Happy New Year's Eve!

Get in early, and stop drinking a couple of hours before you drive. Or better, stay wherever it is you're partying. Cops just love writing DUIs in the first two or three hours of the new year.

And a Follow-Up to That Thought...

If you divest the landlord of that security deposit and make him pay interest, how do you suppose that's going to make the landlord feel toward you? Is that important to you?

It might be. It always goes to show that laws like this can be used as a shield; but use them as a sword (or a club to beat someone over the head) at your own peril.

Quick Thought On Rental Properties: What is the Rent Security Deposit Act?

N.J.S.A. 46:8-19 is where you can find what is called the Rent Security Deposit Act in New Jersey.

The Rent Security Deposit Act requires the landlord to put your security deposit in a separate bank account that pays interest. The landlord must tell you in writing the name and address of the bank where the deposit is being kept, the amount of the deposit, the type of account, and the current interest rate for that account- all within 30 days of getting it from the tenant, and annually thereafter.

If the landlord does not comply, the tenant can give the landlord written notice telling the landlord to use the deposit, plus seven percent interest per year, toward the rent. This is nice to know because it protects tenants from landlords who might run off with the tenants' money.

Two Questions to Motivate You At the End of the Year

1. What do you want to accomplish in the new year?

2. Why are you waiting until the new year to accomplish them?

Merry Christmas!

Enjoy this holiday with family and friends, and take a minute to really appreciate what this holiday means to you. It'll help you savor every moment of it (and give you something to do while you're falling asleep from a turkey coma). :)

Merry Christmas Eve

Finish shopping! Be safe! Then go home and be with family.

You Get What You Pay For?

Just a thought before the Christmas holiday- gifts are great, but not in law. People who receive free services have a tendency to value them as they paid for them- which is to say, not well. It is absolutely worth offering "value-added" services to your clients, but don't do it by discounting your rates. You're not doing anybody any favors.

My New Year's Resolution: Learn to Say No

It's easy to say yes, and we do it all the time. However, I personally have a lot of trouble saying no, and it's a problem. It misleads people at best, and at worst it makes you look like you can't commit to an answer.

Therefore, I resolve to say no and explain as best I can to people why I am doing so. I find they will take it better if I am upfront and honest, and it saves me the trouble of worrying about it later.

At-Will Employment

Do you still think you "have" to give two-weeks' notice in order to quit a job? Or that an employer owes you the same courtesy?

Unfortunately, that thinking is a little outdated. Most employment in New Jersey is "at-will," which is to say that either of you can terminate the agreement at any time for any reason.

If you're upset at losing your job, try and think about why you lost your job. If you think that there is an element of discrimination (i.e. your race, gender, or age contributed to it) then talk to a lawyer. If your workplace environment was an absolute nightmare, go ahead and talk to a lawyer. However, if you just left on bad terms, be prepared for bad news in terms of a lawsuit.

On Fighting Nice: Don't Get Cute

When I'm writing a letter to somebody who's been a real pain, I'm often tempted to write something cute. Call it what you want- cute, smug, cheeky, whatever. Don't do it- play nice. You never know when those little remarks will come back to bite you. They might feel good to put in a letter, but the satisfaction they provide you is cheap and won't last when you look at the letter in a couple weeks and realize how small it makes you look. The ultimate satisfaction is prevailing in whatever conflict you have, and if you can do it by taking the high road, it's even better.

It's called discipline, and it's all about resisiting short-term pleasures in favor of longer-term gains. It isn't fun, but it is worth it.

On Fighting Nice, or Nothing Is As It Seems

Nothing is as it seems, and everything is up for negotiation. Whenever you get a letter demanding that you do something, or telling you that you "must" do something, take it with a big grain of salt. What appears to be iron-clad at first glance isn't always so, and there is usually a way to work toward a settlement in the middle.

Two Minutes on Realtors- When Renting Real Estate

Yesterday, I mentioned buying real estate, and the different agents. It's a little bit different for renting.

There are still buyer's agents and seller's agents, but unless you specifically tell an agent that you want them to work for you (as a buyer), they are probably working for the seller, and so you should take that into account when evaluating what they are saying.

The typical real estate commission for a purchase is 6%, to be split evenly between the two agents. In the case of a rental, the commission is usually one month's rent, to be split between the two agents. Depending on the area and the market, the buyer may be on the hook for some or all of that commission. Do not pay the commission up front- some unscrupulous agents will ask you to pay them most of their money up front with the promise that they will then take you around to some properties (or that they will give you access to their exclusive listings). It's hogwash- there are plenty of agents who will help you out without taking money up front. No matter who you speak to, make sure you ask about the commission before you get interested in a property.

Two Minutes on Realtors- When Buying Real Estate

If you've ever bought a house or thought about it, one of the things you almost always consider is a choice of agent. You want to make sure that that person helps you look for the right place, because they know more about the market and where to find the right houses. However, the person who owns the house you want to buy also has an agent. Even more strangely, sometimes that person is one and the same. What gives?

Keep in mind that there are two types of agents in a transaction like this: buyer's agents and seller's agents. Typically, one agent will not represent both parties, although the agent can if the parties agree to it. Most of the time, each party will have an agent who represents their own interests. Be sure, especially if you're a buyer, that you sign something saying that this agent is representing you; if you are dealing with the listing agent for a property, they are going to operate on the assumption that they are representing both parties.

Realtors are paid almost exclusively by commission, and that commission comes out of the selling price of the home. The buyer should not have to worry about paying their agent, as the buyer's agent's cut comes out of the commission.

Universal Truth of Self-Employment #10: Your business is not your self-worth.

This is very important to realize, especially for anyone who is going through a slump or who is nervous about starting a business for the first time.

I am starting a firm effective early next year, and I have said to people that it will show whether I'm "cut out for being a solo." I have thought about it some more and realized that that's not true. I have to recognize the possibility of failure, but just because the business fails does not mean I am not capable of doing so at all. The only thing I can do is try my best, make mistakes, learn from them as best I can, and move on.

Your business is just a business. People's businesses fold all the time, but they will often come back with other ideas, many of which succeed. You do not fail simply because your business does.

Other "standards" terms- presumptions, or other weird standards

There are some other legal terms that may operate to create standards that I haven't previously discussed. For example, sometimes you will hear that one side is "presumed" to have done something. This is the law's way of saying that the burden is on that particular person. Presumptions can always be defeated (the legal term is rebutted), but that may be either easy or very difficult to do. Also, you may hear other phrases that sound like standards ("a scintilla of evidence" is my favorite) but usually those are not in wide use, and sometimes they are just another way of saying one of the more common standards in use. Do a little more research and you might find out exactly what they mean (or that they don't mean much of anything).

Beyond a Reasonable Doubt

This is the standard of proof most familiar to Law & Order fans (and other shows, but sorry, I'm biased). A "beyond a reasonable doubt" standard is the highest one that the courts employ, because courts take very seriously any trial in which someone's personal liberty is at stake. If you're potentially going to jail, the courts want to make sure they get the right person first. The standard is amorphous, as many frustrated people have said, but is said to be met when people are firmly convinced of a person's guilt (we have heard that wording before) and though they are not free of any possible doubt, any reasonable ones have been eradicated.

People have tried to measure what "beyond a reasonable doubt" means as a percentage (how likely is it that this person is guilty?), and the numbers vary. These standards are not fixed in any way, but the system has been working fairly well for over 200 years this way so there isn't any impetus to change it.

Clear and Convincing

The "clear and convincing evidence" standard is difficult to meet. A finder of fact (a judge or jury) must be firmly convinced that you're right before giving you the win. This standard of proof is higher than "preponderance of the evidence," but most people agree it's lower than "beyond a reasonable doubt."

Preponderance of the Evidence

This is the most common standard of proof you'll have to deal with. It is the one usually used in almost all civil cases. It basically means that "more likely than not," your case is the right one. That is not a huge margin; various examples have it put at 50.1%. I've also heard it said that if you had two equally balanced piles of sand and moved one grain of sand from one to the other, that will satisfy the standard. Either way, it's not an incredibly high standard.

Probable Cause

Probable cause is usually understood to be the lowest standard of proof. It usually just means that there is enough evidence to lead a judge to believe that a crime has occurred. Judges and criminal attorneys are the only ones who routinely deal with probable cause, because it is the standard by which warrants are granted and traffic stops are made.

Standards of Proof

If you find yourself in court, you're going to want to get out (maybe even if you're getting paid to be there). The most satisfying way to get out of court is to win your case, but how do you do that? Courts employ standards of proof to determine which side should win a case. Those standards can either be very easy to meet, or very demanding. Knowing whether you have the burden of proving a case, and how much work is involved, could seriously change your attitude toward a particular court appearance. The next series of posts will delve into these topics and hopefully make this topic a little clearer.

Burden of Proof

All of the standards of proof that I will talk about are only meaningful if you have the burden of proof; that is, you have to satisfy the standard in order to win the case. If you are a plaintiff (if you are suing someone), or if you are a prosecutor in a criminal case, you have the burden of proving your case. If you are a defendant (criminal or civil), you don't. You can just sit back and do nothing if you want, if you're sure the plaintiff/State can't prove their case. Of course, if you want to you can provide evidence for yourself to make their job harder.

Discretion and Decision-Making in the Criminal Justice System

Here's something to consider when you're wondering how lawyers make their money.

Police officers are usually the first line of law enforcement. They may see something happen, but decide not to pursue it. They can use their discretion.

Attorneys who work for the State (at any level) can decide not to pursue a case brought to them, or to drop a case they are working on. They can use that discretion as well.

Judges can make rulings based on motions and other paperwork filed by attorneys, and those rulings often have huge impacts on a case. Juries can nullify a verdict by deciding not to convict someone for whatever reason, even though they're told they can't do that. These aren't really discretion in the sense I used it above, but as people they can make decisions.

Lawyers know they have angles at many or all of these venues. They will try to affect people's discretion and decision-making in their clients' favor. They don't have to be consistently successful to make a difference, either; one success can often lead to a dismissal or acquittal.

This is how lawyers make their money.

Universal Truth of Self-Employment #9: Ask For Help

I've talked about this before, but it's really the sort of thing you can apply all through your life and your business. Ask for help wherever you go and from whomever you meet. You might get business advice, or get a break on crucial supplies. You might get a friend. It never hurts to talk, and to ask. The worst thing you'll get is a no, and that's not bad at all.

Damages

Damages seem to be quite straightforward. If Percy was in a car accident and totaled his car, the cost of his car is part of his damages. If Percy were injured, those are damages too.

The problem is, what are damages meant for? In the law, damages are meant to make a person whole, and bring them back to the state they were in before an accident. In the case of things that aren't tangible (injuries, for example), measuring them is more an art than a science. That's where creative lawyering gets involved- how do you show that the damages somebody suffered are as great (or as little) as possible?

Causation

In the case I mentioned two days ago, it's fairly straightforward to see that if Darla ran her red light, then she caused an accident. However, sometimes it isn't all that easy.

The Plaintiff has to show in any negligence case that whatever happened, it acted as the proximate cause of the resulting damages. There must be a fairly clear link between the breach of duty (crash) and the damages (injuries and auto damage). For example, if I don't write my blog because I am on vacation and don't get to a computer that day, the vacation would be the proximate cause of that day's lack of blogging. The work I did six months ago, for which I was paid, which money I saved, which combined with the interest I earned helped to pay for the trip and the gas I used to drive to the airport? Not so much a proximate cause. There just isn't a link there.

Where is the exact borderline where a link becomes too weak? Sorry, there's no way to state that precisely, because if there were most of us lawyers would be out of a job.

A Thought on Black Friday

Take it easy out there. Shop online (don't wait for Cyber Monday!). It's called Black Friday because that was thought to be the day when retailers would come into the black, or be profitable, for the year. It's not Black and Blue Friday, because you're going to get bruised up from the stampede.

Happy Thanksgiving!

Eat, drink, don't drive. Sleep, catch up with family and friends, and give thanks for having good things in your life. They're there, I promise.

Breach of Duty

Having determined that a duty exists between two people, an awful lot of litigation revolves around whether one person has breached that duty to the other.

What is involved is always a fact-sensitive inquiry. For example, say Percy and Darla are in a car accident at an intersection controlled by a traffic light. Both parties say, in my example, that the light was green for them when they were struck by the other car. Having established that both parties owe each other a duty of due care (i.e. not to crash at the intersection), the question is whether (if Percy sued Darla) Darla breached her duty by crashing into Percy. One way to show that would be to show that Darla ran a red light.

Standards of Proof

If you find yourself in court, you are going to want to know how to get out because unless you're being paid to be there (and even then...), it's not a pleasant experience. As a plaintiff, you want to know what you need to prove in order to get your money. As a defendant, you want to defend yourself.

Also, you have probably seen enough criminal legal procedurals to know that the standard of proof in a criminal case is "beyond a reasonable doubt." You probably also have no real idea of what that actually means. Well, you're in luck. The next series of posts will talk about what the various standards of proof are, when you might find them, and when it's your burden to overcome them.

Duty (Not a Military Post)

The first element of civil negligence is "duty." The concept is that in order for one to be negligent toward another, there must be something in which they were negligent.

Some duties are assumed (a caretaker), and some are contracted (landlord/tenant). Most duties, however, fall into the category of "due care." Most people in everyday situations are supposed to exercise "due care" in what they're doing. It helps stops useless lawsuits, too; if someone I've never met gets into a car accident in another state where I've never been, I don't owe that person a duty (and they'd be well-advised not to sue me).

Of course, determining whether someone owes someone else "due care" or some other duty is also important, because it helps to gauge whether there's been a breach of that duty.

Negligence- What It Is, and How to Avoid It

The number one word you'll hear amongst trial lawyers, especially the ones that advertise on your TV, is negligence. That's the word that will determine whether you (as a client) get to recover for your damages, or whether you (as a defendant) have to pay. There are four elements to a claim of negligence, those being:

1. There must be a duty from one person to another.
2. There must be a breach of that duty.
3. The breach must be the cause of-
4. Damages, which are the subject of a lawsuit.

This week I'll talk about a fictionalized series of lawsuits involving negligence, and for ease of reference they will be between Percy (the Plaintiff) and Darla (the Defendant).

Proportionality in States of Mind- Not Just a New York Thing

Hooray for Billy Joel.

I know I haven't dealt with civil negligence yet. It's more complicated, and it's more useful for most people. It gets its own series.

As a general matter, the law sees liability as

criminal > civil

and

knowledge/intent > recklessness > criminal negligence > civil negligence > strict liability

because theoretically in the legal field, "It's an accident!" is supposed to mitigate a lot of your punishment (or on the other hand, the remedies that are available to you as the person wronged). Speaking in generalities, then, it's always good to have an idea where you fall on this scale, and if you can make a case that you weren't reckless, but merely negligent, you may be able to talk your way down out of something. Reckless driving, or driving in a way that willfully endangers others, carries maximum penalties of up to 3 months in jail and $500 in fines. The maximum penalties for careless driving, however, are a $200 fine and 15 days in jail. The insurance surcharges and DMV points are also correspondingly greater for reckless driving.

Strict Liability

Short and sweet:

Then, there's always that kind of liability where you do something, and nobody cares why. The fact that you did it is enough. That's what is usually called "strict liability." Usually strict liability is only applied to civil fines and penalties, and not to anything that involves criminal liability (i.e. jail).

Discretion and Decision-Making in the Criminal Justice System

Here's something to consider when you're wondering how lawyers make their money.

Police officers are usually the first line of law enforcement. They may see something happen, but decide not to pursue it. They can use their discretion.

Attorneys who work for the State (at any level) can decide not to pursue a case brought to them, or to drop a case they are working on. They can use that discretion as well.

Judges can make rulings based on motions and other paperwork filed by attorneys, and those rulings often have huge impacts on a case. Juries can nullify a verdict by deciding not to convict someone for whatever reason, even though they're told they can't do that. These aren't really discretion in the sense I used it above, but as people they can make decisions.

Lawyers know they have angles at many or all of these venues. They will try to affect people's discretion and decision-making in their clients' favor. They don't have to be consistently successful to make a difference, either; one success can often lead to a dismissal or acquittal.

This is how lawyers make their money.

Criminal Negligence

Negligence is a two-part beast; criminal and civil negligence are different. Civil negligence is a topic that I will discuss in much more detail next week; criminal negligence is something I can dispose of rather quickly.

Again, most of the time that we talk about criminal negligence it's in the context of homicide, which hopefully none of you will ever have to worry about. Criminal negligence is basically "careless, inattentive, neglectful, willfully blind, or" in other words, really, really dumb. What's the difference between criminal negligence and recklessness? Really, not all that much; depends on how zealous the prosecutor wants to be.

Recklessness

The Model Penal Code defines recklessness as

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

I pulled the definition from the criminal code because that's where recklessness is most often used as a legal tool. The key phrase here is "disregards a substantial and unjustifiable risk." The risk must be substantial (not imaginary) and unjustifiable (there must be no good reason for disregarding the risk). The justification is proportional to the gravity of the risk (you'll have to work hard to find a justification for homicide, for example).

If that doesn't make any sense, just understand that if negligence (to be defined later) is stupidity, then recklessness is either extreme stupidity or borderline purposeful stupidity.

Intent and Knowledge

These are two different technical states of mind, but for most purposes it doesn't really matter which of them you fall into. Apologies in advance about my examples, but I would like to keep them G-rated. No killing people on this blog.

An example of intent: I hit the send button on my cell phone. I intend to hit the button. I thus intend to make a phone call.

An example of knowledge: I cracked two eggs into a saucepan (or other appropriate pan- I'm not an expert here). I turned on the burner, virtually certain that eventually I would cook my eggs. I have knowingly cooked my eggs.

Michael's Post at Gavel Report

Michael over at Gavel Report has a different blog style than I do. He is very detailed and his posts require some serious reading. He also deals almost exclusively with criminal and constitutional law. I tend to do things in two-minute chunks because my attention span can't handle writing long posts.

That said, he's also talking about states of mind in the law. See his post here.

What the Heck Were You Thinking?

This is the first time in a while that I've had to say this, but here it is.

This isn't legal advice. I don't want you to rely on this in any way. The best way to avoid criminal liability is to not break the law.

That said, have you ever wondered what the difference is between murder and manslaughter? The difference between "knowing" and that "you should have known?" That sometimes, what you think doesn't matter? (That might not be such a revelation.) Interestingly enough, the entire legal system bases a large part of the law on what can be proven about what someone is thinking at the time of an act. I'm going to write posts in the next week or so about six different "states of mind" that have a place in the law. How lawyers go about proving them is beyond the scope of this blog, but at least I can tell you in broad strokes what they're looking for.

The six states of mind I will write about:

Intent
Knowledge
Recklessness
Criminal negligence
Civil negligence
Strict Liability (i.e. it doesn't matter what you were thinking)

Finders: It's a Different Kind of Work

Finders work and make money by getting clients. The work can be done by them or by other people, but as long as they are the ones getting the clients they will be fine.

Why is it good to be a finder?

Lots of money. Your income potential is quite unlimited. If you can bring in a steady stream of business, you can make plenty of money even without being responsible for all of the nitty-gritty work.

Not as much writing/research. Especially if you work in a larger firm environment, other people can do the work you generate. You might not have to worry about it as much, because you'll be able to spend your time meeting people and generating business instead.

Why is it bad to be a finder?

You only make money if you're bringing it in. You're the only one responsible for your business, and if you aren't bringing the money in then you aren't going to be making the money for long.

It's a lot of work. You have to have connections and farm them to generate business. People need to know who you are, and they need to give you that revenue.

Minders: More Money, More Responsibility

Minders, as I mentioned earlier in the week, are supervisory lawyers.

Why is it good to be a minder?

The money is better. Supervisory attorneys get paid better than grinders, and they don't have to do a lot of the really dirty work with research and writing. In that vein...

There's less dirty research and writing.

Why is it bad to be a minder?

Responsibility. You are responsible for your own work and for the work of others. That can be a little bit of a problem, especially if there's a mistake.

It's hard to get there. You can't just start as a minder- you'll need to work your way up and pay your dues as a grinder until you get there. There are a lot fewer minders, though- so you're definitely not guaranteed anything.

Veteran's Day

Let's spend a moment today honoring the contributions of our veterans who have kept the freedom of our country intact for 225 years.

Grinders: They Get Eaten for Lunch

This is me being clever. Grinders have a high-stress existence, where they are often pressured to work long hours and produce a large volume of material.

Why is it good to be a grinder?

Job security. If you're good at what you do, and you can make yourself indispensable to another lawyer, you will always have a job.

In-the-trenches knowledge. If you always work in research and writing, you will never be too far from the actual law. If you enjoy law for the sake of law, this is a great job.

Why is it bad to be a grinder?

It's hard. Law is not easy, and writing and research are not very easy things to do. It may be that you're not naturally extremely talented at them.

There's a ceiling on your salary. Ultimately, if you aren't the one bringing in business, you are providing a skill and being paid for it. There is a limit to how much you will be paid, unless you work in a very specialized area, because there is a lot of supply to meet demand.

What Kind of Lawyer Are You?

This isn't my creation; you've probably heard it before.

There are three types of lawyers: "finders," "minders," "grinders." What are they?

Finders are lawyers that get work, or specifically lawyers that go out and get clients who need them.

Minders are people who supervise lawyers and work. They know what they're doing and have experience and skills.

Grinders are lawyers who work for other lawyers. They do the work that is assigned to them.

Advertising

A quick story on advertising:

A friend of mine owns a vacuum store, and once advertised in a newspaper and was convinced he was not getting results. For the last few months of his advertising contract he changed his ad to show that he would give away a vacuum, for free, no strings attached, to the first person who appeared in his store with the ad. On the last day of the contract, someone showed up and offhandedly mentioned the ad.

For several months, nobody had even bothered to show up to claim a free vacuum. Try and learn from this example, and be careful where you advertise. Advertising is expensive and probably not worth it unless you know the audience you're looking for, and it matches the advertising.

Universal Truth of Self-Employment #9: Confidence is Key

I was going to title this post "Be a Champion," but I don't want to be confused with a Yankees fan. (Congrats on #27, by the way. We Mets fans are still waiting for #3.)

Confidence is a key attribute for raising business. You can network and speak all you want, and get your name out there any way you see fit- but if you sound like the 98-pound weakling doing it, you're not going to reap any benefits from all your work.

If you don't believe in your practice, there isn't any reason for anybody else to do so either. Make sure people know you believe and love what you're doing, and the rest will follow naturally.

What Do All These Methods Have in Common? (And a Quick Tech Tip)

Easy answer to that one: technology. The key to paperless work is your willingness to move your paper to a more tech-heavy format. Some of the solutions I have offered don't involve really intensive difficult technology- however, some of them require a state of mind that a lot of people just don't have.

Oh, one quick tech tip if you're going to do anything important on a computer (you know we all do): BACK UP YOUR HARD DRIVE. If you don't know how to do it, ask me or somebody else, and we'll help you. It'll probably involve getting yourself an external hard drive which you can back up easily and (fairly) quickly, and take with you so it's off-site. That way, even if there's a fire or the office is burglarized, you're fine.

Election Day!

VOTE!

That is my official, legal opinion.

Outsourcing Mailing and Other Paper Tasks?

I've heard suggestions that you should outsource mailings and other paper-based tasks.

Personally, I know there are great lengths to which you could go in order to minimize the paper trail in your office, but I find it hard to believe you're so busy (or, your support staff is so busy) that you can't make time to mail things.

The Fax of Life: Electronically

Faxes are, well, so 1980s.

E-faxing is a nice way to avoid excess paper and to funnel everything into email and onto your computer, where you're going to store everything else that comes into your office.

There are a lot of different services online, such that it's not really worth trying to compare them. They're all about the same; they give you a number, you get a couple of hundred outgoing minutes a month (generally it's about a minute a page sending a fax), and unlimited incoming minutes. Services start at about $10/month. Also, there's no need to have an actual fax machine.

Good Old Email: Can It Help With A Paperless Office?

Answer: absolutely.

People receive court documents and information from clients all the time through email. If those documents only stayed that way, there would be no paper created.

The best way to use email so as to reduce paper is to send court documents to adversaries whenever possible through email, and to make sure to communicate with clients if possible through email. All of the submissions and attachments can then be put in the respective clients' folders, and are thus just as searchable as if you scanned them into PDFs. Of course, not everybody is going to be that technologically progressive, but you do what you can.

Scanners

Scanners are probably the most common and useful part of any paperless office. The idea, of course, is that you will take any of the paperwork you get in the mail and scan it into a PDF on the computer. You could also scan in opposing parties' pleadings and other litigation materials. The advantages of this approach are several- first, there isn't as much paper hanging around the office, and second, new advances in searchable PDF technology make it easy to search the contents of any documents scanned in, and potentially make it a lot easier to find anything in a large quantity of papers.

The only real disadvantage of this method is the time investment involved. Scanners of course are a lot faster than they used to be, but it still takes an ongoing time commitment on the part of either you or your staff. I would recommend a scanner to any lawyer, if for no other reason than because it is so easy to send documents back and forth via email (and increasingly courts are accepting or even requiring submissions via the Internet).

Voice Recognition Software

I like to write my thoughts out in an outline before I write anything of any length. That's especially the practice of those attorneys who are not great typists.

Voice recognition software lets you talk into a microphone (often something worn on the head) which then "writes" into your word processing software. Some people use it to write everything, and can sound kind of zany when using the commands the software offers to make corrections ("Scratch that. Scratch that!") or make capital letters ("Cap that!").

However, if you just want to use it to write letters or quick notes to yourself, it'll at least save you some of your secretary's time. Which they can then use to scan documents in using your new scanner! Which is tomorrow's topic.

Defining a Paperless Office

People used to talk about "inbox zero." That was the twenty-eight seconds that we had that one time at 2:28AM one early Sunday morning when there was nothing at all left in the inbox. Of course, now a lot of us just look to keep our heads above water, let alone aiming for zero.

An awful lot of people are eerily close to "inbox zero" while worrying about (or worse, experiencing) the dreaded "paper avalanche."

It's awfully hard to stay organized with all that paper floating around. But one reason a lot of people don't shoot toward a "paperless office" is because they don't know what it means, or if it's possible.

Wikipedia may not be admissible in court, but it works for my purposes. I'm going to adopt the following definition for a paperless office:

A paperless office is the basic idea was that office automation would make paper redundant for routine tasks such as record-keeping and bookkeeping.

There are several things you can use to make your office more "paperless," as long you know what your goal is and how far you're willing to go to achieve it. Those things include voice recognition software, a scanner, email, electronic faxing, and outsourcing of paper-based tasks (like mailings).

Mutual Expectations

I think I stole this idea from a tweet by Matt Homann. In which case, hat tip to him.

Another way to keep perspective, and also a good business planning tool:

1. Make a list of the things your clients should expect of you.
2. Make a list of the things you should expect from your clients.
3. Use them to keep you on the right track.
4. Now that you're using them, why not show them to your clients as well? If you make yourself accountable to them, they won't mind being accountable (in more ways than one) to you.

Keep Up with Colleagues/Friends

Another nice way to gain perspective or keep it? Make sure to talk to friends and colleagues if you're confused, and get them to remind you that you're on the same path you've been on. If you're not, they'll let you know.

One good way to do that is to "buy in" to an existing network of professionals through renting office space. As Carolyn Elefant notes in this recent blog post, renting in a down economy may not be the practice-killer that it would otherwise be. I'm (and she's) not saying to splash out on a fancy pad if you're just starting out, but an office in a building with other professionals in your profession will help you get a sense of how you're doing and will also allow you to create a "backup" system if you get into trouble and need somebody to cover you. She and I talk mostly about lawyering, but it applies with equal force to most other professions.

SMART Goals

Here's one way to keep perspective. It helps to have goals set (and kept in front of you) that work to remind you constantly of where you're going, so you don't get sidetracked by the various little things that happen on a daily basis. One method often used to formulate these goals is known as "SMART goals:"

S = Specific
M = Measurable
A = Attainable
R = Realistic
T = Timely

...so in other words, "I will do very well someday" would not qualify as a SMART goal because it's not specific enough (I will make $X), measurable enough (quantifiable in money or time), attainable (how does one attain "very well?"), realistic (there may be speed bumps along the way and it's hard to jump to "some day"), or timely ("someday" of course isn't really set in terms of time). A better example would be something like

Within six months (timely), my business (specific) will be operating on a break-even basis (realistic- I'm not looking to make a million overnight) (measurable). Is this goal attainable? I don't know yet, but I think it might be. As a result, I might use this as a goal, and adjust it as time goes by.

On Perspective

A lot of people are wildly optimistic about some coming development in their lives. At least they are today. Tomorrow, they may swing wildly to the other side of the spectrum, based on little data, or even based on the absence of data. ("They didn't call back; they must not be interested.")

Why do people change their opinions on something so quickly? I submit that it has a lot to do with a lack of perspective. If you don't have a grasp on the big picture (your long-term plans), the little things are going to run your life. And those little things are appallingly little- the lack of a phone call, or an inflection in someone's voice. An eyebrow.

I have a few ideas on how to combat this problem, to come in the next few days.

Universal Truth of Self-Employment #8: Emotional Decisions Often Self-Destruct

Do you want to sue, or to vent? One is easier (and cheaper) than the other...

If someone has done you wrong, taken something that's rightfully yours, and you're mad at them, there are many things you could do. Some of them, for legal or moral reasons, you wouldn't consider. Some of them, like suing them, you might consider. Or, you can just let it go and talk it out with someone.

I talk a lot of people and small business owners out of paying for and pursuing litigation because I realize why they're doing it. They want to use lawyers and litigation as a sword, rather than a shield. There are times, of course, when litigation makes a lot of sense and has a nice added emotional benefit. However, if you're primarily suing someone (or filing a motion, or whatever) because you're mad or hurt, you might find you're going to drag out the pain and suffering for yourself as well. At day's end you might find it wasn't emotionally worth it, let alone financially worth it.

Friday NIght Lawyering?

A little personal note tonight-

I'm writing a brief tonight, at 11:30 at night. I'm not necessarily proud of this, but my wife understands. We're still spending time together, and I'm awfully happy we can balance our lives when I have to do work at a weird time (and certainly not during business hours).

I don't think I want to make a habit out of it, though I may not have much of a choice- solo practice, and especially litigation, involves working a lot and at weird times.

Blog Action Day: Climate Change is the Topic...

This is not really a legal topic, but still:

and it's snowing in New Jersey and Pennsylvania. Everywhere Al Gore goes, it seems to hit record low temperatures.

The media proclaims that it's perfectly obvious that climate change is happening and will be irreversible imminently. However, people still disagree, and not just crackpots- it's respected scientists.

The climate change issue isn't all that different from legal issues: reasonable people can disagree. There isn't a definite answer to this one, because the forces at work are too complex to understand completely. We shouldn't act like we do understand them.

You can read lots of other blog articles about climate change at http://www.blogactionday.org.

It Can't Hurt To Ask!

This little piece of advice is mostly for non-lawyers.

You know when you get a traffic ticket? Or some place tells you that your rent is going up? Or a car dealership gives you a certain price? That's fine, unless you're not happy. The only thing stopping you from possibly getting a better shake is yourself. It's just like your parents said- it can't hurt to ask. What are they going to say? No? So you're back where you started.

You Don't Always Need a Microphone and a Speaker System...

if the people in the stadium aren't listening.

This is why lawyers talk to small groups and not in big arenas. Ask most lawyers, and they'll tell you that a few focused, motivated clients make all the difference between a great year and a mediocre one.

The key, of course, is finding those small groups and talking to them. Which obviously isn't as easy as it sounds.

Retainer Agreements- Or Double-Edged Swords, whatever you prefer

I find myself writing a retainer agreement for a client, and it just reinforces to me the notion that a lawyer must be extra careful about drafting the retainer agreement to protect them. Contracts such as these often involve people who aren't as sophisticated as you are, and courts tend to read them very narrowly against you. You don't want to get stuck with a bill for an expert (see here), or not be allowed to collect your fee at all (here). You really don't want to get into ethics trouble (here). So be careful. I suspect that talking about the specifics of a retainer agreement is beyond the scope of the blog, so I would advise you to contact me off-list or to talk to another attorney who can help you.

However, the one thing that's true regardless of what kind of contract we're talking about: write them carefully, read them carefully, and try to have a little foresight when doing both things to imagine what might go wrong.

New Lawyers: Free Work Might Be a Good Thing

This is for new lawyers, or for lawyers who don't have a lot of experience in a practice area. If you've been around a while, see you Monday.

Say you don't know anything about an area of law. Find somebody who you know, and have them walk you through it. If you have a relationship with a client, make sure the clients thinks you're the one doing the work, but give their fee (most or all) to the experienced attorney. The attorney is more likely to help you, might refer you cases to return the favor, and you're going to learn in the meantime without having to pay. Plus, you'll have a happy client, which is always a good thing.

Universal Truth of Self-Employment #7: Set Goals, and not just for your business

We all know some wildly successful businesspeople. These are people with drive and vision, and who have executed a solidly constructed business plan to make lots of money. They have more work than they know what to do with.

We all know some very happy people. They are content with life, and know how to handle the stress and challenges that life throws at them. They are happy with their family, relationships, and are overall positive forces in our lives.

We all want to be part of both groups, but too many times success in one precludes success in the other. It doesn't have to be that way. It sounds simple, but it's really very difficult: make goals, revise them when they don't work, and figure out what will make you happy. BALANCE. Find the courage to shake things up if they're not working. Heck, shake things up before they stop working.

For Lawyers Who Think "Expertise" is King...

The ability to deal with people is as purchasable a commodity as sugar or coffee and I will pay more for that ability than for any other under the sun. -John D. Rockefeller

I agree you can make good money by being good at lawyering. I agree that if you are the best in your field, you can write your own check. However, how big is the top of that pyramid, and how big is the fall-off from there?

I would make more money as a a so-so lawyer who was great at dealing with people than an A+ lawyer whom people would never let out of the office. Plus, most of the time when people need lawyers, they don't need lawyers- they need practical, sensible advice from somebody who isn't emotionally invested in their situation. There's no law school in the world that can teach that.

Using Meetup.com to Talk to Clients

Carolyn Elefant recently wrote an article about attorneys using meetup.com to talk to people (and potential clients) about legal issues. It's worth checking out and seeing if an attorney can do something with this without spending a huge amount of time at it.

Carolyn's article is here. It was written on October 1, 2009.

Using a Living Will to Facilitate Suicide

An interesting article came up over the weekend about using a letter as a "living will" in England to commit suicide. Look here for the full article.

A woman wrote a letter three days before she poisoned herself with antifreeze. In the letter, she stated that she might arrive via ambulance (that she herself had called), but wanted no lifesaving measures and only wanted to be made comfortable. When she administered the antifreeze to herself and called the ambulance, she brought the letter with her and gave it to the doctors. The doctors obeyed her wishes, fearing assault charges if they disobeyed what they believed to be her clear intent (which she had the capacity to express). She died afterward.

A few interesting questions here. Is this a living will? I suppose so, although it doesn't meet the legal standard codified in New Jersey law (two witnesses, notarized, etc). It does at least give some indication of the intent of the testator, even if it's limited to something like suicide. It also indicates that there is capacity, and that the person did think about this before penning the document. However, did the medical staff act ethically in allowing the patient to die? Apparently so. However, I don't like the precedent this sets. Especially where there is a clear public policy against suicide in the United States, using a living will to facilitate suicide places the medical and legal professions in conflict. The law should protect doctors who want to contradict the wishes of their patients in this kind of circumstance, and/or invalidate living wills purportedly used for this purpose.

Let Us Shed a Tear for the Super-Rich...

http://www.msnbc.msn.com/id/33092678/ns/business-forbescom/

The richest Americans lost $300 billion this year, or about 19% of their net worth.

19% is a huge drop. All of those folks living in trailer parks after banks foreclosed on their houses are feeling your pain. Oh, wait, they're not. They couldn't care less. Neither could I.

Hey Lawyers- Free Forms Aren't Necessarily Bad

Just two thoughts:

1. Repair shops love other repair shops that do bad work. It creates lots more work for them, and happy customers when the good shops get it right.

2. Just because the forms are free doesn't mean that there aren't other services, related to the forms, that might be quite profitable. The challenge is finding those services.

Don't Be Alarmed at Things Listed in a POA

I've seen good POAs written which include the right to institute an action for divorce among their terms.

Why would an incapacitated person want to divorce their spouse?

If one spouse is headed for an assisted living facility or a nursing home, and the other spouse (helped by a POA, or armed with a POA) decides that with legal help she will divorce her spouse, she might be able to avoid having her assets count for purposes of qualifying her spouse for Medicaid. This way, their hard-earned retirement doesn't necessarily have to pay for nursing home care.

This is the point where I tell you that this is complicated and you shouldn't try this at home. However, it makes sense to put it in a POA because it's not immediately obvious otherwise.

General versus Specific POAs

You may hear people refer to POAs as "general" or "specific."

General POAs allow people to do basically anything. Good POAs will still cover a wide range of activities, but theoretically by their nature (being general), the power of attorney should be able to do anything.

Specific POAs are not usually used in an estate planning context. They allow a person to do a certain range of things. I see these most often in divorce proceedings, when a court will grant one spouse a "limited power of attorney" to do something which requires signing the other (non-cooperating) spouse's name.

We can keep this short: you want a general POA. Banks will give you enough of a hard time if you don't put the kitchen sink in your POA. There's no sense in limiting it further by making it specific or limited.

Springing v. Durable Power of Attorney

You may hear a POA referred to as a "springing" or a "durable" POA.

A springing POA comes into effect once someone is incapacitated, or upon some other event.

A durable POA is in effect the moment that you sign it.

Clients sometimes ask me why they should sign a durable POA- after all, the person has the power to take their assets anytime, and why should they have that power? My response is always, and has always been: you trust them, right? Why wait for "some event" to determine when the springing POA springs? If you don't trust them to do the right thing while you are healthy, do you trust them to do the right thing once you're incapacitated?

Which Brings Us To- Wait, What's a POA?

All of this discussion about a document called a POA, and I suppose I should define it quickly for you.

A power of attorney is a document in which you give legal authority to somebody else to do certain things on your behalf. The substance of the POA, basically, is just identifying the "somebody else," the "certain things," and when the POA goes into and stays in effect. I'll get into that last bit during the next post.

You need one so that you can make sure that if you are unable to handle your affairs, someone else can do it for you and the authorities (banks, mostly) won't give you a hard time about it.

I said it a couple days ago, but it bears repeating: you don't want to be caught without one.

You don't want to be caught without one.

It is difficult and expensive to get the legal equivalent of a POA after the fact. The laws are a pain in the neck precisely to stop people from usurping the resources of some incapacitated person late in the game. This is why you must take care of this before you need it. If you need one, it's too late.

POAs are Easy to Get- Really Easy.

POAs are simple forms, and most lawyers have them. They are very easy for a lawyer to draft and modify, and they are very inexpensive. Most lawyers throw them in as a part of any basic will package (which is another topic- you need a will. Believe lawyers when they tell you this. Unless you're Daddy Warbucks, it's not all that difficult/expensive, either.

The main requirement for signing a POA is that you need to be "competent" to sign a legal document. You need to be 18. You also need to have sufficient mental "capacity" to understand what you're doing. This is a little bit more of a fuzzy area (no pun intended), especially if you're dealing with a client who...has their good days and their bad days. However, lawyers who do this sort of thing know when somebody is "with it" enough to sign one of these documents.

Bottom line, though, if you're healthy, of sound mind (don't listen to your spouse- you're probably of sound mind despite anything they say), and over 18, you are probably fine to have a POA drafted. And it's a good thing- there's not a moment to waste.

Power of Attorney- Get One!

This and the next few posts will be about a legal document known as a "power of attorney" (POA). Suffice it to say- you need one, even if you're young and healthy, because it will save you and your family untold trouble and expense down the road.

I will discuss the different types of POAs, and how easy they are to get.

However, just keep this in mind- if you become incapacitated (due to dementia or due to illness), nobody can manage your affairs because you never gave them the legal ability to do that. If somebody needed to take care of you for an extended period of time, they would have to go to court in order to secure that ability. It would cost well in excess of $10,000. Just for reference sake, a POA can be had as part of a simple will package for less than $500. It doesn't make any sense to do anything else.

The Customer Is Right, Or You're Out of Business

As Seth Godin would say here:

http://sethgodin.typepad.com/seths_blog/2009/09/win-the-fight-lose-the-customer.html

"The customer is always right" doesn't mean that they'd win in court or a debate. It means, "If you want the customer to remain a customer, you need to permit him to believe he's right."

Or as Dale Carnegie said once (paraphrased), "Sure, I told him [in an argument]. But I never sold him anything."

You may realize you're right, but if you make that plainly clear to your customer, you can assure yourself of that customer going somewhere else. Especially when there's so much competition.

On an aside, the beauty of the Internet is that you can quote from a hundred different sources saying more or less the same thing, in slightly different ways. And here's the best part: it only takes a matter of moments to find all of those sources.

Brilliant Legal Mind Does Not Equal Brilliant Attorney

Lawyers are supposed to solve problems. Sometimes that takes brilliant legal minds, deductive reasoning, and passionate advocacy for a client.

Usually, though, a healthy sense of common sense, compassion, and a little quick thinking will more than fit the bill. Do you know any professions where these qualities wouldn't be helpful? I don't, and I think that's one more reason why you don't always need a lawyer- you need a dispassionate sounding board. Lawyers, in case you didn't know, don't acquire these skills in law school, and tend not to have them in any greater quantity than other professions.

What were you thinking? Actually, don't answer that.

An ordinance in Blairstown, NJ regulates the planting of shade trees:

171-2. Shade trees. The streets of the township shall be used for the purpose of public travel only, with such other use of the same as is necessarily connected with public travel. Shade trees may be planted along the streets, highways, and alleys, but not within the prescribed limits of the same. Such trees shall be planted so as not to obscure light and air [Ed: ?!] and shall not be so close as to interfere with the lawful use of such streets, highways and alleys. They shall be properly trimmed by the owners of adjoining premises. No person shall wantonly or negligently cut or destroy any such shade trees without the consent of the owner of the adjoining premises and of the Committee and occupants.

Landlord-Tenant: Should You Go It Alone?

It occurred to me yesterday while writing the post on speeding tickets and municipal court that it might not be a terrible idea to represent yourself in landlord-tenant court as well. Especially where it deals with the recovery of a security deposit, the law in New Jersey is extremely well-settled and there are a lot of resources on Google that should be able to help you along.

On the other hand, if you are going to be evicted and don't have another place to go, I can understand being hesitant to appear without an attorney, but financially you might have no alternative. The good news there is that by and large the law is pretty clear here as well and you can find out what to expect by just doing a little research.

Don't Mail it In: Parking and Speeding Tickets

There are lots of parking and traffic laws in New Jersey, and even though you may be a great driver and know your way around the road, chances are that you don't know all of them. Eventually, you're probably going to get a ticket (technically, a summons). What do you do?

This isn't really legal advice so much as practical advice: if you're not a long distance away, fight it. Even if you think you're probably guilty, you aren't going to do any worse going to court than you would if you just paid it online (www.njmcdirect.com). Actually, you might do a lot better; depending on any defenses you can think up, the prosecutor might give you some sort of deal to convince you to plead guilty. You might end up with fewer points and/or a smaller fine just by attending court. Plus, you can get a sense of how the process works, and that goes a long way toward taking away the fear of the whole process.

The best part is that on the municipal level many people represent themselves in court; for a more complicated summons or a DWI there are usually lawyers involved, but you can often save yourself the trouble of hiring an attorney because the prosecutor and municipal court judge will help you out when you're there by yourself. It's an interesting experience, and I think it's worth it for anybody to try at least once.

Why Do Small Businessowners Not Mind Working a Million Hours?

Economic profit.

Economic profit is a term in economics which is defined as total revenue less opportunity costs.

Opportunity cost is that which we could have been doing with our time or money had we not done this. I could have been eating lunch if I weren't posting to the blog, but since I would rather post to the blog I have overcome that opportunity cost.

When people work for themselves, they have a certain amount of money they need to make to overcome their opportunity cost (i.e. to overcome working for somebody else instead). If you really don't want to work for somebody else, or you're really happy where you are, the money doesn't matter because it doesn't take much of anything to overcome your opportunity cost and turn an economic profit.

The flipside of that is that if you hate your job or your situation, no amount of money will make you feel like you're "turning a profit." So control what you can- make your situation one you're happy with. Making more money might or might not be something you can control, and you can only hope it's never the deciding factor.

Universal Truth of Self-Employment #6: "Overhead" isn't just financial.

This is related to last Thursday's post. Overhead is commonly defined as those costs of doing business which you have to recoup in order to at least break even. Just remember: those costs are not just financial. And the decisions you make every day to minimize overhead should take into account those extrinsic factors. If I can't get work done at a home office, and my productivity is half of what it should be, that's a lot more overhead than some cheap office space will ever be.

We Must Never Forget

Why I Don't Want a Home Office

I've spent the last couple of weeks between jobs. I wake up at a decent time during the day, and I'm plenty organized. I have my list of things I want to do. I want to enjoy myself a little during the day, but I don't have "distractions" in the sense that a lot of people do. I don't have kids or huge responsibilities. And yet the days bleed away so fast.

Part of it might be my adjusting to a new situation, but psychologically I am sitting at my desk and thinking about doing actual legal work, and I don't think I can do it. This desk is where I do all manner of other computer-related tasks, and keep my personal files. I would have a great deal of trouble putting on my "work" cap and simply moving right along.

Laughs in Bangladesh? and Thoughts on Ties

I got this article off the Drudge Report. Say what you want, good or bad, about his politics, but the man has an eye for funny articles. Exhibit A: this one about how Bangladesh's male governmental officials may no longer wear suits and/or ties.

That's quite amusing enough, but the author of the article (I'm guessing he is doing so with his tongue about three miles into his cheek) lauds as a practical rebellion what is really an attempt at reducing the Bangladeshi government's entanglement with its corrupt energy sector. The money quote:

In addition to eliminating pointless and uncomfortable decorative elements from men’s clothing, the move will help minimize the need for air conditioning. Accompanying the government’s laudable decision was an order not to turn air conditioners in government buildings below 75 degrees F.

I deny that I am the type of "inveterate masochist" that the author holds out as the sole supporter of neckties, but I still think they (and what society now considers to be "professional" dress, including a tie and a suit) have significant value, especially to lawyers. Dress has a psychological effect on both you and the people with whom you interact, and if you project a professional image, (and that's what you're looking to get from people), you're bound to have a positive outcome.

In other news, I could be dressed in sweats and a T-shirt, and I would welcome an air-conditioned 70 or 72 rather than the 75 mentioned in the article. Remind me not to move to Bangladesh.

Do lawyers always mean bad news?

I know that this cute little saying I have doesn't hold true for corporations necessarily, but for individuals I stand by it.

I hope you never need a lawyer- lawyers always mean problems.

I have dealt with one case in my life, an adult adoption, in which a lawyer was a good thing and came in to the picture specifically to create a happy moment. Otherwise, lawyers only get involved once there are big problems in somebody's life.

Not sure what to think about this, but there it is.

Ways not to find a lawyer: Craigslist

I don't necessarily mean that you shouldn't look on craigslist ads for lawyers. If you think that's the best way for you to actually find a lawyer, and you don't know anybody else in the whole wide world who's ever known anyone who's had a lawyer or used a lawyer or thought about a lawyer...

but seriously. Don't post on craigslist asking a legal question and looking for a lawyer. In addition to the desperate people who might message you back, there are also scammers and spammers. And those people might, just might, be convincing enough over email to take advantage of you. The lawyer-client relationship is a fiduciary one, and you can't afford to be taken advantage of precisely when you're vulnerable. (You are vulnerable, otherwise you wouldn't be looking for a lawyer).

...and why most people can't follow that advice

I had this thought after posting yesterday's excerpt from Matt Homann's blog. In order to determine effectively whether you are being nourished or poisoned by someone's presence, you have to be able to:

1. Establish a baseline.
2. Know what it means to feel more or less energetic, and admit same to yourself.
3. Know how to measure present feeling against past feeling, and admit same to yourself.

I don't know about you all, but this is a very difficult task for me, because I'm not at all sure I'm in touch with my emotions and feelings that way. Not to sound all sensitive or anything, but that's the limiting part of this whole advice, and similar advice asking you to trust your feelings or your gut. Lawyers are often trained, exhorted, and berated to reduce decisions to a consideration of utility, and that's precisely why they fail to act with compassion toward other people. Why they often fail to bring in clients successfully. Why they can't tell whether someone is a good or bad addition to their client roster, especially when the checkbook is there to complicate things.

Are the people you meet giving you energy or taking it away?

Matt Homann posted the following tidbit on his blog:

Not sure whether to take that client? Here's a great test from Milton Glaser he uses to avoid toxic people:
[T]here is a test to determine whether someone is toxic or nourishing in your relationship with them. Here is the test: You have spent some time with this person, either you have a drink or go for dinner or you go to a ball game. It doesn’t matter very much but at the end of that time you observe whether you are more energised or less energised. Whether you are tired or whether you are exhilarated. If you are more tired then you have been poisoned. If you have more energy you have been nourished. The test is almost infallible and I suggest that you use it for the rest of your life.

[end of Matt's post]

I really wish I would have thought of this, because you can use this well beyond the client-lawyer relations arena.

The full blog post is available here.

Universal Truth of Self-Employment #5: Occam's Razor

Ask a hundred people a question, you'll get a hundred different answers. However, the simplest answer is usually the best one.

In business, as in life, there are times where things really do need to be complicated. however, so often they are complicated for the wrong reasons. Unless something needs to be complicated, try as hard as you can to simplify it. Simple and elegant explanations are difficult to create (and that's why people don't bother creating them!), but they are much more effective than legalese and trickery.

What Should Your Goal Be at an Initial Consultation?

You're evaluating the lawyer as much as the lawyer is evaluating you. The point of an initial consultation is both to gather information and to figure out, as best you can, whether this particular arrangement (lawyer-client) would work to your benefit. For the client: do I like this lawyer? Does it seem like he knows what he's doing? Is the price competitive, and/or something I am willing and able to pay? For the lawyer: is this client responsible? Can I effectively represent this client? Can I help this client efficiently?

What is the Scope of an Initial Consultation?

You can't reasonably expect to get an entire case finished and disposed of at an initial consultation, but you may find that you get a good deal fo information there that will help you moving forward.

If you're looking to have a specific legal question answered, a lawyer will often have you give as many facts as you can, asking questions to narrow the issue. The lawyer can then probably give you some sort of answer, which will be based on her knowledge and experience (although probably not authoritative; it's just off the top of her head).

More often, though, you have a problem and you don't know how to formulate it into an exact question. It's more of a situation where you have to ask "How do I get myself out of this situation?" or "How do I protect myself/my family here?" The lawyer knows that additional work will be necessary in this situation because it will involve litigation or additional paperwork, such as trusts or corporate documents. As a result, the lawyer might just use the opportunity to ask you more questions, and reserve most of the detailed legal opinions for another day.

Fees at Initial Consultations

What should you expect to pay for an initial consultation?

Often, lawyers will offer a free initial consultation. Obviously that's easy on the budget, but it may not be a full consultation. On the other hand, some lawyers will charge for an initial consultation. Typically, the fee will be either at the lawyer's normal hourly rate, or some flat fee for the length of the consultation. You can expect those consultations to be uniformly longer and more detailed.

There are occasionally arrangements in the middle of these two norms. Often legal aid services will contract with private attorneys to provide free or low-cost initial consultations, which are shorter in duration. If the client wishes to go beyond the short time, they would then work something out with the attorney.

You're Going on an Initial Consultation. What Should You Expect?

Note: this post will be the first in a small series about initial consultations.

I am using the term "initial consultation" to refer to that first meeting between you and a lawyer. What should you expect during that meeting? Well, beyond a few basics, you'll get at least one different answer from each lawyer you talk to. (Reminds me of the quip about economists and other professions: "[Insert profession] has many hands. Ask them a question, and they will say, "On one hand..., on the other hand..., but on the other hand...")

Generally, you will meet with a lawyer for anywhere from a half hour to 90 minutes, and explain the details of your case as you understand them. The lawyer may be listening, may ask a few questions, or may even guide the discourse entirely. You may or may not have to fill out a form. You may or may not have to pay for the consultation. Most of these factors are pretty much out of your control (except for the cost of course) and you should probably not worry about them too much. I would even go so far as not to worry about the cost of the consultations because they won't be too expensive, unless you're strapped for cash or you plan on seeing multiple attorneys. (Which, incidentally, isn't a bad idea- you'd get a second opinion on an important medical question, right?)

Just a Reminder for Self-Employed Lawyers:

Business isn't just going to crawl to you. Find a way to go out and get it, somehow. Ask leads themselves, or better yet ask people who know lots of potential clients.

Doing Well By Doing Good, or Profit by Service

Just a thought for those of you who are unemployed, underemployed, or otherwise looking to gain experience or visibility: non-profits and pro bono work often lead to new, paying clients. It's not hard to make somebody ecstatically happy when you're working for free. And people who are that happy often tell their friends, neighbors, and the person in the supermarket checkout line behind them about their experience. While you may not get too many people who, unprovoked, gush about "Let me tell you about my great lawyer!", if a situation comes up they will definitely have you in mind.

Funny Business Cards

A few lawyer business that are quite memorable. Although I don't know if that's what I'm shooting for with a business card.

Divorce lawyers are known for their great personality.

And mediators are even better.

I Love Law & Order, but I Hate Jack McCoy

And the thing is that I really do like him, as a character. Sam Waterston is absolutely brilliant.

The only point I'm trying to make is that Jack McCoy, the lawyer, is everything you DON'T want to do in trial. People watching him (unfortunately, now in reruns) elegantly and succinctly tear down defense attorneys and defendants, summing up each case in two minutes flat and often using some sort of physical gimmick, get the idea that this is how you conduct yourself in court. If a lawyer actually acted like this in court, they'd get fined, laughed at, and thrown out. Not necessarily in that order.

If you think that you have any idea how to conduct yourself in court or in legal proceedings as a result of watching legal shows on TV, you are dangerously deluded. I'm as big a L&O junkie as anybody else, but it's just entertainment. Please, nothing more.

Ask For Help, Get More Than Help

You'd be surprised what you get when you just ask. Often it's more than what you asked for.

As a client this is great. If you are dealing with the right professionals in the right environment, usually when you ask for guidance in a situation you will get an unexpected outcome. Your question often covers just a symptom of a problem or issue, and a professional will guide you toward solving the problem, not just papering over the solution.

As a professional, this is even better. If you don't know something, and often you don't, just ask somebody with more experience. At the very least, you'll get the help you needed. More likely though, you'll make a friend, develop professional contacts, and even get referrals. People love to help and to answer questions because it makes them feel important- give them that gift, and it'll flow back to you.

There's Advice, and then There's Common Sense- In Life, and In Law

I'm getting married in two days. I will not be posting anything new until August 19, when I get back from my honeymoon. However, I just thought I'd leave this thought until then:

I'm a young lawyer, and I don't have a lot of money. In fact, I've got a pretty substantially negative net worth. My soon-to-be wife is in a similar situation, but she is better off. Even so, I would be a rich man if I had a dollar for every time I heard the word "pre-nup" from people I have talked to about the wedding in the last two years or so.

The legal advice underlying such a word makes sense- I am likely to outearn my spouse in my career, and there is definitely some merit in protecting my financial well-being in the event of a divorce. However, legal advice is more than just looking at things from a self-centered standpoint: there are practical measures to consider. Namely, the fact that I don't really want to plan for the failure of my marriage before I start, and also the fact that, realistically, I am not likely to massively outearn my spouse for probably ten years. By that time, the rule in New Jersey will start to trend toward equitable distribution being right down the middle.

Also, trying to bring up a pre-nup in the context of a relationship is a powder keg. It's dangerous, it can hurt both sides, and it has been known to damage/end relationships. A lawyer asked about the possibility of putting together a pre-nup had better know those things, and (whether they like it or not) needs to play social worker for a little while and see whether it would actually be in the best interest of the person, spouse, and/or relationship to talk about it.

It's a little like calling a computer support phone line for help, especially if you're not wonderful with technology. The question you are asking is not indicative of the solution. At best, it might correspond to some of the symptoms. I feel like this with cars- "It's making this weird sound" is not the solution- it's just one way for a mechanic or any kind of troubleshooter to get to the symptoms and find the right problem.

I apologize if I am in fact constantly saying this, but I believe it strongly: the right way to help a client is holistically, and not by just doing exactly what a client says they need. The client often has no idea what they need.

All You Need to Know About Credibility

How do you suppose people, having chosen a lawyer, stick with someone for years? Trust, believability.

Call it what you want. In short, credibility.

Credibility is so incredibly important and fickle, mostly because it's so easy to lose and so impossible to regain.

When you're dealing with clients, if you ever ask yourself if it's worth it to do anything but give your all to them, it ain't. Even if you don't lose these clients, you'll lose an endless stream of referrals that would have issued forth from them.

10 Rules to Being a Good Municipal Government Attorney- coming soon!

I am proud to announce that I will soon be able to post to the blog a piece called "10 Rules to Being a Good Municipal Government Attorney," by a well-known local government attorney in southern New Jersey. I am especially interested to talk about what other attorneys (and even non-lawyers!) can learn from this.

Universal Truth #4: Law, like [Insert Profession], is an Industry

I know that lawyers love to talk about the state of the "legal profession" or, heaven forbid, "the practice of law." Let's all roll our eyes in unison.

It is in the best interest of lawyers to talk up the legal industry. If people think they are getting access to the elite practitioners of some ancient and well-guarded secret art, they're apt to pay more for it. However, there are just too many lawyers out there nowadays to keep up that façade. The law is an industry, and the sooner lawyers treat it as such, the better off they're going to be.

You cannot reasonably expect to make a living anymore by holing yourself up in some ivory tower and waiting for people to come to you on bended knee. That goes for any profession. You have to impress people, make them remember you, and keep raising your profile.

Free Consultations: From the Horse's Mouth

The most direct option, as I alluded to yesterday, is to just get a (often free) consultation with a lawyer and talk to them. Get a few answers, ask a few questions, and see if the questions you have lead you to a place where you need to consider retaining a lawyer on a more long-term basis.

The key here is that you should listen to your common sense. The options I have presented lead you increasingly toward actual talk with people you can verify are lawyers and therefore should have some expertise. These options also lead you increasingly in the direction of actually needing/having/paying for a lawyer. If you need to go far enough to post on Avvo, follow up, and/or have a consultation, maybe you actually need a lawyer to help you. If you're just goofing around and finding things on the web, have a good time, but double- and triple-check before you take what you hear as gospel.

Asking Questions of Real Live Lawyers!

All of my previous posts in this vein have been about trying to get answers to your legal questions without actually talking to someone in person. You may find that you get better answers if you can ask more specific questions. A good way to come up with a specific question is to listen to an expert talk about the subject you're interested in, and use that information to your advantage.

Often you can find lectures on a subject that interests you by talking to local civic organizations or non-profits, who are often in touch with attorneys. In addition, towns and churches will sometimes sponsor events. Even businesses, such as financial planners, may have those resources available to you from time to time. Once you listen to these people speak, you can ask them a question, and perhaps they can give you an answer that will help.

Again, as with any of the methods I've been talking about, it's not out of the ordinary to get only half an answer to your question. I would definitely expect to hear one of these "Well, you're not a client yet...so maybe we can finish this conversation at a consultation in my office." That may not be worth it to you, but sometimes lawyers will offer such consultations for free, in which case, there's really nothing to lose. More on this subject tomorrow.

Asking Questions on Avvo: Illustration by Example

I'm going to make my point just by showing you a few things. Let me first make clear that I really like Avvo and I think sometimes it even helps people out. I also like it because they get a ton of traffic and their visibility is wonderful.

But watch this. Here is an excerpt from the terms of use on Avvo, put in very tiny print so that it doesn't take up the whole page:

9. No Attorney-Client Relationship
Information posted or made available on or through the Site, including without limitation any responses to legal questions posted on Avvo Answers, information provided in Avvo Legal Guides, and any other comments, opinions, recommendations, answers, analysis, references, referrals or legally related content or information (collectively "Legal Information") is not intended to create an attorney-client relationship between you and any attorney. Such Legal Information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon such Legal Information. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege. Company does not select, screen, approve, endorse or limit who can post Legal Information, including those who contribute responses to Avvo Answers and Avvo Legal Guides ("Contributors"). Designation as a Contributor at a particular level is based solely on the number of contributions made and user ratings as to helpfulness of such contributions and does not reflect any endorsement or approval by Company. In addition, although we reserve the right to review, remove or edit any content from the site, we do not routinely screen, monitor, or review the content of any such Legal Information. As a result, we have no control over and we do not warrant or guarantee the accuracy, adequacy, applicability, completeness, currency or quality of any such Legal Information or the qualifications of those posting Legal Information. AVVO SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND FOR ANY LEGAL INFORMATION YOU ENCOUNTER ON OR THROUGH THE SITE, AND ANY USE OR RELIANCE ON LEGAL INFORMATION IS SOLELY AT YOUR OWN RISK.
10. Disclaimers and Acknowledgements Regarding Use of Site Information
THE SITE, THE SITE MATERIALS (INCLUDING ANY LEGAL INFORMATION) AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS IN THE SITE. COMPANY DOES NOT REPRESENT OR WARRANT THAT SITE MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
While Company endeavors to provide and to allow others to provide useful information regarding attorneys, legal services and the law, you acknowledge that such information is reliant upon third party data and contributions, that there are certain inherent limitations to the accuracy or currency of such information, that attorney and other information may be incomplete or may contain inaccuracies (including without limitation any interpretations and reviews of such information and Site Materials, such as Avvo Ratings and Legal Information), and that information on the Site may be outdated or contain errors, omissions or misinterpretations of information. You further acknowledge that an Avvo Rating and the other information contained in an attorney's profile, such as descriptions of an attorney's areas of practice (including percentages devoted to each), and other data, summaries or descriptions on the Site, are based on the data obtained by or submitted to Company, which may be incomplete or inaccurate, and rely on automated interpretations of the information gathered by or submitted to Company. An Avvo Rating reflects the Company's assessment of a given attorney, based upon the information obtained by or submitted to Company; someone else's assessment of the same lawyer may be different or based upon different information. Neither Avvo Ratings, Legal Information nor any of the other information contained on the Site or provided through the Services, are an endorsement of any particular attorney or are a guarantee of an attorney's quality, competency, qualifications, experience, resources, character, honesty, integrity, responsiveness or other personal and professional characteristics. Nor are they a predictor of the outcome of a legal matter handled by such attorney. The information provided on this Site is intended to be a starting point to gather information about legal issues and attorneys who may be suitable for your legal needs, but you should not rely solely on such information in deciding whether to hire an attorney or how to resolve a legal matter. Furthermore, you should independently verify the accuracy of any information you obtain on the Site before using it, and you should obtain independent references for any attorneys you are considering hiring. You agree to be solely responsible for your use of the Site, the Site Materials and the Services and for determining the suitability of, and the results obtained from, any attorney you hire.
Additional information about Site Materials, the Services, the Avvo Rating, Avvo Answers, Avvo Legal Guides, the sources of information displayed on the Site, and other important matters is contained within the Site itself, including in the User FAQ, Lawyer FAQ, and Community Guidelines, and you acknowledge and agree that your use of the Site, or of any information or features in or on the Site, is informed by and subject not only to these Disclaimers and Site Terms but also by the information and explanation available on these pages.
COMPANY IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED ON THE SITE, INCLUDING WITHOUT LIMITATION ATTORNEY PROFILE INFORMATION OR LEGAL INFORMATION. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.
Company reserves the right to change any and all content contained in the Site and any Services offered through the Site at any time without notice. Reference to any attorneys, law firms, or other legal service providers or organizations, educational institutions, courts, associations, organizations, publications, licenses, accreditations, ratings, evaluations, endorsements, reviews, products, services, processes or other information, by name, trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Company.


And yet, when you ask a question, you will often see this as a substantial portion of the answer:

LEGAL DISCLAIMER
[Attorney] is licensed to practice law in [state or states]. [Attorney's] response here is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter in question. Many times the questioner may leave out details which would make the reply unsuitable. [Attorney] strongly advises the questioner to confer with an attorney in their own state to acquire more information about this issue.

New Domain- hopefully the end of self-promotion for awhile

Okay, the domain www.carlarcher.com is officially linked to this blog. You can now go there instead of trying to remember the blogspot URL. Back to substantive blogging tomorrow.

Posting on Free Internet Forums: Not Legal Research

The contrast between free internet forums like Yahoo! Answers and the like, or paid legal research as I mentioned in my previous post, is the dichotomy between two things: reliability and ease of use. Paid legal research is very reliable, and very hard to use. Free legal forums are very easy to use, but you're giving up the farm in terms of reliability (see also, Wikipedia).

They can be useful, but only if you know what you're looking for, you know what you're asking, and you know how to vet your answers. Since anybody can post on a forum, the only way that it's useful is if you can sort that information out (provided you get it, as many questions don't get answered on those fora). The funny thing is, of course, that once you get to the point where you can sort that information out effectively, you probably know enough about the subject where you don't need to be visiting a forum to get your answers.

Paid Legal Research: Is It Worth It?

I have written this post with the aim of answering this question for non-lawyers. If you're a solo or small law firm and you stumble upon this post, I think it's safe to say I don't know the answer to this question for you.

I feel strongly that there is no reason that you should pay for legal research if you're not a lawyer. Most legal research that you'll find is cases and caselaw, and people go to law school in part to learn how to use that material and turn it into something that makes sense to other lawyers. If you don't have that training, it's going to take you an awfully long time to figure out how to turn these cases into something intelligible. Besides, you may even find that what you need is available online. See a future post for details on that.

Now, you can spend hundreds of dollars a month on legal research if you wanted (Lexis, Westlaw, anyone?) but there are cheaper options (LoisLaw and VersusLaw can both be had for under $40/month). This is not to say that they're going to get you what you want, even at these reduced prices. If you need a brief, or something that uses legal authority to persuade a court that you're right on an issue, legal research isn't going to help you unless you know how to use it.

Searching on Google: Your Mileage May Vary

Google is different than all of the other ways you can search for legal information, because there isn't another person on the other end who is answering your questions. You have to get your "answers" from the results htat you receive, and fine-tune your search results from there.

The first thing you should is to refine what exactly your question is. If you can do so, get it into one sentence. The example I'll use is "How do I sue somebody in New Jersey?" You may have (actually, you should have) quite a longer description than that, but there's no sense in feeding Google a book.

Given those results, look and see if anything speaks to you. You won't necessarily know what you're looking for, but maybe someone has the same problem that you do (oh, they're trying to sue for a small amount of money and do it themselves, just like me!) or maybe there is a government resource on the topic (like a pro-se kit, such as provided at njcourtsonline.com).

If you find keywords that you think are relevant, but you didn't put them in your original search, re-run the search with them in there. Basically, if you find something that is a "term of art" or means a very specific thing, and that thing is relevant to you, include it in your search. A word about choice of keywords: my experience is that nouns are more often "terms of art" or good keywords, because people use verbs and adjectives more indiscriminately.

Google searching takes patience and time. You'll need to keep looking for things gradually, and I'm sure you'll find them if you keep at it. There are also other resources for the art of google searching; I'm sure that a quick search will bring them up for you. :)

But I Still Have a Question: Legal Research without a Lawyer

What if you don't think you need a lawyer, but you still have a question? Where and how can you get the answer(s) you need, and how reliable are they? There are many, many places you can turn to, and some of them might not even cost you very much. This next series of posts will address the various ways I think it might be possible to find legal research, and the reasons why you might (and might not) want to pursue them. The possibilities include:

• Google
• Paid research services, such as Lexis, Westlaw, etc.
• Free and non-legal forums (Yahoo! Answers and such sites)
• Legal-specific forums (Avvo and the like)
• In-person opportunities, including lectures and legal advice days
• "Free" consultations with attorneys

Common Sense is Not So Common

Do you want to be a great tactical knowledge source for your clients? Great. All you have to do is just keep the goal in mind, and use some common sense. Easy.

As long as you know whose goals to remember, whose perspective the "common" sense comes from, and you don't let little things like your client's life, your other clients' lives, your co-workers' lives, the bottom line, or your own life get in the way of keeping this all very clear. Oh, and make sure you can evaluate and move on these things on a moment's notice.

Yeah, easy.

Emotion is the Enemy of Good Lawyering

Emotion makes good lawyering darned near impossible. People can't by nature control their emotions. Cool, rational thought is the only way that you can make a calculated decision, either on a cost-benefit level (as a client), or a tactical level (as an attorney). When emotions get in the way, rational thought goes out the window, and people start to fight battles for the sake of fighting battles. This phenomenon goes a long way toward giving family law attorneys a bad name.

Lawyers need to be held to a higher standard. They need to keep emotion out of their dealings with clients and with the system, but they can't banish it altogether. Emotion can be very valuable if you can keep it in control- it's called compassion.

And Now for Something Completely Different: A Content-Free Post

I have registered the URL www.carllaw.com for this blog. I am in the process of moving things so that they redirect to this site. It's a lot less to type, and I think it'll be a nice site for me to use in the future. The old site URL will work, though- so don't worry!

[Edit: I have decided to reserve http://www.carlarcher.com for the blog instead. I will use www.carllaw.com for a "law firm" address if I need to, at some point in the future. Just sayin'.

How Reachable Should a Lawyer Be?

Alexi Darling: "Marky, Give Us A Call 970-4301...Or At Home Try 863-6754...Or - My Cellphone At 919-763-0090...Or - You Can Email Me...At Darling Alexi Newscom Dot Net...Or You Can Page Me At *answering machine beeps*

-from the musical "Rent"

I mean, I understand that clients need to know your office address. They want the office phone number, and maybe even a direct line. They want your office email address. But a home phone? A cell phone? (Nevermind a pager- almost nobody wears a pager nowadays.) A home email address?

They're called "office" phone numbers for a reason. Theoretically, there is supposed to be a dividing line there somewhere. If you have to give somebody eighteen different ways to contact you so that you're sure they can reach you, then it's time to rethink your communication standards, your work-life balance and style, or how important this client really is.