En Excerpt from Solo Out of Law School

Michael Brennan • February 2, 2018

"Turn Downsides Upside Down"

There are endless reasons not to start a law firm. Think about it.


After all, you have no experience, no paying clients, stiff competition from alternative legal service providers with massive marketing budgets and worst of all, a very real fear that people may actually know that you feel like you don't have the slightest clue what you are doing.


Most people would be hard-pressed to name another profession where an otherwise bright individual (you did make it through law school, sit for and pass the bar exam, after all) would look at the current state of his or her industry, see the bleak outlook, and move forward anyways.


So how are you going to use those challenges to your benefit?


As an attorney, you have acquired the ability to think about practically anything from multiple perspectives. In the field of law, two sides can look at the same set of accepted facts and draw two entirely different conclusions based on perspective. I'm a big fan of the television show, Dateline. Dateline has become mostly an investigative and true crime show typically showcasing hour long real life murder mysteries. One of the most frequent themes seen during an episode is police officers confronting a suspected killer (usually an ex-lover or spouse) with news that their loved one has been murdered. Often, the reaction by the unsuspecting interviewee is central to the question of guilt at a subsequent trial. Prosecutors and police very often point to subdued reactions as an indicator of guilt, the logic being that anyone who finds out that someone they care about has been killed will react in an outburst of forlorn emotion. Of course, those that react with such raucousness are also pinned as murders who must just be "putting on an act." Meanwhile, the defense views such reactions very differently. Perhaps the lover was so overcome with shock that the surreal news produced no emotional response. Or, naturally, for those that do react with an outburst of tears and desperate screams are reacting as one should react to hearing such life-altering news.


The point is that the undeniable facts of the situation can be interpreted in two entirely different ways depending on the lens through which they are viewed. As an attorney, you can probably see both sides of that coin. After all, it's your job to take the facts of any situation and use them to your client's advantage.


The ability to take that skill and apply it to building your business is going to be essential to your success. Just like a good prosecutor or defense attorney faced with a client's taped reaction in a murder investigation, you need to take the facts of your situation—whether real or perceived—and make them work to your benefit.


For example, maybe you’re afraid that a potential client, when facing a choice between you—a newly minted attorney without much more than some mock trial experience and a summer internship at the District Attorney's office under your belt—and Joe Lawyer—who has practiced civil litigation for 25 years and successfully negotiated dozens of cases to six and seven-figure settlements—would never realistically chose you over him. But, that lack of experience does not have to be a negative. Instead, maybe it can mean that, unlike Mr. Lawyer, you have no preconceived notions of what the process should be. A settlement may not be in your client's best interests. Mr. Lawyer may know that he can take a quick paycheck by getting out early because he has handled a similar case before. To him, it’s an open and close case.


Meanwhile, because of your lack of experience handling that type of case, you know that you are going to have to spend countless hours poring over statutes and case law to build a working knowledge of the issues involved. During your research, say that you find a rarely seen exception to the law that means your client will easily win on the merits if the case goes to trial, meaning a much higher payout for both you and your client.


The very lack of experience that you were viewing as a negative has all of a sudden turned into one of your strongest traits. Not knowing the law led you to uncover a way for your client to win big. It led you to see the case as a unique set of facts and circumstances while custom fitting a solution to those facts and circumstances.


Your lack of experience isn’t a weakness. It’s a strength. It enables you to represent clients without any preconceived notions of process or outcome.


What about the lack of paying clients? Clearly, your business is doomed to fail if you don't have a steady flow of new business coming in. And, in the beginning, taking on a new client is probably going to feel less probable than winning the lottery. Trust me, I've been there, and it gets better in a hurry. But until it does cash flow will be limited for a time as you get yourself established.


Unfortunate? Sure. But, look at it through a different lens. Without much technical legal work to do, you have ample time to focus on business development. You have the ability to spend your valuable and limited time perfecting your product and your delivery. What makes you stand out from the crowd? What's your angle? Akin to developing a prototype of a new invention, which can be tested and tweaked until it is the best it can be and ready for sale, you are going to need time to test and perfect your product. Honing what you have to offer future clients will give you the foundation you are going to need to survive long-term.


It’s not a negative, it’s a positive.


Lack of paying clients merely frees your schedule so that you can focus on developing a product that paying clients will want to use and recommend.


What about the lack of a steady stream of income? While it obviously may seem bad, try looking at it differently. Right now your funds are limited which means that you're going to need to maximize every dollar you spend, whether on advertising, software, networking or even paying for your personal needs. You simply don’t have the luxury of wasting a single cent. That’s going to force you to think about what expenses are essential to the operation of your firm. It's going to force you to cut out everything that is unnecessary to running a successful business.


Lack of money enables you to stay lean and able to adapt to changing market conditions.


What about all that competition? After all, you're not the only one out there practicing in your area of legal specialty. Stiff competition in a crowded industry may mean fighting harder for each client. But, it also means that there are countless other lawyers and firms from which to learn. Look at the firms that have been around for 100 years. What do they do that is so effective? What about the lawyers that have weathered the storm and figured out how to make it five or ten years on their own? How did they find their footing and how do they distinguish themselves from the masses? There is competition in every industry. Embrace it and make it work for you.


Lack of a client base, lack of income, and stiff competition can all potentially unhinge your fragile business before it gets off the ground by stomping you down mentally. But, viewed through a different lens, they can create an ideal environment in which to build a new business. It's all about perspective, and by turning negatives into positives, you are going to give yourself and your business more than a fighting chance to succeed.


To read more, check out Solo out of Law School | A "How-Can" Guide to Starting a Law Firm as a New Attorney

Solo out of School is a book for both law students thinking about a solo career and attorneys looking to open their own firms. It's about mindset, motivation, and viewing your solo career with perspective that allows you to see yourself and your work as something you can be proud of. It's not a "how to" guide to starting a law practice. It doesn't say anything about the tools you'll need or whether to open a brick and mortar office. Rather, it's a "how can" guide to developing the mental toughness and right mindset to succeed as a solo attorney. It's a collection of little lessons and simple reminders for when your choice to go solo in the first place come into doubt. Solo out of School is about finding the strength and motivation to keep pushing. By embracing the words on its pages, my hope is that you'll realize, no matter how much you doubt yourself or second­guess your actions, you are good enough to be successful as your own boss.

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[WATCH] Illinois Just Made it Easier Than Ever to Make a Power of Attorney

By Michael Brennan • September 9, 2021

Illinois Just Made It Easier Than Ever to Make a Power of Attorney

By Michael Brennan • September 2, 2021
A power of attorney for health care enables an individual to appoint a trusted agent to make medical decisions on his or her behalf if the individual is unable or unwilling to do so for themselves. For example, if a situation arises where you are in an accident and need emergency medical care, doctors will look to a trusted individual to make decisions on your behalf. Typically, this is family members, and technically, most state laws set an order of precedence on who doctors should turn to in the absence of any specific (and legally binding) instructions from the patient. However, the most ideal situation is one in which doctors rely on the instructions the patient has detailed in a valid power of attorney. Powers of attorney for health care do not have many specific requirements for validity. But, they do need to be signed by the patient and at least one witness (this varies by state). Often, someone may decide that they need a health care power of attorney in a pinch. For example, an older parent may be going in for surgery and want to cover their bases if something goes wrong. They may decide the day of the surgery that they would like to name an adult child as their health care decision-maker if something happens, so that child cannot serve as the witness. Typically, an estate planning attorney could witness the document, but that may mean scrambling at the last minute for an appointment or coordinating a meeting quickly on the way to the hospital. Not ideal. Now, however, Illinois has amended the Illinois Power of Attorney Act to permit electronic signatures. The Act states that: “The signature and execution requirements set forth in this Article are satisfied by: (i) written signatures or initials; or (ii) electronic signatures or computer-generated signature codes .” The Illinois Electronic Wills and Remote Witnesses Act permits those witnesses not only to sign electronically, but also to sign remotely. So, instead of a mad last-minute scramble to sign and witness an 11th hour power of attorney, one can be e-signed online through video conferencing with the principal and estate planning attorney quickly linking up on zoom from the comfort of their home, office, or even the hospital bed, with much more simplicity and convenience. The Power of Attorney Act was further amended to permit powers of attorney for health care to be in electronic format. So, it is no longer a requirement to dig the paper hard copy out of the basement filing cabinet and remember to bring it to the hospital. Instead, an electronic copy can simply be sent to the hospital through its patient portal, once that functionality is set up by the health care provider at least. The power of attorney can now easily form a seamless part of a health care record, neatly kept in an electronic medical file. The pandemic of 2020-2021 forced institutions to make things more efficient and reflective of the technologically-centric world we now live in. That is not more evident in many places as it is the area of law. And, few practicing attorneys would tell you that’s a bad thing.

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By Michael Brennan • August 5, 2021
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Illinois' Electronic Wills and Remote Witnesses Act is a Game Changer

By Michael Brennan • July 30, 2021
Preparing a last will and testament has always required the inclusion of original signatures of both the person making the will and witnesses. Understandably, coordinating the signing of the will could pose some administrative challenges, especially for small law firms and solo practitioners—not to mention the many people who elect to draft a will without an attorney’s help—who may not have a crowded office full of willing witnesses. Along with wills, estate plans typically include powers of attorney for finances and health care decision making as well. Those documents also require original signatures from their creators, witnesses, and notaries. Predictably, COVID-19 and the resulting government shutdowns of businesses and encouragement of social distancing and remote work complicated the task of signing and witnessing these important estate documents (Notaries are also now permitted to act remotely under a separate but related piece of legislation). Luckily, in many states, temporary orders permitted the remote execution of many documents, and a framework for conducting remote document signings began to take form. On June 26, 2021, Illinois adopted the Electronic Wills and Remote Witnesses Act. Plainly, the Act is a generational game changer for estate planning. Gone are the days of scheduling a formal office appointment with your attorney to sign estate planning documents as the law office staff witnesses and notarizes those documents on the spot. Now, under the EWRWA, the need for the conference table signing is gone. Wills, powers or attorney, and other important estate documents can be validly signed and witnessed remotely through audio-video communications. More so, “electronic wills”—those not physically printed on paper—are now an acceptable form of will in Illinois that can be probated just as paper wills have for decades. Some of the highlights of the new law are below. Electronic Copies of wills are now valid. Electronic Wills are now an option. The new law defines an electronic will as simply “a will that is created and maintained as a tamper-evident electronic record.” What is “tamper-evident” exactly? Well, the statute defines it as a “feature of an electronic record by which any change to the electronic record is displayed.” So, popular document signature software like Docusign and Hellosign would do the trick. Individuals and Witnesses can now sign on multiple signature pages with one master document being compiled later on. If a platform like Docusign is not used to create and sign an electronic will, there is now an option to use multiple signature pages for the testator and witnesses. In practice, this enables a testator to sign a will while the witnesses watch over audio-video means, like Zoom. They can then each sign the signature page sitting with them at their physical location. The testator and witnesses can then send the originals to a central location (likely the estate planning attorney) to be compiled into one master document. Previously, this was impermissible, as the document would have had to have been signed in the conscious presence of each other. The Electronic Wills and Remote Witnesses Act redefines “presence” to expressly include, “being in a different physical location from another person, but able, using audio-video communication, to know the person is signing a document in real time.” Witnesses can witness signings (and sign) remotely through video-conferencing. As mentioned, witnesses to a will previously had to be physically present with the testator. Under the new law, witnesses can now be remote. If an electronic will is prepared for signatures, the witnesses can simply sign the electronic will after watching the testator sign. If a paper copy is being used, then the witnesses can watch the testator sign his or her own paper copy, and then sign a separate signature page in their remote location. For paper copies, the witnesses and testator must physically compile all the signature pages within 10 days. The person appointed by the testator to compile all the signature pages must state that the signature pages were attached within 10 business days of signing and that the pages were attached to the testator’s complete and correct will for the will t be admitted to probate. So, best practice is to attach those statements to the will at the time of its signing or the time at which the master document is compiled. Wills can be signed electronically. Electronic signatures have previously not been permissible forms of signing a will. Now, however, the new Act changes everything. Testators and witnesses alike can not e-sign wills. To do so validly, the will must designate Illinois as the state of its execution, be signed by the testator or by some person at the testator’s direction and in their presence, and be attested to in the presence of the testator by two or more credible witnesses who are located in the United States at the time of execution. The change of the “presence” requirement is revolutionary, as “presence” now includes being in a different physical location from another person, but able to know the person is signing a document in real time using audio-video communication. Additional Documents, like Powers of Attorney can now be signed virtually Wills are not the only estate planning documents that require witness signatures. Powers of attorney and living wills are just as essential to creating a comprehensive estate plan. Illinois’ Electronic Wills and Remote Witnesses Act also authorizes the witnessing of any document other than a will using audio-video communication. The signatures of the principal and witnesses may be on the same or different pages provided the master document is compiled within 10 business days. While COVID-19 forced the legal industry to adjust, it appears that some of those adjustments were just what was needed to bring estate planning into the 21st century.

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