The ABA Journal on Macs v PCs

The ABA Journal has a cute "debate" between two lawyers who "advise on the use of technology in the law office", one advocating for Macs and the other for PCs. There's not much new to the debate - you can read it yourself here. I did find it amusing, though, that the PC advocate frequently resorted to misinformation.

My first Mac was an SE/30. I needed a new hard drive. Did I call Apple? No. Did I find a third party vendor, order a third party hard drive (Apple, after all, doesn't actually make hard drives), and install it myself? Sure did. When I wanted to expand the memory, same story. And this was how long ago? Seventeen years ago - 1991. Has this changed? Hardly. My external hard drive has the word "Maxtor" on the side, not "Apple". My scanner and printer say "HP". My memory card reader says "Lexar". My FireWire hub says "Belkin". My wireless hub says "Linksys". So when I read,

As far as worrying what components are in my PC and worrying about the company I buy from, I have always objected to Apple's proprietary mindset: If you want a new hard drive, you must buy it from us, and you will pay what we want.

I cry "shenanigans". And when I read,

I like competition, and I like the fact that I can open up a PC and change out the hard drive with an inexpensive product that is the result of a lot of competition.

Well, welcome to 1991. No, even then he would be late to the game.

I do grant that many Macs aren't meant to be opened. As with PC's, Mac notebooks aren't meant to be serviced by the end-user. The iMac and Mac Mini are also not meant to be casually opened and self-serviced. Which, frankly, is fine for most users, even if the gearheads would prefer a Mac Pro.

His "last word" on the PC/Mac debate is this:

For all the positive hype about the “cool” Mac, a Web developer/ Mac convert has posted on his blog a 33-item complaint about why he has thoughts about going back.

Slow operations, bugs and crashes, useless functions, high expenses—sounds like the cost of an Apple is nearing its weight in gold.

Even though there is no follow-up to suggest that the developer actually switched back, that might be a little bit more compelling if, you know, the blog entry weren't dated September 22nd, 2005. (This would be more current - and the complaint, "Seriously, Steve - want more people to buy Macs? Just let them get the software", is valid, as you might expect from a seven-day-old post.)

That's not his first effort to oversell the PC, either.

In its zeal to be cool and proprietary, the new Apple ultralight, the MacBook Air, costs more than $1,700. Comparable specs are available on Windows machines for less than $1,000.

Comparable specs are available on cheaper Macs as well. I do agree that Wintel machines still have a price advantage in the portable market, which is why my portable is a Dell, but the proper comparison would be to a standard MacBook. In terms of performance? Let's just say, Vista is pretty but slow - I suggest investing in extra RAM. And Vista seems quirky - sometimes when I try to "wake up" my Dell, it shuts down - that's annoying.

My take on the debate is this: Despite the hype about how hard it is to learn a "different" system, it's really not. There are some significant differences between OSX and Vista, particularly if you use keyboard shortcuts, but you get used to them. I frequently switch back-and-forth between systems with only an occasional slip.

PC's have a lead in software, and have held that lead for years. As more software is browser-based, this lead will become less significant in the future. But if your office runs on a PC-only case management program, or you have a ton of money invested in HotDocs, you need to be careful. You can run both OSX and Windows on the current generation of Macs, but if you're going to be booting up in Windows mode as a matter of course it isn't sensible to spend the extra money (a Mac plus a Windows license) for functionality you will not use. If you run an emulator such as Parallels, so that you can run Windows in a window while running OSX, don't expect it to be fast.

If you are really just looking for basic functionality - Microsoft Office, and browser-based access to Lexis or WestLaw, you can go either way. In my opinion, right now Macs are much more pleasant to use. But there is a short learning curve if you switch.

After I graduated from law school I produced many legal documents on a Mac desktop computer, as that was what I owned. After owning several Macs, I switched to Windows because at the time it was a better option. When my last Dell desktop was groaning under the weight of modern applications, I switched back to a Mac desktop, because OSX offers many advantages over Windows. (XP was a resource hog. Vista is worse.) I have an emulator for programs that only run on PC's - I rarely use it. As I mentioned, my notebook is a Dell. Not that my saying so will make either Bill Gates or Steve Jobs happy, but my loyalty is to my own needs, not to a computer manufacturer.

False Advertising?

Richard "Dickie" Scruggs is in trouble....

Prominent Mississippi trial attorney Richard "Dickie" Scruggs, the brother-in-law of outgoing GOP Sen. Trent Lott, was indicted by a federal grand jury Wednesday on charges that he and four other men tried to bribe a Mississippi state court judge.

According to the 13-page indictment, Scruggs and three other attorneys -- including Lott's nephew Zach -- attempted to bribe Mississippi Third Circuit Court Judge Henry L. Lackey with at least $40,000 in cash.

I wonder if the defense will claim "false advertising" - after all, what sort of lackey doesn't accept bribes?

Quote Of The Day

Does anyone care to brainstorm a short list of professionals who might say,

I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500.

Welcome to legal practice.

Look Around, And Imagine Your Future

Mike from Crime and Federalism brought my attention to this blog, the travails of a lawyer performing temporary document review assignments. That blogger's advice to a student at a third tier school:

I told her to take a good look around the courtroom we were in (King's Supreme). I told her to look at the unshaven slobs, blood-shot eyes, JC Penny wardrobe, beer guts, etc. Take a look at these clowns squinting to read the NY Post b/c their gutter firms have no eyeglass/optic plan. Look at the bad teeth from no dental insurance. Imagine riding 2 hours on the train from some aluminum-sided tract house in a ghetto and trying to explain to your children why they have to eat spaghetti and Ramen noodles for supper every nite. Take a good, hard look, because this is your future.

While the lawyers were dressed considerably better and apparently owned toothbrushes, and I wasn't envisioning a future of Ramen noodles and spaghetti, I do recall a moment in my career when I looked around a civil courtroom filled with some of the "most successful lawyers" in a particular county and saw not one happy face. I don't know how you can take in such a scene without wondering, "Is this what I want to be in twenty years." (For me, it wasn't and it won't be.) If you want to be a lawyer, try to find an area of practice that leaves you at least reasonably content. If you can't, at least from my perspective, you should be asking yourself if the money (or anticipated money) is worth the misery.

There is biglaw and there is nothing else. Law is as all or nothing as it gets- if law were the food industry you would have the Four Seasons and McDonald's with nothing in between.

There's a lot else, actually.

The Absurdity Of Lawyer Codes of Ethics

Over at Crime and Federalism, Mike and Norm have shared comments on how new ethics rules in Connecticut create a significant burden for small firm lawyers, and will make many lawyers think twice before agreeing to represent a difficult client. Mike writes

Connecticut has recently adopted new rules of professional conduct. These new rules, according to legal ethics experts, require lawyers to obtain a client's permission before withdrawing a frivolous claim. If the client refuses to withdraw a frivolous claim, the lawyer's only recourse is to withdraw from representation. Under the new rules, lawyers will also be required to explain (in painstaking detail) every routine decision made in the client's case.

Norm explains,

The old rules required mere reasonable communications, giving lawyers some breathing room. Under the new rule, however, you are tethered to a client's needs. Thus, a client in a habeas case will write asking why it is not a conflict of interest for a lawyer to represent another client at the same time. Why is this not a conflict? Or try explaining to an angry client in an employment case why they must answer interrogatories -- for the second, third, or fourth time.

A lawyer notes in a comment,

First, for hourly/monthly firms, especially insurance defense firms, this is the lawyer's equivalent of Sarbox for accountants---make work on a massive scale. Now, every insurance defense lawyer will need to have a million conversations with the insured, for which the insurer will have to pay. I have been watching this in action in another state where I am co-counsel. Simple issues require a fortune to resolve.

As the posts suggest, ethics rules are often created by people who have no experience in legal practice, or whose experience is limited and probably does not involve work as a small firm practitioner or solo. They hear client complaints which usually revolve around legal fees and communication, and try to come up with rules which will minimize the number of future complaints. They cannot change the behavior of clients, so they focus on the lawyers.

A "reasonableness" standard may in fact be the most appropriate standard - was the lawyer's effort to communicate with the client reasonable under the circumstances - but to apply that rule somebody needs to examine the facts of the case and determine whether the lawyer's actions were in fact reasonable. Judgment? Discretion? That sounds time-consuming. So why not take away a lawyer's discretion, require clear, written communication of everything, and hold the lawyer responsible if a client complains (however unreasonably) and the paper trail is incomplete?

I once had a client complain bitterly about her trial lawyer, as she unpacked stacks of papers from a bag, that he sent her "everything", and that she found it overwhelming and confusing to receive so much correspondence. These rules don't seem to contemplate that they may not only create undue expense, but they may make things even more confusing for a client.

The Michigan Attorney Grievance Commission for years has played a game of "hide the ball" on attorney legal fees. You can read all of the Michigan Rules of Professional Conduct, read all of the formal and informal ethics rulings interpreting those rules, write a retainer agreement that appears to be 100% compliant with the rules, and still be told that your fee agreement is not ethical. ICLE, Michigan's non-profit legal publisher and CLE provider, tried to step in by having lawyers submit standard fee agreements, vetted for ethical compliance, edited by lawyers, and published in a convenient soft-bound book. It was discontinued after the AGC indicated that it had problems with the fee agreements in the book. At legal seminars where fee agreements are discussed, it is not unusual for a lawyer to submit a standard fee agreement, and then to have that fee agreement taken to pieces by an AGC lawyer. I saw this happen to a highly experienced, highly competent large firm family lawyer a couple of years ago. Ask the AGC to provide samples of fee agreements it would deem entirely ethical? The loudest thing you'll hear is the sound of crickets.

One consistent thing you will note about the rules of ethics is that they are structured to favor large firm practice. The billing systems used by large firms, no matter how inappropriate or unfair they would be to an individual client, are deemed ethical. There is no question but that you can ethically bill in minimum time increments, as long as you indicate how that will occur in the retainer agreement, such that a one minute phone call can be billed as a quarter hour of work. Had that system of billing been pioneered by small firms as opposed to large, I doubt that any state would deem it ethical.

One of my favorites: The AGC permits engagement fees (a fee charged by a law firm to take on a new client, and guarantee that it will allocate sufficient resources to handle the client's case) and has no problem with them as long as the client gets no further benefit from the engagement fee. But if the lawyer who charged the engagement fee gives the client credit against the engagement fee for any work performed, whatever the terms of the engagement fee contract, they will recharacterize the fee as a retainer fee. What if your impoverished client has a change of heart about litigating and, as it is early in the process, you decide that it is only fair if you give a partial refund of an engagement fee his mother obtained for him by mortgaging her house? Oops - if you give a partial refund, once again the ACG will recharacterize the engagement fee as a retainer, entitling the client to a much larger refund and subjecting you to possible penalties if you don't comply. The "ethical" approach is to tell the client, "Too bad, so sad."

Informally, I heard an AGC lawyer propose a compromise for smaller firms - charge the engagement fee, but instead of giving the client credit against it charge a lower hourly rate for subsequent work. Nothing in the Michigan Rules of Professional Conduct would support the distinction whereby the former approach was "unethical" and the latter approach "ethcial." Why in the world should it be more "ethical" to fudge the numbers to create a fee agreement satisfactory to the AGC, as opposed to simply putting down in writing a clear understanding betwen the lawyer and the client which is acceptable to both of them, is consistent with the actual text of the rules of professional conduct, and results in roughly the same amount being billed? How is the client exploited by the honest fee agreement, but not by one which is designed to circumvent (unpublished) restrictions on how clients are to be billed?

Meanwhile, in some rather cutthroat circles, lawyers have been known to advise clients to threaten grievances against their former lawyers in order to squeeze refunds out of them. Often this seems to be done in the context of a client who wishes to switch to a different lawyer, but who lacks funds for a retainer the new lawyer deems sufficient. Some heavy users of legal services have figured out, perhaps after receiving such instruction, that they can use threats of grievances or actual grievances as a weapon against their former lawyers, demanding refunds of well-earned legal fees. I am aware of a client who grieved six different lawyers in his criminal case - before the case even got to trial.

I personally believe that ethics codes should be drafted with the concept of providing a minimum framework of rules with a maximum benefit to clients. The drafters of the rules seem instead to look at those areas which generate the greatest number of client complaints, and creating new rules or applying new interpretations of those rules in a manner which they believe will minimize their work in reviewing complaints against lawyers, or if that's not possible to make it easier to resolve the complaint by pointing to a bright line rule that the lawyer violated. I am not sure if that approach will actually reduce the work of grievance panels, but to the extent that it increases costs to the client, or results in a confusing deluge of paperwork on a client who feels perfectly informed by existing "reasonable" communication, I think it is misguided. Ethics codes should reflect ethics, not a byzantine system of "gotchas" for lawyers who act ethically and responsibly except in their failure to meet arbitrary and artificial standards of conduct. I oppose any ethics rule which necessitates the interjection of dishonesty into the lawyer-client relationship, even if passed with the best of intentions.

Young Lawyers Fleeing From Big Firms To...

The New York Post suggests that big law firms are being abandoned by young lawyers who don't believe that a large paycheck is worth the sacrifice of a personal life.

Young, Gen-X lawyers in their third to fifth year in the business are walking away from their $200,000-a-year positions in record numbers - at times without another job in view.

* * *

The big-firm brain drain is also giving partners a major case of agita - forcing them to do the yeoman grunt work usually assigned to associates. In addition, the firms are being forced to scramble to fill the mid-level talent void. Some are even doing the previously unheard of - hiring from second-tier law schools.

John, a fifth year associate at a prominent Wall Street firm, is, like many young lawyers, walking out the door. He is leaving for a coveted in-house position at an investment bank. "I'm just waiting for my bonus," the 31-year-old says.

The author of the piece doesn't describe her own experience, but her byline suggests that she quit a law firm in order to write a book. John is the only specific example she provides in the article, and let's just say it doesn't look like he's walking away from a six figure paycheck. The other lawyer mentioned, Tagg Grant, appears to be preparing to practice under his own shingle. (Is this the same guy enjoying an earlier fifteen minutes of fame?)

I suspect that most of the associates who are leaving are doing so in the same manner as John - they're either finding alternatives that pay very well but allow more personal time, or they're finding alternatives which pay even better whether or not they provide for more personal time. The problem for partners:

"You should see the partners," John says. "They're doing the work of mid-levels to pick up the slack. And even though they make over $1 million, they never see their family. There's little reward in that for me."

That's the problem with a business model based on selling time - there are only so many hours in the day, and if you can't find somebody else's time to sell you're stuck selling your own. It's no small wonder that many young lawyers look at that future and think about the alternatives.

Online Attorney Location Services and Confidentiality

I stumbled across a site I hadn't seen for a few years the other day, LegalMatch, and for no good reason it occurred to me that there were some serious potential confidentiality issues for people who use the site to find lawyers. The site permits potential clients to submit a description of their case online, which (if all goes according to the site's plan) is subsequently reviewed by subscribing lawyers who decide if they wish to pitch their services (and fees) to the potential client. The potential client can then choose from those lawyers and, if all goes well, find one with the right set of qualifications and an affordable fee.

But....

The site makes very clear that no attorney-client relationship exists when a potential client posts a description of a case. It seems to me that this gives a potential source of the person's unvarnished story to any opposing counsel who learns (or guesses) that they have used the service. Is there any reason that the person's description, as posed to LegalMatch, can't be subpoenaed?

I've actually seen worse - there was a site a few years back which permitted users to email, en masse, subscribing law firms, who would in theory reply to the email with offers to take the case. The company focused on personal injury claims. The site was apparently having some difficulty getting plaintiff's firms to sign up, and had padded its directory by adding some prominent defense firms to their listings even though they had not subscribed. Which, of course, could have resulted in the unsolicited submission of the user's description of their claim to a defense firm that ultimately ended up defending their lawsuit.

The Unhappy Client.... Ouch?

Over at lawinfo.com:

Lavender12 - In August of 2003 I hired an attorney along with his partner as co-counsel for my son who was facing a three strikes count. For the next two years the case was continually postponed, and the lead counsel refused calls from myself and my son. The co-counsel disappeared after payment and have not heard from him to this day. Of course my son was found quilty, the lead counsel was not prepared, and said so. If any one has had this same problem, please advise, I have been to the State Bar, and they say this is a case of payment dispute? What dispute, they took my money and did nothing! Remember this name, [Law Firm]. Learn from my mistake.

[Law Firm] - Your son was convicted after a jury trial. You cannot possibly believe that we took your money and never showed up to court. That is a flat out lie. Furthermore the State Bar has already ruled in my favor and you should move on with your life. Stop this nonsense or I will sue you for making these defamatory remarks. Your son has already caused you and society enough grief. Move on.

I think this is a reminder that email and even moreso forum posts are not the same as conversation - there's a written record which may be public. I suspect that had this law firm been writing a letter to the client, they would have been more circumspect in their comments.

I know I've been intemperate at times in an online context, and for that matter still am, so I'm not judging. But when things like this appear in Google for your law firm name, even where people accept that the allegations are entirely untrue, it can affect whether a potential client will contact your firm.

Don't Assume The Worst Of The Deponent

In my work for the past few years, my exposure to depositions has been pretty much limited to reading transcripts. I miss actually conducting depositions. From a transcript, I can't see the witness sweat, I generally can't see awkward pauses (although sometimes a lawyer will note them for the record or the court reporter will use ellipses), and I can't hear tone of voice. The textual presentation cleans up the testimony in a way that removes a lot of the personality. But that's not always the case.

In one case, where I happen to know background information, a lawyer did a very diligent job of walking the witness through a chronology of events. But the lawyer came into the deposition with the apparent perspective that the witness would be hostile, and he questioned the witness in a manner that was at times patronizing, condescending, and at times combative and insulting. There were various points where if he had listened more carefully to what the witness was saying, rather than assuming that the testimony fit his preconception, he would have been able ask questions which would have led to some very valuable information. He also would have avoided antagonizing a witness who was in fact neutral, and might have realized that some of the answers that seemed evasive were designed to protect his position and not the adverse party's.

That Tenacious Photocopier

It's always willing to put in overtime.

With three submissions in the lower court ending in defeat, it's time for an application for leave to appeal!

The best part - for this one they get to submit five copies to the court!

This Firm Has To Be Charging Copying Fees....

• First motion for summary disposition with supporting brief - 19 pages. Plus about 500 pages of exhibits.


• Second motion for summary disposition with supporting brief - 20 pages. Plus the same exhibits.

Both were filed at the same time.

• Renewed first motion for summary disposition with supporting brief - 20 pages. Plus the same exhibits.


• Renewed second motion for summary disposition with supporting brief - 22 pages. Plus the same exhibits.

Both were filed at the same time.

• Revised renewed second motion for summary disposition with supporting brief - 20 pages. Plus the same exhibits.

If they're not charging the client a copying fee per page, the firm is wasting its own money. If they are charging the client copying fees, they seem to be intentionally burning through the client's money.

If it costs you 8 cents per page to produce the copy, and you bill the client 25 cents per page... unnecessarily reproducing 2,000 pages of documents generates an additional $340 in profit per copy. One copy for the client, one copy for the file, one copy for the court, one copy for the judge, one copy for opposing counsel.... $1,700. Charge 50 cents per page, and you've made about $4,200, just for hitting the print button a few extra times.

Your Rabid Dog Lawyers?

I saw a Google AdSense ad for a law firm,

Smith Defense Team
Certified criminal law
specialists Free Consult -
Beyond Aggressive!

(I changed the name of the firm to something generic.)

How does "beyond aggressive" compare to, say, a "pit bull lawyer"? Is it roughly the same, or something more akin to a "rabid pit bull lawyer"?

A Bit Of Time (And A Lot Of Paper) Saved

If you hire a business firm to do your defense litigation work instead of a (mere) insurance defense firm, you might want to remind them to read the court rules. A couple of months ago, I wrote responses to a summary disposition motion. The plaintiff's counsel wanted to add material which pushed the motion and brief over the limit, so I told him to contact the judge's clerk to check their policy. Some judges are flexible, but this one wasn't - the attorney was informed that the judge would reject his answer and brief if they exceeded a combined twenty pages.

Fast forward to the latest summary disposition motion filed by the defense, which exceeded twenty pages between the motion and brief. I suggested that the plaintiff's counsel contact the court to see if it would still be entertaining the motion. Nope. It will have to be refiled in proper form by the plaintiff, and renoticed for hearing.

Once again, this is a mistake a second year associate at a (mere) insurance defense firm would have caught. I wonder if the business firm handling the case will refrain from billing the client for the time and costs associated with their mistake....

A Word About "BigLaw"

I recall reading some comments over at Even Schaeffer's Legal Underground where a former BigLaw associate huffed that businesses would do better to hire BigLaw to defend their cases instead of hiring (mere) insurance defense firms, purportedly because BigLaw would be more competent. This, of course, inspires the question of... at what point a law firm becomes a (mere) insurance defense firm, regardless of its size and sense of self-importance. And if they don't have enough work that they can truly specialize in defense litigation, is it really true that they will be more competent in serving their clients?

I am presently helping a plaintiff's lawyer with a case being defended by the self-insured defendant's business firm, rather than an insurance defense firm. Beyond the stunning ability to fell trees and produce ridiculous motions, I'm not clear on how the client is advantaged... unless paying much larger legal fees than necessary is deemed an advantage. It's great, I suppose, that this firm is able to produce novel interpretations of statutes and court rules that its lawyers haven't encountered before, but a second year associate at a (mere) defense firm would be able to set them straight about how a court is likely to resolve the motion.

Subsequent Remedial Measures

I realize they're playing it up for the media, but would this type of claim make you want to hire this firm?

Apple Computer’s release Wednesday of a software update to limit the volume level of its iPod music player confirms the product is flawed, U.S. attorneys involved in a class-action suit against the company said.

Also, what's so special about an iPod that common sense shouldn't apply? Hearing loss from excessive volume was an issue with the "Walkman" back in the 1980's.

Would You Take The Case?

You're offered the opportunity to take a very high-profile double murder trial... triple if you count the fact that one of the victims was pregnant... if you agree to work for free. Court TV will likely cover the trial, which will all-but-certainly end with your client's conviction and sentence to mandatory life without parole. If you wish to present any sort of mitigation of your client's guilt, you will probably have to expend a considerable amount of your own money for expert witnesses. But in the interim you'll get tons of publicity.

By my calculation, it isn't worth it. Would any of the lawyers reading this beg to differ?