Not me. And not from the place we went.

Is there a relationship between swimming with dolphins and lawyering? Why, yes there is, and thank you for asking.

Let me start by saying that this is all about business and keeping the customer happy. Since lawyers are in a service business, the same concept holds true for a law firm as a company that allows you to swim with a dolphin: It isn’t enough that the customer/client be satisfied while the service is being provided, but most importantly, when they walk through your door for the last time.

So last week I took the family down to Cabo San Lucas at the tip of Baja for a vacation. And one of the things we did was, as you may have guessed, swim with dolphins and do exactly what this guy is doing here in the photo.

But that photo isn’t one of us, and comes from another place. The place we went was called Dolphin Discovery in nearby Los Cabos. And instead of leaving with a glow on our faces, we left a bit irritated.

And that is because so much of the event was devoted to smiling for their cameras — of course we weren’t allowed to use ours — and then trying to sell us the pictures for a whopping $180 afterwards.  This being the type of activity that lends itself to folks with some disposable income, some bought a picture or two (or perhaps all the shots).

Instead of this customer leaving delighted, I instead left annoyed. This is, of course, not the only business to focus on the immediate sale.

And what was the alternative path? Sell the pics at the cheapest possible price, so that everyone has them and everyone shares them on Facebook and with friends, and everyone, everyone, everyone knows. And in one of the lower corners, print the name of the company.

The result? Instead of paying big fat commissions to touts to get people in the door, more people would likely come in directly as a result of prior customers doing the marketing for them. This is called a win-win, unless you are the tout losing out on the commission.

Now turn us back to law as a business. Nobody can guarantee that a client will walk out happy at the end. But that is still the objective, because that is what service is all about.

There is no shortage of people that rely on marketing and referrals to bring clients to the door. And on the civil side, those referrals sometimes come at the price of a referral fee if the first lawyer has done some work on the matter.

The better course — the one we should all aspire to — is the matter coming in directly because a prior client was satisfied. And this also means that when the client leaves at the end, it should be on the best possible terms.

Some lawyers will argue to get back every nickel they laid out to advance a case — every xeroxed letter, phone call and subway fare. I suggest you don’t go there. Look at the big picture, recoup the major expenses, and make sure the client is satisfied.

Don’t be like that Mexican dolphin place, that had me walk out the door annoyed. The satisfied customer/client is your best asset.

The call comes in a thousand iterations. It often looks something like this, with my quick analysis in parenthesis:

My kid was hurt on the playground. Is there anything I should do? (Parent wants to know they did everything possible for the child.)

Could my spouse’s disease have been treated earlier? (Spouse wants to know they did everything possible.)

Someone said mean things about me on the Internet that are defamatory, can you help me? (Rage, often justifiable.)

That car ran a light and almost injured me. (Almost doesn’t count.)

You know where this is going, right? Lawyers that work on contingency receive all kinds of calls; they may be from the “how much is this worth” crowd, but quite often the motivation is emotional, not financial.

The word every lawyer needs to know is this: No. Say it out loud, say it again, say it often.

Part of the reason is because taking poorly vetted cases will drive the lawyer to bankruptcy. But also important is to save the potential client from themselves. A few minutes explaining the Streisand Effect, for instance, may make perfectly clear to the potential defamation litigant why that cease and desist letter may catastrophically backfire.

When the injured person is a child, saying no isn’t particularly easy. Especially when you have your own and can truly empathize. But the ill-taken case will almost always lead to disappointment, making not only your situation worse, but theirs.

Interestingly, the most common response to the the word no is gratitude. The potential litigant simply didn’t know what was involved or how things worked or called because a friend insisted, or simply needed to know that they did all they could under the circumstances. Most people are appreciative when a clear response comes back.

I’m  asked, every so often, if I could be a juror in a personal injury case.  Defendants would no doubt want to boot me from the jury ASAP assuming I would be overly sympathetic and would have a tough time saying no to an injured litigant. But that would only be because they don’t know how much experience I have at turning people away.

No is the most important word. Use it and use it often.

Usually, when I write about legal outsourcing, I’m writing about outsourcing your marketing, and therefore your ethics.

Not today. Today is about outsourcing your actual legal work, an issue brought home by a recent decision regarding the use of a per diem attorney in court. Note that I don’t mean sending the work overseas for any kind of document reviews, but hiring another lawyer to make a court appearance, this being the real nuts and bolts of much that happens in litigation.

This isn’t about the ethics of using a per diem — generally someone hired to cover a conference or deposition when the attorney has a scheduling conflict — if you want to read about the ethics of it, you can turn to this piece of Lisa Solomon.

No, the problem  here is in the actual execution of the task, for if that contract attorney gives away the farm at a conference, it can’t simply be undone.

This problem came into sharp focus in Staten Island last month, while the legal profession was on vacation, in Kane v. City of New York. In Kane, the plaintiff says he was injured when he was assaulted by New York City police officers and then falsely arrested and imprisoned.

The case proceeded normally with a Preliminary Conference that lays out a discovery schedule and then depositions. At the plaintiff’s deposition, his lawyer blocked questions regarding prior arrests. As a general rule of thumb, only convictions are material, not arrests, which are merely accusations.  Most defense lawyers wouldn’t even bother asking that question about prior arrests. But this was a false arrest case, and the City might conceivably try to get information on how personally familiar the plaintiff is with being arrested. I don’t think that’s a winning argument, but that is what was obviously being claimed as an excuse to get this information.

Then came the problem. The lawyer had a scheduling conflict and hired a per diem to handle the next conference. The attorney of record, knowing the sensitivity of the case, gave directions to the per diem. But the per diem dropped the ball. S/he then gave the case to another lawyer because s/he was too busy with other conferences that day. The specific directions regarding this case got lost in translation. The new order was not good for the plaintiff. As per the decision by Justice Thomas P. Aliotta:

On September 13, 2011, a stipulation regarding discovery was entered into at a court conference (“the Stipulation”). This document provided, in relevant part, that the examination before trial of defendants would be held on November 4, 2011; that plaintiff was to provide information about his entire arrest history (including authorizations for the unsealing of records) and NYSID number within 45 days; that he would further provide HIPAA compliant authorizations for any mental health treatment he may have received; and that defendants’ right to conduct a further examination before trial of plaintiff was reserved.

Oops. Plaintiff’s lawyer tried to valiantly undo this mess. He had done nothing wrong, having assigned the case to someone he trusted, but that someone breached the trust by taking too much work and passing the case to another.

In the attempt to untangle this, plaintiff’s counsel moved to vacate the stipulation, and argued that he hadn’t hired that second per diem and that person had no authority to act for his client. As per the court:

Plaintiff contends that the Stipulation should be vacated because the attorney who entered into it, ostensibly on his behalf, had no authority to do so and, further, agreed to provide certain items of discovery in violation of plaintiff’s rights. Specifically, plaintiff contends that his attorney of record was in a different court on the day that the Stipulation was executed, that the attorney of record had made arrangements with a specific per diem attorney to appear at the conference on his behalf; that this per diem attorney was apparently covering cases in more than one Part of the Richmond County Supreme Court on that date; and that she requested a different attorney to appear on her behalf for the conference in this matter. Plaintiff’s attorney of record claims that while he had authorized the first per diem attorney to appear for his client, he had no knowledge of the attorney who actually appeared, and had not given him the authority to do so.

The Court was not kind to plaintiff, discussing the preferences the courts have to having matters decided by stipulation, and the requirement that only those with authority regarding the case make appearances. The court wrote:

In view of the rigorous demands of present-day practice, this Court clearly cannot afford to take the time to inquire of every attorney appearing before it whether or not he or she possesses the requisite authority to enter into negotiations or binding agreements regarding any of the issues in controversy, and must rely on counsel’s compliance with the published rules of the Court.

Personally, I think the per diem that gave the case away should have fallen on his/her sword and put in an affidavit about doing something s/he wasn’t authorized to do.  But that didn’t happen.

It may turn out that the plaintiff isn’t ultimately harmed by what occurred, for as Justice Aliotta pointed out, that which is discoverable during litigation is not necessarily admissible at trial. But it moves the ball one step closer for the defendant, and now comes down to trial rulings as the jury sits in the box one day. And that is not where the plaintiff wants to be.

Now that the bar exam is done, new grads are either looking for work, or about to start, or looking for tasseled loafers.

And, just like that, this email on the subject came into me yesterday with a relatively simply query:

If you find any time at all, I would love to hear any and all advice you would give to a recent law graduate in my situation with my goals.

My first bit of advice, of course, is to stay away from tasseled loafers. But while I’ve given advice on how to dress in the past, I don’t think that’s why my correspondent corresponded with me.

Since the type of situation/goals that the writer described in his email is my field of law I could probably write a few thousand words. Which most of you won’t read and which wouldn’t appeal at all to the non-PI lawyer readers.

So I’ll give the broader answer, for all recent grads, assuming that they have actually found a position in a significantly difficult job environment for lawyers.

And here is the nutshell version: Find a good mentor.

I write from experience. When I had my first job — after taking the bar in the summer of 1985, and finding out my results had been lost — I went to work for Fuchsberg & Fuchsberg, a large personal injury firm. Large, in a field known for solo and small practices, means about 30 lawyers or so.

I was told, when I started to work, that my secretary made more than I did. She was, after all, a hell of a lot more valuable to the firm than a know-nothing first year associate who had yet to be sworn in.

And my first supervising attorney had this to say when I started:

“For the first year, there are no stupid questions.”

And that statement was, I think, one of the best things that ever happened to me in my training. I was told, quite bluntly, to ask and re-ask and learn. Telling me that there was no such thing as a stupid question inoculated me, psychologically, from the fear of asking what I thought were really stupid questions, the answers to which everyone must know. Even if they just pretended to know.

Sure, you can read a book and get tips on taking depositions. You can take a class on trial tactics. There are form books to work from in drafting complaints and bills of particulars.

But the practice of law is a million other little things to go with it. Trying to figure out  which clerks to go to to present an order to show cause, for instance, and in which order to see them, is a different kettle of fish. (Clerk one approves paper, clerk two takes money, back to clerk one to file papers, return at another time to get order, bring copy to conform your copy to original, etc. Of course, if there is no existing proceeding, you may need a completely different process. Etc., again.)

Learning how the machinery of the courthouse works, and the constant changes amid jurisdictions and how they interrelate (or not) to the actual substance of what you are lawyering about, is a never-ending process. At many firms, lawyers never learn this stuff as it is relegated to clerks, which is to say, they don’t always know how things are getting done, which is usually important if the statutory clock is ticking on a matter.

There will be a gazillion questions to ask, and the focus of the young lawyer should be to find the mentor who is open to hearing all manner of questions, foolish or not, and lets you ask those question without looking down at you.

In fact, for those who are in a supervisory position, it’s the best thing you can do for the newbie lawyer; keeping the door open to all manner of questions, no matter how trite they may seem. If there is a fear of asking questions — because the young lawyer is afraid of looking ignorant — then the mentoring process has completely failed. Big time.

This doesn’t mean, of course, that the supervisor has to give THE answer, but at least direct the young lawyer as to how to find the answer. Directing someone toward a small book on differing municipal statutes of limitations and where service can be made, or to an authoritative text on obstetrics and gynecology, can open whole new doors of learning. That which is routine for the old-timer can be bewildering for the newcomer.

And that is the best advice I can give to the new grad. And the supervising attorney. Get a good mentor. Or be a good mentor. And forget the tassels.