by James D. CrosbyCivility? Really?
Originally posted November 22, 2011
Civility, across the broad arch of a career, is a successful and lucrative business model. I believe it will enhance your professional career, better serve your clients, make you more profitable, and keep you sane.
Civility is typically discussed in lofty abstract terms at collegial meetings of judges and attorneys. You’d think it was written in stone or tablet. Yet civility is much more difficult to apply in the aggressive, day-to-day jockeying of a litigation practice. We’ve all had that Friday afternoon call with an aggressive, uncivil, opponent whose been jacking you around in discovery for six months. Or that call from a lawyer who has denied you multiple extensions and who now wants one himself because his kid is sick. How about that senior partner who wants an associate to draft and serve 300 special interrogatories, simply to make the opponent “spend some money?”
Being civil is all the more difficult in lean economic times. After all, our clients are our customers. And we want to keep our customers happy. In addition to representing clients, we have to pay the rent, meet payroll, and keep the doors open. When a good-paying client wants us to stop being nice, start being a “bulldog,” and start making the other side spend money, it’s tempting to play into that client’s worst instincts. Why not keep the money flowing? The reality is that attorneys, like anybody, will do what works – especially when it’s lucrative. I hate to be cynical, but if being an uncivil jerk works and makes them money, that is what a great many attorneys will do. But, I think the contrary is true. Civility, though hard to apply at times, is good for business.
One can always point to a particular case or client where a more uncompromising and uncivil approach worked. After all, pre-trial litigation is really all about the imposition of risk and cost on the other side. And, like most litigators, this author cannot claim that he has not yielded to base competitive urges, including anger, at times. It would be impossible not to. Yet, I have litigated many more cases wherein civility significantly assisted in securing a good result for the client. And the best and most successful attorneys I know after almost 30 years in the trenches are those that, calmly, professionally and with a civil approach and a good-natured slap on the back, pick your case apart and destroy your position. I believe adopting and working hard to apply a more civil, professional approach in daily litigation practice is the better and, ultimately, the more lucrative approach. Civility is good business. I’d welcome your thoughts.
by James D. CrosbyAn Ideal Balance.
Originally posted – Spetember 9, 2011
Last week I appeared at a trial readiness conference in an employment termination case set for jury trial in a few weeks. As my opposing counsel and I walked into chambers, the trial judge said, “It’s good to see a couple of experienced veterans. We can dispense with these trial preparation matters rather quickly”. And so we did.
This got me thinking.
There is a much to be said for reaching the level of an “experienced veteran”. I have spent all of my professional life appearing in court. Or getting ready to appear in court in some form. That amount of experience comes with benefits: Instant credibility from the bench is one. Good instincts for how the court will likely rule on particular matters is another. More examples include an understanding of what a Judge likely will or won’t find persuasive. The ability to edit extraneous matters in briefs and pleadings. And finally, the confidence to estimate how long it takes to do something.
These things are very beneficial to clients involved in risky, expensive litigation.
But, such ease and confidence hold dangers as well. There’s the false belief that you have seen and heard it all before. The risk of under-preparing for a motion or hearing (“winging it”) because you’ve “been there, done that.” Smugness and overconfidence that can lead to mistakes. Complacency. Underestimating less-experienced opponents. All of this can easily morph into arrogance and complacency.
Perhaps an optimal combination is to balance the ease and confidence of a veteran trial attorney with a rookie’s drive and paranoid fear of screwing up. You are confident and at ease handling your cases, but you still lie awake at night worrying about covering all the bases and doing your best.
It seems this balance is a good insurance policy for staying at the top of your game. Do you agree?
by James D. CrosbyTrial Tactics – Sometimes Simple is Better.
A couple of months ago, I took on a new case with a rapidly approaching trial. It was a relatively straightforward Federal Court action. An equipment supplier was seeking to recover about $250K in equipment rentals provided to a Federal construction project.
I took over from another attorney who’d had the case for about 18 months. This prior attorney had approached the case with a “no-holds barred” mentality. There seemed no limit to the extensive case preparation: databases, trial software, digital visual presentations, hours and hours of paralegal time scanning and indexing documents, etc. An expert had reviewed thousands of pages of materials and worked up detailed opinions. Billings to the client reflected this “over the top” approach.
When I got the case, we adopted a new approach – simplify and streamline! We waived jury, significantly reduced the trial documents, nixed the visual presentations, withdrew the expert, and pared down the witness list. We had a strong case on the facts and the law. In my view, a busy California Federal Court judge wouldn’t need all the bells and whistles, and corresponding court time, to decide this case.
We tried the case last week. The result? We were awarded about 85% of the claim with interest and legal fees – a big victory for the client. Strong case – simple trial presentation – good result!
This streamlined approach would not have worked in all cases. The facts, the law, the amounts at stake and the forum in which the case will be decided will dictate the approach in any given case. But, at least in this case, simple was better.
I’d be interested to know of cases in which you found simpler to be the best approach.
by James D. CrosbyUse of Visuals and Digital Presentations At Trial – Pricing Out Small Firm/Solo Litigators?
Juries in this media age expect to see visuals and digital presentations at trial. Is this expectation giving big firms with significant litigation budgets an advantage at trial? Is it pricing small firms and solo litigators out of all but the smallest cases?
This week I chaired a meeting of the Civil Litigation Section of the San Diego North County Bar Association (www.bansdc.org). The presenter was with a consulting firm that assists trial attorneys with visual presentations. As he demonstrated various multi-media presentations and animations, the implication was that today’s juries — and even judges — expect digital visuals at trial.
The questions posed by the audience, mostly small firm litigators, centered on cost. Sure, the demos were nifty, effective animations, but how much do they cost?
The rise of technology – computers, cheap software, connected notebooks and tablets, smart phones, and now social media – has leveled the playing field. Today small firms and solo practitioners can compete with big firms like never before.
The one caveat is in this area of visual presentations at trial. Big firms, well-heeled clients and big litigation budgets still hold the edge. Larger firms can afford IT personnel to do the work, or their clients can afford to hire the costly consultants to do it for them. They can put on a better TV show at trial. This presents a problem for smaller firms and clients with limited resources. It also gives larger firms a marketing edge. If a firm can offer its IT expertise to prepare effective trial visuals, that firm surely has an edge in marketing significant cases.
With this one exception, smaller firms and solos are generally becoming more competitive. What are their options? They can simply choose to try cases like they did 10-15 years ago, without the bells and whistles. But that could get risky with today’s juries. Or, they can hire the same consultants the big firms do. Finally, they can purchase trial presentation software, invest the time to learn it, or hire a paralegal to learn it. But these solutions increase overhead and decrease the bottom line.
There are no easy answers. Will smaller firms and solos continue to be squeezed in bigger cases by large firms, well-heeled clients and ample budgets? It will require creative thinking by small firms/solos and newer cost-effective solutions from vendors to counter this big firm competitive edge.
by James D. CrosbyCalifornia State Courts Complicit in Civil Discovery Abuses.
In the idealized world of self-executing civil discovery, disputes should be rare. They should be worked out by reasonable counsel without the courts. But that is not the world of aggressive modern day business litigation. Discovery is not just a means to secure information and narrow issues. For some litigants, it has become a strategic tool to delay cases, frustrate opponents and drive up costs. Civil litigators publicly decry these abuses, but candidly acknowledge them as, increasingly, a regular part of civil practice. And through no fault of their own, California state courts are becoming complicit in these discovery abuses.
Due to overcrowded civil calendars, discovery motions are being calendared months out. This substantially delays resolution of discovery disputes. In San Diego, where I have a business litigation practice, discovery motions are being calendared as much as three months out by civil departments. In California, cases are supposed to be tried within one year. Summary judgment motions require 75 days’ notice. So, a three month delay in resolving a dispute over a document request is significant. And such delays lead to tactically-driven discovery abuses.
The calculation is clear and, in a tactical sense, compelling. If delaying a deposition for several months will disrupt the opponent’s discovery plan and trial preparation, why not file a motion for protective order? Or object and force a motion? In significant cases, even the risk of discovery sanctions may not discourage such actions. The cold calculation is clear: what’s a few thousand dollars in sanctions and some harsh words from a judge if one can significantly disrupt an opponent’s case? Cynical, yes. Improper, yes. Unethical, maybe. Is this the custom and practice of most trial lawyers? No. But, effective as a tactic? Most likely, yes.
The solution? Obviously, more judges and more civil trial departments. But, come on, is that going to happen any time soon? Other possible solutions – give more calendar priority to discovery motions, decrease the statutory notice for such motions, streamline briefing requirements or set up separate civil departments to expeditiously address only discovery motions.
Until something is done to expedite discovery motions heard in California courts, those same courts will remain complicit, though innocently so, in the very discovery abuses they are supposed to guard against.
I welcome your comments.
by James D. CrosbyWestlaw & Kindle – An Easy Way To Keep Current.
My litigation practice subscribes to Westlaw, and recently upgraded to WestlawNext. I particularly like the California Update feature which summarizes new California cases and legislative updates on a daily basis. These updates are not only available online, they are also sent daily to my email account and, in turn, to my Blackberry. But, in the past, I have gotten bogged down actually reading new cases as they appear in the update. I would either print them and stuff them into my briefcase for later reading, or convert them to .pdf and move them to a “Stuff to Read” file on my laptop. Either way, the files grew and often times the cases went unread as I moved on to other things. For me, and I suspect for many others, the best way not to read something is to stick it into a file of stuff you plan to read.
But, now, I am keeping up with new case developments using a Kindle with WestlawNext. Cases and other content can be sent directly from WestlawNext to a Kindle. (You can also do it out of Westlaw with an extra step.) It really works great. I send new cases summarized in the California Update directly to my Kindle. I put the Kindle in my briefcase and read new cases over the course of my work day; for example, while waiting in court for a hearing or during a deposition lunch break. And, I take it to the gym and read cases while putting my time in on the stationary bike or elliptical. It’s a simple and very efficient way to keep current. I find that I am now reading new cases shortly after they come out, rather than weeks or months later, or, sometimes, not at all. Give it a try.
by James D. CrosbySocial Media, Attorneys and . . . . Bob Dylan.
I moderated a San Diego North County Bar Association dinner program this last week on attorneys and the rise of social media. Thanks to the North County Bar Association (www.bansdc.org) and President Larry Campitiello (@LarryCampi) for the opportunity. Thanks to panel members Leah Swearingen of Swearingen Communications (@LeahSwearingen), Rosalie Kramm of Kramm Court Reporting (@rosaliekramm) and Heather Rosing of Klinedinst PC (www.klinedinst.com) for a great presentation and lively discussion.
Pre-program conversations with three seasoned (read, older) attorneys struck me. All are fine, well-respected, highly-capable attorneys in the prime of their professional careers handling significant cases.
Attorney #1 described social media as, paraphrasing, Facebook dribble for teenage girls.
Attorney #2 – “This stuff is scary”.
Attorney #3 – “I don’t understand it and don’t have time for it.”
That about says it all for many attorneys and social media. It’s below me. It’s risky. I don’t understand it. It’s not important to my practice.
But, these common impressions are being re-examined, quickly, by smart attorneys. The interconnected world of social media is here to stay and, if approached wisely, presents huge potential for servicing clients, marketing practices and building reputations. Put it this way, when your clients started using emails and cell-phones, didn’t you get an email address and buy a Blackberry? This is, in my view, a no-brainer. And if those attorneys noted above don’t at least make an effort to understand social media, they may soon find those significant cases going to somebody who does.
Bob Dylan wrote “You don’t need a weatherman to know which way the wind blows.”
Good advice.
By the way, Dylan is on Twitter and Facebook.
by James D. CrosbyAttorneys and Social Media
Why do many attorneys readily dismiss social media?
Recently, I wrote that the loss of control and fear of the interconnected may be possible reasons. The world is no longer hierarchical. Plus, it’s “always on. ”
A book I am reading suggests another, more basic reason (that is not necessarily endemic to attorneys.) That is, it is easier to rely upon old lines of thought that serve one well than seek out new ones. In the “The Master Switch” by Tim Wu, the author quotes theorist, Joseph Schumpter:
All knowledge and habit once acquired becomes as firmly rooted in ourselves as a railway embankment in the earth. . . The very nature of fixed habits of thinking, their energy saving function, is founded upon the fact that they have become subconscious, that they yield their results automatically and are proof against criticism and even against contradictions by individual facts.
Put simply – you can’t teach an old dog new tricks. But, what if those “new tricks” – those new lines of thought – are, at best, beneficial and, at worst, dangerous to your livelihood. One must shed off the old and embrace the new. At the very least, one must understand the new before making the decision to reject it.
Tonight I am moderating a San Diego North County Bar Association program on attorneys and the rise of social media: “Tweets from Web 2.0 – The Rise of Social Media and Why Attorneys Cannot Ignore It.” I am interested to hear the questions and comments from the attendees.
I invite your comments on social media and attorneys.
by James D. CrosbyAttorneys and Social Media – The World You Are In!
Attorneys are generally curious, bright, articulate, and unafraid to interact with others. The fast, interconnected world that social media represents should be a natural for them. And a great many attorneys are jumping in. Anything that allows attorneys to work smarter, expand professional reputations, assist clients, and make more money will ultimately be embraced, provided it is ethical.
Why, then, are so many other attorneys reacting so vehemently to the meteoric rise of social media?
Some cite ethical issues. Yet attorneys deal with thorny ethical issues all the time. Some cite the risk of an online presence. But attorneys deal with risk all the time. They litigate serious cases and structure large transactions involving other people’s lives and money. Some say they don’t like the “always on” aspect of social media. But, come on, how many attorneys do you know are afraid to voice an opinion or troll for business over drinks? Most attorneys, by nature or necessity, are always on.
Others dismiss social media as a fad that won’t last. Really? Facebook is helping to oust dictators across the Middle East. The White House posts on Facebook and Twitter. Queen Elizabeth tweets! The “it’s just a fad” argument is not credible.
So what is it? I think that two core things make many attorneys very uncomfortable.
First, social media blurs the lines between one’s personal, public, and professional life. Attorneys operate in a complicated professional world. There are confidences to protect, privileges to defend, relationships to grow, reputations to cultivate. Many attorneys feel that if they embrace social media, they will let the genie out of the bottle. They will lose control over their various lives and the boundaries between them, and this loss of control will somehow hurt them or threaten their livelihoods.
Second, I think many attorneys fear the interconnected, no longer hierarchical, world that social media represents. Gone are the days of sitting in a big office, above the fray. Social media is a world where peers and clients rate attorneys in real time on digital forums viewed by thousands of people. Clients expect immediate responses — not a call back on a land line the next day. Faxing is dead, email is waning and texting is a “new normal”. Potential clients are on line, pre-qualifying attorneys. Existing clients are online finding an alternative when their expectations are not swiftly satisfied. Small firms and solo practitioners compete with mega-firms for big clients and complicated high-end cases. And, attorneys can no longer rely solely upon colleague referrals and a healthy reputation to sustain a practice. Simply put, because of social media, attorneys are increasingly down in the real-time muck with everybody else. And a great many attorneys don’t like this level playing field.
These are legitimate concerns. Many can be addressed with a clear strategy and the appropriate on-line tools.
But, attorneys really don’t have the luxury to choose to be involved in this new interconnected world. We ARE already in it! Attorneys may choose not to embrace it. But, they must recognize its significance. Their future choices will surely have personal, professional, and economical consequences.
I welcome your thoughts on attorneys and social media.
by James D. CrosbyThe Shift.
Social media is not something to be ignored by attorneys. It is a big shift, a game-changer, with attendant risks and benefits. It is also another “great equalizer” for small practices competing with bigger firms for work. I invite other practitioners to weigh in on this tectonic shift to social media.
A case in point. A couple of weeks ago, I was talking with a lawyer friend of mine. He is a death-penalty qualified, criminal defense attorney and has been practicing about 30 years. He is a fine lawyer, someone with a wealth of courtroom experience. I would turn to him for my family and friends if the need arose. But he has not been a big embracer of new technologies. In our discussion, he seemed genuinely rattled about the future of his practice. He explained that he had been in court waiting to make an appearance. A young lawyer sat down next to him, pulled out an iPad and started to conduct business, a not-so-uncommon event these days. For my friend, it was a wake-up call, maybe even an epiphany. “How can I compete with that?”, he thought. His comments had undercurrents of real concern and perceived unfairness. Why should he have to adjust to all this new stuff to compete for work this long into his career? While I don’t share his sense of unfairness, I was struck by his great concern that new technologies will hurt his business. It is one thing not to embrace a new technology if you can effectively compete without it. It is another for my friend to feel that not embracing new technologies will hurt his business. If this smart man believes this, it means that something big and structural is happening.
My recent discussions with a marketing consultant reinforced that point. Specifically, it was the difference between our discussions of several years ago and our discussions over the last few months that struck me. The last few years, I had been working for a single client. That gig had ended earlier this year and I was focusing again on generating new cases for my litigation practice. I was talking about that with this consultant. This person is highly qualified, very experienced and very successful. She has assisted many San Diego law practices and professionals. Several years ago, our discussions had been about my stationary, how to create a static website, what business sectors I should focus on, target audiences, whether I should host events, etc. Our recent discussions are completely different. They focus on social media, LinkedIn, Facebook, Twitter, search engine optimization, Google algorithms, digital media, content-spamming, social media protocol, something called The Cluetrain Manifesto, . . All very interesting stuff. Yet, it was not the substance of these discussions that struck me. Rather, it was simply the fact that we are having them. If this highly qualified, very experienced, very successful marketing expert is talking about this stuff, this is the real deal.
For further proof, one need only look around. Large corporations, major news entities, magazines, law firms, even the White House, are all on Facebook and Twitter. Why is that?
There has been a big shift. The rules have changed. Social media is a force to be reckoned with. And attorneys ignore it at their peril. Do you agree? Social media also presents great opportunity. Computers, legal software, emails, cell phones, cable/T1 internet access, online research, websites, smart phones, the shift from paper to digital, texting . . these things are “great equalizers”. Now, smaller firms can compete for bigger and more complex cases that once only went to larger firms with enough bandwidth and personnel. Social media is leveling the playing field even more, offsetting the marketing power of large firms with big budgets. What do you think?
Next time, I’ll comment about perceived ethical dangers of this shift to social media.