Renee Stackhouse and I recorded the first “Meet & Confer” podcast yesterday with SDCBA’s Technology Officer, Adriana Linares. And it will be available soon! “Meet & Confer” is a podcast for and about our unique San Diego legal community sponsored by the San Diego County Bar Association. We had lots of fun recording this first session and hope you will give it a listen when its up and available. I am excited about this project and to be working with my friends, Renee and Adriana. So, watch for “Meet & Confer” – A SDCBA Podcast for San Diego Lawyers. Make sure to let us know what you’d like to hear about on “Meet & Confer” at email@example.com.
I am excited to announce or, perhaps more precisely, leak that Renee Stackhouse and I will be co-hosting a new podcast, “Meet & Confer” – A SDCBA Podcast for San Diego Lawyers. The podcast will be sponsored by the San Diego County Bar Association and produced by the SDCBA’s very-talented Technology Officer, Adriana Linares. The podcast will be for and about the San Diego legal community. Adriana, Renee and I have a growing list of potential topics for the show, including the generational divide between younger and older San Diego lawyers, interviews of prominent San Diego lawyers, new tech, the San Diego legal marketplace, practicing law in San Diego, practice tips, San Diego lawyer artists, and some mystery topics like “What Happened to the Blackstone Ball?” It won’t just be Renee and I chatting. We will have interesting guests discussing informative and entertaining topics, all in an effort to explore and celebrate our unique, diverse, and interesting San Diego legal community. I am quite excited about this project and to be working with my friends, Renee and Adriana. So, keep an eye out for “Meet & Confer” – A SDCBA Podcast for San Diego Lawyers. Coming very soon!!
I am very excited to be an Adjunct Professor at the USD School of Law this coming Fall. Sounds quite lofty – really, not so much. I will be helping to teach a litigation skills course to 1Ls in USD’s very successful Experiential Advocacy Practicum course. I will be leading small group sessions of 1Ls where the students learn and practice litigation skills, like conducting client interviews, taking depositions, or making closing arguments. I thank USD, my law alma mater, and, specifically, Linda L. Lane, Annsley and George Strong Professor-In-Residence for Trial Advocacy, for this new and unique opportunity. This is not a change in careers – my civil litigation/trial practice continues, full speed! This is just something that sounds interesting, allows me to continue my involvement with USD SOL, and provides the opportunity to use my litigation skills, acquired and honed over several decades, to help what will be a new crop of San Diego attorneys.
Jim the professor! Well, kinda.
Should be interesting and fun.
I am pleased and quite honored to now be representing, along with attorneys Parisa Ijadi-Maghsoodi and Bryan Pease, the plaintiffs in an action against the San Diego Housing Commission seeking to address significant long-standing housing segregation in San Diego. The action alleges the Commission administers Federal Section 8 program funds in a manner which perpetuates racial segregation and the concentration of poverty in San Diego in violation of state and federal law. The action seeks to enjoin the Commission from continuing to administer its Section 8 program in this discriminatory fashion. A successful result in this case will have a significant positive impact in San Diego and for thousands of its residents. That is why I joined the case and why my fine co-counsels and I will work hard to try to deliver that successful result.
NAACP San Diego Branch; San Diego Tenant Union; and, Darlisa McDowell v. San Diego Housing Commission – San Diego Superior Court Case No.: 37-2019-00012582-CU-WM-CTL
“Young Lawyers Giving Back” & “Practicing Law in Changing Times” in the May/June 2019 San Diego Lawyer.
I have a new piece – “Young Lawyers Giving Back” – in the May/June 2019 Edition of San Diego Lawyer. It highlights three young San Diego Attorneys who, despite very busy lives with significant personal and professional demands, spend hundreds of hours providing pro bono legal services and giving back to our profession and communities. These young talented attorneys are not alone. Many young, very busy, San Diego attorneys find the time to do significant work on behalf of others and give to others in need. That bodes well for our profession and for our city!
I also had the recent honor of moderating a SDCBA Panel Discussion on Practicing Law In Changing Times, which is also reported in the new San Diego Lawyer. As you will see, it was lively, interesting discussion!
Check out these pieces and the other fine articles in the new San Diego Lawyer.
I have an article – “Solo/Small Firm Tech – Lean, Efficient, Effective” – just published in the Spring 2019 edition of The Practitioner, the magazine of the Solo & Small Firm Section of the California Lawyers Association. If you belong to the section, check it out! If not, join and then check it out.
This piece was originally titled “Tips for Solo Survival”. But mere survival is not really a viable long-term option for most attorneys. You will tire of the struggle to make ends meet and the demands on your time without acceptable corresponding financial reward, and eventually move onto something different. The goal is to succeed professionally, financially, and personally. Here are some tips from a long-time solo trial attorney to help make that happen!
1. Market, Market, Market!
You have to commit to robust, regular, never-ending marketing – lunches, dinners, drinks, articles, professional organizations, blogs, email campaigns, social media, …, whatever works best for you! You are in a highly competitive marketplace with tons of lawyers hustling for business. If you don’t market, all the time, if you don’t compete for business, all the time, your solo practice will, at best, survive and, at worst, fail. You will not have a firm brand or in-house marketing professionals to help with client generation or partners sending you work. You’re on your own, you have to market, market, market!
2. Guard Your Professional Reputation and Image.
Your professional reputation and image go hand-in-hand with your marketing efforts. Prospective clients and referral sources will check you out before they hire you or refer you work. Your reputation and image matter. What other attorneys say about you and your work matters. How you treat opposing counsel matters. What your on-line presence says about you matters. Continually build, with everything you do, and tenaciously guard, with everything you do, your reputation. It is the lifeblood of your practice.
3. Do Excellent Work and Provide Great Personal Service.
This seems obvious, but to succeed, solos simply have to work harder, perform better, and provide better service, than firm attorneys. With many clients and referral sources, there is an inherent perception that solos cannot compete with larger firms. That’s really BS. But, you have to work hard to overcome, or more precisely, not validate, that perception. Start with promptly returning calls – do that and you are way ahead of a good chunk of your competitors!
4. Case Selection is Key – Take Good Cases, Don’t Take Bad Ones.
You must be disciplined in your case selection. More precisely, you must have the discipline to say “No” to a marginal case even when you are not that busy. Slow-pay or no-pay work, or poorly vetted contingency matters, will kill a solo practice. Cash flow dies, and better work is squeezed out or not properly attended to. You are better off hustling for new business than spending that valuable time on lousy cases that don’t make you money.
5. Enforce Fee Agreements.
Get written fee agreements and, more importantly, enforce them. If the client is not paying in accordance with the fee agreement, get out and move on to the next client. If the client will not replenish a retainer per the agreement, get out and move on to the next client. You are running a business, you need cash flow to meet your business obligations and take money home. Make sure the clients meet their contractual fee obligations. You are their lawyer, not their legal credit line. It’s no fun, and bad business, to be at the office at 10:00 p.m. on a work night, or on a weekend, working for a client who is not meeting his fee obligations. There is plenty of worthy pro bono work you can do, by choice! Don’t let your supposed-to-be-good-paying clients become pro bono ones.
6. Set Market Rates and Hold to Them.
Your attorney time is valuable. It has a market value based on your experience, reputation, and expertise. Investigate the market, ask other lawyers, determine what your rate should be for what clients, and then stick to that rate. Discounting your rates to get new clients is bad business. It is a race to the bottom. There is always an attorney around the corner who will work cheaper than you. Discounting your rates at the outset undermines your value to your practice, and the perception of your value to your client. If you want to give some money back to a good client, give a courtesy discount for work done on the bill. Don’t cut your rates.
7. Religiously Monitor Your Finances & Pinch Every Penny.
Cash flow is critical in a solo practice. Regularly monitor your collections, your billings, and your expenses to maintain cash flow. If a client is not paying when she should, call her. (Honestly, if you can’t call a client to ask for payment on a past-due invoice, you are probably not cut out for solo practice!) Get your billings out promptly – don’t sit on cashflow in the form of un-billed, un-invoiced, time. Track and promptly bill all expenses. You paid those expenses, that’s money out of your pocket. Promptly bill and get reimbursed. On the firm expense side, buy what you need to work harder, perform better, and provide better service than other attorneys. But beyond that, pinch every penny. It’s not the big, well-thought out, fully vetted, expenditures that hurt. You have likely done the cost-benefit analysis on such purchases – they will make you money. It’s the accumulated small expenditures that hurt. Get what you need – after that, pinch every penny!
8. Make Your Quarterly Tax Deposits.
Make your quarterly tax deposits. Religiously set aside the money you need to pay your taxes. Once you start slipping back on your tax set-asides/deposits, you will soon find yourself getting extensions on your returns to make the money to pay last year’s taxes. And that is a difficult cycle to get out of. It requires discipline and, sometimes, a leaner take-home than you might like but don’t get yourself into the “get an extension to make money to pay last year’s taxes” cycle. Been there, done that, it can get brutal.
9. Invest in Good Equipment & Software.
Invest in good, reliable equipment and regularly updated, established, software. These are the tools you use to efficiently produce quality work and provide good service. Yes, pinch pennies and scrutinize expenses, but don’t cheap out on the core functions of your practice.
10. Prepare for the Unexpected – Redundancy and Backups.
Expect failures – build in redundancies and regularly back up your data. Don’t let your practice become paralyzed by a hard-drive, or equipment, failure. Computers, hard-drives, and basic office machines (printers, scanners, etc.) are pretty cheap these days. Have an extra desktop, or printer, even cheap ones, ready to go in the event of a failure. And, back up your data! Any IT professional will tell you, your hard-drive, with all your data, will fail. It’s just a matter of time. Lost data, without back-up, is a disaster, even a practice-killer. Lost data, with back-up, is an annoyance.
11. Keep it Simple!
This is a pretty simple business. The law can be complicated and complex, and the legal work can be challenging. But, as a business, a law practice is quite simple. We do work, we bill for that work, we collect money in response to billings, we pay our firm expenses and taxes, and we take the rest home. The law can be difficult – the business of law is not. Keep it that way. Don’t complicate things with complex, untested, software where simpler, tested, software will do the trick. Don’t invest in complicated case management/calendaring software, where dual calendars and a regular calendar review will do the trick. Don’t maintain labor-intensive physical files when most everything either comes to you electronically or can be easily scanned and maintained electronically. Don’t mail statements when you can email them. Don’t pay bills with mailed checks when you can pay them on-line. Don’t re-invent a document every time when you can create a document template for repeated use. Don’t write your time down on a yellow pad and then enter it again into your billing program – enter it directly into the program the first time. Simplicity means efficiency. Efficiency means reduced overhead, solid hours worked and billed, better service, and happier clients. Happy clients, solid billings, and low overhead means more money in your pocket. More money in your pocket makes you happy. Keep it simple!
12. Hustle, Hustle, Hustle!
Solo practice offers many rewards. Independence. Full control of your time and schedule. Freedom to take the cases you want. It also can be quite lucrative. But, it is not for the faint of heart. You are on your own. If you don’t have work, you make no money. If you don’t get your bills out, cash flow dies. You don’t have partners making money to smooth over slow periods or to send you work when nothing is coming in. Bad case selection and poor business decisions can be disastrous. You must continually compete for business in a tough marketplace and regularly do battle with well-heeled, well-staffed, adversaries. And no matter how much you crunch the numbers, estimate billed hours, do the “hourly rate x hours you have to work” calculation (“wow, I only have to work X hours a day to make a X dollars”), and plan for expected compensation, it almost always turns out different from what you expect or plan for. And, to be succesful at it, and not just get by, you simply have to hustle, hustle, hustle, all the time, every day, year in, year out. But, for me, it’s the best way to practice. Why? Because its my gig – my practice to run, my decisions to make, my adversities to face and problems to solve, my cases to try, my clients to serve, and my money to make. And I like that.
With some minor differences, this article originally appeared in the November/December 2018 issue of San Diego Lawyer magazine. It is reprinted with the permission of the San Diego County Bar Association.
This interesting new ABA Tech Report – https://bit.ly/2EjtpAX – states that only 1/3 of solos and 1/2 of small firms budget any money for tech. The budget percentages for larger firms are much higher. These findings are a bit staggering given that solos/smalls most need the tech to effectively compete with big firms and that cost-effective, useable, efficient, small firm tech is readily available and getting cheaper all the time.
What Does “Approved as to Form and Content” Really Mean in a Settlement Agreement? The California Supreme Court May Tell Us – Monster Energy v. Schechter.
The California Supreme Court has granted review in Monster Energy v. Schechter, an interesting case involving, in part, the meaning and binding-on-the-lawyer effect of the “Approved As to Form and Content” attorney signature line commonly found in California settlement agreements. The court’s eventual ruling in Monster Energy may lead to widespread reassessment of the inclusion of such signature lines in settlement agreements. Or it may not.
The facts of the case are pretty simple. The plaintiffs in an underlying case, represented by attorney Schechter, sued Monster Energy. That case settled. The plaintiffs and Monster Energy signed what appears to be a rather standard settlement agreement with broad release language and a confidentiality provision. The confidentiality provision stated that “Plaintiffs and their counsel agree that they will keep completely confidential all of the terms and conditions of this Settlement Agreement…” . The agreement was signed by the parties and included an “Approved as to Form and Content” line signed by the attorneys, including Schechter. Schechter was later interviewed by a reporter for a legal publication and, in the interview, made comments which Monster Energy alleged violated the confidentiality provision in the agreement.
Monster Energy sued Schechter and his law firm for breach of contract, breach of the implied covenant, unjust enrichment and promissory estoppel, asserting that Schechter was bound by, and had breached, the confidentiality provision of the settlement agreement. Schechter and his firm filed a SLAPP motion to strike under Code of Civil Procedure Section 425.16, asserting, in part, that Monster Energy could not establish the probability of prevailing under SLAPP Prong 2 because Schechter was not bound by the confidentiality provision. The trial court denied Schechter’s SLAPP motion as to the contract action but granted as to the other causes. As to the contract action, the trial court held that Monster Energy showed a probability of prevailing on the merits under SLAPP Prong 2 analysis because the settlement clearly contemplated counsel as being subject to the agreement because plaintiffs had the authority to execute the settlement agreement on behalf of their counsel and counsel signed the document. The trial court stated that Schechter’s “suggestion that he is not a party to the contract merely because he approved it as to form and content only is beyond reason.”
Schechter and the firm appealed. The Fourth District Court of Appeal in Monster Energy Co. v. Schechter (2018) 26 Cal App.5th 54 reversed and remanded, finding that the “Plaintiffs and their counsel agree…” language in the confidentiality provision was a “nullity” unless and until the attorneys consented to it and that the “Approved As to Form and Content” attorney signature line did not act as consent by the attorneys to the confidentiality provision. Thus, per the Fourth District opinion, Schechter was not bound by the confidentiality provision and could not have violated same with his interview comments.
Monster Energy petitioned the California Supreme Court for review. The court has granted review. One of two specific issues to be addressed in the review is:
When a settlement agreement contains confidentiality provisions that are explicitly binding on the parties and their attorneys and the attorneys sign the agreement under the legend “APPROVED AS TO FORM AND CONTENT,” have the attorneys consented to be bound by the confidentiality provisions?
What caught my attention about this case and the granting of review is that the “Approved as to Form and Content” signature line at issue is commonly used by, and signed by, by California attorneys settling cases. It is one of those things regularly included in settlement agreements because it has long been standard practice to do so and because it has been included in the form settlement agreements circulated around firms and amongst lawyers for years. Plus, the meaning of the “Approved as to Form and Content” attorney signature line has always seemed clear and self-evident. At least to me. It seemingly means only that the document has the attorney’s professional approval but does not reflect the attorney’s intent to be bound by the agreement. That is what the 4th DCA concluded in Monster Energy – the “Approved as to Form and Content” attorney signature line means only that the document has the “attorney’s professional thumb’s up”. Thus, it is quite interesting the Supreme Court wants to take a look at the meaning and binding-on-the-lawyer effect of this rather common attorney signature line in settlement agreements. This may very well turn out to be one of those cases where an Appellate or Supreme Court opinion causes California lawyers to reassess what has, for years and years, been standard practice.
Frankly, I have always shied away from “Approved as to Form and Content” lines in settlement agreements for a number of reasons. First, I have never really understood why I, as an attorney representing a party, need to acknowledge in writing that I have read and approved the form and content of an agreement that my client is signing. Inside my privileged relationship with my client, I have presumably made sure the client understands what he is signing to resolve a case. I have never really understood what the provision actually does. Further, most settlement agreements include integration clauses, and have a provision, or provisions, where the signing party affirmatively states she has read and understands the agreement, has had the opportunity to consult with an attorney concerning the terms and conditions of the agreement, and is freely entering into same. With such client representations, why is my approval as to form and content relevant or necessary? Further, adding the “Approved as to Form and Content” provision to an agreement, signed by counsel, would seemingly make it more difficult for the client to subsequently seek, through new counsel and where appropriate, to set aside the agreement for fraud, mistake, lack of consideration, …. etc. And, if the agreement were subsequently challenged, could my signature on an “Approved as to Form and Content” line make me a witness in such an action as to my understanding of the content and meaning of the agreement, as then-counsel for the signing party, and serve to waive my otherwise available work product privilege? To the detriment of my former client? I don’t know. It has always just to seemed to me that signing an “Approved as to Form and Content” provision could lead to a lot of unintended consequences and ethical problems if the settlement deal blew up and later ended in litigation. All for a provision usually included in the agreement not because it is a material, negotiated, term but because it has customarily been in such agreements.
Bottom line, signing the “Approved as to Form and Content” line has always seemed to me a weird thing to do, largely meaningless, and fraught with possible downstream unintended consequences. Others may perceive useful reasons for this provision – I really don’t. Perhaps a ruling in Monster Energy will serve to clarify the benefits and/or risks of such provisions, and lead to reassessment, one way or the other, of their use and inclusion in settlement agreements.
We shall see.