Building a business resource network

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist, and he teaches SEO and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. Connect via @NickAugustinePR, @APIFCharity and Nick Augustine PR.

What makes an attorney successful? Many noble lawyers define success by their impact on their clients. In business, growth and profit show success. Law practice is a service industry business and profit pays the bills. Lawyers with business backgrounds have an advantage in law practice if they know how to manage a business and make money. If you do not have the business background and want to learn additional skills to build your law practice, there are methods you can use to increase business skills sets. Building a business resource network is one way to learn from others.

The premise is simple. Invite a few strategic businesspeople to join your business resource network to exchange ideas and trouble-shoot challenges in service industry professions. Referrals can also arise from building trusted relationships with the members of your group. Some small groups meet on the phone and others get together in person. Establish a routine and meet frequently enough to “check in” but not so often it becomes a scheduling burden.

Invite people to your group who can offer diverse perspectives and experiences.

  1. Financial product dealers are valuable to any professional who wants to attract more clients. Many investment representatives knock on doors and call friends and neighbors to offer entry-level products such as life insurance. Of course, ethics rules address direct solicitation by attorneys; nevertheless, the experienced salesperson cannot teach a lawyer some new skills in speaking to groups and positioning to receive new business and referrals.
  2. Marketing professionals who can sell their value to a client, know how to identify the needs of a prospect, and can create a strategy to satisfy needs. Like the financial and insurance representatives, a marketing individual probably attends local chamber of commerce meetings and continuing industry education seminars highlighting new products and tools to develop and marketing campaigns. The competition is fierce in marketing, just like law, so a marketing consultant or provider can share insight with an attorney taking advantage of allowed marketing practices.
  3. Staffing and human resource consultants are helpful if you ever have questions about employment matters and managing staff. Using talent effectively and appreciating valuable skills sets takes time to learn, and a business resource network member who can answer questions will save everyone time and money.

Your network of business resource friends can include members of several other professions and industries. Developing a manageable network takes time and is worth the investment.

Caveat emptor: Forensic investigations and due diligence

Jim Martin and John Alfonsi are managing directors at Cendrowski Corporate Advisors.

In August 2011, Hewlett-Packard acquired the British software company Autonomy for $11.1 billion, a 58 percent premium over the target company’s share price. HP believed the acquisition of Autonomy would be the perfect complement to its existing technology. 

However, less than 15 months later, HP announced an $8.8 billion write-down. HP claimed it discovered accounting improprieties, misrepresentations and disclosure failures which inflated the value of Autonomy. These irregularities were allegedly undetected during HP’s due diligence phase of the acquisition.

Given the current challenging economic environment, mergers and acquisitions are seen as a means by which companies can achieve faster top and bottom-line growth as well as increased shareholder value. M&A activity and the heightened scrutiny of the marketplace have created a need to incorporate forensic investigative tools into the due diligence process.

Forensic tools should be incorporated into both the negotiation and examination phases to detect potential management misrepresentations and fraudulent activities. These forensic tools consist of applying professional skepticism, performing risk assessments and applying various financial analytical tools – among other forensic techniques – to verify and corroborate information obtained during the due diligence process. 

The negotiation process itself is somewhat arbitrary and can place the acquirer at a disadvantage. A seller can attempt to “polish the apple” when presenting its offer, and an acquirer is often forced to rely on financial statements or information prepared by, or under, the direction of the seller.

Therefore, a prudent acquirer needs to approach a potential transaction with a certain sense of “professional skepticism” to mitigate the risk of distortions.  This forensic technique consists of relentlessly asking questions, making critical assessments, and challenging all assumptions, especially with regards to the veracity of the seller.  

Not only should a buyer incorporate forensic tools during the negotiation phase, but they should also incorporate such skills during the examination phase of the company.  According to a Association of Certified Fraud Examiners report, the typical organization looses 5 percent of its revenue to fraud each year. By a wide margin, the ACFE report identified strong internal controls as the most effective measure for the prevention of fraud. Thus, as part of the due diligence process, the acquirer should forensically examine the in-place controls and identify any weaknesses that could allow erroneous or unauthorized transactions. A common method to identify potential internal control weaknesses is to perform an internal risk assessment, which helps to recognize and understand risks that might not appear obvious. 

An acquirer should also perform forensic analytics on the company’s financial statements.  There are a number of different analytical tests that can be performed in conjunction with financial due diligence procedures. When developing analytical tests, the acquirer should note current and past events within the organization and the industry in order to isolate anomalies from known events.   

Incorporating forensic techniques in the due diligence process will help expose or isolate areas of potential fraud, misrepresentation and/or irregular activities and ensure confidence before the acquirer consummates a deal.

Witness rulings in Klingelhoets v. Charlton-Perrin

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This blog is written by Karen Munoz.

The case of Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, will be further discussed in this week’s blog entry due to the range of issues in the Appeals Court opinion.

The defendant’s appeal contended that the trial court had erred in not allowing the defendant to call a coworker as a witness. The plaintiff took the evidence depositions of two of her coworkers who were present when the accident occurred. But one of these witnesses did not see the accident actually occur.

After the defendant admitted liability, the plaintiff withdrew the colleague who had not witnessed the incident. The defendant then asked if she could call the withdrawn witness in the event that the plaintiff did not. Her request was denied.

The defendant argued that the trial court erred in making this decision as this witness’ testimony was key to defendant’s case as she had information as to whether the plaintiff was thrown in the air, where she landed and if she lost consciousness.

The trial court noted in some detail that the defendant had no legal basis to call this witness as the defendant had not disclosed her in her Rule 213(f) disclosures.

In examining the trial court’s decision not to allow this witness to be called, the court considered factors such as surprise to the opposing party, the prejudicial effect of the witness’ testimony, the nature of the testimony, the diligence of the adverse party, the timeliness of the objection and the good faith of the party offering the testimony. The Appeals Court ultimately rested its decision to uphold the trial court’s ruling on the fact that because defendant had not disclosed the plaintiff’s coworker as a Rule 213(f) witness, she could now call her as a witness.

The defendant also claimed that the trial court had erred in not granting the defendant’s motion to bar the plaintiff’s friend and coworker, Carol Heerema. Heerema knew the plaintiff as a high-functioning, intelligent and confident person. When Heerema met the plaintiff at a conference 10 days after the accident, she noted that plaintiff was confused, having trouble mentally and was not “acting like herself.” In later meetings, Heerema noted that plaintiff was slower to respond, made mistakes, had memory difficulties and lacked confidence.

The defendant attempted to bar this evidence on the basis that Heerema was unqualified to express an opinion as to the plaintiff’s mental status. The Appeals Court ruled that a lay witness can express an opinion on an issue as long as the opinion is based on the witness’ personal observations, is one that a person is generally capable of making, and is helpful to a clear understanding of an issue at hand.

The Appeals Court found that Heerema’s testimony was based solely on her observations as someone who had known plaintiff for 25 years.

The judgment of Court of Appeals in Klingelhoets provides us with a useful roadmap on how to prepare for a trial.

Appeals court reviews expert testimony

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

Any lawyer with an upcoming trial should put some time aside to review the Illinois Appellate Court case of Klingelhoets v. Charlton-Perrin 2013 IL App (1st) 112412. The opinion will be explored  over the following two entries, discusses opening and closing statements, the calling of certain witnesses, discussion of the cost of treatment and the verdict of a jury. The case arose from Defendant’s appeal against a jury verdict in favor of plaintiff for the amount of $713,601. The plaintiff in this matter was crossing the street via a crosswalk with a group of colleagues when defendant ran a red light and struck plaintiff. The defendant admitted liability. The plaintiff refused medical attention at the scene and went to dinner with friends. While at dinner she fell ill and went to the emergency room.

The defendant contends that the trial court made five errors in the course of the trial and that the verdict was contrary to the manifest weight of evidence and should have been vacated for a new trial. Defendant asserted that plaintiff made repeated and unfair attacks on her medical expert. The plaintiff’s counsel referred to the expert as a “hired witness” who “made a career out of this.” In the plaintiff’s closing argument, the expert’s work was described as “an assembly line of defense opinions and reports.” The plaintiff also described the expert as “riding the defense train” for the last several years. The appellate court stated that opening statements are meant to inform the jury of what the parties intend to prove at trial. No comment should be made therein that an attorney cannot or will not prove. Reversal based on improper comments made during opening and closing statements will only occur where comments have been made that deliberately result in substantial  prejudice to the opposing party such that the result of the trial would have been different had the comments not been made. The court stated that it is well-established that a party is afforded broad latitude in making their closing argument. The court found that the comments in this case did not cause any substantial prejudice against the defendant because they were all supported by fact in evidence before the jury. The court found that it was an undisputed fact that the expert was a “hired” witness. It was also true that the expert’s entire professional time was now devoted to reviewing medical cases; it was also true that 99 percent of the time, he works for defendants. No prejudice was found from these statements.

The court found that a remittitur should only be employed when a jury reward falls outside the range of fair and reasonable compensation, appears to be the result of passion or prejudice or is so large that it shocks the judicial conscience. The court found that the decision was not against the manifest weight of evidence. The court also found that the jury’s breakdown of its award was appropriate and in line with the evidence presented at trial.

A treacherous legal hypo about online defamation

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist, and he teaches SEO and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. Connect via @NickAugustinePR, @APIFCharity and Nick Augustine PR.

You should be concerned with the dark side of social media communication. Not only are Facebook, Twitter and LinkedIn potentially troublesome, blogs and emails are ripe for nefarious use. Are we a culture who pushes the envelope? What happens when we go too far? Does Himmel apply? During a planning phone call for an upcoming MCLE on point, I learned about a blog slamming local judges and attorneys. The accusations I saw were astounding and incendiary. What does a member of the bar do when they are targeted online?

Smear campaigns are not a new phenomenon but the ease in of distribution is compelling. Armed with enough SEO skills to be dangerous, a “watchdog” blogger can cause real trouble when they share negative content in their social media channels. If the title is catchy and enough people “like” and “share” the post, readers might assume the author is credible and the statements in the blog are true. Social communities like Facebook are ripe for gossip and public criticism.

Awareness of the issues and potential fallout can damage victims professionally and financially. Imagine the following hypo: Carol a rogue client, upset with the outcome of litigation, publishes and promotes a negative article about Alan, an attorney, and the article is full of factual misstatements and condemnations. Bob the businessperson knows and likes Alan and refers Roger for a legal consultation. The next day Roger searches for Alan and on the first page of the search results, he sees Carol’s angry article. Roger decides not to call Alan and instead calls Bob to let him know Alan might have some problems. Bob calls Alan about the comments online and despite Alan’s efforts at refuting the Carol’s bogus complaints; Bob seems to shy away from Alan.

What would you do as the lawyer when Alan calls you to seek your advice about a defamation claim against Carol? Did Alan and Carol execute an attorney/client contract? Did that agreement address social media communications? What If Alan and Carol entered an agreement with a clause indemnifying Alan from Carol in the event she caused Alan’s damages?

Add some more facts to the hypo involving Alan, Bob, Carol, and Roger: Alan starts posting comments on Facebook and Twitter that Carol’s article is defamatory and full of lies. Linda, a newly admitted lawyer has a friend who works at the same firm as Alan, the friend, who dislikes Alan, shares a copy of Carol’s article, and Linda discovers the article containing allegations of professional misconduct. Fearing she is obligated to report under Himmel, Linda sends the article to the ARDC. Discuss!

Fire up your pictures

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has more than 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and is on the Public Affairs Committee of the Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net

I’ve been saying for a while that one way to promote yourself is through photos, and I was reminded of their importance when I saw a fire. Actually, I didn’t see a real fire where I live or work, but I’ve been following the story about a big fire in Bridgeport. Even though we hear about fires throughout Chicago, we might not pay much attention to them, unless they’re part of a case that an attorney is working on or if there is a lot of drama surrounding them.

Since that fire in Bridgeport was in an abandoned building, it didn’t seem like a big deal, but then I saw photos of it popping up on Facebook and other social media. What got people’s attention was the aftermath of the fire. The firemen spent hours in frigid temperatures fighting the blaze, and the water they used ended up freezing so that the building looked beautiful.

At first, stunning photos were posted on the Chicago Tribune website. Then the social news site BuzzFeed posted “amazing photos of [the] beautifully icy aftermath” that were taken by photographers from various media services. After that, news websites around the world posted photos, including the Wall Street Journal. Who would’ve thought that a fire in an area of the city that isn’t visited by many people would become worldwide news?

I often talk about the speed of modern media, and how attorneys have to be ready to respond because the news cycle happens in hours and even minutes. When you have a serious case that is getting a lot of publicity, you might feel pressure to act responsibly so that you don’t get negative press. However, in other parts of your life, such speed could work in your favor. Even if you simply see a really beautiful bird on your vacation, take a picture and post in on your website and in other social media. You don’t need the fancy cameras that professional photographers have; you can just use your phone. After all, you never know where your photo might end up and what attention it can get to help your reputation.

Why Every Young Attorney Should Want a Mentor – Or Three

Margaret Frossard retired in 2010 after serving 13 years as a justice of the Illinois Appellate Court. She currently serves as the director of the Office of Professionalism & Engagement and teaches trial advocacy at The John Marshall Law School. She can be reached by email at mfrossar@jmls.edu or by phone at (312) 427-2737, ext. 112.

In this blog, Elizabeth Spellmire Francis, a recent graduate of The John Marshall Law School, shares her thoughts on the value of mentors.

Frossard: Elizabeth, law students and recent graduates are frequently told to “find a mentor” and “network.”  What tips and strategies would you suggest to put these words into action?

Francis:  What no one tells you during law school is that finding a mentor and networking is not just about finding a successful person for the sole purpose of handing them your card.  Rather, it is about creating genuine, personal relationships with individuals that you respect.  More importantly, it is about holding on to those meaningful relationships throughout your career.  I speak from experience.

I am the lucky daughter of George W. Spellmire, a legal malpractice attorney here in Chicago.  As such, I was raised constantly surrounded by Chicago attorneys with whom I have intentionally stayed in touch.  Though it took me a few years after college to find my way to law school, I knew that in the end – I was going to be a Chicago lawyer, like my father.  Notably, I did well in law school.  I studied hard and I worked part-time.  Though my success in law school played a significant role in securing my first job, it was the personal relationships that I continued to hold onto and develop throughout law school that got my foot in the door.

The most important tip I can give to a law student, or new attorney, is to develop a genuine and personal relationship with your mentor, the attorney you exchanged emails with at the networking event, the family friend that is a lawyer, or a professional that you admire and respect.  That means: make it a priority to send emails and check in with these people.   Ask them to lunch, buy them a drink, and attend seminars when they speak.  It might be time consuming and take some effort, but in the end, it will open doors and create unforeseeable opportunities.  More importantly, you will create a network of people that not only care about you, but have an interest in your success.  Don’t forget, you are a part of their network as well.

Following this approach has had a significant impact on my professional career.  A casual lunch with a former associate of my father’s turned into my first job as an attorney.  A former classmate got me involved in the JMLS mentor program, which has given me yet another amazing opportunity to develop a meaningful and professional relationship.  When I started practicing, the first person I called was a long-time mentor, a lawyer I have known all my life, and he gave me invaluable advice over a drink one night after work.  I cannot emphasis my advice enough: it’s all about developing personal relationships with people and holding on to them.

Margaret Frossard can be reached by email at mfrossar@jmls.edu or by phone at (312) 427-2737, ext. 112. To view her previous blogs, go to professionalism.jmls.edu.  Frossard’s next blog discusses the value of a legal education from the perspective of a recent law school graduate.