By popular demand....here are a few more....
Treat your per-diem appearances as if you were appearing on your own case. If that means you care more about the case than the attorney who sent you, so be it.
If there is a major problem with a case, and you think the attorneys who sent you don't know it, tell them. I'd want someone to tell ME!
Sometimes attorneys want to do per-diem work and be part of your "crew". Not everybody can multi-task their appearances and maintain quality. Not everybody is ready to adhere to the per-diem "code of honor". OK, there isn't an actual code, but the thing is, not everybody is trustworthy. My approach is, I'll try out a new person, carefully, and they have to earn trust. If they don't understand this, I don't trust them.
If something screwy starts to happen on a per diem assignment, especially if you are appearing for an attorney the first time, DOCUMENT what is happening. I've had offices "abandon me" during an appearance (by not responding to calls from court, or not having anyone in authority in their office). It doesn't happen often, but I've had it happen. My approach on these is to "protect the client" (as opposed to the lawyer), and next "protect myself". I document the problem with an eye towards protecting myself in the event things really blow up. I know, sometimes all this extra work is not worth the $100 you might get paid (cuz these bad guys will stiff you too), but you have to do the extra work and protect yourself. These are "perils" of per-diem.
Pay attention to collections!!! It does you no good to bill $100K and only collect $60K. This is especially bad when you have subbed out some of your work (and paid your crew). Most lawyers pay their per diems, but it only takes a few big stiffers to really hurt you. Here are a few tips:
1. Set balance limits for open credit and stick to them. I use $500 with new attorney clients. If they are beyond 30 days and $500, I CALL. This is very important. If they act like weasels about it, cut them off.
2. Related to #1 is, set yourself up to accept credit cards. If an attorney reaches $500 and more than 30 days, and they won't pay by credit card, cut them off.
3. Beware of high volume clients who don't pay ALL the bills. I hate when this happens and it happens with some regularity. Sometimes it's innocent, and it happens because if your bill is also your report, it may go in the file and not to the check writer. The way to curb this is to send statements which are a compilation of the open bills. When I receive a payment for invoices that are later than some open invoices, I address this immediately.
4. Beware of round figure payments "on account". This can be innocent enough, but it causes confusion. When this happens, send a memo indicating what invoices you applied the payment to, and confirming the open balance. In this memo you should ask that payments refer to specific invoices.
5. Share information with your competitors about the bad payers out there. This is more difficult than it seems. I only want to give this useful information if I am getting useful information. What do the non-paying vermin do when we share information about them? We usually see them coming to court themselves, which I always find gratifying, or they go lower in the food chain and rip off some new per diem.
6. Speaking of non-paying vermin, if some lawyer doesn't pay me, and won't work with me, or make a credit card payment, I sue in Small Claims Court. Sometimes these lawyers play games when I do this, but I persist. Recently, after some jokers adjourned my Small Claims case 3 times by asking for a hearing "by the Court", they missed an appearance and I got a default judgment. I sent them a letter and they didn't pay. So, what I did was, I paid a City Marshal $40 to serve a notice at their office (probably served on a secretary) saying that he was going to seize their furniture and computers and auction it off. Two days later I got paid in full with interest. They'll never call me again, which is just an added bonus.
Gosh I love this business!!!
Showing posts with label Per diem. Show all posts
Showing posts with label Per diem. Show all posts
Sunday, January 18, 2009
Tuesday, January 13, 2009
Pearls of Per Diem
It might be a stretch to call per-diem court appearances "Zen-like" or "other-worldly". That being said, I have some philosophical observations about making multiple court appearances on behalf of other attorneys.....
The appearance I hate most....is my last appearance.
It's harder to do two appearances than twelve appearances.
If you don't know what the case is about, you should find out before you say something stupid.
If you think you shouldn't be making the appearance, you are probably right.
When you are per-diem to the per-diem, and perhaps they were per-diem, you should make sure you are not your own grand-pa. http://www.youtube.com/watch?v=eYlJH81dSiw (This version is pretty funny, but I once saw Uncle Floyd do it LIVE, which was excellent).
If you end up covering both sides too often, you could go blind.
If you have a choice to "go make the copies" or wait for someone else to "make the copies and bring them back for you"....go make the copies.
If an appearance has a lot of parties it's efficient to be LAST, as long as you are not LATE.
The TV show that is most like per-diem appearances was M.A.S.H., especially when they talked about "meatball" surgery.
If you are on an appearance with multiple parties and you know nothing (which happens all the time), and all the other parties are blaming one of the parties for causing the accident, invariably YOU are representing that party.
If you know what you are talking about (hey...it happens!!!), and the Judge asks what the case is about.....TALK FIRST, and keep talking till someone tells you to stop.
In the movie "Defending Your Life" (one of my favorites...if you have never seen it, I highly recommend) there is a great scene featuring a per diem lawyer http://www.youtube.com/watch?v=Mbn-2OEsgr0
In a desperate per-diem situation, when all else fails, there is always......the truth.
The appearance I hate most....is my last appearance.
It's harder to do two appearances than twelve appearances.
If you don't know what the case is about, you should find out before you say something stupid.
If you think you shouldn't be making the appearance, you are probably right.
When you are per-diem to the per-diem, and perhaps they were per-diem, you should make sure you are not your own grand-pa. http://www.youtube.com/watch?v=eYlJH81dSiw (This version is pretty funny, but I once saw Uncle Floyd do it LIVE, which was excellent).
If you end up covering both sides too often, you could go blind.
If you have a choice to "go make the copies" or wait for someone else to "make the copies and bring them back for you"....go make the copies.
If an appearance has a lot of parties it's efficient to be LAST, as long as you are not LATE.
The TV show that is most like per-diem appearances was M.A.S.H., especially when they talked about "meatball" surgery.
If you are on an appearance with multiple parties and you know nothing (which happens all the time), and all the other parties are blaming one of the parties for causing the accident, invariably YOU are representing that party.
If you know what you are talking about (hey...it happens!!!), and the Judge asks what the case is about.....TALK FIRST, and keep talking till someone tells you to stop.
In the movie "Defending Your Life" (one of my favorites...if you have never seen it, I highly recommend) there is a great scene featuring a per diem lawyer http://www.youtube.com/watch?v=Mbn-2OEsgr0
In a desperate per-diem situation, when all else fails, there is always......the truth.
Wednesday, December 5, 2007
Pro-se Adversaries
In the per-diem practice I regularly encounter pro-se adversaries (people representing themselves). Here's a Wikipedia link with more info about pro-se than we could possibly need
http://en.wikipedia.org/wiki/Pro_se
In New York City Civil Court (jurisdiction up to $25,000), people often represent themselves. Many of these are debt collection cases, but I have been involved in all kinds of civil litigation where one side (the other side from my side) was pro-se. One might assume that those representing themselves have fools for clients. Indeed, sometimes they are fools, but if you assume it, you will prove another axiom, where assume makes an ass of u and me.
A few observations:
1. When you conference a case with a pro-se and a Judge, or a pro-se and a Judge's clerk, you will often find the pro-se suddenly has a lawyer......the Judge!! This is not supposed to happen, but it happens. Your job is to not let it happen that way. Here's a helpful tip....conference the case with the pro-se before you conference with the Court. I always tell them that we are allowed to do it, though they don't have to, and that in any event, after we talk we will have a conference with the court. I try to find out what the issues are, and I keep it non-confrontational. When we conference with the Court, I will often say, right in front of the pro-se, "We have been discussing the issues, and if it will be helpful, I'd like to summarize what we talked about" then I look right at the pro-se and say "If I don't say it right, or if I leave anything out, please stop me, I want the Court to have a clear understanding of what this is about". I then tell it as straight as I can, and if they want to jump in, I let them. I find this approach limits "court advocacy" and encourages the pro-se litigant to explore settlement.
2. Sometimes pro-se adversaries study up and they want to follow every rule, and call you on every technicality, and play lawyer with you. They have a right to do this, and they assume that this is what lawyers do. Of course, most lawyers, especially in Civil Court, don't do this. We usually try to figure out what the case is REALLY about, and find a fair way to resolve it. I laugh to myself sometimes when the pro-se defendant makes some brilliantly technical legal argument to the Judge, and the Judge says "Yeah, but do you owe the money or not?"
3. Sometimes you have to go to trial against a pro-se. This is usually after you have made exhaustive efforts to settle the case. When this happens you need to carry this case around with you: Roundtree v Singh 143 AD2d 995. Essentially, this case says that a pro-se doesn't gain any greater rights by being pro-se and unfamiliar with law and legal procedure. If they don't know how to make out a prima facie case, or if they don't know how to get their evidence in, too bad. The Court can't help them, and if this happens you must object based on Roundtree v Singh. Sometimes when you really make them follow procedure and they realize they could lose....they settle.
4. Along these same lines, sometimes if I know from the prior conferences that the pro-se is really wacky, I don't object on technicalities. I let them go on, and on, until I am sure the Judge realizes we are dealing with a nut. Then I reel the situation in. What often saves everyone in these nut-ball situations is that at the conclusion the Judge says "Decision reserved". No fireworks, most Judges will do the job, and the decision will come later.
Quik story.....I once tried a credit card debt case where the debtor owed about $10,000 and at every conference he insisted that "you cannot PROVE it was me". He was especially emboldened when he saw that I did not have a witness for trial. All of the charges on the credit card seemed to relate to restaurant supplies for a shish-kebob restaurant. However, in all our conferences I did not let on that I knew that, nor did I ever show him the bills and ask him about it. When we got sent upstairs for trial, the Judge told me to call my first witness, and of course I said "I call the defendant." He said "He can't do that!", to which the Judge replied "Yes, he can....take the stand." I then asked him questions about where he lived, what he did for a living, and the like. Most of it was not useful, but I did get him to confirm his address (at the time of the bills I had). He also confirmed that in all the time he lived there he never had a problem receiving mail. I really nailed these two items home....correct address and mail being received. I then asked him if he had ever received a bill from my client, and he denied it. I then asked him if he had ever owned a shish-kebob restaurant, and he denied it. I asked him if he had ever helped open a shish-kebob restaurant, and to my surprise he said "Yes, I have worked in these restaurants all my adult life, and I once helped my friend open one." I asked "Where was it?" Turns out it was about two blocks from his address. I then took out my $10,000 worth of shish-kebob supply charges, and questioned him about it. He denied having anything to do with it, but the big red "L" was lit up on his forehead.
When I summed up I had a grand old time. I'll spare you the details.
His summation was "He didn't prove nuthin".
The Judge said "Decision reserved"
WINNER
http://en.wikipedia.org/wiki/Pro_se
In New York City Civil Court (jurisdiction up to $25,000), people often represent themselves. Many of these are debt collection cases, but I have been involved in all kinds of civil litigation where one side (the other side from my side) was pro-se. One might assume that those representing themselves have fools for clients. Indeed, sometimes they are fools, but if you assume it, you will prove another axiom, where assume makes an ass of u and me.
A few observations:
1. When you conference a case with a pro-se and a Judge, or a pro-se and a Judge's clerk, you will often find the pro-se suddenly has a lawyer......the Judge!! This is not supposed to happen, but it happens. Your job is to not let it happen that way. Here's a helpful tip....conference the case with the pro-se before you conference with the Court. I always tell them that we are allowed to do it, though they don't have to, and that in any event, after we talk we will have a conference with the court. I try to find out what the issues are, and I keep it non-confrontational. When we conference with the Court, I will often say, right in front of the pro-se, "We have been discussing the issues, and if it will be helpful, I'd like to summarize what we talked about" then I look right at the pro-se and say "If I don't say it right, or if I leave anything out, please stop me, I want the Court to have a clear understanding of what this is about". I then tell it as straight as I can, and if they want to jump in, I let them. I find this approach limits "court advocacy" and encourages the pro-se litigant to explore settlement.
2. Sometimes pro-se adversaries study up and they want to follow every rule, and call you on every technicality, and play lawyer with you. They have a right to do this, and they assume that this is what lawyers do. Of course, most lawyers, especially in Civil Court, don't do this. We usually try to figure out what the case is REALLY about, and find a fair way to resolve it. I laugh to myself sometimes when the pro-se defendant makes some brilliantly technical legal argument to the Judge, and the Judge says "Yeah, but do you owe the money or not?"
3. Sometimes you have to go to trial against a pro-se. This is usually after you have made exhaustive efforts to settle the case. When this happens you need to carry this case around with you: Roundtree v Singh 143 AD2d 995. Essentially, this case says that a pro-se doesn't gain any greater rights by being pro-se and unfamiliar with law and legal procedure. If they don't know how to make out a prima facie case, or if they don't know how to get their evidence in, too bad. The Court can't help them, and if this happens you must object based on Roundtree v Singh. Sometimes when you really make them follow procedure and they realize they could lose....they settle.
4. Along these same lines, sometimes if I know from the prior conferences that the pro-se is really wacky, I don't object on technicalities. I let them go on, and on, until I am sure the Judge realizes we are dealing with a nut. Then I reel the situation in. What often saves everyone in these nut-ball situations is that at the conclusion the Judge says "Decision reserved". No fireworks, most Judges will do the job, and the decision will come later.
Quik story.....I once tried a credit card debt case where the debtor owed about $10,000 and at every conference he insisted that "you cannot PROVE it was me". He was especially emboldened when he saw that I did not have a witness for trial. All of the charges on the credit card seemed to relate to restaurant supplies for a shish-kebob restaurant. However, in all our conferences I did not let on that I knew that, nor did I ever show him the bills and ask him about it. When we got sent upstairs for trial, the Judge told me to call my first witness, and of course I said "I call the defendant." He said "He can't do that!", to which the Judge replied "Yes, he can....take the stand." I then asked him questions about where he lived, what he did for a living, and the like. Most of it was not useful, but I did get him to confirm his address (at the time of the bills I had). He also confirmed that in all the time he lived there he never had a problem receiving mail. I really nailed these two items home....correct address and mail being received. I then asked him if he had ever received a bill from my client, and he denied it. I then asked him if he had ever owned a shish-kebob restaurant, and he denied it. I asked him if he had ever helped open a shish-kebob restaurant, and to my surprise he said "Yes, I have worked in these restaurants all my adult life, and I once helped my friend open one." I asked "Where was it?" Turns out it was about two blocks from his address. I then took out my $10,000 worth of shish-kebob supply charges, and questioned him about it. He denied having anything to do with it, but the big red "L" was lit up on his forehead.
When I summed up I had a grand old time. I'll spare you the details.
His summation was "He didn't prove nuthin".
The Judge said "Decision reserved"
WINNER
Sunday, November 25, 2007
Credit Cards in the Per Diem Biz
Accepting credit cards is very helpful in the per diem business. It is very easy to set up. You do not need a card swiping machine, you only need an internet connection. I do it through Quickbooks, but any bank can set this up for you. I like it for two main situations:
1. You can smoke out the really bad apples. Anyone who does per diem work knows that sometimes you get shaky payers. It's the exception, but it happens. The way I use credit cards is, after someone is 60-90 days behind, I call and ask if there's a problem. I always ask first if there was a problem with our work, because I want to know if that's the reason for the non-payment. If there seems to be some financial issue, I will offer the option of making a credit card payment for all or part of the balance. Sometimes they are pleasantly surprised and they pay in full. Sometimes they make a partial payment and agree to allow a monthly credit card payment. Sometimes they don't accept any aspect of credit card paying, and then they have been smoked out. Here's my reasoning.....I don't believe there is any lawyer who doesn't have a credit card. If the lawyer doesn't "trust me" to handle the transaction honestly, then why should I trust the lawyer by extending credit? If the lawyer doesn't want to "pay interest" on his credit card debt, why should I be giving an interest free loan? The credit card offer is a really effective way for me to cut my losses on bad payers. You might say "But you might lose the client", to which I say "Let someone else make the interest free loans".
2. Depositions: I generally make a small profit on depositions. I subcontract them out, and I disclose that I am doing this. If I charge $250 for a job, I pay $175 and make $75. I consider this fair for handling the transaction. Unfortunately, attorneys tend to pay slowly on depositions, placing me in the position of paying my subcontractor and chasing the money for my small profit. This was happening so often that it made depositions a money LOSER. My new policy is depositions are taken on credit card guarantee only (except for a few "A" rated clients). Guess what? My volume of depositions is WAY down. However, due to 100% collectability, profits are up. Credit cards transformed this from the most dreaded appearance into one of the most desireable. I actually am inclined to make my deposition fees the most competitive possible, because I have taken the collectability risk out of the equation. This is well worth the 3% or so that the credit cards charge.
1. You can smoke out the really bad apples. Anyone who does per diem work knows that sometimes you get shaky payers. It's the exception, but it happens. The way I use credit cards is, after someone is 60-90 days behind, I call and ask if there's a problem. I always ask first if there was a problem with our work, because I want to know if that's the reason for the non-payment. If there seems to be some financial issue, I will offer the option of making a credit card payment for all or part of the balance. Sometimes they are pleasantly surprised and they pay in full. Sometimes they make a partial payment and agree to allow a monthly credit card payment. Sometimes they don't accept any aspect of credit card paying, and then they have been smoked out. Here's my reasoning.....I don't believe there is any lawyer who doesn't have a credit card. If the lawyer doesn't "trust me" to handle the transaction honestly, then why should I trust the lawyer by extending credit? If the lawyer doesn't want to "pay interest" on his credit card debt, why should I be giving an interest free loan? The credit card offer is a really effective way for me to cut my losses on bad payers. You might say "But you might lose the client", to which I say "Let someone else make the interest free loans".
2. Depositions: I generally make a small profit on depositions. I subcontract them out, and I disclose that I am doing this. If I charge $250 for a job, I pay $175 and make $75. I consider this fair for handling the transaction. Unfortunately, attorneys tend to pay slowly on depositions, placing me in the position of paying my subcontractor and chasing the money for my small profit. This was happening so often that it made depositions a money LOSER. My new policy is depositions are taken on credit card guarantee only (except for a few "A" rated clients). Guess what? My volume of depositions is WAY down. However, due to 100% collectability, profits are up. Credit cards transformed this from the most dreaded appearance into one of the most desireable. I actually am inclined to make my deposition fees the most competitive possible, because I have taken the collectability risk out of the equation. This is well worth the 3% or so that the credit cards charge.
Sunday, November 18, 2007
Per Diem Agencies
There are a few per diem "agencies" in New York. They offer court coverage in all the courts. By necessity they sub-contract out all the work. I've got nothing against them, some of them sub-contract their Queens work to me. I give them a discount in exchange for volume. They know I won't solicit their clients (One exception....if one of my clients uses an agency and I end up covering, I will call and point out that if they call me directly it's cheaper). I don't view my per diem practice as an agency. There are a few major differences:
1. We cover only one County, so we get some "expertise" in that County.
2. I am in the Jamaica Courthouse personally, so even though I am not on every appearance, I am there if a problem arises. I will also handle certain things personally, on request for most clients.
3. I have associates and steady per diem attorneys, and it never gets further removed than that. I may have a "per diem to the per diem", but when I get agency work, we often get a "per diem to the per diem to the per diem". I can't imagine this is what the client had in mind when they called. Incidentally, the record for degrees of removal on an appearance is FIVE.
4. An agency HAS to be more expensive. They are subbing it out and have to make a profit too.
5. We can trouble shoot the work when it comes in......and we often do. If someone faxes me an unreasonable request, and I know it's unreasonable because I am in Jamaica every day, I call the attorney and try to make a better plan. Agencies can't do that, and often end up with their per diems walking into the doo doo (I can't believe I called it that).
So, if agencies offer lower quality work and are more expensive, WHY are attorneys calling these agencies? There can be only one reason.....for the simple convenience of having the calendar clerk make only one call. Instead of calling the best per diem office in Brooklyn, Queens, the Bronx, and Suffolk, they make one call to the agency. This may be more convenient for the calendar clerk, but I submit it is a poor practice. Any office with a volume of appearances should NOT be using agencies, and I suspect that after trying it, they often leave. Spare yourself, call the best per diems in each County.
People have asked me why I don't expand to other Counties, and essentially become an agency. Simple....I don't believe in the business concept. If someone calls me for a non-Queens appearance, I will give them someone in another County who does what I do. I don't share in the fees on those, cuz if I did, those firms would have to charge what the agencies charge. What I try to do though, is encourage the people who use my business model in the other counties, to refer me, as I refer them, and SHUN the agencies. This is a networking technique that has worked well.
So, to sum up....per diem agencies bad....per diem specialists by County....GOOD
1. We cover only one County, so we get some "expertise" in that County.
2. I am in the Jamaica Courthouse personally, so even though I am not on every appearance, I am there if a problem arises. I will also handle certain things personally, on request for most clients.
3. I have associates and steady per diem attorneys, and it never gets further removed than that. I may have a "per diem to the per diem", but when I get agency work, we often get a "per diem to the per diem to the per diem". I can't imagine this is what the client had in mind when they called. Incidentally, the record for degrees of removal on an appearance is FIVE.
4. An agency HAS to be more expensive. They are subbing it out and have to make a profit too.
5. We can trouble shoot the work when it comes in......and we often do. If someone faxes me an unreasonable request, and I know it's unreasonable because I am in Jamaica every day, I call the attorney and try to make a better plan. Agencies can't do that, and often end up with their per diems walking into the doo doo (I can't believe I called it that).
So, if agencies offer lower quality work and are more expensive, WHY are attorneys calling these agencies? There can be only one reason.....for the simple convenience of having the calendar clerk make only one call. Instead of calling the best per diem office in Brooklyn, Queens, the Bronx, and Suffolk, they make one call to the agency. This may be more convenient for the calendar clerk, but I submit it is a poor practice. Any office with a volume of appearances should NOT be using agencies, and I suspect that after trying it, they often leave. Spare yourself, call the best per diems in each County.
People have asked me why I don't expand to other Counties, and essentially become an agency. Simple....I don't believe in the business concept. If someone calls me for a non-Queens appearance, I will give them someone in another County who does what I do. I don't share in the fees on those, cuz if I did, those firms would have to charge what the agencies charge. What I try to do though, is encourage the people who use my business model in the other counties, to refer me, as I refer them, and SHUN the agencies. This is a networking technique that has worked well.
So, to sum up....per diem agencies bad....per diem specialists by County....GOOD
Thursday, November 15, 2007
Per Diem Biz Relationships
In the per diem biz you want to be busy....you want to have a lot of cases to cover. Ideally you want all the apperances in the same place at the same time. Of course, it never happens this way. I have ongoing business relationships with many other per diem attorneys. I don't view my "crew" as static. It's always changing, mostly growing, though occasionally people leave the fold.
Here are a few tips for potential crew members:
1. Saying "yes" to assignments is very good. When I am looking for help with coverage, I want to make one call and have the person say yes. I know that's not always possible, but if a person is consistently unavailable (after telling me to call them for work), I stop calling.
2. Be accessable. In this biz, not answering your cell phone, or not calling back within five minutes, is like saying NO. If you want work, be accessable.
3. Don't overprice yourself. Here's a surprise for some people. This is a competitive business, and it runs by the same rules as other businesses. If you price yourself too high, you will not get calls. If you can offer better terms, you get more work.
4. Don't overbook yourself. I can't stop a sub-contracted per diem from taking other work, but if you can't cover my stuff effectively, I can't use you. One way to not have this happen is to have per diem biz relationships. I always suggest to my crew that they can have their appearances covered within my crew, if this will help. This works only if the person respects and follows the next rule.
5. No client stealing. EVER. This means you do not solicit per diem business from other peoples clients. In fact, you DECLINE it if offered. I have done this many times. When appearances are being sub-contracted I always ask how the per diem wants the "contact question" handled. You have to know what to do if you must make a call from court. There are ways of handling this, but you have to be clear. This client stealing is a funny thing. I know some of my competitors solicit my accounts. It's not illegal. I just won't have a business relationship with those people. Here's how I know which competitors would solicit my accounts....If you are pretty busy in the Queens courthouses and you have never sought me or my crew out to help with coverage, I think it's because you think I will solicit your accounts. People who work with me, and have their own accounts, know I would NEVER do it. However, the fact that you worry about such a thing makes me KNOW that you would do it to me. You know who you are, so keep running your business your way. I'll stick with mine.
Something I noticed about these per diem biz relationship tips. While I wrote them for per-diem to per-diem deals, they are actually the backbone of the per-diem relationship with their lawyer/customer:
1. Say yes to the jobs.
2. Be accessable.
3. Price it right.
4. Don't overbook, be able to cover it well.
5. Work with integrity.
Here are a few tips for potential crew members:
1. Saying "yes" to assignments is very good. When I am looking for help with coverage, I want to make one call and have the person say yes. I know that's not always possible, but if a person is consistently unavailable (after telling me to call them for work), I stop calling.
2. Be accessable. In this biz, not answering your cell phone, or not calling back within five minutes, is like saying NO. If you want work, be accessable.
3. Don't overprice yourself. Here's a surprise for some people. This is a competitive business, and it runs by the same rules as other businesses. If you price yourself too high, you will not get calls. If you can offer better terms, you get more work.
4. Don't overbook yourself. I can't stop a sub-contracted per diem from taking other work, but if you can't cover my stuff effectively, I can't use you. One way to not have this happen is to have per diem biz relationships. I always suggest to my crew that they can have their appearances covered within my crew, if this will help. This works only if the person respects and follows the next rule.
5. No client stealing. EVER. This means you do not solicit per diem business from other peoples clients. In fact, you DECLINE it if offered. I have done this many times. When appearances are being sub-contracted I always ask how the per diem wants the "contact question" handled. You have to know what to do if you must make a call from court. There are ways of handling this, but you have to be clear. This client stealing is a funny thing. I know some of my competitors solicit my accounts. It's not illegal. I just won't have a business relationship with those people. Here's how I know which competitors would solicit my accounts....If you are pretty busy in the Queens courthouses and you have never sought me or my crew out to help with coverage, I think it's because you think I will solicit your accounts. People who work with me, and have their own accounts, know I would NEVER do it. However, the fact that you worry about such a thing makes me KNOW that you would do it to me. You know who you are, so keep running your business your way. I'll stick with mine.
Something I noticed about these per diem biz relationship tips. While I wrote them for per-diem to per-diem deals, they are actually the backbone of the per-diem relationship with their lawyer/customer:
1. Say yes to the jobs.
2. Be accessable.
3. Price it right.
4. Don't overbook, be able to cover it well.
5. Work with integrity.
Sunday, October 28, 2007
Per Diem Skills
As Napoleon Dynamite said, you need "skills". Like Napoleon, I don't have nunchuck skills or bowhunting skills or computer hacking skills. What I do have.....are "per diem skills".
These proved really helpful at high school parent teacher conferences. At the evening conferences we had eight teachers to see. It was a mob scene of nervous, high strung parents, trying to figure out how to get their 3 minutes of face time with their child's teachers. The teachers are spread throughout the building. They are guarded by volunteer students who keep a sign-in sheet and regulate the flow of meetings. The "rules", such as they are, are not posted anywhere. You want to get it done effectively and efficiently and get out of there.
When Felicia and I got to the school and saw the situation, I said "This is exactly like doing Queens per diem appearances. What we need to do is know the rules for each part, see where the Judges are located within the building, try to figure out the verbosity tendencies of each Judge (do they conference everything or take a lot of submissions?). Most important, what happens if you miss 'first call'?"
Her look said "You really are a sick person", but of course she actually said "So what should we do?". We had a list of eight teachers on five different floors. We agreed we wanted to see the teachers together and not split up for the actual meetings.
When I have multiple Queens per diem appearances, I make a game plan. Everyone who does per diem work does this. You try to prioritize, figure out where to go first, how much time you might need, and you also need flexibility for the unexpected.
My parent teacher game plan went like this....
"First of all, we will see the gym teacher last, because its isolated on the first floor while the others are on 3, 4, 5 & 6. Also, if we miss that one it's not so bad. I would check in on 5 & 6, she would check in on 3 & 4. We would then use cell phones to see where we were on each teachers list. I then thought about it and decided not to sign in until we checked with each other, because if we were the same distance away on all the lists, we'd end up missing some and going to the bottom of those lists, a very bad result because it was getting busier as the night went on. We also agreed that from what we had heard about the social studies teacher, he would talk a lot and his conferences would run long. We agreed to factor this into our thinking. Before we split up I said what I like to say to my per diem attorneys as we set out. I said....."Hey, let's be careful out there."
The plan worked pretty well. Not perfect....we got caught with Spanish and Bio getting called at the same time. It caused us to go to the bottom of the list for the Bio teacher, but second call on Bio didn't take too long. We nailed Social Studies, arriving just as our name was called. (In the per diem world we call this "hitting your marks"). Fairly late in the evening, I realized we were allowed to use the elevator, so when we were three away on English, I took the elevator downstairs and checked in on gym. Next semester we will hit our marks better, but overall it the appearances were covered well.
In the per diem world we usually don't talk about the results of the appearances, unless we missed one. This was different of course, it was like covering one of my own cases. When I got home, of course Rebecca wanted to know how it went. So I said "Well, we had a good game plan, and got them all covered pretty well....we did have to go back and get Bio on the rebound...." She was rolling her eyes, so I told her the truth, she is doing very well and has some energetic and interesting teachers.
And I have some useful "skills".
These proved really helpful at high school parent teacher conferences. At the evening conferences we had eight teachers to see. It was a mob scene of nervous, high strung parents, trying to figure out how to get their 3 minutes of face time with their child's teachers. The teachers are spread throughout the building. They are guarded by volunteer students who keep a sign-in sheet and regulate the flow of meetings. The "rules", such as they are, are not posted anywhere. You want to get it done effectively and efficiently and get out of there.
When Felicia and I got to the school and saw the situation, I said "This is exactly like doing Queens per diem appearances. What we need to do is know the rules for each part, see where the Judges are located within the building, try to figure out the verbosity tendencies of each Judge (do they conference everything or take a lot of submissions?). Most important, what happens if you miss 'first call'?"
Her look said "You really are a sick person", but of course she actually said "So what should we do?". We had a list of eight teachers on five different floors. We agreed we wanted to see the teachers together and not split up for the actual meetings.
When I have multiple Queens per diem appearances, I make a game plan. Everyone who does per diem work does this. You try to prioritize, figure out where to go first, how much time you might need, and you also need flexibility for the unexpected.
My parent teacher game plan went like this....
"First of all, we will see the gym teacher last, because its isolated on the first floor while the others are on 3, 4, 5 & 6. Also, if we miss that one it's not so bad. I would check in on 5 & 6, she would check in on 3 & 4. We would then use cell phones to see where we were on each teachers list. I then thought about it and decided not to sign in until we checked with each other, because if we were the same distance away on all the lists, we'd end up missing some and going to the bottom of those lists, a very bad result because it was getting busier as the night went on. We also agreed that from what we had heard about the social studies teacher, he would talk a lot and his conferences would run long. We agreed to factor this into our thinking. Before we split up I said what I like to say to my per diem attorneys as we set out. I said....."Hey, let's be careful out there."
The plan worked pretty well. Not perfect....we got caught with Spanish and Bio getting called at the same time. It caused us to go to the bottom of the list for the Bio teacher, but second call on Bio didn't take too long. We nailed Social Studies, arriving just as our name was called. (In the per diem world we call this "hitting your marks"). Fairly late in the evening, I realized we were allowed to use the elevator, so when we were three away on English, I took the elevator downstairs and checked in on gym. Next semester we will hit our marks better, but overall it the appearances were covered well.
In the per diem world we usually don't talk about the results of the appearances, unless we missed one. This was different of course, it was like covering one of my own cases. When I got home, of course Rebecca wanted to know how it went. So I said "Well, we had a good game plan, and got them all covered pretty well....we did have to go back and get Bio on the rebound...." She was rolling her eyes, so I told her the truth, she is doing very well and has some energetic and interesting teachers.
And I have some useful "skills".
Wednesday, June 13, 2007
Per diem update
The per diem (court coverage) business is getting tougher all the time. Here are the main reasons:
1. The overall volume of personal injury cases is down. This is primarily due to the vigorous defense on these cases by the insurance carriers. It has become unprofitable for most plaintiff firms to accept the lower level cases, so now, these cases are simply not in the system. This puts pressure on the per diem business because not only are there less "jobs" to cover, but many firms who used to use per diems are now covering the appearances "in house".
2. Many of the civil defense lawyers are now victims of their own success. They beat the tar out of the plaintiffs, so now there are less cases, and the insurance companies have either laid off lawyers or stopped hiring. Many of the displaced lawyers try per diem work. Some can make a go of it and some can't. The bottom line is there is more competition for less available work.
3. The competition for work has kept the fees down. I would love to raise my per diem fees, but the problem is all my competitors would love me to do that, so they could undercut me. I recently told another per diem lawyer that in this environment I would lower my fees before I raise them. He seemed to think I was nutty. He can follow his business model, I'm going to stick with mine.
4. Many of the per diem players are marketing and advertising much more than before. I suspect some of them have actively pursued my attorney accounts, and sometimes in the course of marketing they "inadvertently" have gotten in my kitchen and taken some clients. Fair is fair, and my view is it works both ways and evens out. In the end, quality will tell. One thing is for sure, the per diem business is no different than any other, you have to service your existing clients AND market for new business.
5. Some of the downturn in lawyer business spills over into accounts receivable. There are some really bad attorney clients in this biz. I've learned who they are, the hard way. I am tempted to name names, but I won't. What I will do though, is let my new competitors scoop up all THAT business, and then struggle to get paid from these deadbeats. Here's when I knew the depth of sleaze from one of these firms.......He ran up a $10,000 tab with me (you may ask, how did you let that happen? and the way it happens is every so often they send in $3-4000 when you really need it, so you stick with it, and then it gets out of hand) and forced me to sue him. We negotiated a settlement, which I had to chase him for. After it was all over, I called him and said "No hard feelings, I have a business proposal.....I know you have volume in Queens, and I would like the work, but I must get paid, SO, I will give you very VERY low prices, lower than anyone else, EVER, and I only have one condition.....I want to bill a credit card once a month". He said no. He then proceeded to stiff my biggest competitor for $6000!!!!
Yipes!!!! and I am usually the guy who defends other lawyers.
The business still has a lot going for it, but anyone thinking about trying it should remember, it IS a business.
1. The overall volume of personal injury cases is down. This is primarily due to the vigorous defense on these cases by the insurance carriers. It has become unprofitable for most plaintiff firms to accept the lower level cases, so now, these cases are simply not in the system. This puts pressure on the per diem business because not only are there less "jobs" to cover, but many firms who used to use per diems are now covering the appearances "in house".
2. Many of the civil defense lawyers are now victims of their own success. They beat the tar out of the plaintiffs, so now there are less cases, and the insurance companies have either laid off lawyers or stopped hiring. Many of the displaced lawyers try per diem work. Some can make a go of it and some can't. The bottom line is there is more competition for less available work.
3. The competition for work has kept the fees down. I would love to raise my per diem fees, but the problem is all my competitors would love me to do that, so they could undercut me. I recently told another per diem lawyer that in this environment I would lower my fees before I raise them. He seemed to think I was nutty. He can follow his business model, I'm going to stick with mine.
4. Many of the per diem players are marketing and advertising much more than before. I suspect some of them have actively pursued my attorney accounts, and sometimes in the course of marketing they "inadvertently" have gotten in my kitchen and taken some clients. Fair is fair, and my view is it works both ways and evens out. In the end, quality will tell. One thing is for sure, the per diem business is no different than any other, you have to service your existing clients AND market for new business.
5. Some of the downturn in lawyer business spills over into accounts receivable. There are some really bad attorney clients in this biz. I've learned who they are, the hard way. I am tempted to name names, but I won't. What I will do though, is let my new competitors scoop up all THAT business, and then struggle to get paid from these deadbeats. Here's when I knew the depth of sleaze from one of these firms.......He ran up a $10,000 tab with me (you may ask, how did you let that happen? and the way it happens is every so often they send in $3-4000 when you really need it, so you stick with it, and then it gets out of hand) and forced me to sue him. We negotiated a settlement, which I had to chase him for. After it was all over, I called him and said "No hard feelings, I have a business proposal.....I know you have volume in Queens, and I would like the work, but I must get paid, SO, I will give you very VERY low prices, lower than anyone else, EVER, and I only have one condition.....I want to bill a credit card once a month". He said no. He then proceeded to stiff my biggest competitor for $6000!!!!
Yipes!!!! and I am usually the guy who defends other lawyers.
The business still has a lot going for it, but anyone thinking about trying it should remember, it IS a business.
Thursday, February 15, 2007
Fond Memories of TAP
I learned a lot about TAP (Trial Assignment Part) when I first started doing my per-diem business. At that time, Justice Alfred Lerner presided in the Queens TAP part. When I started getting assignments to appear in the TAP, other lawyers warned me about Judge Lerner. The sentiment in the courthouse was "He's not going to like what you're doing, covering all these cases for other people and asking for adjournments".
The reality for me was, at first, he didn't seem so bad. Even better, the reality that counted was that virtually every lawyer in the City thought he was tough, and they didn't want to appear before him. From my perspective, he seemed dedicated and hard working, and singularly focused: he wanted to move the calendar and settle the cases. It was inevitable we would clash, since as my business grew, lawyers were constantly calling me to "get one more adjournment in TAP". I tried, but then it started to happen, Queens per-diem justice courtesy of his honor. A few examples: making me come to court all day every day for six weeks waiting to pick a jury, and then assigning me to pick on two cases at once; making me pick a jury immediately, in his courtroom, in front of all the other lawyers; or assigning the same hostile trial Judge every time, after we refused his settlement recommendations.
He did these things to everybody. The technique I actually admired most, was how he solved problems with trial ready cases. First, he insisted on hearing in detail what the case was about and what the settlement positions were. After this, he would hear about who wasn't ready, or who had a problem with a witness or some evidence, or some other motion that needed to be decided. At that point, he would dispense hints about his potential rulings, based on where the settlement discussions were. He tried not to commit, but made the lawyers make painful concessions. If one stood up to this pressure, he would surely be losing on the rulings in question. Of course, these techniques did tend to make the cases settle, or as we say in court, the cases were "disposed" or "folded" or "went away". Having the Judge's techniques used on me, as I covered for others, was bad for business and bad for healthy living. I decided on a radical plan and told a few of the courthouse regulars of my intentions. I decided to figure out Judge Lerner’s motivations, then make an appointment and tell him about my per diem business. I would be honest, ask him what he would permit me to do and not do, and if he could not bless it, ask him at least not to destroy it.
I made an appointment and met with him in chambers one afternoon. I told him I respected what he was doing with the calendar, and that I had started this per diem business that led to a lot of lawyers asking me to appear in his part, that I wanted to be able to effectively appear, but I understood that he wanted the part run a certain way....a way that maximized resolving cases. I also made clear that I did not expect special treatment, nor would I permit any perception that I was getting special treatment.
He thought about it and said, "I have no problem with you or anyone else appearing in my part, and making a living. I don't think much of some of the firms that ask you to do their dirty work, or for lawyers who are lazy or disrespectful to the court. When you appear in my part, know the case and be prepared to talk about it and settle it. Have someone you can call for more authority when we negotiate. If the case has a problem, be up front about it. Sometimes, if there are lawyers you should not appear for, or requests you should not make, you will have to know these situations, and turn down THAT work. In the end, that will help you, wherever you appear."
What he told me is what I adopted as the way to appear in a TAP part. In Judge Lerner's part I had a standard operating procedure. When the lawyers would come in and sit down with him, I made sure I was the one who answered his first question "What is this case about?". I did it directly and with just the right amount of detail. I then summed up the settlement positions as I understood them, BEFORE he asked. This got the action going quickly, brought any problems to the fore, and got me in and out of there quickly. The WORST thing another lawyer could do was go in there, and talk about the case like he was the Tin Man talking to the wizard...."Well you see, we were walking down the yellow brick road, when....". whereupon Judge Lerner would bellow "SILENCE!!!!!" Then he would ask ME what the case was about. If you do per diem work, and appear in TAP parts, I advise the following:
1. If your instructions are "please adjourn", call and get better instructions.
2. Have someone to call from court if necessary. I make firms give me someone's cell phone. Otherwise, invariably when you are in trouble and call, "all the lawyers are in court". If the staff says that, ask them to get someone on a cell phone.
3. Protect your reputation in the TAP part. Be candid about what you do, show that you are prepared, and if you get caught short....apologize.
4. Maintain a good relationship with the clerks and court attorneys.
5. If there is a TAP appearance you know you should not make....turn it down.
Judge Lerner had it right
The reality for me was, at first, he didn't seem so bad. Even better, the reality that counted was that virtually every lawyer in the City thought he was tough, and they didn't want to appear before him. From my perspective, he seemed dedicated and hard working, and singularly focused: he wanted to move the calendar and settle the cases. It was inevitable we would clash, since as my business grew, lawyers were constantly calling me to "get one more adjournment in TAP". I tried, but then it started to happen, Queens per-diem justice courtesy of his honor. A few examples: making me come to court all day every day for six weeks waiting to pick a jury, and then assigning me to pick on two cases at once; making me pick a jury immediately, in his courtroom, in front of all the other lawyers; or assigning the same hostile trial Judge every time, after we refused his settlement recommendations.
He did these things to everybody. The technique I actually admired most, was how he solved problems with trial ready cases. First, he insisted on hearing in detail what the case was about and what the settlement positions were. After this, he would hear about who wasn't ready, or who had a problem with a witness or some evidence, or some other motion that needed to be decided. At that point, he would dispense hints about his potential rulings, based on where the settlement discussions were. He tried not to commit, but made the lawyers make painful concessions. If one stood up to this pressure, he would surely be losing on the rulings in question. Of course, these techniques did tend to make the cases settle, or as we say in court, the cases were "disposed" or "folded" or "went away". Having the Judge's techniques used on me, as I covered for others, was bad for business and bad for healthy living. I decided on a radical plan and told a few of the courthouse regulars of my intentions. I decided to figure out Judge Lerner’s motivations, then make an appointment and tell him about my per diem business. I would be honest, ask him what he would permit me to do and not do, and if he could not bless it, ask him at least not to destroy it.
I made an appointment and met with him in chambers one afternoon. I told him I respected what he was doing with the calendar, and that I had started this per diem business that led to a lot of lawyers asking me to appear in his part, that I wanted to be able to effectively appear, but I understood that he wanted the part run a certain way....a way that maximized resolving cases. I also made clear that I did not expect special treatment, nor would I permit any perception that I was getting special treatment.
He thought about it and said, "I have no problem with you or anyone else appearing in my part, and making a living. I don't think much of some of the firms that ask you to do their dirty work, or for lawyers who are lazy or disrespectful to the court. When you appear in my part, know the case and be prepared to talk about it and settle it. Have someone you can call for more authority when we negotiate. If the case has a problem, be up front about it. Sometimes, if there are lawyers you should not appear for, or requests you should not make, you will have to know these situations, and turn down THAT work. In the end, that will help you, wherever you appear."
What he told me is what I adopted as the way to appear in a TAP part. In Judge Lerner's part I had a standard operating procedure. When the lawyers would come in and sit down with him, I made sure I was the one who answered his first question "What is this case about?". I did it directly and with just the right amount of detail. I then summed up the settlement positions as I understood them, BEFORE he asked. This got the action going quickly, brought any problems to the fore, and got me in and out of there quickly. The WORST thing another lawyer could do was go in there, and talk about the case like he was the Tin Man talking to the wizard...."Well you see, we were walking down the yellow brick road, when....". whereupon Judge Lerner would bellow "SILENCE!!!!!" Then he would ask ME what the case was about. If you do per diem work, and appear in TAP parts, I advise the following:
1. If your instructions are "please adjourn", call and get better instructions.
2. Have someone to call from court if necessary. I make firms give me someone's cell phone. Otherwise, invariably when you are in trouble and call, "all the lawyers are in court". If the staff says that, ask them to get someone on a cell phone.
3. Protect your reputation in the TAP part. Be candid about what you do, show that you are prepared, and if you get caught short....apologize.
4. Maintain a good relationship with the clerks and court attorneys.
5. If there is a TAP appearance you know you should not make....turn it down.
Judge Lerner had it right
Tuesday, February 13, 2007
Bad is Good
Bad is good. That's the philosophy behind the main part of my law practice. One might call it a "niche" practice. I don't feel so lofty about it, so I call it what it is, "Queens Court Appearances". It works because of a basic business truth: Success can be as simple as finding and filling a demand in the marketplace. Put another way, making court appearances in Queens is so bad that lawyers pay me to do it for them. www.wecoverqueens.com
Essentially, I make court appearances for other lawyers on any kind of civil case in Queens County. "Civil" is a word to distinguish these cases from "criminal", another beast altogether. There is not much civil about them, just an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.
There are so many cases that it takes many months to get a trial date once you are "on the calendar". However, before a case can even go on the calendar, all "discovery" must be completed. Discovery means each party learns about their opponents case, through depositions, physical exams, expert reports, and many other techniques, all designed to keep discovery fair. Of course, someone in the sandbox is always yelling "no fair". The legal way to yell "no fair" is to "make a motion" (yelling on papers) or "demand a conference" (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences. There are so many motions and conferences that each Judge (there are 20 such Judges just in Queens County) has a "motion day" and "preliminary conference day". A typical motion day calls for 50-75 motions, all scheduled at the same time. All these matters, great and small, require lawyers to appear in court. All this yelling may be legally necessary, but for plaintiffs lawyers especially, it's bad business. All the plaintiffs lawyers are on a contingency fee: they get paid a percentage of any settlement, later........ at the end. They want to spend as little time as possible now........ in the beginning. Civil defense lawyers get paid by insurance companies, by the hour. They love to yell, its good business.
And these are only the preliminaries! Many months and many appearances later, all this legal jousting ends and the case goes on the calendar, heading towards its eventual end, the cholesterol of the court system, a civil jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep getting paid.
There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a "TAP part". It sounds cool....."Meet me in TAP. Who's sitting in TAP. Can I get an adjournment in TAP? Tap me if I fall asleep in TAP."
The TAP Judge's job is to handle the onslaught of trial ready cases in the TAP part. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. Even in the "Queens Court Appearances" business, it's a different kind of business......
Essentially, I make court appearances for other lawyers on any kind of civil case in Queens County. "Civil" is a word to distinguish these cases from "criminal", another beast altogether. There is not much civil about them, just an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.
There are so many cases that it takes many months to get a trial date once you are "on the calendar". However, before a case can even go on the calendar, all "discovery" must be completed. Discovery means each party learns about their opponents case, through depositions, physical exams, expert reports, and many other techniques, all designed to keep discovery fair. Of course, someone in the sandbox is always yelling "no fair". The legal way to yell "no fair" is to "make a motion" (yelling on papers) or "demand a conference" (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences. There are so many motions and conferences that each Judge (there are 20 such Judges just in Queens County) has a "motion day" and "preliminary conference day". A typical motion day calls for 50-75 motions, all scheduled at the same time. All these matters, great and small, require lawyers to appear in court. All this yelling may be legally necessary, but for plaintiffs lawyers especially, it's bad business. All the plaintiffs lawyers are on a contingency fee: they get paid a percentage of any settlement, later........ at the end. They want to spend as little time as possible now........ in the beginning. Civil defense lawyers get paid by insurance companies, by the hour. They love to yell, its good business.
And these are only the preliminaries! Many months and many appearances later, all this legal jousting ends and the case goes on the calendar, heading towards its eventual end, the cholesterol of the court system, a civil jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep getting paid.
There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a "TAP part". It sounds cool....."Meet me in TAP. Who's sitting in TAP. Can I get an adjournment in TAP? Tap me if I fall asleep in TAP."
The TAP Judge's job is to handle the onslaught of trial ready cases in the TAP part. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. Even in the "Queens Court Appearances" business, it's a different kind of business......
Monday, January 22, 2007
Depositions Part 2
You CAN win a case taking your opponents deposition.
It won't be true in every case, but there are some cases where you can see it might happen, and you should have a strategy regarding how you are going to do it. Taking a deposition is all about "nailing down facts". I like to question a witness about something that I KNOW is in a document, before I question about the document. If I can elicit testimony about how a document was produced, and the witness' awareness of it, and its reliability, I go for it. When I then produce the document and ask for specific identifications and admissions, the witness cannot escape.
Sometimes a witness will make a stunning admission during a deposition. If you pick up on this, do not tip your hand, but DO have the witness confirm what he has said, and keep narrowing down the questions to make the admissions stronger. Don't let on to what you have, but KEEP GOING for more, as much as you can get.
If a witness is being evasive about an issue, do not accept this at face value, make a record that helps you if you need to make a motion to compel. Witnesses will often admit that a document or record exists "but its not here". Confirming that it exists, and where it might be, and what its all about, are all worth making a record.
As mindful as I am about leaving "openings" for my own witness, I really try to close all the openings for an adversary. If I think something happened a certain way, but there are possible other ways, and the witness will testify in a way that closes off the other possibilities (if only you ask).....ASK!!!!
I am almost never confrontational with opposing witnesses at a deposition. I try to be clear and calm and direct. I try never to let them fluster me, and I want to convey that I have all the time in the world, and that I will keep asking questions until they answer what I want to know. You would be surprised how often an initially belligerant witness will capitulate and start answering directly, if they know you are going to keep at it, and not embarrass them.
If you think the witness may not appear later and his transcript will be used, prepare your questions this way, so you have a useful transcript.
If you got almost everything you wanted and needed, and think you can win the case on a motion for summary judgment, go for it. A motion for summary judgment is an overlooked discovery tool. More on this tomorrow....
It won't be true in every case, but there are some cases where you can see it might happen, and you should have a strategy regarding how you are going to do it. Taking a deposition is all about "nailing down facts". I like to question a witness about something that I KNOW is in a document, before I question about the document. If I can elicit testimony about how a document was produced, and the witness' awareness of it, and its reliability, I go for it. When I then produce the document and ask for specific identifications and admissions, the witness cannot escape.
Sometimes a witness will make a stunning admission during a deposition. If you pick up on this, do not tip your hand, but DO have the witness confirm what he has said, and keep narrowing down the questions to make the admissions stronger. Don't let on to what you have, but KEEP GOING for more, as much as you can get.
If a witness is being evasive about an issue, do not accept this at face value, make a record that helps you if you need to make a motion to compel. Witnesses will often admit that a document or record exists "but its not here". Confirming that it exists, and where it might be, and what its all about, are all worth making a record.
As mindful as I am about leaving "openings" for my own witness, I really try to close all the openings for an adversary. If I think something happened a certain way, but there are possible other ways, and the witness will testify in a way that closes off the other possibilities (if only you ask).....ASK!!!!
I am almost never confrontational with opposing witnesses at a deposition. I try to be clear and calm and direct. I try never to let them fluster me, and I want to convey that I have all the time in the world, and that I will keep asking questions until they answer what I want to know. You would be surprised how often an initially belligerant witness will capitulate and start answering directly, if they know you are going to keep at it, and not embarrass them.
If you think the witness may not appear later and his transcript will be used, prepare your questions this way, so you have a useful transcript.
If you got almost everything you wanted and needed, and think you can win the case on a motion for summary judgment, go for it. A motion for summary judgment is an overlooked discovery tool. More on this tomorrow....
Saturday, January 20, 2007
Depositions Part 1
You can't win a case at your clients deposition, but you CAN lose it.
I have handled depositions for other attorneys, where part of my assignment was to "prep the client". This can be a very uncomfortable situation. I have had prepped plaintiffs in a trip and fall case where they "didn't know where the accident happened". Another time the plaintiff told me "I guess I just fell". Another time, in a pedestrian knockdown case, the plaintiff told me he ran in front of a parked bus and then got nailed by a car which could not see him, because his friend had motioned to him that it was safe. What did their attorneys of record expect ME to do? What is "prep" in a case like that? I know that in those situations, the clients testimony is going to doom the case if I don't advise them properly. It's a dicey proposition..... how far you can go? I try to explain to the client the importance of the deposition, the purpose for it, and the consequences of the answers. Sometimes this is the first time the client realizes there is more to the case than "I got hurt, when do I get paid?". If I have to educate another lawyer's client about proving liability, shame on the lawyer, BUT, I will do it.
When I have depositions for my own clients, and the luxury of proper prep, here are a few helpful suggestions for proper prep:
1. I emphasize to the client that we are not there to "testify" or "prove the case" or "convince". We are there because the law gives the adversary the right to get more information about the case. However, they are going to have to work for it. Therefor, most importantly....."LISTEN TO THE QUESTION ASKED, AND ANSWER JUST THAT QUESTION". The way I illustrate this to the client is to say "If the question is.....'Did there come a time when you were involved in a motor vehicle accident', the answer to that question is 'YES'". That's it, let them ask you the details, answer the question asked and STOP.
2. THINK before you answer. The deposition is recorded on a written transcript, but the transcript will not show if you hesitate or think. If you need to think, think. If you are not sure what a question means, ask for it to be clarified.
3. Remember that the defense lawyer needs to establish what your claim IS, and what it ISN'T. Therefor, you will answer certain questions, especially about your damages or injuries, in the negative. Don't worry if you can't say yes to every question about your injuries.
4. The one time you can speak expansively is when asked about how your injuries affect you. Remember, when the questions start to be "is there anything else", your agreeing that there is nothing else will be used to limit your damages claim.
5. If there is some key element on liability, and you know the defendant will focus on it (like NOTICE in a premises cases, or damages threshold in an auto case), emphasize this to the client and go over these issues carefully. Ask sample questions and talk to the client about the answers.
6. Some clients don't know what to expect, and are so nervous they don't absorb your prep. I always explain to an inexperienced client that we will NOT be in court, there will be no judge or jury present, we will be sitting around a table, that I will be there next to you, that the deposition will not be much different than our prep, and that being nervous does not help (though I understand you may be anyway). I really work hard to calm a nervous client before we start, because these clients can fall apart in disastrous ways.
You should NOT let a case be lost by a poor deposition, and the onus is on YOU to control this.
Tomorrow, you can't lose your case taking your adversaries deposition, but you CAN win it.
I have handled depositions for other attorneys, where part of my assignment was to "prep the client". This can be a very uncomfortable situation. I have had prepped plaintiffs in a trip and fall case where they "didn't know where the accident happened". Another time the plaintiff told me "I guess I just fell". Another time, in a pedestrian knockdown case, the plaintiff told me he ran in front of a parked bus and then got nailed by a car which could not see him, because his friend had motioned to him that it was safe. What did their attorneys of record expect ME to do? What is "prep" in a case like that? I know that in those situations, the clients testimony is going to doom the case if I don't advise them properly. It's a dicey proposition..... how far you can go? I try to explain to the client the importance of the deposition, the purpose for it, and the consequences of the answers. Sometimes this is the first time the client realizes there is more to the case than "I got hurt, when do I get paid?". If I have to educate another lawyer's client about proving liability, shame on the lawyer, BUT, I will do it.
When I have depositions for my own clients, and the luxury of proper prep, here are a few helpful suggestions for proper prep:
1. I emphasize to the client that we are not there to "testify" or "prove the case" or "convince". We are there because the law gives the adversary the right to get more information about the case. However, they are going to have to work for it. Therefor, most importantly....."LISTEN TO THE QUESTION ASKED, AND ANSWER JUST THAT QUESTION". The way I illustrate this to the client is to say "If the question is.....'Did there come a time when you were involved in a motor vehicle accident', the answer to that question is 'YES'". That's it, let them ask you the details, answer the question asked and STOP.
2. THINK before you answer. The deposition is recorded on a written transcript, but the transcript will not show if you hesitate or think. If you need to think, think. If you are not sure what a question means, ask for it to be clarified.
3. Remember that the defense lawyer needs to establish what your claim IS, and what it ISN'T. Therefor, you will answer certain questions, especially about your damages or injuries, in the negative. Don't worry if you can't say yes to every question about your injuries.
4. The one time you can speak expansively is when asked about how your injuries affect you. Remember, when the questions start to be "is there anything else", your agreeing that there is nothing else will be used to limit your damages claim.
5. If there is some key element on liability, and you know the defendant will focus on it (like NOTICE in a premises cases, or damages threshold in an auto case), emphasize this to the client and go over these issues carefully. Ask sample questions and talk to the client about the answers.
6. Some clients don't know what to expect, and are so nervous they don't absorb your prep. I always explain to an inexperienced client that we will NOT be in court, there will be no judge or jury present, we will be sitting around a table, that I will be there next to you, that the deposition will not be much different than our prep, and that being nervous does not help (though I understand you may be anyway). I really work hard to calm a nervous client before we start, because these clients can fall apart in disastrous ways.
You should NOT let a case be lost by a poor deposition, and the onus is on YOU to control this.
Tomorrow, you can't lose your case taking your adversaries deposition, but you CAN win it.
Saturday, December 30, 2006
Lawyers as Clients
I have often said that when my per diem practice started growing, it was a good thing because it eliminated the main problem of general practice.....the clients. Not to disparage my private clients, but here are some positive things about lawyers as clients, especially when they are hiring you for per diem work:
1. They understand that you need to clearly define the service to be offered, and the fee. Granted, the projects are often finite and simple, but I have never had a lawyer question me when I clarified the limits of the service, and defined the fees for extra services.
2. Most of them pay on time. Not all, but most. The challenge in per diem is to build a following of lawyers, and when you figure out who the dogs are, get rid of them. I will generally extend open credit to a new lawyer client, but if they start to run a tab above $500 and over 30 days, I address this immediately. I re-bill after 30 days, then fax a reminder in 45, then I call. I have also found it very helpful to accept credit cards by phone. It is very easy to set up, and if a lawyer client is running a tab that makes you uncomfortable, asking for a credit card payment is a sure-fire test of their intentions. If they don't pay, and don't agree to make a credit card payment, end the relationship.
3. They understand what you are supposed to do, and what you did. When something unexpected happens in court, as it often does, this does not cause the lawyer/client to lose confidence and question your ability.
4. The "case" ENDS....at least as far as my involvement. I don't have to maintain a file forever, and think about it, and have it get revived at unpredictable times. I get hired, I work, I get paid, its done......repeat.
These issues are all instructive in our problems with private clients, and worthy of further discussion.....
1. They understand that you need to clearly define the service to be offered, and the fee. Granted, the projects are often finite and simple, but I have never had a lawyer question me when I clarified the limits of the service, and defined the fees for extra services.
2. Most of them pay on time. Not all, but most. The challenge in per diem is to build a following of lawyers, and when you figure out who the dogs are, get rid of them. I will generally extend open credit to a new lawyer client, but if they start to run a tab above $500 and over 30 days, I address this immediately. I re-bill after 30 days, then fax a reminder in 45, then I call. I have also found it very helpful to accept credit cards by phone. It is very easy to set up, and if a lawyer client is running a tab that makes you uncomfortable, asking for a credit card payment is a sure-fire test of their intentions. If they don't pay, and don't agree to make a credit card payment, end the relationship.
3. They understand what you are supposed to do, and what you did. When something unexpected happens in court, as it often does, this does not cause the lawyer/client to lose confidence and question your ability.
4. The "case" ENDS....at least as far as my involvement. I don't have to maintain a file forever, and think about it, and have it get revived at unpredictable times. I get hired, I work, I get paid, its done......repeat.
These issues are all instructive in our problems with private clients, and worthy of further discussion.....
Friday, December 29, 2006
more thoughts on per diem
There are a lot of ways to get per diem business. Some of the standard ways work pretty well, including networking your existing attorney contacts, word of mouth, and advertising in bar journals and legal newspapers. I have always done best with variations on direct mail, to a targeted list. The attorneys I mail to are those who have court appearances coming up.....especially the types that lend themselves to per diem coverage. For example, most Civil cases in New York have a "Preliminary Conference" ( a "PC"....we love acronyms and abbreviations in the per diem biz). PC's are good ones for per diem because they are not too complicated, but one can end up waiting around for awhile. Unlike Federal Court, where they might schedule a PC at 3:45 in the afternoon, and you have a real conference with the court, in State Court they schedule about 75 PC's every morning at 9:30 AM. All the attorneys mill around the halls until they find their adversary, fill out their little discovery order, hand it in, and leave. Its worthwhile to pay someone else to do this, and its worthwhile to try to get these appearances because you can do as many as you can get. My personal record is 16.
Another reason I like PC's, is that its fairly early in the case, and if you make a new law firm client, you have a good shot at the CC (compliance conference), PTC (pre-trial conference) EBT (examination before trial, which most human beings call a deposition), and any motions.
I like PC's so much that I price them on the low side, to help grow the client base.
In this context the "client base" are other lawyers and law firms, in many ways the best types of "clients"....more on this in the next post....
Another reason I like PC's, is that its fairly early in the case, and if you make a new law firm client, you have a good shot at the CC (compliance conference), PTC (pre-trial conference) EBT (examination before trial, which most human beings call a deposition), and any motions.
I like PC's so much that I price them on the low side, to help grow the client base.
In this context the "client base" are other lawyers and law firms, in many ways the best types of "clients"....more on this in the next post....
Thursday, December 28, 2006
Thoughts on per diem work
About 10 years ago, I started focusing my practice on "per diem" court coverage for other attorneys. Essentially, I cover court appearances on civil cases in Queens County, New York. There appeared to be a demand for this service, which I had noticed in my own practice, especially when I had to appear in Court outside of Queens. Every time I would go to another County for a motion, or a scheduling conference, or a pre-trial conference, several things would happen: I would spend the entire morning there, I didn't know the local rules and customs, I didn't know the Judges or clerks or adversaries, I didn't know where to park or eat, and I was tired when I got back to Queens. When I covered my own cases in Queens, I found these problems weren't so bad, and I also noticed how much my adversaries generally hated being there. I started thinking about what I (they) would pay, not to have to do these appearances, and $75 - $150 seemed to be the range.
Another thing I noticed was that if planned right, one attorney could handle multiple appearances in the same building (I used to actually cover two buildings next door to each other, but I'm kinda nuts). All this takes is knowing the local practices, such as which Judges have a second call at what times, which Parts allow you to just "check in", etc. It also doesn't hurt to have the Court staff helping you (or at least not hurting you). Then, all I needed was a marketing plan and we'd be in "business".....
Another thing I noticed was that if planned right, one attorney could handle multiple appearances in the same building (I used to actually cover two buildings next door to each other, but I'm kinda nuts). All this takes is knowing the local practices, such as which Judges have a second call at what times, which Parts allow you to just "check in", etc. It also doesn't hurt to have the Court staff helping you (or at least not hurting you). Then, all I needed was a marketing plan and we'd be in "business".....
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