Saturday, April 18, 2009

Sometimes you just need to get away from it all

When I started this blog, I promised that it would be a lively place, with lots of posts. I promptly broke that promise and have been blogging infrequently at best. Part of why I broke the promise was because I got a long-term semi-permanent gig, which is every contract lawyer's dream. I'm still my own boss: I can take on other work if I have the time and the desire, I can continue to work from home unless my client wants me in the office, and I have the continued flexibility to deal with the children's needs as they arise. What I don't have any more is time. My time used to be an ebb and flow thing. Some weeks would be insanely crazy when I had a big project, and some weeks would be scarily peaceful, when no clients called. It was during those weeks that I blogged. Now, I'm always busy.

Perhaps if it was only my work that had gotten busy, I could still find time to come to this site and pour my heart out on a regular basis about all the interesting things contract attorneys can do, the hurdles they face, and the problems they can solve. With Murphy Law's precision, however, just as my work amped up, so too did the domestic demands on my time. I call it the curse of affluence.

When I was a child, my immigrant parents hung in there by the skin of their teeth. Our economic situation could best be described in the same terms Mr. Micawber used when explaing the secret of happiness to David Copperfield: "Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery." Translate that fine economic line into dollars, and you have my childhood.

In a way, the absence of money made things simple. My parents struggled, and my sister and I went to school. We had one after school athletic activity and one musical activity, for a total of two hours a week -- and that was it. It helped that my sister and I weren't very gifted when it came to either sports or music. No coach or teacher ever had the urge to try to guilt my overworked and overspent parents into pouring more time and money into anything extracurricular.

Things are different with my children. While my husband and I are not rich (more's the pity), we also are fortunate in that we don't live on the economic razor's edge that plagued my parents. We can afford the (take a deep breath here as I begin my list): indoor soccer, outdoor soccer, baseball, swimming, boys chorus, girls chorus, martial arts, girl scouts, and whatever else that comes along. It takes a bite, but we can afford it.

Things are also different with my children when it comes to talent. They both run like the wind, the boy can hit a ball, the girl can swim like a fish, the boy can punch and kick, and both sing like angels. Neither my husband nor I can quite grasp the genetic source for all these talents, but we are appreciative nevertheless.

So where's the curse part? It sounds so good that they're talented and that we can afford to cultivate those talents. The curse comes with the logistics behind the activities. It's simple math: two children, a minimum of 12 practice and game times scattered throughout the week, and just one of me. I depend heavily -- very heavily -- on carpools, but even with carpools, I spend an inordinate amount of time driving in circles. One memorable day, the driving started at 1 p.m. (picking up and delivering a forgotten music folder) and ended at 8:30 p.m. (when one child's school open house finally wrapped up). In the intervening 7.5 hours, I drove 50 miles, spent 2.5 hours in traffic, rescued a pit bull (don't ask), stuffed various types of unhealthy food into all family members (except for the dog, who got her usual delicious kibble), and transferred 5 children, other than my own, to various destinations.

Days like that (which are frequent enough to justify all the gray hairs I'm sprouting) have two types of fallout. The first, as I noted at the beginning of this post, is that I don't have time to blog. Heck, I barely have time to brush my teeth.

The other fallout is that I become desperate just to get a way from it all.

None of the tasks I do, taken individually, is very arduous. Taken all together, though, they become completely overwhelming. For a long time, I had this fantasy that I got very sick. It was a peculiar sickness, though. It had no symptoms, BUT (and this "but" is the important part) the only way to treat it was for me to stay in bed and have other people feed me. I dreamt this constantly, especially when I was sitting in motionless traffic, worrying about all the kids waiting for me.

One day, while at the bus stop with the other Moms, waiting for the bus to come and the afternoon insanity to begin, I confided my illness fantasy to the group. After everyone was done laughing (and, I must say, sympathizing), one of the Moms turned to me and said, "You don't need to get sick, honey. You need to go to a spa."

Wow! A spa! I was at a spa once, long before I had kids. It was lovely, and I wasn't even that tired when I went there. The room was beautiful. The furnishings were comfortable and sophisticated, the bed was piled with soft blankets and pillows, and the view out the window was verdant and rich. The bathroom had all these lovely products that smelled good and promised to make me soft and beautiful. (Of course, since I hadn't yet had kids, I was already soft and beautiful.) There was a crystal blue swimming pool, surrounded by brilliant green grass. Scattered about were cabanas where you could get a massage. If you were feeling energetic, there was a fully outfitted exercise room and, if you felt decadent, there was a salon with all types of beauty treatments. Being there was a treat for the senses.

Since getting sick is not an option, I've started taking that Mom's advice to heart. Wouldn't it be lovely to get away? I wouldn't want to go on my own, though. For one thing, I'd be lonely, since I'm a sociable creature. Not wanting to go alone, though, doesn't mean I'd want my family with me. Much as I love them, the whole point of the spa would be to get away from the family -- and to let them get a small taste of life without me. Instead, I'd want to go with friends, two or three gals who experience the same stresses I do, and who would appreciate just as much as I do the chance to stay in bed, get massages, get fed, and have fun -- all without having to get sick first.

To feed my fantasy, I check out travel sites. My favorite is Uptake, which has an unusually friendly interface, combining articles (with pictures!), and a search engine that helps me find glorious vacation spots, both with and without kids.

One of these days I'll get to that spa. Right now, though, I just work, drive and dream.

Monday, September 8, 2008


It's like a bad joke: I've been meaning to write this post for weeks, but I never got around to it. Procrastination is one of my besetting sins, and it's a particular plague for self-employed contract attorneys -- especially part-time self-employed contract attorneys.

After all, if you're in a law firm, you go to the office, where everyone around you is working, and you just throw yourself into that billing stream. At home, without that soft peer pressure, it's so much easier to do what you want (after all, the boss isn't watching), and imagine that you can delay your projects indefinitely.

Of course, a lot of legal work is deadline intensive, and it really doesn't matter if anyone is watching you work or not. The clock is still ticking and the court will still rule against you automatically if you miss a deadline.

Fortunately for me, I respond extremely well to fixed deadlines, because I can plan my work towards them. In the old days, pre-kids, I was easily able to do anything but the largest project in the 24 hours before the deadline. After all, who needed sleep? It's a testament to my weird kind of self-discipline and intelligence that (a) I never missed a deadline and (b) I always did, at minimum, a good job. I took on lots of projects and just cycled through them, with each deadline panic, once resolved, giving way to the next deadline panic. The adrenalin rush was wonderful!

Having children rather abruptly changed my approach to drop-dead deadlines. I no longer lived in a world where the only limiting factor to meeting a deadline was sleep. Not only was I too sleep-deprived to contemplate giving up even a minute more to a legal task, I kept worrying about the deadline disaster that would result if, at the last minute, one of my kids got sick. With all the will in the world, it would be impossible to finalize a motion for summary judgment at 3 a.m. with a vomiting baby in the background. (With older kids, I'm less worried about that situation, but I can assure you that one good stomach flu can destroy a very carefully mapped out last-minute plan.)

I needed a plan. Once I had kids, I dealt with deadlines and procrastination by mentally recalibrating time lines. For the last 11 years, my thinking has gone along these lines: If the filing deadline is Friday, my mental deadline has me finalizing the document by Thursday morning. I still work up to the last minute, but it's a fake last minute that has a built-in buffer to ward off the horror of having both a sick child and an imminent, case-ending deadline. It's not a perfect system but, because the risks of failure under this system are real and not imaginary (unlike the "new" deadline, which is imaginary), it works.

The worst problem for me isn't playing little mind-games with imminent filing deadlines (since those always put the fear of God in me). Instead, my professional challenge is dealing with the projects that have no deadlines at all. Because I'm constantly multi-tasking, a no-deadline project is, for me, the functional equivalent of no project at all. There is, after all, always something more pressing in my life: carpools, cooking, cleaning, childcare, elder parent care, systems maintenance (dealing with financial, computer, car, etc., issues), and just a thousand other miscellaneous details that fill a Mom's life. It is these projects that demand real discipline from a self-employed worker.

How do I handle these deadlines? The same way everyone else does. I just do it. I get the kids out of the house, read the paper (online, of course) and eat breakfast. I read some blogs. I put in a load of laundry. I speak with my mother and sister on the phone. I throw the dog for the ball. I dry my hair. And I think about the fact that, deadline or not, if I don't get a research memo to a paying client, he or she is going to be really mad at me. And he or she might never call me again. And he or she might cut my bill. So I'd better get my a** in gear and get that project going. In other words, I create an adrenalin rush for myself. Only this time it's not the rush of beating the clock, it's the panic-filled rush of facing the loss of a good client.

I envy those people who get a project, sit down and get it done. Sadly, neither age nor wisdom has ever changed my basic bio-rhythm, which seems to demand external pressure, rather than internal discipline as the engine for my work. However, what I have learned over the years is that I can use my imagination to create that external pressure, without ever getting myself in the dangerous situation of missing a deadline or letting down a client.

Monday, August 11, 2008


On a regular basis, newspapers, TV broadcasts and magazines (not to mention the blogosphere) are convulsed with stories about judges: Should they be activists or strict constructionists? Is their experience sufficiently broad and deep? Have they published enough? These debates, of course, are about Supreme Court Justices and, occasionally, federal appellate justices. Their rulings have the ability to affect the lives of all Americans, so it's extremely important that we determine what the majority of Americans want from these judges -- and then determine whether the individual candidates satisfy those needs.

Many lawyers, however, when they think of judges on a daily basis, aren't thinking of rarefied jurists on high courts. Instead, they are thinking about the judge in their local superior or district court, the one who is managing their case, who listening to their motion (or opposition) in the first instance, who is overseeing their jury selection, who is listening to their witnesses, and who will ultimately return the ruling that, in 98% of all cases, is the one that sticks. It's the day-to-day judges who matter most to so many of us.

I therefore decided to bend my mind to the very personal task of figuring out what I like and don't like in these judges -- the day-to-day guys and gals who give the thumbs up or thumbs down to so much of my work.

Right off the bat, I like judges who treat me courteously. I think many of them would do well to remember the advice my Mom's grandmother (who grew up in a wealthy European home in the 19th Century) passed on to my Mom regarding servants: "Treat them politely, dear. Remember, they can't answer back."

The same is true, of course, for attorneys faces judges in the courtroom. Until attorneys have the ability to hold judges in contempt, all the power in that room rests with the judge. Given that balance of power, there is no reason in the world for a judge to be rude -- yet so many are. This kind of boorish behavior is inexcusable and, aside from creating feelings of contempt for the man or woman in the robe, it also destroys the respect due to the office.

While I like my judges to be courteous, I also like them to be in charge of their courtroom and of the case. Just as judges fail if they're rude or crude in the courtroom, they also fail if they let attorneys run amok. Lawyers and parties waiting patiently for their turn on the docket sheet shouldn't have to listen to hours of pointless waffle from two attorneys who happen to have a personal bone to pick with each other. It's the judge's responsibility to control this behavior. Absent judicial intervention, the lawyers have no incentive to stop fighting, since there is always the possibility that the last uttered argument or insult will do the trick. Only the judge can halt proceedings before they get out of hand.

The judge's ability to stop things before they get crazy isn't just limited to oral argument. As a contract attorney, I get to work lots of different cases, and I get to see lots of different lawyers go toe-to-toe. There are some lawyers who are naturally aggressive and will fight everything to the death. Get two of these personality types opposing each other on a case, and you will find yourself in situation similar to one on which I once worked.

That long-ago dispute was over an unpaid $26,000 bill. Each side in the case incurred over $250,000 in attorney's fees. The case settled after 3 years for $11,000. It goes without saying that many of those attorney's fees resulted from motions, especially discovery motions. It should have been immediately obvious to the judge that the attorneys involved had no sense of proportion and were bound and determined to abuse the judicial system with myriad picayune motions. A wise jurist would have spelled out some rules -- backed with sanctions -- from the git-go. We had no wise jurists. I made a lot of money off the case (insane litigators are a gold mine for contract attorneys), but I had a bad taste in my mouth about the whole thing.

I'd also like to see judges recognize their limitations -- and in this regard I'm very much a strict constructionist. I've never recovered from the moment, more than 15 years ago, when a judge denied my summary judgment motion with these words: "I know he doesn't have a cause of action, but I think there's something there." How wrong could one judge be about his role in the case? Once he determined that the plaintiff didn't have a cause of action, his responsibility ended. Given the clearly applicable law, the judge's opinion was meaningless. And as it happened, it wasn't only meaningless, it was dead wrong. The case went on for another five years and $1.5 million dollars, only to end with a complete victory on just about the same grounds stated in my original motion for summary judgment.

Judges should determine and apply the law, not listen to their gut feelings. Only in that way can our legal system be reliable and affordable. Loose cannon jurists who take sides because they like one party as a matter of principle, or dislike a lawyer because of his personality, and who allow the law to fall before their prejudices, destroy not only individual cases, but chip away at the credibility of our entire legal system. They should be impeached.

What are your opinions about what judges should and should not do?

Friday, August 1, 2008

Something up with which I will not put

If you're a Winston Churchill fan, you no doubt recognize my post title. Although it may well be apocrypal, many grammarians (or perhaps I should say "grammar rebels") tell of the day Churchill received a manuscript back from his publishing company, only to discover that some editor had turned one of his more elegant sentences into a garbled mess in order to avoid leaving a preposition at the end. The affronted Churchill returned the manuscript after writing a pungent message: "This is something up with which I will not put." (You may also have heard a more vulgar joke on the same topic about the Harvard and/or Yale man, but I'll just link you to that one, rather than reproducing it here.)

Both these stories make a good point: you can easily destroy a good sentence by engaging in all sorts of convoluted stylings aimed at keeping that preposition away from the end of your sentence. Bryan Garner, whose approach to style I so much admire, is adamant that "no prepoposition at the end of a sentence" rule is a pointless relic. I, however, would not be quite so quick to abandon this rule.

One of the things I've discovered in my many years as a legal writer is that, in the first draft at least, it's very useful to make an effort to abide by hoary old grammar rules. Why? Because they force you to consider very carefully the word order in your sentence.

As my children discovered recently when watching Mary Poppins, word order matters. Or have you forgotten the pivotal joke in that movie, a joke that brought down Mr. Banks' career (only to raise it up again at the end):
Bert: Speaking of names, I know a man with a wooden leg named
Uncle Albert: What's the name of his other leg?

Although that joke revolves around a misplaced modifier (which is always one of my favorite grammatical errors because of the humor it usually provides), the principle is the same: put the words in the wrong place in your sentence, and you change your meaning. One of the ways to make quite sure you've got words in their proper order is to follow boring old rules of grammar: don't split your infinitives, don't use passive voice, and don't end the sentence with a preposition.

If you abide by these rules, your sentence may, in the first draft, sound a little awkward, indeed Victorian, but it will make perfect sense. Once you've taken care of the sense, instead of then hoping that the sounds will take care of themselves, you can have some fun massaging your sentence into something more user friendly -- a task that might require you to break some or all of the basic grammar rules. When you do so, however, it will be a conscious effort, and you're unlikely to end up with a garbled mess that defies any attempt to decipher it.

By the way, lest you think I'm advocating rewriting every single sentence in your brief, I'm not. Most sentences write themselves, especially when you're not trying to finesse your way around something troublesome. You need to start paying attention, though, either when you're dealing with very complex concepts or when you (on behalf of your client, of course) are trying to avoid taking responsibility for something unpleasant. Under those circumstances, it's quite common for lawyers to start writing squiggly sentences that have ideas leaking in different directions and no one taking responsibility for anything at all.

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Thursday, July 31, 2008

Doctoring a brief

One of the jobs I like best in my role as a contract lawyer is getting draft briefs from clients and being asked to finalize them. Indeed, if I had my druthers, editing legal briefs would be the only work I do as a contract attorney. The editing process is a wonderful fusion of my skills as a grammarian (learned from my father, a man who kept a dictionary and a style manual by his bed-side); as a Bryan Garner groupie (I read his books; I attend his seminars); and as a lawyer with twenty years of experience at her back.

One of my favorite clients is a brilliant legal thinker and an absolutely terrible writer. Aside from the fact that he is addicted to legalese (mostly in the form of Latinisms, passive voice and redundant phrases), he has a few other twitches. His writing has a Germanic quality, in that he tends to structure sentences from the back to the front, with a lot of interlineated thoughts thrown in almost randomly for good measure. He doesn't believe in breaking ideas down into discrete paragraphs, so his briefs can have paragraphs that run for pages. Also, contrary to my footnote thery, he tends to put his best substantive arguments in the footnotes. His factual statements often follow a chronology known only to him, which makes them hard to follow. (And, speaking of chronology, he likes to throw in a lot of dates, most of which are irrelevant and serve only to confuse the reader.) I can honestly say that each and every one of you would hate to read a brief from this man. I'm certain that judges do.

As I said, though, the man has a brilliant legal mind. If you take the time to deconstruct the brief, to pull out the relevant facts and to analyze the legal arguments, they're usually very exciting documents. I thought I'd share with you how I revise these documents (assuming that I have the time to do a good job).

Aside from my own brain, I have a computer tool that I use to rewrite (and to write) briefs. I own NoteMap, which is an outlining program especially designed for lawyers. I've probably used this program for a decade, and can highly recommend it as an organizational tool for legal writers. (Although I should warn you that LexisNexis bought out CaseSoft, the company that created it, and the price promptly went up.)

What's nice about NoteMap is that you can move ideas around. I'll start off by creating two very simple headings in the outline program (or, as I think of them, bins, since I toss information into them): Facts and Legal Arguments. I then go through every sentence in my client's brief, rewrite it into NoteMap in English, and then drag it to the Facts or the Legal Arguments bin, as appropriate. Within a short time, I have a very basic outline that neatly separates the two major components in any legal brief.

Having down this first, rough break down, I start doing ever smaller break-downs. I like to start with the facts, since knowing the facts well aids my ability to present the legal arguments. This means that my second sort usually consists of organizing the facts chronologically. (Again, my NoteMap program makes this easy by allowing me to click and drag ideas from a dominant position into a subordinate position.)

Bryan Garner makes the point -- and it's the correct point, I think -- that people best understand stories that move forward in time. Ignore such creative movies such as Memento, which follows an amnesiac back into time, or brilliant TV shows such as the famous Seinfeld episode that starts at the end of the story. If you don't have a team of Hollywood script writers behind you, stick with an ordinary chronology.

As you go through your chronology, you may discover, of course, that certain facts group themselves together by concept and create overlapping chronologies. That's okay. Simply create bins for them such as The parties negotiated a new contract and The trial court granted a motion for preliminary injunction. Even if those two events happened more or less simultaneously, with negotiations occurring through the preliminary injunction phase, they're clearly separate factual concepts and should be treated separately. I therefore drag relevant facts into one or the other of those bins and, once within the bin, arrange them chronologically.

After I've ordered the facts to my satisfaction, I turn my attention to the law. Law, of course, should be organized by ideas. By this time, having read and torn apart my client's brief, I should have a good idea of the ideas he is advocating. I'll create bins for those ideas: Standard of review; The trial court erred when it held that the brief was not time barred; Even if the brief was not, in fact, time barred, the trial court nevertheless erred when it . . ., etc. As you can see, these bins are beginning to look remarkably like the Table of Contents in the finished brief.

With my idea bins set up, I use my outlining programming to pick up each of the arguments I copied from my client's brief and toss them into the appropriate bin. Since some ideas are huge, I may discover that a given idea bin itself needs to be broken down some more. For example, in a bin about whether a brief was time-barred, I may discover that my client has six distinct arguments, all of which need their own sub bins, each with its own arguments.

If this isn't making sense, let me explain it using the method I used to teach my kids how to outline. Once they became reasonably conversant with their subject, I had them reel off to me every fact that they could remember. For example, for his George Washington report, my son told me facts that included where Washington was born, when he was born, where he lived, how he served in the British military, how he came to head the American military, the major battles in which he fought, his election as President, and his death. I typed each of those facts into my computer, printed up the resulting page, and attacked it with my scissors so that each fact ended up on its own sheet of paper.

I then got out several envelopes and labeled them: Washington's early life; Washington as a British soldier; Washington as the General in the Revolutionary War; and Washington as President. I had my son go through each slip of paper and put it in the appropriate envelope. We next decided what the correct chronological order was for each envelope. We then went through each envelope, pulling out the little slips of paper, and putting them into chronological order. When they were sorted to our satisfaction, we taped these slips to a fresh sheet of paper in the assigned order. By the end of the process, we ended up with four properly ordered sheets of paper, on each of which were well organized facts supporting the idea on the envelope. Using those sheets as guides, my son quickly wrote a coherent third-grade essay on George Washington.

In other words, using paper, scissors, envelopes and tape, I showed my son how to do exactly what it is I routinely do with my NoteMap program: I sort my ideas.

What usually happens by the end of my sort is that I've thrown out my client's chaff and ended up with a lot of golden wheat, all of it laid out in a coherent manner. I copy the resulting outline into Word Perfect, and turn this outline poetry (as I like to think of it) into legal prose. I often discover, as I write, that I see different relationships between the ideas than I first saw in the outline, and that's okay. That's the creative process at work, and it's easy to do when all the information is in good order and at your finger tips.

At the end of the day (or week or month, depending on the size of the project), I have a beautifully written, well-organized, persuasive brief, that preserves every brilliant thought my client had and that makes these thoughts readily accessible to the court. Briefs that were unintelligible at the beginning, go on to win at the end -- which is a very satisfying outcome for me and my client.

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Monday, July 28, 2008

Citations in footnotes

One of my obsessions is trying to make my briefs as clear as they can possibly be. I believe in the legal arguments I make, and it is important to me that the judge understand those arguments. If my brief is well-organized and elegantly written, I'm certain that the judge will be able to follow my arguments with minimal effort. I may still lose, but I'll at least have lost on the merits, and not because the judge was either exasperated or making wild guesses as to what I said.

One of the tools in my writing arsenal is something I learned from Bryan Garner, who runs LawProse (which I think is the best legal writing seminar provider in America). Garner believes that all case cites should go in footnotes. He claims, rightly, that a string of case cites -- which really amounts to random words and numbers -- interrupts the flow of an argument. Stick them down in a footnote, however, and your argument shines through, unimpeded by random code.

When I pointed out during a seminar that sometimes the case cite information isn't so random, because the Court or the year or even the case name is privotal to the argument, Garner had a simple response: leave that information up in the text.

To give you an idea how this works, let me pull a paragraph from a California Supreme court decision, and then rewrite it with footnotes:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865, where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” [Footnote omitted.] (Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.) Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (See Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42 [“creditor-guarantor relationship was one reasonably expected to be economically advantageous”]; Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 [“it must appear that such (prospective) contract or relationship would otherwise have been entered into”]; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

(From: Youst v. Longo (1987) 43 Cal.3d 64, 71 [729 P.2d 728, 733, 233 Cal.Rptr. 294, 298].)

Quick. Tell me what that means!

I don't know about you, but my eyes rolled back into my head when I tried to read that wall of text interspersed with numbers. It is a royal and time-consuming pain to pick out the substantive information dotted throughout that monolithic paragraph. And when you read as many cases as I do in any given day (since my practice is limited to research and writing), those royal pains add up quickly.

Here is the same paragraph rewritten to exclude all case cites. As you can see, it's easier on the eye and easier on the brain:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson, (Fn1) where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” (Fn2) [Footnote omitted.] Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (Fn3)


Fn1: Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865

Fn2: Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.

Fn3: See Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42 [“creditor-guarantor relationship was one reasonably expected to be economically advantageous”]; Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 [“it must appear that such (prospective) contract or relationship would otherwise have been entered into”]; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

I don't know about you, but getting rid of the code (and that is, after all, what case citations are) makes the Court's actual analysis pop out. One can quickly see that this paragraph stands for the principle that, in California, the law has always been that a plaintiff cannot recover for interference with prospective economic advantage, unless he can show that it was reasonably probable that he would, in fact, have achieved that advantage.

Now, if you happen to think the language in Worldwide or Wilson or Campbell is important, you don't have to bury those quotations in the footnote along with the cites. Try this on for size:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson, (Fn1) where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” (Fn2) [Footnote omitted.]

Past decisions have stated this principle in varying ways as, for example, (a) the “creditor-guarantor relationship was one reasonably expected to be economically advantageous;” (Fn3) or (b) “it must appear that such (prospective) contract or relationship would otherwise have been entered into;” (Fn4) or (c) “facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued.” (Fn5) No matter how its stated, its clear that these courts generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (Fn3)

Fn1: Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865

Fn2: Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.

Fn3: Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42

Fn4: Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519

Fn5: Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

I'll be the first to acknowledge that this last effort isn't as elegant as it could be, but it works for a first pass: it makes every point the California Supreme Court made, only in a way that is much easier on the eye. If I were actually writing a brief, I'd clean it up even more, but I think you're catching my drift without my going to that extra effort.

Although this is a better way to write briefs, be warned that some judges resist it. They've been burned so often by attorneys who hide unpleasant facts or arguments in footnotes (especially footnotes printed in teeny-weeny font), that they are hostile to any footnotes, regardless of the way in which they are used. Garner's rule, however, should quickly sway these judges: if it matters, put it in the brief; if it's just secondary information, put it in the footnotes. Judges will quickly learn that your briefs are easy on the eye and easy on the brain.

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Friday, July 25, 2008

Practice development

One of the things you discover when you leave the cocoon of a law firm is the fact it's up to you to bring in clients. No longer does the firm's representation precede you nor can you continue to rely on that single rainmaking partner to ensure that you have work to do. It's all up to you now, kid.

I have to admit that I had it easy when I first started. I already had a client lined up (an attorney who is my client to this day) and my soon-to-be-former law firm had promised me work as well. This meant that I wasn't desperately scrabbling for work and could afford to be a little discriminating about getting new clients.

Over the years, I've gained clients in several ways, which I list below (in no particular order);

Friends: I'm a very sociable person. I was friends with the lawyers in my old firm and, as I worked with new firms, I made friends with the lawyers there too, and the paralegals and secretaries. At parties, I'd chit-chat and was always delighted to find other lawyers or legal professionals. What this meant was that, when any of these lawyers or paralegals or secretaries realized that a case could use a little extra help, they thought of me. For this reason, two of my best and favorite clients are friends from the law firm in which I once worked; and one of my good clients is a friend I made since she worked as an attorney at a firm for which I did contract work.

Legal newspaper advertisements: I've never actually placed a newspaper advertisement, but I have answered a few. I don't know what the situation is now, but when I was looking at advertisements, there weren't any for contract attorneys. Instead, the legal papers had ads for full-time associate positions. An ad like that instantly clues in you to the fact that the law firm probably has more work than it can handle. I contacted these firms, and explained that, while I was not looking for full-time employment, I could help them until they found the perfect associate -- with no overhead expenses for them. I got several jobs this way, and two of the firms never did hire a permanent associate. Instead, they just kept using me. In the 21st Century of this approach, I've also found clients using Craig's List postings.

Opposing counsel: Believe it or not, several of my clients started out as opposing counsel on a case. I'm a very solid writer and it often happened that, when I signed on to help out one attorney, the opposing counsel noticed that the briefs suddenly become much better. Realizing that I wasn't their opponent's full-time employee, when the case ended, a few of them approached me about doing work for them. If I liked their litigation style -- hard-fighting, but honorable -- I'd take the job.

Co-Counsel: It's not unusual for me to provide contract services for a law firm that has co-counsel on a case. Then, in the same way that opposing counsel noticed my writing style, so too did various co-counsels and, voila!, new clients.

The internet: Truth to tell, since I became a full-time Mom and part-time attorney, I haven't been looking for clients. My current clients provide me with all the work I can handle. Nevertheless, I do pay attention to trends out there, and there's absolutely no doubt that the internet is becoming a major player in the legal job market. It won't replace the personal relationships I've cultivated over the years, but it sure does make it easier for the contract attorney looking for a paying job.

I've already listed Craig's List as a good way to find work. Craig's List, of course, is simply a giant bulletin board, and it has the virtue of being very casual, without any complicated sign-up rituals before you can take advantage of its services. There are sites that are dedicated to connecting employers and employees, but they're a little more complicated. Examples of those sites are HireTrade and Monster.

Finally, the internet offers networking sites that aren't necessarily keyed directly to employment, but that nevertheless can lead to clients. Examples of this are Legal OnRamp, LinkedIn (which is slowly catching up when it comes to lawyers), and the ubiquitous facebook. If you're younger than I am, I bet you know at least 10 other social and professional networking sites I haven't even heard of. Use them all if you're looking for work.

The work is always out there. Once you make contact, you simply have to explain to people the huge economic benefits that go with hiring a contract attorney. (Although I suspect more people know these benefits now than did when I first started.) A contract attorney is not an employee. There is no overhead -- no salary, no benefits, no carrying during the slack time. You use a contract attorney when you need to him, and wave a polite good-bye when you don't. As for prospective client's inevitable concerns about oversight and reliability -- well, it's up to you, probably through your networking, to show that this isn't a real worry at all.

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Thursday, July 24, 2008

Dogs & children in the home office

This is the home office dog after the home office 10 year old daughter has had her way with her. The home office dog has occasionally distracted me from my work because she showed up at my desk outfitted in a pink feather boa or butterfly wings. All in a days work for her and for me.
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Running a virtual office *UPDATED*

One of the glorious things about being a contract attorney nowadays (or, indeed, a solo practitioner generally) is the virtual office. All the infrastructure that used to be a costly requirement for a formal office -- secretary, computer, printer, fax machine, copier, paralegal -- is reduced to a computer, a printer and a telephone.

I don't need to tell you about the computer or modem, obviously. If you're reading this post, you know about them already. Nor should I need to remind you that you don't just want a plain old printer printer. Instead, you want an all in one that combines printing, faxing and scanning capabilities.

This last, incidentally, is becoming increasingly important. More and more often, clients who used to fax or mail to me the documents they receive from the Court or opposing counsel, scan these same documents and simply email them to me. I love it. I'm no longer buried under mountains of paper (because, as you recall, I don't have a secretary who does my filing). Instead, I have neat, easily accessible computer files that contain the hundreds, or even thousands, of pages my clients send me.

The above is a good explanation for why my clients (all of whom are lawyers) need scanners. The fact is, though, that I find I need my scanner too. When my clients hand me a big paper folder and ask me to prepare a motion for summary judgment or summary adjudication, or an appellate brief or writ, I go through the folder and scan all the documents I need. I can then arrange them in whatever order is necessary and, using Adobe, bate stamp the pages. (It's actually called "page numbering" in Adobe, but I think of it as Bate Stamping.) That way, as I write, I can easily insert the required page sites. I also don't have to riffle through hundreds of pages. Instead, I can just have them visible on the screen next to the document on which I'm working.

But that's equipment. What about people? The miracle of the internet is such that you can hire support staff as easily as your law firm clients hired you. Here's an example of a paralegal organization that will also do large document management. I've worked with organizations like this before and I can tell you that, without exception, I've been extremely pleased with the work product. Just as you and I are, these paralegals and document managers are professionals. They care about their work and they care about their reputations.

If your typing skills are limited, or you're simply overwhelmed by paper work, you can also find word processors on line. My sister, for example, runs a home based business editing and typing documents. As we do, she relies on emails, scanning, faxes and telephones to get the job done. Her clients are loyal, and that speaks well to her reliability. (I'll speak well about it too, but I'm her sister, so you have to assume bias.)

Need help filing or serving documents in California? Try Castle Copy. I used them when I had to prepare and serve multiple Calif. C.C.P. sec. 1985.3 subpoenas duces tecums, and they were wonderful. They did all the worrying about the proper procedure for that darn ten day notice and for actually getting the documents (and California lawyers, you know what I'm talking about). I recommend them very highly, but I'm sure you can find other equally good filing/service organizations.

As you can see, working out of your home and taking advantage of available technology and all the other independent businesses out there, there is nothing to prevent you from functioning in the same way as a large office with vast numbers of support people. Best of all, these are costs that, once incurred, can be passed on directly to your client. Everybody benefits, because there are no fixed carrying costs -- there just a one time price for a service directly rendered. What could be better?

UPDATE: Since writing the above, I've learned about a gal who provides editing services that can be used by those lawyers who feel that their writing could use a little, how shall I put this tactfully?, tightening up (and, yes, you know who you are). This lady provides a similar service and I'm sure you can find some more if you look.

Wednesday, July 23, 2008

Tips for keeping your blog honest when it comes to copyrights

This post isn't strictly about being a contract attorney. Heck, it has nothing whatsoever to do with being a contract attorney, but it does touch on a nexus between law and blogging: image use.

I bet that some of you with blogs shop around the internet for perfect pictures to illustrate a post and then blithely paste in those images using the handy-dandy picture uploader that comes with your blog. What you may not have realized is that lots of those pictures are copyrighted, especially the ones from the major news outlets.

If you use one of those copyrighted images and you're really lucky, the copyright holder won't notice that you're using that image and will leave you alone. (This happens a lot with small bloggers who function below the radar.) The greater your traffic, though, the smaller your luck will be. If your traffic is sucking up the copyright holder's bandwidth, the copyright holder might simply shut you down. But if you're really unlucky, you may find yourself on the receiving end of a cease and desist order.

So, what's a blogger who doesn't want to violate copyright to do? Simple. Find non-copyrighted images on the internet. Here are three of my favorites sites:
  1. Wiki Commons (copyright free images galore)
  2. The Best Copyright-Free Photo Libraries (a database of places with copyright free images)
  3. U.S. Government Photos and Graphics (an index that leads you to a fairly large number of free government images)
A Google search for "copyright free images" should lead you to other sources.

And of course, you're always free to upload your own images. If you use Blogger, Picasa is the obvious choice for image management, because it will post pictures directly to your blog. I like Picasa anyway, because it is, bar none, the easiest interface I've seen for organizing photos. So, if you want to blog about your recent business trip or family vacation, post those photos with impunity -- although beware that the more photos you upload, the more slowly your site will load when readers come a'callin'.

All in all, steering clear of copyrighted or trademarked material is a very small effort, but the return is that you can blog with a clear conscience and without the constant worry that someone's going to get you.

By the way, while I meant this post to be strictly about images, it occurred to me that it's worth reminding all of you, lawyers and non-lawyers alike, that fair use rules apply to blogs. A lot of people believe that, because material can easily be cut from one site and pasted into another, copyright rules don't apply. Wrong! They do.

Just as I described above, with regard to images, you can get lucky or get in big trouble if you freely borrow someones writing, especially if you do so without attribution. Fortunately, Nolo, the self-help legal site, has a nice little discussion about the fair use doctrine which, for the average blogger, is probably all you need to know. (Indeed, it has lots of nice discussions about copyright issues that may affect bloggers and is, as always, a wonderful resource.)

Templates for the home office

When I left my full time job at one of the big firms, I left behind a full time secretary and a word processing department. I wasn't too worried, because I'd always typed up my own briefs. However, I discovered that the problem wasn't the typing, it was the formating. In my law firm days, I'd type in the text, and my secretary would carefully align it to print it up on expensive pre-printed pleading paper. Or the word process department would insert custom-made pleading code at the front of the document and then, ever so carefully, line up all the text.

When I went out on my own, I had to figure out how to do these things myself. It was instantly obvious to me that I was not going to spend money on expensive pre-printed pleading paper. I could often take some from my clients -- it was, after all, their pleadings I was printing -- but that was cumbersome. Also, I hated the waste, since it was very difficult to get the lines to match, and my aesthetic sensibility was deeply offended when they did not.

What I ended up doing in the beginning was copying those custom-made codes from willing clients and applying them to my own documents. It wasn't a great solution because I still had a hard time getting things to line up. Sometimes it would take me an hour (not billed to the client) to get the darn thing to look right. Technology, though, has solved these problems, especially if, like me, you rely primarily on WordPerfect to prepare your pleadings. (Although, sadly, with the passing years more and more of my clients have gone to Word, since it automatically comes with the computers they buy.)

WordPerfect has a wonderful little macro entitled "Pleading." Once you've selected that macro, an easy-to-understand little wizard will walk you through the process. In just one box, it asks how many lines you want on the left and the right, what margins you want, how high the line numbering should go, what the spacing should be, what font, what justification, and what type of page numbering.

Answer all the questions and it automatically generates a perfect pleading page every time. If you stick to the line spacing you selected in the first place (and if you know how to toggle back and forth between single space, for quotations, and double space, as I do), your document will always align perfectly and it will look beautiful.

MS Word, typically, is more difficult. (As I've always said, Word is easy to learn and hard to use.) Some Word versions come with a Wizard that includes pleadings (which you'll find under File -> New), but it's an incredibly rigid device. It forces the user into certain parameters that almost never match my own requirements. To change the margins, the number of lines, the space allocated for the case caption -- these are all incredibly challenging tasks, that suck up enormous amounts of time.

I've actually found it easier simply to go to Word's legal template site and look for a pre-formatted pleading template that suits my particular needs. They're seldom as elegant as anything I would design for myself on WordPerfect, but they get the job done.

I suspect a lot of this sounds very fussy to you, but I think it makes a difference. When the judge sees a beautifully formatted pleading, with the lines matching and the text nicely balanced, he or she thinks (a) this is a quality law firm and (b) this is easy on my eyes. Both of those thoughts, I believe, provide a significant subliminal advantage for the attorney submitting the beautiful brief.

Tuesday, July 22, 2008

The contract lawyer's library

When I started working as a contract attorney, law firms were just starting to have in-house email. One of my friends had an account on some long-gone ISP, and couldn't find the words to explain to me precisely what it was he was doing. Even if the internet existed in those dead and gone days, I knew nothing about it, and it was not yet a useful tool for anybody but the geekiest.

For me, legal research meant arming myself with a well-funded copy card, boarding BART, and heading to the San Francisco Bar Association's law library in the historic Monadnock Building. For particularly sticky research projects, I'd get off BART a couple of stops early and go to the better stocked library at Hastings Law School.

Trips home could be tiring, as I'd be weighed down with about a hundred pounds of photocopied pages, not to mention the guilt of all that wasted paper. What all of this meant was that, despite the home office, I wasn't home much.

Things changed when computers started having affordable CD drives. (And I bet many of you remember the times before, when loading a new software meant feeding in up to 50 floppy disks.)

I immediately jumped on the opportunity to get law libraries on CDs. These were three disk sets that were updated monthly. The currency of cases could be a little worrisome by the end of the month, but it was wonderful to sit at my desk, in my home, doing legal research, just as if I was a big time attorney with access to Lexis or Westlaw (which were still on dedicated computers, not on the internet).

Things only got better when Lexis went on line. I was one of the first to sign up. While I'd never liked Lexis (and I still don't), I was thrilled to have instant access to current California cases and, even better, the "push of a button" ability to Shepardize my cites. A lot of the stress went out of my practice at that moment.

Eventually Westlaw went on line too. I actually thought long and hard about signing up for it, since it was (and is) significantly more expensive than Lexis, but I simply could not resist the lure of the key number system. For that reason, I have a Westlaw account to this day. I've discovered that, for my day to day practice, a limited account suits me just fine.

The databases I use are California cases, the Rutter Group, and California Trial Court Filings. The latter is a fairly new database that has complaints and points and authorities that lawyers have filed in courts throughout California (although they're very heavy on Southern California filings). I find this database extremely useful, since it saves me from having to reinvent the wheel everytime I write something. I never rely blindly on anything these briefs say, but they're a very useful short cut to procedure, forms, and both general and specific issues. Incidentally, Lexis has a similar database.

If I have to do federal or out-of-state research, my clients are usually very agreeable about giving me access to their Lexis or Westlaw. They know that I won't abuse the privilege, but will use those passwords only for the client's specific research project.

Another wonderful tool is the internet itself. As with the Calif. Trial Court Filings database, I never accept anything I find this way at face value. Instead, I use it as a shortcut to consolidate information that I then check against reliable sources. Still, I do assume that Court websites are reliable, and if they say "X" as to their own practices and procedures, I believe that "X" is true.

Looking back over the years, I feel singularly blessed to be a solo attorney in cyber times. The research options available to me now were simply unimaginable back when I started. Without ever leaving my home (and dog), I can conduct legal research into every area of the law, nationwide. And my research is more comprehensive and reliable than it could possibly be 20 years ago. Frankly, without the internet, it's doubtful that I could maintain my simultaneous existence as a part-time lawyer and full-time mother.

The office dog

Every home office should have a pet. The little lady in the photo is not the dog who inspired me to leave my old law firm and set up a home office, but she is the current office dog, and a very wonderful one indeed. She's part Chihuahua and part Heeler, so the kids and I have decided that she should more properly be known as a Heehuahua. Typical for a mutt, she is an absolutely delightful animal and a joy to have around when I'm home alone (not that I'm home alone much this summer).
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Getting past the flake factor

I don't know if this is the case anymore, but when I started working as a contract attorney back in 1991, one of the biggest hurdles facing me was what I called the "flake factor." Back then, the vast majority of attorneys to take on the job of contract work were people who simply could not hold a job in a regular law firm. They had problems ranging from personality disorders to substance abuse problems to sheer incompetence. Those law firms that were brave enough to hire them on a contract basis discovered that they couldn't meet deadlines, failed to show up at hearings, and were abusive at depositions.

I was fortunate enough to overcome the flake factor in a single easy step. I was gainfully employed at my old law firm when I made a conscious decision to become a career contract attorney. I discovered that I had no knack whatsoever for corporate politics, and that I found the document review niche in which I'd found myself paralytically boring. Most importantly, I wanted a dog. Working out of my home, doing the research and writing I love so much seemed to be the perfect option, especially since my typing skills and the increasing affordability of personal computers meant that I could give my clients finished products (more on that in another post) without using their secretaries or needing a secretary of my own.

All of this meant that I left my law firm on my own terms, and smelling like a rose. The firm would have kept me on full time if I hadn't served notice. Even more importantly, because I knew about the cases that were in play, and because I was a good and reliable attorney, my old law firm continued to give me work on a contract basis after a I left. It wasn't a lot of work, and it didn't last more than a year, but it was more than enough to establish my bona fides as a reliable attorney. When I went looking for new clients, I was always sure to let them know that I was still working for my old firm. That firm still trusted me.

Nowadays, I prove my bona fides the old fashioned way -- by doing a good job for any new clients who come along. I arrive on time for appointments, keep my clients posted on a daily (or every other day) basis about my progress on the project, and hand in my assignments on time. Indeed, I hand them in well in advance of the time to ensure that, if I've erred, any mistakes I've made can be corrected before the deadline (and there's always a deadline) gets too close.

What is a contract attorney?

I've been a contract attorney since 1991. When I first started, the whole concept was fairly new, and people would routinely ask me if I wrote contracts. No, I'd explain, I'm actually a litigator and having nothing to do with drafting contracts. In fact, I come along and try to pick up the pieces after things have fallen apart. What I do, I told them (and have been telling them for 17 years), is provide legal research and writing services to small and mid-size law firms. I handle general business litigation, and will work on divorce or criminal cases only under duress (or if a really good friend asks me for help).

As a contract attorney for 17 years (which is, I suspect, longer than most contract attorneys have been working), I've garnered a fair bit of experience about practice development, insurance, office set up, legal research options, parenting with a practice in the background, etc. I hope to use this blog to develop those themes.

As it is, right now, I have both parenting and practice to do, so I'll sign off. Please check back as I can guarantee you that this will be a well cultivated blog spot.