My Shingle

Should You Ever Play the Solo Card?

by Carolyn Elefant on November 16, 2011 · 5 comments

in Gaining Competence, Law Practice Management, Litigation & Courts: Policy and Practice

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For solo and small firm lawyers who routinely battle big law, there’s often a temptation to play the solo card. In other words, to seek special dispensation from court rules and practices in light of solos’ more limited time and resources. Some lawyers believe that playing the solo card is justified as a way to level the playing field and save clients money when they go up against deep pocketed opponents. But in my view, playing the solo card is utterly pathetic. Not only does it abrogate our responsibility to zealously represent clients but it tarnishes the reputation of all solos, to the detriment of our clients. Moreover, with today’s technologic advancements, there’s simply no excuse for solos to play the solo card.

To write this post, I decided to briefly research how courts have treated lawyers who play the “solo” card. Though hardly scientific, I searched on Google scholar with terms like sole practitioner and solo lawyer combined with extension and delay and skimmed through the two most recent years of cases (not surprisingly, the majority of the search results involved disciplinary actions). As it turns out, the solo card is rarely, if ever effective. I found only two instances where a court granted relief from a deadline where a solo plead neglect based on a busy schedule – and in those cases, the court gave each solo a pass in spite of and not because of invocation of the solo card. See, e.g., Williams v. COMPUSA, (D.Md 2011)(granting solo claiming that he is “consistently strapped for time” extension to perfect service,but emphasizing that practitioner’s solo status was not the basis of the ruling);
Sebastian Rucci v. Mahoning County, (N.D. Ohio October 26, 2011)(allowing solo “otherwise occupied addressing motions in state and federal court” to file response to sanctions motion eight days late in light of minimal delay, lack of prejudice to opponent and apologetic nature of request).

In other cases, playing the solo card hasn’t helped at all — and made all solos look bad. For example, a state New York judge granted the prosecutor’s motion to remove Douglas Rankin, a busy defense attorney from a DWI matter that had been pending for 2 years and 8 months due to the attorney’s scheduling conflicts. People of State of New York v. Robert Jones , (2011 NY Slip Op 511064(U)) Rankin attempted to portray himself as a hard-working solo who wasn’t “on the beach somewhere, trying to avoid trial.” Still, Rankin came across as unprofessional to the judge who commented that a reasonable attorney would have “simply limited the number of cases he took on or arranged for other attorneys to try some of his pending matters.”

Even worse, in a California case, a solo tried to argue that his inept conduct (which consisted of delegating to a paralegal preparation of a response to summary judgment motion, failing to supervise the paralegal and hoping that the paralegal would miraculously file the response timely even after he left the state for a cruise to Alaska) was “typical” of the mistake that a solo practitioner would make. Henderson v. PG&E, 187 Cal. App. 4th 215 (2010). Uh, really? Most solos I know don’t delegate legal pleadings to non-lawyers. And where a solo relies on a contract lawyer for assistance who subsequently fails to follow through, most solos will work round the clock to make the deadline.

It’s no wonder that one Colorado judge, presumably tired of having been dealt the solo card one too many times, felt compelled to adopt practice standards that specifically state that “practice as a sole practitioner” [does] not constitute good cause [for extensions of time] See Lauth Management LLC v. Premier Specality Contractors, (D. Colorado 2010). How embarrassing.

Even though I have little tolerance for lawyers who play the solo card, I won’t deny that many court rules are onerous, and that compliance is easier for large, well-staffed law firms than for true solos, or solos with a skeletal staff. Of course, technology eliminates some of the hurdles – with online research and the ability, via Internet or cloud computing to outsource work to, and collaborate with capable lawyers who may be located in other cities or states, solos should be able to keep pace with the demands of legal practice without sacrificing quality.

In other situations, there are ways for solos to seek relief from burdensome requirements in a politic manner – not by asking for special dispensation but rather, by casting their requests as opportunities to reduce all parties’ costs and serve judicial economy. For example, let’s say that a solo is representing parties in a forum where e-filing has not yet been introduced. Although the solo certainly can’t (and indeed, should not) ask the judge to cut down on the required number of paper submissions, the solo might propose that the parties serve each other electronically only instead of through hard copy by mail. E-service of documents would make case management easier for all participants, and would expedite the case by expediting receipt of documents.

Likewise, where a matter involves a series of scheduling conferences (which are entirely procedural in nature), the solo might suggest a teleconference or Skype call to handle these matters – which affords the court more flexibility in scheduling and could eliminate a trip to the court for opposing counsel. Even if the court doesn’t grant these suggestions, they demonstrate a desire to move the process quickly and lighten the load of both the court and other parties – rather than an attempt to secure special treatment because of second class status.

At the end of the day, playing the solo card perpetuates the negative stereotypes of the solo practitioner as a bumbling loser – which ultimately, hurts the clients we represent and drives capable lawyers from solo practice. If solos aren’t willing to simply hold onto the solo card but never play it, well then, perhaps it’s time for them to fold.

  • Tamar Cerafici

    Pride would prevent me from playing the solo card. I’ve found that lawyers in firms are generally extremely accommodating and even cordial if my caseload gets in the way of prompt service. I make sure that opposing firm counsel is kept in the loop (which is really what he wants) and consistently made aware of the status. As long as there is forward momentum, counsel will often stipulate to a continuance.

    The bulk of my practice is regulatory, so I may have a rosier outlook that someone combating an aggressive BigLaw litigation team. But you are right: playing the solo card at all is not a good thing – playing it more than once perpetuates the ridiculous myth that solos are irresponsible slackers.

  • http://solopracticeuniversity.com Susan

    Carolyn,

    I agree with everything you say.  However, what happens when the opposing side takes advantage of your solo status, not granting reasonable continuances or accommodations specifically as a tactic knowing it will place undue burden on you because you are solo? This is not an infrequent occurrence, especially for new attorneys. Is there ever a time (specifically when you know this is what is happening) that one should play the solo card?  I’m just asking your thoughts.  

  • http://twitter.com/djillpugh djillpugh

    I do agree with the general point of your post.  What is EXTREMELY frustrating however, is the fact that attorneys in BigLaw get to duck their responsibilities all the time due to “scheduling conflicts”.  In the last six months I have had courts specifically overlook failure to comply with the rules when committed by attorneys in firms of more 15, yet completely ignore it when those attorneys schedule motions, etc during a time when I have filed a Notice of Unavailability.  I don’t think “poor me” works well for solos (and gives us as a group a poor reputation), but it is a bitter pill to swallow when “poor me” works for folks with ten times my staff and resources…

  • Anonymous

    Great point. Surprisingly in DC — where there are lots of big firms, courts are less tolerant of delay. But they are equally tough with solos. These days, ice also noticed that (again in DC and MD) that big firms are so glad to have work that they don’t mind working round the clock to bill more hours. That increases the strain on small law too

  • thesoleless

    Man, the paralegal/law student/bar exam taker in Henderson v. PG&E is going to be a terrible lawyer. Who takes the entire file home without telling anyone? Not to excuse the lawyer, but it’s kind of nuts that anyone would do that. Another argument for the paperless office: copies of all documents for everyone. 

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