Alternative Billing Gains Traction for Solos, Small Firms
March 29th, 2010
Posted Mar 27, 2010 2:39 PM CDT
By Rachel M. Zahorsky
While contingent and fixed-fee models aren’t new, a fresh look at alternative billing may help established small-firm attorneys and solos distinguish themselves from the surge of laid-off lawyers and unemployed law graduates now wading into solo practice.
Alternative fees are very useful marketing tools for consumer clients who like to shop around for deals, Oklahoma-based lawyer and blogger Jim Calloway said Saturday at an ABA Techshow program he co-presented on alternative billing.
“When everyone is doing it on an hourly basis, and I’m doing it for X, that sends a powerful message,” said Calloway, who authors Jim Calloway’s Law Practice Tips Blog and co-produces the podcast The Digital Edge: Lawyers and Technology.
Solo and small-firm lawyers may also find alternative billing models are easier for clients to understand, especially if they aren’t sophisticated legal service buyers, said Natalie Kelly, director of the State Bar of Georgia’s law practice management program.
“I’m from an extremely small town, so hourly billing requires a lot of client education,” Kelly said of clients who may balk at a $300 hourly rate. “Sometimes lawyers offer flat or fixed fees because it makes better sense to the client.”
The predictability of alternative arrangements is more aligned with client expectations from other consumer-based services, which fosters better relationships with clients as well as increased collection rates, especially when clients aren’t shocked by a large legal bill at the close of a matter, Kelly said.
Calloway suggested lawyers slowly delve into alternative arrangements using “bite-sized” steps. For example, a corporate formation package could include minutes for the first year, two hours of phone questions and an advisory letter on running a new business bundled together for a set fee.
“Clients get predictability and free calls to a lawyer, and you get one year to prove how valuable you are,” Calloway said.
Lawyers should also re-evaluate case management to be sure work is billed based on the value provided to clients rather than the expertise of the person completing it. Having a lawyer file a matter versus a law clerk adds zero value to the client and should be billed appropriately.
Closed case files are also valuable resources and should be mined and integrated with knowledge management systems that can improve efficiency and quickly refresh recollections of similar work completed in past cases.
Finally, if a firm rewards attorneys for high billable hours, focus should shift to dollars billed and received, not production alone.
Defending Foreclosures In Oklahoma
February 22nd, 2010
I have received many asset protection inquiries in the past year from people concerned about a mortgage foreclosure on one or more of their properties. Most people who contact me are interested in asset protection from deficiency judgments because Oklahoma is a deficiency state. One of the issues I discuss with my clients facing a foreclosure and a potential deficiency claim is whether the homeowner should defend the foreclosure even though the homeowner is unable, or unwilling, to continue making mortgage payments. There are advantages and disadvantages to foreclosure defense, and the decision to defend or default depends on the individual debtor’s situation and his assets.
In order to stay up on developments in the law of foreclosure defense, I recently attended a legal seminar called “Defending Foreclosures in Oklahoma” which was jointly sponsored by the Oklahoma Bar Association and Legal Aid Services of Oklahoma. The featured speaker was Florida legal aid attorney April Charney. Attorneys that practice in the real estate area know that April is at the forefront of the battle against foreclosures. She is a nationally recognized expert that helps Florida homeowners in particular, and like-minded attorneys in general. As a condition of attending the seminar, I agreed to donate at least twenty hours of related legal work to Legal Aid Services of Oklahoma.
I left April’s seminar better equipped to advise and help Eastern Oklahoma area homeowners present legal defenses to foreclosure actions even where the loan is in default. Points to consider:
While you are litigating the foreclosure case, you are not required to make your normal monthly mortgage payments. The legal process will afford you time to reinstate the mortgage, sell your home, file a bankruptcy or move out. You may be able to force the lender to completely rewrite the terms of your note and mortgage, enabling you to keep your home.
This may sound too good to be true, but you may actually have valuable defenses and counterclaims against your mortgage company that could actually prevent foreclosure and even require your lender to pay you damages. Across the country, judges are punishing mortgage companies for incomplete record keeping and for violations of the Truth In Lending Act. You may be able to allege valid defenses including fraud and Truth In Lending Act violations.
Are you aware that your mortgage company is probably not the same company that actually loaned you the money to buy or refinance your home? How do you know if the mortgage company suing you has been properly assigned your note and mortgage? Your mortgage company may have failed to properly assign the note and mortgage before initiating the foreclosure. Does your foreclosure complaint even have copies of the note, mortgage and purported assignment attached?
Most likely, these documents are not attached, especially the assignments, and may not even be in the possession of your mortgage company. Your mortgage company may be attempting to substitute your original note and/or mortgage with a purported copy. This is called a “Count to Establish Lost Documents.” There are strict legal requirements to establish a lost note or mortgage, and your mortgage company may be unable to meet the requirements if challenged.
If your current mortgage company is not your original lender, it probably has never read your mortgage. Your mortgage may require that the plaintiff accelerate (i.e. demand) the entire balance of the note. Your mortgage company may have failed to do that, which may entitle you the opportunity to cure the mortgage by paying the reinstatement amount. It is also common for mortgage companies to inflate the balance due on the mortgage by charging homeowners junk fees, such as Broker Price Opinions (BPO), property inspections and other “property preservation expenses.”
So, essentially, your mortgage company may have filed an improper foreclosure lawsuit, but your time is limited. You have or will be served a copy of the foreclosure complaint by a process server. You typically have only 20 days to respond to the mortgage company’s complaint, so you need to see an attorney immediately if you wish to defend against the foreclosure. If you are beyond the twenty days, there are still defenses that can be raised. It may even be possible to vacate a foreclosure judgment and sheriff’s sale.
If you are wondering why you have not heard more about foreclosure defense, consider April Charney’s words: “Lawyers don’t go to law school to fight foreclosures. It’s a special skill set. Even most judges aren’t familiar enough with this because so few homeowners go into court.”
I’m out of the office the rest of this week to volunteer with Extreme Makeover Home Edition!
January 28th, 2010
On or About the Night Immediately Preceding Christmas
December 22nd, 2009
WHEREAS, on or about the night immediately preceding Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to, a mouse.
A variety of foot apparel, e.g., stockings, socks, etc., had been affixed by and/or around the fireplace mantle in said house, in a diligent and workmanlike manner, in the hope, and/or belief, that St. Nick a/k/a/ St. Nicholas d/b/a/ Santa Claus (hereinafter “Claus”) would arrive forthwith. The minor residents, i.e., children, of the aforementioned House were situated on or about their individual beds and were engaged in sleep-induced hallucinations, i.e., dreams, wherein visions of confectionary treats including, but not limited to, candies, nuts, and/or sugar plums, did dance, cavort, frolic, and otherwise appear in said dreams.
Whereupon I (hereinafter “the party of the first part”), being the joint-owner in fee simple of the House with Mamma (hereinafter “the party of the second part”), and the party of the second part had retired for a sustained period of sleep and/or rest. At such time, both parties were clad in various forms of sleepwear and headgear, e.g., night gowns, kerchiefs and/or caps.
Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain aural disruption of unknown origin, nature, cause or circumstance, that did interfere with the parties’ quiet enjoyment of said property, so much so that the party of the first part did precipitously proceed to a nearby window of said House to investigate the cause of said disruption and disturbance.
At that time, the party of the first part did observe, with some degree of confusion, wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled, propelled and/or drawn by approximately eight (8) diminutive reindeer. The driver of the Vehicle appeared to be, and in fact was, the previously referenced Claus.
Said Claus did then provide specific direction, instruction and/or guidance to the approximately eight (8) reindeer and, thus, expressly identified the antlered co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen (“hereinafter “the Deer”). Upon information subsequently received, it is believed and, therefore, further averred that an additional co-conspirator named “Rudolph” may have been involved.
The party of the first part witnessed Claus and the Deer as they intentionally, willfully, and with reckless disregard for the safety of the occupants of the House and other neighborhood dwellings, did trespass upon the roofs of several dwellings located adjacent to and in the vicinity of the House, and it was noted that the Vehicle was heavily laden with merchandise, packages, toys, and other items of unknown origin or nature. Suddenly, and without invitation, permission or license, either express or implied, the Vehicle arrived at the House, and Claus did break, enter, and defiantly trespass upon said House via ingress through and down the chimney.
Said Claus was clad in a red, fur-trimmed suit, which was partially discolorured by charred residue from the interior of the chimney, and he carried a large sack with which he conveyed, transported or, otherwise, asported or carried a portion of the aforementioned merchandise, packages, toys, and other unknown items. He lit and began smoking what appeared to be tobacco, or some unknown substance, in a small pipe in blatant, open and notorious violation of local ordinances and public health regulations and, possibly, The Controlled Substance, Drug, Device and Cosmetic Act.
Claus did not speak, but immediately began to fill the afore-mentioned pre-hung stockings of the minor children with toys, and other small objects, however, said items may or may not constitute “gifts” as that term is defined in the applicable provisions of the U.S. Tax Code.
Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts” to further aid and abet the alleged nefarious enterprise. Claus then immediately fled and/or departed for an unknown destination, apparently to avoid apprehension. However, prior to said departure of the Vehicle, Deer, and Claus from the House, the party of the first part did hear Claus state, exclaim and/or spontaneously utter: “Merry Christmas to All, and to All a Good Night!”, or words to that effect.
Thanks to Ralph Ostermueller of fvginternational.com for this legalese.
Successful Defense of Residential Tenant
October 22nd, 2009
At the end of a landlord/tenant relationship disputes can easily lead to litigation. This week I was pleased to successfully defend a Tulsa couple that were sued by their landlord for rent and late fees far in excess of what was actually owed by the tenants. It was a Small Claims case, so the most the couple could lose was $6,000.00, but this was over twice what the couple really owed!
Fortunately, the judge saw the facts in a light favorable to my clients, and the judgment ($2,975.00) was for the amount that my clients had already agreed was owed. Even better, this amount was almost completely covered by their security deposit. It is great to have satisfied clients, even if the case is not that big. I know that it was a big case from my clients’ perspective.
Legal Rebels – Manifesto
August 26th, 2009
I am a proud member of America’s essential profession. Without lawyers and the rule of law, a free, fair and open society is not sustainable.
I recognize that the legal profession’s traditions – the world’s most respected legal education system, most successful law firms and fairest court system – were once radical innovations.
In this time of economic crisis, I am committed to improving those institutions and creating innovation in the practice of law. I will question and, when appropriate, change the status quo. And I will use technology to serve my clients and society.
I’ll help remake the profession I hold dear so it can continue to deliver on America’s promise.
I’m an innovator. A maverick. A pathfinder.
I am a Legal Rebel.
Do Homeowners Really Need To Buy An Owner’s Policy Of Title Insurance?
August 15th, 2009
Title insurance is an absolute necessity in every real estate conveyance transaction. The problem is that most home buyers don’t know what title insurance is or what it covers, and only see it for the first time on the closing settlement statement.
So, what Is Title Insurance?
Title insurance is a policy of insurance protecting homeowners and lenders from loss in the event that certain covered problems develop regarding the rights to ownership of the
real estate purchased. While title examiners will search and certify the title to real estate before closing, there can be hidden title defects that even a careful title search will not reveal. In addition to protection from financial loss, title insurance pays the cost of defending against any covered claim.
There are two types of title insurance, lender’s and owner’s policies. If you have a mortage, a lender’s policy is required and will be a part of your closing costs. However, owner’s policies are optional and cost extra. The lender’s insurance protects the lender up to the amount of the mortgage, but it doesn’t protect your equity in the property. For that you need an owner’s title policy for the full value of the home.
What Does An Owner’s Policy Of Title Insurance Cover?
Owner’s Title Insurance will cover the cost to remove clouds on your title from such things as un-discharged mortgages, and the claims of unknown or missing heirs. An owner’s policy also covers these types of title defects: forged deeds or impersonations, incorrect legal or boundary descriptions, and recording errors. There is also extended coverage available for: building permit violations, adverse possession or prescriptive easements, building encroachments, incorrect surveys, pre-existing violations of subdivision, zoning laws, and restrictive covenants.
Is Title Insurance Worth The Cost?
Title insurance is based on the purchase price of your home. The additional cost above the cost of the lender’s policy is relatively small. Typicaly, the premium is several hundred dollars. Title insurance is a good deal because it continues to provide coverage for as long as you or your heirs own the property. Passing up on an owner’s policy of title insurance because the risk of a title defect is minimal is a bad idea. If you don’t believe me, consider this real title defect horror story.
Imagine building your dream home, then finding out after closing that your builder built the house on the wrong lot! Worse, the house is on a lot that the builder does not own, so he can’t simply swap lots with you. This happened to a new client of mine from Tulsa. A builder bought a lot from a developer of a sub-division, but mistakenly built a house on an adjacent lot. The builder then compounded his error by selling the house on the lot he did not own to my client, all the while representing that the house was on the lot the builder did own. My client moved in, but later discovered that her house is not on the lot to which she received title. Instead, the house is on the adjacent lot that is still owned by the developer. Now I have the job of trying to solve this problem.
To complicate matters, Oklahoma law (60 O.S. §334) provides: “When a person affixes his property to the land of another without an agreement permitting him to remove it, the thing affixed belongs to the owner of the land….” Oklahoma case law is in accord. See, Mid-State Homes, Inc. v. Martin. It follows then that the developer may not be interested in simply trading his significantly improved lot for the vacant one he originally sold to the builder. The title insurance company may well have to provide the funds to buy the improved lot from the developer, and thereby protect the interests of its insured. If so, the title insurance policy would be well worth the cost.
At this point, my client does not have title to the house she paid for, and her lender’s home mortgage is only secured by the adjacent vacant lot. This kind of mess is the sort of fact pattern found on law school and state bar exams. It is an interesting case for me, and I expect that I will have to sue the builder to recind the sale, and file a lis pendens against the developer’s improved lot. Sometimes litigation is the best way to get all the interested parties to the table to obtain a just resolution of the matter.
Happy fourth of July!
July 1st, 2009
Huddleston Law Offices remembers all those who fought for our independence. Have fun with your families and, if you’re not in the USA, back to work!
NEWS from U.S. Consumer Product Safety Commission
Office of Information and Public Affairs Washington, DC 20207
FOR IMMEDIATE RELEASE
Release # 09-258
CPSC Announces Drop in Fireworks-Related Injuries; Consumers Still Urged To Celebrate Safe This July 4th CPSC Introduces the New Face of Safety – Chairman Inez Tenenbaum
WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission’s new Chairman, Inez Tenenbaum, urged families today to put safety first during the Fourth of July holiday and celebrate with caution when it comes to fireworks. The latest report (PDF) from CPSC indicates that there were reports of seven fireworks-related deaths and an estimated 7,000 hospital emergency room treated injuries in 2008. In 2007, CPSC had reports of eleven deaths and an estimated 9,800 injuries.
Chairman Tenenbaum, in a press event and fireworks demonstration on the National Mall, reminded consumers that even with fewer reported deaths and injuries in 2008, the one-month period surrounding the Fourth of July is still the most dangerous time. In fact, 70 percent of all fireworks-related injuries occurred between June 20 and July 20.
“CPSC wants to keep reducing fireworks-related deaths and injuries in 2009,” said Chairman Tenenbaum. “Children should never play with or light fireworks, and adults should watch our demonstrations to see how powerful and dangerous illegal fireworks can be.”
Chairman Tenenbaum was joined on the National Mall by Tony West, Assistant Attorney General for the Civil Division of the Department of Justice; Dan Baldwin, Assistant Commissioner for the Office of Trade within Customs and Border Protection (CBP); and Joseph Riehl, Acting Assistant Director of the Office of Enforcement Programs and Services for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
CPSC continues to work to keep American families safe by educating the public about the risk of injury associated with fireworks, enforcing fireworks regulations, and prosecuting dealers and distributors who manufacture and sell illegal explosives.
As a part of its fireworks enforcement program, CPSC actively works with ATF to investigate roadside stands, warehouses and retail stores that sell professional grade explosives to consumers, and homes that serve as havens for the manufacture of dangerous fireworks devices. These investigations have resulted in dozens of successful prosecutions by the Justice Department’s Office of Consumer Litigation and U.S. Attorney offices across the country.
On June 19, 2009, a federal judge in the Eastern District of New York sentenced Jon Cea and Vincent Cea to 24 months and 36 months in federal prison, respectively, after they pleaded guilty to conspiracy to engage in the business of dealing in explosive materials, involving the illegal sale of more than 1,000 pounds of explosives. The defendants and their customers were not licensed, yet they purchased and sold professional display fireworks. CPSC and the Justice Department worked in partnership on this case.
At the ports, CPSC is working alongside CBP to ensure shipments are in compliance with the federal regulations. With CBP assistance, last year CPSC staff found through sampling and testing of fireworks shipments that forty-nine percent of these shipments contained illegal fireworks.
While the federal government remains committed to stopping the manufacture and sale of illegal fireworks, CPSC encourages consumers who decide to purchase legal fireworks to:
* Never allow young children to play with or ignite fireworks.
* Make sure fireworks are legal in your area before buying or using them.
* Avoid buying fireworks that come in brown paper packaging, as this can often be a sign that the fireworks were made for professional displays and could pose a danger to consumers.
* Adults should always supervise fireworks activities. Parents often don’t realize that there are many injuries from sparklers to children under five. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals.
* Never have any portion of your body directly over a fireworks device when lighting the fuse. Move back a safe distance immediately after lighting.
* Never try to re-light or pick up fireworks that have not fully functioned.
* Never point or throw fireworks at another person.
* Keep a bucket of water or a garden hose handy in case of fire or other mishap.
* Light one item at a time, then move back quickly.
* Never carry fireworks in a pocket or shoot them off in metal or glass containers.
* After fireworks fully complete their functioning, douse the spent device with plenty of water from a bucket or hose before discarding to prevent a trash fire.
To see this release on CPSC’s web site, please go to: http://www.cpsc.gov/cpscpub/prerel/prhtml09/09258.html
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CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell us about it: https://www.cpsc.gov/cgibin/incident.aspx
The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children. The CPSC’s work to ensure the safety of consumer products – such as toys, cribs, power tools, cigarette lighters, and household chemicals – contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years.
To report a dangerous product or a product-related injury, call CPSC’s hotline at (800) 638-2772 or CPSC’s teletypewriter at (800) 638-8270. To join a CPSC email subscription list, please go to www.cpsc.gov/cpsclist.aspx. Consumers can obtain this release and recall information at CPSC’s Web site at www.cpsc.gov.
Huddleston Law Offices site specially formatted for iPhone, Blackberry, PDAs.
June 9th, 2009
People are depending more and more on their cell phones and PDAs to be able to search on the Web, with new search products for such instruments being launched left and right. Not surprisingly, websites often are playing catch-up.
Huddleston Law Offices knows how important it is to ensure that its website content is optimized for mobile search tools. There are currently over 200 million wireless subscribers who are using the mobile Web while on the run. Our site content addresses the needs of mobile users, and considers what is important to users in the mobile context.
Huddleston Law Offices mobile site uses the following best practices:
- Don’t use frames or Flash.
- Give different keyword-rich file names.
- Use optimized heading tags.
- Don’t rely on embedded images, objects or scripts.
- Minimize file size.
- Submit your site to major mobile search engines.
“On the whole, clients and vistors to Huddleston Law Offices mobile website will spend as little time as possible getting to the information that they need.” – Brian Huddleston
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