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2020 GLSA Puerto Rico Conference Preview with Matt Hahne and Annette Waggoner

 

Please join Group Legal Services Association as it joins ABA GP Solo for the Annual meeting of GLSA, April 29-May 2, 2020.

 

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Annual Meeting of GLSA

Live Interview with Tessa Manuello: Why Legal Design Matters and What You Should Do About It

Effective Law Firm Management Doesn’t Have to Be Difficult

When you’re running your own law firm, you’re under a lot of pressure. Not only must you ensure that you meet the needs of your clients, you must also appropriately market your practice to attract new business and manage the day-to-day business aspects. It’s certainly a lot to consider given we only have so many hours in a day. The good news is that while it is a lot of work, effective law firm management doesn’t have to be difficult.

Here’s how you can simplify the process.

Proper Planning Prevents Problems

Effective law firm management is automatically easier when you go through the process of creating a full management plan. As the saying goes, proper planning prevents problems. A law firm management plan includes several components:

• Short term goals
• Long term goals
• How you plan to meet the needs of your clients
• How and when office supplies should be handled
• The responsibilities of key law firm members
• Your hiring and firing policy
• An employee handbook
• Technology guidelines (including whether employees may bring and use their own devices)
• Marketing
• Timekeeping and billing procedures

Of course, that’s just a small sampling of what should be included in an effective law firm management plan. You may already be feeling the pressure of creating and implementing the plan. Don’t worry, though. Now it’s time for us to explain how you can make the entire process easier.

Get Feedback from Your Clients

One of the easiest and best ways to determine whether your law firm is meeting the needs of clients is to ask. If you took law firm management or even read a book related to the subject, you’ll most likely remember a law firm management theory known as total quality management (TQM). Under this theory, it is believed that clients will pay more for quality service. And clients define what quality means.

So, ask your clients. Where did your law firm meet their expectations? Where did it fall short? Is there anything that they feel could be improved? You can design your own questions. They can be provided in a manner that allows clients to respond without providing their identity. You could also call and ask these questions as a follow-up after services are rendered.

You can take the feedback from clients and integrate it into your law firm management plan to improve your services and operations.

Effective Law Firm Management Is Easier with the Right Tools

Long gone are the days of clunky intranet computers and checking a paper tickler file (and hoping that things were appropriately filed and labeled). We no longer have to dig through boxes and boxes of files in a giant storage closet or hope that paper messages aren’t lost. Technology has simplified effective law firm management.

Legal tech is nothing to be afraid of, either. There are a lot of free or low-cost options you can use as well. You can start simple by:

• Making use of your digital calendar. This simple tip can help you better track your deadlines, plan meetings, and keep track of your scheduled appointments. If you plan to use or already use legal practice management (LPM) software, look to see if the docketing and calendaring feature integrate with your digital calendar of choice. Then, you can update the LPM or your digital calendar and it should populate the other. Side note: it is important for you to check to ensure that everything is indeed feeding over.
• Go paperless or paperlite. Start using digital document storage management (DMS) that allows you to properly organize your documents (both by matter and your templates). Choose a DMS with a good search function and that integrates with your email so that you can easily store emails and their attachments. A DMS can make it easier and more secure for you to share documents with your clients.
• Consider using an online appointment calendar. Programs like Acuity Scheduling make it easier for potential clients to schedule appointments with you. Many appointment calendars may be integrated into your website, but it may take a professional to help you make sure it works.
• Automate what you can. Automation, much like AI as a whole, has a bad reputation. This isn’t about taking away anyone’s job. You still need to ensure that the documents created or tasks performed are appropriate. Chatbots and even some LPMs can be used to automate the creation of certain commonly used documents.

Hire the Right People and Delegate

As a lawyer, your time is best used on the tasks that only licensed attorneys are allowed to perform. For effective law firm management, hire the right people. These are people who are technologically adept. You want to hire people who have the desire and drive to meet goals and make your clients happy. And after you hire your team? Delegate appropriately. Keep in mind that this does not mean that you can just turn your back on everything happening. You must fulfill your ethical obligation of providing appropriate supervision. Be available when there are questions or someone needs clarity. Be open when your team has comments or suggestions related to workflow and the office environment. Remember that they’re in the trenches every day. It’s normal (and good) that they have insight you can use.

Don’t micromanage your people. You have plenty to do. You must trust that you’ve put in the work and provided the right incentives to attract and keep the best people for your law firm’s future growth.

Simple Is Good!

In a time where we have more and more technology at our fingertips, it’s important to keep law firm management simple. Find the right tools and the right people who can help take your law firm to the next level!

WTH is Musterfeststellungskilage and how does that affect Class action lawsuits in the EU

Musterfeststellungskilage and how does this affect the future of Class action lawsuits in the E.U.?

I had the privilege of participating and speaking in Berlin at the 50^th Congress of RIAD (now known as Legal Protection Insurance LPI).  The Congress addressed the (European Union) E.U.’s proposal for the new directive repealing Directive 2009/22/EC.  The E.U. parliament is considering replacing this directive with a new directive to aid and encourage Collective redress/ class action where the current directive has failed.  There are currently 8 member countries in the E.U. that have no form of class action in their law.

So, what is Musterfeststellungskilage besides an impossible word to pronounce for this Texan?  This is a case ruled by the high court in Germany that establishes the fixed cap of attorney fees at 8000 euro for the liability declaratory portion of the case.   This case doesn’t affect the quantum proceeding of the lawsuit itself.   Most E.U. countries do not have allow for contingency fee arrangement to compensate attorneys for their work on class action cases.  The quantum portion would have to be prosecuted and funded by private funders.  This is not the case in the U.S. where class action cases seem to be on the rise.

My personal experience with the U.S. model is that it’s predatorial and provides little justice for the litigants in general.  The U.S. model appears to be profit motivated for lawyers.  For example, cases like those against Subway and KFC that provided most of the proceeds to the prosecuting law firms.  Law firms that specialize in prosecuting these class actions often target situations for profit.   The current (round-up Monsanto case) is a good example of targeting by law firms.  At the same time, Class actions in the U.S. may be the only means of providing any compensation for these victims.

I participated on a panel in Berlin. The German panel members seem to be the most opposed to any use of a contingency fee for prosecuting these cases.  This current scheme in Europe is to prosecute the liability declaratory action first, then prosecute the quantum relief as a separate action afterwards with private funding to prosecute the quantum portion of the case.  This may prove burdensome with an additional delay to seek compensation for the litigant.  My biggest concern is the lack of incentive for attorneys to prosecute these collective redress cases in the E.U. The U.S. model incentive may provide too much incentive without providing the relief for the litigants.  On other hand, this E.U. two-step model, with limited attorneys fee will provide little or no incentive for these lawsuits to be prosecuted.

Let me illustrate my point with the history of two statutes in Texas.  I’ll prove changing or altering the Attorney fees incentive alone has affected the outcome of litigation. Texas adopted the common law legal system when the state entered the Union in 1845.  Most counties in Europe use the Civil Code System instead of the Common law system as developed in the U.K. Ireland, Australia, South Africa and the U.S.  Therefore, many causes of action for negligence fail at providing any real solution for litigants in Texas.  Common law causes of action do not provide attorney’s fees, nor provide incentives for prosecuting deceptive trade practice cases in Texas.

So, Texas passed the Texas Deceptive Trade Practice Act DTP years ago to provide access to justice for these violations.  This statute was drafted very much like many E.U. directives.  The Statute provides for specific notice to all parties for attorney fees.  The act is specific an provides 25 different types of deceptive trade practices to be prosecuted in Texas State courts.  This act further provides for treble damages for litigants in cases where abuse is found.   Attorney fees are provided along with possible mental anguish and other compensatory claims for litigants for egregious acts.   These built in incentives have allowed for specialty law firms to develop in Texas to prosecute these cases.  As a result, consumers are protected where no such protection existed in Common law.

Let’s examine history of another statute that was created and amended that had a different result.  The workers compensation Act was passed in Texas to provide protection for Workers and companies for industrial accidents.  These industrial accident cases cannot be effectively prosecuted or settled in a Common law system.   So, the Industrial accident board was created in Texas many years ago.  This statue, like the DTPA was created very much like an E.U. directive.  The rights of the parties and procedure are spelled out in the statute.  A special administrative court was created to prosecute these claims.  Until 1989, attorneys could charge a contingency fee up to 25% of the claim.  Texas is an oil driven business State.  And Houston is the 3^rd largest port in the U.S. moving most of the oil for refining in this county.   Therefore, Texas has a history of a high number of industrial accidents.

Since Texas has had a history of industrial accidents, in 1989, the Insurance lobby took on the task to see how they could reduce the scheduled payouts for these claims.  Insurance lobby passed an amendment to the Workers Compensation statute removing the 25% contingency fee.  The new statute replaced the contingency fee provision with a requirement that law firms be paid on an hourly rate for fees proved in court.  The net result drastically reduced the compensation for law firms for Workers comp cases.  Cases that may have netted attorney fees of $ 25, 000.00 were now reduced to maybe earning $ 1500.00 for a few hours of work proved in court on the same type of case.  Worker’s comp cases occurring after 1989 saw a mass exodus of attorneys. Most personal injury lawyers no longer accept these cases because of the low yield for the cost of prosecuting.  Since 1989, there became a need for attorneys to prosecute these cases. But the lack of incentive has almost eliminated the practice leaving litigants without representation on these matters.

I believe the new directive may suffer because of the low yield for lawyers.  The attorneys attending the Congress seem to come to a consensus that the E.U. directive will not attract attorneys to prosecute this litigation.  This new E.U. directive will pass, but may not get off the ground.  It’s too restrictive.  Europe has a built-in mechanism to avoid abuse with the rule of “Loser pays”.   The U.S. does not have a “Loser pays” rule.  I don’t believe the E.U. directive needs to be so restrictive in how attorneys are compensated. I believe the two-step procedure of prosecuting a declaratory action first, then prosecute the quantum afterwards will create too much delay to affect a positive outcome for the claimants.   Justice delayed is justice denied.  On the other hand, I do understand something is better than nothing.   When the E.U. passes the directive, then 8 EU counties with no collective redress will have some means to start an access to justice program for litigants that previously had no means of support.  It’s a start.  Only time will tell.

Back to Basics: Email Security Best Practices for Law Firms

Data safety is an important concept for law firms, and for good reason. Most jurisdictions have rules for lawyers that explain the bare minimum of what they are required to do to protect client data. Then, throw in legal technology options, cloud drives, document sharing, social media use, servers, the ability to accept online payments…data safety entails a lot of considerations. While those are certainly important, it seems that the conversation has dropped away from technology we use every day: email. Email security is an important concept because it is still used to gain information (including login credentials) for critical systems. If you and your law firm employees don’t know and use email security best practices, your data remains at risk regardless of the other data protection safeguards implemented.

Remember You’re Dealing with Sensitive Information

While we’d all love to believe that the disclaimer placed at the bottom of law firm emails that state the email is intended for a specific recipient and should be destroyed if it is received by a non-authorized party is something that we all follow. Mistakes happen when we’re adding email recipients. We don’t always double check. We also don’t always double check that we’re adding the appropriate document. That’s why our first email security best practices tip is to always remember you are dealing with sensitive information.

Ensure that you’re sending the right document to the right recipient. You may even consider encrypting your email in certain situations. Gmail and Outlook (the two most common email programs) both make email encryption simple.

Use a Secure Password Generator

We know this won’t be the most popular email safety best practices tip we give, but it is an important one. A secure password generator creates a random, secure password that you can use for your email (or any other website). Using the same password for every login is a dangerous practice. If someone can guess your password or gains access to it somehow, you could face a lot of problems.

We know that the main concern with using a randomly generated secure password is whether you’ll be able to remember it. Using a program such as LastPass allows you to set one master password and then generate secure passwords that LastPass will remember for you. However, programs like LastPass aren’t without their flaws. If you can’t remember your master password, you can try to reset it, but if your data becomes corrupted, you will likely lose all of your password. (I learned from personal experience several years back. Despite contacting LastPass, my account could never be recovered because, according to them, all of the data was corrupted.)

Don’t Play “Getting to Know You” Facebook Games

This may not seem like an email security best practices tip, but it is. They look harmless: first pet, first car, first job, favorite teacher, elementary school. All of those inquiries (and several others made in those “games”) are potential password reset questions. Do not play those games. The answers could be used to reset your email password or even the password to your online bank account.

If you participated in a similar “getting to know you” post on social media, go change your security questions and answers as well as your passwords. And promise us that you’ll never respond to those things again!

Use Two Factor Authorization

Gmail, other email programs, and many other technologies allow you to use two factor authorization. It is an added layer of security for your data. Even if your password is compromised, there is extra security. Examples of two factor authorization include the program sending a text message to your cell phone with a code to enter to finish logging in, a PIN number only you know, or even unlocking your cell phone to finish logging into your email (thanks, Android!). Two factor authorization is one of the more recent email safety best practices that you can use. It’s simple to set up!

Learn How to Find and Understand Email Headers

Phishing still happens. For those that don’t know, phishing is when you receive an official looking email that wants you to “log in and verify your account.” In addition to email, this also happens over the phone. Do not ever provide your account number to anyone calling and stating they are with a certain organization. If they were really with them, they would see the number (or at least the last four) on their screen. They also wouldn’t ask you for your password.

When you open the email (if you open it), you’ll see a little arrow near the “From” email. You can click that and it will give you more information about the email. From here, it’s generally fairly simple to figure out if you’re receiving a legitimate email. And when in doubt, call the company listed in the email and ask if they emailed you for any reason. Don’t call any phone number in the email. Call the official number for the company.

Report phishing emails to your ISP, block the sender, and make sure your entire law firm knows and understands how to spot these dangerous emails.

Use Antivirus Software That Scans Emails and Attachments

Our final email safety best practices tip is to make sure that your law firm uses an antivirus software that scans emails and attachments for dangers. Your IT department or the company with whom you partner for IT services should be able to make an appropriate recommendation for your law firm.

Email Safety Best Practices Are the Backbone of Data Safety

In an ever changing world full of technology, data safety will remain a priority. Regardless of how technology changes, email security best practices will always be needed.

Collective Redress / Class Action

To watch Pat Monks’ video interview on Class Actions and Collective Redress, taken in November 2019 at the Legal Protection International Congress in Berlin, press play below.

Advocates and Counselors

Lawyers are known as Advocates and Counselors.  The advocate is a familiar figure due to popular culture or a visit to the court house. The advocate is the one zealously representing their client’s position in a courtroom.  Advocates research the law and develop facts to support their client’s point of view, then apply those facts to the law, with the goal of helping their client solve a problem.

The lawyer as counselor is less obvious.  The counselors work takes place over the phone or in an office and rarely in the public eye.  In fact, those clients who know their lawyer as a counselor often give them that name because the counselor’s thought out well reasoned legal advice has helped the client avoid a difficult situation.

Most of a lawyer’s job is as a counselor and not an advocate. Like a sport’s team, most of the hard work is at practice and not on the field of play in front of the fans.  Counseling is the ounce of prevention to the advocate’s pound of cure.  The slightest course correction early can help the ship miss the iceberg.  To do so, however, requires the client, as the captain, to recognize his peril early and ask his navigator about a sight course correction.

As a navigator the lawyer as counselor can see things more clearly.  First, we are detached from the situation so we can see things more  objectively.  Second, we have likely seen the same situation before.  Situations that seem mysterious to our clients often appear clear to us. This is not because lawyers are smarter or have better insight. It’s simply because the experienced lawyer has been down this path before and the pitfalls are familiar.  We are legal sherpas and have been to the summit a thousand times.  Sure we can take you to the top of the mountain, we even know the easiest path.  If you want to go it alone we can tell you where the Yeti is, where an avalanche may get you and when the snows will be deepest.

Regrettably, it is rare for a client to call and say “everything is going great just wanted to tell you I’m having a great day.”  Unfortunately, the call usually starts with, “Can my employer/the cops/my ex-wife/husband/neighbor do that?”  The short answer is usually “Well yes, since they did it, but I think what you really want to know is was it legal?  Why don’t you tell me what happened.”

We can’t always give the client the answer they want but we can always give them the answer they need.  Sometimes just knowing how something works or why the bank requires so many documents or what an easement or usufruct is can be very helpful.  We are in the business of providing options.  A good counselor will be able to discuss the pros and cons of different approaches to a problem.  There is always more than on way to climb a tree.

At other times the explanation of how the law will apply to a situation can lead to the preparation of a document or raft of documents.  Finally, the conversation can lead to a discussion of legal rights and the enforcement of same.  In short, trial.  Most of a lawyers day-to-day work is not in trial, despite what popular culture would have you think.  While it is the most dramatic and compelling part of what a lawyer does it is a very small percentage of a lawyer’s time.

Sometimes, however, there is no alternative to solving a client’s problem other than through litigation.  A good lawyer will make sure to discuss and explain the pros and cons of litigation and give the client all of the information they need to be make an informed decision and then do their best to make sure the client’s wishes are carried out to the best of their ability.  A good lawyer will counsel his client on the reality of trial.  Trial can be kabuki theater and/or a roller coaster with ups, downs and nerve wracking unexpected twists and turns.  A good lawyer will do their best to anticipate same but there’s no sure thing in a trial.

There are so many reasons people may be stressed out when facing a legal challenge. It’s a mysterious process and not typical experience for most.  Sometimes, it’s just as simple as being heard – if not in court, then at least by someone who can empathize with you, make you feel better and give you unvarnished advice.

The Difference between European Legal Expense and U.S. Legal Plans

I had the pleasure of being invited to serve on a panel at this year’s RIAD Congress in Berlin, Germany.  RIAD is known as the International Legal Expense Insurers and recently celebrated its 50 anniversary.  Founded in Italy, it serves as the association of 50 legal expense insurance companies from 18 different European countries including South Africa, Canada, and Australia.

This congress was special in that RIAD changed its name and now is simply known as the Legal Protection Insurance (LPI).  This year’s conference was held the same time as the celebration of the 30^th anniversary of fall of the Berlin Wall.  The congress was considering how LPI will deal with the E.U. proposal of the Class Action redress or Class Action lawsuits.  I had the pleasure of co-chairing a breakout session with Christoph Arnet (Switzerland) to discuss attorney’s views of the EU directive.  Finally, I sat on a panel with Sabine Eichner (Germany), Sven Bode (Germany), John Byrne (UK), Dr. Domenik Wendt (Germany) and Thomas Kohlmeier (Germany) wrapping up the varies positions on the Collective redress issue.

I have attended RIAD congresses in Brussels, Montreal, Dublin and finally in Berlin.  And it wasn’t until this Congress that I realized the main difference between European Legal Expense Insurance and Legal Plans in the United States.  It can be summed up in two words “Loser pays”.

Loser pays is the number one difference in U.S. and European law that has charted the progression of legal expense in Europe and Legal Plans in the U.S.    Legal Expense Insurance was founded first in 1917 in France for the drivers of the Les Mans motor car race.  European law did not allow contingency fees for attorney fee reimbursement.  In order to pursue a legal course of action, a litigant had to provide funding for his own attorney up front.  This situation alone, was the foundation of the creation of legal expense insurance companies in Europe.

Over the years, some counties developed some contingency fee or incentive fee arrangements.  It wasn’t until this century that England, Ireland, Holland, and Spain allowed some sort of contingency fee arrangement to compensate attorneys. You would think the development of contingency fees would equate European law with U.S. Law.  But it hasn’t.  The rule that loser automatically pays the other party’s expenses is the reason and the difference in the two bodies of law.  All European countries whether Common law, or Civil code law have had a long rule that the losing party will automatically be accessed and required to pay the winner’s cost and legal expenses.  This rule has prevented many litigants from filing lawsuits out of fear of losing and paying loses.  The U.S. counterpart doesn’t have this automatic rule.  For the most part, a counter claim or cross action is required to initiate the loser of a suit to compensate the winner.

The U.S. tort law was allowed to develop along a free enterprise system with contingency fees.  In the U.S. , lawyers assess accident injury cases as business propositions.  This business contingency relationship is a new thing for some European attorneys.  However, the Loser pay rules still applies in Europe, and has a very limited application in the U.S. on the most outrageous cases.  Therefore, litigants’ have a free reign to sue companies and individuals with legitimate causes of action without fear of paying costs and fees if they lose.

Because of this long-established rule, litigants have been terrified to drive on European roadways without insurance that covers for damages and injury.  The same goes for legal expense insurance that will cover the injured’ s legal expenses for his attorney prosecuting a case, and any costs for depositions or discovery.  This legal expense insurance also covers the cost of any potential loss of a case for the opponent’s attorney fees and costs.  These situations do not currently occur in the United States.  Here in the U.S., the litigant has very little risk involved with a contingency fee agreement.  The costs and the attorney’s fees are deducted upon payment of the claim.  In the event, no counter claim or malfeasance is found on the litigant’s part, the losing party will not be required to pay any losses out of pocket.

The loser pays rule developed the need for Legal expense insurance throughout Europe.  As legal expense Insurance developed over the last 100 years, most of these products started covering other legal services for traffic ticket defense, wills, divorce, and civil actions.

The U.S. legal plan history started 50 years later.  None of the U.S. jurisdictions were saddled with this oppressive “Loser Pays” rule.  Legal plans developed more as Auto club plans developed in this country.  Legal Plans do not pay out of pocket legal expenses.  Nor is there the ongoing threat of paying the winner of any suit legal fees and costs.  The U.S. model developed more as an employee benefit model to cover traffic tickets, wills, divorce and other routine civil actions.  These U.S. plans become a source of access to legal lines for members.  The group plan model allowed large members of a company, or Union to pay discounted monthly fees to a plan that would provide a lawyer for these services.

The loser pays rule caused the European business model to develop independent of the U.S. legal plan model.  The European counties have very high numbers of participation with Legal protection.  In these counties, the consumer attitudes are more equivalent to consumers need to own health insurance in the U.S.  The fear of losing and paying outrageous attorney fees and costs to an opposing litigant is a real concern for EU. Consumers and has been for a century.

On the other hand, American consumers view the relaxed American rule in a different manner.  Legal plans are viewed more like a company’s additional benefit.  But they aren’t viewed in the same light as health insurance.  But this view is changing.  Legal plans are growing in the U.S. And in the areas of commercial drivers’ legal plans and gun owner plans, they are viewed as a necessity to protect the consumer from real legal exposure.  Commercial drivers need plans to provide attorneys to protect their Commercial driver’s license and employment.  And Gun owners need protection to protect their 2^nd Amendment rights to bear arms.  These ongoing daily fears and concerns cause U.S. consumers to view the need for these legal plans more like they view Health insurance.

I doubt that any of the U.S. jurisdictions will ever adopt and pass automatic rules for loser pays. In the event, the insurance lobby or corporations succumb to liberal legislation that adopt loser pays, then European Legal Expense Insurance model would develop in the U.S. because of this new need.  In the meantime, legal plans in the U.S. will develop based on the unique needs of the individuals that have these specific legal problems.