The ALPS In Brief Podcast

Episode 20: Can We Still Trust Photographic Evidence?

We may have reached, “a fairly critical point where traditional photographic evidence just isn’t as reliable as it used to be.” This according to our most recent podcast guest, Joe Kashi. In addition to being a trial attorney in Alaska, Joe has worked in automation technology and is himself a serious photographer. Recently Joe taught a two-part webinar series, “Using and Misusing Visual Evidence, Parts 1 and 2,” moderated by ALPS Risk Manager and podcast host, Mark Bassingthwaighte. In this interview Mark and Joe delve even deeper into how technology and the accessibility of photo editing software is changing how we view photographic evidence in the courtroom.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

MARK:

Hello. I’m Mark Bassingthwaighte, the Risk Manager here at ALPS. Welcome to the latest episode of ALPS In Brief, a podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. I’m delighted today to be able to introduce not only a guest, but a good friend, Joe Kashi, and Joe is a lawyer who practices in Soldotna, on the Kenai Peninsula in Alaska. Joe, as always, it’s great to have an opportunity to visit with you again. Do you want to take a moment and just share an item of interest about yourself to our guests?

JOE:

Sure, just by way of brief bio. But usually, other people do it. Well, Mark, you and I have been friends for over 20 years, since we were doing technology presentations for the ABA Tech Show together.

MARK:

That’s right.

JOE:

And quite a number of presentations after that. So, I think we know each other’s handwriting pretty well. But for our listeners, I got my bachelor’s and master’s degrees at MIT, where I’ve been working with automation technology since the late 1960s with old hand punch card mainframes, and hopefully stayed reasonably current since that point, even though I’m practicing as a lawyer in a relatively rural part of Alaska.

After Georgetown Law School, I worked in D.C. for a while. Actually, myself and two other guys were the first three people to work on a National Science Foundation project, tracking the rise of the, quote, “information society in America,” which actually was a term we coined back in the mid-1970s. I got rather tired of … I guess I’d have to say I’m an east coast refugee, because after that, I moved to Alaska, where I’ve been doing trial practice for the last 40 years, mostly in construction litigation, personal injury, and some real property litigation.

MARK:

I’ve always … Thank you for sharing that. Every time we have these conversations, I learn a bit more. I’ve always viewed you as a guy who has been sort of ahead of the rest of us. That is in part why I entered into a discussion with you last summer about putting on a webinar program for us, and you did it, although I was technically along for the ride. You did all the heavy lifting on this, and I’m referring to a two-part, three hour webinar series that you did. It’s still up, by the way, and available for download, if any of you out there in the listening audience want to take a look at this at some point, but it was entitled, “Using and Misusing Visual Evidence.”

My interest, as you recall, Joe, is just coming to the realization that so many of us, day to day, have these photo editing tools, and you come back from vacation, and you do all kinds of editing, and I started to think, “Wait a second. This is so easy to do.” I don’t buy that clients and perhaps at times lawyers, not necessarily trying to do anything unethical or something, but that people aren’t editing and doing things with evidence, in terms of photographic evidence.

So, we kind of got started on this program. I’d like to kind of follow up on that program, and ask again the question, should lawyers be concerned about the ease with which anyone can edit digital photographs? And to follow up to that, why?

JOE:

Well, Mark, I’m going to throw in a little bit of extra background there. I’ve also been doing serious photography for about 50 years, ever since studying with Minor White back at MIT, and actually had a photo finishing lab for several years as a sideline. It’s an unusual situation, because the digital era really is bringing three different areas into focus; trial practice, photography generally and conceptually, and then the more recent digital revolution, which very much allows you to make the sorts of work you never could do with a traditional chemical film and paper kind of film photography aspect before.

So, really, what we’ve reached is … I would say rather suddenly, is a fairly critical point where traditional photographic evidence just isn’t as reliable as it used to be. In fact, I can say that it’s becoming significantly less reliable. The concerns we run into, I think they’re fairly common. I’ve had cases … And it’s not so much the lawyers that are the problem as the people who’ve consulted with me about these situations, and there have been several, even in our small town of Alaska that have come to my attention, has to do more with clients or complainants who are bringing … show excessively enhanced photographs to the attention of the lawyers, and then attempting to use those as evidence.

Every photograph is enhanced to some extent, otherwise it’s essentially unusable. You make traditional correction. You correct the exposure, correct the contrast.

MARK:

Right.

JOE:

That sort of thing. Not a problem. The sorts of corrections that you can make in a dark room were generally within reasonable, although even then, there’s a lot of case law about what is or not acceptable. More recently, and especially the last two or three years, with the rise of artificial intelligence neuro-networking built into various photographic “enhancement” programs, we’ve reached sort of a watershed, where there’s essentially no film photography being done anymore, except by people doing it are the fine arts standpoint. That’s usually large format, four by five sorts of cameras and larger.

For the average day to day use, digital photography’s great, but the problem is ensuring that what you’re using is appropriate, and therefore not being misused. It’s important, I think, to note that using photography to document stuff or to explain, is a tremendous benefit. It’s the sort of thing which helps trial lawyers really go and help make their story really, really comprehensible very quickly, because we’re primarily visual rather than linear. You can get a lot more and be a lot more persuasive with a single picture than with the proverbial 1,000 words. We’re taught in law school, “Paint a picture with words.” I suggest you show the picture instead. It’s going to be a lot more reliable.

But people, I think, are becoming more and more aware of the ease with which matters can be manipulated, and I would caution, it’s not just still photographs. There’s new technology that I’ve seen demonstrated by Adobe and others that allow you to go and totally erase people, totally, from a video. It’s not just digital stills anymore. It is digital video as well becoming very quickly susceptible to the same level of manipulation.

MARK:

That’s what I find absolutely frightening in some ways.

JOE:

Me too.

MARK:

It just makes my head hurt at times. When I think about the pace it changed, Joe, and in terms of hardware and software, it just … The stuff is crazy fast. I was sharing … I recently read an article about a startup that built a smartphone with 16 cameras onboard, and I’m sitting here, “Why in the world would I need 16 cameras on a smartphone?” But, you know, again …

JOE:

Well, that brings up a good point, Mark. I was going to mention that.

MARK:

Yes.

JOE:

I was thinking as you’re talking, there’s something called computational photography, which is now coming to the fore. Computational photography can take a lot of inputs and, by applying intensive computation, really clean them up a great deal. On the webinar that we have posted, there’s some examples of those sorts of computational photography that go way beyond just going and using traditional digital tools in something like Lightroom to go and enhance, say, pull out a face in a video.

Now, there’s a certain amount of enhancement that state supreme courts around the country have found to be acceptable. But what’s become … on videos and stills both, but there are also levels where it goes not just beyond excessive enhancement, but it can start rising to the level of a fraud in the court and a clear ethical issue. It’s kind of a fine line there between what’s appropriate, what isn’t appropriate, so obviously based upon circumstances. But the common thread has been generally to use a standard program, which produces replicatable results, and provides an audit trail. More than anyway, we’re getting back to the traditional evidence rules 102, 103, 104, where the weight is becoming critical. The weight appropriately has to be decided by the trier of fact, and whether it’s even admissible at all. Obviously by the trial judge.

But when you get back to those issues, what the courts are starting to say is, “We want you to use a program that doesn’t allow you to paste a gun from one person’s hand into the picture of a totally innocent person, or paste one face on another.” I would argue that that’s critical. So, I tend to recommend a program that has a non-destructive editor, such as Adobe Lightroom, where what you have is a database of changes that you’ve made, and you can step backward or forward. Unlike a program like Photoshop, where once you’ve gone and done the image, let’s say you’ve composited two layers; put the gun into somebody else’s hand. Once you’ve gone and done that, you save the file, there’s no going back. All the other changes are lost. Everything is essentially lost in terms of prior data, being able to backtrack to where you started.

So, what you have then is a need for looking very carefully at the metadata. All the information about the photograph, what was done about it, and to a certain extent, that is embedded in the files. If the metadata seems incomplete or missing, then obviously that’s a case by case basis. They should be very suspicious about the photograph, because it’s obviously been enhanced. Metadata … Every JPEG file, which is kind of the standard interchangeable format, every JPEG file by international definition, the very definition of a JPEG required that certain data be embedded in it that have a lot to do with showing the circumstances that it was taken, how the camera was adjusted. For example, perspective, which is critical in a lot of accident injury cases. Those sorts of things are critical. They’re in the metadata.

If the metadata’s not there, then you’re likely to go and be very … or should be very suspicious about the photograph itself. If the metadata is there, you could go and then start looking at it from the standpoint of traditional case law about what photographs are appropriately admissible or not. And then it goes to the weight of the evidence at that point. Generally speaking, I recommend that people use a non-destructive editor, like Adobe Lightroom. Not a destructive editor that bakes the changes in forever, like Adobe Photoshop or similar layered programs, that they use what’s called the raw file.

Raw files are all the data that the sensor ever captured. They’re saved as a raw file. If you set it up as such, JPEG and raw files are two different formats. JPEG, once a change is made or once it’s taken by the camera, all the data is baked in. You can’t change it. You can’t recover all the stuff that’s been lost through JPEG compression. Raw gives you the ability to go with a program like Lightroom and stipulate from the original data all the way through to whatever your final result is that you want to show to the trier of fact, and then prove to the trier of fact what steps you’ve taken. So you could show … you could go step by step, repeating along the way. That’s the feature of Lightroom. You can step by step along the way, and show to the trier of fact how you got to the result you’re offering as an exhibit. That’s often been very critical as an admissibility factor for both stills and videos in the state supreme court decisions I read.

MARK:

What-

JOE:

Anyway, metadata … Raw format if you can. Metadata, try to avoid formats that bake the changes in forever and lose everything.

MARK:

That makes sense to me, but I often … in terms of what lawyers should be doing, but … as they handle and use digital evidence, visual evidence. But I’m a risk guy, and I also … A big part of my job is looking at, where the problems kind of come up? I guess one of the things I get concerned about is just clients, whether it’s an adverse party or our own client. They have ready access to these programs that, to use your phrase, that are destructive kinds of things, and can insert the gun into a hand of somebody that … Those kinds of things.

JOE:

And then try to erase the evidence.

MARK:

Right, right. Do you think … Am I … I tend to get paranoid at times about all kinds of things, but is that a realistic concern?

JOE:

Yes.

MARK:

Do lawyers need to be aware?

JOE:

I’ve seen several cases like that come up in the last few years, even in our small area of 45, 50,000 people.

MARK:

Yeah. That’s just …

JOE:

I’m aware of at least three.

MARK:

Do you think in terms of our profession as a whole, do you think lawyers generally get that?

JOE:

No.

MARK:

Yeah.

JOE:

Very few lawyers get it. Unfortunately, they may end up getting it in the end. If that occurs, you’ve seen cases where people were newly convicted, upstanding business people, for example. Somebody had a grudge against him, and they didn’t exactly contract stuff, but let’s just say that erasing the metadata prevented people from going in and analyzing that in fact, something wasn’t exactly what they purported to be, but was closer or farther or whatever if you fall. But I’m saying, their perspective analysis is critical at that point.

MARK:

So, if you were to … Let’s pretend for a moment I’m just a young lawyer, kind of trying to get into the litigation game, and you become something of a mentor to me. What would you choose to share? I guess I’m trying to get at, what are the risks that I’m facing if I stay naïve? What do I need to just think about, generally speaking, in terms of trying to become competent in all of this? Just some closing remarks, I guess.

JOE:

Okay. Well, becoming competent in terms of the visual evidence, and I’m referring about stills and video at this point.

MARK:

Yes.

JOE:

Fundamentally, I think what you need to do is at least stay on top of the sorts of changes that are occurring, if nothing else. People tend to be using more and more smartphones, for example, as a primary photographic tool, which I, since I come from a construction litigation background, where it’s often critical, as we showed in the webinar, by the way, construction litigation and personal injury, it’s awfully critically to be able to go and later zoom in and find tiny, but very important details.

If you don’t have the kind of resolution, exposure range, and other factors, that are typically lacking in cell phones, then you’re not going to have that data. My general concern with cell phones is that … or I should say smartphones, is that the photographs from those tend to be on average really not as good as they should be, at a minimum, for forensic purposes in court, especially when you need to make a print that’s bigger than, say, eight by ten for the jury, the view of the jury room, et cetera. We still need to have prints, if you will, for evidence. The fact that a cell phone looks good on a computer screen isn’t sufficient. That’s actually a very well-resolution medium. It looks good, but not for serious forensic use.

So, first thing I think is to start learning how to use, or at least have … learning how to use a higher quality resolution camera. Micro four thirds, APSC full frame digital are good numbers. Any of those will work well. And probably at least become aware of the sorts of things that can be done with programs like Lightroom or Photoshop. You can’t be your own expert. You can’t be your own witness, of course.

MARK:

Right.

JOE:

But at least you could start issue spotting. And issue spotting is, what’s happening with the metadata? What sorts of new computational approaches may render this less positive and start doing serious discovery about the nature of the … basically about the nature of whatever evidence is in front of you.

MARK:

Yeah. Yeah. I like that. How I tend to view this is, we all now, I think in today’s world, really understand and appreciate … Just because it’s on the internet, doesn’t make it true. And I [crosstalk 00:19:17]

JOE:

That’s certainly really … No, that statement is true.

MARK:

Did I get it backwards? I’d say …

JOE:

No, it’s okay, I agree with you.

MARK:

Yeah, yeah. But sort of paralleling that into digital photography, just because we have a digital file, whether it’s a photograph or a video, doesn’t mean that the information presented in the video or on the photo is an accurate capturing of the event.

JOE:

Well, a least not after it’s been post-processed, and potentially not when it was captured, either.

MARK:

Right. Right.

JOE:

What I would suggest overall, Mark, is knowing the traditional evidentiary rules, being able to go and document what was done to the trier of fact. Always having an unaltered copy of the original photograph from the very beginning with everything in it. All the metadata, all the data, anything else. It’s going to be critical. You preserve the original photograph exactly unchanged, be able to show it to the trier of fact what has been done to go with the … to basically make your final exhibit, that it’s within the bounds of conventionally acceptable enhancement. Recognizing that you have to prove weight of the evidence to the trier of fact will go a really long way.

I don’t see a … Given the vast changes in the technology of what can be done post-processing, I’m not sure that we can come up with a good, hard and fast technical rule that’s any more effective than the traditional rules of evidence, assuming that people get the metadata and analyze it with an appropriate expert, and assuming that people go and … trial lawyers understand basic photographic notions as they would affect what’s seen. And it’s always worth remembering that the camera will see things differently than the human eye. At best, there’s an approximation.

MARK:

Yes.

JOE:

It’s not one to one exact.

MARK:

Right, right. Listen, Joe, I really appreciate your taking time to share your insights on what I consider just a very, very important topic. To those of you listening in, I will share; if you would like to learn a bit more, the webinar that Joe put on for us last fall is still available for viewing and download, so on demand webinar on our website, ALPSnet.com. Beyond that, I guess I’d say, hey, I appreciate all of you listening, and have a good one. We’ll see you next time on ALPS In Brief.

JOE:

Thanks, Mark. So long.

Joseph L. Kashi practices law in Soldotna, Alaska.  He received his B.S. and M.S. degrees from the Massachusetts Institute of Technology in 1973 and his law degree from Georgetown University in 1976.  He is admitted to practice before the Alaska Supreme Court, the U.S. Supreme Court, the Ninth Circuit Court of Appeals, and the United States District Court for the District of Alaska.  Since 1990, he has frequently written and presented about a wide range of legal technology topics for the American Bar Association and many state bars.  Case studies of his law office’s use of legal technology has been featured on Lexis-Nexis and Adobe web sites.

Link to the on-demand CLE seminars taught by Joe last fall here:

Using and Misusing Visual Evidence, Part 1

Using and Misusing Visual Evidence, Part 2

Episode 19: A Conversation with Brian Cuban, Author of ‘The Addicted Lawyer’

Addiction, substance abuse and the resulting professional and personal fallout can destroy careers and lives. As another wonderful addition to our Wellness Podcast Episodes, Mark had the opportunity to connect with Brian Cuban, Dallas-based attorney, Addiction Recovery Advocate and author of The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption. Brian reflects on the reasons behind addiction and his journey toward recovery. They also delve into the point where choice ends and addiction takes over. And in a profession that doesn't necessarily champion vulnerability, Brian emphasizes the strength in laying it all out there to find that path toward healing.

If you or someone you know works in the legal profession and is struggling with addiction, please connect with your state or local bar's Lawyer Assistance Program. The ABA offers a national directory on their site to connect legal professionals with this confidential service. To learn more about all areas of attorney wellness, visit the National Task Force on Lawyer Well-Being’s Resource Page, featuring the report and more information on what is happening in your state.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

As a note, the sound quality on this recording is not optimal. Please don't let that dissuade you from listening to this important conversation.

Transcript

MARK:

Hello. This is Mark Bassingthwaighte. I'm the Risk Manager here at ALPS, welcome to another episode of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. I'm delighted to be able to introduce just a very special guest today. I'm very privileged and excited to have the opportunity to speak with Brian Cuban. Brian is, I would assume is known to some of you. He's the younger brother of Dallas Mavericks owner and entrepreneur Mark Cuban. But more importantly, Brian is a Dallas-based attorney, author, and addiction recovery addict. He is a graduate of Penn State University and University of Pittsburgh School of Law.

MARK:

Brian, I am interested in visiting with you in no small part because of the more recent book, The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption. And it's my understanding you've done quite a bit of speaking on this topic of addiction and recovery. Not only throughout the United States but I believe internationally, if I'm not incorrect.

BRIAN:

That is correct. And let me, one small correction.

MARK:

Yes!

BRIAN:

Addiction recovery advocate, not addict.

MARK:

Good catch! Mea culpa there, it's a slip of the tongue. Maybe ... can we briefly just start having you, for those that don't know your story, can you share for our listeners a little bit about your story?

BRIAN:

Sure, well let's start out with I've been in recovery for 11 1/2 years from alcohol, cocaine, and from an eating disorder, bulimia.

MARK:

Mm-hmm (affirmative).

BRIAN:

My drinking started in high school, it progressed through high school, and got a lot worse in law school and I discovered cocaine when I moved to Dallas - in a bathroom in a hotel in Dallas. And I became heavily addicted to cocaine and alcohol. Three failed marriages, one where I get a free set of steak knives, and they all failed related to drugs and alcohol. Two trips to a psychiatric facility and near suicide in 2005, finally finding recovery. I failed the bar exam twice, both failures relating to my being more interested in drugs and alcohol than practicing law. An interesting little anecdote from that I tell, the first time I took the bar exam, my study aids were a fifth of Jack Daniels, an 8 ball of cocaine, which is 3.5 ounces that I'd bought that same day. Needless to say I didn't pass.

MARK:

Right, yeah. Wow. Can I...I'd love to hear, I mean this is, this is pretty heavy news. And it’s, my word, being you've really seen some dark places in terms of how I hear your story. When I think about others that are in various stages of addiction and dealing with challenges, I think one of the problems that people face, and please correct me if I'm wrong about this, but there's this fear of what others will say, for instance if I'm struggling with something if I say okay I have an alcohol problem, or I have a mental illness, or I have some other type of addiction, that people are going to view me as perhaps weak, unable to cut it, you know, these kinds of things. In other words, there are social stigma's in play. These...we fear that. I think people at times feel very shameful personally about having these kinds of struggles. May I ask how did you personally find the strength to pull out of all this, to move forward, not caring perhaps? I'm not sure of the social stigmas. But what was the strength, what enabled you to come out the other side of this?

BRIAN:

That's a great question. And the answer's complex, but to simplify it down, my quote-on-quote "aha" moment was standing in the parking lot of a Dallas psychiatric facility for my second time and at that moment realizing that I was probably going to lose my family if I did not find recovery. And there is really, you know there's my wife, there's my family and you know nothing is more important to me than family.

MARK:

Yes.

BRIAN:

And I wasn't going to lose their love but families distance because they have nieces, I mean because they have their children, my nieces and nephews. They don't want someone who is high on cocaine and drunk hanging around them. And so distancing occurs. And families realize whoa there's this gray area between love enablement and recovery, where okay, where does enablement end and recovery begin. And I think that all finally it had come together and I realized that standing in that parking lot and that was the moment when I said, okay I need to take that first scary step forward and release the shame, release the stigma, ‘cause if I don't, not only will there not be a third trip back, because I'll probably be dead.

MARK:

Yeah.

BRIAN:

But I will lose everything that is dear to me. Why that happened in April 2007 in that moment, and not say in the summer of 2005, or when my brother came into my house and I had a weapon on my night stand, I was going to take my own life, I don't know. That moment is different for everyone. But that is what was going through my mind at that time.

MARK:

So what I hear you saying, and I think this is a wonderful message, am I correct that you got to a point where you say 'at some point I realized my family, that people that are in my life, are simply more important to me than getting high'. Is it that, I think it’s more complex than that, but...

BRIAN:

It’s more complex, but I can tell you that was the trigger at that moment.

MARK:

Okay.

BRIAN:

When we talked about everything that came before that you have to talk about trauma, you have to talk about childhood, a lot of bullying. You know with my relationships at home. And we have to remember that when I talk to lawyers and I talk to law students about the struggling they are facing in that moment, nothing happens in a vacuum. I've had lawyers and law students tell me, and I am the first person they have ever told, about bullying, about childhood trauma, about sexual abuse, about physical abuse. And I of course I am not qualified to talk to them about those issues. I have resources that I refer them to, like the Lawyers Assistance Program, they can see a counselor. But there's a much bigger, there is a trigger in that moment, and then there is everything they thought of to that moment. Does that make sense?

MARK:

It does. Absolutely, it does. Let me kind of take this a little further in a different way. I see, you know again, in my, I'm a lawyer, I'm a tech geek, I'm not a physician, I'm not trained in drug counseling and these kinds of things.

BRIAN:

Neither am I.

MARK:

But my limited understanding of addictions is that a lot of these behaviors get their start, and then I think, become cemented because people will turn to whatever drug of choice it is as a coping mechanism. It for instance masks the pain, masks the fear, whatever it might be. And now being 11 plus years into recovery you, just like everybody else, we continue to have challenges and struggles and like these kinds of things. What have you done in terms of replacing an unhealthy coping mechanism looking at alcohol or cocaine as an example. How do you deal now? What is the healthy way? How are you coping?

BRIAN:

That's a great question. And lets deal with a current real life example. I am not disclosing this to make people feel sad but its - life and death is real. My father died 2 weeks ago today, at 92 years old and we were very, very close. I was just at the cemetery visiting him before this podcast. That is trauma right?

MARK:

Yes it is.

BRIAN:

That is something that 12 years ago I absolutely would have turned to the cocaine. Gone out and gotten hammered. Done who knows what in order to mask that pain. But I learned that doing that to mask that pain, one, is not going to bring my father back.

MARK:

Yes.

BRIAN:

Two, was going to set me on a path that he wouldn't want. That my family wouldn't want. And that would end up with me back at that psychiatric facility or dead. So I had to learn to deal with trauma on life's own terms. Whether that is the passing of a loved one. Whether that is the passing...whether that is the bullying of my childhood. Whether that is any type of thing that we try to mask. Right, you go into a high school and you talk to students who were smoking weed or all kinds of polymorphic drug use. And you ask them why, they may not be able to articulate it that they are masking. Masking pain, they're masking rejection, they're masking the need to be accepted. So that starts in high school and this need to use a substance to mask goes on to law school, to college, through college, to our law practice. So what did I learn in that moment in 2007, well I learned that I needed support. To support, my first support was 12-step.

MARK:

Okay.

BRIAN:

I am not promoting 12-step. I am not saying that is the way for everyone. But it wasn't even a way that I particularly wanted to embrace. But I knew I had to take some step, and I needed support, and I needed to be able to be with people who understood exactly what I was going through. So I walked into that alcohol based 12 step and Alcoholics Anonymous is the most well-known of those.

MARK:

Yes.

BRIAN:

And that was April 8, 2007. And so 12-step has been one of my ways, and the first thing I did, other than relying on the love of my family when my father passed, I went to a 12-step meeting. That is how I cope. And I'm hopeful in counseling. I have been seeing a psychiatrist for 15 years.

MARK:

I find this a very positive message of hope. What I hear you saying is, or how I'm responding to what your saying is, as an addict you make this choice to fall back on something that numbs, that masks, that hides the pain and all these kinds of things. But now you've realized, and you've identified the same problems that might send you there but you realize that you have choices. And you have people that can be supportive because no one is expected to go through, and should have to go through all kinds of...you're not alone in other words. And I think the world of addiction for, again what I hear and understand, is this loneliness thing is very central and is in part something that drives the poor decision making. You've come out this other side and, and, support ... I love the message.

BRIAN:

I also want to be careful about how we frame choice.

MARK:

Yes okay. Please.

BRIAN:

There's this saying that addiction, and I believe in the disease model, some people don't, I do.

MARK:

I do too.

BRIAN:

Addiction is not a choice, but recovery is. Recovery is about choices. Okay.

MARK:

Yes.

BRIAN:

And people get kinda caught up on this and it is a very kind of volatile issue. If you asked me, was the first time I did a line of cocaine a choice? Of course it was a choice. I chose to do it. Now was it choice influenced by a lot of childhood trauma and a lot of self loathing issues, a lot of issues on how I viewed myself? But it was a choice. But when I did that line of cocaine and suddenly for the first time in my life, for 15 seconds, looked in the mirror and finally loved myself.

MARK:

Yeah.

BRIAN:

The process that took over in my brain told me I need to do that again and again and again to continue to love myself was not a choice.

MARK:

Yes.

BRIAN:

That is the difference. I want to be sure we frame choice properly.

MARK:

And I appreciate, and I absolutely agree with you and understand. I think that's a very important point to make.

Can we sort of assume for a moment that somebody is listening to this podcast that may have some level of addiction, some struggle, and is sort of responding to this 'well this is kind of interesting but it doesn't apply to me, I don't really have a problem, counselors are for...they’re all trying to fix themselves you know, they don't know what they're doing, they're just head games'? You see where I'm trying to go. That there's all kinds of excuses not to try to acknowledge that we have a problem. And people can get, for the lack of a better term, stuck. And at times stuck for years. And that's where I presume some distancing comes into play and all kinds of things. What would you say to this individual?

BRIAN:

I think for the most part the odds of it going away are more slim, that it’s only going to get worse, this is proven out. Okay. Addiction is a progressive disease. That it is okay to reach out to someone to seek help.

MARK:

Okay.

BRIAN:

I would encourage that person to take a real-life stock of what's going on in their life, day-to-day life. How is your relationship with your wife? How is your relationship with your children? How is your relationship with your partner at the law firm, or your friend? What is actually going on in your life? Where does it stand? Because there is no such thing as high function. Because there is no such thing as high functioning, okay. There is only a degree of decline of functioning. And the biggest issue I see in the legal profession because we don't like to be vulnerable, is waiting for the consequences to catch up to the problem.

Are you going to take stock of it now? And at least take one step forward to make your life just a little bit better. However you define that outside of drugs and alcohol. Whether it’s your wife. Whether it’s your children. Whether it’s what's doing on at work. Are you going to do that or are you going to wait for the consequences to eventually catch up to what's going on as it gets progressively worse. And that will happen. And all of the sudden it’s worse. All of the sudden its malpractice. All of the sudden it’s a bar complaint. All of the sudden you’re facing suspension, disbarment. All of the sudden you are unemployed. Why wait for that? Take that first step now. Call your Lawyers Assistance Program. It’s confidential.

MARK:

Yes, yes. And I really appreciate your sharing that idea. I think so many people are a little bit afraid of talking to these various Lawyer Assistance Programs because there is this fear that there's gonna be some...its gonna get out. These are confidential situations in terms of communications and what not. And my experience in terms of the people that are involved in running these programs are just down to earth, rock solid, good people that had been there.

BRIAN:

And you know what, no matter how much I say it, there's gonna be a demographic of lawyers who aren't going to be using them, cause they are just convinced in their mind. We don't have enough time but I have a funny anecdote about that, they're just convinced in their mind that they are an arm of the state bar, they are not confidential and that is going to get out.

Let me tell you what is not confidential is when you wait for the consequences to catch up to the problem and that's your name in the back pages of your bar journal.

MARK:

You are so right and I love that. But that's the reality. That's what's coming if this isn't addressed. You're absolutely correct. You're absolutely correct. Well listen Brian I really appreciate your taking the time today to share a bit of your story and to spend a little time here with me on the podcast, it really has been a pleasure. I hope at some point to have another opportunity. You're the kind of guy I'd love to just sit down and enjoy a nice glass of Italian sparkling water or something, and just have a nice meal and some great conversation. That would be just wonderful.

BRIAN:

Let me end with one more thing.

MARK:

Yes please.

BRIAN:

A lawyer or even a law student who is listening to this who is struggling out there but thinks they're coping, 'I'm coping, I'm doing okay'. Ask your wife if you're doing okay. Ask your children if you're doing okay. Ask your partner if you're doing okay. Ask your...ask an associate if you're doing okay. Ask a friend of yours if you're doing okay. You will get a different answer than you think.

MARK:

Yeah, yeah. And then have the courage to listen.

BRIAN:

And have the courage to listen. You have to be able to drop that wall and be ready for the response. Because dropping the wall won't...allowing yourself to be vulnerable is one of the hardest things we can do in the legal profession. Because we're used to...we're trained to take advantage of that, right, in our profession?

MARK:

That's right.

BRIAN:

It’s not something we allow ourselves to do. To self-explore.

MARK:

Yeah, yeah. I appreciate that, that's solid, solid advice. Well we are out of time here. I do want to say to all of you listening in I hope you found something of value in today's conversation. Please feel free to reach out any time if any of you listeners have any thoughts in terms of topics or other folks that you'd like to listen to, in terms of have them join us on the podcast. Thanks for listening and have a good one. Bye bye.

 

 Brian Cuban, the younger brother of Dallas Mavericks owner and entrepreneur Mark Cuban, is a Dallas based attorney, author and addiction recovery advocate. He is graduate of Penn State University and The University of Pittsburgh School of Law. Brian has been in long term recovery from alcohol, cocaine and bulimia since April of 2007.

His first book, Shattered Image: My Triumph Over Body Dysmorphic Disorder,” chronicles his first-hand experiences living with, and recovering from, twenty-seven years of eating disorders, and Body Dysmorphic Disorder (BDD).

Brian’s most recent, best-selling book, The Addicted Lawyer, Tales of The Bar, Booze, Blow, & Redemption is an un-flinching look back at how addiction and other mental health issues destroyed his career as a once successful lawyer and how he and others in the profession redefined their lives in recovery and found redemption.

Brian has spoken at colleges, universities, conferences, non-profit and legal events across the United States and in Canada. Brian has appeared on prestigious talks shows such as the Katie Couric Show as well as numerous media outlets around the country. He also writes extensively on these subjects. His columns have appeared and he has been quoted on these topics on CNN.com, Foxnews.com, The Huffington Post, Above The Law, The New York Times, and in online and print newspapers around the world. Learn more at www.briancuban.com.

Episode 18: Diet and Exercise – A Manner of Living

Being busy is often an excuse for not taking care of ourselves, whether that means long days in the office or racking up the airline miles for business travel. As part of our Wellness Podcast Episodes, Mark sits down with Dr. Kathleen Baskett whose area of expertise is bariatric medicine focusing primarily on weight management. They discuss how to make the time to eat well and exercise and why healthy choices can positively affect your professional life.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK:

Hello. This is Mark Bassingthwaighte. I'm the risk manager here at ALPS. Welcome to another episode of ALPS In Brief. We're coming to you from the historic Florence building in beautiful downtown Missoula, Montana. I'm delighted to be able to introduce another guest this afternoon, a Dr. Kathleen Baskett. She's a physician with St. Vincent's Healthcare here in Billings, Montana and runs the weight management clinic. I wanted to take some time to talk with Dr. Baskett today in follow-up, or to continue on with the discussion we've been having on the podcast, which is a very, very hot topic among Bar Associations and within the profession now. It's just attorney well-being.

Dr. Baskett, before we get into some more interesting discussion, can you just take a few moments and tell the audience a little bit about yourself

DR. BASKETT:

For sure. Thank you for having me. It is an honor to be here. I've been practicing medicine for about 30 years. My area of expertise at this point is bariatric medicine, which essentially is weight management, and it is treating people dealing with obesity. Right now in our country, obesity is the first leading cause of preventable death.

In my clinic, I'm working with people who want to lose weight in a nonsurgical manner, but also helping to care for people who are preparing for bariatric surgery, and subsequently caring for them after they've had that surgery.

MARK:

As you're well aware in terms of… we'd had some time to dock and visit a little bit. You do know that I travel. I can share lawyers, whether some lawyers have quite a bit of time on the road and others just have very full days, long days. I mean, they may come home or not come home for supper, but they're back to the office and spend time in the evening and whatnot and just maintaining even just healthy eating, healthy eating habits I think can be a challenge.

I'd love to hear your comments on the importance of a healthy diet, and then maybe following up on that, thoughts that you might have in terms of how the busy professional, whether on the road or just spending lots and lots, too much time in the office, how we might to address that so that we can help maintain just a healthy lifestyle as it relates to food.

DR. BASKETT:

For sure. In medicine today as to many of the issues that we deal with are more chronic diseases versus infectious diseases of years' past, and the chronic diseases are really linked to the lifestyle choices that people make, obesity being the underlying cause of many to include diabetes type II, high blood pressure, elevated cholesterol, sleep apnea, even certain types of cancers.

Again, the choices that we make with our eating and activity are crucial, and it's very difficult when people are busy, they're working many long hours, when travel is involved because, as we know, there's an abundance of fast and convenient type food that surround us, and it is difficult to eat in a healthier manner when we're out on the road, or even just if you want to eat something quickly. But there is a way to eat in a healthy manner. It can be done.

MARK:                                  Well, practical tips. I know one of the things that I've learned over the years is I've learned about protein bars, and I've done a little reading and research on my own, and in conjunction with my own physician, we've started to move away from the high-carb diet. I used to be a guy, I mean, I would love to drop into Starbucks, get my chocolate glaze donuts and a big latte, and just, I'm back in the car, but you don't feel well with that.

Now, learning to switch over to ... For instance, one of the things I enjoy are just these protein bars that you can get from Costco. I will tend to do that. Hope on an airplane, I might have a protein bar. If I have a little time in an airport, I might stop and get some eggs or something like that, but I'm just trying to find ways to adjust, think differently, I guess. Do you find that to be a challenge? Do you ...

DR. BASKETT:

Well, it is a challenge, but you can make these healthier choices. I think some of the restaurants that surround us or that we encounter are beginning to be cognizant of that and offer some healthier choices, and definitely, packing protein bars, protein drinks, healthy nuts, grabbing a yogurt instead of a soda, it's a healthy alternative, and people truly feel better.

All of these simple carbohydrates, when after we eat them, they tend to shoot our blood sugars up quite rapidly, whether we have diabetes or not, and then those blood sugars quickly plummet, and then they begin zig-zagging throughout the day, and that really just triggers that hunger and cravings for more carbohydrates, it sets in more fatigue, and then in time, it's a way of just eating poorly and not making healthy choices.

MARK:

One of the things that I became interested in just, you read now, and again, I'm curious as to, is this something you hear in the media, is there a truth to this, but lots of people, "I know. I'm traveling a lot, and I shouldn't be drinking all these cokes. It's just a lot of sugar and things, so I'll make this switch, and I'll jump into these zero-calorie beverages," but at times I've heard that may not be the best decision. Are those drinks an appropriate alternative? If I'm going to give up Mountain Dew, can I do the zero-calorie, caffeine-

DR. BASKETT:

Do the diet Mountain Dew.

MARK:

Diet Mountain Dew. Is that-

DR. BASKETT:

Well, there has been some research that shows that some of the artificial sweeteners aren't as healthy for us as we'd like to think that they are. Some studies have shown that they will interfere with blood sugar and insulin regulation in the GI tract. Also, some studies have shown that the artificial sweeteners will send messages to the brain to make us want to crave and desire more sweet, more carbohydrate.

I really suggest to my patients that water is that best alternative, the fine quality H2O. You can get carbonated water that's flavored because people do like carbonated beverages. You can put slices of lime and orange and cucumber in water. An occasional zero-calorie is great, but it shouldn't be a preponderance of one's beverage intake during the day.

MARK:

Do you think, again, looking at the busy schedules and travel schedules and these kinds of ... How much do you think that planning plays into this? Is that a way to shift gears a little bit since ... What are your thoughts about that?

DR. BASKETT:

Oh, very much so, I mean, just as professionals need to plan their schedules, calendars, and timing. Planning goes a long way in helping us to eat in a healthy manner and exercise. If you know you're going to be gone for a week just as you're packing your clothes, gathering the information you will need for your travels, you really can sketch out a little bit what might you do for breakfast or lunch because you know where you will be, and can you throw a box of protein bars, prepackaged nuts into your suitcase, that's something that's pretty easy to do.

Likewise, when we're home, meal prepping on weekends, cooking a little bit of extra and freezing makes it easy to have a pretty simple but yet healthy meal during the week.

MARK:

How about, how does exercise play into all of this in terms of, again, thinking about just healthy eating, healthy diets, overall health and the obesity component. It's ...

DR. BASKETT:

Again, I think exercise is the key. As I tell my patients, if they really want to lose weight, if they want to keep them off, exercise isn't a luxury. It really becomes a necessity. Sometimes, they encourage them to think about, if they had cancer, would they make the time to have chemo? Everybody typically says of course they would, so if you want to lose weight and become healthier, why not choose to make the time to exercise and to eat well?

Several of my patients have told me they actually put on their calendar "time to exercise," but they'll put it under the guise of Wellness Committee, so for anybody else seeing their calendar, they have an appointment at 2:00 in the afternoon. They're on a Wellness Committee, and it might mean that they're leaving the office to go for a 20-minute walk, but it easily ... Well, not easily. It does take work, and it's hard, but it can be planned in. We can make an appointment to exercise just as we make appointments to do many other things. It becomes a commitment to ourselves.

MARK:

One of the things that I have found and was kind of fun, I don't need this tool anymore, but it kind of started just a change. I got into one of these little Fitbit things. You set these goals, you can track yourself on the Internet, and the further you walk, well, you've walked across New Zealand. They give you all of these things, but I found myself trying to get steps, and even if you have a little time between planes at the airport. Instead of going into one of the Sky Clubs or Frequent Flyer Clubs or sitting down and having a bite, you just walk around a little bit and see what kind of steps you can get in.

I really like your comment. I want to underscore this in terms of, I think people tend to look at dieting, exercise, these kinds of things as maybe quick solutions and things, but they have trouble committing to it because we don't seem to view ... Well, getting overweight or getting out of shape, at least right up front, it's not like you're facing a diagnosis of cancer, but you're spot on. I mean, when you look at the long-term health consequences in terms of overall well-being, but then you look at diabetes and these kinds of things, if you have diabetes or you have cancer, you are going to seek treatment and deal with it. It seems to me, I like that perspective as a way to encourage myself. I just think that's a great, great approach.

The one other thing I'd like to visit on a little bit, how ... I just use the word diet as an example, and people will go in, and first of the new year, they make these resolutions. But diet really isn't the appropriate way to look at this. I mean, do you have thoughts about the term diet. To me, I've come to learn, I think that becomes a problem. It isn't about diet. Am I correct?

DR. BASKETT:

Well, I would agree, and I usually don't use the word diet when I'm working with my patients. We talk about eating plan. Many of my patients will reference diet, and I tend to guide them with the different choices of words because the diet is something that people go off of. My goal when working with patients is to help them truly make lifestyle change. It's lifestyle change and making changes and habits that will help someone stay at his or her new weight.

It's interesting, the Greek word for diet is diaita, and what that truly means is manner of living. For me, that's what this is all about.

MARK:

I love that. I love that. We're just about out of time here. I guess I'll give you a moment if you have any final comment or thought to share in terms of people that are just ... Again, busy, busy days, wanting to make the change, thinking about it might be a good thing to do and all that, but it's just getting started. Do you have any final closing thoughts of encouragement or an idea of how to make this kind of a change?

DR. BASKETT:

Well, what I would say is it doesn't have to be all or nothing. Some people often think, "Gosh, if I don't go to the gym and workout for 60 minutes, why bother," or, "If I don't eat salads three times a day and healthy protein, and then I had a bowl of ice cream, then I have blown my, quote, 'diet.' I'll just forget about it." You just have to start somewhere. Maybe it's a matter of truly taking a five-minute walk when you have that little break in between appointments with clients or you have 10 minutes during your lunch, and it's a beautiful day outside, and you can walk around the block.

You had a bad day, and maybe you overate or you had too many sweets. The answer to that would be so? So what could you do differently the next day? It doesn't mean that you give up. You just have to start somewhere, and you build on one habit at a time, little by little.

Interestingly, research shows that people don't need to lose all of their excess body weight to improve health. Research shows that if people can lose 5-10% of their initial body weight, they can markedly reduce their health risks. It can be overwhelming for somebody who weighs 300 pounds and that may be ideally should weigh 150 thinking, "Where do I begin?" but if that person could lose 15-30, that's a marked difference and a marked improvement in health.

MARK:

Yeah. Interesting. I like the old saying, every successful journey starts with that very first step-

DR. BASKETT:

It's a great saying. It's a great saying.

MARK:

It's just ... I like keeping the focus on where we're at getting started as opposed to, "I have to do it all right now.” Well, listen, Dr. Baskett, it's indeed been a pleasure. I really appreciate you taking the time to sit down and share a few thoughts with our audience.

To those listening, I hope you found something of value in today's discussion, and please feel free to reach out any time if any of you have any thoughts in terms of topics of other folks that you'd like to see if we can have join us on the podcast.

Thanks for listening. Oh, and my email address, if you'd like the reach out mbass@alpsnet.com. That's again, mbass@alpsnet.com. Thanks much. Bye-bye.

Dr. Kathleen Baskett

For Dr. Baskett, medicine is not a job; it’s a calling. A firm believer in patient-centered care, she works daily to help each patient reach his or her optimal health and quality of life. She takes the time to get to know each patient, sharing in their joys and sorrows, celebrations and setbacks as they navigate their weight loss journey.

Dr. Baskett is board-certified in bariatric medicine. She attended the University of Maryland School of Maryland and completed an internship within the University of Maryland Medical System. When not treating patients, she enjoys exercising, practicing yoga, being outdoors and traveling. She also loves to spend time with her family.

Episode 17: Studying Self-Medication and Seeking a Remedy

Patrick R. Krill, JD, LLM shifted from the practice of law to addiction counseling at the Hazelden Betty Ford Foundation. In partnership with the American Bar Association, Krill collaborated on a study of substance abuse among members of the legal community surveying approximately 15,000 lawyers in 19 states. Mark was able to sit down with Patrick to discuss the study and what can be done to combat addiction and promote lawyer well-being moving forward with a particular focus on solo attorneys and young lawyers. This is the second episode in the Wellness Podcast Episodes.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

 

MARK:                 

Hello. Welcome to another episode of ALPS in Brief, the ALPS risk management podcast. We're coming to you from the ALPS home officer in the historic Florence building in beautiful, downtown, Missoula, Montana. I'm Mark Bassingthwaighte, the ALPS risk manager, and I have the pleasure today of sitting down with Patrick [Krill 00:00:25]. Patrick has been involved with the National Task Force for Lawyer Wellbeing, and we've been having some podcasts on lawyer wellbeing, and it's really a pleasure to have Patrick with us. Patrick, can you take a few moments and just introduce yourself? Tell us a little bit about yourself.

PATRICK:            

Sure, sure, Mark. Thanks for the invitation to join you today. Quickly, my background is that I'm a former practicing attorney who after about seven and a half years in the profession, realized that I was, as many people at some point in their career do, I was looking for something else and so I made the not easy decision to return to school and I actually pursued a Masters degree, earned a Masters degree in addiction counseling. I knew that counseling, something in the sort of psychology field, was a little bit more aligned with what I was trying to do and what I was seeking in my professional journey to be more in a helping profession. So I got my Masters in addiction counseling and I did my clinical training at a place called Hazelden, which has now become Hazelden Betty Ford, as the two treatment centers merged, and I was then hired as the director of a treatment program for attorneys, judges and law students at Hazelden Betty Ford.

I was with that organization in total for about six or six and a half years, during which time I had the opportunity to counsel hundreds of lawyers and judges and law students from US and some international patients as well, who were struggling with substance use disorder, so what we would typically think of as addiction or substance abuse, but often they were also struggling with a mental health disorder as well, like depression or anxiety. And so I really did, through that work, have the opportunity to understand many of the challenges that lawyers face both in the onset of addiction and depression, but also in what will be probably interesting to your listeners, how do you go back into the practice of law and really maintain whatever wellbeing you may have established while you were away, healing and getting well. Because, as you know, the practice of law is quite demanding and it can be quite stressful and it can put a lot of strains on people.

So I was there and I then I left there in 2016 to launch my own consulting practice and I now work primarily with large law firms and midsized law firms to help them navigate addiction and mental health problems. So whether that's helping them draft policies, or doing in-house training school, or when crises emerge, helping them deal with those crises. It's a variety of things that I do in that space, but it's all related to addiction and mental health. That's where I've been professionally and what my experience looks like.

In relation to that, I'll just mention quickly two things, I was the lead author of the 2016 ABA Hazelden Betty Ford study on addiction and mental health problems in the legal profession, which gave us the most robust look at these issues in terms of data that we've ever had. It was a comprehensive survey of about 15,000 lawyers in 19 states and all geographic regions of the country. What we found there really did lay the groundwork or served as the predicate for the second thing that I wanted to mention, which was the National Task Force on Lawyer Wellbeing in the report published, that group was formed largely in response to what that ABA study found. From there, we then brought together stakeholders from around the profession, formed this task force and worked for about a year on a report that outlines things that all different sectors of the profession can be doing to try and reduce the prevalence of both substance abuse problems and mental health problems and to just sort of improve the overall wellbeing of lawyers and the profession generally because, I'll just conclude by saying this, the quick and dirty or thumbnail version of where we are in the legal profession, is we have a lot of problems as it relates to the health and wellbeing and psychological distress of practicing lawyers. So we've got a lot of work to do.

MARK:                 

Yeah, I couldn't agree more. I have taken a look at the study, the Hazelden study you referenced and authored, incredibly well done. I have been doing some lecturing on it in recent times, and what one of the surprises for me was ... I've been in the risk management sector here for 20 years now, and we've been doing our part, there's lots of us involved in trying to deal with mental illness and addiction issues, and I always thought that we were making progress, but if there's anything that I learned from the Hazelden study is over the past 20 years, it seems to me the problem has gotten more severe. I was really surprised by that, looking at older studies and data sets, so you are absolutely spot on, we've got a lot of work to do. I think the task force is a great place to start. Can you tell us a little bit about the work being done in the area of lawyer assistance and impairment? Where is the task force taking us?

PATRICK:            

Sure, yeah. So what the task force report did, really, it broke out recommendations for various stakeholders in the profession. So for example, there is a set of recommendations for the judiciary, things that they can be doing within their own sphere of influence to improve lawyer wellbeing, there are recommendations from law schools, there are recommendations for professional liability carriers, legal employers, lawyer assistance programs, and it's meant to provide tangible, concrete recommendations that each of these different groups can look to and begin to incorporate in their own world. There are also general recommendations for the whole profession to try and reduce the level of incivility and toxicity in the profession, which as you might imagine, feeds into depression. It can also feed into substance abuse in the form of self medication.

Just as a quick aside, I can tell you that a lot of the patients that I treated in my program would report that they never really even liked drinking that much, or certainly it was never their intention to find themselves addicted to alcohol or drugs, but it was really self-medication. It was the only way that they knew how to blow off steam. It's just a form of dealing with psychological distress and then it turned into its own problem. We know that that's a real phenomenon in the legal profession specifically.

But beyond there, beyond that, there are other recommendations for the profession, for individual stakeholders. I would encourage anybody listening to this podcast to simply Google or perhaps you can publish it as a companion to this podcast or otherwise circulate through  your listeners, the task force report, it was published ... Open access, there are no restrictions on its use, you can copy it, distribute it, do whatever you want with it, there's no restriction at all on that. I would encourage people to take a look at it and see what they might be able to take from it and bring into, for example, their own local bar association or their own other professional group that they might belong to in the profession. So it's just out there in the public domain for lawyers to begin incorporating.

But beyond that, there are also formal efforts underway at the state level, to bring the recommendations down from the national, to the state, to the local. So for example this past week I was at the National Conference of Bar Examiners Annual Meeting and I was on panel with a couple of my task force co-authors, and we were surveying the audience, there were about 40 or so chief Justices from jurisdictions around the US in attendance at our session, and we were surveying the audience, and it's clear that in more than a dozen states around the country, the chief Justices are taking the lead on this initiative and they're saying we should form a statewide task force to look at implementing these recommendations at the state level. They really are trying to filter it down in their jurisdictions. And those states that aren't already forming their own internal, if you will, task forces, are being encouraged to do so, and I'm sure that a lot more are going to be coming online over the course of the next 12 to 18 months.

That's how you can visualize this, if you will, changing the culture of the profession, which is what we set out to do. It was this national report intended for the whole US legal profession, all of the different sectors and stakeholders. But now in terms of implementation, since there isn't one national body that, for example, controls the profession, it really does come down to statewide and then even local implementation of the report recommendations.

MARK:                 

I will see that we get a link to that for our listeners. We definitely will post that with the blog.

As I listened to what you're talking about, you made a comment about transitions, and I'd like to explore that briefly in this way, what do you think, if you will, the roadblocks long are as a profession, has there been much discussion or look at that? How do we remove the roadblocks to the degree that you see them?

PATRICK:            

Yeah. Well, I mean that was also one of the goals of this task force report to suggest some things that we can do. I can tell you my view, which is also consistent with the task force view, is that one of the biggest roadblocks that we have to lawyers to taking care of themselves and getting help when they need ... Let's just frame the issue more specifically, let's focus, just for now, on the more narrow issues of addiction and mental health problems. When it comes to those specific issues, when lawyers are struggling or they think they may be struggling, what keeps them from raising a hand or reaching out, picking up the phone, trying to get some sort of help, telling a colleague they're struggling, is a fear of what that's going to do them professionally, a fear that it could jeopardize their reputation, jeopardize their clients, possibly it could somehow impact their license, and so there's just a lot of fear around these issues. That's why lawyers tend to try to deal with the problems by themselves, on their own, or to just ignore the problems and pretend like they're not there.

So to the extent that we can change that culture, that we can begin to destigmatize seeing a therapist, destigmatize going to treatment, destigmatize being in recovery from addiction or having overcome depression or chronic anxiety, that's going to go a long way towards improving the landscape around these issues. That's one area that we need to work.

The other is really chronic, the chronic stress and the demands of the profession. Now, some of that is probably not likely to change, I mean if you think about client demands, if you think about the expectation of being available all the time that technology has now brought into our lives, some of that is just ... I don't have easy answers for how you solve that, but what we can do is to try to reduce the level of toxicity and incivility amongst and between ourselves. If we, as a profession, begin to just be a little bit more civil and maybe take a little bit of the adversarial nature out of our adversarial system, that, again, could reduce some of the stress and anxiety that lawyers experience which leads to other problems.

MARK:                 

In my experience, again, in terms of reading various articles and studies, lots of this initially is directed to Bar Association, directed at large firms, these kinds of things, but the reality is a tremendous percentage of lawyers practicing, at least in the United States here, are in the solo law firm setting. Do you have thoughts or does the report in terms of the recommendations ... Do they address this segment? If so ... I just, again, I'm curious of your thoughts, how do we deal with the problem on the front lines of the solo, small firm setting?

PATRICK:            

Yeah. Well, I think you're absolutely right, the majority of lawyers don't practice in large or really firm of any size settings, and they are in fact solo or small firm lawyers. The report doesn't include solo practitioners as a stakeholder, if you will, for the reason that it was really geared towards institutions rather than individuals because the thought was about making change at the system level, the systems of the profession.

That said, I know that lawyers who are in solo practices or small practices, they often face really, really ... The burdens they face are greater than lawyers practicing in larger farms and the challenges they face in terms of being able to take care of themselves are also sometimes greater. For example, if you’re a solo practitioner and you're addicted to alcohol and you know it's causing a problem and you know you should probably get some help, you just can't go away or you don't have the resources, you can't take time away from your practice, you don't have anyone to help you, that's a real challenge. Similarly, if you're in solo practice and you're struggling with depression, you don't have somebody that you can offload some of your work to for a period of time so there are real logistical challenges that solo attorneys face that aren't present in the bigger firm setting. Unfortunately, in that arena, we don't have resources that are as robust as they should be systems. We have lawyer assistance programs in most states around the country, have a lawyer assistance program that is in some ... Some of them are very well developed and very well staffed and they have great programming, others in less populous states, they might be just a less effective resource because they don't have as large a staff or they don't really have the ability to serve as many lawyers.

But that's one place that solo practitioners have historically been able to find some assistance when they don't have the resources to come along with being a larger firm. So to the extent that anyone out there is not familiar with your state's lawyer assistance program, I would encourage you to explore it because they may in fact be a really good resource for you and have some, if not, live counseling sessions that they would offer or groups that they may facilitate that you would be able to attend. Chances are they're going to at least have the ability to direct you to other resources and to provide content and just put you on the right path.

MARK:                 

Yeah. I want underscore for listeners that these programs are confidential.

PATRICK:            

Yes.

MARK:                 

I think at times people are afraid to reach out. Again, as you mentioned earlier, I don't want to be labeled mentally ill or something like this, but the resource that you're talking about here, in many, many states, is really a very good resource. It is not about weeding out the week among us, it is about helping, those of us that have these challenges and struggles to get back on track and to get back into the profession in a stronger, more competent, healthy way. So I think, again, to those of you listening, if you're personally struggling with a problem or know someone who is, please don't minimize the value of this particular resource.

PATRICK:            

Yeah, I agree with that and I just want to pick up quickly on something you just said about it getting back on track. I've worked with a lot of lawyers who have gone through the rehabilitative process, and if I haven't worked with them professionally, I've known them, and you really can come out, not only as good as you were before, but better. So you can have increased confidence, and increased performance, and focus, and reliability, and stamina, and clarity, I mean there's just so much value in getting ahead of the problem and doing something about it and getting some assistance. It is, by no means, is it an indication of a weakness or a flaw. In fact, I think that getting help and saying I need some help, I need to take care of myself for a period of time, that is in fact demonstrative of good judgment, and that in my view, makes you more professional.

MARK:                 

The last brief topic or issue I'd like to talk about is when I think about, again, the solo, small firm setting in terms of the majority of lawyers practicing here, and also just thinking about some of the data in the study, which surprised me, and that's that younger lawyers are really struggling, even in the law school setting. It seems to me  that that in terms of the institution or an institution that can really assist in changing this long-term, I mean this isn't going to happen overnight, but is working with law schools to change some things, is there anything going on in that arena, in that space?

PATRICK:            

It is, and you're right, because that is essentially the beginning of our professional journey and that is also where a lot of the problems start, it's where a lot of the mindset really takes hold that if you have a problem you better keep that to yourself. So there is a lot happening at the law school level there within the American Bar Association's commission on lawyers assistance programs, which I'm a part of, we have a lot of energy devoted to facilitating change in law schools, but I know a lot of individual schools are beginning to take a long, hard look at this. Some schools are being forced to, Harvard Law School, for example, which is arguably where some of the best and brightest lawyers in the country, they recently published a study on the health and wellbeing of their own law students because the students forced the administration to conduct the study because they knew that there was a lot of distress happening all around them. The results of that were pretty, in their words, grizzly, and so the students themselves are beginning to wake up to these issues and they're really tuning in to the increased focus on lawyer wellbeing and they're saying, this isn't what I want for my professional life, this isn't what I want waiting for me after the end of three years and all of this hard work.

So there's change happening at the grassroots level there, which I think is very encouraging because that is where the change needs to start, because if you come into the profession, law school is a transformative process, it changes the way people think, it changes their attitudes around things like substance use and mental health, and it really kind of makes them view their reputation as being more important than anything else. If we can start chipping away at some of that problem thinking, that's going to do a lot of good for the younger generation.

MARK:                 

Well, Patrick, I really, really appreciate you taking the time to talk with us today and I really wish tremendous success for you and your fellow members of the task force. We're off to a great start. I should say you're off to a great start, and it seems like we're getting some real traction more and more at a grassroots level, and I really hope that that continues.

To our listeners, I would like to say thanks for listing in yet again. If in future you have a topic of interest that you'd like to see discussed on the blog, please don't hesitate to reach out to me at mbass@alpsnet.com. That's a wrap. Thanks for listening. Bye-bye.

 

Episode 16: Attorney Well-Being

 

Mark Bassingthwaighte sat down with ALPS' Executive Vice President Chris Newbold earlier this year to discuss the topic of Attorney well-being. They take a look at the challenges facing the profession and the steps being taken across the country to make improvements and provide resources. To learn more, visit the National Task Force on Lawyer Well-Being's Resource Page, featuring the report and more information on what is happening in your state. 

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK: 

Hello, this is Mark Bassingthwaighte. I'm the risk manager here at ALPS. Welcome to another episode of ALPS in brief. We're coming to you from the historic Florence building in beautiful, downtown, Missoula, Montana and I'm delighted to be able to introduce our guest this afternoon, Chris Newbold, the executive, vice-president of ALPS. We're going to talk today about attorney well-being. Chris, before we begin with this topic, can you take just a few minutes and tell our audience a little bit about yourself?

CHRIS:

Yeah, Chris Newbold. As Mark said, executive, vice-president of ALPS, where I have really the benefit of playing a variety of different roles within the company. I've been with ALPS since 2002 and I work closely with Mark on making our lawyers better practitioners, as well as managing our bar relationships around the country. As many of you know, ALPS is endorsed by more states than any other and it's a great opportunity to be able to understand the value of the organized Bar and we work with those Bars to aid them in best serving their members.

MARK:

Very good. We recently gave a presentation in Idaho on attorney well-being and you had a person al story that really struck me. Can you talk a little bit about your personal interest in this whole subject area of attorney well-being?

CHRIS:

Yeah, I had the great fortune of attending The University of Montana for my legal education and one of the great things about attending a smaller law school is the ability to be able to go to a school with a smaller class. I had a class of about 70 students or so in my first year. The interesting thing about how I've seen my class as they've sent through their professional development is I've unfortunately seen four of my classmates, in the 16, 17, 18 years or so since I've graduated, actually commit suicide. It's an issue that's hit home for me about just, where is our profession at? And what is it that drives folks to think about that turn of events? And what can we do about it as a profession that cares about its brethren? I've decided to lean in on the subject and get more active on a national level.

MARK:

What a wonderful thing to be doing. What we're seeing around the country in terms of just Bar Associations and this whole topic is just becoming a very, very important issue to focus on. As we think about this practice, in terms of malpractice prevention, you know that kind of thing. How does ALPS view the whole issue of attorney well-being?

CHRIS:

Yeah, I think it's a critical one that I think often time malpractice carriers don't focus on enough. A lot of times we focus our time ... A lot of your time, focusing on law practice management, technology trends, cyber security, but the interesting thing is that I think we all fundamentally agree with the principal that to be a good lawyer, one has to be a healthy lawyer. The reality is-

MARK:

Of course.

CHRIS:

The reality is, that in many of the claims that we see, we see issues associated with substance abuse, with mental health types of issues, depression, stress, that ultimately begins the ball rolling in terms of a lawyer's life beginning to spin out of control. We see it, I think in our claims activity, that sometimes some of these issues really sit at the forefront of why a claim and an exposure to ... a susceptibility to a claim, comes to the forefront. The more that we can be at the forefront of making lawyers better lawyers through being healthier lawyers, I think ultimately it makes ... it makes good sense for us, but more so it makes good sense for the profession.

MARK:

Right, yeah, when I do a lot of lecturing on the topic, I often talk about this whole issue as being the real cause of malpractice. Carriers, we record, in terms of this statistical data. We talk about how many countering missteps were there. We talk about what the mistake was, but we really don't track and record why the mistake happens and these are the issues. It is substance abuse. It is depression. It is Alzheimer's and all kinds of things, so this health topic is very, very hot for malpractice prevention and just how I see it in legal circles.

You have become involved in the nation task force on attorney well-being. Can you talk to us about this came together? And how it ultimately wanted to measure its success. Just bring us up to date on what's happening with the task force.

CHRIS:

Yeah, the task force was conceptualized and initiated by the ABA commission on lawyer assistance programs. The [inaudible 00:14:40] community if you will.

MARK:

Yes, okay.

CHRIS:

Also, the National Association of Bar Council and the Association of Professional Responsibility Lawyers and I think those groups were interesting to come together and say, "Wait, we may be facing a profession that simply is falling short when it comes to well-being." I think that their intention was, it's time to have a national conversation about where the legal profession is in terms of well-being and that collection of entities, that was both in and outside the ABA, was created in August of 2016. It has expanded to include the ABA Standing Committee on Professionalism, the ABA Center for Professional Responsibility, the National Association of Bar Council, the National Conference of Chief Justices, the National Conference of Bar Examiners, because when you really thin about well-being, it really spans the totality of stake holders in our legal community. It was from those groups that we brought these entities together and started to say, "What can we do? How should we think about lawyer well-being?"

I think from a measurement standpoint, it all became about, what can we do to increase the health of our profession and I think part of that was getting moving on bringing the stake holders together and thinking about, What is it that we can do to ignite a discussion about the subject that ideally transforms itself into a movement, that brings various stakeholders together to think about what each individual stakeholders' role can be in terms of advancing the ball.

MARK:

Okay, yes. When I ... I like, you've talked about how we're bringing people together. We're starting a conversation, but this group has gone well beyond just having a conversation. There really has been, if you will, a crowning achievement here in terms of a publication, The Path To Lawyer Well-Being; Practical Recommendations for Positive Change. Can you talk to us about what this report aimed to do and why is it gaining the traction that it is in such a short period of time?

CHRIS:

The report was, again most of the folks who are associated with the National Task Force are volunteers, so to ignite a movement if you will, we feel like we needed to put together a definitive report on the ... How do we create a movement to improve well-being in the profession? We basically set out to lay out a blue print, if you will, and to say, what is the issue? How do we define well-being? How do think about what other reasons are to take action? What are the calls to action that different stakeholders can take? And then to offer concrete, definitive steps that were really authored and peer-reviewed by individual stake holders groups to be able to then lay forward a, if you want to take action on this particular issue here are some things that you can think about.

If you get a chance to take a look at the report, widely available obviously on the internet, it really does lay out a host of 50, 60 recommendations if you will on how we can improve on the well-being front. It really brings in the totality of stakeholders that can play a role in the particular fight. That could be from the judiciary to the regulators to the Bar Associations to the law schools to the lawyer assistance programs, even to the professional liability carriers. It was really that kind of semblance of how do we bring all of the different groups together to put together a definitive report that ideally would ignite a national discussion. Which, we're really pleased that we think that it has, although just when we think that we've ignited a movement if you will, some people are just hearing about it for the first time, so we've got a long way to go in terms of where we want to get to. We think that the first step in terms of authoring this report, was a great first step on behalf of the National Task Force.

MARK:

Oh, absolutely. I couldn't agree more. We're talking here about the health of the legal profession. Can you share some thoughts on just the overall benefits of lawyer well-being?

CHRIS:

Yeah, I really think it breaks down into three reasons. One, it's good for business. When you think about lawyer health, it's an important form of what I would call human capital, in terms of providing a competitive advantage in the law firm environment. The more that job satisfaction predicts retention and performance, when you can cultivate a culture that ultimately is embracing of well-being, you lower turn-over, you heighten client satisfaction, you heighten productivity and ultimately for law firms, you heighten on profitability. For me, the first stop is, I think, it makes sense from a good for business perspective.

Secondly, I think it's good for our clients. You work in the business of ethics and professionalism and when you think about rule 1.1-

MARK:

Right.

CHRIS:

That requires lawyers to provide competent representation and when we think about a lawyer's duty of competence, we all operate better when we operate from a position of strength and health than we are from one of deficiency or depression or stress. When you look at it just from the indispensable part of a lawyer's duty of competence, well-being makes sense, right?

MARK:

Right.

CHRIS:

And then I think the third element is just this notion of, it just is the right thing to do from a humanitarian perspective. From thinking about how we work with our fellow lawyers. We knew to do more to just do the right thing. I think sometimes there's a stigma attached for thinking about what's in the best interest of others. We feel like well-being, it's good for business. It's good for clients. It's the right thing to do.

MARK:

You know and I ... This is interesting. I've shared, you know, I do a lot of lecturing as you well know on this whole topic of attorney well-being, but coming at it from a risk management, malpractice perspective. So much of my focus is really on addressing, we need to learn to recognize, address substance abuse, mental health. Try to teach steps that we can take to move forward and get help where help is needed, but I'm sensing here, that what you and the task force is focusing on is a broader conversation. Where looking at well-being as something more than just addressing the substance abuse issue, the mental health issue. Is that correct?

CHRIS:

I think that's exactly right and that's not to diminish the real challenges associated with substance abuse, depression, stress, mental health types of issues. It's really, for me, it's thinking about, where are lawyers at in terms of satisfaction? In terms of life satisfaction? One of the things I really enjoyed, you know some of the kind of social science elements of the report, was really defining lawyer well-being and thinking about it as a continuous process in which lawyers strive in each dimension of their life. Whether that's the emotional dimension of their life and recognizing the ability to identify and manage one's emotions to support mental health. Whether you're thinking about the occupational well-being and how much satisfaction and growth and enrichment are you getting from your work life? The intellectual component of well being and continuously learning and challenging one's self in terms of ongoing development. The spiritual element of well-being. How are we doing with respect to a sense of meaningfulness and purposefulness in all aspects of our life? Obviously, the physical one.

We just turned ... A lot of New Year's Resolutions going on right now. The notion of regular physical activity, eating well, sleeping well and then the social element of well being. Are we developing a sense of connection, belonging and support networks? When you think about well-being, not just from the substance abuse side, but from the emotional, the occupational, the intellectual, the physical and the social side, there's really a wide-ranging compendium of elements that I think ultimately drive into the well-being equation.

MARK:

Yes, yeah. Okay. Very good. How would you assess where this whole well-being movement is today and do you have any thoughts on where it's going to go? Particularly in light of what the task force has done here?

CHRIS:

I think that we're in a very interesting position. Someone recently mentioned to me that this is the right discussion point at the right time for the profession and I happen to agree with that. I mean, I think that the report itself was a call to action. I think the stakeholders have been identified and what role people can play. I think there's a lot of work that we can do in ending some of the stigma surrounding help seeking behaviors that sometimes effect lawyers. I mean we're obviously, we talked a little bit about emphasizing that well-being is an indispensable part of a lawyer's duty of competence. I think we're at a time where it's much more socially acceptable to begin to kind of talk about these issues more openly, which begins with educational outreach and programming on well-being types of issues.

I think we're changing the tone of the profession, one small step at a time. What I'm enlightened by is the notion that there's a growing sentiment from the national, from the report, that's stimulating conversation at the local and the state level. We're seeing a variety of different state commissions and task forces come in to play, that's assessing, how are things going in local law schools? How are things going in local firms? How's the regulatory community thinking about this? How does this affect our CLE requirements? I just think there's a lot of interesting conversations going on right now that ultimately is going to lead to the type of action that we anticipated in the drafting of the report.

MARK:

I agree with you and I certainly hope so. The one thing that impressed me is the broad coverage of the analysis and of the ideas coming out of this report. For you listeners, I certainly encourage you at some point, to take a look at this report, the publication. It is quite a fascinating read. Chris, it's been a pleasure. Before we wrap up, do you have any concluding comments, remarks you'd like to share?

CHRIS:

I would just conclude by again, the premise here, which is that good lawyers are defined by healthy behavior. I think as a profession we need to be thinking about how law students are thinking about the profession, the demands that we're placing on our associate lawyers. There's a lot of kind of interesting elements that are coming to fruition here in this discussion and I remain optimistic, that while I think we have some challenges, I think we also have some of the most intelligent and thoughtful folks in our profession. The more that we can work together, collaboratively, I think that's there's definitely a yearning and an ability for us to improve the health of our profession and that's ultimately the goal.

MARK:

Sort of one of my take aways with this whole conversation is, you're reminding us to think about why we do what we do. In essence, we don't live to work. We really should work to have a life and to live and to enjoy. It just, to me it helps me start to think about priorities again. What's important.

Listen Chris, it really has been such a pleasure. I do appreciate you taking the time to visit with our listeners here on the In Brief podcast. Hopefully at some point in the future, we can get together again and explore other topics, perhaps even follow-up on this. To those of you listening, thanks for taking the time and please feel free, if any of you have any thoughts, ideas on other topics or items you'd like to hear discussed in future podcasts, please don't hesitate to reach out. You can find me at mbass@alpsnet.com

That's it. Thanks for living. I'm sorry. Thanks for listening. Have a good one. Bye-bye.

Episode 15: 2017 ALPS Year in Review

ALPS recently released our 2017 Annual Report online. Mark Bassingthwaighte was able to sit down with ALPS CFO Sara Smith as she elaborated on a year that was marked by growth and excitement for the company. 

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Hello. Welcome to another episode of ALPS In Brief, The ALPS Risk Management Podcast. We're coming to you from the ALPS' home office in the historic Florence Building in beautiful downtown Missoula, Montana. I'm Mark Bassingthwaighte, the ALPS risk manager, and I have the pleasure today of sitting down with our corporate CFO Sara Smith.

MARK:

We're going to be talking today about the ALPS annual report which is just out. But before we get into that, Sara, can you just take a little time to share with our audience? Tell us a little bit about yourself.

SARA:

Sure. Thanks, Mark. My name is Sara Smith. I've been with ALPS for 15 years. Prior to that, I had a pretty diverse background working at retail and coal bed methane exploration.

MARK:

Wow.

SARA:

All sorts of different things. I didn't think insurance would be where I would end up, but I have found it challenging and fun and quite exhilarating at times. I've enjoyed my career here at ALPS.

MARK:

Very good. Very good. Well, we are here to talk about the annual report, the numbers from 2017 and all the good things that have been happening around here. Why don't we start with some of the most basics, the things that people are most curious about. Can you share a little bit about revenue? What's been happening?

SARA:

Sure. I think the exciting thing happening at ALPS is just our growth and we have a great trajectory going forward, but we also had a fantastic 2017. We saw growth in key states like Washington and Colorado, where we saw tripled digit growth-

MARK:

Wow, nice.

SARA:

... which is super exciting, and so our overall top-line grew about 6%, which in this competitive and market environment, it's a great achievement.

MARK:

Yeah. Very good. Not only is growth important in terms of just an insurance company, but claims frequency is also a significant thing. What happened on the frequency front?

SARA:

Well, we started to think that maybe attorneys weren't having claims anymore the way the frequency number dropped. We have seen this in the industry overall in 2017, but it was great to see in ALPS as well. Our frequency dropped right below 3% so it was great, great year.

MARK:

Wow. Those are great numbers. Growth is not always built on just revenue in terms of playing with premium numbers and having savings and frequency. Can you share a little bit about what's happening in terms of policies, number of policies, number of attorneys? How are those numbers playing out this year?

SARA:

Both policies and attorneys grew over 7% in 2017 over '16. That translates to almost 18,000 attorneys in ALPS portfolio at the end of '17.

MARK:

That's a significant change from when we started all those years ago.

SARA:

It is.

MARK:

It's a very different company which is a good thing.

SARA:

It is a good thing.

MARK:

Another key component for insurance carriers is just, in terms of their overall stability as measured by surplus. What's happening in the surplus?

SARA:

Well, surplus is so important and so critical for all insurance carriers and, as a policy holder, it's something you should be concerned with when you look at your own insurance carrier. Basically, that is the actual money available to policy holders beyond what's established for reserves. It's the foundation of security and stability within an insurance company. Our surplus grew 6% in 2017. We're just up over $40 million at the end of the year. So we're in sound financial shape.

MARK:

Yeah and I think that's a good point in terms of having lawyers understand how insurance companies ... How to judge and determine how secure and stable a company is in terms of longterm presence in a market.

SARA:

Absolutely.

MARK:

Or just the ability to pay claims going forward. And these surplus numbers are key. I'd like, shortly, to shift into a little softer side of this discussion, but before we jump there, I would like to make our listeners aware. We have put up the annual report. As I understand it, it's all on our website, interactive. Do you have any comments about that? It's just ... Just go to alpsnet.com.

SARA:

Correct.

MARK:

I just encourage you folks, if you have any interest to dig into the numbers a little bit more, all of this information is available. Let's talk about the soft stuff in 2017.

SARA:

Yeah.

MARK:

You've shared some things about growth. Lots of great things happening with the company. Just fill us in.

SARA:

I think that sometimes there's a tendency to look just at the numbers and they tell a great story in 2017 but there is also a lot of foundational work that went into 2017 that is really priming the pump for 2018 and beyond. A couple of those things are ... We did a full rate study of our entire 30 years of data, right? What do we know about our attorneys and what do we not know? What are the assumptions we've made over the years and what are the surprises? So, that was a huge undertaking. Took a lot of time and I think we got some valid information out of that.

SARA:

The other thing we did is we heard from our policy holders that maybe there was some things that we could do in our policy forms that would be better and more customizable to them. We took a hard look at our policy and developed three new policy forms to better serve our customers. That is a tremendous amount of work.

MARK:

Yeah.

SARA:

We spent most of '17 working on that. Of course, that's just the easy part. Now, we have to ... At the end of the year, we started filing our forms and rates and policies in all of our states. So, now we're hurry up and wait and see what happens.

MARK:

Yeah, yeah, yeah. We're also at a point where we're beginning to expand jurisdictionally. Any comments on what's happening there?

SARA:

Yeah, we have really put some effort forward to diversify our book both geographically as well as just from a demographic perspective.  We did see significant growth in Washington and Colorado and we're going to continue to see that expansion play out. We recently were approved in Texas and starting writing business in April. So that's really exciting. We're on the march to get the last couple of states and get our Certificate of Authority. I expect that our footprint will be much different by the end of '18 then it even was in 2017.

MARK:

And while we have been recognized as a national insurer, we really now are on the verge of truly being national in terms of just a presence throughout the entire United States, which is exciting.

SARA:

It is exciting.

MARK:

It really is. Lots of opportunities coming. There's been some investments in technology as well. Can you share a little bit about what we're doing?

SARA:

Sure. I think that the consumers ... Consumers overall are changing and they're changing their purchasing patterns and the way that they like to access their information.

MARK:

Yes, right.

SARA:

I think that it's hard for insurance companies especially. We all have legacy platforms and we have to sometimes just rip the band aid off. Start over. We are working on finally e-delivery and being able to get our customers what they want, when they want it. So I think it's a huge task and it's much more complicated than you think it would be, but we're getting there.

MARK:

Very good. Very good. That's pretty much what we wanted to share. Do you have any closing comments? Exciting things to look forward in 2018? What's on your radar?

SARA:

Wow. So, 2018 right now is ... I'm really watching our rate implementation and execution and making sure that we're doing that in the right way. I think that going into new states is super exciting. How do we build traction? What does that look like? What are we going to learn? Cause you know we're going to learn a lot. We just don't know what it is at the point right now.

MARK:

And I'm looking forward myself in terms of one of the guys getting on the airplane so we can go to a few new places. Get a few more miles but-

SARA:

Right, right, right.

MARK:

To meet some new folks out in these new states. Doing some lecturing and what not. They are exciting times. Well, Sara, thank you very much. It's been a pleasure. To all of you listening, I hope you found something of value today and I encourage you, if you have any interest in learning more about what is happening here at ALPS, to visit alpsnet.com. There is a link to the annual report interactive and there's some great information there. In addition, if any of you have any questions or topics that you would like to see addressed in the future ... Or even speakers you'd like to hear on the podcast, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks for listening. Bye-bye.

 

Episode 14: Am I Solving the Right Problem?

Staying relevant. Embracing technology to increase efficiency. Investing the time it takes to improve. Attorney and cultural ambassador at his firm in Tacoma, Washington, Jordan Couch connects with with Mark and offers his perspective on what a law firm can become simply by looking at everything a bit differently.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Hello, welcome to another episode of ALPS in Brief, the ALPS risk management podcast. We're coming to you from the ALPS home office in the historic Florence building in beautiful downtown Missoula, Montana. I'm Mark Bassingthwaighte, the ALPS risk manager. I have the pleasure today of sitting down with Jordan Couch. Jordan is an attorney and cultural ambassador at Palace Law. He has done some writing on redefining lawyers and we're just going to have a conversation today about relevancy.

Jordan, before we jump into our conversation, would you take a few minutes and just share a little bit about yourself and can you kind of fill us in on what's this cultural ambassador all about?

JORDAN:

Yeah, so I actually grew up out in eastern Montana, so part of me wishes I was in Missoula right now. But I am a plaintiffs workers compensation personal injury attorney out in Tacoma, Washington these days. In my office I carry a few roles, but the main one is I'm an attorney. And then in addition to that, I am the cultural ambassador of the firm. What that comes from is a couple years ago, the management team sat down at the firm and decided we needed to lay out what our mission is, what our values are, who we really are as a firm and we need to define that.

Our mission is to help the injured and every community and we have a list of seven core values that we think help us do that. My job is to make sure that we are living up to that as a firm and that we are promoting ourselves based on that, and kind of conversing about that. Because it's one thing to define your values and your mission, it's another to live them. And so, my job comes from everything from talking about it to others, to making sure that when we hire people on, they're people that share our values and are going to stay with us because they believe in those values. And also, encouraging conversation right and in the office. We have monthly values that we kind of focus on. We talk about them and share stories about them.

And then I'm also around encouraging people whenever they want to try something new in the office or pitch a case to take, or new idea for the office. I tell them make sure you put it in terms of these values and sell that to the team and talk about it that way and have it be a part of our everyday life, instead of something that we define and set aside. That's that job.

MARK:

Yeah, no, I really like that. It's a tangent here for a moment, but you find businesses of all types, to include law firms. But just sitting down and talking about mission statements and all these kinds of things. It's one thing to kind of do the preliminary work of defining who you want to be, and it's another thing to walk the walk consistently, day after day, throughout the year, year after year. I love that. That's a great idea.

JORDAN:

Yeah, it's unique position and it's taken some trial and error, but we're making new efforts on it. We constantly try it and we have to find ways to encourage people to talk about it every day. So, we have big posters around the office too, the talk about the values and are posted up everywhere. So, you can't walk into the opposite of seeing them, and our clients see them the second they walk into our office too.

MARK:

Very good. One of my interests in again having this discussion, yeah, I do over the years, quite a bit of CLEs and a lot of consulting. But in a number of the CLE programs we do, and we tend to focus on risk management, malpractice of wings, ethics, that kind of thing. But in recent years, I've been setting up some high bows and just talking about changes in the law. I find it interesting when I talk about the rise of Avvo advisors and example, or Legal Zoom, you see so many lawyers really starting to get, I don't know if it's threatened or upset.

To my surprise, one of the comments that keeps coming up over and over again these lawyers get up and they'll say, because we're on a panel typically with bar council or ethics council and this kind of thing, they'll start yelling at the bar, "It's your job to fix this. To do something. It's the unauthorized practice law go out and make these entities go away." And we all sit here kind of ... It's it's not the role of the bar to do that, obviously. But we sit here and say, "These guys just aren't getting it." Law is changing and evolving very, very rapidly.

Now I'm not here to say that's a good or a bad thing. I have my opinions about it, but I sit and say these guys that had these kinds of opinions in from my perspective seem to just not understand. I understand that they're frightened by it, but they don't see how they fit in going forward. And so, the answer is to bury their head and trail others to try to make this go away. You and I both know that just isn't going to happen. So, sort of with that premise, you know, speaking to the solo small firm lawyers in particular, what thoughts do you have about how to stay relevant? What does it look like?

You've been referred to as a lawyer futurist as well. Can you kind of start to navigate this direction for us?

JORDAN:

Yeah. So, there's a lot there to talk about. I always begin with telling lawyers that at the end of the day, right now we are bad at what we do. Because you ask lawyers, and I've done surveys, "What do you do?" And they say, "Oh, we're protectors and we're problem solvers and we're helpers." But over 75% of legal needs go unmet. Now not only is that kind of a shame and a stain on our profession, but at the same time, that's a huge market that is untapped. Those are people out there that have legal needs that want us to do the things that people pay us to do, and we're not doing it.

And so, I think solo and small firms especially are in a good opportunity because they're flexible. That's part of why I like working in a smaller firm. We can go after that marketplace. And so, instead of seeing Avvo and legalism competitors, think of them as people with really good ideas we should steal from, and then go after that same market. Because at the end of the day, they're not going after the clients that we fight over. Most law firms fight over 10% of the clients. The rest of us fight over the other 15% of the clients, and then 75% is just out there waiting for someone. They're not people that can't afford an attorney. I do continuously work, everyone can afford me. But it's their legal needs, that just tend to go unmet.

The first thing I always tell people is this is opportunity. The way you have to go about addressing this is instead of looking at people as competitors going against your business, redefine your business. Because if your business is writing stock, wills and trusts for people, your business will die and it will die soon. It's time you need to start inventing new ways to better serve clients. To not only go after that 75% of people that are not tapped into, but also to do your own work more efficiently and make more money of the work you're doing and have a better work, life balance and a better life.

Solo and small firm attorneys are highly overworked and do a lot of administrative stuff that they're not trained to do that they don't enjoy doing, and there's a lot of opportunity there. One of my favorite examples is actually a friend of mine, Forest Carlson, who is a wills and trusts attorney. He looked at our legal zoom and looked at Avvo inside of this was competing against him by offering low cost services. So, he built his own website, washingtonwills.com or wa-wills.com, that allows people to create a will online, on their own, and it's completely free.

So, he's undercutting legal zoom, he's undercutting Avvo and serving these people. But what happens when things get a little complex and they can't do it on their own? Is they get routed to him to hire an attorney, and they want his services. They've already got the basics of work done, so he gets to focus on the higher-level work. Or as I like to call it, practicing at the top of my degree.

MARK:

Interesting. So, he's using this tool then, as I understand it, as sort of a screening. It's going out and finding the clients for him, and at the same time providing a service.

JORDAN:

Absolutely. We have a similar thing on out office we've just launched, what we call the Patbot, because my boss's name is Patrick. It's a robot on the front page of our website. It's right next to a calculator that will tell you how much your case is worth for free. And then it's this robot that will look through your case and talk to you about it and tell you know where your case is, what steps you need to take, because it gives us more informed customers coming to us.

Some people will look at that and say, Oh, I can do all of those things and they'll go and do it. And those are the clients we don't want in the first place. Because they'd be mad at the end and saying, "Well, you didn't do anything. Why am I paying you?" Right?

MARK:

Right.

JORDAN:

I could have done this on my own. Now they know exactly what we're going to do, and they know when it's done in their case. And if we can't offer value to them, they're not going to hire us. But if they look at that and say, "I want someone else to do this." Then they come to hire us in there. We get better clients and we get to focus on the more intricate interesting legal work.

MARK:

Helped me understand sort of the journey that you guys took. What I'm trying to understand is, what advice do you have if I'm sitting here saying, "Okay, I need to be something different. I'm stuck." In other words. What can you share from for folks just saying, "Okay, I kind of get the gist of it, but I have no clue how to move forward here."

JORDAN:

First thing is to just stop. You're going to have to stop and take time and kind of take a leap of faith in this system that mean something. Where our office began is my boss had been you know bar president for a while and he'd been speaking about these issues. I had been in law school with some really great mentors that had taught me about these issues in the legal profession, got me looking at this. He finished up his term and a little while later I came into the office and we had a lot of good innovative people in the office had supported this idea. We sat down, and it was just time to say, "Okay, what do we need to do differently? How can we do things differently?" We decided to take a step back from our work and actually invest time in what needs to be done now.

It takes an initial investment and it takes looking out there and kind of asking yourself, "What am I doing that I don't like doing? What am I doing that I don't need to be doing? What are the things I like least in the day?" And we actually did surveys in our office asking the entire staff, "What don't you like about your job? What is your biggest hindrances?" Start by identifying those and as you start listing those out, ask yourself, "What do I have to keep doing then? Can I outsource this? Can I automate this?" And that's just the beginning of it, right? Of looking at just the things you don't like.

And then there a lot of things that can be done about this. There are a lot of processes that can be learned on designed thinking, where you start focusing on what your clients need and try and get their perspective and getting them involved in the process. But it really begins with just sitting down and taking time to think and taking time to act creatively and practice creativity. There are a lot of books on how to kind of train yourself to be creative, and I taught a CLE where we talked about that a little bit. But they are little things. Like just practice coming up with crazy ideas, like what would be a really weird practice area? Like what if I wanted to be a food lawyer? Or what if I wanted to go out and invent you know the next Legal Zoom, right? Just come up with these crazy ideas. Or, have a robot that would answer all my clients/ questions, right?

MARK:

Right.

JORDAN:

Some of them will be impossible, but some of them will start to turn into really good ideas and can be developed. Don't be afraid to test things. I think one of the biggest hindrances that lawyers face is they're afraid of failure. At the end of the day, as long as you are afraid of failure, you will never innovate. Because you have to be open to it and recognize it. Because what happens if you're not open to failure is you don't catch on to it quickly enough, because you don't admit that you failed. Whereas in our office, our goal is to fail as fast as possible, right? So, if this isn't working, we want to identify it right away, so we can adjust and try something different. And we do that a lot.

I'll give one example on that. We spent a lot of time trying to kind of get our clients to call us less, because that was a big hindrance. We noticed in our surveys, there's just lots of client calls coming in. We thought, "What if we made it easier for them to communicate with us?" So, we spent a lot of effort into systems that allowed them to have a portal to communicate with us. Email, phone calls, letters. We allowed them to text us and made it easier for that to happen. We did all this work, and calls didn't go down at all. Okay. What's wrong here?

Soon we went back to our clients to kind of asked them as part of the design thinking process, like why are you calling so much? We started looking at and we realized what they're calling is they're afraid of things. They're on workers' compensation. They want to know when their check is coming in, and that's every two weeks. And so, they're calling every day. Check every two weeks, right? Is my check here, as my check here? And we thought, "Well, why don't we just tell them when it's here?" We took the tools we built in that whole project that was something of a failure, and kind of rehabbed them into a system. And now, our clients get automatic notifications of updates in their case. And those calls went down a lot quickly.

MARK:

Yeah. Interesting. What I hear is, we ... I really like this because we're talking about redesigning the entire delivery system as opposed to, can I get a new computer and some new software and try to be a little more efficient? That this is not throwing a little money and try and create, and there's nothing wrong with creating efficiencies, but what I'm hearing is we're really talking about total redesign and questioning, challenging our own assumptions about how law should be delivered how the legal services should be delivered. I really like that.

Can I also have you comment a little bit, I noted in your article you were talking about, and you mentioned this earlier, this 25% is the traditional client base we are all competing over, and you have kind of looked at and talked about collaborative efforts here. Can you kind of explain where you're going with that?

JORDAN:

Yeah, there's a couple things to say on that. One is, you talked about kind of redesigning it. I like to talk about this concept called reframing, which is a new method of problem solving. Most lawyers, the older model was you have this problem, you apply this solution and it's the solution your dad applied when he was a lawyer, right? And it goes back and back. Now you've got the more innovative attorneys out there that are applying like what different solutions can I have to this problem?

Reframing is about taking a step back further than that and saying, "Am I solving the right problem? If you look at in the legal new study in Washington, low income families had on average more than nine legal problems in a given year. Solving those problems doesn't solve anything. You have to step back and say. "What's really going on here?" And really investigate what's happening. It's hard to do that as an attorney. That's one way that collaboration really comes in and is important. You have to bring in outside people to work with things on you. In our office, we have a project manager whose job is just to find ways for us to do things better. She has legal experience and then she's been in our office for a while, but she has no legal training. She's not a paralegal, she is just someone who is in charge of projects.

She runs a team that brings in stakeholders from around the office from different departments to try to find better ways to do things, because it's really hard as a lawyer to think of something new. We've gone to law school for three years, we've had internships, we've trained on this old model and to come up with new ideas is cognitively almost impossible in some ways. But if you have someone come in who has no training in this and says, "Wait, why are you doing this?" It gets a lot easier. And so, there's that collaboration. Collaborating with lawyers outside of your community, there is a growing movement of phenomenal attorneys all over this country and out of the country that are doing amazing things. Little things just in their office that can make a big impact if they become more broadly accepted.

The nice thing about this is, they're not competitive people. I think those who in this community have realized that a rising tide raises all ships, right? We all work together on this. I've found, I've been traveling around the country a lot over the last year and meeting with people. Everyone I meet with has been phenomenal, and we work together on projects, and we find ways to make all of us have a better relationship with our clients, better services for our clients. We share ideas, we work together on things. In our office we've worked with outside partners too. We have I think five tech companies right now that we're collaborating with. And we're collaborating with Suffolk Laws IT Lab, because of a friend of mine there who's a professor there.

So, lawyers don't have all the answers and it helps to have outside people come in. One of the more remarkable experiences I had that kind of led me down this path is about three years ago when I went to a legal hackathon that we did. It was amazing to see all these lawyers come here and present these problems that they saw is really complex problems and have the tech people in the coders that's there say, "Well, that's really easy. Why haven't you done that already?"

MARK:

I love it. I'm also, as you're aware, a risk guy and something of a tech. When you think about just your own experiences here, are there I guess some tech tools or risk advice that you might share for people thinking about moving in this kind of direction, so that they don't have to reinvent the wheel?

JORDAN:

Yeah. One thing I actually like to talk to people a lot in this kind of new future model of legal services is trying to commodities legal services. There's a good reason for that. If you look at the legal system, it's a very unique and bizarre market where everything is based on ours. And so, imagine if you went to Amazon and you bought a package and they charged you for how long would take them to mail the package to you, and you may or may not get that package. That's the legal system in a nutshell, and it's because lawyers don't know what their services are worth and that's a problem.

And so, when I tell people to look at this, I tell them to try to find ways to commoditize, to really define and market. It's not they're hiring this attorney for their expertise, they're hiring this firm to provide the product that this firm provides. One thing that's really essential for that is having systems in place and definable measurable systems, so that every client comes in and gets service that will be on timelines, that will be on specific things. That's a huge bonus for risk management, because the biggest risk is human error in everything that you do. If you have, in our office with workers compensation, we have a lot of issues that have statute limitations and we might have 10, 20 things at a time on my table easily that have statute of limitations that I need to address, that could be harmful for my client if I don't That's a lot for a human being to manage.

We used to have it documented written down multiple places and there was human checks and a lot of room for errors, and that's Bad. Because the more humans touching a system, the more room for error there is. So now, we created actually automated systems for all of that, for all of our kind of regulatory stuff, so that every time a letter comes in that we have to respond to within a certain timeline, it automatically creates tasks in our practice management system which is Cleo. It automatically creates cards on our workflow system which is Trello, which is kind of a visual workflow system. And, it automatically notifies us of all this and creates notifications with deadlines attached to them, so we can see the deadline coming up.

This is all automated so that we don't have to worry about, oh, did this person into the wrong date here the wrong date here? Everything's done automatically. There are human checks on that because you don't want to get rid of humans entirely and just trust machines. But it's all automated for us and that allows us to provide a better, more safe system for our clients where they can know that we are on top of everything that comes through us. We do the same for just staying on top of cases. We have technology aided systems for our file review process to go over all of our cases, to make sure we're managing them on a regular timeline. The technology really helps with that.

Again, started looking at what are the things we hated doing, and a lot of people said, "Well, all this manual you know, data entry. I really hate doing that."  Thought, but that's an easy thing to automate. I call it being you know tech enabled lawyer.

MARK:

Yeah. Sort of a final question from myself and I'll give you a second to have any closing thoughts, excuse me. There are a lot of lawyers out there that I have worked with it are what I would describe perhaps it's mid-career or a little bit further beyond, as opposed to the millennials just starting out in so many ways. When you think about all that you're talking about here, are these opportunities really limited to the millennial group? Or, if I'm in my 40s or 50s can I still do this if I'm somebody who's not highly trained with tech and comfortable? Do you have any thoughts about that? Because I do see at times when lawyers just say, "I don't understand any of this."

JORDAN:

It takes a little more work. Although I know millennials that are not good at this, but I think millennials are a little better poised for this growing up, kind of in this tech generation of being taught to kind of question some of these ways the legal profession has worked before. But my boss is in his 40s or 50s, I can't remember which for, and he does this. What it takes is not necessarily having all the skills to do it, but having the knowledge to say, "I need to do something differently. What can I do differently?" And then going out find people because at the end of the day, you don't have to be the expert on all these things.

There are some who disagree with me on this, but I don't think every lawyer should learn how to code. I don't think lawyers need to have all these skills. They just need to have a baseline so that they can get into a situation and know who they need to talk to, and how to find the experts. So, we have a big data analytics project in our office that we've been working on for a while. It's been kind of a pipe dream of mine. I was lucky enough to make some friends at Suffolk who I of course couldn't do all the coding and build the algorithms for this, but they did, they could.

They said, "Well, can we do this as part of our class? As part of our education for our students.?" And I was of course happy to say yes, you want to do my work for me? That's a pretty good deal. And we've kind of built in that partnership, just because they have the skills that I don't have. We have people in our office whose jobs is just working with tech and working with client relationships, things that are not legal, because those are the things we don't know. I'd say a simple analogy that I think attorneys will understand a little better is, how many of you run your own marketing campaigns versus hire someone to consult with you on marketing a little bit? Tech is no different. Or, how many of you have accountants that you go to, right? Tech is no different than that.

It seems different because it's scary and it's new, and I understand that fear. But at the end of the day, if you can hire an accountant, you can hire a tech expert to come in and help you. If they can't demonstrate the value to you, then it's not the right expert.

MARK:

That's an important takeaway for me. Because I do think lots of lawyers that have not quite grown up in the way that my own [inaudible 00:23:22] and I'm in my late 50s now. In terms of our children's generation, computers are a very different thing. I do feel, lawyers, we are taught to problem solve and to be creative, some of us anyway. To have the ability to take the leap of faith, you don't have to be a computer whiz kid to do this stuff. It's about having the idea, that's what I'm hearing, and then finding the right people to help you make that idea a reality through testing and talking to your clients. But I like that, it's a hopeful thing to me.

Do you have any final comments you'd like to share before we wrap up?

JORDAN:

I don't think I said it yet, but there's one other thing that I think is important to this as well.

MARK:

Yes, please.

JORDAN:

Is having a culture. Because sometimes I meet attorneys and one attorney will say, "Yeah, I really love this idea, but I don't know how to convince the other partners in my office." Or, "I don't think my staff would get on board with this."

MARK:

Real good point.

JORDAN:

I mentioned earlier, you have to demonstrate the value to people. If you can't go to them and say, "Here's the time you're saving. Here's the value you're getting out of this product, you're never going to get buy in." People always ask me like how do I convince people to do this. Don't convince anyone. Because if you're convincing, you're starting off on the wrong foot. Show them the value. Build a culture around this where people can communicate with each other and work together on things, so that you see the issues as they arise. And if you have to be convincing people rather than them coming it because they see the value of it, then it's not going to work. It takes buy in from team.

One really helpful way to do that is go out to them and it really do, just ask them like, "What don't you like? What do you wish you didn't have to do every day? What do you wish was easier for you? How can I make that happen?" Because if you get that kind of buy in or people feel ownership of it, they really take to it and they really get excited about it. We have the first of our core values, although I wouldn't say that any is more important than others is being creative, innovative and adaptable. That's really important in client service.

Because if you're going to be asked, "Why should this client hire you instead of the other 15 firms in there that do the exact same type of law?" I would like to tell my clients, "Everyone else cares, everyone else does these things, but I'm going to provide a team of creative, innovative adaptive people who are going to invent new ways to better serve you."

MARK:

Yeah, that's an important point. Thank you for sharing that. We are out of time. I would like to say thanks to Jordan. It really has been a pleasure. I've enjoyed our conversation today.

To our listeners, I hope you found something of value out of the conversation. If in future any of you have any ideas for a topic or if you have questions or concerns you'd like to see addressed in one of these podcasts, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks for listening. Bye bye.

JORDAN:

Thanks so much.

Jordan L. Couch is an attorney and cultural ambassador at Palace Law practicing plaintiff's workers’ compensation and PI litigation. He’s been called a legal futurist for the work he does both in and out of the office seeking out new ways to build a more modern, client-centric law practice. Contact him at jordan@palacelaw.com or on social media @jordanlcouch.

Episode 13: Protecting the Public

 

While he was facilitating the State Bar of Nevada Strategic Planning, ALPS Executive Vice President Chris Newbold, also had the opportunity to sit down with Gene Leverty, Bar President. Nevada is contemplating requiring mandatory malpractice insurance as a condition of licensure. One of the reasons behind the move is to protect the public from engaging with an attorney that is not covered, particularly if missteps are made during that engagement. The conversation also touched on the perceptions of malpractice insurance and how to educate both the public and legal community about why coverage is important for both parties.

This post is part 2 in a series centering on the discussions around mandatory malpractice insurance around the country.  Listen to part 1, an interview with Doug Ende with the Washington State Bar about their process and discussions.

ALPS In Brief, The ALPS Risk Management Podcast, is usually hosted by ALPS Risk Manager, Mark Bassingthwaighte. This episode is hosted by Chris Newbold, ALPS Executive Vice President.

Transcript: 

CHRIS:

Hello and welcome to ALPS in Brief. This is Chris Newbold, Executive Vice President of ALPS, and today I sit in the bar offices of the State Bar of Nevada with Gene Leverty. Gene is the President of the State Bar of Nevada, lives up in the Reno area. And today our topic is mandatory malpractice insurance.

The State Bar of Nevada has been contemplating perhaps going in the direction of requiring lawyers to maintain malpractice insurance as a condition of licensure. And so Gene, why don't you talk a little bit about just how this issue arose in Nevada, and where you think it's heading.

GENE:

Okay. Basically our prior president, Bryan Scott, brought it and said we need to do a task force to consider it. My background with regard to why I thought it was important, and I was chairman of the task force before I was president. The reason I thought it was important goes back to my time on the Clients' Security Fund, where I found that a lot of the people that came, that had claims for the Clients' Security Fund, were really negligence cases where the attorneys had failed malpractice insurers. So I thought we needed to look at it in order to see if there was a way that we could protect the public.

So we had to study it from the standpoint of the task force. We studied it in a lot of different ramifications with regard to looking at what other states did, with regard to Oregon, Illinois, Idaho. Then we looked at the unique factors in Nevada that would consider doing what Oregon did or forming a captive. We brought in the insurance commissioner, ALPS, your participation was very helpful. And it boils down to the task force moved, worked very diligently, spent a lot of time because there's a lot of elements, and we came to the conclusion that it should be mandatory.

Now, in Nevada, we have statistics that we could look at because attorneys have to report whether or not they have malpractice. And if they don't. Although it's not verified. We took those statistics and we found out the ones that were honest and reported that they did not have insurance was about 15% of the bar. So we've started looking at their statistics and asking them questions in a survey to find out why they didn't have insurance.

And it was surprising. Because though that 15% were not young lawyers, not solo practitioners soloing, but people that had been practicing for 20 years. And so we went into those and asked them why they didn't think malpractice insurance was necessary. We heard that. Plus we heard people that were against insurance. They came to the task force. Those with patent practices felt the payments were too high. They would move to other states to practice patent law. And we came to the conclusion after listening to the commissioner, companies, everything that mandatory insurance would be recommended to the Supreme Court.

CHRIS:

What are you contemplating at this point in terms of what you're going to be recommending when it comes to coverage limits and those types of things?

GENE:

Well, the Board of Governors adopted the task force recommendations. The Board of Governors of the State of Nevada. And they recommended that adoption of 250 limits, every lawyer be required to have that in the minimum. At that stage once the Board of Governors accepts it, which I thought was a gigantic contribution to the Bar by the Board of Governors, because they were looking to protect the public for the honor of our profession.

We take that and we turn it into a proposal to present to our Nevada Supreme Court, which is the ultimate rule maker. And we've had, in fact you were present at one of our hearings, with regard to the Supreme Court where we were bringing up and trying to push for the ADKT, which we will be shortly presenting to the Supreme Court and we will have a hearing on it.

We do know from a survey that we did of our general membership, where about 10% responded, that there are some that are not in favor of malpractice because they think it's too costly for solo practitioners. So we have issues and I know in discussions with the Chief Justice, Chief Justice Douglas, that the Bar is concerned about cost. What is the cost?

So I think that we're moving in a positive direction. It will be presented to the Court. And the way I look at it, I believe we're doing something to protect the public, the State Bar. And now it will be shortly in the hands of our Nevada Supreme Court, to either act or not act.

CHRIS:

And you said you did a survey of those who don't carry malpractice insurance. What commonalities did you find amongst that group in terms of just who generally goes without insurance?

GENE:

Interesting. It's solo. It's small practitioners. Mostly solo. Who actually, criminal lawyers, okay, didn't feel like they needed it. And those who've been practicing 20 years without a client. They said, Why should I continue paying for insurance? And then there's a group that says, Well even if you have a claim, the insurance company doesn't pay. They'll find a reason to get out. Those were primarily the responses from the 15%.

But, you know, I think that having gone to the task force in Washington, and talking and getting letters from the California task force, about malpractice. We all are looking at the same issues. We all have about the same numbers of uninsured. And those uninsureds pretty much say the same thing.

But there's a movement to consider it. I really think from serving on the Clients' Security Fund and seeing how many people were really hurt by attorneys who had no malpractice insurance that the time has come to protect the public.

CHRIS:

And that's your principal position is that we, as a soft regulating profession, have a responsibility to insure that our lawyers, in the event they make a mistake, there's a remedy for the client?

GENE:

Absolutely. But I also believe that by protecting the public we're honoring our profession. Because our profession is hurt by those attorneys that don't have, when they commit negligence, don't have a remedy for their client. And you can't continue as a profession to be respected if you don't help the public.

CHRIS:

And how does mandatory malpractice, how does that requirement fall within the mission of your organization, the State Bar of Nevada?

GENE:

It's one of our ultimate missions is to protect the public. So to serve our membership and protect the public is our goal. With regard to serving the public by protecting them with regard to malpractice, trust accounts, those are important. And what we want to do is educate the lawyer to know how best to protect the public. What do we do for our profession, what do we serve them by? We serve them by, they will have more respect by the people that they serve.

CHRIS:

You've obviously now studied this issue pretty in depth over the course of the last year, and obviously you have experience in the insurance sector. What have you learned as part of the process that maybe surprised you as you went through this particular issue?

GENE:

I was surprised that if you were in business, that people were in business without insurance. I saw it a little bit, but I didn't know. I think it's even greater than the 15% that are honest. When you get down to it, I think insurance, you buy it in case you make a mistake. But you hope you don't. And my background, I was a regulator of insurance in Nevada. My practice is insurance. I believe that insurance does the right thing. And I think it's necessary. It's to avoid risk.

CHRIS:

And there's only two states now that require mandatory malpractice insurance. Does it surprise you? Or do you think that the public has a reasonable expectation that most lawyers have malpractice insurance?

GENE:

I believed that at the beginning until in preparation for our convention in Chicago in July. I worked with a focus group. I brought in a friend who, I use focus groups for trials. I said, I want to do some study on this. Surprisingly, surprisingly people, the focus groups, they were concerned if their lawyer had insurance. They thought that maybe that would demonstrate that maybe he needed it, versus praising the lawyer that had it.

The next question is, would you ask your lawyer if he had malpractice insurance? And their answer was, No, because then he'd think I was going to sue him. Now we all believe that you have to have auto insurance to drive. Why shouldn't you have to have malpractice insurance to practice law. It seems to be reasonable. It's related. Doctors have to have malpractice insurance. Why shouldn't lawyers? And yet, the public is not educated as to what exactly lawyers have or don't have. But it's really surprised me that they believe that a good lawyer doesn't need malpractice insurance.

CHRIS:

Is it common in most other professional fields that there is some requirement of malpractice insurance?

GENE:

Yeah. With regard to doctors. My brother-in-law is a doctor. He's also on the Medical Board. Yeah, doctors have to have malpractice insurance to practice with regards to various hospitals. So they do have malpractice insurance, okay? I don't know about other professions. But I think that the public believes that doctors have malpractice insurance. So I'm not saying our focus group is absolutely correct because we only did a few focus groups. But I was surprised by the results.

CHRIS:

Well, Gene, obviously you're preparing now your support for moving toward the Nevada Supreme Court in terms of some type of a decision. What's that process look like? And what do you think the timeline looks like?

GENE:

We held back the malpractice while we pushed forward on the random trust accounts. That ADKT has been heard by our Supreme Court. So we will be shortly presenting to the Supreme Court what we refer to as an ADKT on malpractice insurance. Having met with the Chief Justice, which we do on a regular basis, of the Nevada Supreme Court, his expressed interest is in the cost. What is it going to cost? And basically putting my head around the cost comes down to basically 85% of our Bar has malpractice insurance.

So we're not talking about the 85%, what it's going to cost them. We're talking about what the cost is to the 15% that are currently uninsured. And I don't think that that cost is going to be that substantial. Because we have had quotes with regard to that. I believe that even in Las Vegas, which has a higher incidence of claims, I think that we can provide it to every lawyer for about one hour of their time, 250 an hour for a month, to go towards their malpractice should be what it costs. So I think we can sell it to the Court if they're willing to listen.

CHRIS:

Well, good. And we've always argued that for the fractional cost of a billable hour per month the peace of mind in terms of client protection, and lawyer protection frankly, is the right way to go.

GENE:

Actually when you met with our Supreme Court, when you made that statement I picked it up, and I carry it because I think that's a good message to send.

CHRIS:

Well, Gene, thank you. I appreciate your hard work on this issue. It's obviously an interesting subject and one that other states are looking at, and keep us posted.

GENE:

Okay. Thank you, Chris.

CHRIS:

Thank you.

Vernon (Gene) Leverty is an active personal injury trial lawyer with 35 years of litigation, trial and negotiation experience. He has held an AV Martindale Hubbell rating (the highest attorney rating) for over 25 years. Gene is a long-time member of Million Dollar Advocates Forum for obtaining a jury verdict over one million dollars. Gene has had several multi-million jury verdicts and settlements. He has a reputation for excellence both in Nevada and nationally.

Because Gene was Chief Deputy Insurance Commissioner of the State of Nevada and then a partner in a Beverly Hills multi-state law firm for ten (10) years representing insurers, he has a special expertise insurance coverage issues, including very complex coverage issues.  It is essential that a personal injury trial lawyer fully understand insurance so that the client knows all insurance that may be available to cover the individual’s loss. Gene’s background and experience makes him a valuable resource to his clients, as he provides a unique perspective and understanding of the insurance industry and the manner in which insurance company’s evaluate, investigate, and litigate personal injury claims. Gene’s skill and experience is vital for personal injury cases, including automobile and trucking cases, product liability, premises liability and insurance bad faith.

Gene is licensed to practice in all Nevada and California state courts, and the United States District Court for the State of Nevada, the U.S. Central District of California, the U.S. Eastern District of California, the U.S Northern District of California, the U.S. Southern District of California, District Court (Florida), U.S. District Court of Appeals (9th Circuit) and the United States Supreme Court. He earned his Juris Doctor Degree (J.D.) from the University of the Pacific, McGeorge School of Law.

Gene was the Chief Deputy Insurance Commissioner for the State of Nevada from 1972-1979. In 1979, he joined the law firm of Miller & Daar as a partner, with offices in Beverly Hills, San Francisco, Milwaukee, Seattle and Reno. Miller & Daar was a highly specialized insurance law firm with the principals being former Insurance Commissioners.

Gene was elected in July 2015 the Vice-President of the Nevada State Bar Association, the governing authority for the Nevada legal profession.  He now serves at Bar President. He has served on the Board of Governors of the Nevada State Bar for 5 years.  Mr. Leverty was a member of the State Bar of Nevada Insurance Standing Committee from 1977-1991, and was the Chairman of that committee from 1977-1980. The State Bar of Nevada on May 31, 1991, granted him the Award of Special Recognition and it awarded him the 2015 Medal of Justice Award.

Episode 12: The Introverted Lawyer

Professor Heidi K.  Brown is a former construction litigator, author and self-described introvert. Mark was able to connect with Heidi, who is based in Brooklyn, New York where she is the Director of the legal writing program at Brooklyn Law School, to discuss the differences between introverts and extroverts in the legal context. Heidi’s recent book, The Introverted Lawyer: A Seven Step Journey Toward Authentically Empowered Advocacy, helps the introverted lawyer to best harness their personality and flourish in the legal field without conforming to the stereotypical lawyer as extrovert. Professor Brown will be presenting a CLE webinar entitled The Introverted Lawyer: Authentically Empowered Advocacy, in our New Lawyer Webinar series on May 9, 2018. Register now.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK:

Hello, welcome to another episode of ALPS In Brief, the ALPS Risk Management podcast. We're coming to you from the ALPS home office in the historic Florence Building in beautiful downtown Mozilla, Montana. I'm Mark Bassingthwaighte, the ALPS Risk Manager, and I have the pleasure today of sitting down with Heidi K. Brown, a noted author. We're going to be talking about her book here in just a few minutes and also Professor at Brooklyn Law School. Welcome to the podcast Heidi and if I could have you briefly introduce yourself, tell us a little bit about yourself and we'll get started on a conversation.

HEIDI:

Thank you so much for having me. Yes, I went to law school at the University of Virginia. I grew up in Virginia. Then I went into construction litigation right out of law school, actually both my summers in law school I worked for a construction litigation firm, a boutique litigation firm and ended up doing that for the bulk of my litigation career and about 15 years into my litigation career I transitioned into teaching legal writing. I've been doing that for about eight years now at three different schools. Most recently joined Brooklyn Law School as the Director of the Legal Writing Program, here in Brooklyn, New York. I love to write and my latest project as you mentioned is this booked called the Introverted Lawyer.

MARK:

As an aside, I just finished it. I thought it was a very well done book. I also found it interesting in firms of your history. Being an introvert and having this career in construction litigation, I just thought, "Wow, okay, that had to be a challenge." Let's start off just talking about some basics for out listener. Can you describe some of the key difference between introverts and extroverts in terms of the context of the legal profession?

HEIDI:

Sure, yes. Until I started really studying this in the legal context, I did what most people do and I sort of lumped those labels of quiet individuals together, introverts, shyness, social anxiety. But they're actually very different concepts and different categories of personality traits and preferences. So, first I can sort of distinguish between introversion and extroversion, if that would help, and then distinguish among introversion, shyness and social anxiety. So introverts and extroverts, those terms really just describe the different ways we process stimuli, energy, and information. Introverts process all of those types of things deeply and internally and sort of methodically on the inside. Where as extroverts process stimuli and information and energy externally. So, I kind of like to use the image of Time Square in New York, it's a very highly stimulated environment and an extrovert might thrive on the noise and the action and the number of people and gain energy from that scenario. Where as an introvert can handle that with skill, but in a shorter dosage and will need to sort of retreat to quietude and solitude to regain energy and to process all of that stimuli.

In the legal context, well, introverts can be very adept at processing information and complex legal concepts, they need to do it internally. Actually the scientists say that introverts and extroverts use two completely different neurological pathways in the brain to process information. And the introvert's pathway is longer, so that's why is can take us longer to listen to questions, read something, handle a lot of competing voices in a meeting and we process all of that internally and deeply before we're ready to respond aloud. It can seem like an introvert is slower, but actually they're just going very deep into analyzing concepts.

Shyness and social anxiety and completely different concepts. You can be an introvert and not be shy at all. Shyness and social anxiety and more of a fear of judgment or a fear of criticism in performance oriented scenarios. And that can stem from sort of things that we remember from growing up, maybe we had a coach or a well-meaning mentor or peers or a care giver who put us in situations where we felt judgment or even shame, sometimes, can drive adult shyness and social anxiety. So they're very different categories. I find it helps, when we start to understand ourselves in the legal context what might be holding us back in certain scenarios. It's helpful to understand, "Is this because I'm an introvert and I process things internally or is this because I'm afraid of the perception of judgment from a judge or opposing counsel or a colleague or a client.

MARK:

I find it fascinating. There was some real learning out of this and even just what you shared, but I picked up in the book as well. I am an extrovert. I have always sort of viewed introverts as, if you will, a behavioral situation, a behavioral issue. And I don't want to say ... It's just different. But you're talking about this processing, internal brain. I just found that absolutely fascinating. It really sheds some light on an issue for it. I liked that. What prompted you to write the book?

HEIDI:

Well, throughout my litigation career I always loved the legal research and writing aspects of my job, but I struggled with the performance oriented aspects of my job. As you can imagine, in the construction litigation world, performance matters. It's a tough industry, you have these strong personalities and the cases I was dealing with would take about two years to do to trial from complaint filing all the way to the actual trial. We were dealing with a lot of depositions, a lot of discovery. It was very performance oriented, lots of negotiations. I struggled in those environments because, while I loved the research and writing and figuring out the complex contractual issues and the legal issues that happened in all of our cases, in those moments of performance I felt I had to mirror the other attorney's behavior or the client's behavior and a lot of times, as I mentioned these strong or tough personalities, and I just don't have that personality.

For about 15 years of my career path I thought that was a weakness of mine or there was something wrong with me and I was the only nervous one in the room. And as I describe in the book, I have a blushing tendency, I flush, I turn red, my face gets blotchy when I'm nervous. So I have a really bad poker face in negotiations and in court room scenarios. Again, I always thought that was a flaw and what really prompted me to write this book and study this deeply in the legal context what when I transitioned to teaching, while I was litigating, I was working on a big case out in California and I was asked to start teaching a legal writing course at the same time. And I noticed that my strongest legal writers, my most thoughtful, analytical students were also my quiet ones and the most fearful of the performance scenarios, whether it's the Socratic method in the classroom or a mandatory oral argument simulation.

And I finally thought, oh my goodness, Instead of giving these amazing students this message that maybe you're not cut out for litigation or, if this is so stressful for you, maybe you should go do something else, which were messages that I heard and absorbed in my career. I thought, no, these are amazing thinkers, they're great listeners, they're hard workers, they're creative problem solvers and we need to find a way to explain why certain performance scenarios are harder for some of us than other. And it doesn't mean we're not able to do it or we can't be fantastic at it, we just need to understand ourselves better. So that's what led me to study introversion and shyness and social anxiety in the legal context because no one had really talked about it in the legal profession. We obviously have the stereotype of lawyers being extroverted and confident and sort of gregarious and that's not actually the case in every scenario. My goal was really to help quiet law students and junior associates who were worried maybe they weren't cut out for our profession and empower them to know that yes they absolutely are and here are some tips for amplifying our voices in an authentic manor.

Throughout my career the mantras I always heard was, "Fake it till you make it," or "Just do it," that amazing Nike slogan. But those messages aren't really helpful in the types of scenarios that I struggle with and also that I'm talking about here.

MARK:

And what I really enjoyed and another take-away, I guess, from the book is you really talk about the introverted lawyer has a different set of strengths or assets, if you will. I thought that was very interesting, can you kind of highlight what value, strengths do introverted lawyers bring to the profession?

HEIDI:

Yes, what I noticed and gleaned from all the resources that I studied, is that common themes pervade quiet individuals. If you're thinking about introverts or even people who experience that shyness that I mentioned before. The experts on these issues show that these individuals are active listeners, they really can sit in a room, even with competing voices, and they're listening to what these individuals are saying and they're really focused on hearing what someone else is sharing. They're, as I mentioned before, kind of deep thinkers, really methodical, slow, careful, thinkers, they're processing all this information of a deep level. They also have a tendency towards creative problem solving. Because they're listening and absorbing lots of different competing ideas, they're capable of synthesizing those into solutions that maybe some of the individuals speaking are overlook in the moment. And that's why it can also lead to really strong legal writing because when a person can be quiet and reflective and sort of work out a problem through writing, it can really illuminate solutions to legal problems that maybe aren't apparent if we're just debating and talking about them out loud in a verbal valet scenario.

Then one thing that really surprised me or stood out to me during my research was that these experts pointed out that quiet individuals also bring empathy to a human interaction. As a former construction litigator you might not think of empathy as being an important legal trait or a skill of an attorney. But I started remembering scenarios in my job where we were trying to resolve a conflict on a massive construction project and just to kind of take a step back for a minute and to have empathy and try and figure out what really is driving this conflict? It's not the firing off of these angry emails that people do on construction jobs sometimes-

MARK:

Right.

HEIDI:

... but it's really this human frustration that, on a random Tuesday on the job site, rain is pouring down and materials are late and everybody's trying to get something done and it's not working and trying to really understand from an empathy standpoint what's really driving the conflict from a human perspective. I was excited to hear all these positive traits that quiet folks bring to the legal profession, that we sometimes don't appreciate as much as, in my opinion, we should. Good lawyers need to be good listeners and not always speaking, we need to actually listen to the client who might be afraid to tell us what's really going on. Then good lawyers need to deeply think about complicated legal concepts, the law is hard and we need people who can sort of take a quiet moment, find that difficult answer in a sea of research, take the time to write and reflect on the problem and write out the problem and come to a solution that might not be as obvious if we're just talking about it. Things like that really stood out to me as amazing traits that quiet folks bring to our profession.

MARK:

Yeah, and when I think about all this myself, there are certainly the lawyers that we've been talking about, very, very aggressive and these kinds of things. I don't know that that approach really serves our clients best. And I like the focus on taking the time to really go deep and explore and think through and look at the issues. What I hear is we're placing ... we're moving away from the advocacy model toward a, what is really best for the client, problem solving model, both are necessary. But I really value where you're going with all of this, I really do. I'd like to talk a little bit about the process that you describe in your book. You acknowledge that while introverts and otherwise quiet advocates can be pivotal, change agents for the profession. These lawyers still need to be able to jump into the fray and speak with assertiveness at times because it's just called for, it's necessary. And you developed a seven step process for, if you were amplifying the voice. Can you talk a little bit about these steps?

HEIDI:

Yes, as I mentioned, the messages that I absorbed over my trajectory and my career were always sort of just, "Fake it till you make it," or, "Do these performance events 1000 times and it will get easier." I tried those methods and they absolutely did not work for me, it never got easier and when I started studying this, the book, I realized it wasn't getting easier because I was just hurdling myself into these scenarios without any self-awareness and not really understanding that my approach to the law is maybe different from an extroverted person. In developing the seven step process, it really broke down into a reflective plan and an action plan and really beginning to step into these performance events that we need to do as lawyers-

MARK:

Right.

HEIDI:

... we can't just avoid-

MARK:

Of course.

HEIDI:

... performance or human interaction. But doing it with heightened self-awareness and then a conscience plan for each event. So the seven steps really developed into the first two steps being reflection on mental approached to these types of events and physical approaches. I was really excited when I started realizing how important the physical aspect of anxiety is, like what are we doing physically in an anticipation of these types of events that maybe isn't that helpful to us, it's instinctive what our bodies do physically, but it's not always helpful. So step one is reflecting mentally on what we are hearing in our minds as we are approaching a law related performance event. Some lawyers might sort of resist going that direction and feel like, "Oh, I don't want to get too touchy feely with my emotions." But it's so important to realize and reflect on and listen to what we tell ourselves in anticipation of a negotiation or court room appearance or a difficult conversation with the client, what messages are we hearing in our minds and then trying to pin point, "Wait, where have I heard that before and what's the original source of that message because it absolutely is not the person who's in front of us today."

 

It really comes from this ingrained or entrenched mental messages that we've been telling ourselves for years and years and years. It's really remarkable when you can realize, "Oh, this is not the law professor that I'm encountering or the judge or the intimidating opposing counsel or the strong personality client, this is a, perhaps well-meaning, mentor or coach or authority figure from high school or college or an earlier event in our professional careers. And it's really tremendous when you can realize, "Oh, okay that message no longer has any relevance in my legal persona today." But it takes us taking the time to listen to it and then we can sort of override it or delete it from our mental soundtrack. Step one is that reflection piece on the mental messages.

 

Step two is a physical reflection approach. And I mentioned my blushing problem before. To hide the blushing in my legal career, which I felt was a weakness of just this shiny red billboard of my fear, I used to hide it. I used to wear turtlenecks and scarves and try and hide myself, but physically that was just making my physically reactions worse because I was hot, I was feeling constricted. When I started doing step two, which is the physical reflection piece, you realize your body is just going into instinctive protective mode when you feel fear or anxiety. But what we do is we close ourselves off. We cross our legs or hunch our shoulders or constrict our bodies to get small and invisible. But all that's doing is constricting our energy, our adrenaline, it's preventing us from breathing clearly, it's effecting the oxygen levels going to our brain, our blood is not flowing in a productive manor. But we don't realize that's happening to us until we take the time to reflect and monitor sort of minute-by-minute what we do instinctively in anticipation of a stressful moment. Step one and two are really the reflection piece.

 

Steps three and four are flipping those recognitions or those realizations and having a new plan. Step three is having a new mental action plan. And I kind of like to analogize to the fire fighter mantra of stop, drop, and roll. When we step into a performance event or anticipate one, those old messages are gonna show up they just do, they've been ingrained in us for years. But we hear them and realize, "Oh, wait a minute. I'm gonna stop. I'm not gonna listen to that and instead I'm gonna apply my new approach. I've prepared for this event, I know the case law or the statute of the client facts better than anyone in the room, I've done all this preparation, and I have something to say. I'm gonna do it my way." And just having this new mental action plan for when those old messages creeped in.

Same thing when the physical action plan, which is step four. It's knowing that our bodies are instinctively gonna try and close us off from the event and protect us. But having an athlete's approach to the performance event, standing in a balanced stance, either at a podium or even in a seat at a conference table, opening up your channels of breathing oxygen flow, blood flow and giving your excess energy and place to go. It's amazing in a performance moment when you realize, "Oh, I'm crossing my legs again. I need to sort of balance myself out and breathe. And it's really incredible when you realize just by making subtle physical changes, you can breathe better and then your brain works better and everything just kind of flows in a positive direction.

And then steps five, six, and seven are really just building on that for the long-term. Step five is about developing, what the experts call, and exposure agenda. When I first read about the term exposure, I thought this sounds dangerously like just do it, just expose yourself to these scary events and everything will be fine. But exposure in the psychology perspective is stepping into these moments with self-awareness and a plan and it's really looking at law related scenarios that might give some of us anxiety, consciously prioritizing them from least anxiety producing to most anxiety producing. And then having a real conscious mental plan and physical plan for each event incrementally. And then stepping into each event with purpose and the plan.

And then step six gets even more nitty gritty and tangible with each event and that is designed to have, to use an athlete metaphor, a pregame plan and a game day plan for each of those events, trying to put yourself in the scenario, substantively, mentally, and physically if you can go to the space, go to the room if that's possible, check out the seating arrangements, the podium, is there a microphone, what's lighting like, how many people are gonna be there, and just anticipating different situations that normally might derail us but now we can take more control.

And then step seven is just a reflection after each event and figuring out positively what worked great and maybe what you can make some subtle changes to for the next event.

MARK:

What I liked about ... again, as an extrovert approaching this material, I think there's a lot of value to it for non-introverts as well. I really like this aspect of self-reflection and trying to understand, both emotionally and physically, why we do what we do. I think sometimes people are very aggressive for fears and all kinds of things. You see where I'm going. I love the whole model that you've developed here.

HEIDI:

Thank you.

MARK:

Can you talk a little bit about ... the temptation, if you will, is to say, okay. We've talked about some of the strengths are introverted lawyers have. Does that, from your perspective, do you think limits that areas of practice that introverted lawyers can really excel in? Do you see where I'm going with this?

HEIDI:

Right. Not at all. I don't feel the introverts should limit themselves to the types of areas of legal practice or really any aspects of legal practice. To be honest, those were the kind of messages that I either heard or I misinterpreted that, "Well, why did you do into litigation if you were nervous about taking a deposition?" Or, "Why did you go into construction law if you didn't want to fight like a champion?" And I don't think those are productive messages at all because in my experience and working on myself. I realized introverted and quiet individuals can do any aspect of law, they just need to have better self-awareness or enhanced self-awareness of their strength and also scenarios that might cause them some particular challenges, how to step in to those challenges with force and amplification, but in an authentic manner, not trying to fake extroversion or mirror the behavior of a really boisterous gregarious person, but instead stepping into the scenario as a calm, quieter figure but with power. And it was eye-opening when I realize, a quiet individual can be a very tremendous voice in a negotiation or in the courtroom. We don't all have to be boisterous and gregarious to be effective.

That was a huge realization for me. I definitely do not think that introverts should only go into transactional law, for instance, because transactional law requires a lot of performance, so you're really not cutting out those performance scenarios. But I also feel that if we encourage introverts to limit their interest, we're missing out on a tremendous body of voices that have great ideas for any aspect and any area of practice if that law and that's not what we should be doing. We should be including these voices in all aspects of our legal profession. What's been fun and exciting throughout this journey with this book is talking to extroverts who were open to understanding introverts better so they can better manage teams and understand that having both introverts and extroverts on a legal team, whether it's in transactional work or a litigation is an asset because you're bringing these different minds together to solve problems in different ways, and that's really gonna serve the client better. Rather than us all trying to be this one stereotypical lawyer.

MARK:

Let's follow up on that just a little bit because I will confess that I have been one of these people that will say, or at least out of naivety had this thought, that but do it kind of a thing. You know what I ... what advice do you have for manager partners or supervision attorneys in terms of recruiting and developing a talented pool of introverted lawyers?

HEIDI:

I've been really excited to hear how open so many managing partners and leaders are in learning more about different personality types and being vulnerable themselves and looking to see if, are they really extroverted or have they just been acting extroverted all these years. I think the more that law office leaders or law firm leaders or legal profession leaders understand that we are not all the same, but getting a little touchy feely I guess with personality traits and understanding the assets that different diverse individuals bring to the profession is a huge first step. Just realizing, okay, we're not all the same and that's a good thing. Then I've also been trying to study and understand how to encourage law firm leaders and law office leaders to acknowledge the presence of fear in lawyering because there are many scenarios that we encounter in the practice of law that are just scary, and they're scarier for some of us than others.

It really accomplishes a great deal when a law firm leader can say to junior associates, "Hey, look I realize that some lawyering scenarios are gonna be scarier for some of you than others, that is okay. It doesn't mean you're not cut out for this. But let's talk about that and really figure out what is it about this particular deposition or negotiations or client scenario that's troubling you and let's talk about the tactical aspects of it." Not always the substantive preparation because I think all of us endeavor to work as hard as we can on the substance of the law, that really being honest about the mental aspects of our job, that tactical scenarios that we don't always teach in law school, and we assume that junior attorneys can just figure out in the field. Managing partners and law firm leaders, really sit down openly and talk with junior attorneys about the reality of fear in lawyering and provide helpful advice and mentoring on how to handle those scenarios without judgment, without making it seem like a weakness. I think that will really go to great lengths to help the well-being of our profession and help everybody perform better and serve our clients in a really fantastic way.

MARK:

I have one final question I'm very curious about. You've come out at the end of an interesting journey, and we have the book here. Knowing what you know now, if you were to go back and do it all over again, in terms of your career, would you do anything different?

HEIDI:

I would have been so much healthier. If I had known all this then, I would have been able to take the pressure off of myself to prepare for depositions and trial work and client scenarios in a way that made it okay for me to turn red in a deposition and keep going, keep going with my plan, don't let my nerves make me feel weak or like I'm not but out for this. And I so wish I could go back and redo all of those scenarios and just be able to talk myself through those scenarios realizing you are substantively prepared, you know what you're doing, you have a voice, you're entitled to do it your way and not try and mirror the guys across the table, don't worry about if you're blushing, it doesn't matter, you're doing a good substantive job. And I think I would have had a much healthier journey through my twenties and my thirties. But I think all of that experience led me to the place that I am now and I'm very happy in my job, I love teaching legal writing, it's a powerful medium for lawyers to communicate and this book has really taught me how introverts and shy and socially anxious law students can really change our profession if somebody just takes a moment to tell them, "You can do this." And that's been very exciting.

MARK:

We are at the end of our time here. I'd like to say, Professor Brown, thank you so much. It really has been a pleasure. To our listeners, I hope you found something of value and interest today out of this conversation. And if in future you have any ideas for topic or if you have questions or concerns you'd like to see addressed in one of our podcasts, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks for listening. Bye-bye.

 Heidi K. Brown is a graduate of The University of Virginia School of Law, a law professor at Brooklyn Law School, and a former litigator in the construction industry. Having struggled with extreme public speaking anxiety and the perceived pressure to force an extroverted persona throughout law school and nearly two decades of law practice, she finally embraced her introversion and quiet nature as a powerful asset in teaching and practicing law. She is the author of a two-volume legal writing book series entitled The Mindful Legal Writer, won a Global Legal Skills award for her work in helping law students overcome public speaking anxiety in the context of the Socratic Method and oral arguments, and was appointed to the Fulbright Specialist roster to teach English legal writing in international law schools. As the author of The Introverted Lawyer, Heidi champions the power of quiet law students and lawyers to be profoundly impactful advocates, in their authentic voices.

Episode 11: Where Legal Tech is Heading

If you are not already aware, ALPS proudly partners with Clio, the easy-to-use cloud-based law practice management software company with over 150,000 subscribing lawyers.  ALPS policyholders enjoy a 10% lifetime discount on their Clio subscription. We are also lucky to work with Clio to better understand where legal tech is heading and how we can leverage these advancements as they relate to risk management. ALPS Risk Manager Mark Bassingthwaighte connected with Clio's Content Strategist Teresa Matich and Lawyer-in-Residence Joshua Lenon to elaborate on Teresa's recent blog, 10 Predictions for the Next 10 Years of Legal Tech. The predictions were gathered via Clio Advocates, an online community of legal professionals, legal tech visionaries, and Clio team members. The discussion unearthed some of their most interesting findings. Joshua also weighed in on why lawyers should innovate their practices to avoid risk rather than maintaining the status quo out of fear of the unknown. Joshua also discussed how Clio is helping the legal community innovate intelligently through its million dollar development fund.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Welcome to another episode of ALPS in Brief, the ALPS risk management podcast. We're coming to you from the ALPS home office in the historic Florence building in beautiful downtown Missoula, Montana. I'm Mark Bassingthwaighte, the ALPS risk manager, and I have the pleasure of sitting down today with Teresa Matich and Joshua Lenon, both with Clio, a company that delivers cloud-based practice management technologies to lawyers worldwide. Teresa, Joshua, welcome. It's a pleasure. Before we jump into the conversation we're about to have, can you just take a few brief moments and tell our listeners a little bit about yourselves?

TERESA:

Sure. I'm Teresa Matich. I'm a content strategist at Clio, and I manage the Clio blog, where we write about legal technology and the business of law for law firms of all types.

JOSHUA:

I'm Joshua Lenon. I'm the lawyer in residence at Clio. I provide legal scholarship and subject matter expertise to our teams throughout Clio, including Teresa's great blog.

MARK:

That is a good blog, I'll give you that. I enjoy it, and that's really what sort of prompted this podcast idea. It's been a little while, a week or so here, but you came up with the top ten legal predictions for the next 10 years, and that was just one of your blog posts. I thought that was very, very interesting. Normally when you see these predictions for what's going to happen, it's some lawyer sitting down or some tech person sitting down, but this really came out of the advocate community, as I understand it.

Can you tell us a little bit about the Clio advocates community, talk about how the predictions were collected, and just tell us a little bit about the process?

TERESA:

Sure. We wanted to look at predictions for legal tech over the next 10 years, because it's actually Clio's 10th anniversary this year. 10 years ago, Jack and Ryan set out to build Clio and today Clio is the most powerful and popular cloud-based practice management platform available with 150,000 users in 90 countries. A big part of Clio's success has been the people who use Clio, so we thought it would be fitting to ask them what their predictions are for the next 10 years. As you mentioned, the post came out of a discussion in Clio's advocates community, which is the official Clio community where customers can go to discuss legal topics, share their expertise, get advice, and just engage with each other and build that community.

Anyone who wants to join can learn more. You can join at advocates.com/join/advocates. There was discussion going on. We asked what their predictions were for the next 10 years, and we picked some of the most popular ones for this blog post.

MARK:

Nice. When you look at this, in terms of popular ... What surprised you the most about what you found?

TERESA:

There were a few things. The one thing that surprised me in the discussion was how many people predicted that paperless law firms were going to be a big thing in the next 10 years.

MARK:

Mm-hmm (affirmative).

TERESA:

Paperless is a big thing for a lot of law firms now, and I guess I was surprised to see so many law firms seeing that trend continuing and seeing law firms not just be mostly paperless but entirely paperless in the next 10 years. The second thing, along similar lines, is one person's prediction that traditional offices would disappear entirely, and that jurisdictional issues would go away, and lawyers would work across state lines with lawyers in other jurisdictions. Whether you got a mobile practice or you're working from home or you're using a shared workspace, that trend is only going to continue, which does make a little bit of sense.

MARK:

Yeah.

TERESA:

Office overhead is expensive, and then the third thing was Jordan Couch’s prediction that lawyers will practice more like doctors, which was a really interesting way to frame it. In his view, artificial intelligence and automation will not threaten the jobs of lawyers by passing off more routine tasks to apps and services and other legal professionals. Lawyers, like surgeons, are going to be able to focus more on their craft and more on practicing law, which is what most of them want to do in the first place.

If you've got a platform like Clio where you can log time with just a few clicks, communicate with your clients securely, and look at reports and data to see how your firm can improve, you're going to much better off than if you're trying to do those things all on your own without the right tool.

MARK:

It's interesting, and I agree with some of these predictions, just in terms of our own experience, and I do a lot of consulting over the years with apps and just in terms of visiting with firms around the country, but we are seeing more and more, in terms of just supporting what the advocates are saying, lawyers are moving into the, if you will, virtual space or virtual practice space. I see more telecommuting. I do see an increased pace of movement to the cloud, in terms of dropping off the paper, kind of, side here with all of that. It's been fun. It's interesting.

I'm the risk guy, as you're well aware, and work with the malpractice insurance carrier. This is our world. Thinking about the advocate community, the kinds of things you're seeing and learning, what do you think we should be educating our policyholders about? Do you have any thoughts on that one?

JOSHUA:

I do think risk always is a factor when it comes to running any type of business, not just a law firm, but lawyers actually have a phenomenal resource that they're under-utilizing when it comes to managing, measuring, and preparing for risk, and that is their professional liability insurers. Too many lawyers don't innovate because they think their liability insurer will say no, when in fact, what liability insurers in my experience look for is a bit of collaboration, a little two-way communication, such that they can prepare alongside the law firms for these upcoming changes.

Lawyers who want to innovate should, but they should be reaching out to their liability insurers and making sure that everybody's on the same page moving forward. In fact, they can probably get some great advice from their insurers on what's worked for other firms, and better approaches towards managing that risk if there is a factor in their expense.

MARK:

Again, I agree. I'm getting more and more these calls and emails coming in, talking about, "Is it safe to be in the cloud? I'd kind of like to go here, but we're afraid that you as our insurer will say, 'Oh, no. That's too risky.'" My response is, I don't think you guys can get to the cloud fast enough. Part of my challenge is, in trying to educate, say, when you think about moving to the cloud, we need to ... It's not the cloud, if you will, it's how we interact with the cloud, and so there's an opportunity for me to do some training and educating in terms of how to use it more responsibly.

As I've looked at your site and we have a partnership here in terms of Clio and ALPS, and our insurance, do get some discounts in working with you folks, and so we're well aware of what you do. I've been very interested in your million dollar Clio development fund. Can you tell our listeners a bit more about what this fund is about? How do you envision this helping current and future Clio subscribers, and maybe tell us a little bit about what's already being funded?

JOSHUA:

Thanks, Mark. The developer fund is an experiment, but one that we're very excited about. We know that there's no one way to practice law. In fact, our advocates community, the feedback loops that we have via our support team, all tell us of lawyers having, sometimes, very highly specialized needs when it comes to their technology. While Clio is a great platform and highly customizable, it doesn't have, necessarily, every tool for every niche practice out there.

We've been very fortunate to leverage cloud technology to create a platform where law firms can pick their favorite tools to meet their needs and specifications, and plug them into Clio, such that information syncs back and forth, it reduces transcription error, it increases responsiveness, and generally prevents a lot of the different types of complaints that we see coming towards lawyers when it comes to juggling a whole bunch of different data silos separately. When it comes to the developer fund, we know that it's very difficult for tools that target niche practices or niche functions within those practices, to really get up and running fast enough to be sustainable, so our developer fund is one way of us taking our success and investing in these third party tools, such that they're creating these highly specialized components that law firms can plug in.

For example, if you are an immigration firm and really need a strong workflow for soliciting family information or business information and populating those government forms quickly on behalf of your clients, we have several tools that now plug into Clio and just do that for you. Clio will handle your time and billing, your secure communications with those clients, but this plugin tool will handle the forms for you, and between the two, you have an entire immigration practice basically in the palm of your hand on your mobile phone.

If you are an IP attorney, you can plug in a tool like Alt Legal and that will handle your patent documenting for you, which is, again, a highly specialized workflow that Clio would love to build, but it only represents a portion of the 150,000 lawyers that we service, so we have to pick and choose, but we can devote things like our developer fund to get massive scale and massive functionality for lawyers around the world with a cooperative environment.

MARK:

What I hear, and what I really like about this, is, again, talking with our insureds over the past five to eight years as they look at this possibility of moving into the cloud. There've been all kinds of roadblocks that I hear, and what you're saying is, we're now in front of this. We are removing the roadblocks so that we can make the transition for this, particularly what I ... In terms of a lot of our insureds, the solo, small firm lawyers, make this transition to the cloud very smooth and make them far more productive. I just think this is a fantastic approach. Very exciting things happening. That's just fantastic.

We're about running out of time, here. To wrap up, can I have each of you just share a final thought in terms of encouraging, why is it important for legal professionals to at least understand, if not move forward and embrace technology at the level of the like of which Clio offers, that kind of thing? What are your thoughts, final closing thought?

TERESA:

Sure. First, I would say that knowing the benefits and risks of technology is fast-becoming a necessity, not a nice-to-have. 31 states have already adopted comment eight on the ABA's model rule for professional conduct, rule 1.1, and that states that law firms must stay abreast of changes in the law and its practice, including the benefits and risks associated with technology. If you're not using technology to serve your clients better or if you're not aware of the risks that come with technology, it's really important to get educated. The Clio blog covers these topics regularly and you can subscribe to that at clio.com/blog. We put out a regular digest with articles.

The second thing I would say is that technology can do a lot to help you practice more efficiently and help your clients better and focus more on the practice of the law. As Jordan said, lawyers who leverage technology are going to have more of an opportunity to focus on what they got into law to do in the first place.

JOSHUA:

I think that it's only going to get better from here. That's one of the exciting things about legal technology, is I think we're at an inflection point, where better and better tools will come into the hands of lawyers, giving better and better service to their clients, and getting in on the ground floor of that is a market opportunity for the law firms out there.

MARK:

Yeah, yeah. You know, may I just throw one other question at you, based on a conversation I had actually a little bit earlier this morning with another one of our insureds. I would just be curious in terms of the thoughts of either of you on this one. I'm going to restate it, but, this comes up quite a bit in my world. Mark, I'm thinking about looking at a cloud product, whether it's just file storage to a full practice management solution, such as Clio, but my concern is, if I start to let go of my data, I'm concerned about the security of all of that. I am now out of control. What would your response be to someone that says, "I'm just having a little trouble letting go." Can you speak to just data security overall in a solution like Clio versus just keeping everything local?

JOSHUA:

You got it. First of all, dollar per dollar, you get more security moving to a reputable cloud provider than you can ever provide inside of your office, things like 24/7 supervision of the technology are things that Clio provides that a lawyer just can't do in a smaller boutique firm. There's, unfortunately, just not enough dollars to cover that type of security coverage, so moving to the cloud is a great way to get more for your money, but you do have to pick a reputable provider. One way to find out if somebody's a reputable provider, is to look at their transparency when it comes to their security preparations, their willingness to answer your questions, and, quite frankly, their reputation amongst a lot of your peers.

Clio, for example, has a public report on our status for how long we've been up, for the last ... I think it goes back an entire year now, the current report, and for the last three months, for example, I can tell you that Clio has been down a total of three minutes over those three months. That's the type of transparency we provide. We also provide third party security audits that are done on either and hourly or daily basis, depending on which of the three reports you look at. Those are available to the public as well, so you can always see how we're doing and whether or not we're leading the market in security, or lagging behind. Our goal is to always be leading.

MARK:

Yeah, yeah.

JOSHUA:

Yeah, and because of that, then you can take a look and see, not only are we being transparent, but then, what's our reputational effect? Our partnership with ALPS, for example, is one metric that a firm could look at to see that, not only are we being transparent, but we're also being vetted by people who are knowledgeable in the business, and that deem us to be a good bet.

MARK:

I appreciate you sharing that, Joshua. I do think it's important for our listeners to hear directly, if you will, from the horse's mouth, the answer to the question, so thank you for taking the time for that, and boy, I couldn't agree more with you. It's the same message I try to preach, but again, sometimes hearing it from the provider themselves, for themselves, is an important thing. That's about all the time we have today. Teresa, Joshua, thank you very much. It's been a pleasure, and for our listeners, I hope you found something of value and interest today out of this conversation. If, in future, you have any ideas for topics or questions or concerns you'd like to see addressed in one of these podcasts, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks again, thanks for listening. Have a good one, folks. Bye bye.

 

Joshua Lenon is an attorney admitted to the New York Bar.  He studied law at St. Louis University School of Law, obtaining a Juris Doctorate and a Certificate in International and Comparative Law. Joshua has since helped legal practitioners improve their services, working for Thomson Reuters' publishing departments in both the United States and Canada. Joshua currently serves as Lawyer-in-Residence for Clio, providing legal scholarship and research skills to the leading cloud-based practice management platform from Vancouver, Canada. He's been a guest lecturer for movements like legal hacking and legal technology at schools like MIT, Suffolk Law, and Vanderbilt, as well as before organizations like ReinventLaw and the ABA Law Practice Futures Initiative.

 

Teresa Matich manages the Clio Blog, where she writes about legal technology and the business of law for legal professionals at firms of all sizes. She has previously worked as a reporter in the financial sector, and prior to that, she worked as an office clerk at a Vancouver real estate law firm.