My Shingle

Be the Lawyer Who Sits on the Toilet Seat

Carolyn Elefant — Mon, 06 Feb 2012 13:25:25 +0000

During the last week of my dad’s life, my sisters, mom and I experienced the best and worst of the medical profession.

The lowest point came mid-way through my father’s last week, when my mother and I were accosted in the public lounge outside the intensive care unit (ICU) by one of the doctors who was head of one of the medical groups treating my father. Slovenly dressed in a faded polo shirt, rumpled khakis and worn jogging shoes, the doctor introduced himself with an irrelevant factoid about having been paralyzed for six months in high school (entirely unrelated to my father’s condition) and then, in full earshot of at least three other bystanders in the lounge, proceeded to browbeat us into his desired course of treatment which differed from the plan that our family had advocated for with other doctors and staff over the previous four days. Each time, I cited the research that my sisters (who by training are an RN/clinical scientist and Phd/associate professor of molecular biology) had located, he simply ignored my points or yelled at me in a booming voice (you’re not the treating doctor, are you? he taunted) instead of explaining his position.

The last straw came when my mom lost her composure and started to cry, telling the doctor that she felt as if he was trying to end my father’s life. I apologized for my mom, explaining that she didn’t mean what she’d said and was reacting to the stress. Instead of letting the comment pass or expressing empathy, the doctor became even more agitated and stood up and bellowed “Ma’am, are you accusing me of trying to kill your husband? I’ll have you know that as a physician, my first directive is to do no harm,” at which point he launched into the first line or two of the Hippocratic Oath which drew stares from others in the public lounge.

This doctor’s conduct stood in stark contrast to that of another doctor whom we’d met earlier that week – the one who helped us develop our desired course of treatment for my father. That doctor came in for a consult on Sunday, and though he was dressed in jeans (appropriate for a weekend), he wore a lab coat over them. After apologizing for his delay, he asked for a few moments to review our father’s file. When he returned, there was no where to sit, since my sisters and I occupied the couch and my mom was on the chair. I offered to bring another chair, but instead, he sat on the toilet seat in the corner (lid closed). He responded to all our questions, discussed the options and at the conclusion, placed the order to initiate the plan.

As I’ve reflected on our experience that last week, I was struck by the rather obvious parallels between the doctor-patient and lawyer-client relationship. Even more, I discovered that so much of what we as lawyers, claim doesn’t matter (or rather, would like to believe doesn’t matter) actually does when we become clients. These are some of the lessons I learned during that terrible week.

1. Dress Matters: I frequently hear lawyers saying that “it doesn’t matter what I wear” or “if clients don’t like that I come dressed in jeans, they should go somewhere else.” Yet, I appreciated the doctor who donned the lab coat in an effort to appear professional, while I was utterly revolted by the slovenly doctor who came stumbling into the lounge. His sloppy dress was downright disrespectful, sending the message that he was so arrogant that he didn’t care enough to clean up for his patients or their families. While I’ll grant that in some locations, dress codes are more relaxed and some clients may be put off by a lawyer in a designer suit, at the same time, a minimum of business casual – nice slacks and/or skirt and a button down shirt and shoes – will be appreciated by clients far more than a thigh-high mini-skirt or sweatshirt and faded jeans.

2. Confidentiality Matters: Although I don’t have a problem with lawyers working from home or at a library or coffeehouse for a change of pace, different rules (as in ethics rules) apply when seeing clients face to face. Even if you’re unable to secure a private room to meet clients, at least try to create a cone of silence by finding a corner table or speaking in a hushed voice. The braying doctor who met with my mom and me in a public lounge was utterly oblivious to our desire for privacy or the sensitive nature of our conversation, in spite of HIPAA requirements which dictate confidentiality. That this doctor appeared to play fast and loose with regulatory requirements not only conveyed a lack of respect, but suggested to me that he might be willing to cut corners elsewhere.

3. Don’t Talk Down to Educated Consumers I love when my clients do their homework and research cases and ask questions. Yes, it can sometimes get tiresome explaining over and over, for example, why sending 10,000 form letters to FERC is not nearly as effective as drafting a sound, legal viable rehearing requests – but the fact that they bother to ask and make suggestions lets me know that these clients have something vested in the case and will be willing to see it through (and pay what it takes to that end). Of course, if it appears that clients are using research to try to one-up me or try to have me take some unlawful action, I’ll shut them down, but when they ask even the stupidest questions because they’re curious, I’m happy to respond. The first doctor we spoke with took this same approach, patiently guiding us through all the options. By contrast, the second doctor not only ignored my sisters’ and my research but attacked us for “playing doctor.” That’s just not a viable response to today’s well-educated consumer.

4. Be Humble As lawyers, we have expert knowledge. In many instances, we do know what’s best, legally, for our clients. But many times other things matter too. Like having clients feel as if we listened, and that we did everything possible. That we fought for them instead of against them and treated them as humans with dreams and fears and aspirations – and not tire-kickers or leads en route to making a sales quota.

That arrogant doctor who strutted and bellowed through the public lounge cared so much about his own agenda that he felt compelled to berate my mother to gratify his own ego instead of taking a time-out to empathize. Meanwhile, the doctor who consulted us earlier that week and sat on the toilet seat to talk to us did everything he could to help my father and my family; even taking the worst seat in the room just to spare us from getting up. It’s a small consolation prize in an otherwise awful series of events (because my dad is still gone), but even so, that one small act of kindness mattered more than you could ever imagine.

A Blog Post for My Father

Carolyn Elefant — Wed, 01 Feb 2012 18:56:09 +0000

With my dad, circa 1967

This blog has been dark for several days, since my father died on Saturday, an unbearably sad event made worse by the circumstances surrounding his passing. Temporarily, our family has put these events out of our mind to focus on his life and our memories like these. Regular postings will resume early next week.

My father, Milton Elefant, was the kind of guy you’d never notice in a crowd but the one whom everyone would come to rely on nonetheless. A quiet, trustworthy and self-deprecating chemist, (when complimented on the reputation of NYU, his alma mater, my dad always replied that it was walk-in admission back in his day and an easier commute than CUNY), my dad was the one chosen to head up the lab at his company even though he never earned an advanced degree, and probably sat on 6 or 7 juries, since he was chosen every time he showed up.

As a chemist, my dad had that mad-scientist thing going, and was both absent-minded and curious. For my 9th birthday, he lead me and ten friends on a hike inTourne Park, and somehow managed to get us lost – so he left us by the roadside, hiked to a house and hitched a ride back to the picnic tables to pick up the car to retrieve us. My dad would take my sisters and me to his lab on weekends, letting us run wild, mixing compounds like phenolphthalein and HCl, the latter which I didn’t recognize as a potentially dangerous acid til high school. He was the most popular dad on career day with the dry ice and color changing experiments. He’d bring us guinea pigs and mice from the lab for pets and the mice, especially always got loose (they kept having babies;forever-multiplying mice). But my dad would fish the drowned bodies out of the sump pump without a word. One time, three of the escaped mice stayed loose in the house for probably 2 months – my dad trapped them in a bucket and simply couldn’t get over how they’d survived for so long. “They must have crept into the bag of dog food to eat, and drank water from the leak in the sink,” he speculated. “They were real Amazons.”

Needless to say, in a houseful of women – a wife and four daughters, my father scarcely had a chance to get a word in edgewise, and he wasn’t a macho, domineering type. He was the one whom my sisters would come to at night when we were feverish or had nightmares, and he’d let us play “beauty shop,” brushing the ring of hair on his balding pate and affixing bows to the single tuft on top. When my mom returned to college to finish her degree when my sisters and I ranged in age from 2-8, my dad took responsibility for dinner and religious school pick-up and bed-time two or three nights a week for the next five years.

Although we were girls, there was never any doubt that we’d all go to college – though back then, some girls were still directed to secretarial or two-year nursing school. My sisters and I received some aid and took out loans to cover about half of our tuition, but my parents borrowed money to make up the difference. I have no idea how my dad slept nights under that burden of debt but he never begrudged paying, never held it over our heads or demanded anything — even a glance at our grades – in return.

My dad paid for college because it was the right thing to do. Just as he paid for four weddings, and cleaned up under the table at night and rose at 5 am to jog with the family dogs that all of us wanted, but no one wanted to take care of and spent much his retirement watching grandchildren whenever he could to make my sisters’ and my life easier (And his grandchildren adored him, with even the 2 six year olds and eight year olds insisting on speaking at his funeral and proclaiming the date of his death, Remember Milton Day). Not because he sought awards or praise or (heaven forbid) to be cutting edge but because it was the right thing to do.

My dad was an ordinary man, someone you might easily pass by in a crowd. Yet in today’s often selfish, self-centered world, where we expect a pat on the back every time we help a spouse or go the extra mile for a client, or force our children to make sacrifices so that we can do what we want rather than the other way around, that my dad did everything he did, without complaint or expectation but simply because it was the right thing to do is, really, nothing short of extraordinary. May his memory be an inspiration.

My father with all 8 grandchildren (a matched set; 4 boys, 4 girls)

Blogging to Change the World

Carolyn Elefant — Thu, 26 Jan 2012 15:03:23 +0000

Update (1/26/12, 11 am) Here’s Scott’s post, Un-Optimization, which was also referenced by Kevin. Read the post yourself, but as I interpret it, Scott argues you can’t have it both ways: if you write what you believe in or what is controversial, you take a chance that you will offend or drive others away. If you blog to voice an opinion, that risk won’t bother you, but if you are blogging to market, the risk will be too great. That, as I understand is why Scott believes blogging to opine and blogging to market are incompatible but READ HIS POST!! I am not sure that the continuum is as black and white as this (which goes back to Jamison’s point) but that is because if my principles were important enough, I’d voice my opinion without compromise (that’s why I’m stuck in the Rakofsky lawsuit). On the other hand, if the issue didn’t matter so much to me and would offend, I suppose I would back away. What a lawyer’s line. Anyway, this issue has been beaten to death but if you want to jump in for another round, feel free.

Every so often, the familiar conversation crops up in the blogosphere over why we ought to blog? My buddy Kevin O’Keefe sells blogs, so of course, he’s bullish about their importance to the legal profession. Except, if you’ve ever met Kevin, you know that this isn’t just a sales pitch; he actually believes this stuff.

Other bloggers believe this stuff too. As Kevin notes, Scott Greenfield blogs to let people know he was here [update: see comment above]; Jamison Koehler blogs to share his love of the law and desire to engage other bloggers, but he’s also frank in noting that there’s a residual marketing benefit that he derives from his efforts.

I’ll admit, that I don’t get as agitated by others by flawging (except if there’s ghostwriting involved, I consider deceptive. But blogging for the sake of SEO only may not be wrong, but it’s a waste of a medium that empowers individual lawyers to do great things.

Take a look at a companion post I wrote long ago about why I blog. What’s your reason?

To Blog Right, You Need to Imagine Your Audience

Carolyn Elefant — Thu, 26 Jan 2012 14:00:40 +0000

Of all of the commandments of blogging, know and write for your audience ranks at the top of the list. But for those who blog to silent crowds who never email or send comments, the primary source of information about our readers comes through statistical data generated by our stat counters on the popularity of certain posts or referral sources or search term origination. So like dutiful marketers, we use our blogs to deliver the goods, writing posts that respond to the Google searches that bring readers to our site or reprising the topics that are a hit as defined by the numbers.

There’s nothing wrong with that approach, if you merely want to use your blog to market to clients or build SEO – to flawg (fake blog) as some have called it. But if you want to take your blog to another level, to establish the kind of intimacy that some wrongly contend has been supplanted by immediacy or to educate the public, as we lawyers are encouraged to do, or to inspire, you need to imagine your audience.

What I mean by imagine your audience is to visualize the individual readers, from those who stumble across your site online to those who dutifully read your updates daily. Where are they reading your blog – in a Starbucks? Their office? At a basement computer after the kids are in bed? Are they dressed in stiff work clothes or wearing pajamas? Are they using an news reader to catch up on posts – or do they actually visit the site to get the information? Do they print out your posts in a public library because they don’t have a printer at home, or scroll through them casually on their smartphone while riding the subway to a suburban mansion? By imagining these details, you can refine the form of your post to match your audience’s circumstances – for example, enlarging the font or brightening the page if you suspect folks are reading in dimly lit areas, or including an easy print or PDF option if your audience prefers hard copy.

Here at MyShingle, I’ve been imagining my audience every day for over nine years. I imagine the stressed out biglaw associate exhausted from another grueling day of document review who surreptitiously reads my site after her colleagues have left and plots her own escape. I imagine the law student clad in sweats, cramming for an exam in the darkened bowels of the law library who’s procrastinating from studying by scanning my site and dreaming of hanging a shingle and becoming the best criminal defense lawyer in the state. I imagine the mom who left a law firm a decade ago to raise kids and who wants to re-enter the profession, the young dad who’s sick of never seeing his kids while they’re awake during the week, the middle aged government lawyer sleepwalking his way through claims files, wondering whether he’s wasted his career, the lonely solo who’s struggling to make ends meets and the cutting edge solo hungry for every piece of cutting edge marketing and technology information that’s out there. Sometimes, I even imagine the close minded, elitist lawyers who find my site after it’s been linked in a more conventional trade press, and sniping about how solo and small firm lawyers are just a bunch of bottom feeders who couldn’t find a real jobs. I imagine all of these readers and more, and I write not so much for them (certainly, not for that last category!), as to them.

More than any other incentive, imagining my audience inspires me to keep churning out copy, week after week, year after year. Because the post that I write about how not to handle a mistake might motivate a solo who “borrowed” a few hundred dollars from a trust account to pay rent to turn himself into the bar and make amends rather than continuing on and losing his license. The post that I write about starting a firm before it’s too late may convince a talented lawyer intent on running from the law to start her own firm instead, and who goes on to defend, and spare a wrongly accused client from a life sentence.

In your own case, your post might make an abused wife realize that she can leave her abusive husband without losing custody of her kids, or that the destitute family tormented by debt collectors can seek relief. Your post criticizing a judge’s ruling on an important legal issue might find a sympathetic ear on the appellate court and change the law for the better. All it takes is one post to change someone’s mind or someone’s destiny and in doing so, you can change the world. Imagine that.

There is Nothing Wrong With Trying, Failing and Being Honest About It.

Carolyn Elefant — Fri, 20 Jan 2012 15:02:14 +0000

So, a lawyer walks on to Groupon, offers a $99 will, scores some coverage in the ABA Journal, sells 53 of the $99 will packages (with Groupon taking a 50 percent cut) and generates 150 calls and emails from other lawyers who are interested as well as some “uncharitable” commentary. Now, he’s decided against using Groupon again. Why?

Although this fact pattern sounds like the opening of some kind of joke or riddle, actually, it was the opening for a conversation over at the Solo Practice University blog. The discussion arose in response to a post by SPU Columnist Debra Bruce, who tracked down the lawyer who ran the Groupon deal (I’m not using his name since apparently, he’s sick of the publicity) and wrote about his experience.

Debra’s article was fairly even-handed; she didn’t express an opinion on Groupon one way or another, but opened the topic for dialogue. Good, so far. However, what’s been troubling me about the post are some of the comments which portray the lawyer’s Groupon experience not as an experiment gone wrong, but rather as yet another example of an innovative lawyer run out of town for trying something new. I don’t buy it.

I’ve followed the Groupon story extensively since last year, writing two posts which analyzed its use from an ethics and economic perspective. Though I concluded that any ethics problems were either red herrings or fairly easy to address, I came down hard on Groupon’s business model. Citing the results I’d found from research studies and other industries, I argued that the Groupon model didn’t make sense to me financially. Yes, I linked to the lawyer’s site, but I never mentioned him by name. Moreover, in searching for other posts on Groupon and lawyers, I found that the overall tone was relatively positive, in the nature of “maybe Groupon could work for certain practices.” Hardly the lynch mob suggested in the SPU comment section.

What bugs me more than this re-writing of history — and indeed, what is particularly dangerous — is the implication that any criticism of a new idea — even an analytical, detailed commentary free of ad hominen attack — represents an assault on innovation. Or that any action taken by a lawyer, whether sensible or not, deserves unmitigated support simply because it was revolutionary. It’s that type of attitude that actually instills Groupthink and stifles innovation far more than open dialogue, discussion and critique.

But, I’ll let you decide for yourselves. Here are the hard, cold facts. The lawyer posted an ad for a $99 will and sold 53 packages, which amounts to a total of $5247. Subtracting Groupon’s 50 percent cut, the lawyer nets $2623.50. To his credit, the lawyer handled the work in a highly professional manner and invested the significant time in both evaluating whether a $99 will would be appropriate, and in preparing the final product. At 1 to 2 hours per will, the total take amounts to around $13 and $26 an hour.

Of course, those facts don’t tell the whole story. There’s also quite a bit that we don’t know about the secondary effects of the Groupon ad. On the plus side, apparently, the lawyer was able to “upsell” some of his more expensive estate packages (again, to his credit, he offered them at a considerable discount, because of the Groupon ad) to those clients for whom the basic will was not appropriate. He’s also received referrals from clients who purchased the $99 wills and thought highly enough of his work to recommend him to others. Finally, he’s received a good deal of publicity.

But there’s also a negative side. We don’t know how many calls the lawyer received about the package and how much time he or his staff spent vetting those calls. We don’t know how many refunds he was required to dispense once he determined that the Groupon purchaser needed something more than a basic will. We don’t know whether existing clients who missed out on the ad, or didn’t want to pay $99 without buying the product, also asking for comparable discounts. We don’t know how long it took to fill the orders, or whether handling the extra work displaced other more lucrative matters.

Looking at all of this evidence with an objective eye, the lawyer’s experience with Groupon was not an unmitigated success. Indeed, it was not a financial success at all, if we’re being brutally honest. In addition, can we also take a reality check? Really, if this lawyer really cleaned up financially, would he dropped Groupon simply due to negative peer pressure? (As an aside, deciding against using Groupon a second time is not unusual; data shows that just slightly over half of those who have used any type of deal site say that they would repeat). Perhaps that’s what many would like to believe because it fits with the overall vision of young innovators raging against the machine, but in this case, it’s simply not the reality based on a review of all the facts.

To be perfectly blunt, I would characterize this lawyer’s experience with Groupon as a failure. Yes, the experiment FAILED! There – I said it, I called the experiment a failure. I did not say that the lawyer was a failure, but that the action he took failed in that didn’t produce the type of results that made him want to do it again. That the experiment failed doesn’t mean that it had no value or that he didn’t learn from it or even generate a little cash out of it. But anyway you slice it, this didn’t work. For goodness, sake, why can’t we just call a spade a spade? Why are we compelled to paint this lawyer’s laudable but unsuccessful experiment as another example of pre-historic lawyers chasing upstart innovators out of the profession?

Believe it or not, there’s nothing wrong with failing. In fact, failure is integral to success. That’s why Seth Godin implores entrepreneurs to fail faster. If you continue to remain entrenched in a strategy, or delude others into thinking that an approach was a success but for the intervention of others, you can’t improve.

These days, very few people in the blogosphere admit abject failure – either failure in a new way of doing business or outright failure in starting a firm. The story, rather, is always upbeat and sunny. How helpful is that, especially to new solos who don’t have much money and for whom a significant error can be devastating? Isn’t it better to share with others ideas that we tried that didn’t work out so that they can perhaps do things differently?

Which raises another point. That the lack of criticism stymies the evolution and refinement of ideas. Imagine if the Groupon dialogue had involved a robust discussion of the concept of refunds – and in what situations they might work or not. In my post criticizing Groupon, I suggested that lawyers might consider giving discounts to their clients to pass on, instead of making them available widely. Another commenter at SPU site noted that Yelp might send out information on services, but for only a 30 percent cut. But if you lock yourself in to a position (that Groupon works and big old meanies chased a lawyer out of business because they were threatened by a new idea), and you’d never have reason to even examine new alternatives.

I’ll concede that frequently, ideas are criticized because the person who came up with it is truly on to something and others are envious or afraid of the potential disruption. In the legal profession, especially, naysayers abound. But at the same time, that doesn’t mean that everything new or innovative is going to work either, and when it doesn’t, it’s not a big deal to simply shrug it off, say I failed and try again, differently. That is how we learn.

Update Just so you have the full story, there’s a comment posted by attorney/CPA Greg Zblyut describing his positive experience offering tax services through Groupon (more information on the deal here. Though I still wonder how Groupon would work for many law practices where most matters do not involve repeat customers like a tax service, it’s worth sharing this extra piece of data so that if you’re still considering Groupon, you can make an informed decision).

A Solo-bomination of An Attorneys Fees Decision

Carolyn Elefant — Mon, 09 Jan 2012 13:23:40 +0000

Would you sacrifice six weeks of revenue for six years and instead, spend those six weeks toiling pro bono for a snowball’s chance in hell of victory before the United States Supreme Court? Small firm lawyer Alan Gura did.

A partner in the two-lawyer firm of Gura and Possessky, Gura was just 32 and eight years out of law school when when he was hired, for “something less than minimum wage” to challenge the constitutionality of DC’s gun ban under the Second Amendment. Gura took the case from its humble origins in federal district court to a landmark win in District v. Heller. As Scott Greenfield points out, not only did Gura successfully reverse longstanding Supreme Court precedent to achieve his client’s win, but he did so as a resource constrained small firm lawyer.

With a story like that, you’d think that Gura would be celebrated as the toast of the town – respected by constitutional scholars and Supreme Court advocates for an extraordinary result or held out as an inspiration to young, unemployed lawyers languishing in document review jobs that taking big risks by starting a practice and handling compelling cases can yield big rewards. You’d think that a court would be eager to heap praises on a young lawyer who gave up six weeks of his life, for six years working for pocket change on a case that many experts regarded as unwinnable and quite frankly, few others were willing to take. You’d think.

But because Gura is a small firm lawyer in Washington D.C.’s caste-like legal community, the extraordinary nature of his accomplishment was trivialized by Judge Emmet Sullivan, who in this ruling lopped a full two thirds off the 2008 attorneys fees petition filed by Gura and his team. Sullivan found that Gura’s work wasn’t sufficiently exceptional to justify an enhanced award of $589 over the $420 hourly rate traditionally applied for similar work Laffey Matrix, and in any event, as a small firm lawyer, Gura didn’t deserve fees comparable to big law attorneys.

As evidence of prevailing market rates for similar work (another metric for rates under fee-shifting statutes), Gura’s petition listed the fees charged by large firm attorneys with comparable experience – which ranged from $500 – $700 an hour. Moreover, Gura’s opponent at the Supreme Court, Walter Dellinger of O’Melvey Myers who represented the District pro bono estimates that his firm loses $1,000,000 in foregone fees just for the Supreme Court litigation alone! Yet, Sullivan awarded Gura’s team – $1.3 million for the entire six year case – scarcely more than the value of Dellinger’s time for once phase of the proceeding.

Judge Sullivan’s decision is outrageous. Although granted, there is precedent to support Judge Sullivan’s approach, courts have fairly wide latitude in awarding attorneys’ fees. Judge Sullivan could have exercised his power to reach a decision more favorable to Gura and his team, but he didn’t. Perhaps, as Scott Greenfield contends it was a political thing, but in my view, the decision results from an utter lack of understanding of, and respect for the work that solo and small firm lawyers do.

For starters, Judge Sullivan found that large firm billing rates had little relevance because Guru is a partner at a two-lawyer firm where he enjoys lower overhead. So what? Even with his less extensive resources and “lack of investment in big firm accoutrements like “librarians, researchers, support staff, information technology and litigation services,” Gura beat a lawyer who typically commands $1 million for a Supreme Court case. If Gura achieved the a better result than lawyers who charge double his rate, shouldn’t he be similarly compensated? Moreover, why should Gura be penalized for keeping his overhead low?

To add insult to injury, Judge Sullivan failed to take into account the impact that such all-consuming litigation had on Gura’s small law practice. Over at O’Melveny, most likely, Dellinger continued to collect his $1.5 million partnership draw even though his pro bono work cost the firm nearly as much. By contrast, Gura lost more than six full weeks of billable time for the six years that he handled the case. That’s six weeks a year where his revenues were zero, and that’s six years where Gura earned less because of his involvement in the Heller challenge. Yet Judge Sullivan’s fee award does not take account of Gura’s lost opportunity costs – even though foregone opportunities impact a small firm’s bottom line as much or more than hefty overhead costs impact a large firm’s earnings.

Not only did Gura forego opportunities, but he took on enormous risk with the Heller litigation. In determining whether a fee , particularly a contingency fee is reasonable, many jurisdictions, including D.C. allow for consideration of factors such as the novelty of the case, time and labor and likelihood of recovery. Yet Judge Sullivan did not consider these factors either. Perhaps O’Melveny and other big law firms have more substantial overhead, but partners like Dellinger collect their draw whether they win a case or not. Gura doesn’t.

What galls me most about Judge Sullivan’s decision is the implicit assumption pervading this ruling: that solo and small firm lawyers are second class citizens who ought to be grateful for any scraps they get. At p. 26 of the Opinion, Judge Sullivan explains that the public is more willing to pay top dollar for large firms because of all of their resources, but not so for smaller firms which don’t have the same “national or international” reputations or profile. Apparently, Sullivan believes that the only reason that someone would hire a small firm lawyer is because they can’t afford biglaw. How insulting.

Judge Sullivan didn’t even compliment Gura on the exceptional nature of his win or applaud a young attorney for staying the course. Instead, he said that there wasn’t enough evidence to persuade him that Guru’s results were extraordinary enough to warrant a higher rate. Yet at the same time, at an earlier hearing, Judge Sullivan was quick to point out how fortunate the District was to have such “outstanding lawyers from outstanding firms” handling the case pro bono.

At the end of the day, I recognize that it’s hard for most folks to feel sorry for Gura. After all, even at the $420/hour rate, he’ll take home an award of $662,000. And on a personal note, having originally become acquainted with Gura on solosez back in 2001 when he was just starting out, I’m thrilled that his investment in the case is paying off both professionally – and presumably financially — through recognition as a preeminent expert on Second Amendment litigation. So even if Gura isn’t getting the fee he deserves for this matter, hopefully all of these ancillary benefits will allow him to recoup his time spent, and then some.

In the long run, the real losers in this decision are solo and small firm lawyers. Judge Sullivan’s decision makes clear that even if we beat an AmLaw 100 law firm and overturn Supreme Court precedent, it’s still not enough — we have to prove our value and worth over and over and over again because we don’t have the cache of an AmLaw 100 law firm. While everywhere else on the planet, actions speak louder than words, here in Washington D.C., solo and small firm actions don’t speak louder when those words are the name of a top law firm.

Taking A Break & Questions for Readers

Carolyn Elefant — Thu, 22 Dec 2011 13:13:34 +0000

I’m not sure why I ever bother to blog the week between Christmas and New Year’s. Most folks either skip town or are frantically racing to meet end-of-year deadlines. Either way, it makes for absent or distracted readers. In fact, that’s generally why I save my New Year’s predictions for January (2009, 2010 and 2011).

I also recognize that some lawyers voluntarily take a break from the blogosphere during the last week of December to plan for the coming year. I’ll be doing some planning myself, in particular, thinking about what I can do to improve this site to make it more useful. You’d think that after blogging here for nine years, I’d have a pretty good idea of my audience’s preferences but truth is that my readership (and I would imagine, most blogs’ readership base) has changed over time. Starting out in 2002, I’d be lucky to attract 30 readers a day, mostly colleagues from Solosez who wanted to support the site, or a few of the then-handful of other legal bloggers. My traffic has grown substantially since then, but there are also plenty of other blogs that address topics of concern and interest to solos, from practice management tips, technology advice and of course, marketing.

While I like to write about others’ blog posts from time to time, I’ve never been a “repeater” or “me too” blogger in that I don’t simply pass on links to another post or chime in and parrot the same advice. So to continue to remain both original and useful, I’d love to get some feedback, either in the comment section below or by email (elefant@myshingle.com). In particular, are there topics that you’d like to see covered that aren’t addressed at other blogs or perhaps some new perspective worth sharing? Likewise, are there topics that I post on here (like my Ethics 20/20 coverage) that simply bore you to tears (doesn’t mean I’ll stop posting on issues that in my view matter to solos, but I’m curious). Finally, are there certain formats that you prefer over others? Would you like to see shorter posts? What about more webinars, videos, podcasts or live interactive Q&A? Finally, if you’re a new reader, please let me know what brought you here.

In the meantime, if you’re a new reader, or you plan to spend the next week thinking about starting a firm or ramping up your business if you’re already in practice, have a look at some of these resources:

Cold Calls for Lawyers (recording, no registration required)

Biglaw to Your Law (recording and slide deck, no registration required)

StartingaLawFirmOnlineGuide.com (writings on every stage of planning and running a practice, plus links to free 6 hour tutorial on starting a firm)

Nolo Legal Marketing Blawg as well as other marketing materials at MyShingle for some ideas on topics like finding clients, identifying new practice areas or making your internet presence more useful.

So enjoy the break, have a wonderful New Year and I’ll see you all back here next year!

The Miracle of the Solo

Carolyn Elefant — Tue, 20 Dec 2011 13:46:43 +0000

[Warning - Hanukkah-themed post ahead, if you would rather avoid religious-oriented content]

Tonight marks the first night of Hanukkah, a joyous Jewish holiday that holds special meaning for me as a solo. From the small band of Maccabees triumphing over the Syrian army to the tiny drop of oil that fueled the eternal flame for eight days, Hanukkah celebrates the miracle of the small overcoming impossible odds.

Although I’m forever bullish about the future opportunities for solo and small firm lawyers, there’s no denying that that we’re under assault on all fronts. On the one hand, we must contend with hack-ademics like Gillian Hadfield who claims that non-lawyer providers offer better service than solo and small firm practitioners, who in her view are nothing but generalists spread too thin. Then, there’s those economists who contend that deregulating lawyers will make legal services more affordable, even though cheaper options are already available with the emergence of online services like Legal Zoom. On the other hand, many lawyers (not to mention coaches and gurus) are all too willing to encourage lawyers to cannibalize ourselves and use technology to convert legal services into commodity products (which can be automated or bulk-packaged for bargain basement sales), instead of using the commodity – technology – to deliver bespoke services - (that which gives us value as a lawyer) more cost effectively.

It’s not just the big picture that throws a dark thundercloud over our existence. Even on a day to day level, we solos live precariously. We can never stop hustling because we know that any day the phone could stop ringing, we could lose all of our clients and we’d have to start from scratch. And even as technology makes our life easier, it brings with it additional distractions and increased responsibility to ensure that our clients’ data and communications are secure.

Yet, somehow in spite of it all, solo and small firm lawyers manage to show up every day. And not just show up, but show others up by defending our clients against powerful institutions like banks or winning long shot cases in the face of public ridicule or simply giving a damn.

The solo’s persistence in the face of mighty odds is of course a testament to both our doggedness and ingenuity. But there’s more. Because like the drop of oil that lasted for eight days, that we solos make it from one day to the next, year in and year out; not just sputtering and struggling but standing proud, defiant and shining bright – well, that’s just nothing short of miraculous.

MyShingle Celebrates Its 9th Blawg-i-versary

Carolyn Elefant — Sat, 10 Dec 2011 00:27:28 +0000

On December 9, 2002, I launched MyShingle into the blawgosphere with this Welcome Post. At the time, I had no idea where my site was headed but I was excited to join the first generation of legal blawgers, particularly as one of the few solos among them. Over time, the seeds that I planted took root and suddenly, I found myself part of a vibrant community that hadn’t previously existed.
There are a million things that I could write about the big picture of blogging and its place in the legal profession or tips on how to blog. I shared some of my thoughts on my first, fifth and eigth anniversaries. But today, for want of time (it would be bad luck if I didn’t post about my 9th anniversary on December 9th), I’ll leave a personal reflection.

After nine years, there are days when the words won’t come, when my brain simply runs dry of ideas. Where I struggle over a post for an hour or more or get aggravated when something that to me was a masterpiece registers one or two tweets while someone else’s garbage re-circulates 87 times. But there are those days when the words just fly from my mind to my fingers, where I pound out a post or put the right twist on a headline, or where someone else picks up my post and discusses it or where someone tells me that they mustered up the courage to start a law firm after reading my blog. Days like that are still a thrill.

In that respect, blogging is a microcosm of solo practice as well. Every day, we solos toil, battling with nasty opposing counsel or even cheap, obnoxious clients. But every so often, we save someone from jail, keep a person in their home, move a business forward or just make someone’s life a little easier or less scary. Those are the days where practicing law doesn’t even seem like work, but a joy. The days we live for.

Thank you readers and my fellow bloggers for nine terrific years; thank you solo and small firm lawyers every where for just simply showing up and for helping to make justice a reality. Always, this blog is for you.

MyShingle Is Proud to Be Part of the 18 Percent

Carolyn Elefant — Fri, 02 Dec 2011 16:51:42 +0000

Solos comprise at least 60 percent of practicing lawyers, yet that’s not always apparent from mainstream legal publications which focus largely on the accomplishments of and matters relevant to large firm practice. Slowly, however, blogs are chipping away at the legal caste system that by giving solos a powerful megaphone to influence the law and our profession. This year’s ABA Blawg 100 is proof. Solo bloggers comprise 18 percent of the top 100; twenty percent if you eliminate the dozen blogs in the News and Opinions categories which are occupied by professional journalists and academics.

What’s more – if you look at the solo blogs included in the top 100 (the majority are in the criminal defense category with the remainder spread between LPM, Tech and Niche), you’ll find that most of them don’t just focus narrowly on legal issues or dutifully report on recent cases with nothing more. Instead, most solo bloggers are addressing big picture issues – from the ethics of lawyer marketing and conduct (six of the ABA Top 100 Blawgs, albeit not just solos, are defendants in Rakofsky Sues the Internet), the relevance of legal education the policy implications of Supreme Court decisions and most of all, what it’s like to practice as solo lawyer in today’s world. I am honored to be included in the 18 percent – and awed at MyShingle’s inclusion in the ABA Blawg 100 for the fifth year running.