2006-2007
Solo and Small Firm
Section Council

Chairperson
William E. Booth III
803-343-2895
boothlaw@bellsouth.net

Chairperson-Elect
Aaron J. Kozloski
803-748-1320
aaron@capitolcounsel.us

Section Delegate
Jane H. Downey
803-929-0030
jdowney@downeylaw.com

Council Members

Dennis Gerald
803-254-6961
dennisgerald@geraldlawfirm.com
(Expires 2007)

William Nettles
803-779-9966
billn@billnettles.com
(Expires 2007)

James E. Smith Jr.
803-933-9800
jes@seslaw.com
(Expires 2007)

Däna Wilkinson
864-577-0603
danawilkinson@charter.net
(Expires 2007)

2007 Solo & Small Firm Section Conference scheduled for June 22

This conference is only one day in length, but it will offer a variety of in-depth advice, skills and practical knowledge to those who attend. This year’s featured speaker, Gary W. Richards, has created and run successful CLE programs and law firm seminars throughout the country. His five-hour interactive workshop offers guidance not only on increasing profitability and satisfaction in your law career but also on maintaining a productive work-life balance. Addressing topics ranging from client and case work planning to communication and time management, Richards’ course presents valuable lessons for both practicing lawyers and their support staff.

Following Richards will be presentations from the Hon. Justice Costa Pleicones and Barbara Seymour of the Office of Disciplinary Counsel. Justice Pleicones will offer trial and appellate practice tips, while Seymour will cover recent developments in orders and violations of Rules of Professional Conduct. All participants will receive a copy of The Curmudgeon’s Guide to Practicing Law by Mark Herrmann, full of wisdom and insight as well as pointed humor regarding the legal profession.

The program qualifies for 7.0 MCLE credit hours, including up to 1.0 LEPR credit hour. Only 80 spots are available due to the interactive nature of the program, so sign up today!

Back to top

A Client Walks in With a New Invention and Says …
By Calhoun "Reb" Thomas III

Assume that you are not a registered patent attorney—probably a safe assumption for most folks reading this article. You are working with a client on some matter, and out of the blue, the client tells you that he has come up with a killer new invention that is unlike anything you have ever seen. As you now expect, the next thing he says is he has no idea how he is going to protect this invention, and he wants your advice. You could dismiss his inquiry by telling him to contact a registered patent attorney, but you want to offer a few more thoughts to reassure him that you care about his latest “baby.”

You probably want to start off by emphasizing the need to keep the invention confidential and not disclose it to others without a confidentiality agreement in effect. This is important for at least two reasons. After consulting a patent attorney, he may learn that patent protection may not be available for the invention and that the best option is trade secret protection. Another significant reason to avoid public disclosure is the negative effect it would have on the possibility of seeking patent protection in other countries. Unlike the United States, most other countries disallow patent protection if the invention was publicly disclosed prior to the filing date for the patent application.

Next, depending in part on his general level of sophistication and experience, you might encourage your client to do a little bit of reading about the U.S. patent system. A good starting point is to make sure he knows about the Web site for the U.S. Patent and Trademark Office (www.USPTO.gov) and its public resources. A relationship with a patent attorney usually is more productive if the client has made some effort to better understand the complex issues involved in filing and prosecuting a patent application.

However, if it has been much more than a couple of weeks since he created the invention, you should encourage him not to delay in contacting patent counsel. There are several statutory time bars that could ultimately preclude patent protection if he does not move quickly enough to file an application. Often clients will not be barred under U.S. patent law if they are the first to invent and they file an appropriate application within a year of inventing. Given the possibility of uncertainty regarding when conception and reduction to practice of the invention occurred, and given the probability that it will take the client and/or his future patent attorney a period of time to prepare an application, you should encourage him to act promptly and diligently if he wants patent protection.

Clients should also be encouraged to assemble and keep good records of their activities in creating their inventions. Although there is currently a debate in Congress about changing this aspect of U.S. law, we still are governed by a “first to invent” standard. This means that on occasion, the difference between one side and another receiving a patent may come down to analysis of which side has the records that can prove the earliest date of invention, even if it is just by a matter of days. Also, you do not want to discourage the client from having drawings done (under an appropriate confidentiality agreement), but you may want to suggest that he contact patent counsel to coordinate this process. Many inventors engage technical draftspersons to do precise, detailed drawings, thinking they are saving time and money by having these prepared in anticipation of filing them as part of the patent application. They sometimes are surprised that patent counsel may want a specialized patent draftsperson to “redo” the drawings in a manner that better comports with accepted practices at the Patent Office. Technical or engineering drawings may be appropriate as an inventor heads into the manufacturing process, but often they are too detailed and too precise for use as part of a patent application.

Assuming that you have a continuing relationship with the client, you may want to offer to contact his chosen patent counsel to discuss possible divisions of labor. It is usually not helpful for you to insist on being involved at each meeting and other step in the process, but typically there are ways you can help your client. For example, you may be prepared to help your client set up a new entity if he decides that is the way he will proceed in the commercialization of his newly invented product or process. Patent counsel may also be prepared to help with entity issues, but may welcome a division of labor that allows them to focus on the patent prosecution.

Reb Thomas is an intellectual property lawyer at The Thomas Law Firm, a small practice located in Columbia, SC. The firm covers all areas of IP law including patents, trademarks, copyrights, and trade secrets as well as other related areas such as licensing, cyberspace, and media law.  The firm’s website is www.thomasfirm.com.

Back to top

Techno-Savvy: Using the Web to Market and Run Your Practice
By Sheryl Sisk Schelin

It’s amazing, isn’t it? Think back 15 years ago—if, like me, your memories of that time include you in grown-up clothes and not playing in a sandbox. Are there any computers in that image? If so, how were they used? Word processing, right? Maybe some research? Possibly some bookkeeping, if you were really advanced and techno-savvy?

And now, look at the brave new Web 2.0 world we’re in. This is how far we’ve come in just a few short years: although I graduated in 1996, I would never have contemplated launching a solo practice five years ago. Why not—or rather, why now? Because of the Web. Its reach, its breadth and depth of offerings, and its crucial role in marketing the solo and small firm practice were, by themselves, the deciding factors that gave me the comfort level necessary to take that crucial first step.

Look at my typical day as an example. I make the long, grueling commute to my office (15 steps, kitchen to enclosed back porch). I fire up my Mac and my Windows laptop (yes, I use both). After browsing Bloglines for legal and financial news relevant to my bankruptcy and employment law practice, I check e-mail. I have five accounts—one for personal use, one related to my Web site domain, one on Gmail for listserv traffic and another Gmail address for Web-based marketing efforts. The fifth Gmail address is actually my fax inbox through MyFax.com. After checking all five, I do my daily blogging—using ScribeFire, a plug-in for my Web browser of choice (Firefox), I post short two- to three-paragraph articles on each of my two practice blogs, the S.C. Bankruptcy & Consumer Blog and the S.C. Employment Law Blog. Later in the day, I might check the S.C. Bar’s E-Blast, delivered to the listserv Gmail address, and make notes to send handwritten cards to attorneys who’ve launched practices or made partner—hey, some things still need the old-school analog touch! I research a pending bankruptcy venue question using Casemaker® or Lexis. I dash off an e-mail to the client with the results of my research. I track my time with iBiz on the Mac. I balance my books using QuickBooks and then refresh my Craigslist.com and Google Base postings. I use NeoOffice on my Mac, an open source office suite, to catch up on my correspondence. Using Parallels and BestCase, I tackle a new client’s petition and schedules. I might check the e-mail inboxes one more time before calling it a day and find a couple of people have responded to the Craigslist posting requesting copies of some marketing articles I wrote about bankruptcy in South Carolina. I pull up my template cover e-mail and send it off to the people who asked, along with the attached articles and a bonus article about negotiating down debt payments with creditors. I make a note on my Mac’s iCal program to follow up with these folks in a week and see if they have any questions.

Did any of that make any sense to you? Congratulations—you’re part of the Web 2.0 generation! This will be cake for you. And if it didn’t make sense—not one word—don’t sweat it! It will, I promise. In each issue, I’ll write about a different aspect of using the Web, Web-based programs and traditional software and hardware to market and run your solo or small law firm practice. Whether you use Mac or Windows (or Linux, for you open-source stars!), there will be something here for you that you can take away and try in your own practice.
Next time: Blogs!

Sheryl Sisk Schelin is a solo consumer bankruptcy and employment lawyer in North Myrtle Beach, SC. In her other life, she crusades as the Inspired Solo, blogging at http://inspiredsolo.wordpress.com, spreading the word about using technology and personal development concepts to make the most out of any solo or small firm practice. She also writes professionally under the name Sheryl Sisk for 451Press.net and is working on a book about “going solo.” 

Back to top

Five Ways to Protect Your Non-Filing Spouse in a Bankruptcy
By Jane Downey

1. Pay attention to the chapter

Under the new laws, all domestic obligations go unaffected in a Chapter 7. This means all domestic obligations, no matter how worded, survive bankruptcy, period. In a Chapter 13, in a nutshell, debts for alimony, maintenance and support survive and must be paid in full over the life of the plan. Other debts (like property settlements) get paid the same percentage as unsecured creditors. This means in a Chapter 7 case, the non-filing spouse can pursue collection of a credit card debt (consider pursuing it from earnings earned after the bankruptcy to avoid a stay violation), but in a Chapter 13 case, if the plan pays one percent to unsecured creditors, the non-filing spouse gets paid one percent of the credit card debt unless the obligation to pay the credit card debt is written in the divorce decree as an obligation for alimony, maintenance or support.

2. File a claim

To be paid in an asset 7 case or a Chapter 13 case, the non-filing spouse must file a claim with the clerk of court. In a no asset chapter 7 case, the court will not ask creditors to file claims. No asset cases usually last only four to six months. This means either the creditor can go after postpetition earnings during the bankruptcy or can wait until the debtor’s discharge and go after all available assets.

3. Monitor whether support stays current

In a Chapter 13 case, the court can dismiss the case if the debtor falls behind on his alimony or support obligation. Further, the case cannot get confirmed unless postpetition support is current as of the confirmation date. Let the trustee know if the debtor gets in arrears. Another option is to file a motion to dismiss the case.

4. Request copies of tax returns

Creditors are entitled to obtain copies of tax returns of the debtor. Failure of the debtor to provide copies can result in the dismissal of the bankruptcy case. Thus, if you have trouble getting the returns in family court or if you want to compare them to the schedules and to the financial declaration since all three are signed under penalty of perjury, you might consider requesting a copy. Just don’t release them to the media!

5. Read 362(b)

The automatic stay does not apply to many domestic proceedings. For example, actions to finalize the divorce, set child support or establish child custody or visitation are not stayed by the bankruptcy. Division of nonexempt property often is stayed. The code itemizes actions that are not stayed in 11 U.S.C. §362(b). If you are looking at the code online, be sure you have a current copy. Many sites still publish the code as it existed prior to the changes that took place in 2005.

Jane Downey, a solo practitioner, has a boutique bankruptcy firm in Columbia, SC.  She is a certified specialist in bankruptcy and debtor/creditor law, and is also certified in mediation and arbitration. Her website is www.downeylaw.com.

Back to top

Using Adobe Acrobat
By Kevin M. Elwell

Nearly everyone has downloaded and used Adobe Acrobat Reader, a free program available from any number of sources. Regular use of Acrobat Reader is necessary due to the proliferation of portable digital format (or pdf) files in law practice today. Acrobat Reader enables users to view pdf documents, but it allows only limited editing or manipulation of files. This is where Adobe Acrobat comes in. There are multiple versions of Acrobat, each with a different menu of features. Acrobat Professional 8 includes two features of particular interest to the small-firm practitioner: Bates stamping and optical character recognition (OCR). Utilization of these two features can dramatically improve workflow and save you a lot of trouble. Some practical tips for use of Acrobat’s Bates and OCR functions follow.

Bates stamping in Acrobat. Acrobat 7 did not include a Bates stamping feature, but one was available as a third-party plug-in (StampPDF was one of these). The plug-in worked by overlaying a stamp onto an existing pdf. Once affixed, stamps could not be removed or edited. This made it necessary to maintain two versions of, e.g., a set of documents produced in discovery, one stamped and one unstamped. Better than hand-inking pages with an old-fashioned Bates stamping device, but still not terribly convenient. Adobe has eliminated the need for third-party Bates plug-ins in Acrobat 8, integrating the function into the application’s document processing menu. Even better, stamps in Acrobat 8 are editable and can be removed, eliminating the need to maintain two sets of documents.

Access the function in Acrobat under Advanced/Document Processing/Bates Numbering from the application’s toolbar. You are prompted to add or remove stamps; if you need to affix stamps to a document, select “Add,” obviously. You will be prompted to choose a document to stamp, and once that is done, you will see a screen with formatting information for your stamp. Acrobat allows stamps to be affixed to the top or bottom of a document and positioned to the left, center or right side of the page. Simply select the block that corresponds to the location where you wish to affix the stamp, and enter any text that you want to precede the Bates number. This is completely customizable, so you can have a stamp that reads “Grady Hospital Medical Records,” “plaintiff’s document production” or anything else.

To add the Bates stamp itself, simply click on the “Insert Bates number” button. You will be presented with a screen with several options on it related to numbering. Note that the minimum number of digits for a Bates number in Acrobat is six. Note also that this value is not editable in the initial formatting screen (if six digits are too many for your taste, don’t despair, and keep reading). After making your formatting selections, you will see that a code has been added to your previously-input text in whatever location box you chose earlier. If you want to give your Bates number more or fewer than six digits, note that the code in the location box is editable. The numeral “6” appearing between the two number signs (#) can be highlighted, and the value changed.

OCRing in Acrobat. Running the OCR function on a pdf makes the document searchable, a feature that is invaluable when you’re, say, sitting in a deposition and cannot put your hands on a document, but you know a word that appears in the document. Normally, pdfs are comprised of what may be simplistically referred to as pictures of text. Using the OCR function causes Acrobat to ‘read’ the picture, identifying individual letters, and then overlays a ‘film’ of text over the original pdf file. You will find that converting pdfs to text can dramatically reduce file size, too, which is a bonus. There are a few things to keep in mind when OCRing pdfs. First, the OCR function utilizes a lot of your computer’s system resources, and so it is best, if you’re scanning a pdf with many pages, to stop other applications or processes that are also heavy consumers of system resources (such as Outlook). Doing so, especially with very large files, can avoid a system “not responding” message and makes the OCR scan go more quickly. Also, it is important to OCR your documents before you affix Bates stamps, because stamps are a form of data that Acrobat considers “renderable text,” and the application will not OCR a page in the presence of renderable text.

Acrobat contains a number of other features of interest to attorneys, including functions for securing and redacting documents. While the full version of Acrobat can cost $600 or more, the savings realized in terms of time and increased productivity are well worth the expense.

Kevin M. Elwell is a Greenville solo practitioner, whose practice focuses on Internet/computer law, product liability defense, construction and commercial litigation. He can be contacted at kmelwell@kmelwell.com or through the Internet at www.kmelwell.com.

Back to top

Newsletter articles

If you are interested in submitting an article for the next section newsletter, please forward to Courtney Kennaday at ckennaday@scbar.org.