Posted by: johnocunningham | September 30, 2015

Press Relations: Do’s and Don’ts

As we draw nearer to the 2016 election cycle, I can’t help but notice more of the usual silly gaffes by politicians in press interviews, reminding me how even public figures  in the limelight can make basic mistakes in dealing with the press.

With that in mind, here are just a handful of tips from my one-hour basic training class on press relations that can help anyone to perform better in interviews and cultivate good press relations:

  1. Prepare for the interview. A press interview is not just a conversation. It is usually a brief chance to say something pertinent and informative that will stick in the minds of reporters, viewers and/or readers. Being concise and memorable is not an accident. It is a result of preparation for the likely questions. For instance, President Ronald Reagan knew he was likely to be asked about his fitness for office when campaigning for re-election at age 73, and that is why he rehearsed a witty response to an inevitable question about his age, stating “I will not make age an issue in this campaign. I am not going to exploit, for political purposes, my [56 yr. old] opponent’s youth and inexperience.” For those speaking to reporters for print publications, it is also important to be prepared so that you don’t waste the reporter’s time or end up having the reporter terminate the interview early because he or she decided that you can’t get to the point fast enough.
  2. Don’t try to control a press encounter. In my experience as a reporter, too many sources who are learned professionals try to control the interview. They think they know best what questions you should ask, what you should write, and what the end product should look like. They have no idea how the press works. They don’t understand that an editor approves the story, the angle on the story and the final product (or not). They come off as amateurs trying to do dictation to their secretaries. Treat the reporter as a professional, and don’t try to do their job for them or talk down to them. Just answer the question that is asked. Also, you can ask to have your quotes read back to you (though that is not something busy reporters like to do) but you should never, ever ask to proof the story before it goes to print, as that is just not going to happen (unless you have a very unusual relationship with reporter and editor).
  3. Call the reporter well ahead of deadline. Another amateur move is to call a reporter five minutes before deadline to offer a quote or observation about a story. First of all, the reporter has probably written the story by then, and your call is not likely to be taken. But even if the reporter is hurriedly putting the finishing touches on the story, he or she is not likely to squeeze in your one quote they have time to get on the phone. The later you call, the less likely your observations are needed. The earlier you call, the more time the reporter will spend with you, and the more likely they will lean on you for key information in developing the story. So call early – not late.
  4. Don’t go “on the record” and then “off the record” repeatedly. This is another stunt that shows you are both unprepared and unpracticed in dealing with the press. If you want to offer some material “on background” to help the reporter understand the story (without being quoted) that is fine, but don’t do too much of that. The reporter needs sources willing to speak. If you are not willing, then refer them to someone who is. Understand also that you can say some things without attribution or with limited attribution. You could agree with a reporter that they can refer to a source as “a Boston employment attorney” if you want to speak to one sensitive issue in the story without your name being used. But basically, if you don’t want to be quoted, don’t bother calling back to talk about the story.
  5. Ask the reporter how you can help them (other than by just answering questions). They might need other sources who are knowledgeable about specific issues in the story – sources you might be able to introduce to them. They might need background information and you could recommend a basic text or primer. They might also need and will usually welcome input on future story ideas pertinent to their “beat.” For instance, a reporter covering legal news might like to have a source send periodic notes about topical stories developing in the legal world, whether or not they have anything to do with the source. Your credibility is especially enhanced and your input valued when you can offer helpful information on stories for which you will not be an expert commentator.

If you do a great job of helping a reporter, you will go in their black book with a five-star rating and you will get called again and again. If you are a pain in the butt, you will go in the book with one star, and a big “do not call” sign next to your name. Oh, and reporters share notes with other reporters – in some newsrooms they even have one collective source book. So treat the reporters like the professionals they are, and don’t lecture to them.

You can also get more press attention by participating in press searches for experts on various subjects. Check out, for example, the “HARO” organization, which stands for “help a reporter out” by going to


Posted by: johnocunningham | September 18, 2015

Ten Hilariously Misused Legal Terms

I was watching television the other night and noticed the use or misuse of several legal terms. It was amusing to see people doing “man in the street” interviews who were attempting to talk in “legalese” despite obviously not being lawyers.

Lawyers take a lot of criticism for speaking in the terms of the trade, yet so many people try to imitate them without success.

So here is my blog post on commonly misused legal terms with explanations of correct useage and origin:

  1. Moot point. When an issue is not determinative of an outcome, it is said to be a moot point. It is not a “mute” point, as so many people say, and it does not refer to something that is quiet or unspoken.
  2. Per se. This means literally “by itself” but in legal use may have other meanings, as in the case of negligence per se, which is a kind of “automatic” negligence when one violates a statute designed to protect the public. Hilariously, some people just seem to sprinkle their language with random “per se” references to sound lofty. It does not work. You don’t sound smart when you say “I’m not accusing him of lying per se, but just generally being untrustworthy.” Note to self: also avoid the confusion of “per se” and “pro se.”  Pro se is a term roughly translated as “for oneself” as in the case of someone who represents himself in court and is considered a “pro se” litigant. It is not appropriate to state: “I am not a doctor pro se, but I do have medical training.”
  3. Pro forma. I often hear someone say that something is just “pro forma” when referring to a document or an administrative act. The phrase can be literally translated as “for the sake of form” but that is not how it is used by professionals. Generally speaking, lawyers and accountants refer to “pro forma” statements as “forward looking” or “predictive” statements, such as “pro forma” financial statements, which are nothing more than projections based on assumptions. By the way, the phrase is not “per forma” either, though I have heard that too.
  4. Blue Sky. From time to time, I hear people say that “we can just blue sky this thing” as if to say, we can make it public or we can clarify it for public consumption. Sort of close, but not quite right. The phrase actually came from Judge Louis Brandeis in speaking about the purpose of disclosure laws related to securities (stocks and bonds). He said the purpose of the law was to make things as clear as the blue sky for investors. Thereafter, state securities laws (as opposed to federal) became known as “blue sky” laws, and that is the blue sky to which lawyers are generally referring in practice.
  5. Tortious. If someone’s conduct is negligent, destructive or defamatory, lawyers may refer to it as “tortious” conduct. I have heard people refer to this as “torturous” or “tortuous” in trying to sound legalistic. The word “tort” means twisted, and don’t ask me how it came to mean “legally culpable” but it did. Sorry, no relation to torture (unless you negligently or deliberately torture someone).
  6. Fiduciary. This can be a noun or adjective. A fiduciary is someone with a fiduciary obligation to another, such as an investment adviser who is a trustee and owes a trust beneficiary a fiduciary obligation to act in their best interests with the highest degree of diligence and caution. I once heard someone introduce his close friends as his “fiduciaries” and I have heard people refer to their “fiduciary” actions when they meant “responsible” actions. Again, close, but not quite.
  7. Due diligence. I have heard people say “let’s do diligence” on the this deal, or “it is no big deal, it is just due diligence.” I am not sure what they were trying to convey, but I am pretty sure they picked it up from lawyers. Attorneys use the term to describe the work necessary to protect a client being represented in a transaction. For instance, “we have to perform environmental testing on properties the client wants to purchase as part of our due diligence.”
  8. Due process. The phrase is not “do process” although I have heard people say that we need to “do process” on a transaction or a dispute resolution. Due process refers to the type of process in a trial or hearing that will guarantee fundamental fairness to the parties, and most importantly to the defendant or the accused in any controversy or proceeding.
  9. Hearsay. I think many people use this term interchangeably with the word “gossip” but it has a more technical meaning. Hearsay refers to “an out of court statement offered by a party as evidence to prove the truth of the matter asserted in the out of court statement.” There is a rule against using hearsay evidence not because it is gossip, but primarily because the person who allegedly made the out of court statement may not be available for confirmation or cross-examination regarding what they meant (or if they even said it). There are also more than two dozen exceptions to the hearsay rule, so hearsay is often admitted into evidence where there are sufficient indicators of its reliability and authenticity.
  10. Statute. There is a statute of limitations, but there is no “statue” of limitations.  Legal statutes are written laws passed by the legislature (as opposed to administrative regulations that have the force of law, but are passed by agencies empowered to act by legislatures). There no legal statues, except those erected in the town square pursuant to duly authorized and publicly funded actions.

If you work with lawyers, and want to understand their language and concepts, I offer courses in “decoding and demystification of law” (for legal marketers and other providers who must work regularly with the legal profession).

This is my 33rd 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 August 2015, I have chosen to highlight three blog posts:

  1. A post by Tom Kane on the Legal Marketing Blog, entitled “How to be Effective at Getting Referrals.” This post has some helpful links to other resources on the same subject and is short, practical and elegantly simple.
  2. A post by Danielle Diforio on the Clockwork Design Group blog, entitled “Website Redesign: How Much of Your Time Will It Take?” This post provides a nice breakdown of the time elements involved in doing a website redesign, including the all-important updating of written content.
  3. A post by Janet Stanton on the Adam Smith, Esq. blog, entitled “R&D for Law Firms: Can We Learn From Corporate America?” This post offers a meaty, detailed exploration of why law firms are not good at research, development and innovation, and it provides a practical prescription for how this can be improved. Law firms will need to take heed if they don’t want to lose more and more market share to alternative legal solution providers.


Posted by: johnocunningham | September 4, 2015

What Managing Partners and Practice Leaders Want From Legal Marketers

September is here, and in-house legal marketing pros need to begin preparing budgets for 2016. Some will even have to justify their existence once again, and prove how legal marketing produces a return on investment for lawyers.

So this is a great time to take stock in what leading lawyers – such as managing partners – have to say about legal marketing and what they want from their in-house professionals.

I have had a chance to ask many managing partners what they most want to get from their legal marketers that they are not getting now, and I have discerned that there a few answers to that question which are common to the majority of law firm leaders.

The biggest recurring themes as to what legal marketers have to work on are:

  1. Knowing the client’s industry. This is ironic, considering that legal marketers have been preaching this axiom to lawyers for years. Marketing pros may think they know all about the legal industry, but the managing partners and those lawyers charged with marketing oversight don’t think so. I have not had a chance to delve deeply into what is behind this complaint, but I have been told that marketers don’t understand the practice of law well enough. They don’t bother to learn the lexicon of law, they don’t learn the concepts of each legal discipline in the firm, and some don’t even seem interested in doing so (as if “the law” were some place in outer space that nobody sane would want to visit).
  2. Knowing the client’s business. Again, this is ironic for obvious reasons, but a number of managing partners have told me through the years that they would love to ratchet up the understanding of how and from whom their firms make money, what it costs to run the business, who their principal referral sources are, and more. I wonder why managing partners would not push this business information out to legal marketers and set a clear expectation of understanding it, but perhaps the partners want marketers to take more initiative to gather this information from practice leaders, accounting people and IT people who can pull together lots of data. Marketers often complain that firms don’t do enough data collection, but maybe the marketers just need to take the bull by the horns and go get that data. When I was a chief legal officer, I did not wait for my CEO to hand me a set of data he wanted me to analyze about legal settlements, verdicts, risk exposures and legal representation expenses for the company – I flushed the key data out from other departments and then presented it to my CEO along with recommendations about how we could do better. Some of my proposed initiatives were adopted, others not, but the CEO was always comfortable that I was doing my job of presenting him with the information garnered from hard work and presenting proposals for improvement based on the data he thought was relevant.
  3. Knowing the client. We hear this same complaint from general counsel, who say that lawyers would do well to understand their individual preferences regarding methods, styles and regularity of communication, as well as what is most important to communicate. It is important to present critical information to the partner that the partner views as relevant, and the information must be communicated in the style, time and place that facilitates the client’s focus on it. Marketers know that, yet managing partners and other lawyers who are charged with legal marketing oversight have repeatedly stated that this is an area where in-house marketers need improvement.

With some improvement in these key areas, legal marketing pros can earn the respect they deserve while greatly improving the client satisfaction scores among the lawyer-clients they serve. As marketing-communication professionals, we all understand that lawyers are in a service business, but sometimes we forget that we are too.

I offer to legal marketing clients crash courses in law and working with executives based on many years of relevant experience. For more information, please feel free to contact me at the phone number or email address in the right-hand column of my site.

Posted by: johnocunningham | August 31, 2015

Clients Taking Legal Business Elsewhere

After reviewing the “2015 Law Firms in Transition” survey by Altman Weil this weekend, I decided to post some thoughts about what the results mean for lawyers in private practice because the revelations are really surprising.

The survey garnered responses from 320 managing partners and chairpersons at law firms of 50 or more lawyers around the country (more than 2/3 of responses coming from firms of less than 250 lawyers) and it delved into a number of subjects, but most interesting to me was the subject of new sources of competition.

Law firm leaders in the survey revealed that they are definitely facing greater competition from traditional and non-traditional sources, weighing in on the subject as follows:

  • 83 percent of leaders stated that non-traditional competition is part of a permanent change in the market;
  • 67 percent perceived that they are losing business to corporate in-house providers (presumably in-house counsel, risk managers, compliance departments, etc.);
  • 24 percent perceived that they are losing work from shifts to technological solutions (presumably e-discovery providers, automated legal search solutions, etc.);
  • 17 percent perceived that they are losing legal or quasi-legal business to non-law firm providers, such as accounting firms or specialty firms; and
  • 9 percent perceived that they are losing work that is being delegated to new kinds of legal providers (such as temporary in-house counsel and the like).

Incredibly, fewer than half of respondents indicated with respect to any single form of competition that it was a “potential threat going forward.”

In fact, not only are these new forms of competition serious threats, they are growing by double digit percentages each year, according to numerous sources (see some of the statistical marketplace analysis done by Susan Saltonstall Duncan at Rainmaking Oasis for verification).

Also, the percentages in the survey are based solely on the law firm leaders’ perceptions of whether they were losing any business to competition. The numbers would be much, much higher if these firms actually engaged market-savvy consultants to survey clients about where they are taking their business. I have heard way too often from lawyers that “clients will send us work when they have it, but they just have not had any to dish out lately.” This is more wishful thinking than reality, at best based on something that a few harried clients might have told business-soliciting lawyers to get them off the phone.

It is also stunning that 63 percent of law firm leaders say that they are not reacting to these marketplace forces with any major change initiatives because “clients are not asking for it.”

Well, when your phone doesn’t ring, and your client hires someone else, that is the sound of your clients “asking for it.” Actually, in many cases, it is the sound of your clients telling you they don’t believe you can or will change your approaches to deliver more efficiency, value, creativity, or speed in production, and that is why they did not “ask” for it.

But you don’t have to wait until your clients stop calling to figure out what is on their minds. You can get ahead of the game by working with professionals who make it their business to know how your clients think.

Using my years of experience as a General Counsel, chief legal officer and reporter who has conducted numerous surveys and client panel events, I love helping firms get inside the heads of their clients to improve service, enhance relationships and grow revenue. Feel free to call for more info about my 75-minute program on “CEO and GC preferences for law firm marketing and services.”

Posted by: johnocunningham | August 19, 2015

Top Communication Complaints of Clients

In my experience interviewing both commercial and consumer clients of law firms, the top communication complaints are the same:

  1. “It takes forever to get a call returned (or email replied to) and I end up calling multiple times to get a response.”
  2. “Nobody ever tells me what is going on with my case/audit/probate/permit or license/government filing, etc.”
  3.  “I spent an hour talking to my lawyer and I was more confused when I finished than when I started. Why can’t he/she speak English?”

You might think that these complaints are only in reference to really bad lawyers, but that is not the case. Often, the busiest lawyers in the greatest demand seem to be unable to develop an operational system that keeps clients informed in plain and simple language that they understand. Many also seem to be oblivious to just how annoyed their clients are, perhaps because they are so focused on the heavy demands of daily practice.

Lawyers don’t need to hire expensive consultants to tell them how to fix these problems. They just need to set up a simple process, communicate it and inspect its operational efficiency periodically.

For example, each problem could be prevented from recurring as follows:

  1. Institute a policy in your office that ALL calls are to be returned within 24 hours, NO EXCUSES. The call might be returned by a paralegal or secretary saying that the attorney is at trial, and can call next week, but a call must be returned so that the client is not sitting in the dark wondering what happened (one client I recently interviewed told me her attorney had a stroke and nobody told her about it for several weeks while communications went unanswered). An attorney may provide access to emails and phone messages to responsible associates to insure responsiveness, or the attorney can simply respond to clients after hours via email, but whatever the methodology, the communication must take place with the client within 24 hours. Periodic spot checks with clients, which can be done by secretaries, can determine whether the policy is being followed. It also pays to reward the secretary or assistant for discovering policy violations – that way you know that nobody in the office is part of a “conspiracy of silence” on complaints (this is something top notch service companies figured out a long time ago).
  2. Institute another policy that every client must be updated on every matter at least once per month. It might not be unusual for lawyers to experience months or even years of delays in litigation, in probate, or in government applications for licenses or permits. But it is NOT what the client expects. They expect and deeply appreciate even a one-line letter telling them the reason for any delay, the strategy for fighting it, and what forward progress, if any, was made this month. Make sure that memos to the file or copies of monthly client communications are in the client files. If spot checks show they are not, there must be consequences. Clients get downright angry with lawyers for accepting the complacency of legal or regulatory processes rather than fighting for the client to get things expedited. Believe me, they get so angry they can NOT talk to you about it (and thus you don’t know it is happening).
  3. Test your client communications on a focus group. Pick a few people inside or outside of your office who are not lawyers to review samples of your written communications and provide feedback on them. Try having one of your support staff – one of your trustworthy, courageous and vocal staff members of long tenure- sit in on a client meeting to just listen. Ask them after the meeting how you did and where they got lost listening to you. As lawyers, we talk in jargon, just like any other professional. It is so much a part of our education and our training, that we don’t even know it. We have to remember that our clients do not speak this language. Even lawyer-clients hate it when someone does not explain things to them clearly (a commercial lawyer may know little or nothing about trial practice or IP or other legal disciplines, but they expect their counsel to not just know about it, but explain it simply and quickly.)

There is no reason to lose a client due to a mere communications glitch… and yet, it happens all the time !

Posted by: johnocunningham | August 15, 2015

Discontent: The Key to Growth?

A tweet about the role of dissatisfaction in sales caught my eye this month just because I have never seen anything written on this subject. The tweet linked to an article entitled, “Dissatisfaction Leads to Growth.” In this piece, Author Anthony Iannarino artfully made the case that satisfaction leads to complacency and dissatisfaction to positive change (or at least action in search of positive results).

This called to mind the many times I have interviewed managing partners, CMOs and other change agents who have successfully launched sustainable growth initiatives in their firms. In each case involving significant cultural and institutional change, I recall that discontent with the status quo was the catalyst for change.

For example, I remember Reed Smith’s former managing partner Greg Jordan telling me that his firm launched a number of successful growth initiatives, instituting fundamental operational changes right after the late 90s, when some of the firm’s “Rust Belt” clients were slumping in Pittsburgh and other cities where the firm was located. These clients had suffered economic disruptions related to technology, outsourcing and global competition, and the firm needed an action plan to capture more business in both good times and bad.

Of course, Reed Smith soon went from being a regional firm to an international powerhouse, but the many changes that caused this to happen all began with widespread, though not unanimous discontent with the status quo. (For a look at how this happened, check out “The Reed Smith Rocket Formula.”

Authors, inventors and sports coaches have also recognized the role of dissatisfaction or discontent in making forward progress. Oscar Wilde famously said that “Discontent is the first step in the progress of a man or a nation” and Thomas Edison once quipped that “Discontent is the first necessity of progress – show me a thoroughly satisfied man and I’ll show you a failure.”

Closer to home and more contemporarily, legendary football coach Bill Belichik has said “We can’t afford to look back on our record. We always try to work harder on looking at things we’ve done in the past, asking is it still what we want to do, and who can make plays that we haven’t looked as closely at… as soon as you are satisfied with yourself, you’re in trouble.”

So perhaps what legal marketers and business developers first need to cultivate in their firms is a little bit of educated discontent, based on knowledge of the competition, understanding of evolving client concerns and demands, and the inevitable disastrous consequences of being satisfied with the “way we’ve always done it.”

A column earlier this year by Altman Weil’s Eric Seeger, which was entitled “Five Things Associates Tell Me,” touched upon three common associate attorney complaints that are related to communication.

These three issues should not be that hard to fix, and so present a huge opportunity for law firms to ratchet up associate satisfaction and productivity without significant expense (improvements in employee satisfaction are well correlated to improved productivity).

The three communications issues that most commonly need attention are:

  1. Explaining the firm’s mission, vision and direction while telling associates how they fit in (or don’t);
  2. Providing more feedback and training, not on the law (they got the academics in law school) but on the practical side of things – dealing with clients, dealing with the right people at the courthouse, doing whatever it takes to get things done quickly and satisfactorily; and
  3. Explaining what it takes to make partner, what it means to make partner, and doing so consistently among partners (or explaining why 10 different partners give 10 different answers as to what it takes, and acknowledging that you have to please all 10 of them, or 9 or whatever).

Communication issues don’t require a lot of money to solve, but they do require some time and commitment from the key decision-makers, who may need an outside professional to facilitate a productive group deliberation that will result in clear direction and communication for all.

This is my 32nd 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 July 2015, I have chosen to highlight, first and foremost, a post on the subject of “Lose a Client, Gain Some Perspective” by legal sales and service expert, Silvia Coulter, at LawVision.

This post provides some great questions that lawyers and legal marketers should be asking of clients or prospects when a bid for business fails. In my experience interviewing corporate client representatives, most say that they would be willing to chat with those who failed to get a first assignment or a follow up assignment from the client representative. Most also say they give plus points to lawyers and firms that actually ask why they did not get business and how they can improve on their next assignment or bid for a first or second assignment.

I also enjoyed Sue-ella Prodonovich’s post on “25 Ways Corporate Clients View Law Firm Marketing” because it provided some nice insights directly from coveted corporate clients who appeared at this year’s LSSO RainDance conference.

Those who have read my blog regularly know that I am closely watching the development of IBM’s Watson – the computer system that uses artificial intelligence to scan massive amounts of data online and responds to questions posed by humans with thoughtful and reasoned analysis. Watson is already working at Sloan-Kettering hospital to assist doctors in diagnosis and prescribed treatments based on massive amounts of input related to patient diagnoses, outcomes and treatments across the world.

Now Watson has “graduated” from a Canadian law school enrollment with ROSS Intelligence, which tested and trained Watson to recognize legal issues and provide legal analyses for various fact patterns. As discussed in a recent post at the “Three Geeks and a Law Blog,” Watson is now being tested at certain U.S. firms, but still has a long way to go in development. But as those of you know who watched Watson compete on Jeopardy, the system learns fast, much faster than any human being, and it won’t be long before it becomes a big factor in the speed, quality and cost of legal service delivery.

Finally, I also will mention here a nice practical tip posted on the Clockwork Design Group blog, which offered some tips on using Google’s underpublicized service for photo management storage, sharing and sharing.

Posted by: johnocunningham | July 28, 2015

Worker Use of Social Media Protected by NLRB

As a recent article in Today’s General Counsel illustrates well, employers are stepping into a potential minefield when disciplining employees for inappropriate use of social media.

As the article points out, the National Labor Relations Board (the “NLRB”) is continually expanding the protective envelope of “concerted activity” by labor, ruling for example that the following may constitute protected communications on social media:

  • Complaints about the types of snacks offered at a company event;
  • Posts about an employer not issuing paychecks promptly enough; and
  • Posts about co-employees related to working conditions.

Employers need carefully crafted social media policies that have been reviewed by counsel in order to provide their managers and staff with clear guideposts of what is permitted and prohibited in the use of social media relating to the company.

Employers also need regular, well-crafted internal communications about all of their management decisions in order to defuse potentially explosive rumors, limit destructive gossip on social media or in other forums, and reinforce the mission, values and immediate objectives of the team as a whole.


Older Posts »



Get every new post delivered to your Inbox.

Join 235 other followers