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.

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(updated, 7 am 6/7/11 to change a few points)

As I mentioned a few weeks back, I’m one of the 81 defendants who’s
been sued by Joseph Rakofsky. The post that won me an admission ticket to the front lines of this lawsuit tracked a theme common to 45 other posts I’ve written: what not to do as a solo.

Since teaching other solos about conduct to avoid is what brought me into this lawsuit, it seems fitting then that I also use the lawsuit itself as a source of lessons for solos. The first motion filed by my attorneys contains a treasure trove of do’s and don’ts for court filings. Here are just a couple of quick examples:

DON’T oppose a motion seeking pro hac vice admission for a lawyer with a national reputation on the subject matter of the lawsuit when you’ve availed yourself of pro hac vice admission on multiple occasions (referencing Rakofsky’s intention to oppose pro hac vice admission of Marc Randazza as counsel; Motion at 2).  And DON’T think that a judge will miss the irony.

DO use neutral, objective language and solid evidence when raising hotly-charged and potentially sensitive claims regarding ethical misconduct. (relates to portions of the complaint describing Rakofsky’s websites depicting offices in Connecticut, New York and Washington D.C. though Rakofsky is only licensed in New Jersey; Motion at 3-4).   Many lawyers raise frivolous charges of ethics misconduct in pleadings as a way to intimidate or gain leverage – indeed, I’ve been the subject of unfounded accusations once or twice myself.  Thus, many judges have grown immune to these types of claims.  This action differs in that there’s a electronic trail of unethical conduct (unauthorized practice of law, deceptive advertising) created by the lawyer who has been the subject of the commentary.   So rather than offer extensive commentary, it’s most important to get these facts in front of the judge quickly and cleanly and let them speak for themselves.  Consider the analogy of cooking – when you’re using fresh ingredients, you don’t need much seasoning and when you’ve got damning facts, embellishment isn’t required.

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom. Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional. On the other hand, if your opponent happens to make these allegations, by all means DO make note of them. (Motion at 5, referencing Rakofsky’s complaint);

DON’T ever make a representation to a court, either directly or by omission, that contradicts a recorded statement.  Here, Rakofsky’s complaint suggested that the judge ordered a mistrial at Rakofsky’s request due to conflicts between him and his client.  Let’s just say, however, that the trial transcript, does not support Rakofsky’s version.

That’s just a quick list for now – if you have any others you’d like to add, feel free to comment below.

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1. ABA’s Issue Paper on Admission by Motion: Impact on Women Lawyers
2. MyShingle’s Been Sued in Rakofsky v. the Internet
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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.

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So here’s a hypothetical for you. Sympathetic client with an interesting and compelling case seeks to retain you. The client can pay something, but most likely not enough to see the case through. What do you do?

(a) Send the client packing;

(b) Take the case and treat it as pro bono or

(c) Find a way to make the case pay for itself.

Any of these options will work – but before you choose “a” or “b,” why not exploring option “c” first? After all, there are a large number of federal statutes — some frequently obscure — that may offer the opportunity to collect attorneys fees for various matters.

The Equal Access to Justice Act, which provides for fees when a litigant prevails in an action brought by the United States and Section 1988, which provides for fees for prevailing parties in civil rights actions are two of the best known federal fee-shifting statutes. But there are many others listed in this 2008 Congressional Research Services Report. And even that list isn’t fully complete; a few months back, I recovered attorneys fees under the Uniform Property and Relocation Assistance Act (though this particular statute is quirky and reimburses only for fees actually incurred by the clients as opposed to fees generated by the lawyers). Of course, in addition to federal fee-shifting statutes, many states have similar laws as well. And some state regulatory agencies, such as the California Public Utilities Commission or Wisconsin Public Service Commission allow intervenors to apply for compensation for the costs of participating in commission proceedings.

In this post, however, I’ll focus mostly on the federal statutes. Let’s say that you discover that your client has a claim that may qualify for attorneys’ fees under a fee-shifting statute. How do you account for that possibility in your retainer agreement, or go about recovering fees? Below are some tips.

1. Fee Agreement: In contrast to court-appointed fees, which often pay for work as you go, fee-shifting statutes provide compensation after a matter concludes, and only when a litigant has prevailed. Because of the risks inherent in recovering fees, some lawyers still require clients to pay as they go and agree to make efforts to recover fees to reimburse the client. In other situations, however, a lawyer may use the availability of fee-recovery to take a case without any fee at all, or at a reduced fee – with the expectation of collecting the remaining fee from the opposing party at the end of the case. If you choose to adopt this approach, your fee agreement should clearly state your intent to apply for the fee and further, specify that you are entitled to payment from the fee recovered. In the absence of this provision, the client would be entitled to keep any fees recovered because fee-shifting statutes typically confer the right to the fee on the client, not the attorney.

In addition, your fee agreement should contemplate that the case may eventually settle. If this happens, you won’t have the ability to file for fees. Thus, your fee agreement should state that if a case settles, the client will pay either a percentage of the award or some quantum meruit amount.

2. Application for Fees: For most fee-shifting statutes, there’s usually just a short window to apply for fees- between 2 weeks and 14 days. If you miss the deadline, you’ll miss the opportunity to recover. Your fee petition must accomplish two goals: making the case for the entitlement to fees, and setting forth how much is owed.

To demonstrate entitlement to fees, you’ll need to show that you meet the statutory criteria for recovery. For the Equal Access to Justice Act, some clients must meet certain size/financial requirements and you must prove that you prevailed on the merits. For the quirky Uniform Relocation statute where I recovered fees, I needed to show that my efforts lead to the gas company’s abandonment of their eminent domain case.

Once you’ve demonstrated that you qualify for fees, it’s time to talk dollars. Bear in mind that fee-recovery is one situation where the billable hour still thrives; this is one area where you probably don’t want to bring Jay Shepherd on board. Most judges are decidedly retro when it comes to fees (must come from applying all of that precedent day-in and day-out) – so you’re not likely to collect a cent unless you submit time sheets documenting your hours. Hourly rates may be governed by the Laffey Matrix – though there’s apparently some controversy over whether those rates may be adjusted as described in excellent detail atCalifornia Attorneys Fees Blog. In addition, you can bolster your fee application with reference to trade press articles on prevailing rates in your geographic area or – if enough money is at stake – with expert testimony.

It’s always nice to win a case against the government or a multi-million dollar corporation exercising government-conferred power like eminent domain. It’s nicer still when they have to cut you a check as well.

Do you have any tips to share on recovering fees under fee-shifting statutes? Please share your experiences – as well as your victories – in the comment section.

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1. Can you find cash for your clients?
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Ever since I advanced, rather surprisingly, through the rounds of my first year Moot Court competition, I’ve adhered rigorously to certain rituals of oral argument.  Back then, my rituals involved meditating in front of a candle and listening to this James Taylor album over and over again.  These days, I memorize case citations and JA pages, recite my arguments from beginning to end while walking the dog or taking a shower, and re-read what I consider the best ten pages of advice on preparing for an oral argument that I’ve ever seen by this blogger.

On Thursday, I argue for the first time before the Fourth Circuit (I’ve appeared before other federal circuit courts at least 2 dozen times, but this is my first time in the Fourth) and so I’m now revisiting these familiar rituals.  But in doing so, I wondered – what are your quirky little pre-argument or pre-trial rituals?  Do you have a particular tie or pair of shoes that you favor?  A special breakfast food?  Do you approach the podium with pages or notes, or naked, with nary a sheet of paper (I rarely look at my notes during argument, but still can’t bring myself to dispense with my paper security blanket).  Does your heart pound rapidly as you approach the podium, as mine does, or do you fall into a zenlike calm?

Please send me your comments and maybe I can add some new routines.

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Ever since I’ve started my site, I’ve blogged about situations where, in my view,
judges have gone way over the line in sanctioning attorneys for conduct, such as sending a lawyer to jail for refusing to apologize or showing up late for a hearing. But typically, these sanctions have issued against solo and small firm attorneys.

But outrageous judicial conduct isn’t any less outrageous when it’s directed against our biglaw colleagues. And that’s why the scenario described in this,
Lawyer’s ‘Super-Size’ Gaffe Costs Him Client and Possibly Right to Practice Before Fla. Court (law.com 5/31/07) really ticked me off. According to the article, William Smith, a partner at large, Chicago based law firm of McDermott, Will & Emery commented to Judge Laurel Myerson Isicoff during a hearing Bankruptcy Court for the Southern District of Florida that “with all due respect, you’re a few french fries short of a Happy Meal.” The relevant portions of the transcript, available here at David Lat’s Above the Law show that the judge didn’t say anything other than “proceed counsel” at the hearing. But subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn’t be revoked in light of his remarks. The judge also denied Smith’s motion, and Smith’s client has since replaced him with a local firm.

The judge’s decision is wrong on so many levels that I can’t even begin. First, if she was offended by the comment at the hearing, she should have said so right away and given the attorney a chance to apologize. To me, this smacks of a set up. Second, quite frankly, this is overkill. Requiring a lawyer to respond to a show cause order and convening a hearing uses time and resources. Why couldn’t the judge simply have slapped the lawyer with a monetary sanction right on the spot? At least, it would have ended the matter. Third, did the judge really need to copy every other judge on the bench with the show cause order? To me, that’s simply vindictive. After all, many judges may have taken the remark in stride or come back with a snappy quip from the bench in response.

I also question the judge’s motives. I wonder whether she’d have reacted the same way had a local attorney rather than one from an out of state, biglaw firm made the same remark. And as a result of her action, the client did channel its case to a local firm. As a solo, that should give me pleasure (since I often serve as local counsel), but it doesn’t. If I get business, I want to win it fair and square – not because local judges are mistreating out of state counsel.

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The Seventh Circuit just introduced a really neat tool that I posted on at Legal Blogwatch: a wiki that judges and practitioners can update with helpful tips and advice on court practice. The wiki will help Seventh Circuit newbies, but as I wrote at Blogwatch, more experienced lawyers can use the wiki for marketing. Let’s say you’re aware of a strange quirk in the Seventh Circuit rules. Post it on the wiki, with a link to your website and blog. Other lawyers visiting the site might come to view you as an authority, and might contact you with a referral or a question, which could lead to paying work. And imagine how much prestige you’d earn if a judge like Posner or Easterbrook jumped in with a “me too!” to your comment. Perhaps you could even become the next Howard Bashman!

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Perhaps the greatest fear that I hear from most shinglers-to-be is the fear making mistakes.  For example, many lawyers contemplating solo practice, whether fresh out of school or after a tenure at biglaw, have never argued a motion, filed a complaint or taken a deposition (sometimes they’ve never even observed others doing it).  They’re afraid that if they take a case on that involves these skills, they’ll make a mistake.  And they’re concerned not so much about a grave error that would trigger malpractice liability, but rather, the smaller errors that cause public embarrassment and humiliation in front of a judge or the client.

Guess what?  It’s not just new solos who make these kinds of little missteps, who have days when they can’t get a coherent argument out or break a witness on cross examination.  Everyone does – that’s why we call our profession the “practice,” rather than mastery of law.  But what more experienced lawyers do have is a bag of tricks that they can use to cover errors or mitigate them.  Consider this nifty trick that Ron Miller of  Miller and Zois’  Maryland Injury Lawyer Blog discussed in this post entitled Cross Examination of the Witness That Cannot Be Cross-Examined.  You need to read the post in its entirety to appreciate the story, but to briefly summarize, if you can’t lay a hand on a witness, compare him to a greased pig.  The story is a great example of how to explain away any lack of effectiveness – and then – turn it to your advantage.

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I have a feeling that the state bars will be a little less busy reprimanding lawyers in Staten Island for unprofessional conduct after the decision reported in $2M award yanked after lawyer’s theatrics go too far, (Staten Island Advance 4/7/06).  Now that lawyers know that unprofessional remarks can cost them and their clients money, they ought to have a financial, if not ethical, interest in controlling themselves in the courtroom.

Was the judge’s action an appropriate response?  Should he have penalized the client so severely for her lawyer’s actions?  Or will the judge’s decision help to show clients that an overly aggressive lawyer isn’t necessarily the best choice?  I’m sure that a decision like this one will make lawyers think twice about their courtroom tactics and with so much unprofessional conduct, there’s nothing wrong with that.  At the same time, if judges are going to police conduct, they need to make sure that they don’t go too far so as to deter lawyers from zealously representing their clients.

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1. You know what…this judge WAS a few fries shy of a Happy Meal
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At his Illinois Trial Practice blog, Evan Schaeffer links to the Miller and Zois Attorney Help Center.  The Help Center makes available, online, sample pleadings, motions and discovery materials for personal injury cases in Maryland, though many might potentially serve as a model for other states as well (though don’t forget to check applicable state laws and local court rules to make sure).  I’d actually come across this site several weeks ago and used one of the pleadings as a loose model, so I can attest first-hand to the utility of the site.

What’s in it for the firm, you might wonder, to “give away the milk for
free,” so to speak.  First of all, the attorneys who make use of this
site are more likely to be newer attorneys (after all, why else would
they need to find a sample to begin with?).  And newer attorneys will
probably attract clients with smaller or more difficult cases that
probably do not interest Miller & Zois anyway.  Second, newer
attorneys (or non-PI attorneys) do manage to reel in a client with a
large PI matter and can’t handle the case, they’ll be far more likely
to refer the case to Miller & Zois because they’ll have an
opportunity to review some of its work.

When I started my firm back in 1993, lawyers were obsessed with not giving away anything for free.  They’d write articles that consisted only of teasers or headlines, without any real substantive information.  Blogging and the Internet has changed those attitudes by showing that lawyers who make real information available as a public service will get real benefits back many times over.

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