Monthly Archives: March 2012

Secrecy: How Quaint

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  Reach her at deb@page2comm.com.

The Supreme Court was set to “conference” this morning, with the Justices presumably sharing their votes on the health-care case and deciding who will write the opinion[s] that will shape the law of the land.

Their decision won’t be announced until June.

It seems almost quaint in these days of Twittering transparency that so monumental a secret will be kept, probably successfully, for the next few months.  The Justices and their clerks will be working away, but somehow will have to resist the temptation to enter “dismantling Obamacare” as a Facebook status. 

Mark Sherman, of the Associated Press, writing here, did find a couple of instances when Supreme Court rulings have leaked into view, including, notably, when “the court inadvertently posted opinions and orders on its website about a half-hour too soon in December.”

Still, in an age when so few areas of endeavor remain truly confidential, litigation and legislation continue to take place largely outside public view and lawyers and judges continue work hard to make sure that this is so.  Indeed, law firm culture is built around client confidentiality.  But clients themselves are changing.  Their expectations around privacy increasingly are shaped by reality TV and mass media tell-all tours.  The blogosphere is constantly dividing itself into “Team This” versus “Team That,” and the desire to tell one’s story, and garner social media support for a point of view, is deeply characteristic of the up and coming generation of entrepreneurs and deal makers.

What can you, as an attorney, do when faced with a client who wants to go public while a matter is still being considered?

First, know the relevant codes of professional conduct and understand how they come into play.  What information is off-limits in extrajudicial statements?  If there has been recent adverse publicity – not initiated by you or your client – Illinois’ rules of professional conduct do allow you to make public statements that protect your client from the prejudicial effects of that publicity.  In other words, silence is not the only ethical response.

Second, consider your client’s temperament and how you can help mitigate risks and limit exposure created if he or she does speak (or post) publicly.  Does your client need a “minder” to be present during media interviews or should someone offer coaching in advance of a public appearance to clarify what needs to be kept confidential?  These services might be available to your client through a public relations firm already on retainer or through resources connected to your own marketing department.

 Third and finally, take a moment to talk with your client about the long-term and strategic impact of the statements they wish to make.  Are there implications for their relationships with customers, employees and neighbors?  While it’s certainly tempting to engage in the rampant speculation that often fills an official communication void, there are probably more productive ways to engage in civic conversations about important matters.

If all else fails, perhaps it’s time to suggest that your client look to the disciplined folks at SCOTUS as role models.  They can take the Unplugging Pledge here.

Leveraging Your Reputation: Create a promotional calendar

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has over 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 has spoken at The Chicago Bar Association CLE programs. Reach him at tc@tcpr.net.

You probably have a calendar on your computer and phone that reminds you of work you have to complete and appointments you have to keep, but do you have one that reminds you to post on your website, Twitter or elsewhere online and offline? Promoting yourself should become part of your routine and a calendar will help to keep you organized and consistently productive. Take a moment today to plan out a writing and posting schedule.

First, think about where you want to promote yourself. You might not want to expose yourself in too many platforms, and that’s okay. You can choose a few outlets, such as your blog, newsletter and LinkedIn, which is a more professional environment than some other social media. Then decide how often you will post something in those places, commit to the dates and be sure to meet those deadlines. If you’re feeling overwhelmed due to other obligations that you have, then assign someone in your office the task of making sure that the content will be created on those dates that you have chosen. You can also set up a schedule with other attorneys so that you’re not the only one who is creating content for your firm.

If your publicity plan includes writing articles, e-books and white papers, then put those on your calendar too, because you might get so busy that you’ll forget to do them. It sounds like an obvious suggestion, but I’ve seen attorneys focus so much on their work that anything outside of those billable hours falls away. Even if you’re not writing something but simply want to post pictures or videos of presentations that you do, put that on the calendar, too. Basically, anything you create should go on that calendar.

Whether you create something weekly, monthly or semiannually, it is important to be consistent, because when you regularly share content, it will keep you on top of people’s minds, which will help you get more exposure and get new clients. You will also remind current clients that you are an expert and are there to continue helping them with their cases and concerns. It’s a discipline that should not be ignored, and once you establish it, you will see your reputation grow.

New technology generates even more information

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 the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The use, in both civil and criminal litigation, of information generated by new technology is nothing new. As far back as 1928, the U.S. Supreme Court was considering the Fourth Amendment implications of wiretapping. Today, however, with the technological advances of the last 10 years in particular, there is a huge trove of personal information out there that is potentially very valuable to an investigating officer. Indeed, it is also potentially very useful to parties in civil litigation and this post will focus on some of the different kinds of information generated by technology that may be subject to discovery in a civil suit.

GPS Technology
The Global Positioning System (GPS) was originally designed by the Department of Defense for use by the U.S. military and provides continuous positioning and timing information to users. The receiver determines its location, speed and time by measuring distances to at least four satellites simultaneously while also synchronizing its clock with the GPS time standard. The use of a GPS device to track the movements of a suspected drug dealer, in a criminal investigation, received some attention after the U.S. Supreme Court’s decision in U.S. v Jones.

GPS technology, however, is now included in most cell phones sold in the US and basically all smartphones. This opens the door to use of such records in civil cases. Once a party’s location at a particular time becomes a relevant issue in a case, the opposing counsel can then seek discovery of the information regarding the party’s location at the relevant time generated by their cell phone. Additionally, GPS technology is also becoming more and more accurate, with most phone handsets now capable of being tracked to within a few yards.

Other Location-Tracking Technology
There are numerous other records of a person’s location potentially generated by that person’s cell phone. Although, it is much less accurate than GPS, cell towers constantly send signals to and from nearby phones and the data also provides an indication of the general area (or “cell”) in which the phone is and could be a useful tool in civil litigation.

However, there are still various other records of a person’s location generated by cell phones, tablets, laptops and other computers through connecting to Wifi hotspots, downloading apps that offer location-based services and taking photos on phone cameras with GPS technology that embeds the photos with information on the place it was taken.

Other Data Stored on ‘Computers’
Of course there is still a wealth of information stored on cell phones, tablets etc. that is potentially relevant in civil litigation. In United States v Flores-Lopez, a 7th Circuit opinion handed down this month, the court allowed the warrantless search of a suspect’s cell phone when it was limited to obtaining the phone’s number. The number was then used to subpoena the suspect’s call records. While merely seeking discovery of cellphone call records is nothing new, there is obviously a lot more information stored, generated and potentially made available for discovery by cell phones today. Judge Richard Posner’s opinion in Flores-Lopez acknowledges this when it says “a modern cellphone is a computer”.

With new technology appearing so frequently now, for instance a bigger, better iPad is out this week, there will be a significant expansion on how searches are conducted and the trail of information one unwittingly leaves behind, and the quick accessibility of that information.

Litigation PR: Google algorithm updates and what it means to your web copy

Nick Augustine is the principal of Pro Serve PR Marketing, a firm that provides marketing and public relations advising and services for law firms. Nick’s niche in litigation public relations grew out of time spent in litigation trenches. Nick is a frequent national speaker on law firm public relations, risk, strategy and public opinion management. Nick earned a communications and rhetorical studies degree from Marquette University and a law degree from The John Marshall Law School where he is an active Alumni Board member.

I write and speak about Google’s new algorithm. The technology meets consumer demands for truthful and honest websites. Have you ever been annoyed by website copy full of keywords? Do you lack trust in attorneys who say they can help you in Chicago, Lincoln Square, Ravenswood, Ravenswood Manner, Ravenswood Gardens, etc.?

Sorry, no more Black Hat SEO and no more Google bombing – the name of the game is honest hard work. I spent some time stripping unnecessary links and over-keyword-written copy from my website. It is not hard if you really know what you do and how you can help people without puffery.

Problems and Solutions: Follow these simple rules and you will be at a lesser risk of being marked as a spam website.

Problem 1: Attorney has a website built by one of the major vendors and attorney is concerned they drafted their web copy for an earlier SEO algorithm. Attorney is afraid Google will mark their website as spam.

Solution 1: Call the vendor and ask them to talk to you about the changes at Google or drop them. Quality providers anticipate change and work with clients to redraft web copy and architecture.

Problem 2: Someone told attorney that keywords are no good anymore and attorney is receiving information from all directions and does not know whom to trust.

Solution 2: Research the Google updates. Understand the important of keywords and balance with web copy written in plain English. Think of questions clients ask. Answer those questions in web copy.

Problem 3: Attorney heard that links are important on websites and attorney has an incredible amount of links, and after hearing about the Google update, attorney is concerned.

Solution 3: Do not be too worried about links, unless the amount of one-way outbound links is excessive. Resource links to the ABA, for example, are common and Google expects to see these. Two-way links are good when one of the domains is a high-page rank link. Do some research on links.

Problem 4: Attorney’s website lists every local neighborhood or suburb listed and is now concerned about earning clients in each area but not at the expense of losing site rank.

Solution 4: Unless you live in the middle of nowhere, most people chose providers reasonably nearby. Say “Chicagoland” or “Chicago Area” or “Lake County” as relevant to the end users’ real needs.

Problem 5: Attorney is concerned their website is not perfect. The marketing people keep calling and attorney is not sure to whom they should listen.

Solution 5: Like investing or fishing, legal marketing works best with a diverse net. Lawyers are not web enterprise merchants. Spend more time building referrals and attending public events. Digital marketing and media do not remove the face to face element of building your practice and book of business.

If A Tree Falls in the Woods, But There’s No One There to Tweet About It ….

Debra Pickett is President of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  Reach her at deb@page2comm.com.

In a report out this week, the Pew Research Center takes a look at What Facebook and Twitter Mean for News.  Their findings offer important insights for lawyers and firms dealing with high profile matters.

 By now, we’ve become accustomed to the searchability of items that once existed largely outside of public view: a reporter or blogger with a particular interest can search for and post documents with ease and, once the post is “out there,” on the Web, anyone who happens to enter the right keywords – like, say, your client’s name – into a search engine will see it.

 In “The State of the News Media 2012,” researchers took on the question of how the incredible growth of social media led to an evolution from information searchability to information shareability.  People talk, of course.  And, in many ways, Facebook simply amplifies and streamlines the old office grapevines and neighborhood gossip networks of the past: I hear something about your client and I pass it on to a friend, who passes it on to a customer, and so on and so on and so forth.  The Pew study notes that folks who learn about a news story or an event via Facebook tend to assume that if they hadn’t heard it there, they would have found out about it anyway through another source.  After all, their Facebook friends largely mirror their real-life social connections. 

 Interestingly, though, Twitter seems to be viewed quite differently.  Nearly half of those who learn something first via Twitter say that they were unlikely to have found about it from any other source.

 For Twitter users, the decision to follow someone tends to be driven by interest, rather than by relationship.  A Twitter user might, for example, follow the tweets of a journalist who covers a particular topic or an activist who is concerned with a specific issue, even without knowing either person in real life or having any personal connection to them.  So, while Twitter has far fewer users than Facebook, those who do use the microblogging service tend to view it as a source with some real subject matter authority.  And, because users often retweet items from users they follow, sharing links with their own network of followers, a single tweet, sent to a relatively small group of folks can grow exponentially in its readership as it is shared and re-shared across multiple groups.

 When your client’s reputation is on the line, this is a big deal.

 An attorney handling a high profile matter – whether it’s a trial that has captured the attention of the mainstream media or an environmental regulatory settlement that has a vocal group of neighbors up in arms – will, as a matter of course, make sure that a team member is monitoring coverage of the case.  That typically includes using search engines – what did we do before Google Alerts? – and, sometimes, clipping services.  We know how to manage the flow of information in the age of searchability, or, at the very least, we know how to hire PR firms who do.

 But we’ve not yet come to terms with the consequences of shareability.  Social media, and especially Twitter, often go unmonitored.  This week’s report is a wake up call: if you’re concerned about people talking, you need to know what people are tweeting.

Q&A: Robert J. Emanuel

Robert J. Emanuel is a principal in the litigation & dispute resolution practice group at Much Shelist.

What do you like most about your practice?

I defend mortgage lenders in consumer financial services cases, which often involve challenges to various lending practices, loan products or payment processing procedures. This area of law is constantly changing, especially after the foreclosure crisis and state and federal legislation we have seen in its wake. There is always something new and interesting to learn.

 While I enjoy my practice area, I am also very aware of how important it is to be surrounded by people with whom you enjoy working and who share your values. I feel extremely fortunate in that regard. 

What is the biggest challenge for your practice?

Lenders are not very popular at the moment and many people are overly eager to blame banks for their troubles.

What advice do you have for new lawyers?

While it may seem obvious, I always tell young lawyers (and law students) to be very realistic about the type of law they want to practice and think about the kind of law firm or other organization where their best skills are most likely to flourish. Not everyone is going to be happy working at a big firm. Also, take advantage of as many internships, externships and clerkships as possible. Learn as much as you can about the various firms that handle the type of work that interests you and don’t be afraid to ask for informational interviews with attorneys and judges. A number of law students and young lawyers have contacted me over the years, and I have never declined an invitation to share my experiences.

 Additionally, I advise our younger associates to remember that corporate clients don’t usually think in terms of legal problems. Instead, they focus on the business issues that are presented in a given lawsuit or other legal challenge. At the end of the day,  clients are looking for you to use your legal knowledge to help them solve problems and reach their business goals. 

 Finally, never be afraid to ask for help. If you are working for a senior associate or partner who won’t provide the feedback you need to develop your skills, then it’s time to think about moving on to another opportunity.

Take these basic steps to modern clutter management

Paul Levy is a Chicago lawyer (Georgetown Law School) and president of Eastbank Records Storage, 1200 W. 35th St. The majority of his clients are Chicago law firms.

Any law firm old-timer can talk of the days when the management of records – the memory of your business — meant a card file on a desk and a pile of boxes in a back storeroom. For an up-to-date practice, dealing with the explosive growth of paper and electronic records, that is not good enough.

 Older records should be stored off-site, out of the way but secure, but modern clutter management starts with certain basic questions. What documents should I keep? For how long? Where can they be kept safely? Can I retrieve a document from storage, quickly, when I really need it, like this afternoon?

 Consider a storage center as an extension of your own file room, reasonably close to your office and, if possible, convenient to expressways. Ask if a center allows clients to drop off and pick up their own containers, saving you money in handling fees. Can they take in larger items, such as courtroom displays, evidence exhibits and surplus office furniture?

 Check out each facility that you consider. Does it have electronic monitoring and working security cameras? Are the designated storage facilities safe from dirt, fire and flooding? Are they accessible only by authorized personnel? Do the box racks look solid? Are there climate-controlled areas for electronic records, such as computer discs and medical x-rays? What are the chances for pilferage? Is there a dedicated connection to police and fire authorities? Is there parking? Be clear about exit charges. Some firms charge nothing, but others bury “ransom fees” in the fine print of contracts.

 Most important: Make sure you find a storage firm run by people you can reach right away, not one with a leave-a-message call center. 

 Setting up a storage plan is a good time to review standards. Some documents, such as those relating to wills, should be kept, well, forever. Others have discard dates. Nor is it enough to scan originals. Often, first versions become enriched with useful margin notes that are lost if the hard copy trail is broken. Make a plan. Stick to it. As court cases have noted, the key is to be consistent. Remember that back files may also be needed in matters relating to regulatory compliance and ethical conduct.

 With modern software programs, you can monitor inventory, make service requests or purchase new boxes. Yet, electronic devices can only go so far. Make sure you ask a key question: how fast can they track down a document?

 Normally, storage firms offer next-day delivery or, for an extra fee, later-that-day service. But I know of a situation where a lawyer called in great need at 5 p.m. Pleading his case with vigor, he got the documents that he needed within an hour.

 Now, that is a great off-site legal document storage facility.