Trying a Case and Winning It: The Jury Perspective Method
We generally win cases, and many have asked how it’s done. While this advice may appear to be directed to attorneys, it’s actually for our clients. Everyone gets emotionally involved in a case, and that’s one of the main reasons to hire a lawyer. Plus, lawyers know the Court’s procedures, and they can take the day-to-day worries of litigation off your hands. But every client, at one time or another, wants to do it on their own. In a nutshell, here’s how:
Framing the issue is perhaps the most important aspect of trying a case. Try not to accept the other party’s version of the lawsuit, and instead look at it not from your perspective, but the way the jury is going to look at it. Before we start a case, we pull the jury instructions we expect the judge to give. Since that’s what you have to prove at the end of the case at trial, that’s what guides us throughout the case – through discovery and depositions, motions and ultimately trying the case.
Match up the documents and testimony you have on your side of the case to the elements of proof in the jury instructions. Since jury instructions are written for everyday people to understand, there’s not a lot of “legal-ese” in them. Once you have your proof lined up, you’re ready to go to trial. Now, you have to learn the evidence rules. Matlock, LA Law and Perry Mason are not good guides for how it’s really done. Take a class or go to court and watch – the latter is the fastest way to learn, and while you won’t understand everything, you’ll see how the most common objections are handled and argued.
Finally, once you win your case, you’ve got to collect on your judgment. That’s the really hard part. Enforcing a judgment is a procedural nightmare. If you haven’t hired a lawyer yet, now’s the time. Unless you can get the other party to just write you a check, you’ll have lots of paperwork to fill out.
Of course, over 95% of all cases settle, so hopefully you won’t have to go though the trial and judgment collection portions of litigation. Remember, though, that settlements are compromises, and compromises means everyone goes away with less than they really wanted.
[thanks to ell brown and j. craig williams via cc]
Value Billing vs Hourly Billing: Which Way is Best For You?
I promised David at EthicalEsq that I would respond to this post of his today. In a response to my previous post on value billing, David argues:
There are a lot of problems with the billable hours system, but most of them are the result of abuses rather than of the inherent nature of using hourly billing. In determining the reasonableness of a fee, therefore, the legal profession has attempted to avoid the worse distortions from hourly billing by not fully charging for hours spent “getting up to speed” in an unfamiliar area of law. The client rightfully expects expertise and needs to be informed by the ethical lawyer when he or she is not yet fully competent in a particular legal subject.
The client also rightfully expects to pay a fee that corresponds — at least roughly — to the amount of time spent by the lawyer. And, the honest fiduciary should let the client know approximately how much work is involved. Some sophisticated clients might want to experiment with or negotiate for some kind of value-related fee. But no sophisticate would say “I know you’ll only spend a few minutes on this, but it’s worth millions to me, so here’s a seven-figure check.” Instead, the savvy client would negotiate for, or shop around for, a more competitive fee, no matter the “value” of the result.
David and I both agree on quite a few things, the primary one being that a lawyer should educate his or her client up front about the basis for the fee and give them an estimate of the range of costs and outcomes. However, I feel (unlike David) that the billable hour system is the problem, for both lawyers and clients. The best indictment of the billable hour that I’ve found on the web is in this article where the author writes:
The billable hour, a practice used only since the early 1960s, has become an artificial device that ill serves both professionals and clients. It divides the time of the accountant and lawyer and consultant into parts, turns each professional into a bookkeeper, and creates such profound guilt for every working hour that’s not billable that important non-billable firm needs are inadequately addressed. It affords the opportunity for the worst kinds of excess, such as padding hours, thereby increasing revenue without supplying value – a short-sighted practice bound to backfire. It makes no distinction between the hour spent on trivial activities and the hour spent on substantive matters. Moreover, if the client perceives that there is no added value in the hourly bill, the general practice is to renegotiate the fee, which is becoming a common practice in today’s competitive environment – and makes a mockery of hourly billing. It’s such an anachronism, and so entrenched, that it precludes such rational billing approaches as value added and enhanced worth or contribution to a client’s business, neither of which is best calculated by the hour. As one sage put it, it’s a virtual cartel in which every firm seems to arrive at the same billing rate, even though quality of service is not consistent from one firm to another. Or even from one partner to another in the same firm.
How many other products are bought this way? My wife and I are going to be building a new home this year. We were given a choice by our contractor to pay a set price or be charged on a “time and materials” basis. We chose the former. I don’t care how much my contractor profits on the job so long as I get a quality home for a price I’m willing to pay. To use another example, should I agree to buy a car at $200.00 per hour multiplied by the time taken to build it? If I get a lazy shift the day my car rolls down the line, should I expect pay more than my neighbor who bought the same car built by a more efficient crew for thousands less?
The Illinois Supreme Court requires lawyers to adhere to the code of ethics. Rules of Professional Conduct, Rule 1.5 (which David quotes in part in his post) states:
Factors to be considered as guides in determining the reasonableness of a fee include the following:
- The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly.
- The likelihood that the acceptance of the particular employment would preclude other employment by the lawyer.
- The fee customarily charged in the locality for similar legal services.
- The amount involved and results obtained.
- The time limitations imposed by the client or by circumstances.
- The nature and length of the professional relationship with the client.
- The experience, reputation and ability of the lawyer or lawyers performing the services.
- Whether the fee is fixed or contingent.
Only one of the thirteen underlined factors speak to the time spent on the task. I argue that many of the other factors speak to the value received by the client. In the end, I think David and I both agree that a lawyer should charge a fair fee. In value billing, what is “fair” is in the eyes of the client. In hourly billing, what is “fair” is in the eyes of the lawyer. Which is a better way to serve your clients?
I do know this, I will not be offering my clients the option to choose between hourly and value billing. I refuse to perpetuate a system that allows me to charge more to a given client the less efficient I am. My prospective customers will have the choice to use me and my value billing system – or they can go to a “traditional” lawyer who bills by the hour. As my site says: “No more stinkin’ timesheets.”
[thanks to aaron geller and matthew homan via cc]
How Legal Blog Writing Can Help Build Your Law Practice
The plan is to use the blog as a motivator for building a law practice. Not just one that makes money, but one that looks forward, leverages technology, and anticipates new trends. If you will, the law firm of the future. That said, I am currently a solo practitioner. What I know is that I want to grow my business. I don’t know whether that means recruiting partners, hiring paralegals or associates, or adding other staff. I don’t know whether that means growing the business physically, virtually or a combination of both.
So, how will a blog help grow a law practice? The idea is to write about one thing at the start of each work day that is critical to building the business. I have a vision for building a law practice. One that provides great quality, leverages technology, and emphasizes customer service.
I imagine that this is how IBM started. The founder of IBM, Tom Watson Sr, as quoted in The E-Myth Revisited, described how IBM built its success:
“IBM is what it is today for three special reasons. The first reason is that, at the very beginning, I had a very clear picture of what the company would look like when it was finally done. You might say I had a model in my mind of what it would look like when the dream – my vision – was in place.
“The second reason was that once I had that picture, I then asked myself how a company which looked like that would have to act. I then created a picture of how IBM would act when it was finally done.
“The third reason IBM has been so successful was that once I had a picture of how IBM would look like when the dream was in place and how such a company would have to act, I then realized that, unless we began to act that way from the very beginning, we would never get there.
“In other words, I realized that for IBM to become a great company it would have to act like a great company long before it ever became one.
“From the very outset, IBM was fashioned after the template of my vision. And each and every day we attempted to model the company after that template. At the end of each day, we asked ourselves how well we did, and discovered the disparity between where we were and where we had committed ourselves to be, and, at the start of the following day, set out to make up for the difference.
“Every day at IBM was a day devoted to business development, not doing business. We didn’t do business at IBM, we built one.”
The promise I’m making is to regularly write about one new thing that would help build a law practice. I plan to focus on five separate areas: legal services (product quality and packaging), business development (marketing and sales), office management (technology, systems, knowledge management), recruiting (virtual and real team building), and finance (billing rates, pricing models, cash flow).
My hope is that by writing this blog I will move my business forward and inspire others to do the same. I also want to encourage others to share their thoughts on growing a law practice, by posting comments on this blog.
[thanks to marcin wickary and roger glovsky via cc]
