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Litigating against Goliath PLLC

Posted by T. Greg Doucette on May 15, 2014 in The After-3L Life

Samson and I get a lot of law-related magazines each month at the TDot Household.

From the American Bar Association there’s the ABA Journal, GPSolo, and The Young Lawyer (now restyled “tyl”). The Federal Bar Association sends me The Federal Lawyer. With the NC Bar Association there’s the quarterly NC Lawyer and the NCBA YLD’s The Advocate. The State Bar itself sends the quarterly State Bar Journal. Then of course there’s the must-read NC Lawyers Weekly that comes every Monday.

(And that’s just the stuff that arrives in the mailbox. There are a half-dozen more e-newsletters I get in my inbox, whether I’ve signed up for them or not :beatup: )

So with all that stuff to read — stuff that takes time away from reading case law and client-focused things — it’s not unusual for me to be a few days/weeks/months behind. Then one day over breakfast or lunch or dinner I’ll randomly decide I’m actually going to try and read something from the backlog.

Yesterday was one of those days. I’m eating a sausage biscuit for breakfast, open up the latest copy of the ABA Journal, get to the Letters to the Editor section, and notice one of the letters is about an attorney “Hunoval” touting Lean Six Sigma as a way to run a law firm.

He just happened to share the last name of a firm I’ve got a case against in US District Court for the Middle District of NC.1 And, given how uncommon the name is, I say aloud to myself “I wonder if this is the same firm?”, go digging for my March edition of the ABA Journal,2 and find this multi-page firm profile confirming it’s the same firm and going into detail on their process.

Now there’s nothing I can really say about the Hunoval Law Firm itself that wouldn’t get misconstrued.3 So this post isn’t about them per se, but rather about the ABA Journal’s fawning coverage of using Lean Six Sigma in a litigation-heavy law firm.

Is this really the recipe we want for running future firms, especially ones who regularly use the courts?

The thing about statistical processing is that, by definition, it ignores the individual in favor of the group. Cases get transformed from individual people with individual problems to cookie cutter file batches subjected to cookie cutter solutions.

And while I have -0- doubt that certainly does improve speed and efficiency, I’m not convinced it necessarily also yields quality or ethical litigation.

Take my client’s case as an example. Without getting into too much detail about the merits, it’s self-evident from the exhibits attached to our injunction request (and our reply to the Defendants’ response to that request) that something is very clearly “off” with the mortgagee’s accounting. The same mortgagee likely handles hundreds, if not thousands, of accounts; this one account happens to have a problem.

In a situation like that, one would hope an individual person could recognize the individual account has an individual problem and then tailor an individual solution.

Instead — no doubt from using the same principles of statistics-driven efficiency touted by the ABA Journal’s fluff piece — the mortgagee still can’t get things right years later, the account has been the subject of litigation since 2010 across multiple state and federal courts,4 and it will continue at least until we get to trial in April 2015.

The individual has been lost in the shuffle, even though “the individual” is ultimately what any given lawsuit revolves around.

Look, I’m all for saving my clients money and being more efficient.

But I’m also in favor of being an excellent lawyer. And that comes first on my hierarchy of career-related aspirations.

  1. If you’ve got a PACER account, take a look when you get bored — the case name is Annette M. Hayes v. Self-Help Credit Union, RoundPoint Mortgage Servicing Corporation, Five Brothers Mortgage Company Services and Securing Inc, and Douglas Allan Stuart a/k/a “D.A. Stuart”. The file number is 1:13-cv-880 (MDNC). []
  2. Which at that point I still hadn’t read :beatup: []
  3. Praise them and I’m just buttering them up to settle; criticize them and I’m just sharing sour grapes over them not settling. Either way we lose. []
  4. A foreclosure case in Wilson County Superior Court, a federal bankruptcy filing in EDNC, our tort suit in Durham County Superior Court removed to MDNC, and a new foreclosure case in Wilson County Superior Court (filed to pressure us to settle). There’s no telling how many trees have died over just this one account… :crack: []

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7

The YLD’s incomplete approach to law school transparency

Posted by T. Greg Doucette on Aug 6, 2011 in Unsolicited Commentary

Good evening folks! :D

Day 3 of the ABA’s 2011 Annual Meeting features the “Assembly” portion of the ABA Law Student Division, where representatives from all the law schools in attendance convene legislature-style to debate and vote on various resolutions, along with the usual end-of-year awards and speeches as old officers retire and new officers begin their terms.1

If memory serves me correctly, there were 174 delegates in attendance representing just 99 law schools — an unfortunate reminder of how many of the 199 law schools nationwide had -0- presence at this meeting. :crack:

While other resolutions certainly had more contentious debate — a proposal asking law schools to elicit more information from students claiming Native American heritage was adopted in a heavily-split vote — the item that bothered me was known as Resolution 111B, adopted by the ABA Young Lawyers Division in February and dubbed its “Truth in Law School Education” resolution.

You can read some of the details about the TILSE document in this February piece at the ABA Journal. Essentially the resolution demands that law school’s provide greater disclosure of the employment survey data they collect from recent graduates, so prospective students will have a more accurate gauge of their employment prospects before taking on six-figures’ worth of loan debt to get a law degree. The YLD then handed the resolution to the LSD to ask for the students’ endorsement.

Generally, good stuff…

…but it was readily apparent this particular agenda item was less about its content than it was about good ol’ fashioned logrolling. When the YLD representative gave his report on the topic, his first words weren’t about the resolution — he instead made sure to note that YLD was “standing behind you” on an unrelated resolution seeking to get voting power for the LSD representative to the ABA’s Board of Governors. :roll: One of the LSD delegates even tried various linguistic twists (contortions rivaling the very best yoga practitioners) to insist the resolution “doesn’t add any additional burdens on law schools” because “we can’t make demands, we can only make recommendations.”2

Which is just as well, because the resolution’s contents as-written are woefully insufficient.3

In typical American fashion, the YLD has taken a two-part equation and expended untold hours and vast sums of energy focusing on only one side of it: the Big Bad Law Schools and the games we all know those schools play with their employment statistics.

But a key contributor that enables law schools to play those games with statistics are the less-than-100% response rates from their newly minted (and likely newly licensed) law school graduates, who are often too busy to waste time with filling out a form they have -0- incentive to complete. When someone doesn’t return a survey, do they count as employed? Unemployed? Excluded from the dataset entirely? The methodologies relating to those questions are among the core issues underlying the skewed stats.

That problem is also compounded for HBCUs and other law schools where the bulk of students go into public interest professions. When following your passion barely lets you pay the bills, you can’t exactly take even more unpaid time from your daily schedule to fill out even more paperwork.

So in typical T. fashion, as an advocate for my law school I decided to raise an issue no one else seemed interested in bringing up. :angel: I submitted a page-long form to speak4 that contained the following innocuous statement:

The American Bar Association Law Students Division (ABA-LSD) embraces a “full spectrum” approach to improving Truth in Law School Education, including both greater data disclosure and more comprehensive data collection. To promote that objective, the ABA-LSD encourages the American Bar Association to petition state bars (or equivalent licensing agencies) to grant some form of Continuing Legal Education credit to graduates who complete and return post-graduation employment surveys.

CLE credit: a simple and easy solution.

Using North Carolina as an example, even a single Professional Responsibility credit would incentivize new lawyers to reply by letting them meet 1/12 of their annual CLE obligations, all at no cost beyond the time spent completing it.

Yet like every other group that frowns upon people rocking the boat, actually considering ideas that weren’t pre-vetted by the folks in charge was verboten — my attempted amendment was somehow ruled out of order by the presiding officer by citing some illusory “protocol” that decreed “we cannot amend another group’s resolution.”5 :crack:  The unamended resolution was then passed by voice vote with only token opposition.

Regardless of the LSD’s take on the issue, however, the fact remains that the YLD is raising this great hue and cry over law school employment statistics without making a comprehensive effort to fix it. The ABA’s full House of Delegates will be taking this document up over the next few days, and will likely adopt it in its unaltered form — and we’ll all get to listen over the next few years as these new “reforms” still fail to fully address the problem.

Here’s hoping someone over there has the cajones to at least propose a full spectrum solution…

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From the law:/dev/null ABA Annual Meeting-related archives:

  1. I also got to enjoy this beautiful Toronto weather and caught the tail end of a “Civil Rights in the 21st Century” CLE earlier in the day, where I inadvertently crossed paths with former N.C. Supreme Court Chief Justice Henry Frye :spin: []
  2. This is the kind of semantic chicanery that makes everyday people despise lawyers. Either (a) you expect your recommendation to be enacted, in which case it adds an additional burden on law schools, or (b) you don’t expect your recommendation to be enacted, in which case you’re wasting everyone’s time “endorsing” a purely symbolic piece of paper. :roll: []
  3. As just one of many many many examples, a delegate from Washburn Law raised an excellent point: in addition to the stats YLD wants to collect, there should also be some kind of indicator of how much help the Career Services Office actually provided in a student getting a job. It makes no sense for a law school to tout a given graduate’s employment when that graduate had to do 100% of the work finding the opportunity and securing it. []
  4. A requirement mentioned nowhere in the Standing Rules of the LSD Assembly and completely foreign to the Robert’s Rules of Order said Assembly was using as its parliamentary authority. []
  5. Assuming arguendo such “protocol” exists, and ignoring the fact it doesn’t appear anywhere in the Assembly’s Standing Rules or in Robert’s Rules of Order, I wasn’t amending the resolution. I was attempting to amend the LSD Board of Governors’ main motion to endorse the resolution, from “We endorse this document” to “We endorse this document, but…”; hence why the amendment wasn’t in traditional “Whereas etc etc / Be it resolved etc etc” format common to resolutions. ;)  The abject failure to grasp this most basic of parliamentary concepts has exposed the notion of “professional parliamentarians” (which the LSD uses to help with presiding) as a complete and total fraud. But I digress… []

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1

Overestimating case outcomes

Posted by T. Greg Doucette on May 14, 2010 in Randomness

Via the ABA Journal Online:

I rarely check out the news stories that come through to my BlackBerry from the ABA Journal Online, but the headline for this one caught my eye: “Lawyers — Especially Men — May Be Too Optimistic About Case Outcomes, Survey Says”

A law professor at the University of California Irvine has co-authored a research paper into attorney predictions of success in their cases. From the research results, 44% of case outcomes were less successful than the “minimum goals” set by the attorney. More confident attorneys missed their goals more often than less confident ones. And male attorneys tend to overestimate results more than females.

The whole 25-page paper is a lot more detailed and definitely worth a read. It includes some interesting and counterintuitive findings (e.g. estimating results doesn’t seem to improve with years of experience).

But my question is this: although a majority of attorneys meet-or-exceed their minimum goals, how is that 44% able to stay in business? They apparently not only add and retain paying clients, but according to the paper also likely include a hefty chunk of senior partners and other high-ranking litigators. I’d think overestimating results would lead to some kind of economic and professional repercussions, not rising to senior partner status.

The paper concludes more research is needed to control for other factors, so maybe we’ll find out eventually. Until then it’s something interesting to chew on.

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