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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Legal Marketers - The Art of Nudge

Language, even in this visual era, is everything. Of course, lawyers have that down cold. Their legal marketing teams already struggle over each work for promotional content. 

Then, totally obvious: Be they the words used at dinner during a new-business-development pitch or for search engine optimization, the terminology remains a work horse.

Both commercial and personal rhetoric now includes the language as well as the mindset associated with "nudge."

A headline in The Wall Street Journal contains the term "nudge." That, of course, reinforces that it is okay for business types to use the nudge word. 

A human resources client was playing with the idea of titling a future book on networking "Nudge." That idea was shelved when it seemed more marketable to do a book on how recruitment already is being overhauled by artificial intelligence.

And, way back in 2014, my executive coach gently recommended  that I had to "nudge" myself out of relationships which no longer served their purpose, including my own personal growth. (Here is that story.) Yes, very much the sticky thinking of Henry Cloud in "Necessary Endings."

The magic of the language of nudge is that it is both direct and indirect. 

The direct part is the lawyer informing the prospect shopping around for representation during a transactional service how many moving parts there are and how many things can go wrong. You bet, the fear imperative. Nudge conceals the hammer in a velvet glove.

The indirect part is praising the prospect for entering that space, along with an invite to a dinner at a posh restaurant to sort out ideas. The old-line Dale Carnegie approach of how to win friends and influence people.

However, nudge is an art. Not everyone has the talent to be on the front lines of nudging. That includes some parents who need to parachute in trained nudge types. 

The implications are huge. Legal marketers in-house/outside firms have to retrofit much of the promotional language.

Ditch "the law."

Replace with "consider this narrow passageway through your problem." 

Obviously, this represents a migration of selling to what isn't selling. 

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The Former Lawyers in the U.S. Senate Should Have Known Better

The ABC Evening News with David Muir dominates the category.

That's because those behind and in front the camera know how to conjure up drama.  Yes, all the world's a stage. 

Those in the U.S. Senate lack that theatrical know-how. Yet, as the New York Post reports, the Senators are baffled that the Senate spectator gallery is half empty.

Their back offices, which should be filled with public relations types, can't put together what should have been the Greatest Show on Earth for 2020.

That is weird since many of the Senators have a lawyering background. Lawyers are socialized to put on show, be it in the courtroom or across the negotiation table.

 Here are 4 tips to reverse this failure to engage.

Create mystery. Everyone anticipates an acquittal. To derail that mindset senators should posture voting for conviction. A wonderful side benefit of that is that they will receive lots of coverage in the media. The media is the most powerful institution in the world. 

Stop being so repetitive. The American people feel reduced to being a child whose adults in the loop continue to nag about the same things. Even in search engine optimization (SEO), Google is punishing posters who get stuck in one message phrased in an infinite number of ways. 

Raise the Emotional Intelligence (EI) double-digit points. The ugliness of extreme polarization is turning people off. Ranging from Dale Carnegie to Dan Goleman, those smart about how to win friends and influence people hammer the importance of being tolerant, respectful, and willing to listen. Actually that dates back to St. Francis of Assissi who preached the value of struggling to understand rather than being understood. Here is his iconic prayer. 

Render public service back home. The impeachment trial is typical inside the beltway, that is, looking inward. Break that spell by reaching out back in the home state and do good. Are the supplies for the food pantry running low? Organize an initiative to solicit and collect food from local restaurants and grocers. Part of the popularity of the ABC version of the news is the "American Strong" snippet at the end of the broadcast. It melts our hearts. Yes, 21st century humans still have hearts. 

Place your sponsored content on this blog. Here are 6 tips for search engine optimization (SEO) in 2020. Coaching on SEO and Ghostwriting for sponsored content also available. Sliding scale fees. Please take advantage of a complimentary consultation janegenova374@gmail.com.

Kim Kardashian - Future JD, Legal Activist

She stuck with it. 

Back when the legal media announced, usually with a smirk, that reality star Kim Kardashian was committed to becoming a lawyer, there was that universal eye-roll. 

Most experienced Kim's career plan as simply another promotional stunt.

But, Kim has stuck with it. As the Daily Mail reports, she had completed the first year of her four-year apprenticeship in California studying law. Every week she invests 20 hours in that. She anticipates taking the bar exam in 2022. 

In addition, she also has stuck with her legal activism. Her successful campaign to get Alice Marie Johnson out of prison was not a standalone event.

Her mission is to end the mass incarceration in the U.S.

Here is The New York Radio Hour on Mass Incarceration.

On April 5th, on Oxygen, the two-hour The Justice Project documentary will air. In it she features four cases of alleged misjustice. 

Her celebrity could be the game-changer in reforming the U.S. criminal justice system.

Even those who are politically moderate might have come to view the mass incarceration as a job-making system for the middle class. The corrections industry tends to pay well and, even in this volatile economy, provide employment security. 

It's odd that Dick Wolf, in programming such as "Chicago P.D.," doesn't push back against drug laws which result in arrest and incarceration.

If the sale of drugs like heroin and cocaine were made legal, regulated, and taxed, Hank Voigt and his team might be able to focus on other kinds of criminality. It could be the big leap forward if Kim pitches that story line to Wolf. 

Those taxes can fund solutions for homelessness. 

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Drudge Report Poll on Dem Debate

The Drudge Report is influential.

The audience increasingly includes moderates. Since Donald Trump has begun behaving in an aberrant matter, the digital aggregator has moved toward the middle from rigid conservative.

The political polls the Drudge Report runs get lots of attention. It's now about half past 11 and here are the results of the poll about who was the winner of the Dem debate.

There had been 17,324 votes.

Klobuchar 25%

Sanders 22%

Steyer 18%

Buttigieg 15%

Warren 15%

Biden 14%

Smart global ghostwriting, with niche social networking know-how. Also communications coaching. Emergencies welcome. Complimentary consultation (pressure-free) janegenova374@gmail.com.

 

As Lawyers Know: StoryTelling Serves Agendas, Not Struggle for Truth (if such an entity exists)

Since early civilization, human beings gathered around the fire and told stories.

Probably then as now few or any of those stories disclosed much truth.

They were shared with an agenda. Not to make the definitive statement about whatever. When law was shaped as systems, lawyers functioned to help their clients put together the right story and have it hold up under a society's version of cross-examination. 

In caveman times, the agendas ranged from showing off and reducing their own anxiety to helping the clan survive and bring home bigger and better food for supper for all.

In the 21 century sundry legal systems, the strategic narratives focus on strong or lame contentions of innocence, pile on of examples of mitigating circumstances, and/or suffering endured. For the latter, juries are all ears, with their nuclear verdicts. 

Yet, currently there persists, especially in tabloids like Daily Mail and New York Post, claims that X or Y has access to the "real story" and is spilling the beans - on an exclusive basis. There are plenty of those, of course, in the megxit loop. Who doesn't have the real story about why half of the Fab Four bailed! 

The reality, as anyone who has studied or observed human psychology understands, is that probably not even H & M fully understand the drivers for their decision.

The unconscious and subconscious are complex entities. Even after years of psychoanalysis those screwing up might still be mostly clueless why. Great art such as the dramas of William Shakespeare and novels of F. Scott Fitzgerald hammer the memes of the struggle for self-awareness.  Deceased pop author and former lawyer at Boies Schiller Elizabeth Wurtzel, I have a hunch, didn't know who she was.

That supposed real story represents little else than a clever striver having fun connecting some dots. Yes, media subscribers do also have fun reading all that. But, it's reductionistic to apply the "findings" to anything as convoluted and messy as a human life.

What could have been the real motivation in Timothy Banowetz's alleged murder of lawyer Randy Gori? He likely will never find out himself. 

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Class Actions, Especially Alleged Public Nuisance - US Chamber, Champion of Tort Reform, Can't Stop That One

The class action, it was predicted, was supposed to die with SCOTUS' rejection of "Dukes v. WalMart."

It was not certified primarily because the class was declared not to have adequate commonality.

The majority of justices classified the organization as decentralized. Given that, managers at the store level, since they were autonomous, couldn't collude to discriminate against women in a systematic manner.

But the class action didn't lose in dominance in the American legal system. The gender bias lawsuit seeking certification as a class "Tolton, et al. v. Jones Day" is high profile. Law firm representing the plaintiff Sanford Heisler Sharp operated a well-oiled public relations machine in all mediums. 

Instead, as Thomas Donohue, chief executive officer of the US Chamber of Commerce, lamented in The "State of American Business 2020" class actions have tripled during the past decade. He contended they raise the cost of doing business, harm business, and threaten jobs. Here are more details from Law.com.

At the top of the list of the kinds of class actions Donohue objects to is the public nuisance. That was introduced by the state attorneys general and plaintiff bar in the push against BigTobacco. The result had been the landmark Master Settlement Agreement. 

Later applying traditional public nuisance law to product liability generated the state level public nuisance lead paint class actions. The first win on that had been in California.

SCOTUS refused to review the conviction of defendant Sherwin-Williams.  Similar suits were then filed in Pennsylvania. The form that usually takes is municipalities and states partnering with plaintiff lawyers working on contingency. In CA, the plaintiff bar billed at 17% of the award. 

No surprise, public nuisance was leveraged in the opioid state actions in states ranging from Ohio to Oklahoma. 

Of course, it has been used by environmentalists against utilities producing the kinds of energy which allegedly factor into climate change. Anticipate seeing lots more of that. Crazy weather patterns are a regular feature on the influential ABC evening news with David Muir. 

What Donohue forecasts is that those businesses in the cell phone loop will be held liable for creating a public nuisance for the distraction which contributes to auto accidents. That can total a long list of defendants. 

Well, Donohue is on the money.

Public nuisance is a protean concept that can be configured for the whatever purposes of municipalities and states, along with the plaintiff bar which assists them. The potential financial windfall is huge. If there is a recession and a budget crunch, there could be plenty more public nuisance lawsuits. Given the trend of nuclear verdicts by juries, the amount could be what the US Chamber hasn't even considered.

In 2005, the US Chamber helped bring about the Class Action Fairness Act.

That was then.

Now, with digital influencing, the power of most trade associations, not only the US Chamber, is in play. Its membership is less than it had been in pre-digital times. And with issues so critical and urgent, more businesses are establishing their own kinds of lobbying campaigns and choosing just-in-time allies for those initiatives. They don't perceive any reason to join the US Chamber of Commerce. 

Meanwhile, the plaintiff bar keeps becoming more sophisticated in its strategies and hands-on tactics. That is one driver of the nuclear jury awards.

Smart global ghostwriting, with niche social networking know-how. Also communications coaching. Emergencies welcome. Complimentary consultation (pressure-free) janegenova374@gmail.com.

 

Authority in Play - Lessons for Lawyers from Megxit, Iran, France, and the American Revolution

With a very American perspective in The New York Times, columnist Maureen Dowd reflects on the "corgi-and-gin-loving racket." That is, the very wealthy reign of the House of Windsor. 

Essentially, ranging from Prince Andrew's alleged sexual misconduct to Megxit, this is yet one more institution in which trust is lost.

Actually those in the new land went to through that crisis of belief and support about two and a half centuries ago. What was to evolve into the headquarters for global capitalism, the colonists' mindset was about money. The British form of taxation was siphoning off too much of it. 

Windsor's moral authority on everything and anything has blown up.

It would be no surprise if in a future Edelman Trust Barometer there is an allusion to the collapse of belief in the need for the British monarchy.

There is a push-back on the leadership in Iran.

And, in France, Everyman and Everywoman are saying "nonono" to the government's big idea about upping the age of retirement. 

Obviously, Megxit is a microcosm of an extreme paradigm shift in values. That mirrors the intensity of rebellion of not only the American Revolution, but also the French and Russian ones. Of course, lawyers have to pay heed. Law is a man-made institution. The human intersects with all those rules.

The world is bearing witness to that in how Judge James Burke has decided to oversee the Harvey Weinstein trial. Sure, his interpretation of the rules could give ammo to the defense to appeal a conviction. However, currently, it's a kind of "woke" for how judges impose common sense in the convoluted entity that the legal system has become. In time, SCOTUS could decide on the side of simplification: It's that simple that Weinstein shouldn't have been using his cell phone in the courtroom.

With the Barbarians at the Gate, all those with any authority will have to revisit what they consider their "core competence." The question is: What are you best at, what value does that create, how to communicate that, and what is an appropriate reward for all that? 

That type of comprehensive review includes lawyers, both litigation and transactional.

Law.com keeps presenting evidence of the disruptions in the legal sector. Actually, what could be happening is one of those Big Bangs. Law firms, courts, trade associations such as the US Chamber of Commerce, and clients have the opportunity to be proactive on this one.

Communications specialists such as myself are already busy bees recommending:

The new language of authority. Bring on the "we." That's why diversity is so important. With all the current challenges, it's necessary to be inclusive of all points of views and backgrounds. No secret, the legal sector suffers a diversity-challenge. 

Toned-down tone. Authority must sound like it recognizes the unknowability of so much. A Zen mantra is: Clear Thinking, Don't Know.  On "Criminal Minds," there is often an overhaul of the profile. A great moment in broadcasting had been when superprofiler David Rossi had to wrestle with ambiguity.

Confidence in the ability to try on ideas and experiment with solutions. That's how law firm Motley Rice became a respected brand. It put out there and kept refining the traditional concept of public nuisance apllied to product liability. In the California lead paint class action litigation that had resulted in a seminal win. SCOTUS wouldn't review the conviction. 

Connecting. For centuries, the model for that has been how Jesus Christ reached myriad constituencies. Harvard, Stanford, and Yale law schools can launch seminars analyzing the persausive genius of the early Christians. Lawyers have to achieve, metaphorically, eye contact in new business development and all other constituencies to generate positive outcomes for those clients. 

Meanwhile, the 2020 campaign provides a platform for wrestling with the issue of what kinds of leadership are a fit for times of such change. Lawyers should have lots to say about that.

Takeaway: Underneath all the rules is the human need to trust. 

Smart global ghostwriting, with niche social networking know-how. Also communications coaching. Emergencies welcome. Complimentary consultation (pressure-free) janegenova374@gmail.com.

The Pamela Smart Saga - Gregg Smart Had Been Only Adult in the Loop

So much adolescent passion.

That ranged from puppy love to music addiction. 

Essentially that seemed to be what dominated the Pamela Smart saga. And, it blew up in the murder of who was the only adult involved - Gregg Smart. He had grown out of being a rocker, cut his hair, and threw himself into the grown-up job of being an insurance agent.

Pamela, who had worked three jobs in college and had graduated in three years, hadn't had the opportunity to grow up. When she headed media at a school, she drifted toward socializing with the teenage students. That's where she was emotionally. At home she had not welcomed her husband's hair cut. 

Last night, ABC broadcasted a two-hour special on Pamela - "Broken Vows." The objective seemed to be advocacy. Media has the power to get the right attention for issues. 

Pamela's sentence had been life in prison without the possibility of parole. The teenage boys who actually had been part of the the murder had been able to cut a deal. Already they were out of prison.   

The one-time Barbie doll had not aged well. Also she was not convincing in the ABC interviewing when declaring her innocence. Along the way, no one seemed to have coached her how to engage.

Her persona was harsh.

There was no sign of compassion for Gregg.

And she was incapable of getting it that her relationship with those school teenagers had been so destructive. 

Given how poorly she presented herself, this broadcast might have hurt her, not helped her. 

What was particularly interesting about "Broken Vows" was that the broadcast  took viewers down memory road. The Smart trial was among the first which allowed cameras in the courtroom. The public followed the steamy details of illicit love like a soap opera.

Center stage had been this cute high school staffer who showed up in court with a prim and proper outfit and a bow in her hair. But the defining moment in the trial were the "pin-up" photos of her in a bikini, draped over a bed. 

In addition, a poignant one occurred during testimony. As Gregg was being attacked, his concern was for his dog. That detail could undercut any sympathy for Pamela. The dog always steals the show. She might wind up dying in prison. 

Smart global ghostwriting, with niche social networking know-how. Also communications coaching. Emergencies welcome. Complimentary consultation (pressure-free) janegenova374@gmail.com.

Harvey Weinstein Trial - Should Judge James Burke Recuse Himself?

The elephant in the room on this one is: If there is an appeal, one contention would be that Judge James Burke had a bias against the defendant. Among the evidence for that was threatening him with jail for using a cell phone in the courtroom.

Judge Burke is respected. Already in the process of jury selection he has knocked out of the box any who could not be totally impartial. 

Still, his stern public censure of Harvey Weinstein could be interpreted as a reason, if there is a conviction, to throw out that verdict. Defense lawyers perceive "animus toward the Defendant …" That was cited in their formal request that he recuse himself. 

As Maureen O'Connor reports in Vanity Fair, the Assistant District Attorney Joan Illuzzi Orbon supports Burke's decision to not step down. In addition, she rejects the defense lawyers' request for a change of venue to another county and to delay the trial for more of a cooling off period.

On the other hand, the notion of recusal is already out there. The defense team can bring it up during the trial as a reason to have a mistrial declared.

Reflection: Could it be that Judge Burke really does have an "animus" against Weinstein? However, as those in communications well know, we can hate the alleged miscreant, be it a person or an organization, and still be objective.

Smart global ghostwriting, with niche social networking know-how. Also communications coaching. Emergencies welcome. Complimentary consultation (pressure-free) janegenova374@gmail.com.