Five by Five - Fred Faulkner

These Five ideas come from Fred Faulkner, a blogger I met at the ABA Techshow blogger's dinner.  Fred works for the ABA and maintains the ABA TECHSHOW site

While I'm not a lawyer, my past three years working in the legal industry has led me to these observations about the practice of law and what needs to change for it to survive for the future.  These are in no particular order, but are somewhat all related.

1) Embrace Technology -
Get with the program folks.  There are a plethora of technological tools that will help you not only practice law better, but give you more time to have that balanced life everyone is talking about.  Those who have found the balance have learned to leverage technology to give them the freedom they need to get away from the office. 

2) Loose the Billable Hour -
It may have been a profitable way of doing business in the past, but there are proven ways that show lawyers can get a better ROI on their time and investment in their practice by <em>not</em> being in a billable hour environment. 

3) Understand That Practicing Law is Not Any Different Than a Regular Business -
It doesn't matter if you are a solo, small firm, or a multi-national firm, you still need to understand overhead, payroll, management, administration, cost-per-employee, and other "business" activities to make sure you are in the black at the end of the month. 

4) The Practice of Law is Not a Boys Club Anymore -
Women are here to stay in this profession, and in many cases they are better than men in the courtroom.  Every individual brings certain qualities to the courtroom, male or female.  Women can also bring the rain into the firm just as much as a male, so they should get equal opportunities. 

5) Practicing Law is a Service, and Therefore Should Be Able to Marketed as One -
I know that marketing is a little taboo in the legal profession.  Not that it isn't allowed, but just not like most any other business.  There are ethics that must be followed in any profession, but marketing your ability to be able to provide a service should not be as restricted as it is.  Firms need to understand that marketing is crucial to the future of the profession (as well as all mentioned above).  I know it is still in its infant stages, but lawyers need to understand that it can be done ethically, as part of everyday business, not be penalized than working on billable hours, and still be done right.

Those are my five things.  If we can get off this high horse of "if it isn't broke, don't fix it" attitude, the legal profession will be better off. 

June 28, 2004 at 02:25 AM in Five by Five, Five by Five - Week 3 | Permalink | Comments (0) | TrackBack

Five by Five - Ann M. Byrne

 Here is a Five by Five contribution from Ann M. Byrne, author of the Quid Pro Quo blog. 

1. Rambo lawyering is out; civility is in.

Let the law be known as the profession where lawyers can be vigorous advocates and go out of their way to respectful and considerate to others. Lawyers would promptly return calls. Lawyers would keep their clients fully informed and encourage them to promptly and completely respond to valid discovery requests. Lawyers would adhere fully to the spirit and the letter of the court rules and rules of professional responsibility. Lawyers would cheerfully and graciously share tips, forms, best practices, and other information with other lawyers.

2. Lawyers and the law would embrace technology and new ways of doing things.

Many others have spoken far more eloquently than I could about technology and its role in the practice of law. I came to the legal profession from another career and had used computers intensively for years. I was astonished to see that only the secretaries had computers. I was amazed that the lawyers touched only the paper files and routinely misplaced their contents. I was stunned to see the index cards for checking conflicts and looking up case law. I could not understand how these people functioned. Everywhere I looked, people were drowning in paper. Things have improved some over the years I've been in practice. Yet, even today when I read the statistics on the number of lawyers who do not use any case management software, I am shocked.

Lawyers say they don't have time to learn how to use a computer, a computer program or a feature of a program. Lawyers also say that the systems they use work quite well and that they see no need to change they way they do things. I am reminded of the industries that saw no need to change how they did business and which are no longer in business today.

Lawyers have little incentive to be efficient, especially if they work on a billable hour model. Other billing models haven't convinced me, yet. Any way, very little of the practice of law is based on what makes sense or is efficient. The whole system needs to be revised and made more efficient and more modern. There are some bright spots of change on the horizon, which is encouraging.

The ability to successfully implement technology in the practice of law would, in my ideal world, be as highly valued as the ability to successfully try a case or the ability to write a cogent brief or the ability bring in clients. Lawyers and law firms would recognize that it takes many different abilities and skills to be successful in the practice of law. Each of those abilities and skills would be valued and considered when compensation and promotion decisions are made.

3. Lawyers and law firms would make a commitment to revamp the practice law; then execute their plans.

Staff would be included and will be valued participants in the process. Everyone would look high and low for all the things that we have always done that don't need to be done and can safely be omitted. Then we would stop doing them. We would ask your clients which of the things you do for them that they don't need, don't want, or don't find helpful. Then we would stop doing them. We'd ask clients what things we could do for them that would be more helpful to them. Then we'd look for ways to do them and we would start doing them. Then we'd look for inefficiency and waste. We'd figure out how to get rid of it. Then we'd eliminate it.

If we've been hankering to try something, we'd go ahead and give it a whirl. When we find the right situation, we'd make the time to get it done. Then we'd do it. We'd expect some things to not work out and we'd value what we learned from the attempt. We'd share what we learned, our successes and our misses. We'd make this revamping an on-going process until we had completely revised our practices, our courts, and our profession.

4. Lawyers and law firms would institute a sabbatical program for lawyers, perhaps along the lines of the MacArthur Fellowship, funded by lawyers and law firms for the benefit of the profession.

Everybody needs a break or a change of pace at some point in their careers. Why not allow lawyers to go work for a limited time to improve access to justice, to develop e-lawyering programs, to do pro bono work in an entirely different area of law, to help reinvent local, state, or federal government, to work on projects for courts, or to undertake some other worthwhile project. There are literally thousands of things that need to be done. Lawyers are wonderful problem solvers. Let's figure out a way to tackle some of those challenges and get them resolved! What a great way to recharge our batteries and get a new perspective.

5. There will be laughter in law offices.

Most of lawyers I know have wonderful senses of humor and love the work they do. They see the humor in a funny situation and their peals of laughter are an elixir. May each of us be blessed with at least one good belly laugh a day. You just feel great after a good laugh. Have one along with your apple every day!

June 28, 2004 at 01:56 AM in Five by Five, Five by Five - Week 3 | Permalink | Comments (2) | TrackBack

Five by Five - Ambivalent Imbroglio

The next contributor is the anonymous law student author of Ambivalent Imbroglio with this post:


1. Close down Lexis and Westlaw and bring an immediate and permanent end to for-profit legal research. The law belongs to the people, not Westlaw. The services now provided by these companies should be done by public employees paid by tax dollars, then the cost of legal research and representation would drop for everyone. See also Carolyn Elefant's suggestion #1. Same idea, mine just goes further; instead of having one free Lexis/Westlaw account per library or school, every computer w/internet access should have free, unlimited access to the publicly-funded, non-profit replacement of Lexis and Westlaw. This new database should also be searchable by Google and any other search engine.

2. Dissolve the ABA's cartel-like stranglehold on law schools and legal education. This would involve eliminating current requirements in most states that you have three years of law school before you can even take the Bar. Perhaps we should eliminate the Bar exam, as well. See Scheherazade's suggestion #1 . But even if some sort of qualifying credential is required to practice law, it should not require any sort of formal training. If there's a Bar exam or something like it, and you can pass it without a day of formal education, you should be able to practice law.

3. Reduce firm salaries and billable hours requirements by half, across the board, while at the same time doubling salaries for public defenders, legal aid attorneys, non-profit attorneys and all other "public interest" practitioners. That wouldn't even the playing field, but it would go a long way. See also Scheherazade's suggestion #4.

4. Make lawyers accountable for the work they do. I really don't know how to do this, but perhaps a google-able database of lawyers and the cases they've worked on would go some way to making attorneys accountable for the work they've done to protect big tobacco, to help Enron rip off its shareholders and the American public, and convince the Bush administration that it doesn't have to follow the Geneva Convention.

5. Require law schools do more than pay lip service to public interest law. Again, I'm not sure how to do this, but law schools need not be factories for producing BigLaw drones. For a start, professors who make jokes to their classes about how rich attorneys can get by screwing their clients should be fired. Becoming a lawyer should not be about making money.

Combined, my suggestions should go a long way to taking the money incentive out of the practice of law. Making the best available legal research free to all will reduce the overall demand for attorneys—more people will be able to do their own research and represent themselves. Freeing law schools from the dictates of the ABA will allow new schools to spring up, and eliminating the law school requirement altogether will allow the number of lawyers to skyrocket. All that great competition (lawyers love competition, right?) will mean no one will get much money. And, since legal research will be free, lawyers will be able to charge much less there, as well. Reduced firm salaries will become a necessity; therefore, law students will be much less motivated to go to BigLaw anyway. Plus, since they won't be paying such high tuition (because there are more law schools and because some people won't go to school at all to become lawyers), students will graduate with much less (or no) debt, removing another reason many people now go to BigLaw. Finally, if lawyers are forced to make a public accounting of the work they do, we'll have fewer people writing terror memos and defending companies that destroy the environment and public health and all those other bad things. The world will be a better place, and all because of these five things.

What was it Aerosmith said? Was it, "dream on"?

June 28, 2004 at 01:47 AM in Five by Five, Five by Five - Week 3 | Permalink | Comments (0) | TrackBack

Five by Five - Russel Trust

These Five by Five come from reader Russel Trust:

 1.  Law Firms should be limited to no more than 100
 Why have law firms turned into corporations?
Maybe because law firms don't look like law firms,
they look like corporations.  There is no collegiality
when partners don't even know each others names; there
is no professionalism when a law firm needs a CEO.  If
law wants to stay a separate, distinct manner of
business, it has to stop doing business like any other

People hate corporations.  People had the anomie, the
isolation, the inhumanity of it.  Sure, it's useful,
but only to a point.  Why do so many lawyers leave the
practice?  Perhaps in part because they can't stand
the atmosphere.

True, 100 is still too large a firm size, but at least
it is a start.

2.  Abolish All Mediocre Law Schools.  One of the
reasons the practice of law is so troubled, is that
law firms can always find another monkey to do their
document review/boring research/etc.  There is no
excuse for a Stanford Law graduate to have to look for
a job when a Georgetown grad has a job.  The flood of
lawyers that the sub-par schools deluges the
profession with keeps salaries down and partnership
tracks long.

Thus, we should permanently close all sub-par law
schools.  I'm not just talking about Hastings and New
York Law School, I mean American University, Fordham
Law, Duke Law, et cetera.  Don't try to tell me
there's a "top 14" these days.  Face it--there are
good reasons you were rejected by Harvard Law.  You
just are not that smart.

3.  Increase Pay of Government Attorneys.  Big time;
you want the best, you gotta pay for the best.  A lot
of lawyers would love to do work for the public
interest instead of helping some big company avoid
paying its taxes.  Those lawyers who do that should be

4.  Fully Fund the Public Defender System At All
 Ineffective assistance for poor people will
lead to a fundamental undermining of the legal system.

5.  Cap Billable Hours At 1850. In the 1950s, the ABA
said that billable hours per year should be about
1300.  And now, with Lexis, Westlaw and the internet,
billable hours are supposed to be longer?  You've got
to be kidding me.

Working longer still does not equal working better.
The money-hungry part of the profession must be
capped, lest it drain out any joy.  Being a lawyer
does not mean being rich; it used to mean being a
member of one's community, of playing a vital role in
society.  Just because asshole corporate lawyers have
perverted the practice, doesn't mean we've lost
forever the lawyer-statesman.

June 28, 2004 at 01:01 AM in Five by Five, Five by Five - Week 3 | Permalink | Comments (8) | TrackBack

Five by Five - Charles E. Petit

The first contribution to the Reader's Edition of the Five by Five comes from Scrivener's Error author Charles E. Petit.  His references are to the posts from Week Two.

  1. Simplify the ethics rules and then enforce them. The only ethics rules we really need are those that govern the behavior of military officers: "Thou shalt not lie, cheat, steal, or tolerate others who do" and "The appearance of a conflict of interest is a conflict of interest until proven otherwise." There can certainly be regulations that define administratively how to comply; but they need not include unenforced (and unenforceable) rules like MRPC 4.4. Really, now: when is the last time that you know of an attorney who was actually disciplined for harassing a potential witness? And, conversely, when is the last time that you know it happened? (Statistically, about thirty seconds ago.) In this state, disbarments are almost always for one of three classes of "offenses": comingling or converting client funds (even if there is no harm and it is corrected), a felony conviction, and offenses related to substance abuse (even if not so charged). Please don't tell me that everyone is following all of the other rules, unless you really want to see coffee all over the front of your clothes.

    As an obvious corollary, whatever rules we do have must be realistically enforced equally against everyone. Being a bee inside of a big law firm should not excuse anything, contrary to the assumption of MRPC 5.2(b). That's the "Nuremburg Defense" writ large. Similarly, it shouldn't matter whether one is representing a plaintiff, a defendant, a government agency, an administrative claimant, a buyer, a seller, a securities issuer, or whomever; one's duties are the same, and one should be held equally accountable. That's not to say that every transgression justifies disbarment, or even discipline of any kind; people do make honest mistakes, and sometimes circumstances leave an attorney no "acceptable" course of conduct. It is to say, however, that the nature of one's clientele should not diminish one's responsibilities.

  2. Reinforce that clients are people, not causes. This is one place that I think the case method does active harm. When we read cases in textbooks—especially those that are followed by a string of hypotheticals, each linked to one or more other cases—we lose sight of what a lawyer really does, and for whom. Consider, for example, the story I told about Jenkins some time back. If one looks just at the opinion in some casebook, one might think that somebody other than lawyers won. I'm afraid not; winning in the Supreme Court just resulted in a remand, followed by another appeal (this time unsuccessful for the plaintiff).

    Instead, at some point—and I think it vital that it be earlier rather than later—law students need to learn that there are people behind every lawsuit. Even when there are corporations involved, those corporations don't act for themselves; instead, there are people who make decisions to act (or not). There are costs to litigating—and, sometimes, to not litigating—a dispute, or to contract and transaction negotiation, that go far beyond the attorney's fees in the case. Perhaps this is more an indictment of our courts' turn toward law and damages as the only appropriate means of decision, disfavoring equity and equitable remedies (which are hellaciously difficult to value in a contingency matter!). It is absolutely, however, an indictment of the "black-letter law" result of most casebooks.

    This is perhaps more obvious to me than to most attorneys, because my clientele is intensely emotionally involved with every dispute, whether actual or potential. Books (and articles, and songs, and symphonies, and paintings…) are children to their creators, being sent out into the world. Some parents are abusive or neglectful; but not most. Most care deeply—often too deeply from an "objective" point of view—about how their children are treated, even after they "leave home." The emotional cost of copyright litigation is often far, far greater to the actual creator of a work in dispute than is any possible financial reward; conversely, the emotional cost of doing nothing can be unbearable.

  3. Adopt the Louisiana Rule for naming parties in interest. Ernie Svenson can correct the details if I get them wrong, but Louisiana requires that insurance companies that may have either exposure to damages or a duty to defend be named as parties in interest in civil suits. This is the tip of the iceberg; leaving aside "John Doe" lawsuits, I think that all parties in interest should actually be named in lawsuits. Not just "Melinda J.," but her "next friend"'s name too. The business about "the existence of insurance coverage inflaming the jury against the big corporate defendant" is both hogwash and counterintuitive. There are very, very few people who don't believe that almost all corporations have insurance coverage for anything for which they're sued. And it's not just corporations; it's drivers, and doctors, and law partnerships, and… So we're kidding ourselves if we try to pretend otherwise; and self-deception does not make for good resolution of disputes.
  4. Eliminate state regulation of the law in favor of a national system. With teeth. Scheherazade (point 1) and Carolyn Elefant (point 5) argue persuasively concerning interstate restrictions to practice. I do not think they go far enough. If we are taught "black-letter law" in law school, and that is all that is required for the [unbelievably foul and offensive expletives concerning the parentage of the authors deleted] multistate "bar exam" and multistate "professional responsibility exam," then that should be good enough to have a license to practice. Instead, all of the resources that go into those worthless exams and state-by-state monopolies should be poured into a meaningful character and fitness examination, perhaps a mandatory six-month internship following graduation before granting the license to practice, and programs that will benefit clients. Sure, states are going to have procedural and substantive quirks in their laws; for that matter, so do federal courts. Just try filing a late amicus brief in the Seventh Circuit if you're used to doing so in the Ninth Circuit and see what happens! The point is that basic qualification does not, and should not, depend upon those quirks; that's what day-to-day research teaches. If a given state bar wants to require a ten-hour CLE-like course on state civil procedure and highlights of substantive law, that's fine, and probably a good idea. Division of territories that, but for the legal profession's avowed (and illusory) "self-regulation," would be per se antitrust violations is not.

    State-by-state regulation also creates some serious problems of its own, particularly in cross-border situations. It's not just a case of "reciprocal discipline" being at one extreme nonexistant and at the other draconian. It's that the differing standards create a bar with isolated but insulated pockets of both competence and incompetence, obscene expense and market rates so low that it's difficult to support a family.

  5. Give the judiciary the support and respect it deserves. Judges at any level are among the most poorly paid members of the legal profession when compared to their responsibilities. "Doing more with less" really means "doing more for the big cases, because I don't have the time to give to little ones." Most judges work tremendously hard and tremendously long hours, and frequently agonize over decisions far more than do the lawyers in front of them. Consider this statement: "the Court itself spent easily over one hundred hours researching the law and analyzing the evidence in the instant case and reached its final decision after months of careful consideration." Admittedly, this was in a matter that everyone involved agrees was cutting-edge, and resulted in a summary judgment opinion noting in the first paragraph that it "presents a question of first impression in the Ninth Circuit." But even when the law is clear, the facts may not be; or the application of the law to the facts may not be; or the balance for admission of an expert's opinion between relevance and prejudicial effect may not be. If something reaches past the dismissal stage, there is almost by definition at least some potential merit to both sides' positions.

    Ernie (point 2) understates the case, if anything, for appointment of judges. It's not just the potential influence of campaigns, campaign contributions, and so on; it's the appearance of partiality aside from the money. I live in a largely rural area, which means rather conservative and law-and-orderish. At least two judges currently sitting on state courts in this area were elected based on platforms promising to be "tough on crime." What does that say to a defendant, particularly a poorly educated or non-English-speaking defendant, about his chances for a fair trial in front of those judges? It's the appearance of impropriety here that is enough to call the concept into question. Then there's the constitutional question—one largely punted to date—of whether an elected judiciary is a "Republican Form of Government" (Art. IV, § 4), when the only example of such at the time the Constitution was drafted was the Constitution itself, with its appointed and tenured judiciary.

June 28, 2004 at 01:00 AM in Five by Five, Five by Five - Week 3 | Permalink | Comments (1) | TrackBack

Five by Five - Third Edition

Been cleaning up the blog a bit today. Dennis Kennedy suggested I make it easier to link to each edition of the Five by Five, so I've added individual categories for each week's group of posts. Week One is here. Week Two is here.

I've also cleaned up my sidebar a bit and am working on editing the rest of my categories down to a manageable ten or so. If the maintenance results in a rehash of old posts for those of you reading the RSS feed, I apologize.

I'll also have the new Five by Five up by tomorrow. I've gotten several great suggestions on how to improve the practice of law and I can't wait to share them.

June 27, 2004 at 12:00 PM in Five by Five, Five by Five - Week 3 | Permalink | Comments (0) | TrackBack