Attorney Fees: Why Free is Not Always Free

Following up a bit on my post on consultation fees, I want to talk about free.  In the past year there has been made much of making money off of free.  Chris Anderson's book Free pushed this idea and made it sexy.  My understanding of the idea may be an oversimplification but is that this is a rehash of the idea of loss leaders. This blog represents - to me - what Mr. Anderson was talking about.

I also have another idea in my head that opposes Mr. Anderson's ideas.  That idea is there is no such thing as a free lunch.  The best, longest explanation I found years ago in Robert Heinlein's novel The Moon is a Harsh Mistress.  Or this variation;  you get what you pay for.  For some clarity, you should also read Binary Law's Free - radical or not?.

Those of you seeking a free lunch (and who actually does not) need to consider just what you are getting for free.  Taking this blog as an example, you get free information but this is not all the knowledge that is in my head.  Those not seeking education will find this blog (and every other one) seriously lacking in content.

You consumers of legal services also need to know what you getting.  With family law cases, you are not getting only litigation but knowledge purchased with experience.  I had an experience last week that I want to discuss on its own but some points cna be made here.  At a minimum, litigation requires witness preparation, getting familar with the documents in the case, learning the facts and not just showing up at court.  Just showing up and not knowing the facts of the case brings to mind George Armstrong Custer and the Little Bighorn.

On the other hand, lawyers need to consider what we do in these days of the Internet. Law21.ca has a very good article, Free and the GP, discussing all these points but here are what I thought were the highlights:

Interesting as all this is, what does it have to do with the legal profession? Potentially, a great deal, as some legal bloggers have noted. Carolyn Elefant and Doug Cornelius both point to innovative new offerings from two well-known US law firms: Wilson Sonsini has set up an online term sheet generator, while Orrick has created a start-up forms library on its website. Both of these products (or are they services?) are entirely free, to anyone (client, non-client, other lawyer) who wants to use them. They’re also products from which these firms and others have traditionally made money. “But there’s a method to Orrick’s apparent madness,” Carolyn writes:
Orrick’s freebies help it capture a segment of the market which either couldn’t afford to hire Orrick or if they could, would not have been worth Orrick’s time. Consider the example of a small business — typically the type of client outside of biglaw’s demographic. The business might download and fill in Orrick’s incorporation form and then say to itself “I’ve already filled out the data. How much could it cost to pay an Orrick attorney to look this over?” Likewise, Orrick could charge far less to eyeball a completed form which it prepared itself than if the firm were to begin the incorporation from scratch (in which case, it would have to invite the client to the office, interview the client, gather the data and prepare the incorporation papers).

***

Giving away something for free or ultra-cheap in hopes you’ll entice users to buy your other services is not a new phenomenon, even in law: smaller firms have been using items like wills as “loss leaders” for years. What’s significant here is what’s being given away.

Legal forms aren’t matchbooks or Bic pens — or at least, they didn’t use to be: they were once important elements of the lawyer’s inventory that required a lawyer’s skills. The fact that they’re now customizable and downloadable on the Net tells us that the skill to produce them is now available widely. That implies a lack of scarcity and a consequent inability to charge much of a price. Legal knowledge, as Doug points out, is already being given away free by law firms; now, it appears that legal processes like document creation are following suit.

Again, I do not do free consults.  What fees I do charge are directly related to what your case needs done.  I will be discussing those in the next few days.

Since I wrote the above, I ran across Law Firm Price Wars Break Out as Some Try ‘Loss Leader’ Bids for Work from the ABA Journal.  This is not good news really - at some point the lack of income will cut into services.

Attorney Fees: About My No Free Consult Policy

Lat year I decided that there would no longer be free consults in my office.  Part of this came about because I was without a secretary and I was using the initial telephone call to decide if it was worth having the potential client come into the office.

Underlying my policy are several concerns:  1) a free consultation means my other clients are subsidizing the time I spent discussing a new case and 2) it sorts out the clients who lack the funds and the seriousness to take on as clients.

Divorce Discourse posted Free Consults? makes legitimate points in that post.  Taking care of lead generation is a good thing that I accomplish on the telephone rather than stopping all work on other cases for evaluating a possible new case.

I find most potential clients view consultations in one of three ways:  1) a way to get free information; and 2) as a beauty contest to see if they want to hire the lawyer; and 3) a way to save money.  I think aiding the potential client in number 3 is aiding in a fraud - the time spent on a free consultation has to be paid some way and if not up front then later.  About getting free information, see what I wrote above about my other clients subsidizing the potential client.

About beauty contests, I think that the attorney-client relationship is a partnership where both sides need to get along with one another.  I cannot remember the last time I turned down a case after a telephone interview and a paid consultation, but I came close this past month.  Luckily, the potential client got enough information that they did not come back.

I also had a recent contact who seemed worried that I might not take their case after they paid my $75.00 consultation fee.   As my secretary said, if they cannot afford the consultation fee then they cannot afford the fee for a custody case.  I will add that those clients who cannot pay their bills force my other clients to subsidize their cases in time and money and that is just not fair to my other clients.

to all this I would add the following from Dick Price from his post Why Is There No Free Consultation?:

For potential clients who have trouble understanding why they should be charged for the initial time they visit with an attorney, here are some explanations some attorneys use.

* For the attorneys who charge by the hour, time is money. They keep their business open by charging for the time they spend working in some fashion on the client's problems. Real information is provided in real time to the client. For the attorney, the service provided is essentially the same type of service they will be providing once they are hired: listen, ask questions, determine needs or goals, gather information, analyze, strategize and create plans.

* Other professionals routinely charge for their time and services at an initial assessment. This includes doctors, mechanics and electricians (just to name a few). The time and skills of the professionals are being applied to the problems at hand.

* For the attorneys who practice what is called value pricing, or use flat fees, they focus on the valuable information, forms and other paperwork they may provide the client. They also add value by listening and counseling with the client. Here is an example on the higher end of service and a corresponding higher fee: There is an attorney in Calgary, Canada who has developed an excellent product for the initial conference. He spends as long as the client wants, usually 2 to 3 hours, records the session and provides a copy of the recording, and produces a customized approach to the client's issues. Other attorneys provide a less robust experience, but nevertheless provide excellent value to the client just by doing the same things some attorneys do as they charge by the hour.

* In addition, when an attorney meets with a prospective client, the attorney becomes immediately disqualified from representing the spouse. That can result in a loss of income for the attorney.

* Another consideration is that the attorney is unable to work on other clients' business when they are attending an initial meeting with a potential new client. That means less income for the attorney and no progress on the other client's issues. Even if it only delays the work, the delay can become a problem for the client and then the attorney. Most clients prefer not to be put on the back burner. They want their matter resolved NOW!

There is not anything on that list that I do not think is a legitimate reason against free consultations.

I realize much has been lately of how free can make money.  I will be discussing this further but posts like Free and the GP from Law21.ca gives a good overview the issue for law firms.  This blog recognizes the idea but the line has to be drawn at responsibility for my clients.

For those wanting free consultations, I have the following advice:

1. Know what you want from the consultation: case evaluation, free information, education.
   
2. Realize that e-mail can never get the details necessary for making a good evaluation of a case.
3. Call to find out who does and do not do free consultations.

Changing How We Should Be Practicing Law

Do you think all a lawyer does is create a form to be a lawyer?  Then you need read to the end.

If you think all you need for your case (divorce, support, custody, visitation, grandparen't visitation) is a legal form to do what a lawyer does, then you definitely need read to the end.  It will probably save you a lot in attorney fees.

Getting the general public to understand what lawyers do, the value of legal services is a problem. Recently, I decided to make a stand on this issue and start unbundling my family law services.  I wrote about this here.  So far the response has been only one e-mail and a request for how much I would charge for reviewing documents.  I have had no response to my fee quote ($50.00).  I am left with the impression - perhaps unfounded and maybe well-founded - that the writer thinks that not worth the cost.  Which is too bad.  Within the minuscule amount of information she gave was contained a problem that will probably result in post-divorce litigation. 


When I returned to private practice back in 2003, I had ideas that document automation posed a great change in how we should practice law.  Writing this blog sharpened some of my thinking on the subject. by giving me a view of what the public thinks.

Lee Rosen of Divorce Discourse published Stop Selling Documents, Start Selling Advice, or Quit that comes close to crystalizing some of these points I have been thinking about:

We get calls from price shoppers sometimes. “How much is a separation agreement?” they ask. We explain that the agreement itself is a small part of the process. The larger issue, and the important part of our representation, is the advice we give about what the agreement should say along with managing the process and the negotiation.

We explain that they’ll divorce once. We, however, have been through thousands of divorces and we’ll help them avoid the mistakes we’ve seen others make.

“But what about the agreement? How much does it cost?”

Sometimes it’s exasperating.

But, realistically, some people want the document, not the advice.

I have the same type of telephone calls.  We call them tire-kickers.  Between the telephone calls and analyzing the Google searches that bring some to this blog, I have come to think that most of the public thinks all they need to do their case is a legal form.  I wrote a bit about this in Free forms, Thoughts for the Do-It-Yourself Crowd, and Unbundling My Services where I likened legal forms to bombs.




Law21.ca's The electric law firm reinforces these ideas on a more general way:

So how might a law firm give away products while selling services? Jeff Carr has observed that lawyer work falls into four categories: content, process, judgment and advocacy. The first two are well on their way to commoditization; the latter two remain the high-value and near-irreplaceable purview of lawyers. The day might soon arrive when firms publish and automate their legal knowledge, document assembly and document review process free of charge, over the internet, to anyone who wants them — but will charge a monthly retainer fee for the personal judgment, advice and representation that animates those documents and processes and provides real value. Wilson Sonsini’s term sheet generator is a step in this direction, but so are child support calculators and PCT calculators. The tangible product is the giveaway; the value, and the profit, are in the service.

Getting a legal form and knowing what to do with it are two different things.  What I and other lawyers provide is the knowledge.  Creating the document plays only a small part in providing legal services.  I cannot understate my agreement withMr. Rosen and Mr. Furlong on this point.

I offer this thought:  get the form online if you want, but get a lawyer to make sure you have not just screwed yourself. 

Somehow, the Bar needs to educate the public about the value of our services.  I know that presupposes that the general public has an interest in being educated as consumers of legal services. 

On the other hand, the Bar needs to rethink how what it does provide to the general public.  The current recession makes this a necessity for all of us.

A Few Thoughts About Lawyers and Legal Services

I forget how I came across Clark Kent's Lunchbox: Why I Hate Divorce Attorneys. With what I have been dealing with since mid-May (a disappearing secretary being the largest but not only problem), the following raised all sorts of issues in my mind:

On the recommendation of a close friend, I contacted an attorney who was touted as the best in area, having handled multi-million dollar settlements without ever losing a case. You can already guess this guy was going to be expensive, but because he was drinking buddies with my friend, I would get a cut rate. For the best attorney in Houston this is what I got:

* When they sent the original papers to my former spouse, they goofed on the address sending it 3 states in the other direction, and new papers had to be drawn, which would require more money, but they said I wouldn't be charged for it since it was their mistake
* Two months later the new papers were sent, but were still wrong resulting in petitioning the court to move back the trial date
* After numerous phone calls (at a cost of X hundred dollars per 15 minutes), I was told the new court date
* Third set of papers sent... 6 weeks later
* Bill sent which includes charges for all calls I made to them, every goof up in paperwork, the address screw up, and filing fees to adjust court dates... and no friends and family discount
* Called attorney's office several days before court date only to be told they had filed another continuance and pushed the date back. The new court date? One year after the day originally contacted the attorney.
* Received notice informing me their office needed another $X thousand dollars to keep them on retainer.

I have been trying to maintain a level of service here that was different and better than what I know others provide.  I know one popular firm locally does not communicate as quickly or as fully as I have done.  I find one similarity between the Houston lawyer and the local firm, and that is the issue of front.  They put on a better front.

I cleaned up most of the train wreck created by Mary's departure but not all.  It took a week of about 20 hour days to do that.  Still, there remain things undone and things to do.  I can say that they are being done.

I do want to say that not all attorney-client relationships work.  I have had things sour more quickly with client that I personally like than with those I do not.  I have heard other attorneys say similar things.  We are puzzled by this.  I do not know if we come to be seen less professional by liking certain clients and those client have less respect for us or if it is something else.

I have also seen lawyers who are quite competent at one sort of case have difficulties with a simpler sort of case.  Again, no rational explanation existed for the situation.  It happens just like a slump in baseball.

Not that I think that either scenario I just wrote about applies to this story from Houston.  What distinguishes my scenarios from the Houston scenario, is the lack of effort and anguish I detect from Houston.  The effort put into a case where the client is liked but then turns on the attorney creates the anguish.  Nothing stresses out a lawyer like not being able to get a handle on a case but not quite get it all lined up regardless of knowing the facts and the law.  The last case I can think of this happening to me was a support case, and I remain convinced after a long, long time that what I lacked was a handle on the client's understanding of what was going on.  (She had a very neat notebook containing all the pleadings, she asked pretty good questions about the case, and I assumed that she knew what was what.  Turned out she did not.  Also, it turned out that she wanted more than what the courts could give her.  She was unhappy with the outcome even though the court gave her what she was entitled to under the law).

One other thing really sets me off about the Houston law firm and that is its document production.  Proper intake procedures ought to be in place in a firm like that.  I have been using client questionnaires for years so that I get proper information (such as the opposing party's address and spelling of names).  I have automated document production on most of my work product so that it can be produced in a reasonable speed.  I am so very annoyed (and have been since the start of July) that I am getting things out in a few days that would take a day with staff.  I do not get paid for having a fancy office, I get paid for the work done and I keep that in mind.  My clients have no money to waste and neither do I.  Automating document production serves to save my clients and myself from poor document production.

(Which is not to say that all mistakes have been removed but I have cut down on the stupid ones.  The stupid ones occur whenever I forget my own rules and use search and replace for creating documents.) 

For the non-lawyers having read so far, understand this: 1) the attorney-client relationship is a partnership between you and your lawyer;  2) you deserve good communications with your lawyer not only about what is going on with your case but what your case is about; and 3) if it is not working you need to get an explanation of why it is not.

(I freely admit that I have been troubled by returning phone calls as promptly as I ought to this past month and a half).

As for any lawyers who have read this far, this kind of lawyering affects all us and we need to explain and show the general public how this is not good lawyering.  If you think we can merely blow this as an aberration, read the comments to the post.  People think this is typical for lawyers.  They have no understanding of what we actually do.  Which I put down to our making a mystery of the legal process based on the belief that an ignorant client is one who willingly pays any fee - that never really worked and has less chance of survival in the Internet Age.


I wrote a comment to Why I Hate Divorce Attorneys and here is the writer's response:

R_mattocks That would've been logical if I was returning a defective toaster to WalMart, but there's papers that has to be filed with court taking one attorney off and more papers adding the new one. That takes time & money.

I would still have to pay another retainer fee with a new attorney and then get them up to speed on the state of the case. More time.

He was recommended by a close, close friend and when the two of would talk, he'd ask how things were going. When I told him, he said he'd relay my complaints since he and the attorney were drinking buddies. And I did complain to the attorney about his staff. Nothing.

Being unemployed didn't give me the financial leverage to pull up stakes, & the money I did have needed to go to the kids or the other attorney would've used not making payment against me.

Yes, I could've fired him earlier, but it would've cost me more money to get another attorney, and would've dragged the process out longer which was a financial burden for my ex, who lost her job several months after I did.

Strategically, who wins and who loses if I had "thought" to get another attorney? Me-more in debt. My Ex-more in debt. My kids-both parents are paying for two (or three) attorneys instead of school supplies and clothes. The only winners - attorneys.

And besides all that I couldn't find the receipt when I tried to return my defective attorney to the customer service counter.

Believe me, the divorce system is flawed - mainly because of the dirt-bag dads who try shirk their obligations. As a by-product of the system, there are an army of attorney's profiting off it. I'll take anyone on that wants to challenge me on that, because along with not putting thought into another attorney, I put my journalistic skills to use and got an education (and not from Law & Order).

As a post script, to be fair, my ex's attorney was the exact opposite. he didn't exploit the opportunity and educated me on the things my attorney should've. In the end, he didn't work for my wife so much as he worked for a realistic solution in the best interest of our kids given the circumstances.

The original writer understood correctly that time is needed to prepare.  What he may not realize that the complexity of the facts dictate how much time it takes to get prepared and that his description of the case makes me think the facts were not so complicated.  It would have been possible for another lawyer to take over the case.

The original writer hits the nail on the head about costs.  Again, asking about might have given him some surprising answers but with the caveat that more complex the case the greater the fees.  Not all lawyers charge on an hourly rate but charge flat fees (which is very more common in my area of Indiana - another reason to be wary of those saying they know what lawyers cost as geography changes everything).  Some do what I have started to do and unbundle their services. (Go here for why I am offering this type of service).   But you got to ask before you can learn these things.

Think about that my fellow lawyers.  I think we can all pick apart some of the writer's errors about cost.  We can do that because we know what the costs might actually be - something denied the writer.  Pay attention to the more important points about cost and perception of the services provided (or not provided) and to how the opposing attorney behaved.

I think the writer was lucky it was not a complicated matter, that opposing counsel took a collaborative approach, and that the judge dealt well with a pro se party.

What I have no idea about is how to get the general public to learn what we do, and how the family system of the different states actually work.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Tips on Using This Blog

For my readers, remember that there are many more articles on this blog on this and other subjects. Down the right hand side of your screen are my archives of older articles by subject. You can also click on the link below next to the word "Label". As of today (8/21/09), there are 1,364 posts on this blog. Tomorrow there will be more. Although you may think that one article will answer your question, I think you need to read more so as not to miss the details. The devil is in the details.

Use the search function at the top of the blog. Having seen some of the searches that bring people here, I see many of you missing information.

I also suggest that you subscribe to the e-mail alerts. This is best if you want to keep up with the information provided on this blog. It is free, creates no obligation on you or me, and there is a link to the subscription service on the right hand side of the blog.

Feel free to make comments - not requests for legal advice - to any of the posts. One hope I had had was to get information out to Hoosiers and information back. I only block spam (and believe it or not there is more of that than I like to think about).

If you want legal advice instead of information, you can contact me directly.

Now on Twitter

I took the Twitter plunge this past Friday. If you want to add me, I am http://twitter.com/schasler

Where I Want to go with Flat Fees

Credit a potential client with inspiring this post. For two months changing my fee structure has been under consideration. I had a mix of flat and hourly fees and I wanted to move towards flat fees. I wrote about the background to all this under the article Flat Fees. I think if you have not read that article, then you should to get the reason why I am making this change.

So this client calls last week but this was but one in a short line of the past few weeks. Each asked the same question: what is your hourly rate? None asked what I consider to be the important question: what will the case cost me? Clients shopping about for attorneys asking only about hourly rate are not getting the information they need to make a good decision about cost. At this time,I am evenly divided about the cause for this failure. The fault could lie with how my profession explains fees and it could lie with the naivete of the clients, or both.

The theory lying behind flat fees is giving the clients an idea of the total cost of a case. Hard to make the case that clients benefit from flat fees when they show no interest in the total cost of their case.

Then, too, I must follow what the Indiana Rules of Professional Conduct direct regarding fees.

Finally, the more a lawyer computerizes their practice then hourly billing becomes ever less profitable. For several years now I have worked on automating my document production. Why do this? First, I can make documents a fixed cost instead of a flexible, hourly cost. Second, I spend time with clients or on the unique aspects of their case instead of drafting routine documents. I am not sure that clients without experience with other lawyers understand the benefits they get.

With these premises in mind, I decided both to announce changing my fee structure for new cases and explain how fees gets set. Understand please I think there is only one thing more troublesome than setting a fee and that is the time spent in keeping time sheets.

During the years I had a bankruptcy practice, I used a flat fee system. I know of no other fee used by consumer bankruptcy attorneys, Locally, criminal defense attorneys use flat fees. I admit to finding the wider discussion about flat fee versus hourly billing a bit odd because for this area it is so common. What is needed an idea of what effort will be needed on a particular case.

I wrote a particular case and not a type of case. I need to know a good deal of facts about the case, about the type of person I will be working for and what I am working against. I mention the last two because of my pet theory about family law is that the law is generally straightforward and complications generally come from the people in the case. I can estimate the work generally needed for a particular type of case, but the people involved may increase the work and therefore the cost.

Here is an example: out of county case but with an out of state opposing party; the opposing party lacks the wherewithal to make an appearance in court; client is a sensible sort; and the fee quoted for this case is less than my usual fee. Why? On the facts given me, I see this: good facts supporting my client, a non-appearing opposing party requires no discovery (see more about this below), and about a quarter of the usual court time for this type of case. The fee reflects the effort I need to reach my client's goal and enough profit for paying my bills. I call that a fair fee.

Every case can be broken into the following parts: starting, pretrial, and trial. What needs done within these parts depends on the case. During the start, work differs between petitioners or respondents. Pretrial costs increase if there is discovery. Discovery means using certain tools to get information from the other side (and they from you). Discovery increases the cost of each case but outweighing that cost is having the information needed for adequate preparation for trial. However, family law cases make themselves amenable to less expansive discovery than an ordinary civil trial. I think I use the same Motion to Produce used by everyone in Madison County since Indiana adopted the Child Support Guidelines. I think trial is self-explanatory. Here too, I think the average time for family law cases where custody is not at issue can be easily estimated with confidence.

I wrote about documents above, and the most document intensive part of a case comes during discovery. The second most intensive comes with the initiating party filing the petition or affidavit that starts the case. With computers these documents can be standardized and turned out with no modification by the lawyer. I use a program, HotDocs, to automate my documents – common documents get automated. I know other offices use search and replace in preparing their documents. A close reading will show the difference, I am writing my contracts now to show a flat fee for each document in a case. How then will the client know what to pay? Ah, the wonders of word processors being able to create check boxes. This also means I am overhauling contracts I have worked with for over a decade.

I part ways with some advocates of flat fees when it comes to trial. Determining court time for cases other than cases involving custody can be done with a fair amount of ease but I am sticking with a hourly rate for trial preparation and court appearances. Since courts set hearings ahead of time for a determinate time, I think this works out the same as a flat fee. My exception to this will be where I am dealing with a child support enforcement prosecutor.

Please do not think that I am doing away the hourly rate altogether. I suppose there will be clients who prefer an hourly rate just as there may be clients who I prefer having on an hourly basis.

What I have not seen mentioned by anyone else writing about flat fees is payment by credit cards. I have been looking for the past month for a company to handle my taking of credit cards. I see a good fit between credit cards and flat fees.

I think this is the first time I ever expressly detailed how I set my fees. I suggest the next time you are seeking a lawyer, calling up and asking about fees that you remember this article of mine. Ask them how they bill for their services – hourly or flat fee. Ask how they determine their fees. Ask for their estimate of the total amount of fees for the case. Ask how they reached their estimate. Do not be put off with lawyers who say it depends on the facts. You will find the more complex a case the less concrete will be the estimate.

Following Up on My Flat Fees Post

If you have not read Flat Fees, please do so. That post gets mentioned in Time Again for More Criticism of the Billable Hour.

While the Greatest American Lawyer does not practice family law the concerns written about in Clients Who Don’t Understand Value are also my concerns. I have seen problems when the client asks for a lawyer to withdraw and there was a flat fee. I still have a post in the works explaining where and why I am going with flat fees and I will explain there how I will deal with this problem.

Creating documents

I use HotDocs for most of my forms. Having done without a secretary to create my documents for mnay years, I doubt I could survive without HotDocs. Which means I try to keep up with what is happening in the area of document assembly. Since that comes after dealing with clients and dealing with courts, I will admit I am a bit behind in finding Document Assembly Lawyer Blog. For those attorneys interested in this area, I suggest taking a look at the blog. It does have some good ideas even if it has not been updated in almost two months.o

practice managment- notes on automating documents

I began using HotDocs in 2000 when I left my practice to work for a firm in Indianapolis. I mentioned in a post on my Indiana Civil and Business Law Blog that I used Symantec's Q & A for many years before that. So I converted many of my Q & A forms to use with HotDocs. In fact, I got a copy of HotDocs after I left the Indianapolis firm. Q & A had faded away by that time and I became rather attached to HotDocs.

With HotDocs you take the variables in the documents and replace them with fields. When you go to assemble the document, a window pops up and asks questions which go to fill in the fields. When finished with assembling the document, HotDocs asks whether you want to save the answers. You do want to save the answers. You will want to use these answers later. The best way I can describe how HotDocs handles answers is analogizing to sweeping a floor with a broom. By the end you should have a lot of answers that can be used in a wide-ranging set of documents.

Now all that leads to an important point when constructing forms - one must recycle the same questions in exactly the same form. "Opposing party's name" in one form does not give an answer to "Respondent's name" in another form. Fortunately, HotDocs provides the means of copying the same questions from one from to another. You just need to make sure that you add them to actual form.

By the Spring of 2003, I accumulated a rather large collection of forms under HotDocs. Then I had a major crash and no back up. (Note: back up often and make sure that you can restore what you back up!). So I went back to recreating the forms, but I got delayed in finishing that job when I became in-house counsel for one of my business clients. After I left that position to return full time to my private practice, I found a backup disk with most of the pre-2003 forms. Yippee! Then I found a small problem with these old forms.

When I started to recreate the old forms and create new ones, I changed some of the terms and also some of the programming in the forms. In other words, I changed some of the questions from the older forms. So a bit more work.

Why go through all this effort?

1. Quality control - I can be sure that the documents have fewer errors with consistent look. I can say that not all errors have been eliminated but I have far fewer than when I use cut and paste (or search and replace). I still had a very embarrassing error when the programming in an Appearance was for a different Appearance form.
   
2. Improve production. I have not had a secretary for years now. I grew severely disgruntled with what I had had for secretaries in the past and I used them very little for document production when I had them. HotDocs allows me to produce document after document without a secretary just as quickly (or more quickly) and accurately (or more so) as with a secretary. Automating the documents allows me to spend less time preparing standard documents and more time with the clients and dealing with the substance of a case.
3. Knowledge management.
   

Knowledge management? Better people than myself have defined knowledge management better than what I will. For me, it is collecting the forms and case law and memos and statutes for a particular area of law or type of case where I can recycle them. As I age so does my memory so why put any more stress on my gray cells when I can use a computer to do this? Besides, I think the clients expect us to have all the information possible (wish that we could do that!) at our fingertips. I have quite a bit on tap but still not where I was before the crash.

One thing I started several years ago is using the comments function in my HotDocs templates. If I am basing a form on a statute, I insert into the comment a copy of the statute. I also created hypertext collections of case law. I add a hypertext link to the page with the case law. To get access to the law supporting the form, I only need to open the comment.

For Lawyers: Apply for scholarships to Solo & Small Firm Conference

A friend forwarded this me via e-mail. I am not certain I have that many attorneys reading this blog but here goes:

The YLS is awarding two scholarships for the Solo & Small Firm Conference scheduled for May 31-June 2 at the Sheraton Hotel located at Keystone at the Crossing, Indianapolis . For details about the conference, visit www.inbar.org.

Applicants must be a member of the Young Lawyers Section, in a firm with less than 15 attorneys, and have practiced less than 3 years.

Please send your résumé (or bio) and letter of interest (including your name; name of firm/employer; number of attorneys at firm/employer; number of years in practice; why you would like to attend the conference and what you hope to gain by attending; and why you believe you should receive the scholarship) to Paula Chan at the ISBA no later than Friday, May 11, pchan@inbar.org, 317-266-2588 (fax) or ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204.

Scholarship will cover the full conference registration and two nights stay at the Sheraton Hotel.

Paula Chan

Assistant Director of Sections, Meetings & Events

Indiana State Bar Association

Phone: (317) 639-5465 ext. 26/(800) 266-2581

Fax: (317) 266-2588

www.inbar.org

Where are the official forms?

I once worked for a legal services program that started in Michigan. I should have been worried when they asked about official court forms. I remember telling the fellow from Michigan that Indiana has no official forms.

The Indiana Supreme Court created protective order forms with a required format soon after that conversation. One can find those forms at the office of the local county clerk.

On Law Guru, people continue to ask where to find Indiana's forms online. The Indiana Judicial Center now has forms related to child support modification.

Hamilton County has forms required by local rule. These forms include family law, criminal, and probate forms. Still nothing for anyone wanting to file the initial documents (pleadings for those lawyer readers who need precision). The Delaware County Clerk has some forms online also for family and civil suits, but no probate. So far as I am aware, this is the only site with a civil complaint form. No probate forms, though. Marion County has forms online which really do not have much practical use for litigation.

I have not looked at the sites for all 92 counties and there may be more counties with forms on their websites. Let us say that this is a survey of my usual practice area.

I suppose I have puzzled you if you are a lawyer from a state with official forms or a non-lawyer from Indiana. If no official forms, how do we Indiana lawyers do what we do? My short answer is this: we steal. My slightly longer answer is: we still and use our wits.

We steal forms from our predecessors and our contemporaries. I know I use pleadings forms that I got from the attorneys in the office where I first started and who knows where they got their forms. Stealing a form requires knowing (if the pleading is a complaint or a petition) that the form properly states the law. Which in turns also means that the pleading works. No sense stealing something that does not work.

I also started by buying form books. I guess that form books constitute another form of stealing. I will tell you that I finally understood the abstractions of civil procedure by diligently reading and using and copying from form books. Nowadays, I refuse to purchase any formbook that does have a CD-Rom with electronic versions of the forms.

Every office needs a scanner and optical character recognition software (OCR). Take the form that you like, scan the document, and then convert the image into text. Converting to text allows you to manipulate the text and to re-use the form over and over again.

I take that text file one step further and convert the text into a HotDocs form. You need to know the variables to design the forms but I think anyone practicing any length of time can see where the variables are in the form. What this does require is time and hard work. I find it useful - automating documents like this allows me to dispense with a secretary to do the typing.

Problems exist with this method when the desktop dies as it did two nights ago. One can get too dependent on them. I am still in the midst of reclaiming all of my old forms into HotDocs forms and I am still getting a bit flummoxed when I find that a file I think I have has not been reclaimed for HotDocs. I wrote generally on the problem of computer dependence earlier.

Document automation increases the costs for a law practice. Short term those costs include the costs for the scanner, OCR software, the HotDocs software and the time for converting the forms. While the process poses some intellectual interests, the process must benefit the client. Remember that benefiting the client benefits the practice.

As I see it, the less time I spend drafting common documents means more time spent for dealing with the client and the more complex parts of the case. Which does bring another point to mind: the more that does a certain area of law, the more that you will develop a library to deal with that area of law. I found this particularly true in my collections practice. Collections require a volume of cases. Business law provides a similar sort of repetition suitable for automation. Family law provides a similar basis for automation as there is a great repetition of issues.

All this brings up a question about fees but I will save that for another post.

The Price Of Computers

The office computer went kaput two days ago. The past two days consisted of extremes: extreme frustration, extreme aggravation. Hopefully, tomorrow finds the computer running again in its mysterious ways. I hate my dependence upon computers while simultaneously I adore the advantage provided by the computer, Computer Manage information and my “job” requires me to bend, shape, and interpret information.

Now I am cut off from easily accessing the address, telephone numbers, and even names of clients, courts, contacts and opposing attorney’s. Note that adverb easily. The raw gross information remains in the files, the telephone books, the online sources, but the time to find and use that information is now so much longer, more tedious, as I write this, some of that lost and keenly desired information is being placed into my laptop.

Poor timing on my part and on the computer’s, for otherwise I would have most - maybe all this information in place and ready to use. Tomorrow fails in bringing me total repair, of my situation, I will have enough to fight my fights next week.

Computers bring joy and terror to a lazy man. Joy comes from being able to automate those simple tasks. The terror caused by knowing the amount of work required for reaching that state of seamless use of information. Avoiding the bog of paperwork can mean landing in the bog of mucking about computers.

Such is the price of computers in the practice of law. We cannot do with them nowadays but can any business? I remember the days I practiced law before my first computer and I cannot see how we handled the volume of business that we did. Perhaps the world was a bit slower as well before 1992.

Want to know what lawyers do?

What does this post on knowledge management and contracts have to do with family law? Everything, if you really want to know what lawyers do.

Ed Poll's comment contains the real point to my posting this link:

We still remain, however, with the mentality that it’s too easy to use an exemplar without “thinking” whether this applies “on all fours” to our current matter. Isn’t that why we went to law school: To learn how to think? It’s just too easy for the laziest amongst us to say that because it’s in print, it must be right for this matter as well.

It is not enough to just grab a form but know to what do with the form. If this is true for lawyers, think what it means if you want to do your own case.

Lawyers use their training and experience to enhance what is found in the forms. Anyone can copy a pleading and file it, but to file the correct one at the correct time for the correct purpose as part of an overall strategy is something different. Lawyers do that something different.

I have written on my Civil and Business Law Blog about how I have been working on returning my office to a more automated basis. That work also applies to the family law area. I will be writing more specifically on this and how it will be changing my fee structure.

Paternity: If You Get Served with A Paternity Petition and a Summons

Someone asked me today how to answer a Summons in a paternity case. I cannot fault him too much for wanting to answer the Summons.

In civil suits, the defendant has 20-23 days to file an Appearance and Answer or Appearance and Motion for Extension of Time, or face a default judgment. In family law cases, a Summons must accompany a Petition for Dissolution of Marriage or a Petition to Determine Paternity (and some other petitions, too). The requirement about responding to these Petition is one crucial difference between the procedure in family law cases and civil suits. You do not file a timely Answer in a civil suit, then default judgment may be entered against you. Not so in family law cases.

The Summons announces to the recipient their obligation to Answer the civil Complaint, but the Summons generally used does not distinguish between civil suits and family law cases. Delaware County has an online form for Dissolution of Marriage Summonses (and that is in PDF format) and even this form does not clearly explain what one has to do after getting served with the Summons and Petition:

You must appear in opposition to the Petition in writing, by you or your attorney, within twenty (20) 2 days commencing the day after you receive this summons, or a Dissolution of Marriage and/or Order of Support will entered granting what the Petitioner has demanded at the expiration of the statutory period.

Clear as mud but better than using the more common civil Summons (also in PDF format). In paternity cases (and divorce cases), the important thing is not answering the Petition but in showing up for the hearing.

IC 31-14-8-2
Default order against alleged father failing to appear at hearing
31-14-8-2 Sec. 2. If a man who is the alleged father in a paternity action under this article fails to appear for a hearing relating to the man's paternity, the court shall enter a default order against the man upon a showing that the man received notice of the hearing.
As added by P.L.1-1997, SEC.6.

I have not used the Summonses provided by the County Clerk for over ten years. The forms went into the word processor and have stayed there. I think most law offices have also put the Summonses into their word processors. Those that have not done so, should. I suggest that they also change the language on responding to the Petition to match the language of the statutes. It would save a lot of time, consternation and possibly grief for the responding party.

For those who receive a Summons and Petition to Establish Paternity: 1) get a lawyer; and 2) show up for your hearings.

Using Indiana's Online Appellate Opinions

I do not know how long I have been aware that Indiana's appellate courts have been posting their opinions online. I seem to recall some Res Gestae article on the subject at the end of the 1990's but I am also sure that DeBruler was still on the Indiana Supreme Court. Let us just say it has been a long time. During that time there have been some changes.

The Indiana appellate courts have their own section on the Indiana government website and the Indiana Appellate Opinions page exists within those court pages. The page contains links to Current Opinions (with links to the Indiana Supreme Court, to the Indiana Court of Appeals, and to the Indiana Tax Court) and to Archived Opinions (again, from all three appellate courts).

How to use this page?

Well, you can use the link to current pages to check cases on a daily basis. (Or just check out The Indiana Law Blog daily for its listing of cases. Which is what I have been doing for the past few years.). This page offers the opportunity get cases faster than through West or Lexis.

Using the archive pages generally requires patience. I wrote generally because of how I search them: 1) I have a name of a case; 2) I go to the page; and 3) I type the name of the case into my Firefox browser and it finds all uses of the word I typed. That will not work well for Smith v. Smith.

So sounds like the page only works well for getting current opinions on the day of being issued, right? Not so fast. At the top of the page are two boxes which are preceded by the word "search" in small type. Click on the first box and there is a drop down menu. On the menu is Appellate Opinions. Click on this choice and put your search terms into the second box and then click the "Go" button. A much quicker way to find cases. You may also be able to use this search function to do an ersatz Shepardizing of cases. I have no idea why this search function remains so unobvious (there is not even any mention of this function on the main page).

In my posts, I have taken to linking to the cases on the judiciary site. Why? Because they are free unlike Westlaw and Lexis, and this makes the whole opinion available for reading.

Drawbacks and Dealing With Them

Which brings me to the drawbacks to using these opinions. They lack the headnotes of Westlaw or Lexis. They lack the official reporter pagination provided by West. The archives do not contain older cases. These opinions do not differ from the opinions we would receive if we were the attorneys on the case. So why use them besides their lack of cost?

First, I do not use the archived opinions alone. If I have the name for a case I want to read, I can use this site to read the case without paying the big research companies their fees. If I want to use the case, I can then go to law library and get the official cite and the page numbers for what I want to use of a particular case. I can do all this without leaving the office or work late night at home. Then, too, I can use cut and paste to extract text from the opinion to my brief or memo.

Secondly, recognize the site has limitations and work with them.

The current case archive has some potent uses regardless of the general drawbacks. A war story about the current case archive may illustrate its use. A friend of mine told me about a difficult case she was involved in, a few days later I am reviewing cases just handed down by the Court of Appeals, and there was a very, very good case for my friend. I e-mailed her the link to the case. She printed the case and got in front of the judge before the judge was even aware of the case. She won that case. I think that clearly suggests the use for the current case archive. Just think of using them as one would use any slip opinion.