More clients than ever are seeking legal services online, and the market is growing every day with new competitors—online companies such as Legal Zoom, Inc. and “do it yourself” legal kits on the Internet, among them—that are challenging the dominance of the traditional law firm.

Stephanie Kimbro, co-founder of Virtual Law Office software and a virtual law office owner, says in her book Virtual Law Practice that “mainstream legal professionals who have preferred to stick with more traditional law practice methods can no longer turn a blind eye to this change if they wish to remain competitive.”

YourABA recently asked Kimbro to provide some guidance on establishing a virtual presence and best practices for effective e-lawyering.

Just so we all are on the same page, what is a virtual law practice?

Virtual law practice can take many different forms, but the key component is the use of a secure client portal to deliver legal services to clients over the Internet.  The use of technology to deliver legal services to the client is the key to virtual law practice.  A virtual law office has the ability to handle the process of working with clients from the establishment of the attorney-client relationship through to the final rendering of legal services and online payment to the attorney.

A virtual law practice could exist entirely online or as part of a more traditional bricks-and-mortar firm…

Right—a virtual law office may offer only unbundled legal services and be completely web-based, or it could be integrated into a traditional law office structure to serve both existing in-person clients as well as an online client base. 

Virtual law practice may incorporate features that in and of themselves do not create a virtual law office—for example, the use of an unencrypted, e-mail-based “contact us” form on a firm website; renting or sharing a law office space with a virtual receptionist; and having a client extranet or remote access to computers. 

What kind of services do clients want out of a virtual law practice?

Many of the services that online clients are searching for are related to legal needs that can easily be unbundled or handled mostly online before meeting with an attorney in-person. 

Examples include estate planning; business set-up; corporate law; IP legal issues such as patent filing; copyright and trademark; drafting and reviewing contracts; landlord/tenant issues; no-fault divorce; basic legal guidance; and a variety of cases where the client will be a pro se litigant. 

Most practice areas have some services that may be provided to clients online, whether it is unbundled or provided with in-person representation. 

The public is going online to seek legal assistance. They are finding legal service companies that provide some limited services without attorney review.  Virtual law practice permits a licensed attorney to tap into this market for unmet legal needs and help serve the public in a more secure, thorough manner.
 
When considering “Software as a Service”—software accessed over the Internet, rather than a firm’s server—what should lawyers look for in seeking vendors?

It is the attorney’s responsibility to do his or her due diligence in researching the software vendor before using any product to host law office data. When reviewing the vendor’s service level agreement, it is important to look for certain provisions, and if they are not there, to get clarification from the vendor.

An agreement should cover: data return and retention policies; transferring data and compatibility issues; third-party hosting details; server location and geo-redundancy; response time for customer service and tech support; infrastructure to support growth; and costs.

Security is also paramount, and agreements should ensure end-to-end data encryption.

Also, related to that, the attorney should understand how the vendor handles the confidentiality of law office data. Who has access? How are government and civil search and seizure actions handled? How is a breach of confidentiality handled?

Attorneys might want to review the recent PA FEO 2010-200 (2010) or the proposed NC FEO 7 (2010) for additional potential questions for reviewing software vendors.

What are some of the Model Rules to consider when developing a virtual law practice?

The rules for website development are the same for a virtual law practice as for a traditional law office website.  However, with a virtual law office, the website is often the front door to the attorney’s law practice, so it is critical that the site contain content that educates the prospective client and is not misleading.
 
The Model Rules that are most important for the attorney to consider when developing a virtual law practice include ABA Model Rules 7.1, 7.2, 7.3, 7.4 and 7.5, regarding advertising of legal services, updated in 2002 to cover advertising by electronic communication; Model Rule 1.18, “Client-Lawyer Relationship: Duties to Prospective Client;” Model Rule 5.5, regarding the unauthorized practice of law and multijurisdictional law practice; and Model Rule 1.6 (a) on information confidentiality, in particular, comments 16 and 17.  Comment 17 provides that lawyers must take “reasonable precautions” to safeguard confidential information and prevent it from going to unintended recipients during transmission.

Many state bar rules of professional conduct and ethics opinions regarding electronic communication were drafted only with e-mail in mind.  Most e-mail is unencrypted, and therefore not as secure as a virtual law office that has end-to-end encryption.  Attorneys should interpret the existing rules to fit with current technology and follow the “reasonable precaution” standard based on the level of security and technology that is available for their practice today.

What are some mistakes that lawyers make in establishing a virtual presence?

Attorneys may incorrectly assume that if they build a virtual law office website and have a secure client portal that their investment will quickly result in paying online clients.  Establishing an online client base, especially for a completely web-based practice, takes a good deal of time and consistency to build a brand for the attorney and his virtual practice.  Starting a virtual practice should be treated no different than hanging a traditional shingle on a new law office, in terms of startup expectations. 

That said, some attorneys may need to be careful about how zealously they market their virtual law office online.  With the ease of use of online social networking and media, it may be tempting to cross the line in communicating with prospective clients online.  Careful attention should be paid to avoiding unintended attorney-client relationships when using online social media applications. 

Above all, a virtual law practice is a professional law practice operated by a licensed attorney, and should provide high-quality legal services and abide by the best standards of professional conduct, regardless of the technology used or the form of legal services delivered online.

Good customer service is critical to obtaining future business. What are some best practices for good customer service?

An attorney operating a virtual law practice needs to remember to add the human element to the online delivery of legal services.  Technology is used to streamline much of the workflow and administrative tasks, leaving more time for the attorney to develop a relationship with her clients through communication on her secure client portal. 

The efficiency and convenience of the virtual law office with 24/7 access to case matters provide clients with a high level of customer service. The virtual attorney should employ best practices, such as having a response policy that lets the online client know when he can expect to receive a response from the attorney on the virtual law office.  After delivering legal services online, the attorney can check back in with the online client to make sure no additional services are needed, and that she does not have any questions or concerns related to her case.

What’s the best method for billing online legal services? What if that virtual practice has a bricks-and-mortar presence that already uses the billable hour? And related to that, should those prices be listed online?

Value billing or fixed-fee billing works well with online legal services; many prospective online clients specifically log on seeking legal services where they will have a fixed fee that they can budget. 

A virtual law practice can use a variety of billing methods, including the billable hour, fixed fee, recurring billing, pro bono and different combinations of these methods. 

For example, with some of my online clients I will start out a project with a fixed fee and in the online engagement agreement state that if the scope of the project exceeds “x,” then I will revert to my billable hour fee.  If a virtual office is incorporated into a traditional firm that uses the billable hour, the firm may decide to offer fixed-fee unbundled legal services online and continue to use the billable hour method with in-person existing clients. 

Some firms will list sample fixed fee prices online, but it really depends on the structure of the virtual law practice and whether the firm will be focused on fixed, unbundled services online or work on a case-by-case basis in different practice areas.  Sometimes listing sample prices online can be useful to let prospective clients know what to expect in terms of fees before they register. 

The key to any form of online billing is making sure that the online attorney-client relationship is clearly formed through an online engagement agreement, whether a click-wrap agreement or other method, and that the attorney clearly defines the scope of the legal services to be delivered online.  For the traditional firm with a virtual law office component, the firm may want to include in its written and online engagement letters a provision that specifically defines how the technology will be used with that client to communicate and how that might affect the billing for legal services.

How can virtual lawyers avoid establishing unintended attorney-client relationships?  

There are several ways to avoid establishing an unintended lawyer-client relationship. First, the firm’s virtual law office website should have a description of its technology and how it is used to deliver legal services online.  The standard disclaimers that any firm website has about not providing legal services through the general content of the site should be clearly noted on the site, and in the terms and conditions posted on there. 

Second, before a prospective client can even request a legal service or start a communication with the firm, she should be required to register on the client portal.  The registration process should contain a click-wrap agreement that lays out the nature of the virtual law office.  When the prospective client registers, she is automatically given the message that the attorney will respond to her legal request within a certain period of time. 

When the attorney decides to handle the matter, there is a process to establish the online attorney-client relationship and define the scope of services to be handled online.  A virtual law practice is different from a “contact us” form on a website, e-mail communication or other quick electronic exchange between an attorney and a prospective client.  

All of these combined steps should be in place to avoid establishing unintended attorney-client relationships. 

Any parting advice for lawyers seeking to establish a virtual practice?

Determine ahead of time the structure of your virtual law practice and the form of the legal services to be delivered online that will work best for your firm and practice areas.  Know your own comfort level with technology, and whether you have confidence in your ability to adequately research an SaaS provider and keep up to date with the technology and security issues that are necessary to comply with best practices for the daily operation of a virtual law office.

 “e-Lawyering Expert: Stay Competitive with a Virtual Law Practice” is from the Dec. 2010 issue of YourABA, a e-newsletter for ABA members.

For lawyers providing bankruptcy assistance to consumers and small businesses, the U.S. Supreme Court’s ruling in Milavetz, Gallop & Milavetz v. United States in March provided some much-needed clarification on their obligations under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. A recent CLE, “Are you a Debt Relief Agency? The Consequences of Milavetz, Gallop & Milavetz v. U.S.,” brought together a panel of experts to discuss the Court’s ruling and its implications.

Panelist Alan S. Milavetz of Milavetz, Gallop & Milavetz, who litigated the case, fought against the inclusion of lawyers in the debt relief agency provisions of the law. “We were concerned about how we would be able to provide the advice to our clients that they would need,” he recalled, saying that Section 526(a) forbids “debt relief agencies” such as his law firm from advising consumers to incur more debt in contemplation of bankruptcy.

In its March ruling, the Court held that those provisions applied to lawyers, and construed them to preserve the ability of lawyers to talk freely with their clients about incurring debt. The Court clarified that the law only limits lawyers from improperly advising clients to load up on debt in bad faith prior to bankruptcy, according to panelists.

In its reading of the statute, the Court simply prohibited what was already prohibited, said panelist Craig Goldblatt of WilmerHale, who was an author of the ABA amicus brief on the Milavetz case. He explained that the Court cited Model Rule 1.2(d), which prohibits lawyers from advising clients to engage in fraudulent activities, while it also acknowledged the importance of the attorney-client relationship, and the need for fostering robust, frank discussions between clients and their attorneys.

The Court also made clear that the provisions apply only to certain debtor’s lawyers. This was important because the statute, as written, could have been construed to apply to lawyers representing creditors in bankruptcy, if the clients met the statutory definition of an “assisted person,” even though they were not, themselves, filing bankruptcy.

Milavetz also discussed how the advertising and disclosure requirements of Section 528, which were upheld in the Court’s decision, were also troubling. In regard to advertising, Section 528 requires that “debt relief agencies” clearly and conspicuously disclose that they provide bankruptcy assistance services. “We were unsure about what kind of firm uses the term ‘debt relief agency’ and specifically, what kind of language you have to use in your advertising,” said Milavetz.

Pointing out that a “debt relief agency” refers to anyone who provides bankruptcy advice to clients, panelists debated the extent of the advertising disclosures in relation to Yellow Pages advertisements and websites as well as business cards and firm signage.

In regard to websites, Milavetz said, “From my perspective, I see them as a form of advertising. The distinction starts to dissolve when you talk about some of the other items that your firm’s name might be on, like stationary, and even the sign on the side of your building.”

“Is it just information or are you looking for business?” he asked, explaining his test for whether an item needs the required disclosures. “I think it’s advertising if you’re looking for business. You have to say that you are a debt relief agency in that case.”

In addition to Milavitz and Goldblatt, the session featured Larry B. Feinstein of Vortman & Feinstein. Solo practitioner Marc S. Stern moderated the panel.

“Are you a Debt Relief Agency? The Consequences of Milavetz, Gallop & Milavetz v. U.S.” was sponsored by the General Practice, Solo & Small Firm Division and the ABA Center for CLE.

For guidance on the definitions used by the FTC, read “Who Is a Debt Relief Agency Under the Bankruptcy Reform Act,” from the GP Solo newsletter Law Trends & News.

Additional resources on bankruptcy are available at the ABA Webstore.

“Advising on Bankruptcy? What the US Supreme Court Says” is from the May 2010 issue of YourABA, an e-newsletter for ABA members.

In the past few years, ethics scandals have led to stricter rules for lobbying, making it increasingly important for companies engaged in such activities to pay close attention to compliance. In the CLE program “Demystifying Government Affairs for the Corporate Counsel,” moderator Jennifer A. Lee, a former associate with Nielsen Merksamer Parrinello Mueller & Naylor LLP in Marin County, Calif., along with speakers Constance Campanella, Cleta Mitchell and J. Scott Hardin, discussed how companies can best comply with the laws on government affairs work.

“For the corporate legal officer, the challenges of compliance are daunting—and that’s the understatement of the century,” said Campanella, president of Stateside Associates, sharing that more than half of the states have made changes to their lobbying disclosure rules in the past few years.

Campanella reminded listeners that non-compliance not only affects the elected official and the lobbyist—but also the client. “Clients are often swept up in the ethical lapses of the lobbyist as well as the elected officials and candidates whom they support—even though the client has been pristine in their compliance with the laws,” warned Campanella. “So, whom you hire and whom you support should be your first ethical consideration.”

Campanella cautioned on hiring lobbyists through third parties such as brokers, warning that companies may be limited in their ability to know the terms and conditions of the contract, even if the lobbyists are working on their behalf. “It may be legal and it may be technically compliant, but it does present challenges to your ability to enforce your corporate ethical standards.”

Mitchell, partner in the Washington, D.C., office of Foley & Lardner LLP, and a member of the firm’s political law practice, provided some background about filing requirements under the Federal Lobbying Disclosure Act.  Simply hiring a lobbyist does not automatically necessitate registration under the act with either the House of Representatives or Senate.  Mitchell explained that a company must register under the FLDA if it meets three criterion: (1) The company must have spent more than $10,000 on lobbying in one calendar year, (2) one employee must have spent 20 percent or more of his or her time lobbying, and (3) one employee must have two or more “lobbying contacts.”

Further, regarding state and local rules, Mitchell warned that different jurisdictions have different requirements for when companies need to file their lobbying activities, but all are based on some time question, a dollar figure and a lobbying activity, the latter of which can vary significantly.   The definition of “lobbying contacts” varies with state or locality, Mitchell mentioned.

Complying with the law may be confusing, then, but Campanella offered a few tips in doing so. She stressed the value of transparency in all facets of a company’s compliance program. It is also helpful, Campanella pointed out, for a company to maintain written contracts with all government affairs people with whom it works and to invest as many resources as needed to ensure compliance.  If a company is conducting lobbying efforts in multiple jurisdictions—which, of course, means having to be aware of registration requirements in each of the localities—it may become necessary to hire outside counsel to assist

The best compliance systems include management oversight and internal audits, said Campenella. “Setting up a system to audit your own record keeping and that of your retained lobbyist for work performed on your behalf will save a lot of time and stress when you have reporting deadlines to meet.”  Such audits will also help identify systemic problems, she added.

Hardin, associate general counsel of Corporate Affairs and Government Relations for Wal-Mart Stores, Inc., added that it is important for a company to properly scrutinize all workers hired both within the firm and with whom a company has as a third-party relationship.

Panelists also spoke on the issues of political contributions and working effectively with government affairs departments.  Additional resources were provided, among them URLs for the National Conference of State Legislatures and the Federal Election Commission.

The program was sponsored by the Business Law Section Government Affairs Practice Committee and Corporate Counsel Committee and the ABA Center for Continuing Legal Education.

“Lobbying? Awareness of Rules, Transparency Important” is from the May 2010 issue of YourABA, a e-newsletter for ABA members.

Why should companies care about claims being made about their products in social media? According to advertising law expert Andrew Lustigman, companies should care because there is potential liability surrounding those claims.

Lustigman, speaking at “Copyright, Trademark and Advertising in New Media,” during the 2010 Spring Meeting of the Section of Intellectual Property Law, explained that guideline changes from the Federal Trade Commission in December expand what constitutes a “material connection” between an advertiser and endorser.

Companies that pay or provide free product to people who write about their products online, must disclose the material connection between the two parties to consumers, if there is a direct or indirect relationship. Moreover, companies with a material connection to someone who posts his opinions on their products are liable for what that person posts, under section 5 of the Federal Trade Commission Act—even when the post in question is a product review or an opinion on a message board.

The change addresses companies’ increasingly common practice of encouraging third-party reviews of their products to stoke word-of-mouth buzz. While the FTC guideline was obviously adopted to protect consumers, Lustigman expressed concern that the online community is being singled out by the FTC.

“If an online blogger makes a statement and there’s some situation where that person gets some product for free, the person is an endorser. But in traditional media, even though a reviewer may get expensive equipment to write about and keep, there’s no obligation to disclose that material connection,” explained Lustigman.

In addition to disclosing a material connection, companies must also make sure that people making the endorsements are legitimate users of the product they are reviewing and that claims made about product are reasonably substantiated. “You can’t say something indirectly [through a testimonial] that you couldn’t say yourself directly,” said Lustigman.

“It’s very important that you put into place procedures in which you are monitoring what is being said by others about your company and your company products,” urged Lustingman. Companies that locate material that fits the FTC definition of a testimonial should take corrective action, which may include training online posters on the rules.

In addition to the FTC rules on testimonials, the session featured other online intellectual property concerns, including trademark infringement on social media websites.

Besides Lustingman, the panel featured Matthew Asbell of Ladas and Parry, LLP, Matt Robinson of Attributor, Inc., Mike O’Donnell of iCopyright and Maria Pallente of the U.S. Copyright Office.

“Am I liable for a blogger’s review of my products?” is from the May 2010 issue of YourABA, a e-newsletter for ABA members.

With the struggling economy shrinking law firm budgets, diversity programs are sometimes the first to go. Law firms may cut diversity-related initiatives without realizing the negative, long-term effects. A diverse bench and bar stimulates trust in the law from a public perspective. From a business standpoint, diversity can contribute to your firm’s bottom line.

A recent report by the American Bar Association—“Diversity in the Legal Profession: The Next Steps”—suggests that, while budgets may shrink, your diversity initiatives don’t have to suffer. There are many ways to maintain diversity programming in your firm without breaking the bank. Here are a few tips:

Engage
The report suggests finding ways to engage senior members of the firm as vocal and visible champions of inclusiveness. A committee is just one of many ways to incorporate senior members. Committees can oversee diversity recruiting, mentoring and professional development, along with provide natural networking opportunities. This no-cost effort demonstrates commitment to diversity—starting at the top.

Research
It is easy to overlook the research aspect of planning, but its role is critical, offering insight into past successes and failures. Original research and planning can be time consuming and costly, but secondary research is a way to obtain the same information at a fraction of the cost—often it is free. Using secondary research, you are simply gathering relevant information from studies that have been conducted by other organizations. “Diversity in the Legal Profession” is a good place to start. And Google and other search engines are always a great place to gather information from a variety of sources.

Assign
One of the quickest and most inexpensive ways to see your firm’s diversity-sensitivity at work is to ensure that lawyers from underrepresented groups receive access to high-profile client assignments. Not only does this establish goodwill within the firm, but it also is another way to demonstrate your firm’s commitment to diversity.

Participate
Participating in activities geared toward under-represented groups is a great way to stay highly involved in diversity planning with minimal costs. Send firm representatives to recruiting events at schools with diverse populations. Also, hosting or participating in town halls, retreats and other events for minority lawyers shows your firm’s commitment to diversity.

Reward
Compensation is typically an indicator of performance. Tying compensation to each staff person’s advancement of your diversity goals is a surefire way to get your entire staff on-board and involved with your mission.

Overall, diversity planning does not have to involve a significant financial contribution. Instead, it requires a solid commitment. “In the 21st century, the legal profession faces no greater challenge than the imperative to advance diversity throughout our ranks. It is incumbent upon each one of us to do something that will make a real difference,” said Oregon Court of Appeals Judge Ellen F. Rosenblum, chair of the ABA Presidential Commission on Diversity, one of several association entities involved in the diversity report.

For ideas on how to get started, visit the ABA Center for Racial and Ethnic Diversity’s resource page or the Presidential Diversity Initiative page. A copy of the complete “Diversity in the Legal Profession” study can be found here.

“Law Firm Diversity Planning on a Shoestring” is from the March 2010 issue of YourABA, a e-newsletter for ABA members.

With the capacity for storing thousands of books, periodicals and documents, electronic reading devices are increasingly relevant to lawyers.  The ABA Journal reported that the Practising Law Institute is publishing some of its continuing education books for the Kindle e-reader. West is following suit, making its key content accessible on a variety of mobile devices  More recently, blogger Sharon Nelson shared how a fellow lawyer is using his Kindle to show judges demonstrative evidence in court.

With an entry-level price of $259, an e-reader may not be enticing as a recreational reading device; however the price is more easily justified when the technology is used as a roving reference desk for your practice.

For those not in the know, an e-reader, also known as a digital reader or e-book device, is a tool specifically designed to display reading material electronically. Besides Amazon’s Kindle, the Reader Touch Edition by Sony and the IREX iLiad Book Edition are popular examples.

Using a technology known as E Ink® Imaging Film, these devices display text that can be seen easily in direct sun and read at virtually any angle. Because e-readers typically don’t use power unless “pages” are being turned, these devices can go up to two weeks between charges.  Some readers with wireless connectivity can go as long as five days between charges. E-readers typically weigh less than 12 ounces and have a range of display widths that begin at 6 inches. However, with the number of documents that lawyers often have to review, a larger display area may be more comfortable, resulting in greater use. At present only IREX and Amazon offer these larger models.

A few popular e-readers for consideration include:

• iRex Digital Reader DR1000S is targeted to the business user and retails for $859.  The DR1000 is one of the larger document readers, designed to view 8.5-X-11-inch documents on its 10.2-inch display. Its large display size makes it amenable to read e-mail, PDFs, Internet pages and other digital material.

This reader also has annotation capability for note taking and includes a 1 GB removable SD card, with the capacity for larger ones.  At a hefty 20.1 oz., it is a solid piece of equipment.  This model requires a USB connection to a PC, as it has no wireless connectivity.   It has a recharging time of five hours, using a USB connection to a powered computer.

The device supports the following formats: PDF, TXT, HTML, Mobipocket PRC, JPEG, PNG, GIF, TIFF and BMP. It also includes access to the “Mobipocket” collection of more than 100,000 digital books.

The DR1000S is a sound alternative to printing and transporting large volumes of business documents, and is available for purchase in the United States at eReader Outfitters.

• Kindle DX by Amazon retails for $489.  It has a 9.7-inch display, 3G wireless connectivity and includes access to more than 360,000 books, newspapers, magazines and blogs at no additional charge through Amazon.

Its 4 GB internal memory claims to hold up to 3,500 books, periodicals and documents, but its memory is not expandable.  It weighs 18.9 ounces and fully charges in approximately four hours.  On a single charge, the Kindle DX allows for up to four days of use, and is re-charged using a USB connection to a computer.

The Kindle supports Amazon’s proprietary AZW file format as well as the PDF, TXT, Audible (formats 4, Audible Enhanced (AAX)), MP3, unprotected MOBI and native PRC formats.  Through conversion, it also supports HTML, DOC, RTF, JPEG, GIF, PNG and BMP files.

The Kindle is available for purchase through Amazon.

• Not presently available, but highly anticipated for its generous size is The QUE eReader by German company Plastic Logic. Scheduled to debut at the Consumer Electronics Show in Las Vegas on Jan. 7, the device will have 3G wireless capabilities through AT&T, with content provided by Barnes & Noble.  Ebook-reader-guide.com reports that the QUE prototype measures 8.5 x 11 inches, is 3/10 of an inch thick with a display size of 10.7 inches.

Besides the portability of a law library, using a digital reader in lieu of printed periodicals, newspapers and documents offers environmental benefits. It may offer cost savings, too. Lawyers subscribing to PLI’s digital editions will receive a 20 percent discount over its bound volumes.

“The portable legal library: Lawyers and e-readers” is from the November 2009 issue of YourABA, an e-newsletter for ABA members.

Expert witnesses can make or break a case, but many lawyers inadvertently destroy their experts’ credibility. In the teleconference “Ten Ways That Attorneys Kill Their Own Experts,” panelists discussed common bad habits of lawyers that derail their experts and the ways to avoid them.

Short notice requests: The most frequent way lawyers hurt the quality of their experts’ testimony is finding their experts at the last minute. Many of these experts say they cringe when they get a call from a lawyer needing to designate an expert within a couple of hours. A short time span does not allow enough time for experts to familiarize themselves with the evidence and prepare for their deposition.

Inadequate budgets: Many lawyers set aside only a small budget for experts or agree with their clients to set a flat retainer fee. That may not be enough money for experts to get the appropriate resources they need to formulate opinions that withstand the opposition’s cross-examination. Be realistic about costs and don’t negotiate down to a client’s budget, if it will hurt the quality of an expert’s testimony.

Assumptions without evidence: It is common for lawyers to suggest that their experts incorporate certain assumptions when formulating their opinions, but evidence must support these assumptions. Unreasonable assumptions lead experts to deliver unsupportable hypotheticals that smart opposing counsel will shoot down quickly.

Introducing bias: Many lawyers expose their experts to toxic influences that may bias them—a big mistake. For instance, in divorce cases, lawyers should ensure their experts and clients do not speak with one another as their interaction could result in sympathetic experts who subconsciously integrate bias in their testimony.

Ignoring experts’ input: Preparing expert witness designations without soliciting the experts’ input is another mistake. It can be a fatal blow to witness testimony if the scope of the designation is narrower than the expert’s testimony—a judge may rule to exclude it upon request of the opposing counsel.

Discovery process mistakes: Many lawyers allow the discovery cutoff date to pass without first obtaining their experts’ wish list. Experts need certain documents to formulate professional opinions—therefore lawyers must ensure they include their experts in the discovery process in order to build solid testimony.

Experts outside their comfort zone: Asking witnesses to testify about issues outside the scope of their expertise is another no-no. Lawyers must remember that their opposition is trying to hurt the credibility of their case, so they should make sure their experts can verify their testimony through their professional knowledge of the situation at hand and their professional credentials.

Other ways in which lawyers set their experts up for failure: providing an expert with a distillation of the evidence; accepting a stipulation to an expert’s qualifications; and allowing for direct examination on Friday and cross-examination on Monday. Allowing the opposing counsel an entire weekend to prepare for the expert’s cross-examination is just bad planning and gives the opponents an advantage in finding loopholes in the case.

The CLE was sponsored by the Section of Family Law and the Center for CLE. Presenters included: Michael Kaplan, principal of Kaplan Abraham Burkert Associates; Carlton R. Marcyan, senior partner and executive committee chair of Schiller DuCanto & Fleck LLP; and moderator Peter M. Walzer, founding partner, Walzer & Melcher LLP, who is also on the Legal Education Committee and the Publications Board of the Section of Family Law.

“Ten ways lawyers kill their own experts” is from the October 2009 issue of YourABA, an e-newsletter for ABA members.

“Clients are customers, and customers are more knowledgeable, more diverse and more demanding. They are kings and queens of the new economy,” said Stuart A. Forsyth, keynoter at the 2009 Fall Leadership Meeting of the Section Officers Conference. Forsyth, principal of The Legal Futurist, said the practice of law is changing rapidly and its future is being shaped by client demands.

Clients are looking for lower cost services because of the bad economy, according to Forsyth, whose consulting practice is based in San Diego. At the same time, he maintains, the furnishing of legal services online and the public’s increased access to legal information on the Internet are further evolving clients’ expectations for lower costs, as well as affecting their expectations for service delivery.

“People don’t think they can afford legal services. Right now we’re only serving the very poor and the very rich. We’re becoming less relevant to the public in the middle. If you become irrelevant no one cares,” said Forsyth.

With clients perceiving a misalignment between their expectations and the cost for delivering legal services, Forsyth noted that public respect for the law and the legal profession is eroding and lawyers themselves aren’t doing much to stop it.

“As lawyers,” Forsyth said, “we are taught to see in specialties. We are not taught to see in breadth, vision or connection. We’re trained to look to the past. We’re moving forward by steering in the wake.”

Among other trends, Forsyth sees more consolidation in the field of law as client expectations continue to shift, and as technology continues to globalize and standardize law practice. Citing America’s population boom among racial and ethnic minorities, particularly Hispanics, Forsyth said that a shift in the racial majority would be an additional factor influencing the future of law practice.

In light of these trends, Forsyth urged lawyers to reinvent their practices with technology and changing demographics in the population in mind.

“What guarantees success today will not guarantee success tomorrow,” concluded Forsyth.

“Futurist projects vision of tomorrow’s legal profession” is from the October 2009 issue of YourABA, an e-newsletter for ABA members.

While it may seem as if every law firm is struggling and reducing staff, many firms remain stable and some are even excelling—we just don’t hear about them in the news. How are they accomplishing their success? Julie A. Fleming, founder of Life at the Bar LLC, answered the question during a recent CLE program, “Seven Secrets Every Lawyer Must Know to Thrive, Even in a Recession.”

The first of the seven secrets is: Don’t get sucked into the news. It is important to stay informed, but if you focus on the negative news of layoffs, it might become a self-fulfilling prophecy. Rather than pay attention to things over which you have no control, spend time adapting your expertise and services to the changing economy.

This brings us to secret number two: Be ruthless with your time. This means being effective in what you do and making sure that what you are doing is moving you toward your set goals and objectives. Be sure to pay attention to tasks that are both important and urgent. Setting goals and working on a professional development plan may never be “urgent” but they are important. Make time for them.

Secret three is to develop good listening skills. Clients often feel that when lawyers listen, it’s as if they are skimming a book, only paying attention to the highlights. The best business developers focus on what their audience is saying, paying attention to tone, speed of delivery, word choice and non-verbal communication cues.

Secret four is to actively network. You want to position yourself strategically for success by meeting others who can help you. Ask yourself: Who do I want to meet in order to reach my goals? What steps can I take once I meet those people? When introducing yourself, make sure you highlight something that differentiates you and your practice.

Secret five is to innovate. Figure out how you can creatively improve your firm’s structure and services. For example, offer a flat rate on some services, take time to educate clients on the risks involved in this type of economy, or be willing to negotiate an unusual fee structure to help a struggling client. Innovation requires listening to the needs and concerns of your best clients.

The next secret: Understand your clients. Lawyers don’t always fully grasp how the specific issue on which they are representing a client fits into the bigger picture of their client’s business. Take time off the billable hour to learn from your clients. What are their top concerns, realizations and projections in the current economy?

It’s also important to invest in ongoing education opportunities such as CLEs and skills training. Although you may be reluctant to spend the money, now is the most important time to give your staff opportunities to develop additional and unique skills to gain a competitive edge.

Finally, the last secret to remember is: Get connected to people in similar professional situations. Join a rainmaker team that will help create healthy competition and ensure you meet your networking and business development goals. If you want to start your own group from scratch, it is recommended that you not exceed 10 lawyers to keep the group manageable.

Following these “secret” steps may take a lot of time, effort and follow-through, but in the end, the results make the hard work worthwhile.

The CLE was sponsored by the Section of Science & Technology Law, General Practice, Solo & Small Firm Division and the ABA Center for Continuing Legal Education.

“Seven secrets to thrive during a recession” is from the September 2009 issue of YourABA, a e-newsletter for ABA members.

No one needs to be told how important it is to develop business and recruit new clients, especially in this bad economy. But too many lawyers are uncomfortable with selling, and avoid it to the detriment of their business.

YourABA recently spoke with Robert Kohn who—along with Lawrence Kohn—is the author of Selling in Your Comfort Zone: Safe and Effective Strategies for Developing New Clients. Both Kohns are successful marketing and sales consultants.

Before lawyers can discover how they can effectively drum up new business, you say they must first understand their reluctance to sell. Why is that important?

The reluctance to sell is the fundamental issue of our book. If lawyers don’t know why they’re reluctant, they can’t fix it. Our purpose in writing this is to help readers take action.

Understanding the reasons for your reluctance helps you find ways to overcome whatever it is that is blocking you. For example, if it’s your fear of rejection, then you can look for ways that minimize the chance for rejection. If it’s a fear of being perceived as pushy or manipulative, which is a very common concern, then you can look for communication techniques that aren’t pushy or manipulative.

There are a lot of books on selling, but they don’t address the issue of reluctance effectively. They acknowledge that there are obstacles, but don’t give any advice for overcoming them. Instead, they say, “just do it.”

The reality is that our lives are filled with a great number of things we have to do, so it doesn’t take much for a person to avoid a task he doesn’t want to do in the first place – in this case, selling.

After identifying the obstacles to selling, what’s the next step?

Get in the habit of challenging those feelings of reluctance. Rather than not doing something because you feel reluctant, ask yourself why you have that feeling.

In some cases you may find that your feeling is not justified. It may go back to a feeling you had as a child that no longer applies as an adult—for example, you sold cookies to support your local school and you didn’t like the task. But, you’re an adult now. You’re much more knowledgeable, and you’re providing something that is of great value, something that going to have great impact on someone else’s life. There’s a difference in age, mental sophistication and what you’re selling. So, when you experience a feeling reluctance, don’t simply give up. Rather, ask yourself, “What is the reason for my feeling? Is it valid or irrational?”

Maybe you determine that the feeling is valid. Well, if you’re not comfortable with one selling technique, start looking for a different technique that may be more viable. Don’t let what you can’t do stop you from looking for things that you can do.

Public speaking is one of people’s greatest fears. You suggest ways to lessen that fear. Can you tell us a bit about that?

The key here is to focus on not being embarrassed. People are afraid of being judged harshly. For example, a lot of lawyers imagine speaking to a group of their peers at an ABA program. As lawyers, speaking to your peers—especially to those in your practice area—carries a risk. Lawyers fear they will be judged harshly because the other lawyers may be just as knowledgeable, or more so, than them.

One solution is to not to speak before other lawyers. There may be other venues that are more effective for you, where you will be the clear authority. You could speak to a group of prospects, to a group of clients or to the company of one of your clients.

I don’t want to minimize the value of speaking to other lawyers—I think there’s great value to doing so, and it allows one to become a better lawyer. But if you are uncomfortable speaking to your peers, then find other groups.

A second tip is to understand your goal in speaking. A lot of lawyers have an unrealistic expectation of what is required of them as speakers. When they’re thinking about speakers, they may think of Churchill or Lincoln; if they’re comparing themselves to Churchill or Lincoln, there’s a good chance they’re going to come up short.

Ask yourself, “What is the audience’s expectation?” Are they expecting a great orator, or are they looking to gain some valuable information? I’ve attended several programs where I’ve had people from the audience come up to me and say, “If I could get one or two really good tips from this program, it will have been worth my time.” So if that’s what people want, then your goal should be to give lots of good tips.

When you are confident that you are providing your audience with a lot of useful information, you will be less afraid to speak.

A related question—Can you address what you characterize as “the myth of introversion?

This is one of my favorite topics because I am an introvert. My brother and coauthor, Larry, is the extrovert. We both do marketing, we just do it in different ways.

The myth is that introverts are social misfits, that they are unable to sell. The truth is that introverts are often outgoing, but they may have a natural predisposition to want to spend time alone. But that doesn’t preclude them from selling. In fact, many successful business development lawyers I know claim to be shy.

Introverts can sell. They just have to find an environment in which they feel comfortable.

Turning to a different element of selling—How do lawyers go about finding clients?

The key here is to understand where business comes from.

In our experience business comes from developing quality relationships. Lawyers should focus on who their potential clients are, and how to build quality relationships with them over time. It could be a long-term process.

There are two fundamental business development strategies that we teach, and they are “reach” and “frequency.” Reach is the process of meeting new people. There’s a rule that the more people you know, the greater likelihood you are to get business.

If you don’t have a lot of contacts, focus on how to meet people. There are two ways: One way is to ask people you know to introduce you, if you’re comfortable doing so; the other way is to get involved with organizations.

And frequency?

Once you reach people, the second strategy is frequency, the process of staying in touch with people over time. Your goal with frequency is to maintain a consistent, positive presence in the minds of the people you’ve met. So, when the timing is right—when someone either needs your services or wants to refer your services to others—you will be top of mind.

Maintaining that presence might mean one-on-one interaction, such as taking someone to lunch or to a ballgame, or you may offer to give a seminar at their firm. Lawyers should always look at things of value to give to people.

Finally—Do you have any final words of advice for lawyers who know they need to be more active in searching out new clients but who haven’t taken that first step yet?

There are a couple of things I’d like to talk about here.

One is to have a support system in place, someone who will hold you accountable to your goals. It might be a colleague, it might be support staff, a friend or even a marketing coach. The idea is to make a commitment, and have someone who is going to hold your feet to the flames a little bit.

If you don’t have a support system, it’s too easy to let the routine of life and old habits take over.

The other tip is to look for selling methods that meet the standard of being both “safe and effective.” We define “safe” as those things that are appropriate to one’s personality; we define “effective” as things that are a good use of one’s time because they are likely to pay off.

Some of these things might include jotting down ideas about an article that you’ll write further down the road, or making a list of names you’ll contact—a target list. These things are both safe and effective because they’re easy, and they’re effective. Getting clear about what you want to do increases the likelihood of taking action.

“Develop new clients in your comfort zone” is from the September 2009 issue of YourABA, an e-newsletter for ABA members.