Allocatur

Perfection is an aspiration not a goal

Perfection is an aspiration not a goal - should be a standard direction for many clients to their lawyers. Yet many lawyers, particularly young lawyers would not understand what it means.  To put it another way, "you don't need a Rolls-Royce when a bicycle will do", a quote from Rio Tinto's General Counsel.

It's all about proportionality - whilst in a perfect world, you would interview every potential witness, review every document, not matter how limited the relevance, and conduct endless interlocutory applications to compel the other party to also produce every shred of evidence, it is a rare matter where this level of work is proportional to the the issues involved.

In Australia, this statement is also now the mantra of the judicial system.  Judges and other judicial administrators have recognised that the system cannot support a perfect world.  Courts do not have the resources to allow every case to be run as the "perfect" case.  Discovery is becoming so enormous, that judges must intervene and limit the categories of documents to be produced.  In the Federal Court, the "rocket docket" recognises that parties can't have unlimited time to get their acts together in compiling and examining evidence.  The combined goals of ensuring parties get a fair hearing, whilst also ensuring disputes are finalised in a speedy fashion, mean that no case will be conducted as the perfect case.

So, it's a matter of focusing on what it most important and for clients, on where there money is best spent. Unless you plan how you are going to conduct the matter, and therefore what work you will focus on, you are in danger of doing the following:

• Reinventing the wheel (a recent example - I was asked to advise on cost orders to be sought, and pointed out that I had given exactly the same advice, on the same matter, about 18 months ago)
• Chasing rabbits down burrows but not the rabbit who is the target (example - researching a point of law that is not in issue)
• Finding the weakness in the evidence or the law too close to trial and only after very considerable costs have been incurred  

Case planning and early case assessment, when undertaken which a clear understanding of what the client sees as necessary for the case, are what is required. 

Jim Calloway recommended Allocatur

I am incredibly honoured that Jim Calloway has recommended this blog to readers of his Law PracticeTips Blog.  Jim is co-author of the book Winning Alternatives to the Billable Hour (2nd ed.) (2002 ABA.),  He is the Director of the Oklahoma Bar Association's Management Assistance Program and a member of the Council of the ABA's Law Practice Management Section and chair of its Practice Management Advisors Committee.

In other words, he is a guru on law practice management which is why I a so honoured that he recommends this blog!

Jim's blog is on my list of "must reads" as are his articles in the ABA Law Practice Management Journal, to which I subscribe.  Whilst there are many differences in the practice of law in Australia and the US, including fee arrangement restrictions on Australian lawyers that don't apply to many US lawyers, the trends in the US often eventuate here.  And no matter where you practice, Jim's commonsense approach to client service is relevant. 

For those of you interested in non-billable fee arrangements, Winning Alternatives to the Billable Hour is must and can be purchased from the ABA bookshop or Amazon and through selected sources in Australia (I believe the LIV bookshop has copies).  I have both first and second editions and they are an important resource.

Thanks Jim!

Money is Money - a lesson for lawyers

When I was a very new lawyer I was amazed by the reaction of a commercial client when the firm I was working with had a great win for him in a difficult piece of litigation.  He was less than thrilled and I couldn't understand why.  He then explained that he had spent $200,000 in recovering $250,000, it had taken three years, and he wasn't certain that the defendant would be able to pay.  He did not see this as a "win".  "Money is money" he told me.  "Lawyers seem to think their fees are somehow different to any other expense my company incurs - yet in the end it all comes off my bottom line".

An article in Law.Com In-house Counsel illustrates this point well and highlights the different focus taken by business people and lawyers.

Eric J Hilton, vice president, general counsel and corporate secretary for construction company H.J. Russell & Co, is quoted as saying
"The worst thing in the world is to get to the end of the matter and be over budget. Then it's not a good result. You may think you've done a great job, but you actually have lost in the eyes of the clients."

The article also refers to a recent survey by the American Association of Corporate Counsel with Serengeti Law.  This annual survey shows a trend to more proactive control of legal spend including use of budgets, closer monitoring of spend and what is outsourced, review of firms used, negotiated rates and use of technology to track spend.

Over the next few posts, I will review the principle techniques for managing legal spend and the pros and cons of each. 

Email - Does it have You Under its Thumb?

Email and its immediacy has created a whole new world for lawyers - and a big dilemma.  Much of the work we do requires intense concentration and periods of time without interruption.  Too many lawyers I know (self included) solve this problem by working early in the morning or late into the evening. 

How many of us have days where we really feel productive?
We are more likely to end the day feeling that we have taken two steps forward and three steps backward. A New Scientist article reports findings on interruptions - that on average a worker is interrupted every 3 minutes, and it then takes 2 different tasks and 23 minutes to return to the original task.  It's possible to close the door and divert or turn off your phone, but how do you control emails.

10 tips for controlling Emails

1. When you are initially retained, discuss the client's expectations regarding email.  Explain that there are times when you are not able to respond immediately to emails - including when you are in conference with other clients, in court, or spending dedicated time to undertake work requiring concentration, such as drafting.  I explain to clients that having dedicated time to concentrate, results in my producing quality work more efficiently (and therefore cost effectively) and therefore is beneficial to them.  If something is urgent and needs immediate attention, I ask that the client telephone and explain the urgency, in which case they will receive immediate attention.
2. Turn off the email notification
   - whether it be a "beep", pop-up, or notification in your scrollbar.
3. Turn on your "out of office" notification if your email system has this feature.
4. Use rules to sort email into folders
5. Make clear to your other team members when CC is to be used. 
   If they would not normally give you a hard copy of the letter, why do you want a copy of the email?  Emails are a great way of micromanaging, but is this your preferred managment style?
6. Use shorthand in your address line - and encourage others to do the same
   for example - fyi (for your information), nrn (no response required), sro (short response only).
7. Get one major task out the way at the start of the day before you check you email  (courtesy of Julie Morgernstern via Lifehacker
8. Educate your direct reports and other team members to think before they write, and to edit emails.  Too often emails are a "stream of thought" - if you wouldn't put it in a letter, don't put it in an email.
9. Sometimes it is actually better to pick up the phone.  It may be more efficient to actually speak - rather than do the electronic chit chat.
10. You could adopt my husband's approach.  On returning from holidays to some hundreds of emails, he deleted them all without reading them, on the basis that if anything was really important,  the sender was likely to follow up in some way.  Of hundreds deleted, only 20 came back!

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!

Colour your Arguments?

A really interesting post by Matt Homan on a different way to prepare presentations and other marketing materials. Using colours to breakdown the material into facts, humour and audience participation makes you look at the presentation in a different light.

Using it to present an argument in court might lighten court proceedings a little - although the use of blue (representing audience participation) perhaps should be discouraged in a court room!

Are you a McDonalds or an Ikea delegator?

How do you delegate? A McDonalds delegator specifies in precise detail what is to be done and how - but not leaving room for the delegatee to take a different (and perhaps better) approach. The delegatee learns little from the exercise. The delegation is micromanaged, and the delegator spends too much time on the task. Therefore the delegation is inefficient.

The Ikea delegator gives instructions which may appear to have been interpreted from another language, and when the delegatee receives the instructions, some key "bits and pieces" may be missing. The delegatee has a general idea of what the end picture should be be, but can spend a great deal of time getting to an imperfect result. Given the time involved, the cost of the delegation may be significantly greater if the task had been undertaken only by the delegator. Also, the end result may not be satisfactory and the delegator may spend more time correcting or redoing the task. Again, the delegation is inefficient.

Tips for Effective Delegation

Consider the appropriate person to delegate to.
Except in exceptional circumstances, no more than one level of staff should be involved in the delegation. Avoid the partner delegating to the senior associate who delegates to the 1st year solicitor who delegates to the summer clerk. This results in enormous duplication of effort which cannot be recovered from the client.

Explain how the task fits into the whole picture.
Giving a brief background to the matter puts the
task in context and helps the person being given the task understand what is required.

Explain fully what is required – outcomes and expectations.
If you have a picture in mind of what the outcome will be, explain that. If a research project for example, will the outcome be a 20 page treatise or a 1 page summary? If necessary give guidance on how to do the task, particularly if there is one way which will be significantly more efficient – but don’t micromanage. Set out any deadline, and give pointers to any relevant resources. Most importantly in terms of costs, explain the expected outcome in terms of length of time to be expended, (is this a 5 hour job or a 1 hour job?).

Ask the person being given the task if they understand what they are expected to do.
If necessary, get them to tell you in their own words. Emphasis that they should come back for further direction or with questions if they are not clear.

Give feedback on completion of the task.
This is the only way of ensuring continuing improvement and development.

Will Your Law Firm Service Company have to Repay Clients?

Thanks to Simon Lewis (http://www.sinch.com.au/seminfor) for referring me to the release from the Queensland Legal Services Commissioner regarding charges for outlays and disbursements. Any markup on these will now have to be disclosed to clients and the client's consent obtained. This ruling also applies to service companies. In that instance, the law firm will be required to disclose the interest in the service company or other entity which is charging marked up disbursements.

Not only that but firms will need to refund markups from 1 July 2004 to avoid prosecution. It will be interesting to see if the ruling is followed up in other states. Certainly, in Victoria, markups on disbursements will not be recoverable other than in accordance with specific provision in a Cost Agreement. Some years ago the Law Institute of Victoria alerted practitioners to the difficulties of charging file management and file opening charges. The full release is at http://www.lsc.qld.gov.au/policies/guidelines.pdf