The Red Velvet Lawyer

The June 2013 issue of the ABA Magazine features women who have ascended to the heights of law firm management.  It profiles seven women who currently operate as the managing partner in medium to ubber-large law firms.  Most of the women are in their late 40’s or early 50s, and they talk about the choices they made to get these positions in their firms.  I want to share some of their comments: Most importantly: Ask to take on the management responsibilities as your skills and credibility expand.  Don’t wait to be asked!  “Lean in.”  Do it consistently over a long period of time.  Actively create the future you want for yourself. Avoid any distractions from your top priorities.  Develop laser focus on your goals. Establish your credibility by being a very good lawyer who works hard.  Have a “dogged” work ethic. Build a lucrative book of business that gives you economic power within the firm. Show you have a “business mind” as w...

Hal Abramson, the author of   Mediation Representation: Advocating in a Problem-Solving Process , suggests that the following types of disputes or circumstances make mediation less desirable: ·         The party needs to establish binding precedent; ·         The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Walmart strategy); ·         The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB; ·         The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award; ·         The parties are embroiled in a value-based conflict on which they see no room for ...

I've been discussing the "what" of mediation.  What kind of disputes are ripe for the process?  In my last posting found  here , I identified some very interesting disputes that a court or the parties have sent to mediation.               Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process , suggests that certain types of disputes are especially amenable to mediation: ·         When the parties have conflicting views of the facts or law; ·         When a party needs to express strong emotions; ·         When a party craves the opportunity to be heard directly by the opposing party; ·         When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator; · ...

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life , had this to say about ADR: While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk. I now suggest to my students that, in less than a decade, the metaphor has completely changed.  ADR is now the elephant hovering over the chipmunk of litigation.  For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues.  The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; S...

This morning, I spent several hours reviewing the law blogs (or blawgs) that look interesting to me and adding them to this website so I could track them more easily.  The good news is you can track them more easily, too, by reviewing the list on the right side of this page. That list will show the name of the blog, the title of the latest posting, and how recently the author posted. For this research project, I used the list of 100 top legal blogs assembled by the ABA found  here .  I focused on the following categories: Legal News/Analysis Trial Practice Business of Law Marketing a Law Practice Careers/Law School Courts, and Legal Technology I hope you find this resource helpful.

I recently joined the ABA's Law Practice Management Section in an effort to support our graduates who will start solo practices because of the lack of opportunity in law firms and other traditional employers of lawyers in this recessionary economy.  I blogged about the day-long solo practice workshop the Appalachian School of Law offered this past spring  here .  I blogged about the employment prospects for new grads  here ,  here , and  here . This past week, I received the section's welcome packet and its May/June 2013 issue of the Law Practice Magazine.  The section focuses on the following four core areas: marketing, management, technology, and finance.  It provides section members with six issues of its "award-winning" hard-copy magazine, a monthly webzine, a bimonthly e-newsletter, and a legal technology blog.  It also focuses on the challenges women face as rainmakers and sells an impressive collection of books. The May/June issu...

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion. So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely: Discuss the costs, risks and benefits of not reaching a settlement. Discuss the best result each party can hope for in litigation. Discuss the worst result that could happen in litigation. Ensure that the client knows the facts and issues of the case. Examine the legal and factual strengths and weakness of each party’s case. Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” ...

In this series of posts, I have discussed the roles of lawyers in the mediation process.  This post continues that discussion.   Now that the lawyer and client have chosen mediation as a way to handle the dispute, the lawyer may  wish to: Explain what is expected of the client during the mediation. Remind the client that the object of mediation is not to “win,” but to reach a satisfactory resolution.  Remind the client that mediation is simply a continuation of earlier negotiations. Encourage the client to value in the mediation process the pre-existing relationships between the parties or the improved relationships mediation can create. Ensure that the client or client’s representative has authority to settle. Discuss who will give each portion of the presentation and the role the client will play in the overall process and decision-making. Advise the client to develop a working relationship with the m...

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself. Counseling the Client about Mediation In counseling a client about mediation, a lawyer may wish to cover the following topics: The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute. The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement.  That mediation creates no legal precedent. Whether the case is “ripe” for mediation. Whether the client has sufficient i...

Prior to the mediation, I circulate to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher , a well-known St. Louis mediator.  This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case. It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending.   It asks about the status of discovery and how much more discovery the parties need to do.   It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial.    Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far.   It then asks for a candid assessment of ...

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia .   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional resp...

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.   A recently published book finally puts in one place much of the good advice on representing clients in the process.   See Harold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).   Dwight Golann has also authored a new book called Resolving Disputes that he says reflects the perspective of lawyers representing clients in ADR processes.   Several law firm websites now have pages dedicated to preparing clients for mediation.   Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking t...

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.   By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent .  These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.     Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.   Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.” ...

In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel.  The presence of lawyers at the mediation was itself unusual according to some limited empirical research.  Two studies in Arizona , two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party.  Thirty-five to fifty-six percent of the mediations involved two pro se parties.   Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied.  Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party.   Moreover, sixty-nine to seventy-two percent of c...