20 things lawyers need to know in 2011

Who’s the next potential U.S. Supreme Court justice on Obama’s list? Why does your firm need a social media policy – and an employee handbook? You will find the answers to these questions and more in this year’s edition of “20 Things Lawyers Need to Know,” complied by Lawyers USA, Lawyers Weekly’s national sister paper. From the hottest technology tools to the latest tips for marketing your practice, we give you the insight you need to run a better law practice in the year ahead.  

1

Future of arbitration in U.S. Supreme Court’s hands

If litigation attorneys pay attention to only one U.S. Supreme Court case this term, they should watch AT&T Mobility v. Concepcion.

That case could dramatically alter the future of consumer arbitration.

“The $64,000 question – probably the $64 billion question – is really AT&T Mobility,” said Carter G. Phillips, managing partner of the Washington, D.C., office of Sidley Austin.

In AT&T, the Court will decide whether the Federal Arbitration Act preempts a state from conditioning the enforcement of an arbitration agreement on the availability of class-wide arbitration.

The plaintiffs in this class action alleged that AT&T fraudulently offered a “free” cell phone to anyone who signed up for its service. In actuality, the plaintiffs claimed, the phone company charged new subscribers sales tax on the retail value of each “free” phone.

The company sought to enforce a mandatory arbitration clause in its consumer contract, which also barred class actions. But the 9th Circuit ruled that the arbitration clause was unconscionable under California law because it precluded class-wide arbitration.

The Supreme Court agreed to hear the case, and oral arguments took place this month.

Attorneys representing both businesses and consumers say that the court’s ruling will have a major impact on consumer class action litigation, no matter which side the court favors.

“I do think that [the] survival of consumer-based arbitration is going to hang in the balance” of the court’s ruling, Phillips said. “No [company] is going to enter into an agreement where they think there is a risk that they are going to end up arbitrating small claims into multi-million- or tens-of-million-dollar claims and have no judicial review on the end to review what the arbitrator has done.”

But consumer advocates say a ruling in AT&T’s favor would permit companies to avoid liability under state consumer protection law by simply drafting class action bans in their arbitration agreements.

“If [AT&T] wins the ruling [the] Supreme Court will give corporations the complete power to undermine and gut the consumer protection laws,” said F. Paul Bland, Jr., senior attorney at the public interest law firm Public Justice.

– By KIMBERLY ATKINS

2

Why your firm needs a social media policy

With lawyers now fully embracing blogging, texting, Facebooking and tweeting with friends, clients, colleagues and judges, your law firm can no longer afford not to have a social media policy.

Seventy percent of lawyers of all ages, and 86 percent of lawyers between the ages of 25 to 35, use social media, according to a LexisNexis survey from September 2009.

“Social media is just that – social,” says Gina Rubel, an attorney and president of Furia Rubel Communications, a public relations and marketing firm in Philadelphia. “If people are going to mention the name of your company and associate themselves with you online in a public forum, then every company should have a policy.”

It may be contained in only a few paragraphs, Rubel says, but your policy should detail acceptable uses of social networking and address unique ethical issues for lawyers.

A place to start is http://socialmedia.policytool.net/, which creates a policy based on your responses to a few questions, says Paul Klenck, a Chicago attorney who spoke at the ABA annual conference on this topic. A law firm can then further tailor it to its own tastes.

You should think of a social media policy as a way to provide reminders about policies that already exist. For example, a policy should warn against disclosing confidential client information through social media tools.

“That’s not new – we never disclose confidential client information. But [a policy brings] an awareness that sometimes we can send out a 140-character tweet without thinking, because of the casual nature and ease of social networking,” says Patrick DiDomenico, chief knowledge officer at Gibbons P.C. in Newark, N.J., who writes the firm’s social media policies and trains its lawyers on how not to violate them.

He also recommends that a policy warn lawyers to assume everything they do on social media is public. Conducting trainings about social media and sharing some of the many social media gaffes by lawyers, judges and jurors can bring an abstract policy to life, DiDomenico adds.

“Even if you’re publishing what you believe is in a semi-private area, it is still public to the members of that group,” he says.

Whether to prohibit specific activities, like friending opposing counsel or answering legal questions online, will depend on the firm’s culture and jurisdiction-specific rules, such as Florida’s ban on judges friending lawyers who appear before them.

“Many law firms say you cannot be a friend to a client; some say absolutely friend them so you can keep on top of what they are doing,” Rubel says.

The overarching rule, DiDomenico says, is that your policy should embody the common-sense admonitions your mother taught you: “Behave yourself. Don’t embarrass yourself. Be aware that the things you say and the pictures you publish can impact your reputation and the reputation of the firm.”

– By SYLVIA HSIEH

3

Get more out of LinkedIn, Twitter and Facebook

Many lawyers still aren’t making the most of their professional presence on social media sites. Sprucing up your profile on LinkedIn, adding some personal flair on Twitter or creating a Facebook page for your firm are a few ways to get more out of your online presence.

Here are some suggestions from the experts:

• Beef up your profile. Filling in your profile is a good way to get noticed because Google and other search engines will pick up on that content.

The summary section that describes what you do should include “as much information as your bar ethics rules allow,” said John Reed, a legal marketing consultant in Detroit.

Your profile should contain enough information that a person could hold a conversation with you, said Larry Bodine, a law firm marketing consultant in Glen Ellyn, Ill.

• Throw in something personal. Twitter is designed to be a conversation starter and function on more of a personal level, so if you have a favorite sport or hobby, throw that into one of your tweets.

“It makes you look real, as opposed to someone who will just do self-promotional tweets all the time,” said Jay Jaffe of Jaffe PR in Washington, D.C.

You can integrate your website, blog and Twitter page with your LinkedIn profile by adding those sites to your profile.

However, avoid controversial statements or humor that could be taken the wrong way, Jaffe warned.

• Join a group. Joining groups on LinkedIn related to your practice area or your clients’ industry can provide new connections and help cement your expertise in an area.

Through these groups, you can then post a question or join discussions and let people know about events or other activities you’re involved in.

If you find existing groups overly self-promoting, you can establish private groups.

“One way to add value is to introduce clients to other clients who may be able to do business together,” Reed suggested.

• Get recommended. LinkedIn allows you to get recommendations from others on your profile.

“If you’re a small firm and you just got a wonderful result for your client, ask the client to recommend you,” Bodine said.

But don’t automatically reciprocate a recommendation with one of your own, because some states view that as giving value for your testimonial, which is an ethics violation, said Reed.

• Win fans for your firm. Law firms should consider creating a page on Facebook, which boasts 400 million members and edged out Google as the most popular website this year.

A Facebook page is a way to provide information about your firm at no cost. Other users can “like” your page and automatically receive updates in their news feed like they do from their other friends.

“It is a great communications and marketing vehicle without trying to be,” said Jordan Furlong of Ottawa, Canada, who blogs about the practice of law at Law 21.

A Facebook page allows you to show a different side of your law firm by displaying photo albums of the staff or launching a poll on a current affairs issue.

“Provide a link to an interesting or important news story that is relevant to the firm’s practice, or post a short story with five tips on how to work out pick-up and drop-off times with an ex-spouse if you run a family law practice,” Furlong suggested.

But like a blog or Twitter, hosting a Facebook page requires regular maintenance, said Furlong, who advised that a firm update its page two to three times a week.

– By SYLVIA HSIEH

4

What you need to know if your client goes bankrupt

A growing number of non-bankruptcy lawyers are finding themselves listed as creditors when their clients file for bankruptcy.

“I’m seeing an increasing number of cases where the debts to be discharged are legal fees,” said Carl Starrett, a consumer bankruptcy attorney in El Cajon, Calif.

Many lawyers are unfamiliar with the bankruptcy rules and may be surprised to find out their legal fees are like any other unsecured debt.

In the vast majority of Chapter 7 cases, those fees will end up being completely discharged.

And “in the small percentage of Chapter 7 cases where assets are liquidated and distributed to creditors, pre-petition attorney fees may be recovered on a pro rata basis, but only if the attorney files a timely claim with the court,” said  Jay Fleischman, a consumer bankruptcy attorney at Shaev & Fleischman in New York.

If your client files for Chapter 13 bankruptcy, you will want to file a proof of claim for payment.

While it may be tempting to collect unpaid fees pre-petition, be aware that a payment over $600 within 90 days before the date of filing may be considered a “preference payment” that the trustee can recoup.

Family law attorneys should be particularly concerned about the risk of a client going bankrupt because divorce and financial hardship often go hand-in-hand.

One way they can make their fees non-dischargeable is to characterize them as part of a support obligation.

“If the state court order says these fees are awarded for the lawyer’s services pursuant to custody, alimony, maintenance or child support, then they are non-dischargeable, as opposed to fees incurred for equitable distribution, which could be discharged in Chapter 13,” said Stuart Gelberg, a debtors’ attorney in Garden City, N.Y.

Another option for a family lawyer is to make sure his or her fees are payable to the ex-spouse – not to the attorney – because that way they are non-dischargeable, he said.

Family law attorneys sometimes also take a lien on the marital home or other assets for payment of their fees, said Marlene Eskind Moses of Moses & Townsend in Nashville, Tenn., a family law attorney and president of the American Academy of Matrimonial Lawyers.

Personal injury lawyers working on a contingency fee basis may be protected by the fact that their fee is secured by the underlying claim, but they have to take steps to avoid losing that fee.

This is because the injury claim becomes part of the estate and the lawyer would have to seek approval and essentially get hired by the trustee to continue the claim on behalf of the estate.

In addition, litigation proceedings by the debtor are generally subject to the automatic stay.

“If you’ve got a deposition of a client coming up and the client files for bankruptcy, you need to be aware that continuing any … litigation is potentially problematic and potentially a violation of the stay,” Fleischman said.

– By RENI GERTNER

5

Bill to overturn Iqbal and Twombly is one for lawyers to watch

As the current congressional session neared its end, lawyers were keeping a close eye on legislation that could have a big impact on civil litigators and their clients.

Pending bills in the House and Senate would reverse two of the most controversial civil procedure rulings issued by the U.S. Supreme Court in decades: Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

Those decisions rejected the “notice pleading” standard in favor of a rule requiring plaintiffs to put enough facts in a complaint to establish a “plausible” claim in order to withstand a challenge by the defense.

Plaintiffs’ attorneys and backers of the bill say that the court’s rulings effectively created an extra hurdle for plaintiffs bringing claims in federal court, requiring them to plead facts with a level of specificity often impossible to meet without the benefit of discovery. As a result, fewer valid claims are pursued and more are rejected at the pleading stage – a phenomenon plaintiffs’ attorney refer to as the “Twiqbal problem.”

“We reject some cases that we believe do have merit because the truth is implausible on its face,” said Elizabeth J. Cabraser, a partner in the San Francisco office of plaintiffs’ firm Lieff, Cabraser Heiman & Bernstein, speaking during a discussion on Twombly and Iqbal hosted by the American Constitution Society for Law and Policy.

“Sometimes what happens to people is implausible. The victims of the Bernie Madoff fraud – that was kind of an implausible thing to think about before it was revealed. So it has had an impact,” Cabraser said.

Opponents of the legislation say the bill would open the door for a flood of frivolous lawsuits that would hurt businesses, the economy and ultimately consumers. They repudiate the assertion by the bill’s proponents that the Twombly and Iqbal rulings represented a sudden legal “sea change” that closes the courthouse doors to plaintiffs.

“The Supreme Court’s decisions in Twombly and Iqbal were hardly bolts from the blue,” said former Solicitor General Gregory G. Garre, who argued Iqbal. “To the contrary, they are firmly grounded in decades of prior precedent at both the Supreme Court and federal appellate court level concerning the pleading standards under [FRCP] Rule 8.” Garre is now a partner in the Washington office of Latham & Watkins.

Hearings have been held on the Senate bill, The Notice Pleading Restoration Act, S. 1504, sponsored by Sen. Arlen Specter, D-Pa. But it has yet to be voted out of the Senate Judiciary Committee, as lawmakers have spent most of the session focused on issues such as health care and financial industry reform.

In the House, the Open Access to Courts Act, H.R. 4115, sponsored by Rep. Jerrold Nadler, D-N.Y., has also been the subject of hearings, but sits in the House Judiciary’s Subcommittee on Courts and Competition Policy.

– By KIMBERLY ATKINS

 6

iPad tech tools for 2011

Lawyers who began auditioning the iPad in and out of court earlier this year are discovering new apps every day and anticipating more uses in 2011.

One such app, iJuror, was released over the summer. It helps trial lawyers select a jury by creating avatars for each member of the jury pool that keep track of their personal data and responses to voir dire questions. The avatars can be dragged in and out of a digital jury box as lawyers select or reject them. A counter tallies the number of peremptory and cause challenges used by each side.

“You can list information about the entire jury pool very, very quickly with just a flick of the finger,” said Finis Price, a Louisville, Ky.-based attorney and legal tech blogger.

Another set of apps, released by Tekk Innovations in the past year, offers the full text of various state statutes.

“It’s so useful to have the entire body of state law at your fingertips, and the searches make it a real quick and easy way to find something in a statute and e-mail it to someone,” said Jeffrey Richardson, a partner at Adams & Reese in New Orleans who blogs at iphoneJD.com

Another brand-new tool, Apple TV, was released in October. It’s a hockey-puck sized gadget that will allow iPhone and iPad users to wirelessly stream photos, movies, charts or documents onto a TV screen.

“I think it could be a hidden gem. How cool and useful [is it] to press one button and have it show up on a 60 inch monitor?” Richardson said.

In November, a new operating system was released compatible with Air Play, an upgraded wireless streaming media feature.

The new operating system, iOS 4.2, solves a major drawback of the iPad – its inability to multitask – by allowing iPad users to juggle multiple functions without opening and closing apps, losing their place or having to fully reboot.

“It will be even more useful in hearings or in the courtroom or at a deposition,” said Peter Summerill, a partner with Hasenyager & Summerill in Salt Lake City and one of the first lawyers to test the iPad in the courtroom within weeks of its release.

The second generation iPad is expected in the spring and will feature a front-facing camera lawyers can use for videoconferencing instead of flying witnesses around for depositions.

A problem that is not expected to be solved by version 2.0 is a cumbersome file transfer system that requires a cable and iTunes.

Summerill has found a work-around using ReaddleDocs that allows the user to view and manage documents stored “in the cloud.” But Nicole Black, a legal technology writer in Rochester, N.Y., suggests that to be truly lawyer-friendly the iPad needs to find a better way to transfer documents and to allow attorneys to use a stylus to markup documents on-screen.

If the iPad doesn’t do this, its competitors may: two emerging rivals are BlackBerry’s PlayBook and Dell’s Dell Streak.

“I love the idea of competition, which means more options and more innovation – it’s definitely exciting,” said Richardson.

– By SYLVIA HSIEH

7

Managing ethical issues with cloud computing

The ethics of storing and transferring data remotely with a third party has some lawyers hesitant to try software as a service, or SaaS.

Especially for solos and small firms, the benefits of cloud computing can seem to outweigh the concerns: no IT infrastructure required, applications that require minimal training and no capital outlay, just a set monthly fee.

But many attorneys are concerned that their client data will be less secure in the cloud, explained Jim Calloway, director of the Oklahoma Bar Association’s Management Assistance Program.

Security concerns include hackers, loss of a password or data mining at the location where the data is actually stored.

Jack Newton, president of Clio, a web-based practice management system, said the majority of lawyers’ concerns “are rooted in trusting a third party with confidential client data.” Ironically, lawyers already trust third parties with their data on a daily basis, he pointed out – by renting office space from a third party, allowing a cleaning service access to the office or using a copier service.

Finis Price, a Louisville, Ky.-based attorney and author of the legal technology blog Techno ESQ, has used cloud computing for several years, and the security systems on the products he is familiar with “outweigh the security systems of any law firm I have ever seen,” he said

Practice management software programs Rocket Matter and Clio back up files in triplicate at different geographical locations, Price noted – a feat not many law firms can match.

And some systems offer lawyers the option to have client document repositories, where clients can securely log in and view documents.

“In many ways, that is much more secure than sending confidential documents as an e-mail attachment to a client, which we know is insecure,” Calloway said.

For lawyers who decide to take the plunge, remember to be reasonable and pay attention, Calloway said.

“No lawyer should use a hotel kiosk or business center,” to access their client data in the cloud, he cautioned. “The statistics tell us that [those locations] are infested with security issues.”

When considering vendors, ask about issues like the policy on removing data and what happens if a lawyer wants to cancel service and transfer to another provider, Newton suggested.

“Make sure the cloud computing vendor has a clear data exit policy and find out if there are any costs associated with exporting data.”

For lawyers concerned that a vendor might disappear into the night with all the client data, Newton advised asking how long the company has been in business, if it is profitable, how many employees the company has and how many users it currently has. While a vendor may not answer all of the questions, “answers to at least a couple of them should give you an idea about the viability of the business, which is a system you might be depending on for years or decades,” he said.

– By CORREY STEPHENSON

8

What are the hot practice areas?

Even though lawyer layoffs have continued, a number of practice areas are thriving – and generating more work opportunities for attorneys.

“There is some nice momentum within the legal community,” said Charles Volkert, executive director at Robert Half Legal, a national legal staffing agency. “I believe legal organizations will continue to make strategic hires, looking at ways to expand their … teams to meet client demands.”

Volkert, who is based in Miami, added that even if some firms aren’t seeking full-time attorneys, many are hiring temporary and project-based attorneys.

Here’s a look at the practice areas likely to be the hottest in the year to come:

• Consumer bankruptcy and foreclosures. Given the economic climate and recent foreclosure scandal, bankruptcy and foreclosure work continues to grow.

“You’re still going to see more consumer bankruptcy filings because of the overall economic picture,” said Robert Denney, a strategic and marketing consultant for lawyers. Denney, based in Wayne, Pa., publishes a report entitled “What’s Hot and What’s Not in the Legal Profession” twice a year.

Also, Volkert said, “foreclosure issues have generated a tremendous amount of work,” especially for smaller firms.

But Denney said that the amount of Chapter 11 work has been decreasing, noting that most companies that were forced to file due to the economic downturn have already done so.

• Health care. With the new federal reform law in the process of being implemented, health care law is hotter than ever.

“Doctors, hospitals and long-term care facilities are trying to [evaluate the] ramifications of ‘Obamacare,'” Denney said.

This means an increased demand for “any attorneys with health-care-related backgrounds to advise corporate clients about how to handle the reform,” Volkert said.

• Employment. Employment lawyers continue to be in demand in all arenas, Volkert said.

“Employment is going to stay busy,” Denney said. “Whenever you have reduced employment and layoffs – and you have companies reducing their benefits – it will continue to generate work for lawyers.”

In the employment context, attorneys are also being asked to advise companies on social media and confidentiality issues, Denney added.

• Immigration. “Immigration is very hot and going to get hotter,” Denney said.

Issues range from helping people obtaining visas to come to the U.S. to employment questions related to undocumented workers, he said.

• Small business. An increasing number of general practice attorneys are advising startup companies on everything from financing to regulations to employment matters, Denney said.

“Some sole practitioners are focusing on this as one of the [main areas] of their practice,” he said.

– By RENI GERTNER

9

Pay scale: Who makes what where?

According to Payscale.com, the salary research site, San Francisco has a median salary of $99,000 for associates with at least three years of experience, while associates in Houston earn $94,900.

Dallas ($90,600), Washington, D.C. ($88,300) and Los Angeles ($87,300) round out the top five.

Toni Whittier, founder of Whittier Legal Consulting in Texas, attributed the salaries in the San Francisco area to the local economy.

“Big patent litigation matters leveled out, but intellectual property is generally resilient,” Whittier said.

She said that Houston has benefited from continued activity in the oil and gas industry.

For mid-career lawyers, defined as having at least 10-15 years of experience, San Francisco again tops the list, offering a median annual compensation of $150,000. New York ranks second at $144,000, followed by Dallas ($143,000), Washington, D.C. ($142,000) and Los Angeles ($134,000).

The recession continues to affect associates’ salaries – the national median has dropped approximately $1,400 since last year. Conversely, the median salary for mid-career lawyers increased from $122,000 in 2009 to $123,000 this year.  However, both these changes are less dramatic than the changes of last year.

“I think it’s hard to identify everything influencing the numbers,” Whittier said.  “Firms are trying new forms of hiring and compensation.  Some firms view this as a time to make adjustments that would’ve been harder much to make in the past.  Some firms lowered compensation at the lower levels … [while others] are beginning to experiment with merit-based compensation.”

Jim Cotterman, a consultant for Altman Weil Inc, agreed that salaries are in flux.

“The market took some pretty significant reductions, particularly in starting salaries in the associate ranks,” he said.  “This year, we started to see a lot of that come back.  It didn’t come back completely, but it did rebound quite quickly.”

– By TONY OGDEN

10

Who’s next on Obama’s Supremes list?

President Barack Obama has already done what few other presidents have in less than two years in office: appointed two U.S. Supreme Court justices.

But if Obama gets the chance to appoint a third justice, chances are he will turn to a candidate that was already on his short list the first two times around: D.C. Circuit Judge Merrick Garland.

Experts say Garland is the model nominee for a president facing a politically discordant time: someone who is smart, yet uncontroversial.

“He is acknowledged by all to be brilliant,” said Tom Goldstein, Supreme Court litigator for Akin Gump and founder of SCOTUSblog.com.  “His opinions avoid unnecessary, sweeping pronouncements,” and of everyone on Obama’s short list, Garland is “least likely to prompt a polarizing confirmation fight.”

When Justice David Souter announced his retirement in May 2009, White House officials quickly assembled a short list of candidates from which the president would chose a nominee. That list included then 2nd Circuit Judge Sonia Sotomayor, who would ultimately replace Souter, and Solicitor General Elena Kagan, who would later replace Justice John Paul Stevens when he retired in 2010.

Garland was also on that list, White House officials confirmed. Like Sotomayor, Garland has prosecutorial experience, having served as an assistant U.S. attorney for the District of Columbia before joining Arnold & Porter as a partner. Like Kagan, he also has administration experience, having worked in the Criminal Division of the Justice Department during the Clinton administration. Among his duties was overseeing the prosecution of the Oklahoma City bombing case.

The only impediment to Garland’s bid to replace Souter or Stevens was the White House’s desire for more diversity on the Court, which at the time of Souter’s retirement had only one woman and no one of Latin descent. Now that Kagan and Sotomayor have shifted those demographics, Garland is primed for top consideration.

Another factor for the White House is selecting a candidate who will win easy confirmation, which could be a tough task given the tight ideological divisions in the Senate as well as on the Court itself. But Garland has already earned the vocal support and respect of Republicans as well as Democrats. This is an especially important consideration, considering the Democrats’ slimmed down majority in the Senate in the wake of the recent election.

In May, Sen. Orrin Hatch, a GOP member of the Senate Judiciary Committee, which vets judicial nominees, said he would have supported Garland had he been nominated for the seat vacated by Stevens.

“I have no doubts that Garland would get a lot of votes,” Hatch said at the time, after Stevens’ retirement announcement. “And I will do my best to help him get them.”

– By KIMBERLY ATKINS

11

Jury consulting on a shoestring

Facing a clampdown on litigation spending, jury consultants are offering a broad range of new, low-cost, online trial research and graphics tools.

“We are seeing with the tighter economic times that people are relying more on online surveys, which tend to be more cost-effective about gathering information than traditional focus groups/mock trials,” said Daniel Wolfe, director of jury consulting at Kroll Ontrack/TrialGraphix in Chicago.

Some elaborate online mock trials display demonstrative evidence and include videos of the attorneys’ opening and closing statements. Others are more pared-down affairs that relate issues in text.

Mock jurors in some online focus groups discuss cases in real time via chat room setups. In other cases, they may give their reactions over the Internet or leave a telephone message.

The cost of online mock trials and focus groups can be up to half of the expense of traditional focus groups conducted in person, according to Wolfe.

“You pay less for recruiting; you don’t have to rent a facility; you don’t have to feed people. So there are cost savings there,” Wolfe said.

“The whole thing is about efficiency,” said Philip Anthony, chief executive of DecisionQuest, a Washington, D.C.-based trial consulting firm.

Wolfe said cost concerns, coupled with technological advances, are driving other web-based innovations, such as “virtual shadow juries.”

Thanks to streaming web broadcasts from many courtrooms, mock jurors located off-site can watch a trial in real-time and give their reactions to help lawyers tweak their trial strategy, Wolfe said.

Other recession-related trial consulting trends include:

• Scaled-down research exercises. Trial lawyers and corporate legal departments are controlling costs by reducing the length of research exercises, going from three days to one or cutting down on the number of mock jurors.

• Bids. Attorneys who work with corporate clients are asking trial consultants to bid competitively for work.

• Fixed fees. “Within our industry, folks are asking for more definite and circumscribed types of budgets, meaning a fixed budget,” Wolfe said. “We’re seeing that occurring more frequently regarding demonstratives.”

Kroll Ontrack/Trial Graphix recently launched several online graphics options that allow attorneys and paralegals to become more involved in the process and control their budgets.

Clients can collaborate with the firm’s professional graphic artists or use templates to develop their own timelines, charts and other graphics for a fixed price.

“We’ve realized there are certain demonstratives folks needed that you can do from templates,” Wolfe said.

Misty Murray, a paralegal at Chittenden, Murday & Novotny in Chicago, recently worked with the firm’s graphics artists online to create demonstratives for trial.

“It’s a really good way for the law firm to become hands-on with the … exhibits they’re presenting to the jury,” she said.

She was able to access the program from her home computer on the weekend and make changes online.

“The jury really responded to our graphics,” she said, and “we really enjoyed … being more involved.”

– By NORA TOOHER

12

Settlement sessions go high-tech

Savvy attorneys are starting to use technology to speed settlement talks and mediation sessions.

Many attorneys come to trial with flashy PowerPoint presentations, but will sit down at ADR sessions with only pens and paper.

That’s changing, however, as attorneys realize that software can be used to help explain complex matters to mediators and convince opposing counsel to settle.

“People tend to be better at visualizing things than hearing [them],” said Allen Smith of SettlePou in Dallas.

Another advantage, Smith said, is that “electronic presentations … may have some bells and whistles that … impress the other side” by showing how prepared you are.

Smith, a business attorney who has been involved in more than 100 mediations, uses PowerPoint to pull up documents and zoom in on critical language during mediation sessions.

“When creating your presentation, think about the endgame,” he advised. “Focus on what you’ll be saying to a jury and work backwards from that. Get to the crux of the case in the first 30 seconds, then double back and bootstrap your point with additional materials.”

Joseph Rice, president of Jury Research Institute in Alamo, Calif., frequently uses timelines to tell the story of a case from the beginning, and to point out critical incidents.

“Almost every case cries out for a timeline,” he said. “They can be created very simply in PowerPoint.”

Risk-analysis software can also be valuable in ADR. David Sparks, a trial lawyer at George & Shields in Irvine, Calif., who specializes in business law, has developed his own spreadsheets for crunching numbers.

Sometimes, Sparks will show a client a spreadsheet that estimates the future cost of a lawsuit, including attorney and expert fees. That way the client can decide whether to pursue litigation or agree to settle.

“Spreadsheets can also be used during mediation,” he said. “Hyperlinked ones allow me to answer questions fluidly and allow everyone to make intelligent decisions about settlement. It’s one of the best tools in my bag.”

Lauritsen noted that attorneys can purchase risk analysis software, such as TreeAge Pro, that offers a range of potential damages and outcomes in a case.

The programs can be helpful in convincing both parties to settle.

“Risk-analysis spreadsheets are good when the central issue is uncertainty,” Lauritsen said.

– By ALLISON McANDREW

13

Creative ways to motivate your staff

With the economic climate still putting the brakes on monetary incentives, it can be difficult to keep up staff morale.

“Generally it’s easier to retain staff [during a recession]; the issue is that you can’t give the raises you might want to and they need the money worse,” said Jim Calloway, director of the Oklahoma Bar Association’s management assistance program.

However, money is not the only motivation for people to stay with your firm, he said.

Small firms can offer other perks and rewards to keep the staff happy, such as flexible schedules, better parking spaces or an afternoon off.

For example, one day Mark Robertson of Robertson & Williams in Oklahoma City noticed tension building in his small firm as everyone grew overworked and snippy, generally suffering from the winter doldrums.

So Robertson made an executive decision: close the office and take everyone to the movies.

That was more than 20 years ago, but Robertson, whose firm has since grown to 10 attorneys and eight staff people, has expanded the tradition to include office parties, early closings and an annual ballpark outing.

Nancy Byerly Jones, a law practice consultant in Banner Elk, puts treating staff better at the top of the list of ways to run a better business.

“It doesn’t cost money, but it helps build loyalty,” Jones said, adding that her attorney-clients have started making an effort to listen more, change how they speak with employees and show appreciation for specific tasks.

“Sometimes lawyers overlook the value and importance of everyday courtesies,” Jones said.

Another way to incentivize staff is to improve their working conditions, such as by implementing cheap fixes to speed up your secretary’s computer, Calloway said.

But don’t go spending big bucks on renovating your office space if you claim to be tightening your belt, he added.

Although it may be against your instincts, being open with staff about the firm’s financial situation is better than leaving them in the dark.

“Letting staff know what’s going on is a good thing. Some people think it gives staff the idea that the firm is going out of business and people will be tempted to jump ship, but to me it engages them,” Calloway said. Many times, he said, it will motivate staff to save on expenses or be more vigilant about client bills.

Jones suggested asking everyone to come up with a few cost-cutting ideas for the firm and reward the employee with the best idea every few months with an extra day off.

She also advised asking everyone to write down a few non-cash services they could trade with their co-workers. Examples include babysitting, petsitting, taking care of an elderly parent, donating books to a child’s school or carpooling.

One firm saved an employee a substantial amount of money by finishing a home improvement project for her, Jones said.

“It’s also team-building by helping each other in ways that are atypical [of] the 90 mph running of a law firm,” she said.

– By TONY OGDEN

14

Contingency planning protects family, clients

Courtney Kennaday, director of the South Carolina Bar’s practice management assistance program, has received more phone calls than she can remember from distraught family members and employees trying to cope with clients after a lawyer’s unexpected death.

“I’ve talked to staff, widows, children, all of whom are deeply bereaved and suddenly thrust into the position of having to cope with a law practice they know nothing about and clients arriving at the door of the office to pick up their files and go to other lawyers,” she said.

“[The family members] were all very distressed because they don’t know what’s going on, and trying to wrap up a lawyer’s affairs and close the office – if they are non-attorneys – is a big problem,” Kennaday noted.

“Professionally, [the lack of a contingency plan] affects our clients, but personally, it affects our family and their well-being,” remarked Reid Trautz, practice management director for the American Immigration Lawyers Association, in Washington, D.C.

“There’s probably a value to many firms, even if it’s just transferring the phone number,” he said. Other intangible assets may include the ongoing flow of client calls, or a referral network that has been built up over decades.

Families can also run into problems if the deceased attorney worked with a junior associate or shared office space with another attorney. Without a written contingency plan, the question of whether the associate takes over the practice can turn into a “he said/she said” situation, Trautz noted.

In one instance, Trautz recalled, a surviving associate didn’t feel qualified to take over a practice, but felt pressured by family members to carry on.

In another instance, the associate wanted to “take over the practice for nothing,” Trautz said.

It’s possible to avoid such problems in a small firm by jointly funding an insurance policy that allows the surviving partners/office mates to purchase the deceased attorney’s share of the practice, according to Trautz.

Many of the problems families face could be avoided, Trautz and Kennaday agreed, if solo and small-firm attorneys wrote up simple contingency plans with instructions for winding down their practices.

“You can do it on your own, and then update it every year,” Trautz said. “Even if it doesn’t cover everything, it will go a long way toward helping. Otherwise, in many jurisdictions the only recourse is they’re going to appoint someone through the disciplinary system or through the court.”

Contingency plans should explain where attorneys keep their wills, as well as their health care proxies, powers of attorney and advance directives.

Practice-related information, Trautz suggested, should include information about case files, trust accounts, safety deposit boxes and pass codes.

Most importantly, Kennaday advised, when preparing a contingency plan: “Find a friend who is also a lawyer, and agree to close each other’s practices in the event something should occur.”

Then draft an agreement, sign it and make sure your survivors know where the agreement is located. Include contact information for the lawyer who has agreed to help close the practice in your “going away” letter.

Taking time to prepare a contingency plan saves lawyers’ heirs from unnecessary hardship, Kennaday said. “We want to protect clients, but we also want to protect lawyers and their families,” she said.

– By NORA TOOHER

15

Should you consider a virtual law practice?

A virtual law practice offers many advantages for a solo or small firm lawyer.

“Especially for the sole practitioner and small firms, a virtual law office allows [you] to capture new clients and deliver limited or unbundled services online,” said virtual law office pioneer Stephanie Kimbro, who launched her North Carolina-based practice in 2007. “A large segment of the public is turning to online legal services to meet their needs, and a virtual practice lets lawyers tap into that market and generate revenue.”

The virtual component could be just one piece of a lawyer’s practice, suggested Kimbro, author of The Virtual Law Firm: How to Build Your Practice in An Online World and the Virtual Law Practice blog.

Marc Lauritsen, president of Massachusetts-based Capstone Practice Systems, a company that helps law firms with technology, said that establishing a virtual practice has never been easier thanks to “high-quality, reasonably priced” software.

Even three or four years ago, the “technological courage and effort” required by an attorney was much greater, Lauritsen said. Today, the programs are as simple as other online systems like banking.

And given the low cost – a base client portal runs about $50 per month, said Richard Granat, president and CEO of The Granat Group Inc., a company that delivers legal services over the Internet – the risk of trying virtual lawyering is minimal.

However, not every practice area is suited to a virtual firm, said Lauritsen, co-chair of the American Bar Association’s eLawyering Task Force.

While corporate documents and routine estate planning are conducive to virtual lawyering, practices that require a lot of direct personal interaction may not fare as well, he noted.

Lawyers with an older clientele may find that their clients don’t use the web or are not comfortable dealing with legal matters online, and criminal defense attorneys may require face-to-face interaction to try to evaluate their clients’ credibility, noted Granat, author of the eLawyering blog.

Lawyers embracing the virtual practice movement should remember their ethical obligations, especially when contacted by clients outside of their jurisdictions.

One of the dangers of an online practice is the potential to commit the unauthorized practice of law, so “make sure the public knows where you are licensed to practice and conduct thorough conflict checks,” Kimbro advised.

Be very clear about what your jurisdiction requires, Lauritsen added, noting that New Jersey, for example, requires its lawyers to maintain a brick-and-mortar office.

Security concerns also go hand-in-hand with virtual lawyering.

Attorneys should thoroughly research and understand their relationship with third-party providers, Kimbro said, knowing who has access to their data and what the retention policies are, as well as where servers are located and back-ups stored.

Finally, lawyers should remember that “they can build it, but it doesn’t mean they are going to come,” Kimbro cautioned. “Like hanging up a regular shingle, [a virtual law practice] takes hard work.”

Lawyers launching a virtual firm should understand their audience and how to market their services online, she said. That means mastering concepts like search engine optimization, and getting visitors to register at their site and, in turn, become paying clients.

“A virtual law practice is not a magic solution,” Kimbro said. “Lawyers shouldn’t expect it to make money right away.”

– By CORREY STEPHENSON

16

Retreat to recharge your firm

In these difficult economic times, planning a firm retreat may seem like an extravagance.

But according to practice management expert Glenn Gutek, it may be just what you need to jumpstart your practice.

In a recent telephone conference, Gutek, a senior practice adviser for Atticus, a Florida law firm consulting company, urged participants – many of them solo and small-firm lawyers – to set aside a day or two, at least once a year, for a brainstorming retreat.

“One of thing that distinguishes great firms, even in a down economy, is that the decisions they make generally are better than their competitors’,” he noted.

And good decisions, he said, flow from “dynamic meetings.”

All firms should have daily update meetings, frequent case update meetings and monthly strategy meetings.

A retreat takes a longer-range view, with the goal of identifying what’s working and what isn’t. It should also map a direction for the firm in the future.

Gutek offered several tips for a successful firm retreat:

• Identify the purpose. Ask yourself questions before the retreat, such as, “What are some of the things we need to stop doing, and things we need to start doing?” Write a purpose statement for the retreat, such as, “Building unity to establish a game plan to grow revenue.”

• Decide who to invite. Some retreats work best with partners and staff; solo and small firms may want to invite referral sources or important clients to a portion of the retreat.

• Pick a location. Because the purpose of a retreat is to think about long-term, complex issues, Gutek favors an off-site location.

“There are additional expenses,” he said, “but one of the advantages is it physically puts people in a different location.”

And a change of venue can produce a change of outlook.

• Be creative. Instead of rehashing old conversations, come up with some exercises that will get people thinking. For example, ask what practice areas would be essential if revenue were slashed in half in the next six months. You can even put buckets in the room to fill with pieces of paper representing essential and non-essential practice areas.

• Build in play. “If you go far off-site, there will be a heightened expectation of recreation,” Gutek noted. “A firm retreat is a phenomenal opportunity to advance the best of your firm’s culture, to build stronger relationships among the key players.”

• Document the retreat. Assign someone to write a paper that captures key conversations and decisions at the retreat. Follow up with a post-meeting paper identifying progress in areas identified at the retreat.

– By NORA TOOHER

17

Don’t get hit with an overtime claim

As overtime violations surge, even lawyers are falling into the trap of misclassifying their employees – and they are being sued for it.

“No one ever accused lawyers of being perfect, and that extends to how they make wage and hour classifications for their employees,” said Paul DeCamp, a partner in the Reston, Va., office of Jackson Lewis and leader of the firm’s wage and hour practice group.

Mark Tabakman, a partner at Fox Rothschild in Roseland, N.J., and author of the firm’s Wage and Hour blog, said many employers – including law firms – suffer from the misconception that simply paying an employee a salary instead of an hourly wage automatically exempts them from receiving overtime.

He recalled one law firm client who paid a legal secretary a salary for the 45-50 hours she worked every week and said they were “shocked” when he told them she was entitled to overtime.

“Just because employers are lawyers doesn’t mean they are going to know more about labor and employment laws,” Tabakman said.

Under the Fair Labor Standards Act, employees are entitled to overtime unless they fall under one of three exemptions: professional, executive or administrative.

While some paralegals/legal secretaries could qualify for the professional exemption, they would need to have a professional degree of some sort – engineering, for example – and then put that degree to use in their work, “functioning in effect as an engineering consultant to the law firm,” DeCamp said.

The executive exemption requires the employee to manage two or more employees, he said.

A legal secretary or a paralegal could conceivably fall into this category if he or she managed all the other legal secretaries or paralegals, and had input into decisions on hiring and firing or raises and promotions, Tabakman said.

Employees fall under the administrative exemption when they “provide analysis, advice or some other type of functional service to the business where they are not in the direct stream of making the product the business provides,” DeCamp said. “This exemption is for people exercising discretion and independent judgment.”

To protect themselves from a FLSA claim, law firms should take a closer look at how they classify their employees.

Because the burden of proof is on the employer to show that an employee is covered by an exemption, law firms have to be extremely conscious of making correct classifications, said Tabakman.

If an employee’s duties don’t involve the use of discretion and independent judgment on a fairly significant level, that should raise a red flag that he or she may be a non-exempt employee, he said.

The analysis is a “very fact-specific inquiry,” DeCamp noted. “Law firms should analyze carefully not just the job description of their employees but what the person actually does.”

DeCamp, a former administrator of the Department of Labor’s Wage and Hour Division, recalled one opinion letter where a law firm had six different permutations of legal secretary/paralegal positions.

“Every single one was found to be non-exempt, including a paralegal who had an MBA but wasn’t doing work that involved financial expertise,” he said.

– By ALLISON McANDREW

18

Traditional ways to market your firm

While social media can help lawyers connect with new clients and members of the legal community, traditional forms of marketing can still bring in paying clients and raise an attorney or firm’s profile.

“Online social networking can be valuable and blogging can be very effective, but the purpose of all the forms of online media is to generate a meeting with somebody where you actually talk with them face to face,” said Larry Bodine, business development advisor at Chicago-based Larry Bodine Marketing and owner of the site www.LawMarketing.com.

Take a potential client out to lunch or dinner, buy them a coffee in the morning, or meet them at their offices, Bodine suggested.

“Business comes in through relationships, and the whole purpose of online networking is so that you can eventually meet somebody in person. You are not going to develop any business if you just have 500 online buddies.”

Other marketing avenues lawyers should consider include:

• Write a book. “Books to me are an absolutely perfect marketing tool,” said James B. Reed, a partner at the Ziff Law Firm in Elmira, N.Y. “It’s free information – nobody is offended by getting a book.”

Reed dictated his book, The 5 Deadly Mistakes That Can Kill Your Accident Case on weekend mornings.  He now gives the book to potential clients and offers it for free on his firm’s website. It was such a success that he authored a second book, The 5 Secrets to Buying Auto Insurance in New York and convinced his partners to author their own books.

Writing a book was a “tasteful” way to market his small personal injury firm and still get his name out to the public, Reed explained.

“The feedback has been incredible,” with at least 10 people coming into the office with his books and becoming paying clients.

After an initial printing of 200 copies of the insurance book, he had to print another 1,000 to have enough on hand.

• Advertise at houses of worship. John W. Olmstead, president of Olmstead & Associates, a legal management consulting company in St. Louis, said many of his clients have had success advertising at their house of worship.

Advertising in a bulletin at a local church, synagogue or mosque is a “fairly inexpensive piece of advertising that can be effective for solos and small firms,” Olmstead said.

Daniel J. Adler, a sole practitioner in Joliet, Ill., agreed.

“Dollar for dollar it sure beats other ways of marketing,” he said. He pays less than $100 per month and is locked in for a year at a time for his advertisements in the weekly bulletin at his Catholic parish.

Adler, who has advertised in the bulletin for more than 15 years, said he has received a number of clients who tell him they chose his services because of the ad.

• Get together. Conferences, trade associations, meetings – try them all, Bodine said.

“Business comes through relationships, and the only real way to keep a relationship going is in person,” he said. “Clients want to hire somebody they know and that they like.”

– By CORREY STEPHENSON

19

Family law attorneys are missing evidence on social networking sites

The undeniable popularity of Twitter, Facebook, LinkedIn and other social networking sites has opened up a potential treasure trove of legal evidence, especially in divorce cases where a person’s whereabouts, “friends” and employment status are often relevant.

But many divorce lawyers are missing the boat.

“So few family lawyers even know to look for it, said Melissa Brown, a Charleston domestic relations attorney who has given seminars on the topic.

“Family law attorneys are really lagging behind other lawyers and judges,” agreed Lee Rosen, a divorce attorney in Raleigh who authors the Divorce Discourse Blog.

“The reality is that if you don’t use social media yourself, you don’t understand it fully,” he said. “Few family law attorneys are taking full advantage of this because if you’re not engaged in it, you’re not sure what your options are. You have to grasp the basic concepts to know how you want to use it on someone else.”

Rosen, who routinely finds evidence on Facebook, said that “most cases where there is evidence of adultery quickly settle,” such as where a straying spouse posts incriminating photos or wall-messages on his or her Facebook page.

And it’s not just the other side that lawyers have to worry about.

“Divorce lawyers should give a warning to all of their clients about the dangers of social networking during a divorce action,” Brown said.

Brown has sometimes encouraged clients to take down sites entirely, such as one client whose Facebook page included a photo of her and her boyfriend in a hot tub.

New York City family lawyer Raoul Felder recommends conducting a serious audit of a potential client’s social networking information before proceeding with a case.

“The Internet is a double-edged sword,” he cautioned. “On the one hand, there’s a general intimacy about using the Internet for things like Facebook and Craigslist, but there’s also a general openness that lends itself to bragging. And that’s where people get into trouble.”

Felder suggested using a third party IT expert service like Spokeo or a private investigator.

Or, he quipped, “If you really want to get someone who knows what they’re doing on the Internet, hire a 16-year-old.”

So far, family lawyers who have sought evidence from social networking sites have had no trouble obtaining it or getting it admitted into evidence.

“It appears that if you don’t delete these things, those records are available to you indefinitely. We have subpoena power to request they produce it for us,” Rosen said.

– By ALLISON McANDREW

20

Why you need an employee handbook

If you’re a small law firm, you may think you’re not big enough to need an employee handbook.

Think again, experts say.

“I advise employers regardless of size that they should have handbooks,” said Evan Spelfogel, a management attorney at Epstein Becker & Green in New York. Most firms won’t need to do much more than put together materials they already have, he said.

D. Jill Pugh, an employment attorney in Seattle who has prepared a sample handbook for her state bar association, agreed.

“It doesn’t need to be a 40-page masterpiece, just some basic rules and regulations,” Pugh said.

Small firms are often concerned that putting something in writing means they can’t be flexible, Spelfogel said. To avoid this problem, he advised that the handbook just “has to be written in the right way, to allow the employer to reserve discretion and flexibility while at the same time giving employees notice of the general rules and what’s expected in the workplace.”

Along with policies on work hours, wages, overtime and leave policies, include job descriptions – a general summary of each individual’s intended tasks – so employees understand what your expectations are.

The issue of confidentiality is another reason for any size law firm to have a handbook.

“Even if you only have a paralegal, a legal assistant and copy people, it’s much better to have in writing what the obligations are, [so they know that] just because there might be exciting and juicy information because you are working on a case involving the latest serial killer, you can’t talk about it,” Pugh said.

Another “must have” in your handbook is an anti-discrimination policy.

Even though federal statutes exempt small employers, many states do recognize torts for wrongful discharge, said Pugh, and you’re more likely to follow your policy if it’s written down.

Spelfogel suggests stating that all electronic systems belong to the employer and can be monitored at any time, and employees have no expectation of privacy in them.

Your handbook may also discuss the use of social media outside of work, stating that employees’ personal blogs don’t reflect the views of the firm and reminding your employees not to divulge confidential information or insult opposing counsel or judges, Pugh said.

“Even if an employee has no bad intent, he or she might put something out there that could cause problems … down the road,” Pugh said.

Pugh recommends noting on the opening page – and frequently throughout the rest of the handbook – that the handbook does not constitute a contract.

Spelfogel, however, said that making the handbook a contract makes it enforceable, and that doing so is still safe as long as you explicitly retain the right to modify or eliminate anything with appropriate notice and clearly state that the handbook is not a contract for any particular length of time.

In addition, include a reminder to new employees that simply getting past any probationary period doesn’t mean they are no longer at-will, Pugh said.

– By TONY OGDEN