Money, Small Law Firms

The Practice: When It’s Not The Case For You

Young lawyers just starting out with their own practice usually tell me the type of work they’re doing is “whatever comes in the door.” Of course the pedigree Biglaw types criticize that type of practice, but probably don’t know that when the now dead founders of their firm started, they probably had a similar type of practice. They did real estate work, wrote a will, and maybe even (God forbid) found themselves defending a client in criminal court. At some point, they developed a practice and became known for a certain type of lawyering.

What I see today is lawyers doing any kind of work in order to eat, and lawyers who are lucky enough to have a niche, but are still taking cases in which they have no idea what they are doing. It’s like the lawyer whose niche is probate, but has never stepped foot in a probate litigation case, or the lawyer who handles misdemeanor cases taking on a complex white collar case because “it’s a good fee.”

Those of us who suffer through lawyer e-mail listservs see these lawyers all the time. “Has anyone filed a motion for ____________ who can send me a copy?” That same lawyer asks for multiple documents in a period of several weeks and then asks about procedure and whether anyone knows opposing counsel. They’ve never handled a case like this, and worse, have no idea what they are doing. They’ll never realize how pathetic they look to everyone else on the list, many of whom will have an opportunity to refer a case, and will remember not to send it to them.

There’s nothing wrong with learning, unless you are learning to the detriment of the client. There’s no doubt we’ve unknowingly been on an airplane with a pilot who is in the captain’s chair for the first time, but there’s also someone sitting to the right of him.

This post isn’t simply about asking for help, it’s also about determining whether the case is something you should take. When you’re starting out, or struggling, and someone comes in with more money than you received in the last three months, you’re all too eager to pretend you know how to handle the client’s case. You’ll just take the retainer and start typing away on the listserv, or fake it and hope you can figure it out. You also hope the client will never know that they’ve hired a lawyer that has no idea what to do.

I’m not saying you shouldn’t take these cases; I’m saying you should protect your client, and yourself, in that order….

Sometimes I’ll get a call from a lawyer regarding a possible new case. “I have a client coming in this afternoon on a case I haven’t handled before and wanted to see if you could answer some questions.” I’m always willing to do that, and so are many other lawyers. These are the conscientious lawyers who are looking out for the clients, and themselves, before taking on the case. There’s nothing wrong with being open and honest with a fellow lawyer in the community about your lack of experience — you’ll gain a tremendous amount of respect, and it gives you an opportunity to develop a new relationship. I’ll often end the conversation with: “Let me know if you get the case; I’m happy to help you along the way.”

As a result of the lawyer reaching out, they may determine they shouldn’t take the case, or that they should be second chair. Keep in mind that the more experienced lawyer is getting calls for cases they don’t want and you’re now in front of their mind.

In addition to reaching out to another lawyer before the meeting with the client, here are some more thoughts on evaluating “the big case”:

1. Big cases often suck. When you get over the fee, you often realize you hate everything about the case. Don’t ever forget that big cases can bring big headaches. A $250,000 case is not always ten times better than a $25,000 case.

2. It’s that one outlier case that can ruin your practice. You may be excited that this new, different case has walked in the door, but six months in to it, you may find yourself in a forum you don’t practice, and doing things you never wanted to do. It can make you hate being a lawyer. At least if you have solid help in the form of co-counsel or a good mentor, you won’t be stumbling through every stage of the case. I know you want all the money, but that can come with all the headaches as well.

3. Don’t be afraid to accept that this new case is not for you. I remember being a young lawyer and everyone talking about the wonderful white-collar defense world. That was the goal. The first time I sat in a conference room with boxes of documents and too many lawyers, I thought, “This is the practice of law?” The best type of practice is one you like, not one that you think others think you’re supposed to have.

4. Most — not all — of the time when you decide not to take a case that is generally outside your practice area, or level of practice, you’ve made the right decision, and will realize it down the road. Forget about the money, and concentrate on the legal work involved in the case.

That’s all. Nothing else this week. Bye.


Brian Tannebaum will never “get on board” at the advice of failed lawyers who were never a part of the past but claim to know “the future of law.” He represents clients, every day, in criminal and lawyer discipline cases without the assistance of an Apple device, and usually gets to work (in an office, not a coffee shop) by 9 a.m. No client has ever asked if he’s on Twitter. He can be reached at bt@tannebaumweiss.com.

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