Judges

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?

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.

If you are reading this on an RSS feed or an aggregator, be sure to check out my actual blog to see all of my posts, plus my side-bar information.

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.

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.

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.