If we analyze the basic outline of a plaintiff tort practice, it seems to me we can identify where we spend the majority of time. I think this can be divided into the following general areas of practice:
(1) Finding clients & legal work
(2) General office requirements
(3) Making a profit
(1) Pre-trial motions & procedures
(3) Post trial issues
For the majority of plaintiffs lawyers I suspect that the majority of time is spent not in trial, but rather in connection with the first two categories. As to these, my experience has been that the great majority of time in the plaintiff’s tort practice is spent in discovery, regarding witnesses and in negotiation. Most of the rest of the time is spent dealing with clients, office finances and general office demands such as phone calls, emails, correspondence and office management. I think the great majority of cases settle without trial, but only after extensive discovery, witness involvement and negotiation. Therefore, we should be far more focused on analyzing the discovery aspects of the practice, issues around expert witnesses and other witnesses and learning the skills of proper negotiation than on trial considerations.
Regarding my division of practice, however, I’d like to focus on the first one: – the business aspect. I’d like to share some generalities about this subject as I think we plaintiff’s lawyers tend to ignore this important part of our practice.
I don’t pretend to be an expert in plaintiff tort practice marketing. It is, however, my distinct impression that the two major areas of obtaining plaintiff’s tort work today is (1) lawyer referrals (2) the internet and (3) TV advertising.
Referral work from other lawyers in the period of my law practice presented a problem to me. When I started the practice of law, many years ago, it was common for general practice lawyers to consider it part of their professional duty to their client to refer them to plaintiff’s lawyers they knew were qualified to handle the case. It was rare to have a demand for a referral fee in doing this. The ethical viewpoint then was a lawyer has a duty to act in the best interest of their client. If it is in the best interest of the client to be referred to the best qualified lawyer, then the consideration of a referral fee should be very secondary given the duty to the client. Certainly the referral to a lawyer should not be primarily based upon the referral fee.
Yet in recent years it has become a common practice for lawyers to demand a referral fee before they would recommend an attorney to the client. Even though the clients lawyer recognized that he or she was not qualified to handle the case and that the client needed the best qualified lawyer their first consideration was to negotiate a favorable referral fee for themselves. I had strong feelings about the ethics of that approach. As a result my practice was not primarily lawyer referral nor did I seek lawyer referral cases. However, I recognize that, in spite of my peculiar attitude about it, marketing considerations should logically involve lawyer referral work.
As to advertising generally, I used to think that publicity about my verdicts on television and in the newspaper would produce clients, but I was continually surprised by the fact that people with similar cases to my case results reported in the media would nevertheless use the Yellow Pages or hire someone who advertised. With the growth of the Internet the Yellow Pages soon became rather irrelevant in this connection. More and more people began using digital devices and search engines on the internet to find lawyers. Internet referral websites, lawyer websites and blogs had a bigger and bigger role in this regard. It’s my distinct impression that today plaintiffs lawyers should be concentrating upon their websites and blogs. Hiring a professional marketing person in this area would be my recommendation. Certainly, for those with the money to invest, television advertisements have become a successful way to obtain clients. However, two things are essential: (1) the capital to invest with a profitable result and (2) the means to screen the incoming contacts. I suspect for most of us, the more logical and reasonable approach is improved websites and blogs.
Regarding the office management, a plaintiffs trial practice will not survive if it is not profitable. It has been my experience that plaintiffs lawyers are generally not very good business people. They tend to have a cash register attitude about the practice. If there’s money in the register they take it out and spend it and if there’s not they began looking for financing. They rarely screen incoming cases from the standpoint of budgeting time and costs advanced to the likely financial outcome and chances of success. They rarely screen cases from the standpoint of referring them to some other lawyer rather than investing inappropriate time and money in a case that doesn’t justify it or where it is a client they would be better off not having or is a case that isn’t compatible with their own values and attitudes. The first good law office management principle is screening cases.
Too often we fail to monitor the investment of our time and our money in cases as they progress. Every case should be evaluated for a budget of time and costs based upon three factors: (1) liability (2) damages and (3) collectability. When we invest unreasonable time and money in case that doesn’t justify it, we do a disservice to the client. A result that looks on its face to be a success can really be a loss from a time involvement and fee recovery. A plaintiff’s lawyer can go broke agreeing to pay unreasonable referral fees, over investing cost advanced and devoting unjustified time to cases. A plaintiff’s lawyer can go broke by failing to monitor time and costs. Furthermore, when there is this inappropriate investment it leads to inappropriate settlements.
To have a successful plaintiff’s tort practice one must have a successful business office. Like it or not, law office management is as important as the successful processing of tort cases. Let’s spend the time to review this in our own practice.