Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

We often tell clients that going through litigation is like the movie Rocky: the parties will batter each other emotionally and financially until the last one standing wins. This analogy draws on popular culture and helps to manage clients’ expectations, while promoting the advantages of reasonable negotiated settlements. It also makes a serious point with a touch of humor.

Little did I know that even more nuanced life lessons are to be found in one of the sequels, Rocky III.

In this installment, Rocky has lost the championship and is trained by his former arch-opponent for a comeback.

But, there’s more to it. Rocky, in fact, has to learn new skills. Specifically, he has to be quicker, more agile, and learn to move rhythmically. He also has to package his new skills into a whole new fight strategy. But first, he has to pick himself up emotionally.

I think this is a good metaphor for surviving the recession. Businesses that may have lost their “championship” standing may need to pick themselves up, learn new skills and package them into a whole new business strategy.

Actually, learning new skills should be part of a continuous process, and business strategies should be continually reevaluated and refreshed. Then, the business would be well-positioned to survive adversity -- even a really bad recession. Personally, we have always been prepared to shift the focus of our practice within appropriate areas of our expertise and to selectively implement new technologies to deliver services more effectively.

So, I learned about litigation from Rocky and about management from Rocky III.

To think that I could have saved all that time going to business school and law school if I had only paid more attention to Rocky.

image courtesy allposters.com

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A healthy business requires appropriate and effective attention to the process of staying in business. A law practice is no exception. Keeping up with developments in the law is a “given,” but with respect to our business processes, we share many of the concerns, issues and shortcomings of any business, including the current pressures of the economy.

(For me, interest in business processes comes naturally. I became a lawyer in mid-career; my pre-law credentials include an MBA and project management experience developing business software and “back office” procedures for insurance and financial organizations.)

Last week I attended the Sixth Annual Law Practice Management Symposium of the New York City Bar.

Don’t stop reading. This is not “inside baseball” for lawyers.

So, very briefly, here are my highlights of the symposium:

Cash Flow – Considering the economic environment, what business is not interested in improving cash flow? Merchant banking (credit card processing) services for our business have become really sophisticated and not only improve cash flow, but also automate some of the strict controls over attorney escrow accounts that we otherwise handle manually. For example, clients can now pay by credit card via e-mail and the terminals are “virtual,” that is, online.

Financial Services – A few banks have focused on attorneys as a market niche and have developed expertise on how to handle escrow accounts (such as organizing statements to facilitate reconciliation). Generalizing to other businesses, why not work with a financial institution that actually understands your business?

Marketing – All the buzz in marketing was about social networking sites on the internet. Here, my “take-away” was pick and choose carefully. However, two important points were raised, applicable to any business: (1) a down economy is not the time to save on marketing, and (2) businesses that don’t cut back on marketing tend to increase market share in a down economy.

Information Management – Practice management systems for lawyers have evolved and are now truly impressive. They tend to be sold on the promise of capturing more billable time and increasing revenue for lawyers. That’s not good news if you’re a client. Take heart. My “take-away” is that they are not likely to increase revenue significantly but they are likely to organize information so as to save lawyers from loads of “administrativia” and free up lots of time for real work or for (is it possible?) leisure.

And, incidentally, it’s a myth that lawyers gain by wasting time on clients’ work to boost billable hours - - actually, getting the work out efficiently and effectively leads to a more profitable practice and is a win-win with clients.

Balance of Work and Leisure – This is as much an issue for lawyers as it is for other professions and occupations. My take-away is that if you organize your practice (or business) so that it functions effectively, life balance becomes a more manageable issue.

And, as a parting point, my primary criterion when evaluating business processes is effectiveness rather than efficiency. I think that applies to any business and more specifically to law practice management.

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We are going to take time out for a little futurism. I was intrigued by a post in ABAJournal.com on “Four Factors that Could Change Law Practice” by Debra Cassens Weiss commenting on an article in American Lawyer.

The ABAJournal.com factors that could change law practice are: less loyalty among associates, investment by nonlawyers, corporate dissatisfaction with high billing rates and technology.

It seemed to me that the four factors selected were from the perspective of “Biglaw.” From the perspective of smaller firms, it seemed to me the principal change factors would be a little different. Along with personal experience, my analysis of small firm experience comes from a number of sources. Two very recent blog posts that provide useful insights are: ABAJournal.com, by Rachel M. Zahorsky, “Boutique Firms Find Recession Resilience in Being a Master of One,” and MyShingle.com, by Carolyn Elefant, entitled “Solo, Leverage Thyself (and Diversify Too): Biglaw, Take Heed!

This may all seem off-topic for this blog but, actually, “changes in law practice” also means changes in business litigation. In fact, one specific change we might predict is that in the future litigation may be a rarity for business disputes, especially for small business clients, while lawyers and their clients deal more broadly with “dispute resolution.” So, with thanks to ABAJournal.com for starting the thought process, I’m going to try to identify change factors from the perspective of smaller firms.

And, although we focus on small firm practice, Myshingle.com may have a point and perhaps Biglaw should take heed: the study of acorns and saplings does yield insights into the lifecycles of the mighty oaks.

I plan to elaborate on each factor in future posts. For now, let’s identify the small firm factors that could change the practice of law:

• Collaboration (both within and among firms): While lawyers do collaborate, currently there is an inherent limitation because many clients can’t afford to pay collaborating lawyers if each is billing strictly on an hourly basis.

• Value Buying: We use this term to address billing issues from the perspective of the buyer. Regardless of the law firm’s billing method, clients are making an implicit comparison of the value of services against the cost.

• Specialization (even more or ever narrower): The value to the smaller firm of specialization and the niche marketing associated with specialization ought to be self-evident.

• Technology: Technology will continue to change the practice of law but not necessarily in esoteric ways. Consider an analogy with the better known example of health care imaging technologies: the benefits come not from the imaging but from the practitioner’s ability to diagnose more accurately and treat more precisely.

We’ll have more to say. Comments will be appreciated at any time.

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ABAJournal.com reported last week on a futurist’s prediction that lawyers advising corporations will change their practices to offer a wide range of advice on how to avoid legal problems. The post, “Futurist Says Lawyers Will Become Legal Risk Consultants” was by Debra Cassens Weiss.  The futurist is Richars Susskind and his predictions are made in an interview in Am Law Daily.

We would like to think that we are in the forefront of that trend although we advise smaller businesses and individuals, not major corporations. The premise of this blog is that by studying trends and events in litigation, we can derive not only broad principles for managing legal risks but better practices for managing business and personal assets.

On the surface, it may seem like an idealistic position but there are many, many practical examples. To cite one example, a recent post commented on performance reviews as a rich source of evidence for either side in employment litigation. But, it is not a stretch that if you manage performance reviews effectively, you will effectively manage performance.

So, we tend to agree with the futurist cited by ABAJournal.com that lawyers advising businesses will in the future position themselves as “legal risk consultants” and we venture to predict that litigation will become “dispute resolution.”

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