Tag Archive | "Law Tips"

Law Tips: 13 Pointers for Improving Your Practice and Keeping Happy Clients!

What competent attorney doesn’t have a goal of “improving your practice and keeping happy clients?” This is an ongoing activity that can always benefit from reminders. With those thoughts in mind, I am happy to have the input of a veteran member of ICLEF’s faculty for the 12th Annual Family Law Institute in this week’s Law Tips. J. David Roellgen is a partner with Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana, who has practiced Family Law for over 33 years. He offers a list of pointers that might bear reviewing by all practitioners, regardless of your practice area.

1. Make sure that you have a full and frank discussion with your client so that expectations can be set and appropriately managed from the beginning. There is nothing less fun than finding yourself arguing with a client about why the law is a certain way or why that is not fair in their particular case.

2. Of course, always return phone calls promptly, hopefully in the same day if at all possible. Good communication is key to lawyer and client happiness.

3. The client is in control of the case and if they are prepared to settle with or without your advice, then the case needs to be settled. If your client is rejecting a reasonable offer and wants to go to trial, it is a good idea to have them sign a document acknowledging that they are acting against your advice and that the results at trial may vary.

4. Self evaluation is difficult but client satisfaction surveys may be a way for them to reflect after some distance from the actual tumult of litigation and for you to reflect on ways to improve your practice.

5. Clients should sign retainer agreements that permit withdrawal within the rules of ethics, in the event you are not paid for services.

6. Use the evergreen approach for retainer fees which means that it periodically needs to be replenished.

7. Determining how you will be paid is important at the initial meeting. This could involve loans, mortgages, notes, family or friends who may guarantee payment.

8. If you give clients homework, make sure they actually do it. If they are not filling out initial client intake forms, they are probably not going to do any homework that you assign them. In our firm, we call clients who’ve been unhappy and sought other counsel as “Second Hand Rose.” If they were unhappy with the first series of representatives, it is only a matter of time before they become unhappy with you.

9. Pay attention to the support staff as they are in the trenches and might be able to point out strength and weaknesses that you have become blind to.

10. Know your limitations. If it is an area of law you want to learn, you might want to do that in an academic setting and not at some client’s expense.

11. If the client doesn’t make you feel right about a position, demand, or tactic, trust your gut.

12. After the attorney client relationship has been established, have the client set out goals in the case that will help you understand what is important to the client and also provide early warnings of client expectations or goals that are unreasonable, unlawful or unethical. Once the goals are completed you can meet with the client and go through those on a line by line basis and focus on attainable ones or one that may need to be modified due to unrealistic expectations or the state of the law.

13. It will likely be necessary to revisit these goals as the case progresses and client dictates set in.

Dave Roellgen’s list does include #14, as well. That would be a thorough “End of Case Questionnaire” that space doesn’t allow us to include here.   Among other topics, the questionnaire provides the client with the opportunity to give feedback on whether their expectations of the firm were met, any improvements they might recommend and future legal needs.

I appreciate Dave sharing his “happy clients” guidelines. ICLEF’s 12th Annual Family Law Institute provides additional valuable advice from Dave Roellgen and 22 of his fellow faculty. You may choose to attend this CLE by Video Replay in the coming weeks, or schedule your own session On Demand by Clicking Here. Or, if you prefer to add the seminar manual to your library, Click Here to download.

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About our Law Tips faculty participant:
J. David Roellgen is a partner with Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana. Having enjoyed the practice of law for over 33 years, Dave was educated at Vincennes University, Indiana State University and Indiana University-Indianapolis Law School, JD, cum laude, 1979. He is a past president of the Knox County Bar Association, a member of the Indiana State; Illinois and American Bar Associations; Fellow, Indiana Bar Foundation; Court of Military Appeals; Retired LTC, Indiana Army National Guard, last serving as the Staff Judge Advocate for the 38th INF. DIV. (MECH), and is City Attorney, City of Vincennes, 1992-1995; 2001- 2007; and 2012-present.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Pro Bono in Indiana 2014 – A Snapshot From An Expert

Are you in the midst of re-examining your pro bono commitments? Or, should you be? Maybe you’ve been wondering about the status of pro bono in Indiana. Fortunately, we have Scott Wylie to provide information on where Indiana’s pro bono path has led and the current state of affairs. Mr. Wylie is presently a plan administrator with the Volunteer Lawyer Program of Southwestern Indiana. He has directly observed the country’s pro bono developments for more than two decades, having also held the position of Director of the Public Law Center in Orange County California for a number of years. Scott is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. I am pleased to share with Law Tips readers his overview of Pro Bono in Indiana 2014.

Indiana is a deliberative place. We aren’t known for being on the cutting edge and change is something that we look at with a skeptical eye. It is rare that we jump in the pool first, typically waiting until others have tested the waters. Indiana was the last state in the nation to adopt a system of using interest on lawyer trust accounts (commonly referred to as IOLTA) to help fund the provision of legal services to low income residents. Our system, which went into effect in 1998, primarily funds pro bono programs in the state.1 Similarly, we have been cautious in our development of self-help services and clinical programs to address the needs of those for whom the legal aid and pro bono system just can’t fully serve. That cautious beginning served the state very well for a number of years, creating a well-planned, albeit modestly-funded, pro bono delivery system in every jurisdiction of Indiana. Pro Bono Plan Administrators working with the state’s Pro Bono Commission, worked to implement locally-developed pro bono plans to serve low income Hoosiers. These programs in turn often worked closely with other agencies in the delivery system, such as Indiana Legal Services, to maximize representation of the poor. 2 That system, however, is now greatly stressed after years of low interest rates sapping it of resources and high demand created by the Great Recession.

Even with strong programs and partnerships, our legal services delivery system was not able to meet the legal needs of every low income litigant before the Great Recession- not to mention the needs of the near-poor who aren’t served through the pro bono or legal aid system under any circumstance.

Since 2008, the gap has increased rapidly as programs have had to restrict services. To deal with this reality, law school clinics, legal services programs, courts, and each of our pro bono programs have worked to create new delivery models that attempt to meet the needs of clients who can’t otherwise be served through direct representation from our remaining pro bono programs. These litigants often have to navigate the system alone without services, and, while not ideal, these self-help services do address part of the litigants’ needs. They also assist the courts by increasing judicial efficiency and by ensuring more accurate and better prepared pleadings and legal documents when dealing with unrepresented litigants. 3 Court based clinics, law school clinics, and the encouragement of discrete task or limited scope representation have complemented the efforts of courtroom attorneys in increasing access to justice.

Professional Conduct Rule 6.5

Indiana wasn’t the first to undertake such efforts, but the state did ensure that our Rules of Professional Conduct facilitated these new models. Specifically, the courts adopted Rule 6.5 to make it easier for attorneys to provide limited scope and brief advice services at both court-based and nonprofit clinics (often run by law schools or pro bono programs). Perhaps the best known is our annual Talk to a Lawyer program offered each Martin Luther King Day throughout the state. Dozens of other clinics occur each month, some assisting pro se litigants with court forms and others providing guidance on specific subject matters. In all environments, participating volunteer attorneys can provide the service without having to do full conflict of interest checks. Rule 6.5 allows a pro bono attorney in these controlled environments to provide legal information or services to unrepresented litigants unless she specifically recognizes that she or a member of her firm has a conflict. The commentary provided with the rules provide guidance to both attorneys and program developers to ensure these limited scope services are offered in an appropriate manner and that litigants understand the limited nature of the legal relationship.

Professional Conduct Rule 1.2

Further guidance on providing services in these new environments is contained in Rule 1.2, specifically in subsection c, which along with the rule’s commentary specifically allows limited scope services. This method of providing legal services, often times referred to as unbundling, has been a hot topic in legal services for years. Since the framework of the profession’s conduct rules has always been based upon a full representational model, carving out these specific exceptions to allow limited scope services has been instrumental in allowing clinics, hotlines, and other self-help services to join the other tools available to the poor in obtaining legal help. These have become increasingly important tools as pro bono programs have had to limit services due to funding cuts. Attorneys participating in such programs should familiarize themselves with these rules and their commentary and participate only with reputable programs which follow the prescribed procedures for offering such. 4

By adopting new delivery methods and opening new avenues of service, facilitated by the ethics rules discussed above, Indiana continues its efforts to increase access to justice for the most vulnerable residents of the state, even during a time of very limited resources. For information on volunteering in your home jurisdiction, and for what innovative programs are offered in your community, contact your local Pro Bono Plan Administrator. 5

Thank you to Scott Wylie for sharing this Indiana pro bono snapshot. His ICLEF faculty presentation also includes specific instruction on areas such as allocation of authority between client and lawyer, independence from clients’ views and criminal and prohibited transactions. This training session is a portion of the 2014 Indiana Law Update program available currently by Video Replay around the state or as an On Demand Seminars, Click Here to learn more.

Indiana’s pro bono program structure in its entirety is described throughout Rule 6 of the Indiana Rules of Professional Conduct.

1 Historical information on the development of IOLTA programs throughout the country and historical data on Indiana’s IOLTA program can be found at www.nlada.org.

2 Information on pro bono services in Indiana, including information on each of Indiana’s pro bono programs can be found at www.in.gov/judiciary/probono.

3 In 2008, Indiana undertook an extensive survey of the legal needs of low income Hoosiers. The executive summary of that report can be found at the Indiana Legal Services website.

4 Detailed information on pro se assistance programs and limited scope representation can be found at http://www.abanet.org/legalservices/delivery/delunbund.html.

5 Information on pro bono efforts in Indiana, including a list of local Plan Administrators, can be found at www.in.gov/judiciary/probono.

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About our Law Tips faculty participant:
Robert Scott Wylie: Before returning to the Evansville area in 2005, Mr. Wylie spent seventeen years practicing and teaching law in Southern California. He is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. From 1999 until 2005, Mr. Wylie served as the Associate Dean of Extemal Affairs and held the John Fitz Randolph Director of Clinical Education Chair at Whittier College School of Law. This work was preceded by a seven year stint as Executive Director of the Public Law Center in Orange County California. For over fifteen years, Mr. Wylie has been active with the American Bar Association Center for Pro Bono. Presently, he is the Director of the Vanderburgh Community Foundation and a Plan Administrator with the Volunteer Lawyer Program of Southwestern Indiana. Mr. Wylie serves on the Board of Directors of a variety of charities including the Legal Aid Society of Evansville.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Eliciting Change Talk in Mediation

Doug Noll, a fulltime peacemaker, emphasizes the importance of “micro-moments of emotion” when mediators should respond appropriately in order to bring the parties to an amicable settlement. Mr. Noll specializes in difficult, complex, and intractable conflicts and he trains others in those conflict resolution skills. A segment of his mediation training focuses on eliciting change talk. Today, Doug is generously providing an outline of how change talk can assist in a positive outcome in your clients’ settlement. Let’s learn about DARN C:

Eliciting Change Talk

Eliciting change talk, or self motivational statements, is an important component in mediationsettlements. This strategy helps to establish and resolve ambivalence and move forward.

Change talk is the party making statements that are in favor of resolution, which suggests that the party is becoming more ready, willing, and able to settle. However, although a mediator may want to hear change talk, she avoids imposing it. The goal is to elicit it from the party in a collaborative fashion. Eliciting change talk has to come about through a consensual, negotiated process between the mediator, the party, and counsel. Change talk can occur in several forms that make up the acronym DARN C.

D =Desire statements. Statements indicating a desire to make a change.

  • “I’d like to get this over with if I could.”
  • “I wish I could make my life better.”
  • “I want to take better care of my kids.”
  • “Getting past this would make me feel so much better about myself.”

A= Ability statements. Statements that speak to the party’s self-efficacy or belief in the ability tomake changes.

  • “I think I could do that.”
  • “That might be possible.”
  • “I’m thinking I might be able to do that.”
  • “If I just had enough money to survive until I got back on my feet, I could probably be OK.”

R = Reasons statements. Statements that reflect the reasons the party gives for considering a change.

  • “I have to settle because the stress and cost is driving me to bankruptcy.”
  • “To keep my sanity, I should probably figure a way out of this mess.”
  • “My marriage is over and I might as well just accept it and move on.”
  • “I don’t like my kids to see me like this.”

N = Need statements. Statements that indicate a need for change. These can be similar to R statements, but the emphasis is more affective or emotional than a more cognitive R statement.

  • “It’s really important to get my life back.”
  • “Something has to change or my marriage will break.”
  • “I’ll die if I keep going like this.”

These DARN statements are important to recognize and then emphasize through reflecting or directing the party to further elaboration. These statements are avenues to the most important part of change talk, the “C” in the DARN C.

C = Commitment language. Commitment language is the strength of change talk.

For example, aperson could say, “I might settle”, or “I could consider settling”, or “I’m planning to settle” or “I will settle”. The last two examples represent authentic commitment. The strength of the verb in the sentence corresponds with the strength of the commitment language.

An important mediator skill is addressing party commitment to change over the course of the mediation by recognizing and responding to change talk. The goal is to strengthen the commitment level.

Amrhein and Miller (2003), a linguist and a psychologist respectively, have shown that while allelements of change talk can be important in building commitment language, it is the stronger commitment statements that predict positive behavior outcomes. In other words, the more a party is making strong commitment statements like “I will do this” and “I am going to do that,” the more likely the party’s behavior is going to change.

I appreciate the contributions of Douglas Noll, both for Law Tips and as a faculty member for ICLEF. His DARN C pointers surely can help to recognize and strengthen the commitments of parties in various situations. I hope you have enhanced your mediation skills through his advice.

For further information on Mr. Noll’s training you may want to visit his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators - 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession - 3 CLE / 3 CME / .5 E - December 3

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About our Law Tips faculty participant:
Douglas E. Noll, J.D., M. A. In addition to being a keynote speaker and negotiation trainer, Doug is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators. He is the author of  Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books, April 2011).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

Law Tips: Exploring Ambivalence and Moving Toward Settlement

Missing the moment often is a precursor to impasse. As mediators, we are frequently faced with micro-moments of emotion. To the degree we can recognize the moment and respond appropriately, we build trust, de-escalate conflict, restore cognitive functioning, and provide compassion to the parties and their counsel. All of these events lead to settlement.

This introduction to mediation is offered by Douglas E. Noll, a full time peacemaker and mediator and ICLEF mediation training participant. He specializes in difficult, complex, and intractable conflicts. Today we have the opportunity to garner a few tips from Doug on understanding ambivalence so that settlement can be attained.

Exploring Ambivalence

A key assumption we must make as mediators is that people do not usually come to mediation ready to negotiate a settlement. Generally, the lawyers agree upon and organize the mediation and tell the parties to show up. Some lawyers have pre-mediation conferences with their clients, but most do not. The parties have been living with the lawsuit for months, if not years. It has become a part of their life. They have usually built up expectations about how winning will change their lives for the better. Now they’re coming to end it all through mediation. They don’t know how they feel about settling their case.

On the one hand, people generally dislike lawsuits and lawyers, which drives them towards settlement. On the other hand, people have strong feelings about justice, fairness, and the need for vengeance and vindication, which pushes them away from settlement. These feelings are reinforced by a number of cognitive biases that distort decision-making away from settlement. As a result, people are often ambivalent about settlement. This is a natural and expected phenomenon that baffles newer mediators.

Do not challenge the ambivalence, but rather acknowledge that people feel two ways about it: They want to change and they want things to stay the same. Staying the same often represents comfort, familiarity, and certain pleasures (especially the anticipatory pleasure of vengeance). The emotional reasons to settle need to be stronger than the reasons for staying the same in order to “tip the balance” for settlement.

Why Is Ambivalence Common?

Ambivalence happens because the party feels two ways about change. When trying to be convinced of all the reasons to make a change, a party feels the need to present the other side of the story. Lawyers are the same way. They will always argue why they will win and will rarely argue in favor of settlement until late in the process. Psychologically, the arguments for winning are just as important as the reasons for settlement being reflected by the mediator, even if the arguments make no sense. The stronger the mediator argues his or her point for settlement, stronger resistance he will get from the person that doesn’t want to change. The correct practice is to acknowledge the ambivalence and “come along side” the party or counsel. Parties and counsel must be given the freedom to talk about the side that doesn’t want to change.

For example: Tony says he has a prescriptive easement over Tom’s property. He says his dad used to drive cattle along the road for 40 years. He considers his use of the road as part of his lifestyle. On the other hand, he is worried about the continued cost of the lawsuit and the stress is causing on his family and business. If you encourage Tony to settle because he needs to end the stress of the lawsuit, he is likely to tell you all the reasons why he should continue to litigate. Ultimately, he will tell you that he would rather pay his lawyers everything he has rather than concede anything to Tom in settlement.

In contrast, if you explore the status quo and acknowledge how much he enjoys using Tom’s road, he receives the message that you are listening and are not rushing to change him. You learn more about the thoughts and feelings that underlie his strong feelings. You have signaled that you are concerned with exploring his view of the world. After talking about staying the course of the lawsuit, he will feel the itch to talking about the other half of the story, the reasons he wants to settle.

Ambivalence is not always a circle cut exactly in half. For someone in pre-contemplation (who is not considering settlement), the part that doesn’t want to change might be much larger than the part that does want to change. However, both parts are still represented. At times, such as when a person is moving through the stages of change, the side that wants to change may get bigger and bigger. It may also shrink down again. This can happen from session to session or even minute to minute. The most important point about ambivalence is that having it is normal and fluctuation is normal.

Thank you to Doug Noll for his insights into recognizing ambivalence and assisting clients at moving through the settlement stages. For further information on Mr. Noll’s training you may want to investigate his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators – 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession – 3 CLE / 3 CME / .5 E - December 3

_________________________________________________________________________________

About our Law Tips faculty participant:
Douglas E. Noll, Esq. is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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