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Introduction
I’ve had a small (5 lawyer) consumer law practice for about seven years. Having done some things right and many things wrong in that seven year span, I have tried to produce in this article a compendium of ideas and approaches for a maturing practice that I hope will be useful. In most respects, my learning process is ongoing. As such, the ideas contained in this article should be considered as suggestions, to be tailored to individual personality, practice and style, and subject to scrutiny and improvement.
I. Focus On What You Are Drawn To
The demands of a small practice are never-ending. In addition to being a lawyer, you have to engage in marketing, accounting, tax work, personnel matters and a host of other administrative duties. These ancillary activities are not enthralling but they have to be done. The point of having your own consumer practice is to make your practice conform to your ideals and interests. To accomplish this goal, you must do what you are compelled to do and have an affinity for. You can then use the energy that your enthusiasm for the work generates to provide the impetus for doing the things which are necessary to running the practice, but are not enjoyable. So, if the actual lawyering part of your practice isn't satisfying, then what is the point of the exercise?
In writing this I presume that the purpose of pursuing a consumer law practice (versus taking a job at any firm doing whatever you are told, or performing any other personally unsatisfying work) is to help people who have been treated unfairly, engage in work you find personally rewarding, and make a decent living at it. Of course, sometimes it's not all that clear what we want to do with our work lives. So, to the extent possible you should take the time to reflect upon what your real interests and goals are, and then think about the steps you will have to take to make your work, interests and goals coincide. Of course, you must go into this recognizing that a perfect match is unlikely, but a close coincidence is certainly feasible. In addition, as we mature we presumably get wiser. As such, what seemed like a good idea in 1993 may not seem that way today. Reflection about your circumstances should be an ongoing process.
You can meet your goals more easily, and make the whole process much more enjoyable, if you start by doing what you are truly interested in and drawn to. If you like what you are doing every day you naturally have the energy and desire to get up and get going. This attitude not only helps make the alarm clock easier to take, it also pervades your presentations, written work and marketing efforts. People are drawn to others who clearly enjoy and believe in what they are doing. All other things being equal, even judges are more likely to be persuaded by someone who believes in what he or she is doing than by a hired gun whose position in the matter is principally dictated by who is paying the bill.
A. Refine Your Niche, Expand It, Or Both
Most of us started with a niche which we made our own, establishing our practices in this area, and then gradually looked to expand. In the consumer law area, there are a number of potential domains: TILA, RESPA, FDCPA, FCRA, odometer spinning, rebuilt wrecks, ECOA, auto financing fraud, etc. In each one of these areas you should be able to find more than enough work, for two reasons. First, there aren’t a lot of people competing with you. Chances are, you are the only person or firm doing this kind of work within one hundred square miles. Second, there are so many scams and unscrupulous businesses in each practice territory that your principal case management task should be to decide which case is the most egregious, not how to find one as you gain recognition. But sometimes we become trapped by our proficiency in a given area. Evolving into new areas of the law presents a challenge and an opportunity. Talk to other people you respect who may occupy different niches and get a feel for that area. Co-counseling cases is a good way to get used to a different practice area, even just to see if it seems right for you.
B. Use Equity As An Ally
Let your attitude infuse your work. Allow your particular values, style, and manner of writing and speaking to identify and your briefs, letters and arguments. Most legal matters are presented in a dispassionate and artificially objectified style, which has come to be accepted as the norm and the preferred mode of behavior. But this method of “argument” was created in part to make arguing an inequitable position more psychologically palatable.
Of course, the presumption here is that you will be arguing positions which are founded on a desire to provide equity, not deny it. Assuming this to be the case, recognize that this stance, which you have consciously adopted by your decision to represent only consumers, is a tremendous asset. In his most recent book, Gerry Spence advances one simple theme - speak from the heart and don’t equivocate. Lawyers are disliked and mistrusted by people because they are (many times accurately) perceived as engaging in double-speak. This hair-splitting bothers anyone who cares about fairness.
I once had a case before a federal judge which involved violations of the consumer leasing act. One of the defendant dealers had a contract with the defendant leasing company by which it referred to the leasing company customers who came into its dealership (in response to the dealers ads) to lease a car. The leasing company would then buy from the dealership the car the customer wished to lease and fill out all the paperwork at the dealership. The dealer argued that it was not liable under the consumer leasing act because it never signed the lease and therefore didn't have sufficient connection to the transaction to be held liable. The judge wondered what the consumer response would be if the dealer had noted in its ads that it would be happy to arrange a lease and make a profit from the corresponding sale of the car, but that if anything went wrong, it would claim that it didn't have sufficient connection to the transaction to be held accountable.
Lawyers are bound to make such arguments on behalf of their clients if they are legally tenable. And this particular argument was at least tenable. But I wondered if the lawyers who made these arguments felt that there was any essential justice or fairness to the legal proposition they were advancing. The closer arguments like this get to the edge of legal viability, the harder it is for anyone to make them with true conviction.
The converse is also true. If you believe in what you are saying, your argument has more force. And if you are trying to achieve a fair result for someone who has been treated unfairly, you have in most cases the unspoken allegiance of the judge as well. Arguing from this position provides an emotional and psychological advantage that offsets the usual economic advantage of the other side. This conviction in your approach and goals makes the practice inherently satisfying. It makes arguments more enjoyable to write and speak. Most importantly, it also makes you feel good about yourself. The adversary system is probably unavoidable. But if you don’t feel good about what you do, why keep doing it? What is the point of making clever intellectual or technical legal arguments, particularly winning ones, if the result is that you achieve a favorable outcome for your client, but an unfair result for some person who is equitably in the right, but legally, technically, on the losing side?
II. Network
Ask other experienced practitioners for help (don’t be shy or embarrassed, as if you’re too experienced to ask, or learn). Call people you see at this conference, hear or read about, and ask for insights, even pleadings. As long as you are not competing for the same clients or cases in the same geographic area, most people are more than willing to share their experiences with you.
The National Association of Consumer Advocates is a network of lawyers who are trying to change things for the better, or at least repair some of the harm done by people who confuse business with predation. We can all give this network a large boost by simply communicating. Often you learn something more valuable than the item of information you were seeking. This type of communication also helps to psychologically bolster both the person seeking help and the one giving it. The flip side is, of course, when someone in this community asks for your help, don’t think about what’s in it for you, just help out.
There is strength in a common purpose and shared values. It’s hard to keep going if you’re depressed, overwhelmed by the amount of work, the scorched earth tactics or incivility of the other side, your negative cash flow, or the legal business itself. In addition, the best substitute for personal experience is the ability to draw on the experience of others. For these reasons if you can rely on a network of other experienced people, you have established a tremendous resource. It also helps to have someone who’s in the same boat reinforce your view of things and approach to a particular problem.
Computer networks provide a sort of community as well. Using e-mail is often a better way to communicate with your peers, who may want to take the time to talk on the phone, but who can more easily share their knowledge by responding to an e-mail message at the end of the day. The various NACA and NCLC listserves are a tremendously valuable resource. In addition, when people are sharing pleadings or other written work, sending the digitized form of the document saves the work of re-inputting a fax into your computer, and enables some extremely fast brief-writing when deadlines are approaching.
III. Market
If you’re enthusiastic about what you do, you naturally talk about it - with everyone, not just people or entities you have targeted for marketing efforts. This enthusiasm comes out in your voice and demeanor, so without consciously trying to persuade someone, your presentation is made that much more compelling by the honest conviction it carries. People are infected by enthusiasm and drawn to projects which appeal to their sense of what's right. In addition, those people who may not directly help or hire you often refer others, and tell others about what it is you are doing.
Marketing is an area which cannot be overemphasized. Each person has a particular approach, but developing a website is becoming a must.
If you provide information on your site about even the most basic protections and the extraordinary remedies of the FDCPA, leasing act, TILA, UDAP laws - whatever you are doing that is current - you can expect a substantial response. People will come out of the woodwork in response, because no one ever told them what their rights were before, and even if they had some knowledge, they didn’t know any lawyers who would help them enforce those rights. The stampede to the Internet will be overwhelming in a couple of years. Get in position now to attract clients who are affirmatively looking for good legal help.
The key is getting the word out. Educating people not only about their rights, but about the accessibility of legal help (i.e. you) to vindicate those rights is critical. Which avenues you take are up to you, but without marketing, unless you are very fortunate or extremely well-known, it is difficult to maintain a healthy volume of the right kind of cases.
IV. Use Technology
It has become conventional wisdom in the last few years that computer technology enables small firms to compete and litigate with big ones on a more even playing field. To the extent that you can, try to become as computer savvy as possible. Using macros to automate document production and basic computer tasks, creating templates for everything within your niche, from briefs to correspondence, and taking advantage of new technologies, like true continuous voice recognition [perhaps no more than a year away], can make you much more productive and eliminate a lot of drudgery.
Telecommuting is very easy now, which gives you much more control over your lifestyle and work habits. It’s nice to just stay at home and write when it snows all day, or to stay at home with a sick kid and work on the computer rather than worrying about her health and your choices in going to work instead of administering children's Tylenol every four hours.
In addition, there is a psychological and a tangible advantage that the computer literate have over lawyers in large firms whose knowledge of computers is limited to the operation of WordPerfect. Obtaining discovery on CD-ROM (or even just asking for it in that format), exchanging pleadings in digitized form with out of state co-counsel or mentors, streamlining the litigation process and minimizing errors by using document processing and document management tools, and even making work a little more enjoyable by running diverting utilities while you write something, all give you a psychological boost. With the exception of the last item, your technological sophistication can make the other side uneasy as well, because you know something that they don't, and this gives you at least a bit of an edge.
It is well worth the time to upgrade your knowledge and appreciation of what the computer can do for you. This is perhaps the most valuable time saving tool at your disposal, and the productive use of your time is the most critical part of operating a successful practice. As such, I have attached a short outline of what I consider to be small firm computer essentials.
V. Plan
Work from the top down. Think about what you want to do, how you want to spend your time, and on what. Write down the steps you need to take to reach these goals. Then break down these steps into actual tasks you can do now, tomorrow or next week to begin the process of realizing your goals.
If you have a lot of energy early in the day, then do the most important work then; save the filing, billing, etc., for later. Perform the least mentally challenging tasks, like talking on the phone, planning, scheduling, cleaning up, filing, etc., when you don't have much mental or physical energy. These are not necessarily the least important tasks, they are extremely vital to the overall machine, but you don’t have to be sharp to plan out the rest of the week, you do to prepare for a hearing, or to write a pleading.
Include time for recharging in your work plans. Don’t just plan work-oriented items, include things you want to do. Play delayed gratification games with yourself, just make sure that you only delay gratification, don’t negate it. Set a reward for yourself for getting certain things done. For example, set a goal of leaving work at 5 pm each day, or three days per week, so you can work out, swim, play golf, or spend time with your kids, spouse or other people who are important to you. Certainly they are more important to you than working, so they should not be secondary to work. Again, the purpose of having your own consumer law practice is to do what you are interested in. I presume that you are at least as interested in your spouse, kids, hobbies and friends as you are in section 1640 of the Truth in Lending Act. So recognize this in a tangible way and write out a schedule which reflects what is important to you and provides time for what you want to do.
Set psychological goals too. For example, don’t allow yourself to get caught up in the emotional aspects of legal practice. People are going to lie, cheat and do nasty things. You are better able to respond to these behaviors by keeping perspective and working to understand their underlying motivations. It isn’t very useful to you or your client to simply despise someone or some entity because of the rotten things they may do.
Stay healthy and maintain perspective. This is much easier to say than do, so it is the type of thing you may want to run by other people. It is much easier for me to tell someone to stay cool than it is for me to heed that advice. But just hearing this message from someone else helps to put you back on an even keel. This is one reason why networking is so important. Having a mentor, a community of like-minded lawyers, or even an on-line group to run things by provides both practical and psychological reinforcement. It can get lonely as a small firm or solo lawyer - just you against the world, but it doesn’t have to be that way.
A. Systematize
Planning begets systematization. Systematizing brain dead tasks allows you time to reflect on different approaches to your problems. The purpose of creating systems is to free you from the mundane so that you spend more time being creative, more time doing what you want to do. However, it can also trap you into a relentless routine which hinders more than it helps. Systems have to be pared down, refined, and tinkered with until they do what was intended in the first place.
To the extent that someone else has already developed a good system, copy it. Billing, timekeeping, payroll, and other administrative tasks must be reduced to systems so that they do not overwhelm you or become so hopelessly confused that they are of no use at all. In addition, having litigation or practice systems helps to keep malpractice premiums down, frees up time to work on other things, and ensures that there is a consistency and thoroughness to your work.
B. Case management equals cash flow management,
Cash flow management equals low anxiety
Last but not least on this list of ideas is cash flow management. Hopefully, by following whatever methods you found useful in the preceding discussion your practice will generate sufficient money to pay the bills and reward you with a reasonable income. Of course, early on it is indispensable to tighten the belt. To start with, establish a realistic budget and method for generating sufficient revenue to exceed your expenses. Most of my practice is fee-shifting casework, with less than ten percent of revenues coming from paying clients. There aren’t that many paying clients in consumer law, at least in my experience, but there are methods to make the fee shifting practice more like an hourly rate based practice than a pure contingency fee practice. Here are a few ideas:
• Marketing provides you with a lot of possible cases, be selective in the ones you take. To the extent that you can invest more up front time in evaluating a case before agreeing to pursue it, your time will be well-rewarded.
• Select cases using the smell factor method. Given the caveat mentioned above, always favor cases which your non-lawyer friends find most offensive.
• Seek cases in which you know you can obtain partial summary judgment on the documents. To the greatest extent possible, begin with cases where there are indisputable violations of law on the face of the operative documents. Then focus on those cases with disputed facts but telling stories: e.g., where a debt collector failed to put the mini-Miranda warning on its correspondence and also called an elderly woman several times a day and threatened to garnish her SSDI benefits. This not only greatly assists you in negotiating a successful settlement, but it insures (given the vagaries of the system) that you can at least get paid, through fee-shifting, for the work you are doing for your client.
• Learn when to say no - whether to pro bono, hard luck cases, or the legally interesting but time intensive monster case, say no to anything you can’t see the outcome of from where you sit. The natural corollary of being drawn to consumer law is that you are probably a sucker for a hard luck story. Only when you have the financial resources to take hard luck stories as de facto pro bono cases should you agree to take one on. Any good deed like this will inevitably take ten times more work than you anticipated, and the deadlines on this matter will inevitably conflict with other cases on which the fortunes of your practice may ride.
Conclusion
The ideas set out above simply lay out a few guideposts which may be helpful to people who are running a small firm consumer law practice. I reiterate that much of this is necessarily a trial and error process. Take what is useful, try what looks interesting and develop your own rules of practice that conform to the goals which you hold for yourself. Don't be afraid to ask others for help, and don't be afraid to try your own ideas, even when they conflict with the conventional wisdom.
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