Category Archives: Law Practice

MUSINGS ABOUT BEING A TRIAL LAWYER

Poulsbo is a quaint town of about 9500 people and a drive of about one hour and a half from Seattle. It’s a Scandinavian seaport fishing town located right on the salt water.

In 1983 I received the “Small Town Lawyer Made Good” award from the Poulsbo Bar Association. The award was the brainchild of  Paulsbo lawyer Jeff Tolman. As I recall, the Poulsbo Bar Association had approximately 13 members at the time. However, Jeff had created this award and then was successful in talking some nationally known people to travel to Poulsbo to receive the award and participate in the daylong seminar as well. The guests who agreed to show up included several members of the United States Supreme Court, Gerry Spence and local lesser-known lawyers like me. Lawyers came from all over the state to attend the seminar and listen to the person Jeff had induced to come to Poulsbo.

I bring this up because it represents to me a picture of what a lawyer should represent.  Here was this creative  lawyer  in a small  town  who  managed to  establish  a seminar  involving  some  prominent  people  who were willing to travel  in some cases a great distance  to participate  in  a gathering of  other lawyers . Everyone had a good time and it was educational as well. He had done some important good work for the community and the bar. So, I got to thinking about lawyers and what they should be like. Here are some rambling thoughts.

Some years ago there was an article in the Alaska Bar newsletter written by an Alaska lawyer about why he became a lawyer.  He said that his father was a lawyer and that he would, on occasion, go to court to watch his father. One time he was there during a trial against another lawyer who was disliked by his father and the feeling was mutual.  The other lawyer had cross-examined a witness and as he came back to counsel he leaned over and said to his father in a stage whisper:  “How did you like that, you little pissant.”  His father reached up, grabbed his opponent by the necktie, pulled him to the table and the two of them begin rolling around on the floor while the judge was banging his gavel.  He said: “That’s when I knew I wanted to become a lawyer.”

One description of the role of a lawyer is to: “comfort the afflicted, and afflict the comfortable.”  Some people see the role of the lawyer like the story about W. C. Fields, the famous comedian of the 1930s who was a well-known atheist.  One day someone saw him reading the Bible and asked him why he was reading the Bible.  He said: “looking for loopholes, looking for loopholes!”

Many years ago I participated in seminars about law office management with a number of lawyers from around the country.  One of them was Harris Morgan from Greensville Texas. Harris spoke about attorney fees. The story he would tell was that his father was a lawyer and that as a young man he would work at his office.  He would overhear his father talk to clients about the fee. He said his father would tell the client: “Mrs. Smith I’m so delighted that you have enough confidence in me to hire me as your lawyer.  I intend to do the very best I possibly can for you. However, there is one thing you should know about my limitations.  I can only concentrate on one thing at time.  Therefore, we need to talk about the fee so I won’t be distracted while I’m representing you.” Harris would use this story to emphasize that it was essential the lawyer brought the fee up first, had a clear understanding about the fee and costs and confirmed it in writing as well.

As to fees, the famous Texas criminal defense lawyer Percy Forman was fond of saying: “I never charged a client more than he had.”

One thing I do know about being a trial lawyer is that if you want to be loved, find another field of practice. It’s not your role to please other people, be loved by your opponent or the judge. It is your role to do the very best for your client you are capable of doing within the rules. As Harry Truman has said, “if you want a friend in Washington, buy a dog.” If you want to be loved as a trial lawyer, buy a dog.

I realize there’s little here that is helpful, but I thought I’d pass it on anyway. Next time I’ll use something practical.

YOU SHOULD BE AWARE OF THE IMPACT OF SOCIAL MEDIA

Last Friday I spoke to the Idaho Trial Lawyer’s Association at their annual convention. On the program was Assistant Chief deputy Attorney General Brian Kane who talked about social media and  how it impacts lawyers. I thought I had a good grasp of the implications, but after listening to Brian decided I needed to talk to my partners about the subject, especially as part of our new client intake process.

Brian said  that in 2012 some 800 million people are active Facebook users, up from 200 million in 2011. There are 100 million Twitter users in the United  States and 50 million of those log in at least once a day. There are more than 150 Google LinkedIn Users as well. The important  point he made about this was that these are not just kids. His chart on the average age of  these users were in the 32 years  of age to 38 years old which means we are talking  about many of our jurors and a whole  lot of our  clients.

The risks of using these social media devices by both lawyers and clients is significant. For  lawyers, Brian pointed out, when we use these devices  we can lose attorney client privilege by the client simply forwarding  the communication  to a non party. We can unintentionally create an attorney client relationship which could lead to legal malpractice suits especially regarding issues like the statute of  limitations. Ethical rules apply to our communications. We can violate the ethical obligation of confidential communication. Then there was the lawyer who obtained a case continuance “to attend her grandmother’s funeral” and posted photos about her vacation and partying during the stay, but was caught by a judge who saw it.

For both attorney and client the most important fact is that there is no assurance of privacy and one should assume everything is public. For clients, that means what they post should be assumed to  be available in discovery or by the insurance company or their lawyers  searching. There are numerous examples  of how this can be a disaster. The plaintiff who claimed his scaring  was so traumatic to him he couldn’t wear shorts anymore, but who posted numerous  shots of him in shorts. Or the motorcycle plaintiff who said he couldn’t ride bikes anymore who posted the photo of his brand new Harley with other shots of him riding.

Brian pointed out that we can’t just have our clients delete it because that runs the risk of ethical violations plus spoliation of evidence violations. In  case the plaintiff  did delete the material and the court barred her from introducing any evidence of mental anguish because the material may have included social participation or other relevant facts.

Of course, there were the other cases involving jurors who compromised verdicts by their use  of social media during trials including one woman who texted her hairdresser about  the ongoing deliberations of the jury in the jury room. There are even cases of judges whose social media use involved judicial ethics violations and sanctions.

At the same time these devices represent a great resource for us in investigating jurors, witnesses and others. Clearly we must investigate our own clients material and make sure they fully understand the significance of what they post. There is a potential for jurors or even judges seeing  what has been posted. Bear in mind that the majority of users do not protect their sites  from review with privacy passwords or other means.

When we talk about blogs and websites we have exactly the same problems as outlined above.  Assume that everyone reads your profiles and posting. That means judges, jurors, lawyers, clients and the entire public. Do not mindlessly unload words without this  awareness at the risk of  substantial harmful consequences.

I thank Brian for this informative talk. It may well be that all of  you were already aware of this, but for me what was an eye opener was the significance of what is posted or sent as available to virtually anyone. Be forewarned.

 

Developing a case referral office policy

If you are contacted about cases that you either can’t or don’t want to accept you should consider a standard office policy on referral of cases. Here is an example of a policy:

A GENERAL POLICY

1. There are four types of cases we refer out to other attorneys:

(1) Cases involving legal work outside of our area which have sufficient merit to justify a referral to a specific attorney

(2) Cases with we don’t feel are substantial enough but have sufficient liability and damages to justify a referral to a specific attorney

(3) Cases or where there is a conflict of interest

(4) Cases with minimal liability or damages which we don’t want and simply refer out.

2. There are two situations involving referrals of these cases: (1) where we expect a referral fee or reimbursement and (2) where we don’t.

3. In each of the situations the information will be entered in our case management software.

4. In each case where a referral is made to a specific attorney it will be made from the attorney referral list and a letter to the attorney as well as the client will be sent.

B. REFERRALS INVOLVING CONFLICTS OR OUTSIDE OF PRACTICE AREA

1. Referrals involving a conflict should be made to those who we know are qualified to handle that kind of case. The other referrals should be to those who practice that type of work. However, we do not refer divorce cases to specific attorneys. See following list of attorneys and types of legal work to refer.

C. CASES WE TAKE FOR SETTLEMENT ONLY

1. These cases must have a settlement value of $____________or more to qualify.

2. The client must sign a retainer indicating they understand we are willing to try to settle the case but if not possible will not file and will refer out.<1

3. It’s understand that our usual "sue, settle or dump" policy does not apply and these cases may remain open up to 1.5 years. The file must have a designation of that fact.

D.REFERRALS INVOLVING A FEE DIVISION

1. Referrals of cases for a fee division will be made to specific attorneys we have an arrangement for fee division. We normally do not charge a referral fee and do so only where we have an ongoing role involving work by our office.

2. We will send a letter outlining the fee division and put a copy with the retainer in the file.

3. We will create a diary entry in the case management system to check the status of the file and monitor the progress – particularly the statute of limitations.

E. POLICY INVOLVING REFERRALS TO OUR OFFICE

1.In cases involving attorney referrals we need to determine in the lawyer expects a referral fee. The attorney will decide if we want such a case and the ethical requirements we need to follow.

2.In cases where the referring lawyer has a continuing involvement with us,a written confirmation of the fee division is required and the client must be informed.

3.If the referral is from a non lawyer, a thank you letter is required from the lawyer.