July 2016

My friend John Chisholm sent me an article on why diversity programs in law firms are failing. (Talk about a small world–An Aussie sending an article from a Canadian publication to a guy in Chicago!)  The article includes this quote, from a Stanford Law White Paper:

These broader problems are complex and multifaceted, and have both structural dimensions—such as the impact on women lawyers of “conservative and rigid workplace structures,” including the billable hour and associated expectations of total availability, or the opacity of firm management—as well as societal and cultural dimensions, such as the influence of implicit and in-group biases on purportedly “meritocratic” systems. These problems also manifest themselves in a number of ways, and ultimately result in disproportionate impacts upon the retention and advancement of women lawyers.

My partner, Nicole Auerbach, spoke on this issue a few years ago (here short presentation is well worth watching), relaying some personal observations about how the billable hour, and systems built on billable hours, hurt her specifically and women generally.

We are long past debating whether a problem exists in the legal profession, particularly in BigLaw.  The question is what to do about it.

To suggest one possible answer, I’d like to relay some advice I received from a wise man.  I was at an event and found myself sitting next to Ted Sorenson, long a hero of mine given his contributions to President Kennedy, who my blue-collar, Irish-Catholic family revered when I was growing up.  In the course of discussing an issue I was having at a former law firm, Sorenson said “You need to decide whether you want to spend your time getting your firm to move toward the space you want to be in, or whether you want to be in the space you want to be in.”  For me, it was like getting hit in the head with a 2×4, and a year later, Valorem was born.  Ted, as he asked to be called, cautioned me that some people like the process of getting an institution to move, but went on to say that others simply wanted the outcome.  For me, I was tired of process and wanted to live in the land of results.

Why do I bring this story up?  What relevance does it have to the diversity problem facing law and BigLaw? Diverse lawyers need to decide whether the process of change, painfully slow and imperfect on the best of days, is acceptable. The alternative is to design a new platform, one that reflects your values and priorities.  For me, and for Nicole and our fellow founders, the joy of designing an new way of doing things, of having a firm built on our values, of controlling our future and having our fingerprints on a new way of doing things far surpasses the pluses that we walked away from when we decided we wanted to be in the space we wanted to be in.

After Ted Sorenson offered me his advice, I could only thank him for removing the shroud that had covered my mind’s eye and bring me a clarity of vision I had not had before.  Perhaps his advice can help others who want to be in the space they want to be in.

Litigation costs too much. Why? Because it is overburdened with process and tolerated but unnecessary excess.  And who benefits from the focus on process and needless discovery and motion practice? Lawyers.  Who designs the processes and rules for discovery?  Lawyers. And who benefits economically from this focus on rules and process? Lawyers.

Lawyers are the problem, not the solution.  While no solution is perfect and lawyers cannot be entirely eliminated from dispute resolution, it is possible to design a solution that gets to fair results quickly with drastically lower costs.

For small cases, much of the cost results from activity with little substantive impact and cases resolve based on the cost of prosecuting or defending the matter rather than on the merits of the dispute.  Parties negotiate from extremes, which makes resolution that much more difficult.

To take the lawyers out of the equation, as well as their costly focus on process and rules, ValoremNext has designed a simple arbitration solution for small cases. Founder Nicole Auerbach, a certified arbitrator, acts as a neutral, using this simplified approach which ensures resolution in under 60 days:

  1. The parties sign a simple agreement consenting to the Valorem Arbitration Program. 2. There is an initial conference, lasting only one hour, within a week after the agreement is signed.  Each party is represented by a business person, who is the party’s spokesman.  A lawyer may join to advise the client.
  2. In the initial conference, each side will explain its view of the dispute, and identify whether the other party has any information essential to a fair evaluation. Each party will also identify what documents it has to support its claims or defenses, including damages.
  3. The initial conference will end with an agreement or order on when each side is to produce its supporting documents and whether any other documents must be produced. There will be presumption against producing large volumes of documents and no fishing expeditions will be permitted.
  4. In the initial conference, the parties will agree or the arbitrator will decide whether a single, one-hour maximum deposition will be permitted by each side and who the deponent will be.
  5. Three weeks after the initial conference, the parties will submit a brief not exceeding 5 double spaced pages, laying out their claims or defenses and arguments for their position.
  6. Within 10 days, the parties will meet telephonically for the hearing. Each side will have 30 minutes to make its case to the arbitrator and the parties will answer any questions the arbitrator has.
  7. Within one hour of the conclusion of the hearing, each side must submit a confidential email to the arbitrator setting forth its proposed resolution.
  8. Within one day, the arbitrator will choose one of the two offers. There is no baby-splitting or compromise of the two submitted offers.  The decision will be announced by forwarding the accepted proposal to the parties with a brief explanation of what factors determined the acceptance of that position.  This explanation will not exceed two paragraphs.
  9. During the period the arbitrator is considering the matter, the parties may share their proposals with each other and attempt to work out a resolution.

The total time from signing the agreement to conclusion is less than 60 days.  The cost of the arbitration is $7500 or 7% of the amount at issue, whichever is greater.  Each party will pay 50% of the fee, unless the parties agree otherwise or a clause in an operative contract says otherwise.

With minimal lawyer involvement, the total expense per party on a $100,000 claim, including legal fees, should be under $5000.

This is a far cheaper and faster way to resolve a dispute than any existing option, and I tip my hat to my partner, Nicole Auerbach, for this client-focused approach. The details and needed documents for the program on available on Valorem’s website.

Clear writing makes a difference. For the skeptic, we now have proof. Using 50 readability measures, the study’s authors found that by a huge amount, a more readable, easy to understand brief is more likely to prevail over a less readable brief.

So what is clear writing? For me, it means avoiding adjectives. Adjectives are a poor substitute for facts or argument that compel the conclusion a writer seeks to convey when using adjectives.  Ditto adverbs,

It means avoiding pronouns when possible.  If a reader needs to look back to understand the person represented by the pronoun, the pronoun should not be used.

It means short sentences.

It means shorter paragraphs.

It means good topical sentences.

It means good headlines.

It means accuracy and fair representation of the content of quoted material.

It means using simple words, so your reader doesn’t need a dictionary to understand what you mean.

It means telling a story in a way that creates the image of events in the reader’s eye.

It means more, but these are good starting points.