Carving Out Your Niche: By capitalizing on personal interests — from animals to zinfandel wine — any lawyer can grow a specialty practice

Carving Out Your Niche: By capitalizing on personal interests —from animals to zinfandelwine —any lawyer can grow a specialty practiceAuthor(s): JILL SCHACHNER CHANENSource: ABA Journal, Vol. 83, No. 5 (MAY 1997), pp. 48-52, 54Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839557 .

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48 ABA JOURNAL / MAY 1997



BY JILL SCHACHNER CHANEN

At 370 pounds and fighting to get his health insurer to ap prove a controversial but des

perately needed gastric by pass, Walter Lindstrom Jr. stumbled into a new type of

law practice for himself. "I was actually denied coverage

for the operation while this same in surer was paying $40,000 for fertili ty treatments related to my obesity," says a still astonished Lindstrom.

But a year later, Lindstrom changed jobs and found himself with a new and more agreeable in surer. As he recovered from the surgery?and eventually slimmed down to 200 pounds?he began to wonder whether hiring a lawyer would have shortened or even cir cumvented the insurance appeal process. No one, however, seemed to be in the business of advising pa tients like him.

Suddenly Lindstrom had a mis sion: to ensure that no obese person

would be denied health care be cause of lack of counsel.

Last year, Lindstrom started the Obesity Law and Advocacy Center in San Diego to serve the legal needs of clinically and severe ly obese people in insurance cover age disputes, employment and labor law cases, and civil litigation.

In doing so, he joined a select group of lawyers establishing niche law practices?those slivers of law that lie undiscovered or ignored as practice areas, either by the profes sion as a whole or in a region of the country.

Frequently the motivation for entering a niche is a personal cause, a life-changing experience or a pas sionate avocation. But there are also compelling economic incentives.

In a nation with about 900,000 lawyers, even specialties are com

petitive: Martindale-Hubbell Law Directory lists more than 5,500 patent lawyers, for example, and more than 33,000 family law prac titioners. In the amorphous litiga tion category, the American Trial Lawyers Association claims 55,000 plaintiffs personal-injury lawyers, and American Bar Association membership includes an estimated 64,000 litigators?enrollments that

only hint at the total number of lit igators.

"Litigators," says law firm consultant Jay Jaffe of Jaffe Asso ciates in Washington, D.C., "are a

dime a dozen. But when you can say you are a litigator specializing in construction accidents relating to asbestos removal, then people are going to know why to hire you."

Cheryl Heisler, founder of Chi cago-based Lawternatives, a career

counseling service, notes that law yers who delve into niches can be on the cutting edge of trends in the law. She cites geriatric and elder law, now a staple of many large firms, as a niche that most would not touch a decade ago.

Other niches may remain com fortably small. "Financially, what

may not be lucrative for a big firm may be very successful for a small shop," Heisler says. "Just because the big guys don't see it as the way to go does not mean it should be ruled out."

When it comes to carving out a

practice, this "niche"-size sampling of lawyers shows what can be done.

Richard Mendelson

Practice ?he Wine law

Mie clients Wineries or vineyards facing contract, environmental, regulatory or land-use issues

Potential client base The 1,820 wineries identified by the Bureau of Alcohol, Tobacco and Firearms

Richard Mendelson anguished over

leaving his job as an export as sistant for a vintner in Burgundy,

France, when he moved back to the United States in 1979 to attend Stanford Law School.

Then 26, Mendelson believed that leaving the French wine capi tal for the San Francisco Bay area

at a time when the U.S. wine indus try was still in its infancy would

mean severing ties with an industry and product he had grown to love.

But working as a commercial litigator in San Francisco after law school, Mendelson pressed his wine industry contacts to refer him for legal work.

Slowly, his wine law practice grew.

When the Napa, Calif, firm of Dickenson, Peatman & Fogarty beckoned, Mendelson realized he had the opportunity to combine his passion and his work full time. "At first I resisted coming to Napa be cause I always wanted an interna

tional practice. I thought that I needed to work in a big city," he says. "But Napa is the calling card in the world of wine."

Trying to define the field of wine law is almost as elusive as

finding two people to agree on what makes a perfect Chardonnay. Men delson counts only 20 or so other full-time lawyers in the field na

tionally and says each person's practice is different.

His includes land-use law to help prospective vintners set up un der local zoning regulations; a regu latory component to wade through the morass of federal, state and local controls over making, bottling and selling wine; and an intellectual property practice to protect clients' brand names and appellations.

"If you want to establish a win ery from the get-go, I am your law yer," says the former president of the Paris-based International Wine Law Association. Yet clients in

clude big name vintners such as Robert Mondavi and Berringer as well as third-, fourth- and fifth generation farmers.

Being a oenophile helps his practice, Mendelson says, but he still must be knowledgeable of the complex and antiquated fed eral, state and local laws gov erning the industry. Many of the laws, he says, still contain vestiges of Prohibition.

Though he never fore saw having a niche, Mendel

son now cannot imagine a better type of practice for himself. To oth ers seeking a niche practice, he ad vises starting with a passion. "You have to love the subject matter of the niche," he says. "I started out loving wine. I like the people, the food, the ambiance. Even after 20 years I still feel this way."

Jill Schachner Chanen, a law yer, writes regularly for the ABA Journal.

ABAJ/MARK RICHARDS ABA JOURNAL / MAY 1997 49



Steven Wise

Practice niche Animal interests

Possible clients Pet owners and social activists

Potential client base 33.9 million American households owning dogs and 28.3 million owning cats, according to the American Animal Hospital Association in Denver

Boston lawyer Steven Wise thinks there will be a day when animals will be able to sue human beings

for battery or even wrongful impris onment. And when they can, Wise will be there to represent them.

An animal rights lawyer in the nascent field, Wise has devoted 19 years of his practice to his cause.

"My practice stems from the fact that there is no reason why funda

mental legal rights should be limit ed to human beings," he says. "There are many other species of animals that should be entitled to fundamental rights. Those that should not should at the very least be accorded more respect."

Though Wise admits he has no

bright-line test as to how courts should determine which rights should be recognized for which ani

mals, he says all should be guaran teed the rights of bodily integrity and bodily liberty.

Because courts do not recognize such rights, Wise devotes one-third of his practice to writing, speaking and taking a few test cases to gain acceptance for his ideas among legal scholars. He recently sued the U.S. Patent and Trademark Office to en

join the agency from issuing patents on genetically engineered animals. The courts ruled that he had no

standing to bring the suit, a com mon outcome.

As is the case with many law yers developing niche practices, Wise has no body of law to guide him. He uses criminal defense the

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ories, zoning laws and even securi ties regulations to push for animal rights.

He succeeded in broadening public access to animal care commit tees in state universities by bring ing suit under state open-meeting acts. Wise also represented a group of animal rights activists in a novel shareholders derivative suit against a company accused of testing prod ucts on animals, but lost the case.

Wise says he never thought about starting such a law practice until he read Australian philosopher Peter Singer's book Animal Libera tion 19 years ago. The book, he says, sparked something within him far

beyond his ordinary love of animals. Wise found himself drawn to the cause. "I realized that there was

something I could do, and there were no lawyers operating in the field."

Developing the practice was

difficult, Wise admits. He had a small plaintiffs personal-injury and criminal defense practice when he decided to begin his animal

rights work. He began by taking any case involving animals that came his way, including condemned

dog actions and veterinary mal practice suits. Wise spent seven

years building a completely animal related practice.

Cases involving injured ani mals, aggrieved pet owners and vi cious dogs remain the bread and butter of his practice. He displays as much zeal defending a con demned dog as he does pushing his animal rights cause.

Under Massachusetts law, for

example, a dog can be banished and killed if its disposition makes it a nuisance. Instead of proving the

dog is not a nuisance, Wise argues that the law is unconstitutional be cause there are less severe ways to abate the problem than destroying the animal.

"I have done about 150 of these cases in the last 15 years," he says. "In a case where we were retained all the way, we have never had a

dog executed."

50 ABA JOURNAL / MAY 1997 ABAJ PHOTO TAKEN AT PET COMPANIONS, SOMMERVILLE, MASS., BY CHRIS FITZGERALD



Karl Washington Practice niche Music law

Possible clients Singers and musicians

The 256,000 people the U.S. Bureau of Labor Statistics identified in 1994 as working musicians, plus an always growing number of hopefuls

While visiting the nightclubs of

Atlanta, Karl Marcellus Wash

ington often dreamed of shar

ing the stage with some of the great rhythm and blues acts he saw there. But two years as an undergraduate voice major convinced him that his talents would be put to better use in the business end of the recording industry.

He whetted his taste for the

industry with a music degree from Belmont College in Nashville, Tenn., and internships with MCA Records and Motown Records. Next he took a

job as a concert promoter in Nash ville, helping organize and stage con certs for such then-unknown acts as

REM, Smashing Pumpkins and Run DMC. Along the way, he learned that many music industry execu tives are lawyers, and his role in the business became clear: He wanted to be a lawyer for recording artists.

Six years after finishing law

school, his dream is reality. Wash

ington counts 14 major-label artists as clients, most of them rap or

gospel artists. His hits list includes

platinum-record-selling rapper Da

Brat, rap/rhythm and blues group Ghostown DJs, and the Mississippi Mass Choir gospel group.

Locale is what makes Wash

ington's practice a niche. In enter tainment centers such as New York

City, Los Angeles and Nashville, large firms consider entertainment law a practice section. Atlanta, though, is "off the beaten path when it comes to entertainment lawyers," says Washington, who in March

formed The Washington Law Firm in nearby East Point, Ga.

Washington picked up his first music client as a referral while he worked at an Atlanta

personal injury firm. Today, re ferrals from clients, managers, agents and other music execu tives add to his new client ros ter. He also travels several times a month to music show cases where he meets unsigned recording artists and musicians.

"I go to places like Ala

bama, Florida and Tennessee?

places where other entertain ment attorneys might not think

to venture?to look for new

acts," he says. "If someone

says I should check out a band in Akron, Ohio, I go."

Trying to choose clients who have po tential for suc

cess that will generate more legal work is virtual

ly impossible. But Washington tries

to improve his chances for

representing a chart-top per by taking on only mu sicians who have devel

oped their own particular styles. "It is intuitive," he says. "If you know and un derstand the record busi ness, you know talent."

For unsigned artists, Washington uses his con tacts to try to obtain re

cording contracts. But the most desirable client comes to him with a deal in hand, needing counsel to negoti ate the contract.

Music contracts have a long and notorious histo

ry?nearly every provision of every standard contract has been litigated, and new ones often are tested in court. "The first 10 pages of these contracts tell the artists how much money they are going to get, and the next 20 pages say how the [record company] is

going to take it all back," Washington jokes. Gospel choirs?"You're talking about spirituality and go ing on good faith," he notes

?especially need counsel. Learning the business

side of the industry is an

evolving process, he says. On top of intellectual property and licensing issues, entertainment lawyers must understand finance and accounting methods. Washington keeps up by attending law seminars and read

ing books about the business. While Washington's music in

dustry experience has played an undeniable role in building his

practice, serendipity also helped. Shortly after he got his law degree, a startup record company located in Atlanta. No one in the industry imagined the impact that La Face Records would come to have. The

company's reputation has drawn in

dustry players to the city. And the

city's newly thriving music industry has drawn clients to Washington.

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ABAJAAMI CHAPPELL ABA JOURNAL / MAY 1997 51



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Julie Fershtman Practice niche Equine law

Possible clients Horse or stable owners dealing with contract or liability issues

Potential client toe Almost 2 million horse owners nationally, according to the American Horse Council

Five years ago, when her Detroit law firm asked its associates to consider niches they could devel

op to attract new clients, Julie Fershtman naturally gravitated to equine law.

An equestrian since her youth, Fershtman, then six years out of

law school, knew horse owners faced

a unique set of legal problems.

Having become a horse owner again after

getting her law degree, she also was aware of a

nationwide movement to limit the liability of horse

and stable owners to try to resuscitate the failing recre

ational equestrian industry. Her colleagues quickly tried

to disabuse Fershtman of her no tions of choosing such a niche. De troit, they told her, has never been known for rolling hills and horse farms where a likely clientele might be found. Some even suggested that she con sider moving to Kentucky or

Virginia, where equine law is a staple of most large law firms.

"Law schools do not teach equine law," she says. "In suburban Detroit

there were no law firms or attorneys who could give me the concentration of work I wanted or mentor me."

Still, Fershtman persisted in developing her niche. In 1992 she began spending her free time re

searching the laws that govern horse-related disputes, contracts

and liability. She learned that current textbooks were nonexistent. What Fershtman could learn was extrapolated from decisions and books on

sporting and recreational liability.

Encouraged by her own craftiness, Fersht man then took the bold step of listing herself as an equine lawyer in a newsletter that listed other attorneys in the practice. Then, comfort ably prepped, she sat back and waited.

The wait turned out to be short. A few months after publication of the newsletter, an insurance

company noticed Fersht man's listing and hired her in a case in which a horse had bitten a wom an on the breast.

"The insurance com

pany felt adamant that a

horse-knowledgeable law yer should take the case,

Fershtman explains. Armed with her first equine

case and the knowledge that her new practice would be geographi cally undesirable for the firm she was with, Fershtman set up her own shop in 1993 in suburban Franklin, Mich. "Once I had that one case behind me, I had standing to say I had experience."

She then began an intensive marketing and educational cam

paign, including speaking engage ments and travel to trade conven tions, to make other insurers and

members of the horse industry aware of her practice.

Although she now has a thriv ing equine law practice, Fershtman has not relaxed her marketing ef forts. Each month she writes a by lined article for publication in 40 horse-industry magazines. And last year she wrote and self-published Equine Law & Horse Sense, a book on horse-related liability.

The knowledge and passion that Fershtman brings to her work have helped her attract a national clientele of insurance companies, horse owners and stable owners. Yet she readily admits that mar

keting has played a large role in building her practice. "It has been quite an effort to get my name out there," she says.

52 ABA JOURNAL / MAY 1997 ABAJ/RUSS MARSHALL



Wolter l?ndstram Jn Practice niche Very obese people

Possible clients Anyone denied insurance coverage or discriminated against on the basis of weight

Potential client An estimated 3 million to 5 million severely obese individuals in the United States

Armed with a cause but still feeling cautious about the risks inher

ent in shifting his ca reer path, Walter Lind strom began carving out his niche slowly.

He stayed with the firm where he practiced insurance law but also began writing appeal let

ters for acquain tances who had been denied cov erage for obesity related surgeries. As his string of victories and the

number of clients willing to pay for his

services grew, Lindstrom realized that he had unwit

tingly started into a new and

untapped area of law practice. Lindstrom says he knows of no

other lawyers with full-time prac tices devoted to representing the

millions of clinically obese people in the United States.

Given his background in in surance law, the transition into a largely insurance-based obesity practice was easy. Proving it would be viable, however, was not.

"This is not the kind of thing that lends itself to firm involve

ment. It is not the biggest money maker because you cannot bill on an hourly basis" due to the limited funds of many clients, he says.

One year after going solo, Lindstrom's business at the Obesity Law and Advocacy Center in San Diego is booming. He has attracted clients from 10 states for denial-of coverage cases and recently hired an of counsel to assist in civil litiga

tion. He also has become a lob

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byist, working with state and national legislators and with insurance companies to end discrimination against obese people.

Later this year, Lindstrom anticipates bringing a poten tially precedent-setting law suit against a major California insurer for its refusal to cover obesity-related surgeries such as gastric bypass. The suit will be based on disability exclu sions contained in the Ameri cans with Disabilities Act.

His biggest challenge re mains educating fellow law yers, doctors and members of the insurance industry about his practice.

"We are dealing with a segment of the population that does not know that an advoca cy arm exists for them. I want to be the voice for them," Lind strom says, "because I know how we all feel when we are stared at and ridiculed behind our backs?and to our faces.

The more people know about the practice, the better because it means access. It is not, how ever, a moneymaker."

The thought of other law yers joining in this practice area does not frighten Lind strom. Rather, it brightens him. "I would love to have 10 or 100 other lawyers doing this because that means we are get

ting access to health care for the obese."

ABAJ/DWIGHT VALLELY



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Carving Out Your Niche: By capitalizing on personal interests — from animals to zinfandel wine — any lawyer can grow a specialty practice