Legal Tech, but for lawyers who miss the camaraderie of docket calls

Last week, I had to go to the Davidson County Courthouse to file some garnishment pleadings. With the adoption of e-filing and suspension of in-person court proceedings, filing garnishments is really the only reason I set foot in the building.

Once upon a time–well, about a year ago–I’d spend nearly every Friday morning there, on the fourth floor, checking in on all of the Chancery Court dockets.

Some days, I’d have a case in every courtroom, carefully timing my arrivals so that I could cover all four. On other days, I might just have one case, but I’d linger and roam the halls to see who was there and what cases they had. It was a great way to catch up with other lawyers, talk about our cases, watch interesting hearings, observe how the judges handled issues, and, really, just stay connected to what was going on (i.e. gossip).

But, last week, it was so strange, to be back in that building and it all be so quiet.

Continue reading “Legal Tech, but for lawyers who miss the camaraderie of docket calls”

341 Stories: Lawyer Compensation Week, the modern business obituaries

Welcome to January 21, 2021, the first full day of the Joe Biden administration. It’s also an interesting time for law firms…

Most law firms announce compensation plans this week. The first week of the year is generally spent winding down last year’s financials. The following week is spent distributing bonuses.

This third week, though, may be the most important. It’s when the new year’s salaries are announced. Associates and partners alike sharpen their advocacy skills, to explain away last year’s billables and to demonstrate how this coming year will be the biggest one yet. And, of course, that they deserve a big raise.

If you’re a lawyer in a “discretionary” system (i.e. you advocate to a “compensation committee” for a higher salary), you have limited arguments available. In fact, the presentations generally focus on two metrics: (1) I promise to bill more hours; and/or (2) I am raising my billable rate.

Neither of these are particularly good outcomes for clients.

Unless there was some external factor that limited hours (illness, leave of absence, COVID), where can a lawyer find 100-200 more billable hours in 2021? Is the lawyer simply going to work harder? Maybe. In other cases, the lawyer will just pad their time and that letter that took a “0.3” in 2020 now becomes a “0.5” letter.

And, sure, inflation or more experience can justify an increase in an hourly rate, but is the increase really based on that, or has the lawyer just figured out that a $15 increase multiplied by 1,800 hours equals $27,000 more in profit?

When a rate increase is based only on a new calendar year, it can lead to unjustified results.

Law firm leadership has no incentive to push back on these issues. More hours and higher rates mean more money to them too. In short, the fox is in charge of making sure the barn door is locked.

All I’m saying is, clients, watch your bills next month.

Despite the pandemic and overall concerns about the economy, legal rates are going up. In March, we all talked about how commercial real estate, transactions, and law firm profits were dead. But, locally, that hasn’t been the case.

In general, law firm hourly rates are rising. The pessimist would say that law firms are increasing hourly rates to offset the reduction in actual hours billed. The optimist would say that the commercial economy is as strong as it ever was and that rising rates reflect the market.

Get your insolvency news from McLemore Auctions. I love getting the weekly emails from McLemore Auctions that show all the cool stuff being auctioned, usually via a going-out-business liquidation. In fact, one of the biggest mistakes I made during the pandemic was to show my children the website, which has resulted in a few really strange family purchases.

A few weeks ago, I noted the concept of “funeral by auction” after seeing how frequently the fixtures and assets of many Nashville restaurants end up being sold on the McLemore site. In fact, based on my review of today’s Nashville Post, it seems like the McLemore website may be the earliest public notice that some local businesses have closed.

And, yes, it really stinks to be shopping for deals on gaming chairs, and you see the cafe where you proposed to your wife being sold off, piece by piece.

Remember to shop local. I cringe when I see a local restaurant on the McLemore website. It’s often because I hate to see a small business owner give up, and I feel a little guilty thinking about the last time I spent my money at that local business.

This restaurant closure really hurt. Yesterday, the Nashville Post reported that Woolworths on Fifth was closing. Woolworths was a beautiful restoration of the historic lunch counter where many brave African American students and leaders took a stand to demand equality in our city.

I frequently took guests there for lunches over the years, and I was always proud to share that history. I also worry what’s next and whether the future operators will respect the history of the site.

Law Students: Law School Grades Will Not Define Your Career

Over the long New Years holiday, I found my law school’s “Lawyers of the Future” picture book in a box while cleaning out my basement.

This was a booklet all University of Tennessee College of Law students were given at the start of a school year, with pictures and biographies of all the law students.

My plan had been to throw all of this stuff away, but I just couldn’t. Instead, I strolled down memory lane, looking at all the faces of the people who I’d assumed would be part of my professional life forever, as opposing counsel, judges, and law partners.

Twenty years ago, though, I looked at those faces with less sentimentality. Back then, I looked at those people and their prestigious backgrounds, mainly, as competition. Competition for grades. For law review. Moot Court. Summer Jobs. Clerkships. Associate positions.

Lawyers, do you remember how much you agonized over your first semester 1L law school grades? I mean, it felt like everything in your life depended on Criminal Law, Contracts, Civil Procedure, Legal Writing, and Torts.

Law school grades just absolutely consumed our lives.

Continue reading “Law Students: Law School Grades Will Not Define Your Career”

341 Stories: PPP Money for local firms, Billable Hours, and the Tweet that Shut the Birch Building Down

Some people have told me that 2020 was a strange year to start my own law firm, and I tell them that I wished I’d done it sooner. Or, at the very least, while there was some Paycheck Protection Program money available…

Law Firm Financial Planning during COVID. This Nashville Business Journal story, The 20 Nashville law firms with the largest PPP loans, reported that local law firms received more than $48.8 million in COVID related loans.

I’ll steer clear of the optics of the city’s largest and most prestigious firms getting such large payouts. I mean, c’mon, it’s free-ish money and complicated paperwork. That’s sort of a lawyer’s super bowl, right?

All kidding aside, I am confident that all these law firms also instituted financial austerity measures, hiring freezes, and other cost-saving measures to account for the new economic reality and, further, many plan to return most, if not all, of the funds.

And it isn’t just Nashville firms dealing with all this. These are questions law firms all over the country are getting.

To the critics, I guess I’d remind them that law firms are businesses too, with actual employees and vendors and landlords. The fact that these are “big” law firms doesn’t mean that they don’t need financial assistance any less than a small or solo shop.

But, yes, it’s a very fine line to walk, especially with the @washingtonpost tweeting about how “More Americans are shoplifting food as aid runs out during the pandemic.” Hopefully, these biggest borrowers maxed out the program because they needed the cash to survive, not just because they could get it.

So, what happens next? The American Bar Association reports that cost-cutting measures drastically mitigated the impact of COVID on law firms’ profits. In short, it hasn’t been as bad for some firms or the smart financial decisions made in early 2021 are paying off.

And, per today’s news, Boies Schiller Flexner (the big New York firm that received $10MM in PPP funds) announced it was offering a $20,0000 “welcome” bonus for new associates.

Similarly, in today’s Nashville Post, I’m seeing that one of our local big firms at the top of the PPP list announced a bevy of new lawyer hires. So, maybe things are turning around, and the next story will be about how firms are paying it back.

Continue reading “341 Stories: PPP Money for local firms, Billable Hours, and the Tweet that Shut the Birch Building Down”

Tennessee Courts embrace Google Maps, AG sues Apple, and other technology updates

Some quick hits on this quiet Wednesday before Thanksgiving…

Tennessee Court of Appeals takes judicial notice of Google Maps. Yesterday, the Tennessee Court of Appeals expressly approved a trial court’s taking “judicial notice” of Google Maps to prove distance in trial proceedings.

(Note: Judicial notice is an evidentiary concept that means, basically, when a fact that is so well known and accepted that the court to accept the evidence as true without a full demonstration of proof of the underlying facts.)

The Court wrote: “Google Maps reflects the efforts by Google employees to provide an accurate representation of geography. The company’s business incentive to produce accurate maps is obvious. Furthermore, it is not as though Google Maps is a dubious new novelty. Google Maps has been relied upon by courts across jurisdictions for a number of years now, to say nothing of the general population.” The Total Garage Store, LLC v. Nicholas C. Moody, 2020 WL 6892012, at *11 (Tenn.Ct.App., 2020).

Some people claim that Tennessee Courts are, generally, reluctant to embrace new technology. Reasonable minds can differ, but this shows that courts will embrace technology when it makes obvious common sense.

It also doesn’t hurt that the opinion originated from one of the State’s “younger” and tech-savvy Chancellors…

Now, how are we doing with Zoom hearings?

I remain a little torn on this, and I’ll say that it depends on the Judge. With an active, engaged judge, you get 100% of the same focus, attention, and competency via a telephonic or video hearing. I’ll do a hearing via Zoom with those judges every time.

But, with a judge who is checked out and not paying attention, it’s easier for that judge to coast through, and it’s harder to get their focus and attention when you’re not personally in the same room. More judges than you’d think fall into this category.

Like so many other things in the law, the judge’s demeanor and interest (in the case, in the law, in where the lawyer is from, etc.) are the ultimate wild-card as to whether a client is going to get justice.

Tennessee sues Apple, Inc. over unfair and misleading information about iPhone updates and battery life. Last Friday, the Tennessee Attorney General filed a Complaint against Apple, Inc., alleging a violation of the Tennessee Consumer Protection Act over the iPhone’s “unexpected shutdowns” and “throttling” issues occurring in 2016 and 2017.

From the Complaint, it’s unclear how many Tennessee users are impacted and how much in damages are being sought. The full Complaint can be found here:

You’ll note that the final line of the Complaint contains a reference to “Ethicon’s unlawful trade practices,” which suggests that Attorney Generals are just like the rest of us, when it comes to recycling form pleadings.

Are lawyers more effective working from home?

Lots of parents (especially mothers) have talked about the struggle to effectively practice law from home with kids in the house. In my house, I spend the five minutes before a call or a Zoom hearing telling, bribing, begging my children to be quiet, stay in their room, etc.

But, who knew that the real time-wasters were our law partners?

If this report is to be believed, maybe the “heightened productivity” lawyers enjoy at home results from an unhealthy lack of separation between work and home…

Looking to help this season? Consider donating to the Window of Love.

You may have seen the Tennessean article last week that the State of Tennessee has amassed a historically high amount of surplus money in the Temporary Assistance for Needy Families fund, which is now at $741 million.

This is awesome, right? What perfect timing for this money in an economic crisis?

But, later, the article mentions that the state is just sitting on the money, with no clear plan in sight to use it to help people. In fact, the fund serves a smaller number of households in 2020 than it did in 2019. Some good news is that, maybe next year, the state will decide what to do with all this money.

Until then, though, I want to tell you about somebody who is doing something to help. She’s Samaria Leach, and she created the Window of Love.

It all started with a Facebook post on March 16, when she realized that the Metro school shut-down meant that there’d be no school lunches for the kids in her North Nashville neighborhood. That school lunch might be the only consistent source of food for some kids. So, from her own pantry, she put together food boxes, which she’d distribute out of her window a few days a week.

At first, she fed 25-35 hungry kids from her neighborhood with food from her own pantry.

Now, 8 months later, she’s still feeding hungry kids, but the number has tripled.

As you’re considering donations of time, money, or even food this holiday season, please consider donating to Windows Of Love. Her Facebook page frequently includes requests for grocery items that she needs for that week, including this post for Thanksgiving baskets for the families she serves.

If the state we live in isn’t going to help our kids, maybe we have to be like Samaria and recognize that we have to look out for each other sometimes.

Please Vote For Me in the Nashville Bar Association Board of Directors Election: Here’s Why:

I’m hoping you don’t have election fatigue, because I need your vote in November…

I’ve been nominated to serve on the Board of Directors of the Nashville Bar Association. Tomorrow morning, you’ll be receiving your ballot via email, and you’ll be asked to vote for 6 out of the 14 candidates.

Here’s why you should vote for me:

I care about the Nashville Bar Association. I’ve been a member my entire legal career, and this is a natural extension of my service to the NBA. I’ve written Nashville Bar Journal cover stories. I’ve volunteered at their community events and legal clinics. I’ve taught continuing legal education courses. I host the NBA’s annual karaoke happy hour event (which required me to purchase a professional grade karaoke system, so “Win-Win” for everybody).

I can help the Nashville Bar Association make our legal community better. The reason I donate so much of my time to the NBA is that I care about making Nashville a better place to practice law. Plus, after 21 years of practice, I’ve got pretty strong opinions and a unique perspective, drawn from a robust practice in so many different courts.

I mean, seriously, do any the other nominees recognize the historic significance of this staircase?

There are all kinds of reasons why somebody would want to be on the Board, but I’m doing this to advocate for lawyers. Let’s push for common sense decisions on staircases. Let’s push for comprehensive measures in response to COVID. Let’s push for advances in technology and e-filing. Let’s talk about diversity in the bar and also the bench.

It’s not incorrect to say that the Lawyers’ Association for Women has made me their “highest endorsed candidate.”

I stand up for what I care about. When I left Bone McAllester, one of the IT staff members told me, “David, you are one of the realest people I’ve ever met.” It was the best compliment I’ve received in years. Don’t we all want to be seen as authentic and honest about the way we act and communicate?

If you read this blog, you know I’m not afraid to say what I think, and that’s how I’d approach this board service. To make real change, you have to identify clear goals and use your voice to take a stand. For me, this isn’t about resume-padding or networking, it’s about finding ways to make our legal community an easier and better place to practice.

A few months ago, I started my own boutique law firm (more on that–a lot more–in a later post). With COVID and all the changes in my own practice, I had considered declining the nomination. Was this this best time to take on this task?

In the end, though, I decided that this is a perfect time. With all the uncertainty from COVID, rapid technological advances, and fundamental changes in the way we work, what an awesome time to be part of the local bar’s leadership. Plus, as one of the only nominees at a small/solo firm, who else would speak for me on the Board?

Vote for me.

Also, tell your friends.

The state of the Nashville legal world, 8 months Into COVID

Today marks the 8 month mark of when, basically, people started taking COVID seriously.

On March 10, 2020, I had travelled to Louisville and was staying at the gorgeous and totally empty Omni Hotel, to interview for the open Louisville Bankruptcy Judgeship. That was on a Tuesday, and, on Saturday, my family was scheduled to depart for a spring break Disney Cruise.

(Spoiler-alert: Neither the job nor the cruise happened.)

My view entering the Louisville Omni.

While sitting in the Omni’s gorgeous and empty food hall, I read an article in the local paper about how Washington DC’s first known COVID patient had stayed at the Omni the week before. I realized the magnitude quickly (as well as why I was the only guest at the hotel).

In fact, on the drive back to Nashville, I coordinated my wife buying $400 of frozen pizzas and toilet paper, and I pondered stopping at Gander Mountain in Bowling Green to buy pre-apocalypse weapons and ammo.

(Spoiler-alert: The pizzas and toilet paper did happen, but the Anthony armory remains stocked only with hand-to-hand combat accessories.)

Continue reading “The state of the Nashville legal world, 8 months Into COVID”

Where are all the bankruptcy filings in Nashville?

Many years ago, I got a call from a bank attorney who was in the middle of a 4 day trial in Williamson County. It was a lawsuit by a bank to collect its post-foreclosure deficiency balance. The lawyer called me to tell me that the debtor’s attorney had printed out my very own blog post and had introduced it into evidence as a learned treatise under Tennessee Rule of Evidence 618 in order to cross-exam the bank’s expert witness.

While I was flattered (my initial reaction was to ask if the Chancellor was impressed), it was also strange–given my long allegiance to banks and creditors in litigation–that Creditor Rights 101 would be used against a bank. (Also, that debtor’s counsel must have been desperate if he resorted to using my blog post as his Exhibit 15).

Regardless, man-o-man, beware of using this law blog as learned evidence of anything, because I can be really wrong sometimes.

Like, on April 3, 2020, when I boldly predicted that bankruptcy filings in the Middle District of Tennessee would hit an all-time high in June 2020.

It didn’t happen. Not even close. Literally, the opposite happened.

As of today, October 29, 2020, there have been 4,820 bankruptcy cases filed in the Middle District of Tennessee. That sounds like a lot, but, for comparison’s sake, consider that the 4,820th case was filed on the following dates over the past decade: July 30, 2019; July 20, 2018; July 18, 2017; July 6, 2016; July 15, 2015; June 17, 2014; May 31, 2013; May 23, 2012; May 11, 2011; and May 4, 2010.

Not only are we not hitting a record high, but, instead, new bankruptcies are being filed at a record low pace.

As late as July, we were still wrong about the future of bankruptcy (I say “we” because the Nashville Post joined me on the bad predictions).

So, today’s news brings more predictions (but, this time, far less bold) via this American Bankruptcy Institute story, which predicts that the new bankruptcies are coming…in 2021.

“As stimulus checks and other forms of temporary relief run out, experts are projecting an increase in personal bankruptcy filings, which have so far been muted during the coronavirus pandemic,” the Wall Street Journal reports. “Only a new stimulus program targeting individuals or government actions forgiving or deferring student loans can keep individual filings from rising.”

In light of all this, I’m not making more predictions, because these are unpredictable times. Our General Sessions Court shuts down evictions and collections dockets, then re-opens them, then drastically limits them, and then reopened them again. People are afraid to leave their houses. Banks are afraid to foreclose on those houses. Lawyers are afraid to go to their offices.

The bankruptcies are coming. But who knows when.

Finally, to all you crafty debtor lawyers out there: I can edit any these blog posts on a moment’s notice.

It may be time to start filing Davidson County evictions in Circuit Court.

The new 25 case limit on the civil dockets in Davidson County General Sessions has been the problem we thought it would be.

As of last Thursday, the next available civil hearing date for new and pending cases was December 9, 2020.

Since last Thursday, 357 new cases have been filed in Sessions Court.

Given the usual holiday court schedule, I’d bet that–as of this blog post— there are no more open civil dockets in 2020.

The Nashville Bar Association hosted a General Sessions Court Town Hall today to talk about these issues, but, given the unprecedented nature of this problem, nobody knows what’s next and how to solve it. Will there be afternoon dockets? Staggered morning dockets? Video appearances?

I’ve received a handful of calls from local lawyers, for advice on how to navigate all this. In some cases, the best move is to file the matter and just get a date locked down before things get worse (even if it’s in mid-January).

Another option, though, if you aren’t going to get into Court until January or February, is to file your commercial eviction lawsuits in Circuit Court (which has jurisdiction, per Tenn. Code Ann. § 29-18-108).

If you file an eviction action in Circuit, today, and get it served this week, you may be able to get a judgment by early December (or early January).

And, yes, I know I’ve criticized lawyers for filing Sessions-sized and eviction matters in Circuit Court (a move that generally presents no tangible strategic advantage, other than the lawyers get more billable hours).

But these unprecedented times call for novel ideas.