Minor Wisdom

Preserving error for appeal

Today Adams and Reese partner Mark Surprenant and I have the privilege and pleasure of presenting a one-hour class on preserving issues for appeal, as part of the Louisiana Justice Community Conference. For seminar participants, and other Louisiana lawyers interested in the topic, here are PDF copies of:

• Written materials
• PowerPoint presentation

If you view the PowerPoint presentation, you'll see several slide about sandbagging. There is a story behind my fixation on that word, which I will tell one day on The (New) Legal Writer. For today, suffice to say that sandbagging is a legal term of art, well understood by legal writers such as Bryan Garner (editor of Black's Law Dictionary) and Supreme Court Justices Scalia, Stevens, and O'Connor.

A new form of alternative dispute resolution

After some lawyers in Florida couldn't agree on the site for a deposition, one of them filed a motion to have the judge decide the site. The judge denied the motion, and instead ordered the lawyers to decide the issue by playing one round of rock-paper-scissors; the winner would get to decide where to hold the deposition. The court's order is here, and the CNN.com story is here. (Hat tip to my pal Roger Hughes for this one.)

Update: May It Please the Court has a copy of the order itself.

A reflection on technology and practicing law

Today, to get done a couple of things that I needed to get done, I relied on technology — no cutting-edge stuff, but stuff that nowadays is run of the mill. The accomplishment of both tasks got me thinking about how much change has occurred where technology intersects with the practice of law.

This morning at home, between breakfast and showering, I checked my office e-mail via the Web and my home computer (in itself, something unheard of in 1990). A team of lawyers was collaborating on putting together a document that needed to be finished by mid-morning. Among other things needed to finish the document were insertions of quotations from and citations to some caselaw. So I ran down those quotations and citations on my home computer via Westlaw web access, cut and pasted them into an e-mail, and sent them to the lawyer who was putting everything together. Then the writing lawyer needed a quotation from a court decision in our case. I thought the decision could probably be found on a legal blog. So I visited the blog, searched for and found the decision, downloaded it, and located the quotation that the writing lawyer needed.

When I started practicing law in 1990, I couldn't have done any of this from home. To help the team, I would have needed to be physically present in the office, running to the law library and the file room to pull what was needed. But in 2006, technology made it easy to do all this at home, between breakfast and showering.

Toward the end of the day, I was looking for some forms to use in drafting something. When I started practicing in 1990, this would have meant looking at my own form file (paper), and maybe asking some folks in nearby offices, "Do  you have a form for ...?" Instead, in 2006, I just ran a search in our document-management system, and immediately located a dozen examples of what I needed to draft. Again, run-of-the-mill stuff in 2006, but miraculous by 1990 standards.

Two concluding thoughts: First, technology really does make practicing law easier in 2006 than it was in 1990. Second, I'll bet that in another 16 years, we'll be doing things with technology that, today, we can't imagine.

Update your Rolodex: Ernie is flying solo

My around-the-corner neighbor Ernie Svenson announced today that he has left Gordon Arata, "the wonderful law firm where [he's] practiced law for the past eighteen years," to open his solo firm, Svenson Law Firm LLC. Ernie will continue to handle business disputes, applying technology to handle them efficiently and effectively. Congratulations, Ernie; may you enjoy the best of success and satisfaction.

For Bridging the Gap participants

This afternoon, I helped present the appellate segment of the Louisiana State Bar Association's Bridging the Gap seminar for newly minted lawyers. For those participants — and anyone else who may be interested — here are PDF copies of:

• PowerPoint presentation (six slides per sheet) (263K)
  
• PowerPoint presentation (1 slide per sheet) (2.1M)
• Written materials (same as in seminar book) (18.5K, updated 2/2/06)

You may also be interested in A Writ In Time, an article that you may find helpful in figuring out the deadline to apply to the court of appeal for a supervisory writ. To view a PDF copy of that article, click here.

p.s. (2 Feb. 2006): When I originally uploaded my written materials (third item on list above), I neglected to include my bio — poor marketing on my part. I've since fixed that. If you previously downloaded the written materials without bio, please download the updated version, with bio, and feel free to pass it around to your Louisiana lawyer friends.

The connection between free alterations and legal marketing

Nine days ago, I praised my haberdasher, Perlis, for its marketing genius in offering lifetime free alterations. This service increases sales in two ways: First, it gives the customer an additional reason to buy a suit from Perlis rather than from another store. Second, it encourages the customer to return to the store for those free alterations — once there, he's likely to make additional purchases. I wondered aloud how that marketing lesson could be applied to legal services.

Today, Tom Kane answered my question on his Legal Marketing Blog. His answer is "well, duh!" simple:

Don’t charge your clients for every minute of your time. In fact, don’t bill for a lot of minutes, if you are trying to develop a lasting relationship with your clients. Legal marketing is also about giving freebees.

I would add just one thing: Make sure your clients know that they can pick your brain for a minute or two without getting billed for it.

A lesson in what not to do

At Appellate Law & Practice, the Sixth Circuit reporter tells us about a recent decision from that court, affirming a district court's granting of habeas corpus in a capital-murder case, based on ineffective assistance of appellate counsel. Part III of the opinion describes the seating of a biased juror, one who stated no less than five times that she expected the defendant to prove his innocence—an issue that appellate counsel missed. Part IV of the opinion describes numerous additional errors constituting ineffective assistance, such as failing to meet the client or even talk to him on the telephone (page 16) and ignoring the client's request to withdraw (id.).

But the piece de resistance was counsel's performance at appellate oral argument in the intermediate state court, and later in the state supreme court. The night before the oral argument in the intermediate court, one of the two appellate lawyers had a family emergency, and so could not attend the argument. The court denied a request to continue the argument, so the other lawyer had to carry the ball. She fumbled. She refused to discuss or answer any questions the panel asked about issues briefed by the other lawyer. The Sixth Circuit commented, "Having counsel refuse to address half of the issues raised before the appellate court is like having trial counsel refuse to attend half the trial. On those issues, therefore, Franklin suffered a total lack of meaningful advocacy." Slip op. at 16.

Then there was counsel's unprofessional behavior before the state supreme court, described thusly by the Sixth Circuit:

The transcript of their arguments include five instances of wholly inappropriate laughing on the part of both of Franklin’s lawyers, an admission by Dieffenbach that she may be wrong about one of her contentions, equivocal responses to questions from the justices, and Greenham’s introductory statement that she "wished we had more to say on Mr. Franklin's behalf." In addition, Franklin’s counsel displayed a lack of familiarity with the facts relevant to the arguments she made to the court. For instance, Greenham did not recall the length of the videotape she argued was gruesome and prejudicial, and stated that "apparently it was very graphic," strongly suggesting she had not even viewed the allegedly offending videotape herself. Dieffenbach did not know how many points of identification existed between Franklin’s fingerprint and the print lifted from the champagne bottle found in the Strauss apartment. Greenham displayed an astounding lack of solemnity under the circumstances when she employed the term "overkill" to describe the photographic and videographic evidence, then laughed and said "Excuse the pun." [Slip op. at 16.]

The first page of the opinion says that it's "recommended for full-text publication." Here's the lesson for the rest of us lawyers: If this isn't how you want to be immortalized in the Federal Reporter, then don't do what these lawyers did. When you show up for oral argument, be prepared, and be professional.

Freebies

I'm always on the lookout for ways that sellers of goods and services win my business, because I think those sellers can teach me how to win business from potential clients. For instance:

Perlis, the store where I buy my suits and other clothes, offers life-time free alterations. Every time I take something in for alteration, I end up buying something else. For example, today I brought in four suits for alteration, and left with three new pairs of pants.

Whoever thought up lifetime free alterations must have been thinking about marketing. Knowing about that service is bound to make a potential customer more inclined to buy a suit from Perlis than from someone else. Even better, free alterations gets customers to return to the store, which in turn leads to repeat business. I mentioned this to my salesman, and he commented that no one else in town offers lifetime free alterations.

There's got to be a way to apply this lesson to legal services. I haven't figured out how just yet, but it's worth thinking about.

Contractors teach lesson in marketing

Katrina damaged the roof of my house, and I'm now working on getting it repaired. I've dealt with three roofing contractors, whom I'll dub A, B, and C. I want to give the work to C. Why?

• I spoke to Contractor A on the telephone. His attitude turned me off. He seemed to be spoiling for a dispute with my insurance adjuster over the scope of the work. I felt uncomfortable heading into this project with the assumption that there's going to be a dispute.
• Several weeks ago, I spoke to Contractor B briefly while he was in the neighborhood to inspect a neighbor's roof damage, and told him that I need similar work. He took down my contact information. Several weeks later, an estimate arrived by email. By this time, I'd forgotten that this was the contractor I'd spoken to. It took me several days to connect the estimate with the conversation of several weeks prior. I had a few follow-up communications with the contractor's office. The lady I communicated with was courteous, but she had to talk to "the roofer" to answer my questions. So I wasn't communicating directly with the person responsible for the work.
• Contractor C had just finished doing the job next door, completing the job in two days. My wife, who was home while the work was going on, told me that the crew was professional and courteous. So when I saw their folks outside my neighbor's house, I mentioned that I was interested in having them do my work too. One of them gave me a business card with his own phone number hand-written on the back; he said to call the office, but if for some reason I had any trouble getting through, to call him. Here's the timetable (so far) of my dealings with Contractor C since then:
  
  • Wednesday, Nov. 16: Telephone Contractor C's office, tell them I have a job for them; describe the job.
  • Thursday, Nov. 17: "Johnny," employee of Contractor C, telephones me at my office. He has been to my house to take measurements. He gives me the timetable for getting the work done and an approximate payment schedule.
  • Friday, Nov. 18: Johnny stops by my house to drop off the estimate. It's the same guy I talked to on the phone; the same guy who worked up the estimate.
  • Monday, Nov. 21: I telephone Johnny to verbally accept the estimate. We discuss a few additional items not included in the estimate (i.e. damaged weatherboards). Because mail delivery is sporadic in New Orleans, Johnny offers to stop by my house to get my signature on the contract and accept a $100 deposit.
  • Tuesday, Nov. 22: A few minutes ago, Johnny's assistant, Earl, stops by (Johnny was unexpectedly tied up). Johnny had been scheduled to stop by at 8:00 a.m.; Earl was here at 7:55 a.m. Earl knows everything that's going on; answers all my questions. So far, everything has proceeded exactly as Johnny told me it would.

In sum: Contractor C responded immediately to my phone call, jumped on the project, told me exactly what to expect and how much it would cost, and has timely done everything promised—no surprises. This is how I like to be treated when having work done that's important to me. I'll wager that clients and potential clients like to be treated the same way by people who do their important legal work.

CLE on recovering from natural disaster

On October 7 in Lafayette, LA., and on October 8 in Gulfport, MS, the Louisiana and Mississippi state bars are offering a 7-hour CLE on rebuilding your law practice after a natural disaster. You can read more about the seminars at these web sites:

• Louisiana State Bar Association (Lafayette, Oct. 7)
• Mississippi Bar (Gulfport, Oct. 8)
• Jim Calloway's Law Practice Tips Blog (Jim is one of the scheduled speakers)
• Ernie the Attorney