Per-diem Basics: Bad is Good

Bad is good. That’s the philosophy behind the “per diem” part of my law practice. One might call it a “niche” practice.  I don’t feel so lofty about it, so I call it what it is, “Queens Court Appearances.” It works because of a basic business truth:  Success can be as simple as finding and filling a demand in the marketplace.  Put another way, making court appearances in Queens is so bad that lawyers pay me to do it for them.

Essentially, I (or my associates) make court appearances on any kind of civil case in Queens County. This includes both State Supreme Court and NY City Civil Court.  “Civil” is a word to distinguish these cases from “criminal,” another beast altogether.

Not much is civil about these cases.  Supreme Court is an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.  Civil Court is mostly credit card collection cases, defaulted car loans, and post Housing Court collection cases.  I usually appear on behalf of plaintiff firms.

In Supreme Court there are so many cases that it takes many months to get a trial date once you are “on the calendar.” However, before a case can even go on the calendar, all “discovery” must be completed. Of course, someone in the sandbox is always yelling “no fair” about some aspect of the case. The legal way to yell “no fair” is to “make a motion” (yelling on papers) or “demand a conference” (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences.

There are so many motions that Queens recently switched to a “Centralized Motion Part” (the CMP….we love acronyms in the per-diem world). All the motions are now called at 2:15 PM Monday – Thursday (and 11 AM on Friday) in one big room.  There are 150 – 200 motions every day, with the calendar going till past 4 PM.  Pretty bad stuff if you are a lawyer in Manhattan or Long Island with a Queens case.  Of course, in the per-diem world, bad is good.  If you are doing per-diem work, things that are problematical for attorneys of record are good for you…..if you want to do the appearances.

What else is bad?  PC’s (preliminary conferences) where you find your adversary by yelling out the case in the hall, fill out an Order in the same cramped hallway, and then wait on line to hand it in.  Oh, and your adversaries are insurance company lawyers who have 15 cases so they “get to you when they get to you.” Ditto for the CC’s (Compliance Conferences).  And, Queens has no attorney lounge, no food or beverages are allowed in the building, and Jamaica has bad parking.

I’ve had attorneys tell me they wanted to do a per-diem business in Nassau County.  I tell them it won’t work:  Not enough volume, plus there’s a free parking lot, an attorney lounge, and it’s basically pretty nice.  In most firms the lawyers want to go to Nassau County and give Queens to the per-diems.

All these motions and PC’s and CC’s are the preliminaries.  Many months and many appearances later, all the legal jousting ends and the case goes on the calendar, heading towards the cholesterol of the court system, a jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep billing.

There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a “TAP part”. It sounds cool…..”Meet me in TAP. Who’s sitting in TAP?  Can I get an adjournment in TAP? Can you tap me if I fall asleep in TAP?”

The TAP Judge’s job is to handle the onslaught of trial ready cases. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. But in the “Queens Court Appearances” business, it’s just another aspect of the per-diem world.

Many lawyers starting in practice are tempted to do per-diem work, and it CAN be helpful in building a practice.  That being said, one should look at it with an entrepreneurial eye, and determine whether it makes business sense to do it.  There are several per-diem business models, as follows:

  1. Per-diem anywhere.  Just like it sounds, someone calls, you take the job…whatever and wherever.  In the long term this doesn’t work well.  If you have one appearance in a place that’s bad, bad is bad, and you can’t make any money.  Per-diem works much better when you can make multiple appearances in the same Court.
  2. Per-diem agencies.  There are quite a few of these.  Anyone who does per-diem can try to do some farming out, and make something off the farmed out work.  The agencies are also worth knowing about, because you can supplement your own per-diem appearances by working for them.
  3. Per-diem in one Courthouse.  I think this is the best model.  You can do volume, you can price it right (it’s a competitive business and the lawyer/clients price shop), you get to know the Clerks and Judges and adversaries, and you know where to park and eat lunch.  Also, when someone calls, you can almost always say “yes” to the job, which is the main thing most calendar clerks want.  If you think they keep calling because your work was great, think again.  They call because you say “yes”.

If I were looking to get into per-diem in a meaningful way, I would seek out Courts where “bad is good” would apply.  I would give serious consideration to Housing Court, Family Court, Small Claims Court, and Criminal Court.  I’ve looked at “per-diem depositions” as a business, and it could work, IF one did it right.  I imagine someone could do 341 bankruptcy hearings on a per-diem basis.  I do some Surrogates Court per-diem in Queens, because I am already there on my own cases, but I don’t seek volume.  I also won’t go unless the attorneys give me thorough prep.

In the per-diem world, your clients are other attorneys. All in all, and for many reasons, this is easier than regular clients. The assignments are mutually understood, the fees are agreed, and they usually (but not always) pay on time.  Last but not least, each assignment is well defined and has a clear ending.  Contrast that with your typical client intense matter!

Next post – “Pearls of Per-Diem”

All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.

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