Allocatur

Lunch Orders!

The Wall Street Journal law blog reports orders made by Judge Pendleton Gaines in a patent case, on an application by the plaintiff's lawyer to compel the defendant to lunch with him.  The judgement makes very entertaining reading.

Not only did His Honour order the lawyers to lunch together, he set out clear directions on how and when lunch was to take place including:

• Location - specifying suitable restaurants
• Timing - to take into account that the Plaintiff's counsel has a "penchant for taking extended cruises during the summer months"
• How the cost of the lunch will be apportioned, and that a 20% tip should be applied to the bill
• The issues to be discussed.

His Honour suggested that discussions occur after the lawyers had eaten noting "the temperaments of the Court's children always improved after a meal".

A far more interesting way to resolve an interlocutory application than a self executing order!

10 Ways to use Email Well

Much of my job involves reviewing law firm files and it amazes me how many people treat emails as a form of informal chit-chat.  I have previously posted on the possibility of defaming a client in an email, but there are some other important issues involving email security.  The June Law Practice magazine from Law Practice Section of the American Bar Association lists a number of "The Dumb Things Lawyers do with Their Emails".  Some of these may seem pretty basic, but I see them in emails on a regular basis.

1. Check the spelling and grammar.
2. Remember email lives forever.
   - and is discoverable in a negligence action or dispute with the client, or in other relevant litigation.  As the article recommends, don't email in anger, and if you have something private to say, say it personally.
3. Look carefully at the recipient name before you hit send.
   Send that advice on liability to the opposing lawyer rather than the client, and then phone your PI insurer.
4. Remember that you have a BCC field
   Sending a mass email without using the BCC field can seriously annoy recipients who didn't want their email address disclosed to all and sundry.
5. Don't send out meta data unless you intend to.
   Many Australian lawyers don't even know what meta data is, let alone how it can be used.  Meta data can the date the document was created, disclose the author, the number and date of revisions, and possibly revisions that have been made.
6. Email can be a great marketing tool.
   There are some great sites with classy or amusing (and PC) ecards to send to client for birthdays, thanks and the like.  Many firms use email very effectively to send email newsletters and practice updates.  But make it easy for a recipient to remove themselves from the mailing list and be vigilant in doing so if a request is made.  In any event, in Australia, you will also need the client's authority to send mass emails.

I might add a few of my own.

1. Limit the number of attachments you send with a single email.  There are many systems which will block large files.
2. Remember to use the receive and read flags judiciously, but where you absolutely need to ensure the email is received.
3. Never commit to email your personal opinion about another person - unless it is unreservedly positive.
4. Personal email should be on your personal email account, not on your business email system

.Email is a wonderful tool as long as you are alert to the dangers!

It's a Ship not a Boat.

When I was a very young lawyer working for an exporter who had a number of claims against a shipping company which had not completed delivery of goods, I was brought up short when I referred to one of the shipments being moved off the "boat". My client was very quick to tell me a boat was a very small vessel and all his goods were sent by ships. The tone of voice made it very clear I needed to learn about my client's business and using the correct terminology was part of that.

I was reminded of this when I read Tom Collin's post at MorePartnerIncome on what it actually means for an outside lawyer to understand their client's business. As Tom succintly puts it:

It is not about how competent you are. You are supposed to be competent. It is about your “bedside manner”. You are in the service business. You happen to be in the lawyering service business.
If you want to retain and grow your relationship, you have to invest in understanding the Client’s purpose, its goals, its culture, the issues it faces, and even its “words”.

Respondents to the Harris Cost Lawyer/Mahlab Recruitment survey of in-house counsel indicated that top ranking criteria in choosing an external law firm was understanding business objectives and planning strategies accordingly.

It is the vary exceptional lawyer who can rely on their competence only. And even then, competence only goes so far. It must be applied with the client's particular business interests and issues in mind to be most beneficial.

So take the time to learn your client's business.

Tonsillitis and Legalese

My 8 year old daughter had her tonsils out last week. In the recovery room afterwards, the very helpful anaesthetist began explaining pain control. He told me how much paracetemol per kg was appropriate but the dosage and frequency depended on the no of mgs of paracetmol per ml in the particular product I would be using. Standing with my daughter, waiting for her to come round, with no pen or paper, I took very little in. But rather than telling the doctor that I was unlikely to remember what he was telling me, I kept quite, and found myself phoning the surgeon the following day asking her to simply tell me how many mls of medicine I should be giving and how often.

My brother-in-law pediatrician once told me that when he has to break bad news to parents, he puts it in writing to give to them to read again after their initial meeting. He also arranges an further time for them to come back to him to discuss all the questions they will undoubtedly have after the news sinks in. Doctors are taught that, when the news is bad, a patient will only take in about 20% of what they are told .

It made me think, we are in a similar position as lawyers. It is too easy to speak in "legalese" that we take for granted and expect everyone to understand. In being risk adverse, we can try to cover off all possible options and simply end up overwhelming the client.

We need to be careful that the lack of questions on the part of the client is not the result of them :

• Being totaling overwhelmed by the information given
• Not knowing where to start
• Not wanting to appear ignorant

Be like the doctor - break the information up into small chunks, use simple language, put it in writing, and, in appropriate circumstances, arrange a follow up meeting.

Billing Ethics - Do you pass the Quiz?

The Wall Street Journal Law Blog recently ran a quiz on billing based on a hypothetical posed by the American Bar Association. The question posed by the ABA was:

You are taking a two hour plane trip from Chicago to New York to conduct a deposition in a matter involving client A. While on the plane, you review materials for a brief you will be filing for client B the following week. You normally bill clients for your time spent traveling on their behalf.
Can you bill clients A and B for two hours each for a total of 4 hours?

What would you do?
Many of the Wall Street Journal respondees got it wrong. The ABA ethical opinion (consistent with the Australian position) is that it is unethical to double bill. The travel time billed is to cover "loss of opportunity", and if the lawyer does other work in this time, there is no opportunity lost.

The dilemma posed demonstrates one of the difficulties of hourly billing. Both the travel (and associated inconvenience) and the work performed during the travel time, provide value to the respective clients. An alternative billing arrangment whereby a fixed fee or fee for value is agreed may help avoid this problem.