Welcome to the Lawyerist Podcast with Sam Glover and Aaron Strait. Each week, Lawyerist brings you advice and interviews to help you build a more successful law practice in today's challenging and constantly changing legal market. And now here are Sam and Aaron. Hi, I'm Sam Glover. I'm Aaron Strait. And this is the very first episode of the Lawyerist Podcast, a weekly podcast about lawyering and law practice. You can subscribe to the podcast in iTunes, using your favorite podcast app, or you can listen to it at lawyerist.com/podcast. Today's interview with Alan Derschowitz is about his book Letters to a Young Lawyer and his advice for young lawyers, and it is brought to you by Viewable. Viewable is a new way for clients and attorneys to work together. It's cloud-based and it gives attorneys and their clients the tools to communicate better. So they are on the same page throughout the billing process all the way up to the final invoice. And Viewable helps lawyers and clients build better relationships. It's a cool product and I'll talk a little bit more about it later. And after the interview we'll be answering a question from our audience. And today's first question is whether it makes sense for attorneys to offer a 100% satisfaction guarantee to their clients. So Alan Derschowitz wrote Letters to a Young Lawyer nine years ago before the economy went down the toilet and took the legal market with it. So as I was reading it I wondered how Professor Derschowitz might want to update his advice now for young lawyers in 2014. Here is what he had to say. I'm Sam Glover and with me I have Professor Alan Derschowitz. Newsweek has called you the nation's most parapetetic civil liberties lawyer and one of its most distinguished defenders of individual rights. Every time I look you up I see that quote. So either you like it or people like to apply it to you. How would you describe yourself? What's your your short bio that you give when you're forced to give one? Well I'm parapetetic I am all over the place. I'm supposed to retire from Harvard Law School but I'm busy than ever. I'm involved in cases in the Ukraine and Israel and England and you name it and you know actively involved in defending Israel against false charges. I've just written a new book called "Para Tunnels" the case for Israel's just war against Tomas and I'm doing a million things and enjoying it. Living now largely in Florida, in New York rather than Cambridge and finished just finished 50 years of teaching at Harvard Law School where I've had 10,000 students and lots of clients over the years lots of books so I've had a full very full professional and personal life. Yeah you've among all of those things you've written quite a few books and I'd like to take you back 13 years to one called "Letters to a Young Lawyer" that you wrote. Okay and that's one of my favorites. Yeah I really I keep getting letters from young lawyers all over the world. That book's been published in several languages including in several Asian languages and I love getting emails from young law students in China or in Korea saying you know I read this chapter that chapter and it really resonates for me. So the book is about 13 years old let me start with the big question which is of all of the things that may have changed in the last 13 years. How much of it would is there anything in that book that you would just go ahead and change that you just know is different? Well I would add a few chapters on how law has become a business and it's you know when I started practicing 53 years ago it was really a learning profession nobody would ever talk about how much money they made it would be like talking about your sex life and so it just just wasn't done. Today law firms brag about how much money they're making how much charging bill hours and you know the conflict that arise today between lawyers and clients and I see these conflicts arising among my former students I get calls about them all the time is about billing because that's the one area where there's a conflict of interest between the client and the lawyer the lawyer wants to make the most money and the client wants to pay the least money and you know just to move to this issue one of the reasons I've been consulting with this new company co-op view bill is because I believe very strongly that that problem can be solved by real-time 24/7 access to the billing process whereby the client can look at what the lawyer is doing where they're allocating funds and can have input before rather than after instead of complaining you can say hey why are you spending so much time on this why using an associate is better with partner so I think I would add a chapter on how to avoid conflicts overbilling with clients because I've seen in the last 10 years or so that's become a major source of dispute between lawyers and clients. You know I and reading the book I was you spent a lot of time talking about unethical practices by lawyers and one of my one of the quotes that stuck with me is you would look at your class and say statistically more of you will become criminal defense a criminal defendants than criminal defense lawyers. Unfortunately that's been true yeah that's still true isn't it? It is true for two reasons one very few elite law school graduates become criminal defense lawyers. The money isn't as good the lead is and the prestige isn't as good many have become prosecutors but that's a route to become civilly litigators and occasionally in any class you will find one or two or three people who ultimately call in what I offer them I offer them a warranty of five years time and labor and and parts if they get indicted for anything they heard in my class you know they actually made a TV program about this you know how to get away with murder which is a total ripoff right my book reversal of fortune and a and also a proposal that my son and I made to various networks over the years about how I use my students so you do get occasionally students calling and saying I've had this problem and I need you to help me and it's very important that students always keep their eye on the ethical ball. Let right at the beginning of the book you start talking about how difficult it is to find lawyers to take advice from and and I admit I was a little unsatisfied with your advice about how to gauge whether or not a particular lawyer is the sort of lawyer that a young inexperienced lawyer ought to take advice from how how do you tell how do you tell people to figure out whether or not this particular lawyer is worth listening to. Very very very very hard this lawyers with extraordinary reputation sometimes are not all that good and some of the best lawyers just are not very well known around so you have to ask a lot of people before you can pick a mentor or somebody who you can really rely on their advice and that has to be why widespread consensus that this is the kind of person you can rely on. I was very lucky in my life I had you know seven or eight great mentors even though I'm now 76 I still have some I mean I think above Morgan Thou who is the legendary district attorney even New York and who's 95 years old so you know 19 years my senior as somebody to them I can always go for advice and I see many others like that. One of the I think you call I'd call it a yellow flag or maybe a red flag is I think you said to be aware of anyone who tries to advise you to do the same sorts of things that they've done and to look at their work product I remember you saying that there was a lawyer who was using the same provision in a brief that submitted for decades. Right. Or just having it be ignored. Right. Yeah. So I think it's very important that you understand that much advice is autobiographical. Many people you ask for advice will tell you oh this is the way I did it this is the way you want to do it but you're different from the way they are and you have to always adapt the advice to your own passions your own needs your own priorities your own excellence is so it's very rare that you can take advice whole-hot and just as if you're buying a suit off the rack it just doesn't work. I've also always been struck by the fact that when we settle into our practice I was a civil litigator and I I sued debt collectors I defended people sued by debt collectors that gives me a perspective on the law that doesn't translate well to a family lawyer or a criminal defense lawyer. I agree with that. Yeah. I mean I think it's it's hard to take a mentor that doesn't do the same sorts of things that you do. Well my mentor my main mentor for my career was General Telfer Taylor. Nope two people could be any different. He was you know tall handsome wasp guy from upstate New York who admitted General in the army but he had a career that I wanted to emulate. He was professor Columbia and Yale. He was a major litigator particularly Supreme Court human rights and civil rights litigator. He had been the chief prosecutor at Nuremberg and he wrote many books popular books about constitutional rights. So I wanted to be like Telfer Taylor and and and I turned out being like Telfer Taylor. I mean I am related his life in many ways. He was very different than I was and you know personally although we were close friends our personal lives went in very very different directions but professionally I found somebody who was totally different from me, but whose life I could.
could emulate more than any of my other either professors or a full-time professors or litigators or full-time litigators, I didn't want to be full-time anything. I wanted to have a career in which I touched on really all four aspects of being a lawyer and that is being in court, being in the classroom, being a kind of public intellectual in the media on television and in the newspapers and writing serious, serious books. The only thing I didn't do that he did is I never served as a government lawyer and part of me misses that. I was never a prosecutor. I've never been, I've never worked for the government. I've consulted with the government on a number of cases, both state and federal governments and I probably will consult with governments in the future. And I don't think of that as an incompleteness in my life. There's an old Jewish expression with one rear end. You can only dance at two weddings. One rear end, you can't dance at two weddings. I have dance at multiple weddings and my wife is completely convinced that I have several rear ends. So I've tried my best to participate. You know, one of the other things in the book that struck me because it was comforting is that at least 13 years ago you said you still suffer from imposter syndrome, the feeling that you're never sure that you actually know what you're talking about and that you really don't deserve the claim that you've had. You still do? Everybody does that. You know, there's a wonderful quote I have in my new autobiography, it's called "Paking the Stand," in which I quote a colleague of mine sitting around the table at Harvard Law School. This was during my last year of teaching and I mentioned him that Professor Alex Bickle who had been also one of my mentors at Yale had said, "Allen, don't go to Harvard, you'll never fit in there." And the professor sitting across me at 50 years of teaching at Harvard said, "He was right, you never did fit in here." And I don't fit in, I don't easily adapt to accepting other people's values. So I was an outsider for 50 years at Harvard, I was an outsider for three years at Yale. And my status as an outsider is something I like, but it always makes me wonder, "I'm not as smart as people think I am, I'm not as successful as people think I am." And so I'm not a humble person by nature, but I understand my own limitations and I'm prepared to admit them to myself if not publicly. Well, it was actually, that was one of the most comforting things in the book. Okay, if Alan Dershowitz, who's had several long and distinguished careers, has still wonders about this, then I suppose I shouldn't feel too bad about it if I do. No, and I still get nervous when I get up to speak, and I still get nervous when I get up to argue whether it be in the Supreme Court or the Court of Appeals or State Supreme Court or Federal Court. I still have the butterflies, and I always want to have that. I always want to be on edge, and I'm always over prepared for all of my arguments. I mean, I read voraciously before an argument. I read every word in the transcript, every relevant word. I read and reread the briefs and reread the cases, and I think I can say with confidence that in 50 years of arguing, probably had between 250 and 300 arguments, I've never been asked a question that I didn't know the answer to. I never was asked a question that I wasn't prepared. Now, some of the questions are absurd, Justice Scalia in the Supreme Court once asked me a hypothetical, what if a bank robber is running away from the bank robbery, and he throws his gun to the other bank robber and says, "Here, here's a gun. Use it." Is he the triggerman for purposes of the death penalty or not? I mean, who could be prepared for a question like that, but I was able to answer it. And I think you're still not, you're still worried about whether you answered it the right way. Of course, you always worry. I mean, I saved their lives, ultimately, but you always worry about whether you answered it the same way. You know, there are always the three arguments you make in front of a court. The one you think you made, the one you made, and the one you wish you made. And only when you read the hard transcript, do you realize, oh my god, I probably could have answered that question better. One of the reasons I never read my own books, I haven't read letters to a young lawyer since I wrote it, is because I always am upset that I didn't write better, didn't write more. I'm extremely self-critical about my own work. So I get very upset when I read my own books again. This will be a little bit of a change in direction here, but you have an interesting perspective on work-life balance. In the book, you quote the old saying that nobody on their deathbed regrets working too much. You go on to say, well, some people probably should regret not working enough. That's right. How do we find the balance? Well, everybody has to strike it differently. I'm very lucky because I'm extremely efficient and I get things done quickly and quietly, and I have a lot of time for families. So I think I struck in my own life the proper balance. I never missed any of my kids at athletic events. I never miss any of my daughter as a professional actor. I never miss any for plays or readings. I tried very hard to strike the appropriate balance between family and personal life. I go to a lot of theater and a lot of opera when I'm in New York, but I worked very, very hard. When I work, I really, really work. So I think I've hit the right balance. Everybody has to strike it differently. The ones on their deathbeds who have not been successful and might have been successful had their work harder. I think sometimes we regret that. So I don't like that cliche. I don't like very many cliches at all. Yeah. I suppose it's decide what's important to you and make sure that you focus on those things. And the other thing I say in my book is don't do what you're best at. You might be best at something, but it doesn't bring you joy and if you're not passionate about it, don't do it. Obviously, you have to be good at what you do. Otherwise, if I could choose what I wanted to do would be an appoint guard for the Boston Celtics or a short stop for the Red Sox. But I can't do those things. I noticed that didn't work out for you. That didn't work out for me too well. And I love litigation. But as a professor, I couldn't litigate as much as I'd like to, but now that I'm free or I can't. So I want to talk about viewable for a few minutes. And I want to start by sort of easing into it because there is a quote in your book that is out of date and I want to give you a chance to update it. And I think I know where you're going to go. But it is, you said there's hardly a city or town in America where an ordinary citizen could safely pick an honest lawyer out of the yellow pages. Right. Now, the yellow pages are all but irrelevant these days for the purposes of legal marketing, I think. And so has this problem just gotten worse? Is Google even worse than the yellow pages? Oh, I think it's worse. I think it's gotten worse. First, there were more lawyers. Second, there were probably more unscrupulous lawyers. And third, because with advertising, you often tend to pick lawyers who are most visible, who have the signs on the way to the airport or who are on television. So it's very hard for lay people to pick good lawyers. In fact, I had recommended some students and years ago to set up a firm which would just advise corporations, business people, other people how to find the right lawyer, how to match you with the right lawyers. It's a daunting challenge. Do you have an AvO profile? I don't know what it is. Well, in the book, you talked about that concept of sort of, well, this is on the public side is people rating other lawyers, consumer ratings of lawyers. And you thought that might be a way to help sort it out. Yeah. If it's done, honestly, there's too much jealousy in the legal profession now. And people try to always find fault with people who are very successful. But I'm very happy with my peer reviews. And I'm very happy with my client reviews. My clients recommend me, always, to other lawyers, because I'm accessible. And I'm easy to talk to. And I work very, very hard. But it's very, very difficult to find the right lawyer unless you know people you can trust. So I assume getting involved in view of Bill must have been an opportunity to enforce some transparency in the legal profession. Well, that's what I've been looking to do for years and years and years. I wrote it back in 1982 that the law is a secular priesthood in which lawyers hide behind their robes. And you know, the original reason for Wiggs was that the lawyers will still be the same. You shouldn't be able to identify them differently by their facial features. That's why they all were the same Wiggs. But no, visibility and transparency is absolutely important. And that's what we're looking at. clients to be able to look at what they're doing in real time and to create a better sense of trust than any client. You don't have to look at it, but if you have any concerns or worries, it gives you an ability to look at it real time and to correct the situation. So I'm a big fan. You know, when I first reviewed Viewable, I think I came to the same conclusion that it's a great idea law firm should want this, and so it's probably going to fail. And when the guys at Viewable asked me to revisit those comments because it hasn't failed and it has been a bit long. It seems to have been a win-win for law firms and clients, and it sounds like law firms are actually using it internally to track associates hours. And it makes a lot of sense. You know, when I first heard about it, it's one of these ideas that you say, "Oh my God, why didn't I think of this?" It's so obvious, and it's such a win-win for both sides, if you're honest. And it's something I think every client should insist on. And when I've mentioned it to corporations and others, they won't say, "Wow, I didn't know it existed. It's a terrific idea." So, you know, I think it's a phenomenon whose time has not only come, but it's been long overdue. When the primary barrier to adoption is just that people haven't learned of it yet, and then when they do, they want to jump on board. That's a pretty compelling story. I think the more they learn about it, the more they want to do it. I think there's initial skepticism sometimes by some big law firms saying, "Oh, we've been doing it this way for 40 years, and it's work for us. Why do we need anything new?" But then when they see what it really is, it creates a real sense of trust. And law firms want to have trust with their clients, and they don't want the complaints after what they don't want a guy coming in and saying, "Oh, we think you overbilled, reduce the bill by 20 percent. It's much easier to have that negotiation in real time than after. The fact when leverage has changed." I've heard from clients, General Counsel, who are requiring some view bill for their law firms because they want to be able to keep an eye on things are going, and it does seem to enhance their relationships. That's the key. If it improves the quality of the relationship through transparency, then it's so inexpensive, that's something everybody should do. View Bill is in the process of rolling out some firm-facing features to help firms help themselves. This winter, just coming up very soon, they're going to be releasing some new legal project management features designed for firms. It's expanding what it's doing, and the idea is to prove that view bill can be a dedicated to strengthening the attorney-client relationship. If you'd like to give view bill a try for a free demo, you can go to firms.viewabill.com, and we'll make sure that link is in the post. Professor Dershowitz, thank you so much for being with us today. Oh, my pleasure. What a good interview. You asked me all the right questions, and I enjoy doing it. Thank you. Have a great day. You too, be well. Bye. Hey, this is Aaron. At the end of each podcast episode, each week Sam and I are going to answer a question from you, our audience. If you'd like to submit a question for a future episode, you can email us at
[email protected] or hit us up on Twitter with #askloyerist, and we'll try to incorporate good questions into future podcast episodes. Since this is our first episode, and none of you knew to ask us a question, we decided to pull one from a different source. I'm on a list serve here in Minnesota for so-on-small for attorneys and a friend of ours. Aaron Hall just submitted a question to that list a few days ago. He's contemplating offering an unconditional 100% unconditional guarantee to some of his good clients and wanted some feedback on the concept of offering a guarantee. To be clear, this is a satisfaction and price guarantee, not a guarantee of the service he delivers, which of course would be unethical. And so I want to chat a little bit with you, Sam, about kind of your thoughts on offering a guarantee as part of your client service and pricing package and maybe what some of the implications of that could be or question someone considering it should be thinking about. Okay, so number one, Aaron is a business law attorney, right? Yes, yes, which mostly medium, small and medium-sized businesses. Okay, so the reason I point that out is because I think it's really key because so I practice consumer law, right? My clients were mostly people who were in debt. My idea of a fair price wasn't remotely in the same ballpark as what they would have conceived of a fair price for the legal services they were getting. Since for your clients, nothing on this planet could possibly be worth $100 an hour or more. Yeah, or much less $350, which was the right, a judge set my rate at. So the chances of me getting a fair rate, even on a contingent fee matter, I think, were probably slim to none. But when you have somebody who's in the same ballpark and is used to paying for a lawyer, I think it could work. Well, in my understanding, and again, we're just pulling this from a list of just as something to chat about, my understanding, though, is his plan is not to publish this publicly for any potential client, but instead to offer it essentially after the fact to the clients who he has already been working with and wants to retain for decades, not just for the next case. Right. And so they will already know what he charges and what he thinks he's worth at least. Right. Presumably they will have already paid at least one of his invoices in the past. You know, this makes me think a lot about Matt Hommins pay what you like in voice. I know Aaron's not giving a blank invoice, but he's my understanding was his idea is he will let them change the number at the end of the invoice, right? My understanding is his proposal is that when he sends an invoice to someone who he wants to offer this guarantee to that the wording of the guarantee will be if you don't find something on here reasonable, change it and pay that amount. So here's my thing. This is the kind of thing where whether or not it's a good idea, what's the worst that could happen, right? Like, so you try it with a couple of clients, you're like, hey, I'm going to send you this satisfaction guaranteed invoice, change it if you don't think I'm worth it. The worst thing that could happen is that you learn a lot about what your clients think your fees are worth. The best thing that could happen is that you find out that your client's value, your work much more than you do. So I think the downside is actually kind of an upside. If your client fills it in as like, I think you're worth 50 bucks an hour, then you got to be like, oh crap, I got to go back to the drawing board and figure out why my clients don't think I'm worth anything. So to be clear, that isn't just a lesson in language. They would also be stiffing you potentially thousands of dollars for that month's invoice. Yeah, you could lose some real money on this, but you could look at another way that you're paying for a lesson in how you are packaging your services. So I guess I play pretty loose with things like that because I like to try experiments and see what happens. And this is the kind of thing where I would absolutely try this. I'd want to see what happens because I'd be really curious to see where my clients valued my fees. We did a post a while back. I mean, a couple years back by a local attorney, Alex Bajua, who for, I think it was, I don't know if it was several months, I think, decided to let his clients pay what they like. And he's a family lawyer, I believe, and he was pretty astounded to find that many of them valued his services at or near where he did, which I think is a pretty valuable thing to find out. And I think Aaron is going to find out the same thing if he starts offering a satisfaction guarantee. I think he's got much lower risk because he's actually telling them what he thinks his fees are worth. And I think most people are going to just default to, okay, I'll just pay it. So. And in his proposed guarantee language, it actually in a couple of different places says we want to, we're doing this because we want to retain you for decades. The implication of course being that if you do crazy to, we'll let you pay that, but we're probably not going to want to have a decades-long relationship. Right. Yeah, I think so. So, you know, I think it's absolutely worth doing. And it's the kind of thing where if you have a type of client that, A, you've established the value of your services. So they're a good client and they're already on your radar as a good client. They're used to paying you a certain amount. And B, like you, you want to find out what you're worth to them. Yeah, it's totally worth trying. You're going to learn a ton that worst and at best you're going to have a client who's now really happy to pay your fee, which most layers don't have people who are happy to pay their fees. So. Well, and, yeah, I mean, and beyond that, the flip side of it of course is if you don't offer this guarantee and you have a client who doesn't want to pay their bill or wants to argue about a bill, to deal with that way. And most of the solutions to that are negotiating the bill down anyway or just not collecting from unhappy clients. Yeah, you may never even find out.
out actually that they're unhappy. So yeah, I'd try it. All right. Well, there we go. That's our first question. If anyone has a question for a future episode, again, you can email us at
[email protected] or on Twitter, you can use #askloyerist. If you ask a good question, we'll try to answer it in the podcast. So that is our first episode. Sam. To make sure you catch next week's episode of the lawyer's podcast, subscribe to the lawyer's podcast in iTunes or in your favorite podcast app, you can listen to it at lawyers.com/podcast. You can also subscribe to the lawyer's insider hour weekly newsletter. Just go to lawyerist.com and look down the sidebar or click on newsletter up at the top. We'll remind you where to find the podcast whenever we release a new episode. Thanks for listening.
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