Category: Legal Technology

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of  Baker Donelson provides some great insight on discovery issues related to social media sites: 

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules.  If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites.  Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing.  With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation.  But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians.  Finally, the retention policy or schedule of a business does not affect data located on social media sites.   When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best.  Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden.  Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites.  The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media.  In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party.  A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.”  In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation.  The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice.  Additionally, Adobe may be used to capture web images in static format.  These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence.  Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites.  The user has the right to select privacy preferences on his social media sites.  Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation.  Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  In this case, the court compelled production of relevant content from social media sites.  The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.”  The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace.  The court ordered the plaintiff to produce the content that was relevant to the case.  The plaintiff argued that requiring such production would infringe on his privacy.  However, the court held that the expectation of privacy is not a basis for shielding discovery.  In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA).  In this case, the court was reluctant to allow discovery of private social media email communications.   The case involved a copyright infringement claim.  Audigier subpoenas the private social media messages of Crispin.  A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display.  However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting.  This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available.  Therefore, these messages cannot be subpoenaed in civil litigation.  In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).  TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings.  The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted.  The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud.   For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC).  Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content.  (Lorraine v. Markel Am. Insur. Co.).  Admissability remains  an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites.  Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses.  Many individuals do not lock profiles or use privacy settings; therefore,  all postings, messages, comments, etc. are open to the public.  Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do?  Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests.  Start with a document request asking for all postings and messages that are related to and relevant in the litigation.  One can also consider requesting an access wavier to social media sites that allow for complete access to the site.  LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory.  Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization.  Then, set policies to help educate all employees of the risks regarding social media usage.  Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data.  Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan.  Start early within the litigation.  Draft standard document requests, waiver forms or interogatories around social media production.  Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

Legal and Risk Management Implications of Cloud Computing

We’ve been seeing a whole bunch of things at the National Law Review about the legal risks and risk management issues related to cloud computing.  Accordingly, we’d like to share some of the better articles we’ve come across on the NLR and on Twitter…

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

Are You Ready For the Cloud? from Baker Donelson

Lawyers Should Not Be Wary of SaaS and Cloud Computing by Niki Black of Lawyerist.com

What Cloud Computing Really Means from InfoWorld.com

What Lies Ahead? Business and Legal Issues in the Coming Decade from Much Shelist

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

The Cloud and Your Data from Risk Management

The Legal Issues Around Cloud Computing by Amit Agarwal of Digital Inspiration

Privacy and Information Security for Emerging Businesses by Poyner Spruill

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Putting Cloud Data Storage Providers to the Test by Risk Management

7 Questions For Any Cloud Based Service from the Legal Typist, Inc.

How to Evaluate Cloud Computing Providers by Jason Baker – Data Center Knowledge

Copyright ©2010 National Law Forum, LLC

Are You Ready For the Cloud?

Meredith L. Williams of Baker Donelson is the National Law Review’s Business of Law Featured blogger.  Meredith discusses the pros and cons of cloud computing for law office operations. 

Introduction

Is cloud computing a shift or is it the next natural step in strategic business development?  Is the cloud  the right answer for your law firm or company?  Is the cloud the right answer for all applications and infrastructure or is it just a piece of the puzzle?  These are a just few of the many questions law firms and companies are asking themselves as they consider a move to the cloud.  There are many reasons why cloud computing is a very seductive solution to the cost cutting environment we find ourselves dealing with today.  However, there are many issues, legal and organizational, that must be considered to determine the validity of the cloud for each environment.

The “cloud” means different things to different people.  For most of us, we have been using cloud computing technology for years without defining the term.  Example cloud environments are extranets, legal research websites, online file storage and much more.  By definition, the cloud is a metaphor  referring to internet based computing in which applications, data, software or network functions are stored on remote servers.  There are presently three types of cloud environments:

  1. Infrastructure as a service or hardware cloud which serves as a data center,
  2. Software as a service or the software cloud, and
  3. Desktop applications operated within a hardware cloud.

Although we have been using the cloud in the past, the difference at this time is the potential of using the cloud for core business applications.

Why the Cloud?

For strategic business leaders, the cloud offers a way to minimize cost, increase mobility, prepare for disaster recovery, offer device flexibility, collaborate on demand and reduce downtime. Let us take a look at the different sections of a law firm and see how the cloud can affect the overall business functions.

In the information management world collaboration is key.  The more a firm can offer needed collaboration tools with a client, the more the client becomes entrenched in that firm culture.  The cloud provides law firms with a unique opportunity to offer clients a collaborative environment in an on-demand system.  The client can truly be connected with the law firm from anywhere with any device in the world.

Fewer applications or errors and easier upgrades are phrases application and support specialists love to hear.  The cloud environment can make them a reality.  The cloud offers software functionality to users regardless of locality or device.  Therefore, fewer setups, downloads and support hours are spent dealing with application changes and upgrades.  This new environment aids a law firm in flexibility allowing the firm to change applications as rapidly as the needs of the users change.

The main concern of most in the applications world is support.  How do current structured IT staffs support an environment when the applications are not local?  What will be the skill set of an applications and desktop support staff individual with applications in the cloud? These are areas IT departments must address before making the move to the cloud.

The cloud offers business and cost savings in a very unique way.  The upfront costs of moving to the cloud are large.  However, over time the cost savings from increased efficiency and reduced hardware, software, support and downtime help to offset the upfront costs.  The biggest hurdle for cloud computing may not be cost but instead data security.  It is easy to argue that a law firm or company can protect its data when it lives in a server room on site with a locked door but how do IT departments protect their data when it sits thousands of miles away on servers not owned by the company?  Law firms will need to determine if this is a deal breaker or is this an area of contract negotiation with the cloud provider.

What are the contractual issues?

Now that we see the potential of cost savings, flexibility, mobility and more,  we will address the contractual issues and concerns each law firm will need to consider.  The first step in any contractual negotiation is due diligence of both parties.  Law firms must evaluate news, law suits, current events, financial stability, customer references, provider longevity and any other possible information that could affect the contractual obligation fulfillment.  Only then can the contract negations begin.

The largest areas of concern in the cloud are data security and privacy. A demonstration of these concerns is seen in the 2009 complaint filed with the Federal Trade Commission (FTC) by the Electronic Privacy Information Center (EPIC) regarding cloud services of Google.  In the complaint, EPIC alleges Google did not adequately safeguard the confidential information obtained from clients.  This complaint raises serious questions for the vendor to address and draft into the contract.  Questions to ask include where the data is stored, what are the physical security measures to protect the data, is a shared resource used in storage, what is the security during transmission, what are the disaster recovery measures and what are security incident response times. In addition, questions around data migration and transition should be addressed.

Another issue to consider is legal compliance.  Highly regulated industries such as health care facilities falling under HIPAA must think twice about moving information to the cloud.  Vendors are expected to maintain the data at the same standard required of the company.  This can become a contractual deal breaker if the vendor will not agree to the higher standards.   The regulated industries affect law firms that maintain work product and client information for clients working in these regulated industries.  Law firms must now consider the standards guaranteed to their clients when moving to the cloud and verify the vendor will agree to that level of maintenance.

A point that is only just beginning to emerge in the cloud discussion is the level of control and ownership of the servers and data existing on the servers.  Questions to consider are data termination and vendor claims and rights to the data.  The control influences discovery, liability and litigation hold processes.  Negotiation can help prevent future claims of spoliation.

Performance, reliability and service features shape the day to day experience of users in the cloud.  Therefore, inquiring about disaster recovery set up, scalability of applications, process for upgrades and feature releases, suspension of services, offline capabilities, base subscription services and add-on services of applications can affect the contract obligations of the vendor, expectations of the client and most importantly cost of the contract.

Global performance and legal compliance of data across international borders are concerns for many large law firms.  Is the vendor only offering a cloud solution that is U.S. based?  This is a discussion point for the contract and can possibly be a deal breaker when adhering to EU standards of compliance.

All of the above contract negotiation points lead to the largest decision, cost.  What is included in the cost of the cloud services?  What is not included?  And the final and most important question to ask, whether the move to the cloud is a benefit if the law firm already owns the software licenses and hardware to maintain the status quo.

What will the courts be deciding?

The courts are well aware of the cloud computing movement.  In Oregon v. Bellar, 217 P. 3d 1094 (Or. App. 2009), the court took note that 69% of U.S. residents that are online utilize at least one cloud site. Due to the unique custodial issues involved with cloud computing, the cloud can present challenges to e-discovery and jurisdictional questions. Decisions concerning these issues are just starting to appear but with conflicting rulings.  The question of what the courts will decided has yet to be seen.

What will the future bring?

As we stated earlier, many of us have been using the cloud for years without calling it the cloud.  The difference surrounds the movement of core business functions such as email and document management to the cloud.  In the past, these features have been kept at a local level.  But as you see above, this is changing.  As more and more cloud providers make their way to the forefront, this movement will only increase.  The question is whether the cloud is the right solution for your law firm?

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

About the Author:

Meredith L. Williams is Baker Donelson’s Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 901-577-2353 / www.BakerDonelson.com

 

 

Avoiding Ambiguity in Patent License Agreements

National Law Review featured guest blogger James M. Singer of Pepper Hamilton LLP provides a great analysis of why companies need to take a very close look at the wording in their licensing agreements. 

Recent publications indicate that intangible assets account for between 70 percent and 80 percent of the overall value of United States companies.  For companies that are involved in intellectual property licensing, a significant portion of this value is derived from licensing revenues.  Thus, the agreements in which licenses are granted must be carefully drafted to ensure that agreement clearly explains the rights and obligations of each party.

Unfortunately, too often companies start a license discussion with a form document that does not anticipate issues that the parties may encounter during the licensing relationship.  In addition, a slight ambiguity in the agreement can create headaches for both parties down the road.

In early November I will have the opportunity to speak about patent licensing at a CLE seminar, and when preparing my comments I started thinking about situations that I’ve seen where just a few words in the agreement caused the parties to significantly disagree about the scope of the license, the payment obligations, or other key terms.

For example, when licensing a patent, the licensee also may expect to receive a license to general categories of “related know-how” or “related intellectual property.”  For some companies, it may be relatively easy to identify exactly what falls into these general categories.  However, other licensors — such as large companies, research institutions, and contract manufacturers — may have a wide variety of projects that could be considered “related” to the licensed IP.  These licensors should avoid general categories like “related IP”, or at least narrowly define “related IP” to that developed by specific individual, at a specific time, or under specific conditions.

Another example can be found in a 2009 Seventh Circuit court decision of Sunstar Inc. v. Alberto-Culver Company, which reviewed an agreement whereby Alberto-Culver granted Sunstar a senyoshiyoken in certain trademarks.  The parties differed as to whether the word senyoshiyoken — a Japanese word essentially meaning “exclusive use right” — allowed Sunstar to vary the trademark’s font. The court analyzed the agreement and the term’s Japanese meaning and concluded that the right granted was broad enough to permit the licensee to change the font.

In a 2009 Federal Circuit decision, Corebrace LLC v. Star Seismic LLC, the Court considered whether a license to “make” a patented invention inherently includes the right to have the invention made by a third party contract manufacturer.  The court analyzed its own precedent, along with California state law and concluded that a “have made” right is implicit in a right to “make, use and sell” an invention unless the agreement expressly says otherwise.

The licensing of intangible assets is big business.  Situations such as these show the importance of carefully drafting license agreements to avoid ambiguity.

Unless the agreement is clear, the parties can find themselves interpreting the agreement in vastly different ways, with a significant revenues riding on whose interpretation is correct.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

James M. Singer is a partner in the Intellectual Property Practice Group of Pepper Hamilton LLP.  A registered patent attorney, Mr. Singer provides strategic counseling that helps businesses identify, acquire, license, protect and maximize the value of intangible assets.  Mr. Singer is the author and co-author of several publications, and he publishes IP Spotlight, a blog about topics relevant to the intersection of business and intellectual property law, at http://www.ipspotlight.com/. He also is a frequent public speaker on issues relating to technology and the law, and is recognized in Intellectual Asset Management (IAM) Licensing 250: The World’s Leading Patent and Technology Licensing Lawyers 2010. 412-454-5023 / www.pepperlaw.com

Fast Track Mastership of Legal Social Media- One Day Seminar / Webinar Oct. 21st Washington DC

The National Law Review would like to make you aware of a one day seminar / webinar presented by MyLegal.com designed to help lawyers gain a fast track mastership of legal social media. 

“I don’t think it’s too late to embrace social networking, it just rather disappoints me that other professions use these technologies, and lawyers for some reason are always rather late to the party. I have little doubt that within five years, social media, social networking systems, will play a central role in the daily lives of lawyers.”  Richard Susskind, September 2010.

The conference will be held on Thursday, October 21, 2010, at the Georgetown University Hotel and Conference Center in Washington, D.C. The conference will sell out at 300 on-site participants, so we will be introducing to the legal community a new technology called SMASH.  This technology aggregates the video stream of the sessions, along with the tweets, blogs and photos related to the conference, in one convenient landing page, allowing off-site attendees to experience the conference in a unique and interactive way.

By following the conference Twitter conversation directly from the SMASH page, off-site attendees can join in the live conversation while simultaneously seeing the speaker and checking out the live conference photos.  These are interactions and connections that might not otherwise have been made. 

After the conference, registered users will have access to the video of the sessions, along with the speaker presentations.  The sessions will also be available via iTunes, allowing registered users to listen and learn while on the way to work, running errands or housework (ugh)!  Multi-tasking is King!  After listening to the sessions, users can continue the conversation and commentary online.

Conference speakers / topics scheduled to be included are:

Matthew Asbell, Esq., Certified Legal Social Media Strategist will speak on the use and protection of trademarks in social media marketing.

Nicole Black, Esq., founder of lawtechTalk.com and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Larry Bodine, Esq., legal marketing expert and author of the Lawmarketing Blog will speak on business development with LinkedIn.

Steve Crandall, J.D., expert in digital media and business applications of social networks will speak on social media and the law.

Adrian Dayton, Esq., author of “Social Media for Lawyers: Twitter Edition” and the “Legal Marketing: Social Media Edition” blog will speak on starting to bringing in business with social media

Carolyn Elefant, Esq., creator of MyShingle.com, the longest running blog on solo and small firm practice, and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Sharon Nelson, Esq., author of the electronic evidence blog “Ride the Lightning” and co-host of the ABA podcast series “The Digital Edge:  Lawyers and Technology” will speak on on social media: ethical, compliance, E-discovery and liability implications.

Conrad Saam, runs marketing for Avvo, where he oversees the firm’s SEM, SEO, social media, online marketing, email and web analytics initiatives will speak on getting the most out of Avvo.

John Simek, co-author of “The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines” and “Information Security for Lawyers and Law Firms” will speak on on social media: ethical, compliance, E-discovery and liability implications.

For more information, conference schedules and registration forms, please visit:  http://mylegalmedia.com or call 253-405-7910.

How Extensive Is Your Experience? Insights on Law Firm Website Text.

Sonny Cohen of Duo Consulting   provides some food for thought about the same old – same old law firm website text. From Last Week’s Business of Law at the National Law Review: 

It is common for law firm websites to speak about themselves with hyperbole.  Self-important adjectives litter the site content.  Firm’s with exceptional people are one-upped by those with truly exceptional people.  Knowledge is only valid if it isgenuine. Experience, it seems comes in a variety of flavors as well. Some firms havewide experience.  For others it is deep experience.  But the most common benchmark of experience is that it be extensive.  Does your firm claim extensive experience?

Now it’s not that I don’t believe it when I read of a professional’s extensive experience. It’s just that this really doesn’t tell me anything. Worse, it doesn’t tell me anything different from the next guy who also has extensive experience. In fact, I would argue, my baseline is extensive experience. Now tell me how you’re better.

If you Google the phrase “extensive experience” there are over 6 million website pages where this value is claimed.  Using the search tool on several law firm websites, I discovered an “extensive experience” ratio of about  35% – 50% (# of appearances of “extensive experience”/attorney). So making this claim doesn’t so much separate one professional from the pack as much as it defines the pack. (Check your firm’s ratio and let me know!)

But the problem with this “extensive experience” language is not merely that it is linguistic laziness. Rather, this laziness results in failing to detail the richness, complexity and detail which this phrase references. And in so not doing, opportunities are lost for using this missing content.  You won’t be found in a search engine because, frankly, nobody is looking for “extensive experience.” And you won’t be discovered in your site search because, well, almost half of all attorneys have the same vague amount of experience. And it is all extensive.

Yes, I understand that, often, considerable descriptive detail must be concealed for privacy considerations.  Yeah, so? Content developers (copywriters) simply have to work harder to anonymize those involved. But, with a little effort, it is possible and essential to provide sufficient detail to make the stories comprehensible and relevant – and content rich.

Go the extra mile to gather the detail that elicits that sense of extensive experience. Boil it down to 3 to 5 cogent bullet points of industry and matter relevance. And post it. Your site visitor will have a better experience. This will result in more web pages consumed and possibly a longer time on the site with more opportunity for engagement. And search engines will devour the details for their ranking algorithms.  And you know how I know this? I have extensive experience.

© 1999-2010 Duo Consulting

About the Author – Sonny Cohen:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing

Sonny has over 30 years of business management and marketing experience,  He was a Serial entrepreneur and business marketer as an Apple Computer reseller; Internet partner in the business consulting firm Friedman, Eisenstein, Raemer and Schwartz; Director of Business Development for startup Primecom, an online e-commerce application service provider; and Director of Marketing for NextPart, Inc..  312-529-3003 / www.duoconsulting.com

Is Your Email Service Provider the Best?

This week’s Business of Law Guest Bloggers at the National Law Review are from Duo Consulting.  Sonny Cohen of Duo provides some good specifics on what to look for in an emailing service.

We recently received this question from a law firm marketer. I’ve edited it slightly for brevity and anonymity:

“Our email service is earning a big #fail at this point. We’ve used (Name Brand provider) with great success for small jobs and I’m talking with them about an enterprise solution. Do you have a provider you love (or a crappy one I should be warned away from)? What are the pros and cons of the systems you’ve used?”

The question, submitted to a listserv, engendered responses of affiliation with one ESP or another because they liked them, had no problems, or other good indications of service. But email delivery is more complex than you might first imagine and one size does not fit all. It is not (yet) a commodity. Personal recommendations of quality service or indications of being satisfied are a good start of an evaluation but an insufficient qualifier for engaging an email service provider. Like the acquisition of almost any service (legal or technical) it is important to understand requirements.

This is not intended to be comprehensive but merely to illustrate my point. Get this part and you might get there is more to the story. So let’s take a look at these simple factors:

  • What does your email subscriber base look like? gmail.com? or bigcompanyname.com?
  • How big a mailing would you execute at one time?
  • What is your mailing frequency?

If you send a lot of email frequently to corporate email addresses, the email reputation is critical to getting into the inbox of your subscriber. The better email service providers (ESPs) do 2 things. First, they manage the reputation of the email addresses from which they send the email (their IP addresses). The best ESPs offer you the opportunity to set up your own email address on their system. This will look something like email.lawfirm.com and email will come from something like sonny@email.lawfirm.com So while it still looks like your business, it is isolated from your domain (lawfirm.com) and from the email sending behavior or misbehavior of other clients of this ESP. Are you with me?

What happens if you send an email to a lot of people at the same domain such asxxxx@client.com where xxxx is lots of different people? When all these emails show up @client.com at one time, they look like spam. It may even look like an attack on the email server. The corporate email server receives these emails so you probably see these emails as being delivered. But they never make it into the inbox of the individual email recipients.

The better ESPs offer the capability to throttle the sending of emails so that they don’t look like a spam attack on an email server. It more closely resembles natural email commerce. Good commercial ESPs can afford to throttle the send of their emails. Spammers cannot because they’ve got way too much email to send. Are we getting esoteric yet?

ESPs are commercial companies and not a part of any website development company’s core competency. We have our favorites but we are not linked at the hip. Email services built into CRM systems such as Interaction, Salesforce, etc. are bulk mailers and do not have these deliverability features and a deliverability desk (personnel) focused on managing IP reputation. This doesn’t make them bad by any stretch. But it does affect deliverability performance.

Finally, the best ESPs are becoming messaging companies capable of delivering text messages and voice messages. If your communication strategy is to be first to market with targeted information, you may find that a text message alert system is a client service you haven’t yet considered. It is unlikely that your “economy” bulk email guy who is “friendly to deal with”  offers these extended and diversified contact capabilities. And maybe you don’t need it and never will.

Being able to track email performance is a common feature but it is not the test of a quality system. And these tools may not even provide accurate or complete information regarding the effectiveness of your email marketing campaigns. Even the best (i.e. more costly) ESPs come only close to precise. Third party firms like Return Path and Pivotal Veracity might provide this higher level of email evaluation and deliverability improvement.

Price is not always a guarantee that you will get better delivery services like what I’ve identified above. But a low price pretty much guarantees that you will not. For my part, I think reaching targeted contacts for a few pennies is a pretty good deal. If you are driven to cut that penny in half, you should at least know what you are getting and what you aren’t.

Whew! Hope this is helpful. Oh yeah, who do we use? ExactTarget. But remember. One size does not fit all. Think about your requirements.

Email open rate is only one indicator of email success

© 1999-2010 Duo Consulting

About the Author:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing.

312-529-3003 / www.duoconsulting.com

Twitter Do’s & Twitter Don’ts

As included in the Business of Law Section of the National Law Review Tom Ciesielka of TC Public Relations provides some solid Do’s & Don’ts for Twitter:  

With millions of unique visitors each month, Twitter is still at the top of the social media game. Some people still use Twitter to catalog boring details of the day. However, savvy and smart users realize Twitter’s usefulness as a concise way of marketing and reaching out to consumers and media.  Read the following do’s & don’ts to continue being one of the savvy and smart users.

  • Do make quality friends. Capturing an audience on Twitter is important, but don’t start following 857 people in one day. Start with a few friends, some movers and shakers of your industry, some legal reporters—listen to their tweets, and offer relevant replies. Then continue to follow a few new people week by week. Don’t just follow to follow, but actually think about why you want to connect with a certain person – think “strategic following.” Then contribute meaningful posts each day that others might find interesting as a way to build your own following.
  • Do protect your reputation. Twitter can be used to solidify your brand image, and it is an indispensable medium when crisis hits. Maintaining a Twitter account can help your firm when a damaging story hits cyberspace because a response on Twitter is often the fastest way to acknowledge the problem or issue. Failing to address any breaking news that involves your company makes you look at best, incompetent and at worst, guilty. Confidentiality laws may render tweeting a bad idea, but you should always pay attention to what’s happening and be prepared to do damage control when necessary.
  • Do be efficient. Building relationships on Twitter can facilitate communication about your legal specialties and expertise. However, using Twitter effectively and appropriately can be a time-consuming job, so try and implement applications that will help you be more efficient like TwitterFeed, TweetDeck and ÜberTwitter. It is also more efficient to partake in niche topic conversations about your practice areas instead of tweeting about the world of law in general. Specificity trumps generality.
  • Don’t be boring or narcissistic. Stick to tweeting about pertinent topics and find ways to express your personality through the links you post, rather than tweeting about how many briefs you’ve written that day or what color tie you’re wearing. Share links to legal headlines or comment on stories related to your expertise. Participate in discussion, reply to other users’ tweets, re-tweet their tweets—Twitter is not a one-person game, so don’t try to be the center of the universe.
  • Don’t turn off your censor. In cyberspace, a record of your most inappropriate tweet will live on in infamy long after you’ve cooled down. Never forget that what you say on Twitter can come back to haunt you, so rude or tasteless comments can come back to haunt you. Play it cool and don’t tweet anything you wouldn’t say in public; after all, Twitter is incredibly public.

Copyright © 2010 TC Public Relations

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

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

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