Monthly Archives: September 2012

Leveraging Your Reputation: Two tools you should have ready

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 is on the Public Affairs Committee of The Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net.

Sometimes attorneys are so caught up in the bigger picture of trying to get media coverage for their cases or firm, they forget some simple tools when the media shows interest in their story. So before you contact the media or develop a publicity plan, be sure you have these two publicity tools ready:

Photos. It’s important to always have photos on hand that you can send the media when they want one for a story. It’s best to have a variety of photos ready, such as different file sizes, headshots and even various situations (such as in your office or at an event). If there are other attorneys in your firm who you anticipate are going to get coverage in the media, gather their photos as well.

And if you already have photos but haven’t looked at them in a while, now is the time to do it because maybe they’ve become outdated, or you just want to change your public image. Some attorneys don’t think about their photos until the media contact has a tight deadline and demands a photo ASAP, so don’t wait until you have to scramble. Get your photos set up now so that sending them won’t require much time or effort.

Updated bio. There could have been a lot of developments in your career since the last time you wrote your profile, so take a look at it and see if you have to add or change any information. This includes your own bio, other attorneys’ bios in your firm and even the description of the firm itself. Sometimes firms change their focus and case loads, so they have to reassess their public message. Take some time today to think about the direction where you and your practice are heading. Do the bios reflect what your current purpose is?

Also, once you make any changes, make sure that everyone you work with is using the same description. I’ve seen firms create press releases that had different “boiler plates” (the description of the firm at the bottom of the release) sent out on the same day. It not only looks inconsistent, but can hinder your reputation because the image you’re conveying doesn’t seem solid.

I will share some more tools in a future post, so stay tuned.

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Litigation PR: The Greenberg letter and its fallout – vote for Greenberg?

Nick Augustine is a legal industry publicist at Augustine Legal PR and he helps law firms and their staffs attract more clients and tell their stories. Nick’s marketing, advertising and media team helps attorneys generate frequent original content to share their knowledge, skills and abilities. 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.

Steve Greenberg scored major name recognition this week. By now, the Greenberg letter is a topic of discussion among many Chicagoland lawyers and the public who followed the Drew Peterson case. Note that “Greenberg” appears in most of the news reports of the incident where the Peterson defense attorney chastised his co-counsel in a 15-page letter sent to every news outlet in town.

Consumer psychology should be a major component of any decision to go public with a statement.

What’s the real story? The story is that Greenberg is upset in his opinion of how his co-counsel/associate and he very much acted upon it. I scanned the letter and I just don’t think it does Greenberg well. I appreciate he must have been very upset with Joel Brodsky as he alleges Brodsky misspoke and put Greenberg in a bad light. We might see more developments in the event Mr. Brodsky passes on Greenberg’s “window to retract … [his] defamatory remarks,” (See Greenberg letter of Sept. 24, 2012, at the first sentence) and instead, sues him for defamation.

How do we react to news? Some attorneys who read the 15-page letter likely think that Greenberg is making a public record for later use. Others may think this looks like a client complaint to the Attorney Registration & Discipline Commission with a laundry list of every negative sentiment. Most of the public, however, seems to mistrust high-profile professionals and public figures. I bet most people in the general public will assume both lawyers are hotheads and ignore this news. The bigger fallout of this very public act takes place in private conversations among friends and colleagues who know these attorneys. 

What would have been a better recourse? As many professionals do not prefer to associate with others who publically wag the finger, a letter to a tighter and more private circulation might have been a good choice. What would you do if your professional reputation were tied to a high-profile case where you did not prevail?

What is Greenberg likely to gain? After the dust settles and depending on response, people are probably more likely to remember a lawyer named Greenberg.

Consumers of news tend to favor familiarity. If Greenberg is more of a household name, more people may recall his name and think, Hmm, that rings a bell – and not think any further. If Greenberg later runs for public office, people might vote for the name they remember, even if they mistakenly think he was the victor.

Court clarifies discretion vs. ministerial

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 Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) came under examination recently in the Third District Appellate Court case of Robinson v Washington Township, 2012 IL App (3d) 110177 (Aug. 29, 2012). At issue in this case was the trial court’s ruling that the defendants were immune from liability pursuant to the Tort Immunity Act. It was held in the present case that the trial court had erred in ruling that the defendant was immune from liability and remanded the case.

The plaintiff, suing through his mother, was a minor who sustained injuries when a car being driven by his father went out of control after hitting a pothole and running over road construction debris. The car rolled over and landed on its roof. The township had undertaken repairs on this roadway prior to the accident. The plaintiff alleged that defendants had a duty to exercise ordinary care and caution when completing roadway repairs. The trial court agreed with the defendant at first instance that the defendants were immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act as the filling of potholes was a discretionary function. Defendants were granted a motion to dismiss.

Upon reviewing the motion to dismiss, the appellate court found that that the Tort Immunity Act grants immunity to public entities for “discretionary functions.” Section 2-201 of the act states that “[a] local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” To be determined in the present case was whether the act of repairing the roadway was a determination of policy and therefore an exercise of discretion or a ministerial act. A ministerial act is an act which is done in a prescribed manner “in obedience to the mandate of legal authority, and without reference to the official’s discretion as to the propriety of the act.” (Snyder v Curran Township, 167 Ill. 2d 466, 474 (1995).)

The majority of the court in the present case found that the acts of repairing roads are primarily ministerial acts for which public entities are liable if negligently performed. The court followed a strong line of reasoning, which stated that a public entity exercises discretion when it adopts a plan in the making of public improvements but the carrying out of the plan is a ministerial act that should be done in a reasonably safe and skillful manner. It was held that the Tort Immunity Act did not apply and the case was remanded.

However, Justice William E. Holdridge was a dissenting voice in the decision. He believed that the plaintiff had not pled any facts to suggest that any new hazard was created by the repairs above and beyond the condition of the roadway prior to the repairs. Holdridge, in his brief decision, also argued that whether acts or omissions are discretionary or ministerial should be determined on a case-by-case basis.

While Holdrige’s reasoning dilutes the strength of this decision, overall this decision should be welcomed as a clarification on the issue. It is now clear that a public entity exercises discretion and is thereby immune from liability when it selects and adopts a plan for the making of improvements. However, the public entity is bound to exercise that plan with reasonable skill and care.

It’s Not Just Another Mentoring Program, Part 2

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 Professional & Engagement, and teaches trial advocacy, at The John Marshall Law School. She can be reached by e-mail at mfrossar@jmls.edu or by phone at (312) 427-2737, ext. 112. 

The John Marshall Law School’s Lawyer-to-Lawyer Mentoring Program began in 2011 in collaboration with the Illinois Supreme Court Commission on Professionalism, matching practicing alumni with recent graduates. Over the past two years, we’ve received a tremendous amount of feedback and support from the mentors and the mentees. We put that feedback to work, expanding the program dramatically and focusing the program on those issues of professionalism that affect all developing attorneys, while still leaving room for the mentors and mentees to create a unique relationship.

Last week, in Part 1 of “It’s Not Just Another Mentoring Program,” I offered the insights of Karen Dimond, an assistant state’s attorney with the state of Illinois. Part 2 continues below with insights from Barry A. Kozak, an adjunct faculty member at John Marshall and the director of our Elder Law Programs.

Barry A. Kozak

Professor Barry A. Kozak, a mentor who teaches at John Marshall, served as a panelist for the mentoring orientation. Barry is the director of John Marshall’s Elder Law Programs. He mentors John Fehr who started his own law office, the Fehr Law Group LLC, with his brother, Karl, in the Monadnock Building at 53 W. Jackson Blvd. When I asked Barry what was different about the Lawyer-to-Lawyer Mentoring Program, he offered the following interesting observations:

“I have considered myself to be a mentor to many law students and new attorneys for many years and have freely enjoyed helping each individual succeed; however, the Lawyer-to-Lawyer Program is something much more unique and special than simply being a sounding board. The structure and mandates for me as mentor actually made me think about and develop strategies that would benefit my mentee, based on his specific needs and desires. In turn, I wound up learning a lot from my mentee, as each meeting was a discussion and not simply me listening and offering advice off the top of my head. The bond formed between my mentee and me will hopefully endure for the remainder of both of our careers, and I certainly hope that he will become a mentor after he has some more experience under his belt. I actually cannot wait to rejoin the program in the future where I will be paired with other exciting and intelligent individuals who seek mentoring.”

Barry’s mentee John Fehr offered the following thoughts about his experience with the mentoring program:

“The mentor-mentee program is an incredibly valuable and structured program in which a new attorney can benefit from the wisdom of an experienced attorney. There are so many important issues and questions that arise for young attorneys. How should a new lawyer deal with a difficult client? What is the best way to organize a client file? What is the best way to speak and to argue before a judge? What are some weekly or monthly tasks that every small law firm should have in place in order to be successful and organized? Having a mentor to call on and consult with regarding inevitable questions like these makes this program well worth a new attorney’s time. I think mentors in this program will find that the new attorneys have many questions and are eager to learn from their years of experience.”

To view Part 1 of “It’s Not Just Another Mentoring Program,” go to  http://professionalism.jmls.edu/. The series will conclude with the reflections of John Marshall grads Jeanine Cunningham and David Bickel.

Dukakis in the Tank: What we all can learn from campaign media fails

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.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

Remember Michael Dukakis in the tank?

That image of the presidential candidate, looking goofy and inept, solidified the impression that many Americans already had of Dukakis: he wasn’t tough enough to be commander-in-chief.

It comes to mind, of course, this week as another former Massachusetts governor is running for president and has made a similar blunder, with remarks that seem dismissive of 47-percent of Americans: the ones who aren’t making a lot of money.  In hindsight, media stories like these are often remembered as key turning points.  And, indeed, should Gov. Mitt Romney lose in November, pundits are sure to point to the release of these remarks (and his handling of their release to the public) as the moment when it all went wrong.

For many people I talk to, this is the sort of thing that informs their notion of my firm’s work: they see media strategy as the art of avoiding bad press and spinning your way out of it when it does happen.

In my view, though, our real work is quite different from this.  I don’t spend a lot of time or energy worrying about “bad press.”  In fact, when there’s a media story out that paints one of my clients in a negative light, my usual advice is pretty simple: keep your head down and let’s move on.  Our work together is about defining the story you want told and getting it into the right hands – the best-suited reporter or producer – to communicate it to the broadest audience possible.  I’m paid, in other words, for good press.

Effective media strategy, defining yourself for the public by telling your story the way you want it told, is a kind of inoculation against bad press.  And epic media fails, like Dukakis in a tank, aren’t so much about the single negative image or story that takes on a life of its own as they are about the vacuum – the lack of a positive self-definition – that the negative item grows to fill.

Tell your own story in a clear and compelling way and the public won’t be swayed by a single misstep.  But fail to define yourself and your blunders will define you, especially when they confirm people’s suspicions.  If Romney and his campaign team had been pro-active about telling the right story about his wealth and business success (like, say, how the American system made it possible and how, in recognition of his great luck, Romney has always made it a point to mentor others), his comments that seem to dismiss retired and lower-income folks as “victims,” wouldn’t reverberate in the way they are now.

The time for a media strategy is before the bad press, not after.

Attorneys in Transition: Responding to ARDC inquiry letters

Nick Augustine is the principal of Augustine Legal PR and he helps law firms and their staffs attract more clients and tell their stories about the legal industry. Nick’s marketing, advertising and media team helps attorneys share their knowledge, skills and abilities. 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.

Do you see the Attorney Registration & Disciplinary Commission as a friend or foe? Law schools teach us the rules of professional responsibility and how to avoid running afoul of the rules. Experience teaches us that despite your best efforts, ARDC inquiry letters might cross your desk. The commission has commented that most of their inquiries regard criminal and family law attorneys. Learn some tips on helping the ARDC do their job as they must process all the complaints they receive.

I learned all about the ARDC in professional responsibility classes in law school. My professor focused on best practices to guard against ethics problems. What I don’t recall learning was how frequently complaints were made by angry clients and gamesman opponents.

The ARDC rules require activity on all complaints. When the commission sends an attorney an inquiry letter, there is a deadline to respond. When I interviewed ARDC Litigation Manager Melissa Smart on Law Talk Radio, she stressed the importance of communicating with the ARDC, whose staff is good about granting extensions of time to respond, when necessary. The worst thing you can do is ignore a letter from the ARDC.

Changing perceptions of the ARDC has been a commission trend as they continue offering Minimum Continuing Legal Education options and education on how to use social media ethically within the Rules of Professional Conduct. The telephone hotline is there for attorneys who want to ask an anonymous question if the need arises.

One tip to protect you is bill early and often. If your time records indicate the nature and purpose of all your work, then it may be easier to respond to a question about what occurred on a specific instance. Keeping good records should reduce anxiety about answering an ARDC letter.

Sometimes clients angry about their bill or opposing counsel who want to win at any cost will make ARDC complaints against an attorney as an offensive tactic. While I have never asked, I am sure the staff at the ARDC can sniff out the legitimate complaints and detect gamesmanship. Having said that, if someone complains that the attorney may be violating a rule, the commission is duty bound to follow up. There are attorneys who focus in ARDC litigation and if you receive a letter warranting professional advice, make the call. There are several helpful tips and resources on the ARDC website.

Summary of Olson v. Williams All Seasons Company

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.

A judgment was recently handed down in the case of Olson v. Williams All Seasons Company, regarding Olson’s appeal to a summary judgment granted in favor of the defendants in circuit court. This case involved a negligence claim made by Olson following a fall he sustained when responding to a fire alarm at the defendant’s building.

Olson, a Highland Fire firefighter, was responding to a “trouble fire alarm” at Williams’ building with two colleagues when the injury occurred. Within the building there was an underground storage area that was accessed via an 11-foot drop-off in the ground floor. The drop-off was guarded by a spring-loaded, double-door metal gate. Olson, who did not remember the actual fall, along with his two colleagues testified that it was extremely dark within the building. Olson, who did not have a flashlight with him, was searching for the “knox box” when the fall occurred. The two other firefighters were close to Olson but did not see or hear the actual fall. One of the firefighters later found the light switch located by the stairway to the lower level.

Summary judgment was granted on the basis that Williams did not owe Olson a duty of care to prevent injuries occurring in the course of his occupation and Olson could not establish proximate cause because no one witnessed the fall and Olson could not recall the details of the fall. The double-door metal gate that guarded the drop-off only opened towards the person opening the gate. There was a spring on the gate so that if the gate was opened it would close automatically. The investigating police officer, who inspected the scene an hour after the occurrence, remarked that when he opened the gate it did not close fully but only about halfway.

It was stated on appeal that “although no one saw Olson fall and Olson does not recall whether the gate was open, both pre-occurrence and post-occuurence witnesses at the scene provided sufficient circumstantial evidence of proximate cause.” Olson’s colleagues testified that the warehouse was “dark” and like “an abyss.” It was held that there was a proximate causal relationship between the injury and Williams’ alleged negligence. It was found that genuine issues of material fact were created and supported by sufficient circumstantial evidence and reasonable inferences that might be drawn therefrom. The court discussed numerous cases where there was sufficient circumstantial evidence to establish proximate cause between a defendant’s negligence and an injury sustained to a plaintiff.

The defendant’s attempt to argue the “open and obvious doctrine” also failed on appeal as there was a factual dispute as to whether there was sufficient light to discern the change in levels. The court also held on appeal that a landowner still had a duty to maintain a property in a safe condition to prevent injury to a firefighter who is inspecting a matter other than a fire, notwithstanding the common-law fireman’s rule. The court also held that there was a duty on Williams’ part to provide adequate lighting as it was reasonably foreseeable that an invitee would sustain an injury when searching for a light switch.

This well-reasoned decision means that because the victim of an alleged negligent act or those in the immediate vicinity did not see or cannot remember the incident, they will not be barred from seeking redress. The court will conduct an investigation into the pre-occurrence and post-occurrence evidence to establish if there is sufficient circumstantial evidence of proximate cause.