In this episode we talk to Erin Gerstenzang about her solo criminal defense practice and the challenges of going solo, especially for newer lawyers. We also address the importance of tech competence and the role minimalism plays in Erin’s personal life and law practice.
Erin Gerstenzang is a criminal defense attorney in Atlanta, Georgia. She primarily handles DUI and other drug- and alcohol-related offenses. Erin is also a regular lecturer on ethics and technology, and a practicing minimalist.
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Voiceover: Welcome to the Lawyerist Podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now, here are Sam and Aaron.
Sam Glover: Hi, I’m Sam Glover.
Aaron Street: I’m Aaron Street. This is Episode 117 of the Lawyerist Podcast, part of the Legal Talk Network. Today we’re talking with Erin Gerstenzang about mentoring, going solo, and minimalism.
Sam Glover: Today’s podcast is sponsored by Spotlight Branding, which wants you to know that having a new website designed for your law firm doesn’t have to suck. Spotlight Branding prides itself on great communication, meeting deadlines, and getting results. Text the word “website” to 66866 in order to receive a free website appraisal worksheet.
Aaron Street: Today’s podcast is sponsored by Fresh Books, which is ridiculously easy to use and packed with powerful features. Try it now at freshbooks.com/lawyerist and enter “Lawyerist” in the “How did you hear about us?” section.
Sam Glover: Today’s podcast is sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby.
Aaron Street: Before jumping into our conversation with Erin, I wanted to take a few minutes to talk about Avvo.
Sam Glover: Let’s do it. I’m feeling feisty about this right now.
Aaron Street: I can see you’re all fired up. I am paying to go to their National Lawyernomics Conference in Las Vegas later this week. I’ve never been before and I’m excited to check it out. In anticipation of me going on that trip, I wrote a post on Lawyerist a couple of weeks ago highlighting some threatening letters that lawyers had written to Avvo over the years where they expressed disdain and frustration with Avvo’s business model and tactics. I wrote it as a humorous piece about the crazy things lawyers write when they send take-down notices.
I would say lots of people thought it was fun and funny, and a few people got really upset about us defending this terrible Avvo, which of course was the whole point of the post, which is we actually don’t think Avvo is terrible, and horrible, and evil. We can appreciate that there is always room for improvements in business models, and their business model is not traditional, but we like them and see what their role is in the marketplace. I know the handful of nasty comments on that post got you really fired up.
Sam Glover: Yeah, there’s a couple of pieces to this. Some of the comments are, “I’m appalled at the gleeful tone.” Okay. We were gleeful. We were definitely making fun of what we considered to be bad lawyering.
Aaron Street: Look, I admit I’m really sensitive to that. I don’t want to be in the business of making fun of people. It was meant to be a humorous post. I can appreciate that if my tone was too confrontational or something, that wasn’t what I was going for. I am sensitive to that.
Sam Glover: No, but this is bad lawyering, sending blustering letters full of empty threats, “I will sue you for defamation,” when it’s clearly not defamation. This is bad lawyering and I will criticize that all day long. We’ve criticized it in other posts that everybody loves.
I think that what’s going on here is people have strong feelings about Avvo, not necessarily about the bad lawyering that was on display here. I just want to talk about some of that because there’s a couple of different comments and tweets that we’ve seen on this. Some people just don’t like Avvo. They believe that Avvo is profiting off of their likeness, or that they’re not fair, that the algorithm is too opaque. I get all that stuff. Some people don’t like Avvo because they couldn’t get their score up.
Let’s take some of that stuff apart. First of all, I think we need to recognize that finding a good lawyer is so much harder than we, as lawyers, appreciate. Because we all think, “I can refer people to a good lawyer.” But I can refer people to a good lawyer in a few distinct areas of practice where I have specific knowledge of how that lawyer performs in the court room or in the office. I can’t actually make really competent referrals to more than a very small handful of lawyers.
Aaron Street: It’s weird, right? You and I sit in the middle of the largest community of small firm lawyers in the world where, in theory, we are in touch everyday with thousands of lawyers around the country and yet, maybe at our business model failing, I don’t have a good system for knowing a person in every practice area and every jurisdiction, so I’m regularly stumped when people ask me for referrals. If I don’t know, then how would a normal person know?
Sam Glover: This happens at all levels. I’ve told a few people the story about my uncle, who is a successful dentist in a small, Midwestern city. He got a bad referral, or at least he thinks he did, because somebody referred him to the lawyer in this practice area, and it went sour. Was it a bad referral? I don’t know. Was the lawyer having a bad day? I don’t know. These are things that are really hard to come to. It’s even harder if you’re not the kind of person who normally encounters lawyers in their day-to-day life. My uncle is and he still got a bad referral. It’s really hard to do.
Avvo was about the only company out there addressing this. Go ahead and bring up Martindale-Hubbell and Super Lawyers. But I mean, come on. Those are not the kinds of consumer ratings that are actually helpful when you’re trying to find a DUI lawyer.
Avvo’s trying. It’s an objective rating, which means it’s inherently flawed and it can be gamed sometimes. We have anomalies like the goat lawyer or the fact that Eric Holder is a way worse lawyer than I am on Avvo, which I think is hilarious. I’ll point some of those out, because I think they’re funny, and I have, but it’s an objective rating. It’s not going anywhere. It’s not defamation. You’re a public figure. You don’t have a right to keep your information secret. It’s a reality and I think lawyers need to start coming to an acceptance of that.
Aaron Street: Those are, I think again, unpacking some of the issues, those are two separate issues. One is Avvo’s right to do this is a separate question from the objectivity of their scoring. Their scoring, whether or not it is perfect, is objective. They are not picking and choosing who gets a score. Contrary to a bunch of the hateful comments on the post and in the threatening letters that we were writing about, they aren’t picking and choosing you based on how much money you give them. That isn’t how their business works. Because if they did, it would fail.
Sam Glover: Yeah, actually, one of the commenters objected that “I have no idea how Avvo constructs its rating.” Well, you just need to do a little bit of research, actually, because Avvo is quite forthcoming about what you need to do. Another lawyer was disappointed that he had made all these comments in Avvo’s forums and his rating hadn’t gone up. Well, that’s because that’s the wrong thing to do.
Everything on your profile that affects your rating is public. There’s no secret information you don’t get to see. Fill out your profile and you’ll automatically get a small bump. Add industry recognition. If you’ve gotten any awards from anyone, add those things to your profile. If you’ve published things, especially like a law review article or a treatise in your local bar journal—
Aaron Street: Lawyerist guest posts are worth a lot of Avvo points.
Sam Glover: They might be. I don’t know. Maybe in order to salve us, they’ve done that in the backend. I have no idea.
If you are doing the sorts of things that make people recognize you as a good lawyer in general, which is being active in your local legal community, publishing, speaking, and you make sure that your Avvo profile reflects those things, then get a couple of your colleagues who actually know you to leave a recommendation on your profile. Get two or three clients to give you a five-star rating, if you can. We’ve got posts about how to ask and not be skeezy about it. Those are the kinds of things that will very quickly get you to a nine or a 10.
Which is why I normally say if somebody doesn’t have an empty profile, if they’ve actually tried to claim their profile, and they have a five or a six or a seven, then it probably does actually reflect some level of their quality as a lawyer. If you put a little bit of effort into it, you should be able to get yourself up to an eight, or a nine, or a 10.
Aaron Street: I would push back just a little on that. Not a lot, because I actually mostly respect how-
Sam Glover: What’s your Avvo score, by-the-way?
Aaron Street: A 10.
Sam Glover: Okay.
Aaron Street: In fact, you and I have talked to some of the behind-the-scenes team at Avvo and they’ve indicated to us that the way the algorithm works is that it is not capped and so that each of us actually has a score of 14.2, or something like that. We could reduce points and still—
Sam Glover: I’m sure I’m a 20, yeah.
Aaron Street: Yeah, exactly. I assume Josh King is like a 46. The one thing I would push back about is that most of the factors that go into their score are more about your engagement in the profession than they are about the quality of your legal work. If you can get clients and peers to give you high ratings for the quality of your legal work, that absolutely will give you a high score.
The objective measures they have about, “Put stuff from your resume in here,” are far more about, “Are you teaching CLE? Are you writing law review articles? Are you getting Super Lawyer awards? Are you a committee chair of the bar association?” Those are the kinds of things that are far more about industry engagement than they are about what you’re doing in your office. But those are important things for good lawyers to do. I respect that Avvo gives high scores to those things. If you’re not engaged in the bar association, or CLE, or writing, or speaking, or teaching, than do that.
Sam Glover: If you think about it, if you take Avvo out of this equation, if you are not involved in any of those things, is another lawyer in your community likely to know you well enough to refer somebody to you? Probably not. Maybe. Maybe you’re just best friends, but probably nobody knows you are.
I think Avvo, in a way, is an okay reflection of how lawyers actually judge and rate one another to make referrals. Is it perfect? No. I realize that lawyers hate to be rated, even though they love rating restaurants on Yelp. It’s a reality. It turns out that Avvo has kick-ass SEO. One of your potential clients are highly likely to find your Avvo profile. It is worth your while, not just Avvo’s while, to actually fill that in and take the effort to get your score up.
Aaron Street: As I see it, there are three issues and then I want to close with something. The three issues as I see them, one, are Avvo’s score is objective even if it isn’t perfect. It’s not pay-to-play. It’s not based on whether you’re friends with Avvo. Anyone can work the system the same way as anyone else. Avvo has the right to run this business. They aren’t stealing your data or publishing stuff against your will—
Sam Glover: Or defaming you.
Aaron Street: That you have control over.
Sam Glover: They’re not defaming you, either.
Aaron Street: Stop fighting that fight.
Sam Glover: Yeah.
Aaron Street: Third, if you want to have constructive criticisms of Avvo, or have actual concerns about what they’re doing, don’t be a bad lawyer and write terrible, threatening, empty, garbage-y take-down letters. That is not good.
Sam Glover: You can absolutely criticize what Avvo is doing. You can criticize their business model. But they’re not defaming you and posting exuberant threats about how you’re going to sue them is just not going to work.
Aaron Street: Just to put a bow on this topic, I just want to be really open about disclosing our relationship with Avvo, which is they are not a current Lawyerist advertiser. They have in the past occasionally been an advertiser. They did sponsor and send Dan Lear to attend our second TBD Law Conference. I am going to their conference this week without any money exchanging hands. I am paying for airfare and hotel to go to their conference this week to check it out.
Sam Glover: Oh, you’re getting a free ticket, though, I imagine.
Aaron Street: They are comping me my conference admission, yes.
Sam Glover: There you go. Okay. All that disclosed, let’s talk about something totally different. That was a conversation that I felt like I wanted to have and Aaron was like, “Let me introduce it.”
Aaron Street: For a segue, I have a conversation with Erin about Avvo.
Sam Glover: There you go. Let’s talk to Erin about, not Avvo, but about starting a solo practice, about mentoring, and about minimalism, which wound up being really interesting. Here you go.
Erin Gerstenzang: Hi. My name is Erin Gerstenzang. I am a criminal defense attorney in Atlanta, Georgia.
Sam Glover: Hi, Erin. Thanks for being with us today.
Erin Gerstenzang: Thanks for having me.
Sam Glover: Thanks for pronouncing your name because I find it difficult even though it doesn’t look all that scary.
Erin Gerstenzang: You’re not alone in that. Anytime.
Sam Glover: I’ve got to hit that first T. All right. You’re a criminal defense attorney. Tell us about your practice because I know it’s not just a straight-up, normal defense practice. How and where do you practice and what’s different about it?
Erin Gerstenzang: I practice in Atlanta, Georgia. My practice takes me to courts about an hour to an hour and a half outside of Atlanta, including those within there. Traditionally, I started out focusing only on DUI defense. I did that primarily, just DUI defense, for about eight and a half years. I started expanding my practice when I went solo and opened up more to all kinds of defenses that fall under the umbrella of drug- and alcohol-related offenses, along with traffic offenses, and of course DUI as well.
Sam Glover: I’m curious. I did some criminal defense work at the very beginning of my practice, which I’m not trying to say I know all about it, but I do know that starting out on DUI is a pretty common way. Is that because there’s a lot of business there and there’s plenty to go around? What’s the reason for starting with that?
Erin Gerstenzang: Yeah. There is a lot of business there. It also happens to tend to be an area that is heavily litigated. If you’re drawn to being in the courtroom and wanting to take a lot of cases to trial, it’s a perfect practice area for that because it is something that tends to be, for political reasons and obviously public safety reasons, it tends to be an issue that the prosecutors want to prosecute aggressively.
Sam Glover: Yeah, I understand.
Erin Gerstenzang: It also is a practice area that affects all people from all communities. That tends to also be an area that lends itself to more litigation.
Sam Glover: I know from being in court that criminal defense attorneys live in court. Does that mean that you spend a lot of your days there or are you in your office? How does that end up getting split up?
Erin Gerstenzang: Mostly in Atlanta, we have court in the morning. There are some places that have court in the evenings. But that does mean that on many days, you’ll spend all of, or half of, your day in court. That can be interesting for juggling your office work whenever you finish up in court, which could be 10:00 a.m., noon, 3:00, or 6:30 sometimes.
Sam Glover: I assume you get up, you head to the courthouse, and that some time later in the day you might end up back at your office.
Erin Gerstenzang: Yeah. That is always the hope of almost every day.
Sam Glover: How do you juggle all that? How do you keep track of your cases and stuff? Are you paperless? What do you do?
Erin Gerstenzang: I am paperless. I actually went paperless a couple of years ago. It ends up being much more manageable, I think, than people normally suspect at the beginning. I have a number of different systems in place. I use Clio for client management software, which is amazing because that does let me get a lot of work done regardless of where I am, whether on my phone or my computer. That’s probably key is I carry my computer in my bag no matter where I go. Having that portability has been amazing for my practice.
Sam Glover: Do you also carry a scanner with you or something? Because I know criminal dockets often have a lot of paperwork. You’re generating pleading forms and all kinds of stuff. Criminal defense attorneys are often the first ones to be like, “Oh, why bother going paperless because the prosecutor hands me a manila folder of documents, and then there’s charge forms, and all that kind of stuff. I would just be scanning all the time.” How do you handle that?
Erin Gerstenzang: There is a fair amount of exchange of paperwork in court. I do have a scanner that I could probably use. I don’t end up needing it. I have a very low-tech solution for the problem that you brought up which is next to my laptop, I also have a clear, plastic folder. That is part of my paperless system. That’s I guess my inbox, if you will. Everything that hasn’t yet been scanned.
On my person, there are things that I always carry. My laptop’s one of them. Then this plastic folder is the other. Anytime anybody hands me any document that’s going to have to make its way into my system, it’s put in that plastic folder where I know it will stay safe until it gets transferred to the cloud.
Sam Glover: Do you just dump things into your scanner once a day, or once a week, or something then?
Erin Gerstenzang: Yeah. It depends on how many hours I’m in court that week, but I’d like to do it on a daily basis. Normally, it happens once every two to three days.
Sam Glover: Nice. You also teach and speak, right?
Erin Gerstenzang: I do. It’s one of my favorite things.
Sam Glover: What do you speak and teach about?
Erin Gerstenzang: Well, lately what I’ve been speaking about mostly is both ethics for attorneys and how they should be communicating online, whether that’s advertising, or social media, or what have you. But also talking about technology and how attorneys can be using technology to improve their practice and improve client service.
Sam Glover: I was going to ask you about your minimalism, but I want to tease that right now and maybe skip ahead to what I want to talk about later which is, okay, so when it comes to going solo, what do you think are some of the biggest challenges that lawyers run into? I know you did this from experience, but now some of the work that you do is along those lines, too. What do people run into? What are the roadblocks and how do people overcome them?
Erin Gerstenzang: I think one of the significant challenges, or the significant challenge, of being solo and why probably a lot of people avoid it is this idea that you have to be running a successful business, which is very much different than the practice of law. That’s usually, I think, the barrier and the most daunting part of it, which may keep some people from going solo. Those who are brave enough to venture into it, I think that also continues to be a struggle. That is a real challenge.
Figuring things out on your own without a good network, or without good mentorship, can be extremely challenging. Not even knowing where to turn for that mentorship. It can be anything that ranges from the small business questions to the bigger questions, or even knowing what questions to ask.
That goes hand-in-hand with every solo’s fear, especially a new solo, which is, “Where am I going to get my business? How am I going to get clients to call me? How am I going to keep the lights on? What are the best methods for doing that?” There’s a lot of noise out there. There’s a lot of people trying to tell you, “Oh, here’s how you do it. Here’s the best way. Here’s how you bring business in. You invest a lot of money online, or you spend time networking, or you hire a consultant.” There’s a lot of voices out there, but navigating those with limited resources can be, I think, really challenging.
Sam Glover: I didn’t stop to ask you, but you went solo after practicing for awhile at another firm, right?
Erin Gerstenzang: Correct.
Sam Glover: Was it a small firm where you had support or were you a partner? What was it like, the transition?
Erin Gerstenzang: In my practice area, it was considered a larger firm, but we had about eight attorneys and I had a lot of support staff. In that regard, it felt very big for a criminal defense firm. That gave me great experience because I had a very hands-on approach in that firm. I was part of orchestrating the workforce and the scheduling for all these attorneys and management. That gave me really great experience to dump in and handle what is a much smaller portfolio of clients on my own.
Sam Glover: Were you managing the firm there or were just really focused on law practice?
Erin Gerstenzang: Well, initially when I started, it was mainly the practice of law, right? When you’re a new lawyer, that’s usually one of the first things that you need to focus on. But my role there grew, so I was acting as a more of a manager and a practitioner towards the end.
Sam Glover: Going from that to going solo often feels like a bigger step than it maybe looks like to those of us who have done it, but how did you decide you wanted to do it? What did you do to prepare and then make it happen?
Erin Gerstenzang: Well, for me, it didn’t seem like that there was a moment where I decided, “I think I want to go solo.” I think I had always planned to be on that trajectory. I come from a family of practitioners who have their own firms. I think it was just a question of feeling ready for me.
Again, I credit just incredible mentorship along the journey. I had an incredible boss at the time who really encouraged me to start my own practice and helped me. In fact, let me start my own practice out of his office while I was still working there, which is very unique, but was incredible in terms of giving me the foundation to launch my practice when I finally did cut all ties.
Sam Glover: You’ve mentioned mentoring a couple times now and I agree that it is so important. Recently, somebody said that they asked a room full of lawyers who was interested in mentoring, and all the older lawyers raised their hands. Then they asked, “Who is looking for a mentor,” and none of the lawyers did.
Which I thought was interesting because it’s backward from how you think. You hear younger lawyers saying, “Oh, I want a mentor, but I can’t find one.” Maybe we need to be doing more work to persuade younger lawyers that they actually need to seek out a mentor. I don’t know. What are your thoughts on that? How should people go about it, and should they, and what should that relationship actually look like?
Erin Gerstenzang: I think that’s an interesting point and I tend to agree that that’s what happening in our community and especially younger attorneys. It’s not clear what that mentorship will provide to younger attorneys looking forward at the great abyss and what is unknown. I think what’s interesting about that example is all the older attorneys really, in hindsight, looking back, can appreciate the value of what mentorship means in the practice of law.
I think that there’s a couple of different things that lawyers can find in the mentorship category and that’s not only a mentor, but also a sponsor. I think that there’s an important distinction between those two. I think a mentor can be someone who doesn’t necessarily have to be super senior to you. It can be someone who maybe has been out in practice for a couple of years longer, or even somebody who maybe is going through a similar experience as you, but you have that camaraderie, you have that network to lean on each other, and have conversations about what you should be doing or how you solve problems.
I don’t know how to solve the problem of attorneys not necessarily reaching out and looking for mentors, but I do think that that’s one of the biggest issues right now for solo practitioners. There are so many opportunities for solos to go out on their own, even straight out of school, and technology is part of that. Just the world is changing, but we need to be careful to make sure that the practice of law is, in many respects, an apprenticeship where you learn from the people who have had experience and they teach you. That’s what these large law firms have provided, but in this day and age where we have great opportunities for solos, we need to be able to compensate for lack of mentorship.
Sam Glover: Maybe part of it, too, is the feeling among newer lawyers that if you go find an older, experienced lawyer, yeah sure, they might be able to tell you how to try a case, but that doesn’t feel like their pressing need. What they really want to figure out is how to do online marketing, or what kind of technology should they be incorporating in their firm, and they feel like they’re not talking to the right person for that. Maybe you need to seek out a couple of different types of mentors that can advise you on those different things.
I didn’t think that getting business was actually the hard part, but when I was new, if you tried to tell me that, I wouldn’t believe you. Maybe part of it is you need to find somebody that can talk to more where you are now as opposed to looking back and here’s where you’re going to end up. I don’t know.
Erin Gerstenzang: Yeah. When somebody talks about a mentoree, I have this model of, “Oh, this is someone you meet with regularly and you have a list of questions that you have.” I think the practice of law often demands something a little bit more fluid where mentors, really, just someone you call when you have a question or you have a crisis. It might be an email exchange or these five-minute phone calls where you have a client who’s upset and they’re threatening a bar complaint or something.
An older attorney who’s seen this or gone through this experience can provide the wisdom. Just a different take and give you that, I guess, emotional intelligence, is something that I like to think that more experienced lawyers have developed and can give these solutions to problems that do come up. Technology doesn’t help you solve that, but you need somebody you trust that you can go to to give you good advice.
Sam Glover: I want to continue our conversation, but first we need to hear from our sponsors. When we come back, I want to talk more about some of the challenges and mistakes that you see lawyers make when they go solo. Then I want to end by asking you about minimalism, both personally and how it maybe plays into your practice. We’ll be back in a couple of minutes.
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Sam Glover: Okay, and we’re back. Erin, we’ve talked about mentoring. What are some of the other challenges that you think new lawyers need to overcome or what are some of the biggest mistakes that you see people making when they try to go solo?
Erin Gerstenzang: Yeah. I think one of the challenges and mistakes that I see a lot of solos and new solos making is this focus on looking backward and trying to design a practice based upon a practice that may have been successful 20 years ago, or even 10 years ago. This maybe goes hand-in-hand with what you’re saying about the problem with mentorship, because while I do think that experienced lawyers have so much advice to give, I think that the world facing new lawyers and what their practices are going to look like are quite different than what those more experienced lawyers, what their trajectory their career has taken. I think following the models of those firms where I see my colleagues going out and setting up law firms that look very much like law firms from 15 years ago, it is a struggle, as opposed to looking forward and looking for new opportunities in this shifting landscape.
Sam Glover: I literally just had coffee with a 2L who is starting to think about what to do when he graduates. I was trying to say something like that. You really need to go learn how to practice law and you should probably do that from somebody who has been practicing for a long time. Don’t necessarily learn all your lessons about running a law practice from them. I was struggling with how to really say, “Here’s what to do,” rather than just, “Try to ignore the bad habits you might be picking up.” How do you talk about it? Sounds like you’ve got more experience doing it and maybe I should get my script from you.
Erin Gerstenzang: Well, one thing I have noticed, and I think that it’s critical, there is this focus on when you’re leaving law school, just get a job. Just get a job wherever you can get a job. The problem with that that we often don’t pay attention to is how impressionable we are when we’ve never practiced law and we’re being introduced to this brand new world. The person who is our chaperone for that brand new world can have this amazing and incredible influence on you.
I thought of it recently because I was putting together a motion packet and I had this habit of leaving the signature line on the second page. It’s just something that I had adopted from my old firm that now I’m changing. But I laughed at myself that this was just a habit that I had internalized and I hadn’t really thought much about.
It can be scary because I do see new lawyers come out of law school, and take jobs, and work in the offices where I know that they’re not getting good training. Oftentimes, it has to do with using emotional intelligence. How do you deal with this conflict resolution between two people and in even ethical guidance? You will internalize these lessons. It’s not as intentional as you think. It’s not as easy to parse the good from the bad. That can really end up ruining careers if you start [inaudible] on points.
I would, to the extent it’s financially feasible, encourage people to be very careful about that first job because really what you are looking for is valuable mentorship. You want to make sure that you’re getting that value as opposed to picking up habits that are going to be very difficult to unlearn because you don’t even realize that you’ve adopted them and learned them.
Sam Glover: I guess I usually think of it in terms of to question everything you’re told, although that’s really hard to do when you’re also supposed to be learning pieces of it. I think I’m probably a terrible employee because I do that. From everything from when somebody hands you a template and says, “Here’s our form for articles of organization for an LLC,” my tendency is to look at that and go, “Well, why are you using all this archaic language?” Like, “I couldn’t understand what’s on here, so I’m going to rewrite it.”
That’s a little hard to do when you’re new, I think. But also, it helps. Why is our retainer 15 pages long and nobody can understand it? Why am I calling up opposing counsel and approaching settlement negotiations in this way? Or why am I starting from scratch on this document for the 15th time? All of those things are things that you should question. It’s really hard to do as a new lawyer. I totally get what you’re saying. I’m not really sure how I exhort new lawyers to go out and do things your own way.
Erin Gerstenzang: Sure. But that’s a really good point. I think that’s exactly what you need from a mentor is there should be a good reason as to why we use this language. If nobody knows what the answer is, well then there probably is a better way to be doing it.
Those are the questions that you don’t learn in law school. Why do we call first or why do we wait for them to call us? Why are we doing our negotiations in this way? Have those conversations because that’s the value of mentorship, because it gives you the tools you need to decide, “Hey, this is a great practice,” or, “I can improve on this practice.”
Sam Glover: I like that. Question everything, but do it with somebody who you can trust to actually give you the answers and give you the space to do it. I guess whether it’s your boss or whether it’s a separate mentor, right?
Erin Gerstenzang: Absolutely. If you can’t get those answers, then maybe that’s how you know that you want to continue looking for the right mentor.
Sam Glover: It’s like lawyers are generally the kinds of people for whom, “Because I’m your dad, that’s why,” is never an acceptable response.
Erin Gerstenzang: That should be the case.
Sam Glover: But then we get into a firm and it’s like, “Use this template.” “Well, why should I use it this way?” “Because I’m your boss, that’s why.”
Erin Gerstenzang: That’s right. That’s right. That can be a problem. You can’t always stop in the middle. But you can follow up with people, too. I think I did that when I was starting out. I just had a list and we would drive around in the car a lot going from court to court and say, “What? You said this. Why do you do it that way?” Luckily, I had a mentor who was willing to have those fun conversations and walk me through those details.
Sam Glover: How about ethical pitfalls? What are the stumbling blocks for new lawyers on ethics that you think they need to really have a heads-up for?
Erin Gerstenzang: Sure. I think that this is a problem in the legal community across the board. It’s really a human problem where we tend to, instead of going and finding the answers about what’s appropriate or what’s not, we tend to look to our peers for the answer. Especially when it comes to solos who are trying to market themselves online and they get feedback from all kinds of people about being on social media, how to advertise, and what to say.
For the most part, lawyers are not being careful about making those well-thought-out or researched decisions. Instead, they’re going online and saying, “Well, so-and-so is talking about this on Facebook, so this must be okay.” I think that there’s a real problem right now because there’s a disconnect.
When I do get the opportunity to talk to lawyers all over the country, for the most part criminal defense attorneys, but we start talking about these rules. Like Rule 1.6, governing client confidentiality. It’s a huge unlock for a lot of attorneys when we start talking about what that means as it compared to the attorney-client privilege rules, because those are two very different things. Those aren’t rules that attorneys are really even cognizant of.
When we start talking about it, the rule of governing confidentiality, you’re really not allowed to talk about anything related to your case with anyone, whether they’re an attorney or not. Yet you see on a day-to-day basis. Attorneys will always tell me, “Well, I can tell you about this case because it’s all public record.” That is actually a made-up exception to Rule 1.6. There is no such exception. It doesn’t matter if everybody in the country is talking about this case and they’ve read all the details in the papers. You, as the attorney, you have the duty of confidentiality. It cannot come from you.
That’s really shocking to attorneys. It shouldn’t be since we’ve all agreed to be governed by these rules. Yet, there’s a big disconnect between these rules that have always existed or have existed for many, many years. The fact of the matter is attorneys were ignoring this rule. Attorneys were regularly sharing, and to this day are regularly sharing, information about their cases, if it’s okay because of the attorney, or it’s part of the public record, or just not thinking about it at all.
It’s only now that we see these communications moving online that lawyers are getting in real trouble for this kind of conduct. Careers are getting ruined over it. Whereas, they’re really not doing anything that’s different than what we do peer-to-peer in person. We’re not even aware that we’re violating these rules.
I think the online conduct is really problematic and it manifests all kinds of different ways. Snarky comments on your private Facebook page, or clever advertising where you’re disclosing too many facts about your case online. There’s all kinds of pitfalls for attorneys. For the most part, all of us are out there and we have very little idea of where those pitfalls are or how to avoid them.
Sam Glover: Okay, that’s really interesting that you talk about it in that way because I’ve always thought of it as, “Hey, lawyers, social media is exactly the same as any other communications. Stop being so scared of it. Just use it the same way you would talking to people normally.” You’re saying that is exactly the problem is that lawyers have been sloppy about keeping confidences forever. Now they’re just being sloppy about it in a much more public, much more harmful forum.
Erin Gerstenzang: Yes. Yeah. I prefer the phrase thoughtless, maybe. Again, that comes back to the problem of looking to our peers. That’s what humans do. That’s what children do. That’s what adults do. We gauge the appropriateness of our conduct based upon how other people around us are behaving. You think, “Well, that attorney has a great reputation. Look what they’re doing online. Surely they’ve researched it. I’m just going to mimic it.” When lawyers are engaging in the same kind of conduct they’ve been engaging in for years, it can be a huge problem when it comes online.
We had a local debate over LISTSERV communications and a private LISTSERV with a small group of attorneys. We were debating about whether or not it was appropriate to be posting favorable court orders with the client’s name and case number on it and distributing that amongst attorneys so that they could use them in future arguments. It’s a really valuable tool to have available, but it’s a clear and blatant violation of Rule 1.6 to start to be disseminating these facts with your client’s name and case number on it.
Sam Glover: Unless, of course, you get your client’s permission, which cures just about everything.
Erin Gerstenzang: Sure. You can, but I’ll tell you that that’s very rare that attorneys are doing that, or even thinking of that stuff. It’s not difficult to get in many cases. I think many of my clients would be fine with that.
Sam Glover: Kind of, “Hey, can I share this with my colleagues?” “Oh, sure.”
Erin Gerstenzang: Right. We’re not even aware that we’re breaking the rule. That’s, I think, the biggest problem.
Sam Glover: One of the lawyers I worked for had a blanket communication waiver kind of a thing. I think it was based around media that, “I can talk to reporters about your case if they ask,” and stuff like that. Do you think that’s effective to just put it all in the retainer agreement?
Erin Gerstenzang: I think it’s a good place to start. Most of the requirements require that the disclosure, that the waiver, be knowing and voluntary. I think a blanket statement in the beginning of, “I just talk to whomever I decide when it’s appropriate,” I think it’s hard to say that that waiver is knowing.
Sam Glover: Yeah. Especially if you have a 15-page retainer agreement.
Erin Gerstenzang: Correct. I mean, and the fact of the matter is they’re often not reading all of it anyway, even if you have a page-and-a-half retainer agreement. What that really means, and what the implications of that may be, are yet to be foreseen. I do think it’s a good and responsible place to start to have that in the retainer agreement, to start that conversation with their client. But I think it would be prudent to go back and revisit that before you actually share anything.
Sam Glover: Which really all brings it back to what you’ve been saying the whole time, which is be careful about who you learn from, whether it’s a mentor or your boss or whatever, because you’re going to, whether it’s the way they treat potentially-confidential client information, or everything else they do, you really can’t question everything. You’re going to pick up habits. You’re going to believe things about how law should be practiced. You’re going to pick up writing conventions and things like that that you may not think to question for years. It really is important to have a mentor, but to be careful who you choose and careful who you choose to work for.
Erin Gerstenzang: Yeah. Be open to being convinced. That may have been how everybody has done it and how you’ve always done it, but hold strong opinions weakly. Be open to taking good advice and changing the way that you do things.
Sam Glover: I love that you said that. That’s one of my favorite quotes is, “Strong opinions weakly held.”
Erin Gerstenzang: That is not my quote. I do not claim credit for it.
Sam Glover: No, but I love it.
Erin Gerstenzang: But I do love it.
Sam Glover: Okay, so I want to do a complete switch of gears here and I want you to tell us about minimalism. Because this is one of those things that, you know, tiny houses, and minimalist behavior, and, “I’m going to sell all my possessions.” I am intuitively drawn to all of these things. It is my understanding that you are a practicing minimalist, so I want you to tell us about that and maybe how it even plays into law practice.
Erin Gerstenzang: Yeah. I would love to. I would like to qualify that as, “An aspiring minimalist,” because I see minimalism as a journey. But I, much like many of the people who have already heard of minimalism, came across the documentary on Netflix. I want to say that was probably a handful of months ago. It’s an amazing documentary for a place to start, but really it talks about being more intentional about the things that you have in your life and deciding, “Is this contributing and helping or is it really just creating unnecessary clutter?”
I should back up and say I started this process about a year and a half ago with Marie Kondo’s book, which is The Life-Changing Magic of Tidying Up. That is probably an even better place to start because it’s not quite as drastic or advanced, I’ll say, as minimalism. It’s really the process of being very intentional about the things that are in your life, and going through them one by one, and deciding if you want to keep them.
It’s amazing when you start doing this process, you realize how much we are all pack rats. We hold onto things not really having a clear idea as to why other than this might come in handy someday. What’s invisible to us when we invite all these things into our lives is, really, you are taking on this responsibility of possessing it. It’s taking up space. It takes up energy in a way that you’re not even aware of until you get rid of it.
I think I compare this to that great moment when you walk into a hotel room or if you’ve rented a house, and it’s all clean, and there’s nothing in there, and it feels like such a great space to be in because it hasn’t yet been filled with stuff. It’s really a way of purposefully keeping all the things in your life that you really need, and really enjoy, and help you live a better life, eliminating all those things that don’t help. Once you do it, the experience of getting rid of those things and living without those things is empowering.
Sam Glover: I feel like I’m a wannabe minimalist at heart. In the spheres where I have a lot of control, I am extremely minimalist. My computer, where I get to control everything, is really just boiled down to the essentials. There’s no extra crap on my computer. My desk at the moment is a little cluttered for me, but I think most people would walk into my office and be like, “Where’s your work?”
But then when I get back to my house, which has two little girls in it, and my wife, and there’s plenty of stuff there. You’re a mom, too. I’m not a mom, but you’re a parent, too. How do you do that with all of the stuff that comes along with having a child? How do you keep it to a minimum there?
Erin Gerstenzang: Well, I have a six-and-a-half-year-old daughter. My husband was onboard. That’s the first thing is you have to have a partner in this who is willing to experiment with it. It is hard, but I think it’s hard for asix-and-a-half-year-old to understand why we’re moving all this stuff around and, “I like the old house better.”
But it’s amazing how much it forces you to really think about the experiences that you’re inviting into your household and the things that are coming into your house. It makes living in your house so much better because you can find the things that you want when you’re looking for them. You really get to see the things that you love the most because what you keep is the things that really give you joy.
I would say that, although convincing a six and a half year old that this really makes sense is a little bit tricky and a daily struggle sometimes, our experiences as a family have been so much better because it makes that family time so much more valuable. We can go and look at our game closet, and easily pick out the game we want, and not be distracted by a million different options or trying to find things.
The family part is more difficult and I will note that the minimalism documentary, they didn’t really have any families when they were making the movie, so that did cross my mind a bunch. Because there is a lot of stuff that, as a parent, you have to throw out a ton of artwork. It’s hard to do and you need to do it in secret because they will [inaudible] if they find it, their precious whatever project they’ve been working on that week. Again, it lets you keep the ones that are amazing and that are fun to look through, but eliminate the clutter.
Sam Glover: I should stop for a minute to head off the judge-y people. I know that you are not a cruel person. I know that you’re not forcing your child to live in a stark room with three toys and like—
Erin Gerstenzang: Oh goodness, no. No, no we don’t. Her room is the least minimalist of all the rooms in the house.
Sam Glover: I bet.
Erin Gerstenzang: She has plenty of stuff in there. But we will go through them and we’ll go through it as an exercise together: “Which toys do you love and which toys do you think we could give to another family?” Pretty good at that. It’s nice when you talk about that. You just don’t throw these things away, that you are giving them to somebody who could use them. I think she’s really bought into that part of it where you’re helping other kids who maybe don’t have the same resources.
Sam Glover: My kids, I buy them something new and then they don’t touch it for weeks because they have so much other stuff to play with. They only really play with three or four things at a time. It’s not like they need all that other stuff.
Erin Gerstenzang: So true. It is so true.
Sam Glover: Does this spill over into law practice at all? Is that somewhere that you felt like you had to exercise your minimalism or were you already pretty controlled and minimal in that environment, too?
Erin Gerstenzang: As I said, I think it’s a journey. I think it’s really about being intentional about the things that you try to bring in. It has helped me in my law practice. I think when I first went solo, I thought I needed a system for every single possible function that my office would be confronted with. As it turns out, a solo doesn’t need as many solutions as a much larger small firm.
I say minimalism seems like a practice because you just get good at sorting through what you no longer need and what’s unnecessary. Paperless is a big part of that because it does let you organize and get rid of a lot of the unnecessary documents that you mean to read, cases that you printed out and you don’t want to throw away because you’re going to get around to reading. In that regard, just practicing minimalism helps you keep the clutter out of your practice.
Sam Glover: I like the idea of minimalism as it pertains to deciding which clients to keep and being intentional about which clients you have and keep. You were at the second TBD law meeting. One of the people who was there, one of the lawyers who was there, heard us talk about firing a client.
I think it was Matt Holman who had said that every year he gave his secretary permission to fire a client because she knows who the most troublesome clients are from a totally different perspective than the lawyers. A, it was cool for morale, but also it wound up getting some really bad clients out the door. This other lawyer went home and felt empowered to fire her worst client and just felt great about it. I like the idea of minimalism as an approach to managing your clients.
Erin Gerstenzang: Oh, and I think even without minimalism, it’s such a difficult decision to make in the moment, which is why good mentorship is essential. Because sometimes a good mentor can say, “This client is not worth keeping.”
Sam Glover: It takes a lot of confidence to do that, or at least crossing your I’s, and plugging your nose, and holding your breath, and going, “I’m just going to jump.”
Erin Gerstenzang: It can. It’s amazing when you do it. I can tell you the few clients that I’ve had to end our relationship, if you are good at recognizing those signs early on, then you can end that relationship in a very friendly way. I saw someone in court this morning ending the relationship in a very public way. The judge was involved. It seemed incredibly awkward. I could tell that it was terrible for everyone
It’s not hard to identify the clients where you’re not going to have a good working relationship with, the clients whose calls you might dread, or you can tell that they’re not excited to talk to you. If you can just intervene in those moments before it gets disastrous and say “Look, this may not be a great fit. I think you might be looking for an attorney who does X, Y, and Z.”
I mean, there have been situations where I helped that client find a new attorney and I know all these attorneys that are a personality fit. It is the most amazing thing you can do as a solo. It’s so empowering. When you give them the refund, it will be the best money you ever spent because you can leave that relationship in a friendly way. You don’t have to have that cloud of negativity following you around every time you think of it. Then it works out great for the client and it works out great for you.
Sam Glover: I suppose I risk starting a whole new episode, but the value of any decision-making framework, which is basically what minimalism or anything else is, is that it becomes easier to make decisions. You have a philosophy that you bring to your client relationship, to your business model, your family life.
If you have a way to judge the value of a client and, “Nope, this is basically just bringing me down, this is garbage that I don’t need in this practice, this is extra baggage,” then it becomes an obvious decision what you have to do. Then you just have to decide how you’re going to end that relationship. You don’t have to decide whether or not to do it. It just becomes easier to make that decision. I suppose whatever framework you bring to it is a helpful one.
Erin Gerstenzang: Yeah. I would agree. I hadn’t thought of that, but I would definitely agree with that. It helps you see what’s valuable to keep in your life and where you need to be focusing your efforts. Because a bad client can pull you away from your good clients. It can introduce frustration and the kind of stress that really isn’t helpful to your practice. It doesn’t help you serve your other clients better. It is definitely not helpful for your family life.
Sam Glover: There’s a lot of business books that talk about the velocity of decision-making on the idea that it’s less important what decision you make than it is that you’ve made a decision. If you can get the, “Should I do something about this,” over with and then you decide, “Well, am I going to donate this to Goodwill, or I’m going to refer this client to somebody else, or am I just going to drop them and say good luck,” the fact that you’ve made the decision is a lot harder. Making the decision is harder than deciding what to do as a result of it. Maybe any framework that you give to yourself is to do it faster.
Erin Gerstenzang: Right. If you’re even wondering if you should fire a client, then the answer is probably yes. Probably what you’re struggling with is you don’t want to, but you’ve sort of already made the decision about what the right thing to do is. Again, having a good mentor, whether they’re your colleague or what have you, talk to somebody about those kinds of issues because even just talking it out is what gets you to the right answer, not necessarily having an experience, sponsor, or mentor to show you the ropes, but even just having somebody who is willing to have that conversation with you and listen to you as you figure it out.
Sam Glover: I think you have brought us back to the beginning and tied it up nicely. I think that’s a good place to end. Erin, thank you so much for being with us.
Erin Gerstenzang: Awesome. Thank you.
Aaron Street: Make sure to catch next week’s episode of the Lawyerist Podcast. If you’d like more information about today’s show, please visit lawyerist.com/podcast or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found. Both Lawyerist and the Legal Talk Network can be found on Twitter, Facebook, and LinkedIn, and you can download the free app from Legal Talk Network in Google Play or iTunes.
Sam Glover: The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network. Nothing said during this podcast is legal advice.