You have been sued and your lawyer calls you to tell you the good news: The judge granted your request to dismiss the other's side's lawsuit or portions of it "with leave to amend."
A motion to dismiss is an attempt to get rid of a lawsuit (or a part of it) right after it is filed. If it's granted, the case can be over or a part of the lawsuit can be thrown out for good. Lots of defense lawyers like to file these motions if they can.
The idea behind "leave to amend" is pretty straightforward, but it may involve tricky strategic considerations when you have been sued.
"Leave to Amend" is a judge's way of saying, "I'll give you another chance." In other words, when a motion to dismiss is granted or approved by the court with "leave to amend," the result is mixed for both sides. The plaintiff has at a minimum been delayed, but he or she does get another chance to file the lawsuit.
Motions to Dismiss can be expensive when you are paying by the hour. They often cost $10,000 or more (depending on your lawyer’s hourly rate and the complexity of the issues involved). That's why you and your lawyer need to carefully weigh the benefits relative to the risks that the court will give the the plaintiff another chance to file the lawsuit. Some lawsuits suffer from a technical defect. For example, the lawyer who filed the lawsuit forgot to include some allegation that is required by law. If it's easy for the lawyer to cure the defect, it's probably a waste of your time and money to pay for a motion to dismiss. The judge will likely grant the other side "leave to amend," and you will just be paying your lawyer to help educate the other side's lawyer how to make the lawsuit better for the person or entity that is suing you.
On the other hand, some lawsuits are big enough and some issues are important enough to risk having the judge give the other side another chance. Judges are often reluctant to throw out a lawsuit without giving the plaintiff's lawyer at least one additional chance to fix any problems with the lawsuit. Thus, you should discuss with your lawyer the likelihood that you will have to pay to file more than one motion to dismiss (one to try to dismiss the lawsuit in its initial form, and then potentially another when the other side takes its second chance).
There is no hard and fast rule as whether you should take the risk that a motion to dismiss will be granted with "leave to amend." Sometimes it's a good risk to take and sometimes it isn't. But a client can't make a sensible strategic decision about this issue unless you know what "leave to amend" means and how it may impact your specific lawsuit.
When you hire a lawyer, give them a chance to show you what they can do for you. It can be tempting to get a second opinion for every decision they make or recommendation they give, especially if you know someone who practices in the relevant area and can give you advice for free. But in my experience it often does more harm than good to ask your sister-in-law, uncle, college roommate, or whatever lawyer you happen to know to shadow the lawyer you are paying. There are times where it makes sense to seek a second opinion, but lawyers and clients work best when they are forced to communicate with each other and address the bumps in the road that arise.
When you run every decision your attorney makes by your friend, you undermine trust and impair the normal development of the attorney-client relationship. This is especially true if the lawyer you are paying knows or finds out that you are using a shadow. They correctly conclude that you don’t trust them, and too often that causes them to work less hard than they otherwise would. I’ve spoken to several lawyers who basically take the position that clients who use shadows from the beginning of a relationship are the kind of clients that should be avoided.
And you should generally avoid using a shadow lawyer even if you don’t disclose that fact to the lawyer you are paying. It’s the functional equivalent of having a girlfriend or boyfriend on the side. This isn’t to say that I think using a shadow lawyer is immoral or that it somehow breaks a promise to the lawyer to be exclusive with them. Using a shadow lawyer, however, means that your commitment to the lawyer is diminished. And that tends to negatively impact the results you and your lawyer can achieve together.
If you are having series concerns with your lawyer’s performance, discuss them with the lawyer. And if you remain dissatisfied, and the issue is significantly important to you, consider replacing that lawyer outright. That is better alternative to using a shadow lawyer. Who after all wants to be constantly second guessed? Would you want to be? Neither does your lawyer.
When people complain that they don't like the lawyer on the other side of a law suit or negotiating table, it often shows that they, the person complaining, doesn't know or fully appreciate what lawyers do.
To fully understand this, you need to know what we often mean we say that someone is nice. Being nice has many dimensions but one of them is being forgiving; it's giving someone some slack. It's the driver who lets you cut in front of them in line. It's the clerk at the store who gives you a free sample even though they aren't supposed to. It's the police officer who gives you a warning instead of a speeding ticket. It's the teacher who allowed you turn in your homework one day late. In many aspects of our daily lives we expect to receive a certain amount of leeway. That's why people who don't give you that margin of error are often considered assholes. It's the police officer who writes us a parking ticket even though the meter expired just a minute ago.
There are, of course, attorneys who aren't the nicest of people. They are abrasive and difficult in many circumstances. But in my experience, most lawyers aren't like that. But lawyers are often brought into situations where their role is not to give you slack. Someone has decided--usually the client--that this particular issue is sufficiently important to justify precision and attention to every last little detail. It's the lawyer who writes the cancellation notice on the very last day the contract can be terminated. It's the lawyer who insists that the contract include a particular clause written in a specific way.
Lawyers tend to be involved in situations where cutting someone slack may not be in the interest of their client. That more than anything is why lawyers are assholes. And when people complain about that, especially if you are on the other side of the table from their client, you are often giving that lawyer a compliment. So keep your complaints to yourself or vent to your lawyer about how big an asshole opposing counsel is. Better yet, understand that it's just part and parcel of the dynamics of being involved in a situation where lawyers are also involved.
What do you do when your lawyer is charging you $425 an hour? That's more than seven dollars a minute or roughly what you would pay 58 minimum-wage workers for an hour of their time.
For much of my working life I have been on the receiving end of this transaction. I was largely walled off from its real impact because I worked for large law firms where the accounting department handled the invoices and I rarely had to talk to clients directly about their bill. Now I'm in the unusual position of paying for a lawyer's time. What I'm about to write is not an indictment of or a reflection on the specific lawyer involved. But in a word, paying someone $7 a minute is shocking.
So here are three money-saving tips when you are meeting your lawyer and they are charging you hundreds of dollars an hour.
First, find out the increment at which a lawyer bills. There can be a big bottom-line difference between a lawyer who charges in quarter-hour segments and one who charges in ten or six-minute segments. When the smallest increment of time is 15 minutes, the minimum itemized amount is more than $100. Thus, everything the lawyer does at a rate of $425 an hour costs you at least $106.25. That's the downside of quarter-hour billing. By contrast, in this example the minimum charge for a lawyer keeping time in tenths of hours is $42.50. I don't believe that quarter-hour billing is inherently unethical for lawyers, although some courts have so ruled in specific circumstances. Moreover, there is no guarantee that it will be more efficient for you to work with a lawyer who charges in smaller increments. It depends on how much they accomplish with their time. All things being equal, however, I prefer working with lawyers who charge in something other than quarter-hour increments.
Second, and more importantly, it's essential that you eliminate or delegate non-essential activities. I could pay the lawyer's paralegal $175 to prepare some documents. That's certainly cheaper than having the lawyer do that work. Better yet, figure out if you can do the work yourself. That's what I'm doing. This lawyer was selected in part because of her willingness to let me prepare some of the forms and have her staff review them. I know that many of you are not in the position I am and therefore filling out your own forms may be a less attractive option. But even if you are not inclined to fill out your own forms or, for example, to provide your own documents in response to discovery requests in litigation, you may be able to find someone with some legal experience to help you. This isn't a substitute for working with your lawyer; it is, however, a way to reduce the costs of some of the more labor-intensive and routine aspects of working within our legal system.
Third, and this is the most difficult strategy for me to carry out, you have to throw out some of the accepted rules of social interaction. You won't be surprised to know that I can be chatty. But that's not a smart strategy when paying $7 a minute. Don't be rude. But be firm, precise, and even ruthless about how you spend the time with your lawyer. Let them know that you are all about taking care of the business at hand. Don't spend your time listening to war stories, or sharing funny anecdotes. Prepare a written agenda. I'm planning to bring an alarm or egg timer to my next meeting. I especially like the idea of turning over an egg timer every ten minutes. It's a handy visual refrence point for you, your lawyer, or anyone else attending that meeting.
I'll let you know how this egg-timer strategy pans out.
Lawyers talk differently. They use legalese without explaining it. That's one reason why it's hard for many of their clients to understand them.
I recently attended a business breakfast at which a lawyer used the following phrase to describe litigation that he was handling for a client: "I went in ex parte."
Nothing like a little Greek or Latin at 8:00 in the morning.
Even though many highly educated professionals and business owners were present, very few had any idea what the phrase "ex parte" means.
So let's see what happens when we toss this phrase into the Legalese Translator:
"Ex Parte" rhymes with partay not part.
In the context of a law suit, it means going to court without giving notice to the other side. Generally speaking, any papers filled by a lawyer must be provided to the lawyer on the other side, and if the other side doesn't have a lawyer, to the other party or parties to the law suit. There are rare situations, however, where it might be impractical or unwise to give such notice. For example, letting the other side know you will be in court may give them the chance to hide or destroy evidence. That's what was going on in the law suit this particular attorney was describing. He was representing a company that was accusing a former employee of stealing client lists. The lawyer was trying to make clear that he handled the case aggressively. He went in to court without giving letting the other side know. That's what "going in ex parte" means.
Corporate America in 2011 will send less work to the largest 200 law firms than it did in 2010. That is just one result from a client survey commissioned by Citibank and the Hildebrandt consulting firm. Specifically, slightly more than half of our largest corporations reported that they intended to impose fee reductions on their largest outside law firms.
And for the first time in a very long time, the demand for large-firm legal services actually decline by 5%.
Generally speaking, what happens between the largest corporations and their outside law firms doesn't tell you much about the interactions between other companies and their attorneys. The economics of hiring a lawyer are radically different when you're facing a billion dollar law suit, or are involved in a multi-billion dollar transaction. When you are dealing with "bet the company" legal issues, it's not hard to convince yourself that it's sensible to pay lawyers $800 and hour or more.
When it comes to hiring lawyers, there is, however, a lesson that many companies can learn from the Fortune 500. You have many more options that you used to. Just as the biggest of the big are increasingly turning to smaller regional firms, smaller companies now have the option of working with much smaller law firms. Technology has enable solo practitioners and firms with fewer than ten attorneys to handle transactions and law suits that a decade ago required more bodies. Moreover, as large law firm continue layoffs, the number of highly trained and experienced lawyers who have the knowledge to handle complex business lawsuits and transactions is increasing.
So the next time you as a business owner are facing a law suit or complex transaction, don't ignore the small law firm. They may be able to provide you the combination of expertise and value that you've been looking for.
Let's start the new year by showing you a little known tip that can save you thousands of dollars on your legal bill.
Clients need to consent to fee increases imposed by their lawyers. In some states, such as California, judges have explicitly decided that this is the rule. In other states the situation is more informal. But whereever you and your lawyer are located, you should make sure that you understand how you are being billed by your attorney and for what. If you are being billed by the hour, review the bills for January especially carefully. On January 1, some lawyers automatically increase the hourly rates they charge for themselves and their staff (such as other more junior lawyers and paralegals). Trouble is that too many lawyers don't notify clients of this fee increase in advance. They just include the new, higher rates in the first bill or invoice of the new year. I'm not suggesting that you object to every fee increase. That's not sensible; attorneys also have to run a business. But if you do have questions or objections to the new fees, speak up. Don't just let them pass without comment. If you ever do get into a fee dispute, the lawyer may argue that your silence shows that you agreed to the higher hourly rates. And even if you don't have a problem paying the new fees, it may be a good idea to let the lawyer know that in the future you want advance written notice of any proposed fee increases or changes. Remember, working with a lawyer is like working on other personal and professional relationships. If you want to be treated better, it's wise to comunicate and let the other person know what bothers you and what you want.
Why aren't more lawyers focused on changing the way they do business? That's the question that was posed by a blog written for the American Bar Association Journal.
The blog, the New Normal, is written by two lawyers who believe that the legal services industry is rapidly changing and are mystified that more lawyers aren't focused on this fact:
[T]here seems to be tremendous inertia in the profession. In my own mind, I know that if I was a partner at most law firms, I’d be scared to death that clients were looking for ways to reduce the money they pay me, or indeed whether they even utilize my services at all. And I’d be frightened thinking about whether my firm would simply decide to push me aside. If I didn’t have clients, I would be wondering when, not if, my firm would pull the plug on my future.
In that kind of environment, I would be spending every waking minute trying to figure out what the future is going to look like and how to make myself an essential piece of the future. I hesitate to ask how many readers have read the paperback version of Richard Susskind’s landmark book, The End of Lawyers? The paperback version just came out within the past few months, and it contains a 36-page introduction, really an update on what has transpired since the manuscript of the book was submitted for publication in late 2007. I hesitate because I doubt many of you ever bothered to read the hardcover version when it came out in 2008. . . .
From time to time, I am asked to give speeches to law firms, and on two recent occasions, I polled the room on several questions, including how many people in the room had read Richard Susskind’s book. Out of nearly 200 lawyers, none had. Only a few had even heard of Richard Susskind.
Perhaps I'm being cynical, but lawyers won't change their ways or perceive the need to change because of a book written by a futurist or consultant. That's not a knock on Richard Susskind or his book. It's just that the everyday experience of most lawyers hasn't changed as much as the authors of the New Normal believe it should have changed. To be sure, lawyers who work with large corporations are experiencing changes. And the economic climate is impacting a whole host of lawyers ranging from those who handle divorces to real estate transactions. The primary change that most of these lawyers are experiencing relates to the volume of new business that is coming through the door. Fewer people are getting divorced and fewer real estate deals are being negotiated. But once a new project comes through the door, most lawyers are working pretty much as they did five years ago.
And that won't change unless clients change. The lawyers and executives who work for large corporations are sophisticated consumers of legal services. The typical person who gets divorced or needs a lawyer after a car accident is not. The good news is that clients have the tools that will make their interaction with lawyers more effective, productive and economical.
Most clients, however, don't know that they have that power or how to wield it. That's what Lawyer On A Leash is trying to change.
As I’ve mentioned before, clients can generally free to fire their lawyers at any time for any reason, or for no reason at all. In some states, this ability is restrained by the lawyer’s ability to hold on to the client’s file until the lawyer is paid. And in states such as Florida, where lawyers may charge nonrefundable fees, the client’s right to terminate a lawyer may be further restrained by the knowledge that the lawyer can keep the unused portion of the nonrefundable fee. But in states, such as California, where neither of these restraints are in place, the client has essentially an unfettered ability to fire a lawyer.
Sometimes clients abuse that power. Yesterday, I saw that firsthand. A lawyer I know called me to complain that one his clients fired him out of the blue. He found out when a signed substitution-of-attorney form was faxed to his office. He received no notice or explanation and his now former client didn’t return his phone call. This lawyer is a professional, so he did what he is required to do under the circumstances. He arranged to return the client file promptly and he wrote a letter to the new lawyer detailing the status of the case and the upcoming deadline. He lived up to the rules of conduct that govern lawyers in his state, but he did so with a heavy heart, and despite the fact that the client owed him thousands of dollars. I have no doubt that this will prove to be a temporary setback for the lawyer; he will get over it and will continue to work hard for his current and future clients.
But that doesn’t change the fact that the client acted badly--very badly. Just because you have the power to fire someone without suffering negative consequences doesn’t mean you should. If you have a problem with your lawyer, at a minimum let them know what it is. It’s the right thing to do. And who knows, you may even find out that your problem is resolvable or was based on miscommunication. Many lawyers will generally go away quietly when they are fired, no matter how unfair the circumstances. They feel restrained by the ethics rules and won’t confront clients. I don’t have to be so quiet. I won’t confront the client in this particular situation, but please keep in mind that the attorney-client relationship is already fragile and plagued with mistrust and misinformation. The leash is in your hands; you as the client have much of the power. Please use that power wisely and temper it with common decency.
Last night I saw "The Social Network," the movie from Sony Pictures that tells the story of how Facebook was started in 2004 by four Harvard University students-Mark Zuckerbeg, Dustin Moskovitz, Eduardo Saverin, and Chris Hughes.
There is one scene that is particularly informative about when you need to consult with a lawyer. That scene involves Mr. Saverin, who according to the movie, started as Facebook's chief financial officer and initially owned about a third of the company. Later on, Zuckerberg and Moskovitz moved to California and received the financial backing of a prominent investor. The scene that caught my eye takes place when Saverin is called into Facebook's new offices and meets with a lawyer; he is asked to sign a series of documents that have the effect of wiping out Saverin's initial holdings in Facebook. T he lawyer tells Saverin that his share of the company under the new arrangement will actually increase by a few percentage points, so he signs the documents.
This won't come as a shock to you, but Saverin later regrets signing the documents without first consulting with a lawyer. Saverin ended up having to sue Zuckerberg and now owns 5% of the company. That means that Saverin is a billionaire, but that doesn't change the fact that, if the movie accurately portrays what happened, he was crazy to sign documents without having a lawyer review them first.
It's not practical to have a lawyer a review every contract that you are asked to sign. If you did, you wouldn't be able to use any software you download, park your car in a public garage, or leave your clothes at a dry cleaner. Most of us come across hundreds of agreements every year that are essentially form contracts. A vast majority of the time it's not practical or wise to have a lawyer get involved. But where, as in the movie, the contract you are being asked to sign has been specially created just for you, and/or large sums of money or important issues are involved, you should at a minimum consider bringing in your own lawyer. And where the other side has spent the time and money to have you meet with their lawyer, that is a sure sign that you shouldn't move ahead without your own lawyer. That's true when an insurance company sends you documents asking you settle your car accident claim, and as "The Social Network" clearly demonstrates, that's also true in important business transactions.
Remember: Keeping a lawyer on a leash means knowing when to get the lawyer involved in the first instance.
I woke up yesterday to a kitchen counter full of fruit flies. The prior day I had bought some fruit, but almost all of it was in the fridge and none of it was on the counter.
What to do? The modern answer to everything is — Google. So I typed in the phrase, "how to kill fruit flies" and came across a detailed illustrated article on wikihow.com
The article identifies half-a-dozen different natural techniques for getting rid of fruit flies. I opted for the one that is described as the most simple—pour apple cider vinegar into an open container such as a jar and then mix in a couple of drops of dishwashing liquid. To a fruit fly, apple cider is a choice meal. It smells just like rotting fruit and it's darn near irresistable. Problem is that the detergent changes the surface of the vinegar. The fruit flies can no longer stand on it as they eat; instead they fall through and drown. Left overnight, this diabolical concoction is supposed to transform a glass of vinegar into a fruit fly graveyard.
No, you haven't mistakenly wondered into the wrong blog; this really does have something to do with lawyers and how to work with them.
The connection is risk; specifically, how do you evaluate information that you find on the Internet. The wikihow article seemed authoritative; it even has pictures of a jar containing what looks like dead fruit flies. I took this advice and followed it religiously. But that is despite my background as a lawyer, not because of it. Lawyers are among the small number of people who are trained to distrust information that cannot be verified as authoritative. They, along with scientists and journalists, are trained not take other people's word for things. This is one reason why lawyers tend to be much more risk averse than most of their clients. They are trained to see what can go wrong in a particular situation.
Sometimes it's comical just how risk averse lawyers can be. I know lawyers who, back in the mid-1990s, didn't fully trust email. They would email and FedEx certain documents to their clients. It took them years and thousands of dollars to conclude that email almost always reached its intended target.
I'm happy to say that I overcame my skepticism about the article. The suggested technique worked like a charm. In fact, it's kind of creepy how well it worked. Who spent the time to develop such an ingenious way to kill fruit flies?
So remember: be very careful about blindly following your lawyer's assessment of risks. Have your lawyer explain the benefits and drawbacks of a particular course of action. But the ultimate call about what to do is yours.
Lawyers will tend to advise you to act cautiously. Sometimes that's good advice, but it can also lead you to put up with fruit flies you don't have to.
Clients often underestimate just how inexperienced and unskilled many lawyers are when it comes to running a business. I've been aware of this deficiency for many years, but even I am occasionally surprised by how inept some lawyers are as business people.
A recent story brought this point home. It was told to me by someone who is looking to work at a law firm. He responded to a position that was posted online and was quickly contacted by the office manager. The interview went well and the office manager wanted to have the applicant meet the firm's top lawyer. This is where things took a strange turn.
The lawyer wanted the first interview to take place at the attorney's home. In addition, the lawyer wanted the applicant to perform personal errands such as walking the lawyer's dogs.
Needless to say the applicant wasn't too impressed; even in this economy asking professionals to run one's personal errands is a sure way to attract only the most desperate and mediocre of employees.
This story is, of course, extreme. Most lawyers wouldn't dream of asking a job applicant to walk their dogs. But there is a deeper lesson for clients. Don't assume. Specifically, don't assume that someone who has a law degree knows anything about how to organize their time, manage people, or do any of the other things that are required to run an effective modern law office.
On June 1, Attorney General Eric Holder announced that the United States Department of Justice was investigating BP for potential criminal violations in connection with the massive oil spill in the Gulf of Mexico. This announcement caused one prominent observer, Keith Olbermann of MSNBC, to question Professor David Uhlmann of the University of Michigan Law School about whether BP could be trusted not to destroy documents requested by the Justice Department.
Professor Uhlmann's correctly points out that requests to maintain documents are routinely made in criminal investigations. His answer, however, left something important unsaid. The reason why the BP case doesn't raise red flags about destroying documents is that lawyers—even ones working for BP—can be trusted to do their best to help their clients comply with requests not to destroy documents. This may sound like a naive view, but it is based on years of personal experience. I once was part of a team that represented a large oil company during a Justice Department investigation. That company was Exxon, and the investigation was conducted by the Antitrust Division at the Justice Department in connection with the then-pending merger between Exxon and Mobil. Requests to preserve documents do raise tricky questions. For example, what do you do if a company's regular pre-existing policy is to destroy backups of email messsges every year, and the emails would normally be destroyed before the government's request has been formally received? These are the kinds of questions with which lawyers wrestle.
But I never once saw or heard another lawyer do anything other than make sure the company complied with requests not to destroy documents. I have no doubt some lawyers have from time-to-time helped their clients evade such orders. But the overwhelming majority of attorneys wouldn't go down that road. It's just not what lawyers do. And that's not only because the rules of professional conduct prohobit such conduct. There is a sense of self-preservation that prevents lawyers from jeopardizing their licenses. A cynic might point out that lawyers have a financial incentive to maximize the number of potential documents in any case. The more documents, the more hours billed to review the documents. This could be motivating lawyers, rather than some more noble instinct.
But there is something more to it—something that Keith Olbermann and many others fail to appreciate. Lawyers don't help their clients destroy documents because of a certain kind of professional pride and training. There is a deeply ingrained notion in lawyers that, no matter how heinous your client's conduct might be, you shouldn't join them in prison. Moreover, lawyers have an ingrained sense of professionalism, an important element of which is that they don't believe—and are trained not to believe—that the customer is always right.
Clients have legitimate reasons to complain about how the "professionalism" of lawyers harms them. There are many circumstances where lawyers do need to take a more client-friendly approach. But let's not forget that there are significant upsides to the attitude that most lawyers take. It's that attitude that allows us to explain that requests not to destroy documents that are routinely used, and regularly complied with during government investigations.
Lawyers With Depression is an important and courageous website. Its mission is to help lawyers with depression and was started by a lawyer with depression. Among other things, the site collects the volumnious research that shows that lawyers disporportionately suffer from depression. For reasons that are not widely understood and which are still being examined, lawyers seem to be more vulnerable to depression than a vast majority of people. Here is just one statistic from the site that makes clear just how prevalent depression is in the legal community.
A 1990 Johns Hopkins study looked at 104 occupations to see which professions suffered from the highest rates of depression. Lawyers topped the list (when adjusted for socioeconomic factors). and were found to suffer from clinical depression at a rate of almost four times that of the norm.
This fact creates a real and potentially heart-wrenching dilemma for clients. On one hand, lawyers are hired to help people resolve some of the most difficult issues in their lives. When you hire a lawyer you may be putting your life, liberty, and property in their hands. This is no place for an impaired person and the wisest cause of action as a client is to run away as fast as you can from a depressed lawyer.
On the other hand, depression is increasingly treatable and many lawyers manage to perform professionally even when they are depressed. Moreover, clients may be in a position to help their lawyers deal with some of the stress and pressure that comes with the job. The attorney-client relationship can be resilient; at its best it transcends the relationship between a typical service provider and a typical customer. This is no place for a bright-line rule that condemns every lawyer with depression.
Both of these points of view have merit. There are times when, as a client, it may not be prudent to work with a depressed attorney. There are also times, perhaps a majority of the time, when the lawyer's depression isn't imapcting the quality of their work on your behalf. I therefore suggest that you focus on the lawyer's conduct, not their status. If your attorney isn't returning phone calls and it turns out that depression is a cause of their their lack of responsiveness, you have a difficult decision to make about whether you need to find a different lawyer. But if you are generally pleased with your lawyer and you happen to find out they are dealing with depression, think twice about making a change.
There are no easy answers as to what a client should do when they find out that their lawyer is dealing with depression.
Twenty years ago I worked as human resources manager at a teaching hosiptal. One of the emergency room nurses had a cocaine problem. She completed a well-regarded drug treatment program and sought to be reinstated.
I agreed with the hospital's argument that it was just too risky to allow her to return to the operating room; they offered her another nursing position. The nurse's union filed a grievance.
I don't recall how the grievance was resolved, but that situation informs my analysis of how to deal with lawyers who are suffering from depression. If you are hiring a lawyer to do potenetially life-changing work—the equivalent of being in an emergency room—it's risky to give the lawyer the benefit of the doubt. Otherwise, I suggest that you monitor the lawyer's work closely and strongly consider continuing to work with them.
Paralegals are the unsung heros of law firms. They do a lot of the day-to-day work that serves clients. They keep files organized, prepare first drafts of documents, and perform hundreds of other tasks that are essential to helping clients. When properly used, they are also cost effective. They do the work that helps lawyers focus on lawyering.
But you can have too much of a good thing. Specifically, beware the lawyer who is overly dependent on paralegals. So what's an overdependent attorney look like? Some lawyers work using a business model where there are five or six paralegals for every lawyer. This is a way to handle a high volume of cases and keep the costs low. This can be an appropriate arrangement, especially where the work that a lawyer does involves filling out lots of standard forms. Many workers' compensation cases fall into this category. There is a huge difference, however, between using paralegals to help prepare forms and using them as substitute lawyers. From the client's point of view, there is often a telltale sign that the lawyer has crossed this line--the lawyer doesn't know the facts of your case inside and out. It's natural that, when cases begin, senior lawyers will know less than paralegals and junior lawyers about what's going on in your particular case. But as important deadlines get closer, a good lawyer will become more and more knowledgable about the details of your case. In some sense, a well-run law office is set up so that the more junior people do the work that enables the more senior person to step in quickly. It's a litle bit like the dental hygenist who spends 30 minutes cleaning your teeth so that the dentist can take five or ten minutes to see that everything is ok.
So what are tell-tale signs that the lawyer is suffering from Paralegal Dependency Syndrome? When they get to a crucial moment in your case--a court hearing, a negotiation--they rely on the paralegal for the facts. The most egregious example I've seen took place in the early 90s, when I was working for a judge. The judge ordered both sides in a lawsuit to show up to provide a sense of where things stood. The judge asked basic questions such as how many witnesses there were, and how many court days would be needed if the case went to trial. The official name for this kind of court appearance is a Status Conference. It is one of the most common and basic events in a non-criminal law suit. And in one particular case, the lawyer couldn't answer any of the judge's questions without looking at the his paralegal who was sitting at the back of he courtroom. After a while it looked like the lawyer couldn't fart without getting approval from the paralegal, and the judge, one of the most even tempered and patient people I've ever met, got impatient. The lawyer looked bad and the lawyer's client suffered as a result.
To be clear, I'm not knocking paralegals. They are indespensable. But there are certain things that lawyers can or should do on your behalf. It's ok for the lawyer to get help. In fact, a lawyer who works with no support staff raises red flgs about how they can represent you adequately. But fewer clients realize that they should be sensitive to the lawyer who seems to be overly reliant on paralegals. If you are getting this feeling, raise this issue directly with the lawyer before the case proceeds too far. The lawyer should have a good explanation as to what the support staff will do and when they will get involved more directly. If the lawyer can't explain this clearly, or more commonly, doesn't do as he or she promises, that is a sign that your lawyer may be sufferring from Paralegal Dependency Syndrome. I'd rather that you make a nuisance of yourself and make sure that you get the lawyer's attention than wait and see whether, when the chips are down, the lawyer will be prepared in time to represent you adequately. This is one of those times in life where it can pay off to be a squeaky wheel. This is when you need to exercise more control over your lawyer. This is an example of when you need to tug on your lawyer's leash.