In law school, I got up early in the morning, completed my reading, and then had time to think about and discuss each day’s homework in the afternoon. I believed that having downtime to process the material helped me digest it. During exams, I still got up early — I outlined materials in the morning and took practice exams with my study group in the afternoon. My best thinking and studying occurred in the morning, and I designed my schedule around my body’s clock.

After I summered at a big law firm, my rigid formula (cognitive work in the morning; processing in the afternoon) seemed unlikely to translate to law firm life. At my Washington, D.C., law firm, folks rolled in around 9 a.m. and many stayed until 10 p.m. — several hours past my bedtime. Face time was important, but I knew this schedule wouldn’t work for me.

I also continued to find that some of my best insights occurred when I left something alone for a while. After working on a brief all day, leaving it for an evening often produced new insight the next morning. I would return to my desk with a new idea for organization or a fresh legal argument. How to capture these moments as part of a billable hour system? Was I doomed? I signed up for a two-year clerkship in Minnesota grateful for the guaranteed reprieve. But I did return to law firm life, and I found ways to accept and work within the billable hour’s confines the second time around.

Your schedule, your body clock

I still schedule thinking for the early morning hours. If I need to write a brief or research a complicated area of the law, my focus is best between the hours of 6 a.m. and 10 a.m. After that, I can keep going, but I notice that I’m not as fast when working off-peak hours (of course that may also be a result of the business day picking up — from 6 a.m. to 8 a.m., nobody sends you emails.) And research confirms my observations. Chronobiologist Dr. Gerard Kennedy of Melbourne’s Victoria University notes that “Adrenaline and cortisol, the stress hormones, are released by the adrenal glands to jump-start your day.” After thinking about a problem on my drive to work, I arrive eager to jump in and solve the issues.

I try to schedule meetings for the afternoons when I won’t interrupt my key thinking time. If I have to work in the evening, I make sure that caffeine is available. All of these accommodations can be accomplished within the billable hour’s constraints.

What billable hour misses

My biggest complaint about the billable hour? It doesn’t capture why people hire attorneys. I would hire any of my colleagues in light of their experiences, problem-solving abilities and creative thought processes — and, the amount of time that any colleague would spend on my case would have some, but not much, correlation with these traits. Although the legal profession typically charges more per hour for experience, we can’t measure moments of insight and latent processing. I’ve come to accept this fact. When I think of the billable hour as simply a measure of time at work, and let go of the fact that it can’t capture intangibles, I achieve peace.

The billable hour is quantitative and provides a client with knowledge as to what work is being done on their case and when. It may, in fact, be better to provide a faulty quantitative measure than to attempt constructing a faulty qualitative measure — the latter would likely be incomprehensible and subject to some raised eyebrows (Really? You’re charging me extra because you had a Eureka! moment at 2 a.m.?)

Look for a better way

Numerous articles proclaim the imminent demise of the billable hour. Of late, the trendy pieces discuss alternative fee arrangements and posit that the billable hour will go the way of the Tasmanian tiger. But alternative fee arrangements are not right for every case. Until the legal profession can offer clients a better billing system for every case, I believe the billable hour is here to stay.

And what would our alternative system look like? In my ideal universe, we would want a system that rewarded efficiency and creativity. I would want to pay a lawyer for thinking about my case before acting. I don’t know, however, how to measure these intangibles. For now, I’ll simply note that I spent 1.3 hours at my desk drafting this article … but I thought about what I wanted to say all weekend.

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

There is a disconcerting trend, which may open up your client of liability floods.  This issue, which has been everlasting, is the issue of misclassification of workers.  It is worrisome for employers, who may face an increase auditing from government agencies.  It is preoccupying for workers who have been misclassified – and may be forced to use the court system to enforce their rights.

So why does it matter what your classification is?  Because the rights you are afforded to change.  Likewise, the liability of an employer is significantly increased.  In other words, knowing where you stand allows you to better enforce your rights or the rights of your client.

In fact, according to the Federal Judicial Center, wage-and-hour lawsuits in federal courts have increased by 10% (April 1, 2012 to March 31, 2013).  (Law.com article).  There were 7,764 federal wage-and-hour lawsuits from April 1, 2012 to March 31,2013 compared to 7,064 lawsuits filed in the previous reporting year.  Id.  (see graph at Law.com article).  For these reasons, it is important to correct any misclassification and avoid overloading the court system.

The issue of misclassification is a significant problem.  According to the U.S. Census Bureau 2010 Report, there were around 10.3 million independent contractors.  A 2007 analysis by the federal Government Accountability Office estimates that tax collectors lose more than 2.7 billion as a result of independent contractor misclassification.

Recently, Minnesota Lawyer published an article (subscription required) bringing attention to this very issue.  Minnesota Lawyer reported that IRS and Department of Labor auditing have increased.

Misclassification leads to liability for lawsuits and collective actions.  In addition, in in 2010, individuals (not corporations, limited liability companies, or partnerships) who are independent contractors in the construction industry are required to obtain an Independent Contractor Exemption Certificate (2-year pilot project) from the Minnesota Department of Labor and Industry.

The rub is how can you know?  Minnesota case law provides questions you must ask yourself.  Please note that even though the bullet point test is listed, you should consult Minnesota case law for interpretation of these definitions and questions.

The factors test differs depending who is defining the classification.  For instance, the IRS has 20 factors within 3 categories that it looks at.  Under the National Labor Relations Act, it is important to determine the classification of the worker to determine if the worker is covered under the Act.

So what about Minnesota?  In Minnesota, it doesn’t matter what you call it.  In order to determine the classification, you have to look at the facts.  Minnesota Rules generally provide guidance as to how to determine the proper classification.  (Minn. Rules 5224.0330; 5224.0340; see also Minn. Rule chapter 5224). The five identified factors are:

1. Does the individual have the right to control the means and manner of performance?
2. May the company discharge the worker without incurring liability?
3. How is the individual paid?
4. Does the individual furnish his own materials and tools?
5. Who has control over the premises where the services are provided?

What if I am an Employee?

As an employee, Minnesota law covers you significantly.  As I have perused the various states there are, it seems to me that Minnesota provides significant guidance to your rights.

These types of rights (Federal and Minnesota) cover a myriad of topics, such as: Pay (minimum and overtime), workers’ insurance, rights in the workplace, and rights involving separation of employment.  It is important to add that being an employee brings about certain actions, such as welfare and pension benefits if these are provided to you, and taxes.  For all of these topics, you should seek legal representation and this article is not meant to be legal advice.

The Fair Labor Standards Act (FLSA), 29 USC 206, 207, and by Minnesota Fair Labor Standards Act (MFLSA), Minn. Stat. 177.24, 177.25 cover the issues of pay.  Violation of these provisions comes with, for instance, liquidated damages (29 USC 216(b); Minn. Stat. 177.27), civil penalties (Minn. Stat. 177.32; see also Braun v. Wal-Mart, 19-CO-01-9790 (Minn. Dist. Ct. June 30, 2008)), attorney fees and costs (Minn. Stat. 177.27), and appropriate relief (Minn. Stat. 177.27).

For instance, Minnesota Statutes require minimum wage of $6.15 an hour for a large employer and $5.25 for a small employer.  Minn. Stat. 177.24.  Minnesota Legislature might be looking into raising the minimum wage (Minn Post article dated 4/23/13).  Under federal law, the minimum wage is $7.25 an hour.  29 USC 206.  In addition, Minnesota Statutes provide for overtime pay at a rate of 1 ½ for hours worked in excess of 48 hours in a workweek.  Minn. Stat. 177.25.  Federal statutes provide overtime at a rate of 1 ½ for hours worked in excess of 40 hours in a workweek.  29 USC 207.  It is also important to note that a collective bargaining agreement might change the rate of pay.  See Minn. Stat. 177.35; 29 USC 218.

Further, Minnesota law discusses payment in the case of separation of employment, either by discharge (Minn. Stat. 181.11) or voluntary termination (Minn. Stat. 181.14).  Violations of these provisions provides the following remedies: civil penalties, damages, compensatory damages, injunctive relief, attorney fees, costs, and other appropriate relief.  Minn. Stat. 181.171.  Minnesota statutes generally provide:

• If the employee is discharged, then the employee must be paid within 24 hours.  (Minn. Stat. 181.11).
• If the employee quits or resigns, the employer shall pay not later than the first regularly scheduled pay day following the final day of employment, unless subject to a collective bargaining agreement with a different provision.  (Minn. Stat. 181.14).  If the first regularly scheduled payday is less than 5 calendar days following the employee’s final day, then full payment shall be made within 20 calendar days.  (Minn. Stat. 181.14).
• If the employee was entrusted with the collection, disbursement or handling of money or property, then the employer shall have 10 calendar days after the termination of employment to audit and adjust the accounts before paying the wages or commissions (Minn. Stat. 181.14, subd. 4).

It is also important to note that there are other liability concerns for employers when a misclassification occurs.  For instance, Minnesota worker’s compensation law provides that employers must pay for workers’ compensation for employees.  Minn. Stat. 176.021.  There are other concerns regarding benefits in welfare and pension plans, as well as tax liability.

What if I am an Independent Contractor?

Unfortunately, there aren’t a lot of protections for independent contractors.  As stated above, independent contractors must obtained a certificate through the Minnesota Department of Labor.  There are also potential issues regarding taxes when a misclassification occurs.

An independent contractor is not an employee.  Minn. Rule 5200.0221.  If an employee is an independent contractor as a commission salesperson then Minnesota law provides they should generally be paid promptly (Minn. Stat. 181.145, sub. 2).  The statute has further language of prompt payment depending on when the separation of employment occurred and whether there was written notice.

What steps should I be on the lookout on behalf of my client?

1. Do not assume that an individual is an independent contractor simply because a contract says so.

2. Explain the risks of misclassification to your client (if employer).

3. Explain the rights to your client (if employee or independent contractor).

4. Go through the list of independent contractor and employee tests to determine the classification of an individual.  Keep in mind, however, that depending on the legal issue different tests may be used.  For instance, these issues might come up in the employment wage and hour context, but they may also come up in discrimination in employment, IRS context, and the National Labor Relations Act context, etc.

5. Immediately take steps to correct any inadvertent (or intentional) mistakes.  Similarly, you may want to advise the corporation of their classification mistake and seek appropriate relief for your client.

This article is not intended to provide any legal advice.  This article has been published for information purposes only.

Several junior attorneys at our firm (myself included) hosted a question-and-answer session for the brand new folks. The newbies asked lots of questions, and many of their questions (perhaps not surprisingly) mirrored my own former anxieties. This month, a new crop of attorneys are graduating from law school and joining firms across the Twin Cities. Although I still don’t have answers to several of these questions, it seems helpful to share the most oft-repeated concerns raised by my new attorney friends and colleagues.

What do I do if I’m not busy?

We worry when we are busy and we worry when we aren’t. New attorneys, eager to prove their mettle, can become particularly panicked when faced with downtime (perhaps this is a post-recession phenomenon). When I’m not that busy, I’ve learned to let people know that I have capacity and then engage in activities that will help my practice and firm over the long-term.

For me, these activities have included taking on a pro bono case, writing articles, becoming involved with outside legal organizations, and volunteering to teach CLEs. I recommend, however, avoiding taking on more than one extra-curricular activity at a time. When the next case comes through the door, you may be kicking yourself for your earlier enthusiasm.

When do I tell people that I am too busy?

This is one of those questions with which I still struggle. When I first started practicing, I measured my workload daily. If I was busy on any particular day, I assumed I was too busy to take on more. If I had free time during a day, I thought “great, I can assume something else.”

I had no understanding of the ebb and flow of litigation. I didn’t know that a case entering the discovery phase was about to explode or that all my work on a settlement agreement would result in some free time. The best advice that I received on this point was to offer senior folks a summary of my current workload — that way, more experienced attorneys could gauge whether my workload seemed reasonable or not.

When a partner asks for a project, but doesn’t give a deadline, how much time do I have?

The answer to this question becomes easier the more you have worked with a particular partner and figured out his or her preferences. I asked a colleague this very question only a few weeks after starting at the firm, however, and his answer remains my gospel. He advised, “Why don’t you write the partner and say, ‘I plan to complete the project by x date, will that work for you?’”

A sensible answer that did not leave me worrying whether too much time had passed.

What happens if I have a personal conflict with a hearing, meeting, weekend assignment, etc.?

As a new attorney, I was particularly loath to turn down any opportunity. That said, every once in a while, a personal conflict arises. Do you cancel your vacation? Your doctor’s appointment? To prevent double-booking, I’ve learned to put every appointment on my calendar — this way my colleagues can check my calendar before scheduling a meeting. If an important hearing or deposition does get scheduled during a personal conflict, I conduct my own balancing test (how easy is it to change my personal calendar vs. the work conflict) and then decide whether to approach the partner with my conflict.

When approaching someone with a conflict, I try to have a potential solution in mind so that I don’t just create problems — perhaps a colleague could cover the work event; the work event could be rescheduled; or, in an emergency, I could volunteer to skip the personal obligation. Communication on this one is key — yet it’s so easy to let embarrassment about raising the issue prevent this discussion from occurring.

What happens if I give a partner a project and I get no feedback?

When I completed my first assignment at my new firm, I reread the memo multiple times, reread my email cover memo several times, and then took a deep breath and hit send. After sending a piece of work into the void, I would worry as to its reception until I heard back from the partner that it was helpful, raised additional concerns, etc. I think it’s easy for senior folks to forget that, while they are busy and engaged on multiple cases, a new attorney may be sitting at his or her desk wondering whether a project was acceptable until they hear a response.

That said, a new attorney can always take matters into his or her own hands and, if a week goes by, can shoot a follow up email asking if any additional research is needed on the project.

What are the practices/proclivities/preferences of a particular senior partner?

Your colleagues are your best resource on this front. I quickly learned to ask my junior colleagues (and legal administrative assistants) for examples of memos, settlement agreements, letters, etc. that a particular partner liked or used.

These conversations also provide the opportunity to ask about partner preferences: one space or two after a period? What size font does the partner prefer?

Looking over the list of questions, one thing is clear: New attorneys are an eager bunch. We want to prove ourselves and participate meaningfully in our new positions. My own missteps as a new attorney most frequently stemmed from a failure to communicate and a fear of asking questions about deadlines and my workload. But it’s always difficult to ask questions when trying to establish competence.

My first day of kindergarten, my mother was horrified to discover that I hadn’t used the restroom all day because I had been embarrassed to ask where it was. I just assumed all the other kids knew, and I didn’t want to look like I didn’t know what was up. The next morning, my mother arranged for all the kids to get a tour of the classroom — it turns out lots of us didn’t know where the restroom was located. Once again, everything I need to know I learned in kindergarten — sometimes I just need some encouragement to ask the obvious questions.

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

There are a couple of things you should keep in mind when preparing for your interview:

1. Research the potential employer.
2. Prepare your answer to potential questions that might come up.
3. Prepare questions you might have about your potential employer.
4. Do a mock interview with a friend/family member.
5. Pick out your outfit in advance.
6. Don’t leave your confidence at home!

Doing research on your potential employer is very important.  Being in an interview is a two-way street.  You want to find out if this is a company or law firm that you want to work for.  It is true that in this environment, you might just want a job.  However, you need to keep in mind whether this is a company or law firm where you can see yourself grow.  After all, you don’t want to dread going to work.

Another reason why it is important to research the potential employer is because you want to anticipate the questions you might be asked.  Figuring out what their business is (e.g. family, transactional, international, employment, etc.), will tell you two things.

First, it will let you know how qualified are you for this position.  It will help you discern what relevant information you should provide to the potential employer.  After all, you only have around 30 minutes to state your case and sell yourself.

Second, it will help you predict what questions you would be asked.  If you are looking at immigration, you might be asked about your ability to work with a diverse community and your language skills.  If you are looking at transactional commercial law, you might be asked about your experience in business and commercial agreements.

A very important task when preparing for your interview is identifying the potential questions you might be asked on top of the questions identified previously.  The following is a list of potential questions.  Some of these questions’ purposes are to help you map what areas you want to focus on.

1. Tell me about yourself.
2. Why did you decide to apply for this position?
3. If you could choose any company to work for, where would you go?
4. Where do you see yourself in 5 years? 10 years?
5. What makes you a strong candidate for this position?
6. Would you be willing to take a salary cut?
7. What are your salary expectations?
8. What can you offer the company/law firm that other candidates can’t?
9. What can you contribute to this company/law firm?
10. How was your previous work/law school experience prepared you for this job?
11. If you were given a research task on _____, how would you go about doing this research?
12. Where else are you interviewing?
13. Why did you leave your last job?  Why were you laid off?  Why do you want to change jobs?
14. What have you been doing since your last job?
15. What do you like the most and least about your job?
16. What type of work environment do you prefer?
17. Tell me about the worst boss you ever had.
18. Tell me about the best boss you ever had.
19. What problems have you encountered at work.
20. What do you find are the most difficult decisions to make?
21. Describe your work style.
22. Do you prefer to work independently or on a team?
23. Give some examples of working independently.
24. Give some examples of teamwork.
25. Described a situation where you have stepped in and provided leadership towards reaching a goal.
26. What kind of problems do you deal with and what types of decisions do you make in your current/past employment?
27. What activities did you participate in law school or current/past employment that illustrate your leadership skills?
28. What are 4 strengths?
29. What are 4 weaknesses?
30. How do you handle stress and pressure?
31. What skills and traits contribute most to your success for this position?
32. What motivates you?
33. How would others describe you?
34. What achievements are you most proud of?
35. Describe a situation where you have worked as part of a team.  What was your role?
36. Describe a situation where you helped to resolve conflict.  What did you do, and why?
37. Describe a situation where you have researched and analyzed complex situations, and communicated and explained the results.  How did you approach the task?
38. What did you learn about how to do these kinds of tasks?

When discussing these questions, you want to keep in mind what you want to say.  In other words, think about what picture should you draw to help the potential employer understand why you are a great candidate for the position.  In addition, doing a dry run with a friend or family member will help you iron out the kinks of what you want to say and how you want to say it.  It goes without saying that being prepared will go miles at the interview.

Another important step in preparing for an interview is figuring out what questions you want to ask.  After all, as mentioned previously, the interview will help you figure out if this is a job you are interested in.  It is important to note that your questions will vary greatly depending on what job you are applying for.  Some of the following brief examples might apply in your situation.  Some of these questions might be answered through research.

A good place to start is to think about what about the work environment you want to know about.  For instance, how much supervision and feedback will you be provided?  Who will you be working with?  Will you be part of a small, medium, or large team?  How much travel is involved with your potential work?

You might be curious, for instance, about what your skills and duties will be.  What expectations will you have?  What percentage of time will be spend doing X work over Y work?

You might also be curious about opportunities for advancement.  Is there room to expand your expertise?  What leadership roles might you be provided with?

Lastly, don’t forget that your confidence will help you project yourself better.  At the interview, you want the focus to be on what you have to say.  And don’t forget to send out Thank You cards!

“Lean In” is an excellent primer on career ambition and tactical strategy for young lawyers, especially but not only female lawyers. We read a ton of advice on marketing, branding, building a client base and thinking long-term about career ambition, but oftentimes it feels (to me at least) that there is not a lot of practical advice on how to do that. “Lean In” contains 11 digestible chapters (read the footnotes!) on topics such as negotiating, family planning, career planning and relationships. Each chapter had anecdotes and statistical data that provided a good jump start for me to think personally about my own career.

The messages I got from the book that I really appreciated were these:

• It’s good to be ambitious.
• It’s good to be intentional and plan where you want your career to go.
• It’s good to have short-term and long-term goals, and to figure out how to best achieve them.
• It’s good to think in terms of ‘and’ instead of ‘or.’

Not all of the chapters were immediately personally relevant to me—my partner is an equal partner and it never occurred to me to do anything other than charge full steam ahead while pregnant (hence how I ended up with an almost 4-month-old baby on the first day of law school orientation)—but were fascinating to read regardless. Alana Bassin, a prominent Minneapolis attorney, echoed the importance of the book for women in these situations, and it read true to me as well. But each chapter gave me something to think about: sitting at the table, negotiating, mentorship, household and family planning, long-term career trajectories.

Sandberg characterizes “Lean In” as the beginning of a discussion, and has set up a website and circles to continue the conversation. This is where “Lean In” seems to me to have the most practical potential for young lawyers. Like many newly-graduated attorneys, I have a ton of friends and colleagues in similar career positions, and I love hearing about where they’re at or what their goals are or how work is going.  I also have actual work to do on a daily basis, and the occasional happy hour doesn’t always provide peer networking as much as I’d like. I love the idea of starting a “Lean In Circle,” or joining an existing one, to give me a group of peers to share tips and work through problems together. I’ve already begun the process of starting my own, and look forward to using the expert advice and materials provided to be intentional and thoughtful about my career.

The book is not without its drawbacks. From my perspective, there are three big ones.

1) I’m skeptical of the big-picture social revolution claims she makes in Chapter 11, where she argues that if there are more women in the top echelons of their respective professions both men and women will be convinced of the necessity of total professional equality for women. For one thing, I doubt that trickle-down feminism is any more effective than trickle-down economics. For another, one reason why privilege remains entrenched is because there are very real benefits to being privileged, and part of me really doubts that people with privilege (in the context of the book, men) will give that up without a fight. I think the book is read better as individual advice for career planning rather than as a social revolution in and of itself. In that vein, I highly enjoy that the book seems to be sparking salary negotiation because “Sheryl Sandberg Wants Me to Ask You for a Raise.”

2) The book is not for everyone. I counted, and there are exactly two references to same-sex partnerships or people in the entire book, and it’s unclear how a lot of her advice would necessarily apply in that circumstance. All forms of discrimination (racial, gender, sexual orientation) are somewhat conflated as “challenges” to be faced rather than overlapping and intersectional but sometimes distinct structural issues. The book also presumes that the C-suite or the partnership track is what everyone should want, when perhaps we should be reassessing overall whether that type of work culture is really helpful. Sandberg herself would caution that the book is designed to be read alongside calls for structural changes, and others have chimed in there as well.

3) I am planning on discussing this more in a future article, but Sandberg’s employment law advice—which is that employers should be less afraid of discussing family planning with their employees—seems potentially dangerous. I am not an employment lawyer, but there are reasons why asking those types of questions can be problematic; i.e., that they can be used as cover for discrimination.

That being said, the book is worth reading. “Lean In” has so much more to add than the now-countless articles written about it (many of which I  believe are worth reading as well). It gave me a list of other books to read, pointed me toward additional online resources, and was an excellent way, as a lawyer at the beginning of her career, to think about advancement and intentional goal setting. Is it perfect? No. But as a way to get started thinking about an intentional career, it’s a great one.

Image: Dreamstime

This past week, I attended a three-day CLE in another state. The CLE was fantastic, and I learned tons. That said, I found myself struggling at times to focus on the CLE instead of worrying about developments unfolding in the office. In the past, I have faced a similar struggle when traveling for work, spending a day at a deposition, or working with a client all day in preparation for trial. It’s hard to take vacation from a legal practice, but it is also hard to focus on one aspect of your practice without worrying about case developments in the other areas. As a junior attorney, I have a profound fear that people will simply assume that I am unresponsive when I cannot reply to emails in the moment. I have found, however, a few strategies to assuage my worries.

Let everyone know you’re out of the office

This past trip, I let everyone in my office know that I would be away for three days — and I mean everyone: the receptionist, the copy room, my legal assistant, and the individuals on my case teams. Even though I was working and checking my email during breaks, over lunch and in the evenings, I wanted my colleagues to know that I might not respond immediately to emails. This approach has its advantages; when a client emailed, my colleagues generously jumped in to respond in my absence. I found that a short out-of-office message can reinforce this message, reminding people of your absence once you are MIA.

Don’t read emails too quickly

At the end of the day, I am tempted to buzz through my emails quickly to ensure that no disasters have ensued. Speed reading can mean that I overlook key items or instructions buried in emails. I’ve found I can assure myself that there are no fires by undertaking a quick read-through, as long as I return to the beginning and reread to ensure that I catch all the fine details. (This approach is actually similar to the way that I read Harry Potter. Each time the book store released a new Potter book, I stayed up all night, desperate to find out what happened and who died. Once I knew the book’s secrets, I returned to the beginning for a more thorough read to ensure that I got, and enjoyed, all the juicy details.)

Delegate

Working off-campus forces me (in a good way) to rely upon others when I need to get work done. If your legal assistant knows you will be out of the office, she or he can:

• Format emails accordingly (sending word versions or dropping text into emails instead of sending links)

• Answer your phone and let people know that you will be unavailable for a bit as well as return calls

• File documents on your behalf (with a handy dandy electronic signature)

I also find myself relying on others on my case teams, including paralegals, when I am out of the office. Simply asking someone else to return a call or undertake some spot research means that I am not worrying about how to fit in legal work during my time focused on something else.

Be in the moment

When I have done all of the above, it is a lot easier to be in the moment in a CLE or deposition, focusing on the task at hand instead of worrying about office events.

To help focus, however, I also need to prevent distraction. First, I turn my phone buzzer off. Nothing is worse than hearing my phone’s little buzz and just sitting there thinking, “I wonder if that was opposing counsel rejecting my settlement offer, or maybe it was the court ruling on our motion.” Better to just throw the phone in a vault (or your briefcase) and wait until the next break to catch up.

I also refuse to set up my laptop. If there is a screen in front of me, I will be compelled to multitask. In law school, I remember looking around at everyone’s screen. Ostensibly we were all taking notes, but in reality people were shopping, playing video games and emailing.

New research confirms that humans are not designed to multitask. In fact, we’re terrible at it. Each time we switch between two activities, there is a cost. According to the American Psychological Association, this cost can “add up to large amounts when people switch repeatedly back and forth between tasks.” In other words, just reading my email at a CLE means I am effectively tracking neither my email nor the CLE. Reminding myself that multitaking is actually harmful helps me curb my twitchy thumbs when they want to check email.

It’s a lot of effort to focus on a single task and let office events unfold without peeking. But our jobs require us to focus, intensely at times, on single tasks. Setting myself up for success requires effort, but is well worth it.

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

Patent lookup, call services, online storage

In mid-February, the local tech scene was abuzz with news about a major partnership between coworking organization CoCo and the mighty Google, a driver of startup efforts thanks to its worldwide Google for Entrepreneurs initiative. The Mountain View, Calif.-based technology company has been eager to expand its reach into enterprises, becoming as ubiquitous for companies as it is for everyday users. In terms of development, it’s meeting that goal.

In honor of Google’s new level of participation in the Twin Cities, it’s worth a look at the many Google tools that can help businesses of every size. Here are top tools to consider when expanding your digital toolbox:

Google Patent Search: Although most law firms have access to patent databases, using Google as a backup can be helpful, particularly if an attorney is in transit and can’t tap into other patent services. Containing more than seven million U.S. patents, and located at www.google.com/patents, the site resembles the standard Google search interface for a nice measure of simplicity. Advanced search capability is a plus, considering the amount of patents available. For example, a search on “toothbrush” returned over 200,000 results, but searching on “toothbrush cover” delivered only about 500.

Google Analytics: Jonathan Freed, founder of Minneapolis-based Netbound Consulting, says that Google Analytics allows users to track and monitor Web traffic and ad campaigns. “It sharpens your online marketing efforts to a fine point,” he adds. The tool, built for enterprise usage, lets users measure social media programs, the effects of online content, and the impact of mobile technology, among other analytics. The Premium version delivers 24/7 technical support, but the standard analysis tools provide plenty of advice as well. “The insight you can gain with Analytics is simply awesome,” says Bill Pauling, co-founder of 400 Doors, a Minneapolis-based developer of real estate apps. “It gives us insight to where our site can improve and what’s working well, and helps us prioritize enhancements and adjustments.”

Google Voice: At 400 Doors, Google Voice is used to create a central hub for phone calls, Pauling states. Anyone at the company can make phone calls through a computer, with free domestic calls and affordably priced international calls. The free service provides PC-to-phone calling, as well as PC-to-PC voice and video calling, and features voicemail, free text messaging, conference calling and even transcription of voicemails into text format. “It’s a great idea that makes our business always accessible and portable,” says Pauling.

Google Drive: With so many people using Google Docs to create documents, having the ability to organize those files and share them is key, and Google Drive facilitates storage, collaboration, and access. “Creating and sharing office documents has never been cheaper, faster, or better,” says Freed. The first 5 GB of storage is free, and the next 25 GB starts at $2.49 per month, making it an affordable file-sharing option. Also helpful is the app’s synch function, which means a document changed in one location, like via a mobile device, will automatically be changed in other locations like on a PC or laptop.

Google Calendar: One of the company’s most popular apps, Google Calendar is free, and lets users share schedule with each other, access the app from a mobile device, and send out meeting invitations. Minneapolis-based social media consultant Angie Glotzbach says that although she doesn’t use the app as extensively as she could, it does help to keep her to-list in order, and sends her useful reminders about scheduled events and meetings. Most importantly, the app allows her better communication with her assistant, who works off-site, making a streamlined, digital-based relationship crucial for interactions. “My assistant is a geek about details and shares her Google calendar with me, which shows the blocks of time for clients and projects,” she says. “It works well for us.

Google Hangouts: One of the newest kids on Google’s block is Hangouts, which was used extensively at the recent CoCo partnership launch event. The video conferencing application allows up to 10 users to create a real-time meeting with each other, or for a user to stream content like a lecture or presentation to an unlimited number of users. Don Ball, a founding partner at CoCo, says the organization has been using Hangouts for all-staff meetings for a past few months, switching from a Skype-based system that they found problematic. “With Hangouts, we can still have the visual element of seeing each other, which is important for a distributed team,” he says. “The technology seems strong enough that we can all hear and see each other without any trouble.”

In general, trying to articulate all the advantages of Google and its tools is “akin to composing a haiku poem on the attributes and benefits of love,” says Freed. “Google’s ongoing efforts to make the Internet accessible to everyone has resulted in the creation of a myriad of web tools that will enhance your computing experience.”

Elizabeth Millard writes about technology. Formerly senior editor at ComputerUser, her work has appeared in Business 2.0, eWeek, Linux Magazine and TechNewsWorld.

Sticks and stones may break your bones, but a whine online can ruin your practice.

Negative reviews of lawyers may appear on Yelp, Superpages, ScamBook, Ripoff Report, Avvo.com (a lawyer-rating website) and other ratings sites. Clients may also blog about their complaints or create a Facebook page to circulate their complaints through social media. The federal Communications Decency Act of 1996 protects Internet service providers from liability for posting defamatory comments.

How might this affect lawyers? A nasty online reviewer might complain about a lawyer’s personality, about how a lawyer did not return calls, take much interest in their case or completely blew it. Others launch personal, obscene or threatening attacks online. Anonymous posts can be the most scathing because the writer may believe he or she will suffer no repercussions.

Just like those partying Facebook photos, reviews may live online forever. In these cases, some lawyers call on reputation management companies, often marketing or public relations firms that have added defense against negative online reviews to their arsenals.

“When you’re in damage control mode it’s much more difficult to manage,” said Andrea Douglas, chief marketing officer at Nighthawk Marketing in Apple Valley. “At that point we’re saying we really have to look at this strategy overall. People who are unhappy are much more apt to present those views online.”

The damage may not be limited to the lawyer’s reputation, according to Douglas.

“The time and cost involved in the damage control process is probably 10 times the cost of beginning a new PR strategy and moving forward with that,” she said. “Once you have those negative reviews, it’s costly and it’s time-consuming.”

Nighthawk Marketing advises its clients to claim their review pages on ratings sites that allow them to have an account so they can respond to those messages.

“The first thing that we say is, ‘Thanks for sharing this information. It’s incredibly useful for us,’” Douglas said.

She further advises lawyers to respond “like a real person,” by acknowledging that reading the complaint was difficult, and asking the former client to contact the attorney if the conflict remains unresolved. Complainers may not respond, but it may not matter, according to Douglas.

“Others can discern from that that you’re involved, that you care, that you tried to work on this situation,” she said.

Some sites will charge a fee for mediating an online dispute. Attorney Amy Rotenberg of Rotenberg Associates, a Minneapolis strategic communications firm, said lawyers must weigh whether the cost of resolving the dispute this way is worth it. They may decide to post a clarification or a rebuttal on their own website or on Facebook.

“You have to kind of assess how many eyeballs are seeing this,” she said. “If I am putting out a response separately, am I alerting more people to this issue who otherwise might not have known about it?”

Lawyers should take care to toot their own horns on their websites, Facebook and Twitter so that people who search for them online will find mostly positive information, Rotenberg added. Reputation management companies may have better luck getting websites to remove obscene or threatening posts because many sites’ policies state they will not allow such posts.

“We have to be very vigilant in monitoring what our online reputation looks like,” Rotenberg said. “Have search terms set up to be able to watch references to you as an individual or your firm so you know what’s out there, because this (negative) stuff is out there and can pop up at any time.”

If someone makes a defamatory online post and that person can be identified, the individual — not the website – may be sued, Rotenberg said. Some sites will help you identify an anonymous reviewer, but not all.

“You have to evaluate how important is this,” she adds. “If this is one post but you have a 20-year stellar career practicing law and you’re known in the community you’ve won awards, you have many legal successes, you can kind of say, ‘Who cares?’ You have to decide if anyone is not going to retain me because of this one negative review.”

The best defense may be a good offense. Attorneys may ask satisfied clients to tout their legal abilities online to drive the bad review beyond the first page of a Google search. Lawyers may also make a preemptive strike by asking happy clients to post positive reviews online before a negative one has even shown up. It sounds easy, but it may not be, according to Douglas.

“It’s much more difficult to get a very happy person to go out and give a review and say, ‘I had a great experience,’ particularly if the law experience was of a delicate nature” such as a DUI charge, she said.

Other times, an acknowledgement and an offer to set things right – posted online beneath the critique — may do the trick, if the website allows.

“The recovery process is effective but particularly for a small or medium firm, it can be damaging,” Douglas said. “It’s a highly competitive world out there.”

Image: Dreamstime

April is National Poetry Month.  Although the language of law and poetry differ – with legal writing striving for clarity and conciseness, and poetics aiming for ambiguity and multifarious meaning – both law and poetry are essentially linguistic.  Both communicate meaning through language. To study law, to study poetry, is to study language.

Moreover, statutes are themselves often enough ambiguous texts requiring careful analysis and interpretation by judicial opinions – the same skills utilized in reading poetry.  Indeed, in Lewis Carroll’s “The Barrister’s Dream,” the law is “puzzling” and “never . . . clearly expressed.”  The antidote for such puzzles being “[t]he lawyer’s brief,” which, cutting to the chase, “is like the surgeon’s knife,/ Dissecting the whole inside of a question,/ And with it all the process of digestion” (Lord Byron, from Canto 10, Don Juan).

Another point of similarity is that both legal writing and fixed-verse poems are bound by rules of form.  Barbara Johnson asserted in a Yale Journal of Law & the Humanities article that in fact, lyric poetry, rather than prose, is “the more law-abiding or rule-bound of the genres.”

Poet John Keats described the sonnet as going so far as to “chain” and “fetter” language.  The “strict confines” (as described by poet Edna St. Vincent Millay) of fixed-verse poems thus reflect the rules and regulations of law as well as the court mandated formats of legal briefs and motions.

Prior to the 20th century, various law journals and newspapers actually published poetry alongside articles of jurisprudence and current news (e.g., Green Bag, Central Law Journal, and the Albany Law Journal).  Lawyers doubled as prominent poets and poets wrote extensively of law, such as Edgar Lee Masters, Wallace Stevens, e.e. cummings, Archibald MacLeish, Lawrence Joseph, and William Cullen Bryant.

But the connection between law and poetry is most . . . well, poetic . . . at moments when prominent jurists directly quote or compose poems within their decisions.  In these instances, poetry conveys meaning in a way legal language cannot, speaking more clearly and powerfully than stare decisis, and justice is meted out meter by meter.

For example, Supreme Court Justice Blackmun references classic poems such as Ernest Thayer’s “Casey at the Bat” to illustrate the importance of baseball to American culture in Flood v. Khun, a case regarding the status of baseball players as employees of their major league teams rather than as free agents.

A Pennsylvania contract case concerning the sale of emus, Liddle v. Scholze, 768 A.2d 1183 (Pa. Super. Ct. 2001), poeticized: “The emu’s a bird quite large and stately,/ Whose market potential was valued so greatly/ That a decade ago, it was thought to be/ The boom of the 21st century./ Our appellant decided she ought to invest/ In two breeding emus, but their conjugal nest/ Produced no chicks, so she tried to regain/ Her purchase money, but alas in vain./ Appellant then filed a contract suit,/ But the verdict gave her claim the boot;/ Thus she was left with no resort/ But this appeal to the Superior Court.”

In another case concerning a premarital contract, Busch v. Busch, 732 A.2d 1274 (Pa. Super. Ct. 1999), Judge Michael Eakin versified the entire decision: “Conrad Busch filed a timely appeal,/ Trying to avoid a pre-marital deal/ Which says appellee need not pay him support,/ He brings his case, properly, before this Court./ . . . They wanted to marry, their loves to enhance,/ Not for the dollars – it was for romance./ When they said ‘I do,’ had their wedding day kiss,/ It was not about money – only marital bliss./ . . . But a deal’s a deal, if fairly undertaken,/ And we find disclosure was fair and unshaken./ Appellant may shun that made once upon a time,/ But his appeal must fail, lacking reason (if not rhyme).”

The poetical and somber lyrics of the famous Billie Holliday song “Strange Fruit,” originally a poem written by Abel Meeropol as a protest against lynchings, were used in a 9th Circuit case, Campbell v. Wood, 18 F.3d 662, to illustrate the question of whether the act of hanging constituted cruel and unusual punishment under the Eighth Amendment of the Constitution.

Circuit Judges Einhardt, Browning, Tang, and D.W. Nelson, concurring and dissenting, state: “Hanging is associated with lynching, with frontier justice, and with our ugly, nasty, and best-forgotten history of bodies swinging from the trees or exhibited in public places.  To many Americans, judicial hangings call forth the brutal images of Southern justice immortalized in a song hauntingly sung by Billie Holiday. ”  And embedded in the accompanying footnote are the lyrics, “Southern trees/ Bear a strange fruit/ Blood on the leaves/ And blood at the root./ Black bodies swingin’/ In the Southern breeze/ Strange fruit hanging/ From the poplar trees . . . Here is a fruit . . . From the tree to drop/ Here is a strange/ And bitter crop.”

Reaching further back in time, ancient laws were often formed as poetry and laws expressed in incantatory rhymes.  Old Latin and Greek words for poetry were also words for law.  For example, “carmen” or “carminis” in Latin means song or statute.  Poets were the “unacknowledged legislators of the world,” contended poet Percy Bysshe Shelley in “A Defense of Poetry,” and poetical repetition and rhyme were used to help convey the law.

Poetry and law bear significant parallels.  As lawyer, poet, and former Librarian of Congress Archibald MacLeish observed: “The law has one way of seeing it.  Poetry has another.  But the journey is the same.”

Ami C. Janda works as an attorney editor at a legal publishing company in Eagan and is licensed to practice law in Minnesota.