Book Review: The Non Non-profit by Steve Rothschild

Steve Rothschild has written an exceptionally perceptive, well researched, and highly relevant analysis of what makes non-profit entities work and, conversely, what causes others to fail. He humbly talks not just about his own enormous success at creating and building a major jobs training program for his practically untrainable clientele, but he also illustrates all of his early failures so no one else need make the same mistakes in their own programs. Rothschild is a true visionary, but unlike most visionaries I know, he has the street-smart savvy and organizational skills that are essential to bring one's visions to life. The book contains a clear step-by-step recipe for success for all non-profit organizations, easy to understand and easy to implement. The book should serve as the single most important resource for anyone involved in any leadership role in any non-profit organization. To me it would be gross negligence to occupy such a position and not read this important book.

The Voter ID Amendment – Just Deceptive Politics

Voters in many states, particularly in my native Minnesota, are being bombarded with advertisements promoting or opposing constitutional amendments to require voter identification cards as a condition for being allowed to vote. The sole justification for this requirement is the prevention of voter fraud, and most ads cite various anecdotal evidence of some irregularity that has occurred and which might theoretically have been prevented had there been a voter ID law in place.

The thing that I find most perplexing about this debate is why it is so partisan--Republicans pushing the amendment and Democrats opposing it. If there actually is significant evidence of voter fraud, why doesn’t everyone, Republicans and Democrats alike, want to curtail it? Does anyone really believe that Democrats are actually in favor of voter fraud and only Republicans stand on the ethical high road?

The Presidential Debates – Who Won?

I am always perplexed by the incessant media and internet traffic focused on who won the last debate. Really, why does anyone care? The one and only time the president of the United States engages in any debate is during election season. Never once does he debate against anyone as a part of his official duties. So why do we care whether we elect a president who is good at debate?

Who appeared more confident? Who appeared more “presidential?” Who was more aggressive? Who was more in control?

Obamacare and the Affordable Care Act – Give It a Chance

Most of the media coverage on ObamaCare is politically charged and only rarely is there an article or study that provides the true facts about the program. Of course, it’s far easier to write saucy one-liners that catch the eye of whoever likes the tone of the headline, but actually studying and understanding the lengthy, complex legislation takes some time and dedication. Since no one is doing this, 95% of the people who freely offer opinions about ObamaCare haven’t the foggiest idea what they are talking about. So why not give Americans the real truth?

Who Pays? The Truth About the American Tax System

There have been several recent articles discussing the American tax structure, and frankly they are all foreboding. According to a recent Tax Policy Center study, about 67 million Americans paid no federal income taxes last year. Excluding children, that’s about 40% of the entire US population who pay no taxes at all. In other words, only 60% of us support the entire massive federal infrastructure.

So who doesn’t pay?

Voter ID – Balancing Competing Evils?

Although there is little doubt that some voter fraud occurs in American elections, there is very little evidence that the fraud is substantial or that it actually influences election results. Very few elections are decided by small margins. In order to alter an otherwise honest result, the fraud would have to be very substantial – involving many people – and not isolated instances where some felon shows up to vote when he should not have done so. It is very likely that major fraud is going to be detected because with many people, leaks are a virtual certainty. There is also no proof that requiring voters to show IDs will eliminate voter fraud. Does anyone believe that minors who show up in bars with photo IDs of their 21-year-old friends are never served alcohol?

Why Can't There Be Campaign Finance Reform?

I can’t remember the last time I spoke with anyone who actually likes our current system of campaign financing. Truthfully, the only people who actually support allowing virtually unlimited money to flow into election campaigns are the special interest groups. They have large amounts of money to spend and want to spend it for the sole purpose of influencing legislation that is favorable to their cause -- in other words, people who want the right to legally bribe elected officials. Bribery truly is the correct word here. While the money goes to the campaign’s bank account and not the candidate’s personal bank account, that’s a difference without significance; the candidate needs both accounts flush with money to save his job.

So, if the majority of Americans want to end legalized bribery of elected officials, why doesn’t it happen? Why does virtually every law that is passed to correct this enormous problem get ruled unconstitutional? Believe it or not, the answer our Supreme Court gives us is that these financial contributions are protected by the First Amendment right of free speech. The notion is that if the public does not have the right to spend money to speak their peace, their right to do so is abridged.

But is the right to spend money to speak the same thing as the right to speak?

WikiLeaks Founder Attacks the United States

One of the “top stories” in the newspaper these days is that WikiLeaks founder Julian Assange has been granted asylum in the Ecuadoran embassy in London, and has commenced his efforts to end the United States’ “war on whistleblowers.” He argues that the American soldier who released top-secret information to him is “a hero.” I guess that makes WikiLeaks a “double hero” for publishing to the world information that it also knew was top secret. Assange suggested that this was a freedom of the press issue and that “journalists [will] fall silent under fear of prosecution.” His own fear of prosecution, he conveniently overlooks, is for sexually assaulting two women in Sweden, and it is Sweden, not the United States, who seeks to extradite him.

Why is such tripe even newsworthy? A sex offender who defends himself on the basis that he is being discriminated against for publishing top-secret information! Am I missing something here?

Tobacco Lawyers Sue the Food Companies

Great news for the millions of victims of the food industry—the tobacco lawyers are now on your side. All the hapless people who have been eating Cheerios to keep their cholesterol in check in spite of their daily 5,000-calorie diets of super-sized double bacon cheeseburgers, french fries, and chocolate shakes now finally have a friend, a knight in shining armor to save them from themselves.

The NY Times reported on Sunday that since pocketing hundreds of millions of dollars from the tobacco companies, lawyers have been desperately searching for their next payday. So all those companies that claim their products are “natural,” “healthy,” or “organic” better take heed that if one molecule of some ingredient in their products is considered unhealthy by these lawyers or their highly paid experts, they are going to be hauled into court. They will have to defend themselves from some class-action lawsuit that will cost millions of dollars to defend and accomplish absolutely nothing—other than to make a few exceedingly rich lawyers even richer.

Does anyone really believe that a jury of 6, 8, or 12 people (depending on the jurisdiction) is able to decide what is best for the American consumer?

Same-Sex Marriage – Cluttering Up Our Constitution

The war of words is underway in Minnesota (and many other states across the country) as ballots will soon give voters the choice on whether to establish a constitutional ban on same-sex marriages. Most ballot initiatives go something like this: “Do you favor a constitutional amendment that will ban same-sex marriage?” Unfortunately, very few voters recognize this question as a false dichotomy. In other words, it's a question that has at least three valid answers but only allows two options for answering. My wife and I used to give our children false dichotomies all the time. We'd ask, “Do you want to go to bed by yourself, or do you want me to carry you to bed?” That worked really well until they were about ten, when they first recognized there was a third option we weren’t giving them – not going to bed at all.

So what are the three valid answers to the same-sex marriage amendment?

1.) Yes, I favor same-sex marriage and vote against the amendment.

2.) No, I oppose same-sex marriage and vote in favor of the amendment.

3.) I oppose same-sex marriage, but I also oppose changing the constitution.

This third group is in an unusual position of having to choose which is worse, allowing same sex marriage or changing the constitution.

Same-Sex Marriage – A Political Game

I’ve never understood why Republicans tend to oppose same sex marriage and Democrats tend to favor it. What is it in the political credos of these two parties that require them to take these positions? Actually nothing. The primary focus of American politics today is not about what’s best for the American people; it’s about retaining or gaining power. In the very troubled economic times we live in today, why is same sex marriage such a big deal that there is media coverage of the issue virtually every day? A vote one way versus the other won't give us more jobs, reduce the national debt, or increase gross national product. Why do we focus so much energy on issues that have nothing whatsoever to do with the main issues of the day? The answer is simple, the politics of power.

Sure, the economy is more important than same sex marriage, virtually everyone agrees with that. But there are no solutions to our economic woes that will get anyone elected or help anyone stay in power. To solve our long term economic woes, we either have to raise revenues (i.e. more taxes), reduce spending (i.e. cut funding to all the grand entitlement programs that got most of our national leaders elected in the first place), or, heaven forbid, a little of both. No matter which side a politician takes, he alienates half the American voters, and if he’s dumb enough to advocate the one solution most likely to do good, a little of each, then he alienates everyone. Taking a stand on the economy is simply bad politics, unless all one does is talk in absurdly vague generalities.

Campaign Finance Reform

I just read an article in USA Today that Obama leads Romney 47% to 45% -- in money spent on campaign advertising. Curiously that seems to be about the same lead as he has in the real polls, or is that not really a coincidence at all?

How do the hundreds of millions of dollars that are being spent on this year’s presidential election translate into the quality of the United States Government?

Here are a few things to think about:

•      How many people give large amounts of money without expecting something in return? And if they do expect favors, are they really not engaging in legalized bribery?

•      How much time does the president of the United States spend campaigning for the office? How much time does he spend campaigning for someone else who wants to be elected? Several years ago I watched a 60 Minutes interview with a retiring US senator who indicated he spent 60% of his time either raising money for his reelection campaign or actually campaigning for reelection. Is this how we want our elected officials to spend their time? We need dedicated legislators who care as much about the country as they do about keeping their jobs; we don't need professional fundraisers.

Welfare Spending: Are State Restrictions Really the Answer?

USA Today recently carried an article detailing many states’ efforts to curtail how welfare recipients spend their welfare payments. In many states, welfare recipients will no longer be allowed to use their stipends on liquor, gambling, cigarettes, strip clubs, and guns. Apparently it's been decided that these listed indiscretions should only be allowed to those few people who can truly afford to waste their money doing them. (Although it comes as no surprise that those who can afford to do so generally do not). This is the case despite the fact that the same legislators, who are now creating an economic bar to certain specified sins, have long ago declared all these sins to be perfectly legal. Indeed, I presume that many, perhaps most, of the members of the enabling legislatures probably engage in many of these activities themselves. So I guess it’s ok to sin, as long as you do it with money you have earned.

But who gets to choose which uses of welfare benefits are acceptable and which must be outlawed?

Fast and Furious – The Eric Holder Contempt Citation

How ironic it is that the House of Representatives is so upset about the government’s Fast and Furious campaign in Mexico, when nothing fast and furious ever happens in the House of Representatives? Correction, nothing happens particularly fast, but there certainly is a lot of fury – mostly signifying nothing – which of course is the entire purpose surrounding Attorney General Eric Holder’s contempt citation for refusal to cooperate with Congress. How anyone can be cited for refusing to cooperate with Congress when Congress clearly does not cooperate with itself is beyond rational comprehension. Does anyone believe a Republican controlled Congress would have voted for a contempt citation against a Republican attorney general? Would such a citation have been issued if this were not a presidential election year?

The whole sordid episode confuses the real issue – supplying guns to the Mexican drug cartel against whom the guns were intended to be discharged. But then, who really cares about the guns or the people those guns kill? This is an election year, so all that’s important is today’s newspaper headlines. Whatever one has to do to lure the media into printing or broadcasting some story that will hurt his opponent is really all that counts. What other reason is there for holding these hearings?

Under the Microscope: ObamaCare

Do you agree or disagree with the Supreme Court's decision?

This question–asked multiple times by multiple media outlets in the last few days–is totally absurd. In truth, there are only a miniscule number of respondents who are qualified to assess whether the United States Supreme Court correctly applied the federal constitution to the Affordable Care Act. Consequently the results of this poll are totally worthless.

The real question to ask the public should be: Do you agree or disagree with ObamaCare?

At least with this question everyone is qualified to give an answer because the question asks for nothing but a personal opinion. Unfortunately the results of this poll are likewise entirely unreliable. The problem is that the respective proponents and opponents of ObamaCare have generated so much disinformation that the public really has no reliable information upon which to base any opinion. The Republicans and the Democrats alike publish enormous inaccuracies about this law for the sole purpose of influencing public opinion in the upcoming presidential election. So the public is grossly misinformed as to the benefits the law provides, the cost of implementation of the law or the gravity of the regulations the law imposes. Who could possibly cast an intelligent vote under these circumstances?

The Roger Clemens Trial: Why Do We Idolize Professional Athletes?

The recently concluded Roger Clemens trial ought give all Americans pause to consider what’s gone so wrong with sports in the United States. And I’m not talking about steroids. Whether a professional athlete is using entirely legal means to grow his body to an insanely unhealthy weight and compete in the National Football League, or is taking growth-enhancing drugs to accomplish the same end result is truthfully of very minor significance. That is, to anyone other than headline-seeking members of Congress or advertising-seeking news media.

Who really cares what a professional athlete voluntarily chooses to do to his body anyway?

To me, the real significance of the Roger Clemens trial is not the alleged crime itself, but rather the incredibly widespread fascination over whether yet another sports idol was about to be publicly disgraced.

Are there too many lawsuits in the U.S.?

Americans spend billions of dollars every year for the sole purpose of resolving disputes with one another. It’s great for lawyers, but it adds nothing of value to the country’s gross national product. In reality, the enormous amount of money spent on lawsuits actually reduces our overall productivity as a country. And as a result, many American companies are uncompetitive with foreign companies who do not have these litigation expenses, and this of course contributes to the loss of jobs in the United States.

No other country in the world devotes so much of its gross national product to this process of resolving disputes with one another. To make the point, let’s remove from consideration all of the countries that provide very few rights to their citizens and make the comparison only between countries with similarly sophisticated judicial systems – the United States, Canada, England, Australia, Western Europe, and Japan. Of all these countries only the United States has any significant amount of civil lawsuits. Why? Is everyone in all these other countries less happy? Does everyone in other countries think they live in an unjust environment where their complaints go unheard? The next time you have an opportunity to talk with someone from one of these countries ask them if they feel they live in an unjust land with an ineffective legal system. I have asked these questions, and no one I have spoken with can frankly understand the American fixation on lawsuits.

Under the Microscope: Political Campaigns and the News Media

I doubt there are many Americans who think the news media fairly and accurately reports political news. The more important issue,however, is not whether individual stories are reported accurately, but which stories the media chooses to report at all. TV newscasts are drastically limited in time, and newspapers neither have the staff to report, nor the paper to print, every story that may be of interest to the public. Of course, the first amendment protects the media no matter what it does, but with those rights also come important responsibilities that the media are neglecting.

Let me give you an example. The two-party system in the United States largely exists, for better or worse, because the media chooses to give almost no attention to third party candidates. Forget about national politics where third party candidates have absolutely zero chance of success today; let’s focus on state-wide races for governor, congress, senate, and state legislative offices. There have been numerous highly credible, well-credentialed candidates for these offices all across the United States, and virtually none of them are able to get their campaigns off the ground because the news media refuses to follow them and report their ideas to the public. When there is some news report, it typically focuses on the candidate’s low public following in the polls rather than on the ideas the candidate espouses. By reporting only on the major party candidates, even when the stories are fairly written, the media are actually making news more than they are reporting it. They are making news by ensuring that the current parties, which every poll has shown represent only a minority of Americans, maintain control of government indefinitely.

Under the Microscope: Sensationalized Celebrity Crimes

“Do you think the press sensationalizes celebrity court cases in order to sell ads?”

I frequently get asked this question by friends who want to get my take on the latest perceived celebrity indiscretion that has made it into our court system. Of course the answer is, “absolutely.” That’s just the economic reality of the media business—too much media, too little news.

But if we take a closer look, we realize that the press is actually playing a far more important role than this accurate, albeit cynical, response to the question would have us assume. Were it not for the close media attention these cases receive, most celebrities would likely escape their day of judgment entirely. Of course, not all of them are guilty, but virtually none of them would be found guilty were it not for the American press. That is because men and women of wealth and influence are often capable of buying their freedom if no one is watching the process. Consider the justice system in virtually every country where the media are excluded from the courtroom. Without a doubt, corruption trumps justice, and corruption breeds more corruption. The very same thing would happen in the United States if not for the freedom of the press to tell the world what is going on in these cases, moment by nausea-inducing moment.

We all tend to view the court system through a wide-angle lens, but if we examine it under the microscope, we see things from a rather different perspective.

Step eight in how to win a lawsuit: The proper use of interrogatories

Interrogatories are written questions that a party is required to answer under oath. You can ask pretty much anything you want, although many courts restrict the number of interrogatories. The trick here is to remember that, while your opponent is required to sign the answers under oath, it is his lawyer who actually writes out the answers. And lawyers of course are great word smiths who can almost always find evasive ways to answer difficult questions. That’s why I only use interrogatories to gather information that is purely factual: names, addresses, employers, employment history, medical expenses, income reported on tax returns, the identities of all witnesses, the types and identities of all documents that may exist on a given issue, financial information, and the like. I get everything else I need at the deposition of the opposing party where the opponent must answer everything himself and cannot rely on his lawyer to help him respond to difficult questions.

Join me next week as I take a closer look at sensationalized celebrity trials. It will be the first in a new series called Under the Microscope.

Step seven in how to win a lawsuit: Demands for documents

Every United States court permits full discovery, including complete production of all documents that have any potential bearing on the issues before the court. This means that both parties can be required to turn over all documentary evidence (including digital records and e-mails) regardless of whether the evidence supports or harms the other side’s case. The trick is that you have to ask for it in the right way. If you don’t use exactly the right words to describe what you want, you won’t get what you need. The responding lawyer will justify a decision not to produce a record on the basis that it was not properly identified and therefore not properly requested. The converse problem is asking for more than you really need. In this age of digital records and e-mails, a simple request could generate tens of thousands of pages of records and totally inundate you and your lawyer. Lawyers sometimes gladly produce such large volumes of records just to harass the other side or to bury an important document hoping that it might not get found if it is tucked in the middle of thousands of other documents.

Step six in how to win a lawsuit: Depositions

A deposition is when all attorneys require an opposing party or a witness to answer questions under oath in the presence of a court reporter. It is a very formal proceeding, much like testimony in open court, except there is no judge or jury present. Attorneys use this process in order to require witnesses with critical information to commit themselves under oath before trial. This gives both sides an opportunity to plan their responses to the witnesses’ testimony and to avoid surprises at trial. This process is extremely effective in gathering evidence, but it is also very inefficient. In truth, a typical witness with relevant information that could be discovered in a 15-minute phone conversation may be subjected to 4 or 5 hours of intense questioning at a deposition. Because it is so inefficient, it is also extremely expensive. Clients must pay their lawyers to prepare for the deposition; then they must pay them to spend a day at the deposition; then they pay for the court reporter to attend the deposition and type up a lengthy transcript of the proceedings; and then they pay for the lawyers to read and analyze the transcript. It can cost anywhere from $2,000 to $10,000 for a single deposition. Really this is a hugely wasteful endeavor, but it is also an essential one under the rules of discovery in the United States.

Step five in how to win a lawsuit: Controlling your costs

Almost all lawsuits are about money, either winning the best settlement or paying the least settlement. To achieve that goal, the costs you spend litigating the case must be properly controlled – spend too little and you lose the case, spend too much and you still lose because you have not optimized the results you could have obtained. Let me give you some examples. As I mentioned in my last blog, I have defended many cases where a highly skilled and aggressive lawyer for the plaintiff has spent an enormous amount of money building the best possible case he can for his client. Then he comes to me, bragging about all the great evidence he has developed and wants to settle the case. Unfortunately, the lawyer has spent too much, more than his case is worth, so a settlement becomes impossible. Lawyers like these do not understand the meaning of the word “win,” and their clients never win, even if they get a verdict in their favor.

Lawyers representing defendants have their own set of problems. I have actually seen cases where the legal fees spent defending a case far exceed the value of the case itself. I once got a call from a disillusioned client who had received a bill from his lawyer for over $400,000 for defending him successfully on a case where the worst possible result would have required him to pay only $250,000. The lawyer actually sued him for his fee, which is how I got involved. To my astonishment, the lawyer did not even recognize he had done anything wrong. He just kept telling me it was a very complex case with difficult legal issues that required him to expend an enormous amount of time preparing the case properly. Obviously this lawyer does not understand the meaning of the word “win.” The lawyer really thought he had “won” because his client did not have to pay anything to the other side. His client, however, considered the result nothing short of a total disaster.

Step four in how to win a lawsuit: Get the case settled

The biggest mistake most lawyers make is not even trying to get the case settled before they spend a lot of money – your money – preparing the case for trial. Notice that I said “most lawyers,” and I really mean that. Most lawyers in the United States today make this mistake day in and day out, on virtually every case they handle. Lawyers are taught in law school the importance of careful, thorough preparation. They are taught how to use the Rules of Civil Procedure to force the other side to provide every detail about their case, every document that supports their case, every witness who will testify and every piece of evidence they will present in court. So lawyers do everything the rules allow them to do. And that is often very expensive and wasteful.

What I find to be truly amazing is that most lawyers do not even consider discussing settlement until they have spent a lot of money building their case. Nor, for that matter, do the clients themselves. I mostly represent defendants, and in a substantial number of the cases I see, the very first notice my clients receive about a potential claim is when some Deputy Sheriff shows up at their door and serves them with the lawsuit papers. The people bringing these lawsuits, and their lawyers, have never even taken the time to write a letter or call my clients to discuss the nature of their claim.

Why is it that Americans are so intent on running off to their lawyers to resolve all their disputes for them? And why is it that lawyers are so intent on filing a lawsuit and commencing expensive discovery? Isn’t it at least worth a try to get the case settled at the outset? So make your lawyer tells you how he intends to get your case settled and what he can do to get it settled quickly.

I’ve been involved in a lot of cases where it is practically impossible to get the case settled because my opponents have spent too much money building up their cases. If I have a case that is worth $100,000 to my client to get settled, but the other lawyer has already spent $50,000 doing discovery, it is very hard to settle that case.

Step three in how to win a lawsuit: Define what you mean by "win"

This is not a silly question. If you have nothing more than a very vague idea about what you should expect to happen with your case, you have no way to know whether you’ve won or lost, no way to make an intelligent decision about whether to settle and for how much, and no way to know whether it’s worth the gamble of taking your case to a trial in front of a jury. What is your case worth? What is the best way to bring the case to a satisfactory resolution as quickly as possible and with as few legal expenses as possible? It’s your case, not your lawyer’s case, and you need to take control of it, participate in all the important decisions about the case, participate in all decisions about the costs that will be incurred in presenting your case, and participate in all discussions about the strategy and tactics that will be used and why. The last thing to do is to trust that your lawyer will just take care of everything for you.

If you want to see what happens when clients leave everything to their lawyers and do not participate in decisions affecting their cases, try reading my novel, The Litigators, available through my publisher, Scarletta Press, or Amazon (both in paperback and digital copies). Suffice it to say that lawyers have a very different definition of what it means to win a case than clients do. If you ask a lawyer to define a “win” you are likely to hear about some grand courtroom victory. If you ask clients to define what they consider to be a “win” you will almost never hear anything about a courtroom. Lawyers are trained in the art of courtroom battles, all the rules, procedures, tactical maneuvering, and precedents they need to win their cases in court. Lawyers astonishingly have virtually no training in law school about the art of resolving disputes amicably and fairly.

Step two in how to win a lawsuit: Finding the best lawyer

Here are a few examples of what not to do when looking for the best lawyer for your case:

• Advertisements. In my last blog I advised you where not to go to find the best lawyer – advertisements. See that blog for my reasoning.
• Do not even think about hiring any attorney who contacts you. There are many unscrupulous attorneys who follow police blotters and newspaper articles and make blind calls to those victims offering to represent them. This is unethical in most states, and these people are almost always terrible lawyers.
• Internet searches. This is a very poor tool for finding a good lawyer. I tried looking for a good lawyer in Minneapolis where I have practiced law for 42 years and was unable to develop any search terms or phrases that led me to a list of top-flight attorneys in any given specialty. It appears that most of the lawyers listed have bought their way onto various lists either by paying money to do so or by using tag words in their firm’s literature that causes Google to put their names in the top ten. Occasionally I was able to find a list that did contain a few attorneys who are well respected as top-flight lawyers in their respective specialties, but even then the list did not include many names of people who were at least as good or even better. And those lists also included names of attorneys who are mediocre at best. This tool is clearly not reliable in getting you to the websites of the very best attorneys.
• Lawyers’ organizations – NBTA, ATLA ACTL, DRI, and various state and national bar associations. These are potentially good resources because these groups do have lists of excellent lawyers. Unfortunately, most of these sites do not provide directories of lawyers who are members, so these lists are not accessible to people looking for a lawyer.

Now, let’s talk about what you should do. Keep in mind that the best lawyers get their clients from referrals from two primary sources – happy clients and other lawyers. So that’s where you should start your search.

Step one in how to win a lawsuit: Choose a lawyer

The one question I am constantly asked as a lawyer is: How do I win a lawsuit? So that all of you can benefit from this answer (and also with the hope that less people will be asking it!) I am dedicating the next ten blogs to this subject. This first blog offers my perspectives on how to select a lawyer to represent you.

Perhaps the first question is whether to use a lawyer at all, since court records today indicate that a much larger group of people are choosing to represent themselves. There is an old axiom that “lawyers who represent themselves have a fool for a client.” This axiom is based on the notion that a client is too close to his case, too emotional about his case, too involved in his case to appreciate the risks in the case and fairly and responsibly assess and respond to those risks. I might also ask whether you would feel comfortable diagnosing your own medical complaints, deciding which medications were most appropriate or performing surgery on yourself. Probably not if you care much about your personal health. In fact, there is an enormous difference in the quality of lawyers in the United States. So, the question is not whether to get a lawyer but how to find the best lawyer available.

Let’s start by saying what not to do. Do not, I repeat, do not hire a lawyer based on advertising you have seen. There is absolutely no relationship between lawyers who put out enticing television ads and the level of their legal expertise. Indeed, if there is any relationship at all, it is a negative one. Why is it, one might ask, that a lawyer needs to advertise to stay busy? The vast majority of lawyers do not advertise and instead rely on word of mouth from their current and former clients to refer new clients to their attention. If these lawyers advertised as well, they’d have too much to do.

Then does this mean that lawyers who put their pictures on TV, in newspaper ads and magazine ads don’t have enough clients? But why wouldn’t they have enough clients from referrals from all the clients they have represented in the past? Especially lawyers who advertise almost incessantly...why aren’t all the clients they get from previous ads sending new clients to them? There are only two explanations for this – either they do not have enough clients because they are not very good or they just want to get you into their office and then turn your case over to some other lawyer in their office, someone who does not have enough clients on his own. Trust me on this; I have been trying lawsuits for over 42 years, and far and away the best lawyers I go up against have never advertised once in their lives.

How do you get a GOOD book published?

How likely is it that a well-written novel will actually be published? Here are some interesting statistics...John Grisham’s first novel, A Time to Kill, was declined by 15 publishers and 30 agents (I’ll bet they’re all kicking themselves now). Dr. Seuss’s first book was rejected 24 times. Before he wrote Roots, Alex Haley received 200 rejections. The Good Earth by Pearl Buck was rejected 14 times before it was finally accepted and won a Pulitzer Prize. Louis L’Amour received 200 rejections before he sold his first novel; he then went on to sell over 200 million copies of 112 books. If you visit the House of Happy Walls, Jack London’s estate in Sonoma County, you will see some of his 600 rejection letters.

But here’s my favorite – 8 years after his novel Steps won the National Book Award, Jerzy Kozinski permitted a writer to change his name and the title of the book and send it in manuscript form to 13 agents and 14 publishers just to test the plight of new writers. They all rejected it, including Random House, who had published it originally.

So what’s the lesson to be learned by all this? One thing is certain, do not stop writing for fear of rejection. What if that had been the reaction of any of the great authors mentioned in the last paragraph? What I tell everyone who asks me about my own experience in having my novel The Litigators published (and yes, John Grisham used the same title for his latest book - titles are not protected by copyright laws) is that they need to write for themselves, not for others.

What does the digital age mean for the American Legal System?

Has the digital age adversely impacted the quality of justice in the United States? The easy short answer is a resounding “yes.”

The legal process is governed by the Rules of Civil Procedure, adopted about 60 years ago in most states. Before then, the legal system could best be described as “Justice by Ambush,” because neither party was obligated to tell the other party anything about his case, his evidence, or his witnesses. Everyone just showed up in court and presented whatever evidence and witnesses they had, of course trying as hard as possible to create major surprises to which the other side could not quickly react and rebut. To correct this obvious problem, the Rules of Civil Procedure were adopted, basically requiring “full disclosure” of all evidence well in advance of trial so both parties could be properly prepared. That process worked very well for a while, but “full disclosure” 60 years ago meant something far different than it does today.

When I first started practicing law in 1969, there were no computers; indeed there was no photocopying equipment, no post-it notes, no portable dictating equipment, really no electronics of any kind. When we wanted to look at records maintained by other parties, we had to go over to their offices, read the documents while they were there (often in dingy basements shifting through boxes and boxes of junk). We then made handwritten notes about the documents (lawyers could not type in 1969), and put paper clips on documents we wanted the other side to bring to court (and hoped that the clips would not fall off accidentally or intentionally). We completed our document discovery usually in a day or two. It didn’t cost much, took very little time to complete, and was a reasonable approach to equalize the playing field for both sides.

Why clients are told to "keep quiet"

It is practically axiomatic in legal circles these days that lawyers instruct their clients to have no contact with the other side. Is this really good advice? Most lawyers take the position that their clients should not speak with anyone about the subject of the legal dispute to prevent the unwary client from sticking his foot in his mouth. This surely makes sense in a criminal matter where the potential defendant is clearly outgunned by the many years of experience of interrogating police officers and prosecutors. It may also be true where an injured claimant is contacted by a seasoned insurance adjustor who knows how to get information that will harm any future potential claim.

But it is not true for the vast majority of other civil cases that are filed, including divorces and other family matters, probate disputes, business disputes, real estate disputes, medical malpractice and a host of other claims that routinely end up in court without any conversations ever having been held between the two parties with the dispute. And why is it that this process only occurs in the United States? Are Americans that much dumber than the rest of the world where such secrecy is not the standard practice and where the parties actually try to resolve their disputes before they run off to the courthouse?

But it’s not just the lack of pre-lawsuit discussions between the parties that’s a problem; the lawyers themselves rarely discuss an early resolution. Most lawyers will tell you they don’t know enough about their cases in the early stages to advise their clients properly about a fair resolution. They need to spend lots of money doing discovery first. But is that what the clients really want? Would most clients rather have their cases resolved early on before all the money has been spent? Believe it or not, that is just not the mentality of the legal community, and, to put ultimate blame where it ought to be, it is also not the mentality of most Americans who would rather wash their hands of the dispute and turn everything over to the lawyers.

Too easy to file a lawsuit in the United States?

Is it too easy to file lawsuits in the United States? Should good faith settlement discussions or mediation be a prerequisite to the filing of a lawsuit? Lawsuits, like marriages, are easy to get into, but much harder to get out of. It costs practically nothing to start a lawsuit, and any minimally competent trial lawyer could draft all the paperwork in an hour or less. But once the lawsuit is started, it sets in motion a chain of events that, like nuclear fission, is not always easy to stop.

It also forces the defendant to incur the expense of incurring substantial legal expenses that the plaintiff, whose lawyer is on a contingency fee basis, does not incur. Then the discovery process kicks in, which initiates the real costs of litigation as lawyers bombard each other with demands for document production and interrogatories, followed by depositions, hiring of expert witnesses, and trial preparation activities. It’s not easy to stop this process. For one thing, once the attorney for the plaintiff has incurred costs, the only way to recoup them is by a settlement, something the defendant may have no interest in, at least before discovery is completed, when even more costs have been incurred and the case has become even more difficult to settle.

The cost of justice (part 2)

Let me ask again the same question I asked in my last blog – Is the cost of justice in the United States worth the price we pay? Here are some interesting statistics. In 1970, just after I started practicing law in Minnesota, the state’s population was 3,800,000; by 2000 it had grown to 4,900,000, a growth of 29%. During the same period the number of registered lawyers in Minnesota grew by over 400% to a total of 25,100 in 2005, which comes out to about 1 lawyer for every 200 people.

In the year 2000, over 2,000,000 lawsuits were filed in Minnesota, 700,000 alone in Minneapolis. Simply put, the citizens of Minnesota are paying 400% more for legal services today than they were just 30 years ago. Does anyone really believe that the quality of justice has improved by 400% during this time period? I would argue that in many respects, the quality of justice is far inferior today because the cost of justice is far higher. I’ll give you more information about this in a future blog, but let me make it absolutely clear – in my 42 years of trying lawsuits in Minnesota and many other states throughout the United States – the cost in absolute dollars of having a dispute heard in court has totally skyrocketed.

In 1970, a really big case would produce fees around $10,000; today virtually identical cases now routinely produce around $250,000 in fees, and many, many cases cost well over $1 million in legal fees to get resolved. And that’s only the fee on one side. Some cases have 3 or 4 parties each paying that amount in legal fees. I have been involved in many cases where the total fees paid to the attorneys involved far exceeded the amount actually paid to settle the case. How can that kind of expense possibly be justified merely to resolve a single dispute with another person?

My novel, The Litigators takes a real-life look at this issue. Look into it, you may be surprised by what you see really going on inside the legal community.

Join me next week for Is it too easy to file lawsuits in the United States?

The cost of justice (part 1)

Is the cost of justice in the United States worth the price we pay? The United States invests more of its gross national product than any other country in resolving our disputes with one another. In my own personal experience, I handle products liability cases throughout North America, that is, in both the United States and Canada. The same products I represent are sold in both countries in comparable volumes, but there is almost never a lawsuit filed against those products in Canada, whereas I keep extremely busy defending the same products in the United States. Presumably, the same incidents occur in Canada as in the United States, but no one seems to bring a lawsuit there. Does anyone believe the Canadians feel they are receiving less justice than we are in the United States?

My favorite story comes from a dinner conversation with a Chinese law professor when I asked him how a personal injury claim would be handled in China. He did not even understand my question, so I posed a typical hypothetical case to him and asked him first how the medical bills would be paid to the injured worker? He responded that in China there were no medical bills because everyone had free health care (a topic worthy of a future blog). So I asked him about payment of lost wages, to which he pointed out that all employers in China continued a worker’s salary while he was sick or injured so he would never lose any income from an accident. Finally I asked him about “pain and suffering,” to which he replied with a deep smile that betrayed my cultural ignorance, “For pain and suffering we have acupuncture.”

So, are Americans better off than the citizens of every other country in the world because we sue each other every day for wage loss, medical bills, and pain and suffering? I suggest that this question would likely be answered very differently by a group of lawyers than by a group of their clients who have gone through the American legal system.

In my novel, The Litigators, the lawsuit, which is the focus of the book, is entirely typical of lawsuits filed every day in the United States, and the process in which my characters find themselves enmeshed is also highly typical. If you decide to read the book, I suggest you ask yourself this question all over again. You may be surprised at your answer.

Join me next week for More about the cost of justice in America.

Who EXACTLY represents the public's interest in civil litigation?

Civil cases between private parties clearly impact the general public; time is used by judges and court personnel, and decisions made by judges and juries can have a profound impact on the lives and businesses of countless people. I have heard many lawyers promote our tort system by arguing that it is very effective in preventing so-called transgressions by corporate America. Their view is that the threat of a lawsuit is key in preventing negligent behaviors before they occur. Of course, the lawyers have not actually been hired to represent the public’s so called best interests; they are hired only to get the most they can for their one client. In fact, no one represents the public’s interests in civil lawsuits, not even the judge, whose sole job is to referee the dispute before him.

What I find most troubling by the argument that these lawyers are acting in the public’s best interests is that they have not asked the public to define what its best interests are. Instead, they somehow equate the public’s best interests as identical to the amount of money they can get for the one client they actually do represent.

But what gives an individual lawyer the insight to know what is and what is not in the public’s best interest? Is the public’s best interest served by causing doctors and hospitals to run countless unnecessary tests just to avoid medical malpractice claims? Is the public’s best interest served by making the cost of doing business and the cost of buying insurance so high as to force companies out of business or to price their products so high as to make them uncompetitive? Is the public’s best interest served by filling operators’ manuals with dozens of useless warnings that very few people ever read, thereby reducing the importance of the few warnings they actually should read, just to have some warning in print to cover any potential lawsuit the company might face?

Do lawyers ignore their clients' best interests?

Do lawyers’ fee agreements create an inevitable conflict of interest with their own clients? In 42 years of trying lawsuits I have seen just about everything. And some of the things I have seen worry me that lawyers are not doing enough to make sure that their clients’ best interests are protected. Part of the problem is that lawyers see client’s interests differently than the clients see them, a problem that I have addressed in a previous blog.

Another part of the problem is that lawyers’ fee agreements create incentives that do not necessarily benefit the clients’ real best interests. How often do lawyers working on contingency fee agreements for plaintiffs “underwork” their clients’ cases because a quick, even improvident, settlement increases their own earnings? How about lawyers working on hourly fee agreements for defendants, where their temptation is to overwork cases because an early settlement reduces their overall fees? I have seen law firms I characterize as “Litigation Mills” pushing cases through their offices like widgets on an assembly line. Their business success depends on client volume and turnover, not on maximizing any individual client’s recovery – more akin to the Walmart approach than the Nordstrom’s approach. If a case can be settled quickly, even for an amount that is less than what the client really deserves, the lawyer’s “productivity” improves, that is, his actual earnings per hour go up, while the client’s settlement goes down.

I have also seen other law firms who take the opposite approach and pursue a very aggressive strategy of demanding far more than the cases are actually worth and simply “rolling the dice” in hopes of a big verdict. These lawyers’ business success depends upon winning big every once in a while. They try cases that should be settled because of challenging liability problems to go for the big verdict that fattens their wallets and gives them nice publicity in the newspaper. It does not really matter to the lawyer if he loses 75% of his cases as long as he scores really big once in a while. Of course it does matter very much to the client, whose sole chance of success is the one case his lawyer decides to gamble away on a crapshoot.

The book is a pleasure...

With all the recent buzz about THE LITIGATORS (and by that, I mean all the new interest in my book!), I recently had a great review done by Norm Goldman of Bookpleasures.com, and even had an e-interview! Follow the links below to read the full pieces!

"The novel stretches far more than what appears on the surface as it engages its readers in the lives and hearts of its characters...it is a reminder that unfortunately there are far too many lawyers that don't consider the frightful consequences that can result from long and drawn out legal procedures and maneuverings.

What I found most surprising about The Litigators is that it is authored by someone that you would expect would be an unwavering defendant of litigators when you consider that he is an attorney who has tried over 150 cases during a career that has spanned thirty-five years. However, as mentioned in Arthur's bio, he 'was prompted to write The Litigators by his love for the law...' ...And to this I say, Amen!" ...read the review...

Norm: What motivated you to write The Litigators?
Lindsay: I had two goals in mind. First, I have always dreamed of writing "The Great American Novel" and believed my first novel should focus on a subject matter with which I was professionally experienced. The focus of my legal career has always been the defense of products liability lawsuits, and the focus of my avocation has principally involved science and the environment. So that's what The Litigators is... 

Norm: How did you go about creating the characters of Henry Holten, Allison Forbes and Dillon Love?
Lindsay: All my characters are composites of real lawyers with whom I have had cases, but enhanced to capture the idiosyncrasies I wanted to highlight in order to make them come alive as people and illustrate the character flaws I wanted to develop with the story. Like most novels about lawsuits, this one is also about good versus evil, but in The Litigators, there is a major twist to this theme...   

                     ...catch the full answers in the full e-interview...

What does it mean to "win" a lawsuit?

Do lawyers really understand their clients’ needs or do they just push cases through the court system as if a lawsuit was like an athletic contest, with the sole objective to win at any cost? Law schools have historically trained lawyers on how to “win” lawsuits. By “win” they mean triumph in court, as though victory is defined by the team that scores the most points. But athletic contests cannot be resolved by any means short of an all-out battle to the bitter end. That is their purpose, but it is not the purpose of a lawsuit.

It’s really interesting to ask both lawyers and their clients what their definition of a “win” is. I have done this many times, and whenever I pose the question to a lawyer, the response almost always focuses on some grand victory in a courtroom. When I ask my clients this question, the words “victory” and “courtroom” are never mentioned. Most clients talk about a “fair resolution” or “just compensation.” And they almost always talk about what it will cost them to achieve this result. Whether their cost is the lawyer’s one-third of the total recovery or the hourly fees charged by their attorney matters not; they all believe that justice that is expensive is not justice at all.

My novel, The Litigators, focuses on this challenging issue – does the high cost of justice in the American legal system today erode the quality of justice we have a right to expect? Does the winner-take-all approach to litigation produce a just result? When you have finished reading this book, ask yourself this question: who “won” the case? You may be surprised at your own answer.

Join me next week for Do lawyers’ fee agreements motivate them to ignore their clients’ best interests?

The theory of justice

Why is it that when a lawsuit is filed even the people who win often come away with a sense that they actually lost? In the United States we have what lawyers call the "adversary system.” The theory behind this approach to justice is that if both parties fight equally hard to persuade a judge or jury of the virtues of their respective positions, eventually the truth will come out and justice will be done. This theory of course presumes that that battle at hand is not between the local high school football team and the Green Bay Packers, or between Bill Gates and some homeless chap. Unfortunately, any system of justice that is dependent on the equality of financial resources and the equality of the respective lawyers is fundamentally flawed. True, much of the time the battles are between relative equals, but often they are not, and in these latter cases justice is not possible in our adversary system.

Another flaw in the theory favoring an adversarial system is that it presumes that everyone with a dispute actually wants to spend the money needed to support the adversary system. By its very nature, the adversary system is an extremely expensive way of resolving disputes because, to achieve equality of bargaining position, both sides must take every conceivable step to improve their positions. If one side does more than the other, the likelihood that a just result will be realized diminishes drastically. So both sides fight as hard as possible. Not only does this dramatically increase the costs of resolving the underlying disputes, it also dramatically increases the stresses imposed on parties who are forced to spend their energies attacking each other. No wonder even the winners leave court questioning whether justice has been done; after they have been ravaged financially and raked over the coals personally.

This is why I wrote my novel The Litigators – to bring to the forefront the enormous wastefulness of the American system of dispute resolution. If this topic interests you, I suggest you read the novel and then ask this question when you are done: Who won the lawsuit? The answer you give may surprise you.

Join me next week for What does it mean to “win” a lawsuit?

John Grisham: a fine writer

It was a joy to see a new novel by a well-known author with the same title as my own novel. It was a joy to read, and I hope John Grisham gets a chance to read my own book some day. So here's to John, a fine writer:

Grisham has once again done a masterful job of creating a most interesting and highly readable story in The Litigators. Above all Grisham is a great story teller, and he does not disappoint his readers in his latest offering. As usual he has cast a fanciful group of lawyers, though not the powerhouses we often see in Grisham's stories, but instead a pair of ne'er-do-wells who whimsically stumble their way through this wonderfully imaginative legal thriller.

I use the word "thriller" advisedly because the biggest thrill is watching these laughably slick legal shysters scheme their way into a massive legal black hole. In the end, however, this pathetic duo become almost lovable for their Quixotic march towards inevitable disaster in the courtroom at the hands of the typical legal giants who are called upon to defend major products liability cases like this one. I almost hoped that this unlikely pair somehow, in spite of themselves, might find a way to pull off a miracle victory for their equally unappealing clients, if only because such a result is so unexpected.  

You'll have to read the book to find out, but there are a few little twists at the end to keep the reader guessing.  I recommend The Litigators to anyone looking for a good, fun read.