Recent Texas Case Illustrates Need for Increased Caution in Wire Transactions
The recent Texas Benchellal case applies “imposter rule” finding that the person in best position to prevent a fraudulent transaction by simply exercising reasonable care should bear the loss.
Texas Benchellal Case Applies Imposter Rule in Wire Fraud Case
A recent Texas case, Benchellal v. The Okonite Co., Inc., No. 4:22-CV-04435 (S.D. Tex. Mar. 11, 2024), illustrates the need for parties sending monies to be especially careful in confirming payment instructions.
Benchellal Case Questions: Who is in Best Position to Prevent the Fraud?
In Benchellal, a fraudster provided alternate wiring instructions for a fund transaction via email. Notwithstanding the fact that the intended recipient had informed the sender that they always use Bank of America, the sender nonetheless sent money to a fraudulent Citibank account based on the fraudulent e-mail. The Court found that the sender had no recourse against the recipient, stating that:
“The undisputed evidence in this case demonstrates that Benchellal [sender] received conflicting wire instructions and instead of calling to confirm the correct instructions, asked for confirmation from a fraudulent email address and then wired the funds to a fraudulent account. Plaintiffs have presented no evidence demonstrating that Okonite [recipient] was in the better position to prevent Benchellal [sender] from falling victim to the scam.”
All of this could have been avoided had the sender merely picked up the phone and confirmed the bank instructions (a form of multi-factor authentication “MFA”).
Court in Benchellal Case Applies Imposter Rule
The court found persuasive a Florida case, Arrow Truck Sales, Inc. v. Top Quality Truck & Equip., Inc., No. 8:14-CV-2052-T-30TGW, 2015 WL 4936272 (M.D. Fla. Aug. 18, 2015) where the court used the “imposter rule” to find that the person who was in the best position to stop the fraud had an obligation to do so. Under the “imposter rule,” the party who was in the best position to prevent the forgery by exercising reasonable care suffers the loss. See, e.g. UCC § 3-404(d); State Sec. Check Cashing, Inc. v. Am. Gen. Fin. Servs., 972 A.2d 882 (Md. App. 2009).
Key Takeaways from the Benchellal Case
When handling money transfers via wire transactions, the sender should exercise reasonable care to:
identify requests that have altered instructions; and
take cautionary steps to ensure the request is legitimate by validating the information through independent means.
Read about our cyber security services.
Klemchuk PLLC is a leading intellectual property law firm focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. We help clients protect innovation and increase market share through investments in IP.
This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2024 Klemchuk PLLC
Intellectual Property Infringement Matters and Disputes
Darin M. Klemchuk is the founder of Klemchuk PLLC, a leading intellectual property law firm focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. He was recently interviewed for Lawyer Monthly magazine on the topic of IP litigation, infringement matters, and disputes.
IP Infringement Matters and Disputes
Darin M. Klemchuk is the founder of Klemchuk PLLC, a leading intellectual property law firm focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. He was recently interviewed for Lawyer Monthly magazine on the topic of IP litigation, infringement matters, and disputes.
1. Can you tell us what intellectual property (IP) litigation covers, what type of intellectual property infringement matters and disputes you handle, where your clients are from and what sectors they operate in?
The “big five” of intellectual property law are patents, trademarks, copyright, trade secrets, and domain name registrations. IP law also covers rights of publicity, trade dress, telephone numbers, and other rights. Our firm provides full service intellectual property counseling. I personally lead the IP litigation and anti-counterfeiting teams and provide strategic advice for patent, trademark, and other forms of IP protection.
Our typical client is a mid-market company with a general counsel that needs IP assistance. We also represent large companies and small growing companies with disruptive technologies or business models. Our client base spans all sectors with a concentration on software, consumer products, retail, luxury brands, family offices/private equity, restaurant, and technology.
2. What are the common hurdles artists and creators face when protecting their IP?
Often artists, creators, and start-up founders face the challenges of needing to invest in intellectual property law assets at an early stage before they have resources. This can result in the loss of rights.
3. Does IP infringement always give rise to criminal liability?
No. Criminal liability generally arises when law enforcement becomes interested in an infringement operation. This most likely occurs in importation and trafficking of counterfeit goods, particularly products and services that could affect public safety or health. Law enforcement’s seizure of counterfeit goods can pose challenges for civil litigation (e.g., the evidence is in possession of law enforcement).
4. What are the key differences in federal vs state courts intellectual property litigation?
Patents and copyrights are exclusively federal rights, so those cases can only be filed in federal court. There is concurrent jurisdiction between the federal Lanham Act and state trademark and unfair competition laws allowing cases to be filed in state or federal court. Trade secrets are protected by both the federal Defend Trade Secrets Act and state law. Other forms of IP such as misappropriation and rights of publicity are creatures of state law. And certain issues like contract law surrounding a patent or copyright assignment can still be determined by state law.
So the answer to the question is that depends on the form of IP as well as the state. For example, in Texas, the test for likelihood of confusion in a trademark infringement case is the same under state law as under the Lanham Act. But under Texas law, a plaintiff can recover exemplary damages, which are not available under the Lanham Act. So many plaintiffs will file trademark infringement cases in federal court pleading the Lanham Act and state law equivalent claims to take advantage of punitive damages. The Lanham Act allows for treble damages in exceptional cases as well as recovery of attorney’s fees, which are generally not available in Texas.
Another consideration is the procedural aspects of the forum. Federal courts tend to move slower and rely on the written pleadings. In Texas state court, decisions are typically made at a hearing. If you are going to seek a temporary restraining order or ex parterelief, a state court may provide a quicker chance for that relief.
5. What remedies are available to redress IP infringement?
Generally, plaintiffs seek some form of monetary relief as well as injunctive relief. Monetary relief can come in the form of actual damages, the infringer’s profits, reasonable royalty, statutory damages, treble damages, and exemplary damages. Awards of attorney’s fees and costs are also routinely seen. Plaintiffs will also seek injunctive relief to prohibit further irreparable harm. In IP law cases, equitable relief can take many forms such as corrective advertising, collection and destruction of infringing articles, and an accounting of sales and profits.
Each type of IP tends to gravitate toward certain types of remedies. In patent cases, the patent owner usually chooses a reasonable royalty over lost profits as the monetary relief. It likely will argue willful infringement and an exceptional case entitling it to up to three times damages plus an award of attorney’s fees and costs. A request for a permanent injunction is usually included.
For certain kinds of competitor trademark infringement cases, the whole matter can be determined at the preliminary injunction stage where if the plaintiff obtains the injunction, the case is likely over. If the plaintiff loses the injunction hearing, the case may also be over.
Anti-counterfeiting or enforcement cases involving trademarks and copyrights often involve statutory damages where the plaintiff is not required to prove actual harm to recover damages. Where there is willful infringement or counterfeiting, the statutory damages can be substantial such as $250,000 per work in copyright cases.
6. Recently, Samsung Electronics Co. Ltd failed to win an early exit from an upcoming patent infringement trial over virtual assistant-enabled smartphones and earphones that respond to spoken commands, according to a Texas federal court order. What’s the future of intellectual property in the era of AI?
When it comes to AI, I think it is very difficult to predict. We already have some early rulings that AI cannot be considered an “author” for a copyright or an “inventor” of a patent. The vast potential for AI will create many challenges and, as we have seen with the Internet and other forms of emergent technology, the law tends to lag significantly.
7. For IP owners, protecting intellectual property is essential. What does an effective IP strategy consist of?
An effective IP strategy is similar to building a castle in the Middle Ages where different forms of IP are deployed to keep competitors out of the castle (moat, drawbridge, castle wall, tower, etc.). As an exclusionary right, IP is an extremely effective tool to grab and maintain market share by staking out exclusivity. For example, a start-up business entering the market with a valuable solution to a difficult problem will likely be wiped out by better funded competitors unless it can obtain the protective power of IP. The same start-up that has obtained patent protection on the key features to its solution will have a 20-year, limited monopoly on those features. This provides it with options – maintain a monopoly on that feature in the market, license its patent to others to generate revenue, sell the patent, or place the patent on its balance sheet to increase its value later when its acquired. In my article, Importance of Intellectual Property Rights: Increasing Market Share Through Stopping Knockoffs and Infringements, I provide a step-by-step strategy for deploying IP rights.
For more information about IP infringement, see our IP Litigation services page and Industry Focused Legal Solutions pages.
Accelerate Attorney Leadership Program - June 2021
This month we will be discussing how understanding personality models can lead to more effective business development as well as mutually beneficial collaborations. We will also introduce overcoming adversity to increase productivity and leadership capacity.
Our next installment of the Accelerate Attorney Leadership Program will be Wednesday, June 16th, at 5:00 pm Central time. In this session, we will cover:
Increasing business development through personality modeling (45 minutes) — Introduction to basic personality modeling, including the three dominant communication/decision-making styles. How to rapidly increase business development success using this model. Understanding your own behavioral profile and how it works with other common patterns and struggles with other patterns.
Effective leadership and collaboration through personality modeling (15 minutes) — Understanding and appreciating the differences between dominant behavioral patterns. Strategic staffing around the differences to leverage up a team. Rethinking communication strategies for greater team engagement. Awareness of the “shadow” aspects of each behavioral pattern.
Introduction to “Resistance” and how to overcome it for greater productivity (30 minutes) — Ever wondered why some tasks seem so hard? Why do we avoid certain tasks and embrace others? Why is the day before vacation different? How do we get amazing focus on a sick day? This session will address the nature of “resistance” and provide practical tools to win the fight: “5 minute” rule, planned “freedom” sessions, WIRM, and “sitting with it” strategies for increased performance.
Interested in attending? Send an email to rsvp@klemchuk.com to get access to the Zoom link for attendance.
Please sign up for the email list below, to hear more about the program and be included in future sessions.
2021 Class Schedule (Wednesdays at 5:00 pm)
7/14 at 5:00 pm
8/18 at 5:00 pm
9/8 at 5:00 pm
10/13 at 5:00 pm
11/10 at 5:00 pm
12/8 at 5:00 pm
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
May 2021 -- Attorney Leadership Seminar
This month we are discussing the basics of leadership, power through morning routines, and how to develop an effective sales pipeline
Our next installment of the Attorney Leadership Seminar will be Wednesday, May 12th, at 5:00 pm Central time. In this session, we will cover:
Basics of Leadership (15 minutes) — Examples of leadership in action as well as being a great team member.
Power of Morning Routines (15 minutes) — Why spending 5 minutes each morning can create a production snowball to fuel not only big goals, but also a career.
Building a Sales Pipeline (60 minutes) — The mechanics of setting up a sales system to 10x your business development results.
Interested in attending? Send an email to rsvp@klemchuk.com to get access to the Zoom link for attendance.
Please sign up for the email list below, to hear more about the program and be included in future sessions.
2021 Class Schedule (Wednesdays at 5:00 pm)
5/12 at 5:00 pm
6/16 at 5:00 pm
7/14 at 5:00 pm
8/18 at 5:00 pm
9/8 at 5:00 pm
10/13 at 5:00 pm
11/10 at 5:00 pm
12/8 at 5:00 pm
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Attorney Leadership Class Launching on April 14, 2021
Beginning on April 14, 2021, I will facilitate a leadership class for attorneys that will focus on business development, leadership, and self-mastery. Unlike other leadership development classes put on by members of the Bar, this class will provide practical, hands-on leadership training and business development measurables using peer-to-peer accountability:
Meeting Format — We will meet once per month for 1.5 hours. Meetings will be a blend of content and instruction, coupled with peer accountability and development exercises. Each member of the group will be assigned an accountability partner to assist with performance; accountability partners will be assigned to small teams for accountability between monthly meetings.
Homework — In between meetings, we will have homework projects and group accountability to stay focused on our goals.
Quarterly Goals — Our primary focus will be achieving quarterly goals that significantly move the needle for each of the members. Each member will select a quarterly goal for self-mastery, leadership, and entrepreneurship, to be related to growing their law business.
Quarterly Crucibles — In addition to monthly meetings, we will offer a “crucible” each quarter to cap off quarterly goal performance and accelerate the personal/professional development process.
Business Development Focus — While we will work on self-mastery, leadership skills, and entrepreneurship/intropreneurship in each meeting, a significant focus will be placed on developing business.
Investment — Positive attitude and willingness to do the work. This program is complimentary.
Interested in attending? Send an email to rsvp@klemchuk.com
Please sign up for the email list below, to hear more about the program.
2021 Class Schedule (Wednesdays at 5:00 pm)
4/14 at 5:00 pm
5/12 at 5:00 pm
6/2 at 5:00 pm
7/14 at 5:00 pm
8/18 at 5:00 pm
9/8 at 5:00 pm
10/13 at 5:00 pm
11/10 at 5:00 pm
12/8 at 5:00 pm
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Financially Free 2: What is Financial Freedom?
In the 2nd post of the Financially Free blog series, I examine what is financial freedom and the type of choices that lead to financial freedom or financial dependence.
What is Financial Freedom?
If this is your first post in the series, start here for the background. A simple definition of financial freedom or sometimes referred to as ”being financially independent” is when a person’s passive income exceeds his/her expenses. This frees the person from working a job to generate income needed to fund his/her lifestyle. Income from work is referred to as “active income.” Income from investments that do not require effort is referred to as “passive income.”
I think this definition is missing an essential element though. And this is truly the starting point of any discussion about money, wealth, freedom, and contentment. I propose the following is a better definition of financial freedom:
When passive income is sufficient to fund a person’s purpose without the need for undesired work.
To determine whether you are “financially free,” requires the hard work of determining your purpose in life. This shouldn’t be taken lightly. For example, there are numerous blogs devoted to people living ultra frugal lifestyles to maximize their “free” time as soon as possible in their life. These tend to follow an extreme savings path followed by “retiring” early, but limiting your expenses to an absolutely Spartan lifestyle. For some, this is achieved by traveling to foreign countries to keep expenses low. The extreme frugal lifestyle doesn’t align with my purpose or my current life situation so it is not an option I choose.
Choosing to be Financially Free
Once you are crystal clear on your purpose, the work begins on designing a lifestyle that maximizes your impact on the purpose. For example, if helping others is an important aspect to your purpose, you could choose a career/job that both generates active income to support your lifestyle and serves your purpose such as volunteering on weekends or a career in healthcare. Another option is to build sufficient passive income to buy you free time you can devote to helping others.
Whatever your choice, this blog series is aimed at equipping you with high level strategies to reach this goal.
Our next post in the series will discuss one of the most important aspects of financial freedom — opportunity cost.
Important Caveats
I am not a CPA, tax lawyer, registered investment advisor, or any other type of financial professional. The thoughts in these posts are mine and are shared solely for discussion purposes. Do not rely on these thoughts for any kind of advice. See a financial professional before making any decisions.
I hope these thoughts have been helpful — or at least challenged your views on the concepts of money, wealth, freedom, and contentment.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Financially Free 1: Overview
In the Financially Free blog series, I examine the nature of financial independence and provide specific steps to achieve financial freedom as well as a high level money management system and the tools we use. This initial post provides an overview of being financially free.
Choosing to be Financially Free
Welcome to the initial post in the Financially Free blog series. My primary goal in this series is to share several big picture lessons I have learned from a couple decades of investing. The motivation behind these posts is chiefly to make sense of hundreds of books, blogs, and other materials that largely contradict each other, are riddled with errors and bad advice, and often are biased by a sales motivation of the author. I share my favorite materials in the posts that follow.
Another goal in this series is to provide readers with a high level, philosophic approach to achieving financial freedom, if they so choose, without miring readers in confusing math. I also propose a system that is as simple as I could create, while complex enough to handle most situations.
Please note that this series is written for readers with at least average investing experience, who are cash-flow positive in their lifestyle, and are interested more in the big picture rather than specific tactical suggestions. For example, this series does not recommend an “extreme frugal” lifestyle as a strategy of obtaining wealth. There are several books and blogs already devoted to that subject. I say enjoy your lattes — as long as you have considered the opportunity cost.
Steps to being Financially Free
Financially Free 1: Overview
Financially Free 2: What is Financial Freedom?
Financially Free 3: Opportunity Cost — The Number One Driver of Wealth
Financially Free 4: Passive Income Defined
Financially Free 5: Start with the End in Mind — Lifestyle Spending
Financially Free 6: Maximizing Lifestyle Spending
Financially Free 7: Savings Goals
Financially Free 8: Where Freedom Starts — The Wealth Account
Financially Free 9: Safety Net
Financially Free 10: Family Bank
Financially Free 11: Debt
Financially Free 12: Growth Investments
Financially Free 13: Active Income
Financially Free 14: Cash Flow Investments
Financially Free 16: Using Leverage to Accelerate Returns
Financially Free 17: 4% Rule — Wealth Distribution Phase
Financially Free 17: Sequence of Return Risks and the Cash Cushion
Financially Free 18: Putting it All Together
Financially Free 19: Why Deposit Paychecks in the Wealth Account?
Financially Free 20: The “Side Hustle”
Financially Free 21: You are Your Number One Asset
Financially Free 22: Your Business is Your Number One Investment
Financially Free 23: Active Income Freedom
Financially Free 24: What Happens When the Economy Crashes Again?
Financially Free 25: Sacrifice is the Key to Wealth
Financially Free 26: Freedom or Contentment?
Financially Free 27: Living the Good Life
Important Caveats
I am not a CPA, tax lawyer, registered investment advisor, or any other type of financial professional. The thoughts in these posts are mine and are shared solely for discussion purposes. Do not rely on these thoughts for any kind of advice. See a financial professional before making any decisions.
I hope these thoughts have been helpful — or at least challenged your views on the concepts of money, wealth, freedom, and contentment.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Top Power Habits - Small Changes that Lead to Big Results
The compounding effect of small habits built over time leads to exponential performance gains. Read for a discussion of top power habits and tips for putting them into action.
Compounding Effect of Habits
If you think of a habit as a system of getting something done (or avoiding doing something negative), habits provide a powerful way to automate productivity with little impact on your energy or willpower once the habit is ingrained. These advantages alone justify intentional habit setting.
Another powerful advantage is that small habits practiced consistently over time lead to huge results later. For example, if you placed $1,000 in an investment that returns 10% per year and let it compound with no further investment, it would total over $45,000 in 40 years. That’s a 45x return by setting that system in place. Similar returns can be achieved in the individual productivity area by adopting and maintaining powerful habits.
Top Power Habits
Here’s a list of my top power habits as well as links to individual posts devoted to discussing each one in detail. This list will be updated to include new habits.
Morning Routine — In the morning routine, we set aside time to do high leverage activities that lead to big gains over time. Consistent with the “First Things First” philosophy of Steven R. Covey’s 7 Habits of Highly Effective People, we get these important activities done first thing in the day to set ourselves up to succeed and before distractions intervene. Read more in my post Power Habits - Morning Routine.
Evening Routine — While the morning routine starts the day to set a positive course, the evening routine closes out the day, uncovers valuable lessons learned, and sets us up for success tomorrow. Evening routine activities include journaling, setting our Daily Action Plan for the next day, releasing frustrations, and preparing for sleep. Read more in my post Power Habits - Evening Routine.
Daily Action Plan —The Daily Action Plan is all about executing on the three most important tasks of the day. By committing in writing to these high values tasks the day before, you empower yourself to maintain focus and energy on what most drives your success. By sharing your Daily Three with your team, you build accountability and achieve higher productivity. Read more in my post Power Habits - Daily Action Plan.
Tips of Building Power Habits and Keeping Them Going
Here’s a list of lessons learned of forming and maintaining habits:
Focus on one habit at a time. While studies range, habit formation appears to take 21 days to 3 months. In my experience, the harder the habit the longer the formation stage, so I strongly recommend that only one habit at a time is implemented. I also pick a calendar quarter for the formation time. Trying to do more than one can be counterproductive.
Make a new habit easy, attractive, and simple. This seems obvious but worth considering when you plan to incorporate a new habit.
Peer accountability is a powerful tool. Committing to new habits in writing and sharing progress with a peer group or accountability partner exponentially increases your chances of success. At the office, I pick one habit per quarter for my team to adopt. This keeps us aligned and accountable.
Most Important Habit Rule - Once a habit is formed, never miss it more than twice in a row. Everyone misses now and then. Missing a third time risks failure.
Further Reading on Habits
The Compound Effect by Darren Hardy
The Power of Habit: Why We Do What We Do In Life and Business by Charles Duhigg
Atomic Habits: An Easy & Proven Way to Build Good Habits & Break Bad Ones by James Clear
Unbeatable Mind and Way of The Seal by Mark Divine.
The One Thing: The Surprisingly Simple Truth Behind Extraordinary Results by Gary Keller and Jay Papasan.
Warrior Book - “Balance” element of the “Core Four.”
I hope you have found this blog post helpful and welcome comments from readers.
Read on LinkedIn.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Power Habits - Daily Action Plan
Want one thing to achieve success and be a high performer? Use the power habit of the Daily Action Plan — commit to and do daily your three most important tasks. Sounds simple. Surprisingly difficult.
This is the third in my series of “power habits” - routines when practiced consistently over time provide a strong compounding effect. The Daily Action Plan is a simple one — each day you will determine the three most important things you can do, commit them to writing, then do them. Sound simple? While powerful, actually crossing these three tasks off your list is extremely difficult for successful people.
Power Habits - Daily Action Plan
Here are my best lessons learned on implementing this system over the years.
1. Selecting Three Most Important Tasks
When people start out on this habit, they often pick easy tasks, sometimes even process tasks like “entering time” or “getting organized.” The real value in this habit lies in picking your highest value tasks to the exclusion of all the lower value activities. To pick high value tasks, you need to be crystal clear on what your priority is for a particular role. For example, if you are a lawyer that leads a team of other lawyers and service professionals, your role should be developing a high performing team that creates results. This means your priority should be working through others (the team) to get the results. The daily three then should be focused on team-centric tasks such as project management, providing strategy input and review of work, recruiting and developing professionals, customer relationship management, etc. If your Daily Action Plan is consistently focused on individual performance as opposed to team performance, you have a conflict between your role and your daily performance.
When selecting the three tasks, I recommend picking one that is a “must do” and your two next most important tasks. Your goal is to get the “must do” one done no matter what. Focusing your “must do” tasks on building habits and systems that compound over time is one of the best ways to produce more and be successful.
2. Time Blocking — Making Space for High Value Work
Despite what any of this think, the world is at best indifferent to each of us. That means we each face a constant stream of interruptions, other people’s crises, and new potential opportunities. I have found that if you are not proactive about the time devoted to your daily three tasks, it is very difficult — particularly for successful people — to get them done on a consistent basis. A great tool for production is called time blocking, where you devote a set amount of time to your daily three. This is an interruption free zone and best if you can devote at least two hours to your most important work. Successful time blocking may require putting the time block on your calendar, empowering your admin to protect you from distractions, turning off email and text messages, and may require physical isolation from others.
3. Accountability Tools for Daily Action Plan
We have used the app called CommitTo3 with success for this habit. It allows you to set up a team of participants, each person is allowed only three tasks, and the app shows you when people add tasks and complete tasks. This has the obvious advantages of transparency and allows teammates to see what others are working. But one of the best advantages is the app allows for productive discussions about whether teammates are doing tasks consistent with their role as perceived by other team members. This has lead to some great conversations about workload, priority, and roles.
4. Writing the Tasks for Success
A word of caution on this exercise. It is important to draft your tasks in language that you can control. Otherwise, your success will be dependent on the actions of others or circumstances outside your control. This will position you to lose too often. For example, if one of your daily three is lunch with a client and you draft the task as “meet Jane for lunch to discuss new project,” you could be setting yourself up to fail if Jane cancels on you. Best to draft it in more positive language like “ready for lunch with Jane to discuss new project.” You can control your preparation and therefore score a win even if there is a cancelation.
Final Thoughts on Daily Action Plans as a Power Habit
This power habit is maddening hard. But it is one of the most effective tools to high achievement. To maximize this tool, you will likely need to pair it with the time blocking power habit to prevent intrusions and make space for this work.
Putting the Daily Action Plan Power Habit into Action
What: Each day, you commit to one “must do” and two other high value tasks. Your game plan is to organize your day to leverage your ability to achieve these high value targets. Your Daily Action Plan is your weapon to fight off intrusions.
Why: Committing to doing your highest value work is one of the best ways to become a successful, high achiever.
Apply: For the next 30 days, commit in writing to your daily three tasks and don’t stop working until you get each of them done each day.
Additional Evening Routine Resources
Organize Tomorrow Today by Dr. Jason Selk. See Chapter 1.
The One Thing: The Surprisingly Simple Truth Behind Extraordinary Results by Gary Keller and Jay Papasan.
I hope you have found this blog post helpful and welcome comments from readers.
Read on LinkedIn.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Power Habits - Evening Routine
What’s one of the single best ways to improve performance? An effective evening routine consistently practiced. Read for a discussion of this power habit and in particular what activities make a powerful evening routine and what activities kill productivity.
This is the second in my series of “power habits” - routines when practiced consistently over time provide a strong compounding effect. In my first post, I discussed beginning the day with a powerful morning routine that generates energy that pushes you through the day. In this post, I discuss the evening routine, where we bookend the work day, transition to personal time, examine the day to look for valuable lessons learned, and prepare for sleep.
Power Habits - Elements of a Successful Evening Routine
1. Close the Professional Day — A key step to ensuring good sleep and an interruption-free transition to your personal life is to close out the work part of the day. The focus in this step is to know what you are not doing so that your mind can let go. Here are my typical steps to get this done:
Collect Incoming Communications — I use the Getting Things Done (GTD) organizational method made famous by David Allen. I highly recommend that system to organize your world at a high level. One of the central themes of GTD is being comfortable not doing things, which requires you to have a handle on all the things you could be doing and making a conscious choice not to do any of them. A critical first step in that process is to corral all the incoming inputs like emails, phone calls, texts, mail, etc. Before I leave the office, my goal is to survey all of those and summarize them in one place so I am comfortable with not working on them that night. See my post Project Planning for Lawyers — Upping Your Game in a Chaotic World for more on project management.
Inbox Zero — I am one of those odd professionals that operates on a “zero inbox” system each day. What that means is that every email I have received will either be handled or filed away in a variety of email folders such as “Action Needed,” Action Needed - Low Priority,” “Read-Review,” “On Hold-Waiting,” or “Someday-Maybe.” I find this discipline gets me along way toward the collecting step.
Review Daily Action Plan and Weekly Action Plan — Anyone that has any degree of success will presented with more opportunities than they have time to entertain. That means success is largely based on choosing the right actions in the face of endless interruptions. Some of the best tools I have found are to set a Daily Action Plan and a Weekly Action Plan to keep you focused on those high-value opportunities. The Daily Action Plan is your one “must do” task plus your next two most important ones. The Weekly Action Plan is your four most important targets for the week. The action step for this power habit is to review what you committed to do today (Daily Action Plan) and what you are committed to do the rest of the week (Weekly Action Plan).
Set Tomorrow’s Daily Action Plan — To truly let go of the day and plan tomorrow, I select my Daily Action Plan tasks for the next day in light of my weekly progress. I enter those tasks into my workflow management tool called “Things” as well as enter them into an app called “CommitTo3,” which shares my three commitments with my team to get peer accountability. Note - for lawyer’s due to our confidentiality concerns, I write my tasks at a high general level.
With all of that done, your day is complete and you are ready to begin transitioning to your personal time.
2. Transition to Personal/Family Time
Back in the early 1990s when I was an engineer at The Boeing Company, I had an early morning work schedule that allowed me to be at the gym by about 4:00 pm each day. In the military, unless we were on a mission, we had a clear break in the day between training and personal time. However, as I became a professional in a highly competitive service industry (law), technology evolved to constant connection and communications, and my role as managing partner/business owner became more prominent, my professional life blurred with the other areas of my life. In high-stakes litigation, there really isn’t much end to the day.
This creates an obvious problem of closing the professional part of the day and starting the personal part of the day. Email is one glaring example where work can be an omnipresent intrusion. I have found that picking an activity, preferably physical, is a helpful interruption between work and personal life. If you can’t engage in a physical activity, then I have found an activity that uses another part of your brain is also effective in breaking up your day. For example, if you work involves heavily left brain activities like law, switching gears to a right brain, creative activity can help the transition.
Another important step in the transition is to cut off business communications — emails, social media, Internet surfing, voicemails, etc. It’s nearly impossible to make the shift to your personal/family time while holding an iPhone. In fact, even having an iPhone in the same room, I have found to intrude on my attention. Best to put electronics away when you make the shift to personal time.
3. Examine the Day
As explained in Power Habits - Morning Routine, I think journaling is an invaluable activity. The evening routine is a great time to examine your day to look for lessons learned, areas of improvement, celebrate wins, reflect on helpful insights. As part of my evening routine, I do the second half of my journaling, which includes another round of gratitude, celebrating wins, and identifying lessons learned/areas of improvement. The compounding effect of this last step is enormously powerful. It is easy to justify not journaling for a day or two since not much value is to be gained from this. But 90 days of journaling in a row generates large gains.
4. Prepare for Sleep
Some advocate setting your mind in a positive direction before going to sleep as a means of getting your subconscious mind to work on your success while you sleep. I do not know if that works or not. But I do believe that right before going to bed, these activities have powerful effects:
Quick review and positive visualization on tomorrow’s Daily Action Plan tasks,
Set something you are looking forward to doing in the morning (helps with an early morning routine), and
Repeat a set of positive mantras or future me visualizations.
Final Thoughts on Evening Routines as a Power Habit
As I explained in my morning routine post, the focus for the morning time period is to earn wins before you start your day as well as engage in activities that have a strong compounding effect over time. Evenings can be devoted to protecting the morning routine by eliminating as many choices and tasks as possible that typically have to be done in the morning. For me, I set out my clothes for the next day, pack my gym clothes, pick my Daily Action Plan tasks for the next day, and generally have lined up the dominoes for success — the night before to minimize distractions in the morning. Evening routines like morning routines are flexible, and there clearly is no right way to do one. See additional resources for ideas on other activities.
Putting the Evening Routine Power Habit into Action
What: Dedicate 10-20 minutes to close out your professional day, begin a transition to your personal/family time, reflect on your day to uncover lessons learned, and prepare for sleep.
Why: A commitment to an effective evening routine, consistently practiced, is one of the most impactful changes you can make to increase productivity, reduce stress, and develop self mastery. A consistently practiced evening routine sets you up for success in your morning routine.
Apply: Commit to perform an evening routine Monday through Friday for at least 10 minutes per day for the next 30 days. Make it a priority over checking work emails when you get home.
Additional Evening Routine Resources
Unbeatable Mind and Way of The Seal by Mark Divine.
I hope you have found this blog post helpful and welcome comments from readers.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Leaders In Law — Q&A with Ally Lozano of the “Six Minute CEO" Podcast and Alexandra Lozano Immigration Law
Leaders In Law — Q&A with Ally Lozano of the “Six Minute CEO” Podcast and Alexandra Lozano Immigration Law published by Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas.
We recently posted an interesting interview with Ally Lozano, immigration attorney and publisher of the “Six Minute CEO” Podcast. You can read the full interview as part of our Leaders in Law blog series.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Radical Candor at Law Firms - Building High Performing Teams
How can law firms build high performing teams? According to Kim Scott, a former executive at Apple and Google, a concept called “Radical Candor” is the solution. This post provides specific tips for lawyers to practice Radical Candor in their law firms.
Years ago, we published a blog post on The Importance of Honesty in the Workplace. It's still one of our most read pieces of content. This post explores a concept called “Radical Candor” created by Kim Scott, a former executive at Google and Apple, and provides specific tips for lawyers to practice Radical Candor at law firms.
Culture is Scalable, Relationships are not
Before getting to the essence of Radical Candor, it is important to recognize that the number of quality relationships a boss can maintain is limited. While that number depends on a variety of factors, six direct reports plus or minus two seems to be a commonly accepted number. The selection and quality of these relationships is often the driving factor for professional success. Radical Candor is about relationship quality.
* * *
Several years ago, I was lucky to spend a day listening to Gary Keller of Keller Williams explain the steps he took to create the largest real estate company in the world. He drew on a slide two companies, each with a boss and five direct reports — one company had 120,000 agents, the other had 6 people total. As Keller explained it, the difference was in the selection of the five direct reports. Put simply, Keller was able to scale a business and culture through his careful selection of the leaders on his team, who in turn developed high performing teams below them, and so on.
While simple, this is a critically important concept as a business grows beyond the scope of its founder’s ability to maintain a relationship with every employee.
Elements of Radical Candor
Kim Scott introduced the concept of Radical Candor through presentations and her book Radical Candor: Be a Kickass Boss Without Losing Your Humanity. She argues that greater candor makes better bosses. The elements of her system are (1) providing guidance (2) to build high performing teams (3) that get results. As to the guidance element, Scott defines two fundamental dimensions of radical candor — “challenging directly” and “caring personally.” Using those dimensions, boss/employee engagements can be divided into four quadrants based on the level of each dimension involved:
Low Challenging Directly/Low Caring Personally — Described as “manipulative insincerity,” this is where the boss doesn’t address the problem either because they don’t have time or they wish to be liked more than being an effective boss.
Low Challenging Directly/High Caring Personally — This type of behavior can be described as “ruinous empathy,” where the boss cares too much to provide needed feedback.
High Challenging Directly/Low Caring Personally — This is obnoxious aggression where the boss employs no filter in providing feedback.
High Challenging Directly/High Caring Personally — This is Radical Candor and it is hard. Using this approach, the boss communicates directly with care to help a team member improve. That means not ignoring poor performance and choosing to be liked over results. This is where real improvement occurs, and is well worth the effort.
See our post Radical Candor -- Honesty at the Office, which explains these dimensions in more detail.
Tips for Lawyers to Implement Radical Candor
Here are some thoughts, based on over 20 years of being a lawyer, on how to best implement Radical Candor in a law firm environment:
Do not wait until employee reviews to provide guidance. Employees, particularly millennials, want performance feedback. Waiting months to give an employee feedback is not an effective way to develop performance or a high performing team.
Avoiding tough conversations usually does not pay. Scott describes this behavior as either “ruinous empathy” (high caring) or “manipulative insincerity” (low caring). Ironically, she believes that “obnoxious aggression” is more likely to get results than the two avoiding approaches. Best to handle tough conversations quickly and move on.
Look for opportunities to praise. People generally spend more time avoiding pain than seeking positives, which means we tend to remember what went wrong more than what went right. Radical Candor includes praising employees for jobs well done. Look for those opportunities to make deposits in your teams emotional bank accounts.
Does your law firm recognize the value of high performing teams? I’ve worked in companies where individual performance is more valued than team work. Trying to build a high performing team in this environment can be difficult, possibly counterproductive. But even in an individual performance environment no one rarely succeeds alone.
Final Thoughts on Radical Candor at Law Firms
Building high performing teams that get results is hard. The key to achieving this according to Scott is a boss’s willingness to provide guidance that challenges directly while demonstrating personal care. This is tough in any environment. Typical law firm cultures are not always open to direct feedback, and implementing this management style is likely to ruffle feathers initially. But the rewards of increased team performance is worth it.
If you liked this subject, you may be interested in our other law culture related posts, What Makes an Ideal Work Environment and Advantages of a Values Based Business.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Power Habits - Morning Routine
What’s one of the single best ways to improve performance? An effective morning routine consistently practiced. Read for a discussion of this attorney power habit and in particular what activities make a powerful morning routine and what activities kill productivity.
This is the first in my series of “attorney power habits” - routines when practiced consistently over time provide a strong compounding effect.
Power Habits - Producing Power Through a Morning Routine
Before I started the morning routine power habit, mornings typically involved checking email before leaving the house and possibly surveying the news and social media. More often than not, I would go to the gym, then rush to the office to “get things done,” which typically was impacted by the priority of others usually through emails, phone calls, and office stop-bys. Scoring “wins” in this chaotic environment is difficult, and often, I would get to the end of the day feeling like I got nothing done — at least nothing on my list.
I’ve always been a morning person and fairly quickly figured out that my time before lunch was best used on analytical projects while after lunch I focused my time on people activities such as calls, meetings, and other communications.
By adopting a morning routine years ago, I positioned myself to start each day with a “win” before the world started imposing its will on me. Below are the various elements I found to be most effective for my business, which involves three distinct and competing roles — Managing Partner, business developer, and practicing lawyer.
Elements of a Successful Morning Routine
A little bit of research will uncover a vast universe of activities included in morning routines. The following is a list of my preferred activities developed through years of experimentation:
Hydrate with a large glass of water.
Checking in with my “why” (purpose) and my core values. Takes about two minutes. See Lessons 9 and 10 for a discussion of ethos in my post 10 Things I Wish I Knew Before I Started Practicing Law.
Writing down 3 things for which I am grateful. Takes less than a minute. I have tried several journals and planners over the years. My overall favorite is the BestSelf Journal, which is a paper journal. For digital users, I recommend the 5-Minute Journal. Starting the day with gratitude puts you into a positive mindset.
Exercise - at a minimum working up a sweat. I usually commit 30-90 minutes for this. An added advantage of the morning workout is you can couple that with doing something really uncomfortable, which has significant psychological benefits. In addition to hard workouts, you can do a cold shower or extended plank hold until muscle failure. The key is scoring a “win” by overcoming adversity early in the morning before your day starts.
Read 5-10 minutes of educational content. I usually have a theme for a quarter and read material around that theme. I string four quarters into a “personal PhD” for the year. Podcasts and emails subscriptions like the Daily Stoic are other great learning resources. Podcasts are particularly good because I can listen to them while working out.
“Future Me” visualization - pick a future time frame and visualize success real time. Takes less than 2 minutes. Visualizing completion of quarterly goals is a common application.
10 minutes of Box Breathing. Boxing breathing is a focus exercise developed by Mark Divine and taught in his Unbeatable Mind Academy. Put simply, you inhale for 5 seconds, hold it for five seconds, exhale for five seconds, hold for five seconds, then repeat the cycle. The goal is to keep your attention on the breathing. When thoughts intrude, you let them go and bring your attention back to the breathing cycle. This exercise develops awareness and focus simultaneously.
Review top three targets for the day, determined in my night routine. Takes less than 2 minutes. If I miss my night routine, I write the targets down at this step. See my posts Power Habits - Evening Routine and Power Habits - Daily Action Plan for more detail on this.
“Mental Workout” - centering breath, state a positive mantra, visualize success on your top three targets from the previous day and success on your targets for today, positive mantra, and centering breath. Takes less than 2 minutes. This was developed by Dr. Jason Selk and discussed in his book Executive Toughness.
“Daily Hooyah” is a practice a group of us from the Unbeatable Mind Inner Circle developed that involves sending a positive text message or email to someone expressing our gratitude, sharing appreciation or honor. Takes less than a minute and is significantly impactful to relationships. See my post on Building Relationships Through Emotional Bank Account Deposits for more information on why this is a powerful relationship-building tool. If you can only do a few things each morning, this is one of the best and will produce noticeable results within a week.
Morning routines like night routines are flexible and there clearly is no right way to do one. See additional resources for ideas on other activities.
Final Thoughts on Morning Routines as a Power Habit
Don’t get too wound up on all the possible actions you can include in your morning routine or if you miss the routine or a few steps. I am not always able to do all of these activities each day. As with any power habit, if you miss more than twice in a row, that should raise a red flag.
Here is a short list of things I have found to be unhelpful in your morning routine:
Checking email first thing,
Surfing the web, reading social media, or other “electronic” activities,
Watching/reading the news,
Thinking about work,
Telling yourself you don’t have time for a morning routine, and
Failing to set an intention the night before.
A missed evening routine the night before heightens your need to nail the morning routine. As observed by the team at the One Thing, it takes on average 66 days to form a power habit before you start nailing it without thinking.
Putting the Power Habit into Action
What: Dedicate a set amount of time before your day starts to activities that provide a compounding effect on your personal development. Even 5-10 minutes per morning will work. The key is consistency over time to get the benefits of compounding.
Why: A commitment to an effective morning routine, consistently practiced, is one of the most impactful changes you can make to increase productivity, reduce stress, and develop self mastery. Additionally, a consistently practiced morning routine provides you with a “win” before the day starts creating momentum throughout your day — all while the rest of the world is sleeping.
Apply: Commit to perform a morning routine Monday through Friday for at least 10 minutes per day for the next 30 days. Knock out your routine before checking your electronics and thinking about work.
Additional Morning Routine Resources
Unbeatable Mind and Way of The Seal by Mark Divine.
The Miracle Morning by Hal Elrod and Miracle Morning Millionaires by Hal Elrod and David Osborn.
Executive Toughness by Dr. Jason Selk. The “Mental Workout” is provided in Chapter 8.
The One Thing: The Surprisingly Simple Truth Behind Extraordinary Results by Gary Keller and Jay Papasan. Note - this is one of just a few books I have read over 10 times. It is well worth the investment.
Warrior Book - “Balance” element of the “Core Four.”
I hope you have found this blog post helpful and welcome comments from readers.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
10 Things I Wish I Knew Before I Started Practicing Law
This post summarizes 10 lessons I wish I knew before I started practicing law and building a law firm. Based on over 20 years experience, the lessons include law firm staffing, leadership development, marketing and business development, law firm business models, and self mastery.
One of the challenges in drafting a "X things...." blog post is condensing your experience into a set number of X. What follows is my best attempt to distill down 10 valuable lessons learned over 20+ years of practicing law. My criteria was what strategies would have had the most impact on my career had I known and put them to use when I started practicing law in 1997.
1. Law Practice Business Model
The first is a painfully simple strategy. There are only three essential elements to the business of a law practice:
Leads - This refers to a constant stream of potential clients. Without new clients, a business will eventually die, so it is vital that a law business attract a stream of new clients to replace the ones that are lost.
Relationships - Repeat business from quality clients is the foundation of a profitable law business. If your model does not attract repeat business clients, then you must focus your efforts on generating more and more new clients. Because attracting new clients is often more expensive and time consuming, many successful law business models focus on keeping existing clients happy and obtaining a stream of new matters from the existing client base.
Leverage (Leadership) - At some point in the development of a law business, the amount of work exceeds a lawyer's capacity or desire to do it. Leverage is your ability to create systems and processes to manage tasks, acquire tools, delegate tasks to employees, and scale your business by focusing on higher value work. This requires leadership skills development. Put another way, your ability to develop your leadership capacity acts as a ceiling on your law business.
It's easy to over complicate a law practice. However, if you keep your focus on these three essential elements, you will have a significant step ahead of your competitors. It's also true that your weakest element is the limiting factor on your business. See Lesson #3: Law Firm Staffing, Part I and Lesson #7: Law Firm Staffing, Part III for a discussion of how collaboration can solve this problem.
For more reading on this topic, I suggest Gary Keller's The Millionaire Real Estate Agent. While not directly on point for attorneys, this book walks the reader step-by-step on how to create and scale a different type of professional service business. Mr. Keller also built the largest real estate firm in the world, so he has quite a bit of credibility in this area.
2. Lead Generation for Lawyers
For this lesson, I have a couple scribbles. The first is the lead generation funnel:
Here’s how I define the lead generation funnel:
“Targets” are companies that could be clients, but you have no contact information for a decision maker at the company. To convert a target to a lead, you need a contact. The best way to get a contact is through an introduction from a third party that knows both of you.
“Leads” are potential clients where you have contact information. Leads are either qualified or unqualified. Once a lead has been determined to be “unqualified,” it falls out of the funnel.
“Prospects” are leads that are qualified. I recommend making that decision early and using defined criteria of ideal clients and the type of prospects you are willing to entertain to become clients later. I further categorize prospects as either short-term prospect that you can close within 2 weeks or long-term prospects that require significantly more effort.
“Clients” are prospects that have completed your engagement process — conflicts check, signed an engagement letter, and paid a retainer.
At this point, you are likely wondering why I made this so complicated. The primary reason is you can waste a ton of money on marketing/advertising and generate endless unqualified leads. Measuring your success rate and ROI at each of these steps is essential to success in business development. For example, you may have done an advertising campaign that created 100 leads, 2 prospects, and 1 client. These numbers suggest that the message was aimed at the wrong audience, but your conversion rate was excellent (50%). Without measuring these KPIs you would have no idea where the campaign broke down other than you invested quite a bit of money to generate one client. However, if the amount you invested is less than the amount you would pay to get an ideal client, the campaign was a success. See Lesson #8.
The second scribble summarizes the three types of lead generation:
“Referrals” are leads provided to you by other professionals (Referral Partners) or through contact with your clients (Client Contact). I have heard others refer to this lead generation channel as “seeds” or “word of mouth.” Regardless of what you call it, this is one of the most effective, but time consuming lead generation activities. In fact, a good referral partner can be more valuable than a good client over time.
“Inbound Marketing” is where you take an action that gets the attention of a potential lead and causes them to take an action. For example, if billboard advertising is your lead generation strategy, the billboard gains attention of passersby and calling a 1-800 number to provide contact information is the action. This is referred to as “interruption” marketing since your goal is to interrupt the attention of a lead. The Internet has disrupted this strategy. Now, you can write an educational blog post that focuses on certain keywords. Potential leads that are looking for insight on that topic will conduct Internet searches to find suitable content. With this approach, you are not interrupting a lead’s attention; you are simply answering their question.
“Outbound Marketing” is intentional effort directed at meeting and converting known targets that you have predetermined to meet your ideal client criteria. This requires you to have an “ideal client” profile in mind. See Lesson #8. I find many lawyers haven’t done this exercise. Outbound marketing is the most time consuming of the three activities, but it also provides the greatest opportunity to grow your law business since you are targeting only ideal clients.
3. Law Firm Staffing, Part I
For this lesson, I include my third scribble that identifies the four different roles in a law business:
This model divides the four roles into two focuses — business development and service delivery. For service delivery, service professionals provide much of the technical work and act as subject matter experts (SMEs). A project manager leads a team of service professionals to deliver service on time and within budget, and otherwise meet client expectations. A “relationship manager” is responsible for the overall client experience, selecting the appropriate project manager for a matter, receiving feedback from the client, and if the project was successful, selling the client on additional, new projects. A “hunter” or “new client developer” is responsible for attracting new clients to the firm.
While this may seem complicated, it is straightforward. Knowing which hat you are wearing at a particular time is helpful. A dialog between lawyers regarding who is the relationship manager versus the project manager on a particular matter and where those roles overlap can lead to better client service.
Controversial Observation — In 20+ years of practicing law, I have never seen a lawyer simultaneously great at all four roles. The truly great ones focus on one or two roles and collaborate with others, who are naturally great at the other roles.
4. Understanding People Have Different Communication Styles
As discussed in Lesson #3, lawyers face pressure to be good at all things. Being an effective communicator can lead to significant increases in leadership capacity. In my experience, people fall into one of three dominant communication styles. Understanding yourself and your audience is essential to success:
“Rule Followers” like details in writing and time to absorb them. A best practice in working with a rule follower personality is to provide them with all the necessary details in writing (be certain it is accurate) in advance and schedule a time to go over the conversation. If you are one of the two personalities below and ignore this suggestion, you will likely lose the person in the beginning of the conversation.
“Bottom Line Oriented” communicators want bullet points. They don’t want to wade through a long, meandering memo that has no specific point. One of the best ways to communicate with this personality is to provide an “executive summary” toward the top of the email or memo with details to follow. Think in terms of a 140-character Tweet. If you are a rule follower or verbal processor and don’t observe these recommendations, you run the risk of annoying the bottom line oriented communicator with over detail or not enough organization to the conversation.
“Verbal Processors” make decisions through “talking it out.” If this doesn’t make sense to you, you are likely a verbal processor. One of the worst things you can do with a verbal processor is to problem solve or interrupt them during the processing phase. Best practice is to have agreement that you are “going to verbally process” before you “problem solve.” If you are naturally bottom line oriented, I recommend resisting your urge to get to the bottom line and focus on making time for the verbal processing.
So which style are you? What are the styles of your team members? As a leader, can you adjust your style to meet people where they are at? What are the styles of your clients? Opposing counsel?
Being able to recognize how others prefer to communicate and make decisions can lead to significant relationship improvements. For more on relationships, see my post Building Relationships Through Emotional Bank Account Deposits.
5. Law Firm Staffing, Part II
Warning — Another Controversial Statement.
As a group, lawyers:
Don’t want to be told what to do; and
Simultaneously, are bad micromanagers.
If you can break this frame in your law business, you will have a huge competitive advantage.
6. Trust Your Gut
Just about every time I have not followed a gut feeling, I have regretted it. This has been the experience with clients I wasn't sure were the right fit, engaging with potential clients, employees and making hiring decisions with new employees, and workplace collaborations.
The best way I have found to open up more intuition and less thinking is to turn off your analytical brain. Whether it is "sleeping on it," meditation, or shifting gears to a physical activity, opening up space allows your intuition to send you these important messages. Listen to them.
7. Law Firm Staffing, Part III
In the military, sports, and high performance business teams, a leader is only as good as his/her team. Put another way, there are no low performing teams, just weak leaders. Jeb Blount provides in People Follow You five “levers” of effective leadership:
Put People First
Connect
Position People to Win
Build Trust
Create Positive Emotional Experiences
If you want to increase the "Leverage" element of your law business, you must increase your leadership capacity.
Final point — remember as a leader, you are always on stage. Put another way, you aren’t allowed the luxury of having a bad day because people are watching you and will make assumptions based on your actions and attitude.
Listen to my podcast for more information on law firm leadership: Leadership in Action Podcast Series: How to Rebuild Your Law Firm From Scratch
8. Law Firm Marketing Fundamentals
Here are some basic points for an effective marketing and sales strategy for a law business.
First, be clear about what you sell and who is your ideal client. Entering your time, tacking on expenses, and sending a client an invoice is not good enough in today's competitive market. Lawyers that deliver high value are always in demand. To maximize value to a client, you need to focus on ideal clients for your business. Trying to satisfy all potential clients (e.g., being everything to everyone) is a losing strategy.
Second, what would you pay to engage with an ideal client? Answering this question tells you how much to spend on marketing and advertising to attract leads that ultimately could become your definition of an ideal client. Without knowing this number, you are at risk of wasting money on marketing or spreading it too broadly.
Third, service businesses typically compete on either quality, service, or price. Competing on all three pretty much guarantees failure. I recommend picking one of the three and designing your law business around that quality. This affects the business structure, pricing strategy, staffing, and marketing messaging. Random acts of marketing can be very expensive.
9. Be You -- Do It for You
One of life's greatest tragedies is to be loved for someone you are pretending to be, not who you really are. Private practice can be a competitive, full contact sport where success is measured in terms of trial wins, client origination, billable hours, etc. as a replacement for grades, LSAT scores, and university prominence for law school competition. With all this pressure, it is easy for lawyers to lose who they are as they strive to be great at everything.
As I wrote in Lesson #3: Law Firm Staffing, Part I, I have never seen anyone great at all aspects of the law business -- at least not without paying a heavy personal price. In my opinion, the most successful lawyers are clear as to what they are great at it, who they are, and what they are not great at. In other words, they check their egos, develop self awareness, and focus on their unique ability. They also collaborate with others that have complimentary unique abilities to achieve a greater collective success than each could do on their own.
Happiness is found in being you as opposed to pretending you are someone else. See my post on What I Learned about Living from Nearly Dying for more on this topic.
10. Most Important Leadership Lesson
We live in a left-brain dominated profession. Think, analyze, discuss, analyze some more. We also are driven to collect skills like writing, deposition taking, oral advocacy. But as I have learned over many years of observing strong leaders, "being" is often more important than "doing" when it comes to leadership. There are many axioms in this area like "strong leaders stand for something" and "a leader gets the organization that he/she deserves" to name a few. My view is that if you want to grow your business, you have to start with developing your leadership capacity (being) because your being is a limiting factor on the organization. I realize this is not as sexy as measuring billable hours, originations, and profits per partner. But I also believe it to be a natural law similar to the law of the farm (you have to plant in the spring to harvest in the fall).
From my experience, if you want to develop your leadership skills, I would start with developing your "being" or as some call it your "ethos." As you intentionally develop your "being," you can develop a parallel path of skills development. Chapter 1 "Establish Your Set Point" in Mark Divine's The Way of the SEAL provides an excellent discussion and set of exercises on developing your why, principals, passion, and purpose. Commander Divine describes developing your being as "vertical skills" and doing as "horizontal skills" development. I highly recommend his companion book Unbeatable Mind for a comprehensive plan for integrated personal development that is a foundation to leadership capacity. Note Unbeatable Mind is internal development; The Way of the SEAL is about external deployment of the Unbeatable Mind skills.
Below is my final scribble on vertical skills (being) versus horizontal skills (doing) for lawyer leaders:
I hope you have found this blog post helpful and welcome comments from readers.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Building Relationships Through Emotional Bank Account Deposits
As a team leader, your success largely is dependent on your ability to form strong, trusting relationships with your teammates. Using Dr. Covey’s “emotional bank account deposits” concept, you can strengthen relationships, build a high performing team, and develop as a leader.
In Stephen R. Covey’s seminal book, The 7 Habits of Highly Effective People, he provides a framework for building productive, interdependent relationships through maintaining a positive balance in other people’s emotional bank accounts. “Interdependent” relationships are formed between two people that are dependent (private victory through Habits 1-3) and realize that together they are better (public victory through Habits 4-6), but neither depends on the other for individual success. This post examines building relationships through emotional bank account deposits in law firms.
Emotional Bank Account Deposits are Cornerstones to Productive Relationships
Dr. Covey suggests the following as effective deposits into emotional bank accounts. I’ve included my thoughts on how these suggestions work best:
Understanding the Individual — Authentic listening is one of the best ways to truly understand someone and to communicate you care.
Attending to Little Things — Little disagreements, slights, and overlooks tend to kill relationships over time. It’s usually not the big things.
Keeping Commitments — By communicating and keeping commitments, you become the kind of person people can rely on. Not keeping commitments - even small ones - trains others not to trust you and to be guarded. Immense relationship power is created when each person can rely completely on the word of the other.
Clarifying Expectations — Unclear expectations are the root of many interpersonal disputes. This is particularly true when one person in the relationship has an unspoken expectation that is assumed, rather than communicated. Uncovering those assumed expectations and getting clarity leads to significant emotional deposits.
Showing Personal Integrity — Personal integrity is fundamental to establishing trust in a relationship. As Dr. Covey explained, “Integrity is conforming reality to our words — in other words, keeping promises and fulfilling expectations.” See 3 Steps to Build Integrity in the Workplace for a deeper discussion of how this principle applies at work.
Apologizing Sincerely when You Make a Withdrawal — We all make mistakes. Apologizing to the individual when one happens and making the apology with sincerity can be healing to a relationship as well as demonstrate that you understand the other person.
Challenge — Applying Building Relationships Through Emotional Bank Account Deposits Principle
What: According to Dr. Covey, positive emotional bank account balances between two dependent people lead to fruitful relationships.
Why: As a team leader, your success largely is dependent on your ability to form strong, trusting relationships with your teammates, e.g., a high performing team. As a business leader, your ability to replicate this principle throughout your organization will have transformative results and give your business a significant competitive advantage. See our post on 5 Building Blocks for a Strong Law Firm Culture for a broader discussion of culture versus strategy.
Apply: Choose a key relationship where you believe your emotional bank account balance to be low or even negative, and consciously make deposits into the account for the next 14 days. How has the relationship changed? What caused the low balance in the first place? What steps can you take in the future to ensure a more positive balance and as a consequence, stronger relationship?
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I hope you have found this blog post helpful and welcome comments from readers.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Simple Leadership Lessons for Lawyers from a Navy SEAL
Simple Leadership Lessons for Lawyers from a Navy SEAL. Thoughts on leadership types and leadership styles, why leaders need to be resilient, and how to get more from your team.
I was lucky to attend the Unbeatable Mind Annual Summit in December 2017, where retired Navy SEAL Andy Stumpf presented his thoughts on leadership. The following is my summary of leadership lesson takeaways for lawyers.
Leadership Types
Good or bad. We all know which one it is when we experience the leader. It’s not more complicated than that.
Leadership Styles
Micromanagement — This form of management style results in people asking “what do you want me to do” instead of being proactive. The micromanagement style relies on external forces and discipline.
Inspirational — This style is about pulling people along through inspiration. It asks the question, “How hard would you work not to let that person down.” This is about actions, not words.
2 Ways to Lead
By position or by example. In my experience, leading by example is far more effective than leading by position. One is inspirational; the other can be command and control authoritarian.
Additional Thoughts on Leadership
Set the standard for your team every day through actions and maintaining integrity.
What you tolerate is your standard.
Resilience is the important ability to spring back from adversity stronger.
Seek adversity - take the hard road every time.
Think like and act like the leader you want to be.
Being an effective leader is the best way to change the world.
You can find more information about Andy Stumpf through his podcast, Cleared Hot.
You can find more information about this year’s Unbeatable Mind Summit.
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Important Caveat - These are simply my notes and thoughts and shouldn’t be attributed to anyone.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
What I Learned About Living From Nearly Dying - 2015 (Year 2)
In November 2017 at the age 45, I suffered what should have been a fatal, massive heart attack while lifting weights early in the morning. An amazing string of miracles kept me around. Each year, I share the insights gained from this wonderful experience.
Four years ago at age 45, I suffered what should have been a fatal, massive heart attack while lifting weights early in the morning. An amazing string of miracles kept me around. Each year, I share the insights gained from this wonderful experience. Shocking as it sounds, I wouldn’t trade this experience for the world.
Before we get to the insights, here is a short background on what happened. Early Wednesday, November 27, 2013, I was doing bench press when I felt a serious pain in the middle of my chest. Since I had no shortness of breath or radiating arm pain, I did another set then switched to legs thinking I had strained a pec muscle. Things got worse, so I self-medicated with aspirin and drove myself to the ER, a few miles away. After calmly asking for an EKG to rule out any heart issues, I spent about 90 minutes in the ER awaiting a diagnosis.
Turns out a piece of plaque had broken off, traveled through my left main artery (called the “widow maker”), and became stuck creating a 100% blockage. The first miracle was my heart didn’t explode while I was doing bench press. Eventually, a senior cardiac surgeon arrived and decided to immediately go up my leg to find what was wrong. Miracles #2 and #3 are that he was the one on call that day – I found out later that many of his colleagues would not have attempted to do this since it was so risky – and that the surgery actually worked. I didn’t find out about either of these until months later.
Start to finish from first pain to wheeling out of the surgery was about three hours. That’s only the start. The first post-recovery phase I experienced is what I refer to as the “denial” phase as in it was all only a bad dream. How could an otherwise reasonably health 45-year old have a heart attack? Once I accepted it actually happened (a few weeks), I moved to the “irrational exuberance” phase. This is sort of like winning the lottery or nearly being run over by a bus. It lasted several months until it dawned on me that my life wasn’t going to change (meaning I was headed back to previous circumstances), unless I proactively made change happen. That’s when the “I don’t want to blow my second chance at life” third phase started. Fortunately for me, I am still experiencing the third phase.
Recovery shrunk the amount of time, energy, and emotion I could devote to work. The episode also gave me a different perspective on life, and drove me to restructure my law practice in January 2015. Enough about what happened, here’s what I learned in year two from all this.
1. You cannot do it all.
For all of us Type-A, visionary personalities, this was a bitter pill for me to swallow. However, it is undeniably true. After many hours of self reflection and reading at least 10 times The One Thing: The Surprisingly Simple Truth Behind Extraordinary Results by Gary Keller and Jay Papasan, it finally sunk in that success and meaning lie on obsessive focus on the few things that matter as opposed to obsessively focusing on achieving many things. This led me to getting clear on my purpose in life as well as the priorities needed to achieve that purpose, and developing a willingness to say "no" to anything not connected to my “One Thing.” I also developed a much more efficient process for getting work done to free up more time for my “One Thing.” See my previous post on task and project management for lawyers.
2. Living your life on “house money” provides a great perspective.
Like other survivors, I shouldn’t be here. Every day is a bonus for me, but like you, I am still moving toward my final day. Initially, I used this viewpoint to develop a better strategy for handling adversity: whatever situation I was facing couldn’t possibly be as bad as the alternative. I still lean on that perspective occasionally. However, I have progressed to looking at life with an urgency to not blow this blessed and lucky second chance. The Stoics referred to this as "amor fati" (love your fate). That focuses me on my “One Thing” to the exclusion of the many distractions we each face daily. If I could go back in time, this is the one lesson I wish I would have embraced much younger.
3. You are only as good as your team.
Before this happened, I would do my job and the job of low performing employees. I failed to effectively set and communicate performance expectations to peers and team members. I also didn’t like holding people accountable even where performance expectations were set but not met. Looking back, I put the desire to be liked ahead of team performance. In September 2014, I attended a presentation by Rand Stagen, where he cautioned that “a leader gets the organization that he/she deserves.” That was yet another wake up call for me, leading me to set a clear, written vision for our law firm along with performance expectations and consequences for not performing. People were either attracted to the vision or repelled by it. After several painful months, we restructured the business and successfully re-launched in January 2015 as a technology and intellectual property law firm with a cohesive vision. Freed from billable hour requirements, my chief priority is helping our leadership team and others in the business succeed. My success is tied to their success. I even found the time to start a charity.
I hope you found something useful in this article. I’ve been very open about my experience with the goal of providing someone the benefit of the insights I gained without having to go through a near-death experience.
Please feel free to contact me directly if you have any questions about my experience.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Can Lawyers Really Bill Based on Value Instead of by the Hour?
Can lawyers and their clients really get away from hourly billing. Turns out that lawyers and their clients have begun to embrace a concept called "value billing" based on the value of the services provided to the client as opposed to the time spent (hourly billing) or a time and materials cost (flat fee billing).
Each new year, the billable hour is pronounced dead, yet it still dominates legal services pricing. Can lawyers and their clients really get away from hourly billing. Turns out that lawyers and their clients have begun to embrace a concept called "value billing" based on the value of the services provided to the client as opposed to the time spent (hourly billing) or a time and materials cost (flat fee billing).
Value Billing Lawyers
Click here to listen to our podcast interview with Kirk Bowman, founder and Visionary of Value at Art of Value, a business model that aligns the interests of the customer and the professional through a fanatical focus on value. Kirk teaches how to create happy customers and make more money by exploring value pricing and how to implement it in your business.
Interview questions and topics covered on this show include:
1) What is Art of Value and personal experience with hourly billing and value-pricing;
2) Benefits of switching to a value-based pricing model;
3) How attorneys, firms, and businesses can get away from the billable hour and still be productive;
4) About the mission of Art of Value and start-up advice from an entrepreneur.
Read Further for Value Billing Questions for Lawyers
Check out our Q&A post with Kirk Bowman on our IP Law Blog.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Is There Another Law Firm Business Model?
Ever wondered if there is a different way to practice law than a traditional law firm business model? Listen to hear one approach
Have you ever wondered if there is a different way to practice law than a traditional law firm partnership?
In this podcast interview with John Remsen, Jr. of the Managing Partner Forum, Darin M. Klemchuk discusses law firm business models and making the transition from one model type to another. In particular, he discusses how many firms follow the “barbershop model” – an organizational structure that rewards individual behavior but often results in isolated practice areas (silos) with weak cross-selling activity and short-term focus. He proposes a new business model based on team focus and collaboration.
Listen to the podcast here.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.
Can Law Firms Practice Conscious Capitalism?
With some creativity and a different focus, law firms can join the Conscious Capitalism movement. Read post for tips on how to make that change.
What is Conscious Capitalism?
As explained by Conscious Capitalism, Inc., a non-profit organization dedicated to cultivating the theory and practice of Conscious Capitalism, the movement “builds on the foundations of Capitalism – voluntary exchange, entrepreneurship, competition, freedom to trade and the rule of law.” The movement has the following four pillars:
Higher Purpose – A purpose that includes, but is more than making profit. For example, our firm’s higher purpose is to make a positive impact by being a great place for great people to work. If we can achieve that, we believe we can provide jobs to sustain families and provide revenue to our vendors.
Stakeholder Orientation – Recognizing that there are several stakeholders in the outcome of a business. These include employees, vendors, customers, investors, and communities in addition to the business owners.
Conscious Leadership – “Human social organizations are created and guided by leaders – people who see a path and inspire others to travel along the path. Conscious Leaders understand and embrace the Higher Purpose of business and focus on creating value for and harmonizing the interests of the business stakeholders.”
Conscious Culture – The values, principles, and practices underlying the business that connect the stakeholders to each other and the purpose, people, and processes embodied by the business.
Challenges for Law Firms
I believe the biggest challenges for law firms adopting Conscious Capitalism lie foremost in the historical, prevailing legal-industry culture and secondarily to certain regulations of lawyers by state bars.
As to regulations, law firms and lawyers are in restricted in many states from sharing profits and client fees with non-attorneys as well as sharing ownership with non-attorneys. These regulations would likely prohibit employee stock option plans. However, even with these limitations, I believe it is still possible for law firms to broadly provide stakeholder orientation for its employees, clients, vendors, and the community. The other tenants of Conscious Capitalism – higher purpose, conscious leadership, and conscious culture – should not be impacted by state bar regulations.
In my opinion, for Conscious Capitalism to really take root and thrive in a business, the owners and leadership purposefully need to take a broader view of the value delivered. This means that wins are defined as results in addition to profits. Giving back to the community and professionally and personally developing employees are just a few of the broader wins. The legal industry’s adoption of profits per partner as a key metric to compare and rank law firms places a heavy focus on profit. Longer term investments, like employee development, can be at odds with annual profits per partner results in the short term. This is unfortunate, but not insurmountable as many law firms routinely commit to a higher purpose.
Get Involved
Want to hear more about the Conscious Capitalism movement or get involved, visit http://www.consciouscapitalism.org.
To read more about Conscious Capitalism in the legal industry and other law firm culture topics, please visit our Culture Counts blog.
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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer as well as IP mediation services. For more on the latest developments in IP law, see Ideate blog and IP Questions Answered blog.