Category: Uncategorized

Limelight Networks v. Akamai Tech. – Supreme Court Cert. Denied

Yesterday, the Supreme Court declined to hear Limelight’s petition for cert. on the question of whether an accused infringer may be held liable for direct infringement of a claim to a method where multiple parties perform the steps of the method.

On August 13, 2016, the S. Ct. remanded the en banc decision of the Fed. Cir. that set forth the law of divided infringement under s. 271(a), and found that Limelight directly infringed U.S. Pat. No. 6,108,703. The court held that an entity will be found responsible for others’ performance of method steps “(1) where that entity directs or controls others’ performance, [or] (2) where the actors form a joint enterprise.”

As well as in the case of agency or contractual direct infringement, the court concluded that liability under s.271(a) can also be found what an infringer “conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner and timing of that performance.” The infringer must have the right and ability to stop the infringement.

In those instances, “the third party’s actions are attributed to the alleged infringer such that the alleged infringer becomes the single actor chargeable with infringement.” The element of direction or control is a question of fact, as is the presence of a joint enterprise.

If the facts support the presence of a joint venture, all parties involved can be found liable for direct infringement, “as if each were a separate actor.”

The court found that Limelight directed or controlled its customer’s performance of each remaining method step: “tagging and serving content”). Don’t ask me what this means. See slip. op. at 8-9. Of course, this decision is relevant to a drug company instructing a physician and, ultimately, the patient, via labelling and/or training, about how to use a drug or biological.

Article By Warren Woessner of Schwegman, Lundberg & Woessner, P.A.

© 2016 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

Red Stripe Prevails in Alcohol Beverage Labeling Class Action

The latest merits decision in the ongoing false advertising/labeling class actions appears here.  This case involves allegations that the labeling and marketing of Red Stripe Beer misleads consumers into thinking they are purchasing beer made in Jamaica from Jamaican ingredients.  In fact, production of Red Stripe for the US market moved to the US in 2012.  The Southern District of California’s Dumas v. Diageo PLC decision to dismiss the plaintiffs’ case gives hope that companies with alcohol beverage brands originating overseas can produce those brands in the US without facing significant litigation risk.

The plaintiffs brought their case under several California statues and also alleged negligent and intentional misrepresentation.  Central to the plaintiffs’ allegations were statements on Red Stripe’s secondary packaging and labeling that the beer was a “Jamaican Style Lager” and contained “The Taste of Jamaica.”  The plaintiffs also pointed to the labeling and packaging’s continued display of the original Jamaican brewer’s logo as evidence of deception.  Finally, the plaintiffs pointed to the label’s statement that the beer “embodied the spirit, rhythm and pulse of Jamaica and its people.”  Of course, the labels and secondary packaging did disclose that the US market beer was brewed and bottled in Latrobe, Pennsylvania.

Looking only at the complaint and before any discovery, the court dismissed the case, concluding that “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.”  More specifically:

  • The mere fact that the words “Jamaica” and Jamaican” appear on the packaging does not support a conclusion that consumers would be confused about the origin and ingredients of the beer.

  • The statements on Red Stripe were similar to those made with respect to a “Swiss Army knife” – just as “Swiss” modified “Army,” in this case “Jamaican” modifies “Style” and does not connote the actual place of production.

  • Red Stripe’s display of “Jamaican Style” and similar claims are similar to Blue Moon making a “Belgian-Style Wheat Ale” and Harpoon making a “Belgian Style Pale Ale.”

  • “Taste of Jamaica” is too vague and meaningless to form the basis of a false advertising claim.

  • Red Stripe presents different facts from the facts that give rise to the false advertising case involving Beck’s Beer, where the labeling and packaging stated “Originating in Germany,” “brewed under the German Purity Law of 1516,” and “German quality.”

  • Even though consumers may have already held an expectation that Red Stripe is brewed in Jamaica based on past production on the island, no legal authority places a duty on marketers to counter such pre-conceived notions.

On the basis of this reasoning, the court dismissed the plaintiffs’ complaint as a matter of law.  It did, however, dismiss the case “without prejudice,” which will give the plaintiffs 15 days (until April 21, 2016) to assert new claims that might survive dismissal.

The Dumas opinion represents merely one battle won (at least temporarily) in what will no doubt prove a long war over alcohol beverage labeling in the United States.  Nevertheless, it provides helpful reasoning that may eventually influence other courts and provide guidance to marketers in the future.

Article By Marc E. Sorini of McDermott Will & Emery

© 2016 McDermott Will & Emery

Lawyers in the United States Should Pay Attention to the Panama Papers

The Panamanian law firm that was the source of the “Panama Papers” says it was hacked, exposing its clients’ personal and financial data to the world.

For American lawyers subject to the Rules of Professional Conduct, the problems facing the Panamanian firm Mossack Fonseca should serve as a reminder to take extra care to secure electronic data.  Lawyers have an obligation under Model of Rule Professional Conduct 1.6(c) to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  This data security obligation was added to Massachusetts Rule of Professional Conduct 1.6(c) last year.

In the Panama Papers case, Mossack Fonseca blamed the hack on an “unauthorized breach of our email server.”  That should give American lawyers pause, even if they do not count the prime minister of Iceland, cronies of Vladimir Putin, or members of the Chinese Politburo among their clients.  Massachusetts lawyers should pay attention, and consider what would happen if their clients’ confidential information became publicly available.  Although exposure of such information might not make headlines, it could devastate clients if it fell into wrong hands.

What Constitutes “Reasonable Efforts?”

Rule 1.6(c) does not say what constitutes “reasonable efforts.”  But Comment 18 to the rule says:

[f]actors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Comment 18 also states that a lawyer does not violate Rule 1.6(c) if someone gains unauthorized access to information, notwithstanding reasonable efforts to prevent the access.

Still, it would be embarrassing, or worse, for any lawyer to explain to his or her client – and, possibly, the Board of Bar Overseers – that confidential documents were exposed because they were held in the lawyer’s Hotmail account, for which the password was “password.”  Even if the password were stronger, lawyers must remember that someone who knows the answers to a security question might be able to gain access to web-based email.  If the question is something like: “Where did you go to high school?” sensitive client information might be at risk to anyone who knows anything about you – or is willing to invest in a little internet sleuthing

The need to protect client information is not lessened if a lawyer’s clients are not public figures.  Adversaries, business competitors and jealous ex-spouses, among others, may be highly interested in a client’s confidential electronic files, to say nothing of identity thieves and fraudsters.

Lawyers and firms should tailor their data security to their clients and their practices.  There are numerous actions lawyers can take to protect their data, but some of the simplest and most non-burdensome steps include the following:

  • Adopt an information security policy that covers all information systems, including e-mail, voicemail, text messages, computers, cellphones, remote access and passwords, among others.

  • Use difficult passwords. A random collection of characters is far stronger than an English-language word.  Letters and numbers can be added or switched to make the password easier to remember; for example, the dog’s name – “skippy” –might become “$k1ppy!” Change passwords regularly.

  • Lawyers who use web-based email should check their security questions, and make sure they are not obvious and well-known to others. All web-based email should also utilize two-step verification.

  • Consider retaining an outside IT expert to make sure your security is as strong as possible.

  • Finally, use common sense, and train your employees to do the same. For example, do not click on suspicious links and attachments, or keep your password written down in an obvious place on your desk.

The upshot is that it is better to consider – and possibly upgrade – your security before a hack, rather than to have to defend it afterwards.

Article By Thomas W. Kirchofer of Sherin and Lodgen LLP

© 2016 SHERIN AND LODGEN LLP

Six Biofuel Trade Associations Write Congress To Extend Advanced Biofuel Tax Credits

On April 5, 2016, the biofuel trade associations Advanced Biofuels Business Council, Algae Biomass Organization, Biotechnology Innovation Organization (BIO), Growth Energy, National Biodiesel Board, and Renewable Fuels Association sent a letter to House and Senate Leaders asking for a multiyear extension of advanced biofuel tax credits. The six organizations are specifically asking that the Second Generation Biofuel Producer Tax Credit, the Special Depreciation Allowance for Second Generation Biofuel Plant Property, the Biodiesel and Renewable Diesel Fuels Credit, the Alternative Fuel and Alternative Fuel Mixture Excise Tax Credit, and the Alternative Fuel Vehicle Refueling Property through the Protecting Americans From Tax Hikes Act of 2015 are extended before they expire at the end of 2016. Other energy production tax credits have been extended, and the biofuel trade associations argue that extending certain energy tax provisions and not others creates investment uncertainty across the energy sector, and puts biofuel producers at a disadvantage.

Article By Kathleen M. Roberts of Bergeson & Campbell, P.C.

©2016 Bergeson & Campbell, P.C.

H-1B Cap: The Receipts Are Trickling In!

The July 2015 Visa Bulletin Brings Little ChangeOn April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master’s visas for the fiscal year. Another record-breaking year: USCIS received over 236,000 H-1B petitions during the filing period.

This is the fourth consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:

FY 2017

236,000

FY 2016

233,000

FY 2015

172,500

FY 2014

124,000

On April 9, USCIS ran the computer-generated lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 Master’s cap. As such, USCIS began issuing Receipt Notices for those cases that “won” the lottery this week. They are slowly “trickling” in. Once the case is “receipted” it still must undergo review and adjudication by USCIS. USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

Any cases not selected in the lottery will be returned with their filing fees.

We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

Introducing the New SmartExpert: Self-driving Car "Drivers"

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state.  Why?  Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right.  If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

Introducing the New SmartExpert: Self-driving Car “Drivers”

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state.  Why?  Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right.  If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

Coca-Cola Bottling Of Mobile to Pay $35,000 to Settle EEOC Sex Discrimination Suit

Company Refused Job to Experienced Applicant Because of Gender, Federal Agency Charged

Coca-Cola Bottling Company of Mobile, a manufacturer, bottler and distributor of soft drink products, will pay $35,000 and furnish other significant relief to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to EEOC’s suit, Coca-Cola Bottling Company of Mobile, a subsidiary of Coca-Cola Bottling Co. Consolidated, refused to hire Martina Owes, an applicant for two vacant warehouse positions, because she is female. While Owes had the required warehouse and forklift experience, the company chose to hire less qualified men for the available positions. EEOC also charged that, by not preserving all application materials related to those positions, the company violated federal record-keeping laws.

Sex discrimination violates Title VII of the Civil Rights Act of 1964, which protects employees against discriminatory practices based on race, color, national origin, sex, and religion. EEOC filed suit in U.S. District Court for the Southern District of Alabama, Mobile Division (EEOC v. Coca-Cola Bottling Co. Consolidated et al., Case No. 1:15-cv-00486) after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

The consent decree settling the suit, entered by U.S. District Judge William H. Steele, provides that Coca-Cola Bottling will pay Owes $35,000 and prohibits further discrimination. Also, the company is required, for three years, to conduct annual training of its Mobile employees on discrimination and retaliation, develop new or revised anti-discrimination policies and a written hiring process, and designate a director-level employee to coordinate its compliance with anti-discrimination laws and compliance with the decree.

“Employers are required to provide women with equal employment opportunities, and that includes jobs that traditionally have been dominated by men,” said Delner Franklin-Thomas, district director of EEOC’s Birmingham District Office, which has jurisdiction over Alabama and portions of Mississippi and Florida. “We appreciate Coca-Cola Bottling’s desire to cooperate with EEOC early in the litigation process to resolve this matter.”

EEOC Birmingham Regional Attorney C. Emanuel Smith, said, “EEOC will continue to litigate when necessary in cases involving arbitrary and unfair barriers to equal opportunity in the workplace based on sex. The law requires that female applicants be judged on their qualifications and not passed over because of their gender.”

The elimination of recruiting and hiring practices that discriminate against women, racial, ethnic and religious groups, older workers, and people with disabilities is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

EEOC’s litigation and settlement efforts were led by Senior Trial Attorney Gerald Miller and Trial Attorney Christopher Woolley of its Birmingham District Office.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at www.eeoc.gov.

You can read the original article on the EEOC’s website here.

Article By U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

OCC Releases White Paper Discussing Plans For Understanding and Evaluating Financial Technology Innovations

The Office of the Comptroller of the Currency has released a White Paper that discusses the agency’s attitudes and approaches to developments in financial technology, and to the associated innovations that the fintech industry has brought, and continues to bring, at an ever-increasing pace, to banks and others in the financial-services industry.

Fintech innovations come both from within the financial-services industry and from nonbank companies, which may want to offer their products or services as vendors to financial institutions, or, instead, partner with such institutions in offering new services to bank customers.

The White Paper enumerates eight “guiding principles” that the agency says it has formulated “to guide the development of its framework for understanding and evaluating innovative products, services, and processes that OCC-regulated banks may offer or perform.” The term “responsible innovation” occurs throughout the principles, and, indeed, throughout the White Paper.

The principles reflect the OCC’s longstanding emphasis on the importance of such matters as assuring fair access to financial services and fair treatment of customers; giving due attention to effective risk management and preserving safe and sound operations; encouraging all banks to integrate responsible innovation into their strategic planning; promoting effective outreach; and collaborating with other regulators.

Speaking at the American Banker Retail Banking Conference in Las Vegas on April 7, Comptroller of the Currency Thomas J. Curry discussed the White Paper, the agency’s development of it, and some of what the agency hopes it will achieve: “We at the Office of the Comptroller of the Currency want to support efforts by federal banks to innovate, but we also want to be sure that they do so in a responsible way that doesn’t threaten the safety of the system or the financial well-being of bank customers.” He added: “Banks engaged in responsible innovation need to strike the right balance between providing benefits to consumers and businesses with sound risk management.”

The agency says it is considering several alternative structures and methods for understanding and evaluating the new products, services, and techniques, and the related innovations available through use of fintech devices and applications, and how the regulatory and supervisory framework administered by the OCC, and the business plans of the institutions that it supervises, most effectively and efficiently can assure that the benefits of these innovations can be made available to customers, while preserving safety and soundness, and without limiting or restricting the public’s access to financial services, or putting at undue risk the protection of privacy and data security that both commercial and consumer customers of banks now demand.

“Banks of all sizes will need to ensure appropriate risk management plans are in place when considering new products, services and technologies, using models and managing third-party relationships,” Curry said in his Las Vegas speech. “The OCC’s framework will describe ways that national banks and federal savings associations identify and address risks resulting from emerging technology.”

One proposal under consideration is the creation by the OCC of a centralized office on innovation. Presently, according to the paper, “banks and nonbanks use a variety of formal and informal entry points to communicate with the OCC”—one bank that’s interested in an innovative payments process may approach its examiners, for example, while another may seek guidance by inquiring of OCC legal staff whether it would need to obtain a legal opinion before offering or using a new process, and another may “contact one of the agency’s experts on credit, compliance, payments, cybersecurity, or modeling. While providing flexibility, the current process can result in some inconsistencies and inefficiencies.”

The White Paper concludes with a series of nine questions on which the OCC requests public comment, covering such areas as what steps the OCC can take to facilitate responsible innovation by banks and thrifts, what the agency can do to help community bankers better incorporate innovation into their strategic planning processes, and what forms of outreach and information-sharing are most effective.

The paper notes that some fintech innovations have been successful in expanding the access of underserved customers to financial services. Survey data indicate that underserved communities are more likely to use mobile banking technology than “fully banked” communities. Moreover, it adds: “Current innovations in the financial industry hold great promise for increasing financial inclusion of underserved consumers, who represent more than 68 million people and spend more than $78 billion annually.”

At the same time, the paper points out, “Brick-and-mortar branches are a stabilizing force in low-income neighborhoods, and innovative technology should not be seen as a substitute for a physical presence in those communities.” The paper says that the agency may issue guidance “on its expectations related to products and services designed to address the needs of low- to moderate-income individuals and communities,” including “promoting awareness of other activities that could qualify for Community Reinvestment Act consideration.”

ARTICLE BY George A. LeMaistre, Jr. of Jones Walker LLP
© 2016 Jones Walker LLP

Asking for Business From a Distance

Legal services are increasingly provided to companies located across the country or even across the globe from the firms that serve them; and this creates a new level of complexity when it comes to business development. Maybe you and your team flew to Dallas or Tokyo to make pitch. You think it went well, but now you need to figure out how to follow up effectively long distance. Similarly, you may want to do additional work for an existing client located a thousand miles away.  Should you fly out and see her, or is reaching out by phone sufficient? Such dilemmas are common in the modern world.  Here are a few factors to consider when asking for business from a distance.

Asking for business feels a lot weightier for the attorney than for the client.

An attorney may think that following up after a pitch or discussing the possibility of starting a new matter is a complex, delicate conversation and, therefore, it would be better to communicate in person. It is important to remember, however, that the conversation will probably feel very different to the attorney than to the client. A lawyer may find initiating such discussions to be stressful, like they are an evaluation of one’s expertise, worthiness, or likability.  Yet, if the lawyer is doing it well, such a conversation should not be dramatic or difficult from the client’s perspective. If anything, it should be the opposite. The attorney is offering help, giving clients a chance to talk through the challenges they are facing, and hopefully bringing empathy, an outside perspective and relevant expertise, all of which is appreciated.  If there is a good fit between the client’s needs and the legal services offered, the discussion naturally progresses towards a sale, regardless of whether one is on the phone or in person.

Words don’t matter as much as tone of voice.

Experience tells us that we can sense a great deal about another person’s mood and attitude simply from hearing his or her voice telephonically. Think about the last few times you spoke to customer service representatives on the phone. They generally speak from call scripts. Did you notice that different people can communicate the same message, even use the same exact wording, but you as the customer can hear it very differently depending on who is speaking? One person may seem kind and approachable, another may seem “checked out” and uncaring, while a third may seem cold but capable. Our desire to do business with a company is heavily influenced by our sense of trust and connection to the customer service person—and that is largely a matter of tone, pace, intonation and other intangible factors that we pick up on almost instantaneously when interacting with others but which we are less attuned to in ourselves.

We have all heard that only 7% of your message comes through your words, 38% from voice and vocal cues and 55% from body language.  This statistic, based on Dr. Albert Mehrabian’s research, is frequently quoted out of context and applied to situations far outside the scope of the research, such as giving a speech or arguing a motion in front of a judge. Nevertheless, in situations such as business development where intent, credibility and character matter most, the tone of voice does make or break our effectiveness. The fact that we can’t rely on visual input doesn’t change this; it only makes the vocal segment of the non-verbal communication that much more important.

Your tone and other vocal cues are determined by your intention, attitude and approach. 

Even if you accept the premise that clients’ impressions of, and desire to do business with, you will be heavily influenced by your voice, you still may be wondering what to do about it. Some people recommend speaking slowly, remembering to breathe, and varying pitch and pacing, all of which is good advice, as far as it goes. However, it is like a doctor addressing the symptoms rather than the underlying cause. When a lawyer speaks too fast or forgets to breathe, it is generally because he is thinking about himself, his own nervousness, or his desire to achieve a particular outcome, rather than about the client and her needs.

When a lawyer goes into a conversation genuinely focused on the client and seeking to understand her challenges, desires, and perspectives, he naturally communicates better. The intention to be helpful and collaborative generally pushes aside self-doubt and makes people more relaxed, flexible and responsive. Consequently, one of the most valuable things you can do before calling a client or potential client to ask for business is to make a deliberate choice about your intentions and how you want to approach the conversation.  This creates a subtle but important shift in your demeanor and attitude, which automatically alters the tone, pitch and other vocal nonverbal signals and, in doing so, enables you to have more effective conversations, even at a distance.

Individuals’ affinity for phone conversations varies.

While some people hate the telephone, many people are just as comfortable on the phone or teleconference as they are in person. Don’t assume that your client or prospective client has the same attitude that you do. Look to the client’s behavior as a guide. Does he prefer to wait for in-person meetings, or does he like to talk through things by phone? Also, if you have any doubt, you can always ask him directly. For example, you could say, “I have an idea for how my firm may be able to help you with _______.  I’m planning to visit you in July. Would you prefer to wait until then to discuss this or would you rather talk sooner?” People like having a choice, and the most effective professionals of any kind are those who understand that people are different and adapt their approach accordingly.

Most of the time, any form of asking for business is preferable to none at all.

A final factor to consider when asking for business from a distance is that while attorneys often worry about finding the right words or the right moment to follow up or initiate a conversation, this is one of the many situations where it is better to just do it.  No matter how perfectly you conduct the conversation or how great your relationship, some companies will need your services and some will not.  All you can do is ask.  While this is no different than the situation when following up with clients at a closer proximity, I find that the distance becomes one more rationale for not having those uncomfortable conversations. Human beings tend to put off activities and discussions that feel awkward and our minds are excellent at finding excuses.  Don’t turn distance into an artificial obstacle.

Article By Anna H. Rappaport of Excelleration, LLC

© 2008-2016 Anna Rappaport. All Rights Reserved