My First Solo

It was twelve years ago today, October 2, 2006, that I went solo.  I actually didn’t have much of a plan. I had obtained a position reviewing documents for large class actions which I could do from home on my computer. That was going to pay enough to pay my bills. That’s as far as I had gotten with my plan.

I had been working in consumer protection for four years, helping all kinds of people out of all kinds of bad deals, protecting them from harassing debt collectors, unwinding their complicated identity theft problems, and recovering money taken by home improvement contractors, car dealers and even dating services.  But even as fulfilling as that was, there was something missing. I didn’t know what, I just knew I needed a change. I didn’t really look around for other jobs, but I found the document review opportunity and thought it would allow me to rethink my path as an attorney.

Within a week or two, my old boss called asking if I was interested in helping all the people that called his firm looking for help defending against credit card and medical collection.  So I shifted from being the lawyer that brought suit to being the lawyer that defended clients in court. And no one else was really doing that with any regularity.

Almost exactly two years later, though, the economy dramatically shifted when the real estate bubble burst and the country went into recession.  The need for lawyers helping homeowners in foreclosure increased dramatically and as I had already handled a few foreclosures for homeowners, I was in position to take on more of these cases.  Now I have the largest foreclosure defense practice in the state.

This did not come easy.  Helping a homeowner save their home from foreclosure is labor-intensive, document and paperwork intensive and takes a lot of time and patience, both on my part and the part of the homeowner.  I have had to hire staff to handle the paperwork, answer the phones and manage the office. This was a scary process- I used to work alone in a spare bedroom, then I rented a small office, but now I need space for four employees, and then some.  This all needs to be paid for. Everyone wonders how I do it: “How do you get paid if your clients can’t pay their mortgage?”

Good question.  Probably the most important lesson I’ve learned from growing this business is to figure out what clients really want.  When you think about it, people pay for the things they want. If they REALLY want that Starbucks coffee, they will have the money to pay for it.  If they REALLY want a Lexus car, they will find a way to pay for it. And if they REALLY want help in court when their home is in foreclosure, they will make sure to pay their lawyer for that help.  

I did assume for a long time that everyone wanted to save their house, or that everyone who called me wanted to pay for legal services.  I’ve been working on how to have the conversation to figure out what people really WANT. I’ve learned it’s OK to not want to keep your house, and it’s OK if people don’t think paying for a lawyer is worth it.  I want to work with the people who REALLY want legal help from me, people who value having a lawyer by their side, a lawyer who will explain the process to them, who will walk them through each step and clarify what is going on in court so they aren’t so confused, don’t feel helpless, and aren’t spending any more sleepless nights over their foreclosure.  

Even better are the clients who know we will solve their legal problem and who want to do better in the future.  People who are motivated to manage their money so they will NEVER be in foreclosure again, and who will have savings and a retirement plan and a future to look forward to.  Because I’ve learned it was never the foreclosure that was the problem, that was just the symptom of many decisions over the years that led to an inability to pay the mortgage.  I can treat the symptoms, but the fulfilling part is working together with clients to cure the underlying problem.

Roger Ebert’s ‘Lawyer in a Movie Rule’ and My Practice

The late great Roger Ebert came up with a set of movies rules for movie viewing gleaned 20130405_roger_ebert_crop_91from his decades of amazing reviews. Things like ‘the guy in a war movie who shows everyone the picture of his sweetheart will die by the end’. Or ‘Ali MacGraw Disease’: A movie illness in which the only symptom is that the sufferer grows more beautiful as death approaches. 

Another is ‘The Lawyer With One Case Scenario.’ That’s defined as: in nearly all legal dramas, the lawyer’s involved in only one case – the case the movie is about. They are never distracted by other cases, clients, or causes.

This is certainly true for every legal drama that doesn’t involve a down-on-his-luck lawyer grasping onto one case as a lifeline. Paul Newman in The Verdict and Jimmy Stewart in Anatomy of a Murder come to mind.

For every other movie (and most TV shows, for that matter) it really is the one case goliath-600x400scenario. The one case that is really cool (or they wouldn’t be making a movie about it) and most certainly takes laser focus despite all the really neat stuff screenwriters come up with the throw in the way. Most of which have nothing to do with the with the law. (For an example of creative, if not ridiculous, ‘Hollywood-only lawyer faced with multiple obstacles while pursuing a case’, check out Amazon Prime’s Goliath.)

The typical movie lawyer, say Billy Bob Thornton, shows up and dazzles the court with legal acumen seemingly off the top of his head, while, miraculously, the lights in his office stay on, a paralegal/secretary/amusing investigator work 12 hours a day for free. Because, they believe in the case as much as the star, which is a really lucky thing as, let’s face it, the movie lawyer has no visible means of income. Needless to say, none of these legal thrillers ever starts with a client walking into the attorney’s office with a million-dollar retainer.

Half a century of ‘lawyer movies’ have had to have an effect on how people, i.e., real clients, see lawyers and law firms. Which is, on occasion, a problem.

download-1A few weeks ago I met with a prospective client. Very nice guy, the meeting was highly productive, I knew I could help him. So did he. He was all set to sign a retainer agreement when he stopped and said, “Just promise me you’ll be the only one handling my case. I only want to work with you.”

Well, a long line of movie lawyers would have agreed immediately. Everyone from Spencer Tracy to Debra Winger, George Clooney, Matthew McConaughey, and, yes, Billy Bob Thornton, and everyone in between would have taken the retainer. Because, in movie law land, there are no teams, no need to pay bills, and the only legal work a case ever needs is when the lawyer shows up in court. (By the way, movie lawyers are almost always late to court, are usually seen running down the aisle as the judge takes a seat.)

In real like, it’s about a team, it’s about research or motions or briefs getting done while somebody else is stuck in the courthouse, it’s about someone painstakingly filling out financial disclosure forms and checking scheduling and …. you get the point.

I love movies, but I live and practice in the real world.

Foreclosure and Jimmy McGill

post26Probably the most authentic picture of what it’s like to run a small law firm is Better Call Saul. No, this has nothing to do with working with someone like Mike, or filming 2 am attorney ads surreptitiously on Air Force bases, or any one of his dozen other antics.

And, it’s not any of his personal quirks: the flashes of legal genius, his skill as a flim-flam man, his deft touch with the elderly client.

What makes Jimmy McGill real is his need for clients and that which comes with them and allows lawyers to continue to be lawyers – money. Jimmy needs every retainer he can lay his hands on. Paying for parking is a stretch for him.

It’s a well-kept secret in the TV/movie/streaming content legal world that (a) attorneys arebetter-call-saul business people and (b) they need to be paid to continue to be (a) above.

One of Connecticut’s best known criminal defense attorneys just wrote this in his weekly New Haven Register column: “Almost ever lawyer I know is struggling to keep the lights on these days.” That’s Norm Pattis, and while he is somewhat exaggerating (the column was an attempt to explain the appeal of Donald Trump) and ‘struggling’ is a very, very subjective term, he does underscore the much overlooked truism of the practice of law: lawyers need to be paid like everyone else who works for a living.

prodigalparent2No one ever saw Perry Mason or any of the guys from LA Law scrambling to pay the bills. As a matter of fact, Della Street seemed remarkably well paid for a 1950’s solo practitioner’s legal assistant. Popular culture portrayals of lawyers almost never even hint at the business side of practice. When they do, it’s almost universally about a poor but noble lawyer working a case without hope of payment.

Attorneys are not like doctors, they are not locked into a ‘specialization.’ As a matter of fact most Bar Association rules in most states prohibit attorneys saying they specialize in any aspect of the law.

Do you know what the equivalent title for Neurologist/Oncologist/Orthopedic is in the law? Attorney.

Attorneys are taught to think like an attorney – that’s it, that’s what law school is all about, thinking. Studying for the Bar means studying every aspect of the law. Torts, Bankruptcy, Easements, Constitutional, Criminal. Everything.

You pass the Bar, you’re a lawyer, there are no restrictions on what you can do, no restrictions on the license. It’s like the woman doctor repairing your ACL checking and treating the troublesome looking freckle on your forehead.

Here’s something that shouldn’t be a surprise to anyone but frequently is: lawyers have student loans, lawyers need to eat, lawyers can accept any case they want as long as there’s no looming conflict of interest.

Most lawyers stay with what they know and are comfortable with. It’s smart, minimizes potential problems, allows for real expertise (although, per Bar rules, no one can really say they’re an expert) and rapport with the court and ‘the other side.’

When lawyers go ‘outside the box’ they usually do so for one of two reasons: a friend or relative needs help; they need the retainer to ‘keep the lights on.’ They are especially apt to do the second if they don’t see the area they are about to stray into as challenging.

In other words, they are more likely to stray into foreclosures than a civil rights action. Which is, of course, a misconception that can only arise when a practitioner is unfamiliar with, well, foreclosure actions.

The problem is, foreclosure law, like bankruptcy and a host other, looks – very much on the surface – like an orderly, procedural driven process. A -B-C … Z, keep the house.

This would be great if it were true. But, it’s not. Foreclosure defense is fraught with little hiccups and steep, nasty pitfalls that don’t show up in the manuals and guides – on-line and off. The only way to know where they are is to do it every day for hundreds of clients in a hundred different scenarios with scores of banks, mortgage companies, and lawyers on the other side. And, that doesn’t include knowing the judges, clerks, mediators in each court.

The learning curve in foreclosure court is steep, the timeline is restrictive, no one should go through it with the additional stress of watching their attorney catch up on the fly.

Adventures in Solo Practice (Episode #257)

I was on the phone with a mortgage broker last week – yes, like 99% of the general population, foreclosure defense attorneys need mortgages – when he asked me about my business.

downloadI quickly described what and how I do what I do, when I finished there was a short pause then he said, far too brightly, “Oh, hey, yeah, just like Ally McBeal, huh?”

Yup, that’s right, it’s 2016 and women attorneys still get ‘Alley McBealed’.

I, obviously a little too subtly, let him know I wasn’t flattered or amused, he didn’t get it and persisted as if being a fan of Ally McBeal was some kind of bonding mechanism, like we had survived Contracts I together. Finally, I had to tell him flat out to move on, I’m sure he’s still baffled.

time.allymcbealI hated Ally McBeal – the show and the character. The show really had nothing to do with law or law practice or, well, anything else beside, perhaps, championing the use of coed restrooms. I suppose the reruns could be used as some sort of training tool for HR executives on the hazards of inter-office romances.

This got me thinking, though, of woman lawyers in movies and TV . . . and I’m not sure I like where that’s taking me. It occurs to me that there are two types of women in shows about the law – bright, pretty, perky; and stone-cold, morally-compromised.

download (2)It says a lot, too, that those bright, perky, pretty woman aredownload (3) not real attorneys. Sandra Bullock in A Time to Kill, is the smart, adorable, brave law student to Matthew McConaughey’s besieged but strong attorney; in The Pelican Brief, Julia Roberts is another bright, pretty law student to Denzel Washington’s wise, tough worldly reporter. As a matter of fact, Julia Roberts does it yet again in Erin Brockovitch, this time the brassy, attractive, persistent law researcher to Albert Finney’s tough, understanding, lawyer/patriarch.

I’m sensing a theme here.

download (4)In Hollywood and TV Land it seems to me Sandra and Julia graduate law school and turn into Patty Hewes, an attorney who has blithely gone well past morally-compromised and directly to straight up killer. As far as I can see, there’s few – perhaps none- woman lawyers in popular culture who are considered beyond their attractiveness and/or general bitchiness.

In Damages, in pretty much comes full circle, Rose Bryne’s character, Ellen Parson, comes into the first season pretty, perky, and bright eyed and goes out perilously close to Glenn Close’s Hewes on the morality scale.

I don’t know, perhaps it is a bit of an improvement, after all, at least there weren’t any dancing babies.

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2015: The Year in Themes

It’s been quite a year, in court, out of court, blogging, talking, consulting. Since I started putting my thoughts down early in the year a few themes have emerged, themes I’m sure I’ll continue to follow into 2016.

Looking forward to 2016 and many more posts. Happy New Year, and thanks for being a reader.

Debt, Dickens, and the Ghost of Christmas Yet to Come

So now, as an infallible way of making little ease great ease, I began to contract a quantity of debt.

~ Charles Dickens, Great Expectations

imageWhere would Charles Dickens have been without debt? Where would English Lit, Hollywood, and Christmas be without Dickens?

The running themes through Dickens’ long – and lucrative – career were crushing debt, workhouses, courts snarled in technicalities, poverty, sour credit, low wages, foreclosures, banks, scams, mass incarceration, sweatshops, social injustice … All very much applicable today.

If Dickens came back tomorrow, he’d be astonished by the speed of today’s communications; overwhelmed by the modern technologies used in finance; awed but probably pleased with the serialized novel on TV and Netflix, et al – I imagine him binge watching Breaking Bad and The Wire.

He’d find some things appallingly the same, others miraculous. He’d immediately recognize Pharma Bro, everyone running for President, the characters in The Big Short. Give him a week and he’d be working on a new novel.

Dickens had an unfailing eye for all this because he lived it. He grew up in a imagemiddle class family, comfortable, good at school, apparently fairly happy. All that was destroyed when he was twelve and his father was tossed into debtor’s prison (right). Charles’ mother and younger siblings went with him – as was the custom. Charles,was forced to pawn his school books, was sent off to a workshop to help pay off his father’s debts.

An inheritance saved the family though Dickens’ mother was adamantly opposed to his leaving work and forced him to stay there for long, unhappy months before he left to resume his studies. He rewarded her for that particularly slight through dozens of novels and plays. (From Dickens to Bob Dylan and Alanis Morissette, it’s never a good idea to upset an artist with wide reach).

In his early writing career – he was pretty much a prodigy from the start – he covered the courts and, briefly, Parliament.

He saw the system from every angle and he set out to attack it in the only way he could, through his writing, within the flexibility and thin protection of the novel. He opened Victorian eyes to the seamy underbelly of British wealth, society, and empire.

imageIn 1843 he turned his wrath to Christmas. At the time, many – including his good friend Washington Irving – felt that Christmas season was ebbing away from the poor and increasingly put upon middle-class.

He didn’t like what he was seeing, feeling, and he sat down to write a scathing pamphlet about the issue. It soon occurred to him that a novel would work much better, reach more people. In six weeks he crafted his ‘ghost story’, A Christmas Carol.

He published it himself in an effort to not be ripped off by his usual publisher.A Christmas Carol in prose. - caption: 'Marley's Ghost. Ebenezer Scrooge visited by a ghost.' In today’s parlance, it went viral. Immensely popular, even his [many] critics extolled it. Thousands and thousands of copies were sold, many more – particularly in the United States were ‘bootlegged’ – and it was immediately adapted for the stage. Dickens himself did stage readings of the entire manuscript. It was everywhere.

Humanitarianism, redemption, a dead-on accurate portrayal of early-Victorian England, it hit a nerve in Great Britain and the United States. It hit, hard, the people bearing the burden of the Industrial Revolution, changed the way everyone thought of the Christmas season.

imageHow a man who, when first confronted with poverty and homelessness, says, “Are there no prisons? Are there no workhouses?” Finds empathy is inspiring regardless of religious belief. A Christmas Carol was a great story, a strong, bitter indictment of the times, and it worked. It changed things. It has never been out of print.

Again, no debt, no Dickens, no Dickens, no holiday season? The latter may be a stretch, but it’s not unthinkable.

So, sometime in the next few days I plan on catching the 1950 Alastair Sim, A Christmas Carol – a great adaptation (out of dozens, beginning with Thomas Edison’s version in the early 1900s!).

And to all my readers, I hope it’s obvious, “God Bless Us, Everyone.”


Why I’ll Be Cringing During the Republican Debates (… it’s not what you think)

Cassidy-GOP-Debate-group-shot-1200There are three Republican Presidential debates over the next six weeks and they are sure to have a chilling effect on my clients. I’m not referring to the politics, or the issues, I’m talking about Donald Trump’s business background and what are sure to be continuing attacks by one or more of the other candidates.  Specifically, I’m talking about his bankruptcies. To be fair and accurate, his corporate bankruptcies.

In the September 16th debate, Carly Fiorino made this an issue. It was a fair point, of course, but the manner in which she asked Trump about his casinos’ financial problems rubbed me the wrong way.  She was accusatory and made the implication that Trump had used – the verb employed in its most pejorative manner – ‘government programs’ and had played the system. Equally implicit was ‘How could you have done such a lousy, irresponsible job?’

That may be good politics and was probably a fair question. The thing is, I work with people buried under credit card debt or who are facing foreclosure and attacking someone for using the bankruptcy system, and creating spin around it, does not help. These attacks simply serve to add to the stigma and shame that hangs over having debt issues.

It’s well known to lawyers, court officers, judges and anyone who is sees credit card collection matters and foreclosure cases on a regular basis, that the homeowners and consumers involved are slow to respond to court, if they respond at all.  Many people I work with are fighting the shame and embarrassment of having papers served on them at their homes and fear their neighbors, family members, friends and co-workers will find out about their money problems.  Because there’s still a strong Puritan work ethic in the U.S. inertia usually goes hand-in-hand with the perceived stigma of having unpaid debt.

People who start participating in the process late into the game are lined up outside my office door.  Most come heads hung low, sleep-deprived, embarrassed, ashamed, believing they deserve the abuse they sometimes get from collectors or their mortgage servicer.  I spend a lot of time and expend a lot of energy explaining- counseling, really – that, in most cases, they had little to no choice but to fall behind on their bills. You just can’t control certain life events- health, career, market forces, recessions, corporate mergers/bankruptcies/relocations/relevance; divorce; death; children; aging/ailing parents; severe weather; and a hundred other things.

Anything can happen, any time. Mortgages are thirty years long. Something bad will happen to most of us over thirty years that will prevent us from being able to pay our bills on time.  How many things actually last thirty years? The Thirty Years War didn’t last thirty years.  Most marriages certainly do not last thirty years.  Trump’s four bankruptcies occurred over a 25 year period, a time of total upheaval in the casino industry and the real estate market.

The shaming of those who seek out bankruptcy protection or mount a defense in court is unfortunately being reinforced heavily this presidential political cycle.  Bemoaning ‘free stuff’ and drawing dire inferences from another’s business decisions serve only to reinforce the feelings of shame and avoidance that my clients struggle with.

I’m hoping the candidates don’t continue down that road in the upcoming weeks, but I know they will.

Trying to shame a politician is one thing – though I have to believe Mr. Trump is pretty much shame proof.  Shaming someone for participating in a court process that has been a part of our judicial system going back to Colonial America is to shame the millions of Americans who have used the bankruptcy process, or foreclosure mediation, or credit card debt defense, to get a fresh start and subsequently recover financially and start giving back to the economy, is wrong.  It’s anti-Americans, if you will.    (The S on the end of Americans is intended.)

This is important to all of us, no one wants to own a home on a block where your neighbors’ houses are darkened by foreclosure.  That helps no one.

The DaVinci Code, Debt, and A Book Announcement

I’m working on a book – Got Debt? Essays from the Front Lines of America’s Debt Epidemic. I’ll be writing (and talking) a lot more about it over the coming weeks but I’m excited and hope you will be too.

For now, here’s a little bit from the introduction:

films.01If you read Dan Brown’s The DaVinci Code – or survived through the movie – you may remember the hero, Robert Langdon, talking about the mysterious Knights Templar, driven underground by King Philip IV of France in the early 1300s.

They knew great secrets’ and were persecuted, hunted down, thought wiped out but live on, unnoticed, influencing great events … you know the spiel.

Under Brown’s layers of conspiracy theories is a historical truth that should speak loudly to millions of us today. In reality, the Templars did indeed very much exist. They were fabulously wealthy, the result of certain extracurricular activities during the Crusades.

They were entrenched in France when Philip philippe_le_bel-1bcd9b4ascended the throne. It being France and the Middle Ages, Philip spent the majority of his time fighting the English. When peace broke out with them, he turned his attention to the Flemings.

Wars are, and have always been, expensive. Philip borrowed heavily from the Templars, probably far more than he or the kingdom could ever hope to repay.

He certainly could not maintain his wars or refill his empty coffers while repaying the Templars. For our purposes, think of being short of cash in the middle of February and needing to choose between paying the oil bill or CapitalOne.

Philip faced that same quandary, solved his fiscal quandary on Friday, October 13, 1307 by having the entire order of the Templars simultaneously arrested.End of the Templars, Philip burned his notes to them and…. well, the Templars as well. Then he confiscated all their holdings.
In one fell swoop Philip wiped out his debt and filed his coffers.

Philip burning his I.O.U.s
Philip burning his I.O.U.s

It’s good to be king.

While most of us can only dream of taking care of our debt with such . . . finality . . . it’s important to take a few lessons from this.First, debt, credit, debtors, creditors, collections, and defaults have been around for a very long time. Second, everyone – you, me, kings, queens, dictators, presidents, Founding Fathers – have debt. Lastly, we have options in how we handle that debt – not Philip’s options – but options still, and more than most people are aware they have.

Don’t be a Number

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Well, actually, I might just be able to …

In the areas of law I practice in (mostly foreclosure defense and credit card collection defense), the bulk of the cases are prosecuted by only a few law firms.

The majority of cases brought against Connecticut residents are brought by just a handful of firms and lawyers.

That’s all these lawyers do and they are very efficient and very quick at foreclosing on homes.  By my estimate, just two Connecticut firms handle about 9,000 foreclosure matters, employing a handful of lawyers.

By necessity, those firms operate by the numbers – A2nBWtzqjy-2a homeowner isn’t a person, just a number, a file, a target, a quota to fill. Homeowners who try to go it alone, use the Internet for help, or just plain wing it are shocked to find that their cases don’t receive personal attention.

Homeowners are constantly surprised to find that the person on the ‘other side’ doesn’t seem to care about helping them. I have to explain, over and over, that in defiance of logic and common sense, the lenders and their attorneys don’t treat individual homeowners like individuals.  There is no “treatment” at all because computers make the decisions and while sometimes a human interprets the data they are still a slave to the stats.  So when a homeowner goes it alone, the homeowner pretty much ends up hitting a brick wall more often than not.

I do a lot of this, I’ve become as quick and efficient at defending foreclosure matters as they have in disposing cases.  I have pretty much seen it all when it comes to homeowner hardship, procedural and computer error and dealing with the humans on the other end of those computers.  I, too, spend all day every day honing my foreclosure skills, but not for the banks.  I only represent homeowners.

So what do you get when you put one lawyer skilled at foreclosing and one lawyer skilled at defending a foreclosure in a court room or a mediation together?  You get a shot at saving your home.  You get a shot at having all the information so the process makes sense.  You get a voice.  And you get a fair fight.

It may work in fiction . . .

anatomy of a murder still 3A staple of the ‘legal thriller’ – both movies and television, from Anatomy of a Murder through The Lincoln Lawyer, and The Good Wife and everything in between is the client who doesn’t exactly give all the facts to her attorney.

That’s fiction and it’s fun and without that plot mechanism a great many movies and series just do not work. The totally honest, up front client is not the stuff that makes a good legal thriller.

I , however, deal strictly in reality and here it is:

Facts are facts.  Some are good, some are bad.  I talk to a lot of people about the facts of their situation.  Most are straightforward.  They balance the good with the bad.

I can tell when someone is giving me the good facts good-wife-season-6-spoilers-will-lemond-bishop-kill-cary-episode-2-trust-issueswhile trying to ‘spin’ the bad.  They talk to me like they are making their best argument to a judge.  I get non-answers to straightforward questions.

When I notice this I explain that regardless of the case, the injustice or justice of it, the easily winnable or not-a-chance case and everything else, there are always good and bad facts.  Always.

I’ve been talking with a homeowner on and off since late March about a foreclosure situation.  Despite several phone conversations and email exchanges, the homeowner never mentioned the home was a condo and in addition to the mortgage company The-Lincoln-Lawyer-Grouponforeclosing, the condo association was also foreclosing.  That’s a very important fact.   I’m not sure why the homeowner did not reveal this to me. It isn’t the kind of bad fact that a homeowner doesn’t want to admit to (like falling behind on a mortgage because of a gambling problem).  By the time he told me this, it was almost too late.

I’m OK with bad facts.  There are always bad facts.  I can handle bad facts.  There was that time that I learned IN THE MIDDLE OF A DEPOSITION that my client had been arrested for cocaine possession.  That’s a bad fact.  But I have a great poker face, and I can handle it, I’d just really like to eliminate the surprise factor.

No client has all good facts.  Those clients don’t exist.  Don’t hesitate to recognize what might be your bad facts and trust your lawyer with them.   It’s how you and your lawyer handle your bad facts that will save you.

After all, neither of you want to end up in a legal thriller.