For more than 25 years Massachusetts attorney Alan Fanger has served Boston area clients in a wide variety of...
Jared D. Correia, Esq. is the CEO of Red Cave Law Firm Consulting, which offers subscription-based law firm business...
How a client acts in the courtroom has a large impact on how a case pans out, but communicating effectively with clients can sometimes be a challenge. In this Legal Toolkit, host Jared Correia talks to Alan Fanger about what lawyers can do in order to improve their client’s performance within the litigation process. They discuss currently used tactics, how they fail, and the importance of sitting down with clients in order to explain the process to them. They also talk about how online learning works and the benefits of using videos to instruct your clients.
Alan Fanger has served Boston area clients in a wide variety of matters including persons who have been disinherited from wills or excluded from trusts, and heirs or beneficiaries who claim that an executor or trustee abused their powers.
The Legal Toolkit
New Tactics to Improve Client Performance in the Courtroom
Intro: Welcome to Legal Toolkit, bringing you the latest legal trends and business initiatives to help you manage your law firm, with your host Jared Correia. You are listening to Legal Talk Network.
Jared Correia: Hey everyone, welcome to a new episode of The Legal Toolkit here on Legal Talk Network. If you are looking for the sixth season two episodes of The Twilight Zone that were videotaped, I mean it’s not 1993, just go on Netflix.
If you’re a returning listener, welcome back. If you’re a first time listener, hopefully you’ll become a longtime listener. And if you’re Isaiah Thomas, with two As, make sure you keep your eyes peeled for that Brinks truck. I’m sure it’s on its way.
As always, I’m your show host Jared Correia. And in addition to casting this pod, I am the CEO of Red Cave Law Firm Consulting, which offers subscription-based law practice management consulting services for law firms and Bar Associations. Check us out at redcavelegal.com.
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Here on the Legal Toolkit however we provide you each month with a new tool to add to your own legal toolkit so that your practices will become more and more like best practices.
So in this episode, we’re going to talk about client performance. But before I introduce today’s guest and topic, let’s take a moment to thank our sponsors.
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All right, my guest today is Alan Fanger, who is the President of EmpowerLegal, an on-demand video service that helps law firms to prep their clients for case related events. Alan is a nationally recognized litigation attorney and legal analyst based in Wellesley, Massachusetts, which is a beautiful place to live, by the way.
He has been voted as Super Lawyer by his colleagues every year since 2011 and has a perfect 10.0 rating on Avvo. As an advocate for clients, Alan has been lauded for his ability to demystify the law and litigation procedure, creating a positive, cooperative environment for as many clients and colleagues.
Alan appears frequently on sports radio networks in stations around the country, where he provides analysis of legal issues to impact the sports world. So welcome to the show, Alan Fanger.
Alan Fanger: Hey, it’s great to be here with you, my friend. And I would really feel like I have ascended to the Vatican. I am on with the Pope of podcasting.
Jared Correia: Oh, I hope that too.
Alan Fanger: So I am privileged to be with you, really.
Jared Correia: No, this is great. We’ve been trying to do this for a long time and I am glad we could get it on the schedule. Alan and I hang out regularly. So this is just like another conversation we’re having. It’s beautiful.
Alan Fanger: Yeah.
Jared Correia: Here’s what I want to do first, though before we get into it, you’re a noted sports analyst, so let’s talk about this. Can you give me as of right now, record date of July 10th, 2018 your two best waiver wire ads for fantasy baseball and let’s do one hitter and one pitcher.
Alan Fanger: Absolutely positively. Now, the caveat here is that I’m an AL only guy, so I am in three leagues and they’re all American league only. So my picks are confined to the junior circuit as they call it.
Jared Correia: I got you.
Alan Fanger: But I would go with a pitcher from the Minnesota Twins maybe Aaron Slegers, just got called up from the minors a couple weeks ago, who’s had a couple of good starts.
Jared Correia: You are going deep here. I don’t remember that deep.
Alan Fanger: Yeah, yeah, yeah, well it’s a small market team, but we try to keep our eyes up for little guys. And then on the hitting side, the Houston Astros have just called up an outfielder named Kyle Tucker. He’s a — what we call a five-tool player.
Now, any guy who’s playing for the Astros is going to be scoring a lot of runs, probably driving in some other runs and just about all the guys in that team can steal bases. So he’s pretty close to the complete package and I think he’s going to play a lot, given that the Astros have a somewhat depleted outfield, really ravaged by injuries.
So you can take those to the bank and when they screw up, I’m sure I’ll hear from you in about a month, asking treat you to a night at Fenway.
Jared Correia: No I think those are pretty good. Those are two good pickups. I like that. All right, so run out and get those guys now. All right, let’s talk about real legal stuff now, because I love this stuff.
So you’ve been practicing law for a while, you continue to do so even as you develop EmpowerLegal, which is pretty cool. So let’s talk about in your experience how clients approach the legal process. So lawyers are practicing law every day and I think kind of what they forget is like just because that’s their job, any client they have, it may be their first and only exposure to the legal system.
And so they’re lay people in the truest sense. So what do you view is like the psychological profile of the average law firm client?
Alan Fanger: Well, I have to start that answer by qualifying it by saying that my clients tend to be individuals or owners of small businesses. They’re not clients who were associated with companies or otherwise rather large institutions.
Jared Correia: Yeah, that’s right.
Alan Fanger: So, if we distill it down to that subset of clients, then I would say that the average profile, that psychological profile as it were, is of somebody who comes into the system, beleaguered by a great amount of stress.
They either feel like they’re the victim of some sort of wrong; whether it’s real estate deal gone bad, they’ve been disinherited, they’re having problems with their condo association, any number of encounters they might have, for which they feel wronged and aggrieved or they are on the other side, and they’ve been sued and they experience the sort of reflexive stress response that any defendant in litigation would experience, as a result of being served with a summons and complaint.
And I think that if you start with the premise that your clients are largely operating under this weight of considerable stress, then I think what that does, it really forces you to consider the whole person. And I think what we are guilty of all too often as a profession is we have our client, and we understand that our mission is to zealously represent that client, but we tend to put ourselves in a silo and subliminally, if not sometimes more overtly, say to ourselves well, my goal is to zealously represent the client and vindicate their rights, claims, defenses and the like, without considering the whole person.
And we are a helping profession and our clients come to us with vulnerabilities and fears and I think we need to step back and amid the desire to be a vindicator of rights and a zealous advocate to say, you know, this person needs something more than just vindication and advocacy.
They need us to really hold their hand a little more tightly and walk them through the system and take those vulnerabilities and those fears and anxieties, and try to diffuse them, and reconcile them as best we can.
Jared Correia: Yeah, and I think that’s good that you made a distinction between your standard client, your client that’s involved in litigation, because obviously the stress is kicked up there. I was hoping you would throw around some like five dollar psychology words.
So I was reading an article of yours the other day in preparation for this podcast, and you talked about things called neuropeptides, like that’s pretty legit for a lawyer to be talking about this stuff. So what does that mean and how does it relates to stress?
Alan Fanger: Actually to the untrained eye, it would seem like something you would take for indigestion.
Jared Correia: Exactly. Do you make it up? It’s okay if you made it up.
Alan Fanger: No, no it’s actually a real term. When I don’t have anything else to do after my fantasy teams are perched atop their respective leagues, then I start doing research into these funky neuropsychological issues, but neuropeptides are an enzyme that causes like a stress/anxiety response.
I’m sorry they actually repel the stress and anxiety response. So what we want to do is I don’t expect my colleagues who are listening this to become amateur cognitive psychologist or psychiatrist, but I think –
Jared Correia: Unless they stay at the Holiday Inn, the previous night.
Alan Fanger: Or something like – yeah, the Holiday Inn and they just had to watch our Three Dog Night last night in the lounge.
Jared Correia: Oh man, that’s a nice pull. Very good, go on please.
Alan Fanger: So okay. So, but I do think it’s important. We understand that people have differing responses to stress and in some people, the amount of neuropeptides is able to sort of kick in to allow them to deal effectively with stress and with others, they’re simply predisposed, absent our more aggressive intervention to being overwhelmed by anxiety.
So I’m going to give you a somewhat crude analogy. We always reach back into the sports world for this kind of stuff. I mean you and I had the luxury of watching David Ortiz play for 14 seasons here in Boston, and what was David Ortiz best remembered for other than these moments when he was absolutely clutch and money and stress to him was what’s probably more a motivator than it was anything else.
He just seemed to thrive under stress and for those of my colleagues who are in New York you could classify Derek Jeter in the same way, but they are much like they consistently performed during their careers under enormous stress. You can look to this kicker from the Minnesota Vikings, Blair Walsh a few years ago in a wild card game against the Seattle Seahawks at home. He had a 27-yard chip shot, field goal to tie, I believe tie the game with three seconds left.
Now, you and I might actually make a 27-yard field goal maybe like a third, a third of the time. Well maybe you have the time, I mean only that there is the time. But he has this chip shot and you would think he could make this in his sleep. He’s been practicing this what a million times, two million times and he just flat-out misses it. It came off his foot almost like my drives come off my driver. It was just flat-out duck-hooked.
So why — why do or why did David Ortiz and Derek Jeter perform so effectively in the clutch and someone like Blair Walsh just choked? And I think it’s important to recognize that absent our intervention some clients will do great in deposition, will do great in trial, they will be — they will rise to the occasion and others will fall flat on their face unless we can first of all identify that they’re vulnerable to stress. And then two, we conditioned them to perform effectively by for example focusing on the process and not the result.
Jared Correia: Yeah. I like this. So I’m looking forward to these conversations taking place in law firms coming up where are lawyers are like look, like I’d like to represent you but you just don’t have the right neuropeptide arrangement. There really can be a few agreement clause related to this.
Alan Fanger: I know that so many firms are starting up their own innovation labs, like Bryan Cave and I just read about Clifford Chance over in London. So maybe what they need to do is come up with some proprietary neuropeptide test.
Jared Correia: Yeah, that’s going to unless you get to it first.
Alan Fanger: Like you and I after the podcast, we will look into it.
Jared Correia: Yes, we will talk about that.
Alan Fanger: Okay.
Jared Correia: Now, we talked a little bit about this so you have got your Blair Walsh’s, you have got your David Ortiz’s. So I would imagine the same thing is relatable in law firm clients. As you just said like every law firm client is going to be different, some people are going to deal well with pressure, some people are not. Are there common reactions however that you can identify, they’re useful in terms of managing clients generically?
Alan Fanger: Well, I think that one of the first things you can do is when you sit down with a client and explain to them the process and who really does that by the way, do we do bring a client into our office like at the beginning say, by the way here’s the road map, and the road map consists of — okay in the first instance, we’re going to have this process called discovery and this is what you’re going to have to do in discovery. We’re going to need your cooperation and then by the way you’re going to have to sit for a deposition. And then after that, you may or may not have to appear at a trial or an arbitration.
So I think what we need to focus more on is what I would call like early intervention. We sit down with the client and we size up their fears. What would be wrong for instance with at one of your first meetings with the client to ask the following question, what about the litigation process concerns you or scares you?
How many of us actually ask that question and if we were to ask that question, wouldn’t the answers that any of us would give be so instructive and helpful in assisting the client and navigating them through the process. It just seems so obvious that that’s something that we should do and yet — at least as someone who went to law school in the 80s, I can’t say that that any of my professors spent one second talking about like treating the client as a whole person, as a human being with feelings, emotions, concerns, fears, peccadilloes, nuances, idiosyncrasies, but –
Jared Correia: Yeah, I think this is –
Alan Fanger: We really think to drill down on that.
Jared Correia: Now those are great points. So what was your favorite band in law school in the 80s? Were you like A Flock of Seagulls guy?
Alan Fanger: I love Talking Heads. Talking Heads, actually, there were three bands in the 80s that I thought were awesome. I mean the rest of the 80s to me were like a washout, but Talking Heads, Simple Minds and Dire Straits. That’s like the — in my mind like the Holy Trinity of 1980s bands.
Jared Correia: Very nice. All right. While I go find my 8-track collection, we’re going to take a little break and I’m going to tell you what you should buy.
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Jared Correia: Thanks for sticking around. I was able to locate my 1972 James Taylor One Man Dog 8-track and I’m here with Alan Fanger of EmpowerLegal. We were talking about fantasy sports and client performance.
So Alan, this notion of performance analysis and performance metrics that we’ve been talking a little bit about it’s been adopted essentially unmasked by the sports world like Tom Brady probably has seven dues making him an avocado ice cream right now.
So, why have other industries including the legal industry been so slow to adopt performance related strategies?
Alan Fanger: I think to answer that question Jared, you really have to go back to the model that dictates profitability within our industry, that’s always been a model that prizes the investment of time on an hourly basis in direct service to the client but that also focuses on the rudimentary processes that we’ve all been conditioned to work with. So we’re not generally a profession that thinks outside the box a lot.
Jared Correia: Yeah. Yeah.
Alan Fanger: The model has always been okay, so you do this for the client, it’s what you’re trained to do, what you know how to do well and then you, you bill for it. But we never think of performance metrics in any context other than the context that appears in a judge’s endorsement on a motion or a judge’s decision for instance after a hearing or an arbitrator’s decision after an arbitration.
That in our view as a profession are the metrics. So what you’re doing essentially is you’re taking the metrics and you’re back loading them. You’re saying okay, we’ll be able to figure out how the client does by whether for instance we do well on this motion or we win this motion, we prevail on this judgment, summary judgments aloud, we beat back summary judgment, we’d beat back a motion to dismiss and these are discrete points in time during the life of the piece of litigation.
But what we never focus in on are the factors that might along the way improve or perhaps dampen the prospects for any of these particular outcomes.
Jared Correia: And I think that’s a good answer. It’s true like I think law firms are relatively slow to adapt this kind of thing, but I think folks like you, who are putting this idea forward, will hopefully push this and blow up a little bit.
Alan Fanger: By the way that’s the idea, that’s — that was really the impetus for my starting EmpowerLegal. I was finding that all the preparation that I did with a client, for instance for deposition, which involves strictly verbal preparation for so many years, resulted in the client not performing in a way that was consistent which with what I thought was really extensive preparation.
So after my 600th deposition where the client again fell way short of what I thought would be the expected level of performance, I decided that I really need to revisit how I prepare clients and look at the client as a whole person and understand that clients can actually learn how to perform through a different method and in doing my research, I found and I hate to say this as a Michigan graduate but there was an Ohio State professor in the 1940s –
Jared Correia: I am sorry.
Alan Fanger: No, it’s worth laughing at always. There was a professor at Ohio State in the 1940s named Edgar Dale who came up with something called the Cone of Learning and not related to the cone of silence and get smart, by the way.
Jared Correia: Good to know that you are making the difference.
Alan Fanger: It is, I knew you’d like that and the Cone of Learning says in substance that, we remember about 20% of what we hear, 30% of what we see and 50% of what we both hear and see at the same time and this really explains why online learning has grown so exponentially because it gives people a way of learning where they want, when they want and more importantly it gives them a real optimal way of processing the information that we give them.
Jared Correia: And this is a good point that you make in general as well is that I think lawyers are often more focused on their processes, especially processes that are ingrained in law firms versus trying to think about what is a modern client need.
Alan Fanger: That’s exactly right, it’s like, hey look we have been doing this, this way and with great success for years, decades, if it ain’t broke don’t fix it, and I am not trying to say that it’s broken entirely, but I do think that if we give pause to understand that clients don’t always perform like we want them to then I think it’s really incumbent upon us as a profession to rethink how we get our clients in fact to perform more at our level of expectations. And therein lies at least my idea but there of course other client facing or certainly potential client facing technologies that would be in the same realm and trying to achieve the same ends.
Jared Correia: Well, so let’s talk a little bit about that idea. So law firms are slow to adopt, they need to test things out, so if you were a law firm, well you are a law firm, but if you are another law firm, hypothetical law firm, how would you kind of dip your toe in the water of performance metrics? Like what’s your really simple way to get into this without feeling overwhelmed?
Alan Fanger: Sure. Well I think the best way to do that would be what I would call like a multivariate approach which would consist both of introducing new ways of learning and then accompany that with new ways of measuring whether that learning has taken hold.
So in the perfect world what I would certainly recommend to anybody, sort of within earshot of this podcast, would be do video training with your clients for both deposition preparation and trial/arbitration preparation, and then using your own something as simple as a video camera with perhaps a microphone then do mock depositions by video and then go over the video with the client sort of breaking it down, I am not saying do it frame by frame, but then go over the video with the client and identify where they sort of went off the rails and how they can perform better.
Now that to be sure requires a significant investment of time, but why wouldn’t anybody invest that small amount of time and resources into making sure that the client performed at their optimal level rather than taking a more Cavalier approach and saying okay, I am just going to either give a set of verbal instructions or give them a handout which they may or may not read and may or may not remember.
And the same could be said to a lesser extent for mediation. So we have a video on mediation that chronicles a fictitious but realistic case over 50 minutes front to back. If you want your client to be an effective participant in mediation, don’t herd them like cats to the mediation session and just say, hey look, we are going to sit there all day, bring a good book or bring your laptop or your tablet and do some reading and play some video games and in between all that the mediator is going to come in and talk to us and hopefully we will get the case settled.
Well it’s a far more nuanced process than that and then the mediators certainly think that meaningful participation by the clients actually enhances the possibility of a case being resolved in mediation. So these are not significant investments and yet they can pay great dividends if they are deployed.
Jared Correia: Excellent. All right, this is good stuff. So while I look for my good boxer shorts, we will take another break and I will tell you more about our sponsors.
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Jared Correia: All right, thanks for coming back. I don’t know if it’s possible for you to love Swedish fish as much as I do, but now let’s get back going again with my friend Alan Fanger of EmpowerLegal, who is talking to me about client performance.
So Alan, we have had kind of a theoretical discussion to this point, say for that last question. Let’s now talk about some more practical things lawyers can do to prepare their clients for litigation or litigation related events more effectively. So let’s begin by talking a little bit more about current tactics and where those fail.
Alan Fanger: Sure. So and I base much of this answer on anecdotal evidence. So what happens now is that someone gets sued, someone filed suit, we may not do a particularly good job of explaining the legal principles that are going to govern the particular lawsuit or arbitration proceeding.
We may not necessarily explain the discovery process adequately and we may not explain with sufficient comprehensiveness the importance of the deposition and mediation, because those are after all the two seminal events in cases these days as we get to a settlement rate of about 90%.
So I think sort of from the get-go what we need to do is we treat ourselves more like a surgeon or an anesthesiologist would treat a patient undergoing surgery, and when I’ve had surgery, thankfully it’s not that that been that many times, but I have met with the surgeon, anesthesiologist, they tell me what they are going to do, they tell me how long I am going to be under, what they are going to do while I am under, how long it’s going to take me to obtain a state of wakefulness, how long am I going to be in pain, am I going to be on pain meds, side effects of those pain meds, the limitations on my activities.
So I know all that going forward and will it reduce my anxiety completely, no. But it will alleviate some of it and I think —
Jared Correia: That’s great analogy.
Alan Fanger: Yeah, we need to do whatever we can to reduce anxiety. So what would be so wrong about at the beginning of the case explaining the process in detail front to back, so the client knows and what the clients not going to commit this to memory, but give the client an overview of — for instance, what’s the answer all about, what’s going to happen in discovery, what can I be expected to do, what are going to be my obligations, what are you as my lawyer going to do in discovery to obtain the information that you need in order to advance my position, defend the case effectively, et cetera, et cetera.
Then maybe even talk about summary judgment, we may have an opportunity to move for summary judgment, they may have an opportunity to move for summary judgment. And this is why a party might or might not get summary judgment and if there’s a pre-trial stage, what’s going to happen at the pre-trial.
I would say know all these things, make sure that client knows all these things well in advance and I don’t think it hurts to explain some of the legal principles that are at work in the case and we are not asking the client to go to law school but I think we much like a doctor would try to explain in some rudimentary, cursory understandable way the medicine involved in the treatment and the care of the patient.
We similarly, should be explaining the law in a way that’s understandable to the client but do it like up-front. And look, I may be as guilty of that as anybody else but I have been trying more recently to really front load all of this in the process.
Jared Correia: Yes so this idea of lawyers practicing more like doctors is one that’s been around for a little while but I like your extension on it and that lawyers should be more like specialist, medical specialists, which I think lawyers should have initial practices and like focusing on something makes these conversations a lot easier. So that’s good.
Alan Fanger: Well right, I mean after all we are a helping profession.
Jared Correia: Yes.
Alan Fanger: And I think that sometimes we can lose sight of it because we are so focused on simply vindication of rights and doing what our license obligates us to do but if you really want to understand what it means to be in a helping profession, you have to take yourself out of that particular silo and understand that you are really here to do more than that.
You are here to help to be a counselor, you are a counselor to the client and counseling them means make them comfortable, make them fully aware, understand that the more that you can defuse fear and anxiety, the more that you can get them to understand the process and appreciate the various steps along the way, then the better off you are going to be, you are certainly going to look better, your firm is going to look better and you are going to have a client, who’s going to be much easier to work with and has actually greater confidence in your own abilities.
Jared Correia: Yes so all right. So my last technical question on this as sort of a follow-up to an earlier conversation that we have but this is not about guaranteeing client performance, obviously, because you can’t do that. What this is about is about reducing risk of client under performance and you talked a little bit about this but I think we should end this conversation somewhat is like aside from the simple we won X or we lost Y what other KPIs or strategy should law firms use to talk about whether or not something like this is successful?
Alan Fanger: I think that if you are in the firm environment it’s much easier to do this then if you are solo, what would be so wrong about having the equivalent of Grand Rounds within a law firm environment.
So where you take various cases or case studies and over lunch, like a lunch meeting, you sit around in a conference room and you kick around some specific instances in which the client performed effectively or didn’t perform effectively and perhaps identify what the client could have done differently, what could have maybe been done differently internally and I know there might be issues of risk management and the malpractice insurers might be concerned about that but it’s not like you are writing anything down that’s really more like internal peer review.
And I think that having the benefit of input from colleagues and being able to identify specific instances in which the client might have gone off the rails or for instance the client didn’t provide a critical document that was only known when it was put in front of them at their deposition can really help try to get everybody to assess performance across an entire group of clients.
Jared Correia: So I think that’s fair for a law firm, you are not necessarily committing what would otherwise be called mistakes down on paper but you are actually having an open-ended discussion about whether or not this stuff works. That’s great. It’s kind of like a soft analytics take.
Alan Fanger: I know from when I was with BigLaw, I know we would talk about ongoing cases a lot but we never did a retrospective analysis of cases and of course, the rationale for not doing it is hey, look we are all way too busy, like we got so many things on our plate, we are trying to do the client service stuff every day, we have got firm administration, we have got service to the bar and a million other things, sometimes recruiting like we don’t have time to do this.
But again, I am not encouraging firms to be devoting like thousands and thousands of hours but hey look, you got to have lunch right, you got to have lunch. So why not turn it into productive meeting.
Jared Correia: You got to eat. Absolutely. Alright my last question, let’s do a little first take action here. So do you want to be Steven Naismith, Max Kellerman or Skip Bayless, you can choose.
Alan Fanger: Charlie Kornhauser.
Jared Correia: Oh, okay none of the above. So I don’t have to get a chance to do a total home or sports podcast so I am taking advantage of it. How many championships do the Celtic is going to win in the next ten years?
Alan Fanger: Am I allowed to get a lifeline or ask you one question?
Jared Correia: Yeah.
Alan Fanger: Okay, are we signing Kyrie Irving to a long-term deal next year?
Jared Correia: Yes.
Alan Fanger: They’re going to win three in the next ten years.
Jared Correia: Nice, all right I like that I can look at that. I can look with that.
Alan Fanger: You liked it? Good.
Jared Correia: Yeah that’s a great way to end the show. I feel really positive about all this stuff. This has been a great episode of the Legal Toolkit, one of my favorites and we have been talking with Alan Fanger of EmpowerLegal about how lawyers can take affirmative steps to improve their clients’ performance, thereby improving their own performance by the way.
Now, I will be back on future shows with further insights into my soul, the soul of America and the legal market. If you are feeling nostalgic for my dulcet tones however you can check out our entire show archive anytime you want at legaltalknetwork.com.
So thanks again to Alan Fanger of EmpowerLegal for being on the show today. So Alan now is the time you can tell people how they can find out more about EmpowerLegal. So hit it.
Alan Fanger: Sure, they go to empowerlegal.net. We have the trailers for all our videos up there. So feel free to sample and if you want to buy off the menu, there are annual or monthly subscriptions available for our videos easily done right on the site.
Jared Correia: Beautiful check it out, EmpowerLegal. Thanks again to Alan Fanger of EmpowerLegal, who I would call the David Ortiz of Legal Podcasting and finally, thanks to all of you out there for listening and please tell my kids to do the same.
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