It’s A Brave New World Of Lawyering

Horizon from space

I’ve been thinking a lot about Toya Gavin’s article A New Solo’s Perspective on the Current State of the Business of Law. I am simultaneously encouraged by her vision of a solo/small firm practice that functions very much like any other entrepreneurial business, and disheartened that the same resistance to change I felt when I started writing for Solo Practice University is still there in our profession.

I think a lot of that resistance is born not out of a fear of the unknown, or even out of skepticism regarding change, but rather out of a certain brand of laziness peculiar to lawyers. Change requires that we actually do something about the things that are broken. And we all know what’s broken.

High legal bills have left clients soured at best and disgruntled at worst. Competition in the legal marketplace from LegalZoom and RocketLawyer, for better or worse, means that a good portion of our work has been commoditized: nobody is going to pay a lawyer’s fee if they can fill out an online form and produce a document that, in their mind, is the “same thing.” Lawyers are getting burned out on long hours and lower salaries and high student loan debt. Big Law isn’t hiring as many brand new lawyers straight out of law school, and yet law schools continue to crank out new lawyers en masse. Meanwhile legal practice management and document assembly software is getting pushed to the Cloud, making it more affordable to hang a shingle right out of law school. Oh, and state bar associations are just now figuring out that they need different rules for lawyer advertising on law firm web sites, nevermind social media. Don’t even get me started on e-Discovery.

In short, the marketplace has changed, there is ever more competition for legal business, technology is constantly changing, and an entire generation of solos is rising up without the benefit of a “traditional” associateship at Big Law. And yet, we cling to hourly billing, outdated technology, and lawyer regulations designed for the year 2005. We act like going solo out of law school is de facto malpractice, rather than treating it as a practical reality. We live in an age where information is exchanged freely, and where laws favor such exchanges, and yet we still fight to retain control over every shred of information that passes through our hands.

When are we, as a profession, going to wake up? The fact is, change is already here.

I recently had opposing counsel suggest to me that the only reason I was pursuing my client’s case was that I was racking up legal bills. While I pointed out that what my client paid me was simply none of his business, I also let him know that I billed my client on a flat-fee basis. He stated that I had to be crazy, and that there was no way I could possibly make a living that way. Meanwhile, he dragged his feet in discovery, forcing me to file two separate motions to compel. When his client fired him (for overbilling, I learned – can’t make this stuff up), we finally got the case to mediation. At mediation, the opposing party handed me everything I had been asking for, we had a productive meeting of the minds, and we got the case settled. I asked him why it took so long to get him to the table, and he said, “To be honest, it was my former lawyer. I kept taking his advice.”

That story, in a nutshell, is what I’m talking about. This one lawyer sat there clinging to his old ways: don’t talk to the enemy, don’t share information, bill for every phone call and email and second of research. He was so wrapped up in the zealousness part of zealously representing his client, that he forgot about his client’s best interests. Meanwhile, the world around him had changed. I was asking for electronically stored information as part of discovery and getting frustrated at his lack of cooperation. I billed my client for work performed on each segment of litigation rather than on the number of hours spent, so I also was frustrated at what I saw as time-wasting. I firmly believe that, if not for opposing counsel’s death grip on his old ways of practicing law, we could have gotten the case settled with a phone call two years earlier.

I’ve got a case going right now where I asked opposing counsel to schedule an informal case management conference by telephone. He replied that there was no court order requiring that we have such a conversation, and that he refused to talk to me without such a court order (again – can’t make this stuff up). I’m still trying to figure out what exactly he’s afraid will happen if we communicate. I wonder what his client would have to say about it.

I realize that we have an adversarial system of law, and I am not proposing we change that. I do believe that we have lots to change to get with the times. Our billing models, and the legal economy. Our advertising and the laws regulating lawyer advertising. Our ways of communicating and sharing information with our clients and with each other. I’m not just talking about the adoption of technology. I’m talking about embracing the brave new world our clients live in.


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®.

This entry was posted in Guest Bloggers, Subjective Opinions and tagged Suzanne Meehel, Toya Gavin. Bookmark the permalink.

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3 comments on “It’s A Brave New World Of Lawyering

  • I couldn’t agree more, the good news is with the legal market being what it is, attorneys are going to be forced to adapt or go out of business. Those who adapt quickest to change survive (I know a little darwinian but still). If they are practicing law with the right intent they will want to do what is right for their client regardless of what is right for their personal pocket book. That doesn’t mean they can’t charge what they are worth and the services they deliver, but it does mean they have to be willing to set aside their ego and start working smarter instead of harder. To paraphrase a motivational book I once read (I believe it was Steven R. Covey), it is time the legal profession use an axe to chop down the tree instead of a sledge hammer.

  • It is precisely this old way of doing things that has me glad that I am running my own practice. I don’t know if I could take those approaches to cases if I was told to do so by some supervising attorney. Sure some cases are adversarial despite your best efforts but at least in those cases I would hope it is because of one of the clients refusing to budge on an issue rather than one of the attorneys insisting that their case is so strong they shouldn’t settle.

    I also am surprised every time I hear from a new client how their attempts to settle got no where when discussing the case with an opposing attorney because they refuse to discuss the case at all with unrepresented opposing parties. I, on the other hand, have had success getting cases settled by having settlement discussions with opposing unrepresented parties.

  • Loved this follow up
    Especially this part…
    When his client fired him (for overbilling, I learned – can’t make this stuff up), we finally got the case to mediation. At mediation, the opposing party handed me everything I had been asking for, we had a productive meeting of the minds, and we got the case settled. I asked him why it took so long to get him to the table, and he said, “To be honest, it was my former lawyer. I kept taking his advice.”

    If only we attorneys would use mediation for all it can do to help us reality check ourselves and our clients as well as our adversaries and their clients, it would help everyone operate more effectively and leave the courts open for truly unsolvable issues. Self selecting solutions is the beauty of mediation. The parties buy in before an agreement is reached. When they choose to do X they do it because they freely agreed to, they feel heard respected and understood. Imagine, no enforcement issues due to the buy in of all to the solution they self selected.

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