Where Did The Time Go?
By Irwin E. Weiss
"Four things come not back: the
spoken word; the sped arrow; time past;
the neglected opportunity."
- From Omar Ibn AI-Halif 1
There are some good ways for a lawyer to deal with issues of time management, and some not so good ways.
Two not so good ways:
A lawyer in Chicago was investigated for allegedly overbilling the Illinois' Child Welfare Agency on work performed on uncontested adoptions. The lawyer billed 34 hours of work on Monday, April 9, 2002. On Tuesday she billed 44 hours. On Wednesday she billed 29 hours. On Thursday she billed 33 hours. She billed 25 hours on Friday and 42 hours on Saturday. Sunday was her day off, and she only billed 3.4 hours. She was a sole practitioner. Note the use of the term "was."
Ed Digges, was a lawyer for the firm of Wharton, Digges & Levin, after he left Piper & Marbury. He was disbarred for a conviction for mail fraud. He also billed more than 24 hours in a day. There are probably a dozen such cases around the country.
These examples are not cited as paradigms of appropriate "time management."
The scope of this article will be to make some suggestions as to how lawyers can try to effectively manage time in permissible fashion.
The reality is that you (and your firm) cannot handle every case in every jurisdiction in every area of the law. No one would quibble with that statement. You can handle more than one case. No one would quibble with that statement either. The key to successful time management is finding a balance between these two extremes in a fashion so that you can maximize enjoyment of the practice of law, retain the ability to take vacations, maximize income, spend time with your loved ones and enjoy hobbies, while at the same time removing the stress that infects our practices and can debilitate a practitioner of the law, particularly a trial lawyer.
To this end I recommend putting a small sign on your desk, facing you, which you can see when you answer the telephone. The sign should say: DON'T TAKE EVERY CASE. You have to learn to say "no"in this business. The reality is that if you take a small, worthless and time consuming case, when you are done it will have been small, worthless and time consuming. The client will not necessarily be grateful. The client will not necessarily have a major car accident and come back to see you. You will be tired and unhappy and your other clients and your practice will have suffered. The late George W. White, Jr. served as President of Maryland Association for Justice's predecessor, the Maryland Trial Lawyers Association in 1988. George noted that at the end of the year he would realize that 80% of his income came from two or three cases he closed that year. The small cases take time and take time away from the big ones with little remuneration and little enjoyment.
We've all had the experience of being talked into taking a case and having the case present a mental block every time you think about it or pick up the file. The standard advice for someone who opens his own office is to "take every case that comes in the door."This seems to me to be exactly the wrong advice. When I opened my own office, I took a case involving a request for an injunction to stop a real estate settlement, due to certain disputes amongst the parties and the realtors. I managed to stumble into the correct approach, got a good result and a reasonable fee, but I was really lucky and I lost sleep over it.
While it is true that your law license permits you to practice anti-trust law, to write wills, to file personal injury litigation, to appear before administrative agencies such as the Zoning Commission, and to negotiate contracts on behalf of a sports superstar or entertainer, the reality is that no one reading this article knows how to do all of these things.
When I started practicing law, the senior partner in the firm came to me because a man had consulted him who wished to pursue federal litigation in the area of labor law. The client claimed that his employer had discriminated against him in some respect. Moreover, grievances that he had filed with his union had been ignored. Thus, he wanted to sue both the employer and the labor union. My boss assigned the case to me because my resume had indicated that I had taken a single course in labor law at law school. Moreover, since I had only graduated from law school a few months earlier, labor law was surely to be fresh in my mind. Now, at the time I knew almost nothing about litigation. As for labor law, I knew that one could sue his employer under some federal statute, the name of which has long since been forgotten. I knew that there was federal jurisdiction at least some of the time. And, I knew that one could sue his labor union for failing to do what labor unions are supposed to do, and at the time I knew what that was called. I suppose my grade of "C" in Labor Law was deserved. Well, you probably can anticipate the rest of the story. I drafted and filed a Complaint in the United States District Court. It was served upon the defendants. The United Steelworkers of America hired some firm in Pittsburgh. The employer hired Piper &Marbury. The resulting litigation resembled somewhat the battle of Little Bighorn, and the slaughter which occurred in federal court was not unlike the final minutes of General Custer. In some sense I did better than Custer. My case lasted considerably longer than the battle of Little Bighorn, and, while I emerged defeated, I was alive. Taking that case didn't serve the client well, and I learned my lesson. Don't take a case in an area of law you don't know.
Some cases are very expensive to pursue. Can you afford to fund the case? If you take a complex medical malpractice case involving surgery and pathology, you'll need at least experts in those fields, and maybe an economist and maybe a life care planner. There will easily be $30,000 in expenses. If you don't have the money, and you cannot fully fund the case if that is necessary, don't take it. Or take it, refer it, stay active in it, and decrease your stress level.
Some cases are brutally time consuming. Again, medical malpractice cases are a good example. Can you afford to try a two week trial and be away from the office that long? Can you put in the time, spend the expenses, and wait years for resolution of the case? The longest case of my career was one where I tried the case; lost on a motion for judgment at the close of the plaintiff's case; won a remand at the Court of Special Appeals; defeated a petition for certiorari; retried the case and got a good verdict. The trial court at that point gave me an option of a new trial or a significant remittitur; we took the new trial. Retried the case for the third time and got a very good verdict; defeated post-trial motions; we were successful at the Court of Special Appeals. Three trials, paying experts three times, two appeals. It was exactly 7 years and 2 months from the time the client came to me until the time I gave him the proceeds of the case. It was a very enjoyable case because I liked my client a good deal. Of course, I didn't think I'd have to try the case three times and do multiple appeals, and sometimes you can't anticipate that kind of scenario. Screen the client. Before you file the suit, and indeed, before you take the case, determine both by asking the client and by independent research if the client has a criminal record that will be admissible and will destroy the case. Does the client have a litigation background so extensive that he's been in court more than you? Does the client have unreasonable expectations? Are there practical problems with the case that make it unattractive, such as a geographically inconvenient venue? Was all of the client's medical care delivered in some foreign country, and you won't be able to get records in English or bills that make any sense to anyone?
In my view we can learn something from the model of the medical professionals, particularly internists and family practitioners. These medical professionals diagnose the problem of their patients and refer them to appropriate practitioners in specialized areas of medicine. Of course, the family practitioner could try to set a fractured arm in the office or treat a patient with severe cardiac disease-- but doesn't it make a lot more sense to refer such a patient to a general surgeon or a cardiologist? It's better for the patient and thus, this is what is done. Remember --- the bottom line is that you should do what is best for the client.
An important component to the concept of time management is to find your niche, and identify that which you can do and enjoy doing, and that which you would prefer not to do, or which you are not equipped to do. If you go to my website, you will see a list of numerous types of cases which I do not handle and I tell the public that I do not handle them. This saves me the time in answering the telephone when a people wish to consult me on all of these various areas of law. It frees up time so that I may pursue the type of civil litigation which I do pursue. I find that some of my happy moments in the practice of law come when I hang up the phone after telling a client that I cannot help them, and sending them elsewhere.
I confess that I am not the most technology sophisticated attorney. However, computer research, cell phones, fax machines, e-mail, voice recognition software, blackberries, laptops, billing software, scanners, and voice mail all save money in the long run. They save an enormous amount of time. I'm old enough to remember hand delivering letters to opposing counsel because there were neither fax machines nor e-mail. I'm old enough to remember the day when word processing didn't exist, and documents would have to be typed, proofread, re-typed, proofread, and re-typed again. Devoting time to mastering the use of technology to the extent possible in the long run saves an enormous amount of time.
One of the great adjuncts of e-mail is the concept of "folders." Set up folders on your email to hold all your deposition transcripts, all your expert cross-examination material, or for each case in your inventory.
I do advocate, however, that you do not abuse technology. You don't have to have your cell phone on while you are having dinner with your friends or family. This is why cell phones come with voice mail. If you go to the movies, don't need to check your blackberry every few minutes for e-mails. Certain activities are completely incompatible with checking your e-mail. Examples of such activities are driving a car, skiing down a mountainside, and enjoying intimacy with your lover. (I'd be more graphic, but this is a family magazine.)
When something comes to you in the office that needs attention, just do it. Don't wait for the last minute. Doing so causes stress. You're still going to have to do whatever this task is. When the interrogatories arrive, scan them in and send them to the client right away. Keeping them on your desk or in the file does not get you to the merits of the case, which is closely associated with the pay day. When a court scheduling order says that a particular action is due on a particular day, the court does not by that mean that you are only permitted to do it at the last minute. The reality is that when a Plaintiff's attorney answers a set of interrogatories it is frequently more helpful to the Plaintiff's attorney than to the defense attorney. Why? Because it helps to get your thoughts together, to amass the evidence, and to get information that you need and don't have, and also to help you understand the weak points in the case. You will find that never takes as long to do something that you're putting off as you think it will do.
The key to stress free productivity is organization. You need to identify everything that has to be done on each case, whether now, tomorrow or later, and whether the matter is large, small or in between, and to organize these things into a logical system that is somewhere else other than in your head. If you write these "to do" lists on paper rather than try to rely on your memory it is safer and substantially less stressful. If something is written down on a piece of paper on your desk on your "to do list" you will learn not to wake up in the middle of the night wondering if you have forgotten something.
Maintaining and using a daily "to do list" can help you feel as if you are in control. You can identify items on your list as matters which require immediate attention, attention during the short term, or attention next month. The reality is that you can only do one thing at a time. If you're working on Mr. A's case you are ignoring all of the other matters in your office. Prioritizing and learning to juggle --- knowing what to do first --- is probably the hardest challenge in the practice of law.
Delegating to your paralegal or secretary is another way to reduce stress. You still have to keep these matters on your to do list because you have to supervise the person who has been delegated to do the work. However, there is a chance that the work will be done while you are busy with something else.
Let's say that you have prioritized. You have used your technology. Your desk is reasonably clean. And, you get a frantic phone call from a client and something must be done right away. That happens to all of us. If you have followed the advice early in this article, you will actually have time to devote to the crises associated with the practice of law. Sometimes a client is in the hospital or a former client calls with an immediate court date, or a new case, and you need to tend to that client right away. If you are organized you can work a new case into your portfolio. If you are behind the eight ball on three Motions for Summary Judgment, five sets of Interrogatories, and you have back to back jury trials approaching, you are going to be in deep trouble, and if anew client calls and needs prompt attention, you are really in trouble.
Delivering to your clients on promises you have made is appreciated greatly by your clients. Not delivering on your promises really makes people mad. You must make reasonable promises by judging exactly how long it is going to take something to be done so you don't say to your client"I will file this Class Action injunction in Federal Court in Madison, Wisconsin by tomorrow morning." You have made an unreasonable promise and thereby have raised expectations unreasonably, a perfect formula for stress. On the other hand if you tell your client "I hope to file this district court suit in a week or so. I want to go over it carefully and make sure it's right. I want to say exactly what we want it to say. I want to have other necessary papers ready to go, including Interrogatories and a 10-104 Statement. Then we'll be in position of advantage over the other side and can push the case and will have everything ready for tria1." The clients appreciate candor, and they appreciate organization. They want their cases to move quickly, but they don't want their cases to move so quickly that there is a disaster. You can explain to them that preparing a case is like baking a cake. You don't turn the oven on and break open the eggs if you have no flour yet.
Interruptions distract you from the matter at hand. Use the do not disturb button on the telephone when you are trying to read an appellate case or put the finishing touches on a Motion for Summary Judgment or an appellate brief. A busy practitioner once said to me, "I feel that if I work for more than five minutes at one time on anyone case I am cheating my other clients." Initially, I thought that was funny. Soon I realized that what this lawyer was telling me was that he was grossly over-worked. He has since had at least six malpractice claims filed against him or which he settled quietly on his own, but he continues in a very busy practice. Some people would say his practice is successful because he earns a lot of money. This would not be said by the people whose cases are ignored by him because of his heavy work load. It wouldn't be said by the clients who he represents whose cases are settled for 75% of their value because he is too busy to work the cases in the appropriate fashion. I wouldn't measure success by his bottom line, but rather whether he achieves for his clients appropriate results.
Irwin E. Weiss is a sole practitioner. His office is in Towson. Nearly all of his practice is civil litigation, about 85% for plaintiffs and15% for defendants. He serves as a private arbitrator. Besides the active practice of law, he has lectured many times to the MAJ and serves on the MSBA Committee on Civil Pattern Jury Instructions. Through good time management techniques, he finds time to travel, to play golf, to enjoy wine and food, to perform volunteer work for his synagogue, and to spend time with his family and friends. Full biography is available at: www.irwinweiss.com/cv.htm.
1 Al-Hajj Gmar ibn Said Tal (ca. 1797-1864) was a West African Moslem leader who started a holy war and established a far-reaching empire on the Upper Niger. back