Five Minute Law Goes to the Movies

Five Minute Law Goes to the Movies

Two movies resonated with me in 2019. They were both about music, not law. And yet . . .

One was Yesterday, about a struggling British singer-songwriter who somehow becomes the only person who remembers the Beatles, my favorite rock band. The other was Blinded By the Light, about a working-class Pakistani kid in England whose world is shaken by the music of Bruce Springsteen, which I also like.

Britain, rock music, big life changes. I sense a theme.

Mind you, these are not my votes for the “best” films of 2019. I don’t see enough films to give an educated opinion on that. Plus, I go to “movies,” not films.

No, Yesterday and Blinded By the Light were not the best films of 2019, but they both touched a nerve with me. So I decided to ask why—what was it about these two movies?—and to see if the answer could teach me anything about being a lawyer.

But don’t worry, no spoilers.

Yesterday

It would be tempting to dismiss Yesterday as just a lightweight romantic comedy, but it’s more than that. For one thing, you have to admit the premise is pretty good.

The trailer sets it up well: struggling musician Jack Malik crashes his bike during a worldwide power outage. When he gets out of the hospital, his friend and manager—who just happens to be an attractive young woman who secretly loves him—gives him a new guitar. He starts strumming it and singing. “Yesterday, all my troubles seemed so far away, now it looks as though they’re here to stay, oh I believe in yesterday.”

His manager is astonished. “Oh my . . . when did you write that?” she says.

“I didn’t write it, Paul McCartney wrote it, the Beatles,” he says, half annoyed.

Another friend replies, “who?”

The rest of the screenplay practically writes itself. Talk about “imposter syndrome.”

By the end, Jack learns two lessons: the “success” you crave isn’t always what it’s cracked up to be, and the love you really need is sometimes right in front of you.

The second lesson is of course standard rom-com fare, but Yesterday executes better than most. And of course, Jack singing various Beatles hits throughout doesn’t hurt.

But the “twist” in Yesterday elevates it from an ordinary Hollywood romantic comedy to something with real emotional pull. I won’t give it away.

I will say this. There is only one time in Yesterday when we hear the actual Beatles performing. The closing credits start, and we hear a familiar voice backed by piano. “Hey Jude, don’t make it bad . . .”

Standard Beatles lore says Paul McCartney wrote “Hey Jude” originally as “Hey Jules” for Julian Lennon, John’s son. John was leaving his first wife Cynthia for Yoko, and Paul was trying to comfort Julian. “Hey Jude” never mentions divorce, but I think the song resonates because it has that energy. On the surface, it’s a sing-along rock anthem, but it has a bittersweet edge. “Take a sad song, and make it better.”

“Hey Jude” is also deceptively simple in musical terms. Its secret weapon consists of two small harmonic turns. The first is the little descending piano riff that happens right before “so let it out and let it in.” The chord changes from F to F7, introducing a slight dissonance that naturally resolves to B flat in the next bar. I think of it as a musical way of saying, “ok, things are getting more complicated, but here’s a bright new chord!”

The second harmonic device happens in the “nah nah nah” chorus. In the second bar, Paul introduces a chord that never appeared up to that point: E flat. The song is in the key of F, so E flat is technically in a different—but closely related—key. (I know a little about harmony from playing in jazz band in high school and college; more about that later.) You may know nothing about music theory, but trust me, that E flat is the hook that brings you back.

As “Hey Jude” played at the end of Yesterday, I sat there in the theater with my ten-year-old son and listened to the whole thing, extended coda and all. He prodded me like “are we going now,” but I just had to soak it in.

Later, in the car, we were talking about how much we liked the movie. Then my son asked, “is John Lennon still alive?”

The childlike innocence of his question hit me like a ton of bricks. “Uh, no. No, buddy, he was killed,” I said. Then he said, “Daddy, are you crying?”

What was it about Yesterday that put me in that state? Sure, I’m a sucker for the Beatles angle. But I think the bigger thing is that I relate to Jack. He has some talent, but he’s never going to be a great singer or songwriter in his own right. By the end of the movie, he figures that out, and he’s ok with it. He learns what really matters.

I’m never going to be some famous trial lawyer, but I do a good job for my clients, and I have a loving family, so I’m ok with that.

Family plays more prominently in Blinded By the Light. And like Yesterday, it almost made me cry. But for a different reason.

Blinded By the Light

The strength of Blinded By the Light is that it works on many levels. High school student Javed Khan is a second-generation Pakistani immigrant living in Luton, England in the 1980s. He has multiple problems: evading racist bullies, his family struggling to make ends meet after his father is laid off, trying to make his tradition-bound father understand that he wants to be a writer, and of course, the age-old problem of adolescent boys everywhere: girls.

Different people can relate to these problems in different ways: immigrants facing racism, kids facing expectations of parents, parents trying to make a life for their kids, to name a few.

But Javed’s biggest problem is more philosophical. It’s a problem most adolescents experience in some way at some time: a yearning to understand what life is really about. A feeling that “there must be more to life than this.”

Enter Bruce Springsteen. Javed’s Sikh friend, Roops, loans Javed a Springsteen cassette at school, and it changes his life. The music simultaneously provides both an escape from his problems and inspiration for confronting them. These songs, born an ocean away in New Jersey, speak to teenage Javed like nothing else.

This got me thinking, what was my equivalent of Javed’s Bruce Springsteen as a teenager? The Beatles seemed like an obvious candidate. It was the first popular music I really listened to, on scratched-up albums my parents owned. Funny thing though, my parents had plenty of other albums. What is it about the Beatles that instantly grabs kids from a young age? There has to be some kind of magic in those songs.

But as much as I love the Beatles, that was a love born before I was a teenager. I will never experience the Beatles the way my parents did when they were in high school in 1964. There is no obsession quite like an adolescent obsession.

So what was mine? It wasn’t the Beatles, and it wasn’t Springsteen himself. I was three when Born to Run came out, 12 when Born in the U.S.A. was released. I liked Springsteen’s songs and still do, but I was a little on the young side to be swept away by tales of working-class angst and melancholy nostalgia for the glory days.

Was there anyone I loved as a teenager the way Javed loved Bruce? The closest thing I could think of was U2.

I was 12 when The Unforgettable Fire came out, with its signature songs “Pride (In the Name of Love)” and “Bad.” I bought the record, “Pride” was in heavy rotation on MTV, and then Live Aid happened when I was 13. Bono singing “Bad” at Live Aid was my Woodstock.

But things really exploded when a little album called The Joshua Tree came out in 1987. It swept through David Crockett High School and countless others like wildfire. It was political, spiritual, and unlike anything else at the time. Every song was memorable. It was almost like a group of record executives got together and said, how can we get this kid in suburban Texas hooked on this Irish rock band?

Of course, that sort of formulaic approach doesn’t actually work, as the movie Yesterday shows. Like the great Beatles albums, The Joshua Tree worked because it had great songs and it was real.

Still, as much as I loved U2—and some other rock bands in the 80s—they didn’t change my life. As I thought about it, I realized that U2 was just music I liked. It wasn’t what the Boss was for Javed.

Then it hit me. My “Bruce Springsteen” was not a particular artist at all. It was a genre of music. It was jazz. Jazz music was the thing that changed my teenage world.

This was the result of three fortuitous forces: a strong public school band program, my parents, and a young trumpeter from New Orleans who came on the scene at almost the precise moment I started 6th grade band.

Greetings From Garrison Park

I started learning the cornet at Cunningham Elementary School in middle-class south Austin in September 1983. The next month, Wynton Marsalis released his second jazz album for Columbia, Think of One, with its scorching opening track “Knozz-Moe-King” (“No Smoking”). Earlier that summer Marsalis had released an album playing the Haydn and Hummel concertos, which I would soon learn was the benchmark repertoire for classical trumpet.

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Luckily, my parents were pretty hip about music. I mean, my dad used to listen to reggae on these old reel-to-reel tapes, and my mom was a Philip Glass fan. She quickly became aware of Marsalis and bought his two 1983 releases. She also bought the definitive jazz album, Kind of Blue by Miles Davis.

From that point on, it was all over. I still loved the Beatles. I still loved my 80s rock bands. But jazz was it. Nothing could compete with jazz. It was serious, like classical music, but cool, like rock music wanted to be.

In the summer of 1985, I switched from cornet to trumpet when my parents, seeing I was serious about practicing, bought me a brand-new Yamaha trumpet from the Reitz Music store near Ben White Boulevard and Manchaca Road (the store is gone, but I still have the trumpet).

That same summer, before I started 8th grade at Roy Bedichek Junior High, Wynton Marsalis released Black Codes (From the Underground). Then the band on Think of One and Black Codes broke up when saxophonist Branford Marsalis and pianist Kenny Kirkland decided to go on the road with some rock guy who had just left a band called the Police.

I later read that this was a trying time for Wynton. But his band was rejuvenated when he found a young piano player named Marcus Roberts, who was blind but could play the piano like nobody’s business. That led to the album that really solidified my fascination with jazz: J Mood.

The front and back cover of J Mood said it all. The front had a modern, abstract image of a trumpet player by African-American artist Romare Bearden. The back cover had liner notes by the incomparable and idiosyncratic Stanley Crouch, and black and white photos of each member of the quartet, in suits and ties.

Looking at that back cover, I had the same feeling Javed must have had when he saw Springsteen in his sleeveless denim jacket. These were the coolest men I had ever seen.

I remember my mom looking at it and saying, “those look like some serious jazz guys.” And the music. Oh man, the music. I wouldn’t start to understand the theory of it until later, but I knew it sounded good, and different.

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You have to understand, this was unlike anything happening in pop culture in 1986. The number 1 song that year was “That’s What Friends Are For.”

And Wynton led me to past jazz greats: Miles, of course (who, ironically, feuded with Marsalis). But also other household names of jazz like Monk, Trane, Bird, Dizzy, Clifford Brown. Even much older ones that probably sounded corny to my teenage peers: Louis Armstrong and Duke Ellington. But I loved the Hot Fives and Live at Newport.

At the same time that I was digging this music, I was learning to play it (sort of) through my high school jazz band and programs like All-City Jazz Band. I learned that jazz had its own secret language. “C major seven sharp 11.” “Mixolydian.” “Two-five-one.” I jammed on the chords on a cheesy Casio keyboard.

Just like the magnetic pull of Springsteen in Blinded By the Light, I think part of the attraction of jazz was that it was somehow alien and counter-cultural, despite really being so authentically American. The fact that other people didn’t get it was a plus.  Appreciating jazz gave you admission to an exclusive club, one united not by race, nationality, age, or religion, but by love and understanding of the music. You could walk into an actual jazz club in Japan, and when the bass player starts in with the opening vamp of “Night In Tunisia,” you would know what to play without speaking a word of Japanese.

The change this new club brought for me was mostly internal. It’s not like I started wearing a beret, smoking cigarettes, and calling people “cats.”

And just as Javed didn’t decide to join a rock band, I didn’t decide to become a professional jazz musician. Jazz didn’t alter my career path, but it did open up a whole new world.

So I get Javed and his obsession with Bruce Springsteen.

I’m Not Half the Man I Used to Be

But Javed is not the character I really related to in Blinded By the Light. No, it was Javed’s father, Mr. Khan.

With a character like Mr. Khan, there is a risk of stereotyping to the point of caricature. He’s the familiar first-generation immigrant patriarch. He is mainly concerned with making money. He enforces traditional values within his family. He wants his daughters to marry well. He wants his son to “follow the Jews,” stay at the top at school, and pursue a practical, lucrative career. He doesn’t understand why his son would want to be a penniless writer, and he certainly doesn’t appreciate American rock and roll.

But one scene in particular gives Mr. Khan some depth. After losing his factory job, he’s in the kitchen of his modest row house with his wife. The children are not present. He breaks down and tells his wife he has failed their family. As the outwardly submissive Mrs. Khan comforts him, we see who the real pillar of the family is. And we finally see Mr. Khan’s vulnerability.

Any parent who has lost a job or faced a career setback can relate.

And that, I think, holds the key to the elusive lesson of these movies for my profession. If you want to reach people with your story, they have to relate to the story. This is something good trial lawyers know.

But it’s a little more complicated than that. Different parts of a story will resonate with different people. If you’re not that into the Beatles, the scene where Jack’s friends think he wrote “Yesterday” won’t mean as much. You may get it, but you won’t feel it.

And if you’re like me—a white guy who was born in the USA—you may understand Mr. Khan’s feeling of failure and find it moving. But you may not feel it as deeply as an immigrant who faced racism and poverty while struggling to provide a better life for his children.

This means you’ve got to adjust for your audience. That’s the lesson.

On the other hand, Yesterday and Blinded By the Light show that some themes are universal. Everybody’s got a hungry heart, and I still haven’t found what I’m looking for, but all you need is love.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His wife claims that scene in Blinded By the Light made him cry, not “almost cry,” but he does not recall that.

This post is dedicated to Mr. Z and Mr. Wylie.

Merry Christmas from Five Minute Law

Merry Christmas from Five Minute Law

Christmas time is here.

Happiness and cheer.

But my time entries call, so I’m sorry y’all, no non-compete tips to share.

Christmas time is here.

Blog posts everywhere.

But not for me, I’m taking this week off, look for more great posts next year!

Merry Christmas, everybody! And also Hanukkah Sameach!


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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

Thanks to all my Fivers for making 2019 the best year yet for Five Minute Law. I really appreciate every view, like, share, and even feedback IRL. Look for 2020 to be even bigger and better!

 

The Problem With Non-Competes

The Problem With Non-Competes

A Texas non-compete litigator points out the biggest problems with the way non-competes work in practice

There are too many non-competes, the non-competes are too broad, and judges are too willing to enforce them with injunctions.

That’s it. That’s the tweet.

But this is a blog, not Twitter, so I’ll elaborate.

I’m not the only one worried about non-competes. The American Constitution Society (ACS) recently released an Issue Brief titled “No Exit: Understanding Employee Non-Competes and Identifying Best Practices to Limit Their Overuse” (November 2019). It covers the traditional legal framework governing non-competes, explores why an increasing number of workers are subject to them, summarizes recent legislative responses, and explores non-legislative approaches to combating the overuse of non-competes.

The ACS takes a dim view of the widespread use of non-competes, especially for lower-level employees like janitors and sandwich makers. “Taken in the aggregate,” the brief argues, “such widespread limitations on employee mobility have demonstrable, negative consequences for wages and innovation.”

At the federal level, the ACS brief reports, the proposed Workforce Mobility Act of 2019 would ban the use of non-competes, with some limited exceptions permitting non-competes for owners or senior executives in the sale of a business or dissolution of a partnership. The bill has some bipartisan support, but passage “seems far from assured.” The issue brief concludes that policymakers in most states “should consider adopting stronger measures to discourage employer overuse of non-competes.”

The ACS brief approaches non-compete reform with an obvious pro-worker orientation. As a lawyer who represents both employers and employees in non-compete disputes and litigation, I have more of a practitioner’s perspective. And as a Texas non-compete lawyer, I don’t expect any significant change in the law soon.

But my experience handling non-compete cases tells me that some common-sense reforms are overdue in the Lone Star State.

Here are the five biggest practical problems with non-competes that I’ve learned from handling Texas non-compete cases.

Disclaimer: This is, like, just my opinion, man. So you’re not allowed to cite this post against me if I’m trying to get an injunction against your client.

1. In the vast majority of cases an employee non-compete is not really bargained for.

Imagine this scenario. Dawn Davis is a single mom and a legal assistant at a big law firm in Dallas. She makes good money, but the hours are long, and her bosses are jerks. She finds an opportunity for a new career in sales: Paula Payne Windows offers her a job selling windows in the construction industry. There are only two problems: it’s for less money, initially, and she has to move to another city. Still, Dawn is ready for a change, so she accepts the offer.

Dawn scrapes together enough money to pay a deposit on a new apartment in a decent school district, packs everything in a U-Haul, and moves her two kids, a cat, and a turtle to Cedar Park. The next Monday, she shows up for work. “We’re so excited that you’re joining us,” her boss Paula Payne says, “I’ll just need you to sign a few documents, and then we can get you started on this prospect list.”

You see where this going.

We all know Dawn’s non-compete is not bargained-for in any meaningful way. What’s she going to do, say “I’m sorry I can’t sign this,” decline the job, and start looking for some other way she’s going to pay next month’s bills? She could do that in theory, but in practice she’s going to do what countless other Texas employees do in similar situations: sign the documents.

Unfortunately for Dawn, there won’t be any getting out of the non-compete. It may be unenforceable for other reasons, but not because it wasn’t bargained for. “Did anyone put a gun to your head and say you have to sign this agreement,” the lawyer for Paula Payne Windows will ask Dawn in her deposition years later. Unless Dawn can testify to some extreme circumstance like that, a Texas judge is not going to rule that the non-compete is void based on duress, unconscionability, or some similar defense.

This scenario is typical. I’ve handled a lot of non-compete matters, and it’s common for the employee not to see the non-compete until it’s practically too late. And even when the employee gets the non-compete agreement before accepting the job, it’s rare that there is actually any bargaining over the non-compete. See, e.g., TENS Rx, Inc. v. Hanis, No. 09-18-00217-CV, 2019 WL 6598174 (Tex. App.—Beaumont Dec. 5, 2019, no pet. h.) (mem. op.) (employee claimed she had reservations about the non-compete but signed it because the employer said it was just a formality).

Ok, but so what? Doesn’t the “no bargaining” objection prove too much? Yes, employees sign non-competes agreements that are not really bargained for, one could argue, but that’s true of all kinds of things at-will employees agree to, like binding arbitration. Yet we generally enforce those things. Why should non-competes be different?

Well, for one thing, it’s not just the interests of the employee at stake. It’s also the interests of customers and the public. Generally, employee mobility is a good thing for the economy. It’s a big reason we have the at-will employment rule in the first place.

One way you could fix the “no bargaining” problem is to require employers to give advance written notice that a job offer includes a non-compete. The ACS brief reports that some states have already enacted rules like this. But I can see this kind of rule leading to all kinds of complications.

There’s a simpler way to fix this problem: prohibit non-competes for at-will employees. You could still allow non-competes in the sale of a business, where the non-compete is actually bargained for, and it makes economic sense to give the buyer a way to acquire the goodwill of the business. The proposed federal legislation has an exception for this.

But this solution does not seem politically feasible in Texas at the moment. More about that later.

2. Employee non-competes hurt the employer by shifting its focus to the wrong thing.

The second problem with employee non-competes in practice is a little counter-intuitive: they hurt the employer.

The best form of non-compete is a happy employee who doesn’t want to leave. Successful entrepreneurs cite keeping employees happy as a key reason for success. If you require employees to sign non-competes, you’re feeding a mindset that focuses on the wrong thing, restricting employees, instead of the right thing, keeping your high performers happy.

Business owners will say I’m being naïve, but as I said in The Most Effective Form of Non-Compete in Texas, if you think a non-compete is going to keep your best people from leaving, who is being naïve?

Still, I get it. I represent employers too, and I understand why they want employees to sign non-competes. It is frustrating to pour time, effort, and money into developing your employees, their skills and knowledge, and their goodwill with customers or clients, only to see them leave as soon as they get a better offer. Sometimes there is even a strong sense of personal betrayal, which is only natural.

So I’m not saying employers should never require non-competes, nor am I saying non-competes should never be enforced (under current law). Confession: I have drafted non-competes for employees to sign and have even sued employees for breaking non-competes. [audience gasp]

On balance, though, an employer is better off focusing on employee retention than drafting an impenetrable non-compete.

Similarly, I’m not sure enforcement of non-competes is the “pro-business” position. When people say enforcing non-competes is pro-business, keep in mind there are usually two businesses in a non-compete dispute: the first employer and the second employer. The employee is usually going from one business to the other. Is it really “pro-business” to tell the second business it can’t hire the employee?

This is before we even get to the problem of the non-compete’s effect on the employee.

3. The cost of litigation has a chilling effect on employees challenging unreasonable non-competes.

Here’s how it usually goes down. Dawn Davis quits her job at Paula Payne Windows and starts up her own windows company. Paula Payne gets worried that Dawn is going to take customers and cut into Paula’s profits, so she has her lawyer send Dawn a nastygram. The letter demands that Dawn refrain from competing with Paula Payne for three years, as her non-compete requires.

What is Dawn to do? Her best option is to work something out in a settlement. Maybe the compromise is that Dawn agrees not to do business with certain customers. Or maybe she agrees to pay Paula Payne 25% of her profits from those customers for a year.

But what if Paula Payne plays hardball and says no, comply with your non-compete or we’re going to sue you and get an injunction to stop you from selling windows?

“What should I do?” Dawn asks her lawyer, Maria Reynolds. “Well this non-compete is clearly overbroad,” Reynolds tells her, “but if we have to go to court it’s going to be expensive.” “How expensive?” Dawn says. “I’m going to need a deposit of $10,000,” Reynolds says, “and that might be enough to get through the temporary injunction hearing in the first month.”

Variations on this scenario happen all the time. The cost of litigating a non-compete case is usually as much, or more, of a settlement factor than the substantive issues.

The cost of litigating tends to give the employer an advantage over the employee in a non-compete dispute. The employer usually has more money, and the employee more to lose. If the employer loses the temporary injunction round, it loses some attorneys’ fees and probably some profits from customers that follow the employee. If the employee loses, she pays attorneys’ fees and has to look for a new job. In the words of Private Hudson, “game over, man.”

The ACS report calls this the “in terrorem” effect of an overbroad non-compete (quoting venerable law professor Harlan Blake). I call it leverage.

Of course, the cost of litigation is also a factor for the company trying to enforce the non-compete, and the problem of litigation expense driving settlement is not exclusive to non-compete cases.

But there is something different about a non-compete lawsuit: it affects the rights of third parties. Namely, the customers.

4. Judges don’t give enough weight to the interests of the customers, who never signed any non-compete.

You know, the customers? They are the ones who pay for the goods or services. Without them, there would be no sales for the parties to the non-compete to fight over.

Well, what if I told you that Texas law allows a judge to enter an injunction against a customer, who never agreed to any non-compete, prohibiting the customer from doing business with an employee who did sign a non-compete?

No way, you would say. This is a free country. A judge can’t just order someone to comply with an agreement they never signed.

Of course, this is precisely the effect of an injunction that enforces an employee’s non-compete. Let’s say you’re Biff Henderson, a residential builder who has bought windows from Dawn Davis for seven years. The judge signs a temporary injunction against Dawn—and “all others acting in concert” with her—prohibiting her from doing business with any of the customers she served at Paula Payne Windows. That is effectively the same as the judge ordering Biff not to do business with Dawn.

I’ve seen a lot of non-compete cases, and I can tell you three things that are usually true about customers.

First, they didn’t sign any non-compete.

Second, customers usually want to keep buying stuff from the person they’ve been buying stuff from. They certainly don’t want a judge telling them they can’t buy from that person anymore.

Third, customers don’t want to get entangled in a lawsuit and spend money on legal fees. In theory, a customer could intervene in a non-compete lawsuit to protect its right to do business with who it wants. But who’s going to do that? Biff may love Dawn, but probably not enough to spend thousands of dollars on legal fees so he can keep buying windows from her.

The net result is that the system has to rely on the employee to speak for the customer in the non-compete lawsuit. And the employee’s lawyer will usually try to do so.

But in my experience, judges don’t give the interests of the customers enough weight. It even seems like some judges consider it routine to grant an injunction to enforce a non-compete.

They forget that an injunction is supposed to be an “extraordinary” remedy.

5. Judges don’t take the “irreparable injury” requirement seriously enough.

One of the traditional common-law requirements for a temporary injunction is irreparable injury. Irreparable means harm that cannot be adequately compensated by damages. In theory, this requirement applies to a temporary injunction enforcing a Texas non-compete. See Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 241 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (rejecting argument that proof of irreparable injury is not required in a non-compete case).

But the irreparable injury rule is quite elastic, and the Texas Courts of Appeals review temporary injunctions on an “abuse of discretion” standard. The end result is that trial courts can apply the rule as strictly or loosely as they want, and they will rarely be reversed.

So you get two basic views of applying the irreparable injury rule. The “loose” view starts from the general proposition—stated in many Texas cases—that damages are only “adequate” when they would be as convenient and efficient as an injunction. Then it adds the proposition that the loss of customer goodwill is inherently difficult to measure by a dollar amount. The result is that judges with this view will almost routinely grant a temporary injunction if there is evidence that the employee is taking the employer’s customers.

The “strict” view calls BS on the “no adequate remedy” argument. In your garden variety non-compete case, the financial harm to the employer is the loss of sales. It’s not that hard to measure the employer’s lost profits resulting from the loss of sales. Lost profits damages can compensate for that. You’ve got to have something more than that, the strict view says, to establish that the harm is irreparable.

Both views can find support in the case law. But as should be obvious by now, I personally find the strict view more persuasive. I’ve already covered one reason above: the loose view doesn’t give enough weight to the interests of the customers.

But there’s an even more fundamental problem with the loose interpretation of irreparable injury: it ignores the irreparable injury resulting to the employee if the judge gets is wrong.

Keep in mind, a temporary injunction is not a final ruling on the merits. The parties are entitled to obtain discovery and present their best evidence at a full-blown trial. So at the temporary injunction hearing, the judge is sort of “guessing” at the employer’s likelihood of success at trial.

The problem is that the risks of guessing wrong are asymmetrical.

Here’s what I mean. If the trial court guesses wrong and denies a temporary injunction, the employer still has a remedy. Even if a bunch of customers run off with Dawn Davis while the lawsuit against her is pending, Paula Payne Windows can have the last laugh by seeking lost profits damages at trial.

But if the trial court guesses wrong and grants a temporary injunction, Dawn is out of luck. Worst case, her new employer Real Cheap Windows may decide it just has to let her go. Then she’s going to be looking for another job. It won’t matter if it turns out she was right that the non-compete was unenforceable; Dawn won’t get compensated for missing out on the sales she could have made absent the injunction.

Here’s another way to look at it. Even if the employer turns out to be right, the employee’s violation of the non-compete could be considered an “efficient breach.” The law should allow parties to breach a contract, the efficient breach theory says, as long as the non-breaching party can be compensated by damages.

That’s kind of the point of the irreparable injury rule in the first place, isn’t it?

Conclusion

I come out generally on the same side as the ACS issue brief. We need to reign in non-competes more in Texas. But it does not appear politically feasible that this will happen in the current Texas legislature. That means it’s up to Texas judges to give more weight to the interest of customers and to take the irreparable injury rule more seriously. This can be done without changing the Texas non-compete statute. It only requires applying the statute with common sense and some awareness of the way non-competes actually work in practice.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Should Clients Pay a Premium for Big-Name Law Firms?

Should Clients Pay a Premium for Big-Name Law Firms?

A totally objective and unbiased analysis by a practicing small-firm lawyer

I have many friends and acquaintances at big-name law firms, and I fear this week’s post may ruffle some feathers. But stay with me, BigLaw Fivers. As you will see, I conclude that it sometimes makes sense for clients to pay the high rates commanded by lawyers at big-name law firms. This is no manifesto against those firms.

Still, have you seen the hourly rates that the most prominent law firms charge business clients these days? I would give some examples, but if I say something like “can you believe partners at XYZ firm charge $950/hour?” the next thing you know people will think, “Ha! that’s nothing, ABC firm is charging . . .”

So I won’t get into numbers. But you know what I’m talking about.

These super-premium rates seem to coincide with the increased importance of branding in the competition for high-end business clients. I’m guessing this is no accident. If you look at the firms charging the very highest rates, I would bet most of them have one thing in common: they are firms everyone has heard of (at least everyone who has some familiarity with the legal field).

I doubt you will find a lot of “no-name” firms charging the highest rates for legal services. Those that are, I congratulate you. But most of the firms that charge the kind of rates I’m talking about are the “household names” of law practice.

Are these sky-high hourly rates justified? Should lawyers criticize these rates as excessive, or should we accept them as what the “market will bear”?

Personally, I’m ok with sophisticated clients paying whatever they agree to pay for their legal work. I don’t see it as an ethical issue.

But is it smart for business clients to pay premium rates for big-name law firms? Let’s look at the main reasons clients pay these rates, and whether those reasons hold up to scrutiny.

1. They’re just better

The first reason clients are willing to pay a premium for big-name law firms is the reason those firms want clients to think is the reason: they’re just better. But are they actually better? And even if they’re better, are they that much better?

Full disclosure: I do not work for a big-name firm, so I am probably a wee bit biased.

But I will give the prominent firms their due. The reality is that most superstar attorneys are going to work at law firms everybody has heard of. If you’re a superstar lawyer at a lesser-known firm, don’t be offended. I said “most,” not “all.”

And if us small-firm lawyers are honest, we’ll admit to ourselves that most of the very best lawyers work in BigLaw, because that’s where the money is. And the prestige. But mostly it’s the money. And we might be just a slight bit envious.

Second, even aside from the superstar attorneys, it is unlikely that a partner at a prominent BigLaw firm is going to be incompetent. (Notice I said “unlikely,” not “impossible.”) So when clients hire big-name law firms, they can usually rest assured that the lawyer in charge of their case will at least be competent. That lawyer probably wouldn’t have made partner otherwise.

But it’s not that unlikely that a partner at a big-name law firm will be mediocre. If that sounds critical, it’s not really. By “mediocre” I just mean someone with average practice skills. Yes, there are many top-notch lawyers at big-name law firms, but believe me, there are plenty of average ones too.

How do mediocre lawyers become partners at elite law firms? In most cases I would bet it’s because they bring something else to the table, like excellent business development skills, or a family, personal, or political connection to a major client. In some cases, they are just good at promoting themselves and taking credit.

But let’s not be too snarky. Most of these lawyers have worked their butts off. And like I said, most of the very best lawyers are at big-name firms. If your lawyer really is that much better than the competition at the no-name firms, and if your company can afford it (more about that later), then there is some logic to paying a premium for excellent legal services.

Also, let’s acknowledge there are plenty of lawyers at well-known law firms who are not charging the kind of rates I’m talking about. So if you’re a client paying reasonable rates for a lawyer at a big-name firm and you’re happy with the work, that’s great.

This post is about the rates that make eyes pop. Are there any other reasons to justify such rates?

1a. Expertise and specialization

I call this reason “1a” because it’s related to reason 1, but slightly different. Big-name law firms don’t just tout their lawyers as better, they also promise expertise in highly specialized areas of law practice that business clients sometimes need.

This is not just hype. There are some practice areas where you’re not going to find anybody experienced who isn’t at a big law firm or a high-priced boutique. For example, I’m guessing there aren’t a lot of inexpensive small-firm lawyers who have done a lot of bet-the-company patent litigation. And a typical small firm is not going to have experience defending massive securities fraud class actions, or doing M&A work for Fortune 500 companies, etc. You get the idea.

Still, if you are a client who is willing to pay a premium for specialization, ask yourself two questions. First, is the work you are sending that big-name firm really that specialized? I often see prominent law firms handling what I would call fairly “routine” matters (recognizing that no legal dispute is entirely routine).

Second, are there lawyers with similar expertise at lesser-known firms who charge less? It may take some hustle to find them, but I would bet that in most cases the answer is yes. You might even already know some lawyers like that. But you stick with the well-known firm because . . .

2. “Nobody ever got fired for buying IBM”

Now we’re moving into the less compelling reasons to pay high rates for legal work. But this one still has a certain logic to it. If you own the company, you can hire whoever you want and if it goes bad, you’re probably not going to fire yourself. But if you just work at the company, then the last thing you want is to hire a law firm nobody’s heard of, have the case go south, and then get blamed for hiring the wrong firm.

In the computer world (where, full disclosure, my dad owned a small business, so more bias), this concept is expressed in the cliché “nobody ever got fired for buying IBM.”

Is this a good reason to choose a big-name law firm over a no-name law firm with similar experience and expertise?

I guess it depends on your perspective. If you’re an in-house lawyer at a big company and you’re looking out for numero uno, then it makes sense to insulate yourself from criticism by selecting the firm your CEO will instantly recognize.

But if you’re truly looking out for the company’s interests, then you should at least consider less expensive options. After all, the company has entrusted you with spending its money wisely.

Which brings me to . . .

3. The “steakhouse” or “expense account” effect

I specifically remember the last time I had dinner with my wife at one of those expensive steakhouses (and I don’t mean Saltgrass). Bear in mind, as a kid growing up in south Austin, for me a fancy restaurant was the Red Lobster on South Lamar. I’m just as happy to get dinner from a taco truck, but I have to admit, this upscale steakhouse was really good.

The prices, on the other hand, were outrageous.

Prices that high give me some moral discomfort; there is something almost obscene about paying that much for a meal when millions of people don’t have enough food to eat. Then again, the amount of money I spend on Starbucks in a year could probably bring clean drinking water to a third-world village, so maybe I’m just a hypocrite.

Anyway, the point is that I was fine with paying the exorbitant price at the swanky steakhouse. Was it because the food was so exquisite? Well, it was good, but not that good. No, the reason I was fine with shelling out big bucks for a piece of grilled meat is that a client had generously sent me a gift card as a thank-you for doing a good job on his company’s case. In short, I wasn’t spending my own money.

I’d bet this is part of the reason upscale steakhouses exist in the first place: many of their patrons are business people taking clients to dinner on the company’s dime. It’s the “expense account” effect.

This is the same reason clients will sometimes select a law firm that charges twice as much for the same quality of work: the person making the decision is not spending his own money. I would even venture to say this could be the main reason.

This strikes me as an understandable reason for paying more, but not a good reason. Would the company’s general counsel pick the most expensive firm if she had to pay the fees out of her own pocket? I doubt it.

Unless . . .

4. Snob appeal, or the “Mercedes” effect

Let’s say the general counsel is rich. And let’s say he wants everyone to know it. In that case, what better way to let everyone know how much money you have to burn than to hire the most expensive law firms?

Now apply that to big companies as a whole.

Snob appeal. It’s the reason people are willing to pay more for a Lexus than for a Camry. Granted, the Lexus may be a really good car. It might even perform a little better than the Camry.

But that’s not why people pay more for a Lexus. Do you think they would pay the same price for a Lexus if they had to slap a Toyota emblem on it? No way. The whole point is to send the message “I make enough money to afford a Lexus.”

Again, I think the same principle is sometimes at work when big companies pick their lawyers. They’re not just paying for the services, they’re paying for the name. They want people to know their lawyers are expensive. It sends a message: “We’re [insert name of global company], our revenue is more than the GDP of most nations, and we can afford to pay for the very best lawyers to be found.”

This strikes me as the least compelling reason to pay a premium for legal services.

But again, we must give big-name firms their due. The motivations for hiring them are usually intertwined. If companies are willing to pay high rates because the lawyers really are that good, I don’t see much harm if a little snob appeal gets mixed in.

My advice to clients: just be clear with yourself what your reasons are.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He aspires to someday charge the same hourly rate as a third-year associate at a big New York Law firm.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

Happy Thanksgiving from Five Minute Law

Happy Thanksgiving from Five Minute Law

Five Minute Law is grateful for another great year. Our statistics department tells us we already have over 20,000 views for 2019. That’s double the views we had in 2017, our first full year in operation.

Thank you so much to everyone who has clicked, read, shared, or commented on our posts. We sincerely appreciate it, especially the positive feedback IRL.

But one request. If you see our head writer in person, don’t say, “oh, are you the guy who writes that five minute blog?”

The fame will go to his head, and he’s already insufferable.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He has a weakness for pumpkin pie.

Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

Let’s Roll: Do’s and Don’ts for Texas Trade Secrets Injunctions

Let’s Roll: Do’s and Don’ts for Texas Trade Secrets Injunctions

Recent case offers lessons on how to get (or avoid) a trade secrets injunction in Texas

When I say “drywall installation,” I’m guessing “trade secrets” is not the first thing that pops into your mind. Personally, I think of John Goodman’s character Dan Conner from the TV show Roseanne.

But a recent opinion from a federal district court in Dallas may change that. See Marek Brother Systems, Inc. v. Enriquez, No. 3:19-CV-01082, 2019 WL 3322162 (N.D. Tex. July 24, 2019).

Marek Brother Systems offered commercial and residential construction services, including ceilings, “acoustical solutions,” flooring, and paint. Juan Enriquez was a Marek project manager. Id. at *1. It does not appear that Enriquez signed any non-compete.

Enriquez did two typical things before resigning from Marek to run his own business. First, he formed an LLC, JP Acoustics and Drywall. Second, he sent a Marek customer list to his personal email address.

Let’s pause here for just a moment. Neither one of these things is necessarily wrongful, but both are a bad idea.

Under Texas law, it is not a breach of an employee’s limited fiduciary duty to make plans to compete with his employer. This can even include forming the entity the employee plans to use to compete. See Fiduciary Duty Lite: What Employees Can and Can’t Do Before Leaving.

But employees, why would you want to do this? Forming an LLC is relatively quick and easy. You can do it the day after you resign, and that’s one less thing for the employer to complain about.

Likewise, sending a company customer list to your personal email address is not necessarily wrong. In most businesses, it’s not unusual for employees to email or transfer company documents to their personal devices or accounts for work at home or on the road. This often happens, even when the company prohibits such personal use on paper. So, if a salesman emails himself an open orders list every week, it’s less suspicious if he does so the week before leaving, and if everybody at the company knows employees sometimes do this.

But again, unless you’re certain you will stay with the company until retirement, why would you do this? You should keep in mind Wolfe’s First Law of Trade Secrets Litigation: whatever company information the employee takes on the way out the door will be the alleged “trade secrets” in the company’s subsequent lawsuit.

Enriquez’s third mistake was naming the company “JP Acoustics and Drywall.” I would have called it “JP Drywall . . .” An “acoustics” company sounds like it has trade secrets; a “drywall” company doesn’t.

But let’s get back to the legal issues. Marek claimed that Enriquez’s email included confidential contact information for Marek’s customers and “proprietary notes” about the customers. Id. at *1. One of Marek’s customers was Muckleroy and Falls, id. at *1, which sounds like a business in a Frank Capra movie. Both Marek and JP Acoustics did work for Muckleroy and Falls after Enriquez left Marek. Id. at *4.

Marek claimed that Enriquez was using Marek’s confidential information to advance his business. Id. at *1. Marek sued Enriquez and JP Acoustics, claiming misappropriation of trade secrets, as well as breach of fiduciary duty, tortious interference with contract, and violation of the Computer Fraud and Abuse Act. Marek asked for an injunction to stop the defendants from doing business with any company that was a customer of Marek during the 12 months before Enriquez resigned. Id. at *2.

Marek claimed it spent years accumulating the customer information, and that it made diligent efforts to ensure the secrecy of its customer information, including restricted access to facilities, computer passwords, and disclosure to employees only on a “need to know” basis. Id. at *4.

The defendants responded that the customer information was readily available online or in the Yellow Pages. Id.

So was Marek entitled to a trade secrets injunction?

Let’s pause again to note that this is about as plain-vanilla a soft trade secrets case as you are going to find. You could have said to me “drywall manager leaves company, company files trade secrets suit,” and I could have guessed the essential facts (except maybe the name of the customer). So the outcome of the case may tell us something about how courts deal with typical customer list cases.

The federal district court judge said no, Marek was not entitled to an injunction.[1] First, the court said that the claims for breach of fiduciary duty and violation of the Computer Fraud and Abuse Act were based on conduct that occurred before termination of employment, any resulting damage was “readily quantifiable,” and therefore there was no threatened irreparable harm. Id. at *3. For the authoritative explanation of these concepts, see Injunction Junction, What’s Your Function?

Then the court turned to the claims of trade secrets misappropriation and tortious interference with contract. Illustrating Wolfe’s First Law, Marek claimed that its trade secrets were the customer information Enriquez emailed to himself.

But the court was not persuaded. It started by quoting the Trilogy Software case:

“[I]nformation that a firm compiles regarding its customers may enjoy trade secret status under Texas law.” Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 466 (Tex. App.—Austin 2004, pet. denied) (citations omitted). “But this does not mean that trade secret status automatically attaches to any information that a company acquires regarding its customers; if it did, it would amount to a de facto common law non-compete prohibition.” Id. at 467. “Before any information can be a trade secret, there must be a substantial element of secrecy.” Id. (citation omitted). Secrecy requires that the information “is not generally known or readily ascertainable by independent investigation.” Id. (citations and quotation marks omitted). “It is the burden of the party claiming secrecy status to prove secrecy.” Id. (citations omitted).

If this sounds familiar, it might be because I discussed this case in my post When is a Customer List a Trade Secret?

Marek failed to persuade the court that the customer information was not “readily ascertainable.” The court cited several things missing from Marek’s case:

  • Marek did not provide the court with the email attachments containing the alleged trade secrets.
  • Marek did not describe the nature of the “proprietary notes” or why they should be considered proprietary information.
  • Marek did not offer specific facts to support its allegation that it “spent years accumulating” the customer contact information.

Id. at *4.

Maybe Marek should have seen it coming. The same judge had denied a TRO two months earlier in Computer Sciences Corp. v. Tata Consultancy Servs. Ltd., No. 3:19-cv-970-L, 2019 WL 2058772, at *3-4 (N.D. Tex. May 9, 2019), finding there was no evidence the emailed confidential software source code was actually shared with software developers.

But let’s not be too quick to fault Marek’s counsel. The deficiencies in Marek’s evidence seem obvious, but maybe the email attachments were not that helpful to Marek’s case. Perhaps the proprietary notes were not that proprietary. Perchance there were no more specific facts to be offered. Or maybe there was just not enough time to get the evidence needed.

And even if Marek had proven the customer information was a trade secret, there was another big hole in Marek’s evidence: proof of some nexus between the use of the alleged trade secrets and loss of sales to customers. (Picture Marek saying “Causation!” the way Jerry Seinfeld says “Newman!”)

The court said Marek did not allege that Defendants outbid Marek for any particular job or otherwise took Muckleroy and Falls business from Marek. Rather, both parties were servicing Muckleroy and Falls “to neither’s detriment and without direct competition.” In the absence of evidence that the defendants were injuring Marek’s business relationship with the customer, the court said, it could not find that Marek was substantially likely to suffer an irreparable injury due to the defendants’ contact with the customer. Id. at *4.

Injunction denied.

Nevertheless, the story had a happy ending. The parties later signed this Agreed Injunction that barred Enriquez and JP Acoustics from initiating new business with a list of specified customers.

And the Marek case provides lessons for both employees and employers in trade secrets cases.

Employees:

  • DON’T form an LLC for your future competing business any sooner than you really need to.
  • DON’T send company documents to personal devices or email accounts, even for valid reasons.
  • DON’T take customer lists when you leave. Is it really that hard to find the customers? (If so, the list might actually be a trade secret.)
  • If you take a customer list, DO show that the information in it is readily ascertainable.
  • If you do something you shouldn’t have before leaving, DO argue that it can be compensated with damages, so no injunction is warranted.
  • DO watch my video Dumb Things Employees Do Before Leaving a Company for similar tips in convenient audiovisual form.

Employers:

  • DO offer the misappropriated confidential documents as evidence, under seal if necessary.
  • DO specifically explain why the customer information is valuable and not readily ascertainable.
  • DO try to offer evidence that the employee has actually used the confidential information to take specific customer business from you (I know, this is often easier said than done).
  • DON’T expect to get an injunction merely because an employee has taken confidential company documents.
  • DO watch my video Smart Things Companies Can Do to Protect Confidential Information.

Finally, whether you’re an employee or employer, do get advice from a lawyer as early as possible, preferably one with experience handling departing employee disputes. That might help you avoid the common mistakes above. In the words of another John Goodman character, “Donny you’re out of your element!”

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] To be precise, the court construed the motion for preliminary injunction as a motion for temporary restraining order, denied a TRO, and set a hearing on a preliminary injunction.

Is Writing a Big Paper Good Business Development for Lawyers?

Is Writing a Big Paper Good Business Development for Lawyers?

Typical Saturday at the Wolfe casa: I was bragging about an article I wrote on Texas Securities Act litigation. 10YO asks, “what’s that?” I said, “it’s just a kind of litigation, like when you invest money in a company and they steal the money.” “Oh, ok,” he said.

Whether you can explain a lawsuit in terms simple enough for a ten-year-old to understand is probably a good test for any lawyer (although my kid is savvier than most, thanks to his mom and big sister).

But the ability to simplify, by itself, won’t make you an expert on a legal topic. You also need to understand the nuances, the grey areas. And a good way to do that is to write a big paper on the subject. Maybe even a comprehensive paper. And maybe, if you’re really ambitious, the comprehensive paper.

That’s sort of what I tried to do with Texas Securities Act litigation. It started with a series of securities fraud cases my firm defended from around 2000-2005. When it was all over, I had accumulated a ton of research and briefing on case law applying the Texas Securities Act.

That coincided with a time in my career when I felt like I needed to start developing my own business (around eight years out of law school).

Up to that point my business development strategy had been somewhat, uh, thin. My earliest experience was with insurance coverage litigation, and I had written some articles for the Journal of Texas Insurance Law. But I wasn’t getting any traction.

This was partly my fault (I didn’t do much other than write the articles) and partly due to circumstances beyond my control (my firm didn’t get many insurance coverage matters). So I had pretty much given up on writing about insurance law.

But I knew if I was going to bring in business I needed to develop some kind of specialty beyond “business litigation,” and securities litigation seemed as good as any. Plus, I already had the knowledge and the material. I wouldn’t have to “reinvent the wheel.”

So I started writing the paper, one little chunk at a time. It literally took years for it to come together, but eventually I had a good long rough draft. Then the problem was figuring out what to do with it.

Fortunately, I got by with a little help from my friends. A more senior lawyer helped me get an opportunity to present the topic at a bar association event. That was just the push I needed to finally finish the paper. And then a peer at my law firm was willing to co-author the paper and fill in some sections that still needed work. The paper debuted at a CLE presentation in 2013. The response was small but enthusiastic.

I presented the topic at a few more CLE programs, and I updated the paper a couple times. You can download the most recent version here.

This big paper doesn’t cover every possible Texas Securities Act issue, but it at least touches on each major issue, and it explores some of the key issues in detail. In my humble opinion, I don’t think you will find a better paper on Texas Securities Act litigation that is both comprehensive and practical. I’m pretty proud of it.

Step 1 was complete. I was on my way to developing a thriving securities litigation practice. I would continue doing presentations and making a name for myself in the field. Other lawyers would start referring securities litigation cases to me, and I would eventually develop a robust book of business of my own.

Except none of that actually happened. I didn’t bring in a single securities litigation matter.

Then a funny thing happened. A friend I met at a presentation I gave for the Houston Bar Association needed help with a non-compete lawsuit. Around the same time I found myself trying to support a solo law practice. At first, I thought we’d settle the case, but it blew up and eventually went all the way to a jury trial. Along the way I got referrals for some other non-compete cases. Sometimes it was a lawsuit, but other times people just needed some advice. These matters started taking up more of my time.

That’s when it hit me. If I was going to develop business, I needed to turn down those pesky non-compete matters and keep my focus on securities litigation. It would be stupid to waste all that time I had spent writing and speaking about the Texas Securities Act. Right?

No! That was exactly wrong. The smart move was the opposite: focus on developing a reputation for the kind of work I was actually getting. This is the point business development expert Maria Granovsky made in a guest post right here on Five Minute Law. In Maria’s terms, the smart move for me was to stop looking for elusive copper deposits and to pick up the gold bricks at my feet.

But this time, I thought, I’m done spending hours and hours writing long legal papers that no one reads. Instead, I would focus on writing short articles that people might actually enjoy. Blog posts, to be specific. I would write about a wide variety of topics, but with an emphasis on the departing employee cases I was already working on. And I would try to keep the posts short enough that people could read them in, oh I don’t know, five minutes.

But what to call the blog?

books-with-folded-pages-2377295
There are some benefits to writing a big paper

Eventually I solved that problem, and now, five years after I started focusing on departing employee litigation, my business development efforts have had some modest success. I regularly receive inquiries for matters involving non-competes, trade secrets, and other departing employee issues. I still work on a variety of business litigation matters, but the departing employee disputes are my focus.

Then another funny thing happened. Recently a potential client saw that Texas Securities Act paper on the Internet and called me up. Keep in mind, this was over four years after I published the last version of the paper.

So maybe I was too quick to give up on the “big paper” concept. It obviously has some value.

Here are my main takeaways on lawyers writing big papers for business development:

  • Writing a big paper on a legal topic is a good way to become a true expert on that topic. The legal profession is remarkably democratic in the sense that just about any lawyer can become an expert on an area of law by putting in the time to read and understand the key cases. (Credit to the late Mark Kincaid, a top-notch insurance coverage litigator and adjunct professor, for impressing this point on me.)
  • The downside is that writing a big paper is very time-consuming. You can write a blog post, email alert, or short LinkedIn article in much less time, and people will be more likely to actually read it.
  • On the other hand, once you’ve written a big comprehensive paper, it’s easy to update or repurpose it. Take a lesson from law professors. Charles Alan Wright didn’t rewrite all of Federal Practice and Procedure every time. McCarthy on Trademarks is not above recycling old material.
  • Another lesson from law professors: you can get help from colleagues on a big paper. This can be a real win-win. You get to share credit with other lawyers, they can help lighten your load, and you can make new friends along the way.
  • The major pitfall with writing a big paper is thinking it’s going to develop business for you by itself. It rarely happens that way. You need to present the paper at events, network with people at the events, share the paper on social media, etc. At the risk of using a corporate buzzword, you need to create synergy between the big paper and your other business development efforts.
  • When you combine the big paper with networking, you’ll start to see another benefit of the big article: credibility. People who see that you have written a serious paper on a particular practice area will assume—usually correctly—that you know what you’re talking about.
  • The big paper can also enhance the credibility of your professional profile. If you’re going after corporate clients, especially big ones with in-house lawyers, they are probably not going to find you by Googling “securities lawyer.” But a client who is referred to you will look at your profile on LinkedIn or your firm’s website and see you wrote that article.
  • Individuals, and even corporate clients, will sometimes find you literally by Googling a practice area and seeing your article or name pop up. This is only going to become more common over time.

I can vouch for this last point from personal experience. If a potential client can see my big paper from four years ago and call me, the same can happen to you.

Now the big paper bug has bitten me again, in several ways:

First, I’ve already co-authored and updated a “medium” sized paper called Texas Trade Secrets 101. I plan to continue updating it.

Second, if you can keep a secret, I was already developing a monster paper on Texas non-compete litigation. I regularly monitor Texas non-compete cases and write about non-compete issues on my blog. I figure I might as well use that material for a big, comprehensive paper, especially if I want to be known as the top non-compete lawyer in Houston.

Third, even though securities litigation is not my focus these days, it’s still an arrow in my quiver, and I’m thinking I should update that big paper on Texas Securities Act litigation.

But that’s a lot of work, especially when I’m already blogging, composing the magnum opus on Texas non-compete litigation, and training for the 2022 Crossfit Open. I don’t want to work myself to death like a scene out of Amadeus. If I’m going to update the securities paper, I need a collaborator.

Unfortunately, my ten-year-old is not interested. So if you want to research and write about Texas securities law, hit me up. And maybe four years from now the clients will be calling you.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His son’s comment on this post was “I like the part about me.” 

He’s joking about training for the 2022 Crossfit Open. Sort of. These are his opinions, not the opinions of his firm or clients. Every case is different, so don’t rely on this post (or the big paper) as legal advice for your case.