Micro-niche practices can be rewarding for the lawyers who start them

While being the go-to lawyer in a narrow legal field is a good way to bring in clients, it’s not a fast or easy way to develop a practice.

Lawyers in Minnesota who have developed little nooks of practice, either through happenstance or because of their experience outside of the law, say the learning curve can be steep, the first case can be really difficult, and the cash flow can be dicey.  Other than that, it’s an excellent way to practice law.

And in this brutally competitive legal market, it might be the only way to practice law. Lawyers who want to succeed can’t afford not to develop a niche, said Minneapolis attorney Fred Pritzker. “There’s an old baseball saying, ‘Hit ‘em where they ain’t.’  There are a gazillion lawyers waiting for cases to drop into their mouths.”

Here’s what it takes to develop a niche, according to Pritzker:  Do your homework and research the field; be proactive about getting into the field; determine what your skill set and interests are; and identify a need that’s not being met.

 Trucking

Inver Grove Heights attorney Peter Kestner was a claims adjuster for Northland Insurance Company, one of the biggest trucking insurers in the country, before law school.  He learned the federal regulations governing trucking inside and out, which allowed him to develop a practice in trucking law.  He told Minnesota Lawyer that the trucking regulations are so complex and far-reaching that attorneys who take the cases are exposing themselves to liability.

“There are a lot of pitfalls that you don’t have in an auto accident,” Kestner said.  The key to the case is making the causal link between the violation of the regulations and the accident, he added.

The field has been rewarding for Kestner and attorney Greg McEwen, whose firm is associated with Kestner’s. So much so that McEwen is handling fewer of the propane explosion cases that were his previous niche.  “We hope we have made the propane industry safer and we’d like to do the same in trucking,” McEwen said.

But narrow niche practices carry some downsides, McEwen said.

“One of the hallmarks of a niche practice is because you are narrowly defined [by subject], you can’t be defined by geography.  I get many calls from lawyers who have a more traditional personal injury practice, primarily auto, who want to get into products liability.  I tell them, you’ve got to be prepared to be away from home a third of the year and you need to have a friendly banker because you’re going to need a lot more money [for expenses] than in your traditional work.”

 Food-borne illness

Attorney Fred Pritzker’s first food-borne illness case came as a referral. It was an interesting and significant case involving poisoning from listeria, a bacteria most often found in processed meat such as hot dogs or lunch meat.

“It was cutting-edge stuff; there had never been a listeria outbreak,” Pritzker said. As his interest and expertise in pathogen cases grew, the outbreaks of contaminated food continued to make the news, such as the recent salmonella outbreak allegedly cause by eggs from Iowa.

As time went by, food illness outbreaks continued as the lawyers developed a better understanding of the law. There are essentially two legal routes to take – one is the state and federal regulations that govern food safety.  The other is the safety procedures that a company adopts, and may have breached. Then the question becomes whether the companies failed to comply with their own food safety procedures.

The bigger picture is a matter of proof, Pritzker said. The cases range into the fields of medicine, microbiology, epidemiology, sanitation, food safety and agriculture.  That then leads to Daubert-type issues of the reliability of scientific evidence.

“It requires awareness and knowledge and working with experts,” Pritzker said.  “We’ve been educating ourselves about this area of law for 15 to 20 years.”

Pritkzer gets most of his business from his website. He said there are only a few firms in the country dedicating a large portion of their practice to food-borne illness.

 False claims

There are a lot of reasons not to develop a practice pursuing Federal False Claims Act case.  There aren’t that many of them, they take a long time to mature and they have a large learning curve. But they bring the deep satisfaction of doing justice and helping a client out of dire straits.

That’s the viewpoint of Appleton attorney Brian Wojtalewicz, who has made the Federal False Claims Act his niche.  Sometimes known as a qui tam or a private attorney general action, it allows a private citizen to bring a federal action on behalf of the government, and get paid for doing so. Military contracting and health-care billing are the biggest sources of qui tam actions.

It started for Wojtalewicz when a client walked into his office who had been fired for blowing the whistle on Medicaid billing fraud.  In addition to the usual employment remedies, Wojtalewicz discovered the false claims act, which was new to him although it has been part of the law since Abraham Lincoln was president.

That case went as far as a petition for certiorari to the U.S. Supreme Court, and Wojtalewicz was sold. He likes working with the whistle-blowing clients who are committed to doing the right thing even though it can wreck their careers. With the clients as vulnerable as they are, it requires a different type of strategic thinking than other types of litigation, he said.

A qui tam case blends well with other practices but isn’t the type of case a lawyer should depend on to support him right out of law school or convince a banker to lend him money.  The key to a law practice is cash flow and that’s not what qui tam is about, Wojtalewicz said.

 

 Minnesota Lawyer – October 22, 2010 – By Barbara L. Jones