There is a lot of debate over whether the billable hour is dead, dying, or will be here to stay. I don’t really care about the billing method as long as I get paid. Yes, cynicism has taken hold of me regarding billing. I have a new appreciation of the “Goodfellas” scene where Jimmy Conway (Yes, I have the same name as a fictitious Irish/Italian mobster) repeatedly says “F#*& you pay me” to his “clients”. For the time being we have the billable hour, so let’s make the most of it. To make the most of the current situation (i.e. get paid) there is a certain art to billing. This post explores that art.

Bill Your Time

This is very simplistic, but you only get paid for things you actually bill to the client. If it doesn’t make it onto the bill, you won’t get paid for it. Remember that quick email you sent from your blackberry? Bill it. Remember that “two-second” question that turned into a ten minute diatribe? Bill it. Remember when your partner walked through your open office door and you had a twenty minute brainstorming session on litigation tactics? Bill it. Unless you express your time, you can’t get paid for it. Further, unless you describe all of your work, you client doesn’t understand all the value you are providing for the fee that you charge.

Writing the Bill – Express Your Value

If you had a problem with your washing machine, you might call a repairman and expect they would fix the problem and then bill you. But if when the bill arrived and it said “fixed washing machine – $500” you might question the propriety of that bill, especially if the repairman was only at your house for two tenths of an hour. Alternatively, the repairman’s bill could say “replaced faulty gizmo, re-connected pipes and stopped wife from yelling at husband because the problem was a broken machine and not husband’s user error” (fair disclosure – I may have had my washing machine recently fixed and received a nondescriptive bill). Wouldn’t you rather pay the more descriptive second bill? In the same way, our clients need to see the value in our services if they are going to understand them and want pay their bill (yes that is possible). The way to accomplish that is by expressively describing your efforts on the client’s behalf.

All of us have some standard phrases that we use in our bills – “preparation of legal authority,” “preparation of letter to client,” “representation at hearing”… While these are useful shorthand, they don’t really say anything substantive or show intrinsic value. Rather these boilerplate terms, especially after a client sees them few times, are bland and fail to express the value passed onto the client. One way to remedy this situation is to be more expressive. If you write a letter (remember: bill for it), describe the letter’s subject, e.g. “preparation of letter to client re: tax implications of sale of homestead.” Another example – if you write a brief in support of a motion for summary judgment, let’s pretend it takes three hours. If the bill says “preparation of motion for summary judgment – 3 hours – $750” your client probably has no idea what you have actually done, or why they are supposed to pay you $750. If the bill was instead three separate entries with descriptions, the client will understand exactly what you were doing for those three hours and why they are getting good value:

“5/1/12, preparation of legal research and authority regarding income tax and capital gains tax on homestead sale;

5/2/12, preparation of brief in support of motion for summary judgment – preparation of factual statement, exhibits, and affidavit of John Doe in support of summary judgment;

5/3/12, preparation of brief in support of motion for summary judgment – preparation of argument and apposite legal authority.”

Now the client can see you researched their legal problem, described the facts and prepared the associated documentation, and then argued their position.

Adding Value to Freebies

There are many lawyers that offer free initial consultations and do an occasional task without charging a client for it. But even these freebies should be added to a bill (remember: you don’t get credit for it if it never makes it onto a bill). When a client sees that they are getting something for free they will be shocked (lawyers give you something for free!!!???) and will also see more value in the bottom line charges. This is also a way to “under-promise, over-deliver” to better endear the client to you and encourage repeat business. Say for example you have a $1,000 bill for review and revision to a lease. If the client just sees a few hours of review of the contract, preparation of a memo to the client and legal research, they feel like you did exactly “sufficient” (remember getting grades in grammar school where you were too young to really get a letter grade and your parents were probably too overprotective and intense to face the prospect that their child was a B student, so teachers gave you letter grade euphemisms instead, i.e. poor, fair, satisfactory, and excellent?). Instead, you can get an “excellent” rating for doing the exact same work, in the exact same amount of time, for the exact same fee, as long as you describe yourself more fully. You can also show “freebies” on the bill, thereby getting credit from the client, if you looked at prior client files or form documents which saved you a ton of time. To do this include a notation on the bill explaining that you are passing that efficiency onto the client – “review of form file leases regarding right to reentry and termination, revision to client lease for statutory compliance.”

Other Benefits of Well-Written Bills

As with the washing machine repairman’s revamped bill, once you have a well written bill you are more likely to have a paying client. A client that sees hard work and efficiency is more likely to cut you a check. They are also more likely to bring repeat business and make referrals when they feel they are getting good service for good value.

Bad briefing loses cases and clients. Sometimes a brief is so bad that its badness, by itself, will be grounds for dismissal.

For a New York lawyer, bad brief writing was among the transgressions that resulted in a 2-year suspension of his license. According to the state court opinion, the lawyer’s “shockingly poor” briefs were “replete with defects such as incorrect clients’ names, inclusion of irrelevant boilerplate, and reference to evidence that had not been submitted.”

What are some other ways to write a bad brief? Here are a few:

Wordiness:  A lengthy brief replete with irrelevant facts and inapposite legal doctrine is rarely helpful to the court. It is almost never a good idea to exceed the court’s word limit, especially by more than 4,000 words.

Overblown rhetoric: Be careful with hyperbole. One federal judge took a lawyer to task for overuse of phrases like “failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty.”

Grammatical errors: Everyone makes an occasional typo, but when the court compares your writing to that of a fourth grader, it is a safe bet that your brief was not persuasive.

Cutting and pasting: It may be okay to re-use parts of briefs (assuming you check the legal authority to make sure it is still valid), but it is pretty obvious when you cut and paste the facts from another case.

Questionable authority: It must have seemed like a good idea at the time, but it is hard to imagine what this attorney was thinking in using the movie The Hangover to frame his argument for a new trial (complete with an expletive-laden quote from Mike Tyson).

May 1st often marks the unofficial beginning of Spring and is also Law Day. President Dwight D. Eisenhower at the bequest of his legal counsel, also an American Bar Association president, designated May 1st as Law Day.

President Eisenhower proclaimed in 1958: “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law.”

What may have started as a counter message to cold war communism has developed into a day of civic engagement for lawyers. And no day celebrating law would be complete without legal text, right? Law Day is codified in the U.S. Code.

36 U.S.C. 113 states:

(a) Designation. \ May 1 is Law Day, U.S.A

(b) Purpose. \ Law Day, U.S.A., is a special day of celebration by the people of the United States

(1) in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and

(2) for the cultivation of the respect for law that is so vital to the democratic way of life.

(c) Proclamation. \ The President is requested to issue a proclamation \

(1) calling on all public officials to display the flag of the United States on all Government buildings on Law Day, U.S.A.; and

(2) inviting the people of the United States to observe Law Day, U.S.A., with appropriate ceremonies and in other appropriate ways, through public entities and private organizations and in schools and other suitable places.

Since its official adoption in 1961, Law Day has been used to educate youth about the law, to engage in pro-bono activities, and to celebrate legal organizations’ focus on justice. The ABA provides resources and a yearly theme. 2012′s theme is “No Courts, No Justice, No Freedom.”

The rule of law is vital to our society and lawyers play a vital role in preserving “the ideals of equality and justice under law.”

Happy Law Day everyone!

Are you doing anything special to celebrate? Comment below and share your contributions to Law Day.

Want more info? Head here.

Joseph Story

By Michael Goodwin

Joseph Story might be best known for authoring the Supreme Court’s opinion in U.S. v. The Amistad, the subject of Steven Spielberg’s 1997 movie (law geeks might also remember him as the author of Swift v. Tyson, which was later overruled by Erie Railroad Co. v. Tompkins). Justice Story was one of the preeminent legal minds of his day, serving simultaneously as a Supreme Court justice and a professor at Harvard Law School. In addition to his substantial contributions to law, Justice Story was also a poet, publishing a two-volume poem early in his legal career.

Justice Story’s time for poetry apparently waned as his legal career went on, but he did manage to put to verse his “Advice to a Young Lawyer,” which concludes as follows:

“Keep then, this first great precept ever near:

Short be your speech, your matter strong and clear,

Earnest your manner, warm and rich your style,

Severe in taste, yet full of grace all the while;

So that you may reach the loftiest heights of fame,

And leave, when life is past, a deathless name.”

You may not reach “the loftiest heights of fame” by following Justice Story’s advice, but it is probably a good start.

You can read the entire poem here.

Given their convenience, the popularity of the iPad and other computer tablets have grown dramatically.  Every time I walk into a coffee shop, a restaurant, a park, or anywhere else, it is not uncommon to observe a number of individuals carrying or using their tablets.  The ease, size and weight of these tablets just might sway you.

Tablets allow you the option to use an alternative interface to do your work on the go (or at home if you so desire).  You can use tablets with a VGA connector to put up presentations.  You could use tablets to work on Word documents, take notes, take depositions and communicate instantly with your office and assistant.

If you are inclined to use your tablet of choice to do your work on the go, there are a couple of steps you must keep in mind.

1. Make sure to password protect your tablet.  With the iPad, you can choose between a simple password (of 4 numbers), or a complex password (numbers and letters).  In order to password protect your iPad, go to Settings, then Password Lock.  Make sure the iPad cover Lock is turned on.
2. Make sure to encrypt your tablet when backing it up.  With the iPad, when you are syncing to your computer through iTunes, make sure to select the box that states your back ups will be encrypted in your computer.

Now that you are ready to start using your iPad for work, I have a narrowed a list of apps that I have found the most helpful.

Reference Apps

• Federal USC codes: 29 USC Labor Code, 28 USC Procedure, 29 CFR Federal Regulations, etc.  These legal reference apps are made by Tekk Innovations LLC, and I would suggest searching their apps to see if there is an app in your specific legal field.  These apps are a good way to keep the federal laws at your fingertips.  What is so great about these apps is that you can key search through them.  You can also email the text or print it right from the iPad.  These apps are regularly updated.  These are particularly handy if you do not have access to the internet and need to check a rule quickly.
• Litigator. What is great about this app is that you have instant access to the Federal rules and State/Local rules.  Once you have downloaded the app, you can select what State/Local rules will be in your short list (for ease of access).  For instance, in my short list I have the Minnesota District Court rules (local rules) and Minnesota State Civil rules.  The downside is that you have to pay for access to the State and Local rules.
• Black’s Law Dictionary.  The Black’s Law dictionary at your fingertips.  The pros of this app are that you can key search, that all words are linked to their definitions, and that it shows suggested related definitions.  A definite primer for law students and attorneys on the go.
• Deponent.  This app is great for making deposition outlines of questioning and keeping your exhibits organized.  The Deponent app can be linked to your dropbox, making the use of this app a real treat.
• WestLaw Next.  This app is for the attorneys on the go who want to look up cases and do research while out of their office.
• Lexis Advance.  This app is for the attorneys on the go who want to look up cases and do research while out of their office.
• Dropbox.  This certainly is the best app for lawyers out there.  With dropbox, you can securely store your documents and images, and pull them from another app, another computer, or share them with your staff.  And to top it off, this app is free.  The convenience of the dropbox app is bolstered by the fact that most all other apps out there can be linked to your dropbox account.

Office Tools

• iAnnotate PDF.  This app seems to have been made for attorneys that need to edit and sign PDFs on the go.  What I love about this app is the ease and convenience of it.  You can do a number of things with the PDF, including signing it, saving it as a new PDF, and emailing it out right away. I have personally tried different PDF apps, and I can certainly say this is the best PDF app out there.
• Audio Memos.  This app is for the attorneys who want to record a message and send it to office staff or other attorneys via email.  The app is very user-friendly.  You can record a message, edit the message, and decide who you want to share it with.  One of the features of this app that makes it worthwhile is that you can create groups, and then decide who you want to share the message with.  For instance, you could share it with your “Litigation group”, “Staff group”, or simply send it to yourself.  This app also gives you the option of auto-sending the recording as soon as you record it.
• Print n Share.  This app is for attorneys who love working from their iPads, and want to print something right away.  Generally, the iPad allows you to print to AirPrint compatible printers.  Also please note that most Print apps are only AirPrint compatible.  This app, Print n Share, is not!  If you do not have an AirPrint printer, this app will be great for you.  This app allows you to print from your iPad or iPhone to any wireless printer.  This app can print from websites, your email, PDFs, Office documents, images, and so on.
• GoodReader.  GoodReader is a nice general app that allows you to view different documents and PDFs in a very user-friendly format.
• DocsToGo and DocsToGo Premium.  DocsToGo is an app that specifically deals with viewing and editing Office documents, such as Word, Excel, PDF, and more.  With this app you may also create a new document.  The highlight of these apps are that you may sync your iPad or iPhone with a specified folder in your computer wirelessly.
• Numbers. Numbers is an app that creates spreadsheets with tables, charts, photos, and graphics.  Lawyers can use Numbers to keep track of expenses, damages, or keep track of statistics.  Users can open and edit xls sheets, and these documents are saved back as xls sheet without the loss of headers, footers, fonts, column widths, and so on.
• Keynote.  The Keynote app is used to create and edit presentations.  With Keynote, you may use animated charts and transitions.
• Pages.  The Pages app is a word processor for the iPad, iPhone, and iPod.  Using Pages, you can view and edit Pages documents, Microsoft Word, and plain text files.
• iThoughtsHD.  This is the perfect app for lawyers when brainstorming ideas and strategies.  This mind-mapping tool uses diagrams to link ideas via topic.  By using an organic and fluid method of organizing ideas, the lawyer can work with the arguments in a simpler and more effective way.  Personally, as a spatial thinker, seeing an abstract map of the ideas and how they connect, aids in the task of outlining your roadmap of strategies and arguments.  I highly recommend this app to lawyers and students.
• Penultimate.  Have you ever wanted to take notes on your iPad the same way you would take notes with a notepad?  Well, now you can.  Penultimate is an app that allows you to use your iPad as a note taker tablet.  With the help of a stylus pen (or your finger), you may take notes and keep them organized by folders.  Lawyers will benefit from this app when attending CLEs and jotting notes at interviews and meetings.
• CloudOn.  When it comes to working with a Microsoft Office document, this app is definitely the best. As an attorney it is important to be able to work on Word documents, make redactions, and send your edits to opposing counsel or other attorneys.  This app is certainly the closest you can get to working with Office in your computer.  Conveniently, this app is linked to your dropbox account and it is currently free at the App Store.
• Presentation Link.  As an attorney, you are often called to make presentations for CLEs or clients.  The current PowerPoint apps out there allow you to create presentations, which are limited in a way Presentation Link is not.  The main difference is that Presentation Link allows you to add videos and audio recordings to your presentation. A very nice way to wow your audience.
• iTeleport.  This app will help lawyers access their work or home computers through remote desktop.  With this app, you need to install the desktop version on your computer in order to create the gateway connection to your iPad.  It is good to note that if your law firm already offers a remote desktop connection, you do not need this app for your work computer – but would benefit instead from the Remote Desktop app.

Meeting Apps

• GoToMeeting
• WebEx
• Skype
• Join.me
• Fuze Meeting

Hardware

• Wireless keyboard (Apple) or a Bluetooth keyboard (Best Buy or Brookstone)
• VGA adapter (Apple)
• Pen Stylus

A lot of young lawyers are trying to make a name for themselves with the goal of becoming recognized in their community, become visible to other lawyers (and employers), and to gain a degree of respect and notoriety to attract business. One way lawyers of my generation seem to be tackling this feat is by starting blogs, or writing for blogs on their firm websites (or on JDs Rising). This is a great idea because so many clients use Google to find a lawyer if they don’t have a direct referral. Because of the way Google’s search results algorithm works, having an active blog will improve your Google search results position, meaning you become more visible to potential clients. Also, your active blog can create a buzz in local social circles regarding the information you provide in the blog itself. I have found blogging to be a rewarding marketing strategy and have a few tips from my experience.

Pick a noteworthy topic. A great way to start a blog post is to discuss an issue that resonates with others. During the opening days of the Republican Primary season, there was a lot of media and social media attention paid to what the candidates were proposing. During many of the Republican debates, Michelle Bachman and Rick Perry took to the practice of calling certain programs and government activities unconstitutional. As it turns out, the very things they called unconstitutional were specific powers granted to government in the Constitution, so I wrote a blog post explaining this.

Another idea, related to the first, is pick a niche or local story and run with it. If you work in a small town (Shakopee isn’t all that small anymore, especially since we were mentioned on SNL), or a have a niche market, you have to speak to the community that brings you your clients. For example, Shakopee experiences annual flooding in the spring which causes lots of traffic problems as well as home and business damage. Because flooding was a hot issue last spring, I wrote a blog post about homeowners and flood insurance policies explaining that homeowners polices lack of coverage for flooding, and people in susceptible areas were at risk.

Add a video or something “cool”. In the flood post, I found a neat calculator for flood damage costs and embedded it on the blog page. I have done similar things with YouTube videos about Man Law (the Miller Lite campaign), and about bankruptcy. The Man Law post wasn’t anything substantive – but it showed a lighter, more humorous, and more human quality – sometimes clients forget that their lawyer is actually a person too. With a catchy media device, you can capture attention – and in our media-hungry society – can spread your message far and wide if your blog post “goes viral.”

With less than 50 days remaining in my final semester of law school (but who’s counting?), I’ve been wondering about what things I could be doing to make the most of the time I have left.  Schmooze with professors?  Get to know career services staff?  Clean out my study carrel?

One thing I recently started doing is attending lots of CLEs.  Did you know most CLEs are free for law students?  There are lots of benefits to attending CLEs before you actually need them to maintain your law license.  For law students, CLEs are a great way to meet people in practice areas you’re interested in.  You can try your hand at “networking,” or, as I prefer to call it, “making friends.”  CLEs are also great ways to explore areas of the law that you’re not sure about, but think you might like.  For instance, I only recently discovered “Elder Law,” a practice area combining estate planning and disability law–and a rapidly growing legal services field.  I’ve since attended two Elder Law CLEs and learned that not only is it a fascinating topic, but the people are really nice!   And, as an added bonus, attending CLEs makes you look smart in front of other lawyers–or so one lawyer told me at a recent CLE.  I’m not sure if I looked smart or looked like a deer in headlights.

Which brings me to my next topic: Tips for Attending CLEs.

First, registration is a must. They make little name tags for you, and it would be embarrassing to show up and have to scrawl your name on a blank tag and then have your barely legible handiwork pinned to your lapel.  Also, some CLEs fill up fast, so register early.

Second, dress professionally. I’ve seen some people show up in jeans and t-shirts, but most wear more formal business attire.  I’d say, dress to impress and wear a suit.

Third, don’t be shy. A couple times I’ve been lucky enough to sit next to a chatty, outgoing type, but don’t count on it.  In my experience, more lawyers are introverts than extroverts.  If it’s early in the morning and the coffee hasn’t kicked in yet, many will be glued to their smartphones, eyes averted.  Don’t be afraid to strike up a conversation, and work on “networking” (“making friends”).

Which leads me to my fourth point, bring business cards. Not all law students seem to have these, but I think they’re a must.  And they cost practically nothing if you order them online.  (Google “free business cards”–it works!)

Where to find CLEs:

Minnesota State Bar Association sponsors many free or reduced cost CLEs for law students.  Also, students can join some Bar sections for free, which gets you into some CLEs for free.

Hennepin County Bar Association sometimes lets students in for free–you may need to call or email to find out if they have a reduced rate for students.

Minnesota CLE allows students to attend CLEs for free if the event is not full.  Call ahead the day before the CLE to find out if they have room.

The Career Services professionals at my law school definitely sang the praises of networking as a must for a successful career, especially for new lawyers.  And it’s advice that is almost certainly true — especially in a tight job market, of course employers start with people they know when hiring.  But to be honest, I don’t know any law students who enjoyed hearing that advice: folks who came to law school connected didn’t need the instruction, and folks who didn’t often had no idea where to start.

One potentially novel take on how to go about networking virtually is personal branding.  As Leah Eichler argues, “[w]hile entrepreneurs learn the value of branding quite quickly, it’s those working in a corporate environment, where too many profess to the same skill set, that the need for it becomes rapidly apparent.”  This, to me, seems especially applicable to lawyers, even if a law firm or government office isn’t precisely a corporate environment.  A LOT of folks graduate from law school with similar skills – reading, writing, legal research.  So how to stand out?

I agree the answer isn’t a type of personal branding that’s “just a fancy way of saying you regularly update every social media site under the sun.”  I do think it means having a useful LinkedIn page that contains updated and relevant information.  I think it also means following up with people you do meet, even if those people may not be immediately relevant to your career goals.  For example, I went to an event at my law school a couple of weeks ago.  I was really impressed that one of them–who I had met before and of whom I have a generally good impression–took the time to connect with me following our meeting.  Do I have anything to offer her career-wise right now?  I doubt it.  Do I think it matters to establish a network now that might serve you later?  I do.

Eichler is clear, though, that a LinkedIn or Twitter account is not in and of itself a personal brand.  Instead, “the term refers to finding your ultimate value proposition and ensuring that you convey that story in all facets of your work and public life.”  And that’s where I think the hard work is, and something that especially new lawyers should spend time thinking about.

What do you think?  Do you have a personal brand?  How do you differentiate yourself in a market with lots of new lawyers with similar skills?

Tell the judge?

Call her to spread the news as “friends”?

Send a professional email letting “counsel” know that you are in receipt of their motion documents?

Do nothing until you happen to meet in court or over the phone?

I opted for a personal email and received a response loaded with question marks and exclamation points seconds after I hit the send button. We were both excited but unsure how to proceed. It was a bit like meeting an ex and telling them you are now with somebody else and really happy. Their response: ME TOO!!!!

A few days later, we discussed our ostensibly precarious position over the phone.

“Do you think we have to disclose this?” she asked.

“Disclose what? That we were friends in law school?”

“Opposing counsel would have a fit if they knew.”

“I’m a law clerk. You are a junior associate. And frankly, to use a lame legal term, we are strange bedfellows. Our roots to rural Minnesota aside, we have nothing in common.”

“True”

“I’ll look for your motion, I already have opposing counsel’s.”

“OK”

“TTYL”

“Bye”

So it began. As the junior associate on the matter, my friend was charged with handling such mundanities as calling the court, and we spoke often.  The formality of these conversations grew in direct proportion to the proximity of the summary judgment motion hearing. The closer to the hearing, the more formal, that is to say, awkward, things became.

As a clerk to an outstate judge, I met the local bar through work. The progression from professional colleague to friend occurred much easier than the converse. I am now hunting, fishing, and social buddies with several local counsel, and the transition from the courtroom to ducks, walleye, and beer was a breeze.

Prior to the hearing, I questioned whether this transition from the informalities of a law school friendship to attorneys with different professional duties was really all that different from my experience with area counsel. My impartiality wasn’t an issue, and neither was my friend’s expectation of any favorable treatment. I realized that prudence, more than anything else, dictated the nature of our interactions and we were simply discovering how to best avoid the appearance of a non-existent impropriety.

When we finally met, it was as friends and professionals. We exchanged a formal greeting accompanied by jocular smirks, the meaning of which was clear: great to see you, good luck, and if you screw this up, I’m going to give you hell. After the hearing we nodded at each other from afar. I left with the judge and she left with her client and the partner.

Had she been able to stick around, I’m sure we would have ventured to a local watering hole to talk about our jobs, trade updates on former classmates, and endlessly debate all the topics we disagree on. If opposing counsel showed up (a common occurrence here), I’d invite them to join us as well. And when it came time to pay for the bill, we’d each pick up our own tabs as friends, without benefits.

Feel free to stop by for a beer, something to eat or to just say hello.