Law And More

Bad News for Plaintiff Bar: Plunge in Lawsuits Filed

The Wall Street Journal headline screams: The era of Tort Lawsuits Is Waning. 

The three major reasons Joe Palazzolo cites are:

State restrictions

Increasing cost

Lobbying by business to discourage plaintiffs' going to court (No surprise, mandatory arbitration clauses are growing both in employment contracts and financial transactions.)

The numbers provided should crush the heart of any plaintiff lawyer. In 1993, documents the National Center for State Courts, about 10 in 1,000 Americans filed lawsuits. In 2015, only 2 out of 1,000 did.

Those statistics represent a shift from championing one's so-called rights to common sense.

As a legal writer, I am frequently asked by those on my networks if they should sue about this or that. My usual response is:

• It will distract you for years from your career. This especially applies to those who perceive they have been sidelined by age bias.  They need to plow all their resources into catching on with another way to earn income.
• The experience is emotionally draining. The litigation process is filled with motions. Each development puts one on the roller coaster of hope or despair.
• You might have to pay out-of-pocket costs. They are expensive. And if you resort to litigation financing, the compound interest can eat up all the settlement or most of the damages. Don't let the big numbers in "Hogan v. Gawker" seduce you into positioning and packaging litigation as a source of revenue.
• Litigation has been and will always be a wild card. There are no guarantees of a settlement or positive verdict, no matter how much merit in any case.

There are myriad other ways to right a perceived wrong.

They range from reporting the matter to regulatory agencies to practicing mindfulness to be able to accept the world as it is. In addition, those who have down cold laws about defamation and libel can leverage social media to throw shade, without themselves being hauled into court. Incidentally, the public relations industry is growing, unlike law which is flat.

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Throwing Shade w/o Profanity - 4 Hacks for Marc Kasowtiz, et al.

Personal lawyer for Donald Trump - Marc Kosowitz - looks foolish. He lost it the way a father of a teenager does about a petty matter. Those observing all that smirk. 

Instead of responding to annoying communication in a profanity-laden manner, Koswitz could have thrown shade - that is, show his contempt for that other person - in ways that did not position and package him as just another self-important hot head. 

Here are 4 hacks:

SAY THANK YOU. The phrase "thank you" is the stand-alone put-down for any perceived slight or even injustice. I learned that from a monk in Arizona who counseled those of us with a short fuse.

His recommendation is to search for that mid point between doing nothing and letting it all out.  There sits the universal neutralizer: the phrase "thank you." Automatically, it shuts down the communication.

For example, a reader of my blog post on aging professionals, which had gone viral, sent an unsolicited link to The Economist on the subject of aging. Annoying. I went to that mid point and emailed back "thank you." Smoothly I exited that communications loop. 

MOVE GAME TO DIFFERENT PLAYING FIELD. Instead of going head-to-head, smart businesspeople simply identify a position of strength outside that context. One classic example was how upstart Pepsi took on established Coca-Cola by making cola available in retail in larger sizes. The incumbent was sticking with small bottles. Another was how upstart GM produced autos in other colors than that of the Ford Model-T.

Kasowitz could have published on op-ed in The Wall Street Journal on the issue. He could have appeared on a late night show and made a joke of it. Or, he could have brought in a third party to have the miscreant appear nutty.

SIGNAL END TO THE STORY. Technology is a major tool for sending the message that we are finished with this particular saga. Email and calls on smartphones can be blocked. Settings for comments on blogs can be set for screening before posting. Contacts on social networks such as LinkedIn can be deleted and messages can be clicked as "unread." We can terminate membership in communities such as I did with LinkedIn's Leadership Communicators Roundtable, headed by Dana Rubin. 

In person, there are the we-mean-business phrases such as "You can stop this conversation and leave or we can contact security/police."

IGNORE SUNK COSTS. In commercial relationships, there are usually the sunk costs. We might have invested eight months supposedly nurturing networking with a professional who turns out to be a type of public nuisance. So? Enduring the current inner turmoil isn't worth attempting to preserve the investment. 

Frequently what we discover after writing off all that as a brutal learning experience is that that we have over-estimated what the payoff could have been. In the future, we make wiser investments.

Throwing shadow effectively and efficiently preserves a personal brand, increases self-confidence in our emotional intelligence and deters others from considering trying to torment us. 

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Throwing Shade - Without Being Sued

Throwing shade is a necessary process to maintain mental equilibrium in this Dickensian work world.

Those who don't do that could find themselves staring out the window of a Manhattan high-rise one Monday morning ...

But, in this litigious society, so many of the usual moves to throw shade could result in being sued. A defense lawyer costs a bundle. The damages possibly more so. Gawker found that out when it threw shade on Peter Thiel.

No, we can't even mutter in public that we are considering legal action against that thug of an employer, client or co-worker. Should we not sue, the miscreant could sue us for alleged defamation.

Those of us who travel in the circles of the mentally healthy, though, have learned ways to right part of the wrongs we perceive done us and still steer clear of legal trouble. The tactics range from a moment of silence to well-practiced facial expressions to being an influencer on social media.

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Ducking defamation lawsuit

Sandbagging a professional with a negative reference just isn't done any more. Those in the loop are too fearful of being sued.

But, suppose headhunter ABC calls us about our nemesis XYZ. When the name comes up, we have a moment of silence. That will be the loudest sound resonating through the cell towers.

Usually the seasoned headhunters will then make it their business to try to dig.

A specific question is asked: What was Joe's performance at the law firm?

The form of damning answer is an evasive one: I really wasn't familiar with his work.

The next question would be: Can you give the names of those who were?

That is the ideal time to provide the contact information of his other enemies. With enough stonewalling, headhunters get the message. Their brand and revenue depend on supplying employers with excellent hires. 

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Like Hamlet, seeing words words words as burdensome

The treacherous co-worker is presenting an idea at lunch in a long-winded manner. We catch the eye of an ally and roll our eyes when we realize the powers-that-be's attention is on us. Our facial expression is preoccupied with other things. Our body language is distant from the table.

When the powers-that-be later ask us for feedback on that idea we first hesitate. Then when pushed to speak, we choose our words carefully. They are positioned and packaged as one professional's opinion. We can throw in condescending terminology such as "well-meaning."

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Doing more cautious version of a Susan Fowler

It was Susan Fowler's blog post which shook Silicon Valley in general and Uber in particular. She took on risk. Both legal and professional. But all has worked out for her. 

We can do the same sort of thing but w/o the risk. Those who have become influencers in social media can describe a situation from their perspective (hammer that is opinion) and provide facts for which they have evidence.

Several months ago, I did just that through one of my syndicated blogs. I perceived that the PNC Bank financial advisers had given me unhelpful guidance. I also presented evidence that there had been a mistake on their part that had cost me interest. 

Both Investor Relations and Compliance contacted me by phone. Within hours of my posting. There was an apology. In addition, my account was reimbursed for lost interest and additional funds were deposited for the inconvenience I had endured.

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So many spiritual organizations and schools of psychology preach forgiveness.

But first, I have discovered, that before we can forgive institutions and human beings, we have for forgive ourselves for having gotten into those soul-wearing situations. When I take action, which doesn't elicit legal push-back, I can start on letting myself off the hook. 

Capitalism is based on individualism. When we suffer, that ideology pins the causality on us. So, to exit that whole enchilada we have to right the situation, on our terms.

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Uber - AG Gangadhar, Who Headed Susan Fowler's Department, Left Company

In her blog which shook Silicon Valley, Susan Fowler did not refer to AG Gangadhar by name. But she did reference his function. He headed the engineering department in which she was employed at Uber.

Now, reports Recode, Gangadhar had left Uber.

The company states there is no correlation between how Fowler's complaints about sexual harassment at Uber were handled at Uber and this departure. 

After law firm Perkins Cole investigated Fowler's contentions, about 20 employees were fired. 

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Marketing Products/Services to Legal Sector - Should You Use Paid-Subscritption Business Model?

Last Friday, two former googlers (as Google employees are called) presented to Shark Tank.

Their startup used the paid subscription model for an educational product for kids.

Monthly in snail mail comes a coding lesson positioned and packaged with Crayola-like graphic excitement. The price point for each monthly subscription ranges from $20 go $40. The subscription can be cancelled at any time.

The sharks didn't fund the venture. The main reason for the rejection didn't seem to be the paid subscription model. Rather the googlers seemed to lack business skills. The one offer they received they quibbled about and the shark swam away.

But those of us who are assessing the paid subscription business model wondered if the googlers were handling the paid-subscription model right and, more on point, should that have been how they intended to generate the lion's share of revenue, at least right now.

Entrepreneur reports the positives on the subscription model. Recent earnings show that the New York Times Inc. is faring better in revenue because of its paid digital subscriptions.

But, the Entrepreneur article also hammers that those using it must structure it right and keep adapting it. A failure on that end had been Blockbuster.

On tech online panel show "Gillmor Gang," the experts argue about paid subscriptions. For instance, should Medium adopt that model or will making readers pay for access kill it off?

Recently, The Wall Street Journal Law Blog, which operates on a paid subscription basis, was shuttered. Abovehthelaw.com, which uses advertising and other kinds of profit centers, continues to thrive.

Most of us individual bloggers do not have a paywall, that is, require a paid subscription. Yet, those blogs can serve a commercial purpose. For me, they are a business development tool. Also they function as a profit center since I am a paid influencer. In addition, they provide platforms for networking.

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Katherine Dettwyler - High Professional Cost of Thinking Like a Lawyer

The world knows: The University of Delaware will not renew the contract of adjunct professor of anthropology - Katherine Dettwyler.

That institution of higher learning stated: Her negative comments on Facebook about Otto Warmbier did not reflect its values. 

Of course, the lawyers are wondering if the U of Delaware's decision was legal. After all, when she posted her diatribe against supposedly rich white men such as Warmbier, she was not, at that time, employed by the university.

But, there is the common sense matter that the line between the private and the professional selves currently is blurred. Maybe it always was. 

From the get-go of social media, my colleagues in ghostwriting who worked for large corporations knew they had to be circumspect. On their blogs, for example, they stuck to subjects such as how to create a thought leadership essay that would resonate. The sandbox they played in was very small. 

In good-old print days, when employed full time by a major auto company, I knew not to identify it or make any negative references to its business in my articles for The Wall Street Journal. 

The parameters of free speech often aren't aligned with professional success. That's exactly why many professionals hire media coaches. They have to learn to navigate public discourse without damaging the interests of stakeholders. That's also exactly why most organizations have carefully trained media representatives. 

Sure, there may be a right to free speech. But there can be an economic cost. Perhaps that shouldn't be the situation. But it usually is.

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Lawyers, Law Students - Learning to Hunt for Today's Dinner

Bad news sells.

So, Bloomberg's article about the 10 jobs most likely to disappear is attracting lots of eyeballs.

It doesn't list practicing law. But, with the accelerating pace of implementing Artificial Intelligence (AI), it should.

On Abovethelaw.com (ATL), Robert Ambrogi keeps up-dating busy-bee LexisNexis in that niche.

Eventually the traditional law firm could operate with a small core of seasoned legal strategists and lots of subscriptions to AI services. The first jobs to go will be those contract assignments in document review. The next will be those of inexperienced associates. 

However, that shouldn't be news.

The traditional concept of "job" is totally mid-20th century. That was the era of the BigJobs.

We Baby Boomers recall landing great ones. And we are the last generation who could travel a linear career path. Perhaps DailyJobCuts.com should change its name to "DailyLossofIncome.com. That site would report how many income-producing slots were shut down. 

According to researchers at the University of Oxford, in the coming decades, about half of the current jobs (which it's already smart to think of as income-producing slots) in America will vanish. And, no expert can predict what will replace those slots. 

Also, and this is the really tough nut to crack, no one can specify the most effective and efficient way to find work. As is obvious, so many displaced lawyers are doing that all wrong.

Network? That could get you labeled as a pest or, worse, a has-been. 

Be aggressive. That can make you come across as desperate.

Creative. So many have been too out of the box.

In the box. That doesn't get attention.

Story-telling is the meme of our time. The stories which should be in demand, on a grassroots basis, are the personal testimonies of those who got work. It's increasingly irrelevant that the story-teller held onto the work.

On ATL, under the pen name of Alex Rich, current editor Karen Rubino chronicled her search for work in the document-review ghetto. She provided details on everything from the need for anger management when being treated as if you were invisible to hustling for the next gig before the current one ended. That story-telling helped land her a full time job at ATL.

It had been my story-telling on my communications blog http://janegenova.com which resulted in a major marketing communications project with a career service. The saga was about the shame I couldn't shake about losing a BigJob way back when. 

Is it obvious to you now that, yes, mankind is back to hunting for dinner every day day? Yesterday, my dog LOV and I had ate well. Yet again. I had bagged an assignment, paid by PayPal, for editing a proposal for venture capital. 

That's done. Before I go out there today, I have to figure out where exactly I should be hunting.

For instance, should I leverage this skill in proposals?

Or will dinner be easier to find in the lucrative but downsizing book-ghostwriting niche? 

Smart people want to hear that story. People stuck in the mid-20th century want to hear about career paths. 

Members of the legal media who want to be helpful to employment-challenged lawyers should solicit those stories.

My own story about working as a security guard in an inner city Home Depot back in 2003-2004 has had more than a million downloads. Here you can pick up some hands-on insight about how to go hunting when your old bow and arrows not longer bring home the bacon. BTW, my tale of a crash and bounce-back brought in a four-year legal-oriented assignment. 

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Yes, Law Students, Solos, SmallLaw, BigLaw - Blog

On Abovethelaw.com today there are two articles on blogging.

Yes, operating a blog does develop a brandname. Yes, it does bring in business.

Why is there need to deliver this message?

Well, in the volatile world of social networks and social media, blogging is a mature entity. Way back in 2004, Ana Marie Cox was dishing the dirt about Inside the Beltway. It was on the Gawker blog platform.

Since then, so many other platforms have emerged. Being compulsively on LinkedIn Update, Facebook, Twitter, Medium and Instagram seems a lot more cool.

Yet, the blog remains a powerful tool to create unique reputational space out there and develop new business. In addition, for lawyers who hope to turn their communications skills into a profit center, it constitutes an online portfolio. Also, search engines tend to give the blog posts high rankings. That is, if bloggers are doing it "right."

By "right" I mean leveraging the best practices, at the time. Those change with the times, Currently, best practices include:

• Topical references. It makes common blogging sense to opine on X issue before, during and after the U.S. Supreme Court is reviewing it or making the decision whether or not to do that.
• Keywords. The best tutorial in that is to monitor continually what terms high-traffic sites are posting.
• Catchy headline. In this era of distraction, the headline is everything.
• Unique angles. No one wants to ingest platitudes about obstruction of justice. Figure out a provocative angle. Do research. Position and package all that as would a copywriter such as Don Draper on "Mad Men." No, don't sound like a lawyer.
• Outbound links. Those organizations and individuals track those links. They might start inbound links to your blog.
• Post links on other social networks and social media.
• Re-purpose. For example, it can be modified for a post on Medium or a LinkedIn Group.
• Do frequently. No, three times a week in not enough.
• Live-blog special events such as a seminal presentation or panel on impeachment. Add live tweets.

I operate three syndicated blogs. The other two are http://jangenova.com and http://over-50.typepad.com. About 60% of my new business comes from them, directly and indirectly. In addition, I have become a paid influencer. You bet, blogging is a profit center for me.

I learned plenty from watching how Don Draper on "Mad Men" approached framing material.

Binge watch "Mad Men" episodes this coming weekend. The most useful lesson for me was Draper's nostalgia work for Kodak. Here you can experience it.

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Beware What You Blog - U.S. Senator Diane Feinstein Could Hold It Against You

As a nominee for the 6th Circuit, John K Bush proclaimed he would follow precedents. Those included "Roe v. Wade." However, years before he blogged how abortion was among the nation's tragedies.

The disconnect between the two statements didn't get by U.S. Senator Feinstein. As lawyer-journalist Kathryn Rubino at Abovethelaw.com reports, Feinstein snapped back that Bush was under oath.

The only bloggers I know who haven't been caught in this kind of mess are those who currently work in large corporations. From the get-go, they are socialized to be totally circumspect. Anything they state in any format in any medium, they have down cold, can be held against them.

In smaller organizations, the same kind of tutoring usually doesn't take place. One woman employed in an academic institution blogged she was so stressed out at work that she felt like killing some folks there. You know the rest of that story ...

 

Erudite Legal Marketers - All Those Links Are Giving Prospects Pathways to Escape Your Content

Legal Marketers tend to want everything documented.

So you include plenty of links in your blogs, web content and email blasts. Big mistake.

Those links provide a pathway for prospects to escape your content - and not return.

For example, your link can be to the Law.com article explaining X or Y. Your prospect clicks that on.

In the Law.com article are links to other information. The prospect follows that narrative - and does not navigate back to your content. 

The link you must include is the "click on" to your Call To Action (CTA.)

Increasingly, clients I create content for have returned to the pre-digital mode of just citing the source. No links. The copy might read:

"According to Recode, the organization's culture impacts the bottom line - and stock price."

You can test this out in your email blasts by using two versions. One with links. One with no links except for the CTA. Study the metrics about results from each.

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