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November 21, 2006

Practice Dead President's Law

Connecticut Law Tribune , 10/03/2005

Dead Presidents' Law Is Way To Build Firm. 

When I first started my practice, someone asked the inevitable question, "what kind of law do you practice?" One of my partners immediately quipped, "Dead Presidents' Law. Anyone who comes through that door willing to pay me in Washingtons, Jeffersons, Lincolns and the like, the law they need is the law I'll practice."

There is a lot of wisdom in practicing Dead Presidents' Law. It is how you will initially grow your business and how you will become experienced and diversified in the legal services you offer. When you go to law school there is an encouragement to "specialize"even though in some states you are not allowed to call it a specialty, ergo, the euphemism, "concentration." And we all have an idea of the kind of law we would like to practice: entertainment, patent law, criminal, corporate.

The reality is, though, when you first start out, unless you've developed a reputation in a niche area at another firm and are taking clients with you, you have to earn the right to "specialize." In order to keep your doors open you need paying clients, the bread-and-butter clients. The clients who will be referred to you right out of the chute, generally, are not coming to you with patent issues or class action suits. They need a divorce, a will, defense in a DUI, bankruptcy or a real estate closing. It is incumbent upon you to develop your proficiencies in most everyday areas so you can support your fledgling operation, create cash flow to cover your monthly expenses and work toward establishing yourself in the practice area you ultimately choose.

Diversification in your legal services is a very important aspect of developing a solo practice, especially in the early years of building your business. Practice Dead Presidents' Law. But don't forget that the other critical area is Traffic Managing.

Traffic Managing is the art of getting clients through your door, holding their hand while you walk them to another lawyer more capable than you, collecting a referral fee for bringing them to the other lawyer, and still maintaining that client for all other legal matters. Traffic Managing keeps you profitable and gives you the appearance of being a larger firm than you are, all without the attendant overhead. It is very smart business.

A perfect example of what would have been appropriate Traffic Managing is told in John Grisham's book, "The Rainmaker." A once-in-a-lifetime contingency case involving an insurance company who took premiums but would not pay to save a young man's life lands on the desk of an idealistic, impoverished young lawyer fresh out of law school. If he wins for his client, his cut is millions. It's every lawyer's dream settlement. It makes for a great book and movie, but it has no place in reality.

In the real world, a smart young lawyer would have referred the case to a firm financially competent and staffed to handle a case of this magnitude, signed an agreement for a referral fee and requested a role in the prosecution of the case as a once-in-a-lifetime learning experience; continued to build her firm with business she is currently capable of handling and which pays her expenses today and waits for the big pay day. You get a smaller payout if the case is resolved in the client's favor but all the financial risk and expenditure of time is on the larger firm. Smart business. You get to stay in business while demonstrating to other larger firms you have a personal reputation which attracts clients. They would be smart to take your referrals seriously and treat you respectfully because it is profitable to them as well.

This leads me to a favorite referral case traffic managed through our office. There was a multi-million dollar class action case which was brought to one of my partners years ago, not because it was a case we could handle as a firm, but because my partner was a personal trusted friend of the "whistleblower." He knew we would bring it to another firm but was comfortable my partner would do what was best by him. I contacted a childhood friend who worked at one of the largest class action law firms in the country and out of the state of Connecticut. When I asked to have the referral fee agreement in writing I was told, "Our reputation is such in the industry we don't have to commit in writing." Needless to say, they didn't get the case.

Susan Cartier-Liebel is solo practitioner, adjunct professor at Quinnipiac University School of Law and a business consultant for solo and small firms. She can be reached at SCartier_Liebel@comcast.net. Copyright © Susan Cartier-Liebel (2005) All Rights Reserved. No portion of this material may be copied, transmitted, posted, duplicated or otherwise used without the express written approval of Susan Cartier-Liebel.


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Carolyn Elefant

As I am sure you realize, many jurisdictions do not allow referral fees, which significantly changes the way that cases are handled. For example, here in DC and Maryland, referral fees are not allowed unless the referring attorney plays a substantial role in handling the case. A referral fee system not only helps solos get $$s for cases that they are not able to handle, but it also helps trickle cases down to new solos that they'd ordinarily not have access to. I know a few solos in NY who are handling high risk, but potentially big money matters in cases that were referred by other firms which will keep a cut of whatever is ultimately recovered.

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