I recently became involved in a case where all the depositions had already been taken. The opposing lawyers were partners in a very large, very well-known law firm. And my predecessors on the case came from a firm with a recognizable name. The case was pending in Federal Court, so the depositions were all limited to 7 hours. While reviewing the depositions for use at trial, I marveled at the amount of time spent on things that were of no interest to the trial as well as some other quirks that struck me as pointless. So I started keeping a list, which I shared with my partner, Mark Sayre. Mark added a few of his own pet peeves, and together we created this list of 10 “Don’t Do These Things At Depositions.”
- The instruction “if you answer my question, I will presume you understand it,” is absurd and pointless. Think about it in this light—have you ever heard anyone say that before examining a witness in a trial? No? There’s a reason. No one cares what the examiner presumes. Really. No one.
- Objecting based on “assumes facts not in evidence” is really silly. Depositions occur during the discovery phase of a case when nothing is in evidence. Silly objections like this are why objections except as to form are not required to be made in a deposition.
- Objecting “lack of foundation” to foundational questions reveals ignorance about the nature of questions. “Did you call Mary Smith?” is a foundational question. A foundation question is one that assumes a fact—“what happened at the meeting?” assumes both that a meeting occurred and that the witness attended it.
- Objecting to “lack of time frame” when the word “ever” is used or implied reflects a hearing problem (get it checked) or a failure to listen. “Ever” is a time frame that no lawyer should need to have explained. It means from the dawn of history until the moment of the question.
- The objection “hearsay” doesn’t matter in a deposition. It’s called d-i-s-c-o-v-e-r-y.
- “Move to strike the answer as non-responsive” is just a time waster. There is no judge to rule on the motion and saying neither preserves it nor puts it into a queue for decision.
- Questioners who spend time asking about educational background and job history generally are wasting time, particularly when the witness is a fact witness and the facts are not about the ability of the witness to do what he or she did.
- Depositions are not memory tests. That said, asking questions like “do you remember what you said earlier in this deposition?” should invite “no” as a response. A well-prepared witness can say “not precisely—can I have my prior statement read back to me?” It wastes the examiner’s time.
- Pronouns and adjectives rarely enhance the clarity of any communication. Yet they seem to be the norm in depositions.
- Failing to establish the necessary foundation to admit documents. If you want to be able to use a document at trial, remove any doubt about its admissibility by asking the right questions.
There, I’ve stopped at ten. There are always more “lessons to be learned” but I’ll stop here.
The principal victims of this phenomenon have been those lawyers who become trapped in the culture of short-termism. That culture is especially rampant among the prestigious big firms, where, as a group, lawyers are the unhappiest.
Steven J. Harper
Victims. The word conveys a sense of passiveness-something happened to a person. And for a while, that was an apt description for the lawyers who became casualties of the Great Reset back in 2008. Nothing like the Great Reset had happened before, so without history to act as a guide, it is hard to view those whose careers were ruined or set back as anything other than victims.
No more. When things happen because of informed and knowing choices, however calculated the risk of the choice made, the person who may suffer is not a victim. To characterize such a person as a victim demeans the real victims around us. It is 2014, now more than five years after the Great Reset. While bad things are still happening in the profession around us, it is not as if there has not been plenty of warning and plenty of time and reason to study the situation, become informed and make well thought out, reasoned and studied decisions about your career.
If you choose to live in a culture of short-termism, great. Fantastic. But if things go to hell in a handbasket in your firm, don’t expect sympathy, even if you did not contribute to the firm’s downfall, even if you played by the rules.
Lawyers are smart people. Our clients come to us when they have problems and they expect us to investigate those problems, determine the truth and counsel them on how to act in light of the accumulated evidence and the likely outcomes. It never ceases to amaze me how people who have, or at least claim to have, such superlative investigative skills can fail to exercise them in their own situation.
Whether people accept short-termism because they think it intelligent to do so, or whether they are simply to afraid to change their world until the doors hit them on the ass as they leave their office for the last time, the outcome is a chosen one. So if this happens to you, you are not a victim. Your secretary is a victim. The copy room guy? Victim. Associates? Less a victim than the others but still a bit of a victim. You, on the other hand, may be a coward, a fool, a bad gambler, or just damned unlucky, but you are not a victim.
1. Has your management mandated (or gently suggested) that you reduce your spend on litigation? Would it be a good career move if you achieved a reduction in total spend?
2. Do your law firms spend more than the established budget?
3. In 2013, were you unpleasantly surprised by a bill you received from litigation counsel?
4. Do your cases have long cycles times? Do your cases tend to settle close to trial?
5. Do your outside counsel leave no stone unturned without clearing that approach first?
6. Do you (or your staff) have to spend time policing bills from your outside lawyers?
7. Do you pay your outside firms the same amount whether they achieve your objectives or not?
8. Did your outside firms raise their hourly rates for 2014? Did they provide added value to justify the increases?
9. Can you point to specific steps your outside counsel are taking to be more efficient in how they handle your cases?
10. Do your volume discounts result in actual savings on total spend?
If you answer some or all of questions 1 through 8 with a “yes” or questions 9-10 with a “no,” you really should be exploring value fees. When done right, such fees may help you reduce your spend by 30% or more.
Another law firm has motivated its associates to spend more time rather than less getting their work done. Kaye Scholer is paying upwards of $20,000 in additional bonuses to those who exceed 2,200 hours per year. The firm’s managing partner said this:
At Kaye Scholer, we strongly believe in rewarding our lawyers who not only meet, but regularly exceed, expectations. Every year there are some associates whose performance is truly outstanding, sacrificing from their personal lives to serve our firm and clients. We think it only appropriate that those associates receive a little extra at bonus time, which is why we instituted the two-tier bonus system four years ago, and continued it this year.
Let me offer an interpretation for their clients.
We haven’t figured out how to do work other than on an hourly basis, so we need lots more hours for the firm’s partners to take home their millions. So to squeeze out those hours from our clients, we’ll motivate our associates to spend more time on their matters. So even though our clients would benefit from a focus on efficiency and outcomes, that doesn’t help us–the partners–so we’ll just ignore that and keep doing what we’ve doing.
Kaye Scholer is, of course, not the only firm to use this approach. But they are public about it. I think most firms try to stay under the radar on this because the approach disfavors the firm’s cleints. By now, though, most clients that directly or indirectly support this approach are doing so knowingly and willingly, and there is nothing wrong with clients that want to overpay.
I am flabbergasted. I just opened up my first email this morning. It is from Joyce Smiley at JKS Company, and she sends a periodic report, also published online, Verbatim, What Clients Say. The lead paragraph states:
In a recent phone conversation with the name partner of a law firm, he claimed to be “skeptical” of conducting client satisfaction interviews. He compared the project to “going to the doctor for an unpleasant test” and would prefer to “put it off.”
The first thing that comes to my mind is the weekly ESPN segment, C’mon Man! Really? Such neanderthal views in 2013?
Llet’s start with the very basics. Your clients have views of your firm. They do–honestly. Your choice is to learn those views or not. The arguments in favor of not knowing are:
Okay, so there are no good arguments. There aren’t really any bad arguments either. So how about the arguments in favor of conducting client satisfaction interviews?
- Clients like them. A lot.
- They strengthen relationships, because talking about what can be done to improve relationships is what adults do.
- They identify weaknesses in your organization. Did you know that your star associate antagonizes the client’s staff? Maybe that is something you should know.
- They identify issues of concern on the client’s side. Did you know your client was becoming frustrated with the uncertainty in billing amounts and had tried a fixed fee firm–and liked it? Did you know your client had given work to an LPO and was happy with the outcome and thrilled with the cost?
There are many more reasons. But as I have said before, the existence of people like the name partner in Joyce Smiley’s post only makes life better for those who conduct such satisfaction surveys. Meanwhile, that partner is back in his office with his quill pen, rotary phone….
Chicago, IL-November 19, 2013
For the third consecutive year, Valorem Law Group has been named to BTI Consulting Group’s Client Service A-Team. Valorem was recognized in the Client Focus, Providing Value for the Dollar, Commitment to Help, Keeps Clients Informed, Handles Problems and Deals with Unexpected Changes categories. The results were reported in BTI’s Client Service A-Team report issued today.
BTI’s report is based on corporate counsel’s unprompted feedback during extensive interview. According to the Report, the Client Focus category recognizes Valorem’s “ability to deliver on [its] client’s targeted outcome,” usually an outcome driven by “business goals, budget constraints and client risk tolerance.” The Commitment to Help category reflects clients’ subjective judgment about a firm’s “emotional and financial investment in the relationship. Clients look for law firms whose commitment exceeds their own and who solve a problem instead of bill hours.” The Provides Value for the Dollar category recognizes firms that “communicate their value to clients by showing money saved, increased revenue streams, faster time to market and time saved, by documenting better outcomes. These same firms offer timely budget updates and scope changes.”
“Valorem is thrilled to be recognized in BTI’s report,” said firm co-founder Patrick Lamb. “It is especially gratifying that our recognition is based on unsolicited input from our clients,” Lamb said. “The report states that the categories in which we were recognized are ones clients consider among the most important but also most scarce among practitioners,” added co-founder Nicole Auerbach. “Since we place extraordinary emphasis on client service, we are pleased that our efforts have resonated with our clients,” added Auerbach.
About Valorem Law Group
Valorem Law Group is a business litigation firm with offices in Chicago and Silicon Valley. It was founded by BigLaw firm refugees who believe clients are entitled to budget certainty, extraordinary client service and to an unsurpassed commitment to help clients deal with cost pressures. Valorem is so committed to these goals that each invoice contains its unique Value Adjustment Line, which allows clients to change the payment due if they don’t believe they have received extraordinary value.
For more information visit www.valoremlaw.com or contact Patrick Lamb at 312-676-5460. Find Valorem on Facebook at “Valorem Law Group.”
Valorem Law Group’s Nicole Auerbach spends a lot of time talking to inside counsel. She has seen many who are leading major changes in their law departments, taking advantage of “the New Normal” to achieve unimagined savings for their companies. She also has met her fair share of inside lawyers who are handling things today the way they have for so many yestedays. It is this latter group of inside counsel who got Nicole wondering why more inside counsel are not demanding more change from their outside counsel. Check out Nicole’s post in Corporate Counsel Connect. And you can follow Nicole’s musings on Twitter @ValoremNic.
For reasons entirely unbeknownst to me, professors, law deans and others in law school frequently refer law school grads to me to suggest approaches to the legal workforce. Valorem doesn’t hire new law school graduates (or even recent ones), but I end up seeing an awful lot of resumes. I’ve put together a few thoughts here that may be of interest to recent graduates.
1. Put yourself in the shoes of the lawyer/firm. How many resumes do you think an average lawyer sees in a year. The total is likely to be in the hundreds. Resumes in one year blend together. When you consider that 99.9% of the resumes I have seen since 1983 when I got involved in the hiring process look exactly the same, you can better understand how resumes blend together. If yours looks just like 1000 others, why should I care? How can I possibly remember you?
2. Remember the grains of sand. Picture a person surveying a lovely sandy beach. You are a grain of sand. You might well be the finest grain of sand in the history of sand, but how do you expect the person surveying the beach to pick you out from amongst the trillions of other grains of sand? You can’t afford to appear to be like the other grains of sand.
3. If you aim to not offend anyone, you will impress no one. So many people, and virtually all law firms, are afraid of offending anyone. You create a persona stripped anything vaguely rough and unpolished and you end up stripping away the real you. Look at law firm websites–they are all so unbelievably vanilla. And so utterly BORING. You need to be the real you, the kind your friends see. You need to do something so different that it captures attention. A custom YouTube video presenting yourself? Why not? A parody to introduce yourself? Give it a shot. BE CREATIVE. A lot of prospective employers may be turned off. But you are far more likely to catch the eye of somebody that way. That’s a key to getting an interview and even more so getting an offer.
4. Understand the importance of “what’s in it for me?” When firms hire a prospect, particularly when smaller firms do, there is a very real “what is the value to us” that enters the hiring calculus. You need to make a business case for a decision to hire you. Not a business case for a firm to hire a new lawyer–the firm has already done that–but why the lawyer they hire should be you. You need to think like a business person, not like a lawyer on this one.
5. Understand that you are not a good writer. Most young lawyers I speak with talk about how well they write and how good they would be trying cases. Trust me, you are not a good writer. At least you’re not so much better than others I’ve seen that writing skills would drive that decision. When clients interview lawyers, quality is a given. You would not have made it the interview if the client didn’t think you were good enough. Likewise, good writing is a necessary skill set, but it is not sufficient. Understand and embrace that idea. On the flip side, your interest in trying cases is great, but my mother wants to try cases. Tell me instead about what you’ve done to master the forum. And by that, I don’t mean mock trials or other stuff in law school. How have you learned to think on your feet? To perform before an audience? To plot strategy like an elite senior military officer? And so on. There is a huge amount that goes into being a trial lawyer. Don’t be so condescending as to think you’ve mastered it based on handling a moot court case.
Remember, free advice may only be worth what you pay for it. But I hope something in this post sparks a helpful thought.
Those familiar with my writings know that I am a huge fan of Jordan Furlong. His thinking is illuminating and his writing is extraordinary. Jordan, who is both a partner with Edge International and a consultant with Stem Legal, has teamed with Stem Legal’s Founder Steve Matthews to produce Content Marketing and Publishing Strategies for Law Firms. The book is a quick read–it is only 75 pages–but don’t let the length of the book mislead you about the value of its content. In five chapters, Jordan and Steve cover strategy, content, distribution, culture and metrics. They include several case studies that help illustrate the points they are making. While Valorem’s inclusion as a case study may color my strong feelings about the value of Content Marketing, Jordan’s and Steve’s stature in the legal community and the history of their thoughtful contributions more than justifies a trip to the website to take a look at the book and judge for yourself.