Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

Class Action Defense Cases–Donovan v. Philip Morris: Massachusetts Federal Court Certifies Class Action Seeking Medical Monitoring For Lung Cancer Of 20-Year Marlboro Smokers

This week’s featured blogger at the National Law Review is Michael J. Hassen of Jeffer, Mangels, Butler & Mitchell LLP who writes for the Class Action Defense Blog.

Class Action Against Tobacco Company Alleging Unfair Trade Practices and Breach of Implied Warranty and Seeking Medical Monitoring for Lung Cancer on Behalf of Class of Smokers who have not been Diagnosed with Lung Cancer and who are Asymptomatic Warranted Class Action Certification under both Rule 23(b)(2) and (b)(3) Massachusetts Federal Court Holds

Plaintiffs filed a putative class action against Philip Morris alleging “unfair or deceptive” trade practices in violation of Massachusetts state law, breach of implied warranty, and negligence; specifically, the class action complaint “allege[d] that Philip Morris designed, marketed, and sold Marlboro cigarettes that delivered an excessive and dangerous level of carcinogens.” Donovan v. Philip Morris USA, Inc., ___ F.Supp.2d ___ (D.Mass. June 24, 2010) [Slip Opn., at 1]. According to the allegations underlying the class action complaint, “plaintiffs have no apparent symptoms of lung cancer, and as such, are not seeking damages.” Id. Thus, this class action “diverges from a typical tobacco suit,” id. Instead of seeking damages, the class action sought to compel Philip Morris to pay for medical monitoring – “that is, regular screenings to determine whether they have early signs of the disease” based on the argument that “if [class members] do eventually develop lung cancer, these screenings will increase their likelihood of survival almost six-fold.” Id., at 1-2. Plaintiffs sought certification of a class action “on behalf of Massachusetts residents, age fifty and older, who have smoked Marlboro cigarettes for at least twenty pack-years.” Id., at 1. Further, “No class member may be diagnosed with lung cancer or be under a physician’s care for suspected lung cancer, and all must have smoked Marlboro cigarettes within the Commonwealth of Massachusetts.” Id., at 2. Defense attorneys opposed class action treatment. In a 56-page order, the district court granted plaintiffs’ motion for class action certification.

In analyzing whether to grant class action treatment, the district court noted that “the motion was not easily resolved because it raised threshold issues of Massachusetts products liability law.” Donovan, at 2. First, the class action certification motion presented a set of issues tied to “the unusual remedy plaintiffs seek, a supervised medical monitoring program using Low-Dose Computed Tomography (‘LDCT’) scans.” Id. Plaintiffs argued that unlike x-rays, which could only detect lung cancer “when it had reached an advanced stage,” the new LDCT-scanning technology allowed for much earlier detection “significantly increasing survival rates from about fifteen percent to eighty-five percent.” Id. (Plaintiffs argued that monetary damages would not adequately compensate class members for the cost of medical monitoring, id., at 3.) Second, the class action certification motion presented the question of whether the named plaintiffs had standing to prosecute the class action because “[b]y definition, plaintiffs who seek medical monitoring to determine whether they have cancer are asymptomatic.” Id. And third, the class action presents a “novel issue [that] pertains to the timing of plaintiffs’ claims and the related issue of claim preclusion.” Id. “Typically, toxic tort exposure cases put the plaintiffs on the horns of a dilemma. If they bring a claim when they are aware of their exposure – assuming the standing issues are resolved – they take the risk that they cannot recover if they develop cancer in the future under the ‘single controversy rule.’ If they wait until they develop cancer to bring a claim, the statute of limitations will have expired because they knew of the risks at an earlier time.” Id. Here, plaintiffs argued that this dilemma was avoided because “The statute of limitations should run from the date that plaintiffs develop subcellular changes that substantially increase their risk of cancer and where that increase triggers a medically-accepted form of screening.” Id., at 4.

The district court noted that, in light of these novel issues, it certified two questions to the Supreme Judicial Court of Massachusetts: “(1) Does the plaintiffs’ suit for medical monitoring, based on the subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable claim and/or permit a remedy under Massachusetts state law? (2) If the plaintiffs have successfully stated a claim or claims, has the statute of limitations governing those claims expired?” Donovan, at 4. In a unanimous opinion, the Supreme Judicial Court answered “yes” to the first question, and “no” to the second. Id.; see Donovan v. Philip Morris, 914 N.E.2d 891, 894-95 (Mass. 2009). The federal court summarized that opinion at pages 4 and 5 as follows:

On the first question, the court held that subclinical effects on lung tissue constituted a legally cognizable injury on which plaintiffs’ medical monitoring claim could be based and outlined what comprised proof of such a claim. On the second question, the court held that the statute of limitations began to run only after the plaintiffs suffered “physiological change[s] resulting in a substantial increase in the risk of cancer” due to their smoking and “that increase, under the standard of care, triggers the need for available diagnostic testing . . .” Id. at 903. Finally, the Supreme Judicial Court held that there would be no claim preclusion under the “single controversy rule.” Litigation of the plaintiffs’ medical monitoring claim in this action would not preclude a future action for damages if plaintiffs eventually contract lung cancer.

Armed with the Supreme Judicial Court’s decision on the novel issues presented by the class action certification motion, the federal court granted class action treatment under both Rule 23(b)(2) and Rule 23(b)(3) to plaintiffs’ unfair trade practices and implied warranty claims, but denied class action treatment as to plaintiffs’ negligence claim. Donovan, at 6. Moreover, in light of Seventh Amendment concerns, the federal court held that the class action would proceed as a jury trial. Id.

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition. 415-984-9666 / www.jmbm.com

ABA – The Fifth Annual National Institute on Securities Fraud Oct 7 & 8th New Orleans

Looking for a good excuse to head to New Orleans?  The National Law Review would like to remind you that the American Bar Association’s Business Law Section, Criminal Justice Section, Section of Litigation, and the Center for Continuing Legal Education are sponsoring the 5th Annual National Institute on Securities Fraud: 

The aftermath of the global financial crisis continues to cause uncertainty in the areas of securities regulation and enforcement. SEC and DOJ collaboration has increased, with both agencies pursuing aggressive legal theories.  Congress has passed the most sweeping changes to the federal securities laws since they were enacted in the 1930s. And state attorney generals continue to assert a significant role in enforcing state securities laws.

This unprecedented confluence of events raises significant questions for industry participants and publicly traded companies that require a forward-looking and flexible approach to avoiding missteps.

The 2010 program will squarely address the issues and trends that are shaping the direction of securities regulation and enforcement for decades to come, including the status and potential impact of financial reform legislation,  the enforcement trends suggested by recent cases, and the priorities of top enforcers.  The program will provide valuable strategic and tactical insights to navigate this ever-changing terrain, from the perspective of thought leaders of every persuasion, including judges, prosecutors, regulators, compliance officers, and defense counsel.

The Securities Fraud National Institute Planning Committee, in cooperation with the Criminal Justice Section White Collar Crime Committee and the Business Law Section, will provide an educational and professional forum to discuss the legal and ethical issues that arise in securities fraud matters. For More Information – Click Here:

Wal-Mart Class Action Defense Cases–Dukes v. Wal-Mart : Ninth Circuit Court Affirms Class Action Certification Of Largest Labor Law Class Action In U.S. History

The National Law Review’s Featured Guest Blogger Michael J. Hassen of Jeffer, Mangels, Butler & Mitchell LLP discusses the recent California Employment Class Action cases involving WalMart’s female employees.  

Labor Law Class Action Alleging Wal-Mart Discriminates Against Female Employees in Violation of Title VII of the Civil Rights Act of 1964 Properly Certified As Nationwide Class Action by District Court Ninth Circuit Holds

Plaintiffs filed a class action against Wal-Mart alleging violations of Title VII of the Civil Rights Act of 1964; specifically, the class action complaint alleged that Wal-Mart discriminates against its female employees. Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___ (9th Cir. April 26, 2010) [Slip Opn., at 6137, 6146]. According to the allegations underlying the class action complaint (originally filed in 2004), Wal-Mart discriminated against women employees in violation of Title VII of the 1964 Civil Rights Act because “women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men.” Id., at 6147. The class action complaint sought to represent a nationwide class on the grounds “that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” Id. The proposed class included “women employed in a range of Wal-Mart positions, from part-time entry-level hourly employees to salaried managers.” Id. Plaintiffs’ counsel moved the district court to certify the litigation as a class action, defined as “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id., at 6148. Defense attorneys opposed class certification and stressed that the proposed class would consist of as many as 1.5 million current and former employees who worked at 3,400 stores in 41 regions. Id., at 6148 and n.3. The district court granted the motion and certified the litigation as a class action, id., at 6146-47. The Ninth Circuit affirmed. The Circuit Court opinion is quite lengthy, so we simply “hit the highlights” in this article. Defense attorneys may contact the author of the Blog for a more detailed discussion of the case.

The Ninth Circuit spent a considerable amount of time discussing the standard governing district court consideration of class certification under Rule 23 and clarified the “proper standard of Rule 23 adjudication.” See Dukes, at 6149-83. This analysis includes a discussion, and rejection, of the dissent’s “significant proof” standard. See id., at 6177-83. The Circuit Court then turned to the merits of the Rule 23 analysis, beginning with Rule 23(a)(1)’s numerosity requirement, which was not contested given the enormous size of the class. Id., at 6185. The Court also found that Wal-Mart had not waived its right to object to Rule 23(a)(3)’s typicality requirement, see id., at 6209-10, but concluded that the district court did not err in finding that the named-plaintiffs’ claims were sufficiently typical of those of the class: “Even though individual employees in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices—e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping—the district court did not abuse its discretion by finding that their claims are sufficiently typical to satisfy Rule 23(a)(3).” Id., at 6210. Moreover, “because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal.” Id., at 6211. And the Ninth Circuit found no difficulty in finding that the adequacy of representation test in Rule 23(a)(4) had been met. Id., at 6212.

The Circuit Court spent the vast majority of its time discussing Rule 23(a)(2)’s commonality test. See Dukes, at 6186-6209. The district court found that this test had been met: “Plaintiffs have exceeded the permissive and minimal burden of establishing commonality by providing: (1) significant evidence of company-wide corporate practices and policies, which include (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.” Id., at 6186-87 (citation omitted). The Ninth Circuit agreed, id., at 6287. Despite the wide-ranging nature of the class, the Court held that there was sufficient evidence of a common policy of discrimination, see id., at 6187-6207. The Circuit Court also found that the district court did not err in finding “substantial evidence suggesting common pay and promotion policies among Wal-Mart’s many stores” and that “Wal-Mart’s decision to permit its managers to utilize subjectivity in interpreting those policies offers additional support for a commonality finding.” Id., at 6207. Thus, the Court concluded at page 6209:

Plaintiffs’ factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart’s subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart’s policies or practices are discriminatory.

Finally, “Plaintiffs moved to certify the class under Rule 23(b)(2), which requires showing that ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.’” Dukes, at 6214. The Circuit Court recognized that a (b)(2) class was inappropriate if the primary relief sought by the class action complaint is monetary. Id., at 6214-15. The Ninth Circuit previously had adopted “a test that focuses on the plaintiffs’ subjective intent in bringing a lawsuit.” Id., at 6215. But the Court now reversed that position and adopted an entirely new standard, set forth at page 6217 as follows:

Rule 23(b)(2) certification is not appropriate where monetary relief is “predominant” over injunctive relief or declaratory relief. To determine whether monetary relief predominates, a district court should consider, on a case-by-case basis, the objective “effect of the relief sought” on the litigation. [Citation.] Factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature—as measured by recovery per class member—raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative.

The Court then concluded: “Under this standard…, the district court’s decision to include claims for back pay in a class certified under Rule 23(b)(2) was not an abuse of its discretion. On the other hand, the district court did abuse its discretion by failing to analyze whether certifying Plaintiffs’ punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.” Dukes, at 6217. Thus, the Ninth Circuit reversed and remanded the matter to the district court for further consideration of the punitive damage relief claim. Additionally, the Circuit Court agreed with Wal-Mart that (b)(2) class may not be proper as to employees who no longer worked for Wal-Mart at the time the class action was filed because those individuals “do not have standing to pursue injunctive or declaratory relief.” Id., at 6228. Wal-Mart argued that since former employees lacked standing to seek injunctive relief, monetary relief would predominate for those class members. Id. But while the Court reversed the district court order to the extent it included former employees in the (b)(2) class, it remanded the matter for further consideration as to whether a (b)(3) class could be certified for such individuals noting, “The district court may, in its discretion, certify a separate Rule 23(b)(3) class of former employees for back pay and punitive damages.” Id., at 6229. Accordingly, the Court affirmed in part and reversed in part. Id., at 6236-37.

Judge Graber filed a brief concurring opinion to stress the “unremarkable” nature of the Court’s holding: “The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding: [¶] Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies. [¶] If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members.” See Dukes, at 6237-38.

NOTE: Judge Ikuta dissented, joined by Chief Judge Kozinski and Judges Rymer, Silverman and Bea. See Dukes, at 6238-6279. The dissent argued that “the district court abused its discretion in two ways. First, it failed to follow the Supreme Court’s direction to ‘evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a),’ [citation], and to ensure ‘after a rigorous analysis’ that the prerequisites of Rule 23(a) have been met, [citation]. Second, the district court erred in ignoring Wal-Mart’s statutory right to raise defenses to liability for back pay and punitive damages under Title VII, see 42 U.S.C. § 2000e- 5(g)(2); Rules Enabling Act, 28 U.S.C. § 2072(b), and therefore abused its discretion in holding that the proposed class could be certified under Rule 23(b)(2).” Dukes, at 6243.

Chief Judge Kozinski joined the dissent and added the following concise explanation: “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit. [¶] I therefore join fully Judge Ikuta’s dissent.” Dukes, at 6279.

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition.  415-984-9666 / www.jmbm.com


ABA Consumer Financial Services Law Basics -Sept 20 – 21 Boston, MA

Hey Boston – the National Law Review  wants to bring to your attention — The American Bar Association Business Law Section, the ABA Center for Continuing Legal Education, and the Morin Center for Banking and Financial Law of Boston University School of Law will host the 1st presentation of a one-and-a-half day introduction to the regulation of consumer financial services (“CFS”) products and the financial institutions that provide them. If you need a primer or a refresher on the law governing consumer loans and deposits, the program will provide a jump start.   11.75 hours of CLE have been applied for. 

Program Focus

The program will explain each of the major sources of regulation of consumer financial products in the context of the regulatory techniques and policies that are the common threads in a complex pattern, including:

  • Price regulation and federal preemption of state price limitations
  • Disclosure and transparency serving consumer understanding and market operation
  • Regulating the “fairness” of financial institution conduct
  • Privacy and security of consumer data and the problem of ID theft
  • Fair access to financial services
  • Remedies: regulators and private plaintiffs
  • Regulatory reform: CFPA and beyond

Rapid change is occurring in CFS law on several fronts. First, Congress and the Administration have proposed significant changes in CFS law, with the Credit CARD Act and other changes going into effect almost immediately and proposed new regulators on the horizon. At the same time, the long-time federal CFS regulators (FRB, HUD, and FTC) have promulgated new regulations of the CFS industry and its products at an unprecedented pace, in response to a financial crisis that began with toxic consumer assets and the perceived failure to regulate adequately in the past. Finally, states continue to impose their individual, local solutions on CFS industry problems. This multi-pronged approach results in, among other things, constitutional issues of federalism that the Supreme Court and Congress are currently tackling in the area of federal preemption of state CFS laws.

This program presents these new developments in the context of the complex, overlapping and often inconsistent federal laws and regulations that have developed over the past 40 years.   September 20 -21 Boston University School of Management For More Information and to Register Click on: http://dld.bz/vCjC

Cy Pres Class Action Defense Cases–In re American Tower: Massachusetts Federal Court Rejects Request To Distribute Class Action Settlement Cy Pres Funds To Non-Profit Organization

First of a series of daily guest blog spots from the National Law Review’s featured blogger Michael J. Hassen of  Jeffer, Mangels, Butler & Mitchell LLP.  Michael Hassan authors  JMBM’s Class Action Defense Blog.

Distribution of Unclaimed Class Action Settlement Funds to Non-Profit Organization Unconnected to Harm Suffered by Class Members Inappropriate Massachusetts Federal Court Holds

Plaintiff filed a putative class action against American Tower Corp. alleging violations of federal securities laws and purported to be brought on behalf of “members of the public who were harmed by the securities fraud.” In re American Tower Corp. Securities Litig., 648 F.Supp.2d 223, 224-25 (D.Mass. 2010). Eventually, the parties negotiated a settlement of the class action which provided for the distribution of unclaimed funds through a cy pres fund. Id., at 224. Lead Plaintiff moved the district court for authorization to distribute the cy pres funds “to The Peggy Browning Fund, a private, nonsectarian, not-for-profit organization with 501(c)(3) tax-deductible status.” Id. The federal court denied the motion because plaintiff sought “to disburse settlement funds to a non-profit organization with little connection to the harms class members suffered,” id. Because the author has received numerous inquiries from defense and plaintiff counsel concerning the proper scope of a cy pres fund, we include this article on the district court’s ruling.

The district court noted that the proper inquiry was to “determine whether the Peggy Browning Fund is an appropriate recipient of any residual settlement funds” of the class action settlement. In re American Tower Corp., at 224. The court explained that the purpose of the use of a cy pres fund is effect a distribution of class action settlement funds “to a ‘next-best’ recipient” when it is impractical to distribute the settlement funds to the class members. Id., at 224-25 (citing In re Airline Ticket Commission Antitrust Litig., 268 F.3d 619, 626 (8th Cir.2001)). “‘In such cases, the court, guided by the parties’ original purpose, directs that the unclaimed funds be distributed for the prospective benefit of the class.’” Id. (citation omitted). The federal court easily concluded, then, that the Peggy Browning Fund was “an inappropriate recipient of any unclaimed class funds.” Id. “Disbursement of unclaimed funds must have some relationship to the harm suffered by class members…. However, the Peggy Browning Fund focuses on labor issues…. Therefore, it does not appear that funds donated to the Peggy Browning Fund would benefit the class or address the harms suffered by class members.” Id. (italics added). The district court therefore denied the motion, without prejudice to Lead Plaintiff renewing the request and noting that Lead Plaintiff “should, if possible, propose a national organization whose work relates to the harm suffered by class members in this case.” Id.

NOTE: The author notes that trial courts are far too willing to authorize the distribution of cy pres funds to practically any organization. In such cases, the courts appear to be more interested in punishing the defendant than in effecting a distribution of funds to the “next-best” recipient.

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition.  415-984-9666 /www.jmbm.com

Meeting Your Match – Law Firm Publicists as Matchmakers between Law Firms and Media

National Law Review Business of Law contributor Tom Ciesielka of TC Public Relations highlights a legal publicists role in law firm relations with the media.

Everybody hit your buzzers it's the Match Game - (Marcia Wallace with the correct answer)

I sometimes like to promote myself as an expert matchmaker. You want a date with the media? You got it. You want to get to know a certain reporter better? No problem. But PR matchmaking isn’t about dates and getting-to-know-yous, it’s about interviews and background meetings and making valuable connections with key reporters that care about your firm’s story. Consider the following tips to foster strong relationships and woo the media.

Pitch the Right Story to the Right Person at the Right Time

Would you show up to a date late, and then call your date the wrong name? Of course not, so don’t call a morning radio host who talks politics and ask about real estate law. Understand that there are many different titles in the media – reporter, producer, managing editor, columnist, executive producer, staff writer — so going straight to the host or editor in chief may not give you the best response. If you’re contacting a reporter, look for the specific beats and topic specialties to help you connect with someone who is already interested in your industry. Find the right time to contact a media outlet by first understanding its deadlines, and also by looking at editorial calendars and reading its most recent articles or program recaps to see what subjects have been recently covered. Every date is different, and likewise, pitching the media isn’t a one-size-fits-all game.

Don’t Exaggerate the Truth

Don’t tell your date you found the cure to cancer when you really just donate money to the American Cancer Society. Similarly, don’t claim to be an expert on lowering litigation costs if you charge $1,000 an hour. Talking about how wonderful your firm is gets you nowhere fast in the business world, and also can give you and your firm a bad reputation. Instead of using an exaggerated story to puff up your story, use tidbits from the real story in a captivating way. Deliver your message clearly, focusing on the parts your audience cares most about, without going overboard.  Also remember, reporters do their research, so you want to make sure you have all your facts straight.

Keep the Relationship Strong

When a date goes well, what do you do? Call and ask for another. If a story about you or your firm goes well, thank the reporter, and keep him or her on your “Hot Contacts” list. When you have additional information that would interest the same reporter, don’t just sit on it, hoping that the reporter calls you and asks what’s new. Think of it this way: every relationship needs cultivating. Cultivate your status as a credible source by sending reporters information or ideas to help with their stories, or see what they are working on and if you can help. Once you’ve established that relationship, you need to keep it going and keep it strong.

This posting is republished with permission from the Chicago Lawyer Magazine Blog “Around the Watercooler” located at:  http://h20cooler.wordpress.com/2010/

Copyright © 2010 TC Public Relations

About the Author:

Tom Ciesielka, President of TC Public Relations, has worked in public relations, marketing and business development for more than 25 years and has enjoyed working with clients ranging from law firms to distinguished authors to national and local companies. He feels privileged to have established trusting working relationships with these clients and values every opportunity he gets to help businesses grow.  He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.

312-422-1333 / www.tcpr.net

National Law Review's Student Legal Writing Contest – October is Health Care Month!

Alert the Media!  The National Law Review is offering law students the opportunity to publish their work in the months of October & November. No entry fee is required.

  • Entries will be judged and the top two articles chosen will be featured in the NLR monthly magazine prominently displayed on the NLR home page. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).
  • For more details go to NLR Writing Competition.

Why Students Should Submit Articles

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters,law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here.

The Submission Deadline for October is Monday September 27th!

What's Hot in Marketing Technology for Law Firms?

The National Law Review’s Business of Law featured blogger is Kristyn J. Sornat of the International Legal Technology Association (ILTA) – who was a panelist at ILTA’s recent annual conference in Las Vegas.  Kristyn recaps some of the valuable information she picked up at the conference.  Read On:  

Lessons learned from the International Legal Technology Association’s Conference – ILTA 2010

For the past several years, the International Legal Technology Association (ILTA) has included a one-day marketing technology track at their annual conference. While the track originally focused on client relationship management (CRM) software (namely InterAction), it has grown to include all things related to marketing technology. This year there were four sessions:

I.   Web Analytics and Search Engine Optimization: Smart Strategies

II.   Using Technology for Successful Events

III.  ERM and CRM: Compare and Contrast

IV.  Marketing Technology Roundtable

I. Web Analytics and Search Engine Optimization: Smart Strategies

In order to stay competitive it is important that law firms utilize a search engine optimization (SEO) strategy to help improve their rankings in both branded and non-branded searches performed on Google, Yahoo, Bing, etc. This session focused on changes firms can make to their websites to support their SEO goals, including:

  • Eliminate pages with duplicate content
  • Name URL’s rather than using numbers
  • Add metadata to all pages
  • Create links between pages on your site and use meaningful phrases to describe the content to which you are linking (not just “click here”)
  • Seek inbound links to pages on your site from reputable sources
  • Push out your content as much as possible through e-mail distributions, RSS feeds, social media and syndication services – such as the National Law Review.

Also, the session covered the importance of using web analytics to track how your website is performing and whether the changes implemented are successful. Several free web analytics tools are available, including Google Analytics, Yahoo! Web Analytics and Piwik.

At the end of the session, the panelists provided the audience with 10 Questions about SEO and Web Analytics That You Should Know How to Answer.

II. Using Technology for Successful Events

This session focused on the increasing importance of e-mail communications for events and tools available to manage those communications. Two e-mail platforms were mentioned that link directly to CRM software: Tikit eMarketing andConcep. The Tikit eMarketing solution requires your firm to have in-house resources to design and send e-mails through your own server. The Concep solution involves a third-party vendor that aides in template design and uses its own servers to distribute your e-mails.

Important things to remember regarding invitations and RSVP forms:

  • Include disclaimers, the firm’s address and an unsubscribe link (important to comply with CAN-SPAM).
  • Apply alt tags for all images.
  • Use a combination of images, background color and text, rather than one big image for your invitation.
  • Link to a survey in your invitation to find out what people are interested in hearing about.
  • Link to a survey in your post-event follow-up e-mails to gauge the response of the audience, find out what else they would have liked to learn and their interest in future events.
  • Cross-market events in appropriate client alerts and other news-like e-mail distributions.
  • Personalize the e-mail with the recipient’s name in the subject line or body of the e-mail for a better response rate.
  • Use social media to promote the event to an audience who may not already be familiar with your firm.

 III. ERM and CRM: Compare and Contrast

This topic turned into a hot debate among the panelists and drew a large crowd of enterprise relationship management (ERM) and CRM vendors who were anxious to hear how their solutions would be discussed. There were three panelists from different law firms, one with only an ERM solution, one with only a CRM solution and one with both solutions in place. One of the main functions of both ERM and CRM software is tracking “who knows who” among your clients, prospects and referral sources. ERM gathers this information by monitoring e-mail traffic and possibly phone calls of your employees and brings that information into the system automatically. Most CRM systems pull this information from address books in Outlook (and other e-mail systems) and require more active participation from attorneys to be successful.

The message from the panel was that every firm is different, and selecting one or both solutions depends on the culture of your firm and its needs. If you have attorneys who won’t take the time to share their contacts through CRM software and will not object to the information being pulled automatically, an ERM solution may work for you. If you have attorneys who are concerned about privacy and want to be able to do more (such as track business development efforts, e-mail marketing lists and client information), the CRM option is the way to go. If you have a combination of needs, you might look into implementing both solutions.

During the presentation, the panelists were careful not to mention what vendors they used, but did supply the following list of ERM and CRM providers that to cater to the law firm market.

CRM Vendors

LexisNexis – InterAction

Versys Corporation – IntelliPad

Client Profiles/Microsoft – CRM4Legal

Cole Valley Software – ContactEase

Hubbard One – Contact Manager

ERM Vendors

Cole Valley Software – Relationship Discovery

LexisNexis – InterAction IQ

Hubbard One – ContactNet

BranchIt Corporation – BranchIt

 

IV. Marketing Technology Roundtable / Hot Trends in Law Firm Marketing Technology

In the fourth session, all panelists from the previous sessions returned to answer audience questions about marketing technology. The first thing discussed was what’s hot or new in the market. Below are some of the advances that are happening now or may be coming your way in the near future.

Websites: Looking at the future of law firm websites, the group saw many changes on the horizon.  One panelist described a recent demo she attended from Saturno Design that featured a new tool that essentially sets up a “mapping” feature to deliver customized content to each visitor based on what they viewed during prior visits to your site. Several panelists also predicted a blurring between the traditional law firm site and social media. Examples included pulling content from LinkedIn profiles for attorney bios or replacing the traditional newsletter and alert sections with blogs.

Video: Video was a hot topic throughout the sessions. Many firms have already begun to use this medium on their websites and in their electronic communications, adding a human element that was not possible before. Mary Tomaro, Web and Interactive Marketing Manager for Jones Day, said videos on their website have become quite popular. An important note, if your firm is comfortable using YouTube to host its videos, there are two benefits to this approach: 1) you can save the cost of purchasing software to host them yourself, and 2) you can increase the reach of the videos, as they can be spread virally and are more easily found by search engines.

Mobile Apps: To date, only a select few firms have released applications for use on mobile devices. The panelists saw this as an increasingly important trend as users move away from traditional desktop computers and use their mobile devices and other tools, such as iPads, to search for and read content. Read a blog post describing the recent success of Morrison & Foerster’s iPhone app.

Social Media: Although social media may not be a new tool, many firms have yet to establish a usage policy or firmwide strategy. As you iron out how your firm will utilize social media, keep in mind that relevance is more important than reach – it doesn’t matter if you have 2,000 Twitter followers if the content you give them doesn’t resonate.

© 2010 International Legal Technology Association  

About the Author:

Kristyn is Marketing Technology Specialist at Chicago-based Much Shelist. She is responsible for the firm’s CRM database (InterAction), electronic marketing campaigns (from basic HTML design through distribution and analytics) and social media strategy. She also has various duties related to the firm’s Web site, including search engine optimization and Web analytics interpretation. Kristyn was recognized by the International Legal Technology Association (ILTA) with a 2010 Distinguished Peer Award for outstanding achievements in marketing technology at the organization’s annual conference. She has nearly five years of marketing technology experience in a law firm environment.

www.muchshelist.com / 312-521-2125

 

Top 10 Rainmaker Best Practices to Win in 2010 – Part 3

In the final installment of her three-part Business of Law guest blog posting at the National Law Review, Deborah Knupp of Akina Corporation details the final four steps to help focus and streamline legal business development.  

This week’s posts are identifying the Top 10 Rainmaker Best Practices, that when focused on with discipline and intention, distinguish you and your firm and help you gain a competitive sales advantage.  Our previous posts Part 1 and Part 2 focused on the first six Rainmaker Best Practices.  Today’s article focuses on the last set of four Best Practices and discusses WHAT works in any market and HOW to implement the best practices to impact your business with increased revenue, increased leverage of time and resources and improved accuracy and predictability in your sales pipeline.

7) Networking and Working a Room

Networking effectiveness has less to do with personality and more to do with readiness.  Simple answers to questions like, “What is my goal or objective for the event?”  “How many people do I want to meet at the event?”  “How might I follow-up after the event if I make a connection?” turn networking situations into productive treasure hunts.  Networking basics include having your Quick Pitch ready, having business cards accessible and managing your time to meet your objectives.  When possible, ask for the attendee list in advance and peruse the day’s headlines (news, sports, current events) to have small talk ready to break the ice.

8) Campaign Thinking

The ethos of Campaign Thinking is any single act of marketing or business development should be leveraged minimally for a 3:1 payback.   3:1 leverage could be turning an article into a speech and a webinar.  3:1 leverage could be turning a single event into a 3-part communication plan: pre-event communication, during the event conversation and post event follow-up communication. 3:1 leverage can also be geography based by utilizing travel as the authentic reason to connect, i.e. one meeting in NYC turns into three meetings in the Northeast Corridor.

9) The 6 Silver Bullets for Closing and Managing the Red Zone

Unfortunately, there is no magic phrase or silver bullet to close business.  There are however, six qualifiers that can be like silver bullets to understand when business should close.  Business will generally close if there is:

1)     A legitimate problem

2)     A good fit solution

3)     A sense of urgency attached to the timeline to make decisions.

4)     Access to the decision makers and their decision-making criteria

5)     Expectations that are in alignment regarding the level of effort it will take to initiate a relationship and work successfully with you

6)     Budget that fits with your fee structure

When your prospect’s interests align with your six qualifiers, business has a way of closing itself.  If you aren’t sure if your prospect’s interests align against a specific qualifier, asking additional Discovery Questions will provide clarity and a sense of what the appropriate next steps might be.

When business does close, it is understandable that when a prospective client gives you a verbal “yes,” it is tempting to celebrate and step back from your selling efforts.  However, managing the Red Zone means that you recognize that when you get the “yes”, the incumbent has gotten the “no,” which can often lead to desperate decisions and measures to retain the client.  Business is not truly closed until work has started.  Therefore, when you receive word that you have been hired you are on the 20-yard line.  You will want to continue to stay connected, step-up communication and set clear definitive next steps as you ready for the actual work.

10) Create SuperFans through Client Experience

Many professionals assume that if they do good work, clients will continue to hire them for more work. However, reality tells us that just doing good work is not enough.  The competitive market tells us that we need to continuously manage the client relationship to inspire client loyalty while simultaneously looking for additional problems to solve for the client. Recognizing that loyalty is usually a result of an accumulation of good experiences rather than one outstanding moment, we can create SuperFans by finding ways to deepen value within the client experience in seven areas of innovation:

1)     Client feedback

2)     Client intake process

3)     Communication and expectation management

4)     Client appreciation

5)     Knowing a client’s business

6)     Non-legal client project participation and facilitation

7)     Alternative fee arrangements

Summary

Whether you are new to business development or a seasoned veteran, the Top 10 Rainmaker Best Practices are designed to give you greater focus, greater control and greater results with more predictability.  When you remember to focus first on building authentic relationships and solving the problems that should be solved, you will have greater joy during the journey and greater impact in the communities in which you serve.

To see Part I of Top 10 Rainmaker Best Practices to Win in 2010 click here.

To see Part II of Top 10 Rainmaker Best Practices to Win in 2010 click here.

COPYRIGHT © 2010 AKINA CORPORATION

About the Author:

Deborah Knupp has worked globally with CEOs, executives, managing partners and attorneys as a coach and business executive for over 20 years. She has helped these leaders align their people systems and business objectives to create cultures based on the principles of accountability, integrity and authentic relationship building. Her work has focused on making the work environment a place where employees “want” to be; where clients “want” to buy; and, where leaders “want” to serve a bigger purpose in their communities and families.www.akina.biz /312-235-0144

Public Defenders as Effective as Private Attorneys

This week’s featured blogger at the National Law Review is Tom Jacobs of Miller-McCune – who discusses a recent study done comparing the relative effectiveness of public defenders and private attorneys in the Cook County criminal court system. The research team led by Richard Hartley of the University of Texas at San Antonio came up with some interesting and somewhat startling results.  Read on:

Perhaps it’s time for someone to come to the defense of public defenders. A newly published look at Chicago-area courts finds that, when you consider the actual outcomes of judicial hearings, these underpaid and underappreciated attorneys do just as well as their private-sector counterparts.

“This study suggests that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders,” a research team led by Richard Hartley of the University of Texas at San Antonio writes in the Journal of Criminal Justice. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

The researchers examined a random sample of 2,850 offenders convicted of felonies in Cook County Circuit Court, “a large Midwestern jurisdiction which is similar to other large, urban jurisdictions in the country.” They compared cases where the defendant was represented by a private attorney or public defender, focusing on four stages of the judicial process:

  • The decision to grant bail. The researchers looked at whether bail was set rather than whether it was made, since the latter is more a function of ability to pay rather than quality of legal representation.
  • Plea-bargaining decisions. This served as a measure of whether an attorney was successful in getting the initial charge reduced.
  • Whether the defendant, once convicted, served jail time.
  • The length of sentence imposed on those convicts who were incarcerated.

“The overall results of this study generally support the idea that there is no difference between private attorneys and public defenders regarding case outcomes,” the researchers conclude. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

Two important caveats. The researchers did not look at convictions vs. acquittals. And they found that retaining a private attorney is apparently beneficial “for certain offenders and at certain stages” of the process. Specifically, they noted some interestingly varied outcomes when looking at a defendant’s race.

“White defendants are the only defendants who benefit from having a private attorney at the release decision,” they write. Specifically, they found whites with private attorneys are 2.7 times more likely than whites with public defenders to have bail granted.

For people of color, private attorneys may not help in getting bail, but they do facilitate plea bargains. “Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender,” the researchers write.

Why are public defenders so effective at representing their clients? One theory, according to Hartley, involves the “courtroom workgroup” model of justice, where the public defender, prosecutor and judge work together to dispose of cases.  He notes that when the system functions in this way, “public defenders are in better positions than private attorneys to negotiate favorable plea bargains and to mitigate punishment.”

These findings are not likely to put any law firms out of business. But given the negative media coverage of public defenders offices, they do offer some reassurance that the system is reasonably fair, even for those who can’t afford an attorney.

“This study provides evidence that contradicts the idea that you get what you pay for, at least in Cook County,” Hartley and his colleagues conclude. In Chicago courtrooms, “Public defenders are as effective as private attorneys.”

Miller-McCune © 2010 

About the Author:

Tom Jacobs is a veteran journalist with more than 20 years experience at daily newspapers. He has served as a staff writer for The Los Angeles Daily News and the Santa Barbara News-Press. His work has also appeared in The Los Angeles Times, Chicago Tribune and Ventura County Star.

TheEditor@miller-mccune.com / www.miller-mccune.com / 805-899-8620