Posted by: johnocunningham | December 17, 2014

In-House Legal Chiefs Weigh In On Legal Services

Legal service consulting firm Altman Weil recently released the results of its 15th annual Chief Legal Officer Survey showing that law firms must cope with increasing competitive pressure, not only from other firms, but from expanding in-house staff.

More than 40 percent of the nearly 200 respondents indicated that they were cutting costs by shifting work from outside counsel to in-house staff while 36 percent reported shifting work to more competitive law firms who produced results at lower costs.

Roughly two of three in-house legal chiefs reported that they were cutting costs inside by investing in technology tools for greater efficiency, a move that outside counsel would be wise to imitate if they want to compete for what is left of a shrinking pie.

The good news for lawyers in private practice? Just four percent of respondents indicated they are happy with the results of the traditional legal service delivery model, and that leaves a whole lot of room for improvement and nowhere to go but up.


Posted by: johnocunningham | December 4, 2014

Best Blogs of November: Actions Speak Louder Than Billables

This is my twenty-fourth post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

For the month of November 2014, I have chosen to highlight a post  by Stephen Fairley at The Rainmaker Blog entitled “One Big Law Firm Abandons the Billable Hour.”

I liked this post, not just because it trumpeted an important news item that drew little attention in the press, but because it focused on the impact one major law firm’s policy will have on clients.

The firm in the spotlight is Jackson Lewis, a nationwide 780-lawyer labor and employment firm, which recently announced that its associates would no longer be measured by billable hour production. The new method for assessing associate performance will reportedly be based on client service, responsiveness, efficiency and team play (as well as pro bono contributions).

Chairman Vincent Cino was quoted as saying that “the billable hour is directly opposed to the best interest of the client.”

This move might garner little praise from lawyers in other firms, who well might fear what it portends, but it is a clear statement to the firm’s clients that the firm has a whole new focus for associates – one that is aligned with client interests.

The move is also responsive to mounting client concerns in recent years that young associates are too often inefficient, poorly trained and not delivering value for what they are paid. In fact, a growing number of clients have refused to pay for first year associate work at all, stating that they will not be responsible for training someone from scratch.

Now, the onus for ramping up associate efficiency will fall squarely on the partners who must pay those associate salaries, and a true commitment to associate development will likely emerge from a new focus on “client satisfaction.”

There were two other blog posts I wanted to call attention to as well. One was done by Mandy Edwards at ME Marketing, entitled “Blending Social Media Marketing with Traditional Marketing This Holiday Season.” It has a nice overview of how to integrate social and traditional media to get better performance from each.

The other post I enjoyed was short and sweet, but illustrated the lesson I learned from great rainmakers that everyone you meet is a potential client, if not someone you can potentially serve in some way. That post by Craig Brown is on “finding clients” and appears on the LawVision INSIGHTS blog.

Posted by: johnocunningham | November 21, 2014

Five Common Business Development Allergies

This blog post was inspired by a recent roundtable conversation with some of my favorite legal marketing experts, who noted some of the most common and incredible ways in which lawyers are tripping themselves up in business and client development.

So without any particular ranking of importance or frequency, here are some of the issues we have all detected and found to be way to common:

1. Too many lawyers don’t want to list their industry-specific experience on their websites or profiles. This is odd because clients say it is THE most important thing that is commonly missing from lawyer profiles. Lawyers like to say “I don’t want to be tied down to a particular industry.” What they don’t realize is that clients will figure out if you have the industry experience anyway (one way or the other) and you just make it so much easier for them if you list it (and you give them reason to believe that you know this is important to them).

2. Too many lawyers don’t like to visit clients. They say “I don’t want to bother them.” Most business clients, on the other hand, say that they are impressed with their outside lawyers who take time to visit their place of business, off the clock, just to get better acquainted with the client’s business. They would much prefer to take you to lunch at the company cafeteria, which is quicker for them, than have you invite them to an expensive downtown lunch in your neighborhood. I have never met a client who was insulted by a lawyer who offered to visit them – when they are too busy to visit with you, they will let you know.

3. Too many lawyers say they don’t engage in non-work conversations with clients because they don’t know what to say. Literally, these lawyers need a script to open up a conversation that could lead to greater trust and a broadening relationship. My advice to these lawyers is generally to frame their questions to clients in a way that displays their genuine interest in what the client does and how they do it. For good reasons, lawyers are also worried about asking: “How can I get more of your business?”  This sounds crass and self-interested, but a similar question, coming from a different motivation, can be far more productive: “So what are your biggest problems right now?” If the client poses a problem you can help with, then you can offer assistance.

4. Too many lawyers don’t know their own business by the numbers, or refuse to talk about it. Clients are very interested in knowing the number of trials or transactions in which you have participated, the average cost, the typical cost of discovery for various types of cases, the likely outcomes on liability and damages, and the number of times you have come in under or over budget projection and by how much. Clients who hire counsel through their insurance companies know that the insurers keep track of many numbers, such as average damage costs per type of injury, tendencies of particular judges or juries in particular jurisdictions. They like that. They wonder why lawyers don’t know their own numbers.

5. Too many lawyers still have no marketing strategy because they still have no idea what it is they really want to do. Essentially, they want to position themselves for “whatever walks in the door.” It is analogous to a business hanging out a sign that says “We do everything – just come in and ask.” Of course, business customers or clients do not just walk in the door and ask you what you do. You have to define it for them. To be good at marketing, you also need to figure out what your chosen or targeted clients do, where they are, how to build relationships with them over time, and how your skills fit particular needs that they are likely to have. As a highly regarded CMO once told me, “You don’t have a marketing strategy until you decide what you are NOT going to do for clients, and that is what defines what you WILL do to succeed.”


Posted by: johnocunningham | November 13, 2014

Big Data Coming to Big Law?

When I have asked C-suite officers what they would like to see from their outside legal counsel that they don’t get now, one of the common replies is about data, particularly trial-related data.

Executives run their businesses on data used to forecast costs, revenues, depreciation, and hazards of all kinds. When you ask them about a product or service they provide, they can tell you the line item cost and the expected margins related to every component part of what they are selling, sometimes down to the penny.

So they just don’t get and can’t understand how law firms run without knowing how to accurately forecast the chances of success in a given case, or the likely costs of discovery and trial.

Fortunately, a number of professionals outside of law firms are working on this. Lex Machina, for example, is now using big data to check on case outcomes based on jurisdiction, judge, type of case, and other factors. For patents, they can search by type of patent to see how often an issue has been litigated, where and with what outcome.

TyMetrix, a division of Wolters Kluwer, similarly offers the ability to analyze data related to transactional matters, according to hours, fees, geographic location of service, matter duration, industry and other factors.

So we are starting to see solutions to the dearth of data that clients want. Law firms will either embrace the idea of budgeting and forecasting scientifically, or they will have it imposed upon them by clients who figure out the solutions before they do.

If you want happy clients, it is probably a good idea to learn the mastery of big legal data before they do !

[Disclosure: Neither TyMetrix nor LexMachina is a client of mine, and I am not endorsing their products, but merely providing examples of ways in which big data is influencing the professional services field.]

Posted by: johnocunningham | November 5, 2014

Crafting Social Media Policies

With more companies and employees using social media every single day, the importance of having a well-crafted social media policy is growing.

The number of cases filed with civil courts and the National Labor Relations Board is also growing, and the holdings in those cases influence the way in which good policies must be crafted.

Some people do not realize that the NLRB pronouncements related to social media under the National Labor Relations Act are applicable to just about all private sector workplaces, regardless of whether they have a union presence.

Under the NLRA, employee communications about “workplace conditions” are generally protected, especially if they are part of “concerted activity” for the purpose of either collective bargaining or “other mutual aid or protection.”

Using these standards, the NLRB has ruled that a Costco social media policy could not prohibit “postings that damage the company… or any person’s reputation,” and a GM policy could not prohibit “offensive, demeaning or inappropriate” use of social media.

Unfortunately, the legal minefield in this area has become so intricate that companies really must have their social media policies reviewed by experienced labor counsel in order to avoid unintended liabilities.

Of course, any company or professional services firm can and should come up with their own first draft of a policy, so that reviewing counsel can see the goals that the drafters hope to achieve. Counsel can always narrow the language to accomplish those goals, or nearly accomplish them with less treacherous wording. For instance, communications that consist of threats of violence, harassment or disclosure of trade secrets or intellectual property can be prohibited. Similarly, an employer might consider prohibiting specific types of potentially damaging posts that “are not posted for the purpose of collective bargaining or other mutual aid or protection.”

Organizations should also consider publishing notice of any ways in which management monitors social media or company devices on which social media is used, which can have a deterrent effect, as well as serving a due process purpose.

And, of course, employers should consider following the examples of IBM and other leading technology companies that actually use their social media policies to encourage the use of social media for work-related purposes, spelling out many of the positive ways in which social media can and should be used to accomplish organizational objectives.

It might even be wise to appoint a social media policy director who can answer any questions that employees have about effective and fair use of social media.

Posted by: johnocunningham | November 3, 2014

Best Blog Posts of October: Top 3 Lead Generation Tactics

This is my twenty-third post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

For the month of October 2014, I have chosen to highlight  “The Top 3 Successful Lead Generation Tactics” by Stephen Fairley at The Rainmaker Blog.

I liked this post because it highlighted the results of a recent international survey of 50,000 corporate marketing leaders from different size companies in different industries.

These leaders were all asked about their “most effective tactics… to generate leads” for sales.

Two of the top three tactics – email marketing and content marketing – rely upon effective communication about practical topics that will engage a targeted audience. A total of 90 percent of marketing pros in the survey ranked one of these two lead generation tactics as their most effective.

In my own experience, professional service firms benefit from effective email and content marketing, as well as commercial corporations. Not only do clients and prospects sometimes respond to a firm that sends out useful content that is well-packaged, they also remember the name of the firm even when they do not respond to it, raising the “top of mind awareness” of the sender’s brand and the value perception associated with it.

As a result, the recipients are more likely to call you about a matter in the future even if they don’t call you right away (and usually they do not call immediately as there is no magic content that can hit all recipients at just the right time in just the right way; plus, it takes time to get people to read your content by building a reputation for providing content that is more than the ordinary pablum sent out by too many firms).

Have a great content marketing idea you want to share? Post a comment here.

And feel free to check out my own presentation on popular forms of content marketing by clicking on: ContentMarketing .

Posted by: johnocunningham | October 29, 2014

How Chief Legal Officers View Arbitration vs. Litigation

Trial advocates in private legal practice who are seeking to serve prospects and clients in more and better ways should be attuned to how their targets view alternative legal avenues for dispute resolution.

This month’s edition of Today’s General Counsel features an article on arbitration trends that neatly summarizes the views of General Counsel who were recently surveyed on the subject of litigation vs. arbitration.

Advocates in private practice would be well-advised to understand the thinking of GCs, who see a few compelling reasons to arbitrate a case (other than a contractual requirement to do so):

  • 38 percent of respondents ranked the need for confidentiality as one of the top 3 reasons to choose arbitration;
  • 38 percent of respondents also ranked “lower costs” as one of the top reasons to resort to arbitration; and
  • 31 percent saw the benefits of more limited discovery (whether by agreement or by rule of a forum).

What are the leading reasons that GCs favor litigation over arbitration?

  • 66 percent see greater difficulty in appealing an adverse decision (so a close case might tilt them toward litigation);
  • 43 percent have a problem with a lack of requirements to follow certain legal rules that courts observe; and
  • 38 percent are concerned about the neutrality of the third party arbiter.

Even if outside counsel disagrees with any of these perceptions, they are wise to understand the perceptions or their clients or prospects, and to communicate with them accordingly. Today’s General Counsel often provides interesting glimpses into the thinking of GCs in their publications.

Note: Today’s General Counsel is not and never has been one of my clients, but I regularly read their publications, which often present something of value to GCs and those who want to understand them.

Posted by: johnocunningham | October 23, 2014

Best Blog Posts of September: “Being You” in Your Business

This is my twenty-second post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I often peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

For the month of September 2014, I have chosen to highlight “The Struggles of Being ‘You’ in Your Business” by Mandy Edwards of ME marketing services.

Mandy hits on a great topic for small business owners and entrepreneurial professionals who have to engage with others continuously to maintain their business development.

She notes how easy it is to worry about being offensive or not being taken seriously if a little bit of human personality shines through the business veneer, something lawyers and accountants seem to obsess over, clothed in solid armor that prevents the sharing of anything personal or vulnerable that could build a lasting human connection with a client.

She also quotes the late Bernard Baruch, a successful investor and philanthropist, who said: “Be who you are and say what you feel because those who mind don’t matter, and those who matter don’t mind.”

That I think is solid advice, based on my own interviews with successful rainmakers, who generally seem comfortable in their own skin and enthused about authentic human engagement, despite the risks of stepping outside of the suit of armor.

This reminds me a bit of Oprah’s repeated advice to young entrepreneurs and aspiring artists: “Do what you love, be authentically you, and the money will follow.” She ought to know – she is worth an estimated $3 billion.

Posted by: johnocunningham | October 20, 2014

ABA Warms to Affordable Online Legal Assistance

As Monica Bay noted in her “Game Change” column in the October issue of Law Technology News, ABA president William Hubbard is looking at new ways of extending affordable legal assistance to small businesses and self-employed commercial consumers through online avenues once snubbed by many leaders in the profession.

Bay reported in her column that the ABA and are “teaming up to explore innovative solutions to a vexing legal paradox – the difficulty small businesses face finding affordable legal services at a time when many lawyers would welcome expanding professional opportunities.”

Currently, RocketLawyer offers legal consumers monthly flat fee membership or discounted annual plans that allow members to ask basic questions of “on call” lawyers via email or phone. Members can also download legal documents and forms prepared by lawyers, and they can hire lawyers with whom they have communicated or who they have researched in the RocketLawyer online directory.

Other competitors, such as LegalZoom, have offered similar services in the past, and they have periodically battled with state bars that have accused the online providers of engaging in the unauthorized practice of law. One state bar even tried to ban all self-help software and books sold by alternative legal providers.

But now the tide seems to be turning, perhaps because numerous surveys have shown that working class Americans cannot afford or simply will not purchase legal services offered in traditional office settings at traditionally high prices. The intervention of state legislatures in opposition to state bars, and the development in other countries of legislative broadening of alternative avenues for legal service offerings have probably clarified inevitable future trends as well. The 2007 Legal Services Act in the UK, and similar legislative developments in other countries portend further global deregulation of legal services.

The ABA should be lauded for its latest effort to find non-traditional ways of connecting potential clients to legal professionals at affordable prices. This makes a lot of sense at a time when the public is under-served despite the fact that roughly 25 percent of law school graduates are unemployed or underemployed. It is also the wave of the future.


Posted by: johnocunningham | October 15, 2014

Why Bad Writing Happens To Smart People

This little blog post was inspired by an article that appeared in the Wall Street Journal recently, entitled: “When Being Too Smart Ruins Writing.”

The column written by Harvard Professor Steven Pinker seemed to be tailor-made for lawyer-writers.

In it, Pinker explains that “the curse of knowledge is the single best explanation of why good people write bad prose.” He elaborates on that by noting that reputable authorities in their fields can simply skip over logical steps and clarifications in their writing because their professional acumen has them flying well above the ground on which most of us live.

I too have often noticed this phenomenon among brilliant lawyers when I am asked to review and edit their drafts of articles intended for publication in print or on the Web. At times, it appears that they are performing incantations or complex verbal calculus. But when I can divine the intended meaning and refine it with a little bit of supplemental research and intuition born of experience, I find that there is frequently a cogent and compelling message inside of their half-baked fortune cookie.

I also agree with Pinker that a good way to “exorcise the curse of knowledge” in your writing is to put the finished product down for a while (at least a full 24 hours) and then come back to it and read it with a mind that is now focused on another priority. If you can’t understand what you wrote the first time, that is the perfect precondition for making helpful and clarifying edits to your own work.

It is also very helpful to have critical colleagues review your work and tell you where they got lost or just plain disinterested.  As Pinker observes, this is what engineers term “closing the loop” or “beta-testing” the product. Peter Elbow, author of a number of works on writing, suggests the same approach with the inclusion of other writers in your “focus group” so that you get a writer-editor’s perspective.

As William Zinsser says in his book, “On Writing Well,” it is in “rewriting that the game is won or lost.” Thus, “rewriting is the essence of writing” and a fresh and critical eye – or eyes – can greatly improve the final product.

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