In this episode, in-house lawyer Elliot Miller and outside litigation counsel Adam Losey discuss the different perspectives they have in their respective roles, the realities of traditional v. alternative billing structures, the importance of trust, and more.
Adam Losey represents companies and individuals in high-stakes litigation across the country and advises clients on a variety of information security, privacy, electronic discovery, technology contracting, social media, and internet-related matters.
Elliot Miller is general counsel and chief compliance officer of Wowza Media Systems, a global leader in streaming video software and services.
Automated: Welcome to the Lawyerist Podcast with Sam Glover and Aaron Street. Each week lawyers brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now, here are Sam and Aaron.
Sam Glover: Hi, I’m Sam Glover.
Aaron Street: I’m Aaron Street and this is episode 132 of the Lawyerist Podcast, part of the legal talk network. Today we’re talking with startup in house lawyer Elliot Miller and small firm boutique outside counsel Adam Losey, about the different ways they view one another’s roles and how it’s changing.
Sam Glover: Today’s podcast is sponsored by Clio Legal Practice Management Software. Clio makes running your law firm easier. Try it for free today at Clio.com.
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Sam Glover: Aaron, there’s a piece of news lately that I think answers a question that we get all the time when we talk about tech competence, which is we talk about tech competence, we give examples of how it’s harmed clients and examples of lawyers who aren’t probably meeting their duties. Someone inevitably marches up to me afterwards and challenges me to come up with an example of when tech incompetence has ever gotten a lawyer in trouble. I think we’ve actually provided many examples of when it’s potentially lost someone … A point they’re trying to make in the courtroom, or when it’s harmed their duty to keep their client’s information secure.
Just recently there’s a great example of where a lawyer’s incompetence with eDiscovery software harmed not just her client, but thousands, or hundreds of thousands of her client’s customer. This Wells Fargo case that the ABA Journal covered recently, where the lawyer didn’t understand how to use the eDiscovery software. When she produced the documents to the other side, she was producing all kinds of stuff that she hadn’t reviewed that wasn’t privileged and that wasn’t redacted.
That revealed that all kinds or personal information about Wells Fargo’s customers and also probably harmed Wells Fargo’s claims and strategy in the litigation as well.
Aaron Street: Wait, we’re Wells Fargo customers. Do we have standing to get her discipline started?
Sam Glover: I mean I’m wondering about that honestly. Is my information included in this document dump basically? Especially with the concerns about Pacer, which is terrible when it comes to un redacted information. It’s not like it’s hard for somebody to get hold of it. Nothing has happened to her yet. Nothing may happen to her and her argument is that the software is too hard to use and she shouldn’t be expected to do it correctly I guess, which is crazy to me.
Aaron Street: I guess that’s the part that I don’t understand, is the lawyer who uses the software and then after using it improperly and potentially violating all sorts of rules, or losing her case, then says the software was the problem, but you should fact that out at the front end, is do I know how this works and what the buttons do and what will happen when it’s time to submit. I want to understand all that before I hit the upload button at the front end.
Sam Glover: That is the definition of tech competence.
Aaron Street: Right.
Sam Glover: Is understanding how the technology works, before you try to use it.
Aaron Street: Which is now a … Always has been a core ethics rule.
Sam Glover: Yeah always [crosstalk 00:03:28] been.
Aaron Street: That you must be competent.
Sam Glover: Yeah always has been. Newly sort of call about in the comment, so I think this is probably the best example I’ve seen, where the next time somebody challenges me as if, what they’re really saying is, “I want to go on being incompetent, isn’t that fine?”
Aaron Street: The standard I think is interesting is kind of the reasonableness, which is you have to do reasonable things to be competent.
Sam Glover: Yes.
Aaron Street: The question here is, how much eDiscovery training do you need, or not need, in that same sense that meta data in Microsoft Word, can often reveal things you don’t expect it to. How much do you need to know about what Microsoft Word is, or isn’t tracking and whatever future technology comes next. There can’t be an expectation that you have protected all future clients from all potential risks, from all things technology could, because technology is moving way faster than people, let alone lawyers can even keep up with.
Sam Glover: Yeah.
Aaron Street: It’s the question of what the standard is. This one seems potentially further out of bounds than many.
Sam Glover: Yeah, we’ll include the link and you can judge for yourself. I mean you’re right. The question is what is reasonable. My argument will always be that doing nothing is never reasonable. You have to do something.
Aaron Street: Right.
Sam Glover: What bugs me about getting challenged on that point is, I think it’s lawyers who are trying to save their consciousness and justify continuing to do almost nothing. That’s never going to be okay. The next time you get to use eDiscovery software in litigation, maybe check out the knowledge base at least and try and figure out how to use it first.
Aaron Street: Yeah, I mean eDiscovery software, especially on the Wells Fargo enterprise, large firm scale has got to be a nightmare to figure out.
Sam Glover: Maybe.
Aaron Street: Which one to use and then the training you need to have. I mean I literally can’t even comprehend how terrible it must be to have to be a doc review manager.
Sam Glover: Yes, but you need to be.
Aaron Street: You do.
Sam Glover: Yeah. So, with that, this is not something we discussed, but I’m guess Adam and Elliot have probably run into it, so let’s hear from them about related subjects.
Adam Losey: Thanks very much for having us here Sam. My name is Adam Losey, I’m a partner at a fairly new boutique law firm, coming from a big law firm background and I’m generally speaking a litigator and trusted advisor and counselor role in my practice.
Elliot Miller: Hi Sam, this is Elliot Miller, I’m general counsel from [Wouser 00:06:09] Media Systems streaming video software and services company based in Denver Colorado.
Sam Glover: Elliot, how big is that company?
Elliot Miller: Got about 100 people. About half of those work out of our headquarters here in the Denver area and the other half work from their home offices in the US and around the world.
Sam Glover: How big is the lawyer department?
Elliot Miller: It is just me, you’re talking to the whole department.
Sam Glover: Got you. I didn’t have a good feel for roughly how many employees equal how many in house lawyers. I don’t know if there’s a rule of thumb for that.
Elliot Miller: I don’t either. We’re at one to 100 right now and I do have the benefit of getting to do a fair bit of business development and non legal work as well. The work fluctuates from being pure legal work, to a mix, but I am the legal department here.
Sam Glover: Adam, I want to ask you more about your firm too, but I’m curious about what Elliot just said. You do, when you say business development, say more about that.
Elliot Miller: Sure, I’ve gotten an opportunity to do a fair amount of work with our partners and prospects globally. Working with large entities that we want to develop relationships with, whether it be a channel partner relationship, or the software and services company, working with platform providers to offer our software and services on their platform, or create some more integrate offerings. We have the opportunity to work with a number of folks in those types of contexts. I’ve on occasion gotten to trade shows and have to get separate for the business cards that don’t come off as purely a legal role.
It’s been a lot of fun and it’s certainly been a great way to learn about the business and some of those competing interests that you typically have between the sales, or business development group and your legal group and helping I think to bridge those gaps by wearing both hats from time to time.
Sam Glover: When you say you’re working with channel partners and other partners. Is that mostly in your role as a lawyer to help negotiate the arrangement? Are you stepping out of your legal shoes?
Elliot Miller: Certainly leveraging the former. It usually starts with the initial conversations that lead up to some of deal, some sort of agreement and certainly negotiating that deal. Then where it’s appropriate I’ve been able to stay in place and be a [inaudible 00:08:20] representative in some of these key relationships for the company.
Sam Glover: Cool. Adam, you started your own firm and tell me a little bit more about how you founded it and how it’s grown since then and what it looks like today.
Adam Losey: Sure, actually I joined my wife who started our firm about five or six months before I joined it. We were both with large national law firms. We liked the the firms we worked with very much. No issue with the jobs there, but we wanted to do something a little bit different. She kind of went first and had some success in the practice. We talked at length about this culture we wanted to build and this firm we wanted to film and actually sat down and wrote a bunch of business haiku that turned into our attorney’s handbook over time.
Sam Glover: I’ve read those haiku. Many of them are absolutely terrible.
Adam Losey: Yeah I [crosstalk 00:09:12] …
Sam Glover: But also really funny.
Adam Losey: Yeah, I’m a better lawyer than I am a poet. My pros is probably my stronger point, but most people tend to either immediately get turned off by our culture manual and the idea of a haiku, but then there’s special little subset of lawyers that luckily we’ve been able to build. There’s six lawyers and a paralegal right now and we’re growing. It’s a little bit unique in what we’re trying to do. We’re not trying to become a bigger law firm, but we want to be a medium sized boutique that does primarily litigation, commercial transactions, business counseling and internet and privacy sort of work. Really have liked the experience and it’s been a different experience, than the past eight years or so of my legal career.
Sam Glover: How big are you trying to get?
Adam Losey: That’s a really good question that we struggle with. I think what we really want to do is be the best at the few things at the few things we do and also be able to offer a lot of the bread and butter general services work. If you’re to ask me right now what the vision is, it’s probably I don’t know, a dozen to 20 partners and then a similar greater number of associates. Right now we’ve got offices in Orlando, Tampa and Tallahassee. One of the things we do struggle with is a lot of what we do as firm is more of a national kind of a practice and client base. I’m licensed in California and Arizona and New York and Florida and DC.
It’s kind of interesting time in the practice of law, where geography doesn’t really matter as much, outside of litigation. It’s interesting to try and play a little bit in an international space competing for that kind of work, with a geographically, somewhat compact boutique law firm.
Sam Glover: Are you trying to compete with big firms for clients? Is the size of client that you’re going after sort of a fall out side of the big firm, the typical big firm client?
Adam Losey: I guess it really depends on what you mean by big firm. A lot of our clients right now are fortune 500 bigger companies, but the work that we do for them is more targeted towards cyber security, or other things like that. I’m not really sure if I would say we’re trying to compete with bigger law firms. I know in my experience bigger law firms are looking for Fortune 100 institutional clients that have large, steady reoccurring work. That’s probably what we’re not going for right now, but we’re in about month six of our firm.
Right now we’re still finding our bearings a little bit. So far, again I’ve been placed to find a bit the road blocks that I thought might be present for a larger company, using a boutique firm is not as substantial of a barrier, as I thought it would be going in.
Sam Glover: You didn’t think that bigger companies would be interested in using boutique litigation firms?
Adam Losey: Yeah, I thought that was the case. Now, there’s a few noticeable exceptions and I’ve read … They put materials out about this, about the FedEx model, where FedEx does make it a point from what I’ve read online, although I’ve represented them of using local litigation firms and things like that. It can be … I think from the in house perspective, I’m not really sure, because I’ve not been there, but it would be interested what Elliot has to say about it. Sometimes there can be hesitancy to use a smaller firm, or a newer thing, as opposed to a long established name brand. Just because if something doesn’t quite go right, if you’ve taken a risk on a new firm, I think some people are hesitant to do that.
The way we typically have gotten around it is we’re the same lawyers we were before, the jobs before. At least in most of my experience, people generally tend to hire lawyers not law firms, although there’s exceptions to that certainly. So far we’ve been fairly successful with it.
Sam Glover: Elliot, I am curious to hear what you think about that. Do you hire lawyers, or do you hire law firms?
Elliot Miller: It is a mix. I very much like the expression that you hire lawyers and not law firms and certainly my personal relationships with each of the lawyers, or key lawyers that I work with at a firm are dramatically more important to me than the firm itself. Fortunately I don’t get involved in a lot of demand better writing campaigns and those sorts of things, where I might definitely care about the letterhead itself. Certainly for … A large portion of our outside legal spend, I work with smaller firms that have expertise in our subject matter. For us in technology and streaming video technology, I work with a small, relatively boutique, patent firm to do a lot of our patent filings.
Work with some smaller boutiques where they get the score, some litigation issues that we’ve have had. Then kind of layered on top of that I guess I’d say, we do work with some large national and international law firms, in large part to cover us in areas of corporate matters. Some of those actually international matters that we have, whether they’re transactional, or IP related. It really ends up being a mix, but I think overall my bias is to find individual lawyers who I have great relationships with and who I trust and to allow that to be my first kind of fore into working with a firm.
See how it goes from there and then build a relationship. It certainly is a mix. I think that certainly goes to the point that having a large global law firm, doesn’t necessarily solve all your problems and finding folks who are, either where you want them to be, or have the experience of exactly what you want them to have the experience with is the key you’re looking for.
Sam Glover: It sounds like you hire the firm when you don’t know a lawyer and then once you get to know the lawyer, you might follow that lawyer somewhere else.
Elliot Miller: Yeah, I think that’s probably a fair way to say it. Certainly I’ve been in house for about 10 years now. I think I’m fortunate to be in house since I graduated law school. This is my kind of fair in house position. I’ve built a number of relationships now that I do take with me, from in house position to in house position, but certainly there are significant cases where I’ve gone with a firm and then developed relationships from there. Again, especially on things like corporate, or international where I have been forced for one reason or another, it kind of started new.
Sam Glover: Adam, isn’t that kind of scary. I mean on the one hand it’s helping you get started, because you’re able to reassure clients that you’re still the same lawyer, but on the other hand as your clients start to build those kinds of relationships with other lawyers at your firm. Your biggest assets go home, walk out the door ever evening right? Been potentially walk out of your door and never come back. Maybe your clients go with them, because their loyalty is now to the lawyer and not the firm.
Adam Losey: That’s a very interesting question and problem and probably why … I’m not sure if this is the case in every state in the Union, but in Florida lawyers can’t be subject to non compete agreements. Normally non competes are how you handle that in a business context. My view of it and certainly anyone can quote me on that, is no lawyer owns a client in particular. Certainly there are relationships, but if somebody wanted to leave our firm and they had a good client, they had a good relationship for them and it made sense for the client to continue with them. I think that makes sense.
I mean I think kind of the core of our culture is a client service focus and clients really belong with the lawyers that offer them the most value, that can serve them a best. Even if that’s at a different firm when somebody chooses to make some sort of a lateral move. Sure, I mean that’s why it’s so important to make sure that you have a good culture. You have people that like where they are, that you don’t have a law firm that’s composed of mercenaries essentially, going to the highest bidder.
I think if you have a good culture and you make sure that people coming to work every day, that the risk of people leaving is much lower and if somebody wants to leave, I think law firms would be wise to support people that want to leave. Even if they want to leave and start their own firm, or go in house. I tend to think that there’s plenty of work on the table for everybody out there.
Sam Glover: I guess, I’m curious about what both of you think about this, but there’s been a lot of talk about the movement at big firms and I think smaller firms are starting to try to do this too, where you do build the firm up as a brand that guarantees a kind of service and a level of service and institutional knowledge and technology competency, to try and encourage companies and clients of all kinds to hire the firm, not the lawyer and so that the firm can say to the lawyer, “Go ahead and leave. You can go be where you want, but your clients aren’t going to get the same thing that we promised them and the brand promise that we’ve created.”
I’m curious if you’re starting to see more of that Elliot. Are the lawyers who want your business trying to guarantee some consistency? Is it still mostly about the lawyers?
Elliot Miller: I hate to be so quickly in the conversation it’s all about the money. I think a lot of what you’re speaking to Sam, does end up for me at least being about the overall financial relationship. As I think about what Adam was just saying. We’ve got some firms that do somewhat repetitive work for us, but for which there is a lot of work. That’s really is where I see a kind of nexus between the firm and the lawyer, having a lawyer or two there who know our work and know what I need on a daily basis. A couple having an overall financial relationship with a firm that does provide me with a lot of consistency and predictability in terms of my cost, does end up being a lot of the sweet spot.
A lot of the matters we work on, or I work on, I think get cuffed to offer my kind of guaranteed results, or offer me a global trademark program, or something like that, that has any sort of cost certainty to it. I do think it resolves back to a relationship with a lawyer or two and some sort of understanding of what costs are going to look like. I don’t mean it as fixed fee, or a flat fee, or anything like that, but just understanding what a project, or a series of projects over a month, or a number of years even, is going to look like, is really I think the sweet spot for me when I’m looking for to make an outside counsel selection.
Sam Glover: I need to take a quick break to hear from our sponsors. When we come back I want to pick up that thread and talk more about fees, because I think it’s obviously a hot topic across the board. There’s a lot of talk about it, without a whole lot of talking to actual in house counsel and outside lawyers about what they’re seeing about it. I want to explore that in a minute. We’re going to hear from our sponsors and we’ll be right back.
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Sam Glover: Okay and we’re back. Elliot, maybe I’ll start with you. You’re just talking about fee certainty and fee certainty is absolutely something that comes up again and again and again. I’m curious though, it sounds like the outside lawyers that you’re dealing with are giving you fee certainty and the terms of sort of personal guarantees. It doesn’t sound like you’re dealing with … That you’re actually getting estimates and bids and things like that.
Tell me how does fee certainty come to you and what does that actually look like in your day to day? What do you look for when you’re trying to hire?
Elliot Miller: Sure it’s a mix. For some truly repetitive work, so on things like domestic filings on IP issues, or those sorts of things. I can get some actual fee certainty. I can know from a firm exactly what it’s going to cost to file a trademark or patent application. So much of our business at Wowser International that that fee certainty doesn’t end up being a large portion of the legal spend that I have. In the alternative app, what I do want to have is a good relationship with a US firm, that if I need international help, either has an office, or can help me find an office and have a good understanding of how the flow through of costs is going to work and what sort of cost structure and pure legal expense I’m going to get into right?
Do I know that this firm is always going to bring me the most expensive firm in a foreign jurisdiction, or are they a part of a network that leverages other relationships, or however that’s going to work. That’s important. On litigation I haven’t done as much work in terms of trying to get either flat fee, or to not exceed numbers for different portions of litigation, but certainly I think that’s something I might be interested in, if I was going out to look for a new firm, rather … Rely on litigation context is understanding how a firm bills and how an individual attorney bills. That’s what I’ve come to rely on.
I’ve come to rely on more … It’s just an understand that when I get the invoicing that either I have a long series of surprises or not. Obviously the latter is preferable and what drives me to come back to an attorney I’ve worked with in the past and had good experience with.
Sam Glover: Adam, you’ve got … I realize that your firm is fairly young, but you’ve got a background doing this. How much pressure are you getting? What Elliot … What he’s saying is, it sounds like there’s still a tremendous amount of uncertainty until he gets to know a lawyer and their practice for a while. What kind of pressure are you feeling on fees? How are you trying to deliver certainty to your clients?
Adam Losey: Yeah and we try and get in front of it. Being surprised with a bill, that’s something you hear a lot with lawyers, but really if you think about it, there’s no excuse except for rare circumstances, where a client should ever be surprised about a bill, because you can always communicate about it.
Sam Glover: Really?
Adam Losey: Yeah, I mean there’s … Some people have real time tracking of bills. Some people like daily updates. Some people like not to exceed, but at the end of the day, you can carve that turkey any way you want. It all comes down to communication. Lawyers are producers. We always want to think of our client’s economic interest and we want to communicate the economic aspects of representation with our clients, because no lawyer ever wants to not earn their keep. I mean really legal billing is about value in my mind.
It’s about are the services provided worth the money that you’re paying. If they’re not, then the client should find somebody else, because there’s people that can provide all kinds of services at all kinds of economic levels. Lawyers should always earn their keep and they should never surprise clients for bills. Do we feel a lot of pressure to do it? Actually, generally no, because that’s one of the first things that we discuss with clients, is is this going to add enough value?
Should you hire us to help you with this litigation? We had somebody call the other day about a small claims case. That’s not a good case for us, because we can’t add enough value to justify our fees. Yesterday we received a call about a non compete litigation. That’s one where we can add enough value and we work on budgets … I think most firms now, big and small have some good spreadsheets where they can provide clients with budgets. Again, I’m a big fan of pricing based on the value. If you’re not adding enough value to earn your keep, you really don’t want the work, because there might be other circumstances where you can.
Where if you take on work and you charge somebody something that’s in excess of the value you provide, they’re not going to be happy with you, they’re not going to come back.
Sam Glover: Am I really hearing you guys right? That downward pressure on pricing is not something that’s playing very much of a role in either of your jobs.
Elliot Miller: I think there is a huge amount of pressure there. I hear what Adam is saying. I think that it is a bit of a binary question as to whether or not legal services provided do exceed the value that I pay for them. Frequently for me, I’m looking at a … I’m going out to a firm and especially a new firm and I’m looking for advice on risk, or advice on a new product line, or advice on a IP filing in a foreign jurisdiction I’ve never worked on before, or dispute in a foreign jurisdiction I don’t have experience in. To Adam’s point, I certainly understand that I can get fairly comfortable with what it’s going to cost you.
I think a lot of difficulty however is, it’s not until the end of the situation that I really sit back and say, “All right, was this $14,000 worth it?” That’s based on so many factors. Again I’m fortunate to not be involved in a lot of litigation here at Wowser. I think it perhaps makes it harder for me to analyze it, when I manage the [crosstalk 00:26:55] …
Sam Glover: You can only see that in hindsight right? You can’t really see that looking forward?
Elliot Miller: Exactly.
Sam Glover: Yeah.
Elliot Miller: Exactly. I’ve managed litigation portfolios before and then almost literally is a spreadsheet and I’ve got green, yellow, reds all over the place. I can say to myself, “All right I paid X and I’m doing pretty well here on my wins and losses.” Here at Wowser, I don’t have the benefit of that and so it really is and I don’t know if I’m going to argue against Adam or with him on this point, but it really is a more sort of qualitative thing. That’s where I go back to not wanting to be surprised. Even if I know the legal work that’s being done. I know the project, or the question that I’ve asked for answers on, but do I get a bill back that’s doing … Covers work to be exactly what I asked for, but there’s three lawyers instead of two on the bill, or those sorts of things.
That’s where I find surprises and admittedly a sort of murky world of the setting whether or not I got good value for a given project.
Sam Glover: Elliot are you exploring alternative providers? It feels like especially in the business world, there are all kinds of alternative ways to get legal solutions these days. Jordan Furlong tells a story of sitting on a client meeting at a big firm, where the client had managed to outsource a bunch of their discovery work and some of their IP work to non lawyer, non firm providers. It had managed to cut their annual spend with this firm down to a 300,000 from 1.5 million.
The partners were going, “How are we going to get that business back from you?” General counsel is going, “You don’t understand, we’re never going to spend more than 300,000 with you again. That’s only going to go down from here, because we’re looking for ways to not give you money, because you’re too expensive.”
I don’t know if that’s a one off story or not, but it’s definitely … The buzz is that that that’s happening more and more, where companies are trying to in house … Departments are trying to find ways to cut cost. I’m curious if you’re working on that too? If you’re seeing it happen around you?
Elliot Miller: Yeah it makes me want to ask you for more details about who that is, that [crosstalk 00:28:55] … Certainly in part, there are areas in which I am asking myself do I need a law firm here? Do I need a law firm to deal with whatever this issue is? Some examples that come to mind are around IP, or specifically domain issues, domain name issues perhaps. I actually find myself going the other way a lot of the time. As we look to expand into new product lines and into new jurisdictions, I actually find that law firms can provide a lot of value outside of the narrowest definition of a law firm.
As I think about for instance, providing software services and other things in places like China, or India. There are any number of companies that will provide business advice on translating your materials, or on how to find a channel partner, whatever those are. Actually I find that I get fairly superior advice from working with lawyers there, who have business experience in those jurisdictions and certainly have found some of the same things to be true. Even working with some of our US firms to deal with international issues.
Even when it comes time to talk to my CEO, or talk to one of the other executives here at Wowser, I find it useful to either bring a lawyer, or bring advice of a lawyer who has legal plus business experience in that area. Certainly in those cases I’m over paying in a sense probably for that, for that advice, but I find it to be very worthwhile to leverage all the experience that a lawyer has in legal and business issues, when it comes time to answer some questions.
Sam Glover: Adam, does hearing that make you feel good or weary? Some would say that litigation is in a relatively secure position, except that I also know that companies are trying to find as many ways to avoid litigation as they can. How do you feel about that? How does that landscape look like it’s changing and how do you think you’re going to adapt to it?
Adam Losey: I agree with Elliot and I like everything he says and I like what you say about some of the work going away from lawyers, because nobody went to school to review 30,000 documents, or to do trademark filings over and over again, or to do residential foreclosure forms, filling out over and over again. There’s nothing wrong with that kind of a practice, but some of that work that is coming away from law firms and lawyers, in my personal opinion good riddance.
Sam Glover: Yeah.
Adam Losey: If there’s a repetitive task that doesn’t require good legal and business judgment … The real role of a lawyer, is a trusted advisor and a counselor and you cannot do that. You can’t do that without having business knowledge and without blending some legal and business knowledge together, because that’s where the real value comes in for paying large hourly rates. It isn’t in filling out forms. It’s giving good, solid advice and that’s what keeps clients coming back. We keep using the word value and that’s not unique to law firm.
Any business that’s successful creates something of value. The thing that a lot lawyers forget, is that when you’re serving a client, you have a lot of opportunity to add value, by identifying opportunities to help the business and to seize them. The only way you can do, is like Elliot mentioned. You have to listen closely to clients about what they want to do from a business perspective. You have to understand their needs and goals and then you need to help think of creative ways to make and meet the goals, now just filling out the forms.
I like hearing that and I think that’s back to what lawyers really should do and what lawyers have traditionally done, which is offering just really good advice on business, critical issues. Like you say litigation is a little bit different, but I think a lot of tasks that traditionally have been a pain point from a fee perspective are going away, either through alternative providers, or through technological solutions.
I’ll give you an example without plugging any particular brand. A lot of time and effort on hourly billing can go towards certain transactional, closing binders and other things like that. We’ve got a solution and there’s a lot of solutions out there now that automate those processes. I think how law firms, at least our firm is handling it, is not to try and get that work back. It’s to try and avoid that work, or automate that work to add value. If you can offer client solutions … You mentioned the firm that went from … What was it? Three million to 300,000? Something like that?
Sam Glover: I don’t know if I’m right on the numbers, but yes.
Adam Losey: Something to think of is how can we lump that other 2.7 million worth of work into our 300,000 to add even more value. If they’re using automated solutions for deal rooms, or predictive analytics, how can we as a firm use those tools and charge what we’re charging now and add that into what we’re providing to add value. I mean it’s tough, but that work that can be automated, that’s repetitive, I think lawyers should be doing it.
Sam Glover: It sounds like you’re trying to avoid as much of that work as possible, by identifying. Here the documents we keep producing, we better stop billing people for these.
Adam Losey: Yeah, I mean it’s all … Every conversation about rates always comes back to beating up the billable hour.
Sam Glover: It shouldn’t necessarily, but yeah.
Adam Losey: The billable hour has it’s place and I think it’s important and it shows clients what’s being done for the price that’s being charged. When it comes to value or figuring out what’s worth it, the hourly rate is in large part irrelevant. I mean I would gladly pay a lawyer $1,000 an hour and that bills a point one and solves the problem, then I would pay somebody charging $100 an hour that takes a week to figure out a solution. I think once people start pricing away from billable hour more and more and once clients get more comfortable on rewarding value, in a way that somebody might make more than they would if they were billing by the hour if they’re efficient and they can add that value.
I like fixed fees where you can do them. It’s just really hard to do that in litigation.
Elliot Miller: It is interesting as Adam is talking, there’s two themes almost converge backwards for me, where I see myself relying more on the billable hour, as I’m making use of third party technology solutions. Whether it be I want to plug any civil solution to it of course, but whether it’s an house product from an Alexis or a West or a compliance product from a completely independent third party, that allows me to have a technology framework for a solution, or for a program.
I do then find myself being far more accepting and interested in having straight billable relationships, where to Adam’s point, I can pick up the phone and call somebody and say, “Can you either review this template that I downloaded, or can you help me solve a problem making use of this other system that you’ve already recommended and vetted.” It is an interesting situation where I think those themes come back on themselves sometimes.
Sam Glover: I have two more questions for you and I’m going to give them to you, because I want you to prep for that next one. I always think it’s kind of fun to ask people, what is your favorite day to day technology that you use to make your job easier? I’d love to get that answer from you last, but first you guys suggested this one and I really like it, which is what do each of you wish that the outside counsel that you hire knew about working with you? Maybe Adam, I guess it’s your turn to talk. Why don’t you go first, or knew about working with you. What would make it easier for you to work with in house counsel?
Adam Losey: I would like them to know that they should always feel free to pick up the phone and call and to give candid assessments of situations, without having to worry about whether or not the meter is running. Again, our job is largely to find solutions to problems on the reactive front and to find ways to avoid problems on the proactive front. We can’t really do that effectively without good communication from a client and a clear and detailed picture of what’s going on. A very common thing that I think a lot of out house counsel probably are familiar with, is the call from a client saying, “You know we really should’ve called you earlier about this issue. Here’s what’s going on.”
It’s really common and you never beat up a client about that. Of course you handle it the best you can, but some of the best value that we can provide is not reactive. Reactive is traditionally litigation. I don’t regularly see litigation that spawn overnight with no back and forth that came before them.
Sam Glover: Right.
Adam Losey: Sometimes picking up the phone and involving somebody outside that may have some expertise, or may have frankly even just some value in being an outside counsel that’s involved in a process. The ounce of prevention on legal work, can be worth the pound of cure. I wish they felt free to pick up the phone and call, because again if I had a client call me and say, “Hey look, can’t bill for this, but really need your take on this issue.” That’s fine.
Sam Glover: Okay.
Adam Losey: Frankly, I can say most lawyers at most firms, big and small, if they have a good client and a good relationship and it’s a small issue. Nobody is going to have a problem, unless a client abuses it, not recording a .1 or .2 to a pine on an issue, or frankly just that you’re out, whether it makes it worthwhile to get more involved in that issue.
Sam Glover: Elliot, what do you wish that outside counsel that you end up hiring knew about working with you?
Elliot Miller: I think understanding our risk tar and my risk tolerance is an important first step. I think it influences so much of the relationship go forward. That’s an area that I want to make sure new outside counsel I’m working with are kind of up to speed on as we get working together and understanding how myself and the leadership at Wowser views issues and approaches, areas of risk and how we try to mitigate and deal with those areas. Getting kind of on board with our thinking in those areas is really useful for creating a long term relationship, where I can get all the types of assistance I want, whether it be issue spotting, or a wide range of recommendations, or those sorts of things.
Getting someone who is pretty quickly in tune with where we want to be from a risk point of view. Obviously that flows right back into cost and understanding risk and cost tolerance is important. I think understanding that perspective that we have on business and legal issues is really useful.
Sam Glover: I recently heard a lawyer who typically works with startups say, that one of their frustrations is that lawyers want to get their clients a great result in the legal issue before them. What companies that are in any of the start phases want, is for an obstacle to be removed, so they can grow and it doesn’t … It’s not actually all that important how it gets resolved. It’s still important, but it’s not as important as removing that obstacle so they can continuing growing. Does that make sense to you? Does that resonate?
Elliot Miller: Yeah it does. I think if you’d ask the question slight differently, I would’ve said something like, I want the lawyer to understand how technology and business roadmap. I think to your point, understanding … Technology is tough and streaming video is a pretty deep area of technology. Understanding that and where we’re trying to go as a company and removing road blocks, that’s the game right there. That’s it. There’s going to be risk and there’s going to be things we can’t fall for at any point in the game, but helping us remove those roadblocks is exactly what we’re looking for.
Sam Glover: You want litigators to brand themselves not as bull dogs, but as the cow catcher on the front of a steam train?
Elliot Miller: Yeah [crosstalk 00:40:13] I need the bull dog and then I want the bull dogs. [crosstalk 00:40:16] The problems for both like that for sure.
Sam Glover: Adam, what’s your favorite day to day technology that you can’t live without in your practice?
Adam Losey: Can I supplement my earlier answer first?
Sam Glover: Oh yeah, go ahead.
Adam Losey: Very briefly, because what Elliot said really made me thing of it. The one thing I would say that takes primacy over my earlier comment that I want in house folks to know, is we want to learn about your business. We don’t charge clients to learn about their business, because like Elliot said, you really need to understand the client’s business and you need to understand their goals and what they do really to help them remove those obstacles. Sometimes when you get a new piece of work, or a new clients, the conversation is, here’s this history, here’s this, here’s that and there’s very little talking about what do you do? What are your goals? What’s the business?
Even if it’s not particularly pertinent to that issue and I think some of that comes from the thought that we don’t want to get charged on an hourly rate to have somebody learn things that they can read on their website. What we normally do is read the website as much as we can first, but I would like clients to feel comfortable off the clock, talking about their business first, so we can give better advice.
Sam Glover: I think that goes across the board. Lawyers just don’t often take the time to stop thinking about outcomes in terms of dollar signs, but actually what does the client want here. If you can’t achieve it through litigation, what’s your strategy for getting outside of litigation, or if it’s contract negotiation. How do you approach that, when it’s not just about your typical provisions and stuff. Understanding your client’s objective is so key and the problem is, clients aren’t always self aware of their own objectives.
Sometimes they think they want one thing and you need to have extra insight on top of that. Maybe it’s easier with businesses, but it’s not always true with consumer clients for sure. All right go with your favorite tech Adam.
Adam Losey: My favorite tech, while I’m not trying to plug any particular technology, I really like my iPad Pro with the Apple pencil. I hate note taking. I hate paper too. I have probably an irrational, I shouldn’t say hatred, dislike of paper. That stems in part from just being a tech person. Also, I don’t know why, but I tend to get a lot of paper cuts. I think paper dislikes me back.
Truly, next time we meet, I have a scar on one of my fingers from an unusually deep red well cut that’s happened during a trial. I’ve also seen a lot of issues with paper that have created big legal problems, from signature pages that there have been issues on. I had a week long trail on that not that long ago. Paper tends to cause a lot of mischief and also we’re subject to a lot of data security requirements for clients that make me nervous about taking client notes on paper. I just don’t like it. It cause a lot of problems for me.
The ability to have a nice big secure device that I can take to client meetings. Write down notes with the little Apple pencil. Be able to email and share those notes and know they’re secure. It has changed my practice, because before I didn’t do as good of a job of note taking and I couldn’t share them as well. I really love it.
Sam Glover: Do you use the big Apple iPad Pro, or the small one?
Adam Losey: I got the big one, but if it breaks I’ll probably buy the small one.
Sam Glover: Cool. Any other favorites?
Adam Losey: I’m not sure if this counts as a tech tool, but I love standing desks.
Sam Glover: Awesome.
Adam Losey: Absolutely love them. I couldn’t work without them. In fact I’m standing in front of my standing desk right now.
Sam Glover: What brand of standing desk do you have?
Adam Losey: I have a couple. The one in front of me is a smart desk. We have a couple in the office that are the Ikea Standing Desk, which is also pretty good. Then I forget the brand I have at home, but the next one, I’m actually probably going to make myself. You can buy the frames online and I do amateur fair to [midling 00:44:11] woodwork.
Sam Glover: Nice. Is it that one that you can adjust it up and down, but the whole thing is made out of wood?
Adam Losey: Yeah the frames are generally metal and then the top is just like a big piece of wood. What I did originally at my old shop, is I took my old desk and we use to throw out a lot of books. We used to buy a lot of books and then they get old. I took about 100 books and just made my original sitting desk a standing desk with the books, to see if I liked it. I would strongly recommend if any of your listeners want to try a standing desk. Just put old books and then try the standing desk and then if you like it you can buy one.
When you buy one eventually, having one that can raise and lower is kind of nice, in case you hurt your back that day, or you’re tired and want to sit.
Sam Glover: Nice. Elliot, what are your favorite technology products that you can’t do without?
Elliot Miller: Yeah, I’m bending under my standing desk right now to figure out what this brand is. I do also like the standing desk and the iPad for sure. I’ve really come to love the Apple Air Pods actually. I’m on video conference calls all the time, switching between my Mac Book, my iPad, conference room, audio and the Air Pods seem to work the best for all that and obviously are wireless and all those neat things. I also on my Mac use something I got for free from the App Store.
I think it’s called Quick Board History, but it creates … Anytime I control C something on my computer, it just adds it to a list and I can go back and look at my last 50 or 100 things that I’ve copied. So, line drafting agreements and working on red vines that’s pretty [indiable 00:45:39] for me to go back and forth and keep track of all the different things I’ve been cutting and pasting.
Sam Glover: Thanks guys. I appreciated this. You let me dive deep into some [geekery 00:45:49] that really interest me and you were willing to engage and I really appreciate that. Thanks for being on the podcast.
Adam Losey: Thank you Sam.
Elliot Miller: Thank you Sam.
Aaron Street: Make sure to catch next week’s episode of the Lawyerist podcast. If you’d like more information about today’s show, please visit lawyerist.com/podcast, or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found, both Lawyerist and the Legal Talk Network can be found on Twitter, Facebook and LinkedIn and you can download the free app from Legal Talk Network in Google Play or iTunes.
Sam Glover: The views expressed by the participants of this program are their own and do not represent the views of, nor are the endorsed by Legal Talk Network. Nothing said during this podcast is legal advice.