9/5/13

ISBA Basic Skills

For Newly Admitted Attorneys
Presented by the Illinois State Bar Association

YOUR NEW LEGAL CAREER

Moderator:
Sarah E. Toney, The Toney Law Firm LLC, Chicago
Speakers:
Jean A. Kenol, Mahoney, Silverman & Cross, LLC, Joliet
Paul A. Osborn, Ward, Murray, Pace & Johnson, P.C., Sterling
Sarah E. Toney, The Toney Law Firm LLC, Chicago

Jean A. Kenol
Speaker

Graduated from the University of Notre Dame

with a B.A. in Government in 1998 and earned
his J.D. from the University of Illinois College
of Law in 2001

Admitted to practice in Illinois and the U.S.

District Court Northern District of Illinois

Completed the American University Semester

program on public policy in Washington, D.C.
where he clerked for Congressman Jerry Weller
of the 11th congressional District of Illinois

Interned for Hon. Ann C. Williams, United

States Court of Appeals, Seventh Circuit

Has been an active member of the ISBA Young

Lawyers Division Council since May 2007 and
currently serves as its Chair

Was named the Joliet Area Young Professional

of the Year in 2012 by the Joliet Region
Chamber of Commerce

Paul A. Osborn
Speaker

Graduated from the University of Illinois

School of Law in 1980

Partner at Ward, Murray, Pace & Johnson, P.C.

in Sterling, Illinois; has been with the firm since
graduating law school

Has served on a number of ISBA Section

Councils and Committees, including the ISBA
Commercial, Banking and Bankruptcy Section
Council; the ISBA Standing Committee on
Continuing Legal Education; the ISBA Solo &
Small Firm Conference Committee; the ISBA
Family Law Section Council (where he
currently serves as the Councils liaison to the
Continuing Legal Education Committee); and
the ISBA Task Force on MCLE

Was appointed by ISBAs Past President, John

Locallo, to the special committee on
membership enhancement

Has been a presenter for the ISBA Basic Skills

Course for New Admittees each year since its
inception

9/5/13

Sarah E. Toney
Moderator/Speaker

Admitted to the U.S. District Court, Northern

District of Illinois, General Federal Bar in
2004

Admitted to the U.S. District Court, Central

District of Illinois in 2006 and the U.S. Court
of Appeals, Seventh Circuit in 2007

Currently serves as Vice-Chair for the ISBA

Traffic Laws and Courts Section Council and
the Chair of the ISBA Young Lawyers Division
Social Committee

Has been an Adjunct Professor at Loyola

University Chicago School of Law since 2006

Has served as an Alumni Class Representative

for the Loyola University of Chicago School of
Law since 2009

Member of the National Association of

Criminal Defense Lawyers, National College
for DUI Defense, Inc., Illinois State Bar
Association, Chicago Bar Association, and
Womens Criminal Defense Bar Association

POLLING QUESTION 1
Are you currently working in the legal
profession?
Yes
No

TIPS FOR SUCCESS

9/5/13

POLLING QUESTION 2
What is your greatest professional fear?
Losing a case
Showing up late
Missing an important deadline
Not knowing the answer to a judges or partners question
Being fired
Getting into disciplinary trouble
Other
(You may share it via microphone or via index card submitted to the moderator)

New Attorney Challenges

POLLING QUESTION 3
Where would you like to be in your legal
career 10 years from now?
Own my own solo practice
Partner in a small firm
Partner in a big firm
Corporate counsel
Serving in the judiciary
Legal Aid/Public Interest
Other/Non-legal career

9/5/13

Career Pathways

Goal Setting for New Attorneys

POLLING QUESTION 4
For those of you working in a legal
position, are you generally satisfied with
your position?
Yes
No

9/5/13

Job Satisfaction/
Challenging Work Situations

Learning From Mistakes

POLLING QUESTION 5
What is your favorite way to cope with stress?
Reading
Exercise/sports
Socializing
Watching television/movies
Sleeping
Music
Other
(You may share it via microphone or via index card submitted to the moderator)

9/5/13

Work/Balance of Life Issues

Parting Words of Wisdom

Questions can be sent to:

ISBA
clespeakerq@isba.org
Jean A. Kenol
jkenol@msclawfirm.com
Paul A. Osborn
osborn@wmpj.com
Sarah E. Toney
sbsarah@aol.com

Seeking Wisdom
By: Jean A. Kenol
The single best (and most memorable) piece of advice that I received came from a
professor of mine during my junior year of college. He told me to always seek wisdom. In
his explanation of this advice he told me to seek advice from trusted people who have been down
the paths I will take throughout my life. Basically, find a mentor. This advice never became
more valuable than when I started my legal career.
Recently, I went to dinner with an old friend who had just been sworn in as an attorney.
We talked about his plan to start his own law practice and he wanted to get my thoughts. I
passed along the advice of my old professor. However, I started to think about the dilemma of a
new lawyer, especially one who starts off on their own. How do you find a mentor?
I have been fortunate in my career in that I was able to find mentors within my law firm.
The senior attorneys at my office have been open and generous with their time, talents and
experiences and one partner in particular has taken a vested interest in my career. He serves as
my go to person for all areas of the practice of law. From how to handle a difficult client, to
dealing with peculiar legal issues, I have a go to person that I trust for advice.
Unfortunately, for a lot of new lawyers, this type of mentorship is not as easily available.
If you dont have a person you feel comfortable enough with to serve as your mentor, here are a
few suggestions.
- Join your local bar association. By getting involved in your local bar association, you
will be put into contact with lawyers of various practices who care about the profession.
- Contact your alma mater. Often schools have a mentorship program that can put you in
contract with people who will be willing to help out fellow alumni.
- The ISBA. The ISBA has a mentorship program that can be accessed at the following
site: http://www.isba.org/MentorCenter/
To the more seasoned lawyers reading this article - take the time to mentor. At some
point in all of our careers we were a young attorney and at some time or another we have
benefited from the advice of a more experienced one. Take the time from your schedule to
answer a question, proof read a brief, or take a newer attorney out to lunch. Teaching new
attorneys the right and ethical way to do things will benefit our entire profession.
Take advantage of the experiences of others. The people with grey hairs have them for a
reason. They have faced many of the same challenges, stresses, and obstacles that we currently
face. Seek their wisdom.

April 2013 Volume 101 Number 4 Page 208

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

The Fourth Year Law Student

By Karen Erger
You survived law school - now your legal education really begins.
School's out for summer
School's out forever
-Alice Cooper
First years are hard years
Much more than we know
-Theme from The Paper Chase1
In the wake of bleak prospects in the legal job market and a sharp decline in the number of law school applicants,
the idea of allowing students to take the bar exam after only two years of law school has surfaced. Proponents say
that the benefits would include reducing the amount of debt with which students leave law school and making legal
representation more affordable. The idea is premised on the assumption that "many law students can, with the
appropriate course work, learn in the first two years of law school what they need to get started in their legal
careers."2
It may be true that students have what they need "to get started" after two years of law school, but no one emerges
from law school with all of the skills necessary to be a competent practitioner, and this would be the case whether
law school was a two-, three- or, for that matter, four-year program.
What happens after you graduate and pass the bar - however long after that hellish first year it turns out to be - is
every bit as important to your legal education as learning the mailbox rule or the rule against perpetuities. Let's
outline a course of study for your "fourth year" - or, if the experts have their way, the third year - of legal education.
Don't cut class. Do whatever it takes to practice with experienced lawyers before you hang out your own shingle,
even if it means working for peanuts. This really is the final stage of your legal education and this "class" is one you
cannot afford to miss. For that reason, if you are fortunate enough to have more then one job offer, choose the one

that offers the best "legal education," even if it pays less. Just as you picked the best law school you could afford,
entrust this part of your legal education to the best firm you possibly can.
Pick the best teachers. When I was a student at the University of Chicago we actually camped out - in tents - so we
could get first choice of classes and pick the sections with the best teachers.3 You probably won't need to break out
your sleeping bag, but try to work with the best lawyers at your firm, even if - especially if - they have the reputation
for being tough taskmasters or just plain quirky.
I learned a ton from a lawyer who treated every one of his first-year proteges to an emphatic lecture on "Why I Hate
the Paper Clip" - and he didn't mean the annoying Microsoft Word paper clip dude; he was talking about the
seemingly innocuous wire paper fastener. Actually, I think he was right about paper clips, and plenty of other stuff,
too.
Choose a major (area of practice). Competence is fun and it is also required by the Rules of Professional Conduct.
For this reason, choose a few areas of law in which you will concentrate your practice. As you will learn, keeping on
top of just one or two areas of practice is challenging enough - it is simply not possible to keep abreast of
developments in all areas of law. Being recognized as an able practitioner in a particular area is extremely satisfying,
and it helps attract clients, too.
Put the good stuff in your Trapper Keeper.4 When you run across a well-drafted set of interrogatories, a great designbuild agreement, a comprehensive checklist - add it to your form file. A great form file is the best reference tool
you'll ever use - it will make you more efficient and make your work product better.
Don't be afraid to raise your hand. Ask questions - lots of them. No one expects you to know everything, and you
have a lot to learn. A firm that has a "don't ask-don't tell" philosophy is a bad place for you to learn your trade.
Do your homework. There may be no such thing as a dumb question, but there is such a thing as a lazy question.
Before you ask, do your homework. Read the statute, review the contract, know the case law. You'll ask better
questions, you'll make a better impression and, best of all, you will learn more and faster.
CYA. Not what you think - this means Confirm Your Assignment. It may sound obvious, but be sure you fully
comprehend the assignment before you begin work. Bring a notepad to the partner's office, ask questions, take notes,
confirm your understanding. Try to learn all you can about the client's matter, not just your piece of it. Spending two
non-billable days researching the wrong question is a painful way to learn the importance of CYA.
Forget blind grading. Once you reach the fourth year of your legal education, blind grading is a thing of the past.
The quality of your work is important, of course, but it is almost as important to demonstrate that you care about the
matter and are giving it the attention it deserves.
This turns out to be true whether you are a first-year associate working for a partner or a partner working for a client.
Start cultivating good communication and client-relations habits now - they are critical to winning clients and
keeping them happy, and also to preventing malpractice claims.
Be a clock-watcher. Billing your time as you go is an important habit to cultivate. Trying to reconstruct how you
spent your day two Tuesdays ago is a tiresome, soul-sucking endeavor, and you are bound to end up cheating
yourself or the client. You will earn more, and you will suffer less, if you write down your time promptly.
Don't be a jerk. Even if you practice in a big city, the legal community turns out to be surprisingly small. Don't be a
jerk to opposing counsel in the name of zealous advocacy. It is pointless if not actually counterproductive, and it will
come back to haunt you when you least expect it.
Make friends. The friendships you forge in the crucible of a difficult trial or a complex deal can end up lasting a
lifetime and are one of the very best things about practicing law with other lawyers. If you move on, stay in touch.

Pack a lunch. Literally, grab a brown bag and put something nutritious in it before you leave the house. Especially
when things get hectic, it is all too easy to fall into bad eating habits. Fast food lunches, too many office snacks, and
eating out will take their toll not just on your waistband but also your health.
Remember to take care of yourself, not just physically, but mentally. Do your best to stay connected to the people
and activities that are vital to your happiness.
The fourth year is a crucial part of your legal education - study hard and learn well.
Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

1. Norman Gimbel and Charles Fox penned the theme song for this TV show that
depicted the travails of one James T. Hart and his fellow students making their way
through Harvard Law School. Despite the thrilling subject matter, the show only
lasted one season (1978/79) on network TV. Showtime picked up the show in 1983
and aired three more seasons, finally allowing Mr. Hart to graduate in the fourth and
last season.
2. Daniel B. Rodriguez and Samuel Estreicher, Make Law Schools Earn a Third Year,
The New York Times, January 17, 2013,
http://www.nytimes.com/2013/01/18/opinion/practicing-law-should-notmean-
living-in-bankruptcy.html?src=xps
3. Sadly, this was an activity that passed for "fun" back in the day. It is not an accident
that one of the University's best selling T-shirts sports the phrase, "Where Fun Goes
to Die."

August 2013 Volume 101 Number 8 Page 432

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

The Judges Corner

Happiness Tips from Seligman and Ziglar

By Hon. Ron Spears
Can you be both happy and healthily pessimistic? Lawyers ignore the challenge at their peril.
During his law practice and now as a judge for 20 years, Judge Justice has learned that the daily exposure to legal
problems of clients can have a detrimental effect on one's physical and mental health. Effectively representing a
client (or deciding a case as a judge) requires absorbing in vivid detail the endless dramas of human conflict,
suffering, and tragedy.
Broken families, injured people, failing businesses, ruined lives, death and disability, deception and fraud, abuse and
neglect, crime and punishment - recurrent themes with varied stories compounded daily in the lawyer's mind.
Sometimes a specific case shakes you to the core. Other times the cumulative effect wears you down.
It can lead to asking the question posed by William Garrow in the British barrister television show Garrow's Law.
After unsuccessfully representing a young boy who is sentenced to death, Garrow is inconsolable and asks: "What
does a lawyer do when all this beats too deep on his soul? Where do I then find hope?"
Studies of various types of caregivers, including lawyers, have now shown that repetitive exposure to traumatic facts
and the lawyer's efforts in trying to help the suffering client can result in his or her own secondary trauma and
burnout. This helps explain why lawyers have higher rates of substance abuse, divorce, anxiety, depression, suicide,
and even clinical intervention. A lawyer may become impaired to the point that performance fails to meet standards
of professional conduct.
It is critical that lawyers and judges learn to spot symptoms in themselves. Even more important is to develop
coping strategies, resiliency, and healthy habits. Lawyers really can be happy, but not by accident.
Fundamentals of happiness
No simple strategy works for all lawyers and judges. Fundamentals are healthy habits (sleep, exercise, diet), healthy
relationships with family and friends (and ending unhealthy ones), and choosing a healthy diet for your mind
(healthy, funny, uplifting thoughts instead of doom, gloom, and negativity). Religion and spiritual beliefs can inspire
hope. Meditation and yoga can help. Authors like Norman Vincent Peale, Dale Carnegie, Stephen Covey, Brian
Tracy and others write about the power of positive, optimistic thinking and self-improvement. Gretchen Rubin, a

former lawyer and law clerk to Justice Sandra Day O'Conner, has written Happiness Project about her steps to a
fulfilling life (see www.happiness-project.com).
Judge Justice recalled reading most of Zig Ziglar's motivational books. Ziglar was a dynamic speaker and author
with quotes like:
"You will get all you want in life, if you help enough other people get what they want."
"Your attitude, not your aptitude, will determine your altitude."
"You are what you are and where you are because of what has gone into your mind. You can change what you are
and where you are by changing what goes into your mind."
"You can make positive deposits in your own economy every day by reading and listening to powerful, positive,
life-changing content and by associating with encouraging and hope-building people."
Martin Seligman is a psychologist and director of the University of Pennsylvania's Positive Psychology Center (see
resources at www.ppc.sas.upenn.edu and www.authentichappiness.sas.upenn.edu). He has written several books
including Authentic Happiness (2003), Learned Optimism (2006), and Flourish (2012). In Flourish, Dr. Seligman
offers a theory of well-being based on the acronym PERMA: Positive Emotions, Engagement, Positive
Relationships, Meaning, and Accomplishment. These skills can be learned and practiced.
In a November 2001 Cardozo Law Review article, "Why Lawyers Are Unhappy," Seligman helped address the
causes and dangers of dysfunction in the legal system from lawyer and judge impairment. He notes the surprising
correlation between pessimists and success in law school and how pessimism (extreme caution, prudence,
skepticism, and reality-appreciation) can be an asset for a lawyer.
However, the qualities that make for a good lawyer may not make for a happy human being. "The challenge is how
to remain prudent professionally and yet contain pessimistic tendencies in domains of life outside the office."
As one small step, many years ago the judge even joined Optimist International, a service organization where local
clubs join in service projects for the youth in their communities. One source of attraction was the Optimist Creed,
originally penned by Christian Larson in 1902, which members recite every week. While aspirational, it can be a
start to optimistic thinking.
Promise Yourself

To be so strong that nothing can disturb your piece of mind.

To talk health, happiness and prosperity to every person you meet.
To make all your friends feel that there is something in them
To be too large for worry, too noble for anger, too strong for fear, and too happy to permit the presence of
trouble.
You'll find the entire creed on the web at http://www.optimist.org/creed.

Ronald D. Spears of Taylorville is a judge of the fourth judicial circuit and past president of the Illinois Judges
Association.

February 2013 Volume 101 Number 2 Page 100

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

What Do You Know? Give a Talk About It

By Karen Erger
Anxious about public speaking? Try choosing a topic you really know. And lawyers know a lot about a lot of topics.
Hello - is there anybody in there?
Pink Floyd, "Comfortably Numb"
Whether you're a sole practitioner or part of a large law firm, the practice of law can leave you feeling isolated, not
just personally, but professionally. This is a big surprise for many lawyers who grew up (as I did) watching TV
shows where the lawyers are collaborating, backstabbing, arguing, and generally interacting with live human beings
most of the time. Obviously a more realistic show depicting a real-life lawyer researching and writing a brief
(alone), eating dinner at her desk (alone) and going home late at night (alone) would not be a big hit.
For many reasons, it is vital to get out of the office and get connected professionally - not just to other lawyers, but
also to the community in which you practice. Because your time is valuable and limited, you'll want to do this in the
most effective way possible. And there is a way to reconnect that helps you network, earns you referrals, impresses
clients (present and future), and makes you a better lawyer: Give a talk about a legal topic that you know inside and
out.
Studies indicate that as many as 60 percent of readers are, at this point, saying, "Hell, no,"1 but don't go away just
yet; I know what's it's like to dread public speaking. Almost 20 years ago, my law firm's managing partner told me
point-blank that public speaking was "not my forte."2 Since then, though, public speaking has brought me wonderful
opportunities (including my current job), enduring friendships,3 and a satisfying sense of connectedness to my
professional community and competence in my area of practice.
You can do this - try it just once.
Tell what you know
The best way to conquer stage fright is to know what you're talking about.

Michael H. Mescon
Actually, if my experience is any indication, try it twice. My first foray into the oratory world was an unmitigated
disaster. The talk that led my boss to pronounce my public speaking career DOA was a lunchtime lecture to be
delivered to our law firm. The assigned topic was "Mechanics Liens," a topic about which I knew little and cared
less - then, anyway. Lord, did my talk ever stink. It may have been more painful to watch than it was to deliver, and
that is really saying something.
I successfully evaded any professional responsibilities involving a podium for several years. Then I left private
practice and became a claim supervisor for a professional liability insurance carrier. And my very first claim was a
large and fragrant - er, lemon - from the day I opened the file. It was my first (but sadly, not last) experience with
being "hometowned" - where the defendant's actual culpability is slight-to-nonexistent, but she is the only out-oftowner in the case and thus becomes the inevitable repository for all liability. That was bad enough, but this was a
classic "butter-side-down" case where everything that could possibly go wrong actually did, and then some. The
claim dominated my work life and invaded my dreams until it finally settled for wa-a-a-y too much money.
Then my manager asked me to present the claim as a case study at a national conference. I wanted so badly to blurt
out "Nuh-uh. I'm a crummy public speaker," but I agreed; it seemed like a good idea to try to redeem myself in the
wake of the Claim from Hell. I vividly remember clomping across the huge stage, sweating like a racehorse under
the hot lights, planning to remove my glasses the minute I reached the podium so I couldn't see the looks of mingled
boredom and dismay I expected to find on the faces of the audience members.
But as I detailed the tragic progress of the Claim from Hell, I found myself (and the audience!) having fun. It was
sort of cathartic to talk about all the bad stuff that had happened, and I think members of the audience had
experienced their own hellish claims - there were knowing nods and heartfelt groans at key points in my tale. I was
actually sorry when my time was up. And I got a big cool round of applause.
I'm sure the moral of this story is blindingly obvious, but it was a revelation to me: If you talk about stuff you know,
somebody out there will be interested in hearing it. (The corollary, which I have violated seldom and always to my
lasting regret, is "Don't even think about giving a talk if you don't know or care about your material.")
And you know some interesting stuff
I prefer tongue-tied knowledge to ignorant loquacity.
Marcus Tullius Cicero
Speaking about stuff you know doesn't always mean speaking about stuff you love. As lawyers, we often are called
upon to become expert in some arcane subject because a matter demands it. If you've put in countless hours
assimilating all knowledge in the known universe about, say, anti-indemnity acts in all 50 states and how they affect
(1) additional insured status and (2) limitations of liability (just to take a random example), why not capitalize on
your investment and give a talk about it?4
A bonus: If you have lived and breathed an issue for a couple of months, chances are that everyone in your life from your spouse to your colleagues to your dog - is sick to death of the topic and is only pretending to listen while
making mm-hmm noises5 when you talk about it. A speaking gig gives you a whole new audience - one that actually
gives a hoot about the topic.
And all sorts of people want to hear about it
When the student is ready, the teacher appears.

Buddhist proverb
The Buddhist proverb also works in reverse: When the teacher is ready, the students appear. Here is a short list of
"students" who are interested in what you have to teach:
Your bar association or some subset thereof. This is a great way to network with people who do what you do somewhere else - and that is good for all sorts of reasons. And if you've been reluctant to attend a bar meeting
because you fear you won't know anyone, being the speaker will solve that problem for you. Everyone in attendance
will know your name, and also that you are a competent practitioner in your field. Nice introduction, huh?
Industry groups to which your clients belong. Speaking at industry group functions is, in my opinion, one of the
very best ways to demonstrate to prospective (and current) clients that you know your stuff. No "sales pitch" is
necessary, and, in fact, giving one will almost guarantee that you are never invited back. Your knowledge literally
speaks for itself and it will be appreciated. Industry group meetings are also a great opportunity to learn more about
your clients and the particular challenges they face in their industry - legal and otherwise.
Conferences attended by your law colleagues, your clients, or both. Often these conferences enable participants to
fulfill continuing education requirements while also enjoying golf or a respite from winter weather. People's
expectations for the educational sessions can be quite low, so you can really shine if you make a "must-attend"
seminar into an interesting, useful, maybe even enjoyable event.
And, in conclusion
If you know it - and talk about it - they will come. Public speaking is a great way to overcome the isolation of law
practice and connect with clients, colleagues, and community in a rewarding way.

Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

1. "The number of people suffering from public speaking anxiety is staggering. As
many as 60 percent experience a scaled dread of raising a question at a meeting,
making small talk, giving a talk, and so on." www.PsychologyToday.com, February
28, 2012, http://www.psychologytoday.com/blog/science-and-
sensibility/201202/stop-procrastinating-and-overcome-your-public-speaking-
anxieties
2. Is it pronounced "fort" or "for-tay"? I still don't know.
3. I'm looking at you, Eric Singer. It's not every speaker who will don a bear mask,
purchase "Bob the Electric Campfire" http://www.amazon.com/Chauvet-BOBLED-
BOB-LED/dp/B002OJBWLQ/ref=sr_1_4?ie=UTF8&qid=1355865475&sr=8-
4&keywords=electric+campfire or blow up a six-foot-tall inflatable pirate in order
to entertain an audience.
4. Yes, you could write an article about it - go ahead! - but speaking gets you out of the
office, connects you with others in your professional community, and can lead to
amazing opportunities. And it can be fun.
5. Labrador Retrievers are well known for their "listening and making mm-hmm
noises" abilities, which is why they are the #1 dog breed in America today.

August 2013 Volume 101 Number 8 Page 430

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

Working with Clients Who Give You the Blues

By Karen Erger
Blue shadows falling on your practice, you say? The thrill is gone? Here's some twelve-bar (not that kind of bar)
advice for dealing with downer clients.
I'm going down this road feeling bad
Going down the road feeling bad
Going down the road feeling bad
Don't want to be treated this a-way
- "Going Down the Road Feeling Bad"1
That client. You know the one. You see his name pop up in your email or on your phone, and you cringe, mentally
steeling yourself for whatever it is this time.
Maybe another "rush" project? Some second-guessing of your judgment, your bill, or both? Or perhaps it's what you
have come to think of as the Complaint of the Day. Because there's always something, and it's typically something
suitable for Anderson Cooper's RidicuList.2
What do you do if there is, in the argot of the blues, "a hellhound on your trail"3 - and it's your client? Assuming
you've decided to go down that lonesome road with a difficult client, how can you avoid being ambushed by
malpractice claims and unpaid bills? And is it possible to maintain your sanity on the Client Blues Highway?
Some clients just can't be satisfied
Woman I'm trouble
Trouble and all worried mind
Yeah I just can't be satisfied
- Muddy Waters, "I Can't Be Satisfied," as recorded by the Rolling Stones
Before you put on your walking shoes and head down the highway, take a hard look at your traveling companion your prospective client. There are clients who are not just "difficult" to please, but actually impossible to satisfy.
This often becomes apparent during your initial conversation about the matter - the would-be client articulates
unreasonable expectations about results to be achieved, your fees, and/or the level of service to be provided. This

client, despite your best efforts to suggest more reasonable objectives and standards, sticks to her guns - she wants
what she wants. And you know she won't get it from you (or anyone, really).
This is, as they say in torts class, your "last clear chance" to avoid representing a client who simply cannot be
satisfied, even with your very best work. If you know in advance that the client "just can't be satisfied," spare
yourself "trouble and a worried mind" - let alone ARDC beefs, malpractice claims, and unpaid bills - and decline the
representation.
Make sure they know they're getting a Ford
I gave you a brand new Ford, but
you said, "I want a Cadillac"
I bought you a ten dollar dinner and
you said "Thanks for the snack"
I let you live in my penthouse;
you said it was just a shack
I gave you seven children and now
you want to give them back
- "How Blue Can You Get"4
No lawyer likes to give a client the legal-services equivalent of "a brand new Ford" only to find that the client will
only be satisfied by a "Cadillac." To prevent mismatched expectations of a similarly tragic nature, set clear
expectations for the potentially difficult client right away. Here are some key items to discuss.
Goals. Make sure that you understand your client's goals, and that they are realistic. But do not guarantee success review potential adverse outcomes, to the extent that they can be anticipated at this point.
Fees. Explain your fees, billing practices (how often, how much detail), and payment expectations. Encourage the
client to review your bill and contact you promptly with questions (or complaints).
Time. Give your client a reasonable concept of how long it may take to achieve results in the matter, and review the
steps you will take and the timeframe in which they will occur.
Client's role. Clients have responsibilities beyond paying the fees - making key decisions regarding the
representation, providing and reviewing information, and the like. Make sure your client understands her role and its
importance in achieving a good result.
Your team. If at all possible, have the client meet all of your colleagues who will work on her matter - other lawyers,
paralegals, your administrative assistant - and explain their respective roles. This is a good idea for a bunch of
reasons.
First, in most cases, it is not reasonable (or affordable) for the senior lawyer to handle all aspects of a matter, and
you will want to dispel any illusions the client may have in this regard. Second, difficult clients sometimes have a
nasty way of being nasty to support staff - presenting them as valued members of your team may help deter this
behavior. And finally, the client will know that if you are unavailable in an emergency, other people on your team
can help (see "Access," below). Needless to say, if key team members change, inform the client promptly.
Access. The client who expects "24/7" access to you is bound to (1) be disappointed and/or (2) make you loony.
Your client must understand that there will be times when you are helping other clients or are simply unavailable.
Make sure she knows whom to call if you are not available in an emergency - see "Your team," above.
If, after discussing these items, you decide to represent the client, use a written engagement letter to confirm key
terms of your representation. Review it with the client, or at least encourage her to read it and ask questions before

signing. Then, throughout the representation, be alert to signs of "expectation inflation" and address unreasonable
expectations promptly and clearly.
Don't hold out on communications and documentation
I can't hold out
I can't hold out too long
I get a real good feeling talking to you on the phone
- Willie Dixon, "I Can't Hold Out (Talk to Me Baby)"
Timely, consistent communication with clients is good practice (and required by the Rules of Professional Conduct see Rule 1.4) - and it is especially important with difficult clients, who may be inclined to view a lack of
communication as evidence of neglect on your part. Regular status reports are vital. Resist any temptation to avoid
contact with the difficult client. Return calls promptly.
Remember that your bill is the one status report that most clients will read, so review bills with care before sending
them out. Bill regularly; do not surprise the client with a whopper bill. Stay alert to accounts in arrears and address
them promptly in a face-to-face meeting with the client.
Documentation goes hand in hand with communication, and here, too, you will want to take special care. If, down
the road, the difficult client calls your work into question, will your file show that you followed client instructions,
kept the client reasonably informed about the status of the matter, obtained the client's informed consent to
important decisions, and generally performed in a competent manner? Especially in light of increased malpractice
claims attacking the lawyer's advice,5 it is critical to keep excellent records of your advice to and conversations with
clients.
Take steps to avoid the crazy blues
I can't sleep at night
I can't eat a bite
Cause the man I love
He don't treat me right
- Mamie Smith, "Crazy Blues"
Difficult clients can drive you crazy and make you hate coming to work in the morning. Do what you can to
preserve your self-confidence and your enjoyment of - and pride in - your practice. Try to spend some of your time
with good clients who appreciate your work. If you practice in a firm with other lawyers, they can provide a needed
"reality check" about your work and the client relationship. Resist the urge to soothe yourself with overeating or
overdrinking; do your best to take care of yourself during these trying times. Stay connected to the people and
activities that make you feel your best.
Hang in there - until you can kiss those blues goodbye.

Karen Erger is vice president and director of practice risk management at Lockton Companies.

1. I'm going to issue a disclaimer now, so I don't get deluged with mail from blues fans
who are also footnote nerds (I'm pretty sure I'm not the only one who meets both
criteria) - it is very, very hard to tell who wrote some blues songs. Woody Guthrie is

2.

3.

4.
5.

credited as the author of a song called "Going Down the Road Feeling Bad," but it
doesn't include the lyrics quoted here. This is the version performed by the Grateful
Dead.
For the uninitiated, here's a link to the 10th Best Dressed Newsman's (according to
Vanity Fair magazine http://www.vanityfair.com/style/2013/05/best-dressed-
newsmen-photos) RidicuList blog: http://ac360.blogs.cnn.com/category/the-
ridiculist/. And if you are a devotee of AC's show, as well as a typeface nerd (OK,
maybe it's only me who meets both criteria), do you agree with me that the typeface
he uses for "RidicuList" is the exact same one used for the Brady Bunch? Stephen
Colbert has identified the typeface as "Sans Serif Whack-a-Doodle"
(http://www.huffingtonpost.com/2011/12/14/colbert-anderson-cooper-
ridiculist_n_1148439.html) but I think he's wrong.
"Hellhound on My Trail" was recorded by blues great Robert Johnson in 1937. The
concept of the hellhound crops up in other, earlier blues songs
(http://en.wikipedia.org/wiki/Hellhound_on_My_Trail) but Johnson's version is
legendary: "And the day keeps on worryin' me, there's a hellhound on my trail
Hellhound on my trail, hellhound on my trail..."
"How Blue Can You Get," composed by jazz critic Leonard Feather and his wife Jane
Feather, is sometimes known as "Downhearted," and was made famous by B.B.
King's 1963 recording.
American Bar Association Standing Committee on Lawyers' Professional Liability,
"Profile of Legal Malpractice Claims: 2008-2011, page 9: "The Advice activity,
consistently the third-place claims-producing activity since 1985, experienced a
significant jump with a 7.51 percent increase since the 2007 study. Advice now
occupies second place with 20.19 percent of claims, displacing Commencement of
Action/Proceeding."

December 2012 Volume 100 Number 12 Page 636

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Attorney and Client

Handling Confrontational Clients

By Maria Kantzavelos
If you think you're encountering more angry clients these days - and that the anger has a sharper edge - you're not
alone. But there are ways to manage your relationship with confrontational clients to help you better protect yourself
and their interests.
He's been called a bloodsucker. His law office was once stalked by a professional kick-boxer client. And he's had
the police called on him by another client enraged because he hadn't received his settlement check, though the check
hadn't yet cleared the bank.
In practice for nearly two decades, Chicago-based trial lawyer Harold L. Wallin, who handles DUI and related
traffic matters as well as personal injury cases, has seen his share of so-called difficult clients over the years - clients
who come with issues beyond the legal sort.
But recently, Wallin said, he notices a higher frequency of clients who seem emotionally distressed to varying
degrees - those with extreme mood swings that might indicate bipolar disorder, those displaying manipulative and
demanding behavior often associated with narcissistic personality disorder, or those who are just angry at their legal
situation and turn that anger against the lawyer.
"I've always seemed to have a few problem clients at any given time," Wallin said. "But these types of people now
take up a substantially greater percentage of my practice. A greater percentage of clients are troubled.people who
get very angry, or very emotional, or have some sort of psychodrama and they're pulling me into it."
Wallin's observations seem to be in synch with the findings of major research showing a growing prevalence today
of mental illness and substance abuse in the U.S.
And according to California attorney, mediator, and certified family law specialist Bill Eddy, who is also a licensed
social worker, former therapist, and co-founder of the San Diego-based High Conflict Institute
(www.highconflictinstitute.com), that growth includes a rise in personality disorders.
"Lawyers see more personality disorders than the average population because people come to them in a crisis and
they expect to have a close relationship with their lawyer," Eddy said. "But it's not obvious that there's a mental

health issue because personality disorders aren't obvious. So it's tempting to treat them as a normal person, and get
angry with them and try to use logic and insight. And that's the thing to avoid."
'Everyone has a limit'
Consider some of the examples of the types of "problem clients" Wallin and other lawyers have seen.
Like the client who retained him to help clear up a long-standing driver's license issue. "Each time I'd try to walk
him through the process of what had to be done, and the various steps and paperwork and alcohol abuse treatment
and documents, he'd get very upset at times," Wallin said. Phone calls from the client that lasted up to 45 minutes
seemed constant, Wallin said, with conversations featuring the client mainly venting his complaints about the law.
Arriving in his office one morning, Wallin noticed the client had called five times in a row within minutes, before
leaving a scathing message that started out with the normal, "'When you get a chance, please give me a call,'" he
said. "He paused, and then turned into a rant against me about how I was working against him and sabotaging him
and so forth."
"It was very troubling," Wallin said. "I called him back. He wouldn't let me say a word. He interrupts every syllable.
He couldn't hold his anger back. He couldn't control his emotions."
After some back-and-forth, with the attorney explaining in a letter the realities of the client's legal problem and what
he was really trying to do to help him resolve it, "as opposed to whatever he was imagining," Wallin was compelled
to withdraw from the case. He did withdraw, he said, and the client apologized for his behavior, saying he had
realized that the attorney, all along, was the only one on his side and it was everyone else against him.
"I just couldn't take any more abuse," he said. "I just did not have any confidence, after three times of coming close
to the edge of withdrawing with him, that we wouldn't be repeating this whole cycle one more time. That was the
end of it for me.
"I feel bad because here's someone who needs legal help. He needs to get his license back; it's something that went
on over 15 years ago. But you've got to have a lot of patience," Wallin said. "And I'm a laid back person. Other
attorneys have referred me clients saying, 'He's a problem person and I can't deal with it, but you seem to be able to
handle these clients.'Everyone has a limit."
Wallin is not alone in his encounters in a service profession that has sole practitioners and small firm lawyers
working with the public on a regular basis.
As a general practitioner with an emphasis in the areas of workers' compensation, family law, real estate, and
employment law, Rochelle-based attorney James G. Ahlberg has had dealings with the sort of client he describes as
"greatly disturbed but gentle" as well as the "violently disturbed" or threatening client - and all sorts of personalities
in between.
But Ahlberg said it is still uncomfortable for him today to talk about one disturbing incident, even though it
happened 27 years ago and he's never had a similar experience with a client since then in his 34 years in private
practice.
That was the time a woman came to his law office with a host of complaints against "everything from schools to her
medical doctor to social workers to you name it," Ahlberg said. Still, he said, "It was incumbent on me to investigate
the situation." He told the woman he would look into her allegations and contact her in a few days to let her know if
he could help her and, if so, what sort of legal assistance he could provide.
Arriving home from lunch an hour later, Ahlberg found his wife sobbing in the kitchen hugging the couple's then
preschool-age twin girls. "I figured somebody had died," he said.

Rather, the prospective client, after she had left Ahlberg's office, called the attorney's home. "She said if I didn't take
her case it would be farewell to the wife and kids," Ahlberg said. "There was no doubt in what she conveyed. It was
implied that she would kill, which of course made me decide really quickly that this is not someone I'll represent.
You can't allow your life to be blackmailed."
High conflict personalities
What's a lawyer to do when troubling behaviors and personalities seem to undermine the effort to help the client
understand the legal issues and process and in getting the client to cooperate in putting on a strong case?
While the term "high conflict personality" is not a mental health diagnosis - as is narcissistic personality disorder,
for example - Eddy suggests that many high-conflict personalities fit the criteria of Cluster B Personality Disorders
described in the Diagnostic and Statistical Manual of the American Psychiatric Association. For lawyers, Eddy said,
"The key is: Don't worry about trying to diagnose what mental health problem [a client] may have. People who are
difficult may have any of various mental health problems, including temporary situations that aren't even
diagnosable."
For such people, "high conflict behavior is part of who they are. It's part of how they routinely think, manage
feelings and behave," Eddy said. "What's important in thinking about high-conflict personalities is that you realize it
isn't just a situation that's happened, and in all other ways the person is going to act like everybody else. It's actually
a pattern. So once you see some warning signs, you can predict future problems."
Here are Eddy's descriptions of some of the main patterns of behavior in people who can become high conflict.
All-or-nothing thinking, rather than taking time to analyze the situation, hear different points of view and consider
several possible solutions. "They see a problem as solved by, 'We just eliminate the other person.' They don't have
gray areas," Eddy said.
Unmanaged emotions, often catching others by surprise with intense fear, anger, yelling, or show of disrespect.
While they often seem unable to control their own emotions, some high conflict people don't lose control of their
emotions, but use emotional manipulation to hurt others.
Extreme behaviors, which may include shoving or hitting, spreading rumors or outright lies, or trying to have
obsessive contact and keeping track of your every move - or refusing to have any contact at all, even though you
may be depending on them to respond.
A preoccupation with blaming others - usually someone close to them or someone in a position of authority. "They
can talk for more than half an hour to you about how bad the other person was without ever saying something like, 'I
should've tried this or I should've never done that,' " Eddy said.
Gail Petrich, an attorney and psychologist with offices in Chicago and its western suburbs who spoke on managing
clients with mental health problems during a session of the 2012 ISBA Solo and Small Firm Conference, offered
some insight into how some lawyers can become negative advocates whom high-conflict clients use to help attack
their targets.
"Lawyers go wrong when they become negative advocates," Petrich said. "We genuinely want to help them. We
believe their cognitive distortions. We're misled, especially by the borderline and the narcissist, because they're
charming, they're really hurt, they have a lot of anger and they can be pretty bright. They try to get us to join in the
advocacy against all their enemies."
But by doing so, Petrich said, "We, unfortunately, protect them from the natural consequences of their own
behaviors. We add fuel to the fire by promoting the fight, unfortunately."

While the court system sees people who may have all sorts of mental health issues, it is the so-called high conflict
personalities that tend to thrive there, Petrich said. "We find them in your office a lot, and these folks like to file
ARDC complaints," she said during the presentation.
In dealing with high-conflict clients, Petrich said, it's important to remember that they can be psychologically unable
to reflect on their own behaviors and to grasp the consequences of their actions. That's why calling them out on their
behavior, she said, tends to "fuel the fire."
"The hard part about this is, they don't have any insight into their own behaviors.What we have to remember
about these folks is, the issue is not the issue; the personality is the issue," Petrich said.
"This is why it's so important to identify these folks and say, 'Ok, I have to go into a different mode when I'm trying
to relate to them, because it's just not going to work to do business as usual," Petrich said. "A lot of times, we tend to
focus on their emotions. Lawyers want to cut it off right away and they want to get all bossy and say, 'You can't go
on like that,' or, 'That's being disrespectful.' You can't do that."
Lend them your EAR
Whether you find yourself representing a client with a high-conflict personality and/or a full-blown personality
disorder, a distressed client or one who is just upset, Eddy of the High Conflict Institute recommends using the same
approach to calming down and dealing with difficult clients.
It's a simple technique, he said, albeit one that may be opposite of what you feel like doing when a client is upset
and verbally attacking you.
Before even attempting to get into the law and using logic, Eddy said, administer some "EAR statements," which
stands for empathy, attention, and respect.
Statements like:
"Wow, I can hear how upset you are (Empathy);"
"Tell me what's going on (Attention);" and
"I share your concerns about this problem and respect your efforts to solve it (Respect)."
"The tendency is to react to these folks either by avoiding them or angrily confronting them. Both of those backfire
and make things worse, generally," Eddy said.
Instead, Eddy said, giving the upset client some EAR can be effective in calming them down so you can proceed
with addressing the legal problem at hand.
"First you've got to connect with these folks. Then you can get into the [legal] issues," Eddy said. "Resist [those
defensive urges], and try to really connect with them person to person."
You can offer up statements that show empathy, Eddy said, without actually using the word. Statements like: "I can
see how important this is to you;" "I understand this can be frustrating;" "I know this process can be confusing;" "I'm
sorry to see that you're in this situation;" and "I'd like to help you if I can."
The theory, according to Eddy, is that since many high-conflict people often feel ignored or disrespected, they tend
to get into conflicts as a way of getting attention from those around them. A show of respect can help in calming
down an upset client, especially high-conflict personalities, who are often desperate to be respected, Eddy said, with

statements like: "I can see that you are a hard worker;" "You have important skills that we need here;" or "I respect
how good a record keeper you are, or how committed you are to raising your child so well."
To administer statements of respect in your attempts to calm down the high-conflict client, Eddy advises lawyers to
find something they can respect about the person without lying, noting that upset people in general are often
hypersensitive to lying.
"If you don't feel empathy for the person and you don't respect the person, just tell them you'll really listen, you
really want to understand the case, and to tell you more - and they will."
It's not about you
In sharing some of his tips for dealing with high-conflict clients, Eddy emphasized that the first two are things he
advises not to do: Don't take it personally, and don't try to give them insight about their own behavior.
"What happens is clients will attack you and you feel like you have to prove something to them, or you have to set
them straight, that you have to counteract them or defend yourself," Eddy said. "Remember, it's not about you - it's
about their mental health problems."
In addition to EAR, Eddy and Petrich suggest using some of the following tools to manage relationships with highconflict clients.
Analyze alternatives together with the client in a way that helps the client focus on options for solving a problem.
"The lawyer should approach this matter-of-factly, rather than emotionally and dictatorially," Eddy said. "Ask them:
'What do you propose around certain issues?' Especially when they're upset and you see some solutions, but you
want to get them engaged. It's an especially good question to ask when they're complaining. It gets them focused on
alternatives."
Structure the relationship around tasks rather than reacting to emotions. "Sometimes I'll have them make a list or
write a letter, or something that helps them feel like they're doing something constructive, but it's organizing their
thoughts a little better," Petrich said. "They don't have that capacity to calm themselves down, so we have to do it
for them."
Focus on "reality testing" so that you don't necessarily believe everything you are told. However, Eddy advises,
don't assume the person is lying, because they may honestly believe inaccurate information.
Educate about consequences and the potential risks ahead. "This is very helpful because high-conflict people aren't
thinking about the future, they're just thinking about the moment, and that [future consequences] is something
lawyers know about," Eddy said. "Educating about consequences is talking about the future and that's helpful. But
trying to lead them to insight about their past behavior is pretty much a dead end. Don't waste time there. Don't try
and have them have insight into how he got into that situation. Say, just real simply, 'Here's the consequence.' "
Set limits and maintain boundaries. "This is, perhaps, the most important part," Eddy said. "High-conflict people
have a hard time stopping themselves. You have to think about setting limits on these folks."
For example, Eddy said, "A lawyer would say to a client, 'I'm not willing to discuss that issue today, I'm only willing
to discuss such-and-such issue.' Or, 'Our time is up.' If they're just telling their story over and over again, listening
forever doesn't give them that sense of relief as it does for the average person. It's okay to interrupt the story with an
EAR statement and then, 'How I can help you is to focus on this next task.' You're setting limits on your
conversations with them, and also on various behaviors."
Respond to misinformation, whether it's coming from high-conflict clients or opposing parties and their lawyers. But
do so without anger. Eddy advises using a method he calls BIFF, which stands for Brief, Informative, Friendly, and

Firm. "These are short paragraphs for responding to hostile or distorted information," Eddy said. "It's a way to keep
from escalating the conversation, especially with emails."
Dangerous clients
Dealing with the often unmanaged emotions of clients can be a challenge in and of itself for lawyers. Sometimes,
however, there is also the underlying risk of being confronted with a client who could become outright dangerous.
Indeed, there have been the headline-grabbing stories of reportedly disgruntled clients lashing out at lawyers or
judges with violent and murderous acts that have shaken the legal community here.
In Petrich's own practice, she said, she is seeing a growing number of clients who come to her for therapy and
divorce coaching while they are in litigation.
The attorney/psychologist pointed out research suggesting that it is generally the people with personality disorders
of the kind associated with high-conflict personalities who are more likely to resort to violence. "When we have
violence happening, it's more likely to be a personality disorder than it is to be what we generally think of as 'crazy'
people," Petrich said.
That's all the more reason to take extra steps to calm down high-conflict personalities with techniques like offering
EAR statements in response to an outburst, rather than becoming confrontational and responding with one's own
anger and critical insight into a client's otherwise contentious behavior, Petrich said.
But Petrich stressed that just because certain personality disorders, like narcissistic and antisocial personality
disorders, may be a higher predictor of violence than, perhaps, clinical psychotic disorders like schizophrenia,
lawyers shouldn't be quick to conclude that the high-conflict person in front of them is going to become dangerously
violent.
Eddy agrees. "A vast majority of high conflict people won't ever be violent," he said.
While violence risk prediction is an inexact science, Petrich said, a history of past violence can be predictive of
future violence. Even so, she said, "Just because he beats his wife doesn't mean he's going to come into my office
and beat me."
In dealing with high-conflict clients, Eddy said, "If you get a sense of a history of violence or loss of control, and
they have a significant substance abuse problem, and a couple of other issues [such as], if they own a lot of weapons
and that may be a preoccupation, those are all warning signs of someone to be cautious with."
In dealing with such clients, Eddy said, lawyers are well advised to limit their contact to meetings only when others
are around, rather than meetings after staff has left.
If a client - or the client's opposing party - makes dangerous threats, Eddy said, attorneys may want to consider
transferring that client or case.
"If they have violent fantasies you don't want them to stay focused on you," Eddy said.
Considering the psychology of transference, Eddy said, "The new lawyer generally won't get as much intensity from
the client, and the lawyer who was getting the intensity will be able to avoid the client and, in time, that should
reduce. The fixation the client or opposing party had on you tends to diminish over time."
Still, when transferring a threatening client, Eddy said, "Do it gently rather than angrily," with a statement like: "Our
styles are different, and that's why we need to go our separate ways."

"With these folks, you get angry with them and they sue you or hit you or don't pay you," Eddy said. "They get
revenge, and you don't want to inspire people to get revenge."
'We need to help them'
Dealing with difficult clients can take a psychological toll on attorneys. As a trial lawyer with a heavy practice,
Chicago attorney Wallin said, "You always have to compartmentalize. But that can be hard to do when you're
dealing with someone like that."
"When you get so upset over one client who can take over your day, your thought process, your weekthey kind of
infect your mind. They affect you with that anger or hate."
Collaborating with licensed mental health professionals on cases involving high-conflict clients could also be
helpful to lawyers. As a divorce coach and litigation coach, Petrich said she helps run interface between lawyers and
their clients as a means of keeping their relationship strong by "interpreting to the lawyer what the client meant and
by interpreting to the client what the lawyer meant. And, I can also help in the decision-making, in weighing the
legal issues against the emotional issues because they do have equal importance to the client in a way that they don't
to the attorney."
Although some of the characteristics generally associated with high-conflict personalities and people with related
mental health issues can be uniquely difficult to deal with, as lawyers, Eddy said: "We need to help them; we need
to not be biased against them."
"They do get into legal problems just like everybody else. It doesn't mean they don't have real problems, and it
doesn't mean they're always exaggerating. They may be telling the truth about a legal issue," Eddy said. "In many
ways, we need to think of them as similar to alcoholics and addicts, who can be very high-functioning people who
have a problem and yet defeat themselves without realizing the part they play in their problem."
Petrich put it this way: "These folks do find themselves in court cases a lot, so they deserve representation just like
everyone else," she said. "We have to serve them - they're human beings. We can't just write them off and say,
'You're a pain, I'm done with you.'"
Maria Kantzavelos <mkantz@comcast.net> is a Chicago-based freelance writer focusing on legal topics.

Find out more and earn CLE credit

Gail Petrich's 2012 Solo and Small Firm presentation - Reducing Risks and Managing Mayhem: Recognizing
and Managing Clients with Mental Health and Substance Abuse Problems - is online now! Follow the link at
www.isba.org/soloconference.

Calm high-conflict clients with EAR statements

Getting angry or defensive with high-conflict clients only makes things worse, says lawyer-mediator Bill Eddy.
Instead, use EAR (empathy, attention, and respect) statements to disarm them:
"Wow, I can hear how upset you are (Empathy);"
"Tell me what's going on (Attention);" and
"I share your concerns about this problem and respect your efforts to solve it (Respect)."

November 2012 Volume 100 Number 11 Page 604

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Professionalism
The Discontented Lawyer: A Call for a New Professionalism
By Cheryl Niro
What are the sources of our unhappiness? Research indicates that much of it is wired into us. But that doesn't mean
we should give up on our quest for greater professional and personal satisfaction. Indeed, we owe it to our clients
and ourselves to keep looking for a better way.
We Have Met the Enemy and He Is Us
-Pogo
During my college orientation program we were advised to get a copy of a book about the Sixties collegiate
experience entitled Been Down So Long It Looks Like Up To Me. I never read the book, but the title sounds like a
lawyer's lament.
It seems that our professional publications routinely contain articles about the malaise affecting lawyers, describing
our collective disconnection with a sense of calling and our core values, along with a lack of satisfaction with our
work and lives. Books devoted to this topic have been around for decades. They include The Betrayed Profession by
Sol Linowitz (1994), The Lost Lawyer by Anthony Kronman (1993), and Running From the Law: Why Good
Lawyers Are Getting Out of the Legal System by Deborah Arron (1989). Articles with equally depressing titles are
too numerous to count.
The stressors of a difficult national economy, the continuing increases in the number of lawyers and the resulting
competitiveness and business orientation of the practice, and complexity and change in most practices requiring de
facto specialization continue to take their toll. We have even witnessed the birth of "Watson," the almost intuitive
thinking computer that may eventually do to many lawyers' jobs what QuickBooks and TurboTax did to
accountants.
The impact of the anxiety-inducing developments is seen in the statistics on lawyer health. We are twice as likely as
the general population to suffer from depression, or alcohol or drug abuse, and as many as one third of us have
already been diagnosed or suffer these conditions.1
We have not been passive observers of our growing dissatisfaction. We have made valiant attempts to improve our
situation. Well-intentioned groups have studied and issued reports. They have designed programs and projects
intended to address that which is within our control. Voluntary oaths and codes of conduct have been promulgated.

We have achieved some success and had a positive impact in some cases. Two relatively recent advances in Illinois
came with the requirement to actively participate in continuing education and the companion heightened focus on
professionalism through the creation of the Commission on Professionalism that I served as inaugural executive
director. The organized bar, from the ABA to our county and specialty bars, programs to address the growing need.
Yet, the malaise among lawyers persists in Illinois and across the nation.
One author cleverly summarized numerous conversations he had with practicing lawyers by fictionalizing a letter,
which I excerpt here.2
Dear Professor Perry,
I am writing to seek your advice regarding my life.
But, I am writing because I am restless. I feel disconnected and empty. I do not enjoy my practice, much less feel
fulfilled by it. In fact, I dread the thought of going into work everyday. And I don't know what to do.
I worked very hard in law school, graduated in the top quarter of my class and landed the law firm job I have now.3
My parents are proud, and my friends are impressed - although I rarely spend much time with any of them because
I'm in the office by 7:30 and rarely home before 8pm - even on weekends.
But it's not the long hours that I'm complaining about. It's really more about how I spend my day. I'm just not
interested in the minutia of corporate deals. I don't get excited helping already rich clients get richer...
And furthermore, I don't think the partners and older attorneys supervising me have a clue about what really
matters to me...I don't feel as if I have much independence or control over the business components of my
practice...and if I approached any of them and raised metaphysical questions about one's life purpose, balance
between personal and professional priorities, or finding deep meaning in one's work, I think red flags would be
raised about me...
The issues raised in the letter are far too common in my experience. Lawyers at every stage of their professional life
seem to be asking the same questions. This leads me to wonder, is it possible to be a lawyer and be happy? I believe
the answer is "yes, of course," but it is just not easy to do.
The "lawyer personality": stereotype or inconvenient truth?
Law professor and psychologist Susan Daicoff4 has suggested there may be a connection between the current state of
our discontent and the personality traits of those who study and practice law. The lawyer stereotype is to some
degree consistent with the empirical research that she summarizes.
"Thinking" over "Feeling." Lawyers tend to be more achievement-oriented, more aggressive, and more
competitive than other professionals and people in general.5 The study defined competitiveness as the desire to win
in interpersonal situations. Yet another study found that "female lawyers had higher 'masculinity scores' (which
includes competitiveness and aggressiveness), more traditionally masculine play patterns in childhood, and greater
unhappiness during adolescence."6
Psychologists have studied motivation, finding three basic drives that operate in most individuals: the need for
power, affiliation, and achievement. A study by Leonard Chusmir found lawyers "are more often achievement
motivated, with only moderate needs for power and relatively low needs for affiliation."7 An ABA report stated that
lawyers' most important goals were to "do the highest quality work I can" (achievement) and to "be happy with my
work" (achievement, personal satisfaction).8 Falling behind these goals were the goals to "advance to a position of
power" (power) and to "improve the public good" (altruism).9 Our drive to be connected to others is eclipsed by our
drive to achieve.

Lawyers taking the Myers-Briggs test disproportionally prefer "Thinking" over "Feeling."10 Several studies support
the same finding that lawyers tend to prefer introversion, intuiting, thinking, and judging, and in each dimension
differed from the general population.
Daicoff summarizes all of the studies by concluding that "lawyers tend to be more logical, unemotional, rational and
objective in making decisions and perhaps less interpersonally oriented than the general population. This might
explain why lawyers and their clients at times have trouble interacting with and relating to each other."11 It seems
logical that the same traits create tension between and among lawyers and judges, often expressed as unprofessional
behavior.
The moral development scale. Lawyers have also been the subject of study with regard to the level of moral
development. Lawrence Kohlberg proposed a theory of moral development that includes six stages, each an advance
over its predecessor, and a set of hypothetical ethical dilemmas and interviewing techniques designed to characterize
the stage at which an individual is operating.12 Studies applying Kohlberg's theory to lawyers place practicing
lawyers overwhelmingly at Kohlberg's Stage Four (Law and Order) morality, which was different than the general
population that was more scattered among the stages. This difference may contribute to the view some have of
lawyers as unprincipled or amoral.
There are critics of Kohlberg's rights oriented theory, including those who believe that the theory has not given
adequate expression to the concerns and experience of women, who according to Kohlberg tend to reside at Stage
Three. Carol Gilligan, of Harvard University, argues that the traits that have traditionally defined the "goodness" of
women - their care for and sensitivity to the needs of others - are those that, under Kohlberg's theory, mark them as
deficient in moral development.13
She says that the infusion of feeling into their judgments keeps them from developing a more independent and
abstract ethical conception in which concern for others derives from principles of justice rather than from
compassion and care. Gilligan urges an "expanded developmental theory that would include, rather than rule out
from developmental consideration, the difference in what she calls the feminine voice, without which we cannot
fully understand in both sexes the characteristics and precursors of an adult moral conception."14
Gilligan's concern has been the subject of research in the legal profession by Sandra Janoff, who found that the
majority of women law students displayed an "ethic of care" orientation at the beginning of law school, while
significantly more male students evidenced a Kohlbergian "rights" orientation. Janoff's study from 1989 showed that
women's orientation changed dramatically during the first year of law school to a "rights" orientation, perhaps
because of the influence of the training (and the personality traits of women who study law described above). Male
students did not change in this way.15
Daicoff raises the interesting question about how this phenomenon may imply that the legal profession is unlikely to
change as a result of the addition of women in larger numbers. Nevertheless, it appears that law school education
results in lawyers operating at the fourth of six stages of moral development. Those in Stage 5 and 6 in moral
development will perceive Stage 4 lawyers as less moral, less thoughtful, and less professional.
Maladaptive coping. Psychological distress is prevalent in both law students and lawyers. Beck, Burns, and Elwork
found in lawyers greater than normal aggressiveness, competitiveness, need for achievement and dominance, low
self-esteem, fear expressed through awkwardness, paranoia and insecurity, inflexibility, and intolerance for change
expressed through authoritarianism.16
Data suggest that law students develop maladaptive coping mechanisms (becoming more aggressive and ambitious,
abusing substances) and do not rely on social support, leading some to drop out of law school or commit suicide.
Unfortunately, these maladaptive responses can become habitual and continue beyond law school. Certainly the
resulting behavior will look and perhaps be unprofessional to others and may induce similar behavior in response. In
the extreme, these coping mechanisms will produce unprofessional over-zealous advocacy, overreaching, and
potential legal malpractice resulting from depression or substance abuse.17

Those who enter the study and practice of law without a passion or clear desire to become a lawyer may also
contribute to the perception of declining professionalism today. We may all reflect on the strength of character
required to survive the gauntlet of legal education and not find it surprising that those who are unsure about
becoming lawyers may be equally unsure about their ability to behave consistent with lawyers' highest values,
standards, morals, and ideals. Those who feel changed by the law school experience may have lost their sense of
connectedness to self, and this insecurity may result in defensiveness, unwillingness to admit mistakes, and
aggression towards others - behavior traits unbecoming and inconsistent with a legal professional.
Understanding and adapting
At this point I am compelled to insert a disclaimer of sorts. Some of my best friends are...lawyers. It is not easy to
report these dismal statistics about my profession and my people. I have had the privilege to know and work with
some of the finest lawyers in America, and to me at least, they are not just great lawyers, they are great people.
It is important, however, that we bring all of this information to our collective consciousness, and we understand the
deeper reasons for what we experience day to day, if we are ever to meaningfully understand enough to fashion
responses that will actually have some possibility of advancing the cause. The statistics don't lie. Our challenge is to
understand and adapt.
My recent consulting with lawyers and firms confirms the shared sense that the practice of law today feels more like
a business than a calling. More of our focus is on our viability than our charity, more on generating fees than serving
the community. Many find this troubling, while others easily choose to work for lucrative private clients over pro
bono work.
Given the preference lawyers demonstrate for Thinking and logic over interpersonal and Feeling on the MBI, this is
understandable, but it is arguably unacceptable from a professionalism standpoint. Pro bono and community service
are long held values, indeed those that help distinguish a profession from a job. But more and more lawyers and the
firms in which they work no longer urge nor value those activities, or agree to support them.
So, what does all of this mean? First, data suggests that there are a number of traits of lawyers that contribute to our
perception of a pervasive lack of professionalism today. Psychological studies of law students and lawyers indicate
that some of these traits are developed in early childhood, some are developed or amplified in law school, and are
simply a part of who we are. They are unlikely to change, according to the researchers.
Second, some personality traits of lawyers, like the preference for Thinking, rationality, unemotional objective
analysis, and rights orientation, may be the source of interpersonal problems and unprofessional behavior, but they
may also be very helpful, even necessary, in the practice of law. It is, as they say, a dilemma. Certainly, we should
be concerned that the numbers of lawyers suffering from mental health problems, substance abuse, and
hyperaggressiveness have become too large and we need to find meaningful solutions to these pressing and very
unhealthy problems.
This information also presents a picture of those who study and practice law that is both human and imperfect, as it
must be. If perfection is the goal, we will certainly fail.
What we can do, however, is appreciate that the choices we make as professionals can more directly honor our
humanity. We can change the conditions in legal education that exacerbate maladaptive responses to stress and
competition. We can use this unprecedented period of change to redefine our business models and practices to better
address our needs and, by doing so, enhance our ability to better meet our professional mission to make "a more
perfect union" and administer the system of justice.
How we might do that is a discussion for another article. But we must shape an approach that does not deny who we
are in all our imperfection. And we must not give up.

Cheryl I. Niro is a principal in RobinsonNiro LLC of Chicago, an ISBA past president, and a member of the ABA
Board of Governors.

1.
2.

"A Nation Under Lawyers," Mary Ann Glendon.

Joshua E. Perry, Thinking Like a Professional, 58 J. of Legal Educ. 159, 161-62 (June 2008). Perry is
based in the Center for Biomedical Ethics and Society at Vanderbilt University where he is an
Assistant Professor in the School of Medicine and an Adjunct Professor in the Law School.
3. This piece was written in 2008, slightly before the recession hit the legal profession, and obtaining
any kind of law-related job after graduation became an accomplishment limited to the lucky few, as is
the case today.
4. Susan Daicoff, Lawyer, Know Thyself: A Review Of Empirical Research On Attorney Attributes Bearing
on Professionalism, 46 Am. U. L. Rev. 1337 (1997).
5. Id. at 1390.
6. Id.
7. Id. at 1391 (discussing study of Leonard H. Chusmir, Law & Jurisprudence Occupation: A Look at
Motivational Need Patterns, Com. L.J., 231-235 (May 1984).
8. Id. (discussing article by Jeff Dionese, Striving For Happiness, A.B.A.J., 41 (July 1995)
9. Id. at 1391-92.
10. The Myers-Briggs test was developed in the 1940s by Katharine Cook Briggs and Isabel Briggs Myers
and is widely used in professional and corporate settings. The test evaluates personal preferences for
four dimensions: introversion/extraversion; intuition/sensing; thinking/feeling; and
judging/perceiving. Further information about the test is available online at Wikipedia
(http://en.wikipedia.org/wiki/Myers-Briggs_Type_Indicator) and a number of other sources.
11. Daicoff, supra, note 4 at 1394.
12. Kohlberg's Six Stages are: 1. Punishment and Obedience-the physical consequences of an action
determine its goodness or badness, punishment is avoided and power is respected; 2. Instrumental-
Relativist-pragmatic, marketplace considerations determine right action; 3. Interpersonal
Concordance-good behavior is that which pleases or helps others and is approved of by society; 4.
Law and Order-behavior is determined by reference to laws, rules, authority, maintaining the social
order and doing one's duty; 5. Social Contract/Legalistic-the individual is aware of the relative nature
of personal values and opinions and determines behavior on the basis of social utility (Susan Daicoff
suggests that some believe the official stage of American government is found at this fifth stage); 6.
Universal Ethical Principle-right behavior is defined by reference to abstract, universal ethical
principles that transcend society's laws. See
further:http://en.wikipedia.org/wiki/Lawrence_Kohlberg's_stages_of_moral_development.pdf .
13. Carol Gilligan, In A Different Voice: Women's Conceptions of Self and of Morality, 47 Harvard
Educational Review No. 4 (November, 1977).
14. Id. at 516.
15. Sandra Janoff, The Influence of Legal Education on Moral Reasoning, 76 Minn. L. Rev. 193, 234 (1991).
16. Phyllis W. Beck & David Burns, Anxiety and Depression in Law Students: Cognitive Intervention, 30 J.
Legal Educ. 270, 285-86 (1979); Amiran Elwork & G. Andrew H. Benjamin, Lawyers In Distress, 1995
J. Psychiatry & L., 205, 216 (noting that lawyers' traits cause them to be unbalanced).
17. G.A. Benjamin et al., Prevalence of Depression, 13(3) Int'l. J. Law & Psych., 233-246 (1990).

July 2012 Volume 100 Number 7 Page 364

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Attorney and Client

Compassionate Consultations: Winning Over Prospective Clients
By Larry E. Lauterjung
You usually have one hour to sell yourself to prospective clients during the initial consultation. The key is to
communicate your genuine understanding of and concern for the clients feelings. Building the proper relationship
will help secure new clients, referrals, and friends.
After 10 years in the school of hard knocks and 20 of high volume practice, I wish I could say I never met a client I
didnt like. Years as a public defender and bankruptcy lawyer brought me every imaginable type of client. I didnt
like them all, but I did treat each with respect, so that the few with abrasive personalities left my office enjoying the
compassion the others earned.
As attorneys we need to remember that most people who come to us are ashamed, scared, confused, and intimidated,
and many are angry or even paranoid. Some have become passive, no longer taking steps to protect their best
interests. Some are in legal trouble because of mental or emotional disabilities.
In short, many would-be clients admit their problems are beyond their control and reluctantly see no solution other
than to pay for legal help, even though their means are limited. Too many have reached the point of desperation
before visiting a lawyer.
Sitting behind our line of demarcation our desks we can avoid the compassionate interaction these people need,
but not without their perceiving our callousness. They know which lawyers care and which are condescending.
Lawyers who communicate to prospective clients that they are too busy to care often find their client pool
dwindling.
Dont let this happen to you. Here are ways to demonstrate caring and compassion as you interact with scared and
vulnerable people.
Before the interview
Icebreakers. You can put your prospective client at ease by how your office is decorated and arranged. Paintings,
photographs, objects dart whatever you choose can take the edge off the interview when either of you mention
them.

Most law offices ask prospective clients to complete a client information sheet before the meeting. Never fail to
read that information beforehand. When you say, You work at Acme Industries, dont they make car batteries
there? your prospective client is comforted knowing you cared enough to read what he labored to write and that
you know something about his life. That can set the tone for the rest of your representation.
Watching the clock (without seeming to). As interviews progress you have to be aware of your next interview. A
client who is kept waiting will become predisposed against you. Many people take offense at your glancing at a
watch, clock, or the time on your computer monitor during their interview. An easy solution is to position a wall
clock directly above your line of sight while you look at your prospective client as he is seated during the interview.
When you carry one interview over into the time allotted for another, excuse yourself, telling the person in your
office that you have another interview scheduled now. Step out into the waiting room and greet the next person,
apologizing that the current interview is running longer than you expected but that if he can wait a few minutes, you
will give him all the time he needs. (Wouldnt it be nice if the medical profession did that?)
Kids. Many prospective clients will bring children, and there is no easier way to lose a client than to be disrespectful
to their kids in your office even if theyre driving you crazy. More than once I have had people come to see me
simply because their previous lawyer failed to respect their children.
If you need to quiet an unruly child in your office, have your secretary enter and say its hard to hear clients on the
phone. And keep a coloring book and crayons, a quiet handheld video game, or other toys that children of various
ages can use to fill those 60 minutes that to a child seem like 60 hours.
The interview
Know when to take control. Too many attorneys unspoken orientation toward clients is, Sit down, be quiet, Ill ask
the questions, you answer them quickly so I can get to the next client. The prospective client, of course, has
practiced for days what she plans to say and thinks if you just listen to her everything will be fine. The proper
approach is somewhere in between.
Dont take over the conversation from the beginning. Treat her like a human being, not a set of facts. Work to create
a mutual respect that requires each conversant to participate. Usually the prospective client needs the catharsis of
telling her story. Let her explain for a few moments and be a good listener before you take control of the interview
and begin collecting the information you need. You can use the cathartic moment to scan any documents she brings.
Listen politely, skim the documents, and when the time is right, take control of the conversation.
Also, never stare at your computer monitor while your interviewee is telling his story. Even if you havent read
todays news or your client seems to have nothing to say, look at and listen to him.
Listen for ways to connect. Often the most memorable part of the interview is the serendipitous revelation of some
fact that lets you two bond on a human level. If the prospective client likes horses or music or baseball and you share
that interest, stop being a lawyer for a minute and talk about it.
This will help you in your ongoing relationship should it develop. You may not be able to recall all the details of a
clients case by hearing his name, but there is almost always something about him that sticks in your mind. Maybe
its his line of work, what he wore to the initial interview, or some unusual fact he told you.
Whatever it is whatever detail distinguishes him from others record it in his file (e.g., oilfield welder,
baseball, Big Sur, son in prison). However, dont make any notes in your clients file that you wouldnt show
to him or her. When you leave to use the copy machine, the client will sneak a look at the file. Find a way to
memorialize your interview without being insulting.

Allow interruptions. I used to tell prospective clients that I would ask them a series of questions to fill in the blanks
on my interview form and that if they would hold their questions till the end, I will probably have answered this but
would do so if I havent. I have learned that when someone interrupts my questioning during the interview its
probably for a good reason, and they might forget if they dont interrupt.
Assign homework. You might be approached by the prospective client, especially in consumer and bankruptcy cases,
who enters your office and tosses a big bag of opened and unopened letters on your desk, like a boss assigning a
dirty job to an underling. You can politely ask him to take the papers home and put them in order and be specific
about the assignment. Tell him to assemble piles of letters from each source in reverse chronological order, with the
most recent letters on the top and the oldest on the bottom, and paperclip or clamp each set of letters from each
sender in separate groups.
Educate. You need to school your prospective client about some of the concepts essential to understanding your
representation. Ask her if she is familiar with the automatic stay or an adversary case and when she gives you
that blank stare, explain the concept clearly. If you can bring her up to par with your knowledge of the legal issues in
the case, she might be more helpful. Do so without using jargon or legalese.
Can your client read? Eventually you will meet a prospective client who cannot read handouts you give him or
documents he brings to your office. Once a client left my office building through a door clearly labeled, exit only in
emergency or siren will sound. While turning off the siren I asked (rhetorically, I thought), Cant you read? The
client sheepishly said, No sir.
I now watch for cues that suggest a person may not read at a sufficient level to understand documents or phrases I
make reference to, and, if he seems confused, I ask, Do you read OK? Phrasing the question that way isnt
demeaning, and has always been met with a kind reaction.
Concluding the interview
A graceful ending. You usually reach a point when the next client is scheduled and the current interviewee has used
his time. You have two clients precariously balanced on their point of satisfaction. How do you proceed?
Have your secretary interrupt your consultation by knocking on your door and telling you another client has arrived.
Let your interviewee know you only have a few minutes but that he can schedule another appointment to continue
your discussion. Remember to visit your waiting client in person if you carry over, offering to give her another
interview at a different time or all the time she needs if she waits.
Explain the options. Before concluding the interview, the prospective client will want you to tell him what to do.
Remind him that the decision is his. Often at this point, I say that I once had a friend who was a bookie. He made a
living by determining the probability of the outcome of sporting events. I say I see a great similarity between his
work and mine.
Tell your prospective client her options, the advantages and liabilities of each, and your best prediction of the
probability of success or failure. Thats the closest we can come to the empirical practice of law and quantifies our
communication of the clients alternatives.
Many people still, for a variety of reasons, want their attorney to tell them what to do and which alternative to
choose. When it is clear that they cant decide, I tell them that if they were my parent or sibling or child, that I would
advise them toand specifically offer them my guidance.
Make sure your prospective client knows exactly what the next step will be if he decides to engage you, how much it
will cost, and what will happen after that. Estimate how long the process will take and warn about problems that
might occur.

Many of us have concluded that it is better to underpromise and overdeliver. For most clients, it is dangerous to raise
expectations. That said, sometimes a clients worries and problems are so overwhelming that it is a lesser of evils to
say, Go home, take care of your personal problems and Ill take care of the legal problem.
Finally, tell the person that even though you keep very busy you will return her calls on whatever schedule you
follow (e.g., within 24 hours). She will not want to be called by some stranger from your office to whom you
delegate lesser tasks. Remember that during your representation, your calls may be the most important thing in your
clients lives. They might literally sit by the phone awaiting your return calls, so do your best to reply immediately.
Conclusion
If your approach with prospective clients is, Heres what you have to do do it now! he or she may leave your
office only to visit another lawyer who gives them the same legal advice but invites cooperation instead of
demanding obedience.
Try to understand the people you serve. Get to know them as unique individuals. Recognize that client and attorney
are two equal human beings. By choosing you as his counsel, the client recognizes your superiority in only one area
the law. By working together, the two of you can be more successful than either working alone.
Larry E. Lauterjung (lauterjung@hotmail.com) has practiced law for more than 20 years, concentrating in high
volume work with lower income clients in traffic, criminal, and bankruptcy law. For eight years he was director of
Illinois largest multi-county probation district. He was a founding member of the ISBA Traffic Laws and Courts
Section Council and a regular contributor of articles for that sections newsletter and wrote and published two
books, DUI for Illinois Drivers and the just-released DUI Law For Drivers, Illinois Edition.

June 2012 Volume 100 Number 6 Page 328

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

The Hat Trick: Dont Be the Accidental Lawyer

By Karen Erger
You cant not be a lawyer its a status, not a mere profession, and you must always be on your best lawyerly
behavior. In that spirit, here are some things to think about.
Yes, I see you got your brand new leopard-skin pill-box hat
Well, you must tell me, baby
How your head feels under somethin like that
Bob Dylan, Leopard-Skin Pill-Box Hat
During the boarding process on a recent flight, I was reading a blog suggesting that teenage girls now feel compelled
to appear camera-ready at all times, or at least whenever they leave home, lest a random smartphone capture a lessthan-perfect image and post it on social media sites for all to see. The article posited that the ever-present eye of the
camera and the desire for Facebook likes pressures girls toward painstakingly crafting an oversexualized image,
which in turn causes anxiety and depression.1
Ironically, a swat in the head from a passing backpack brought it to my attention that some of my fellow passengers
could be found on the opposite end of the image-consciousness spectrum. Shoving ahead in line, hogging the
overhead bins, putting dirty (and/or bare and/or smelly) feet on walls, seats, and other passengers armrests2 a fair
number of fellow travelers seemed to have dropped consideration for others at the door of the airplane along with
the valet-tagged luggage.
Im sure at least some of these passengers would have been a bit shamefaced to have their conduct viewed by their
bosses, friends, or (heaven forbid) their moms. But at least some air travelers seem to believe they have entered a
sort of high-altitude Las Vegas, where What happens on the airplane stays on the airplane.
For lawyers, ignoring the perceptions of others can have much more serious consequences than an unflattering
Facebook photo or a dirty look from an offended seatmate. With apologies to Buckaroo Banzai, wherever lawyers
go, they are lawyers,3 and they can be deemed to be giving legal advice or entering into a lawyer-client relationship
when they had no intention of so doing.

I am reminded of the recent Thinking Arbys ad campaign, in which a line drawing of the iconic Arbys cowboy
hat is visible atop the heads of people hungry for Arbys roast beef sandwiches. Likewise, others sometimes see
lawyer hats perched firmly atop our heads, despite our belief that we have doffed them.
Lets look at a hat tricks4 worth of situations that can lead to unintended lawyer/client relationships, and suggest
some ways to avoid becoming an accidental lawyer.
Keep your party hat on
My mama told me/Son to be polite
Take your hat off/When you walk inside
Lyle Lovett, Dont Touch My Hat
Youre enjoying a brat, a beverage, and a rare Saturday afternoon out of the office when Bud Payne, a guy down the
street, corners you at the annual block party. Inwardly, you groan as he says that he has a quick question for you.
Sure enough, he wants your advice on a lawsuit he is thinking of filing, and he proceeds to spend the next 40
minutes acquainting you with the facts. You give him some off-the-cuff advice, and make your escape.
Later on, after Mr. Payne relies on your legal advice to his detriment (or says he did, anyway), he insists he was sure
you were wearing your lawyer hat, not your party hat. After all, he asked you for legal advice and you gave it.
Take affirmative steps to check your lawyer hat at the door in social situations. A party is not the right time or place
to discuss confidential legal matters. After all, no one would expect a doctor to conduct an exam in the middle of a
party.
If Bud seriously desires legal advice, and you are competent to provide it, he should make an appointment to discuss
it with you at your office. Remind Bud that, no matter what, he should seek formal legal advice promptly so that his
claim is not barred by applicable statutes of limitation. If you are not competent to advise Bud about his case, state
that fact clearly and, again, advise him to seek formal legal advice promptly, lest his claim be time-barred.
Then straighten your party hat, and make a beeline for the buffet table.
Thats not my hat
Yes Im a long tall Texan
I wear a ten-gallon hat
Well people look at me and they say
Is that your hat?
Lyle Lovett, Long Tall Texan
Suppose Bud really does make an appointment to discuss his legal matter with you. After he tells you a bit more
about his potential lawsuit, you inform Bud that you will not be representing him. Do yourself and Bud a favor and
send him an Im Not Your Lawyer letter to memorialize that fact. The letter should clearly state that
You will not be representing Bud
You are not expressing an opinion about the merits of Buds case
Bud should consult with legal counsel as soon as possible

 Delay may result in Buds matter being time-barred

For a couple of reasons, its generally not a good idea for your Im Not Your Lawyer letter to identify the date
upon which the statute of limitations will run. First, the initial interview may not provide the information you would
need to accurately identify the applicable statute. Second, providing legal advice about the date the statute will run
tends to contradict your statement that you are not providing legal advice.
In appropriate circumstances for example, if the statute of limitations is about to run or other significant deadlines
are looming you might consider sending the letter via certified mail.
Your virtual hat
Ground control to Major Tom
Check your protein pills and put your helmet on
David Bowie, Space Oddity
Even out in cyberspace, you are still a lawyer. Lawyers who blog, use social media, or participate in chat boards
must be mindful of that fact. A lawyer who poses and answers her own hypothetical question in her blog will likely
not be held to be giving legal advice5 - but she would still be wise to include a disclaimer stating that the information
given is general, and cannot be relied upon as legal advice. On the other hand, lawyers response to a chat board
participants fact-specific question may be construed as legal advice, particularly if her answer can reasonably be
understood to refer to the questioners own situation.
A lawyers website is legal advertising, and must follow the applicable Rules of Professional Conduct. Entries on
the website should also be crafted to avoid creating obligations to prospective clients where none are intended.
Rule 1.18 of the Illinois Rules of Professional Conduct defines a prospective client as a person who discusses with
a lawyer the possibility of forming a client-lawyer relationship with respect to a matter. A lawyer must keep a
prospective clients confidences, and she and other lawyers in her firm are precluded6 from representing other
clients whose interest are materially adverse to the prospective clients in the same or a substantially related matter
if the lawyer received information from the prospective client that could be significantly harmful to that person in
the matter.
Lets say your website simply describes your practice and provides biographical information about its lawyers along
with their email addresses. If a client emails you with a long description of his prospective legal matter and asks you
to represent him, that alone is probably not enough to create a prospective client relationship. Comment (2) to
Rule 1.18 tells us that a person who communicates information unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a
prospective client. Conversely, if your website invites visitors to submit information about their specific matters,
a visitor who accepts that invitation is very likely to be deemed a prospective client.
But the determination of whether or not a prospective client relationship will depend on context, so it is essential
that your website include a warning strongly contradicting the ideas that
A lawyer client relationship has been created with the visitor
You will keep the visitors confidences
You will be prevented from representing an adverse party, or
Legal advice has been given7

Of course, such disclaimers are ineffective if they are contradicted by your conduct.
One more reason to mind your hat
You can leave your hat on
Randy Newman, You Can Leave Your Hat On
Avoiding being an accidental lawyer is one good reason to remember your lawyer hat, but there are others. One is
that your personal conduct reflects on our profession as a whole. And the other is that you never really know who is
watching. Advice from the 1922 edition of Emily Posts Etiquette still rings true today:
Etiquette would not seem to play an important part in business, and yet no man can ever tell when its knowledge
may be of advantage, or its lack may turn the scale against him. The man who remains planted in his chair when a
lady (or an older man) speaks to him, who receives customers in his shirt sleeves, who does not take off his hat
when talking with a lady and take his cigar out of his mouth when bowing or when addressing her, can never be sure
that he is not preparing a witness for the prosecution.
Rising (let alone bowing!) for ladies is an anachronism; perhaps a more modern example would be shoving ahead in
line and stuffing everything from a huge carryon to a live goat in the overhead compartment, leaving no room for
anyone else.
But the message is the same the lady in seat 14C that you just whacked in the head while barging down the aisle
could be the CFO of your best client. You never know. Wherever you go, you are a lawyer and your behavior
impacts the dignity of the profession, and maybe your own bottom line, too.
Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

1.
2.

3.

4.

For Teenage Girls, Facebook Means Always Being Camera-Ready, Motherlode, New York Times,
March 7, 2012. See http://parenting.blogs.nytimes.com/2012/03/07/for-teenage-girls-facebook-
means-always-being-camera-ready/
A complete catalogue would exhaust this columns word limit, but just to name a few more random
discourtesies: Consuming truly smelly meals on short trips, grabbing each and every headrest (thus
disturbing each and every head) while walking down the aisle, shuffling a deck of cards loudly and
relentlessly on a red-eye flight when everyone else on the plane is trying to sleep, giving the stink-eye
to parents with a crying baby (as if theyre simply neglecting to press the baby mute button),
draping long and unclean hair over the back of ones seat onto the screen of anothers laptop, and
kicking the seat in front all the way from Chicago to LA (or neglecting to even suggest that ones
children cut it the heck out). Yes, I know that air travel is uncomfortable and becoming more so all
the time, but that seems like a call for more tact and forbearance, rather than less.
The phrase Wherever you go, there you are is indeed uttered in the 1984 motion picture The
Adventures of Buckaroo Banzai across the 8th Dimension. Debate rages on the Interweb about its
origin. Readers who know the real answer are invited to reveal it here
http://www.freakonomics.com/2009/07/02/quotes-uncovered-who-said-youre-always-where-you-
are/ and/or here http://www.figmentfly.com/bb/popculture4.html
The term hat trick is commonly used to describe a situation where a player scores (or does some
other good thing) three times in one game. Americans associate the term primarily with hockey, but
the term was first used in 1858 in cricket to describe HH Stephensons feat of taking three wickets in
three balls. A collection was held for Stephenson, and he was presented with a hat bought with the
proceeds. http://en.wikipedia.org/wiki/Hat-trick

5.
6.

7.

ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 10-457, Lawyer
Websites.
Two exceptions are set forth in Rule 1.18(d). The lawyer can represent the adverse client if it and the
prospective client both give informed consent. Or the law firm can represent the adverse client if the
lawyer who received the information from the prospective client took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to determine whether to
represent the prospective client; and that lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom.
Id.

April 2012 Volume 100 Number 4 Page 218

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Family Law

Slow Your Practice Down - Live Better and Longer

By H. Joseph Gitlin
Here's how a veteran lawyer strikes the balance between financial success and a pleasant lifestyle.
Lawyers, especially litigators, have conflicting personal goals. They want to build a reputation for excellence. They
want to be financially successful. On the other hand, happy lifestyle and longevity may also be goals.
Can lawyers have success and happiness? Yes, but compromises need to be made. A long time ago when I was
running for public office one of my slogans was, "Progress is not made by conflict, but by compromise."
This column does not intend to give you rules to practice by, but rather to relate the way I practice so you can
determine if any of my policies would suit you.
Closing time and quality time
When I was in solo practice, about eight years out, my children were four and eight years old, and I decided I must
spend more quality time with them. What I call "quality time" was the time they came home from school until they
were put to bed.
The best time was dinnertime at home. On the other hand, the least good was the time in the mornings when the
children, my wife, and I were scurrying about getting ready for school and finishing breakfast. As a young and
ambitious lawyer I needed to get the billable hours in, so I decided to start at the office at about 6:00 a.m. and close
the office at 4:15 p.m. The reason I chose 4:15 was that local court rules stated that a notice of motion must be
served before 4:00 p.m.
My secretary loved the new hours. She, like many women support staff members, had two jobs. She had her payroll
job and then her job at home of caring for the family, which, of course, included cooking the dinner meal. Did my
early closing hours meet with surprise and some hostility by opposing counsel? Yes, of course.
Taming the electronic communications tiger
And then we moved into the era of fax communications. What this allowed opposing counsel to do was to give me
short notice by fax, thereby speeding things up.

I did not want to speed things up. I figured I do my work on time and let the other side do its work on time. My firm
does not publish its fax number on our letterhead, website, or anywhere. The fax unit is almost always disengaged.
Frequently my firm receives calls from opposing counsel wanting to fax us. They are told they need the okay of the
lawyer in the firm who has principal responsibility for the case, and then they may fax at a predetermined time when
the fax unit is turned on. The same rule that applies to notices applies to communications by fax.
Many lawyers are simply in the habit of faxing, rather than mailing. Sometimes there is an urgency to the case that
requires faxing, like when the divorce case is virtually settled, but for a few minor issues and in order to settle the
case you have to play the game of back and forth like a quick game of table tennis. In these cases we allow faxing.
Email presents some of the same issues as does faxing, but there are also additional problems because email is so
quick and so easy. Again, my firm does not publish its email address and we do not release it to clients, except
overseas clients. A reason for my firm's email policy is that it is so easy to correspond by email that a client will
thoughtlessly email my firm and then expect an instant reply.
A sane approach to billable hours
A divorce lawyer friend of mine was financially ambitious. He established a policy for himself of staying at the
office until he billed 12 hours for the day.
I want lawyers in my firm to produce good billable hours, but I also want them to have a good life outside of the
practice. My firm does have a minimal weekly billable hour goal for all lawyers, but it is a reasonable one. My firm
does not have sleeping cots for overtime lawyers.
H. Joseph Gitlin practices family law in Woodstock and is the author of Gitlin on Divorce: A Guide to Illinois
Matrimonial Law (LexisNexis). He is a laureate of the Academy of Illinois Lawyers.

May 2012 Volume 100 Number 5 Page 270

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

The Judges Corner

A Bricoleurs Response to Murphys Law

By Hon. Ron Spears
"Bricolage" is the art of creating a solution using whatever is available. It's an art litigators would do well to
cultivate.
Judge Justice was speaking with a group of young lawyers on "Final Preparations Before Your First Jury Trial."
During the question and answer period, one lawyer said, "I was given a file on the eve of trial, and it's a mess! Our
best witness disappeared, critical documents are missing, the lead attorney is sick and can't help me, and the judge
has denied our motion for a continuance!"
Justice smiled and replied, "It seems like you need to become a bricoleur." Noting the shocked look on the lawyer's
face, Justice quickly added: "I did not say you should have been a bricklayer instead of an attorney. I do mean,
though, that throughout your practice you will need to make creative use of the resources and evidence available to
you to find the best possible solution. The French call it bricolage, and people who engage in bricolage are
bricoleurs."
Sometimes your crisis is a result of Murphy's Law: everything that could go wrong did. Do not, however, let your
own disorganization test your last-minute bricoleur skills. In other words, bricolage is not the same thing as doing
shoddy work and being forced to throw a case together. Let's start back at the case beginning.
Avoiding self-made crises
The judge observed that many of his worst cases were, in hindsight, bad from the beginning. To have a chance at
"winning" for your client you need to agree on reasonable objectives based on the facts and law. Sometimes you
aren't in a position - or lack the willpower - to say "no."
Even though you are the fourth lawyer on the case, the facts look weak, your client is unrealistically optimistic, there
is no money for extensive discovery, and a critical hearing is set in two days, you (or a senior partner) decided to
accept the case (this happens when, say, your rent is due and the client has a $5,000 retainer).
Or maybe the case was bad from the beginning but you failed to see it because of an incomplete initial interview and
lack of preliminary investigation. Either way, the corollary to Murphy's Law is that "if you take a bad case, not only
will things go wrong, you will probably lose even if they go right!"

Even assuming you properly screen cases, you must be diligent and systematic in your investigation, discovery, and
preparation. Evidence must be identified, preserved, and the foundations available for admissibility. Witnesses must
be found, interviewed, and their contact information updated. The elements of damages must be fully identified and
compiled. Crucial testimony may need to be preserved by evidence deposition. Pleadings must be carefully prepared
with an eye to relevant jury instructions. Experts must be consulted and disclosed.
All of these steps are well known to any litigator, but pressure from large caseloads, neglect, or laziness can make
even a good case a disaster. You can guarantee that Murphy's Law applies to your case by your own actions or
inactions.
The art of bricolage
Even if you select your cases well and fully prepare for trial, things can and will go wrong. No case is perfect, and
on the eve of trial you might see all the flaws of your case and wonder how you got into such a mess. Your
opponent's case looks formidable and opposing counsel looks invincible (keep in mind he or she is probably
thinking the same thing). Panic can set in. Now is the time to practice the art of bricolage.
Step one: don't let fear of failure paralyze you. It is not time to throw in the towel. Write down the strengths and
weaknesses of your case and your opponent's. Identify the problems and examine the best and worst scenarios. Look
over the evidence and witnesses and develop a credible theory of your case based on what you have. This will help
you regain confidence.
Step two: use your creativity to solve problems and minimize harm to your case. Can witnesses you do have cover
for some that are missing? Can you use video conference technology under Supreme Court Rule 241 to present an
otherwise unavailable witness? Can you introduce a discovery deposition under Supreme Court Rule 212 (a) (5)? Is
substitute evidence admissible by self-authentication under Illinois Rule of Evidence 902 or another section of the
evidence code? Can a notice under Supreme Court Rule 237 help secure a witness and documents and tangible
things?
Step three: stay relentlessly positive about yourself and your case. Studies of crisis management reveal that, while
we cannot control what happens to us or our cases, we survive by how we react.
This is not the same as a bluff or detachment from reality. A spirit of optimism and a sense of humor are important
traits for a litigator.
Consider the pony joke. Two little boys are being examined by a psychiatrist because their parents fear their extreme
reaction to situations. One was a pessimist and the other an optimist. The pessimist was taken to a room full of toys
but refused to play with them because "they could break!" Meanwhile, the optimist was taken to a room full of horse
manure. He immediately started digging, exclaiming "there must be a pony in here somewhere!"
When Murphy's Law controls, lawyers must keep looking for the pony. If you can't find one, use what you have in
creative ways and improvise a way to victory.
On the drive home after the presentation, Judge Justice thought back to the many times he had looked for the pony.
He realized that becoming a good bricoleur comes from experience, usually bad ones. Then again, some days being
a bricklayer looks appealing. At least you can tell when the bricks are falling in.
Ronald D. Spears of Taylorville is a judge of the fourth judicial circuit and past president of the Illinois Judges
Association.

January 2012 Volume 100 Number 1 Page 50

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Family Law

Family Law Practice-Management Tips

By H. Joseph Gitlin
A veteran family lawyer offers a few rules for practice success.
I've been practicing family law for many decades. Along the way I have developed a few helpful habits and
practices.
Spinach first, dessert later
You can be the best lawyer in town, but you won't be financially successful until you learn to prioritize your work.
I've seen too many lawyers put the cases they enjoy working on most at the top of the file pile and let the others
shuffle to the bottom.
Long ago I began following a simple rule: "Spinach first, dessert later." Do the work you least enjoy first and get it
out of the way.
Do things in order
I have two desks in my office. I meet with clients across my front desk. I rarely have files on that desk. In back of
me is an old rolltop desk. Here I stack files that need attention.
I dictate for the most part on weekends. Both desks have red leather surfaces. My goal for the beginning of each new
week is that on Monday I should be able to see leather. I systematically work my way down each stack of files and I
do not put a file to the bottom just because I do not feel like working on it.
I do, however, diary many files for a future date. That is, I instruct the secretary to bring the file back to my desk on
a certain date. For example, I may have diaried my file for three weeks for a response from opposing counsel or for
discovery, but I have not yet received a response and I want to give the other side a bit more time before taking
action. This would cause me to diary the file - advance it - for another two or three weeks.
All lawyers I know still need paper files. However, file examination can also be done on the computer if there are
computer files for each client.

Bill monthly
I knew a lawyer who had a "result obtained" clause in his retention agreement. In other words, on top of his hourly
rate he would be entitled to additional fees based on the result he obtained for the client.
He told me that at the end of each matter he met with the client, reviewed the whole case, and pointed out the
benefits his representation produced. It sounded great. But after he died, the lawyer who took over his practice said
the unpaid accounts were staggering - for work actually done, not for result fees.
The rule is, and the retention agreement of my firm states, that we will bill monthly, on a certain date, and that the
balance of the statement must be paid by the next month, by a certain date. The client is advised at the initial
consultation, and by the retention agreement, that my firm will withdraw from the case if the monthly billings are
not met.
This means the client can get ahead of us for a month's worth of billings, or maybe a month and a half, but no more.
This amount we can bear.
Our rule is to bill monthly, insist on payment a month later, and withdraw from the case if not paid. Actually, the
policy is not quite that strict. If clients are a month in arrears in fees, they receive a letter telling them they are
"penciled down" until the balance due is paid in full within 14 days. In the meantime, we will take no initiatives on
the client's case, but we will not allow a client to be prejudiced and we take all necessary reactive measures.
Live long and prosper
These are the lessons of long years in practice, and most of them apply generally, not just to family law. Here's
wishing you many years in the profession so you can someday share your own "veteran's tips."
H. Joseph Gitlin practices family law in Woodstock and is the author of Gitlin on Divorce: A Guide to Illinois
Matrimonial Law (LexisNexis). He is a laureate of the Academy of Illinois Lawyers.

May 2011 Volume 99 Number 5 Page 238

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Practice of Law / Young Lawyers

Experience by Appointment
By Helen W. Gunnarsson
There isn't much money in it. Often there isn't any. But serving as appointed counsel is a way to gain invaluable
courtroom experience and remind yourself why you went to law school in the first place.
Newly minted lawyers in private practice may find courtroom experience difficult to come by. Those in firms may
spend much of their time reviewing documents and answering tedious discovery requests. Those who have hung out
their shingles as solo practitioners may spend lonely days waiting and wishing for the telephone to ring. The clients
who do arrive may not have matters in court. Or they may prefer settling their cases to litigating them to a final
resolution.
Even more experienced lawyers in firms with busy litigation practices may find trial experience, particularly jury
trial experience, hard to get. Most cases end up settling, whether before trial or before even filing. Where litigants
are reluctant to yield before trial, courts will often apply pressure to do so in the form of mandatory mediation, also
known as "reality therapy."
But courts also provide opportunities for lawyers to gain valuable litigation experience, including jury trial
experience, by serving as appointed counsel. Lawyers interviewed for this article reported rich and satisfying
experiences serving as guardians ad litem in state court matters, including probate cases and matters involving child
custody and visitation, and as appointed defense counsel in post-conviction criminal matters. Opportunities are also
available in federal court (see sidebar for a description of some of those openings).
GAL appointments: needy people, serious matters
"Serving as a GAL is an excellent opportunity for young lawyers," says Urbana lawyer Tim Johnston. "Helping a
desperately needy person with a very real, grave matter was a real visceral experience for me."
After a stint as an assistant state's attorney in Lake County and a year in private practice, Johnston moved to Urbana,
where his wife was in school. "I needed a job, and one suggestion I got was to talk to the Champaign County judges
and get on the GAL list. I met with the judges, told them about my experience, and told them I was more than happy
to serve as a GAL. The process was quite informal."

Johnston was appointed to serve as a GAL for a man who was dying of AIDS and suffering from some cognitive
deficits and other associated conditions. "He was having trouble with all of the activities of everyday life, including
taking his medicines and eating properly. After he was found lying on his floor in bad shape, he was admitted to one
of the local hospitals. After a week or so, the hospital wanted to put him into palliative care," i.e., discontinuing
retroviral drugs and all other medications except for those that would alleviate his pain. "The court appointed a
GAL, which was me."
Johnston then met with the man to discuss his situation and the court proceeding. "One of the medications was
affecting his mental state, and he had asked to be taken off it before talking with me. We discussed everything, and
he understood what was going on. I talked to his doctors and other relevant people, reviewed his medical records,
and wrote up my opinion for the judge. On the day of the hearing, he insisted on coming to the courtroom and telling
the judge himself that he wanted the medicines that were designed to prolong his life stopped."
Though the man died, as was inevitable, Johnston says the experience was good. "We had a good process in which
we had solid input from everybody and everyone was protected. The judge made the decision, but everyone agreed,
including the subject."
Now that his schedule has filled up, Johnston no longer serves as a GAL. "I got a letter from the judge asking me to
serve as a GAL and told him I couldn't do it anymore. He was very understanding."
But in addition to the personal satisfaction he derived from the case described, he says his service has been helpful
in the personal injury matters he now handles for his firm. Serving as a GAL taught him about probate law and the
Guardianship Act, a statute with which he had been unfamiliar. "We have to deal with different aspects of probate
law whenever we have a wrongful death or a minor in a case. There's no heavy lifting, but it's nice having a bit of
background in that area."
Springfield lawyer Alison Hayden has also found her experiences as appointed GAL interesting and rewarding. In
one matter, an insurance coverage dispute that involved an auto accident, Hayden was appointed GAL for an injured
minor. "I needed to be sure that he would be adequately compensated for his injuries, which, happily, were not
severe."
In another matter, Hayden was appointed as GAL for a young woman who was disabled. Because the woman had
reached the age of majority, the institution where she lived would not allow her to remain there. The woman's father,
who was her guardian, proposed to transfer her to an institution for disabled adults that could accommodate her
severe physical and medical needs. This home was located further from the woman's mother's home, whereupon the
mother moved to revoke the guardianship and asked that she be allowed to care for the woman in her home.
"I interviewed everyone and filed a report with a recommendation based on my interviews. It opened my eyes to the
fact that there's a lack of institutional housing for children and adults in Illinois."
Hayden has also served as GAL in a number of adoptions. Contrasting her day-to-day environmental law practice
with the cases in which she's served as a GAL, Hayden says she enjoyed being able to help people in such personal
matters and was pleased to acquire hands-on experience with clients and in court early in her legal career.
Get the required training
As Hayden's and Johnston's experiences show, though the individual circuits have different local rules and practices,
many require little or no experience of attorneys who wish to be appointed as GALs in probate matters. Champaign
lawyer Mark Palmer says his application to serve as a GAL in adoption or probate matters consisted only of a letter
to the judges who preside over those cases asking to be added to the list of attorneys available for appointment,
though he also let them know that he'd completed the 10-hour course "Education for Attorneys in Child Custody
Matters" recommended by Illinois Supreme Court Rule 906.

SCR 906 governs attorney qualifications and educational requirements for serving in child custody and visitation
matters, directing the courts to develop individual procedures for appointing lawyers to represent children as GALs
or in other capacities in those matters. The rule contains recommendations for minimum requirements for
appointment, including 10 hours of approved continuing legal education courses in certain subjects relating to
children and families.
Lawyers wishing to serve as appointed counsel in matters addressed by SCR 906 might have to demonstrate that
they have met those requirements to be considered for appointment. In Cook County, for example, lawyers must fill
out an application detailing their experience and qualifications and appear before a screening committee for an
interview before being considered for inclusion on a list approved by the chief judge.
With nearly 10 years of experience and a full private caseload in his Springfield law firm, Roland (Rob) Cross
continues to serve regularly as appointed counsel, not only as a GAL for minors and disabled adults in probate
matters, but also as a child representative in custody and visitation disputes, as counsel for parents in abuse and
neglect cases, and as GAL and counsel for juvenile offenders.
Cross certainly doesn't serve in those capacities for the money. As a GAL in probate matters, he says, payment
depends upon the case. "In general, you are usually setting a flat fee for your work unless a trial or considerable
investigation is involved." In cases in which he serves as child representative, he requests a retainer at the outset but
charges a significantly lower rate than he bills for his firm. Court appointed lawyers in Sangamon County juvenile
cases are paid at the rate set by the public defender's office.
In any type of case, "It is not strange to get a call from a judge asking if you would be willing to volunteer your time
to assist, knowing at the outset that you will probably not be paid your standard hourly rate or any rate at all."
Nor does Cross find that warm and fuzzy feelings are guaranteed. In one case, he served as child representative for
several children with conflicting parental loyalties and agendas that would vary from day to day. The case included
cross claims of sexual abuse to the children by a parent and a step-parent, cross-accusations of parental drug use
where the drugs were offered to the children, and a text message with an attached nude photograph of a minor. "Lots
of fun, right?"
Cross had to petition for an order of protection on behalf of some of the children against one parent and seek
injunctive relief on behalf of the children against the other parent. For around 200 hours of time, Cross says he
ended up getting paid around $3,000.
Apologizing for sounding "corny," Cross says, "I take the appointments because I honestly feel that the judges with
whom I work need the assistance, and I also believe that lawyers have a responsibility to strengthen the system that
we practice in."
In cases involving children, "I think it's so necessary for someone to come in who's not worried about the car or
child support to represent kids where they need it. When you have a child rep in a case, the case is completely
different. Everybody, even the lawyers, behaves differently. It's as if you had a hall monitor in the case."
Postconviction petitions: "[y]ou get to see where they're coming from"
Springfield lawyer Brendan Harris has gained considerable experience in criminal law as appointed counsel on
postconviction petitions. Having worked during law school as an extern and volunteer with the office of the public
defender in Cook County, and having handled some criminal matters on his own during his first three years as an
attorney, Harris says he had enough of a comfort level to say "yes" when an assistant state's attorney asked him if he
was interested in handling postconviction matters.
"They're not very popular among attorneys because you hardly ever win them," he said. "And the hourly rate is only
$60, set by the county. Nobody in Sangamon County does them full time."

Harris's cases come to him after convicted defendants have filed their own postconviction petitions pursuant to the
Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. As long as a petition is not frivolous or patently without
merit, the court will appoint counsel for the defendant.
Once appointed, a lawyer will invariably file an amended petition. "People with very lengthy prison sentences tend
to be very involved with their cases. They have a lot of theories about why their case went wrong and how their
lawyer messed up. Often the pro se petitions will have 20 or 30 arguments, which is not realistic." And the clients
can be very demanding, he says. "They tend to receive a lot of 'help' from other people in prison who don't know
what they're talking about."
Despite the odds, Harris was successful on his very first case, obtaining a sentence reduction for his client. To
prepare, Harris first conferred with the Sangamon County assistant state's attorney who handles post-conviction
matters, other local defense attorneys who were experienced as appointed post-conviction counsel, and an assistant
at the Office of the State Appellate Defender. All, he says, were kind enough to forward him past petitions and briefs
to review and also directed him to other helpful resources.
"The OSAD has been helpful every time I've contacted them about a case." That office has often already worked on
Harris's client's appeal, may work on it again in the future, and likely has already researched and briefed many of the
arguments he'll be making, so Harris finds it a good starting point for any case.
As in all cases Harris has handled since then, he went to the state prison to meet with his client and read the trial
transcripts and other parts of the record. "All of my clients so far have been in prison."
Harris thinks the experience of traveling to a prison to meet with a client is a valuable one for lawyers. "There's no
substitute for sitting down for an hour or two and meeting them in person. You get to see where they're coming
from. They have a lot of complaints, some of which are legitimate."
He says he usually meets with his clients twice, once at the outset of his representation and again when he's
completing his amended petition. He also usually meets with a family member who's knowledgeable about his
client's case, as long as his client approves.
One practical issue with representing prisoners is the lack of immediacy in communication, Harris says. Telephone
calls and visits must be scheduled in advance, and each institution has different rules. Of necessity, Harris uses snail
mail with his prisoner clients more frequently than with clients on the outside.
Handling postconviction petitions, he says, has made him a better lawyer. "It's a really good way to learn about
criminal law. I've become more knowledgeable about types of cases that I haven't yet handled personally."
He's gained valuable courtroom tips from examining trial counsel's performance, too. "Most cases include an
ineffective assistance of counsel claim. Reading the trial transcripts and records helps me learn what common
mistakes lawyers make so I can avoid them. It also makes me aware of when lawyers do a great job at trial, so I can
learn from their strategies."
Harris says he's not only gotten great experience from handling post-conviction cases but also has found the
experience personally rewarding. "The post-conviction proceeding is extremely important in my clients' lives. This
is their last shot at some freedom, or a reduced sentence, or a new trial."
All of the lawyers interviewed recommend that lawyers volunteer their services to courts, whether for a reduced fee
or no fee at all. Says Mark Palmer, "I became a lawyer to help people. I try not to lose sight of making sure I enjoy
every bit of my job. That involves handling a diverse calendar of legal matters for people from all different walks of
life."
Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

Volunteering: Making a federal case of it

Volunteering for appointment in federal court cases can give you valuable trial experience and a shot at a paying gig.
Whether justified or not, many lawyers consider federal court big time compared with state court. And opportunities exist for eager but
inexperienced lawyers to gain experience as appointed counsel there just as in state court.
Criminal Justice Act panel attorneys
28 USC section1915(e) authorizes the United States district courts to request counsel to represent indigent litigants in non-frivolous
actions. One significant and apparently underutilized opportunity for experience is to serve as a panel attorney under the Criminal
Justice Act (CJA), 18 USC 3006A.
Appointment generally occurs when the federal defender has a conflict, in, for example, a multi-defendant case. Each of Illinois's three
U.S. district courts has its own rules and practices regarding appointments. Applications are available on the courts' websites or from
the federal defender's office.
Champaign lawyer Mark Palmer says, "Serving as appointed counsel in federal court on the CJA panel offered me immediate
courtroom time as a starting attorney in private practice, while some of my peers fresh out of law school were parked at their desks all
day."
Eager to gain federal courtroom experience, Palmer spoke with an assistant in the office of the federal defender in Urbana. "He said I
could sit as a second chair in a trial with him that involved the transfer of a large quantity of cocaine from Texas to Chicago and carried
a mandatory life sentence. I sat as second chair and took voluminous notes."
The case ended with a hung jury, unusual in the Central District. "So we set a date to try it again. On the morning of the trial, the
federal defender said, 'Why don't you do some of the trial this time?' My initial reaction was panic. I hadn't expected to be stepping in
front of the jury that morning!"
But Palmer's notes stood him in good stead, and he rose to the challenge. "I got to cross about half of the government's witnesses and
did the closing argument. It was nice to have the chance to shine."
Urbana lawyer J. Steven Beckett, who is Director of Trial Advocacy for the University of Illinois College of Law in addition to his firm
practice, serves as the CJA panel representative for the Central District of Illinois. Beckett says the court welcomes even inexperienced
lawyers as volunteers.
"We try to expand the number of attorneys on the panel by working with the judges to appoint inexperienced lawyers to sit as second
chairs on two jury trials. After that, they're eligible for appointment as fully fledged panel attorneys."
Beckett says lawyers wishing to volunteer should fill out the application that's available on the court's website at
http://www.ilcd.uscourts.gov/forms.htm. After turning it in, lawyers may expect to receive a call from a judge offering them the
opportunity to be paired on a case with a lawyer from the federal defender's office. Second chair lawyers are almost never paid for their
time, but once they become panel members, the statutory rate of pay is $125 per hour, plus expenses.
Beckett urges younger and inexperienced lawyers to volunteer. "The challenge is great, because the odds are against you. The cases are
complex and the court facilities are phenomenal, using all the latest technology. It's a great experience." The Federal Public Defender
provides copious information and resources, including training, for those who serve as panel attorneys under the CJA.
"Don't be shy"
Lawyers who are members of the federal district bars may also be appointed to serve as counsel for civil litigants, generally in
employment matters or prisoner litigation. In the northern district, availability for appointment is a condition of membership in the trial
bar and, according to Chief Judge James Holderman, will come up around once a decade for each lawyer. Though judges in that district
will not appoint inexperienced lawyers to litigate cases, lawyers lacking experience may volunteer to be appointed to represent
otherwise unrepresented litigants at settlement conferences conducted by district judges or magistrate judges.
Judges in the central and southern districts say they welcome volunteer lawyers with any or even no experience. "Don't be shy," says
Magistrate Judge David Bernthal of the central district, who says judges will work with lawyers so as not to appoint them to cases
they're uncomfortable handling. "Send us a letter and I'm sure we can make this a win-win situation."
Holderman and his counterpart at Illinois's southern district, Chief Judge David Herndon, also point out that lawyers can receive free
CLE credits for participating in volunteer training. "We've established a program of seminars and a mentoring program to assist
appointed counsel if they have any questions or need any assistance," says Herndon. That mentoring includes a court-compensated
liaison whom appointed attorneys may consult at will.
"We think volunteering is ideal for new law grads or lawyers reentering the work force," he says. "With the mentoring and supervision,
the client is not at risk. We have so many pro se litigants who are in need of legal assistance." Adds Bernthal, "I'd much rather deal with
a lawyer than a pro se." Both Herndon and Bernthal emphasize that lawyers in their districts are free to decline appointments.
Guidelines for the administration of the CJA are available on the website of the federal courts at
http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms.aspx. Whether in CJA or civil matters, courtappointed lawyers are responsible for maintaining their own professional liability insurance.
- Helen W. Gunnarsson

October 2010 Volume 98 Number 10 Page 538

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention
You Kids Are Alright: A GenY Guide to the (ahem) Older Lawyer
By Karen Erger
Welcome, new admittees - we are your supervising partners, your wizened coworkers. What makes us tick? Here's a
handy guide.
We've been warned, and they're coming. The Millennials, Generation Y, or
whatever catchy name they're going by this week, will soon be holding up
their right hands, swearing to support the Constitution, and joining the ranks
of Illinois lawyers. We lawyers of a certain age (I'll call us Older Lawyers)
have been inundated with articles and seminars about how we can work with
the new kids on the law block, who, we're told, differ wildly from us in work
ethic, preferences, and outlook on life generally.

Each generation imagines itself

to be more intelligent than the
one that went before it, and
wiser than the one that comes
after it.- George Orwell

But there is relatively little guidance for the newly minted young lawyers who will be working with Older Lawyers.
So, for them, here is a guide to Older Lawyers and how they see the world differently from the next generation - and
a few ways in which both generations are very much the same - along with some ideas about how young lawyers can
use their unique outlook on work and life to avoid some of the mistakes that we Older Lawyers have made.
Let's start with the differences.
1. Our career path was a ladder - yours is a jungle gym. When I began my legal career, it was received wisdom
that if you worked really, really hard and didn't disgrace yourself too badly, you'd make partner at your firm
someday. Many Older Lawyers just put one foot in front of the other until we realized that our ladder led nowhere.
You are smarter, it seems, and you know that your career path may have many twists and turns. Because you know
this, focus on learning all you can at every place you practice, so you can take it with you when and if you leave. I
know the job market's tough, but try to practice with the best lawyers you can. Learning solid skills and good
practice management in the first place is much easier than unlearning bad habits later.
2. Work was our life - or that's what we said, anyway. Back in the day, lawyers had relationships and children
and lives outside the office - but we were hesitant to talk about those things because it might make us seem less than
serious about practicing law. You seem more honest about wanting balance in your lives, and that is a worthy goal.

Remember, though, that it is a goal. On any given day, reality can be otherwise, especially as you are beginning to
learn your craft. Try not to let it get you down, and don't give up on doing what you can to stay healthy and sane.
3. Out of sight, out of mind. We Older Lawyers predate flexible hours and working from home, other than reading
a stack of transcripts on the couch once in a while. We worked in our offices - and if we weren't there, we weren't
working, and might, in fact, have sloped off to Wrigley Field. Wrongly, we sometimes assume the same thing about
you.
If you are working remotely, take the initiative and keep in touch. Ask questions, give status reports. This is good
practice for the days when you will deal directly with clients, who also want some reassurance that you care about
their legal matters and are handling them properly.
4. We like paper, but we're intrigued by your electronic stuff, too. You are technology natives - you were born
into a world with computers. We Older Lawyers are immigrants from the land of books and papers.
Try not to mock us when we speak your language a little clumsily. Use your electronic expertise to make yourself
more productive and organized, and share it - tactfully, please - with us. In these early days, when you're constantly
reminded of how much you have to learn, it can be very pleasant to teach an Older Lawyer a thing or two.
5. We talked to each other. Email didn't exist when Older Lawyers like me began practicing law. Actually, my
second law firm had email, but it was internal only, so we used it to send important communiques like "We're going
to Mrs. Levy's for lunch - wanna come?" and fun stuff like my daily exegesis of the "Gil Thorp" comic strip in the
Tri bune's Sports section. (See #7 below).
Now you - and we - use email all the time, except maybe when you - and we - are communicating via Facebook or
tweeting and being tweeted at. This is a reminder not just to you, but also to Older Lawyers that email is not a
perfect or even a good substitute for actual talking.
If you explain some complex electronic thing to me (like turning on my "Out of Office" message) and finish by
saying, "Karen, does that make sense?" and I say "Yeeeessss?" with a rising inflection, you know you need to start
all over again - I didn't understand a word. Think about how that Q and A comes across in email - you could just go
on your way assuming that I got it.
6. We had two "Casual Days" - Saturday and Sunday. When I first went to work for a law firm, pantsuits on
women were still a little questionable, and the only way I'd show up to work without stockings was if the Chicago
summer heat had actually melted them off my legs. (There were days when this seemed entirely possible.)
Times have changed, probably for the better. But don't forget that many Older Clients expect you to dress "like a
lawyer." And studies show that you are 54% more likely to have a surprise court appearance or client visit on days
when you are dressed casually. (OK, I made the statistic up, but the principle is still true.) Even if you aren't required
to don full battle dress on a daily basis, hang a suit on the back of your door just in case.
And here are a few similarities.
7. We goofed off, too. Don't be fooled by Older Lawyers crabbing that you are wasting time on Twitter, Facebook,
and the Internet. We goofed off too, just not electronically. We gabbed about TV shows, lounged in each others'
offices, and, on one memorable occasion, conducted a scientific experiment in which we filled a glass to the brim
with water and watched it to see whether the swaying of our high-rise office in a wind-storm would make it spill.
However, I also remember the dirty look we received from a partner passing my office while this voyage of
scientific discovery was underway. How things looked to others mattered then, and it matters now. I speak from
experience when I say that it's not good to be perceived as someone who shops on the Internet all day long.

8. We goofed up, too. You would never know it from our current state of perfection (kidding!) but we Older
Lawyers messed things up sometimes. Sadly, you will, too. If you discover that you've made a mistake, bring the
situation to a trusted colleague in your firm now.
It's always good to do this calmly, and to come with some ideas about how the problem can be fixed, but do not
delay. It may be that the "error" is not really an error at all. Or perhaps it can be easily remedied.
But even if the worst is true - it's a huge, flaming, unfixable mistake - your reputation and the client's interests are at
stake. Do not risk either by lying, ignoring the problem, or burying it. Nikki Giovanni said, "Mistakes are inevitable.
It is the response to the error that counts." There are many sad stories about lawyers who disregarded this principle
and ended up in malpractice suits and ARDC trouble. Don't let it happen to you.
9. We don't know everything, either. In the 20 years (yikes!) since I took the lawyer's oath, law has become ever
more complex and challenging. Entirely new bodies of law have come into being (e.g., cyberlaw), and even
established practice areas evolve constantly.
Abandon any hope that one day you will "know it all." For Older Lawyers and new lawyers alike, staying abreast of
developments in just one practice area is a lifelong challenge. For this reason, you will want to choose a few areas
on which you will concentrate your practice. "Jack of all trades, master of none" is a recipe for dissatisfied clients,
claims, and other calamities.
10. Our Older Lawyers complained about us, too. Seems like every generation takes pleasure in predicting the
utter ruin of civilization once it falls into the clutches of the next generation. We heard it; now it's your turn. Ignore
it. We Older Lawyers are glad you're here, and wish you all the best as you begin your career as a lawyer.

Attorney Karen Erger, former vice president and director of loss prevention with ISBA Mutual in Chicago, now
works with Holmes, Murphy & Associates in Cedar Rapids, Iowa.

September 2011 Volume 99 Number 9 Page 444

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Law Practice Management

The Five Biggest Business Mistakes Lawyers

Make
By Helen W. Gunnarsson
In an effort to make themselves attractive to clients, too many lawyers - especially new ones - undervalue their
services. It's a short-sighted approach that can lead to big trouble, this lawyer argues.
Timothy J. Storm, a solo practitioner based in Wauconda, an appellate lawyer, an adjunct law professor at John
Marshall Law School, and chair of ISBA's General Practice, Solo and Small Firm Section Council, talks to a lot of
lawyers about the practice of law as well as to a lot of soon-to-become members of the profession in the course of
his practice and his work with ISBA. Over the years, he's heard many stories about problems lawyers encounter in
setting up and running their law offices.
"Often, lawyers don't realize that a situation that doesn't present itself in neon letters is a problem. They think it's a
challenge," Storm says. "After a while, they realize they've been led down the road into a business mistake that they
could have avoided if they'd identified it as a problem in the first place."
Storm has found that most business mistakes lawyers make fall into five categories. He characterizes them as
working on an involuntary pro bono basis, financing clients for free, discounting to get business, defending a
collection case on two contingencies, and failing to communicate. (Storm will address this topic more expansively at
ISBA's Solo and Small Firm Conference next month - see sidebar.)
Pro bono work should not be involuntary
What lawyer in a solo or small firm will not have performed involuntary pro bono work at some point? This
business mistake happens after you've engaged a client and have begun working on the case. Maybe the client has
paid your bills for a while - but then stops.
"That's a big problem for all lawyers who bill by the hour," says Storm. "You want to make sure that doesn't
happen."
Storm says lawyers get themselves trapped into working for free because they start buying into myths about legal
fees. First among those myths, he says, is that lawyers, especially those who are starting out, have slack time that

they can and should use to work on nonpaying matters to become familiar with an area of practice. "What else
would I be doing?" lawyers may rhetorically ask themselves.
But working for free doesn't build up a lawyer's business, Storm says. "Business development, not involuntary pro
bono work, builds up your business. If you do have slack time, you should be engaging in new business
development, not involuntary pro bono work."
Another myth is that a lawyer has a responsibility to provide free legal services.
Certainly, Storm says, lawyers should do legitimate pro bono work. "I have no problem if a lawyer says, 'I want to
do this case for free because of my relationship with the client or my feelings about the case.' That's great."
Genuine pro bono work is an excellent way of becoming familiar with a new area of practice as well as helping
those who truly cannot afford to pay lawyers. "But the lawyer also has the obligation to make a living and provide a
living for his family. You can't do all the free legal work you'd like to do."
And then there's the myth that lawyers charge too much. "The lawyer has the obligation to set fees fairly in the first
instance. If you've done that, there's no reason to be subject to an involuntary discount when the client decides he's
paid enough."
Other myths? That the client will pay after the lawyer has performed the work and that the client has a good reason
not to pay the lawyer on time. "If you don't collect your fees from the client when the client needs the work done, it's
not more likely that you'll collect them later - it's less likely. The lawyer gets further and further down the totem
pole" of creditors.
"We can all think of times when clients have given lots of good reasons why they can't pay their bills on time. There
may be many good reasons, but there's never, ever, any good excuse. The client has agreed to pay the lawyer on a
certain schedule. The lawyer has to enforce that schedule.
"I see no reason why a lawyer's expectancy of a fee should not be secured" by lawful and ethical means, Storm says.
"A lawyer has every right to be paid according to the terms of an agreement."
Don't finance your client's case
Storm likens clients who want their lawyers to perform legal services now but pay later to Wimpy, the hamburgerloving character from the Popeye cartoon whose signature expression was, "I'll gladly pay you Tuesday for a
hamburger today." Recognize this situation for what it is: "This amounts to an unsecured interest-free loan. The
client is borrowing money from you which the client then uses to pay your fee."
Don't succumb to this plea. "You are a lawyer, not a bank." Unlike a bank, "You are not generally in a position to do
credit checks or demand sufficient security."
When presented with a client's request for free financing, Storm suggests, "Explain 'I'm not in a position to give you
a loan, but maybe you can go to a family member, a friend, or a credit card for a loan to pay my fee.'" If the client
expresses astonishment at such an idea, consider this: "The client has walked into your office, never having met you
before, and asked you for a loan. What's wrong with this picture? Lawyers need to understand what is really going
on in this client exchange."
The cheapest lawyer in town?
Discounting as an inducement for a client to bring in more business is something lawyers must avoid, Storm says. "I
hear lawyers talking about this a lot. My position is very simple: don't do it."

Storm lists three reasons for lawyers not to discount their fees. The first should require no explanation: "You don't
want to be known as the cheapest lawyer in town."
Second, Storm says, discounting carries with it an undesirable paradox. "If my regular hourly rate is $300, and I
decide to give you a 50 percent discount, every time I bill you for an hour of time I'm thinking of the $150 I'm not
collecting. You, on the other hand, are thinking about the $150 you're paying." The client in this example, he says, is
likely thinking, "Your fees were inflated to start with. Your discounted fee is probably also inflated." The end result
is that "I think I'm getting cheated and you think you're getting cheated."
And discounting fees makes for bad public policy, Storm says. "Abe Lincoln said that lawyers should resolve
disputes, not perpetuate them. Sometimes disputes get resolved because people can't pay a lawyer's fee." So, "If you
enable people to continue arguing by discounting your fee, you're effectively fomenting litigation."
Don't defend collection cases on "contingency"
"I'm not really talking about collection cases," Storm explains. "I'm talking about a contract dispute in which your
potential client is accused of owing money that he or she is not paying."
Such clients frequently have many reasonable-sounding explanations why they should not have to pay this money,
Storm says. "But they want you to take this case without being paid up front and being paid as late as possible in the
process."
That, he says, is not "officially" a contingency fee matter, "but what's going to happen is that it will turn into a
contingency fee matter because that's what it is in these clients' minds. If you take the case and lose, the client will
not pay you."
Winning such a case isn't much better, in Storm's view: "If you take it and win, the client will file an ARDC
complaint and a malpractice action." Why? "Because this client is a deadbeat."
Not everyone accused of not paying according to the terms of a contract is a deadbeat, Storm acknowledges. But
"you have to be careful you don't become the next person in line behind all the others who say this guy didn't pay
them according to their contract."
For those considering taking on chiseler clients, Storm advises, get the money up front. "The true chiseler is not
going to pay you up front. He is shopping for an attorney who will fall for the contingency arrangement. Only the
attorney doesn't realize it's a contingency arrangement until the end of the case."
The three Cs: communicate, communicate,
The final biggest business mistake on Storm's list will sound familiar to anyone who's read the Attorney Registration
and Disciplinary Commission's annual reports of most common reasons for client complaints: failure to
communicate. "Confused, angry, and uninformed clients are a major disciplinary concern for lawyers. This does not
have to be."
Keeping clients informed about their matters is the minimum, general requirement for attorneys under RPC 1.4. But
Storm provides more specific guidelines for lawyers than the rule. "Keep the client informed before and after taking
an action. Get the client involved in the decisionmaking process."
The flow of information is two-way traffic that lawyers must manage, he says, because lawyers need not only to
keep their clients informed but also to make sure that they're informed of what their clients want. "Keep the client
satisfied and document it. That's much easier in the age of e-mail than when we had to write a [snail mail] letter
following up on every conversation."

Follow Storm's directions to communicate and document, and "It will be much less likely that the client will
complain at the end, because he was kept involved at every step. And it will be much harder for the client who does
complain to make a good case, because you'll have a record showing at every step what was done."
Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

2011 ISBA Solo and Small Firm: "I really believe in this
conference"
For more tips from Tim Storm and MCLE credit to boot, view his presentation The Biggest Business Mistakes
Lawyers Make and How to Avoid Them on Friday, October 28, 2011, at the ISBA's Solo and Small Firm
Conference in Springfield (www.isba.org/soloconference). He'll first identify and explain each problem and then
take it apart to show what kinds of mistakes commonly flow from it. After that, he'll discuss what business
strategies lawyers can use to avoid those common mistakes.
Storm, who chaired the Hanging Out Your Shingle track for this year's conference, is enthusiastic about the
programs on tap at the October 27-29 event. "This is one of the really great things that ISBA does for solo and
small firm lawyers. SSF is a phenomenal CLE event and offers networking opportunities with other lawyers,
making it a special and unique conference."
A highlight of this year's conference is plenary speaker Chief Justice Thomas Kilbride of the Illinois Supreme
Court. "We think it's a terrific match to have a chief justice who was a sole practitioner before going on the court
deliver the keynote address," Storm says
Referring to his own solo practice, Storm says, "Lawyers, especially those in solo practice and those in litigation,
can often feel disconnected from the practice of law. Much of the time their only contact with other lawyers may
be friction, because they're handling cases in conflict. SSF is a way for lawyers to come together in a cooperative
way, get 12 hours of CLE all at once, and get to engage with other lawyers who are also in solo or small
practices.
"Law is not just a bunch of people independently running businesses around the state - it's a practice and a
profession," Storm says. "It's important to get together with other lawyers in similar situations and engage with
them. I really believe in this conference."

December 2011 Volume 99 Number 12 Page 640

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

Hey, Kids, Lets Start a Law Firm

By Karen Erger
An interview with a lawyer who did just that.
We've gotta have a great show, with a million laughs... and color... and a lot of lights to make it sparkle. And songs wonderful songs. And after we get the people in that hall, we've gotta start em in laughing right away. Oh, can't you
just see it...?"
- Judy Garland, Babes In Arms
Movies make it look so simple. Need to raise money to save your childhood orphanage/your beloved general's
Vermont inn/ your hometown? Whether it's The Blues Brothers or White Christmas or Hannah Montana: The
Movie, the Hollywood solution is the same: Let's put on a show! I've often wondered if this plot line is profoundly
irritating to the people who really do "put on shows" for a living and understand the talent, money, and difficulty
involved - just as lawyers groan over TV and movie depictions of law practice.
Starting your own law firm can sound like a simple solution to problems like "I want to run my practice my way" or
"I think I can do things better." Many lawyers share this dream: Jay Foonberg's seminal How to Start & Build a Law
Practice, first published in 1976, is in its fifth edition and is the "ABA's #1 bestseller" according to Mr. Foonberg's
website. Of course, while many dream, only a few dare to start their own firms.
Grab your greasepaint - we're going to learn first hand what it takes to put on your own law firm "show" from Todd
Flaming, former columnist for the Illinois Bar Journal on cybergeek issues. Todd joined Ken Kraus to form a new
firm, KrausFlaming LLC, in February 2011.
How did your new firm get started, and what were the first few months like?
My partner Ken had started his firm a year and a half ago. I was still with my old firm, but after a big case settled on
the eve of trial I did some soul searching and decided that I'd like to take all these ideas I had about practicing and
put them to work. I took Ken out to lunch to talk me out of it, and at the end of that lunch we were going into
business together.
The first two months were administrative set up and developing business. We got to decide things like our firm
colors - blue and orange, though we debate whether that's Bears or Broncos (I grew up in Denver). I spent time

developing my own practice management software, which we use. Then came taking on lots of matters. As time has
passed we have been fortunate enough to become more selective.
How did you and Ken know that you could work together?
We've been litigating together for close to two decades. We've handled cases all over the country together, literally
coast to coast.
We're also good friends. Our families get together for the Super Bowl every year. Ken was the DJ at our wedding,
Elvis costume and all. We've been to an AC/DC concert together. We were middle-age guys surrounded by kids, but
then again so was the band.
In many ways we're polar opposites. Ken is the ultimate sports fan (loves the Bulls, Bears, Hawks and the Cubs); I'm
Star Trek. Ken is carbs and marathons; I'm Atkins and weights (not that you can tell). Ken is classic Type B; I'm
Type A. Really Type A.
KE: In the immortal words of Paula Abdul, "Opposites Attract."
What have you learned in your first six months?
You've said it all here, but to recap
Learn to say "No" where the matter isn't a good fit, where the potential client raises red flags, or where you just get a
bad vibe.
P&L is P&L - cash in the bank is not profit. We try to operate like a much larger company when it comes to
accounting. Stay ahead of collections. If the client isn't paying, end the relationship before getting in too deep.
You have to get to the good clients. We have made that the core of our business development. We're small and can
handle only so much work. We hope to continue to develop good relationships to understand what the bigger issues
are related any specific matter we are working on. We joke, taking off on the Marines' slogan, that we're looking for
a few good clients.
I've learned that leaving a larger firm and getting small isn't as unnerving as you might think. My former firm
includes some of the best, smartest, and hardest working lawyers you'll ever meet. We're all still good friends and
refer matters to each other.
I was worried in leaving that I'd lose the ability to walk down the hall and get answers to tough questions. Since we
left, though, I've really reinvigorated my networking, and you find that there are excellent people out there doing
what we're doing in different areas. In a way, I have a big firm linked by the telephone and Internet.
But you've got to make the effort to stay connected and stay involved with other lawyers, the bar associations, and
the judicial system.
KE: You really do read this column. I am touched.
So is networking a source of business for your firm?
Our business comes from relationships, people who know us and have worked with us. We refer out things we feel
others can handle better than we can. Business will come if you do good work and help people solve the true
problems they are facing. But you have to give some of your time beyond that.

Don't get me wrong. I'm focused on the bottom line, because ultimately we have to pay our mortgages and eat. But
no one who belongs in this practice is here only to make money - someone smart can make more money in another
career. The voluntary activities you take on are good for your lawyer's soul.
KE: As Jay Foonberg said, "To succeed in the practice of law over a period of years requires a deep and sincere
desire to help people... If you are entering the legal profession solely to make money, you are making a serious
mistake. You might get lucky and make money in a given year, but over a period of years, you won't make it."
How do you stay connected to other lawyers and the profession?
I serve on the board of Illinois Legal Aid Online, a fantastic group that uses technology to support those who can't
afford a lawyer and the legal aid industry itself. You should write a check now.
I also support the bar. I'm doing work for the ISBA, CBA, and IPLAC. Recently, Chief Judge Holderman asked me
to join an e-discovery committee that he and Magistrate Judge Nolan are heading up. They are going to reshape ediscovery to tackle its problems head on. I'm very excited about it.
KE: Yes, Todd, e-discovery is thrilling. Brr! Getting chills down my spine.
How have you changed as a result of starting a new firm?
When you're lean and mean and small, you wear many hats. I am the firm's accountant, and I am now obsessive
about it. My software has colorful charts that provide mind-numbing details and statistics about our work.
As my former partners and former executive director are reading this paragraph, they are on the floor laughing. I
used to be one of the worst at following the firm's rules. I will take a lot of flak by email the day this runs.
KE: Let's put your new email address right here so it's easy for them: Todd@KrausFlaming.com.
What's the worst mistake you've made?
We have made no mistakes. Or none we're going to admit.
Any advice to other lawyers considering this path?
If you feel the burning desire to start your own firm, then stop waiting and do it. Life is too short. My former partner
Steve Weiss - who teamed up with Bill Schopf in 1987 to form their firm - once told me that he can't understand
why lawyers can stay with something that isn't making them happy. His advice is dead on.
Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

November 2011 Volume 99 Number 11 Page 560

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Law Practice Management

Planning to Succeed
By Helen W. Gunnarsson
How many lawyers really know where they want to take their practices? How many have a strategic plan, complete
with a mission, goals and an action plan flowing from that mission, and a system for measuring success? Here's why
you should be one who does.
John W. Olmstead, a past chair and member of ISBA's Standing Committee on Law Office Management and
Economics, isn't the first and won't be the last to liken the business of law to a journey.
"You don't take a vacation or trip without a road map," the St. Louis-based president of Olmstead & Associates,
Legal Management Consultants says. Similarly, Olmstead says any business, including a law practice, needs a road
map of its own, termed a business or strategic plan, so that lawyers can get where they want to go.
In one of his weekly Wednesday "Best Practice Tips" on Illinois Lawyer Now, Olmstead explains what he means
when he speaks of strategic or long-range plans for businesses.
A plan defines who you are, where the firm should be heading, and how you get there. It helps focus you as well as
your staff and improves productivity, accountability, and alignment with your goals. It identifies what work your
firm does (or sometimes more importantly) what it does not do. In essence it outlines what services you are selling,
to whom, and where. Your plan then lists out the steps you should be taking to move to your desired future.
All lawyers can benefit from preparing strategic plans, he says, whether they're just opening an office or they've
been practicing for years without a plan.
The strategic plan is an internal document, Olmstead said in an interview. It differs from business plans, often used
for start-ups, that may be drafted to market a firm's services to potential clients or to obtain financing from banks or
other institutions. The latter are by their nature intended for an external audience review; the strategic plan is an
internal document, used by firm personnel alone.
Strategic plans are generally quite a bit shorter than business plans intended for submission to financial institutions.
"They don't have to be as complicated," Olmstead says. "You don't need extensive summaries, as extensive financial
statements or market analysis, or as much narrative and supportive detail. Their primary purpose is to focus the

efforts of the people in the firm." Most strategic plans that Olmstead helps his clients prepare are in list or outline
form, he says, and typically run 10 pages or fewer. "I have seen excellent one page plans," he notes.
The vision thing
Olmstead broke down the components that he recommends lawyers include in their strategic business plans. Begin
your plan with statements of your mission and vision, he says.
Your mission statement, sometimes also referred to as an "executive summary," defines in a paragraph or two your
reason for existence and your core values. It will outline what you intend to do in your law practice. It should be
straightforward, not fancy. Olmstead offers this example: "I have a general civil practice, handling anything except
criminal matters. Though most of my current business comes from two or three suburbs, my market is the entire
Chicago area." Your mission statement will tie into your "elevator speech" that you should have prepared to quickly
apprise people of who you are and what you do, Olmstead says.
Next comes your vision statement, "your aspirational statement of where your firm is going and what it wants to
become in the next few years," in Olmstead's words. The vision statement of the lawyer in his example might read
something like this: "I will establish a stronger presence in my community and the surrounding Illinois counties by
expanding my client roster and increasing business from existing clients. In the next five years the firm will enhance
its brand throughout Chicago and surrounding Illinois counties as a boutique litigation firm by focusing on the needs
of the trucking and transportation industry."
Your firm's long-range goals follow its mission and vision statements. Here, you should identify how your firm will
achieve its vision. What goals do you want and need to accomplish to carry out your vision? Enhancing office
productivity might be one long-range goal to help a firm get where it wants to go, Olmstead says, as might
facilitating marketing at both firm and individual attorney levels. Strengthening relationships with existing clients
might be another long-range goal, by, for example, developing a client feedback system, he suggests.
Measuring the unmeasurable
Devote particular time to your firm's objectives and expected results in the next section, Olmstead says. "These are
the metrics - the scorecard for your business. Always carry this page with you. It's the dashboard to tell you whether
you're moving down the road toward your business's goals."
Any business's general goals are to make money and grow. Toward achieving those goals, Olmstead wants his
clients to provide concrete, specific numbers as their strategic plan objectives for the next few years. Think SMART
goals and objectives, he advises, using an acronym standing for Specific, Measurable, Attainable, Realistic, and
Timeline. "Maybe you can't determine where you will be five years from now, but where would you like to be? You
have to be able to measure things."
Examples of metrics Olmstead suggests listing as strategic plan objectives include increasing the number of ongoing
clients for whom the firm bills a certain annual minimum, increasing the amount of fee collections each year to
specific dollar targets, increasing net income by a certain percentage each year, maintaining a certain ratio of support
staff to lawyers, maintaining a minimum client satisfaction rating of, say, 4.3 or greater on a five-point scale, and
targeting a specific number of articles published or seminars given per year or month to potential clients.
Every practice is unique, Olmstead notes, and the objectives for one firm may not fit another. Perhaps your firm bills
certain types of cases at a flat fee and does not require time sheets. Increasing billable hours, then, will not be among
your firm's goals and objectives.
"How are you going to measure what your associate is producing?" One answer might be to measure the number of
closed cases or additional business that associate generates for the firm. Another might be to measure the time
elapsed between opening and closing a client matter. Or you might measure the extent of the associate's activity in

bar associations and the community, including organizing or putting in work for matters that heighten and enhance
the firm's visibility and reputation.
In an uncertain economy - and, indeed, when is the economy ever certain? - how can lawyers determine such
specific percentages and dollar goals? Accept that you can't know what the future will bring and your predictions
will, accordingly, have to be educated guesses that will be subject to change. John Marshall Law School instructor
Clifford Scott-Rudnick, who teaches a class on how to start a law practice, observes, "If you open up the paper, you
can see that hardly anyone can successfully predict their revenue. You just have to give it your best guess."
As important as determining your firm's goals and objectives is determining the key issues that might keep the firm
from achieving those objectives, Olmstead says. New lawyers may find those issues rushing into their heads as they
set them down on paper: "I have no clients, no associates, no experience, and no reputation."
So may established lawyers who are inclined toward self-examination: "My firm lacks focus and direction. Our
financial performance is unsatisfactory. We need to differentiate ourselves from other firms. We lack sufficient
client work, or attorney and paralegal resources, to achieve our goals. Our firm needs to improve its internal
strategies and procedures."
Putting the plan into action
Having identified your firm's challenges, the final step in the preparation of the strategic plan requires lawyers to
come up with tangible strategies for overcoming them. "Look for low-hanging fruit," Olmstead urges. "You want to
identify ways that your firm can immediately increase the volume of its work."
For each of those strategies, lawyers should develop a plan for action, broken down by specific tasks, Olmstead
says. "Identify who's responsible for each task."
Perhaps one of your firm's strategies for distinguishing itself from the competition is commencing an active articlewriting campaign. "There are lots of steps and tasks to that," Olmstead points out. Such tasks include identifying
specific topics, getting commitments from other attorneys in the firm for those topics, or possibly hiring a
ghostwriter, he notes. Be sure to put in the date by which each task is to be done, he adds.
Perhaps you've decided you need to hire one or more associates as part of your strategy for handling or increasing
your firm's business. Think about what kind of person you're looking for and include that in your written plan,
Olmstead says. "Do you want people to bring in business or to do the work?"
Or perhaps you're thinking of branching out into a different substantive area of law, or into litigation from a
transactional practice. "Changing the type of business you're going for may also change the type of personality
you're looking for in associates that you want to hire," Olmstead notes. "Do you want someone to do uncontested
divorces, or someone to handle personal injury cases?"
Lawyers may tweak the strategic plan model to fit their personal circumstances. For those in larger firms, "You may
want three plans," Olmstead says: one at the firm level, one for each practice group, and a personal business plan of,
say, one page, for each lawyer. At each level, the plans should support the plan at the higher level. The goals of each
lawyer's personal business plan and the strategic plan for each practice group should not fall outside the goals and
vision that the firm has as a whole.
"Many firms are now starting to use lawyers' and even other employees' personal, individual business plans as
commitments in their annual performance reviews," Olmstead says. For example, a lawyer might have two firm and
two personal goals, each of which might be worth, say, 2.5 percent toward the employee's annual bonus, whether
that employee is a lawyer, a support staff member, or an administrator. "That can be very helpful where you have an
office manager where you can't measure revenue or billable hours, but you can measure project accomplishment"
such as the implementation of a document assembly system within the next 12 months.

"Strategic plans can help you focus back on what you need to be doing," says Olmstead. "Sometimes we don't
remember, so we go back to the plan to remind us of what we decided."
When you make a plan, follow the plan
Olmstead describes a conversation with the owner of one small firm he's worked with who made a decision some
years ago to focus his firm's practice on estate planning and elder law. "He told me that his associate said maybe we
should take PI cases and asked me what I thought about it. I asked him what his plan said. It said, 'We're an elder
law firm.'" Olmstead pointed out to the lawyer that personal injury work had nothing to do with the objectives for
his practice as expressed in his strategic plan.
"I asked him, do you want to change your strategic plan? He said no. I said well, then, the choice is obvious: you
don't take PI cases. The strategic plan keeps you from drifting into situations like that. It keeps you on course."
Another lawyer might have responded differently to Olmstead's question and said he did want to change his strategic
plan. What then? "Plans don't have to be solid," Olmstead says. "The world changes, and the external environment
changes. You might take a trip and find out that there's highway construction, so you have to make a detour." You
might even find that you like the detour. Or you might start out on the road to one practice goal and, halfway there,
decide that you want to pursue a different area because you enjoy it more and you can make money at it.
But neither of those eventualities, Olmstead says, is an excuse for not having a plan. "A firm should have some idea
of what it does and doesn't want to do. It's critical to realize that it's OK not to do everything and not to try to be all
things to all clients."
In addition to focusing lawyers' efforts on developing the practice they want, Olmstead says strategic plans will put
in place basic goals and accountability. "In most smaller law firms, there are no goals and no expectations. What do
you tell people you expect of them?"
Olmstead sees benchmarks as critical to aligning individual lawyers' and support employees' activities for the benefit
of the firm. In the case of the elder law firm that decided against its associate's suggestion to branch out into
personal injury law, Olmstead said, "We increased revenues by over 50 percent over two years, just by putting in
expectations and goals with a strategic plan. Now, everyone in the house has their own goals, their goals are
measured, and they get bonuses for achieving them."
You can't get there if you don't know where you're going
Preparing strategic business plans will help lawyers assess everything they propose to do in terms of whether it
advances or doesn't advance their written mission, vision, goals and objectives. If an activity will help to advance
the plan, it probably makes sense for the law firm to do it. If it doesn't help to advance the plan, that could be a sign
that it's not a good idea - or that the firm needs to change its plan.
Still, Olmstead says, before preparing a strategic business plan, "Sometimes you have to focus on a personal life
plan first. Are you single? Do you want a family? What kind of time commitment do you want for your practice?"
Lawyers might even incorporate the answers to those questions into their strategic business plans.
"Building your business or practice without a road map? Yes, you can do it, but you may not be too happy when you
get to the end of the road." Olmstead says he's finding an expanding market for his firm's services in counseling
lawyers nearing retirement on how to realize some value from their practices. "If you'd planned that practice right, it
might be a very different story when you get to the end of the road."

Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

Business planning resources

In addition to his regular posts on ISBA's Illinois Lawyer Now, John Olmstead has a number of articles on his
website on strategic business plans for lawyers:
Law Firm Strategic Plan vs Business Plan
http://blog.olmsteadassoc.com/olmstead_associates_law_p/2011/05/law-firm-strategic-plan-vs-businessplan.html
Implementing Law Firm Strategic Plans: Accountability and Follow-Thru
http://blog.olmsteadassoc.com/olmstead_associates_law_p/2011/06/implementing-law-firm-strategic-plansaccountability-and-follow-thru.html
Using Effective Firm Meetings to Improve Accountability and Boost Productivity
http://blog.olmsteadassoc.com/olmstead_associates_law_p/2011/06/using-effective-meetings-to-improveaccountability-and-boost-productivity.html
Law Firm Strategy: Where to Start
http://blog.olmsteadassoc.com/olmstead_associates_law_p/2011/05/law-firm-strategy-where-to-start.html
Changes and Challenges Ahead For Law Firms and Lawyers
http://blog.olmsteadassoc.com/olmstead_associates_law_p/2011/01/xxxx.html
One handy and free business planning site recommended by several lawyers is maintained by the U.S. Small
Business Administration at http://web.sba.gov/busplantemplate/BizPlanStart.cfm. There you'll find easy-tofollow instructions for completing a template for a business plan. At each stage the site provides an explanation
of what you should include and what anyone reading it should understand. On completing all sections, you'll be
able to click a button to generate your own business plan that you can save to your computer and print as you
please.
- Helen W. Gunnarsson

Strategic planning - the view from the trenches

What does strategic planning really entail? There's nothing like hearing how lawyers who actually prepared
strategic plans for their own practices went about creating and using them.
A hard but common-sense process. When they started their practices, former solos T.J. Thurston of Chicago and
Melissa Maye of Yorkville used how-to books from their local libraries or bookstores for their plans. "There's a
mindset that there's a special set of rules that only businesspeople know," says Maye. "But a business plan is just
making it up as you go. There are no equations; you have to use common sense and figure it out on your own. I sat at
my desk, waiting for the phone to ring, and wrote my business plan. It took me not more than two or three days. I
used a spiral notebook."
St. Louis lawyer Nalini Shivram Mahadevan, who now teaches a class in law practice management at St. Louis
University, practiced without any written business plan for several years. When she left her firm to go solo, she
decided she needed a website.
"That's what made me think I needed a business plan. I wondered, 'what am I going to put on my website?'"
Preparing a strategic plan "made me ask lots of questions I'd never even thought to ask before. Law school was all
about liability management, not practice management. Now more than ever, it's important for lawyers to think like
businesspeople. You cannot practice with a plan in your head anymore."
Educated guesses. Figuring out what questions to ask and answering them was very difficult but proved invaluable,
Carbondale lawyer Martine Polynice-Jackson said, when she and Shari Rhode decided to form a partnership in 2001
to practice employment law. "Most industries have sample plans that you can download. Not attorneys." They ended
up hiring a consultant to write a plan for them.
Jackson said she wanted information about other lawyers' practices and experiences so she and Rhode could know
what to expect. "When you're starting from scratch instead of coming into an existing firm, you have to figure it out
for yourself. What hourly rate do you charge? How many clients can you expect, how do you get them, and how
many can you actually handle? What ratio of staff do you need to generate a certain amount of dollars?"
Because law firms do not readily share those numbers, and because, in any event, figures vary depending on the type
of practice and the region of the state, writing the plan required a number of educated guesses. The lawyers also had
to think about what they'd do if their projections didn't pan out. "What if we don't get a certain number of clients per
month?"
"[W]ork it and change it." As your practice progresses and you get more information, Maye says, you start to see
how realistic your plan projections were. "Then you can start tweaking your plan." Jackson says she compared her
initial plan financial projections for each month, quarter, and year with what actually happened and then tried to
figure out why in order to understand what was and wasn't working. "Putting a plan in a drawer does absolutely
nothing. A business plan is a living, breathing document. You have to work it and change it and continue to improve
it."
Maye added "There's something about putting something down in writing. It makes you more accountable, even if it's
only to yourself. My plan helped me feel more in control. It gave me the permission to say no to matters I didn't want
to handle."
All four lawyers said that lawyers in any practice setting, whether private practice, in-house counsel, or government,
can benefit from preparing strategic plans. "Doing your own strategic plan will help you even if you're an assistant
prosecutor. It forces you to do a self-assessment and determine whether this is really the career path you want to
embark on and whether you're truly happy doing what you're doing. It forces you to be true to yourself," says
Jackson.
If you're in a firm, do one even if your partners don't see the need, Thurston says. "Going through the process of
writing a business plan will teach you about business just as CLE will teach you about the law. It will focus your
practice and, if you're in a firm, may give you some real hardcore recommendations to take back to your partners. For
example, you may find things you or your firm are doing aren't profitable or aren't worth the money you're spending
on them."
Still dithering about preparing a strategic plan? Though Jackson relied on professionals for her own plan, she's happy
to talk to lawyers about plan components. "Call me," she says. "Business plans are common sense to me, but I'm a
business major who went to law school. I'm more than happy to help anyone. I remember how hard it was when I
was trying to figure out how to start a business." - Helen W. Gunnarsso

October 2011 Volume 99 Number 10 Page 534

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention
Why Calendars Matter - and Why Im Going Back to Analog
By Karen Erger
Sometimes the best technology is good old pen and paper, this technophile opines.
Digital for storage and quickness. Analog for fatness and warmth. - Adrian Belew
I've been on a calendar, but I've never been on time. - Marilyn Monroe
According to a recent University of Washington study, e-readers are fine for leisure reading - say, romance novels at
the beach - but are inadequate substitutes for actual textbooks.1 Researchers gave Kindle DX e-readers to first-year
graduate students and monitored their use of the devices. Seven months into the nine-month study, less than 40
percent of the students were regularly doing their academic reading on the Kindle. Here are some of the reasons the
grad students preferred textbooks:
Students wanted the ability to write on pages: "Three quarters of students marked up texts as they read, including
highlighting key passages, underlining, drawing pictures and writing notes in margins."
Another problem with the e-reader was the "difficulty of switching between reading techniques, such as skimming
an article's illustrations or references just before reading the complete text."
The e-reader also "disrupted a technique called cognitive mapping, in which readers used physical cues such as the
location on the page and the position in the book to go back and find a section of text or even to help retain and
recall the information they had read."
Older people are supposed to fear technology, but even though I am old enough to be a grad student's mom, I like
electronic gadgets. I love my iPhone; the Audiobooks app has saved my sanity on many long drives through
America's heartland, while the Garmin serves as navigator and map. Right out of the box, the Kindle was (and is)
my boon companion during bouts of insomnia. Need a new book at 3 a.m.? Presto!
But I hate the electronic calendar on my smartphone. Everything the grad students said about the Kindle goes double
for that clunky app, and then some.

 I can't write notes about appointments (e.g., "assistant's name is pronounced Ahn-DRAY-a"), circle important stuff,
draw lines that show how long I'm going to be out of town, jot down business expenses, or write down directions
(the Garmin is not always right, it turns out).
I can't flip through it easily, to see if the month of October is going to be calm or hectic (turns out to be the latter),
or how many weeks are left to finish my Illinois Bar Journal article (answer: -1).
And the cognitive mapping thing makes me nuts. Back when I used a Day-Timer2 with two pages per week, I could
see the seven days in my mind's eye. Even if I didn't know what exactly I was doing tomorrow, I knew there was
"something" going on then, and I would check to see what it was. The electronic calendar just doesn't work that way
for me, even if I print the page and look at it.
With an electronic calendar, it is all too easy accidentally to erase an appointment, or inadvertently move it to a
different date.
So I'm trying a radical experiment: I'm going back to a paper calendar. I treated myself to a new and smaller DayTimer - my old one was an enormous, heavy, zippered affair that probably would have served as a decent selfdefense device if chucked at an attacker or intruder - and filled in all of my e-pointments. Let the analog fun begin.
Why calendars matter
It turns out that choosing - and effectively using - an appropriate calendaring system is a key loss prevention
strategy. According to the ABA's most recent study of legal malpractice claims, 11 percent of all claims stem from
the failure to properly calendar dates (7 percent) and failure to react to the calendar (4 percent).3 And proper calendar
protocol can help prevent other administrative errors that give rise to claims, like failure to file documents (11
percent of all claims) and procrastination (4 percent).
You need not go analog with me, but take a moment to consider whether your current system is right for you, and
whether you are using it as effectively as possible. Does it allow you not only to capture the information you need,
but to respond to that information in a timely way? If not, what system might work better? If you like your current
calendar, consider whether it has other capabilities that will help you stay on track and on task, like expense capture,
appointment reminders, to-do lists, and other features.
But
I've heard lots of objections to the analog solutions already, like
But you might lose your paper calendar! True. But I might also lose my wallet, my house keys, or my wedding ring
- all important, all difficult or impossible to replace - and I have not done so yet. Come to think of it, I never lost my
paper calendar in the entire decade during which I carried one.
But other people need to use your e-calendar to make appointments with you! They don't really - we made
appointments before e-calendars, remember? Anyhow, I have found that other people are not great at interpreting
my electronic calendar, leading to situations like this:
Being left out of an important meeting because the scheduler sees that I have an (eminently skippable) Excel
webinar scheduled for that time;
Having a meeting scheduled in Cedar Rapids right after my first appointment of the day - which happens to be
over a hundred miles away, in Des Moines. In the immortal words of the Bangles, "And if I had an airplane I still
wouldn't make it on time."4

No matter how much detail I enter into my e-calendar, it is just difficult for others to evaluate the relative
importance and flexibility of my appointments.
But your colleagues need to know where you are! This is a fair point. Going analog doesn't mean going dark.
Lawyers need to provide their colleagues with information about where they are and when they will return, so
clients who call can be given appropriate information and assistance. And key dates still need to be docketed in the
firm's system.
Risk managers have long advised lawyers to have a "dual calendar" system in which two different people enter key
dates in two different calendars. This is still an important fail-safe measure - whether the calendars are electronic or
paper.
But you have to carry the calendar around all the time! I haul plenty of useless junk in my purse, briefcase, and
pockets already. One more little notebook is not going to break this camel's back.
Pencil this in
Wish me luck with the analog experiment. I'd be interested to hear your thoughts about calendaring - paper or
electronic. Please drop me a line at kerger@lockton.com. I'll share your experiences - and mine - in a future column.
Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

1. Hickey, Hanna, College students' use of Kindle DX points to e-reader's role in academia, May 2, 2011,
http://www.washington.edu/news/articles/college-students2019-use-of-kindle-dx-points-to-e-reader2019s-role-inacademia; Study: E-Readers Need Work Before Schools Toss Out Textbooks, PCMag.com, May 2, 2011,
http://www.pcmag.com/article2/0,2817,2384791,00.asp.
2. And, by the way, did you know that the Day-Timer was invented by a lawyer, for lawyers? According to the DayTimer website: "In 1947 Morris Perkin, a local attorney, realized that he needed more information about his work
day than could be provided by a simple appointment calendar. So he designed his own system, which he called
Lawyer's Day." See http://www.daytimer.com/About-Day-Timers/Company-History/0/False.
3. American Bar Association Standing Committee on Lawyers' Professional Liability, Profile of Legal Malpractice
Claims, 2004-2007. The committee typically publishes a new Profile every four years, so it will be interesting to see
if calendaring problems increase (or decrease) as more and more people keep electronic calendars.
4. And just in case you are one of those grad students born after 1986 when it came out, the song is "Manic
Monday."

February 2012 Volume 100 Number 2 Page 108

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

Raising the Ante(Diluvian)

By Karen Erger
In a recent column, the estimable Ms. Erger complained about the drawbacks of e-calendars and asked you to weigh
in. Here's what you said. And don't let your cell phone distract you while you drive.
Crash on the levee, mama/Water's gonna overflow Bob Dylan, "Down in the Flood"
Antediluvian: 1. of or relating to the period before the flood described in the Bible; 2. (a) made, evolved, or
developed a long time ago, (b) extremely primitive or outmoded.1
Technophiles, beware: In the following column, I'm going to get all my antediluvian Ya-Yas out and discuss not one
but two topics that may cause eye-rolling among e-gadget lovers. In the October column, I complained about the
drawbacks of e-calendars and invited readers to comment about their preferences for "paper or plastic" calendars. I'll
share some of those responses in this month's column. But first, I might as well let my Luddite flag fly and remind
you of a hazard that is greatly exacerbated - if not solely caused by - e-gadgets.
Keep your eyes on the road, your hands upon the wheel
Typically, the risk management tips given in this column are intended to help the reader avoid getting sued for
malpractice, stiffed for fees, or beefed to the ARDC. But here, our aim is to keep the reader - and others around him
or her - from ending up dead or injured.
Distracted driving is by no means exclusively caused by talking or texting on mobile phones. But for many, the
phone poses an irresistible temptation to text, tweet, update Facebook status, or have conversations that monopolize
their attention, and those distractions lead to accidents.
Legislative solutions abound - at press time, 35 states banned texting and driving. And in December 2011 the
National Transportation Safety Board recommended a ban on use of all portable electronic devices while operating a
motor vehicle2 - including hands-free mobile phones.3 While it's hard to argue with NTSB chair Deborah Hersman's
statement that "[n]o call, no text, no update, is worth a human life," it seems unlikely that states will rush to
implement NTSB's controversial (and non-binding) recommendation.

And ultimately, it may be controversy, rather than legislation, that changes driver behavior. NTSB members have
suggested that wholesale cultural shifts - on the order of society's changed attitudes toward drunken driving or
smoking - will be needed to turn the tide.4 "This is becoming the new DUI," said NTSB member Robert Sumwalt."5
Chair Hersman summed it up succinctly: "How many more lives will be lost before we, as a society, change our
attitudes about the deadliness of distractions?"6
Cultural change, of course, starts with each one of us. The next time my mobile phone beckons from the console of
my 2-ton SUV, I'm going to imagine that it's a delicious pint of Bass Aleand leave it right where it is until I get
home. Turns out I don't need "one (peek at my phone) for the road."
"Paper or plastic?" Readers weigh in on calendaring
Thanks to all who communicated with me regarding the Analog Calendar Experiment, in which I abandoned my ecalendar and went back to using a pocket Day-Timer calendar to see if I could get a better handle on my schedule
and use time more wisely. Here are just a few of the comments I received.
Paper proponents. It was good to know that I wasn't alone in Analog World; indeed, many readers wrote to say that
they never left. Meryl Sosa gave me a warm welcome: "Welcome to the club! I never gave mine up. When
electronic calendars first came out my boss had one. One day he wanted to know when a meeting was going to be
held. Unfortunately, his electronic device would not open (probably out of juice). So I pulled out my paper calendar
and said, 'Mine still works!'"
Likewise, Patrick Deaton, a 30-year resident of Analogville: "My 2012 appointment calendar arrived today from AtA-Glance. It is spiral bound with pages 8 1/4 in. by 10 7/8 in. When the calendar is open, it shows one week at a
time with days divided into 15 min sections (except for Sundays). I have been using this style of calendar for 30
years.
"Last month I was admiring attorney Alec Solotorovsky's briefcase when he was an overnight guest at my home. I
was surprised to see he had a paper calendar like mine in his briefcase. I felt less like a dinosaur because he had
recently graduated from a top law school and worked at a prominent Chicago law firm, Kirkland & Ellis, LLP.
"The paper calendar is a wonderful resource. Mine is full of telephone numbers, passwords, names, and Post-its. I
use it to record my mileage. I even record my exercise for the day. I learned in college that if I have to keep a record
of the hours I study/work on something, I will manage my time better."
Some of you like to have some fun pointing out the special capabilities of your paper calendars. Bob Geiger does,
and he wrote: "I often tease my fellow attorneys as they attempt to set a date on their electronic devices. I point out
the speed of my cutting edge calendar system, which can move from month to month in a fraction of a [second].
Occasionally I will praise its indestructibility (dropping it on the floor) and its compact quarter inch height (I have a
month at a glance calendar). As far as losing the calendar, I have a duplicate back up paper calendar at the office
which is updated 2-3 times per week (the dual calendar system you refer to)."
Digital devotees. On the other hand, quite a few readers stated that the electronic ship has sailed, and they are happy
to be on board. As I'd expect from ISBA members, responses were civil, even when readers disagreed with me. Matt
Maddox kindly remarked: "Unfortunately I am irretrievably cast into an electronic world. So I cannot join your
efforts, but I appreciate fellow Luddites."
Some readers noted that electronic calendars make easier not just the lives of lawyers, but the other professionals
with whom they work. Anita Rogers explains: "As a legal assistant, I have had to deal with both paper and electronic
calendars over more years than I care to admit. As you correctly stated, there are advantages and disadvantages to
each, and the question of 'which?' is highly individual. My boss keeps nearly everything electronically (desktop,
laptop, Blackberry, iPad) and we do in fact write extra notes (e.g., pronunciations, as you noted) on entries. With

Outlook, we can enter large amounts of text, change views - one day, a week, a month - set reminders, block out
time, with 'real time' updates.
"One or two attorneys in the firm have resisted that technology and still use paper calendars, making it cumbersome
to schedule meetings (especially if his paper calendar is in his briefcase in court, or behind a closed door, when an
assistant needs access to it).
"Obviously, an attorney must consider his or her personal preferences in this matter of scheduling, but a wise
attorney will also take his or her assistant's preferences into strong consideration."
I'm especially grateful to Ms. Rogers for raising that last point. As we've noted many times in this column, a wise
lawyer does indeed value the contributions of legal assistants, secretaries, and other professionals on their team, and
consider their needs and preferences.
Other readers pointed out that the problems of e-calendars - miscalendaring dates is the one that plagued me - are
surmountable, and are outweighed by advantages such as the ability to coordinate people's busy schedules.
William Malan has harnessed this power of e-calendars: "Like just about any other tool, the more powerful it is, the
easier it is to damage something if you slip up using it. I am thinking chain [saw] here. On a few occasions, I have
created a new item, say a case management conference, on the wrong date. The good thing about e-calendars is you
can 'free text' search for something such as the name of the client, or CMC, etc. Another aspect of e-calendars,
which may not apply to everyone, is [their] usefulness in making sure home and work life don't cause conflicts.
After much persuasion, I have finally convinced my wife to use an e-calendar. We thus have one color flagged for
her work, one for the kids school day closures, another for my personal business, one for her personal business, and
yet another for kids sports and yes, another for Sunday school. It sounds more convoluted than it is in practice, but if
my wife is with her running club one morning, I know I have to take the kids to school. Technology is always
going to have a learning curve, but once over that hump, it can really speed communication and coordination."7
My experience
I would call my Analog Calendar Experiment a success, in that I do feel more in control of my time and have a
better sense of what I'm supposed to be doing not just today, but tomorrow, this week, and months from now. I am
slightly obsessed with not losing the calendar - I now wish I'd chosen a brightly colored cover, so the calendar
would be reassuringly visible in the dark and gaping maw of my briefcase. I'm tinkering with my "double
calendaring" system, to limit my losses if the worst happens.
Drive safely, calendar well, and stay in touch: kerger@lockton.com.
Karen Erger is vice president and director of practice risk management at Lockton Companies, LLC.

1. http://www.merriam-webster.com/dictionary/antediluvian.
2. National Highway Transportation Safety Board press release, No call, no text, no update behind the wheel: NTSB
calls for nationwide ban on PEDs while driving, December 13, 2011, available at
http://www.ntsb.gov/news/2011/111213.html.
3. Matt Richtel, U.S. Safety Board Urges Cellphone Ban for Drivers, The New York Times, December 13, 2011,
available at http://www.nytimes.com/2011/12/14/technology/federal-panel-urges-cellphone-ban-for-drivers.html.
4. Id.

5. Paul Koring, Are 'digital drivers' the new drunk drivers?, The Globe and Mail, December 15, 2011, available at
http://www.theglobeandmail.com/news/world/worldview/are-digital-drivers-the-new-drunk-drivers/article2272033/.
6. NHTSB press release (cited at note 2).
7. http://www.isba.org/ibj/2011/10/whycalendarsmatterandwhyimgoingback.

June 2010 Volume 98 Number 6 Page 322

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

Taking the Cake

By Karen Erger
Your rational brain can resist temptation. ("Don't put off that phone call.") Your emotional brain, not so much.
("Wait'll tomorrow.") Here's how to give your rational brain the advantage.

A tired brain, preoccupied with its problems, is going to struggle to resist what it
wants, even when what it wants isn't what we need.
- Jonah Lehrer

Can I have another piece of chocolate cake
- Crowded House, "Chocolate Cake"
1

Imagine this: A group of people are gathered in a room to take part in an experiment. Everyone is given a slip of
paper and instructed to take all the time they need to memorize the number on the slip, and, after they commit the
number to memory, to walk down the hall to a second room where they'll recite their numbers. What the participants
don't know is that not everyone is memorizing the same number. Some have a two-digit number, and others have a
seven-digit number.
As participants walk down the hall to the second room, holding their numbers in their heads, they're intercepted by a
woman who offers each person a choice of snacks, as a thank-you for participating in the study. Participants can
pick either a bowl of fruit salad, or a big slice of chocolate cake.
The result? The people with seven-digit numbers in their heads were almost twice as likely to choose the cake as the
people with only two digits to memorize.
According to Professor Baba Shiv, who conducted this experiment at Stanford University, those five extra digits
were a cognitive load on the brain that made it harder to resist the cake. The rational part of the brain was fully
occupied with the seven-digit number, leaving the emotional part of the brain in the drivers' seat.
And the emotional brain went straight for the delicious instant gratification of the cake - you can almost hear
participants' internal Homer Simpsons moaning, Mmmmmcaaaaake. Test participants with two-digit numbers

still had plenty of room left in the rational brain, and thus could make a disciplined, reasoned decision - Cake has
lots of calories; fruit is good for me - I'll have the fruit.2
If a seven-digit number is enough to max out the rational brain, just imagine the brain's response to a busy day in
your law practice - filled with work to do, clients to meet, calls to return, e-mail pouring into your inbox, bills to
pay, and things to remember, plus trying to remember where you put the list of things to remember.
Science writer Jonah Lehrer suggests that the cognitive overload of the office can, indeed, make it difficult for us to
resist temptation:
[A]fter a long day at the office, we're more likely to indulge in a pint of ice cream, or eat one too many
slices of leftover pizza. (In fact, one study by researchers at the University of Michigan found that just
walking down a crowded city street was enough to reduce measures of self-control, as all the stimuli
stressed out the cortex.)3
And in the practice of law, there are temptations greater than pizza and ice cream. Perhaps few of us are really
tempted to steal from clients or to falsify billing statements. But a decision to do so has to be coming from the
emotional "want it now" brain. A rational brain would quickly dismiss the impulse to cheat clients: It's stealing, and
it's wrong to steal or, more cynically, I'm sure to get caught sometime, and it will be an embarrassing disaster for
me if that happens. The emotional brain moans So. Much. Money.
More familiar to most lawyers are the little temptations we face every day. Your rational brain would tell you to
return that phone call from Difficult Client right away. If you wait, Rational Brain would reason, he'll be even
angrier. He might not pay the bill we just sent out. And if we don't win his case, he'll be that much more likely to
make a malpractice claim.
But while Rational Brain is busy working on a complicated brief, answering e-mails and calls, and trying to
remember if it's your turn to take your daughter to dance class, Emotional Brain takes over. I just don't want to deal
with him today. Difficult Client will still be there in all his crabby glory tomorrow. I'll call him then. Or maybe
Monday. Or maybe I'll wait until he calls again.
So it is hopeless? Should we just abandon ourselves to chocolate cake, double billing, and procrastination? The
answer, not surprisingly, is "no." You can take steps to block out the siren song of Emotional Brain,4 and you can
work on pumping up Rational Brain and your ability to resist temptation. And as a bonus, it may make you happier.
Unload the overload
If just walking down a busy city street can reduce your self-control, imagine what happens when you spend time in
an office stuffed with papers, files, un-read periodicals, and piles of random stuff. Cleaning up some of the clutter
will reduce some of the external stimuli that keep Rational Brain in the background while Emotional Brain has its
way with you.
And it may make you happier, too. Gretchen Rubin, author of The Happiness Project, recently offered some
"Happiness Tips for Lawyers" on the popular blog Above the Law.5
One of her tips is to take control of your physical environment: "A messy office seems like a minor hurdle to
happiness, but people are surprisingly affected by their physical environments. Being surrounded by clutter drains
you - not to mention the time you waste looking for stuff." If, like me, you use your vehicle as a mobile office, muck
that out, too.
Now that you've got your physical surroundings under control, how about exerting some control over other, more
insidious stimuli? You can, if you wish, allow yourself to be bombarded with information all the time and
everywhere, thanks to smartphones and other technological marvels.

But Ms. Rubin urges you to "control the cubicle in your pocket" and disconnect - every day, one day a weekend,
whatever - so you can "do deep thinking and spend time with your family." At least, she suggests, you could "turn
off sound alerts or vibration on your Black-Berry, so you're not prompted constantly to check."
Drive yourself to distraction
People who are better at delaying gratification, says Mr. Lehrer, "don't necessarily have more restraint. Instead, they
seem to be better at finding ways to get tempting thoughts out of their minds."
He cites a study in which four-year-old children are given a marshmallow, and told that if they can resist eating the
marshmallow for 20 minutes, they will receive a second marshmallow. The children who succeed in delaying
gratification are the ones "who sing songs, play with their shoelaces or pretend the marshmallow is a cloud." They
"excel at controlling the spotlight of their attention," according to Mr. Lehrer.6
Exercise is an excellent distraction, and yes, it's good for you, but Ms. Rubin suggests that it may make you happier,
too. "People who exercise are healthier, more energetic, think more clearly, sleep better, feel cheerier, and perform
better at work." She recommends that lawyers try to exercise outside - even if it's just a short walk at lunchtime.
Your mental spotlight can shine on many things - an upcoming vacation with your nearest and dearest, a hobby that
restores your soul, your plan to run a half marathon by the end of the year, your goal of training your dog Sadie not
to steal food off the kitchen counter.
It's not really fair to call these things "distractions" - they are the stuff of which life is made. And by keeping them in
your sights, you may be better able to block out the siren song of Emotional Brain.
Flex your cortex
Like a muscle, Rational Brain can be strengthened through exercise. Lehrer posits that practicing mental discipline
in just one area can improve our ability to exercise self-control in other areas.
Just as you wouldn't start an exercise program by strutting into the gym and lifting the heaviest weight you see, don't
overload Rational Brain by trying to break all of your bad habits at once. Pick just one. If procrastination is your
poison, you might resolve to return all phone calls (or have someone else return them) by the end of every day.
Practicing this discipline will strengthen your willpower. The next time you set out to resist an impulse or break a
bad habit, it will be a little easier. In the mind, as in the gym, slow and steady really does win the race.

Attorney Karen Erger, former vice president and director of loss prevention with ISBA Mutual in Chicago, now
works with Holmes, Murphy & Associates in Cedar Rapids, Iowa.
1. Jonah Lehrer, Blame it on the Brain, Wall St J (December 26, 2009) available at
http://online.wsj.com/article/SB10001424052748703478704574612052322122442.html (Lehrer). Mr. Lehrer's blog, The Frontal
Cortex (http://scienceblogs.com/cortex/) and his book, How We Decide (Houghton 2009), are full of fun and illuminating insights
about the work of the brain.
2. Id, and Morning Edition: Willpower and the 'Slacker' Brain (NPR radio broadcast, January 26, 2010) (transcript at
http://www.npr.org/templates/transcript/transcript.php?storyId=122781981).
3. Lehrer (cited in note 1).
4. Although it's desirable to resist some impulses of the emotional brain, it would be wrong to assume that the emotional brain is
"bad" or simply an impediment to clear thinking. Mr. Lehrer's book, How We Decide, makes a strong case that both parts of the
brain play desirable roles in the decision making process.
5. See http://abovethelaw.com/2010/04/happiness-tips-for-lawyers/.
6. Lehrer (cited in note 1).

August 2010 Volume 98 Number 8 Page 430

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Loss Prevention

Now How Much Would You Pay? Avoiding

Involuntary Pro Bono
By Karen Erger
Lawyers tend to be uneasy with the business side practice, but there's nothing unprofessional about getting paid.
Here's how to increase the odds that you will.
Pro bono: being, involving, or doing professional and especially legal work donatedfor the public good.1
Pro bono services are by definition good; the term is derived from the Latin phrase pro bono publico - "for the
public good." But there is nothing bono about "donating" your legal services when you never intended to do so.
Getting stiffed for fees stinks, and in this economic downturn, is an ever-present possibility. To compound the pain,
some lawyers will respond to the involuntary pro bono situation by suing for fees, which often results in a
counterclaim for malpractice.
Given that fee collection is critical to a law firm's financial health, why are some lawyers reluctant to take steps to
increase the likelihood of being paid? Is it squeamishness about making the clients mad by asking them to pay their
bills? Or maybe it's a sense that the "money" side of practice is not really nice, and makes the lawyer sort of a late
night TV huckster, grasping for dollars and haggling about price - "Now how much would you pay?"
But there is nothing unprofessional about monitoring and taking action on accounts receivable. Indeed, the opposite
is true: A well run law firm does not leave fee collection to chance. Prudent management of accounts receivable will
not only keep the financial lifeblood of your firm flowing, but also serve as an early-warning system of client
relationship problems that can lead to malpractice claims.
So, in the words of the late night infomercial, let's "slice and dice"2 the process of getting paid for your legal
services.
You'll get all this for the low, low price of $... Your client needs to know - and you need her to understand - what
you will be charging for your legal services. Spell it out in a written engagement letter, sure - but review your fee
structure with your client, also. Your client may be embarrassed to ask questions about what you will be charging,
so don't wait for her to bring it up.

Early communication of the basis for your charges is not just good practice; it is required by Rule 1.5(b) of the
Illinois Rules of Professional Conduct.
The scope of the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a reasonable time
after commencing the representation, except when the lawyer will charge a regularly represented client on
the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated
to the client.
Note carefully your client's reaction to the explanation of your fees. Beware the would-be client who nitpicks your
fees at the outset. And beware even more the client who states or suggests that money is no object. That attitude will
persist right up to the moment you request payment of your bill.
Your client selection process should include a determination of the client's creditworthiness. Especially now, a
client's ability to pay can change drastically over the course of the representation, so make sure your check it again
as the matter proceeds.
It's the Bill-O-Matic! What would happen if your credit card company waited nine months to send you a bill? It
would be fun, at first, and you'd be more likely to overspend with all that extra money lying around.
But it wouldn't be any fun when the enormous bill finally arrived. You might panic, if you hadn't set aside the cash
to pay for nine months worth of purchases. That might lead you to rationalize not paying right away (they've waited
this long; they can wait a little longer) or not paying some or all of the charges (I didn't really enjoy that vacation
much, anyway).
This is exactly how clients behave when lawyers delay billing and then send out a lollapalooza of a bill. Panic, and
reluctance to admit they cannot pay, soon gives way to resentment and a quest for reasons to delay paying and/or
reduce the charges. At a minimum, erratic billing suggests to clients that your practice is poorly managed and may
taint their evaluation of your legal work.
Set expectations about billing frequency in your very first meeting with the client, and then meet those expectations.
Bill regularly. If you're sending a hefty bill, even if it is on your schedule, make sure your client is prepared.
Call now to avoid disappointment! Regular billing is only half the battle, and it is the easy half. The much nastier
half of the getting-paid business is monitoring and taking prompt action on accounts receivable. Few lawyers enjoy
calling clients to ask why they have not paid their bills, and lawyers can always find something more urgent,
rewarding, or fun to do with their time.
But you need to know the truth, because the truth will set you free from the involuntary pro bono trap.3 Make the call
and find out why your bill has gone unpaid. This is a fact-finding mission, not necessarily a dunning call. Your
client may have a benign reason for failing to pay your bill.

Client didn't get bill. Easy to fix.

Client needs you to prepare bill in a different format or send it at a different time. Also
relatively easy to fix, although your billing person and/or software may have to be
persuaded to cooperate.

It's OK to harbor a healthy degree of skepticism about these explanations for nonpayment. Fix the problem
identified by the client, whatever it is, but don't just "set it and forget it."4 You need to keep an eye on these accounts
to be sure they remain current.

There are, of course, more ominous reasons that your bills are going unpaid. It is critical that you discover these
sooner, rather than later.

Client is out of money. No one likes to admit that s/he is broke. Few clients will call
you to say, "Your charges are all completely justified, but we're out of dough."
Motivated by shame, false optimism about their cash flow, or more pressing
payment obligations, they will leave you to wander ever further into the heart of
involuntary pro bono darkness.
Client hates you, your work, or both. But they're the conflict-avoiding sort, and they
will wait until you call them to discuss payment - and then tell you the 500 things
they hate about you and your work. Every day you delay the call, the list grows
longer, the client gets angrier, you donate ever more hours of involuntary pro bono
services, and the possibility of a malpractice claim looms ever larger.

Either way, a face-to-face meeting is essential. The client who cannot pay may be able to agree to a payment plan,
but you need to meet with the client and make a plan. The client who hates you is a tougher scenario, and you will
need to know whether this relationship can be saved. In both scenarios, acting promptly will help you avoid the
ultimate involuntary pro bono situation - where you cannot ethically withdraw from the matter.
But wait, there's more! As if involuntary pro bono services were not bad enough, you can get into still more
trouble by suing clients for unpaid fees. Your lawsuit is quite likely to result in a malpractice counterclaim.
Some professional liability insurance policies specifically exclude claims arising out of suits for fees - you'll want to
know whether your policy will cover you if the fee suit draws a counterclaim. Even if it is covered, the counterclaim
puts at risk your deductible, your time, your reputation, and whatever surcharge on your premium the claim triggers.
Avoid putting yourself in a position where you are tempted to sue for fees by communicating clearly with clients
about your fees, monitoring accounts receivable, and taking prompt action on unpaid bills. As the infomercials say,
"It really works!"

1. Merriam-Webster OnLine Dictionary, http://www.merriam-webster.com/netdict/pro%20bono.
2. This phrase entered the American lexicon in a commercial for the Veg-O-Matic, a food processor invented by S.J.
Popeil and sold on TV by his son, Ron, who demonstrated the product while joyfully proclaiming, "It slices! It
dices!" The fascinating story of the Popeil empire is entertainingly chronicled by Malcolm Gladwell in What the
Dog Saw and Other Adventures (Little, Brown and Company 2009).
3. "And ye shall know the truth, and the truth shall make you free," John 8:32, King James Version. Here, of course,
making you "free" is precisely what we are striving not to do, but I can't resist a pun.
4. This phrase comes from the infomercial for another great Popeil invention, the Showtime Rotisserie oven. In the
infomercial, Ron Popeil describes the miraculous process whereby Showtime Rotisserie users can create a delicious
chicken dinner while simultaneously attending to other matters - they can "set it and forget it!"

February 2012 Volume 100 Number 2 Page 80

The Magazine of Illinois Lawyers

Reprinted with permission of the Illinois State Bar Association.

Attorney Fees

Beyond the Billable Hour

By Helen W. Gunnarsson
More and more clients - and lawyers for that matter - are looking for value-based alternatives to the billable hour.
The good news? They can be a win-win for attorney and client.
As all Illinois lawyers since Abraham Lincoln have recognized, their time (and advice) is their stock in trade. And
lawyers frequently refer to Lincoln's famous quotation as a rationale for billing their clients by the hour.
But Ungaretti and Harris partners Michael Philippi and Ethan Trull note that the billable hour was not customary in
Lincoln's day. Before 1958, in the usual course of events, "The client would come to the lawyer and say, 'I have a
problem that I need you to solve. What is it going to cost?' At the end of the day, they had a negotiated fee for the
matter," says Trull.
That's how lawyers from all cultures had always charged, adds Philippi. "Since ancient Roman times, in medieval
times, in the colonies and early America, lawyers typically charged by the case or capped their fees, according to
standard historical reports."
But in 1958, Philippi says, bar leaders recognized that lawyers could and should sell a product. That product was the
billable hour.
Misaligned incentives
The idea of the billable hour caught on, and by now is accepted as the standard for lawyer billing in most types of
private practices. How much time will a matter require to bring it to a conclusion? How much time for investigation,
how much time for researching the law, how much time for drafting pleadings or transactional documents, how
much time for negotiating the deal or trying the case? Answering these questions in terms of the billable hour
provides a convenient framework for lawyers to advise their clients whether and how to proceed and an equally
convenient way to charge them.
But billing clients by the hour has built-in problems. As Philippi points out, the more hours lawyers bill, the more
money they make, without regard to the quality of their work, their efficiency, or the result. For some, he says, "that
can lead to a tug-of-war with the client. The incentives aren't correctly aligned."

In the 1950s and through the 1970s, the lawyers say, that misalignment seemed unlikely to cause many problems.
Back then, lawyers billed around 1,300 hours per year at modest rates, Philippi says. "Nobody dreamed that a
number of national law firms in the AmLaw 100 would be billing 2,000 hours plus per year at in excess of $1,000
per hour - or even $500 per hour."
Being an "ingenious bunch," as Philippi puts it, "lawyers found more ways to work and sell hours." Law firms began
expanding to unforeseen size and scope, and partners started expecting higher and higher profits.
But, as Trull points out, "To increase your numbers, you need more and more people at the bottom." Those would be
the associates, recently out of law school. With the expansion of discovery, says Philippi, "Associates are expected
to bill well over 2,000 hours a year. Thirteen hundred hour associates don't last too long in big firms."
Now, some view lawyers as charging whatever hourly rate they think they can get away with and performing
whatever tasks they think they can justify. Press reports of lawyers in bankruptcy workouts charging in excess of
$900 per hour haven't helped. Comments one government lawyer: "No wonder their clients are in bankruptcy."
In the 21st Century, the world has changed again. "In-house corporate counsel are a very savvy lot," Philippi says.
They're saying, 'Enough-this is ridiculous.' They're increasingly unwilling to pay associates $250 an hour to go
through tons and tons of work that may not be necessary. They're asking, and should be asking, 'Why are you taking
that discovery? How can I pay you so as to align your interest with my interest?'" And they're reviewing every task
on their outside lawyers' bills, questioning every tenth of an hour, and often disapproving payment.
A 12-year in-house veteran of overseeing litigation in a Fortune 500 company, Trull says, "There's a lot of
frustration on the part of in-house counsel about the inability to predict cost to their client, and about outside
counsel's ability to estimate risk. In-house counsel are hungry for a change. They want to be able to predict cost and
evaluate risk, early, often, and accurately. The outside law firm who can do that, gets an edge" in getting corporate
business.
Law firms are responding to the pushback from their clients by developing new billing models, often known as
"value-based billing" or "alternative fee arrangements." Philippi explains the concept in terms of two components:
aligning incentives for lawyer and client and creating incentives for law firms to reduce costs and achieve solutions.
Put another way, in an alternative fee arrangement, the lawyer takes on some of the risk of a less than ideal result for
the client and rewards are for value, not necessarily for hours logged.
Lower costs, not lower profits
Alternative fee arrangements may be as simple as the flat fee or the contingent fee. Trull says he's partial to flat fees
because, counterintuitively, "you can still be creative and flexible. You can have a flat fee for a phase of a case, for
an entire case, or for a portfolio of recurring cases."
As an example, he suggests considering clients who are involved in, say, asbestos litigation. "You might charge one
of those clients a flat fee to handle all of its asbestos cases. Imagine the certainty and the efficiency of that
arrangement from the perspective of both client and law firm."
For single-plaintiff employment cases, Philippi suggests that a company might figure out how many such claims it
receives, on average, in the course of a year. Large companies might further break down the matters into type:
sexual harassment, Americans with Disabilities Act, race, and so on. The company can also determine its average
annual cost for that litigation. "With that information, you can come up with a number for a flat fee per case in
exchange for the company's giving you the entire portfolio of those cases to handle."
Trull explains what the risk is to the lawyer and how such an arrangement aligns the incentives of lawyer and client.
"If I take a matter on for $50,000, I have to monitor it effectively so as not to lose my shirt on it. I have to evaluate
the case early on to identify the key issues and what we have to do. I have to sit down with the client and ask 'What

would you consider a successful outcome?' The client should be concerned with how much the whole episode is
going to cost, whether that cost is paid out to the lawyers, the court reporter, or the opponent. The client's goal
should be to make this bad situation go away for fewer dollars rather than more dollars. If the attorney has an
incentive to help the client with that goal, the cases tend to go away more quickly, not always for less money, but
overall for fewer transactional costs."
Taking on that sort of risk isn't something that comes naturally to defense lawyers of his generation. But the concept,
Philippi says, is the same as the risk with which the plaintiffs' bar is intimately familiar.
"Most good plaintiffs' lawyers do not do unnecessary things. They take a two-hour deposition, they're out, they're
done. Most defense lawyers take two-day depositions. Do the details of the deponent's first job out of high school
really matter to the case? The whole notion of efficiency is something the defense lawyer is borrowing from what
the plaintiffs' bar has been doing for years. And they make a ton of money. Ask [a prominent Chicago plaintiffs'
attorney] whether he's made any money on alternative fee structures."
Indeed, both attorneys are quick to note that alternative billing arrangements are not designed to lower the
profitability of lawyers' work. Says Philippi, "I'm talking about lowering cost, not profit. If a law firm can have a
higher level of profitability at a lower cost structure, that's a win-win" for lawyer and client alike.
Aligning the interests of lawyer and client
Alternative fee structures can be far more complex than plain flat or contingent fees, depending on the nature of the
matter or portfolio of matters and the client's needs. The billable hour may even be a component of an alternative fee
structure. To illustrate, Trull says his firm sometimes uses different billing structures for different phases of
litigation.
"In larger, more complex cases we may work with our clients early and often during the first 60 or 90 days to figure
out what the dispute is about and what the parties' expectations are. We might bill at a greatly reduced rate for that
phase."
Going forward, the firm might agree to cap their hourly fee, bill at a lower rate, or agree to a reasonably modest flat
fee until the end of the litigation. "But we keep track of our time, as any lawyer would, so we know what we're
spending. We refer to that as our virtual bank. At the end of the litigation, we look at that and talk to the client about
what we'd agreed up front. Depending on the outcome, we get paid either all of the bank, some of the bank, or, if
there's an exceptionally good outcome, a multiple of the bank." Or, if the outcome is poor, "we might get paid none
of it."
For lawyers, sharing some of the risk of litigation with their clients puts them back squarely in their clients' corners,
Trull says. "If the case turns out to be a disaster and the client is unhappy, the law firm is also unhappy, because it
gets paid nothing. But if the outcome is so good that it is unexpected, the client may pay an additional fee with a
smile on its face because it got exactly what it wanted, if not more."
Trull provides an example from his own practice. "I've litigated two cases in the past couple of years where my
client was the defendant and the claims were very, very substantial. We not only achieved a zero liability result but
got the plaintiffs to pay money to our clients."
Under the fee agreement, the clients had to pay Trull and his firm a bonus. "Were they unhappy? No! They were
thrilled. They achieved a knock-it-out-of-the-park result. In one of those cases, our client actually recovered millions
of dollars in fees that it had already paid."
Such arrangements, Philippi warns, make a very clear, written fee agreement absolutely essential. He further
cautions that, though they frequently masquerade as alternative fee structures, neither blended rates nor discounted
rates qualify.

"Think about it: lawyers who offer a crazy low blended or discounted rate, are still billing hourly, and their incentive
is still to bill as many hours as they possibly can. It doesn't really matter what the hourly rates are if the monthly bill
is $100,000 either way. A lot of clients get confused and think that those arrangements are value-based billing, but
those systems encourage inefficiency and don't save clients money."
Trull sums up: "Value-based billing discourages inefficiency and aligns the interests of attorney and client. If what's
being proposed doesn't do those two things, it isn't value-based billing."
Be flexible, willing to take risk
Jason Maxwell, vice president and associate general counsel for litigation at a Fortune 25 company, says he's
pleased to count Philippi and Trull among his stable of outside counsel. Confirming their explanation of alternative
fee arrangements, Maxwell also emphasizes that the right alternative fee structure for a matter needs to fit the best
interests of both lawyer and client.
"It has to be a marriage between the law firm and the client. You don't want either the law firm or the company to
get the short end of the stick in a matter, unless you have a longer-term relationship and you know it's going to be
made up in the long run. I want something that's fair, not an arrangement where I'm getting the best of the law firm
or they're getting the best of me. That makes for a short relationship."
Maxwell says it can be very difficult to say what a case should be worth when initially hiring counsel. "When you
get sued, you sometimes have very little information at the outset. If all we have is a complaint where someone's
making allegations, it can be hard to size it up."
In such cases, he says, he and other companies sometimes engage a firm at a negotiated hourly rate. "Once you learn
more down the road, though usually still early on in the matter, you can re-evaluate your billing arrangement."
Maxwell recalls that years ago a matter ended unpleasantly. "I asked for proposals based on the complaint, without
much more information. One law firm bid a surprisingly low flat rate. We had no idea what the case would turn into,
and neither did they. They ended up with far more work than they had anticipated and lost money on it.
Consequently, they didn't put in the work they should have, and we had a very rare dispute with that firm on the
competency of their work. It was a relationship killer."
An individual case may be better suited for the now-traditional hourly billing model than for alternative fee
structures precisely because of the risk of its ending up as The Case From Hell. Unless a matter is part of a portfolio
of cases offered to a law firm, law firm and client must have a relationship of trust so that the lawyers know that the
client will make up the shortfall by offering them more business.
"In my experience, the matters that are the easiest fits for alternative fee arrangements are cases of a recurring nature
or similar type." They might be sets of litigation, sets of cases, sets of cases in which the company is the plaintiff, or
other matters for which the lawyer and client desire more billing certainty. "While they may not be the ideal fit for
every case, alternative billing structures certainly help to align incentives between law firm and client. The ultimate
objective is to select the fee structure that provides the most value to the company and reduces overall long and short
term costs," Maxwell says.
Though his default arrangement with outside counsel remains hourly billing, Maxwell says he and other in-house
counsel are increasingly looking for alternative fee structures from their outside attorneys. The certainty of those
arrangements benefits companies significantly.
"Publicly traded companies in particular must meet budgets and comply with a variety of accounting rules. If we
have a deal that says we'll pay you a million dollars a year [to handle all cases of a certain type], we know there will
be no cost overruns and it gives us budgeting certainty."

Asked how lawyers who wish to be considered for more business from companies such as Maxwell's can enhance
their chances, he suggests demonstrating a willingness to take on some risk, be flexible, and reach an agreement
quickly, without requiring layers of approval. Smaller firms may actually have an edge over larger shops.
"In my experience, the larger national and international law firms tend to be more risk-averse in their willingness to
enter into alternative fee structures and require more layers of management approval. Smaller and more local firms
tend to have less bureaucracy and to be more willing to take on risk."
Helen W. Gunnarsson is an associate counsel at the American Bar Association's Center for Professional
Responsibility in Chicago. As the IBJ's first contributing writer, she wrote the LawPulse feature since its inception
in 2001 and most of the cover stories from 2004 through this issue in 2012. She can be reached at
Helen.Gunnarsson@americanbar.org.

More about alternative billing

Boston lawyer, writer, and consultant Jay Shepherd provides a memorable "Coffee Parable" to illustrate the
problems with billing by the hour at http://www.clientrevolution.com/2009/01/a-coffee-parable.html.
'Billable Hour' Under Attack: In Recession, Companies Push Law Firms for Flat-Fee Contracts, by Nathan
Koppel and Ashby Jones, appeared in the August 24, 2009, issue of The Wall Street Journal and is available at
http://www.carrollpc.com/resources/corpgen-news/wsj-billable-hour-under-attack/.
Aon Corporation's Mark Herrmann, Vice-President and Chief Counsel - Litigation, writes a column for the
Above The Law blog. His December 15, 2011, post, Inside Straight: Inflating Your Own Outside Legal Spend,
addresses alternative fee arrangements.
Canadian lawyer Jordan Furlong's post, The Best Pricing Advice Ever, is available at
http://www.attorneyatwork.com/the-best-pricing-advice-ever/.
Oklahoma lawyer Jim Calloway, director of the Oklahoma Bar Association's Management Assistance Program,
posts on alternative billing on his blog at http://jimcalloway.typepad.com/lawpracticetips/alternative_billing/.
Matt Homann, a lawyer formerly based in Illinois, dedicates his blog, "The [non]billable hour," to making law
practice more effective: http://www.nonbillablehour.com/.

FEBRUARY, 2000

VOLUME 88

NUMBER 2

Malpractice Prevention Update

Ten Tips for the Newly Admitted
By Anne E. Thar, Vice President and General Counsel, ISBA Mutual

Sage advice for the freshly minted.

Statistically, new lawyers can expect three legal malpractice claims during their careers.
You can beat the odds by following these tips.
1. Dont start your own firm without apprenticing first with a more seasoned
lawyer. Sorry, but that clinic you took in law school didnt make you a lawyer. Rather
than flying solo, take a position with the most respected lawyer in town even if only
for six months at slave wages. Use the opportunity not only to gain substantive legal
experience but to learn about file management, billing and collections, conflict of interest
systems, client relations, and the other business aspects of practice.
2. Establish good working habits. Nearly 50 percent of the legal malpractice claims
reported each year are caused by administrative problems and poor client relations.
Missed deadlines, poor documentation, fee disputes, and unanswered telephone calls are
signs of a law office that doesnt maintain strict procedures and attorneys with poor work
habits.
In short, its the little stuff that can kill you from a legal malpractice perspective. As a
novice, you can either discipline yourself to do things the right way or develop bad habits
that will increase your exposure to legal malpractice and impede your success.

3. Ask questions. Lots of questions. Your number one goal as a rookie lawyer is to
acquire legal knowledge and skill. If youre in an environment that stifles questions, get
out quickly.
4. Consider concentrating your practice. Why? First, no lawyer can know it all, which
is why general practitioners have a disproportionately high incidence of legal malpractice
compared to lawyers who concentrate their practices. Second, youll stand out from the
crowd much more quickly. Third, youll derive a greater sense of satisfaction from your
job as you develop a knowledge base with which to tackle complex issues (i.e., the cool
stuff). Finally, youll enjoy greater peace of mind, which beats that nauseating feeling
you get when you dont know what youre doing.
5. Develop time management skills. Some attorneys rush from one emergency to the
next all day long. Theyre actually no busier than others, but theyve never mastered the
skill of time management. Practicing legal triage will inevitably lead to claims, not to
mention high anxiety.
Time management includes prioritizing projects each day, scheduling daily uninterrupted
work time, and developing timelines for each case or project that identifies dates by
which certain tasks should be accomplished. If you lack time management skills, take one
of the many daylong courses on the subject. It could be the most productive day you have
all year.
6. Start a sample form and checklist file immediately. Great lawyers have at least one
thing that rookies havent a wonderful set of sample forms and checklists. The next
time that you run across a well-drafted complaint or a superb buy/sell agreement, add it to
your form file. Likewise, obtain sample checklists from the library or other firm members
for each of the major types of work you perform real estate closings, will drafting,
corporate formations, or personal injury suits, to name a few. As you identify nuances or
hidden tasks, add them to your checklists.
7. Take vacations and pursue your passions. Maintain a sense of balance in life, unless
you plan to become the workaholic down the hall that no one really likes on a
professional or personal level.
8. Find a mentor. Wherever you practice, seek out at least one experienced lawyer. If
youre lucky, youll create relationships with several mentors, each of whom will provide
a different type of advice or skill. One may help you develop your writing skills. Another
may be the perfect role model for trial or negotiation skills. Yet a third may coach you
through the dangerous waters office politics. If no one at your office or firm fills the bill,
look for a mentor at your favorite state, local, specialty or ethnic bar association.
9. Dont take the risk of substance abuse and depression lightly. The legal profession
has a higher-than-average incidence of substance abuse and mental illness. Know the
warning signs. If your method of relieving stress in college and law school involved
alcohol or other stimulants or depressants, youre already on a treacherous road. And

dont ignore feelings of depression. The pressures of being a lawyer can affect even well
grounded attorneys.
10. Maintain legal malpractice insurance. Make sure that you are continuously covered
by a legal malpractice insurance policy while youre in private practice. As a new
attorney, dont feel reluctant to ask your firm whether or not it maintains a professional
liability policy and whether it covers you. If youre practicing alone and have limited
financial resources, purchase the lowest limits available. (The premium is often less
expensive than car insurance.)
Finally, good luck to all of you as you start your legal careers; a little good luck never
hurt anyone.

"Ten Tips for the Newly Admitted" by Anne E. Thar originally appeared in the Illinois Bar Journal
(Feb. 2000, Vol. 88, No. 2). It is reprinted her with permission from the Illinois State Bar Association.

September 2009 Volume 97 Number 9 Pages 448

Solo Practice
From Sheepskin to Shingle
By Helen W. Gunnarsson
Can you really go straight from law school into solo practice? Do you know enough?
What are the surest ways to succeed - or stumble? ISBA-member solos and others offer
advice.
I'm a recent law school graduate and I'm considering starting up my own firm," wrote
Chicago lawyer Ben Hughes in a June 4 post on ISBA's general e-mail discussion group.
"I wonder if anyone would be willing to give me some advice."
Hughes, who was admitted to practice in November of last year, had several specific
questions for his listmates but also noted, "I'm interested in anything that you think might
be helpful."
Two of Hughes's questions attracted an especially large number of responses. First,
Hughes wondered, "How much will my lack of experience hurt me? I went to a good law
school and did well academically, so I feel good about my ability to figure out what the
law is - but I am worried that the gap between what law school teaches you and what you
need to know to serve clients effectively will turn out to be large." Hughes also inquired,
"For those who have gone solo, was there anything that was particularly important to
your success or that you wish you had known prior to starting your practice?"
Hughes's plans and questions are particularly timely in this season of a difficult legal job
market. Law firms have recently been making headlines with their decisions to postpone
hiring first-year associates, and a column called "Notes From The Breadline," together
with all the latest layoff news, has recently made an appearance on the legal Web site
Above The Law.
But apart from the recent negative economic news, law school has always attracted a
number of independent-minded men and women who either prefer or wouldn't even
consider working for anyone but themselves. Some Illinois law schools are reporting an

increase in the numbers of law students and recent graduates expressing interest in or
deciding to open their own law practices, perhaps partly as a result of law firm and
company cutbacks.
At the same time, lawyers, law professors, law students, and law schools across the
country are reassessing whether legal education in this country should provide more
instruction on the practical and business aspects of practicing law. At John Marshall Law
School, for example, instructor Clifford Scott-Rudnick and ISBA Board of Governors
member Russell Hartigan inaugurated a course for aspiring solos in the academic year
just past.
A "tremendously generous profession"
Amid cautionary economic news and commentary, there are bright spots of optimism for
Hughes and others in his position. As Scott-Rud-nick says of lawyers, "We're a
tremendously generous profession in terms of sharing expertise and information with
people who are just starting out." And ISBA has a myriad of resources, including not
only the discussion group to which Hughes turned with his questions but also
publications such as section newsletters and the IBJ and seminars providing CLE credit,
all of which will help new or aspiring solo practitioners start and build their practices.
Other ISBA members were quick to post answers to Hughes's questions, both on the
discussion group and to his personal e-mail. And those responses, Hughes said, helped
confirm that opening his own practice shortly thereafter was the right thing for him to do.
"More than any particular piece of advice I received, I was struck by how many people
took the time to respond and offer advice and by how generous many of those attorneys
were in offering their help as I got my practice off the ground," Hughes said. "As a new
attorney starting a law practice from scratch, you face a pretty steep learning curve.
Knowing that I had a network of experienced lawyers to call on if I had questions played
a big part in my decision to go ahead and start my own firm."
In both their responses to Hughes and in follow-up interviews, lawyers' advice to
Hughes's queries ran the gamut. On the threshold concept of hanging out a shingle fresh
from passing the bar exam, reactions from experienced solos ranged from "You're nuts don't do it!" to "Go for it!"
But all agreed on some basic guidelines: Keep your expenses low, make sure you get paid
- but recognize that you will have to work many hours for which you won't be able to
charge. Those who posted as well as other lawyers who commented for the IBJ also
emphasized that new practitioners shouldn't be shy about asking other lawyers for help.
Learning by doing

Hughes's primary concern was whether his lack of experience would hamper his ability to
serve his clients effectively. Some who responded urged him to work with other,
experienced lawyers before attempting to handle cases himself.
Wrote solo practitioner Harold Wallin, "When you go solo without any experience,
you...may not even realize you have made an error until it is too late to correct it." In a
similar vein, Mokena solo Judy A. Goldstein said "please develop a network of mentors
because you, like the rest of us, start out essentially incompetent (or barely competent), or
at the very least, too green to handle anything complicated without assistance."
Others took a more sanguine view. Wrote Ottawa lawyer Melissa Maye, "Don't worry you'll make mistakes, but short of blowing a statute of limitations, you can fix almost
anything by amendment."
While Huntley solo TJ Thurston believes "law school is essentially worthless to the
practice of law," Thurston also drew a distinction between competence and efficiency. "I
truly believe that you are competent now. Experience doesn't make you more competent,
it makes you more efficient in that competency."
Resources for solos and those thinking about making the leap
Agreeing, LaGrange solo Majdel Musa said in an interview, "I think people learn more
by doing things themselves than by shadowing someone for a few years. With all the
resources available on the 'net, attorneys can [usually] find the answers on their own
these days." Added Thurston, "Your lack of experience will only hurt you if you rest on
the laurels of your law school education."
But Thurston and Musa also recognized the need for continuing education as well as
setting limits. "Know where to get the resources to learn" how to handle matters,
Thurston counseled, recommending CLE seminars from ISBA and other providers as
well as ISBA's discussion groups for asking questions of attorneys around the state. "You
do have to recognize your limitations," said Musa, "and know when to pass something on
to someone with more experience or expertise."
Learning by observing, making the right friends
A prime way of learning how to handle cases, Thurston pointed out, is taking on pro bono
cases under the auspices of qualified legal service providers. Still another means of
learning, he continued, is to observe how judges and opposing counsel handle
themselves.
In accord with Thurston, Ogle County solo Maria Berger counseled Hughes to go to court
to watch proceedings to learn proper court etiquette and procedures. "Know this: Each
courtroom has its own procedures, and each judge does things differently. Some judges
want you to check in before calling your case. Some just go through the call top to
bottom, and some just let whoever is ready come up."

Making friends with the support staff at the courthouse will serve the new attorney well,
Berger added. "Your first time in a judge's courtroom," she advised, "ask the bailiff or the
court reporter, or anyone who looks official," about the judge's preferred procedures.
"Make the circuit clerks your friends, too," Berger urged. "You will need them a lot."
When you accept a case in a new area, for example, "Go to the circuit clerk's office at the
courthouse and look through a case like one that you are taking" in addition to consulting
practice handbooks, she said.
Judges' secretaries and clerks, too, can be very helpful in finding some time in a judge's
schedule for a hearing or advising the novice attorney on how best to present a motion.
As Grayslake solo Ronald Runkle urged, "Be courteous and friendly to the court clerks.
They are usually nice people, and they can help you."
Should you take every case?
Lawyers expressed different views on the extent to which a new solo should focus or
diversify a practice. Urbana solo Thomas Bruno, who opened his office fresh out of law
school almost 30 years ago, advised Hughes to "[t]ake anything that walks in the door.
You'll figure it out."
Bruno was reassuring about Hughes's concern about providing effective representation to
his clients while yet inexperienced. "You won't get hired on anything overly important,
and the kinds of folks who hire someone like you have usually got problems that you can
handle." He continued, "I don't think you'll have to worry too much about categories of
cases you won't take. They won't find you."
But Runkle took a diametrically opposite view. "Don't take all matters," Runkle wrote.
Though accepting more types of cases may allow newly admitted lawyers faced with
paying off student loans as well as all of their other expenses to make more money,
Runkle said, it also "expand[s] the possibility of screwing up and getting sued for
malpractice."
Thurston agreed with Runkle that solos should resist the temptation to say "yes" to
everyone. "Don't just take everything that comes in the door," he said. "Lawyers are
procrastinators by nature. If you don't like it and don't want to do it, it's taking away time
that you could be spending developing expertise in something you like. And it could lead
to ethical problems."
And, though Thurston has had some very positive experiences in representing friends and
relatives, he generally warned against accepting their cases: "If they perceive that they'll
get free or less expensive services from you, not only will you get paid less, but also they
will eternally gripe about your services."
Bloomington solo Richard M. Manzella also advocated for focusing a new practice.
Whether in a transactional setting or a litigation practice, Manzella wrote, a solo's best

bet for building a practice is "to master a specific area of the law and become someone
who is recognized by clients, counsel and the com munity for your particular subject
matter expertise."
And that area, he said, should be work that you enjoy. "Finding something that you're
passionate about now and tomorrow will sustain you through good and bad years.
"The attorney who simply chases a particular practice area in the hopes of 'making it big'
at the expense of fully investing in a career of constant learning can easily become
disenchanted and miss developments in the law or opportunities for new business
growth," he said. New attorneys who aren't sure in what areas of law they'd like to
concentrate can get a better idea by serving as second chairs to experienced practitioners
or by chatting with them to find out "the good, the bad, and the ugly" about the various
fields, he suggested.
Cautioning that lack of experience will result in having to spend significantly more time
to handle a matter properly, Manzella said, "It will take some time to charge market rates
reflective of the actual time you spend on the work." An inexperienced lawyer's fees, he
said "should not reflect the actual time spent on a matter if you are doing something for
the first time."
Manzella, who focuses on employment law, also warned of other time-consuming but
essential tasks in the course of solo practice. "Screening new clients for new
consultations is the most obvious non-billable work in my area of practice," Manzella
said. "Marketing, administrative, and even basic clerical tasks can consume tremendous
time," he wrote.
"Even if you can afford help," he continued, "selection, training, mentoring and the
related work employing such individuals," including tracking their time, cutting their
paychecks, and filing the proper reports to state and federal authorities, requires
substantial time - all of which is nonbillable. And don't forget, he added, that you'll have
to figure out what to do when your computer goes down or the fax machine jams. "It
helps to have some basic software and hardware knowledge and skills," Manzella wrote.
Build a network
A common thread running through the responses to Hughes's query as well as in the
comments of others interviewed was the value of building a network of friends and
mentors, for camaraderie and support as well as for education. Admonished Oak Park
attorney Paul Prybylo, "The most stupid thing to do is not to ask questions because you're
afraid of appearing stupid." Wrote Berger, "Feel free to bother me with questions
constantly - I did it to others, and I couldn't have gotten by without it!"
She added, "Ignore the few people on the list who will tell you that you are asking basic
questions. Ninety-nine percent of the listserv will be supportive and not think you are
dumb just because you don't know something they know." Added Prybylo, "Most older

attorneys are happy to answer questions. This is a very serious profession. You can't
know everything. You need support and mentors - people to bounce things off."
Like the other lawyers interviewed, Musa is a fan of ISBA's discussion groups for asking
questions. But, she and others emphasize, Internet contact is a supplement to, not a
substitute for, in-person interactions.
In fact, she and Thurston have both organized in-person meetings for the members of
various electronic discussion groups - Thurston for ISBA groups, and Musa for the ABA
Solosez group - and have forged lasting professional friendships with lawyers in other
areas of the state and country that have led to substantial business referrals.
Scott-Rudnick, who teaches professional responsibility as well as the class for aspiring
solo practitioners at John Marshall, fears that some solo practitioners may make practice
or ethical blunders as a result of isolation from peers.
"People can get into trouble when they don't have any kind of a safety net or network of
colleagues to run problems by."
He says all students who take the class he and Hartigan teach at John Marshall agree to
stay in touch with the school and to help solos emerging from subsequent classes. The
school also hopes its new Solo Practitioner Portal, which includes a blog and other
resources for solo attorneys, will better enable solos to find the help and encouragement
they need to build thriving practices without serious blunders.
Write a business plan
Part of the curriculum for Scott-Rud-nick's and Hartigan's class at John Marshall includes
writing a business plan for a solo practice. Writing a business plan, Scott-Rudnick
explains, benefits the aspiring solo because it requires the lawyer to think through, in
writing, what he or she wants to do.
"It starts with the objectives of the business. What kind of law are you going to practice?
What will be your expenses and anticipated revenues? What will be the sources of those
expenses and revenues? The business plan is an outline of what you expect and want to
happen."
Scott-Rudnick says a business plan is important even if a lawyer ends up not following it.
"It helps you contemplate what you can and cannot control. Thinking about those issues
goes a long way." Having a business plan is also essential for solos who wish to obtain
financing for their new practices from lenders, he says.
Scott-Rudnick and several solos cautioned that it's essential for the new solo to keep
expenses low. "Startup attorneys are marks for vendors. If you're not prepared for that,
you'll get blown away," says Scott-Rudnick, commenting that writing a business plan will
help the new solo think through what expenses are really necessary and which are not.

"Let your revenue drive your overhead," advised Carroll County solo Kipp Meyers in a
post to the discussion group. "Never incur an expense to create revenue. Let the revenue
create the need for the expense."
Agreeing, Bloomingdale lawyer Michael Hovde counseled avoiding services leading to
recurring monthly charges, such as yellow pages advertising or 800 number client lead
programs. Chicago solo Peter Olson, who writes the popular Solo In Chicago blog, said
in a post "I still kick myself" about overspending in his early years, particularly on
commercial lawyer referral programs and office space.
Indeed, some solos, such as Chicago lawyer Charles Drennen, even maintain and grow
their practices without renting office space, meeting their clients in coffee shops, public
libraries, courthouses, conference rooms in friends' or former firms' offices, or the clients'
own homes. (See LawPulse at page 440 for essential tech tools for solos.)
All lawyers agreed that solos should take every opportunity to market themselves.
Marketing, however, need not be a significant component of a solo's costs. Advises
Musa, "Get on every free attorney listing on the Internet. Get a website and/or blog. Get
on Facebook and Twitter and have both linked to your blog."
As part of both good business practice and marketing, Meyers recommends the careful
selection of an accountant and banker. "They will help you learn how to run and finance a
business." Meyers says those professionals have also been a better source of referrals for
him than other lawyers. "The best way to develop business is to get to know realtors,
bankers, accountants and insurance people - not other lawyers. A colleague and I always
joke that any case we refer to each other is bound to be a piece of s---."
Behaving and looking like a professional at all times - which need not require an
expensive wardrobe - is also an important part of marketing, says Prybylo. "Dress and
comport yourself like a professional, because it reflects on you and the profession. This is
especially important for solos because you and no one else are representing your firm.
When you are out in public, people are going to talk to you. You're marketing yourself
24/7. When you dress profes sionally, you feel and act differently."
Surprises unpleasant and pleasant
Some of the solos interviewed said they've had some unpleasant surprises in the course of
cultivating their practices. Chicago solo Tatiana Czaplicki said the time she's had to
spend collecting her fees has been the least pleasant surprise for her. "I feel empathy for
my clients who are having a hard time, but I don't get paid every two weeks. I need to eat,
too."
Several other lawyers, including Musa, say they wish they'd known how important it was
to collect retainer fees at the outset of representation. Says Musa, "I finally figured it out
after a few years of having to chase clients down for payment."

Musa notes another difficult lesson she had to learn as a new solo: managing clients'
expectations. "I learned that you have to set out what you can and can't do for the client
right away," including providing a timeline for the case or transaction, advising of the
cost, and making sure they understand that some matters will entail extra costs. "You also
have to let them know that you cannot always be in the office and available to respond to
them right away."
But pleasant surprises also happen to new solos, these lawyers said. Number one on
Thurston's list of agreeable happenings was "you find you're able to bring in clients."
Explaining, he said he worked so much on the cases of existing clients at the law firm
where he had worked that he didn't have the time to market himself and wasn't
encouraged to do so. "When you're on your own, people call because they see you."
For Drennen, the most gratifying surprise was that "because so many people have
unhappy experiences with lawyers not returning their phone calls, you can compensate
for some lack of experience by being the most responsive attorney you can be." He
recounts having a series of long conversations with a client who came to him for a
criminal record expungement, which Drennen ultimately determined was not going to be
possible.
Despite Drennen's delivering him that unwelcome news, the client was so pleased with
Drennen's attention and respectful attitude that he's sent him many better-paying referrals.
"Every time I see him, he asks for another stack of my cards to pass out."
Though they work hard, solos also admit to enjoying reclaiming their schedules and their
lives. Meyers, for example, wrote, "I have a great boss who is letting me leave early to go
trap shooting!" And Bruno remarked, "When you drive home with a pocket full of cash,
tell yourself, 'I don't have to share this with anyone.'"
While no career path is without difficulties and unpleasant surprises, those interviewed
believe, on balance, that flying solo - even fresh out of law school - is feasible and
worthwhile. Though Assistant Dean for Career Planning and Professional Development
Tony Waller of the University of Illinois College of Law thinks it's important for anyone
considering opening a solo law practice to make a measured decision, Waller has also
noted what he terms a "confidence gap" among law students using his office's services,
meaning "some people may have more stomach for running their own business than they
think. A lot of people who don't open their own practices would be successful if they
decided to do so."
Said Musa, "I will always be an advocate of going solo straight out of school" for those
who feel it's the right path for them. Indeed, Musa admits to puzzlement when she hears
other solo attorneys insisting that a lawyer must not go solo before working for someone
else's law firm - especially in the current economy.

Tom Bruno is not among that company, advising Hughes that "the folks who will rattle
off all kinds of things to worry about probably didn't do what you are about to do, so say
'thank you' and take their list of cautions with a grain of salt."
Runkle provided an additional heartening observation for Hughes's and any other aspiring
solo's concern about a lack of experience: "Understand that even experienced lawyers
don't have all the answers." Nor, he added, do the judges. "You will never know enough.
Learning the law is a continual process."

Helen W. Gunnarsson, a lawyer in Highland Park, is anIllinois Bar Journal contributing

writer.
Resources for solos and those thinking about making the leap

Read Ben Hughes's original post and members' answers by logging in to ISBA's
discussion groups at http://www.isba.org/discussions/. Once you're logged in,
select the general discussion group and scroll to the post dated June 4, 2009, and
headed "New attorney/solo practice questions."
An ISBA webinar, Brick By Brick: Building a Law Practice in Challenging Times
provides additional help for lawyers contemplating hanging out their shingles.
With moderator Peter Olson, a sole practitioner in Chicago who writes the blawg
Solo In Chicago, two other solos, Charles Drennen and Cheryl Morrison,
discussed their experiences and perspectives as dedicated and recently minted
solo practitioners. The program is available through FastCLE at
http://www.isba.org/fastcle for viewing using streaming video, audio CD, video
CD-ROM, or DVD.
There's still time to register for ISBA's Fifth Annual Solo and Small Firm
Conference by visiting http://www.isba.org/soloconference/09/. Coming to
Springfield from October 22-24, 2009, the conference will feature presentations
tailored to the solo practitioner and small firm lawyer.
A must-read for solos in Illinois is Peter Olson's down-to-earth Solo In Chicago
blawg, http://soloinchicago.com/.
John Marshall Law School's Solo Practitioner Portal is accessible to all lawyers not just JMLS alums - at
http://www.jmls.edu/careersvcs/solopractitioner/index.shtml.
Washington, D.C. lawyer and writer Carolyn Elefant, author of My Shingle, a
blog for solo practitioners, and the book "Solo By Choice," has compiled a
number of her articles on starting a solo practice at
http://www.myshingle.com/articles/myshingle-solo/.
The American Bar Association's Solo Center, including its popular SoloSez
discussion group, is at http://www.abanet.org/soloseznet. Although SoloSez is
sponsored by the ABA General Practice, Solo and Small Firm Division, anyone
can join, whether or not a member of the ABA.

Temple University Beasley School of Law Dean JoAnne A. Epps's July 20, 2009,
op/ed in the National Law Journal, A tipping point for law schools, advocates a
reassessment of legal education, including more practical training, and is available
at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202432335929.
ISBA Board of Governers member and John Marshall Law School Professor
Mark Wojcik and his colleague, Professor William Mock, suggest that new solos
and other lawyers without ready access to bricks-and-mortar law libraries explore
the Social Science Research Network, found at http://www.ssrn.com/, for
generally free access to a wealth of scholarly articles and abstracts on law and
other topics.

"From Sheepskin to Shingle" by Helen W. Gunnarsson originally appeared in the Illinois Bar
Journal (Sept. 2009, Vol. 97, No. 9). It is reprinted here with permission.

For tips on how to prevent burnout, please see Paula Davis-Laacks article titled,
7 Strategies to Prevent Burnout:
www.psychologytoday.com/blog/pressure-proof/201306/7-strategies-prevent-burnout