My Shingle

Client Portals – Love ‘em or Leave ‘em

Carolyn Elefant — Fri, 16 Dec 2011 14:33:55 +0000

There’s an article by Donna Seyle in Law Practice Today that provides a comprehensive round-up of various platforms for client portals and practice management. As the long list of products suggests, they’re all the rage – though as Marc Lauritsen notes in the concluding paragraph, large firms have long offered extranets to clients. What’s new now, however, is that these products are available to solo and small firm practitioners.

But do our clients want them? When I first learned about portals – where clients can download documents, access their own files and check the status of their bills and their case, they seemed like a win-win — a way to encourage clients to play a more active role in their case while saving lawyers time and money. So I jumped on board, testing out nearly every platform under the sun – Clio, Zoho, Basecamp, Huddle, Box and Dropbox. (Phew!)

Yet my own experience with platforms has been less than stellar. Most of my clients – who range from individual landowners to large trade associations and corporate entities – don’t want to log into a work space to download a pile of documents. They’d rather get them by email – and so, I find myself dispatching my virtual assistant to serve their requests. In short, my efforts to corral clients into their designated portals has been much like herding cats.

So why do portals work for some lawyers but fail for me? It’s a frustration because I like to consider myself as being on the cutting edge. I suppose that lawyers who handle unbundled work virtually have high success with portals because in many situations, they provide the only way for the client to interact with the lawyer. Plus, the clients are receiving lower cost service, so they’re willing to shoulder more of the work – like filling out cases or learning the case status instead of calling someone – themselves. Most of us willingly make these trade offs ourselves when we use free services like gmail or Facebook where there’s no human to talk to if there’s a problem.

On the other side of the coin, large firms and mega-clients also enjoy the portal. However, I’d venture to guess that in many of those cases, the lawyers and the company top dogs aren’t the ones logging in. Rather, it’s likely administrative assistants and paralegals uploading and downloading the documents. In a recent case that I handled, the firm set up a portal to house e-discovery responses – though they also sent them out dutifully on CD. My guess is that I was one of the few lawyers in the case who took advantage of the portal (which while appreciated, was still clunkier to use than the CD data).

In my own case, I continue to experiment with portals and make them available – they’re cheap enough, plus I have my image as a 21st century lawyer to consider! But at the end of the day, my clients take precedence over my longing to be cool and so if they want materials sent by email or electronically-compiled and bate-stamped or annotated to highlight important provisions, that’s what I do to make their lives easier.

But I’m interested about your experience. What’s the real scoop on client portals? Do your clients love ‘em or would they just as well leave ‘em? And have you started using portals and project management platforms at all – and what’s your experience been? Let me know what you think in the comment section below.

Where I’ve Been Hanging Out Online

Carolyn Elefant — Tue, 03 May 2011 13:11:56 +0000

So I know that there wasn’t much happening at MyShingle last week. Between my talk on starting a practice at Georgetown Law and three days catching up with clients and colleagues at my trade association’s Global Marine Renewable Energy Conference, I didn’t have much energy left for posting. In addition, I’ve been spending a bit of time away from my beloved MyShingle, posting at other online publications like The Xemplar and Small Firm Innovation – efforts that enable me to keep this blog running and offer so much information at no charge (and there’s much more coming by the end of the month).

This month, I’ve written Courting Change – about how courts aren’t keeping up with innovation in the legal profession, and What I Won From My First Loss At Trial, about how I was serendipitously spared the lingering agony of my disastrous first loss. Let me know what you think.

Bespoke or Be-Gone: Lessons from the E-discovery trenches

Carolyn Elefant — Mon, 07 Mar 2011 16:05:22 +0000

Make way for John Henry, Round 2 . Just as the steam-engine rolled over John Henry, recent advancements in e-discovery technology similarly enable machines to accomplish the work formerly performed by a team of 500 lawyers, reports the New York Times. Moreover, not only do computers perform e-discovery less expensively, but also with a precision that surpasses human reviewers’ sixty percent accuracy rate.

Not everyone buys that e-discovery poses a death-knell for lawyers. Some predict that declining costs of e-discovery will stimulate more litigation and in so doing, generate a need for more lawyers. After all, right now, high costs of e-discovery often compel both sides to cave early, or may deter certain cases from even being filed. Still, even reduced discovery results in more cases being brought and/or heading to trial, overall, there will still be a net loss of lawyers since trial doesn’t require the same number of bodies as e-discovery.

Others, like Corinne Tampas, a Freelance Attorney contend that simplification begets complexity, which in turn, keeps steady the demand for lawyers. Tampas explains that even as computers appear to simplify the task of e-discovery, this in turn will necessitate the need for lawyers who understand the process and can manage e-discovery or help to strategize around the new challenges. While I don’t disagree with Corinne- indeed, even the NYT piece concedes a need for lawyers who can operate the technology – there’s no doubt in my mind that technology will contract the number of lawyers needed – just as online banking, computerized accounting programs and travel websites diminished the demand for human tellers, CPAs and travel agents. Of course, where Corinne is spot-on is that for those lawyers with the specialized skills at the top of the heap who can head those strategy teams, there’s still plenty of money on the table – a point also noted by Ralph Losey in the e-Discovery Team Blog. Thus, those lawyers who’ve been diligently tracking e-discovery caselaw and developments for the past few years, will probably find more doors opening as we transition to an automated system.

In fact, I wonder why the contract lawyers who spent months or years on the front lines of document review, weren’t spending more time educating themselves about e-discovery or blogging about how the review process works. More than any other group, they could have capitalized on their birds-eye view of e-discovery to serve as sherpas in this intersection of human know-how and tech. But they chose to gripe about poor working conditions or offshoring document review to India which is fine, as far as it goes, but also a sad example of how perpetual complaining can lead to missed opportunity – because as many of these lawyers must now concede, they’re readily replaced by technology.

As for the impact of these advancements on solos, the e-discovery developments are a reminder that we can never let our tech skills fall flat. At some point, those of us who litigate will need the ability to manage e-discovery and if we can’t afford these skills in-house, we’ll need to stay abreast of trends so that we have enough knowledge to outsource the tasks (so check out Sharon Nelson’s Ride the Lightening! We don’t see eye-to-eye on social media, but she is at the forefront of e-discovery).

We also can’t afford to grow too smug and assume that computers can’t replace what we solos do in our line of work. Not so. Though I don’t think that Legal Zoom has cut into solo market share (in many cases, LZ represents the pool of cases that many of us never deigned to accept because the clients wouldn’t pay), there are lots of other areas where many solos don’t act as much more as form-fillers or check-box checkers. If we can’t offer a value-add over what machines can do, then we face the same risk of obsolescence as contract lawyers – or John Henry.
Bottom line, my solo friends: In this 21st century world, either bespoke or be-gone.

Where the Money Is In Law

Carolyn Elefant — Fri, 21 Jan 2011 15:42:41 +0000

Even though biglaw is on the decline, there’s still big money to be made in the law. Only not necessarily by lawyers.

Last month, news of the Reuters/Westlaw acquisition of Pangea dominated the headlines, with bloggers like Jordan Furlong imagining the possibilities that this new behemoth could bring to the table. And today, two other stories caught my eye – the first, from Dallas Morning News, about Virtech Paralegal, a Dallas-based, national service that offers virtual paralegals and which has attracted half a million in funding. Similarly, today, Total Attorneys, which provides infrastructure and marketing services to solos and small firms issued a Press Release announcing receipt of a capital investment from BIA Digital Partners.

What’s my take on these developments? Naturally, I’m excited because all of these services mean more options for solo and small firm practitioners. To the extent that solo lawyers have felt constrained in their ability to grow or take on more work, these companies provide important services to facilitate growth. And more’s the merrier, since competition will keep these services affordable, which means that we solo and small firm lawyers can keep our rates low as well.

But, just as part of me celebrates these new developments, another part is wary (chalk it up to my Gemini-split personality). As it becomes easier to procure low-cost services powered by technology and cheap labor, what’s to prevent law firms from setting up “shell” type practices – offices all over the country – staffed entirely by virtual paralegals with a couple of lawyers cursorily reviewing the final product? This kind of set up could ultimately put less savvy solo and small firm lawyers out of business. And in the end, I’m not so sure whether this kind of assembly-line practice expands meaningful access to law, or subverts it, as we’ve seen with other volume arrangements that rely on low cost labor like this or this.

In these crazy and turbulent times, I know one thing holds true: most of our clients don’t come to us for the forms (those who only want forms will eventually simply use Legal Zoom or online forms and cut lawyers out of the equation entirely). Instead, clients come for help solving their problems and they come because they need someone to fight for them and they come for comfort and reassurance even when there’s nothing that we can do (and that, my friend Mirriam, is why I do think we matter even if I can’t express it as eloquently as you say we don’t!). Somehow we’ve got to find a way to stay a step ahead of all these changes – not to stop them, of course – to remember what they are: a tool for expanding meaningful access to law and “bespoke services on a budget” – and not a ticket to a four hour work week or a way to earn a fast and easy buck while ruining people’s lives in the process.

Update:

One state is bucking the trend of facilitating outsourcing of support services like document review, at least when those services are provided in India. As Lisa Solomon writes at Legal Research and Writing Pro, a Connecticut representative has proposed a law that would hold that “drafting, researching and reviewing documents” for clients in the state constitutes the “practice of law,” and as such, may only be performed by Connecticut-licensed lawyers. Lisa points out that this protectionist statute won’t bring back lost jobs. Moreover, the Connecticut law put Connecticut lawyers at a competitive disadvantage by preventing them from accessing lower cost support services, such as experienced contract lawyers located in other states, law students who are not licensed but could benefit from experience and paralegals. While like Lisa, I’m concerned about the quality of some providers (though to be fair, I’m also concerned about the quality of some of the work I’ve seen that’s produced by licensed lawyers) as well as the potential for abuse (discussed in my post), I think that the harms of banning access to outsourced services does far more harm than good in the longer run.

The Retainer Letter As a Walk Down Memory Lane

Carolyn Elefant — Fri, 22 Oct 2010 13:14:08 +0000

I may not be a contract aficionado like Ken Adams, but I love a good retainer agreement. Though clean, crisp language and brevity makes me swoon as much as any other lawyer, my affinity for retainer agreements reaches far deeper than the surface: quite simply, I’m a sucker for the stories behind the the whereas clauses.

The search terms “retainer agreement” and “form” draw more traffic to this site than nearly any other. And while I gladly accomodate these inquiries, a retainer agreement, done right, is far more than just a form or a template: it’s a living, breathing, ever-evolving document that reflects our personal history as lawyers.

Just as paging through a photo album triggers old memories, so too does a skim through a retainer letter. Spend a little time with some old-time lawyers and ask them to go through their retainer agreements with you and you’ll see what I mean:

Ah, yes – that’s the withdrawal clause that I added after that nice little old lady who promised that she was good for the money wouldn’t pay me and I couldn’t get out of the case.

Mmm, I remember that. I came up with the provision that gives people a discount if they pay in full upfront after I was nearly evicted after I couldn’t make rent for the third month in a row – even though I had $10k in outstanding accounts.

Gosh, I don’t recall exactly where that section on conflicts waiver came in – I must have lifted it from the agreement that we used when I was at biglaw.

Ugh, that’s the provision that I had to add to comply with the D.C. Bar’s Legal Ethics Opinion 355 on flat fees after that annoying decision in In Re Mance that prohibits treatment of flat fees as earned on receipt.

We call it the “practice” of law because in many ways, law is a craft that we never perfect. Yet over time, we improve and ripen with experience; becoming a little wiser, a little savvier and also, sadly, a little more jaded. Our retainer agreements document our transformation, reminding us of just how far we’ve come and — each time they fall short and necessitate another change — of how far we still have to go.

Now it’s your turn: share some of the clauses that you include in your retainer agreement in the comments below — and more importantly, the stories behind them.

Why Should Your Clients Care That Their Lawyers Don’t Work Weekends?

Carolyn Elefant — Sat, 09 Oct 2010 17:27:33 +0000

There’s a small law firm in South Carolina with a Client Expectations policy that’s made a big splash online. The policy, which bluntly states, “We do not work weekends and do not provide emergency numbers for weekends….We make mistakes…” attracted notice from the ABA Journal and generated discussion at several blogs, including Jim Calloway’s Practice Management Blog, Dan Pinnington’s Avoid a Claim and Scott Greenfield’s Simple Justice. Both Jim and Dan compliment the firm for taking steps to manage client expectations, but suggest that perhaps the firm was a bit too blunt. Scott is even more critical. He suggests that rather than essentially tell clients to “pay up and leave us alone,” the firm might instead try to educate clients on what constitutes an emergency because real emergencies do come up – even on weekends- and lawyers need to “suck it up.”

Here’s my view. First, the latter portions of the Client Expectations are laudable. These sections explain to clients how long a case will take and what portions of the case are going to be more expensive, the realities of opposing parties being able to get information through subpoena, the need to behave “as if you’re being filmed by an investigator” at all ties offer important advice (though the site should be updated to include cautions about clients’ use of social media while a divorce proceeding is ongoing). Thus, any clients expecting to retain this firm for a quick, cheap divorce get a solid dose of reality up front, which is important. Unfortunately, this sage advice is buried at the tail end of one of the most self-serving pieces of web copy that I’ve ever seen.

The first section of the Client Expectations section isn’t about clients, it’s all about the lawyers, all about we. The firm proclaims: We don’t work weekends, we make mistakes but don’t yell at us or insult us for making them, we take calls in the order they come according to the priority we assign, we are the only reliable source of information on your case – (but you’ll need to pay to get an update).

If I’m a client, why should I care that my lawyers don’t work weekends? Frankly, clients don’t want to see the sausage being made – that is, they don’t want to know about when or how the work gets done, so long as it does. So if there’s a major trial starting Monday morning, a client doesn’t want a lawyer to stop the clock because she’s not working that day, nor does the client want to hear how the lawyer slaved all weekend. The client wants the lawyer to show up prepared, end of story.

Moreover, avoiding weekend work – and then bragging about it – is potentially fatal to a family law practice. There, many custody disputes or crises can arise over the weekend such as one parent picking up the kids and failing to return them at the agreed upon time, or an abusive ex-husband showing up drunk at his ex-wife’s home on a Saturday night in violation of a protective order. Sometimes, a quick call to one’s lawyer can dissipate a situation that might otherwise explode or give a client a little peace of mind. If my pediatricians had told me that they weren’t available for calls on the weekend, I’d have chosen another practice.

Although the “we don’t work weekends” aspect of the website has drawn the most discussion, I found other parts of the site off-putting as well. As I mentioned earlier, the firm candidly (and to its credit) admits that we make mistakes and will correct mistakes brought to the firm’s attention. But the firm assure clients that it will discount the bill in those instances where it bears responsibility for the errors. Likewise, the firm says that we’re the only source of reliable information about the status of the case, but then directs clients to call paralegals for updates, noting that paralegals are billed at 50 percent less than lawyers. While I can understand a lawyer billing to provide a status report (I don’t do it personally), I’d assume that when a client speaks to a paralegal for a status update, it constitutes an administrative charge that’s rolled into overhead, not billed separately even at a discounted fee. Paying for a status update provided by staff is analogous to paying for sugar packets or napkins at a fast food restaurant: it’s the kind of bonus that ought to be included without charge.

As the conversation over this firm’s website bear out, there are two types of client expectations. The first category relates to matters beyond our control as lawyers: the speed of the docket, the sufficiency of the opposing party’s filing, and the likelihood of success. Managing these expectations is critical or else a client will impose unrealistic demands or feel disappointed at the end of the case. For example, if a lawyer assures a client that the court will rule on a motion in a month and six months pass without decision, the client’s going to blame the lawyer for the delay.

But the second set of expectations relate to what a client can reasonably expect from a lawyer: promptly returned phone calls, respectful treatment, dedication, diligence, honesty and integrity and overall excellence. In contrast to external matters like court schedules, how we serve our clients is a matter over which we have absolute control and as such, is not the type of expectation that ought to be managed or diminished. Rather, as lawyers, we must — and indeed, are obligated to — manage to live up to our clients’ expectations of us as their lawyers, every day of our practice. And if that means working weekends, then we need to manage to do that too.

Update: Didn’t see this before I went to press, but Susan Cartier Liebel of Solo Practice University, who also found the firm’s site off-putting, offers a quick re-write. The revised copy addresses Lee Rosen’s point (comment section) about the need for family law firms in particular to bill clients for status reports. Susan asks: “Would you put this kind of manifesto on your website?” Personally, I wouldn’t (and indeed, arguably, in New York, I wouldn’t at least without posting the more client-friendly Client Bill of Rights. Then again, I don’t have a volume practice or one where clients are especially needy, so it’s not important for me to engage in as much self-selection at the outset, so my experience is not necessarily typical.

But putting myself in the clients’ shoes, I’d be turned off by any provider who had this kind of language on the website. I certainly wouldn’t object if this information were included in a retainer letter or Law Offices Policies kit, where the lawyer explained the need for these policies and where I’d already had a chance to meet the lawyer in person (or interact by phone). However, if any provider – doctor, lawyer or contract attorney – stated those policies up front on the website, even phrased as personably and delicately as Susan suggests, I’d feel as if they were trying to “handle me” like a piece of cattle, rather than serve me like a valued customer.

The Shout-Out Lawyer

Carolyn Elefant — Tue, 13 Jul 2010 15:39:34 +0000

This tape is remarkable not so much for the content (the abuses of freemium – which is somewhat interesting) but rather, for displaying something that we rarely see: a client giving a lawyer a shout-out.

If you don’t believe me, skip ahead to 1:38 of the tape, where Ben Chestnut, MailChimp’s co-founder, describes how moving MailChimp from a paid to free model increased the company’s legal costs by 245 percent. You’d think that at that point, Chestnut would roll his eyes and make a snide comment about useless, money-grubbing lawyers. But instead, Chestnut put up a slide with his lawyer’s photo and proclaimed – “That’s my lawyer Rob – great guy if anyone needs a lawyer who specializes in Internet Law.” [unfortunately, Chestnut didn't mention his lawyer by his full name - a little sleuthing shows that it's Rob Hassett of InternetLegal.com.] Later, at 4:25, Chestnut mentions that he’s paid Rob to handle virtually every type of spam matter that MailChimp has encountered, then sighs and exclaims “I love Rob.”

Chestnut isn’t the only satisfied client to give his lawyer a shout out. In her recent book, Committed, Elizabeth Gilbert (of Eat, Pray, Love fame) gave a shout out to her immigration lawyer (by name – but I can’t remember it) in the acknowledgments, thanking him for shepherding her then boyfriend’s (now husband) immigration paperwork through the process so that he could return to the U.S. and they could marry.

Today, like everything else in marketing, giving testimonials has become routine. We do the job, hand the client a survey and ask for feedback, and hope that embedded within are a couple of nuggets that we can display on our websites or marketing materials. Still, in routinizing the way we gather testimonials, I wonder whether we take away some of the spontaneity and the heart that makes a great testimonials even better – for both the giver and recipient.

In any event, as you probably realize, getting a shout out doesn’t always translate into a huge fee. Yet to me, it’s an even better reward. Because there’s nothing like getting some public and unexpected acknowledgment for doing nothing more than what we lawyers are supposed to do: serve our clients.

Lindsay Lohan: Dream or Nightmare Client for Newbie Solo?

Carolyn Elefant — Fri, 09 Jul 2010 18:44:51 +0000

So here’s a practice management issue that law school doesn’t teach:

You’re a newbie solo who passed the bar nine months ago and opened a law firm right afterwards. Suddenly, the phone rings: it’s a Hollywood superstar on the line, she’s looking for a criminal defense lawyer to represent her and she’s picked you! Trouble is, she has a reputation as a prima donna, her last attorney quit and her case is a dog. Should you take her on?

That’s the question that must have confronted new solo Tiffany Feder-Cohen. Reportedly, Lohan retained Feder-Cohen to appeal her 90 day jail sentence for violating the terms of her probation, after Lohan’s former attorney quit. (Note: the story hasn’t yet been fully confirmed) On the one hand, taking on a wealthy, high profile client in a dud-case has an upside: the potential for great exposure not to mention a tidy fee. Moreover, given that the case is pretty much DOA and the maximum sentence involves at most, 90 days in the slammer with the possibility of a reduced term for good behavior, there’s not much here for a newbie to irrevocably screw up.

On the other hand, this type of matter carries the potential for disaster. The media is all over cases like this, so every statement and television appearance that Feder-Cohen makes, and every document she files will be subject to heavy scrutiny. Moreover, many seasoned lawyers, disgruntled that Lohan passed them up in favor of the new kid on the block, are even more likely to criticize Feder-Cohen’s every move.

So what’s your advice for a newbie in this unlikely situation? Take the case along with the huge opportunity for public exposure? Or turn it down to avoid the headaches that even – or especially – a problem client may bring.

Free Wireless At Starbucks and What It Means for Solos

Carolyn Elefant — Wed, 16 Jun 2010 19:38:19 +0000

Yesterday, Starbucks Coffee announced that free, unlimited wireless internet access will be available in all company-owned stores in the United States effective July 1. The Starbucks announcement launched 189,00 news stories – not because free wireless marks the start of a trend but rather because Starbucks came late to the party. As Starbucks belatedly realized, customers care as much about free amenities like wifi as they do about the quality of their coffee.

That’s one of the lessons that Starbucks’ announcement teaches lawyers: “free” sells. As law practice management expert Rees Morrison recently blogged, a recent Eversheds survey reported that a whopping 87 percent of corporate inhouse counsel respondents said that “freebies” like CLE training, 24 hour hotlines or legal updates delivered via extranet are a crucial factor in determining which firms to use. Just as customers are less likely to begrudge paying four bucks for a fancy coffee drink when they can enjoy it online, so too, clients are less inclined to balk about a law firms’ rates when something extra comes with it – perhaps a nice folder or USB drive to hold paperwork or forms for consumer clients or an ongoing webinar series for corporate clients.

Aside from affirming the zeitgeist of “free,” lesson, Starbucks’ announcement really won’t make much of a difference for serious solos in my view. That’s because solo and small firm lawyers shouldn’t count on free wireless of Starbucks as the centerpiece of a bonafide law practice.

Working off-site and using free wireless as a convenience is entirely different from, and far more acceptable a proposition in my view, than relying on a coffee shop for a permanent office location. For the short-term, wireless access lets solos who are stuck at the courthouse or away on travel check into a Starbucks to catch up on email or do some quick research. And lawyers who work from a home office who are looking for a change of scenery or relief from isolation can escape to Starbucks to catch up on light work (like blog posting or organizing online files) that can be accomplished in a public spot without compromising productivity or client confidentiality or running afoul of coffee shop etiquette rules. All of these benefits help us stay more accessible to, and therefore, better serve clients. But for solos who are wedded to the concept of “working anytime, anywhere” for the longer tmer, then at a minimum, they should invest in the kind of equipment, specifically, a wireless access card, that facilitates their chosen work practices rather than relying on ad hoc hot spots.

For starters, wireless hotspots aren’t terribly secure. While they may be fine for accessing LEXIS for generic legal research, you probably wouldn’t want to review your online law firm banking statements on free wireless at Starbucks. Likewise, chatting on a cellphone with a client in coffee shop can also jeopardize confidentiality.

Though I now have a wireless card that lets me work anywhere, my work habits haven’t changed significantly if only because I don’t find working from a tiny lap top screen at a cramped table in a chatty Starbucks conducive to matters that demand intense concentration, like writing a complicated argument for a brief or reading through a 75 page contract. (Though to be fair, I never found working in a law firm to be terribly productive either what with interruptions from chatty colleagues and phone calls and sensitivity trainings and birthday parties). So with or without the Starbucks option, when I want to work off-site, I for one retreat, with my wireless card, to a decidedly un-hot spot: the local law library.

What do you think? Leaving aside confidentiality or appearance questions, can lawyers work as efficiently at Starbucks as in an office or library? What are your coffee shop work habits? And are the distractions we encounter at Starbucks simply human nature, or as generations of students grow up working on wifi connections in coffee shops, will we see adaptation to background noise? Please comment below (we’re using Disqus for comments now, but you don’t need to register if you don’t want to).

Thank You, Justice Scalia for Remembering Who Pays (the Client!) for the Vanity Footnote

Carolyn Elefant — Sun, 14 Mar 2010 21:48:54 +0000

If you’re a solo or small firm lawyer who litigates against biglaw, you’re probably familiar with the vanity footnote — that smug, yet entirely superfluous annotation to legislative history, obscure law review article, treatise or string citation included in many large firm briefs. Though intended to corroborate a case cited in the text or flaunt just how smart the brief’s authors are, the vanity footnote gilds the lily, mucking up an elegantly persuasive argument with TMI. Even worse, vanity footnotes compel a response, and thus force lawyers to engage in additional and unnecessary research on the client’s dime.

But now, those of us who represent clients on tight budgets have an advocate on our side in the form of Justice Scalia. Concurring with the majority in Milavitz, Gallop & Milavetz v. US, Scalia took his colleagues to task for a vanity footnote of their own regarding the legislative history of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. From Scalia’s concurrence:

The Court acknowledges that nothing can be gained by this superfluous citation (it admits the footnote is “unnecessary in light of the statute’s unambiguous language,” ante, at 6, n. 3). But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear….The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.

Though in this economy, many clients are struggling with legal fees, it’s solos’ and small firms’ consumer and budget oriented clients are are disproportionately burdened by the costs of responding to vanity footnotes. Premium services like WestlawNext are ideally suited for tracking down the kind of secondary information contained in vanity footnotes, but as I’ve noted along with my colleague Lisa Solomon, WestlawNext doesn’t come cheap for solo and small firms.

So from solos everywhere on behalf of our clients – thank you, Justice Scalia for remembering that when lawyers or judges make easy law hard, we make things harder for our clients.

Note: In response to the reader comment below, of course I read Millavitz and I’m familiar with the problems you cite. My point here wasn’t to get into the merits, but simply discuss a piece of dicta to highlight a problem when solos litigate against large firms in any practice area.

But since you raised a substantive point, here are my thoughts. The way I see it, the BAPCPA provisions that classify attorneys as debt relief agencies and impose restrictions on their ability to counsel clients (which was at the crux of this case) are clear and in the absence of ambiguity, reference to legislative history is not required. In fact, here, the reference to the legislative history simply amplified the point that Congress regarded bankruptcy attorneys as scoundrels and enacted BAPCPA in response. Do you really want that as part of Supreme Court precedent?

I agree, completely that BAPCPA makes life difficult for solo and small firm lawyers and their clients. But if that’s the case, Congress needs to change the law, not the Court. Given that the decision was unanimous, it seems that the Court agreed that the law was clear as well.