Just like comedian Rodney Dangerfield, seems that solo and small lawyers just can’t get no respect from the federal courts. Only the slight to solos by federal judges is no laughing matter not just for us solo and small firm appellate lawyers but more importantly, for our clients.

The latest round of elitism and reduced expectations comes from Seventh Circuit Judge Frank Easterbrook in remarks at a breakfast meeting earlier this last month reported by in-house counsel columnist Mark Hermann at Above the Law.  Hermann writes that Judge Easterbrook

 excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense.  But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms.

While perhaps Judge Easterbrook intended to show empathy for “small and unknown law firms,” his remarks (as reported by Hermann) are insulting, reflecting a generalization that small firm lawyers are so utterly and unredeemingly incapable that we require special accommodation that real lawyers at prominent law firms do not.  Moreover, because Judge Easterbrook apparently expects briefs from small firm lawyers to be bad, solo and small firm lawyers who appear in his courtroom have to work twice as hard to overcome the presumption.

Unfortunately, Judge Easterbrook’s anti-solo/small firm bias predominates in federal courts.  I’ve documented other instances involving federal judges where solo or small firm attorneys were treated more harshly or fared worse than a large firm lawyers. Even a Stanford Law Review article noted that in cases where federal judges perceived a disparity in the quality of representation (mostly civil rights and immigration matters on the civil side), they overwhelmingly found the solo/small firm lawyer to be the more deficient (See Report and Discussion at Table 8).

It’s not surprising that federal judges look down at solos.  The indoctrination begins in law school, where federal judges — many of whom were law school superstars graduating with top grades, law review and federal clerkship in hand –  are taught that solo practice is the dumping ground for losers, morons and those who can’t otherwise find a job.

But federal judges aren’t the only ones to blame for solo and small firm lawyers’ poor reputation in federal court; solo and small firm lawyers are to blame as well.  Too many solos, too frequently, play the solo card, begging for preferential treatment because they can’t keep pace with a larger, better funded and better staffed opponents.  Too bad, kids but that’s life in solo and small firm practice.

There’s simply no excuse for submitting poor quality work to a court.  If the client can’t pay enough to allow you to submit well-reasoned briefs that comply with a federal court’s rules, then don’t take the case.  Or, figure out a way where you can cut corners that won’t adversely impact your client and diminish your reputation.  For example, if you’re a terrible proofreader, maybe you hire a grad student in an English program who would charge less than a contract attorney.  Maybe you tell the client at the outset that you can handle the case for X amount, but they’ll have to communicate by email instead of phone or won’t be allowed to review every single document before it’s filed.  Maybe you prioritize and then limit the number of issues that you pursue in litigation or on appeal.  Or maybe if you’re just starting out or you’re trying to crack into a new area, you take the lower-paying case, but do a bang-up job as a downpayment on establishing the kind of reputation that will allow you to earn more.

At the end of the day, we can’t change the attitude of those like Judge Easterbrook in our profession; elitism is so deeply baked into the legal profession’s DNA that we’d need some kind of full-scale genetic engineering to effect change for future generations.  Even so, by working twice as hard as our big firm colleagues and never settling for second-rate quality, we can achieve the results that our clients deserve and that’s what matters.

Related posts:

1. You know what…this judge WAS a few fries shy of a Happy Meal
2. Lawyer Sanctioned for Disclosing What A Judge Should Have
3. Federal Judges Honor Pro Bono – But Exclude Solos

I’ve uploaded my slide deck from my talk at Avvocating Avvo presentation (with some glitches in the translation) – and you can see my slides (hopefully in better format) and those by the other speakers at Avvo’s Lawyer-nomics Blog. Videos will go up over the next few weeks as well.

Unlike many speakers who do the same drill over and over, I like to shake things up with new content. Keeps things interesting, but the challenge is to come up with new content , create the presentation in timely fashion and leave enough time to practice since you can’t just deliver on auto-pilot. All things considered, I think my talk went well and now that I have the material, I’m interested in other opportunities to present the material.

But at least, let me summarize my key points here. As I’ve said many times, I’m not a marketer. I don’t want someone telling me, nor do I want to tell others, what to do; I’m more interested in why certain techniques work. So in reflecting on many of the ways that I find clients, I realized that they are — not surprisingly — consistent with many of the trends we see in the techno-start-up world. And so, I described six tech trends that apply to lawyer marketing which is, honestly, TMI for a 50 minute talk, but what the heck – I’m a fast talker!

You’ll have to watch my opening (which involves a power strip) on video. But my presentation begins with a brief history of the web and how we’ve gone from the days where eyeballs and traffic mattered to web 2.0, characterized by customization, content and connection. That transition away from the static web, to one based on social media and mobile apps is important to understand to create and maintain an effective online presence.

Briefly the six trends, and examples are:

Search to Discovery Pinterest, of course, is the example of the increased desire to discover rather than search online. I’ve written about that topic before and expanded on it in my presentation, discussing ways to be discovered (ebooks and yes, ratings systems).

App-ification of Law Practice OK, so I know that I didn’t originate the concept of niche practice. But it’s one I’ve been discussing for years and now every solo guru is following suit. Since I hate to be part of the crowd, I’ve re-branded the niche as the app-ification of law practice. After all, what are apps – a program that does one thing really well, just like a niche lawyer. The limitations of apps aren’t deterring consumers from buying them; in fact, they’re loving the flexibility of being able to pick and choose a suite of tools. So consumers are accustomed to lawyers who can be an ideal fit and don’t mind going to several different shops to meet their needs.

Affiliated distribution/integration and FB Connect These days, you can sign up for the NYT for Facebook, or log in with Google to comment on blogs. The integration benefits both parties in the transaction – FB or Google become even more ubiquitous while other businesses can tap into those superstars’ pre-made community and tools. Yet in law, we hardly ever see solos of different practice areas co-marketing or even more rare, lawyers and non-lawyers teaming up. One of my most productive relationships has been my work with area lobbyists; we frequently team up on projects (no, we don’t split fees) or refer cases back and forth.

Freemium I’ve done a talk on this entire topic – essentially, the premise is that consumers are accustomed to services of great value, like Google, FB, Youtube et. al. being available for nothing. So how do you explain that lawyers need to get paid? My view is that you give away even more. Not saying to offer free consults (lawyers are so unimaginative that’s the only thing they can think of that might be free) – but free forms (that are already available online) and free educational content so that prospects will be ready to pay once they need you.

Innovator’s Dilemma I’ve blogged about this topic before. The theory is that big companies won’t spend money to defend undesirable pieces of their turf and instead, will easily cede them to disruptors. Over time, disruptors can take away an incumbents’ business piece by piece. Legal Zoom is a great example in our profession; LZ took the cheapskate or financially strapped clients that lawyers never wanted and built a multi-million dollar empire which they’re now using to pay for lawyers to give advice on some matters. The lesson: don’t take on incumbents directly, instead mine the scrap heap for treasure.

Back to the Future When Instagram hit it big, observers wondered why. Was it that Polaroid was a behemoth or Instagram was fun and allowed customization – or was it just a fluke? All of these points have merit, but to me, Instagram appeals because it evokes a sense of nostalgia – the faded worn pictures connect us to our past and each other. And that’s what we want desperately from the web – to connect, to discover, to pick and choose and build communities. If we look at the web as a brute force, where all that matters is SEO and numbers and eyeballs, we miss out on what the web can be. And if we look at our clients as keyword strings and targets and prospects and not real people with real problems, we miss a chance to become the trusted advisors that we lawyers have been in the past.

If you like this presentation and are interested in hearing it live, or others like it, please contact me at carolyn.elefant@gmail.com for more information about my speaking and other programs.

Related posts:

1. Some Tech Round Up: LawTech Talk, MILO Conference
2. ABA Tech Show – A Good Start, But Not Enough If We Don’t Change the Rules
3. Xemplar: New Spotlight on Solo and Small Firm Lawyers and Trends

In an era of  lawyer bashing,NJ Columnist Warren Boroson’s piece Why Every Middle Class Family Needs a Lawyer  could have been an important educational reminder why lawyers still matter.  And while in truth, Boroson’s article makes that case, Boroson does a far greater disservice by advising readers to “avoid solo practitioners” when hiring lawyers.

Boroson’s reasons for steering clear of solos are two fold.  Citing an unidentified lawyer expert (note to Boroson:  if a source isn’t willing to give a name, he ain’t worth quoting), Boroson notes that “solos specialize in fairly narrow fields and opt to be independent.” Specialization, however, is all the more reason to bring in a solo – earlier in the column, Boroson himself recommends seeking out a lawyer who “specializes in what you need.”  Moreover, because many solos do specialize, they’re forced to build relationships with  highly skilled lawyers in other practice areas to whom they can refer cases.  When clients go to a general practice firm, the real estate partner is going to send a case down the hall to Mr. Divorce, irrespective of whether he’s ever seen the inside of the courtroom – because the client and his dollars will stay in the firm.  By contrast, a solo real estate lawyer is more likely to refer clients to a first rate divorce lawyer based on merit since most jurisdictions don’t allow referral fees for these types of matters.

As for independence, why’s that a negative?  Do you want a criminal defense lawyer who’s afraid to argue assertively for a client because he doesn’t want to offend the judge?  Do you want a PI lawyer who’s afraid to sue the major restaurant and corporate donor in town because it may cause the PI lawyer to lose business?  Only a big law attorney would criticize independence in a lawyer.

But Boroson’s other reason for avoiding solos is far worse:  he claims that “solos have lower ethical standards” than lawyers in partnerships.  Say what? 

For starters, it’s well documented that bars disproportionately go after solos for ethical breaches (either perceived or real) while treating big fry more leniently.  I’ve blogged about that problem  here and it’s even the subject of a law review piece  But what really burns me about Boroson’s comment is that solo and small firm lawyers, yes, Greenfield,  Tannebaum , Bennett  and Turkewitz  are single-handedly patrolling the ethics of the blogosphere.  Along with these four big guns, I and solo colleagues like  Jamison Koehler, Wells Law Office and no-longer-solo-but-still-small  Eric Mayer  and others are co-defendants; sued by one of New Jersey’s finest because we called him out on ethics and he  sued us for defamation!. Yes, you’ll find big law firms in the case, but only on retainer, defending some of the larger media players.  You won’t find any big law firm defendants because none felt it worth their while to comment on the ethical practices of a lawyer who jeopardized the liberty of a criminal defendant.

So, Mr. Boronson – the next time you tell members of the public not to hire solos, please do your research first.  Because nowhere in the legal profession will you find lawyers as independent and dedicated and  heroic as the solo.

Related posts:

1. Calling All Innovative Solo Lawyers – Innovaction Contest!
2. Calling All Solo and Small Firm Lawyers Nearing Retirement
3. A Thanksgiving Thank You To Solo and Small Firm Lawyers

Today’s NYT Obituary pays tribute to Maurice Sendak as the children’s author who “wrenched the picture book out of the safe, sanitized world of the nursery and plunged it into the dark, terrifying and hauntingly beautiful recesses of the human psyche.” Maybe so from a critical perspective, but not for those of us who listened to Sendak’s books as kids and grew into the parents who passed them on to our own. For those of my generation, Sendak’s books evoke memories of feeling safe and secure, snuggled close to a parent at bedtime and remind us of the unbreakable power that hard-copy paper books– with their folded corners and stains and tears and imperfections have to captivate us as kids and make us ache with nostalgia as grownups.

As a goody-goody six-year old who’d just about outgrown picture books, the fantastical shenanigans of In the Night Kitchen mesmerized and captivated me. My dad was always designated reader, and my favorite time of day was when he’d settle down on the edge of the bed (for my self-imposed 7 pm bedtime) with my next younger sister and me and read the library copy of Night Kitchen, or our own volumes of Grimms’ Fairy Tales or Little Orphan Annie or Robert Louis Stevenson poems, each of us snuggled up against him on either side.

Years later, while pulling all nighters to get a brief in on time, Mickey’s journey through the crazy night and until dawn would always replay in my mind. When my first daughter was born, I celebrated an excuse to purchase the Sendak Nutshell Library mini-volumes (without looking like some kind of a child-book section stalker). In the bedroom rocking chair with Elana and then Mira, I read or sang A Alligators All Around or Chicken Soup with Rice over and over and over again until they fell asleep in my arms.

I’m sure that In The Night Kitchen renders beautifully on the Ipad and that Where the Wild Things Are was a terrific movie. But still, I miss the smoothness of the pages, the softness of my dad’s worn plaid shirts against my cheek and the sense of accomplishment that I’d feel when with a soft thud, I finally closed the book  on those days when all I’d done was nurse a baby, spent the afternoon at the park and gotten one, then two little girls off to sleep. RIP Maurice Sendak and thanks for the memories.

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Last week, I spoke at Avvocating 2012 (my deck will go up tomorrow; also, full disclosure- Avvo paid my travel to the conference) Much to my own surprise, I’d have to rank it as one of the best conferences I’ve ever attended. Yes, Avvocating was a marketing conference and didn’t pretend to be anything other than that. But the conference was extremely informative, with a number of sessions on search that were quite technical in content so I learned a lot (far more than at the many of the techno-marketing sessions at ABA Techshow).  Plus, Avvo had a very low sleaze factor – the marketer/speakers downplayed any hard sell, and the lawyers I met were creative, engaging and hard-working – plus a bunch were dog lovers!

Here are some of my quick impressions about the event and why it worked so well:

1. Avvocating wasn’t attended by a band of losers. Contrary to Scott Greenfield’s assumption (which I must admit that I partly shared before my trip), Avvocating wasn’t at all comprised of desperate solos so lacking in work that they can afford to take two days from the office to spend at a marketing conference. Nor, from what I could tell, were there any virtual firms which probably could have benefited from the lessons on search. Instead, after polling the audience, I discovered that most of the attendees hailed from firms of 2-10; hardly any true solos at all. Moreover, during the breaks, I didn’t see much chit-chat, but lots of phone calls and emails back to the home office (again, more so than is typical for a TechShow or solo conference), so it appeared that many were working while on the road.

I think you know by now that you won’t find a stronger advocate for solo practice than me. But true-solo’ing is a tough road to hoe and even if it works for the short-term, what kind of returns do you get when you exit if you can’t pass your practice on? To the extent that being a true solo prevents you from attending conferences or going out to engage in real networking, then perhaps true solo’ing isn’t optimal for the long run. Lots of solos could have benefited from the Avvo conference; the fact that many didn’t attend isn’t necessarily something to celebrate, but rather, is also potentially troubling (in that solos may be too busy to attend but still not earning much or didn’t attend because they don’t earn enough to afford the price of admission)

2. There’s no such thing as legal tech. Let’s face it, most lawyers, even those who purport to be search experts, don’t know much when it comes to the technical side of search. Avvo gets that, and so it reached outside the legal community, gathering folks from tech companies like Google, Zillow and Microsoft to share insight. There’s so much data out there, and so many interesting insights that can be gleaned from it that can help lawyers strategize about practice areas to pursue or clients to target. Still, at the end of the day, at least some of the search gurus wind up agreeing with Scott: content’s the best way to be found (or, in my view, discovered) online.

3. Ethics take center stage. Ethics weren’t a post-script to the other talks; they played a central role with a full hour session on ethics issues presented by Josh King, Avvo’s GC. Josh really knows his stuff – he follows ethics cases in every jurisdiction (and you can tell that he’s actually read the cases as opposed to partial or inaccurate summaries) and discussed relevant issues in a concise and practical (read, non-academic, ivy-tower!) fashion. Josh also explained that some of Avvo’s less-popular features (like the inability for lawyers to remove their profiles if they receive a review that they don’t like) is what keeps the platform ethically compliant. Some state bars won’t allow lawyers to post, or even participate in a testimonial-system unless the lawyer has no control over it.   This kind of rule isn’t entirely over the top – although a client’ ability to review and opine on a lawyer is unequivocally protected First Amendment speech, when lawyers cherry-pick only those testimonials they wish to portray or force alter clients’ testimonials, that’s deceptive.  And lawyers have more of an ability to engage in that kind of conduct when they maintain control over testimonials as opposed to having a third-party provider like Avvo do so.

4. Avvo is loyal to its own. Avvo rewards its supporters, active users and its solo and small firm constituency. Avvo paid for lawyers who’ve used its system successfully to come to Seattle and participate in panel discussions or just to attend the conference. And various Avvo speakers, particularly Mark Britton, spotlighted the successes of lawyers who helped the company grow. That actually matters.

I know that Avvo may not be your cup of tea. Many lawyers don’t like the numerical ranking system, or would prefer the ability to take down a profile once they receive a negative review. From my perspective, Avvo has always been a no brainer; online rankings are an inevitability and I’d rather put my faith in a service that’s trying to do right by lawyers than one that’s not lawyer-specific.

Besides, what have big-kahunas like LEXIS or Westlaw ever done for solos? Can you remember a time that LEXIS or Westlaw reward loyal users or spotlighted their achievements? Or offered a free-version of their programs that’s nearly as robust as full fare (recall, Avvo doesn’t cost a dime and while paying may generate better results, or not, you can get much of what you want from Avvo for free).  These companies have the resources to help solo and small firm lawyers and they’ve never done anything but use technology to widen the playing field rather than narrow it.

Over the next few years, our profession will be hit with a stream of garbage start-ups, all purporting to disrupt the way law is practiced or expand access to justice. Most of them are little more than a platform built on cheap overseas labor, centered around an unoriginal or harmful idea (think legal auction sites) and are waiting for lawyers to sign up and use the site so that the money will start flowing.  By contrast, Avvo brought something to the table when it started (disciplinary records and profile creation), and Avvocating 2012 shows that Avvo continues to do so as it moves forward.

Related posts:

1. MyShingle In Seattle at Avvocating
2. Will I See you At the LA Solo/Small Firm Conference?
3. LA Solo/Small Firm Conference – I’m Back!

File this one under what were they thinking. Now, as a condition of gaining admission to the New York Bar, new graduates (and presumably, new admittees from other jurisdictions) must perform 50 hours of pro bono work, reports the
New York Law Journal.

There’s so much wrong with this proposal that I scarcely know where to start. But given that law students are graduating deeply in debt, shouldn’t they focus on paying work – even if it’s at a Starbucks or pizza parlor – rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

Second, who’s going to supervise all of this unpaid labor? Have we forgotten that at the height of big law layoffs, displaced associates and unemployed lawyers flooded legal aid offices and couldn’t find work for free. Why should it be different now?

Third, why in the hell is our profession imposing this requirement on new lawyers? Isn’t it enough that many of the lawyers of my generation or older completely wrecked the legal profession by racking up huge profits-per-partner with a sense of arrogance that blinded them to the possibility that the highly leveraged model could ever fail. But fail it did, flooding the market with new lawyers in debt and need of employment, fighting over the handful of document review that weren’t sent overseas. How dare we more experienced lawyers take our money and run, while forcing younger and newer lawyers to pick up the slack. As a New York licensed lawyer myself, I am outraged and offended that wealthy lawyers are passing the buck to those just starting out. Pro bono may be one of our professional obligations, but so too is training and mentoring and helping the next generation of lawyers – not making them the fall guys for our mistakes.

Although this ill-conceived program adversely impacts all lawyers, needless to say, it harms solo lawyers most of all. The New York Bar President anticipates that some new graduates will satisfy the pro bono requirement after they’ve taken the bar exam and have started working in paid positions. Uh – new solos don’t have that luxury – starting out, many solos will take any work to make ends meet as they prepare to start a firm. While it’s true that taking a pro bono or CLE can help new solos gain training, if a solo to be has a chance to do paid work for a lawyer, he or she need to jump on it because there’s no telling where the next pay check will come from.

Moreover, the Bar’s proposal fails to acknowledge that new solos, by virtue of being solo, perform far more than 50 hours of pro bono work annually. Solos handle court-appointed cases which don’t pay much; they often accept clients at reduced rates either to get business through the door, or as a favor to another lawyer to open up referral opportunities. Maybe a small percentage of New York lawyers go on to high paying jobs at big firms, but many others, particularly solos are picking up the slack merely by offering an affordable alternative. And they’re doing it more than 50 hours a year.

Don’t get me wrong – I personally believe that lawyers have an obligation to do pro bono work. Some of the highlights of my own career have involved pro bono matters
that I took on voluntarily and that I was fortunate enough to be able to subsidize either through employment or revenue from my practice. Not all lawyers are as lucky.

So to my colleagues in the New York bar, in academia and big law and thriving small practices, I say this: charity begins at home. All around us, there are young lawyers, heavily in debt and desperate for a chance. Over the years, I’ve tried to hire as many as I can – for paid blogging gigs, small-scale research or running errands around the town. It’s not much, but in many cases, the line item that I’ve served on a resume has helped newbies move on to bigger and better things. The New York bar doesn’t need to look to the streets and the shelters to help others when there are other lawyers in need right under their noses. If we give them a chance and help them along, trust me, they will pay it forward — and the problem of access to law will take care of itself.

Related posts:

1. IF YOU’RE GOING TO FORCE PRO BONO, DON’T MAKE IT EQUITABLE
2. Solos and Pro Bono
3. Please Don’t Call This Pro Bono

Carolyn Elefant

visit superlawyers.com

I do not often post about myself or my practice. What you need to know about me can be found here. But for a couple of reasons, I’ve decided to share news of my recent inclusion in Superlawyers (for what that ranking or any other is worth):

First, every so often I feel compelled to remind that I am a practicing lawyer, intent on perfecting my craft. I earn some revenue from this site, my books and my webinars, but at least for now, my law practice pays the bills.

Second, while there are certainly advantages to having a more business-based practice, there are drawbacks as well. As nimble as I am and as much value as I offer, I always have to hustle to outmaneuver my deep pocketed competitors The fact that I’m the only solo on a list of mega-firm lawyers named as Superlawyers confirms what I’m up against.

Third, at a time when big firms are still wobbly, with Dewey LeBouef on its last legs, it’s important for people to realize that yes, there is life after big law. It may not be the life that you expected or ever wanted, and it might be the scariest thing you’ve ever done, but to build something entirely out of nothing, on your own terms while doing work that has meaning; work that occasionally
matters — really, what’s so bad about that?

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Last month, I saw the future of law — and it wasn’t at Tech Show. Rather, it was at a panel on hanging a shingle that I was honored to moderate, held in a sparsely populated classroom at Drexel Law School in Philadelphia the last week in March.

The future that I saw at that panel wasn’t dark and gloomy like a storm cloud (though it was at least partly cloud-based) or a second-rate, make-the-best-of-it silver lining. The future that I saw isn’t a depressing cull de sac where unemployed, debt-ridden lawyers punch a time clock while working for $8 an hour reviewing wills and LLCs at an international Legal Broom conglomerate, or where lawyers trash the law to gain market share without consideration to the needs of the clients or the next generation of lawyers (who after all, are just another market to charge for mentorship).

No, the future of the law that I saw is one that is blindingly bright; full of promise and opportunity for lawyers to make a difference; to serve clients and expand meaningful access to justice in a way that has never before been available. The future of the law resides as it always has (until that fellow Susskind came along and claimed otherwise), in solos.

On that panel back in March, I saw the future of the law in the next generation of new solos, who graduated into one of the worst economies on record but who remain both dogged and passionate about staking a claim for themselves in this profession. I saw the future of law in The Fishtown Lawyers, a partnership comprised of two young lawyers, Leo Mulvihill and Jordan Rushie. These guys get technology (they initially connected with each other – and with me, somewhere online) and branding (Leo designed some cool looking branded beer coasters that he displayed at the panel), but more importantly, they understand the importance of serving a unique community and doing great work no matter what and the thrill of building something out of nothing and the honor of serving clients.

I saw the future of law in recent graduate, Philadelphia criminal defense attorney Mike Lee, who in addition to running his own practice and teaching at Temple Law School, helped found a non-profit expungement clinic to squeeze a stream of revenue out of an orphaned practice area that’s in high demand, yet not worth the trouble of most lawyers. I learned at the panel that Mike uses dropbox to access his entire file in court, but he mentioned it in passing as a tool to support what he does and improve the quality of legal services that he provides; it’s not the key feature that defines his practice.

I saw the future of law in the collegiality of defense attorney, Andrew Cole, who used his time on the panel to highlight the accomplishments of his colleagues instead of tooting his own horn, and again, with Lee, who though is building a practice himself, graciously took time to shepherd a law student around the event, introducing him to other colleagues and explaining the steps to effective networking. Graduating into a tough economy, these lawyers could have boasted about themselves and badmouthed their peers, but instead, they adopted a “we’re-all-in-this-together approach, so what can we do to make it better” that gives me hope for where our profession is headed. Moreover, while some of these solos hold other part time jobs to make ends meet and pay down loans, it’s a reality that they accept – and are working to move past.

Finally, I saw the future of the law in the determination of Michele Grant , a lawyer and single-parent who serves small businesses, artists and non-profits but makes a point of leaving the office by the time her daughter returns home from school. A hard life yes, but one where women and parents come close as possible to having it all.

Technology is cool and it’s fun and it is wondrous – but except for 2-3 days at LegalTech and then three more at TechShow, technology is not the main event, not even close Technology alone isn’t going to render lawyers extinct and technology alone won’t guarantee lawyers’ survival either. We alone will decide our fate.

Technology, like the legal pad and typewriter and computerized legal research if yesteryear, is just a tool; the background noise that keeps our law firms humming along. Tech may have the most important role but even most generously viewed, it is only the support, the maypole if you will. We solos — who comprise nearly seventy percent of the legal profession in the United States — we are the ribbons and we are the dance who collectively are weaving a future full of optimism and possibility that is simply radiant.

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2. Live Blogging ABA Tech Show, Post 1
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Initially, I was excited when I saw this headline, Meet the startups that are giving everyone affordable access to justice. Great, I thought — an article that finally recognizes what solos — who are, after all, start-up lawyers – are doing to ensure that meaningful access to justice isn’t reserved for deep-pockets. But after a sentence or two, I realized, to my dismay, that the piece merely echoed the growing chorus singing the praises of techno-enabled websites that deliver DIY or cut-rate legal services.

But do these legal start ups really serve the underserved? To be sure, there’s a need for affordable legal services, which are priced at the upper end of even most middle class budgets. And the problem is far worse for the poor, where there are more than 6400 open cases for every lawyer willing to handle one pro bono, says the article.

Still, how many of these cases can be resolved by forms or automation? An ABA survey of judges released a year ago found that pro se litigants suffer most in courtroom proceedings because of lack of training and courtroom experience. How-to guides may be useful for a small claims case, where procedures are relaxed — but they won’thelp pro se’s more effectively cross examine an adverse party or ensure that evidence makes it into the record in a formal proceeding.

In fact, many past efforts to automate the wheels of justice have had disastrous results. Automated debt collection cases have clogged courtrooms with unfounded lawsuits while robosigners and bare-bones foreclosure teams caused much of the housing meltdown to begin with. Technology unchecked isn’t much better than unchecked lawyers.

Meanwhile, services like Shpoonkle, that force lawyers into bidding wars, or capping legal fees at $89 for traffic ticket defense or $275 for a divorce aren’t all that much better. Granted, these services will get clients a warm body, which for truly simple matters may be all they need. But again, how much of a defense can a lawyer put on in a misdemeanor case that heats up when he’s only bid $500 to handle it?

The trouble with many of these legal start ups is that they address the wrong problem. That’s because they begin with the assumption that the high cost of legal services is due to lawyers’ aversion to technology or greed. For example, one of the company founders quoted in the article talks about how lawyers spend 50 percent of their time copying and rearranging citations which grossly inflates their rates. Um, maybe that’s the case at some of the nation’s largest law firms, but most solo or small firm lawyers I know don’t do much photocopying since they run largely paperless shops – and rely on Shepardizing or lower cost law clerks or paralegals to cite check.  Contending that lawyers don’t make use of technology is not only insulting, but just plain ignorant.

Likewise, the article quotes an average billing rate of $284/hour which doesn’t say much either. Sure, $284 isn’t pocket change, but if a lawyer can resolve a matter in a couple of hours, the rate isn’t exorbitant. In fact, Legal Zoom isn’t much cheaper. Take a look at the $99 incorporation package. Many lawyers –even those without support staff — could easily bang out three Legal Zoom incorporations (total = $300) in an hour and wouldn’t even require a 7-10 day turn-around. The reason that many lawyers don’t is because they also spend time to understand clients’ goals and assist in selection of a business entity. Truth be told, if clients don’t want to pay for full service, many lawyers will direct them to incorporation forms available online or give them necessary forms for free .

Of course, most of these tech start ups don’t realize any of this since they’re completely out of touch with how solo and small firm lawyers operate and what types of services would allow us to charge less or better help our client.  That’s not surprising either, because if you take a look at many of these companies’ founders or board members, you’ll see that they’re comprised of Silicon Valley techies and big law expatriates who don’t have a clue as to many of the mundane factors that drive the cost of legal services.

Like inefficient courts, where lawyers are often stuck waiting three hours for a case call and can’t work on any other matters in the process for fear of offending their client or the judge. (Solution: incorporate teleconferences or web for simple status calls or make wireless and work rooms readily available where lawyers can follow proceedings without sitting on a bench in the court) Or courts that don’t have e-filing and require lawyers to dispatch a messenger and make multiple copies every time they have to make a filing. And don’t even get me started on the cost of deposition and trial transcripts. Although video and voice recognition technology could eliminate the need for in-person reporters and the exorbitant $5.00/page cost per page, most courts won’t accept anything other than an official, reporter-prepared transcript – which can add thousands of dollars to civil suits and appeals. Then, there’s the cost of expert witnesses and investigators, which also take another chunk of change out of a case.

None of the tech start ups do much to address these costs. In fact, by spending so much time braying about the high cost of legal services and pitting lawyers against each other to lowball fees, the tech start ups make the problem of access to justice even worse. After all, a lawyer who’s getting $2000 for a murder trial isn’t likely to blow $1000 on an investigator or an expert witness. Rather, he’ll dispense with those services to the detriment of his client.

Moreover, tech companies incorrectly assume that technology is always the answer. Maybe so — but tech ain’t always free either. E-discovery search tools are far more powerful than combing through documents one page at a time — but many are really pricy and out of small lawyers’ price range. Other services with value-adds like legal briefs or expert write-ups that large firms can afford cost hundreds, if not thousands of dollars a year. True, there are forms and products available for solo and small firm lawyers, but truth be told, much of what I’ve seen so far (with the notable exception of Ken Adams’ NDA and a few others — please chime in if you’re one of them) are, quite frankly, garbage and insulting to solo lawyers and our clients. It’s no wonder that many lawyers have to resort to drafting contracts from scratch when the majority of available templates are completely subpar.

From what I can tell, many of the newest generation of tech start ups aren’t using technology to improve the quality of legal services or lower the costs. Instead, they’re focused on bashing what lawyers do and trivializing the legal problems of the middle class and poor. These start ups aren’t trying to make good lawyers more widely accessible, or to help middling lawyers gain the tools to become better. Instead, they’re all about convincing the public why bottom feeders and robots and forms are good enough to serve the legal needs of the “common folk” when those same services won’t do for complex or important matters like multi-billion dollar mergers or a anti-trust actions. Ultimately, the tech start up companies widen the gap between haves and have nots by suggesting that it’s OK for a large portion of society to do without lawyers at all.

Don’t get me wrong — technology can go a long way in improving the quality of legal services that we lawyers deliver to clients. For that, I need look no further than my practice, where I’ve been able to use out of the box tech like Adobe Acrobat and Google Maps and Box.net not just to handle, but to win cases against multi-million dollar companies that just five years ago would have been unthinkably expensive. But solving the problem of access to justice isn’t as simple as getting rid of, or deregulating all the lawyers or robotizing the practice of law. It also requires systemic changes like eliminating the administrivia that mean that a case may cost several thousand dollars even before a lawyer comes on board, and allowing lawyers to unbundle services in some instances without fear of malpractice and getting rid of the solo tax which can increase costs for solos as well.

If legal technology start ups are really serious about access to justice and not just access to venture capital, then maybe they ought to start by talking to law firm start-ups; the solo and small firm lawyers who have a view from the trenches on why legal services cost so much what it takes to make equal access to justice a reality for all.

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1. Great News for Law Firm Start Ups: 80 Percent of Dotcoms Survived!
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3. Making Real Money At A Virtual Firm

Sometimes, it just plain sucks being a solo. (Yes, you actually read that at MyShingle!)

Not only must solos suffer the indignity of getting paid less in cases where they outperform their big firm colleagues, but in many instances, solos also pay more for products and services than larger firms. Call it the solo tax. There are two varieties of the solo tax, direct and indirect.

With a direct solo tax, a single lawyer pays more for a product or service because he or she doesn’t receive the benefit of a volume discount. Some recent examples I’ve stumbled across include:

• Lawline, an online CLE provider that charges solo lawyers $399/year for unlimited CLE but the same package costs only $250 per lawyer in firms of two more.
• Westlaw Formbuilder, a new and somewhat intriguing product offered by Westlaw that allows lawyers to complete forms online, while accessing the research or rationale for each entry, costs $79.20 a month for a year-long subscription for a single attorney to the National Business Transactions Solutions database, but $108.00 per year for a law firm of three. Split three ways, the subscription costs around $35/year per lawyer instead of the $79.20 that a stand-alone solo pays. (Prices on the Westlaw products vary but you can play around with the pricing in the side menu bar at the Westlaw Formbuilder site.

Of course, most companies don’t make their pricing transparent so it’s difficult to determine whether they charge more for solos or not. But except for many of the cloud providers which charge a per head irrespective of size, my guess is that many companies offer incremental discounts for larger sized firms.

I wouldn’t complain if companies allowed solos to “buddy up” and divvy up the price of these services so that we could at least receive the same per-unit rate as larger operations. But in most cases, vendrs don’t permit independent law firms to share costs.

On the other hand, while the ability for solos to share services would reduce their costs, the resulting savings aren’t enormously significant – $150/year for the Lawline CLE or $55/month for the Westlaw Formbuilder – or $600/year. Sure, the extra solo tax adds up and in particular, hurts newer cash-strapped solos. Still, in the greater scheme of things, most direct solo taxes won’t make or break a firm.

What harms solos more than the “direct” solo tax is the indirect solo tax — essentially, the inability to share in the benefits that accrue to a firm when it purchases a costly product. Take my industry, for example. Conferences and online presentations often start at $500/head and can cost as much as $1500 or more. Sometimes, the conferences offer a good opportunity to network, so it’s important to attend in person for face time, but other times, conferences supply really useful information. As a solo, I can’t spare both the lost work time, not to mention the price of admission, to attend all of these events. However, my colleagues at a large firm can dispatch one member to the conference to take notes and pick up materials – and everyone in the practice group or the firm can enjoy the benefits. Meanwhile, other firm members to attend other conferences and share what they learn, – so essentially, the firm gains information and has a presence at 10 conferences, even though they’ve effectively paid $1500 for each member. By contrast, if I wanted to cover all of those conferences, I’d have to fork over $15,000.

The same is true with many subscription services. A law firm can subscribe to a specialized online research service or magazine service for one or two members and then share the knowledge throughout the firm. Of course, firms can’t lawfully buy one subscription and allow others to share the password, or make copies of a publication to circulate around the office. But certainly, if someone in the firm spots an interesting piece of information in one of the publications, they’ll pass it around.

So what’s the solution? One approach that I’d like to see is increased collaboration between solos, both those in the same practice area as well as across practice areas. To date, however, my experience organizing with other solos has been less than stellar as it’s difficult to gather a core group. On the other hand, buddying up with other solos for a discount subscription rate isn’t always worthwhile because the incremental savings available to two firms that share a package may not be significant – and indeed, not even as great as if two lawyers within a firm shared a product. As for coordinating a group where one member would attend a conference and share the knowledge with others, none of the solos whom I’ve tried to collaborate with were interested in this approach.

In my view, the more preferable solution is for service providers to offer significant discounts to solos. Incidentally, the ABA has actually taken this approach, with a $225 membership for solos of ten years or more, and declining for solos with less experience (though by the time you add up section memberships, you’re still looking at a bill of close to $400). Alternatively, companies could allow two solos to team up and simply split the cost of a single subscription down the line, or offer substantial savings to solos who aggregate to buy a product.

I know from working with advertisers at my blog that the solo market is disparate and hard to reach, which is why many companies never even gave solos a glance until the market fell apart and only solos were left standing. Even so, getting in front of a solo audience usually entails paying money to bar associations for advertising which can be expensive as well. My guess is that by taking the money spent on ads and offering bonafide solo discounts, companies would enjoy an enormous word of mouth benefit.

Ironically, the burden of the solo tax will increase rather than decrease as technology advances. True, on the one hand, technology has made once-costly services like legal research, online document storage or phone service so cheap — or even free — that they’re more affordable than ever. At the same time, far more sophisticated products and services are emerging as a result of technology – guided search in e-discovery, Practical Law Company, with all kinds of expert-drafted tools and templates for preparing documents for sophisticated clients, and more. Without access to these tools to streamline workload and come up to speed on new issues, solo lawyers will fall behind. And rather than level the playing field, technology will have widened the gap between large and small, making it tougher for solos to compete. At the end of the day, we all bear the cost of the solo tax in the form of increased legal fees or lower quality of representation for clients whose lawyers can’t afford these tools.

Related posts:

1. Tribute to Joe Flom: Skadden’s Solo Role Model
2. Help an Unemployed Lawyer, New Solo or Law Student and Help Yourself
3. Everything You Need to Know to Succeed As An Associate, You Can Learn From Solo Practice