Sidebars from the Sidelines

Diversity: The New Racism

2013-08-04T02:46:00.000-05:00

My wife and I were walking around a public area tonight in a very "diverse" area. There was a fountain in the middle. There were children all around the fountain blocking the fountain spouts. I specifically remember two black boys, three Mexican girls, an Asian boy, and one white boy. Each of them was at a different spout doing exactly the same thing. They were excitedly blocking the water while it sprayed them. Each enjoying while they play in the water. And I'll bet that seven parents were somewhere close wanting exactly the same thing for their children. Clothing, opportunity, enjoyment, prosperity, happiness, love, peace, joy, safety, friendship, education, employment. Why? Because we're all the same. I don't care where you're from, what you've done, where you live, what color you are, what sex you are, what sex you love, we all want the same things in life.

In the book, "It's Your Ship: Management Techniques from the Best Damn Ship in the Navy," Captain D. Michael Abrashoff puts it in the plainest terms. "Diversity training had merely made people more aware of their differences. Our unity training focuses on common interests and positive reasons to value others instead of a top-down prohibition against devaluing them (emphasis in original). Captain Abrashoff is on to something here. If we constantly focus on diversity training, and increasing our diversity hires, what are we saying to our culture? Look at how different we all are, how much of a chasm lies between us, and you had better live with it. What a stupid idea.

So why do we pretend that celebrating everyone's cultural differences will make us appreciate one another? Because it is racist to say otherwise. Little do we know that this is what keeps racism alive.

Let's look at this in simple, simple terms. Two people are meeting each other for the first time. Picture this however you want. Two black men. Two Spanish men. Two Chinese women. One white man and one Iraqi man. Who cares? When these two people are learning about each other, what brings them together in friendship? SIMILARITIES. That they both have 4 year old girls that are just starting to play with makeup. That they both played soccer at the university. That their husbands don't want to change diapers. That they both love the Green Bay Packers.

Rarely do two people start talking to each other and find friendship when one likes the Packers, the other likes the Cowboys, one has six children and is religious, the other single and atheistic. These differences may surface at some point later, when both have become friends. And once the two friends can understand each other and tolerate, and even learn from their differences. But commonalities bind us together. Not differences.

Conversely, what does diversity in action look like? When I was in law school, I, a white male, with a white girlfriend, went to a predominately black church in a predominately black area: Norfolk, Virginia. The pastor, who is like our second dad and my mentor, told us to apply for the school's Corporate Partnership scholarship. He told us that it would pay for 25% of our tuition. So we applied. And we received the scholarship. For one semester . . .

Then my law school dean found out about it. He found out that two white kids were applying for the "black church" scholarship. So what happened? Mr. Dean called a meeting with the financial aid director, my white girlfriend, and my white-self. He told us that this scholarship wasn't meant for us [white folk]. That we weren't the intended recipients. That the school was trying to get "diverse" students to apply. Never mind that we abided by the scholarship requirements to the letter . . .

Well, now the scholarship language has been changed by the school to ensure that "the intended recipients" receive the scholarship. All in the name of diversity. Never mind that a couple white kids were happily attending and volunteering in an almost all black church of 8,000 members. And are now members. And still support the church from our Midwestern home.

Diversity. It's degrading. It's disgusting. And it's destroying our world.

Unity? That's something I can get on board with.

When we can finally look at the complete opposite of what we are and understand we want the same things, then we can sympathize with them, love them, and help them. If we continue to see others as what we aren't, racism will live. And folks like Al Sharpton and Jesse Jackson will still have demented purpose.

If we as humans are serious about eradicating racism, we must, MUST focus on the similarities we have as humans. We must realize we're all in this together seeking the same things. Searching for the same ultimate end. Only then can we become one. Only then can we live in utopia.

I Spy: A Secret of Process Mapping, Leading Lawyers, or Leading Pregnant Women

2013-01-17T17:37:00.001-06:00

Spy: noun

2. a person who keeps close and secret watch on the actions and words of another or others.

Source: http://eagnews.org/

3. a person who seeks to obtain confidential information about the activities, plans, methods, etc., of an organization or person, especially one who is employed for this purpose by a competitor: an industrial spy.

verb (used without object)

5. to observe secretively or furtively with hostile intent (often followed by on or upon ).

7. to be on the lookout; keep watch.

8. to search for or examine something closely or carefully.

In the competitive business setting, some managers and leaders watch their competitors VERY closely. They use benchmarks of their competitors to assess their own progress. They develop products along the same line and at the same time as their competitors. These leaders "spy" on their competitors. Then there are leaders that watch other industries. Those are the successful ones. (Please go read "Blue Ocean Strategy" if you are in business, want to be in business, or are failing at business). These leaders spy on other industries as definitions 2, 7, and 8.

Source: http://asq.org/

A process mapping story that made its way around business schools all over recounts a British hospital that had a severe need for a change. It had high mortality rates and communication between team members in surgery was poor.

The solution? Staff doctors visited and viewed the Ferrari pit crew. After all, the pit crew can change all 4 tires and fuel the car in 7 seconds.

The Ferrari pit crew got to see a video tape of the hospital's surgery handover. The review brought drastic suggestions and subsequently, changes. Efficient changes. Life-saving changes. Now the handover is quick, everyone has a specific purpose, and the choreography is precise. For the story go here.

Here's a story that hasn't gotten around to ANY business schools: I'm chairing the Kansas City Metropolitan Bar Association's (KCMBA) Business Litigation Committee. We're really attempting to ramp up participation, membership, and offer valuable things to our members this year. One of the problems is getting a lot of good feedback. Typically attorneys are so loaded down it's hard to get them to really take the time to provide valuable feedback.

Enter a group of pregnant woman and new mothers. Saundra, my wife, is pregnant with twins. We went to the Greater Metropolitan Kansas City Mothers of Twins Club (GMKCMOTC) so Saundra and I can find others that are in similar situations as we are.

At the meeting, the leaders wanted to get a start on planning the year's events. The women got paper and pens and shared why they are a part of the group and what they expect from membership. A group of touchy, feely mothers came up with a year's plan through a ten minute exercise.

Well, so did the KCMBA Business Litigation Committee . . . Each attorney got a note pad and wrote those exact answers to their membership in the business litigation committee. Now we know what they will participate in and what they value. Our offerings will be precise and valued.

Get your eyes out of your industry and watch another. When you bring it to your industry, it'll be creative and innovative. And chances are it'll be successful.

"I spy with my little eye . . ."

Standing Empty Handed or Stooping Muddy Handed

2013-01-13T12:46:00.002-06:00

You get an email from a client that has been the bane of your law practice. Not only has the client been hard to work with and hasn't paid their bills, they haven't even followed your legal advice! And now they are telling you that they could have gotten the settlement themselves! The gall of some people. So you're gonna set them straight once for all! You're gonna let them have it! You're gonna use your full education in law school and practice to unleash a precise, eloquent, harshly worded email that will give them "what fo'." WAIT! DON'T DO IT! inner peace . . . inner peace . . . in- in- in- in- inner peace . . .

Source: http://sheddinglightonthepath.blogspot.com/

A few weeks ago I wrote about being a friendly opposing counsel and being easy to work with. I believe that will make you a more effective attorney. This time around we're gonna talk about dealing with ANYBODY.

Let's talk about sending that email to a client. What is the REAL reason you want to do that? For me, the brass tacks of it is that I'm upset and what to prove the client wrong. I want to show them the error of their ways. Realistically, I won't even accomplish that! The person, whether it be client, mother, sister, friend, enemy, cashier, or person driving next to you, will not LEARN what lesson you're trying to teach them! You know what will happen? I'll guarantee you they will still think they're right, you're wrong, and then they'll tell someone about it!

DON'T TAKE THAT RISK! Attorneys, like other professions, succeed largely on their reputations! That means we can't afford to act like idiots and still expect the legal community and social community to think we're worth paying. Even if you're nothing close to an attorney, I don't think you can afford to risk people thinking bad of you. Like Ravi Zacharias says, "When you sling mud, not only do you get your hands dirty, you lose a lot of ground." So don't stoop that low . . . to pick up mud.

Don't get dirty or lose ground. Chances are, there are much nicer ways to say what needs to be said.

Backwards Leadership

2013-01-12T17:06:00.002-06:00

Social media is a great resource for sharing information. Twitter, Facebook, Linkedin, and Google+ have all been great ways to reach out to others to learn from them, to understand them, and to build relationships with them. But social media is also a great risk for gathering good information. When your options are almost unlimited your choices must be precise. Practice doesn't make perfect. Perfect practice makes perfect. Incorrect practices makes incorrect habits.

I have seen an interesting thing in the last two years we've been using Twitter, Linkedin.com, and Facebook. EVERYONE is a leadership guru (which is interesting that I'm complaining about that as I write about leadership . . . ). Many "leaders" share how to be a great leader through 140 characters. Many "leaders" guide their followers on how to better oneself by being a great leader. If there are so many great leaders out there, why are our social cultures so screwy? Selfishness.

Source: http://www.maurilioamorim.com/

If you listen to proven leaders, they constantly remind us that leadership is selfless! That leadership's purpose is for others. That leadership can only be shown through adding value to others. One thing I see is that many people want to be leaders for the wrong reasons. They want to be leaders for the sake of telling others, "I lead this group," or "I have 55,000 followers on twitter," or some other reason that points back to themselves.

The leaders that have been documented as leaders through history were leaders for a reason outside themselves. Martin Luther King, Jr.; George Washington; Coach John Wooden. They all led to change society, the country, or just a group of young men that needed a mentor. They didn't need accolades, or "followers." They sought change in other individuals and that change occurred.

So, how to we everyday people that aren't King David or Saint Francis of Assisi lead to impact change? By Leading Backwards. If we are to be leaders, we must do so for the aid and success of others. If we are to make others successful, then we must know and understand what will make them successful. If we are to know what others need for success, we must know who they are. If we are to know who they are, we must listen. To be an effective leader, we must listen to others and then add value to them.

Remember, leadership is selfless (puts others first) and followership is selfishness (puts self first).

4L: What to do When . . . You File Using the CM/ECF System

2012-12-27T14:54:00.001-06:00

Last time we discussed removal from state court to federal court. If you're in a state system that already utilizes an electronic filing system, then you have a head start on the process. If you aren't, then you're likely like the rest of us. Fumbling around at 11:55 pm trying to find the right classification of pleading to timely file.

This post probably won't be very exciting. It will be more of an instructional with screen shots. We will be viewing CM/ECF systems from the Western District of Missouri. A few weeks later, we'll be looking at the CM/ECF system of the Eighth Circuit Court of Appeals when we get into how to file an appeal and what is required for the filing.

First things first: CM/ECF actually means something -- "Case Management/Electronic Case Files." Also, this guide will barely touch on case initiation. For the nuts and bolts on how to initiate a case see WDMO Guide to Case Initiation through ECF/CM. Each district is different. In the District of Kansas, you email the complaint to the clerk. In Arkansas, you mail the complaint in to the clerk via U.S. Mail. In the Western District of Missouri, you can file online through the CM/ECF system.

These screen shots are hard to read. It may be helpful to log in and go screen by screen so you can see what I'm looking at as you move through the process.

1) When you log in you'll be taken to the CM/ECF home screen for the court. There is a header at the top takes you to the appropriate screens. Right now we'll go ahead and click "Civil." Don't worry about the drop down menu, just click the word.

2) The screen below is now seen. This is the main menu for Civil filing. The program calls each filing an "event." You'll see you can open a new case through "Online Case Opening," request a "Certificate of Good Standing," "Email the Court" proposed orders or summons, file "Initial Pleadings and Service," file "Motions and Related Filings," and file "Other Filings." The list below each heading is clickable. To file your proof of service, or notice of acknowledgement, click "Service of Process" under "Initial Pleadings and Service."

To file an an amended complaint click "Complaint and Other Initiating Documents" under "Initial Pleadings and Service."

For you attorneys that do Social Security Disability appeals to the District Court, your menu is under "Social Security Events."

3) We're going to file a motion for leave to amend a complaint. Click "Motions" under "Motions and Related Filings." The following screen pops up. Whatever "available events" you click will appear in the empty box on the top. If you don't want to scroll, type in the box. Either type "Amend" or click the second option, "Amend/Correct." You'll see it appear in the "Selected Events" box to the right of the list.

Click the "Next" box beneath the list and wait. Seriously. Just wait.

4) The next screen you'll see is asking for your case number. There are several ways you can put in the number and it not work. Just to be sure, put all numbers in except for the first several "0s" in the last part. For instance, "4:12-cv-00123" should be entered, ""4:12-cv-123."

Here's a tricky part on slower computers. Once you put in your case number and click the "Next" box DON'T DO ANYTHING UNTIL YOU SEE THE NEXT SCREEN. The case name will be seen before ANY of the page loads. It tempts you to click it. Don't. You go into a report screen for the case and can lose important minutes when you should be filing.

5) Make sure you WAIT . . . wait . . . wait . . . wait . . . until you see this:

Now that you see the correct screen . . . You'll see a button that reads, "Pick Filer." To the right you'll see "Select the filer." Under "Pick Filer," you can see parent corporations of a company (it there are any) and who represents what party by clicking the "+" sign next to the party. To actually file, click your party's name or names. To select multiple names hold "ctrl" on your keyboard while clicking. Or select the radial dial "All Defendants." Once your party is blue (and I hope that doesn't indicate how they feel about your representation), click "Next."

6) Now you've got a screen that looks like this:

The main difference is that there isn't a huge black box over your parties' names. (After all, I did click that I would redact when I logged in . . .) There are two areas you can load documents. "Main Document" and "Attachments." For our motion for leave to amend, we'll click "Browse" next to "Main Document." Go find the right file and click it once to highlight it. Then click "Open" in the window. By the way the documents must be PDF files.

SIDEBAR: If you have an MS Word doc and you need to it be in PDF, Microsoft Word 2010 allows you to save Doc and Docx files as PDFs. Open the document. Press "File" in the top left corner, select "save as" and find the correct drop down "PDF." You're all set!

If you don't have MS Word 2010, download the free version of Primo PDF. When you get that downloaded, instead of saving from Word, "print" the document to the Primo PDF "printer."

Back to Filing: After you've found your motion to amend, and pressed "open," you'll see the document path in the box to the left of "Browse."

Go to the "attachment" browse and upload a copy of the amended complaint you are seeking leave to file. Click the arrow under category and a list of options will appear. Click "Exhibit." Type whatever you want in the description. I would type "A - Amended Complaint," or something like that. Press "Next" and wait for the next screen.

7) This screen is asking you to relate it to a document.

If it is not a motion in response, click "Next." The motion we're doing is not related to anything. If it is, check mark that box next to "Should this . . . " When you have that clicked and press "Next," a list of all relatable documents is seen. Click the box to the left of the document you're relating to and press "Next."

8) This screen is basically for your information. This is when your opposing counsel must reply to the motion unless otherwise specified by the court. Click "Next."

9) The following screen allows you to add details about the motion. The first box is a drop down menu and the second box can by typed in. On this motion I would leave the first box blank and type "Complaint" in the second box. Once you're satisfied with your decision, click "Next."

10) This screen is your last chance to determine that you want to file and that the filing is correct. Look this over carefully and determine that everything looks good. The fakepath at the bottom is for you to make sure you have the correct file. That document path will not be seen by anyone. When you're ready to pull the trigger and continue the adverserial process. Click "Next." TWICE! I don't know why this happens to me, but I have to press "next" two times to submit the filing.

CONGRATULATIONS! You have filed your motion for leave to file an amended complaint! And now another 14 days of wainting begins . . .

www.mcdowellmcdowell.com

4L: What to do When. . . You Get Removed to Federal Court for the First Time

2012-12-22T14:24:00.001-06:00

You triumphantly walk out of the county courthouse. Although you've been an attorney for three months, and you've been out of law school for eight months, you just completed your first REAL act as an attorney -- you've filed your very first case. A person has trusted you to represent them in their time of pain and injury. A person has trusted you to fight for them against the mega car company that poorly designed a breaking system on their new car.

Defendants are served and now you wait . . . And you wait some more . . . You'll be waiting for 30 days wondering what big-firm will be hired. What Super Lawyer will be filing a response . . . And the waiting seems longer when you're filling your time with playing NHL 2005 on PlayStation 2, perusing "People You May Know" on LinkedIn.com, and reading "Speaker for the Dead." After all you've already finished your projects on your other five cases. Well that's what it was like for me.

And it happens. The bombshell. You're hit with a dizzying notice of removal. Even though you got a "B" in Federal Civil Procedure, you have no idea how to handle this. After all, your professor didn't teach anything about 28 U.S.C. § 1446. You just know when removal is proper jurisdictionally speaking. And add the fact that you're not even admitted to practice in the federal court in which the notice was filed in!

Ok, first things first. Calm down. Take a deep breath. The first thing you need to do is get admitted in federal court. And fast. Especially if the notice is deficient and you have a fighting chance of remand.

1. Call the federal court and speak to someone that can tell you what steps to take to get admitted. About 15 days passed from removal to my admittance in the proper court. Once I got the forms that were needed, my sponsors to fill out sponsorship statements, and paid the admissions fee, I attended a local swearing in ceremony with about 5 other attorneys.

2. Determine if the notice was procedurally sufficient. Read and re-read 28 U.S.C. §§ 1441, 1445-48. The notice must be filed in federal court within 30 days of service on the defendant. It must be filed with the state court docket sheet and legal file of record from the state court. In some circuits, including the 8th, the notice of removal to the state court must also be filed within 30 days or the removal is not effected. A remand is proper for procedurally deficient removals on that basis.

3. If you have grounds, procedurally or otherwise, file a motion for remand. A motion for remand for any reason besides subject matter jurisdiction must be filed within 30 days from the date of filing of the notice of removal. 28 U.S.C. § 1447(c).

Side note: how to file through ECF/CM system will be the next post.

4. If you don't have grounds for removal and there are federal claims that can be brought (or state claims if the original complaint stated only federal claims), file a motion for leave to file an amended complaint. Add the appropriate claims and file your amended complaint.

5. Learn the Federal Rules of Civil Procedure and enjoy the prestige of federal practice.

Congratulations, you're in federal court! At least you didn't have to pay the $350.00 filing fee . . .

www.mcdowellmcdowell.com

Opposing Counsel: Naughty or Nice?

2012-12-20T11:18:00.000-06:00

So you're an attorney. You're armed with the authority to make decisions for people. You're equipped with the brilliance to pinpoint the appropriate law to the judge. And you're block-headed enough to do it with arrogance, obstinacy, and inflexibility. And you wonder why no one wants to work with you or will consent to an extension.

I've tried to build relationships with a good deal of people in the legal community. If I have an appearance on a case that I haven't met the opposing attorney, I try to find a picture of them so I can introduce myself before our case is called. This isn't everyone's style. But I've found that the case goes better for both attorneys and both clients when I have a good relationship with the other attorney. After all, you catch more flies with honey than vinegar.

One thing I've noticed about attorneys that seem to be hard to deal with -- they're young. Why do young attorneys feel the need to be tough, stand their ground, or even be inflexible. No body will think you're incapable because you give ground on the unimportant things. No body will think less of you if you're kind but firm. Here's a secret: they'll think higher of you.

In recent weeks I have gotten some choice morsels of advice from some very reputable sources. Rob Pitkin is an attorney in Kansas City at Levy Craig. He has been honored as a Super Lawyer since '05 and has been chosen as one of the Best Lawyers in America for the last two years. We were actually taking about handling other attorneys. He recounted how he once thought he needed to be tough and hard when handling cases. He stated that method was inconsistent with who he was. As he has gotten older, and more experienced, he said that he's found it to be much better to 1) be himself, and 2) be gracious to his opposing counsel. His words to me: "It's hard to do wrong to someone you like." The moral? Get to like you're opponent and you'll be easier to work with. As important is to get to know your opponent and get them to like you. You'll have more fun with the case, you'll get more out of the case, and you'll have a relationship that WILL come back to benefit you in years to come.

Here's another encounter worth noting: Rod Richardson is the President of the Kansas City Metropolitan Bar Association (KCMBA). He was discussing how the KCMBA can garner more members this year. He was telling the leadership team about building relationships with fellow attorneys in the community and inviting them to meetings. He analogized getting bar membership to practicing against other attorneys. He implored us to build healthy relationships with our opponents because, "You won't spit on someone you like." Nearly identical language from two separate veteran practitioners.

What's the lesson? Don't be hard to work with, inflexible, or closed down. This specifically is a call to younger attorneys: Play nice! Be friendly. You'll do your client AND THE PROFESSION a service if you're nice.

Or you can be naughty. And you'll do your client and profession a disservice. And sooner or later, the judge will give you a lump of coal.

www.mcdowellmcdowell.com

4L: What to do When . . . You Don't Have Clients Part 2: Learning the Law

2012-03-22T11:41:00.003-05:00

"Wisdom is a shelter as money is a shelter, but the advantage of knowledge is this: Wisdom preserves those who have it." ~Proverb from about 954 B.C.

The idea of attorneys is one that attorneys are typically wealthy. Closely related to that is they are typically knowledgeable and wise. The proverb above has an interesting interplay of words. Look at this:

1) Wisdom is a shelter.
2) Money is a shelter.
3) There is an advantage to knowledge (not wisdom).
4) Wisdom PRESERVES those who have [knowledge].

The writer is specifically stating, by omission, that money does not preserve those who have it, even though it can be a shelter. On the other hand, knowledge backed by wisdom preserves the wise. And wisdom can only come through having knowledge and applying it. This week's blog focuses on HOW to get knowledge that can actually translate into wisdom. Once wisdom is attained, then money will likely follow.

Learning the Law - A good friend and gracious mentor, Alan Gallas, told me one time, "Practice the law during the day, and learn the law at night." We were discussing that, as solo practitioners, there really isn't enough time to try to learn the law during working hours. Between client calls, meetings, court appearances, and document drafting, it is hard to sit down and search an area of law you need to know (or not even know you need to know yet). When you do have clients and cases to attend to, you must make time in the evening to grab the Mobar CLE deskbooks (or whatever resources your state offers), a treatise on mergers and acquisitions, or get on lexis and look up case law on a certain topic . . .

When you don't have clients it's not that easy . . . I went to law school not so long ago, in a galaxy far, far away. This school had a ton of physical books for nearly every state. The school renovated its library and needed to free up a ton of space by giving away unused books. The unused books on the East Coast happen to be the entire sets of Vernon's Annotated Missouri Statutes and West's Missouri Digest 2d. Knowing that I was coming back to the Midwest, Saundra I begrudgingly loaded all 266 books ($10,000 worth of books that I could've never purchased) in the back of my old Land Rover (it looked like it was on the verge of popping a wheelie).

When I first started practicing, and I only had two clients (neither case was an area I really wanted to get into) I decided to start going through my free books to learn certain areas of the law. And I did this for about one week. It was actually very hard to learn anything. I figured out that the only law I was learning was the law related to my two cases. Why? Because I had no purpose in my research or answers I needed to find.

Q and A - As I tried to find things to fill up my time, I began signing up for legal related websites. A few of them have question and answer forums. The two that I have found were the easiest to use were Lawguru.com and Avvo.com. For the newest attorneys, you probably won't be able to sign up for Avvo for about 9 months. So sign up for lawguru.com and start answering questions. For all other attorneys, you already have a Avvo placeholder for your profile because the state bar associations give that information to Avvo (or Avvo takes it, one of the two).

Why is this important? Because you will be forced to seek out a specific answer to a real question. And these limited scope representation answers probably won't lead to malpractice. (To be honest, several of my answers have translated into paying clients. So that alone should motivate you to do this). Once you get old enough to go to Avvo, do that. The questions are better and more specific.

Another thing Avvo offers is a point system. You get points for answering questions, for other attorney's marking your answer as good, for the asker marking your answer as the best, for writing legal guides, etc. Being raised on video games, it makes it easy to want to answer questions to increase my score. It's really kinda competitive and requires good, thorough answers to score better.

When you get a question on a certain area of law, start trying to learn as much as you can so you can answer the question thoroughly. And if the question doesn't have enough facts don't say, "This doesn't have enough facts and I can't answer this you idiot." You'd be surprised, but you will see other attorneys answer that way. Would you put that on a law school exam? I hope not. Say, "Well if the facts were this way _____ (answer appropriately to the facts). And if they were this way _____________(answer alternatively)."

You'll start finding out you can argue any case both ways. And you'll know one of the most important things in real practice. What facts change the outcome.

So run out and start learning to gain knowledge, for wisdom will preserve you if you have knowledge.

www.lawmcd.com

4L: What to do When . . . You Don't Have Clients Part 1

2012-03-09T18:35:00.000-06:00

Well it's that time again. It's February bar exam time. And that may be harder than the regular July bar exam time. At this time, students are coming out of school at a time when most firms are prepping for their summer interns or fall associates. At least this year, the economy is supposedly getting better and more firms are hiring . . . supposedly. So if you take the Feb. bar, or took the July bar and are still looking (or took the July bar in 2010 and are still looking), this blog's for you. It's also for the attorneys that have been practicing for 10+ years and have seen a substantial drop in clientele.
You don't have clients. You're sitting there in a suit watching YouTube. Or you're sleeping in till noon. I've done both. I've done both with and without clients. It's more fun with clients, let me tell you. Then it's a time-waster or mini-vacation, not a way of life. Either way it's probably your fault. Yes, I said it! IT IS YOUR FAULT! Clients are not going to find you out and walk in your door (especially if you're in sweatpants and a Superman shirt). You will have to do SOMETHING. So what are those somethings?

Relationships - I've said it before and I'll say it until I die, I hate the word "networking." No, seriously I hate it. And you should too! Don't network. You won't want to, it won't be important, and you won't remember anyone (and they won't remember you either). Build relationships. This way, you'll care, you'll want to, and you'll remember people (they still won't remember you).

When you don't have clients it is ABSOLUTELY imperative that you build relationships with a great deal of people, especially attorneys. If you have local bar events, or free CLEs, or know any one attorney you can do this. Email the one attorney you know. Tell them you are just starting out and have some questions (offer to take THEM to lunch and then actually pay).

At this meeting, tell them you want to know how to do __________. Ask them how it was when they started. Tell them you're not looking for a job, but just wanted to pick their brain about something legal. I will almost GUARANTEE that they will offer a LIST of people to talk to. Be real. Tell them the areas you want to practice (even if it's not in their area, they'll know people). My wife met with a Federal Judge and he gave her a list of 13 people to contact! 13 PEOPLE! Well at least you know your next 13 emails and meetings. When you email the leads, tell them "so and so told me to contact you." Then you're introducing yourself in the authority of the person you got their name from.

The day after the meeting, and I MEAN DAY! Hand write a note to them. Thank them for their time, their advice, and tell them you are "looking forward to developing a mutually beneficial relationship." (As a side note, I got lunch with a partner of Bigfirm. I was EXCITED!!!!!! I thought, this guy can help my career! You know what happened? He paid for my lunch and I gave him several legal documents for a new client that needed products liability intake procedures. And you know what? It was worth it. We became friends and he introduced me to other people. And he answered my phone call every time I called. Just remember, sometimes you're there to bless someone else, not be blessed. He has since passed and the whole Kansas City legal community has felt it.)

Do it. You'll get clients from it. Most importantly, you'll meet people that will guide you and continue to guide you. And you'll build a relationship that is worth having. I have meet a few of my mentors this way. And in my position - "young attorney upstart that started up own firm" - it is imperative to surround myself with experienced teachers that are willing to share their knowledge at the risk of training their competition. Almost every one of my mentors has referred work my way.

Stay tuned for "What to do When . . . You Don't Have Clients Part 2 . . . Learning the Law."

www.lawmcd.com

“Out-of-the-Box Entrepreneurialism”: The Essential Element For a Change Agent

2012-02-17T18:03:00.000-06:00

The setting sun is nearly blinding, but you’re still upbeat. You’re driving home from work on Friday. Your hair is being tousled as you cut through the turns in your favorite convertible listening to your iPod. You grab your smartphone to confirm your dinner reservations. And then you take a moment to thank Thomas Edison, Henry Ford, and Steve Jobs. Wait?! Thank who? For what? Well, why shouldn’t you be grateful to three people that drastically advanced our society and drastically changed your world?

Edison, Ford, and Jobs’s out-of-the-box entrepreneurialism has positively impacted their industries, you, and well . . . everyone else in their path. For instance, your car, desk-lamp, computer, CD (and DVD) player are just a few consequences of “Out-of-the-Box Entrepreneurialism” (OBE) at work.

“Out-of-the-box entrepreneurialism” is a combination of radical thinking and passionate application. This 1-2 punch is essential in fulfilling your purpose. Just as important, it creates a positive impact on your industry, those around you, and those in your wake. OBE engages a thinking perspective that deliberately expands ideas beyond current processes and purposes. It challenges the formalistic structures of hierarchies and asks for more. It engages an application technique that deliberately perseveres to succeed despite nonexistent channels. It utilizes a “can’t quit” mentality while pushing through failure upon failure. It is only for the quick-minded and strong at heart.

Edison’s constant drive to market inventions for commercial application lead to the phonograph (and subsequently the radio, the tape recorder, CD, and iPod), the incandescent light bulb (and subsequently fiber-optics, LED lighting, and tanning beds), and the automobile (Edison encouraged his employee Henry Ford to experiment with gas engines). Edison did not look across his competition to emulate their tactics. He was deliberate in his creation of the radical. He passionately put his ideas to the test and we should thank him.

Ford’s radical thinking changed two industries in one fell swoop. He purposed to achieve a car manufacturing process that allowed every person in America to own a car. And he did. Ford focused his time and energy on low cost automobiles (with a little encouragement and support from Mr. Edison). He didn’t look to Chrysler or Cadillac to complete this task. He decided that current offerings were remarkably deficient and set out to create a valuable offering for those around him. Next time you jump in your gasoline powered car, and not your horse-drawn buggy, give Mr. Ford a little appreciation.

Jobs’s unending innovative pursuits have altered nations. Placing the fully-enclosed, personal-size home computer in front of nearly every human being in the world has opened communication, increased productivity, and created instant thousand-mile friends. Jobs knew that his ideas could change the landscape of his culture. He combined his famed creativity with an unbridled passion and has given every member of the global community something worthy of adulation.

These large-scale impacts aren’t the only changes that give OBE an integral place in your world. When you, as an OBE’er, hit the streets to change the world, you make little positive impacts on everyone you come in contact with. Your excitement for an incubating initiative can be seen by others and is contagious. Discussing your ground breaking plans with others inspires them to follow their dreams. Your precise action-steps motivates you to keep creating while giving others value. Your need for team members gives others a chance to be a part of something greater than themselves.

The combined potential energy you created by cutting against the grain of formalistic structure and mediocrity has just propelled a change in society that only few could believe. All this from your radical thinking applied passionately. Continue on the path of out-of-the-box entrepreneurialism and we’ll soon be thanking you.

www.lawmcd.com

What’s in a Name? Increasing Your Sphere of Influence

2012-01-31T11:30:00.000-06:00

From extricate.org

You may have heard, “You can tell if you’re a leader by looking behind you and seeing if anybody is following you.” Really, if nobody is following you in your endeavors, then you might not have a whole lot of influence. There is a simple way to make sure that at least some people are influenced by your actions and words. Learn their name.

I’m completely serious about this too. If you actually learn the names of others, you will see your influence on them increase. Why? Because others feel important when they are remembered. It makes them feel good about themselves. It shows that you made an effort to build a friendship with them. And people listen to their friends.

Now you are probably saying, “I’m terrible with names! I can never remember anybody’s name!” Most people I encounter and discuss this issue with say the same thing. And I used to say it too. Well, be encouraged! You can change!

I used to be absolutely horrible with remembering the name of any person I met. One time, I saw a person I knew at the movie theaters while I was with friends from school. I started introducing the person to my friends. After telling all of my friends’ names, I said, “This is . . . a girl from my church . . . and I . . . don’t know your name . . .”

Who does that? Who introduces a person they don’t know? Right then and there I made a decision to purposely remember others’ names. I found out a couple things in my attempt to make others feel special (well . . . and really make me not feel stupid . . .)

Why I couldn’t Remember Names – This is the SIMPLEST, yet STUPIDEST thing. And I bet you’re doing it too. When it came to introduction time, and the people I was meeting started introducing themselves, I stopped listening. Not that I checked out, but that I was focused on thinking of the next thing to say! Because I was thinking about what I was going to contribute to the conversation, I would miss what others were contributing . . . including their names!

I realized this and started listening to the roll-call with purpose. When another person was saying their name, my priority was hearing it. And not just hearing it but trying to think of a way to tie their name to something they were wearing or doing. “Sally is shopping.” “Mark the musician.”

How I started Remembering Names – Little tactics like the above tie-in and saying the name five times aloud right after hearing it can be helpful to remember names, but I forget to use the first tactic and the second tactic may not be appropriate in the setting (however, as a aside, I have made a joke about it right after introductions like this: “Tom, Tom, Tom, Tom, Tom . . . If I say it a few times I won’t forget your name. Tim right? I’m joking I know it’s Tom. This actually does help because you’ve made the introduction an event that your mind will remember).

The following strategies will help you remember new names.

Say the First AND Last Name – When you introducing yourself to others, ask the other person their last name. I know you may think this will compound your ability to remember because now you’re remembering TWO names. But it doesn’t. It will give you an extra tie to another thing. Mark will be easier to remember if you know his name is Mark O’Brian. It seems counterintuitive, so just try it.

Say the Name several times in the Conversation – Right at the beginning, “Oh, nice to meet you Mark.” A little later on, “Well, Mark I was going to do this and that . . .” And at the end, “Mark it as great to meet you! Doing this will solidify the name with that person in your memory bank. It will also show Mark that you know his name and he’ll feel better leaving the conversation. It’s been said that the sweetest sound to a person’s ears is their name.

So go ahead, make a person feel good. Drip a little honey in their ears by saying their name a few times. And make sure you get their first and last name. Once you start knowing names these people will start liking you, and they’ll start letting you influence them. And this simple tool will singlehandedly increase your sphere of influence.

www.lawmcd.com

4L: What to do when . . . You Write Your First Complaint

2012-01-06T15:09:00.000-06:00

Welcome back folks! Have you ever heard the saying, "The first [one] to plead his cause [seems] right, Until his neighbor comes and examines him"? It's a proverb from about 700 B. C. It still seems pretty relevant today too huh?

This proverb will be our guidance for drafting our first (and every other) complaint. While we're drafting the intricate details of our complaint, remember that when your friendly "neighbor" of a lawyer comes and examines you, your petition may not seem as right as you'd like. With that in mind, we can use two tools in our drafting approach. I will focus on Missouri in some parts of the approach, but generally, this approach can be used for federal complaints.

Some of this will be VERY elementary, so if you don't care about this move on down to "Drafting the Claims." For the neophytes, here are some considerations for drafting:

Caption - I'm not very good with Microsoft Word, so I don't know how to create two separate panels in which to type while keeping the ")" from moving all over the place. Frankly, it takes too much time for me to return the close parens back to the center.

At at the beginning of my short career, I was working with a brilliant 32 year solo-practitioner, Larry Bratvold, and looking over his pleadings. I noticed that he did not have close parens, but a straight line right down the middle of the caption. He simply inserted a line from the shapes box and doesn't have to mess with the ")". When his caption is longer, he stretches the line. If it is shorter, he shrinks it. Now I do that too, and it has saved me time AND frustration.

Title - If you're having trouble thinking of a title for the complaint, determine what you're asking. Some attorney's use things like Plaintiff's Complaint Asserting Defendant's Products Liability. Why not just say: "Complaint for Products Liability", or "Complaint Seeking Injunction"? Just say what your doing, don't make it too hard.

Introduction - I'm sure you're probably freaking out because you don't know how to word your opening sentence for the pleading. To be honest, it doesn't matter as much as you think it does, but I'll give you an example that you can cut and paste from here:

COMES NOW, [insert Plaintiff's name(s)], Plaintiff(s), by and through his/her/their attorney, [insert your name], and for their Complaint [insert your complaint title here] allege(s), aver(s), and state(s) the following:

Remember that ONE person allegeS, averS, and stateS and many people allege, aver, and state!

Complaint Headings - Depending on your jurisdiction, you may want to set out separate headings that outline the parties, jurisdiction, background facts, or procedural history. These should be centered and underlined. I recommend using these headings

DEMAND FOR JURY TRIAL

JURISDICTION AND VENUE

PARTIES

FACTS or BACKGROUND FACTS or GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS

COUNT I - [INSERT COUNT]

Body - For each sentence or thought, use a separate number:

                1.      Defendant is a foreign for-profit Delaware corporation doing business in Jackson County at 1234 Main Street, Kansas City, MO 64106. Defendant's registered agent may be found at: Bilbo Baggins, 15 Bag End, Shire, Middle Earth. Defendant is an employer as defined by 29 U.S.C. 630(b) and has employed Plaintiff at all times relevant to this action.

                2.        Defendant hired Plaintiff on ______.
. . . and so on.

Signature Block - When you're submitting any thing to the court you should sign off with "Respectfully Submitted." Check your jurisdiction for the information needed in the signature block, but Missouri requires: "[C]urrent mailing addresses, telephone numbers, facsimile numbers, electronic addresses, and Missouri bar numbers, if any." Rule 43.01(c).

Now that we got some nuts and bolts out of the way.

Drafting the Claims - The other stuff is kinda important to make you feel warm and fuzzy inside when you submit the complaint. The following stuff is of utmost importance to make sure you win the case, or at least don't get dismissed. Drafting the claims is not as hard as you may think (or as hard as everyone seems to make it). Just make sure you plead the elements of your claim. That's it! No really, that's it.

Missouri is a fact pleading state. This means that we must plead enough facts to substantiate our claim. If your jurisdiction is not a fact pleading forum, consider doing it anyway. The reason? Because you're reading what I'm writing and I recommend it. No, seriously, pleading the facts gives you a method to actually plead the elements of your claims.

1. Jury Instructions - Missouri has the Missouri Approved Jury Instructions (MAI) that should guide a Missouri attorney's complaint drafting (in Missouri we call them "Petitions." Aren't we special?). Rich McLeod, a very experienced attorney, who happens to be the Missouri Supreme Court Reporter for the Committee that writes the MAI, recommends allowing the MAI to guide not only jury instructions drafting but also petition drafting.

If you know you're going to be using that verdict director for the jury, then you already know the elements you must plead. For a negligence case, you know you have to satisfy "Duty, Breach, Causation, Damages." So use factually based sentences that satisfy the claim. For instance:

      1.     Defendant owns a retail business open to the public between the hours of 10 a. m. and 9 p. m. (business owner's duty to make safe is now implied because of the fact).

     2.     Defendant failed to make safe the icy parking lot after the ice storm on Jan. 4. (breach is implied because the storm made the Defendant aware of the danger, failed to make it safe, and Plaintiff was harmed).

     3.     Plaintiff was walking on Defendant's premises during business hours to shop. Plaintiff slipped and broke his neck, collarbone, pinky finger, big-toe, shoulder-meat, and buttocks. (causation implied from plaintiff falling on unsafe icy conditions).

     4.     Plaintiff suffered eleventy million dollars ($11,000,000.00) of medical bills from the fall on Defendant's premises.

2. CaseLaw - This is almost identical to the above tool, but this comes from the caselaw. Research the elements of your claim and determine what the courts look for in your case. If you have an employment discrimination case, the elements come from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The prima facie case for discrimination is 1) the plaintiff/employee was in a protected class, 2) the plaintiff/employee suffered an adverse employment action, and 3) discrimination is likely the reason for the adverse action.

So break down your petition with facts that support each element. 1) Employee is a woman, 2) the employee was fired on Oct 21, 1909, 3) employee was told women are not good workers, especially when pregnant.

Why go through this painstaking process? Because you will get a motion for dismissal based on a Failure to State a Claim Upon Which Relief Can Be Granted (12(b)(5). When this is submitted, the judge can see that your pleading claims the elements perfectly, and thus relief CAN be granted.

And because you will inevitably get a summary judgment motion. And even though you can't use your pleadings to rebuff the summary judgement motion, you can use affidavits that reiterate the elements you pled, based on the facts that the affidavit must contain.

Remember, don't make this harder than it has to be. But also remember, to make it as professional as it should be. And don't forget to remember that a good pleading is only as good as the claims pled. Lastly, make sure you also remember a good pleading will still seem right when a neighbor comes and examines it.

The Best Offense is the Best Offense: Creating an Indefensible Position for your Adversaries

2011-12-27T12:07:00.001-06:00

In the movie The Usual Suspects, Kevin Spacey makes a comment that has more widespread significance than the writers probably intended. He states that "the greatest trick the devil pulled was convincing the world he didn't exist."

People frequently say that the best offense is a good defense. That actually doesn't make sense. I understand the thrust of their proposition, but the best offense is an offense that is indefensible. The best defense is a a defense that is impenetrable. One way to make sure your adversaries do not have a impenetrable defense is by making them think you don't have a good offense. That's why the devil's convincing the world he doesn't exist works so well. Because people put their guard down. They stop defending.

A few weeks ago, the 13-0 Green Bay Packers came to Kansas City. My wife gave me an early Christmas present by getting tickets to the game. The Packers have been my favorite team since I was about eight years old. And this was the only professional game that I'd ever been to.

The Packers have been absolutely unstoppable this year. And the Chiefs, well, have been quite stoppable. But through the entire game, the Packers couldn't contain the Chiefs offense. Not that the Chiefs scored a ton of points, but that it seemed as though the Chiefs could pass ten yards at a time, at will. Why do you think this was? I tend to think that the Packers were over confident in their own abilities and underestimated their opponents abilities.

We can utilize these analogies in our own lives. Make sure that people don't see you coming. There is a time to be professional and competent. And I'm not proposing to feign ignorance. I'm just proposing that it would be much better to be underestimated and win, right?

I know an attorney that sometimes seems unkempt and non-caring. For instance, one day the right side of his shirt was completely un-tucked. Suit, suit-coat, button-up shirt and tie . . . and half of the shirt un-tucked. The next day? Suit with no coat, french-cuffs with cuff links, but the cuffs were folded contrary to the creases and looked sloppy. I don't know if he did this on purpose (and these were NOT the only two instances of wardrobe malfunction), but at first glace, you could question his ability to lawyer. However, when you read his briefs or and saw him when he spoke, you instantly knew you had underestimated him and under prepared. This guy was good.

Its interesting to watch young attorneys interact with each other, judges, and attorneys senior to them. Some of them try way too hard to seem competent. Their behavior isn't congruent with their own beliefs about themselves and it shows as self-consciousness.

Just because we're young doesn't mean we're incompetent. You don't have to prove to others you're competent through your interactions. If you're good, they'll know it by the trail of success you leave behind you. Don't think that your young age, or few years of experience makes you any less. Some may know of this quote, "Don't let anyone look down on you because you are young, but set an example . . ." Even Superman had to start somewhere . . .

And remember, if someone underestimates you because you're young, you just gained a powerful advantage. They will not see you coming. So utilize their over-confidence by using a great offense on their indefensible position.

Sacking Armchair Quarterbacks: How to Keep your Critics from Ruining your Day

2011-12-15T09:01:00.001-06:00

Critic: "One who tends to make harsh or carping judgments; a faultfinder." That is not my definition. That is one of three definitions one can find on my favorite dictionary source. Dictionary.com. (I have downloaded about five apps for my phone. I'm halfway embarrassed and halfway proud to say that one of them is Dictionary.com. I'm embarrassed to say one of them is Pumpkins v. Monsters.)

A faultfinder. Remember this term for a few minutes.

Undoubtably, you've been the victim of critique. Undeniably, you've been the subject of carping judgments. Unquestionably, you've been the target of harsh and mostly unwarranted faultfinding. It probably didn't feel very good did it? You know what? I know a secret. I know how to make those feelings go away. I didn't say I know how to make those PEOPLE go away. They're like the mythological Hydra. You chop off one head and three more pop outta the nasty stump . . . Anyway, I do know how to make sure you don't have those feelings anymore.

Remember to roll your Rs. Like the Hydra, these three heads will repopulate as you implement them.

Recess - When you get criticized (and I mean unwarranted, unconstructive criticsm), just take a break. Stop what you're doing, sit down, let the unsavory feeling of defeat sink in. (Now don't over do it! Don't throw yourself a pity party!)

This break will give you two distinct opportunities you need. The first, and most ideal, purpose of this recess is for holding your tongue. Critics love drawing you out. Critics LOVE ratling you. Don't let them! Critics love making you squirm. So don't squirm. If you take a short recess, you'll find that you won't say something you regret. And you get to gather your thoughts for a response (which I don't advise doing!)

Second, this recess will give you exactly enough time to determine if the critique has merits. Even if the critique is from your most notable enemy, remember that they probably see you differently than you want to be seen. In any case, take note of the critique long enough to evaluate your actions in light of your beliefs and morals. If they check out, move ahead 5 spaces to "Recast."

Recast - Recast means to reorganize or build up. This second stage is vitally important. You won't be able to move to the third step without it. You should think about the critics and the event being critiqued. Also think about the direction you're headed in and the purpose for your actions.

What I've found is that MOST critics are only critics. I mean THAT'S ALL THEY DO! They aren't really progressing like you are. They aren't going for it! They aren't putting their reputation on the line like you are! They aren't really attempting anything! That's why they have the time to critique you.
A lot of them are armchair quarterbacks that won't make a decision. But then they'll degrade everyone after someone does finally act. (Remember MOST.) Some actually are just grumpy that won't be happy at all. But that doesn't take away the fact that you're still doing something.

Maybe you did mess up. Remember, the word faultfinder? We all have faults. Your critics have faults. And to be honest, your critics are probably really good at identifying their own weaknesses . . .

Once you've realized that your critics don't have any REAL bearing on you or your situation, then you're ready for the next step. If you are now smiling about your critics lack of drive and initiative, move ahead 2 spaces to "Release."

Release - This step is when the unsavory feelings go away. Once you have evaluated yourself to determine if change is needed, and recast the situation to understand that you're progressing, now you must know that this criticism won't hold you back. The only thing that is holding you back is hanging onto the upsetting words. If you're bitter towards someone, I'll guarantee that they've moved on. They don't care that you hold a grudge. Chances are, they don't even know.

So draw out your confidence and get moving. Keep progressing! And know that you'll get criticized again.

4L: What to do when . . . You get your first responsive pleading

2011-12-07T09:23:00.001-06:00

From the Gemini Geek -
thegeminigeek.com

Come one! Come all! Welcome to the emotional roller coaster! Step right up! And defy your inner constitution! Your one ticket gets you one responsive pleading! Prepare yourself as you're taken to the top of the track and dropped 300 feet in two seconds . . .!

If you're a new attorney and you've already received your first responsive pleading, then you know exactly what I'm talking about. If you're not a new attorney, and you've received a reply brief, or Suggestion in Opposition recently, you're in the same spot.

Let's deal with the new kids on the block first. Chances are, you've gotten an answer to a complaint. And that first answer completely took the wind from your sails. Well, here's the first piece of encouragement. IT WAS A PLEADING AS A MATTER OF COURSE for your opposing counsel (OC). OC didn't personally tell you're wrong, you're inexperienced, or you'll pay their attorney's fees. That was probably one of several answers they filed this week, and most of them probably look very similar. I'll bet they all asked for dismissal with costs paid by someone other than them. That's just how it goes . . .

The other piece of encouragement comes now: Tom Bender, a very experienced, highly respected, successful attorney told a bunch of us youngsters something that I've tried to remember every day I file something against BigLaw. He said this, "You younger attorneys, at the beginning of your career, are probably only 5% less competent than successful attorneys that have been doing it a while." And I believe him. After all, you do have the same degree and professional licensure. You just have to learn how to use it. And you will. And you are. Don't sell yourself short.

My story: My first responsive pleading came one month after I became an attorney. And the OC happened to be at one of, if not THE biggest, most reputable firms in the city . . . My next responsive pleading? Bigger city; bigger firm. Do you know what these did to me? I saw the outside of the envelope with "BigLaw" letterhead addressed to "Mr. Jonathan D. McDowell, Esq." and started shaking. I started reading the answer and became nauseous. Then I read, "dismissed with costs . . ." and it nearly knocked me off my feet. I can remember reading it while standing in front of my office chair. I sat down with all confidence sucked from my being . . .

From Boxing 360 - http://www.boxing360.com/

Once I recovered a few days later (by that I mean "after laying in fetal position for three days"), I did some research, I looked at my facts again, I realized my client's case was great, and then I responded.

For the experienced folks: I don't think this changes, does it? Although I don't feel AS bad when I get a reply, I still panic and think that my case is terrible and we're gonna lose! The Chair of the Missouri Bar Solo and Small Firm Committee, Chris Wendlebo and I were discussing this exact issue. He has been practicing for about 12 years. He told me that almost every time he gets a response telling him he's wrong, he panics. And then he looks at his arguments again, realizes they're strong, and understands he has the higher ground.

From Tech Shout - www.techshout.com

Bottom line kiddos: You're not alone. You're panicking with the rest of us! However, just know that some of these responsive pleadings are a matter of course and are no reason to get excited. When you do get the wind knocked out of your sails, try to get your sails back up as soon as possible. You're not dumb. You're not a loser. You don't have a terrible case. You're smart. You're passionate. You're competent.

You're an attorney.

The Wait of Glory

2011-11-24T13:11:00.001-06:00

C.S. Lewis

C.S. Lewis authored "The Weight of Glory." It is a compilation of his sermons that he delivered for giving hope and encouragement to people aduring World War II. Although some of my posts are not specifically for attorneys, this one is.

When a client calls on me to represent them in any matter, it occurs to me that these people are entrusting to me a very sensitive and delicate situation in their lives. And not only that, they are glad to shell out a large chunk of money for me to do so. Most times this happens, it strikes me how heavy this situation really is. The 'weight' of this situation compels me to be thankful to the person that has chosen me. There are months that I don't catch a new client and thus don't increase my income. But I know that if I continue to feel the "weight" of gratitude, I will eventually come into "glory."

For other attorneys that read this, I encourage you to send thank you cards to your clients (or the most recent clients if your client list is too large to make this feasible) with a genuinely thankful heart. Your authentic thanks in a hand-written note will make a HUGE impact on your client. And in turn your reputation will grow. Your practice will grow. Your fulfillment will grow. And eventually you will not have to "wait" for "glory", but feel the "weight of glory."

I'm continually thankful for my clients. I understand the trust that you've given me and I do not take it lightly. Thank you.

From http://karlagarrard.wordpress.com/ - Karla's Blog

Happy Thanksgiving!

4L: What to do when . . . You get your first client

2011-11-16T19:30:00.000-06:00

OK boys and girls! This is it! You've finally delved into the practice of law because you now have a client!!!!! Congratulations! Throw a party! . . . and then become very afraid . . . (which you've probably already done). But don't fret, because you're worth your rate even if you don't think so. Well it IS true. And now we're going to increase your worth.

Now that someone has actually decided to hire you, what should you do? You need to decide where to meet the client, what to bring to the meeting, and what to say (or better yet, how to act).

Where to meet
That really depends on if you're practicing out of your house, your parents' basement, or an office. If you're practicing out of your home, you should be aware of some issues that make it hard to meet there.

First, are you willing to allow a person you don't really know come into your home? When I practiced out of my parents' basement, and then out of my downtown apartment, I never was willing to do that.

Second, is your home ADA compliant? If you're not in a wheelchair, it probably isn't. In that case you should punt your meetings to another place.

Third, can you maintain a professional atmosphere in the home? And by this I mean DO YOU HAVE A FREAKING OFFICE IN YOUR HOME (my father would not approve of that euphemism, however, he has used it recently [at the age of 77])? If you are going to meet in your kitchen, bedroom, or even at your dinning room table, you may consider heading to a quiet corner (CONFIDENTIALITY) of a Panera or Starbucks (this recommedation is in no way an endorsement of either business and until I receive advertising checks from either, it will remain that way ;-)).

Also, if you practice from home, getting out will help you defeat the feelings of isolation and help create an emotional disconnect from your home workspace. Take every opportunity you can to get out of the house if you practice from home. The sun will do wonders for an unmotivated day.

When I practiced out of my downtown loft, we had a downstairs conference room and lounge. I opted for that and it always seemed credible to my clients (I also had a security officer that would have to call me down so it seemed much more big-time than it really was).

I've also offered to meet at the client's home, and they've appreciated this depending on their situation. This can also be dangerous and I would not recommend female attorneys meeting at a male client's home (I'm old fashioned, but "old fashion" trumps "kidnapped and mangled death" . . . I win).

If you work from an office . . . meet at the office.

What to Bring
You need to bring a pad of paper for notes. You need to bring two pens (if your only one stops working, you'll look unprepared). You need to bring two fee agreements. You need to bring a client intake sheet for their personal information. You need to bring something to bring these in. You need to bring a mind of research.

Hopefully you spoke to the new client enough to know what AREA of law this is. You should do some foundational research on the issue at hand, and some offshoot areas. And this isn't because you're going to resolve the issue. It is simply so your clients think you know what you're talking about. You must instill confidence in them here.

What to Say (How to Act)
Control the situation, but listen. Your new client will be expecting you to tell them what to tell you. They'll be expecting you to tell them when to tell you. They'll be expecting you to tell them what you know. As this may be your only meeting before you go to court to argue a motion, or before drafting a pleading, get as much information as you can here. Ask them to tell the story from the top, in excruciating detail. And take notes. Not so much that you miss it, but enough that you get the issues for later. After they tell you, then tell them.

Tell them the area of law. Tell them what the courts generally say in these instances. Tell them the TRUTH. It they have a case that will lose, you better tell them! You'll be on the hook later anyway! If they have a losing case, tell them how you're softening the blow, or at least protecting the amount they will lose. CLIENTS APPRECIATE THIS. THEY DO. NO, SERIOUSLY... THEY DO.

Fee agreement time . . . dun, dun, dun . . . Why is it so hard to ask people for money for services you just don't believe in? I know it is. But the client believes in you, so don't let your feelings of inadequacy get in the way. Say, "Ok, I can do [rattle off what you're going to do in their case] and here's what I charge . . ." (look at the market, but $175.00 - $225.00 per hour won't scare most clients in larger areas. If you're in a smaller areas $125.00 per hour will do). You have to be confident here. Don't offer discounts, or lead on that your rate is too high. I've done that. I never got paid . . .

When I say, "You WILL PAY ME OR I'LL THROW THE GAME," I get paid . . . Seriously though, if you're confident in your rate, and ask for the money, you'll get the money. Don't apologize.

Get both agreements signed and send one with them. Have them fill out the intake form while you're closing the deal. Thank them for their time, tell them you'll be in touch (because you will be sending an engagement letter), and send them on their way.

Congratulations! You have a client. Now get to work.

Sincerely,

Your Dear Wormwood

Why you suck as an attorney . . . No Seriously

2011-11-09T14:30:00.000-06:00

You NEED to read this if you practice law. If you don't, you may end up sucking. This is from a client's perspective, so if you're wondering what they think about you, look no further . . .

READ ME! . . . and you won't suck . . .

And we all know you don't want to do that . . .

With Love,

Lionheart

4L: What to do when . . .

2011-11-06T12:30:00.000-06:00

Law School, It's prestigious. It's honorable. It's professional. It's tough, it's exhausting, and it makes you think like a lawyer. It also gives you just enough tools to go out and get yourself into trouble.

If you have recently passed the bar, you are now equipped to take your clients to court. You are equipped to receive payment for the services you render. You are now equipped to practice law.

The problem with practice, in any endeavor, is if you practice incorrectly, you begin to develop habits that keep your growth to a minimum. And the problem with law practice is that you DON'T EVEN KNOW HOW TO START!

One thing law school does not do is help you successfully engage in the practice of law. With the amount of law graduates that begin a solo practice right out of law school, or join up with other recent grads to make a small firm, there should be something out there that tells these armed-and-dangerous attorneys where to aim their weaponry and how to discharge it appropriately.

I'm not a genius, or a law practice guru. But I am a young attorney that has learned some fundamental practice tips over the last year of practicing by myself. I've learned with the help of experienced mentors and the school of hard knocks. Thus, I will begin to periodically publish a series of practice lessons for the recent law-school-graduate-solo-attorney -- or more aptly called: the 4L.

Some of them will be:
- What to do When . . .You Don't Have Clients Part 1 . . . Relationships
- What to do When . . . You Don't Have Clients Part 2 . . . Learning the Law
- What to do when you meet your first client
- What to do when you get your first responsive pleading
- What to do when you write your first complaint
- What to do when you argue your first motion
- What to do when go to court for the first time
- What to do when when you need to file your first federal pleading using the ECF electronic filing system
- What to do when meet other attorneys to develop a referral base
- What to do when you rent your first office space
- What to do when you get removed to federal court for the first time

I will also be answering specific questions that 4Ls (and anyone else) need answerin'. If you have a situation that needs practice tips, please email me and I will make your question the next blog in the series. And I don't mean questions that require you to do a little research! Do your own independent research (and DO use Google) to get a foundational answer. You will be better off when you actually ask. Just remember, it is not like grade school, there are dumb questions . . . :-)

www.lawmcd.com

Here's to a safe and happy malpractice-free practice!

Stumbling Blocks or Stepping Stones

2011-11-03T15:15:00.000-05:00

Adversity. Opposition. Setback. Why do these words bring us emotional discomfort? Some of you are already thinking about specific circumstances you're going through right now. And you're tensing up and getting anxious.

And that is completely understandable. I face opposition on a daily basis in my law practice. And typically I take the worry home with me. Why? Because I think I will lose the case. Or I think I will lose my clients' confidence. Or I think I'll look stupid in front of nine appellate judges. And those worries are pretty minor to your cancer, or dying son, or you property foreclosure.

Now think about what life would be like without your adversity . . . Without your cancer . . . Without someone trying to harm you . . . Without your accuser telling lies . . . It may seem nice for a moment, but I don't think we would do very well without it.

Adversity is a motivator. It forces you to move. It is a teacher. It forces you to make decisions. It forces you to stand up for what really matters to you. It forces you to evaluate what does really matter to you. Adversity makes you strong . . . If you let it.

How do we let suffering produce perseverance in us? How do we let perseverance produce character in us? We have to turn our stumbling blocks into stepping stones.

I had a situation that has been the single most stressful event in my life. And then add trying to complete a law degree and a MBA while this is happening. And at this point, I had just started a relationship with my then future wife. I remember certain days that I was nearly nauseous with feelings of despondency. I literally did not know what to do with my adversity on a regular basis. At that time I thought everyone was against me. I thought my career would be hindered. I thought my dreams were collapsing in front of me.

Looking back, I can see that the ENTIRE situation was beneficial to me (well and to my wife). Because I was faced with some unbelievable opposition on a daily basis, I was forced to take steps to rebuff it. I was forced to encounter people to plead my cause. I was forced to learn how to write assertively but kindly. I was also forced to understand what many of my clients go through daily. Fear and unfounded accusing.

One of the MOST important lessons from that time was that I developed life altering relationships with some of my favorite people. I became closer to people that have been a blessing to me time and time again.

Not everyone was against me. My career hasn't been hindered. In fact it has been fantastically benefited. My dreams were not crushed.

Although you may feel like I did, it is not true. You are facing this for a purpose. You are facing this adversity to be shown with high character. You are facing opposition to be an example for others when they face their adversity.

When you're faced with constant adversity, utilize that time to find out who you are, what you're good at, and where you're going. With each act you take, see it as an opportunity to learn something new. See it as an opportunity to build new relationships. Turn your suffering into perseverance, and your perseverance into character. Turn your stumbling blocks into stepping stones.

Let's Get Meta-Physical

2011-09-20T14:43:00.001-05:00

I'd like to hear Olivia Newton John sing that . . .

Meta-physics - the branch of philosophy that treats of first principles, includes ontology and cosmology, and is intimately connected with epistemology. Also, a treatise (4th century b.c.) by Aristotle, dealing with first principles, the relation of universals to particulars, and the teleological doctrine of causation.

Ontology - the branch of metaphysics that studies the nature of existence or being as such.

Cosmology - the art or profession of applying cosmetics. . . . Wait that's cosmetology . . . Cosmology is "the branch of philosophy dealing with the origin and general structure of the universe, with its parts, elements, and laws,and especially with such of its characteristics as space, time, causality, and freedom."

Epistemology - a branch of philosophy that investigates the origin, nature, methods, and limits of human knowledge.

Teleology - the doctrine that final causes exist.

Now that we got THAT outta the way . . .

So here's the deal. I hear all kinds arguments against the existence of God. I hear about how religious adherents are not intelligent (really, it's only Christians. I've yet to hear a person admonish an Islamist or an Atheist for using emotion instead of logic) . Nor are they tolerant. In fact, Christians in particular are intolerantly and disgustingly exclusive. These arguments are chock-full of metaphyiscal reasons why the atheist, or the evolutionist, or the existentialist is absolutely correct and Christians are wrong.

Two observations:

Observation 1) Anyone who condemns the Christian for being exclusive while arguing an exclusive position negates their own argument. Even if they argue that everyone is correct in their arguments except those adhering to exclusivity. Now they are excluding the one thought and thus condemning their own argument. Furthermore, many times, the argument gives "evidence" that does not exist. This cartoon showing a baseball is never the case in these debates. Many times, the argument that Christianity does not have evidence for reason is "proven" without evidence (merely the supposition) that God does not exist, or that evolution happened.

For instance, the "there is no God" argument because of world suffering is intrinsically riddled with fallacies. If you argue that no just God would allow such things, you must assert the following: A) There is moral good and bad (because you are now telling me that suffering is bad and not suffering is good), and B) that moral good has been established by something (if there is a good or bad, which you assert, it comes from somewhere, if not from yourself as judging what is good and bad). So if morality is there and you are judging morality, then there must be a standard of morality. Now you must determine the source of morality. If you argue that we each have our own standard, then your argument falls on its face. If my moral standard is lower than yours, I can say that God would allow such things to happen. You say that your standard would not allow it, arguing for exclusivity of your standard of morality. Back to square one.

Logically, there is a better chance that all religions and ideologies are wrong and then there is of all being right.

However, giving the ontological reason for suffering (i.e., sin and fall of man) ceases the circular arguendo.

Observation 2) Between existentialism and Christianity, Christianity is the only logical belief system. Blaise Pascal, the SCIENTIST and mathematician put it this way: We cannot be certain of the existence of God or the non-existence of God. If you believe God does not exist and are wrong, you have everything to lose. But if you believe in God and are wrong, you still fulfill a existentialist's perfect reality. If you believe in God and are right, you are in paradise.

The best part about this blog post: it will not have any effect on those that adhere to the idea that Christians are stupid or exclusive. And in that, I prove my point.

Makin' a Comeback

2011-09-12T08:56:00.000-05:00

Hey Friends!

It has been too long since I've been blogging. I don't say "writing" because I've been writing everyday . . . just not the type that has general interest to most of the world wide web. For instance, I have a brief due to the Missouri Court of Appeals on Monday, which means I'll have to send the original and nine copies today, or rush them off tomorrow.

However, I still have to tweak my last argument and put together the appendix (not my favorite part).

Some blogging topics that will be coming down that pike include to transform negative situations into growth opportunities, how meta-physics affect us all, and the some legal considerations businesses may have and not know it.

Stay tuned!

Reinventing the Wheel

2011-09-12T08:43:00.000-05:00

New article of the Regent Global Business Review.

http://www.regent.edu/acad/global/publications/rgbr/home.shtml

I authored the first article title, "Reinventing the Wheel: A New Spin on American Business Leadership."

Divining Your David: How to Tap into Your Inner Underdog. pt. 4 of 4 - Purpose

2011-06-23T10:13:00.001-05:00

OK! So here we are at the final part. This weapon is the most POWERFUL of the underdog's arsenal. This last aspect of the underdog pulls, Pt. 1 - Preparation, Pt. 2 - Perseverance, and Pt. 3 - Grit together for the final conflict.

Purpose - No underdog can prevail without purpose. Think about it. Luke Skywalker's purpose was to turn Darth Vader from the dark side of the force. Rocky was avenging Apollo Creed. Nacho Libre reigned victorious for Encarnación and the orphans.

Whether it's for good over evil, friendship, or love, you must have a purpose OUTSIDE of yourself. Why is this so important? Lets see what our three traits literally mean.

Preparation - any proceeding, experience, or the like considered as a mode of preparing for the future.

There must be a point in the future that preparation is moving towards. Without purpose, preparation will be unfocused, inefficient, and undisciplined.

Perseverance - steady persistence in a course of action, a purpose, a state, etc., especially in spite of difficulties, obstacles, or discouragement.

Perseverance is persistence towards a purpose! Without an ultimate purpose one cannot persevere as with an ultimate purpose.

Grit - firmness of character; indomitable spirit.

How does a person begin to embody a firmness of character? By having a reason to do so. Think about the things that do not matter to you. Will you be firm in your decisions or actions? Think about the things that matter a great deal. You will have a firmness in character, or grit, in those things.

What is purpose?

"The reason for which something exists." I like to think of a person's purpose as "calling." A calling is a summons from someone or something. What is your calling? Why do you exist? Stop for 5 seconds and ponder this . . .

What was David's purpose?

In I Sam. 17:46 David tells Goliath why he's fighting him. David challenges Goliath with this: "This day will the LORD deliver thee into mine hand; and I will smite thee . . . that all the earth may know that there is a God in Israel." David's actions all point to this calling. He has been preparing for a future event and is now fearless in the face of intimidation and adversity. He doesn't let a lack of resources deter him, and no one can stand in his way. He is resolute in his actions to prove to all that "there is a God in Israel."

What's an underdog story without an ending? Remember when David promised he would take Goliath's head with a sling?

"As the Philistine moved closer to attack him, David ran quickly toward the battle line to meet him. Reaching into his bag and taking out a stone, he slung it and struck the Philistine on the forehead. The stone sank into his forehead, and he fell facedown on the ground. So David triumphed over the Philistine with a sling and a stone; without a sword in his hand he struck down the Philistine and killed him. David ran and stood over him. He took hold of the Philistine's sword and drew it from the scabbard. After he killed him, he cut off his head with the sword. When the Philistines saw that their hero was dead, they turned and ran."

Find your purpose, prepare for it, persevere to it with grit. Join the underdogs in a dramatic and memorable victory in your life-changing encounter.

Divining Your David: How to Tap into Your Inner Underdog. pt. 3 of 4 - Grit

2011-06-20T10:06:00.001-05:00

So far, we've found out the first two characteristics of an underdog. In Part 1 - Preparation, we determined that underdogs are prepared first, then have an opportunity. They do not necessarily prepare for the opportunity at hand. In Part 2 - Perseverance, we saw that underdogs maintain a single-course mindset. Although they may be derailed by events, circumstances, and discouragements, underdogs return to a path that will lead them to their life-changing encounter. This time, we'll see the inner resolve of an underdog and their dogged determination to keep getting back up.

Grit - One of the things that makes underdogs so fascinating is their ability to keep getting back up. At first glace it seems as if these characters have resilience . . . and they probably do. But upon a deeper examination, it can be seen that underdogs have more than resilience. They have grit.

Grit is that intangible, immeasurable inner strength that gives birth to mental toughness. Think of Rocky. In his fight against Drago, he is getting absolutely destroyed. Rocky is much smaller, he's bloodied, he's tired, and he's expected to lose. Somehow, somewhere inside, Rocky continues to find the inner strength to keep standing back up. The only way Rocky will not stand is if he cannot physically stand. But his mind won't listen to his body and he continues to rise . . .

David shows the same mental toughness, but against a different foe: intimidation. We last saw David attempting to wear Saul's armor. He's not used to the armor and probably cannot move around well so he decides not to wear it. Instead, David goes and equips himself with a weapon that he can use. "[H]e took his staff in his hand, and chose him five smooth stones out of the brook, and put them in a shepherd's bag which he had, even in a scrip; and his sling was in his hand . . ." I Sam. 17:40.

So David is heading into battle with his shepherd's staff, which is basically a thick stick, and a sling-shot with five rocks . . . David heads out to Goliath. A man that stands over 9 feet tall, with 125 pound chain mail, a bronze breastplate, bronze helmet, bronze shin guards, and a spear with a 15 pound spear-head.

Goliath sees this small, ill-equipped youth and lets David know his fate. "Come to me, and I will give thy flesh unto the fowls of the air, and to the beasts of the field." I Sam. 17: 44. Goliath isn't going to beat David up . . . He isn't going to humiliate him . . . He's going to kill David, and then leave his body for hungry scavengers! At this point I would start thinking about the reasonableness of my situation. But David doesn't! He has grit!

David tells Goliath, "I will smite thee, and take thine head from thee; and I will give the carcases [sic] of the host of the Philistines this day unto the fowls of the air, and to the wild beasts of the earth." David is no only threatening Goliath with death and decapitation, but that Goliath's entire army will be devoured! Does David expect to take off Goliath's head with a stick . . .?! Or slingshot . . .?!

There is an inner strength that all underdogs possess. It is a unstoppable drive to keep moving into the direction of the enemy. To keep rising from the mat. To keep bearing down into the battle. Why have you not encountered your life-changing battle? Did you stop pursuing your dream for fear of failure? Did you stop defending your position because the company is too big with too many resources?

If you want to win, you cannot quit. You must have "an indomitable spirit." You must have grit.

Stay tuned for the final characteristic tomorrow . .