Category: Legal Selection

False Claims Trial Institute – June 05 – 07, 2013

The National Law Review is pleased to bring you information about the upcoming False Claims Trial Institute.

False Claims Institute

When

June 05 – 07, 2013

Where

  • The Liaison Capitol Hill An Affinia Hotel
  • 415 New Jersey Ave NW
  • Washington, DC 20001-2001
  • United States of America

As the number of False Claims Act cases filed, and settled, continues to rise, an increasing number of cases are litigated through discovery and trial. This one-of-a-kind institute will focus on the discovery, evidentiary, and trial challenges that must be successfully overcome to try a False Claims Act case. The capstone of the program will be a two-day mock FCA trial, from voir dire through jury deliberations.

Attendees of this program will improve their knowledge of the challenges involved in litigating a False Claims Act case, including::

  • Developing trial themes and a litigation plan
  • Obtaining discovery from the government
  • Building or limiting damages
  • Assessing and reducing the risk of exclusion

Gateway Practices Promise Premium Law Firm Rates for 2011 – and More

This week’s Business of Law Guest Blogger at the National Law Review is Marcie L. Borgal Shunk of  BTI Consulting Group. I recently had the pleasure of hearing Marcie speak at Dechert’s offices in Philadelphia at a Delaware Valley Law Firm Marketing Group event – and she ‘put a lot of meat on the bones’ concerning what differentiates law firms in the eyes of inside counsel and what forces drive business to one law firm or one lawyer over another.  The following is a  very brief  post by Marcie on what will be the premium rate legal work in 2011 and why legal consumers are willing to pay top dollar for some legal services and not others:

Gateway Practices are a law firm’s exclusive invitation into an elite club. They not only provide intimate insights into a client’s most sensitive, high-value needs, but also offer priority access to new business opportunities in other areas (such as high-rate, high-growth opportunities). Gateway Practices are, in essence, the equivalent of a hidden shortcut to the king’s treasures.

BTI Premium Practices Forecast 2011, based on input from more than 250 corporate counsel, predicts there are 4 Gateway Practices for 2011. These are:

  • Bet-the-Company Litigation
  • Investigations
  • Bankruptcy
  • IP Litigation

Opportunities in Gateway Practices, however, are not abundantly available. In terms of market size, they are smaller than most other practice areas. Fewer companies have existing matters—for example, just 24.2% of companies have an active bet-the-company litigation at any given time—and the growth prospects for Gateway Practices, most of which are negative, mean competition is intense.

The only way to win new business in a shrinking practice area is to (1) take work from a competitor, or (2) be first in line for new opportunities.

Three best practices to position your firm to capture—and keep—this high-powered, top-rate work are:

  1. Be the driving force behind new thinking in how to use legal strategy for business advantage
  2. Take a bullet for your client. Commitment to help is the single most powerful differentiator when hiring for Gateway Practices.
  3. Host regular online or live events which anticipate major risk factors in Gateway Practices

©2011 The BTI Consulting Group Wellesley, MA

 

 

 

 

How to Gain and Retain Clients—Establishing LTR Differentiators

From this week’s Business of Law Guest Blogger at the National Law Review, Hilary Fordwich of Strelmark, LLC – provides some very practical tips for attorneys on how to think about your interactions with potential clients.  

Every attorney is plagued by the ever-present mandate to “grow the practice.” This imperative is crucial to the success of every law firm, but most attorneys find it bothersome (at a minimum) when they are also under ever-increasing pressure to maintain chargeable hours. It is analogous to the conflicting objectives faced by other service professionals, be they accountants, engineers, architects or IT professionals. However, the key to this growth is not, as some may believe, to simply throw out a net and watch the clients rush your boat. The critical factor in any service professional’s business growth is desire; in short, the prospect must want to retain the attorney.

Thus, the real problem for any attorney is not simply the cliché of growing the practice; rather, the key is attaining the critical components of want. These components are not nebulous—they are based on three critical factors: your contacts will want to conduct business with you if they like you, trust you and respect you (Likability = L; Trust = T; Respect = R: LTR). And this all must be achieved both with new prospects—so you garner them—as well as with existing clients—so you do not lose them. Business development, then, is inseparable from daily activities; indeed, it must become a part of daily interactions.

Most professionals have an inherent habit of forgetting that the essential truths of human psychology apply not only to life outside of the office, but also to relationships within each business sphere. Indeed, some professionals fail to recognize that the most obvious of these essential truths—that we choose to not associate with people whom we dislike—is a critical factor in business.

Likability Alone is Not Enough

However, likability is insufficient; two additional essential psychological truths operate in tandem with it. We choose not to do business with those we dislike; we also choose not to associate with those we neither trust nor respect. While you may like someone immensely, if you distrust them, you will likely not be giving them your business.

I do not mean to detract from the critical importance of an individual’s level of competence. Clearly, clients select attorneys because of their legal competence, not just because they are personally appealing. However, the market is currently flooded with more-than-competent lawyers. Each potential client selects an expert with whom they would like to work. It is this element of the decision that is driven by the LTR differentiators.

In other words, an attorney must catalyze in each prospective client—in essence, every person with whom he or she comes in contact—a feeling of likability, trust and respect. These three qualities are inseparable. And though they are not always innate, they can be taught; in today’s ever-more-competitive legal market, attorneys must master the tactical techniques for attaining them.

A Viable Referral Network

Timothy J. Waters, former managing partner of McDermott, Will & Emery, recently published a highly perceptive article, reporting that “Last year, 2009, a remarkable number of law firms across the country spent more time reducing the number of their lawyers than recruiting law school graduates.”[1] Who were these lawyers who were the victims of that “reducing”? Certainly not those viewed as stellar performers. Yet, these now unemployed attorneys were likely incredible lawyers in regards to the practice of law. They were likely just not those incredible at gaining and retaining clients.

Client retention is not taught in most law schools; the general trend in professional education lacks a psychological aspect: teaching law students only about the law, thus increasing their capability to be legal experts, but neglecting to impart the very tools necessary to grow their future practice.

Building a viable legal practice depends to a great degree upon building a phenomenal referral network. The foundation of this network is legal competence. However, the motivation behind the synapses within this network is still LTR. This referral base can fuel the lawyer’s clientele—but that base is only valuable if a lawyer is liked by those within it. Those in a position to refer clients have to want to send them to a particular attorney versus all others, who are likely just as professionally qualified.

The way to ensure that value is to maintain the LTR you have gained in your original clients. In every e-mail, every voice mail, focus on them: What are their needs? What are their concerns? How is their family? Learn their names and the names of those important to them. Ask how they are doing; choose not to dwell on yourself. To ensure their trust, behave with integrity in every endeavor. If a potential client sees you cheat on the golf course, they will not trust you as their attorney. Likewise, they will respect you if you conduct yourself with compassion, competency and concern for others.

Retaining Partners

Several critical factors determine the cost of both gaining and retaining clients. According to Alan E. Webber of Forrester Research, acquiring a new client costs five times more than retaining a current client.[2] Clearly, this retaining requires the same personal qualities as the initial gaining. If we subscribe to the viable network principle discussed above, the two are inseparable. You will only gain new lasting clients if you have satisfied and retained your long-time clients.

With all the growth of legal marketing, very few people are examining what truly drives business development and the growth of legal practices. Executives don’t retain law firms; they retain partners—a person, not an entity, whom they admire. Executives and general counsels no doubt want to respect their legal counsel for his/her knowledge of the law; however, they also want to know their external representation is entirely committed to their cause.

Consider the way you select a financial planner or an accountant to complete your tax documentation. No doubt most professionals can complete the task, but you probably selected the one with whom you felt the most comfortable speaking, the one whom you respected the most technically, and the one whom you trusted to complete the task on time and effectively.

You likely decided about LTR within a few seconds of your interaction with that individual, though probably subconsciously. This intrinsic assessment was perhaps based upon very subjective criteria: professional tone of voice, ability to maintain eye contact, genuine concern about you and your problems, depth of professional knowledge, understanding your needs (or seeming like they did), and so on.

Just as you evaluate your accountant, your future clients will examine you. When a company selects a lawyer, the issues of LTR take precedence over that attorney’s competence. Each of us has heard the ubiquitous Dale Carnegie quote asserting, “15% of one’s financial success is due to one’s technical knowledge.” The other 85% is “due to skill in human engineering,” which involves the “soft” skills of human engineering, such as likability and empathy; these become the differentiators.

To combat these psychological decision-making factors, all attorneys can improve their LTR techniques to gain and retain clients. It is a teachable process and one honed with practice. Indeed, everyone has the capacity to exhibit qualities of genuine likability, to gain trust and to garner respect, but either use this capacity or choose to ignore it subconsciously. Most may understand that LTR factors need to be established quickly in social settings, but many fail to recognize that business development is inseparable from day-to-day activities. These three factors also need to be utilized in every conversation with every potential client—in every e-mail, every voicemail, in every communication. If you are clearly trustworthy, incite respect and are simply likeable again and again, not only will your initial meetings, presentations and conference calls win you a new client, but your constant concern for that client’s well-being will ensure their retention for years to come.

The author wishes to acknowledge the contributions of J.M. Larsen to this article.

 

[1] See Waters, Timothy J., The Law Firm Paradigm: Relevant or Relic (July 13, 2010), available at http://documents.jdsupra.com/910f3b0f-40al-464c-b438-f8f6e306d7f5.pdf (last reviewed November 4, 2010).

[2] See Webber, Alan E., B2B Customer Experience Priorities in an Economic Downturn: Key Customer Usability Initiatives in a Soft Economy (February 19, 2008), Forrester Research.

Copyright © 2010 by Strelmark, Corporation. All rights reserved.

 

Testing the Limits of Applicant Testing

The potential legal pitfalls of job applicant testing are illuminated by the National Law Review’s featured blogger Sarah L. Hinkle of Steptoe & Johnson PLLC.  Read on:  

Many employers believe that applicant testing – skills, personality, or honesty testing, for instance – is an easy way to screen out undesirable job candidates. Besides, all employers want highly skilled, easy to work with, honest, and sober employees … and what better way to rate a candidate than to subject him or her to a test, right? Not so fast! Applicant testing is fraught with potential legal pitfalls, and caution must always be exercised before engaging in any kind of applicant testing.Anchor

For example, while tests can be very effective tools for finding qualified applicants, employers must be aware that some tests or selection procedures can violate state and federal anti-discrimination laws. Worse, this can occur even if the employer does not intend to do so, such as when a “neutral” test or other selection procedure disproportionately excludes people in a particular group by race, gender, national origin, religion, disability, age, or any other protected classification, unless the employer can justify the test or procedure by showing that it is “job-related and consistent with business necessity.”

The seminal case examining the unintentional “disparate impact” discrimination found in some testing techniques is Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the employer instituted a requirement that applicants at a power plant must either have a high school diploma or pass a general intelligence test in order to be hired. The Court found that the requirement was discriminatory because the employer could not show that the requirement bore a “demonstrable relationship to successful performance of the jobs for which it was used.” The full text of Griggs, by the way, can be found at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html

Keep in mind that pre-employment screening which merely has a discriminatory impact isn’t the only type of applicant testing employers need to be careful with. Certain other pre-employment testing may be found unlawful regardless of intent, such as requiring medical examinations of applicants before providing them a conditional offer of employment.

With due caution in mind, consider the following when deciding whether to begin using or continue using pre-employment testing procedures:

  1. Most obviously, but also most importantly, never use testing or any other selection procedure for the purpose of “weeding out” members of a protected class.
  2. Do not casually adopt testing procedures, and make sure decisions regarding testing are made at high levels of your company after consulting with counsel.
  3. Make sure that any tests or selection procedures that you use are valid and reliable. That is, make sure that the test actually measures components or characteristics that are necessary for the job position, that the test is truly useful in predicting success on the job, and that it yields consistent results. Do not assume that a test-maker vendor’s supporting documentation is entirely accurate – do your own investigation as well.
  4. Be vigilant as to changes in job requirements so that you know when you need to update test specifications or selection procedures.
  5. Accommodate people with disabilities by modifying the test or testing conditions or eliminating the testing requirement if necessary.
  6. Do not rely solely on tests for making decisions about candidates; use them as one component of your overall selection procedure.

If an employer remembers the above tips when evaluating current testing practices or when considering implementing new selection procedures, it will go a long way towards making sure the company gets a passing grade of its own.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author – Sarah L. Hinkle:

Sarah Hinkle focuses her practice in the areas of labor and employment law.

304-262-3542 / www.steptoe-johnson.com

Have You Been Sued…or Are You About to Sue Someone? Ten Questions to Ask Your Attorney

As recently posted on the National Law Review –some great “How To” advice from Anthony C. Valiulis of Much Shelist Denenberg Ament & Rubenstein P.C. on things to consider when retaining an attorney & law firm: 

Like a visit to the dentist, litigation is often necessary but seldom fun. It takes time, interferes with your business, disrupts your life, and can exact a substantial monetary and emotional toll. So if you have to go down the litigation road, choosing your travel guide is one of the most important decisions you will make. In a very real sense, your legal counsel will lead you on this journey. Therefore, you need someone who is not only skilled but also compatible with you and right for the case.

Despite the stereotypes, attorneys are as diverse as any group of people can be, each with a different approach and level of knowledge and experience. Most of us, however, do share one characteristic: we strive zealously to represent the interests of our clients.

Within that context, how can you determine which attorney is best for you? Although there are no guarantees (and if a lawyer tells you differently, immediately start looking for someone else), here are 10 questions you can ask to determine if an attorney is right for your matter.

Question 1: Why Should I Retain You or Your Firm?

Attorneys are not one-size-fits-all. You need a lawyer with whom you are comfortable, who also has the knowledge and skills necessary to represent you well and can differentiate himself or herself from other lawyers. To use a cliché, you need someone who can add value. After all, adding value for our clients is what lawyering is all about.

Although attorneys approach this challenge in many ways, generally it all comes down to one thing: helping you solve your problem in the most efficient and cost-effective way possible. This is especially true in litigation, where the emotional cost often exceeds the financial one. Thus, it is vitally important to discuss up front your attorney’s perspective and strategy. How will he or she proceed in order to accomplish your goals? Of course, that presupposes that you have already established those goals, which brings us to the next question. 

Question 2: How Strong Is My Case?

This is perhaps the most obvious and most important question to ask. It’s also what you want to know more than anything else, with the possible exception of Question 4. This is your opportunity to learn exactly what your lawyer believes about your case, which can be quite revealing in other ways. For example, if a lawyer tells you that you have a “slam dunk,” pick up your things and leave. There are no slam dunks! Why? Because there is no certainty whatsoever when a case goes before a judge, a jury, an arbitrator or any other third party.

Question 3: What Are the Weaknesses?

Here is the flip side to Question 2, and it is just as important. What you want from your attorney is an honest assessment of the strengths and weaknesses of your position—not only why you are likely to prevail but also why you might lose. As human beings, we tend to view everything through a self-serving filter. Your lawyer, however, should strive to see beyond that filter in order to accurately evaluate your case.

Question 4: How Much Will It Cost?

When you embark on litigation, it is important to decide whether it makes economic sense to fight to the end or settle as quickly as possible. In other words, if you have a $50,000 dispute, you need to know if it’s going to cost you $5,000, $15,000 or $40,000 to resolve it.

In a litigated matter, your lawyers might not be able to provide much certainty with respect to cost. But they can share their billing rates and estimate how much time they expect to devote to the case. This information will help you make an informed decision about how to proceed. If you are considering a lawyer who is not willing to give you an estimate or budget, find someone else who will.

Question 5: Will You Consider Alternative-Fee Arrangements?

Although lawyers generally charge by the hour and that traditional approach works for many clients, there are other methods of billing. For example, many attorneys are willing to handle certain matters on a blended-rate, flat-fee or contingent basis. Others might be willing to discuss an arrangement based on the result achieved.

Question 6: How Much Relevant Experience Does Your Lawyer Have?

You need to feel confident that your lawyer has the skills and knowledge to effectively represent you in the matter at hand. Likewise, your lawyer should want you to feel comfortable with his or her ability to represent you effectively. Therefore, don’t be shy about asking your attorney how much experience he or she has related to your particular dispute.

Question 7: Who Will Handle My Matter?

Let’s say you’ve met with a lawyer, were impressed with her capabilities and retained her to represent you. Will it really be that lawyer who acts on your behalf, or will your matter be relegated to a less experienced associate or maybe even a paralegal? You can’t know for sure unless you ask. Of course, when you select an attorney from a firm like Much Shelist, you are really hiring a team of lawyers at different billing rates, which may be advantageous on multiple levels. Research, for example, can often be done better and less expensively by associates or younger partners. If, however, you want a particular lawyer to handle everything, you should make that clear up front.

Question 8: Where Is the Engagement Letter?

Once you have decided to retain a lawyer, make sure there is an engagement letter signed by both you and the attorney. An engagement letter protects the client as much as, if not more than, the attorney. It should set forth the fee structure, the scope of the engagement, any requirement for an up-front retainer (including the amount), how out-of-pocket costs will be handled, what other charges are involved and so on. If there is anything in the letter that you do not understand, make sure the attorney explains it to you. Most importantly, your lawyer should never dismiss the engagement letter as “just boilerplate.” If he or she does, then you should seriously consider getting another lawyer. Ultimately, the engagement letter constitutes a contract between you and your attorney and is invaluable in establishing the parameters of the relationship.

Question 9: What Charges Should I Expect to See on My Bill?

This may seem like an obvious question, but in many respects, it is not. Generally, if you phone your attorney, you are going to be billed for that call. If your attorney has a substantive discussion about your matter with someone else in his or her office, you will usually be billed for that conference. If an associate does research on your file, you will likely be billed for that work. If a paralegal reviews documents or organizes a file, you will probably be billed for his or her time. There is nothing particularly surprising about these examples, but what about charges for electronic research like Westlaw? How about faxes or photocopies? All of these billing issues should be addressed in the engagement letter. And if it includes something you do not like, discuss it with your attorney before you sign on the dotted line.

Question 10: What Is the Likely Outcome?

Although your attorney will not be able to answer this final question with certainty—especially during the initial stages of the matter—it is important to discuss the issue right away. As I’ve said before, there are no guarantees, but experienced counsel should be able to give you an idea of what might take place down the road. Ultimately, there is no benefit to you or your relationship with your lawyer to have unrealistic expectations.

This list of questions is by no means exhaustive, and that’s a good thing. You should never hesitate to ask your lawyer anything, no matter how big or small. We are here to help, so ask away!

© 2010 Much Shelist Denenberg Ament & Rubenstein, P.C.