Tag: Law Offce Management

The Great Recession’s Effects on Law Firm's Business Development

This past week’s Business of Law Guest Blogger at the National Law Review was Christine Barth of Troutman Sanders LLP.  Christine provides some interesting insights on how firms of different sizes are reacting to business development challenges given the economy.  

The severe financial loss confronting Corporate America, due to the Great Recession, has also taken a tremendous toll on law firms.  The law firm marketing department has felt the impact — perhaps even more acutely than some other departments, in terms of resource strain.  Not only have our ranks been thinned, but “lawyers with downtime” often translates into increased demands on the marketing department.  I have witnessed a trend of renewed interest in strategic planning at several firms.  Considering the tendency of many law firms for “shotgun marketing,” the more limited the funds, the more crucial it is to have the focus that strategic planning brings.   I was curious about what my fellow legal marketers were seeing trend-wise and what they were doing differently, as a result of the recession. So – I asked them.

The marketing director of a small firm, just shy of 30 lawyers, told me, “we got back to the basics,” describing client-focused efforts such as increased client interviews, face-to-face contact between clients and attorneys, and expressions of gratitude to clients for choosing to do business with the firm.  This director prodded the lawyers at her firm to become increasingly involved with marketing initiatives, and encouraged them to be “more top-of-mind about marketing” by interacting with their clients, in person, on a frequent basis, and by becoming “marketing savvy” about what services their firm could cross-sell to these clients.

To accomplish this increased lawyer involvement in business development, the marketing director put together an informal program, creating two “100 Day Teams.”  Each team was comprised of six attorneys, all of whom varied in both age and practice area.  The teams were pitted against one another – the winning team being the one that could bring in the most new business with clients, either by recruiting new clients or by expanding work within existing client relationships.  The teams traveled coast-to-coast.  The results? An education for associates and a refresher course for mid-level to senior lawyers on how to bring in business, which they did – both teams successfully expanded business within existing client relationships and managed to bring in six new clients.  Their marketing director explained that the lawyers involved in this client pursuit “really lived the ‘talk,’” and remembered that “communication was key” when it came to business expansion.  She also noted that the lesson has since stuck, and the attorneys have “continued to walk the walk, which is making a difference” to the bottom line.

Another marketer at a large AmLaw Global 100 firm described more structure being put around initiatives that would get their lawyers face-to-face with clients.  One initiative, in particular, required each practice group to visit a target number of clients within a specified timeframe, with the primary goal of learning about the issues and concerns clients were facing during the downturn.  The marketing department created briefing materials on each client in advance of the visit for the attorney team.  Due to the compressed timeframe of the project, paralegals assisted the marketing team with the briefing materials.  When the program wrapped up, they had completed more than 170 visits to 143 companies.  Each visit team submitted a report detailing the visit and any needs the client may have raised, which was then compiled into reports highlighting all follow-up items and opportunities.

The marketing director at another small firm described how “at the moment the recession strangled the mortgage industry and bludgeoned investment banking,” his firm had already embarked on a solid social media initiative.  Acknowledging that social media is not well understood by most law firms, his goal was to “fit business development into time that falls between files, rather than try to wring out of a time starved practice the commitment to attend industry groups, speak expertly on legal topics and circulate in conferences and receptions.”   It wasn’t that their firm no longer encouraged those traditional marketing efforts; they just wanted “lawyers to make the most of at-desk downtime, too.”  He also mentioned moving to more online advertising than traditional advertising “so that could point to their participation in social media.”

As I asked around, some tactics were indeed universal.  Firms have slimmed down advertising budgets and are more carefully considering sponsorships and how those sponsorships can be leveraged.  Overall, my less than scientific poll revealed firms doing more with fewer dollars, but not skimping when it comes to face-to-face client efforts.

Originally published in the Fall 2010 issue of LMA Practice Marketing Newsletter Copyright 2010 Legal Marketing Association –The Virginias Chapter

The author  gratefully acknowledges the assistance of Fiona Carmody, an intern in the firm’s marketing department and student at University of Richmond in the preparation of this article.

©2010 LMA Virginias. All rights reserved.

 

Law2020™- What Will It Take for Law Firms to Thrive?

The Business of Law guest blogger at the National Law Review this week is Meredith L. Williams of Baker Donelson. Meredith examines three areas:  Law firm Technology, Firm Characteristics and the Skill set Lawyers and makes educated predictions on how successful will look.  

Law2020™ is the brainchild of Bryan Cave’s Strategic Technology Partner John Alber and the International Legal Technology Association (ILTA).  I have had the privilege of working with John and the ILTA organization over the past 4 years as a part of the conferencing planning committee.  This year I am serving as a Conference Vice-President for the upcoming international conference being held in Nashville, TN from August 21st – 25th, 2011.

The concept of Law2020™ is based upon an anticipation of the legal industry encountering the same market dynamics that have challenged the newspaper industry since 2000-2010.  The online environment changed newspapers’ production, employment and consumption.  The ACC Value Challenge has placed law firms under a microscope like that the newspaper industry is under, thus requiring the legal industry to make strategic changes to meet the new needs of clients.  Will law firms see a similar shift due to the economy and the changing client landscape?  What can law firms learn from the newspaper industry and those papers that survived?   The real question for forward-thinking law firms is not what will it take for law firms to survive in the year 2020, but what will it take to thrive?

We will look at this concept from 3 perspectives:

1.       What technologies will successful law firms need in 2020?

2.       What will be the characteristics of successful law firms in 2020?

3.       What will be the skill set of successful lawyers and staff in 2020?

What technologies will law firms need in 2020?

Technology will continue to play a large role, as it does today, in the advancement of law firms in the year 2020.  The key trends of technology will center on legal project management, alternative fee arrangements, transparency, and mobility.

The majority of law firms are starting to look at legal project management and alternative fee arrangement  tools.  Although these are new concepts for law firms, the thought process behind both is not new.  Lawyers are already using use many tools to help manage their files.  However, the idea of pre-planning is new;  taking a step back and visualizing the entire case or deal and mapping out the various steps and risks to reach an end result, as well as the cost of each step.  Tasking, budgeting and knowledge management tools will continue to grow exponentially over the next 10 years as a result of client desire for more understanding and control.  Intranets, budget tools, tasking applications, and other project management tools will be in high demand.

A lesson learned through the WikiLeaks scandal is that transparency of information is now expected, not just desired. The same can be said of law firm clients.  Clients crave both an advocate and a partner.  They want to understand everything that a lawyer is doing for them, they want the lawyer to fix problems, and they want the lawyer to help manage risk. Tools such as extranets provide the client with a full view of all case and deal materials; these are now being  used by many law firms in the U.S.  Over the next 10 years, clients will have access to risk management tools via these legal service platforms.  Clients will be able to use online legal services provided by law firms to run their businesses and comply with new regulations and laws.

The number one trend law firms must deal with is mobility.  The IPad, IPhone, Blackberry and other mobile device growth over the past few years is an indication of what individuals will be expecting in the coming years.  All people, including clients, want to access their applications and information when, where, and how they want.  As mentioned earlier, extranets and information sharing will increase over the next decade.  In addition, video capabilities and cloud computing will be prominent technologies for all law firms.  Law firms are expanding; however, there is a desire to cut expenses but keep the personal interaction.  Video via conferencing, web cams, etc. can make this happen.  Law firms are also looking to the Cloud as an opportunity to cut slim expenses and create complete mobile enviroments.  Whether a firm chooses to place all critical application in the Cloud or only a few,  Cloud use will continue to grow in the legal industry.

What will be the characteristics of law firms in 2020?

As technology changes over the next 10 years, so will the characteristics of law firms.  Much of this will be a result of the changing landscape of clients. Additonally, management will shift to accommodate a new generation with different expectations.  Other new resources include the virtual law firm, outsourcing, partnership track changes, increased risk sharing with clients and possible investments by non-lawyers.

Virtual law firms and lawyer mobility will increase.  Brick and mortar buildings will not go away, but we will see an increase of lawyers choosing to work for a firm while at home or in a different location.  In addition, legal process outsourcing will appear in law firms over the coming years.  Many firms are venturing into this field with document review and other e-discovery tasks.  Clients are pushing to keep expenses low and no longer want to pay large costs for firms to do document review tasks, when these can be outsourced for half the cost.

As noted in the alternative fee arrangements and transparency discussion, clients are looking for a partner to help bear some of the risk with their representation.  Many clients will not pay the typical billable hour.  They want to hire firms that are willing to share this risk and allow for different methods of payment.  Some want flat fees with exceptions or bonuses based upon the efforts of the law firms.  With these new methods of revenue for a law firm, the traditional path to partnership, currently based primarily on billable hour requirements, will change.  How law firms react to this will determine whether they retain their lawyer resources.

One law firm characteristic available in other countries is the ability to have law firm investment by non-lawyers.  Allowing non-lawyers to invest in the firm creates more loyalty to the law firm and the work the non-lawyer is doing for the firm and clients.  It is something US firms will consider as the economic shift continues to reshape law firms as we know it.

What will be the skill set of lawyers and staff in 2020?

We have now taken a look at what technologies will be used by law firms in 2020 and what a law firm will look like.  The bigger question is what skills will be required by lawyers and staff in 2020?  Efficiency of the law practice, a streamline business model, relationship building and marketing via social media and the capability to work via a new legal service platform will dominate the skills of lawyers in 10 years.

As discussed above, the economy and client expectations will drive many changes in the legal industry, including the skill sets needed to practice and support the practice. To be specific, lawyers will begin to hone their practices to increase efficiency.  This will be mainly a result of the increase in LPM and AFAs.  By breaking down different areas of law into steps and risks, lawyers will better understand each step and will find ways to deliver a better quality work product at a lower cost.

In addition, law firms will begin to consider streamlining certain tasks through administrative staffs to create better business processes.  For example, layering secretaries with 5-6 attorneys and then creating an additional level of executive assistants to provide project management and client communication is something new that law firms will consider.  This will allow new alternative paths for legal staff.

Lawyers also need to learn to market and build relationships via social media. This is the biggest change we have seen over the past few years, and the usage is drastically increasing.  This new form of communication and collaboration needs to be harnessed for a lawyers to reach certain clients with younger and innovative leadership.

Conclusion

In conclusion, the legal profession will see changes over the next decade.  How a firm adapts to the changes in the practice of law and client needs will determine whether that firm will survive.  For additional information regarding Law2020™, please visit the International Legal Technology Association Peer to Peer Magazine on the concept.

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

 

 

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.

 

Law Firm Business Development Must Mature in an Increasingly Competitive Market

Featured Business of Law Blogger this week at the National Law Review is Angela Spall of Williams Mullen.  Angela provides some great specific points about business development for law firms during these trying economic times. 

The legal profession continues to find itself in increasingly competitive markets.  The focus on business development has by necessity sharpened.  The key to a successful business development program in a law firm is to provide lawyers with the best possible competitive advantage in a highly competitive marketplace.

Vital components in building a successful business development program encompass the following:

Business development professionals, in a fully supported marketing department, must be as focused as the lawyers they serve and experts on the practice areas and industries they are assigned.  Credibility will be a key factor in working successfully with lawyers. The following are the recommended requirements for an effective business development professional:

  • Assigned to practice areas and industries where they must become experts.
  • Conduct comprehensive research to identify challenges and opportunities within a client entity, an industry or a target prospect.
  • Support and coach their lawyers in business development techniques.
  • Understand the sales process and most likely have had a background in sales or sales support.
  • Regularly engage in client feedback or end-of-matter interviews.
  • Regularly present proactive ideas to practice and industry groups.
  • They must be in an integral strategic role in all business development activities working alongside the lawyers they support.

Teamwork is vital in successful business development in law firms.  Business development professionals and lawyers must work together in client and industry teams for successful results. Teamwork must be rewarded and compensation systems must take into account the whole team that brought the business in or expanded a client relationship.  Encouraging teamwork ensures all levels of expertise and skills are used effectively and rewarded accordingly.

Keep your targets organized. Targets, whether they are prospects or clients, must be worked across the board. Use technology to access and store information on targets and clients and their industries so that it is readily available 24/7.  Opportunities can happen at any time.  In business development, making your own luck by being prepared and ready to act quickly without too many prior meetings or discussions, is imperative.  A window of opportunity can be jumped through by a competitor and can close quickly.

Clients will always be THE top priority.  Clients want all the things that clients or customers in any industry want: value for their dollar.  Providing value is more about results than it is about cost; it is more about knowledge, expertise, and trusting relationships.  Clients are the number one business development source and law firms must be competitive in how services are offered and delivered to their clients.  Expanding client relationships is still an under-utilized business development action.  Client feedback and end-of-matter interviews are a necessity.

It has been said that many law firms succeed despite themselves.  But, after a deep recession and the economy experiencing a slow recovery, it is time for law firms to invest in key areas to be competitive.  You will need technology to help streamline the business development process.  You will need to invest in qualified and experienced individuals, attorneys and non-attorneys alike to be successful. These areas of investment include:

  • Installing technologies such as Contact Relationship Management (CRM) and Email Relationship Management (ERM) and the newer add on tools that assist lawyers and business development professionals in providing ways to organize and utilize client and target contact information.
  • Research software that can quickly access business information of all kinds to pull together business and industry information.
  • Motivate lawyers and practice and industry teams by investing in appropriate reward systems through innovative approaches to compensation programs.
  • Ongoing training for lawyers and staff in business development, client service, technologies, the business of law, etc. Effective business development techniques can be learned.  While innate skills are highly valued, training lawyers in business development at an early point in their careers will benefit the firm in the long term.
  • Invest in people by hiring the best qualified and providing them the tools to be effective in their responsibilities.

And finally, and this has been said and written time after time by so many other marketing professionals, business development professionals must encourage their lawyers to accept and embrace business development as an essential part of their professional lives. No other time in the last 20 years has it been so critical to take care of your clients, participate in activities that get you in front of clients and prospects, take care of reputation management, and becoming known in your communities through building practice expertise and volunteering time in community organizations.  These activities will pay off.

Originally published in the Fall 2010 issue of LMA Practice Marketing Newsletter Copyright 2010 Legal Marketing Association –The Virginias Chapter

©2010 LMA Virginias. All rights reserved.

Marketing and PR Social Networking Best Practices

The Business of Law Blog Spot at the National Law Review recently featured Amy Juers of Edge Legal Marketing who shared a great top ten list of Social Networking Best Practices and a great video on businesses implementing social media strategies: 

When should your team get involved in social networking marketing tactics, and which sites offer the most appropriate venue to shorten the sales cycle? Many marketing departments are still holding back on this initiative for good reason, it is practically impossible to manage what you do not understand.

Determining the right time to jump in is not as important as investigating the sites to determine if your involvement would complement your legal technology marketing or legal services marketing, sales, client communication, or any host of business initiatives. Simply jumping in for the sake of getting your feet wet is not a strategic social networking tactic.  You should do research to gain an understanding of your options, match options with organizational goals, and then consider launching initiatives through multiple outlets. If you do not have time to research this or determine if or how to weave social networking into your organization, call experts in legal marketing and PR services and ask them for social networking strategy advice.

Whether or not sites that are popular today will evolve and remain popular next year cannot be predicted, however, given every teenager knows of this technology and actively uses it, your customers and prospects of the future are developing social networking finesse and will expect to connect with you in a few years in these ways.  If the popular “must have” social networking sites of today fade into the abyss, rest assured, new “must have” networking outlets will emerge to satisfy social networking needs in business. Think of today’s big buzz social networking websites like a wave that has water in it that you can choose to ride or let pass. If you miss this one, certainly there will be another. Because no one knows how long this wave will be upon us, rather than simply waiting for this to pass, there are plenty of good reasons to investigate and consider getting involved today.

Why use Social Networking for Legal Marketing and PR

Connections through social networking sites allow groups to quickly catch up on each other’s business, while also allowing for the free-flow of information.  People are increasingly becoming more excited about checking their social networking page rather than checking email for good reason, spam has a difficult time finding its way into your “friend” list and the platform for interaction is growing increasingly dynamic.

How extensively you get involved with social networking initiatives depends upon how these initiatives align with your firm’s goals. Your firm may want to leverage a site like Facebook to create a client group, post news, share client success stories or post YouTube videos of client testimonials and demos. LinkedIn has recently added greater flexibility into their site as well. For any firm sending out electronic newsletters, or client communications, creating a chat group or client networking group on these sites provides another outlet for sharing important content that may otherwise get buried if it were delivered as an email message.

Top 10 Social Networking Best Practices

  1. Conduct your own investigation. Before you determine whether or not to invest resources or any energy into creating a business profile and joining a site, investigate the leading sites and kick the tires! Social networking sites require zero “real cash” outlay, costing only the investment of research time.
  2. Select social networking opportunities that support business goals. Test the waters before you dive in, ask your prospects, clients and employees which social networking site they prefer. Not every site is going to be a fit and align with your firm goals.
  3. Get the word out – and if needed – educate your clients! Connect to your prospects, clients and who’s who in your channel. Introducing a “chat” group on Facebook for clients makes little sense if your clients have no understanding of how to create a profile or get connected.
  4. Structure or limit the time invested in managing a social networking site.Whether responding to posts, making connections with people, or adding content to your profile, make regular updates once or twice weekly. Calendar for 15-minutes one time per week to maintain each site.
  5. Avoid getting personal. Publish content relevant to your expertise to establish thought-leadership status. No one really wants to know if you just finished a cup of coffee or if your dog has fleas.
  6. Don’t over-stimulate with too much content. Keep postings brief and informational.
  7. Resist begging. Create a consistently informational space and followers will line up to “friend” you.
  8. Avoid posting on what may be sensitive topics. Events will unfold in the industry or within a competitors business that may be highly tempting to post about. The safest approach is to stay neutral, be informative and remain professional.
  9. Measure your activity. You cannot analyze what you cannot measure. Track your tweets, followers, time spent, and conversions.
  10. Keep current on social networking trends.Subscribe to a social networking blog or legal industry RSS feed  to receive legal industry social networking, marketing and PR updates daily or weekly.

Recommended Social Media Resource Webcast

Watch this YouTube webcast video, The Business Value Behind Social Media featuring social media experts Charlene Li, David Meerman Scott and Chris Brogan as they weigh in on social media and discuss the latest strategies and opportunities that executives face when considering the implementation of social media initiatives. This webcast was recorded at the Premier Business Leadership Series in Las Vegas in November 2010. Please note, although informative this video is approximately an hour long.

© 2010 Edge Legal Marketing

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

Article Marketing Tips for Attorneys: The Power of the Pen

Margaret Grisdela of Legal Expert Connections guest Business of Law blogger on the National Law Review provides some great tips on legal writing for maximum exposure for legal professionals. 

Writing an article on a newsworthy topic is an essential part of any legal marketing program. If the thought of public speaking causes you to break out in a cold sweat, a strategic article placement gives you long term business development benefits without the stage fright.

Speaking engagements, webinars, white papers, enewsletters, and blog posts are just a few of the many ways that the material covered in your article can serve as the basis for additional marketing communication campaigns.

Like many aspects of our “Courting Your Clients” approach to legal marketing, getting published is a process. Here are some guidelines to help you climb the learning curve.

Step 1: Select your topic. You can gain rapid visibility by focusing on emerging issues that challenge the status quo, like pending legislation or controversial industry trends.

Step 2: Spend some time researching current literature to identify the best “angle” for your article. Evaluate other articles written on the same topic and determine how your article can stand apart.

Step 3: Determine the approach that works best for the material you intend to cover. Here are a few article formats proven to capture audience attention:

  • Top 3 reasons to …
  • 10 mistakes to avoid …
  • 7 steps to achieve …
  • The pros and cons of …
  • An interview with …

Step 4: Select and prioritize three or four trade or legal publications for your article, focusing on those that you know welcome outside submissions. Write a friendly email to the editor of the most prestigious publication on the list, after reviewing their “author guidelines.” Describe the proposed article in no more than two to three paragraphs, and ask if they have an interest in publishing it.

If the first publication turns you down, or simply does not respond, move on to the next one sequentially. Editors usually want fresh material, so do not expect to publish the same article in more than one place. Once your article is accepted, you will usually be asked to sign an “Author’s Release” that identifies your reprint rights and other related matters.

If writing is not your strong suit, or you simply do not have the time, consider engaging the services of a ghostwriter to convert the outline of your article idea into a full-length composition. (Some publications do require the author’s original work, however.)

Once you submit your finished article, a good editor is likely to suggest some changes to your headline or copy. Do not be offended. If you feel strongly that any modifications will change the meaning of your message in a significant way, speak candidly with the editor. Most editors will give you a chance to rewrite a portion of your article if they feel it is unclear, but keep in mind that the editor’s decision is final.

Step 5: Upon publication (and not before), mail your article to clients and prospects as a means of staying in touch and reinforcing your reputation as an expert in your field. Proudly add your new article to your CV and post it on your website also, all in keeping with your reprint rights.

Any time is a good time to start or expand your publishing career. Young attorneys who start write articles on a regular basis will enjoy career-long benefits of visibility, an expanded prospect base, and possibly a faster track to the coveted partnership level.

© Legal Expert Connections, Inc.

You've Got Mail (and a Lawsuit): Mobile Communication Devices and the Wage and Hour Pitfalls they Present

From the National Law Review’s guest bloggers at Steptoe & Johnson PLLC – Thomas S. Kleeh provides more details on both the opportunities and the headaches for employers that smartphones provide: 

These days, it’s hard to imagine life without some form of mobile communication device attached to our ear, hip, or thumbs.  Blackberries, iPhones, Droids and the like are as much a required fashion accessory as a productivity tool nowadays.  As such, employees have long since abandoned the traditional complaints about being issued employer-required “cell phones.”  The texts, social networking, games and other apps — not to mention the distraction a properly loaded smartphone can provide for a fussy child in the backseat — make the “constant contact” with the office bearable.

However, that “constant contact” can lead to headaches for employers.  A variety of potential liability sources lurk around the corner after employees are issued mobile communication devices.  An easy example is the personal injury lawsuit that often follows when an employee negligently texts or talks on a phone while driving.  Another often overlooked concern, however, can be found in the wage and hour venue.

One of the best aspects of this era of Blackberries and iPhones is the instant communication it provides, allowing simple questions and responses to be dispatched with a few clicks of the thumbs.  But what if the person on the other end of that email, instant message, or text is a non-exempt employee entitled to overtime compensation for any and all hours worked beyond 40, or an exempt employee who otherwise performed no work during the workweek?  In those cases, each short email or text might eventually be costly.

Non-exempt employees who are required to carry a mobile communication device as part of their job duties and who use the device for job-related matters during non-work hours are arguably entitled to compensation for that time.  A City of Chicago police officer recently filed a purported class action lawsuit making that very claim.  Similarly, exempt employees who perform no work during a workweek generally are not entitled to receive pay for that workweek; but if an exempt employee is required to check e-mail during the workweek, that electronic activity might constitute working time, thus entitling the employee to receive his or her salary for the entire week.  Resolving litigation involving wage and hour claims (voluntarily through settlement or involuntarily at the hands of a jury) can be very expensive with liquidated damages and attorney’s fees at stake in addition to any unpaid wages.  Plus, the “paper” trail created through the email or text traffic can make a litigious employee’s claims easy to prove.

What can employers do?  One option includes establishing a policy prohibiting employees from using mobile communication devices for work purposes while off-duty.  (Of course, if an employee violates that policy, the time spent working must be compensated, but the offending employee can be disciplined for violating the policy).  Another (dreaded) option is to recall all those employer-issued fashion accessories – no matter how fussy employees’ children might get.  Regardless, employees’ use of their smartphones for work purposes needs to be on Human Resources’ and Risk Management’s radar.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

Hidden Assets: Finding New Business in Your Client List

This week’s featured Business of Law Blogger at the National Law Review is Margaret Grisdela of Legal Expert Connections. Margaret provides some great tips on how to do more which what you’ve already got – your client list. 

Your greatest source for new revenue in 2011 is likely to be hidden in your law firm’s client list. Increased business from current or past accounts tends to be more profitable, due to its lower cost of acquisition, higher degree of client satisfaction, and better return on your business development time.

Here are 7 legal marketing strategies to help you tap into this potential goldmine at your fingertips:

  1. Cultivate future Tier 1 accounts. You obviously have been successful in attracting and retaining today’s top accounts, but what about tomorrow? Even big accounts can leave unexpectedly for reasons beyond your control. Segment your current accounts into five tiers, and then devote a significant portion of your business development time to identifying and cultivating those Tier 2 current clients that have the potential to move into Tier 1 within five years. In the process, try not to get distracted by time-consuming small prospects.
  2. Increase client retention rates. If you lose 5 clients out of 100 every year, your retention rate is 95%. This means you need to find 5% new clients just to maintain the status quo. A concerted effort to add 1-2 points to your retention rate can fall right to the bottom line, even for transactional firms.
  3. Identify and protect “at risk” accounts.In any book of business, some accounts are in danger of leaving. You can identify these accounts by a decrease in billing patterns, news events, or less frequent communication. Proactive efforts to prevent these clients from jumping ship will improve your profitability and retention rate.
  4. Re-establish inactive accounts. It’s natural that over time some clients drift away. Identify these accounts and contact them to see what happened. Invite former clients to start using your law firm again or at least to refer others who might use your legal service.
  5. Ask for referrals. New clients await you; all you need to do is ask. Build the request for a referral into multiple stages of the fulfillment process. Natural asking points are the beginning and end of an engagement, as well as at key milestones. Track your referral sources, give them thanks, and reciprocate if appropriate.
  6. Stay in touch. No matter how many times you communicate with your clients, chances are they do not remember the full scope of your services. A monthly or quarterly newsletter will keep you top of mind with substantive content to make your clients more educated consumers of legal services. Social media marketing also offers a wide range of cost-effective marketing techniques.
  7. Up-sell and cross-sell legal services.At the attorney, practice group, or firm level, identify specific services that legitimately represent enhanced value to a client. Family law attorneys may up-sell clients on wills and estates, for example, while intellectual property lawyers can suggest trade secret protection through employment agreements. Compensation plans may complicate the effort, but the rewards can be worthwhile.

Here’s another secret to successful legal marketing: not every client is a good client. Create an “ideal client profile” and do not accept cases that you know from experience are not right for your law firm. Remember the five client tiers mentioned in the first tip above? It’s OK to fire your worst clients in the low level Tier 5.

Of course, all marketing and business development campaigns must be compliant with attorney advertising guidelines. Check with the state bar associations in those states where your practice or solicit business for specific requirements.

© Legal Expert Connections, Inc.