocumented instead of criminal prosecution may be legitimate pounding or other illegal conduct, and workers. The client is free to report, or negotiation); ABA Formal Opinion 92-363; Hazzard & Hodes, The Law of Lawyering, Sec. 40.4 (3d ed. whether there is evidence of prosecuto- not report. 2000); Restatement of the Law 3d, Law Governing rial misconduct. New York City Ethics The Forum, by Lawyers, § 98, cmt. f (2000). Opinion 1995-13 (identifies conduct Michael Kuhn While the ABA Model Rules may place New York at that may cross the line and impli- Bracewell & Guiliani LLP odds with other jurisdictions, many states are quick to point out that misconduct under DR 7-105 would cates N.Y. Penal Laws); ABA Informal Houston, Texas violate ABA Model Rules if the conduct is egregious. Opinion 1484 (December 1, 1981) (cit- E.g., State of Oklahoma v. Worsham, 957 P.2d 549, 552 ing In re Mekler, 406 A.2d 20 (Del. 1979); QUESTION FOR THE (Okla. 1998). For example, a threat of criminal pros- ecution without a basis in fact or law violates ABA Robinson v. Fimbel Door Co., 306 A.2d NEXT ATTORNEY Model Rules 3.1 and 4.4 which prohibit frivolous 768 (N.H. 1973)). PROFESSIONALISM FORUM: claims and threats that have “no substantial purpose Assuming that there is no illegal other than to embarrass, delay or burden [the adver- sary].” ABA Model Rule 4.1 similarly imposes a duty conduct surrounding the threat, and My partner and I have a small law regarding truthfulness and prohibits threats without that the charges are well-founded, firm concentrating in matrimonial mat- an intent to proceed with the charges. In extreme you should not face liability for a ters. Recently, my partner concluded a cases, the conduct covered by DR-7-105 may violate substantive criminal laws such as criminal coercion threat or the report. In NYSBA Op. divorce case that resulted in a settle- and compounding and, thus, warrant ethics sanc- 772, the Committee concluded that “if ment yielding several million dollars tions under ABA Model Rule 8.4(b). the lawyer . . . reasonably believes that the threatened criminal charges are EDITOR’S NOTE true and the letter only demands the [opposing party] take an action that is In the July/August 2008 edition of the telegrams, which do satisfy the Statute reasonably calculated to remedy the Journal, we printed an article titled “Of of Frauds. The other was that, under the wrongful taking, such a letter would Keystrokes and Ballpoints: Real Estate N.Y. State Technology Law (and its fed- not be unlawful.” (Not unlawful, but as and the Statute of Frauds in the Electronic eral counterpart), electronic signatures indicated above, potentially unethical, Age.” The article referred to the case are to be treated as if they were manual since DR 7-105 does not turn on truth of Vista Developers Corp. v. VFP Realty signatures. LLC, 17 Misc. 3d 914, 847 N.Y.S.2d 416 The article was wrong. Jon Schuyler of the charge or correlation between (Sup. Ct., Queens Co. 2007), where e-mail Brooks, the attorney for Vista Developers the demand and the criminal act, but exchanges, though bearing signatures by Corp., has advised us that both of these on the attorney’s motivation.) the senders, were held not to constitute a arguments, in fact, had been made. The Finally, “what is the client allowed real estate contract. The article comment- court, however, did not address either or required to do,” by implication ed that there were two arguments which argument in its decision, which is why the asks whether the attorney can be held were not presented to the court that, if article assumed, erroneously, that neither responsible for the client’s threats to made, might have altered the result. One argument had been made. The Journal an adversary. DR 1-102(A)(2) pro- was to argue that signatures to e-mails and the author sincerely apologize to Mr. are equivalent to the typed signatures on Brooks and his firm for the error. hibits lawyers from circumventing a
52 | September 2008 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK
uestion: At least here in New Question: Is the preposition like cor- reviewed the declaration that was England, the word myself is rect in the following sentence, “Like agreed this morning.” Scott Simon, Qannoyingly overused in state- the old saying goes, if you repeat a on NPR News, commented: “Give me ments like, “Mary and myself are leav- lie often enough, people will believe an idea what you’re confronted.” Our ing.” When is it correct to use myself in it”? Erik Maza, of the New York Times local airport boasts a billboard saying: place of I and me? Regional Media Group, made this com- “Fly Gainesville.” Answer: It is never correct to replace ment on television recently. But while we are dropping need- I and me with myself. That question was Answer: The introduction to the ed prepositions, we are also adding also recently asked by a Harvard pro- “old saying” was: “As the old saying unneeded words. Sentences start with fessor, who said that her graduate stu- goes . . . ”; grammatical, and probably phrases like And so, or But yet, and the dents consider myself to be an upscale true. But the preposition like has almost ornate Nevertheless and Notwithstanding. way to avoid saying I; but it’s neither obliterated as in comparisons of this The Animal Rescue people talk about upscale nor grammatical. kind. Except for a minority of speak- animals that need adopting out. We The pronoun myself is either an ers and writers, most people use like request, “Please report back to me”; intensive pronoun or a reflexive pro- instead of as in all such constructions. and “return back the book I lent you.” noun and can never be the subject of Even Time magazine, usually a bastion We open up new lines of communica- a sentence. In the sentence the reader of correct grammar, permits its journal- tion. We excise out errors, when we sent, myself is ungrammatical because ists to use like for as. In a May article, discover where they’re at; and in the it is used as the subject of the sentence. “How the Next President Should Fix South we advertise “an umbrella with Standard English requires a simple I in the Economy,” Justin Fox misused like a substantial handle to it.” the subject slot. for as twice before he got it right the Finally, two errors that should have Myself is an intensive pronoun, a third time. been “excised out”: pronoun that emphasizes a previous First he wrote, “Every once in a A journalist for the local newspa- noun or pronoun. In the statement “She while, like when Franklin Delano per, in praising a coming event, wrote: herself did it,” herself means “alone.” Roosevelt was elected . . . the effect can “There won’t be many seminars A reflexive pronoun refers back to a be dramatic.” Then he commented, during the two-day Spring Garden noun or pronoun stated earlier in the “So there’s a chance that this election Festival at Kanapaha Botanical sentence. could turn out to be a major economic Gardens this weekend, but the ones The following sentences show the turning point, just like 1980’s was.” scheduled are worth nothing.” (Take correct use of intensive and reflexive Finally, he put like in a statement where out that h.) pronouns: it belonged, writing, “Recessions – like And, in a failed attempt at a meta- He himself can do it. (Intensive the one in 2001 and the one we might phor to show that money spent had pronoun.) be in now – always reduce incomes. not been wasted, a New York senator He injured himself playing football. (My emphasis.) said, “You can look at the trees and (Reflexive pronoun.) But as is still worth fighting for. Just see many things that should have Other readers have expressed con- remember that like is a preposition been done better. But if you look at the fusion about which personal pronoun (as are the prepositions with, from, for, forest, it’s a large and unprecedented to use following as and than: in, on) and must be followed by the sum of money that’s basically being John is as tall as Joe, but Joe weighs objective case of a noun or pronoun. used in the way it was intended.” more than (he/him). For other constructions, use as or as if. (Trees, things, and a forest of money, John admires Joe more than (I/ Contrast: all in one mixed metaphor.) ■ me). He looks like a happy man. The correct personal pronoun for He looks as if he is happy. the first sentence is he, because the unstated verb that would follow is Potpourri “does.” The second sentence, as stated, People are not only misusing prepo- is ambiguous. If the unstated verb is sitions, they are deleting them. This GERTRUDE BLOCK is lecturer emerita at the “do,” the personal pronoun should morning news contained the state- University of Florida College of Law. She is the be “I,” the subject of “do.” But if the ment: “The interstate was closed this author of Effective Legal Writing (Foundation unstated verb is “John admires,” the morning 15 minutes.” One federal Press) and co-author of Judicial Opinion personal pronoun should be “me.” administrator recently said, “I take Writing (American Bar Association). Her most John admires Joe more than I (do). the blame. It was a mistake made by recent book is Legal Writing Advice: Questions John admires Joe more than (John my office, which I take all respon- and Answers (W. S. Hein & Co., 2004). admires) me. sibility.” President Bush said, “We
NYSBA Journal | September 2008 | 53 If the brief is a meal, the fact section THE LEGAL WRITER CONTINUED FROM PAGE 64 is a first course that sets the tone section.12 The theme is the brief’s uni- for the rest of the meal. fying idea. It allows the reader to view the client’s case favorably. It reinforces cant facts must be included in the fact people, places, and dates. Introduce the advocate’s view of the story behind section, regardless whether they favor the most important characters here so the case. It dictates which facts are or disfavor your client. Withholding that the reader will identify with them selected, where they are placed, and legally significant facts might be immediately.27 Present favorable facts whether they are emphasized or de- unethical and may violate court rules.20 and those deemed worthy of emphasis emphasized.13 Use only people, places, Advocates should also include all the at the beginning to force the reader to and dates that directly relate to your opposition’s legally significant facts as analyze the facts from your perspec- or your adversary’s theme. Including a straw man. By presenting the opposi- tive.28 unnecessary information wastes space tion’s facts, the advocate can later con- Example: A man you have already and burns the reader’s brain cells. tradict them or argue their irrelevance described as a community leader There are several ways to choose in the argument section. and a good father is accused of the theme. The theme can be based The fact section should not be a theft. The reader will infer that he on moral or philosophical ideals, pol- summary of witness testimony, a list is innocent. When you later argue icy considerations, or precedent.14 For of facts witness by witness, or a series he is innocent, the reader might example, the theme of a brief about an of lengthy quotations. These methods agree with you. employment case could be about the never persuade. What persuades is Example: A man you have already immorality of discrimination. Look to storytelling. described as deceitful and depraved the reader’s preferences in choosing Once you choose which facts to use, is accused of theft. The reader will the theme. The theme must appeal to, the selected facts must be positioned to infer that he is guilty. When you and be understood by, a smart high- maximize persuasiveness. Improperly later argue he is guilty, the reader school senior. Select the theme before placing facts will damage the fact sec- might agree with you. writing. Choosing the theme during tion’s persuasiveness. Fact sections Unfavorable facts, which should the writing process is ineffective. are organized most often in one of be de-emphasized, belong halfway to There are three basic categories of two ways: chronologically or by issue. two-thirds through the fact section.29 facts. First are legally significant or Chronological order, the more common All legally significant facts, even those determinative facts.15 They help deter- organizational method, emphasizes unfavorable to the client, must be stated mine the reader’s decision. If differ- clarity.21 Sometimes important facts in the brief. But you can control where ent facts would result in a different that require emphasis appear only at they are placed and how persuasive decision, those facts are determina- the end of the chronology. When that they are. By placing bad facts halfway tive facts.16 The second category is happens, present these facts at the to two-thirds through the section, their explanatory facts. These piece together beginning of the section.22 damaging impact is minimized. and make sense of the determinative Some writers organize facts by issue The end of the fact section is where facts.17 The third category is the coin- when two or more legal questions the advocate must place the facts that cidental or irrelevant fact. Although are involved.23 Use an introductory the reader should remember the most. these facts relate to the case, they are paragraph to set out all the issues and Facts read at the end will be fresh in irrelevant to the theme of the brief or the order in which they will be dis- the readers’ minds when they read the memorandum.18 They add only color cussed.24 Each issue should be intro- argument section.30 and background. duced with a topic heading to separate In objective memorandums, the A useful way to decide which facts them. Separate the fact section into cat- procedural history goes at the begin- are necessary is by comparison to the egories like evidence, witnesses, and ning to provide context for the rest of argument section. Go back and forth testimony.25 In a criminal appeal, the the document. All procedural history between the facts and argument sec- categories could be the arrest, the trial, should go at the end of the fact section tion to decide which facts are neces- and the sentence. in a persuasive brief. In a persuasive sary for the brief or memorandum. If Three categories form the structure brief, procedural history strengthens a fact isn’t argued in the argument sec- of the brief’s fact section: the begin- the merits of your case. For example, if tion, omit it in the fact section. If a fact ning, the middle, and the end. a lower court ruled in the client’s favor isn’t in the fact section, it should be cut Grab the reader’s attention at the on a particular aspect of the case but from the argument section. beginning of the fact section to make against the client in general, discuss in Include every fact that supports a lasting impression.26 The beginning the appellate brief the favorable part of and advances your client’s or your is where the writer sets up the rest the ruling and point to facts or omis- adversary’s theme.19 All legally signifi- of the fact section. Identify important sions that affect the unfavorable part.
54 | September 2008 | NYSBA Journal You’re not arguing law. You’re setting defendants might not garner the read- Facts: Foundation of the Appellate Brief, 32 Stetson L. Rev. 415, 417 (2003). out procedural facts in a compelling, er’s sympathy. Investigate the corpora- 6. Ray & Cox, supra note 2, at 151. factual way. tion’s goals to find information associ- 7. Berry, supra note 1, at 90–91; Ray & Cox, supra ated with human emotion like phi- note 2, at 155. Introducing the Characters lanthropy or employing hard-working 8. Ray & Cox, supra note 2, at 151. 9. Id. at 153; Berry, supra note 1, at 90. 39 In selecting the theme for the fact individuals. Present this information 10. Ray & Cox, supra note 2, at 180. section, the advocate also selects the at the beginning of the fact section 11. Id. at 180–81. characters through whom the theme to show the corporate client’s human 12. Berry, supra note 1, at 66, 85. applies. An effective fact section begins side. For example, “XYZ Corporation, 13. Id. at 66, 84–87. with the characters with whom you which employs 45,000 people and has 14. Id. at 66. want the reader to identify and sym- provided automobiles for 3.5 million 15. Berry, supra note 1, at 90; Ray & Cox, supra note 2, at 168–69. 31 pathize. families, is a Delaware corporation 16. Richard K. Neumann, Jr., Legal Reasoning and The first major character introduced with an address of 2345 Main Street, Legal Writing 207 (5th ed. 2005). is usually the protagonist, not the vil- Wilmington, Delaware.”40 This makes 17. Id. at 208. lain.32 Think of how characters in a the corporation likable. Focus on spe- 18. Id. 19. Id. good movie are introduced. Lead with cific individuals when the corpora- 20. Mario Pittoni, Brief Writing and Argumentation the villain only if your story tells how tion must defend against allegations 32 (3d ed. 1967); Berry, supra note 1, at 84. the villain becomes a protagonist, if the of wrongdoing.41 If a senior manager 21. Pittoni, supra note 20, at 32; Berry, supra note 1, villain is downright awful, or if you was responsible for an error that cost at 87; Ray & Cox, supra note 2, at 153. want to fool the reader about how the investors a lot of money, portray the 22. Elligett, supra note 5, at 422. 33 42 23. Berry, supra note 1, at 87. protagonist is really the villain. Select corporation as a victim. 24. Id. the proper character to introduce first. One tactic to humanize criminal 25. Elligett, supra note 5, at 421. The character need not be your paying defendants is to make them a proxy for 26. Berry, supra note 1, at 88. client. The reader will analyze the facts an ideal so that, for example, “holding 27. Brian J. Foley & Ruth Anne Robbins, Fiction through this character’s perspective.34 against the client is a holding against 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write a Persuasive Fact Section, 43 Communicate your position. How the Fourth Amendment.” Another 32 Rutgers L.J. 459, 468 (2001). you refer to your client and your adver- technique in the appropriate case is 28. Berry, supra note 1, at 88. sary has a subtle yet important impact.35 to villainize the complaining wit- 29. Ray & Cox, supra note 2, at 171. Refer to your client by name rather than ness or police or to portray the client 30. Id. as Appellant or Respondent. Calling as involved in a “Man Against Self” 31. Foley, supra note 27, at 468. 32. Id. your client Appellant or Respondent struggle.44 In the case of a drug addict, 33. Id. can be confusing, and the reader will depict the defendant as a victim of 34. Id. not identify with the client.36 Referring drugs, a nemesis that becomes a char- 35. Berry, supra note 1, at 88. to your adversaries as Appellant or acter in the story.45 Viewed in this light, 36. Gertrude Block, Effective Legal Writing 176 (5th Respondent will, however, dehuman- the criminal defendant becomes the ed. 1999). 37. Berry, supra note 1, at 90. ize them. protagonist and the drugs the bad guy. 38. Pittoni, supra note 20, at 30–31; Berry, supra note Example: In an abortion case, the The audience will hope that the defen- 1, at 90–91. opposing parties can use different dant’s better nature will triumph.46 39. Foley, supra note 27, at 474. terms to refer to the unborn. Pro- The Legal Writer will discuss other 40. Id. at 475 (emphasis deleted). choice advocates might refer to the issues about the fact section in Part II, 41. Id. unborn as a fetus. Anti-abortionists including writing style, visual aids, 42. Id. ■ 43. Elizabeth Fajans et al., Writing for Legal Practice might use “child.” The two terms and ethical considerations. 188 (2004). 37 have different connotations. 44. Foley, supra note 27, at 470. 1. Carole C. Berry, Effective Appellate Advocacy: Example: Compare how the par- 45. Id. at 473. Brief Writing and Oral Argument 84 (2d ed. 1999) ties were presented in the case of (noting that “[t]he law arises out of the facts”). 46. Id. at 470. Paula Jones against Bill Clinton. 2. Mary Barnard Ray & Barbara J. Cox, Beyond the GERALD LEBOVITS is a judge of the New York City The fact section of Mr. Clinton’s Basics: A Text for Advanced Legal Writing 167 (2d ed. 2003); Berry, supra note 1, at 83–84. The fact section Civil Court, Housing Part, in Manhattan and an brief makes it obvious that he is has different names. It’s called the Statement of the adjunct professor at St. John’s University School the President of the United States. Case (Petitioner) or Counterstatement of the Case of Law. He thanks Fordham University School of (Respondent) in United States Supreme Court briefs. Ms. Jones’s fact section describes Law student Mark S. Goldstein and New York 3. Ray & Cox, supra note 2, at 167. her as a $6.35-an-hour government 4. John W. Davis, The Argument of an Appeal, 26 Law School students James Pincow and Aileen employee and Mr. Clinton as the A.B.A. J. 895, 896 (1940) (quoted in Berry, supra Siclait for assisting in researching this column former governor of Arkansas.38 note 1, at 83–84); accord Wesley Gilmer, Jr., Legal and Part II. Judge Lebovits’s e-mail address is Humanizing some clients is diffi- Research, Writing & Advocacy 183 (2d ed. 1987). [email protected]. 5. Gilmer, supra note 4, at 183–84; Raymond T. cult. Corporate clients and criminal Elligett, Jr. & John M. Scheb, Stating the Case and
NYSBA Journal | September 2008 | 55 NEW MEMBERS WELCOMED
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56 | September 2008 | NYSBA Journal Joseph F. Medici Crystal Gail Petersen Matthew Austin Schedler Tamieka Nicole Spencer Eric Justin Weber Maria Cristina Melendez Jonathan Matson Petts Evan Daniel Schein Bruce Paul Robert Weber Allison Sherry Menkes Charles Edward Phillips Logan Joseph Schiff Sara G. Spiegelman Lauren Michele Weiner Grissel A. Mercado Wendy Marjorie Phillips Emily Dawn Schmitz Joshua Seth Sprague Sean Robert Weissbart Michelle Messer Rodger Pichardo Rachel Debra Schneider Jasmine Chantelle Sripa Alexis Brooke Brandon Lawn Messina Kristina Leigh Pieper Melissa Jill Schoffer Ritu Srivastava Weissberger Carly Jane Meyer Marjorie M. Pierre- Schuyler John Schouten Kathleen Casey Stapleton Timothy J. Welch Steven Francis Meyer Merritt Michael James Schrader Jessica Adina Steinberg Avery Phillips Wentzel Emily Margalit Meyers Stela Plaku Matthew A. Schroeder Bezalel Adin Stern Colin Thacher West Jonathan Scott Michels Jennifer Colleen Christina Cathey Schuetz Sarah K. 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NYSBA Journal | September 2008 | 57 Jenny Suk Fan Cheung THIRD DISTRICT Craig A. Berkowitz Scott Aaron Goodman Katrina Danielle Jackson Nora E. Christenson Meaghan Elizabeth Kenneth Parker Borden Seth Evan Greengrass Guangning Jia Alfred Wayne Digrazia Doyle Deborah Rose Brancato Jason B. Horowitz Michael Richard Kauke Eric Anthony Dinapoli Tyler Loomis Feane Jennifer E. Busch Jennifer Lee Howland Kimberlee Jean Keller Anthony Columba Ariel M. Jolicoeur Edgar P. Campbell Richard F. Ingrassia Krzysztof Piotr Lach Duddy Nicole C. Laurent Grace I. Chen Mark Aram Keurian Sue-een Liu Caitlin Duffy Bess Livaditis Dana Sue Chrisomalis Adil Mohammad Khan Monika Luczak Jenna Elizabeth Elkind Dale M. Pager Victoria T. Coleman Danica Nicole Shanise Jasmine O’Neill Matthew B. Firing Diane Lufkin Schilling Christopher Ryan Daniele Kirschenbaum Adam M. Ostreicher Lisa Marie Fitzgerald Brent R. 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58 | September 2008 | NYSBA Journal Bukola Atinuke Ayanbule Avril Sheh May Chung Melissa Maria Gencarelli Lucille Marie Kalnes Laimute Lipinsuaite Elena O. Ayot Kou-Jen Chung Matthew Ian Gennaro Hankil Daniel Kang Roy Edward Litland Nerman T. Ayoub Vivian Lam Coates Boryana Georgieva Devin M. Karas Kuangyi Liu Bulebayeva Aina B Heather Coleman Matthew Benjamin Gerst George Z. Kargiolukis Shan Liu Jonathan F. Ball David Albert Collins Meskoob Ghazaleh Yuko Kato Michael Alan Livermore Ilona Bannister Rachel Elizabeth Colson Alexandra Giacalone Caroline Amanda Keller Anne-Marie Loong James Francis Barna Matthew Compton Jennifer Gillcrist Leonard M. Khandros Kevin Michael Lovecchio Ashley Elizabeth Baron Jason Francis Conaty Joshua Kyle Givner Takeh Birshu Kidze Jonathan King Hang Luk Talia Barsam Enrique Conde Robert Glass Sendze Robin Lumsden Peter Alfred Basso Ryan Lee Conley Sandra P. Gohn Theodore Paul Kill Milla Leah Lvovich Adriana Brandao Bastos James Richard Connors Carla Goiricelaya Hyeong Seon Kim Tara Lyle Meredith Ann Bauer Dries Peter Cools Robert Goldberg Hyosin Kim Tiffany Ma Vance Loren Beagles Ryan Bruce Corey Christian Gonzalez Kenneth Kim Tin Tai Ma Diana Becerra Susan Craig Richard Gonzalez Wan Ki Kim Sanjay Madan Jaime Elizabeth Becker Nicole Patrice Crifo Meghan Lee Grady Hillary King Kochansui Magdalena Roman Begelfer Larissa Cuccurullo Christopher John John T. Kirtley Rustin E. Maitland Jennifer L. Behrens Lei Cui Gramiccioni Donald Klimoski Malvika Malhotra Genea Odessa Bell Michael L. Culotta Erica A. Green Erica Knievel Rosalie-Anne Mandich Charlotte Eve Marie Alessia D’Alfonso Josiah Greenberg Chris Koeberle Jennifer Manger Anne Beroud Massimo Fabio D’Angelo Robert S. Gregg Sarah Danielle Kohrs Eric Mannion Veer Bhavngri Brian F. Davenport Marie-pierre Grenier Daisuke Kojo Diego Marquez Laura M. Bingham Alexandre De Boccard Krista M. 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NYSBA Journal | September 2008 | 59 Agasa Naito James Vance Painter Suen Son Poon Virginie Laure Schwartz Emmanuelle Surre Florence M. Ndedi Marco A. Palau Alexandru Popescu- Daniel Scott Kristin Susi Timothy Michael Nelson Wen Pan negoesti Robert Joseph Seco Philip Lamson Sutter Robert Nemzin Ambika Panday Jeri Erenne Powell Robert Charles Segear Rima Taha Vichoriue Mandengue Phillip Paone Peter Prows Aditi Sehgal Ai Takatsu Ngonde Asimina-Manto Christina L. Putrelo Shourin Sen Doreen Wan-ling Tan Joseph Matthew Nichols Papaioannou Liu Qian Lishani Senaratne Mayumi Tani Ayumin Nishiuo Hyun Kyung Park Jesse L. Quackenbush Dawn Sequeira Anita M. Tarar Frauke Nitschke Jongwon Park Tara Katrina Quaglione Patrick Shanahan Judit Temesvari Catherine Nora Kyu-chan Park Ajmel Ahsen Quereshi Xiangyu She Karen Teo O’Donnell Max James Paul Juan Carlos Quincoces Kevin Damien Shea Angela W. Thompson Elena Ionkova O’Malley Scott Kevin Penick Swati Rawani Shabbir Quresh Shawn Tock Francella Awino Ochillo Christine Ann Perry James R. Ray Shehabuddin James D. Toll Sherolyn Oh David Perry Dennis Craig Reich Chihwei Shen Hugo Anthony Tomasio Mary Ann Okafor Kathryn E. Picanso Jamie Renner Jin-gyun Shin Takayuki Tomioka Ann Olivarius Paula Karol Pinha Joseph Reynaud Young Wook Shin John James Toner Tracy Olson Russell Patrick Plato Alan John Righi Mehnaz Siddiqui Vito Torchia Carlo Osi Carla Jesette Pollard William Bailey Roberts Francis Thomas Sidoti Kimberly Ann Tracey Enitan Otunca Fabio Polverino Asha Robinson Ellie O. Siegel Ping-chun Tsai Ariel Oxman Alessandro Pomelli Kimberly Robinson Michael G. Sinkevich John Yat Tso Thomas Paciorkowski Dawne Marie Arinia Lynn Rodrigues Sergiy M. Sivocheu John M. Tuntevski Jessica Morrow Packard Pomianowski Camilo A. Rodriguez Alexander Slater Christopher James Yong Jaroslaw Michal Turano Mark H. C. Rogers Smagowski Ethan J. Ung INDEX TO ADVERTISERS Anthony J. Roselle Andrene Letecia Kay Takujiro Urabe Susan Rosti Smith Joshua John Siebe Matthijs Ruijgh Linda Smith Vandenhengel Amicus Attorney 9 Gabriel A. Ruscica Antonia Ramos Soares Brad Varley Bank of America 15 Chris Rykaczweski Eric George Soller Rachel Viglianti Nada Alice Sader Stephanie Soondar Rebecca Beth Visvader Bertholon-Rowland Corp. 4 Alexis Marina Sainz Heather Rae Spaide Marguerite Walker Ajaypal Singh Sarkaria Paul Spivak Peter McKeown Walley Garrity, Graham, Murphy, Garofalo Supriya Sarnikar Mingxin Wang & Flinn 27 Venus Yvette Springs Joe Michael Sasanuma Brian Stecker Xiaodong Wang Guaranteed Subpoena Service 19 Tomohiro Sato Steven B. Stein Daisuke Watanabe Allison Nicole Sawyer Erica Lynne Stevens Alexis Michael Weil Global BioMechanical Solutions, Inc. 25 Luke Matthew Scheuer Maco Stewart Andrew John Welch HSBC 7 Susan W. Schillaci Tracey Stewart Yujin Weng Mackenzie Spring Erin Stieber David B. Wilkinson Jams/Endispute 13 Schoonmaker Jesse Daniel Stovin Jordan Lisle Williams Jewish Guild for the Blind 18 Robert H. Schwartz Jessica Sara Strugibenetti Rachel Alexander Roy Howard Schwartz Michele Stuart Williams Lawbook Exchange, Ltd. 61 Vinita Schwartz Judith M. Sung Jackie B. Wilson Lawsuites.net 61 Yvonne Winkler Von Mohrenfels LexisNexis cover 3 Jonathan Winnick New York Legislative Ethics MEMBERSHIP TOTALS Andrew M. Wright Commission 61 Shiaohan Wu Xia Xia Peachtree Attorney Cost Financing 51 NEW REGULAR MEMBERS Jiehnan Xu Philips Speech Processing, 1/1/08 - 7/10/08 ______5,881 Daisuke Yamaguchi North America 23 Koki Yanagisawa NEW LAW STUDENT MEMBERS Tai-Hua Yang PS Finance cover 2 1/1/08 - 7/10/08 ______596 Qing Ye The Company Corporation 61 Sophia Yen TOTAL REGULAR MEMBERS Jaesuk Yoo The Leukemia & Lymphoma Society 17 AS OF 7/10/08 ______67,064 Tammy Yoo Title Vest 2 Se Hyun Youn TOTAL LAW STUDENT MEMBERS Nadia F. Zaidi West, A Thomson Business cover 4, AS OF 7/10/08 ______2,128 Daniel Eric Zemsky insert Yonggang Zeng TOTAL MEMBERSHIP AS OF WKGJL 61 Li Zhao 7/10/08 ______69,192
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62 | September 2008 | NYSBA Journal 2008–2009 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
BERNICE K. LEBER FIRST DISTRICT Hernandez, David J. Convissar, Robert N. Aaron, Stewart D. Kamins, Barry Doyle, Vincent E., III President Abernethy, Samuel F. Romero, Manuel A. Edmunds, David L., Jr. New York Abramowitz, Alton L. Sunshine, Hon. Jeffrey S. Fisher, Cheryl Smith † * Alcott, Mark H. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando MICHAEL E. GETNICK Alden, Steven M. Szochet, Diana J. * Hassett, Paul Michael Anello, Robert J. Lamantia, Stephen R. President-Elect THIRD DISTRICT Armas, Oliver J. Breen, Michael L. Manias, Giles P. Utica Badner, Lisa Ray Casserly, Timothy E. McCarthy, Joseph V. Badway, Ernest Edward Costello, Bartley J., III Meyer, Harry G. C. BRUCE LAWRENCE Baum, Simeon H. Davidoff, Michael O’Donnell, Thomas M. Secretary Berke-Weiss, Laurie DeFio Kean, Elena O’Reilly, Patrick C. Blanchard, Kimberly S. Doherty, Glen P. Porcellio, Sharon M. Rochester Borsody, Robert P. Farley, Susan E. Sconiers, Hon. Rose H. Brown Spitzmueller, Janiece Fernandez, Hermes Subjack, James P. SEYMOUR W. JAMES, JR. Brown, Peter Gold, Majer H. Young, Oliver C. Treasurer Burns, Howard W., Jr. Greenthal, John L. NINTH DISTRICT † Campos-Galvan, Manuel Higgins, John Eric Amoruso, Michael J. New York Chang, Vincent Ted Higgins, Patrick J. Burke, Patrick T. Chin, Sylvia Fung Kretser, Hon. Rachel Burns, Stephanie L. KATHRYN GRANT MADIGAN Christian, Catherine A. Lally, Sean P. Byrne, Robert Lantry Immediate Past President Cohen, Carrie H. Liebman, Bennett M. Campanaro, Patricia L. Collazo, Ernest J. Meislahn, Harry P. Cusano, Gary A. Binghamton * Cometa, Angelo T. Millock, Peter J. Dohn, Robert P. Crespo, Louis Miranda, David P. Fontana, Lucille A. Davis, Tracee E. Moy, Lillian M. Goldenberg, Ira S. VICE-PRESIDENTS Draper, Thomas G., Jr. Nachimson, Steven G. Gordon Oliver, Arlene Antoinette Drayton, Joseph Michael Netter, Miriam M. Gouz, Ronnie P. Eppler, Klaus FIRST DISTRICT Powers, John K. Kranis, Michael D. Finerty, Hon. Margaret J. Privitera, John J. Lagonia, Salvatore A. Claire P. Gutekunst, New York * Forger, Alexander D. Roberts, Christina L. Lau-Kee, Glenn Freidman, Gary B. Salkin, Prof. Patricia E. Markhoff, Michael S. Susan B. Lindenauer, New York Gallagher, Patrick C. Schofield, Robert T., IV Marwell, John S. Gesinsky, Loren M. † * Tharp, Lorraine Power Miklitsch, Catherine M. SECOND DISTRICT * Gillespie, S. Hazard * Williams, David S. * Miller, Henry G. Goldberg, Evan M. * Yanas, John J. † * Ostertag, Robert L. Barry Kamins, Brooklyn Gredd, Helen A. Selinger, John Gutekunst, Claire P. FOURTH DISTRICT † * Standard, Kenneth G. HIRD ISTRICT Haig, Robert L. Breedlove, Brian H. T D Burke, J. David Strauss, Barbara J. Hariton, David P. Thornhill, Herbert L., Jr. Hon. Rachel Kretser, Albany Harris, Joel B. Coffey, Peter V. Cullum, James E. Van Scoyoc, Carol L. Hawkins, Dennis R. Wallach, Sherry Levin FOURTH DISTRICT Hayden, Hon. Douglas J. Ferradino, Stephanie W. Haelen, Joanne B. Welby, Thomas H. Hollyer, A. Rene Wilson, Leroy, Jr. Patricia L. R. Rodriguez, Schenectady Hynes, Patricia M. Lais, Kara I. James, Hon. Debra A. Rider, Mark M. TENTH DISTRICT FIFTH DISTRICT Kennedy, Henry J. Rodriguez, Patricia L.R. Asarch, Hon. Joel K. Kera, Martin S. Stanclift, Tucker C. Austin, Hon. Leonard B. David M. Hayes, Syracuse Kiernan, Peter J. Sterrett, Grace Block, Justin M. * King, Henry L. FIFTH DISTRICT * Bracken, John P. SIXTH DISTRICT Kobak, James B., Jr. Fennell, Timothy J. Buonora, John L. Cartright, Valerie M. David A. Tyler, Ithaca Kougasian, Peter M. Gall, Erin P. † * Krane, Steven C. Getnick, Michael E. Chase, Dennis R. Larson, Wallace L., Jr. Gigliotti, Louis P. Clarke, Lance D. SEVENTH DISTRICT † Leber, Bernice K. Gingold, Neil M. Cooper, Ilene S. David M. Schraver, Rochester Leo, Robert J. Greeley, Kristin B. Fishberg, Gerard Lesk, Ann B. Hartnett, Elizabeth A. Franchina, Emily F. Hayes, David M. Gann, Marc EIGHTH DISTRICT Lindenauer, Susan B. * MacCrate, Robert Howe, David S. Good, Douglas J. David L. Edmunds, Jr., Buffalo Martin, Edwina Frances Larose, Stuart J. Gross, John H. Masley, Hon. Andrea Longstreet, Ami S. † * Levin, A. Thomas Levy, Peter H. NINTH DISTRICT McEnroe, Diane Crosson Mitchell, Richard C. Miller, Michael Pellow, David M. Luskin, Andrew J. John S. Marwell, Mount Kisco Millett, Eileen D. Peterson, Margaret Murphy Mihalick, Andrew J. Morgan, Hadaryah Tebach † * Richardson, M. Catherine * Pruzansky, Joshua M. Purcell, A. Craig TENTH DISTRICT Morril, Mark C. Stanislaus-Fung, Karen Myers, Thomas Virkler, Timothy L. * Rice, Thomas O. Robinson, Derrick J. John H. Gross, Hauppauge Nathanson, Malvina SIXTH DISTRICT O’Neill, Paul J., Jr. Steinberg, Harriette M. Cummings, Patricia A. Stempel, Vincent F., Jr. ELEVENTH DISTRICT * Patterson, Hon. Robert P., Jr. Denton, Christopher Plevan, Bettina B. Walsh, Owen B. Egan, Shirley K. Winkler, James R. David Louis Cohen, Kew Gardens Prowda, Judith B. Fortino, Philip G. Reed, Thomas A. Gorgos, Mark S. ELEVENTH DISTRICT TWELFTH DISTRICT Reimer, Norman L. Lewis, Richard C. Cohen, David Louis Rosenthal, Lesley Friedman † * Madigan, Kathryn Grant Dietz, John R. Lawrence R. Bailey, Jr., Bronx Rosner, Seth May, Michael R. Gutierrez, Richard M. Rothstein, Alan Sheehan, Dennis P. James, Seymour W., Jr. Russell, William T., Jr. Tyler, David A. Lomuscio, Catherine Safer, Jay G. Lonuzzi, John A. MEMBERS-AT-LARGE OF THE SEVENTH DISTRICT Sen, Diana Sagorika Nizin, Leslie S. EXECUTIVE COMMITTEE Brown, T. Andrew Terranova, Arthur N. * Seymour, Whitney North, Jr. Buholtz, Eileen E. Sherwin, Peter J.W. Vitacco, Guy R., Jr. Vincent E. Doyle, III Burke, Philip L. Wimpfheimer, Steven Sigmond, Carol Ann † * Buzard, A. Vincent Timothy J. Fennell Silkenat, James R. Castellano, June M. TWELFTH DISTRICT Smith, Hon. George Bundy Gould, Wendy L. Bailey, Lawrence R., Jr. Hermes Fernandez Spelfogel, Evan J. Harren, Michael T. * Pfeifer, Maxwell S. Spiro, Edward M. Eileen D. Millett Kukuvka, Cynthia M. Quaranta, Hon. Kevin J. Tesser, Lewis Kurland, Harold A. Sands, Jonathan D. David P. Miranda Wachtler, Lauren J. Lawrence, C. Bruce Schwartz, Roy J. Williams, Bryan R. Lightsey, Mary W. Summer, Robert S. Peter J.W. Sherwin Yates, Hon. James A. * Moore, James C. Weinberger, Richard Yavinsky, Michael J. Lauren J. Wachtler * Palermo, Anthony R. OUT-OF-STATE Younger, Stephen P. Schraver, David M. Bartlett, Linda G. Stephen P. Younger Zulack, John F. Smith, Thomas G. Brown, Geraldine Reed SECOND DISTRICT Tilton, Samuel O. Cahn, Jeffrey Barton Adler, Roger B. * Vigdor, Justin L. Elder-Howell, Andrea M. Bonina, Andrea E. * Witmer, G. Robert, Jr. * Fales, Haliburton, II Branda, RoseAnn C. EIGHTH DISTRICT * Walsh, Lawrence E. Cohn, Steven D. Brady, Thomas C. Golinski, Paul A. Chapman, Richard N. † Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | September 2008 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
Fact vs. Fiction: Writing the Facts — Part I
rafting fact sections in per- tone for the rest of the meal. A bland how the case is handled.9 In persua- suasive briefs and objective fact section will make readers lose their sive briefs, stir the readers’ emotions Cmemorandums is an essential appetite. to help them remember the facts.10 skill all lawyers must learn. A case is Choose words with slightly positive or never decided on the law alone but Briefs and Memorandums negative connotations rather than with rather on how law applies to fact.1 The persuasive brief and objective exceedingly strong undertones.11 Given the relationship between law memorandum both follow the same Example (objective): “The eleva- and fact, many judges, professors, and general format. Both have questions tor was poorly maintained. There attorneys believe that the fact sec- presented, a fact section, and a discus- was no warning it was going to tion is the most important part of a sion. But facts in briefs and memoran- break.” brief.2 In a persuasive brief, the fact dums are communicated differently.6 Example (persuasive): “The poorly section “tells the story that makes State the facts neutrally in an objec- maintained elevator broke without the fairness of your client’s position tive memorandum. Take sides in a warning, leaving the eight-year-old evident.”3 Objective memorandums, persuasive brief. In a persuasive brief, child stuck in it for three hours.” prepared as intra-office documents, some facts are emphasized and oth- neutrally present the legally relevant ers de-emphasized, depending on the facts before offering a recommenda- theme. This tactic shouldn’t be used in What persuades is tion. This two-part column offers some objective memorandums.7 In objective tips to writing persuasive and objec- memorandums, the reader shouldn’t storytelling. tive fact sections. know from the facts alone what the lawyer will recommend. In persua- The structure of persuasive and Importance of Facts sive briefs, writers shouldn’t go two objective fact sections also differs. According to John W. Davis, the 1924 sentences without making it obvious Objective memorandums should begin Democratic presidential candidate, which side they represent. In deter- with the procedural history. Persuasive “the statement of the facts is not mere- mining which facts to include in the briefs must first introduce a character ly a part of the argument, it is more objective memorandum, don’t con- with whom the reader can identify and often than not the argument itself. sider whether the fact is favorable to end with the procedural aspects of the A case well stated is a case far more the client but whether the fact itself is case. In neither document should the than half argued.”4 The fact section, necessary to determine how the case or drafter argue facts or reach a legal con- which is read immediately before the issue should be resolved.8 clusion in the fact section. Arguments brief’s argument section, becomes the Example (objective memorandum): and conclusions are reserved for the lens through which readers view the “The defendant appeared at the argument section. argument. plaintiff’s house six times over the A well-written fact section has a course of two weeks.” Presentation of Facts natural progression. It emphasizes the Example (persuasive brief): “The A strong fact section will appeal to client’s humanity and communicates defendant harassed the plaintiff for readers immediately and keep them legally significant and determina- two weeks by showing up at her interested throughout. Selecting which tive facts. Because judges are, or will home six times.” facts to present and their subsequent become, familiar with the pertinent Be aware of emotion-laden facts. order is important for the brief’s per- law, the advocate must demonstrate Facts carrying emotional weight must suasiveness. Because the fact section how the unique facts of the case apply be dealt with carefully, especially in is best told as a story, develop a theme to the law.5 If the brief is a meal, the objective memorandums, and should that can be carried throughout the fact fact section is a first course that sets the be included only when they will affect CONTINUED ON PAGE 54
64 | September 2008 | NYSBA Journal
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