Law And More

Big Law - Some Rashomon Moments

From the time of Jeremy Blackman's satiric blog "Anonymous Lawyer" to current best-seller "The Caesars Palace Coup" Big Law has been vilified. That's the way it has been.

The partners are depicted as feudal lords.

Law firms defending the likes of Harvey Weinstein become fodder in media such as The New Yorker. 

The up and out system which results in only about one out of 10 associates making it to partner is interpreted as a destroyer of souls. There is no type of Greek Chorus chanting: Hey, you knew the deal when you looped in. 

Netflix is having a 10-part series derived from the novel "Partner Track." Negative, of course. 

And media sites such as RollonFriday and Abovethelaw which accept insider leaking from law firms are on side of the angels.

But that dark lens for viewing large law firms is only one. And Big Law isn't doing such as hot job pushing back on it through pro bono assignments, social justice outreach, and public-interest op-eds in The New York Times and The National Law Journal.

What those firms haven't unleashed is The Rashomon Factor.

As the Japanese film "Rashomon" showcased, there are myriad perspectives for interpreting just about everything. In that movie about a murder and a rape, the takeaway is how differently a number of people experienced it.

More recently, the film about flawed justice  in the 14th century "The Last Duel" also uses the Rashomon style. What is claimed to have happened - a rape - and the background events are configured into a variety of scenes of the same events. The story, incidentally, is true. 

Big Law has the resources to conjure up its own engaging Rashomon moments.

Do a 24/7 TikTok video of what goes on in law firms. Sure, block the confidential. And let the world decide if that's so bad. Viewers could be enchanted by the analogue of Tom Brady-type strategic planning and actual plays.

Follow a summer from the law office, back to law school, and back to the law office. Pan in on the struggles. Public opinion can assess the values of that world. The interesting part could be the shaping of a legal mind and resistance. Are humans wired not to think like lawyers? Add on a public interest tutorial on how do just that: Think like a lawyer.

Humor also is back in marketing communications. It's always been a power tool in messaging. Some will recall how presidential candidate Ronald Reagan blew up the age issue with a quip about Walter Mondale's "youth and inexperience." Here is a clip of that game-changer in the campaign.

Perfect would be an action-figure comic book. Let the world become engaged in how a chairperson like Larry Sonsini at Wilson Sonsini protects startups or Brad Karp at Paul Weiss mobilizes thousands of lawyers from law firms throughout America to work free on behalf of the victims of COVID. It's not only a prosecutor such as Jack McCoy from "Law & Order" who fights the good fight. 

And, yes, contract with designers (hopefully on a pro bono basis) to create video games about the weapons defense lawyers carry into combat. Empower players to make genius moves. Selling those games can provide funding for scholarships to law school for diverse students. 

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$6 Million PPP - The Public Relations Touchpoints of Success

Many know this:. In a Bloomberg Law interview, that elite law firm Paul Weiss announced that it was heading toward or even exceeding $6 million PPP.

That was a welcome confirmation of possible future earnings for the partners. Also that enhances the brand of both the law firm and its partners. Status counts plenty to partners. 

It might have irritated associates. Entry-levels are only pulling down about $200,000 - something. Peanuts, of course, compared to PPP. And all associates are putting in too-long hours. 

But, what about clients and those requesting proposals for help with their legal challenges? Does the $6 million PPP provide some kind of tipping point? Could be.

They could be mobilized to negotiate alternates to the billable hour. One, of course, is contingency. Both Dentons USA and Quinn Emanuel had recently operated that way with major assignments. Another is performance based. And, there is the project approach.

Also, there could be nudges for the technology which makes the processes more efficient, thus less expensive. The model there is Wilson Sonsini's Neuron. It has automated for startups many of the basic legal tasks for their needs. Those range all the way from formation to exit. 

Of course, the usual client for Paul Weiss's kinds of services has to go with it or another similar Big Law firm. They have to stay in that box because the stakes are high and Big Law has the resources to win. That's what Big Law does: Win. Here on its website, Paul Weiss posts examples of those wins. They are impressive. Yes, it is among the go-to law firms.

However, it's tricky public relations to balance promoting the law firm's financial performance (a marker of its success) with how that information will influence clients and prospects. This $6 million PPP could provide the nudge from clients and prospects for Paul Weiss to review its systems, from billing to how work gets done.

Could the announcement have been framed differently, that is, itemizing the touchpoints for success, without putting out there a concrete statistic about making the big money? Increasingly, matters of business are being decided in the court of public opinion. 

Money talks. Often it is the loudest voice in the room. Therefore, there is frequently the decision if it should be allowed in that space. 

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Jamie Dimon - Is He Off His Game?

The first sign that maybe JPMorgan Chase Chairman and Chief Executive Officer Jamie Dimon was off his game was this: He pontificated that being in-the-office was where workers needed to be. He backed that contention up with what Morgan Stanley Chief Legal Officer Eric Grossman had said. That was that in-person presence is necessary for professional development. Yet, Big Law had been among the sectors which had windfall profits in 2020, operating totally remotely.

The global movement toward hybrid or even totally remote working arrangements makes Dimon look out of touch. In fact, PwC has has given all workers the ability to work wherever. 

More recently, Dimon assessed bitcoin as "worthless." That's even though his financial institution provides wealth management clients access to cryptocurrency.

He says his take is personal. But there is no separating the leader of a giant financial institution from the person. It was poet W.B. Yeats whose poem "Among School Children" asked: "How can we know the dancer from the dance?" The answer is that we can't. As a seasoned businessperson Dimon should recognize that.

Prediction: If there are more puzzling statements from Dimon it could be Game Over, not simply that he had been off his game. His contract has been renewed for years but he could probably opt out.

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Facebook Is Sounding Very Much Like a Defense Attorney: A Very Different Playbook for Public Relations

"After four years of almost continuous scandal, Facebook is approaching its latest controversy over political polarization and the toxic effects of social media in a more aggressive and defiant way than it has previously, say current and former employees, including executives who helped shape the company’s earlier responses." - The Washington Post, October 4, 2021.

Through this positioning of the statements, the confident tone, and the piling on of what it claims constitutes "evidence," Facebook is navigating its current challenges much like a defense attorney would represent a client.

Defense lawyers, as we are experiencing in "US v Elizabeth Holmes," operate in a kind of surreal universe. They will put forth and support any theory and, if they are part of Big Law, will leverage their tremendous resources to decimate what the opposing counsel puts out there. That's exactly why trials are so engrossing. As with football, we are caught up in the defense's strategies. 

An example of Facebook's shift from mea culpa/promises for reform to we-are-innocent is how its vice president of communications and policy Nick Clegg interprets America's polarization and violence, especially during elections. He notes that in mature democracies, unlike that of the U.S., such just doesn't happen. Hmm. The source of the troubles is America's relative immaturity.

That's an interesting perspective. The analogue from the defense bar is how lawyers in trials will conjure up a theory about an alternate suspect. In "Holmes," Williams & Connolly is attempting to finger everyone from the folks in the lab to the defendant's former lover to be the source of what is allegedly fraud. 

Operating from this new playbook, Facebook could be disrupting much of public relations, particularly the orthodoxies about crisis management. Instead of the apology and being as transparent as possible, those in the soup could go on the offense. Just as brilliant defense lawyers do. Recall the Dream Team in the O.J. Simpson murder trial. Is that a form of gaslighting? Some might put it that way.

Meanwhile, Facebook is facing mounting troubles. In the U.S. alone the attacks are coming from Congress, the FTC, media, and parents. The danger for that social network is that fighting all those battles could distract it from how it is creating its future. That includes a focus on virtual reality and hardware production. 

Some might recall how Microsoft lost traction in innovation after it settled the government's antitrust case against it in 2001. It seemed to become risk-averse.

On the other hand, during these crises Facebook could be reimaging itself into a stronger, more imaginative player in the global court of public opinion. All the niches within the communications industry could be shaken to the core. They will have to rethink how to be effective. Part of that could be to undo much of what has been established in corporate values as a result of ESG (environmental social governance). There will be no longer taking on the protective coloring of ESG ideologies. 

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"US v Elizabeth Holmes" - Dr. Rosendorff's Testimony Pushes Back on Incompetent Businesswoman/Mental Illness Defenses

“'She was very nervous,' said Dr. Rosendorff. 'She was not her usual composed self.' He described Ms. Holmes as trembling and her voice breaking." - Quoted in The Wall Street Journal about his testimony September 24, 2021 in "US v Elizabeth Holmes."

The report of the Holmes angst would bring home to the jurors this: What the founder of Theranos knew about the problems with the technology, when she knew it, and what actions she took anyway in investor relations, partnerships, and in reaching out to the medical community and consumers. Those were despite her realization that the technology wasn't developed. Or perhaps never would be.  

Yes, this testimoney from the Rosendoff, who had been Theranos lab director between 2013 and 2014, could be a smoking gun. 

This puts the prosecution in a position of strength in presenting its case. Indirectly, it undercuts the defense's argument that Holmes was just an incompetent businessperson, not a crook. 

Also, it blows up the notion that she suffers from mental defect. No, she wasn't psychotic. She was quite aware that the technology wasn't panning out. 

The defense team at Williams & Connolly have lost traction. 

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Rock Center for Corporate Governance at Stanford Report Captures General Counsel's Perception of Reward/Risk Associated to ESG

Overall, in business the general counsel is nervously assessing both the reward and risk in the growing embrace, especially by internal constituencies, of ESG (Environmental Social Governance). The two key constituencies are the chief executive officers and the employees.

That was disclosed last Thursday when the Rock Center for Corporate Governance at Stanford released its new study. Here is that paper.  The three researchers are Michael Callahan, David Larcher, and Brian Tayan.

And, here are the key findings, from the Abstract:

"We find that General Counsel, on average, support ESG-related activities but harbor significant concern for the legal and regulatory risk of these activities. General Counsel also express notable concern about the potential liability from disclosure of ESG-related activities, and the reputational and productivity costs caused by CEO and employee-driven activism."

Way back in April 2020 Brad Karp, chairperson of Paul Weiss, anticipated these anxieties and the need for comprehensive guidance. It launched its ESG practice. In that it had been an early adopter. Now, as Law.com notes, 18 months later, more and more large law firms are recognizing this is a must-create practice area.

Here is the Paul Weiss template:

"Business leaders face greater pressure to increase their organizations’ resilience while simultaneously addressing social issues of importance to stakeholders. Our advisory practice helps companies navigate the legal, business and political ramifications of developing and implementing ESG initiatives. We advise on matters such as stakeholder engagement, corporate governance, crisis management, corporate social responsibility, sustainability, diversity and inclusion, ethics and compliance."

Because of the sprawling and urgent nature of ESG issues, this is new territory for business. It's not the old-line corporate social responsibility. So, there haven't evolved yet "best practices." 

The sources of the pressure points include these issues:

• Providing increased financial commitment to diversity, equality, and inclusion matters

 

• Evaluating the social impacts of policies

 

• Focusing on the wages to lower level employees

 

• Being green

 

• Creating sustainability practices.

On one hand, 72% of the general counsel had been committed to investing in corporate ESG initiatives. They believe those will improve financial performance. 

On the other hand, they are wary of the risks involved in:

• Disclosure of matters related to ESG. For instance, only 27% make public through their websites the numbers they release to government on EEO. 

 

• What stances the chief executive officers take on matters of social justice. How vocal should they be on what are traditionally not corporate core-competence matters?  

 

• Legal, reputational, and regulatory issues embedded in ESG. 

 

• Attitudes and policies about employee activism. About half classify that as a workplace issue.

Just this week, as you might have noticed, Apple made headlines with its activist employees circling in on the chief executive officer Tim Cook at an all-staff meeting. Among the questions were about pay equity and what Apple was doing about the Texas Abortion Law. The undercurrent, though, was about Apple's black box culture or corporate lack of transparency. Here is Law and More's analysis of that development.

The general counsel function anticipates all this will be a long-term struggle. That is wonderful news for law firms with proven-out ESG practices. 

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That Was Fast - Bill Gates' Reputation Restoration All-Done

In The Wall Street Journal, Bestsy McKay interviews Bill Gates on the next pandemic. One, Gates declares, we are not ready for. 

Obviously, Gates has made it quickly back from allegations of womanizing and having been a bullying boss to the branding of thought leader. 

Now, the media will be again foisting Gates' observations on us. But, will we allow him back in? That's up to us.

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"The Caesars Palace Coup" - Extreme Tutorial on Highwire Marketing and Sales

The bankruptcy process is a gift from the American legal system to business. Business has the option to start over or just, after settling its financial affairs, take the exit ramp. 

It can also be quite a gift to journalists.

In what turned out to be the specular bankruptcy of Caeasars, Max Frumes and Sujeet Indap identified the 21st-century version of all those earlier situations of dens of thieves and barbarians at the gate.

The book, published this year, is "The Caesars Palace Coup: How a Billionare Brawl Over the Famous Casino Exposed the Power and Greed of Wall Street." It ranks high on Amazon - 13,524. And, it's so engrossing that readers likely will opt to do it in one sitting.

Sure, it dishes the dirt on how Wall Street and BigLaw operate.

But, embedded in that harsh expose also is an extreme tutorial on highwire marketing and sales.

Presented in detail are the strategies and tactics of America's most successful players. All legal. All which can be applied to any business' (including the business of law) marketing campaigns and closing MOs. Some of the lessons are an especially good fit for these peculiar times.

Here are the key 7 takeaways:

Love chaos. Explicitly, Marc Rowan from the leadership of Apollo Global Management hammered, "You want chaos." The book also observes, "The legend of Apollo was born as a savvy investor in a moment of turmoil."

Within the crazy dynamics you can build something new. No, don't seek out safety. For example, since experts currently can't get their heads around the antitrust issue, have your law firm get out there as a thought leader on this confusing topic. Reposition your antitrust transactional and litigation practices.

Shrinking a niche requires different skills than growing it. When Harrah's was on the ropes, casino executive and former Harvard Business School professor Gary Loveman got it: Masters of building enterprises have to recognize they may lack the knowledge how to downsize or phase out a business.

That gap could be one reason why marketers don't parachute in there fast enough to shift from a growth mindset to doing what's actually necessary. That could be just milking the dying category for whatever revenues left. And, it can be counterproductive to attempt to preserve sunk costs.

Play to vulnerabilities. Marketing and selling aren't Hallmark. The processes involve sizing up vulnerabilities such as fear, insecurities, and a recent lousy track record, then custom-making how to pitch and close.

Dave Miller of Elliot Management did just that when he assessed that Apollo badly needed allies in 2014. He got in there and he made money.

Unleash the power of charm and calm. The stereotype of some marketers and salespeople is the hyper, the driven, the fast-talker. Those who came through the Caesars turbulance better than when they had been pulled into that perfect storm are the atypical on Wall Street and BigLaw. They do charm and calm. That creates the unique force field which attracts buy-in. 

Among them is Rowan, now head of Apollo and darling of Wall Street for establishing the platform for a credit powerhouse. 

In the legal sector is Brad Karp, head of Paul Weiss. Bloomberg Law salutes him as totally looped into the Biden Administration. His firm is number-three out of 200 on the American Lawyer's "A" list for 2021. 

It had been the late marketing professor at Harvard Business School Ted Levitt who documented that in America we love to buy but not be sold to. Essentially the meme for that is Marketing and Its Discontents. Charm provides protective coloring to what has to go into marketing and selling. 

Transcend status. BigLaw is known for its preoccupation with prestige. That can be more important than PPP. The book highlights how many lawyers in the brawl were graduates of elite institutions.

Yet, that value system can narrow the perspective about opportunity. It has been Mike Milken, the book reminds us, who dipped into the research of W. B. Hickman. That explained how low-grade corporate bonds selected on an risk-adjusted basis did better than the high-grade bonds put out there by the highly respected corporate entities. 

Play in multiple sandboxes. So many of the people connections which helped the self-interest of the players were developed outside their usual professional networks.

That, of course, goes back to the research of Mark Granovetter about the strength of weak ties. That sociology thought leader discovered that it was your neighbor Joe or the security guard in a trophy building downtown, not a fellow lawyer, who was likely to know about profesional opportunities you didn't and was willing to loop you in on them. The lawyers you associate with might not have access to that information and if they did might not tell you because of hostility or competition.

Paul Weiss' Karp plays in a number of sandboxes. Those range from being a power broker in the Democratic party to being on the highly visible front lines of social justice initiatives. 

Invest in access and negotiation leverage. At Apollo, Rick Press made it his business to not be discount-oriented. He was willing to pay higher fees if the odds were they would open doors and improve his power in negotiations. 

Yes, you want to stop always shopping price in acquiring resources necessary for marketing and sales.

In addition to these 7 lessons, "The Caesars Palace Coup" "gives permission" to become a whole lot more inventive and aggressive in approaching marketing and sales. 

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Abovethelaw - No "US v Elizabeth Holmes"

Media outlets for all sectors, not only legal, are obsessed with coverage of "US v Elizabeth Holmes." 

The exception is Abovethelaw. So far it's remained with its usual fare of reporting on lawyers behaving badly and the brutal ethos of BigLaw. That's refreshing.

The question is: Could the fascination with "US v Elizabeth Holmes" peter out?

We heard the opening arguments. Therefore we got what we wanted: insight into the strategies of both the prosecution and the defense. Testimony could become tedious. And, star snaps of celebrities entering the courthouse to testify could get as predicable as catching up with celebrities in the Hamptons.

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As Expected, Defense in "US v Elizabeth Holmes" Positions Defendant as Incompetent Businessperson - Governance Issues Could Come Next

"'But failure is not a crime. Trying your hardest and coming up short is not a crime. And by the time this trial is over, you will see that the villain the government just presented is actually a living, breathing human being who did her very best each and every day. And she is innocent,' [Williams & Connolly defense lawyer Lance] Wade added." - quoted by Jody Godoy in Reuters Legal, September 8, 2021.

This strategy was expected: Portraying the defendant in "US v Elizabeth Holmes" as an incompetent businessperson, not a crook.

That argument can be reinforced by the reality that essentially the board of directors was passive.

There was the young inexperienced startup founder and, the defense can pound, the board didn't provide necessary checks and balances. Board members such Henry Kissinger are on the possible witness list. They can be drilled about what could be depicted as "sins of omission." In a sense, Holmes became a "victim" of board members who didn't provide what the leader needed.

Such a passive board also has been cited as a reality in the downfall of WeWork. The board, details the book "The Cult of We," should have reined in the increasingly wild schemes of the founder Adam Neumann. By Eliot Brown and Maureen Farrell, the expose points out that it's typical in  tech for boards to be dazzled by the visionary founder. Like Steve Jobs, Neumann promised he was changing how people work. Holmes also promised she was changing the world.

The high-profile nature of "US v Holmes" could call intense attention to this issue in governance, especially in tech. Governance is part of the ESG (Environmental Social Governance) trend in both corporate leadership and management.

Investopedia defines "corporate governance" this way:

Corporate governance is the system of rules, practices, and processes by which a firm is directed and controlled. Corporate governance essentially involves balancing the interests of a company's many stakeholders, such as shareholders, senior management executives, customers, suppliers, financiers, the government, and the community. Since corporate governance also provides the framework for attaining a company's objectives, it encompasses practically every sphere of management, from action plans and internal controls to performance measurement and corporate disclosure."

Many corporations recognize that they need guidance - legal, branding, political, and in terms of the stock price - for how to manage the balancing. Media outlets are ready to feature stumbles, in great detail. 

An early adopter in designing a specific service for all this has been law firm Paul Weiss. Chaired by Brad Karp, way back in April 202o, it launched its new kind of practice - Sustainability & Environmental, Social & Governance (ESG) Advisory Practice. 

Here is how Paul Weiss structured the law firm's ESG mission:

"Business leaders face greater pressure to increase their organizations’ resilience while simultaneously addressing social issues of importance to stakeholders. Our advisory practice helps companies navigate the legal, business and political ramifications of developing and implementing ESG initiatives. We advise on matters such as stakeholder engagement, corporate governance, crisis management, corporate social responsibility, sustainability, diversity and inclusion, ethics and compliance."

Note the term "corporate governance" is explicitly listed. 

Meanwhile, board members throughout tech could feel a chill. It's not hyperbolic to say that in "US v Holmes" tech is on trial. 

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