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There are people who love to threaten litigation over trivial, non-justiciable slights that should be thrown out of court, probably with sanctions. This is pretty common with certain insecure or uneducated fools, especially bullies like Donald Trump, who rarely (if ever) follow through. Often the alleged “dispute” is so trivial that, win or lose, the threat of losing is minimal. What makes such threats seem real to some victims is the combination of their lack of knowledge of and faith in the rationality of the legal system, plus the outrageous cost and delay of even the most absurd claims. The underlying threat is not that you will lose on the merits in court but that you’ll be dragged into an unjust, expensive process in which the process itself is abused to harass and punish you, right or wrong.
The “American Rule” is that litigants pay their own legal fees and expenses, with limited exceptions for some contracts and statutes, for example. (The alternative is the “English Rule,” which shifts some fees, but not to the extent US lawyers assume.) Litigation bullies are abusing the American Rule to work an intentional injustice. They assume the legal system, perhaps intentionally or usually through inadvertence, will allow itself to be abused this way. And many time they are right. Continue reading
In the old “Perry Mason era,” a law firm was mostly lawyers (almost all men), each with a secretary (almost all women) — the more wood paneling on the walls, the better. And each lawyer had a fairly big, personal office, with the secretary outside the door (within hollering distance) — the more senior the lawyer, the bigger the office. This business model dictated how a lawyer could bill, usually for flat fee or hourly work, then more contingent fees later on. You could bill for the lawyer’s professional work, but the clerical services and things like maintaining file folders were included in the lawyer’s fee, not a source for separate profit.
Law office layouts had to change to accommodate new technology, like copiers, computers, printers, and so on, as well as squads of new, typically lower level, staff, like paralegals — pyramids grow from the bottom up. Libraries grew until paperless research caught on (around 1980), just as lawyers started having their own personal computers. The rise of computer research let firms cut librarians (usually overhead then, not so today) as well as reducing the secretarial staff very substantially (also overhead). Even massive file cabinets and stacks of boxes have become less common, though lawyers have a habit of printing out everything anyway, whether it’s e-mails or research or whatever. (Many vendors do little else but “blow back” “hard copies” of electronic data, by the millions of pages in some cases.)
Here’s a report about a new law in West Virginia to shine a light on the mysterious, fabulously expensive practice of state government agencies contracting to hire outside plaintiff law firms to handle big claims for the state on a generous contingent fee basis. Wooing old college or law school buddies in high places to sign a fat contingent fee contract with a law firm, when most states already have plenty of lawyers on staff (and can easily get more), can mean many millions, even billions, for connected law firms.
With that much money at stake, you can imagine the lengths to which lawyers might go to get the business, ultimately at taxpayer expense (one way or another). Yes, it’s a contingent fee contract, but that’s paid out of the money recovered for the state or locality. Continue reading
From time to time even the best lawyers and law firms are accused of legal malpractice. Sometimes that idea comes from the client trying to explain a disappointing result. Sometimes things happen — like missed deadlines — that the lawyer feels are “mistakes,” but every mistake is not necessarily legal malpractice. Whether and what and when to advise the client is a puzzle. Sometimes the malpractice is fairly obvious, sometimes it’s not malpractice at all, and sometimes it depends on what happens in the matter.
In my practice consulting with clients and law firms, we see lots of potential or suspected malpractice, even from the law firms claiming to be the best in the country. (We’ve successfully tried some fairly large malpractice cases or testified in others.) Continue reading
Many clients, even those with in-house lawyers and doing lots of work with lawyers, have bad experiences with law firms, even if their legal matter ends relatively well. Sometimes the cost is just too high, so the “victory” or “less than worst case loss” becomes a loss once the fees are factored in. And, of course, a disappointing result is not worth much of anything to the client — those are the tricky ones to collect, even if, as usual, the lawyer blames the opponent, court, law, and so on.
Even when the lawyers produce, or take credit for, a positive result that comes in under budget, there are plenty of clients who still do not want to pay — very few bills are ever paid “with a smile” as a recent article for lawyers suggested should be the lawyer’s goal. There’s no gimmick or trick to get clients to pay with a smile, and that’s not the goal. Continue reading
We’re still living in the first “internet” age, when a couple of dropouts with some cash from their parents can “launch” a miniature business based on some basic technology, usually with some connection to “technology,” especially the “internet,” like an “app.” Online their website may be impressive and their spiel may sound logical — to a civilian — but something’s missing, like expertise and quality. Ninety nine percent of these startups may fail, but even some of the least innovative or useful may succeed. (Think facebook and twitter — junk that’s doomed but hang on for awhile — and all those silly “free” game apps kids get addicted to.)
The business model for all these supposedly innovative new products/services is the same: Take a gimmick — some software or hardware innovation, usually real with some valuable application somewhere — and “ditto” or copy it into other areas of the business or consumer world. Eventually this lazy cloning ends up trying to sell things modeled on the last industry into the next one — but the new industry isn’t particularly similar. For lawyers, this includes templates for legal forms, especially the basics like uncontested divorces, name changes, business entity formation, trademarks, and so on. (The key is simplicity of the matter — not too many complications and little or no judgment required — and sometimes the risk of practicing law without a license.) Behind the client scenes are other non-innovative “innovations’ like software to track accounts receivable, track time, issue bills and anything to do with electronic data (like e-discovery). In the article listed below, the “new” legal gimmick is a website masquerading as a neutral directory of lawyers, which, turned around on the lawyers, becomes a money making machine if they can be induced to sign up enough lawyers at hundreds of dollars, at least, per lawyer per year. Continue reading
In the wave of biographical information following the untimely death of Antonin Scalia, more details have emerged about his early years, after law school, as a junior litigation associate at Jones, Day. According to contemporaries and later law clerks, the basic grind of being a litigation associate was not for Justice Scalia, who didn’t make it as a junior associate at the Midwest law firm — he left after six years.
He did extol the value of spending time practicing in a firm before taking off for academia, government service, or the bench. Apparently he didn’t get close to first chair or any chair in a trial — no one mentions even motion or appellate arguments. What apparently doomed his Biglaw future was the grind of doing many pages of privileged document review in antitrust case(s). (I doubt he learned much about actual litigation or the law from serving time on the ground floor of the billing pyramid — maybe it just made him angry.) Continue reading
A Florida lawyer won substantial punitive damages (and her legal fees balance) in a defamation case against her former client and the former client’s ex-husband, who had been the opponent in the original case. The client and her ex-husband jointly posted multiple negative online reviews of the lawyer on Yelp, AVVO, and elsewhere.
While the client and even her opponent/spouse were entitled to free speech, especially as to their opinions, their misstatements of “fact” were not so protected, according to the court. The false statements of alleged fact included statements that the lawyer charged more than promised, for example. Continue reading
In a world where most colleges are giving out bachelor’s degrees for doing work less challenging than what you’d find in a serious high school honors class, and master’s degrees for bachelor’s-level work, another fad is the “certificate” game. Instead of spending months or years for advanced training, sign up for a “certificate” in something, pay your money, and slap that baby on your resume.
While nothing’s stopping you from learning something on your own or taking a course for the knowledge, the big money these days is in “teaching” a course or two, often online or taught over a weekend or a few evenings or so. In exchange for hundreds or thousands of dollars, you get a certificate — typically with a gold seal — saying you’re quite the specially trained person for whatever the course was supposed to be about.
The provider’s overhead is low and, with enough suckers, the profit’s high, so this game preys on naive people who are insecure about their educational credentials. These operations avoid all sorts of regulations for accrediting actual educational institutions — this is another scheme you should be avoiding by remember that a buyer must beware. The sales pitch usually talks about how this will help you in your job, maybe build your resume, the implication being you’ll get a raise or promotion with a certificate from the blah dee blah academy in your pocket. (There’s even an outfit that sells certificates so you can be your certified company “devil’s advocate,” my firm’s trademarked name.) Continue reading