What’s in a Name? Increasing Your Sphere of Influence

From extricate.org

You may have heard, “You can tell if you’re a leader by looking behind you and seeing if anybody is following you.”  Really, if nobody is following you in your endeavors, then you might not have a whole lot of influence.  There is a simple way to make sure that at least some people are influenced by your actions and words.  Learn their name.

I’m completely serious about this too.  If you actually learn the names of others, you will see your influence on them increase.  Why? Because others feel important when they are remembered.  It makes them feel good about themselves.  It shows that you made an effort to build a friendship with them.  And people listen to their friends.

Now you are probably saying, “I’m terrible with names!  I can never remember anybody’s name!”  Most people I encounter and discuss this issue with say the same thing.  And I used to say it too. Well, be encouraged! You can change! 

I used to be absolutely horrible with remembering the name of any person I met.  One time, I saw a person I knew at the movie theaters while I was with friends from school.  I started introducing the person to my friends.  After telling all of my friends’ names, I said, “This is . . . a girl from my church . . . and I . . . don’t know your name . . .”

Who does that? Who introduces a person they don’t know?  Right then and there I made a decision to purposely remember others’ names.  I found out a couple things in my attempt to make others feel special (well . . . and really make me not feel stupid . . .)

Why I couldn’t Remember Names – This is the SIMPLEST, yet STUPIDEST thing.  And I bet you’re doing it too.  When it came to introduction time, and the people I was meeting started introducing themselves, I stopped listening.  Not that I checked out, but that I was focused on thinking of the next thing to say!  Because I was thinking about what I was going to contribute to the conversation, I would miss what others were contributing . . . including their names! 

I realized this and started listening to the roll-call with purpose.  When another person was saying their name, my priority was hearing it.  And not just hearing it but trying to think of a way to tie their name to something they were wearing or doing.  “Sally is shopping.” “Mark the musician.” 

How I started Remembering Names – Little tactics like the above tie-in and saying the name five times aloud right after hearing it can be helpful to remember names, but I forget to use the first tactic and the second tactic may not be appropriate in the setting (however, as a aside, I have made a joke about it right after introductions like this:  “Tom, Tom, Tom, Tom, Tom . . . If I say it a few times I won’t forget your name.  Tim right?  I’m joking I know it’s Tom.  This actually does help because you’ve made the introduction an event that your mind will remember).

The following strategies will help you remember new names.

Say the First AND Last Name – When you introducing yourself to others, ask the other person their last name.  I know you may think this will compound your ability to remember because now you’re remembering TWO names.  But it doesn’t.  It will give you an extra tie to another thing.  Mark will be easier to remember if you know his name is Mark O’Brian.  It seems counterintuitive, so just try it.

Say the Name several times in the Conversation – Right at the beginning, “Oh, nice to meet you Mark.”  A little later on, “Well, Mark I was going to do this and that . . .” And at the end, “Mark it as great to meet you! Doing this will solidify the name with that person in your memory bank.  It will also show Mark that you know his name and he’ll feel better leaving the conversation.  It’s been said that the sweetest sound to a person’s ears is their name.

So go ahead, make a person feel good.  Drip a little honey in their ears by saying their name a few times.  And make sure you get their first and last name.  Once you start knowing names these people will start liking you, and they’ll start letting you influence them.  And this simple tool will singlehandedly increase your sphere of influence.

www.lawmcd.com

4L: What to do when . . . You Write Your First Complaint

Welcome back folks!  Have you ever heard the saying, "The first [one] to plead his cause [seems] right, Until his neighbor comes and examines him"?  It's a proverb from about 700 B. C.  It still seems pretty relevant today too huh?

This proverb will be our guidance for drafting our first (and every other) complaint.  While we're drafting the intricate details of our complaint, remember that when your friendly "neighbor" of a lawyer comes and examines you, your petition may not seem as right as you'd like.  With that in mind, we can use two tools in our drafting approach.  I will focus on Missouri in some parts of the approach, but generally, this approach can be used for federal complaints. 

Some of this will be VERY elementary, so if you don't care about this move on down to "Drafting the Claims." For the neophytes, here are some considerations for drafting:

Caption - I'm not very good with Microsoft Word, so I don't know how to create two separate panels in which to type while keeping the ")" from moving all over the place. Frankly, it takes too much time for me to return the close parens back to the center.

At at the beginning of my short career, I was working with a brilliant 32 year solo-practitioner, Larry Bratvold, and looking over his pleadings.  I noticed that he did not have close parens, but a straight line right down the middle of the caption.  He simply inserted a line from the shapes box and doesn't have to mess with the ")".  When his caption is longer, he stretches the line.  If it is shorter, he shrinks it.  Now I do that too, and it has saved me time AND frustration.

Title - If you're having trouble thinking of a title for the complaint, determine what you're asking. Some attorney's use things like Plaintiff's Complaint Asserting Defendant's Products Liability. Why not just say: "Complaint for Products Liability", or "Complaint Seeking Injunction"? Just say what your doing, don't make it too hard.

Introduction - I'm sure you're probably freaking out because you don't know how to word your opening sentence for the pleading.  To be honest, it doesn't matter as much as you think it does, but I'll give you an example that you can cut and paste from here:

COMES NOW, [insert Plaintiff's name(s)], Plaintiff(s), by and through his/her/their attorney, [insert your name], and for their Complaint [insert your complaint title here] allege(s), aver(s), and state(s) the following:

Remember that ONE person allegeS, averS, and stateS and many people allege, aver, and state!

Complaint Headings - Depending on your jurisdiction, you may want to set out separate headings that outline the parties, jurisdiction, background facts, or procedural history.  These should be centered and underlined.  I recommend using these headings

DEMAND FOR JURY TRIAL

JURISDICTION AND VENUE

PARTIES

FACTS or BACKGROUND FACTS or GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS 

COUNT I - [INSERT COUNT]

Body - For each sentence or thought, use a separate number:

                1.       Defendant is a foreign for-profit Delaware corporation doing business in Jackson County at 1234 Main Street, Kansas City, MO 64106.  Defendant's registered agent may be found at: Bilbo Baggins, 15 Bag End, Shire, Middle Earth.  Defendant is an employer as defined by 29 U.S.C. 630(b) and has employed Plaintiff at all times relevant to this action.
              
                2.        Defendant hired Plaintiff on ______.
. . . and so on.

Signature Block - When you're submitting any thing to the court you should sign off with "Respectfully Submitted."  Check your jurisdiction for the information needed in the signature block, but Missouri requires: "[C]urrent mailing addresses, telephone numbers, facsimile numbers, electronic addresses, and Missouri bar numbers, if any." Rule 43.01(c). 

Now that we got some nuts and bolts out of the way.

Drafting the Claims - The other stuff is kinda important to make you feel warm and fuzzy inside when you submit the complaint.  The following stuff is of utmost importance to make sure you win the case, or at least don't get dismissed.  Drafting the claims is not as hard as you may think (or as hard as everyone seems to make it).  Just make sure you plead the elements of your claim.  That's it! No really, that's it.

Missouri is a fact pleading state.  This means that we must plead enough facts to substantiate our claim.  If your jurisdiction is not a fact pleading forum, consider doing it anyway.  The reason? Because you're reading what I'm writing and I recommend it.  No, seriously, pleading the facts gives you a method to actually plead the elements of your claims. 

1. Jury Instructions - Missouri has the Missouri Approved Jury Instructions (MAI) that should guide a Missouri attorney's complaint drafting (in Missouri we call them "Petitions."  Aren't we special?).  Rich McLeod, a very experienced attorney, who happens to be the Missouri Supreme Court  Reporter for the Committee that writes the MAI, recommends allowing the MAI to guide not only jury instructions drafting but also petition drafting.

If you know you're going to be using that verdict director for the jury, then you already know the elements you must plead.  For a negligence case, you know you have to satisfy "Duty, Breach, Causation, Damages."  So use factually based sentences that satisfy the claim.  For instance:

      1.     Defendant owns a retail business open to the public between the hours of 10 a. m. and 9 p. m.  (business owner's duty to make safe is now implied because of the fact).

     2.     Defendant failed to make safe the icy parking lot after the ice storm on Jan. 4. (breach is implied because the storm made the Defendant aware of the danger, failed to make it safe, and Plaintiff was harmed).

     3.     Plaintiff was walking on Defendant's premises during business hours to shop.  Plaintiff slipped and broke his neck, collarbone, pinky finger, big-toe, shoulder-meat, and buttocks. (causation implied from plaintiff falling on unsafe icy conditions).

     4.     Plaintiff suffered eleventy million dollars ($11,000,000.00) of medical bills from the fall on Defendant's premises.

2. CaseLaw - This is almost identical to the above tool, but this comes from the caselaw.  Research the elements of your claim and determine what the courts look for in your case.  If you have an employment discrimination case, the elements come from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The prima facie case for discrimination is 1) the plaintiff/employee was in a protected class, 2) the plaintiff/employee suffered an adverse employment action, and 3) discrimination is likely the reason for the adverse action. 

So break down your petition with facts that support each element.  1) Employee is a woman, 2) the employee was fired on Oct 21, 1909, 3) employee was told women are not good workers, especially when pregnant. 

Why go through this painstaking process?  Because you will get a motion for dismissal based on a Failure to State a Claim Upon Which Relief Can Be Granted (12(b)(5).  When this is submitted, the judge can see that your pleading claims the elements perfectly,  and thus relief CAN be granted. 

And because you will inevitably get a summary judgment motion.  And even though you can't use your pleadings to rebuff the summary judgement motion, you can use affidavits that reiterate the elements you pled, based on the facts that the affidavit must contain.

Remember, don't make this harder than it has to be.  But also remember, to make it as professional as it should be.  And don't forget to remember that a good pleading is only as good as the claims pled.  Lastly, make sure you also remember a good pleading will still seem right when a neighbor comes and examines it.   

The Best Offense is the Best Offense: Creating an Indefensible Position for your Adversaries

In the movie The Usual Suspects, Kevin Spacey makes a comment that has more widespread significance than the writers probably intended.  He states that "the greatest trick the devil pulled was convincing the world he didn't exist."

People frequently say that the best offense is a good defense.  That actually doesn't make sense.  I understand the thrust of their proposition, but the best offense is an offense that is indefensible.  The best defense is a a defense that is impenetrable.  One way to make sure your adversaries do not have a impenetrable defense is by making them think you don't have a good offense.  That's why the devil's convincing the world he doesn't exist works so well.  Because people put their guard down.  They stop defending. 

A few weeks ago, the 13-0 Green Bay Packers came to Kansas City.  My wife gave me an early Christmas present by getting tickets to the game.  The Packers have been my favorite team since I was about eight years old.  And this was the only professional game that I'd ever been to. 

The Packers have been absolutely unstoppable this year.  And the Chiefs, well, have been quite stoppable.  But through the entire game, the Packers couldn't contain the Chiefs offense.  Not that the Chiefs scored a ton of points, but that it seemed as though the Chiefs could pass ten yards at a time, at will.  Why do you think this was?  I tend to think that the Packers were over confident in their own abilities and underestimated their opponents abilities. 

We can utilize these analogies in our own lives.  Make sure that people don't see you coming.  There is a time to be professional and competent.  And I'm not proposing to feign ignorance.  I'm just proposing that it would be much better to be underestimated and win, right? 

I know an attorney that sometimes seems unkempt and non-caring.  For instance, one day the right side of his shirt was completely un-tucked.  Suit, suit-coat, button-up shirt and tie . . . and half of the shirt un-tucked.  The next day?  Suit with no coat, french-cuffs with cuff links, but the cuffs were folded contrary to the creases and looked sloppy.  I don't know if he did this on purpose (and these were NOT the only two instances of wardrobe malfunction), but at first glace, you could question his ability to lawyer.  However, when you read his briefs or and saw him when he spoke, you instantly knew you had underestimated him and under prepared.  This guy was good. 

Its interesting to watch young attorneys interact with each other, judges, and attorneys senior to them.  Some of them try way too hard to seem competent.  Their behavior isn't congruent with their own beliefs about themselves and it shows as self-consciousness. 

Just because we're young doesn't mean we're incompetent.  You don't have to prove to others you're competent through your interactions.  If you're good, they'll know it by the trail of success you leave behind you.  Don't think that your young age, or few years of experience makes you any less.  Some may know of this quote, "Don't let anyone look down on you because you are young, but set an example . . ."  Even Superman had to start somewhere . . .

And remember, if someone underestimates you because you're young, you just gained a powerful advantage.  They will not see you coming.  So utilize their over-confidence by using a great offense on their indefensible position.

Sacking Armchair Quarterbacks: How to Keep your Critics from Ruining your Day

Critic: "One who tends to make harsh or carping judgments; a faultfinder."  That is not my definition.  That is one of three definitions one can find on my favorite dictionary source.  Dictionary.com. (I have downloaded about five apps for my phone.  I'm halfway embarrassed and halfway proud to say that one of them is Dictionary.com.  I'm embarrassed to say one of them is Pumpkins v. Monsters.)

A faultfinder.  Remember this term for a few minutes. 

Undoubtably, you've been the victim of critique.  Undeniably, you've been the subject of carping judgments.  Unquestionably, you've been the target of harsh and mostly unwarranted faultfinding.  It probably didn't feel very good did it?  You know what?  I know a secret.  I know how to make those feelings go away.  I didn't say I know how to make those PEOPLE go away.  They're like the mythological Hydra.  You chop off one head and three more pop outta the nasty stump . . . Anyway, I do know how to make sure you don't have those feelings anymore.

Remember to roll your Rs.  Like the Hydra, these three heads will repopulate as you implement them.

Recess - When you get criticized (and I mean unwarranted, unconstructive criticsm), just take a break.  Stop what you're doing, sit down, let the unsavory feeling of defeat sink in.  (Now don't over do it!  Don't throw yourself a pity party!)

This break will give you two distinct opportunities you need.  The first, and most ideal, purpose of this recess is for holding your tongue.  Critics love drawing you out.  Critics LOVE ratling you.  Don't let them!  Critics love making you squirm.  So don't squirm.  If you take a short recess, you'll find that you won't say something you regret.  And you get to gather your thoughts for a response (which I don't advise doing!)

Second, this recess will give you exactly enough time to determine if the critique has merits.  Even if the critique is from your most notable enemy, remember that they probably see you differently than you want to be seen.  In any case, take note of the critique long enough to evaluate your actions in light of your beliefs and morals.  If they check out, move ahead 5 spaces to "Recast." 

Recast - Recast means to reorganize or build up.  This second stage is vitally important.  You won't be able to move to the third step without it.  You should think about the critics and the event being critiqued.  Also think about the direction you're headed in and the purpose for your actions. 

What I've found is that MOST critics are only critics.  I mean THAT'S ALL THEY DO!  They aren't really progressing like you are.  They aren't going for it! They aren't putting their reputation on the line like you are!  They aren't really attempting anything! That's why they have the time to critique you.
A lot of them are armchair quarterbacks that won't make a decision.  But then they'll degrade everyone after someone does finally act.  (Remember MOST.)  Some actually are just grumpy that won't be happy at all.  But that doesn't take away the fact that you're still doing something.

Maybe you did mess up.  Remember, the word faultfinder? We all have faults. Your critics have faults. And to be honest, your critics are probably really good at identifying their own weaknesses . . .

Once you've realized that your critics don't have any REAL bearing on you or your situation, then you're ready for the next step.  If you are now smiling about your critics lack of drive and initiative, move ahead 2 spaces to "Release."

Release - This step is when the unsavory feelings go away.  Once you have evaluated yourself to determine if change is needed, and recast the situation to understand that you're progressing, now you must know that this criticism won't hold you back.  The only thing that is holding you back is hanging onto the upsetting words.  If you're bitter towards someone, I'll guarantee that they've moved on.  They don't care that you hold a grudge.  Chances are, they don't even know. 

So draw out your confidence and get moving.  Keep progressing! And know that you'll get criticized again.

4L: What to do when . . . You get your first responsive pleading

From the Gemini Geek -
 thegeminigeek.com

Come one! Come all! Welcome to the emotional roller coaster! Step right up! And defy your inner constitution!  Your one ticket gets you one responsive pleading! Prepare yourself as you're taken to the top of the track and dropped 300 feet in two seconds . . .!

If you're a new attorney and you've already received your first responsive pleading, then you know exactly what I'm talking about.  If you're not a new attorney, and you've received a reply brief, or Suggestion in Opposition recently, you're in the same spot.

Let's deal with the new kids on the block first.  Chances are, you've gotten an answer to a complaint.  And that first answer completely took the wind from your sails.  Well, here's the first piece of encouragement.  IT WAS A PLEADING AS A MATTER OF COURSE for your opposing counsel (OC).  OC didn't personally tell you're wrong, you're inexperienced, or you'll pay their attorney's fees.  That was probably one of several answers they filed this week, and most of them probably look very similar.  I'll bet they all asked for dismissal with costs paid by someone other than them.  That's just how it goes . . .

The other piece of encouragement comes now: Tom Bender, a very experienced, highly respected, successful attorney told a bunch of us youngsters something that I've tried to remember every day I file something against BigLaw.  He said this, "You younger attorneys, at the beginning of your career, are probably only 5% less competent than successful attorneys that have been doing it a while."  And I believe him.  After all, you do have the same degree and professional licensure.  You just have to learn how to use it.  And you will.   And you are.  Don't sell yourself short.

My story:  My first responsive pleading came one month after I became an attorney.  And the OC happened to be at one of, if not THE biggest, most reputable firms in the city . . . My next responsive pleading? Bigger city; bigger firm.  Do you know what these did to me?  I saw the outside of the envelope with "BigLaw" letterhead addressed to "Mr. Jonathan D. McDowell, Esq." and started shaking.  I started reading the answer and became nauseous.  Then I read, "dismissed with costs . . ." and it nearly knocked me off my feet.  I can remember reading it while standing in front of my office chair.  I sat down with all confidence sucked from my being . . .

From Boxing 360 - http://www.boxing360.com/

Once I recovered a few days later (by that I mean "after laying in fetal position for three days"), I did some research, I looked at my facts again, I realized my client's case was great, and then I responded.
 
For the experienced folks:  I don't think this changes, does it?  Although I don't feel AS bad when I get a reply, I still panic and think that my case is terrible and we're gonna lose!  The Chair of the Missouri Bar Solo and Small Firm Committee, Chris Wendlebo and I were discussing this exact issue.  He has been practicing for about 12 years.  He told me that almost every time he gets a response telling him he's wrong, he panics.  And then he looks at his arguments again, realizes they're strong, and understands he has the higher ground. 

From Tech Shout - www.techshout.com

Bottom line kiddos: You're not alone.  You're panicking with the rest of us!  However, just know that some of these responsive pleadings are a matter of course and are no reason to get excited.  When you do get the wind knocked out of your sails, try to get your sails back up as soon as possible.  You're not dumb.  You're not a loser.  You don't have a terrible case.  You're smart.  You're passionate.  You're competent. 

You're an attorney.

The Wait of Glory

C.S. Lewis

C.S. Lewis authored "The Weight of Glory." It is a compilation of his sermons that he delivered for giving hope and encouragement to people aduring World War II.  Although some of my posts are not specifically for attorneys, this one is.

When a client calls on me to represent them in any matter, it occurs to me that these people are entrusting to me a very sensitive and delicate situation in their lives.  And not only that, they are glad to shell out a large chunk of money for me to do so.  Most times this happens, it strikes me how heavy this situation really is.  The 'weight' of this situation compels me to be thankful to the person that has chosen me.  There are months that I don't catch a new client and thus don't increase my income.  But I know that if I continue to feel the "weight" of gratitude, I will eventually come into "glory." 

For other attorneys that read this, I encourage you to send thank you cards to your clients (or the most recent clients if your client list is too large to make this feasible) with a genuinely thankful heart.  Your authentic thanks in a hand-written note will make a HUGE impact on your client.  And in turn your reputation will grow.  Your practice will grow.  Your fulfillment will grow.  And eventually you will not have to "wait" for "glory", but feel the "weight of glory."

I'm continually thankful for my clients.  I understand the trust that you've given me and I do not take it lightly.  Thank you.

From http://karlagarrard.wordpress.com/ - Karla's Blog

Happy Thanksgiving!

4L: What to do when . . . You get your first client

OK boys and girls! This is it! You've finally delved into the practice of law because you now have a client!!!!! Congratulations! Throw a party!  . . . and then become very afraid . . . (which you've probably already done).  But don't fret, because you're worth your rate even if you don't think so.  Well it IS true.  And now we're going to increase your worth.

Now that someone has actually decided to hire you, what should you do?  You need to decide where to meet the client, what to bring to the meeting, and what to say (or better yet, how to act).

Where to meet
That really depends on if you're practicing out of your house, your parents' basement, or an office.  If you're practicing out of your home, you should be aware of some issues that make it hard to meet there.

First, are you willing to allow a person you don't really know come into your home? When I practiced out of my parents' basement, and then out of my downtown apartment, I never was willing to do that.

Second, is your home ADA compliant?  If you're not in a wheelchair, it probably isn't.  In that case you should punt your meetings to another place.

Third, can you maintain a professional atmosphere in the home? And by this I mean DO YOU HAVE A FREAKING OFFICE IN YOUR HOME (my father would not approve of that euphemism, however, he has used it recently [at the age of 77])?  If you are going to meet in your kitchen, bedroom, or even at your dinning room table, you may consider heading to a quiet corner (CONFIDENTIALITY) of a Panera or Starbucks (this recommedation is in no way an endorsement of either business and until I receive advertising checks from either, it will remain that way ;-)). 

Also, if you practice from home, getting out will help you defeat the feelings of isolation and help create an emotional disconnect from your home workspace.  Take every opportunity you can to get out of the house if you practice from home.  The sun will do wonders for an unmotivated day.

When I practiced out of my downtown loft, we had a downstairs conference room and lounge.  I opted for that and it always seemed credible to my clients (I also had a security officer that would have to call me down so it seemed much more big-time than it really was).

I've also offered to meet at the client's home, and they've appreciated this depending on their situation. This can also be dangerous and I would not recommend female attorneys meeting at a male client's home (I'm old fashioned, but "old fashion" trumps "kidnapped and mangled death" . . . I win).

If you work from an office . . . meet at the office.

What to Bring
You need to bring a pad of paper for notes.  You need to bring two pens (if your only one stops working, you'll look unprepared).  You need to bring two fee agreements.  You need to bring a client intake sheet for their personal information.  You need to bring something to bring these in.  You need to bring a mind of research. 

Hopefully you spoke to the new client enough to know what AREA of law this is.  You should do some foundational research on the issue at hand, and some offshoot areas.  And this isn't because you're going to resolve the issue.  It is simply so your clients think you know what you're talking about.  You must instill confidence in them here.

What to Say (How to Act)
Control the situation, but listen.  Your new client will be expecting you to tell them what to tell you.  They'll be expecting you to tell them when to tell you.  They'll be expecting you to tell them what you know.  As this may be your only meeting before you go to court to argue a motion, or before drafting a pleading, get as much information as you can here.  Ask them to tell the story from the top, in excruciating detail.  And take notes.  Not so much that you miss it, but enough that you get the issues for later.  After they tell you, then tell them. 

Tell them the area of law.  Tell them what the courts generally say in these instances.  Tell them the TRUTH.  It they have a case that will lose, you better tell them! You'll be on the hook later anyway!  If they have a losing case, tell them how you're softening the blow, or at least protecting the amount they will lose.  CLIENTS APPRECIATE THIS. THEY DO. NO, SERIOUSLY... THEY DO.

Fee agreement time . . . dun, dun, dun . . . Why is it so hard to ask people for money for services you just don't believe in?  I know it is.  But the client believes in you, so don't let your feelings of inadequacy get in the way.  Say, "Ok, I can do [rattle off what you're going to do in their case] and here's what I charge . . ." (look at the market, but $175.00 - $225.00 per hour won't scare most clients in larger areas.  If you're in a smaller areas $125.00 per hour will do).  You have to be confident here.  Don't offer discounts, or lead on that your rate is too high.  I've done that.  I never got paid . . .

When I say, "You WILL PAY ME OR I'LL THROW THE GAME," I get paid . . . Seriously though, if you're confident in your rate, and ask for the money, you'll get the money.  Don't apologize. 

Get both agreements signed and send one with them.  Have them fill out the intake form while you're closing the deal.  Thank them for their time, tell them you'll be in touch (because you will be sending an engagement letter), and send them on their way.

Congratulations! You have a client.  Now get to work. 

Sincerely,

Your Dear Wormwood