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TDot’s Tips: 5 Things I Wish I Knew as a First-Year Lawyer

Posted by T. Greg Doucette on Dec 26, 2013 in TDot's Tips

Belated merry Christmas y’all :)

I’ve been out of commission with the flu since last Friday, which has translated to a lot of time spent reading even more news / Facebook feeds / tweets than I do normally. And earlier today on Twitter I came across a tweet linked to an entry on Cordell Parvin’s blog titled “15 Additional Things I Wish Someone Had Told Me When I Was a First Year Lawyer.” That entry in turn linked to an earlier post on the same topic, “25 Things I Wish Someone Had Told Me When I Was a First Year Lawyer.”

They’re both solid lists, and 40 things a well-seasoned attorney wished he’d known sooner in his career are things worth mulling over by anyone recently licensed.

But they also seem a bit… incomplete I guess would be the word. For example, there’s no why behind Parvin wishing he’d known these things sooner; sure most are self-evident to some degree or another, but some added detail would have helped it sink in.1

Several of them also seem tailored to folks in multi-attorney firms, which of course doesn’t include me ;)

I still like both lists so I won’t critique beyond those minor points and commend them to you for reading. I do, however, have 5 things I’d add now that my first year as a lawyer recently wrapped up:

1. “It takes money to make money” is an efficient way to go broke.

Call it lingering bitterness over my foibles with advertising, but I’ve truly come to hate that phrase.

Way back in April of this year, activity at my firm cratered. I’d been on a steady and sharply upward trajectory since opening my doors in September, started “drinking the Kool-Aid” and took several stupid risks… then had my hopes dashed across the cold, jagged rocks of reality :beatup:

So I decided to take a dive into direct mail. A ton of attorneys I knew were using different companies to contact people who got traffic citations and other criminal charges, and I figured “hey, it takes money to make money!” Surely this would be an investment that generated clients and cash flow.

I thought the bulk of these calls were from direct mail. I was wrong.

I thought the bulk of these calls were from direct mail. I was wrong.

At the time it seemed like it “worked.” I started getting more calls and more clients.

Then I discovered two big problems. First, I was in court during the time a lot of folks called. So I signed up for Ruby Receptionists so callers wouldn’t just be getting my voicemail, to the tune of nearly $300.00/month2

The bigger problem, though, didn’t get discovered until the Thanksgiving break when I wrote the Mailbag entry following up on my first-year finances: after running a report on every client I had, and marking how each one found me, I discovered only 11 of the new clients were from direct mail :surprised:

That’s not a typo. 11. As in barely-double-digits. As in less than a dozen. Out of 165ish clients.

So when I compared how much I had spent on direct mail itself relative to the amount I’d made on those 11 clients, I discovered I’d lost close to $2,000 over those 7 months.3

While it may indeed “take money to make money” in some areas of law, I’d argue for most solo/small firm practitioners it shouldn’t take much if you do it right. Bootstrap your office — see here and here and here — then just make yourself accessible to people and do good work. Your reputation will bring you business from there.

***

2. Trust no one (at first anyway).

None of you are going to be shocked to hear that people lie. But, if you haven’t yet, after starting your practice you will quickly discover the sheer volume of whoppers that get told by prospective clients, actual clients, and even occasionally other attorneys. :crack:

The examples I’ve picked up over the past year are borderline absurd. There was the guy facing a half-dozen minor criminal offenses who “discovered” he’d stolen a felonious volume of stuff while the first 6 charges were pending and for which he got indicted the day after he was sentenced on them, torpedoing any leverage I may have had on the 7th charge now that the first 6 were disposed. There was an attorney with two decades of practice experience who insisted to me he had done certain things on a case, that he had already admitted in emails I’d be given by his former client were never done. There were an untold volume of people who swore they had clean traffic records, only to discover past DWIs and other offenses.

The most humorous for me was probably a woman referred to me by a classmate. She started off with a trio of the red flags that my malpractice insurance carrier Lawyers Mutual warned about in one of their CLEs: I was the third lawyer she had talked to, I was the only one who could help her, and she knew God sent her to me for a reason.4

In a nutshell, she wanted me to sue her (enormous) former employer, immediately, based on nothing more than her word that certain not-that-bad things had happened.

  • When I said I wanted to meet with her first to review her documents, she told me all her documents were actually at her former worksite.
  • When I said I still wanted to meet with her anyway and would review whatever she had, she started crying and said I wasn’t listening to her.
  • When I repeated back to her everything she had told me, then reiterated I still wanted to meet, the tears stopped immediately and I was told the documents that a minute ago were at the former worksite were actually in a storage unit, but she couldn’t get them out because she couldn’t pay the rent on the unit.
  • Having once written a Facebook note on the cost-saving virtues of moving into a storage unit, I figured she was full of sh*t and stood firm, politely explaining that I’d still be around whenever she was able to get her things and stop in for a meeting…
  • …so then I got called an *sshole and she hung up :beatup:

Thankfully most of the folks I’ve dealt with haven’t been that ridiculous. If you haven’t had any experience or training in figuring out when someone’s being deceptive, I’d suggest trying one of the CLEs put on by the good folks over at QVerity (the authors of Spy the Lie) — they let me attend two of their programs back during my 2L year, and the material’s been quite useful in practice.

***

3. There are a lot of bad cases out there, but not all bad ones are losers.

There’s not really much to say on this one: a lot of the people who will come to you for legal help, especially of the litigation variety, simply don’t have a case. People wanting to sue for being offended, or “knowing” someone is up to no good based on nothing more than a hunch, or knowing they don’t have a case but wanting to sue anyway hoping they can extort a settlement — there’s a laundry list of problems with the cases people bring to lawyers.

That doesn’t mean every bad case is a loser though. ;)

For example, I once had a guy come to me as the Defendant in a deed reformation suit; the bank had filed a Deed of Trust without a required attachment, so they filed a Complaint in Superior Court to have it fixed on the grounds that it’s what both parties intended when the mortgage contract was made. Very straightforward, and my guy had no legitimate defense. Case closed.

Well after some talking with him, I realized he had fallen behind in his mortgage a year prior after a divorce, and was trying to get his loan modified to basically shuffle the missed payments to the end of the loan term. And having dealt with plenty of delinquent homeowners this past year, that meant to me the bank discovered the deed defect because they were preparing to foreclose.

So I took his case, slowed down the proceedings a little bit, and eventually my client got his loan modification even while the bank ultimately “won” the deed reformation on a motion for summary judgment.5 A bad litigation case ended up being beneficial for everyone involved.

***

4. Even new lawyers can run with the big dogs.

Luckily for my practice, this is one of the first lessons I learned — but not until after a lot of sweating and almost a month’s worth of kicking myself.

In my first heavily contested business litigation case, I’d totally outhustled the (non-NCCU Law grad) junior associate at the opposing firm, and was as certain as anyone can be in litigation that I had things sewn up just from the briefs.

Fast forward to the hearing on our dueling motions, and I walk into the courtroom to discover the junior associate had been yanked from the case and replaced by the magna cum laude graduate / law review editor-in-chief / practicing-for-three-decades partner whose name was on the door…

…who then proceeded to beat me like a rented mule in oral arguments :crack:

I was totally flummoxed by how things were going. I’d done the research, knew the law and the facts, and had a better-than-solid case. But here was this short old guy6 making arguments I’d never anticipated, handing up case after case after case and the judge was buying it! It was a small miracle when the judge announced he’d just gotten sworn in the preceding Monday and wasn’t comfortable deciding the issue himself, so he continued the matter a month to set it in front of a different judge.

During the reprieve the case nagged at me; I couldn’t figure out how I had f*cked up so royally, and with my client sitting next to me the whole time to boot. I let myself be convinced I was losing because opposing counsel had been practicing so long, he was a distinguished practitioner in this particular field, and he surely was just better than me because of it.

Then one day I randomly went back through all the case law he handed up, to figure out why it didn’t show up in any of my searches. And I made a discovery: none of it applied.

At all. :surprised:

I hadn’t anticipated the arguments because the arguments were totally irrelevant, related to completely different rules and completely different standards. The other side apparently hadn’t read the motions or the briefs; they’d just printed some totally random sh*t out, and then handed it up in court.

After briefly kicking myself some more — because that meant in the “fog of war” in court I’d never actually entertained the possibility that this decades-long practitioner had just screwed up — I realized all the experience and accolades only count for so much. So I prepared for the second hearing the same way I did the first one, and stood toe-to-toe with him for the better part of three hours.7 Then we won.

Some attorneys, even ones with oodles of experience and awards, aren’t all that good. Don’t let yourself get intimidated by being the new kid.

***

5. Pedigree != victory.

This one’s a corollary to #4: even very good attorneys can end up with bad law, bad facts, or both. Don’t assume a high-priced degree or this or that award means they’re going to win.

In the summer I had a trademark / trade dress case against one of my small business clients brought by NC counsel for a mega-firm out of Chicago. A double-Harvard grad, repeatedly named to Super Lawyers and the North Carolina Legal Elite list for intellectual property, several journal and industry publications to his credit, the list goes on. The guy was intimidating.

But his case was a joke. The facts were on our side, the law was on our side, and there was a 0.0% chance we were going to lose (and if somehow we did, we’d already decided we would appeal as far up as we needed). It would have been a prime candidate for anti-SLAPP treatment if NC had a statute for those sort of things in trademark/trade dress cases. I still don’t know what their goal was in going down that path, but after exchanging increasingly-lengthy letters back and forth, we got the case dismissed on a 12(b)(6) motion.

I haven’t had any interaction with that particular attorney before or since, so I’ve got no way of knowing if he really is as good as his CV says; I’ll go ahead and assume he is. Even so, he’s just a lawyer — not a miracle worker. Great pedigrees can’t necessarily win every bad case that crosses their desk.

***

Sorry for such a ridiculously long post folks, chalk it up to cabin fever. But now if you’re a first-year attorney you’ve got 45 things to keep in mind, and these 5 have context with them ;)

Have a great rest of the week everybody! :D

—===—

Past TDot’s Tips entries:

  1. For example, “[s]pend 80% of your time with your top 20% of your contacts”? To what extent does the Pareto Principle really apply to law? [↩]
  2. Ruby is a great service by the way. A bit expensive, but truly indispensable until I can hire someone full-time. [↩]
  3. I’m not factoring in the money I started paying to Ruby, since in retrospect I would have likely started using them at that point anyway. [↩]
  4. There’s a pretty long list of red flags, but invoking religion in particular has (sadly) been a surefire sign that someone’s lying to me… :beatup: [↩]
  5. We were also lucky to have good opposing counsel, Gary Whaley of Morris Manning & Martin LLP. I can’t say enough good things about him: he knew we had no defense, knew he was going to win, but still went out of his way to help us get a loan modification approved. Also hands down the nicest attorney I’ve worked with so far. [↩]
  6. Who was also a total d*ck by the way. I’m assuming he had a Napoleon Complex. [↩]
  7. His response to me pointing out to the judge every single thing he was arguing was irrelevant: “Well, we didn’t know what opposing counsel was going to argue.” :crack: To which I politely pointed out to the Court that I was arguing what was in the motion, and in the corresponding brief, both filed two months prior. This judge, thankfully, wasn’t buying his argument. [↩]

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My (Brief) Thoughts on the Moral Monday Prosecutions

Posted by T. Greg Doucette on Dec 5, 2013 in Unsolicited Commentary

For reasons still unknown to me — I’m assuming the resumed trial (and yesterday’s conviction) of NC NAACP chairman Rev. William Barber II — I’ve gotten near-nonstop flak this week over my involvement defending some of the 900+ people arrested by the Government during the Moral Mondays protests at the North Carolina General Assembly.

Which normally wouldn’t be that annoying (I have strongly opinionated friends ;) ), except that this go-round it’s been a bombardment from all over the political spectrum.

My conservative friends had long ago labeled me a pariah for defending “Commies, hippies, and other people who don’t bathe” as one person put it. The very first time I mentioned thinking about helping, one of my good friends from undergrad simply replied “oh you better not!”1

But then this week I’ve also had several liberals asking me “who thought everyone getting arrested was a good idea?” and “what were they thinking?” and “tell me what this all accomplished?” — as if I played any role in the protests themselves or cared an iota about the movement’s success-or-lack-thereof.

A not-uncommon query this week

A not-uncommon query this week

And there’ve even been what I’d consider the apolitical folks, who are just plain flummoxed that people can still be arrested (and convicted! :surprised: ) for things like self-evident political speech, and more flummoxed still that similarly situated protestors could end up with totally different verdicts in their respective cases.

So when I got an email over the listserv earlier today from a well-respected attorney helping with the defense, pontificating over how best to advance the politics of the Moral Mondays protests, I did one of these and typed an almost-ALLCAPS rant in response…

…then I took a few deep breaths, removed the inflammatory stuff,2 and sent the following:

From: T Greg Doucette
To: MM Lawyers Listserv
Date: December 5, 2013 @ 11:21 AM
RE: Update

I’d respectfully argue that whether “a litigious approach [is] the best way” for “helping the advancement of the MM issues” is a minor side issue, because what’s going on with these cases long ago transcended the Moral Monday stuff and is now about the bedrock principles of a free society.

Now I’ll concede up-front that (1) I’m just a baby lawyer and (2) I’m an unabashed Republican who didn’t participate in the Moral Monday protests and agrees with very very (very) few of the items the group was promoting. So take this entire email with several grains of salt as each of you sees fit.

But the whole reason I agreed to take on any of these cases was because it seemed mind-bogglingly outrageous to me that North Carolina taxpayers could be arrested en masse for obvious political speech in the very legislative building paid for by those very taxpayers for the very purpose of hashing out political issues. Even if I wholly disagreed with the content of their speech, I’d never try to have someone locked up over it (if for no other reason than I’d like to have the option of protesting one day when the political pendulum inevitably swings in the other direction).

It’s the kind of shameless abuse of power I (naïvely) figured the government would have stopped doing a long time ago after taking ConLaw in law school. It’s outrageous regardless of which party’s in power. And the Judiciary, at some level, needs to weigh in and remind the Executive Branch that jailing dissidents isn’t how we do business in the United States of America.

Anyhow, please forgive the imperious rant — thanks to everyone for their work so far, keep it up, let me know where us baby lawyers can continue helping, and let’s all pray the judges come to their respective senses on the rest of these cases :)

-T.

That about sums up my thoughts on these prosecutions: they’re an abomination.

Not to mention an audacious choice for a State that every April 12th celebrates the adoption of the Halifax Resolves — the first official action of any of the colonies calling for independence from Britain (talk about a protest!).

And while the initial arrests were wrong, I’d argue the prosecutions are worse; unlike police, District Attorneys are lawyers who (at least theoretically) had to learn about the Constitution and the First Amendment in order to pass the bar exam.

With the guilty convictions racking up, it seems obvious the decisions have already been made at the meat-grinder/District Court level. I just hope the Superior Court — or the appellate courts if it comes to that — correct this particular abuse of power and as a result send a message about future abuses.

Because moreso than global warming or eeeevil 1%ers or any of the other boogeymen the political Left insists will lead to my demise, this is the type of thing that causes me to lose sleep at night.

—===—

From the law:/dev/null “Excellence in Government” archives:

From the law:/dev/null Unsolicited Commentary archives:

  1. And then scowled at me when I said it was more a statement than a request for her advice. I’m not renowned for my tactfulness. :beatup: [↩]
  2. The guy had been practicing for 34+ years after all. I respect my elders. :P [↩]

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