Monthly Archives: January 2012

Big v. Small

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

A federal judge in the U.S. District Court for the District of Columbia recently ruled that a small firm’s work is worth less than the work of biglaw. Alan Gura, who was 32 when he took it on, won a case before the Supreme Court, overturning D.C.’s handgun ban. Gura, who works in the two-attorney practice of Gura and Possensky, dedicated at least 1,500 hours of his life to the case over six years with no guarantee of ever getting paid a cent and prevailed against a vastly experienced Supreme Court litigator in Walter Dellinger of O’Melveny Myers who usually makes $1 million from a Supreme Court case alone.

Gura was representing D.C. residents who wanted to own handguns and felt the district’s ban on possession violated their Second Amendment rights. The U.S. District Court denied the claim before the U.S Court of Appeals for the D.C. Circuit overturned the decision, ruling the ban was unconstitutional, and the Supreme Court eventually upheld the appellate court’s decision in District v Heller. But in a ruling on the fee petition at the end of 2011, Judge Sullivan of the U.S. District Court for the District of Columbia took two thirds off the fee amount requested by Gura. While Gura will still see around $600,000 himself, Judge Sullivan’s ruling reveals a bias against smaller firms.

First, the judge, acknowledging the argument made by the district’s attorneys, noted that he had to scrutinize closely the plaintiff’s fee petition to determine what fair, reasonable, and just compensation was because he was “sensitive to the fact that the fees in this case will be paid by the taxpayers.” This is unusual given that Gura was simply living up to his oath to defend the constitution and, of course, the fact that the district’s lawyers (and Judge Sullivan himself) are also paid by the taxpayer. However, the most objectionable part of the judgment relates the reasoning behind the decision to give the plaintiffs a lesser award.

The judge reasoned that since Gura works for a small firm, he has lower overhead and, therefore, he was not entitled to charge similar rates that a larger firm could charge. It is of course true that Gura had to work without the support of researchers, IT staff and support staff of every kind which a biglaw firm enjoys. But that seems illogical to me. Surely lower overhead should be encouraged and not punished. Further, litigation of any kind, but particularly complex federal litigation has a major impact on smaller practices; almost all of a small firm’s efforts are focused on the trial. And Gura forewent six weeks of potentially billable time while working on the case which can also really hurt small firm.

Whatever your position on gun control or the outcome of the underlying case, it seems unfair that the work a small firm attorney who took a big risk and devoted a huge amount of time to see the constitution defended is deemed less worthy of being rewarded than similar work done by a biglaw firm.

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Indiana University Alumni Association presents: How to Make the Most of Your Current Job as You Plan for Your Career Future

Entry-level, mid-career or seasoned professionals can always benefit from networking and career events. The Indiana University Alumni Association offers one in February that might be of interest to attorneys in transition.

Caroline Dowd-Higgins, IU Alumna BM ’89, MM ’95, will host “How to Make the Most of Your Current Job as You Plan for Your Career Future,” at 5:30 p.m., Thursday, Feb. 16 at Stahl Cowen.

During this seminar, Dowd-Higgins shares strategies to help you plan for your career future by networking in your organization, becoming your own marketing agent and creating a plan for success that meets your values. She gives you career secrets your boss will never tell you and advice you need to enjoy your work now and in the future. 
  
To register for the event, which costs $20 for IUAA members and $25 for nonmembers, visit: http://iuaa.imodules.com/s/1377/event.aspx?sid=1377&gid=2&pgid=873&cid=2223&ecid=2223&ciid=4222&crid=0

Another side of the story

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

I recently watched the documentary film “Hot Coffee,” which premiered at the 2011 Sundance Film Festival. It gets its name from the case of Liebeck v. McDonald’s Restaurants which we are all anecdotally familiar with at least. This was the case where a McDonald’s customer, Mrs. Liebeck, spilled a cup of McDonald’s coffee on her legs, sustained severe burns and successfully sued McDonald’s, before ultimately settling after McDonald’s appealed.

The case is used as the poster-child of an out-of-control justice system where frivolous lawsuits are pursued and won on a regular basis. However, “Hot Coffee” paints a different picture; one where corporations engage in huge media campaigns to alter and distort our views of the justice system with the intention of pursuing “tort reform” which the filmmakers view as a misleading term which entails the waiver of constitutional rights.

Detailed facts of the hot coffee case itself are probably unknown to many of us. Many of us probably don’t know that Mrs. Liebeck sustained third degree burns over 16 percent of her body, disabled for months and needed skin grafted from her thighs to her private parts. Many of us probably don’t know that McDonald’s had a policy of serving coffee at between 180-190 degrees, which it was shown would cause third degree burns in less than 8 seconds. One of the reasons we probably don’t know this is that she was subject to a gag order after the eventual settlement and McDonald’s was not.

So, without expressing an opinion on what the verdict should have been, I think it is at least fair to say the lawsuit was not frivolous. However, that is the complete opposite of how this case is publicly perceived. The filmmakers look at how corporations try to exploit the public perception of frivolous lawsuits to push for tort reform which always entails limiting citizens’ constitutional right of access to the courts. They point to some congressional hearings on tort reform where the most commonly used phrase was “McDonald’s case” or “hot coffee case” despite very little in the way of actual research or empirical evidence.

Another case the film looks at is that of Jamie Leigh Jones, a former Halliburton employee, who claimed she was drugged and gang-raped by fellow Halliburton employees just four days after she went to work in Iraq. Her employment contract had a mandatory arbitration clause and the filmmakers analyze some of the problems with such clauses. First, arbitrators are often chosen by the corporate defendants so there are incentives for arbitrators to find in their favor in order to get their business again. Second, arbitrators usually do not have to offer written opinions detailing the reason for reaching the decision in a case. And finally, the appellate standard for arbitration decisions is often prohibitively high.

The filmmakers’ case against mandatory arbitration clauses is weakened somewhat by the jury’s finding in Ms. Jones’s eventual trial that the sex between Ms. Jones and the other employee was consensual after evidence emerged at trial suggesting many of her claims were exaggerated. However, interesting questions are raised in both of the cases discussed here and we, as lawyers, have a duty to consider questions of tort reform and its impact on our constitutional rights deeply and objectively before reaching a conclusion.

Spontaneous Exclamations: Gasp! Transactional attorneys litigating?

Adam Katz is a senior associate at Harrison & Held LLP.  He concentrates his practice on federal & state tax matters, mergers & acquisitions, entity structure and formation, commercial finance, and non-profit law.  Adam can be reached at (312) 753-6110 or akatz@harrisonheld.com.  Comments on all posts are welcome!

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You wake up in the middle of the night in a cold sweat, unable to sleep.  All sorts of legal arguments are running wild through your brain.  You recite your well-rehearsed words carefully in the hope that they will lull you back to sleep.  No such luck.  You’re a wide awake clammy mess on the eve of the most significant entry on your calendar for weeks… and you’re a transactional attorney going to trial!

One thing I feel young lawyers should never turn down is solid litigation experience.   Arguing a few motions or participating in a trial here and there will produce the following three results:  (i) you will become a well-rounded attorney able to take on additional types of matters leading to more billable hours (what associates crave!); and (ii) you may not realize it, but handling litigation matters will make you a better drafter; and (iii) you will gain important experience in managing clients’ anxiety, expectations, and emotional well-being.

Now, I’m not advocating for young transactional lawyers to become expert litigators.  Just enough experience to become confidently capable of arguing motions, taking depositions, conducting cross-examinations and the like.  Try to involve yourself in lawsuits of transactions gone bad.  What better way to understand what you are drafting than to see what happens when agreements are breached?

Crossing over to litigation will also give you valuable experience managing jittery clients.  Parties involved in high-stakes transactions frequently are anxious and emotional.  However, the apprehension and emotions can reach entirely new levels when your clients are being sued and their livelihoods are potentially on the line.  Managing expectations becomes an entirely different animal when negotiations fail and you then must win at all costs.  While discussing the lawsuit with your clients, you must keep in mind that, no matter how good you think your case is, the judge may disagree.

So when you wake up in that cold sweat pondering all of your evidence and preparing for all those curve balls opposing counsel might throw you at trial in the morning, hold your head up, have some confidence, and consider all of the great experience you are receiving on your path to become the best lawyer you can be.

Leveraging Your Reputation: Time for an e-mail review?

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has about 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Association CLE programs. Reach him at tc@tcpr.net.

Even though there are now a lot more ways to communicate other than e-mail, it is still frequently used, especially professionally. However, it seems that people are not paying as much attention to how their e-mails can help their reputation because the trend is to emphasize the importance of Twitter, Facebook, LinkedIn and other social media. If it’s been a while since you’ve thought about how your e-mail can be more effective, here are a few things to consider:

Enhance your signature. Your signature probably includes your name, firm, and contact information, in addition to a legal disclaimer or privacy notice. You can add one more line that could be a link to an article that you wrote or was featured in, or a link to something else that you want to share. You might have just written a book or have an upcoming speaking engagement. Remember to share whatever you’ve done or are going to do, and keep the language simple so that your recipient doesn’t feel like your signature is a commercial.

Lighten the graphics. I know people who take a lot of time to create beautiful e-mails that resemble a brochure more than a piece of electronic communication, but the problem is that your audience can view your e-mail on various kinds of monitors, browsers, and phones. Make sure that your e-mail is simple enough for people to view and open. Sometimes if there are too many graphics, your message can go to someone’s junk mail, or may simply not be legible. It can also take a while to load if it is too complex.

Give ways to share. If you’re sending an e-mail that you would like someone to pass along, such as a promotional e-mail about a seminar that you’re organizing, then include ways for the recipient to share it with other people. Also remember to write the e-mail so that anyone would be able to understand it, instead of making it too customized to just one person. People who forward emails to others often don’t delete your personal message to them, so keep such communication short, yet friendly.

And here’s an obvious tip: Proofread your e-mail to ensure it doesn’t have mistakes and can’t be misunderstood. I’m sure I’m not the only one who has had to smooth over misunderstandings after I hit the “send” button too quickly before realizing that I wasn’t clear, or had embarrassing errors.

Communicate & Advocate: Don’t make me wait

Theresa Zagnoli is a founding partner and CEO of Chicago-based litigation consulting firm Zagnoli McEvoy Foley LLC.  From her 25-plus years in the field, she shares the communications insights, advice, tactics and skills that litigators can use to effectively advocate for clients and communicate critical information in the courtroom. Reach Theresa with thoughts or questions at tzagnoli@zmf.com or 312.494.1700.

“We will get to that in a minute.”

It’s a distracting statement to hear in court and a mistake that even the most sophisticated lawyers make.

Telling the jury to wait to for information you have just teased them with is like waving a candy bar in front of a 6 year old while asking him to think about what gift to get Grandma for her birthday. The 6 year old, like your audience, can think of little else but the tantalizing treat.

Don’t be a Tease

Mentioning a topic, and then saying “I explain that a little later,” is maddening to the listener.  Even worse is posing a question to the jury – When did the defendant gain knowledge of the crime? – and again postponing the answer.

The problem with this tease-but-don’t-tell is that it distracts jurors from hearing anything you say after the tease. They’re focused on the answer, the bombshell, the smoking gun, that you’ve introduced. While you’ve moved on, they’re thinking, “If it’s so important, why didn’t she just tell me now?” Or, they’re left to wonder, “What does it mean that I don’t understand what he’s talking about?”

Show and Tell

The jurors are your audience; you need them with you, not struggling to keep up. So, organize your presentation in a way that allows you to pose a teasing question but give the answer in the immediate follow-up.

If, in your remarks, you need to use a legal term that is not generally well-understood, take the time to explain it. If you’re arguing that the defendant showed “gross negligence,” you’ll want to be sure your jurors really know what gross negligence means. You and I know; they may not. Even more importantly, by providing the definition or answer, you either reinforce your listeners’ existing knowledge or clarify information for them. Either way, your jurors will have a greater comfort level and will be able to relax and listen to you.

As a strategy, I’m not a fan of introducing a tease and coming back to it for a big reveal. But, if you decide to follow that strategy, be aware (and fore-warned!) that while you move forward with your presentation, you’ve probably left your audience in the field, trying to find their way out.

The art of professionalism – Four simple steps to help you transition from student to practitioner

Desiree Moore is the president and founder of Greenhorn Legal LLC. Greenhorn Legal offers intensive practical skills training programs for law students and new lawyers as they transition from law school into their legal practices. Moore is also an adjunct professor at Loyola University Chicago School of Law and was an associate at the law firm of K&L Gates. She can be found on Twitter at @greenhornlegal.

Law school is, by definition, a professional school.  Still, if you are like me, you spent much of law school lounging around in sweatpants and socializing with law school classmates (and studying, obviously!).  As you transition from law school into your legal practice, you will be expected to have mastered professionalism and to project professionalism in all instances.  More importantly, your ability to act in a professional manner early in your career will define you – and will define the impressions you leave on the people around you.

Whether you are interviewing for a legal position or you have begun your legal practice, here are four easy things you can do to ensure that you are perceived as a true professional:

1. Dress like a professional.  As simple as it may seem, your attire is an exceedingly important aspect of your professionalism.  This is the very first impression you make, before anything else.  For interviews, without exception, you must wear a suit.  Several days in advance of your interview, be sure your suit is clean and pressed (and that it fits you!).  Likewise, if your workplace observes a “business” dress code, or for any formal business occasions (for example, client meetings, court hearings, depositions, etc.), wear a suit.

If your office observes a “business casual” dress code, this calls for something slightly less formal than a suit.  Still, your attire should be traditional and conservative.  Flashy, quirky or otherwise inappropriate attire is never well received in a professional environment.  Also, wear your clothes well.  Avoid wrinkles and tuck in your shirt.

If you dress the part of a lawyer and a professional, you will make meaningful first impressions and build your credibility from day one.

2. Be mindful of your demeanor. Much like attire, mastering the proper demeanor in a professional environment will be central to your success.  In interviews and in your practice, take care to act in a formal, professional manner.  With this said, you also want to approach your office interactions in a relaxed, natural way.  Your demeanor should reflect that you are serious about your work but that you are also an open, friendly person.  If you can demonstrate by your demeanor that you are both of these things, your colleagues in the legal profession will respect you and want to get to know you.  Finally, as a new lawyer, you will be well served by expressing enthusiasm at the prospect of working on any case, deal or project that comes across your desk.  Enthusiastic lawyers are more pleasant to work with, and in turn get more work!

3. Hone your interpersonal skills. Finding success in a professional environment depends in large part on capitalizing on our own personal strengths and minimizing our weak areas.  In a legal environment, in particular, where you are expected to work closely with colleagues and clients, honing your interpersonal skills is a must.  While not everyone has the same interpersonal qualities, there are a few rules to live by.  In all instances, be reasonable and even.  Do not display extreme emotions and do not take frustrations out on anyone (this includes your administrative assistant – the best way to get in trouble as a new lawyer is to treat staff in a disrespectful manner).  Ask your colleagues about their work and their interests.  Steer clear of office gossip or any office dynamics that you are not comfortable with.  Keep your personal drama out of the workplace, too.

4. Master your practice. Finally, in an effort to demonstrate professionalism in a legal environment, it is important to master your legal practice.  Now, this is not something you can do right away, or all at once, but you should be working toward this every day.  As a recent law school graduate (and after having studied for the bar), your knowledge of the black letter law will never be better.  Capitalize on this and build on it.  Make yourself marketable (if interviewing) or indispensable (if you have already secured a job) in the early years of your practice by staying on top of the technical aspects of your job and showing growth from month to month and year to year.

Follow these guidelines and – even if you have to work at it at first – you will project professionalism to your peers and superiors.  Over time, it will become second nature.  (And don’t worry – those sweatpants can get plenty of use on the weekends.)