Law And More

Jones Day - Lack of Transparency in the Service of Collegiality

Gender discrimination lawsuit "Tolton, et al. v. Jones Day" has seemed to get under the skin of that elite law firm.

Yes, Jones Day is the defendant and it has been reacting.

Here is the latest in the myriad media articles about how this usually secretive firm has come out swinging. In very public ways.

This Law.com coverage is of Jones Day's filing in U.S. District Court of D.C. of sanctions against the law firm representing the plaintiffs - that is, Sanford Heisler Sharp.  Essentially, SHS is the go-to firm for employment-related complaints by workers. Here is a copy of that January 24, 2020 filing by Jones Day.

The odd-for-Jones Day behavior started when it posted a response to the lawsuit on its own website. That was April 2019. Here it is. And, here is a copy of the amended "Tolton" lawsuit, filed in June 2019.

The amazing development in Jones Day's outreach about "Tolton" is that in the most recent filing it defends its iconic black box culture, particularly its confidential compensation system.

In the filing, Jones Day explicitly says:

"When compensation is individualized and merit-based, confidentiality helps to promote collegiality ..."

By "individualized," it means it doesn't follow the lockstep pattern some other law firms practice.

Such collegiality, Jones Day contends, prevents the ego, arrogance, and resentment from interfering with rendering the best in client service.

However, that pits the supposed benefits of confidentiality against what might be generated by transparency. 

Law is no longer a genteel profession. It is a business.

In all forms of business, transparency is being increasingly demanded. Constituencies, ranging from employees and clients to government regulators and third-party payers such as insurance companies want to, need to know what is going on. 

That's especially the situation in the supposedly selfless helping professions. That's what I argue for in this article about transparency in the practice of psychotherapy.

What are insurance companies and the clients who pony up the co-pay funding? Is the methodology off? Is the fit in the therapist-client relationship off? I had to hire a lawyer to obtain the clinical records of my treatment wtih therapist David W. Harder. After I reviewed them I perceived, no, the two of us had never been on the same page.

Controversy, some public relations representatives assert, is all good. 

Maybe. It could have a positive outcome if managed brilliantly.

However, the controversy over "Tolton" doesn't seem to be managed appropriately by Jones Day. Can its branding become tarnished?

This is amazing material for a case study on crisis communications. The crisis here, as I read it, is that it would be a catastrophe on many levels for "Tolton" to make it to court. The black box would be pried wide open.

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The Amazing Elizabeth Holmes Now Plays Lawyer

At one time, it had been superlawyer David Boies of Boies Schiller who sat on the Theranos board of directors and represented its founder Elizabeth Holmes. (In his book "Guilt by Accusation," Alan Dershowitz labels that dual role a conflict of interest.)

Now, reports Fox, Holmes has gone pro se in the Arizona civil fraud lawsuit. It was brought against her, Theranos and Walgreen by consumers. The plaintiffs contend the defunct blood-testing startup misrepresented the finger-prick technology. 

Holmes had failed to pay the legal bills to the team who had been representing her in this civil litigation.

Often courts strive to assist pro se clients. However, given the complexities of law, the odds are against those who represent themselves. Also, if the opposing parties are represented by lawyers, they had a distinct edge. Here are the six common mistakes pro se litigants make.

A date has not been set for this civil trial. However, Holmes' criminal trial kicks off this coming August. In Silicon Valley, it could be the media circus "Ellen Pao v. Kleiner Perkins" had been. Pao lost. Her career never took off again.

Holmes seems finished already, before any courtroom action begins. Many look forward to her serving prison time. Intuitively, some conclude Boies' association with Theranos and Holmes contributed to his recent loss of brand equity. 

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Law Firm Media Pitchers - Perfect Storm of Impeachment, Coronavirus, Weather

Even with the internet, the media doesn't have infinite capability for coverage.

After all, manpower is finite.

Right now humans are still needed to assess the news/public interest value of developments and format the selections for publication. That might someday be the tasks of robots. But not currently.

So, in-house media staff in law firms and at outside public relations agencies representing law firms might be hitting a wall. Their pitches are not getting developed into stories. That's both at establishment and digital native media.

What is being covered are those stories with strong, long legs. Today, they include:

• Impeachment - ABC's David Muir was onsite in the U.S. Senate. Drudge Report stood out for headlining not with that but the coronavirus. What media outlets are doing with the story has itself become a story. This is to be expected in an era when media is the most powerful institution in the world. 
• Coronavirus - The Spanish Flu in 1918 infected one-third of the humans on planet earth, It's estimated 20 million to 50 million died. That pandemic had been featured on "Downton Abbey." Remember when Cora almost died! The dominant mindset is: After more than a century, another pandemic is due. 
•  Climate change may or may not have brought the extraordinary cold, along with snow. But the cold is what most parts of the U.S. can't shake. How will this worsen the obesity epidemic and how many unwanted children will be conceived? Clever journalists have a God's Plenty of angles to pursue on this. Among them is this: The high energy bills for staying warm are eating into the ability to pay other kinds of bills. Will this trigger a consumer-driven recession?

No, this preoccupation of the media with just a handful of stories might not let up. Media outlets can get used to the efficiency of hunkering down with a small number of events and keeping the story running. That could further narrow the doorway for law-firm pitching.

One option is for media reps to excel at search engine optimization (SEO). Here is SEO guru Neil Patel's Advanced Cheat Sheet.

There are two killer SEO tactics:

Here is the scoop on getting Google to choose the law-firm posts for "featured snippets."

And, here is how to attract exactly the right attention through long-tail keywords. 

It was New York University professor Scott Galloway, an internet expert, who observed that, globally, media is a zero-growth game.

Journalists and editors gotta do what they gotta do to hang on. That frequently means not investing resources in stories which won't be clickbait. Harvard Law professor Lawrence Lessing is suing the New York Times Co. for allegedly creating a misleading headline and lede about his statement regarding Jeffrey Epstein's donations to elite universities. He contends that happened because the newspaper of record was chasing clickbait. 

Law-firm media folks have to create their own media. That's done brilliantly by the experts serving Sanford Heisler Sharp.

Takeaway: Media players at law firms and the pubic relations agencies which represent them can't "outsource" coverage, not any more. They have to be the media.

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Crazy - The Edge, Dating Back to Puritan Times

Johns Hopkins professor Kay Jamison documented the correlation between creativity and mental illness. That was in her breakthrough book "An Unquiet Mind," which remains a brisk seller. Although published way back in 1996, it still ranks 1,969 on Amazon. Here it can be ordered.

Incidentally, Jamison herself struggles with a bipolar disorder and had attempted suicide. In 2002, she won the MacArthur Genius Award ($500,000 was the monetary part).

Yet, those with various sorts of mental illness can't shake the stigma. Actually, that bias against mood disorders and intermittent faulty perception often eats deeply into their own self-esteem. They drag around that diagnosis like stink on their shoe. 

Help could be on the way. Really.

As the New York Post records, the Van Gogh Museum is in the loop of certifying two things. One is that Vincent Van Gogh's self portrait is not a fake. And, two it was created by him in a psychotic state. The authenticity had been debated because the color patterns were muted, not the usual vivid hues. Some contend that reflected the artist's pulling back from being so out-there. He recognized his psychic shift at the time.

On February 21st, the Van Gogh Museum opens an exhibit with that painting in it. If the public relations is sophisticated it will hammer that the artist was producing from what could be thought as another dimension. 

Given the rigidity of capitalism, dimensions other than the maximizing of profits aren't welcome. A current commercial about insurance makes fun about that. It's labeled "being your parents." The art-student waitress is asked how she intends to earn a living after she graduates. 

Experience in professional life, though, indicates that being in other dimensions, full-time or just now-and-then, doesn't exclude being self-supporting or a big success. 

Actually, success driven by mental illness might not be reserved for the creative arts. In 2011, psychologist John D. Gartner published an amazing book. It is "The Hypomanic Edge: The Link Between (a Little) Craziness and (a Lot of) Success in America." Here it can be ordered.

Gartner starts off with that misfit group from the Old Country - the Puritans. Certainly they were operating in another dimension. But once freed from the establishment rules in the UK, they went about putting together an economy which had been for centuries the most powerful in the world. 

Ever since the Puritans, it's likely that many of the brandname entrepreneurs in America would be classified by those in the "helping professions" as, well, crazy. And, yes, like the Puritans they created a new kind of economy.

The authentic reason for concern about mental illness is that it can open the doors to suicide. A theory of suicide is that the distressed keep traveling through a series of unthinkable scenarios. "What if I simply stopped trying" could then open the next door which could be the psychotic "Suicide would help me feel better." The final door is the decision to go for it.

It could be that former partner at law firm Sidley Austin Gabe MacConaill might have travelled that corridor.

He had confided to his wife Joanna Litt his perception of emotional deterioration. Simultaneously, he had a hunch that going for professional help would tarnish his professional branding. Lawyers I have spoken to about that agreed that MacConaill was right. The sharks would have smelled vulnerability, circled, and that could have been the end of a high-powered career.

If the stigma around mental illness can be blown up and those saddled with that disease able to forgive themselves for imperfection, the "career price" paid for being treated could be reduced. In time, it could disappear. 

After all, from "Genesis" on, civilization has recorded examples of aberrant thought processes. Eve had to be out of her mind to risk what she had for a dream of more autonomy. Even more crazy was for Adam to buy in. Of course, the history of ideas punished them harshly. That included inflicting on them a son who was a murderer. However, Eve got the worst of it. Crazy women are more unwelcome in society than crazy men.

An effective constraint for moving on to the next door is to contact the deep listeners at Samaritans. The hotline is confidential, free, and operates 24/7. The phone number is 212-673-3000.

Full Disclosure: I have taken on clinical depression since age 11. Despite the family suicide gene I am still here.  

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"Nicholas Murray v. Janssen, et al." - Are Those Nuclear Verdicts In Play?

Are those nuclear awards for punitive damages merely symbolic?

That could be.

In "Nicholas Murray v. Janssen, et al.," Judge Kenneth J. Powell Jr. reduced the punitive damages from $8 billion to $6.8 million. He didn't adjust the one for compensatory damages - $680,000. As The New York Times reports, the defendant will appeal the original verdict and the plaintiff will appeal this recent decision. 

The lawsuit, filed in 2013, contended that Janssen did not adequately warn medical doctors of the risks associated with psychiatric drug Risperdal. Murray took it as a young boy for autism. Over the years he grew breasts. 

The first time unusually large verdicts, compensatory and punitive, came onto Everyman's/Everywoman's radar had been in "Hulk Hogan v. Gawker." Funded by venture capitalist Peter Thiel that litigation yielded a $140 million award - which eventually bankrupted Gawker. It also made Hogan's lawyer Charles Harder a media-law superstar.

Obviously, courts have not seen the last of "Nicholas Murray v. Janssen, et al."

For those in communications, the issue is: Will this decision help the distressed Johnson & Johnson brand? It has also been taking it on the chin in the opioid public nuisance litigation niche. Public nuisance has evolved into a power tool for the plaintiff bar. 

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Litigation Finance - Legalist Plays on the Side of David Against Goliah

When many think about litigation financing the image is associated with big. After all, the game is about investors making money.

However, the model for Legalist, where Curtis Smolar is general counsel, is small. Essentially, its role is to help smaller businesses be the Davids which take on the Goliaths. Here is the LegalSpeak Podcast of the interview with Smolar.

In addition, the scope of the investment is relatively small, with a cap of about a million dollars. 

The methodology includes leveraging algorithms, along with the human touch. Both provide input in assessing what cases to invest in. 

The business of Legalist is business, not law per se. It employs more engineers than lawyers. 

This model, if the players at Legalist are smart about promotion, can attract a lot of business media interest. Small business is an increasingly popular topic for the business niche in media. Expect to see more headlines reading: "Yes, Small Business, You Can Get the Funding to Sue BigWhatever."

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M&A Like Duane Morris + Satterlee Stephens v. Boutique - Acid Test Could Be Downturn

An increasingly popular scaling strategy in myriad sectors is M&A. Often, of course, it's also embraced for survival.

In the law-firm industry, the driver for M&A is not only scaling. Also, there is client demand. Those have experienced their needs outgrowing the scope of their law firm.

All eyes are now on the merger of Philadelphia based Duane Morris and New York City's Satterlee Stephens. Here are more details from Law.com.

What Duane Morris, the larger firm, gets in the deal includes a broadened geographic footprint, increased presence in tech, life sciences, and financial services, and adding brandname clients such as JPMorganChase.

In addition, what discourages lateral moves is for top lawyers to be able to be big fish in a big pond. They could defect if they are not associated with a major premium brand in the practice of law. In itself that positioning as a big player in a large elite sandbox could assist with new business development.

Satterlee, like many midsized firms, could be squeezed out if it remains a standalone in mid market. Also, that category of firm is receiving complaints from clients about requiring more types of services.

In contrast to scaling is the boutique movement. That configuration provides niche services, usually at a fee level lower than that of the traditional full-service large law firm. The lawyers can develop brands as specialists in narrow areas of law. Many services done in-house in BigLaw are outsourced. 

Most recently, partners exiting from Boies Schiller formed boutique Roche Cyrulnik Freedman. The specialty is high-stakes litigation. Already it is involved in cryptocurrency litigation "Kleinman v. Wright." Among its alternate billing options are:

• Contingency
•  Startup equity
•  Litigation financing 

The acid test for business structures will be the economic downturn. The latest Citi Bank survey found that the future outlook for the global and U.S. economy has darkened among the law-firm leadership. A recession can unmask overexpansion in BigLaw, with some firms collapsing. The boutique may prove out to be the economy-neutral.

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World Economic Forum - Time for Law Partner Career Regret

It's a billionaires club. 

Bloomberg documents that more than 100 of the attendees at the World Economic Forum in Davos next week will be billionaires. That financial reality can make some law partners have career regret.

The Partner Compensation survey by Major, Lindsey & Africa put the average annual for partners at $885,000, with male partners pulling down $959,000. Peanuts, compared to the wealth flashed at Davos.

And, sure, there are superlawyers who are reported to gross almost $20 million a year. But, that again can be peanuts for those of them living in pricey metro areas like Manhattan or Los Angeles, having their children in private school, and perhaps paying alimony for multiple marriages.

Meanwhile, the median annual compensation for lawyers even in niches-in-demand can prove disappointing after all that education and how grueling the work is. According to PayScale, the patent lawyer makes $180,000 and the tax lawyer makes $122,000.

Some lawyers earnestly declare: "If I wanted money, I would have gone to Wall Street." (Like Jamie Dimon). But money talks. And the lack of the "real" kind can throw shade on the choice of a career path. 

At Davos there will be a panel on "Breaking Legal Barriers to Equality." One wonders how many practicing lawyers can afford to attend it. 

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Google's Featured Snippets - Of Course, Your Law Firm Wants to Be Answering That Search Query

Arriving at the Promised Land of Search Engine Optimization (SEO) is this: Having Google select your post as a featured snippet. 

The featured snippet consists of a brief, usually one-paragraph answer to a query in search. It's derived from a post on the internet. That snippet is placed at the top of the Google search page on a specific subject. And the homerun is that what follow in the answer box are the title of the post and its URL. 

As SEO guru Neil Patel explains in his "Advanced Cheat Sheet to SEO," not only could your original post get a big bounce in traffic.

In addition, there will be an aura surrounding your brand.

Also, your credibility will improve, including in the assessment of Google. Google is becoming more discerning in what sources can post information that is perceived as authoritative. Annually public relations agency Edelman releases its Trust Barometer. In the past several years, overall, trust has been low

During this time of impeachment, the original search query could be: "What does impeachment mean?"

How do you get a shot at your post being chosen to be the featured answer? 

Here are eight tips:

•  Make it your business to have your posts regularly rank in the top 10 search items on an subject. Almost 100 percent of what become snippets are pulled up from those. 
•  Use the long-tail keyword approach. Instead of one keyword there are several. The format is this: popular keyword (head) followed by words that would capture the actual user intent in a search. An example would be "Impeachment - Legal and Political Meaning." About 70 percent of search is submitted as a long tail, not one word. The example would be "Is there no-fault divorce in Ohio," not "Divorce."
•  Know and incorporate the top 30 terms in queries which make their way into featured snippets. They range from "recipe" to "size." The full list is on Patel's Cheat Sheet, page 17.
•  Format post to mirror that of the snippet. That will be, question, short paragraph, then long form explanation.
•  Yes, long form is what Google favors. The minimum is 1890 words. Better yet are 3,000 to 5,000. Make the content a unique fit to the user intent. That refers to what does the searcher really want in terms of information and content. What you provide should be relevant and create new value. No boilerplate. And no restating a point over and over just to reach the word count. Google will hold that against you.
•  Increase the odds of pick-up by including YouTube video, graphics such as mapping and infographics, and photos. 
•  Embed links to other authorities. Then contact them, thanking them for their material and transmitting the link. They can become part of your influence network and share your content with their network. 
•  Attract inbound links from brandnames such as Bloomberg and Drudge Report. The effect is the Wisdom of Crowds one. Google will notice not only the traffic to your posts but  more importantly the quality of the linkers.

There are those who predict that search will become obsolete. Among them is New York University professor Scott Galloway. That is his thesis in his best-selling book "The Four." Amazon and voice will allow bypassing search, Galloway argues.

That could happen. Meanwhile, SEO is a critical factor in branding and actual selling. Also, it's more art than science. A law firm has to invest time in configuring its SEO strategy and tactics. 

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Boies Schiller - 2nd Round of Partner Defections

Founder of Boies Schiller David Boies is aging. He is currently 78, with another birthday coming up in March.

Ever since Ronan Farrow published his The New Yorker Harvey Weinstein expose, Boies also carries around the stink of scandal on his shoe.

More recently, that has extended to his legal feud with take-no-prisoners Alan Dershowitz. That is related to the Jeffrey Epstein legal and media mess. 

And, some remember that Boies had been both on the board of directors of Theranos and in the role of legal counselor for its founder Elizabeth Holmes. Her trial for fraud is scheduled for August. In his book "Guilt by Accusation," Dershowitz classifies that dual identity as a conflict of interest.

Recently Boies Schiller reorganized, with Boies passing on some responsibilities. 

Now this: There have been two rounds of partner defections.

The exit of partners always sends a negative message about the law firm. Questions arise: Is the firm financially troubled? Is the brand in play? Is leadership dysfunctional? Has growth peaked? 

The first had been by three partners in the Miami office who formed boutique Heise Suarez Melville. 

More recently, reports Law.com, 10 lawyers left to form boutique Roche Cyrulnik Freedman. The boutique differentiates itself by both its alternative billing structure for clients and compensation for partners and associates.

In terms of fees, it offers BigLaw experience at lower and more flexible price points. They are configured as defense-side contingency, flat, success, and equity fees.

In terms of paying lawyers, there is a veering away from the billable hour. New business development and contingency work receive monetary recognition. Associates can earn more than market rate salary and, from the get-go, do interesting work. 

Meanwhile, the media and business media are watching both Boies and Boies Schiller for signs of a shift into a downward trajectory. On Glassdoor, the law firm receives a 2.9 out of a possible 5 rating, based on anonymous input from employees. 

This is the era of supreme power of the media. It seems that Boies and Boies Schiller have become easy targets. 

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