Most social media sites are FREE to partakers, right? WELL, “free” may be cutting too fine an edge, because social media is not exactly free. Company losses from social media missteps and data security breaches can be translated to monetary costs 84% of the time, according to a 2011 survey from Symantec. The top costs were: lost productivity; lost revenue; loss of organization, customer, or employee data; and damage to a company’s brand reputation. Litigation costs, regulatory fines, and reduced stock price are also among the costs companies identified.

It’s a commonly accepted fact that anyone with a web site now has the legal liabilities of a publisher. Law firm web sites typically post a disclaimer and some even include a discussion of privacy issues for visitors. But social media is a different beast. Additional exposures are now available to law firms (and companies), also for free, compliments of your partners and your employees who distribute information to the public via third party websites; i.e. social networks, content sites, and et cetera.

This blog post attempts to start a discussion about insuring the entity and mitigating missteps.

Can I purchase “social media insurance?”

No. After a bit of digging, I haven’t found a stand-alone insurance product called Social Media Insurance—for law firms or for any type of business. For now, law firms and businesses will just have to find coverage, if they want it, within existing products. The key, according to experts, is to know where to look and what to look for.

Let’s start by identifying the most common types of social media risk and liability:

• Advertising liability
• Defamation
• Employer hiring/firing practices
• Copyright infringement
• Security breach
• Privacy breach
• Breach of trade secrets, statements, or other confidential information

According to the expert sources I spoke with, here is where you might find coverage:

• First Party Coverage under a general business policy (BOP)
• Errors and Omissions Coverage (E&O) under a professional liability policy
• A stand alone Cyber Liability policy
• Brand Impairment policy
• Employment Practices Liability (EPL) policy
• Media & Advertising liability policy
• Business Interruption Coverage policy

Across the board, the experts with whom I spoke to strongly suggested that law firms and businesses should review their current insurance coverage for clarification and confirmation that online activity is covered in both professional liability and general business policies.

Thanks to Brad Shear, Angela Elbert, Sonya Rosenberg, Neil Hughes, and Bob Stalker, I now have enough information to be dangerous. 

(Disclaimer: I am not a lawyer. I am not affiliated with any insurance products or agents. In fact, I don’t know beans about insurance and I only know enough about the law to fill an ice bucket—well, maybe a large cooler. Please do not consider my comments to be advice in any way. I’m just a “cub reporter” poking into Pandora’s box. Your stories and knowledgeable comments, however, are welcome!)

The General Business Insurance Policy

Brad Shear, Law Office of Bradley Shear, is an attorney with an active social media presence, blogging at Shear on Social Media Law since 2009, and whole lot more.

Brad told me that he has obtained written confirmation from his general business policy insurer that his blog, his Tweets, and his digital content are covered should any unforeseen mistake occur.

“If you are going on line, it is expected that as a professional you have certain responsibilities. Still, where social media channels are concerned, if it’s not spelled out in your business coverage policy as social media, you should get assurance that you, and your employees’ activities, are covered. This may be found under a rider related to electronic communications; i.e. email, websites, etc., but, it’s important to confirm specifically.”

He also mentioned that the most recent renewal of his policy required a much more lengthy questionnaire than in the past. Hmmm.

Media Coverage

Angela R. Elbert, a partner at Neal Gerber Eisenberg, Chicago, helps clients identify potential risks and helps them work through insurance coverage options as well as litigate complex insurance coverage disputes when necessary. While she hasn’t seen a lot of claims against law firms, yet, she told me that:

“At least every one I’ve looked at so far has enough risk there to include media liability to their coverage.”

She explained that, for example, defamation related to things you’re doing on the Internet or on your website—is sometimes, but not always, included in a media liability component of your E&O coverage. At a minimum, Ms. Elbert advises law firms to consider adding media coverage in their E&O policy, especially if they are active in social media.

Neil Hughes, President of Hub International Midwest, an insurance brokerage firm that specializes in developing custom insurance programs for law firms and other businesses echoed that advice:

“Law firms should review their current E&O policy to insure that electronic communications are covered—they probably are—but not all E&O policies are created equal.”

I asked if media coverage within an E&O policy might be channel specific, i.e. print vs. online, or other. Mr. Hughes suggested that it’s worth asking:

“A general malpractice policy could potentially have an exclusion for Internet related activity – especially if the insurer sold a stand-alone media product.”

 Privacy Coverage

According to Ms. Elbert, “privacy lawsuits are going like crazy.” One example she gave is the Zip Capture lawsuits being filed in California, involving merchants who ask for zip codes at the check out and subsequently may face liability for privacy breaches.

“[Coverage for] privacy breaches can be contained in E&O policy, D&O policy, general liability policy covering personal and advertising issues, or a stand-alone cyber policy. But, while there may be privacy coverage in one of those policies, many general liability insurers do not want to pay under that clause.”

Although a law firm isn’t in the “retail” category, per se, it would probably be wise to check out the fine print…you’re familiar with that, right?

Cyber Liability

The concept of cyber liability takes into account first- and third-party risks. The risk category includes privacy issues, the infringement of intellectual property, virus transmission, or any other serious trouble that may be passed from first to third parties via the web.

Mr. Hughes suggested that a stand-alone cyber liability policy might be redundant for the type of risks a law firm would face via social media activity primarily because confidential information breaches are typically covered in an E&O policy. However, he added that the decision deserves scrutiny and that every law firm’s activity and risk tolerance varies:

“While traditional insurance policies typically have not handled these emerging risks of cyber liability; i.e., hackers, theft of employee’s identity information, or theft of intellectual property, in recent years claims have increased and limited coverage under traditional policies has become available.”

Brand Impairment

Brand impairment coverage, typically a stand-alone policy for businesses that might have risks related to product recall, is built into some policies on the professionals’ side, I assume because it is rare. Still, brand impairment happens. While it does not typically fall into the liability bucket, if it happens via social media—very viral—there are sure to be huge expenses related to public relations and restoring good will.

CORRECTION: My apology to Ms. Elbert for incorrectly interpreting where one might find Brand Impairment Coverage. She emailed me this morning stating, “I don’t agree that there is coverage per se for brand damage. What may be included in a cyber policy is coverage for pr (public relations) responses to help reduce brand damage.” Ms. Elbert suggested that coverage under a first party property policy or a crisis management component under a cyber policy should protect against money you’re out because of brand damage related to a social media misstep.

Employment Practices

Sonya Rosenberg, an employment law attorney at Neal Gerber Eisenberg, Chicago, and frequent speaker on social media and employer/employee issues, suggested that an Employment Practices Liability (EPL) policy might be available in the right context.

“In lawsuits where information is sought and found on public social media profiles, i.e., pages, blogs, videos, etc., and are factored into failure-to-hire-claims they will likely fall under general discrimination laws.”

However, she went on to say that:

“Abuse cases are just starting to come out of the woodwork, and as always, the lawsuits trail the practical developments. But as far as lawyer and law firm conduct involved in employment lawsuits and social media, I’m not seeing a trend. The Stengart case in the New Jersey state court might be a related example. Stengart involves the production of emails in litigation, which came from an employee’s private personal email account.”

Mitigating Risk

An October 2011 report from law firm DLA Piper revealed that while social media is being embraced in the corporate world, the pace at which it is developing is such that organizations’ policies and procedures are struggling to keep up.

Their research found that 65 percent of employers responding actively encourage the use of social media for work related activities. Twenty-one percent have taken disciplinary proceedings because of information an employee displayed on a social media site about another individual and 31 percent because of information posted about their organization.

Despite this, the report found that only a small proportion (25%) of businesses had a stand-alone, dedicated social media policy, and less than half (43%) had a social media policy that existed alongside another, such as an IT or HR policy.

Source: Knowing Your Tweet From Your Trend: Keeping Pace With Social Media In The Workplace, Shifting Landscapes, Report 4.

Interesting, right?

The best defense is an offense: Have a social media policy and enforce it.

Ms. Rosenberg believes that an insurance policy alone is not enough. Law firms and companies need to proactively mitigate social media risk by doing the following:

• Have a social media policy,
• Educate active users in the details of what is in the policy and exactly what is expected of them,
• Include guidance on business appropriate behavior (younger employees may not know),
• Update the social media policy frequently as the medium evolves, and,
• Enforce your policy.

“To the extent an employer decides to issue a social media policy, they need to be willing to enforce the policy, including any disciplinary actions outlined in the policy,” said Rosenberg. “They should be enforcing and taking steps, if not, it’s a pointless policy. Are they actually doing it? Not in all cases. But those who have implemented them and want to be taken seriously need to enforce them.”

Bob Stalker, Senior Vice President at Hub International Midwest, said:

“Companies (law firms) that are being more proactive with policy, employee compliance agreements, and education generally see fewer claims. You can mitigate exposure by having good employee contracts.”

Mr. Shear also elaborated on the importance of enforcement:

“In general, I advise that if you have a policy you must enforce the policy, educate about the policy, and follow the policy. If you’re not going to abide by it, why bother. For firms who have a lot of people online, people need to know what to expect.”

He gave as an example of what not to do: ESPN (sports network)

ESPN revised its social media policy last August (2011) to include a clause that reporters must tweet all news through ESPN platforms (accounts). Within two weeks, an employee (a radio broadcaster) tweeted on an individual account breaking the news that Payton Manning’s injury was worse than reported—an obvious violation of the new policy. However…

“When ESPN found it they did not do anything,” said Mr. Shear. “When the next person violates the policy, they have no teeth.”

The Wrap.

The discussions generated during these interviews revealed many interesting details, as well as did my extended Internet research, that cannot be contained in a single blog post. I will revisit soon. (Subscribe to the VMO!) For now, I don’t think professional liability insurers are poised to threaten a shut down of social media engagement as a condition of coverage. I do, however, think we will see products surface in the near future. As Mr. Shear suggested to me:

“If and when the insurance industry develops specific product, my best guess is that we can look to how insurers treated online content for the last 15 years. Social media insurance products are likely to mirror those from the era (1994-95) when law firms first started hosting websites.”

Endnote:

Special thanks to Nathan Darling, Kim Perret and Betsi Roach of the Legal Marketing Association Task Force on Social Media Ethics for inciting me to dive into the subject! This post is truly an effort inspired by the LMA advocacy efforts. We can expect to hear more from the LMA on this topic and other law firm management related issues in the future.

If you have further questions, I encourage you to contact the experts directly.

Bradley S. Shear is the Founder and Managing Partner of the Law Office of Bradley S. Shear. Bradley is an internationally recognized attorney, consultant, speaker, and writer. He is the first private practice lawyer in the United States to work with a state government (State of Maryland) to draft social media law. His blog, Shear on Social Media Law is the first blog to focus on social media law and public policy issues and is syndicated by the publisher of The American Lawyer and The National Law Journal through its Law.com Blog Network. Bradley is an adjunct professor of sports management at The George Washington University and print, radio, and television news outlets regularly request his commentary and insight. He has testified in front of the Maryland House of Delegates, the Maryland Senate, and state administrative agencies on social media and digital law matters.

Angela R. Elbert counsels clients on complex risk management and insurance issues and helps them obtain the maximum recovery possible when claims arise. She focuses her practice on advising entities and boards of directors on a wide variety of risk management issues, including indemnification agreements, obtaining insurance with the most favorable terms available in the marketplace, financial insolvency concerns and insurance aspects of corporate transactions and other business contracts. She has significant experience in handling complex insurance coverage litigation, other commercial litigation, mediations and arbitrations, with an emphasis on representing policyholders in insurance coverage disputes nationwide involving virtually every line of insurance. Based upon interviews with her clients and peers, Angela has been described as a “leading light” whose “breadth of knowledge is matched only by her commendable work ethic,” reports Chambers USA, America’s Leading Lawyers for Business.

Sonya Rosenberg counsels and represents employers in various labor and employment-related matters. Her experience includes counseling employers through the many aspects of the employment relationship and representing employers in administrative proceedings and through various stages of litigation at the state, federal district and appellate court levels. Sonya has given multiple presentations and authored multiple articles on various employment-related topics, including discrimination, blogging in the workplace, social networking sites, non-compete agreements, workplace violence, conducting reductions in force and notable changes and developments in labor and employment law. Sonya is currently on the Board of ELIT (Executive Leaders In Transition), a professional network group dedicated to human resources and finance executives in transition.

Neil Hughes and Bob Stalker can be reached via Hub International Midwest.

If you haven’t already seen it, seeing-is-believing. Check this out. Mark O’Mara, defense attorney to George Zimmerman—stand your ground case in Florida—has created a Facebook Page. Further, he has taken over the reins of all official social media interaction for his client, shutting down Zimmerman’s personal accounts and ratting out imposters. Does this raise your eyebrows? Mine are approaching my widow’s peak.

Is Social Media a Modern Channel for Defending a Witch Hunt?

There are many interesting questions, the least of which may be what happens when the trial court attempts to pick a jury? Skipping over that small detail for now… Other questions I had in mind include:

Is the George Zimmerman Facebook page, blog, and Twitter stream a signal of things to come? Is O’Mara a social media lawyer trailblazer? Is a social media channel(s) that gives voice to the public opinion in a high profile case just a practical solution for the defense counsel to efficiently manage the mouthpiece, or, is there some bigger motive, i.e., a tactic engineered by a cunning defense attorney (intended to blow up in the face of the court)? Maybe the social media sites were created to drive donations to the Zimmerman legal defense fund, i.e. O’Mara’s pocket? (In two weeks they raised $200,000 online.) Is this a Pandora’s box or what, to say the least?

(Disclaimer: My perspectives and opinions may be obtusely influenced in proportion to the number of Law and Order episodes consumed over the last 15 years or so…)

UPDATE: Here’s an article in the Miami Herald that digs deeper into the social media specifics (I was quoted), particularly allegedly damming history extracted from Zimmerman’s My Space Page. Comments on George Zimmerman Facebook Page claim that the MySpace page was allegedly hacked. While I can’t comment to that directly, it is possible. Hackers will do anything for a pizza.

I also neglected to mention that prior to Zimmerman hiring O’Mara, he was M.I.A. and thus not defending his character or his actions in the media. Interesting that defense counsel has “ramped” that up–and in particular using social media channels. I also learned from an unnamed reporter who spoke with O’Mara that the burden of managing this Facebook Page (i.e. moderating comments) has exceeded his expectations and he has hired several people to assist him. I am not surprised, but it certainly raises more questions: are they attorneys? Are they now registered counsel to the defendant? If they are not, is O’Mara violating the ABA and Florida Bar Rules on Trial Publicity (see way below)?

I’m going to guess that from what I’ve seen over the past 24 hours, the Facebook tactic is NOT going to become de rigueur for defense attorneys. Are they crazy! Who would want this noose around their neck? O’Mara is likely second guessing his own moves…at least if he’s as smart as he should be.

So, the question remains: will the judge put a gag order on the social media?

On Tuesday Seminole County Circuit Judge Kenneth R. Lester denied the prosecution’s request for a gag order.

From CNN:

“At this time, there is no demonstrated need to restrict free speech,” Seminole County Circuit Judge Kenneth R. Lester wrote.

The decision — which was made public Tuesday — rejects, among other things, prosecutor concerns over a lack of juror impartiality due to the amount of media coverage surrounding the high-profile case.

Of course the request and the facts were filed BEFORE the whole Facebook bru haha. Is it back to the drawing board?  With this HUGE social media factor being injected into the Trial Publicity can he change his mind? I would gander a bet that the judge is right now holed up in his office trying to makes sense of it all. Maybe he doesn’t understand the whole social media paradigm and the impact it has on public opinion and maybe he has a social media consultant at his side helping him try to understand it all? Let’s hope so.

Personally, I rather see this case tried in the courtroom, but I fear it is too late. Both sides will be subject to bad fall-out as it now in the court of public opinion. Yet, where social media is concerned, I think there are some serious holes in the defense tactic. I hope that the Judge cracks down on it–on both sides– before it gets out of hand–or maybe it has already. 

Let’s Examine Normal.

Common Uses of Social Media for Lawyers and Law Firms

In general, lawyers and law firms (of all practices: corporate, personal injury, class action, criminal defense, and etc.,) use the Internet and social media primarily for four common purposes:

1. To advertise
2. To educate
3. To network
4. To recruit employees

They pay to advertise their services on search engines, websites, directories, and blogs; they educate the public about their services and legal issues on their firm website, social networking sites, directory sites, and blogs; they use social networking sites to develop new business leads by posting a profile and interacting with the public; and/or use social media channels, such as Facebook, for recruiting associates and employees.

I know first hand via my social media counseling practice and from speaking to lawyers around the world that not all lawyers are endeared by the developments of social media. In fact, many lawyers are still dragging their feet for various reasons, the least of which are privacy issues and time limitations. But, just as many have simply resigned to the fact that it exists and take the attitude of “if you can’t beat ‘em; join ‘em.” Others find it unprofessional, period.

These fairly common (tame) activities are acknowledged by the American Bar Association, which is currently in the process of codifying an updated version of the Model Rules and Codes of Professional Conduct to include guidance on social media activities (due in August 2012). Until then, licensed lawyers are required to comply with the ethics rules as they are written. Little did they (or anyone) know that Florida attorney Mark O’Mara could upset the tidy apple barrel?

Unusual Uses of Social Media and Lawyers

Until the recent O’Mara/Zimmerman example (which is detailed below), the most unusual case study of a law firm using social media can be found in 2010 when the Sokolov firm, a class action law firm based in Boston, launched the first known “white label” social networking site to engage potential and current class members in discussions about the pharmaceutical birth control pill YAZ, Yazim or Ocella (generic version). In a May 24, 2010 Boston Business Journal article (in which I was quoted), the firm reported over “1,000 people visit YazTalk.com each month and the site has generated roughly 60 leads.” Their site, technically considered “advertising,” sought to comply with the ABA and State Bar rules despite the cutting edge nature of the tactic. It was definitely new to the profession and the Bar. Sokolov has since discontinued the open networking site and it is now just informational (I don’t have details on why). They still have a form on the site to generate leads, but they have moved user engagement over to Facebook, Twitter, and YouTube. Hmmm…the wagon train and the frontier…moving on…

Over the past two years we’ve seen an exponential rise in social media activity showing up in legal case discovery and is now more often than not admissible in the courtroom. We’ve also seen judges and lawyers being sanctioned by the courts or disciplined by the Bar for inappropriate comments on social media sites. BUT, what we have not seen is a criminal defense attorney “host” social media channels on behalf of their client. I would not be surprised to learn that members of the Bar are shocked and even disgusted. I am sure many see this development as just another dilution of what was once a “civilized” profession.

A Lawyer’s Responsibility in Trial Publicity

Every defense lawyer I’ve known has advised their clients that it is not in their best interest to speak directly to anyone from the media. Mr. O’Mara, in establishing these social media channels for his client, is attempting to, in his own words, “provide a voice for Mr. Zimmerman,” just as any decent defense attorney might do, albeit, in a less traditional fashion.

Despite the fact that this social media discourse will almost certainly taint a jury pool and compromise a fair trial (my opinion), I can honestly say, as someone who has been at the forefront of law firm communications and technology since 1995, that it makes perfect sense—technology making our jobs easier—dangerous perhaps, but not illogical.

The ABA Model Rules of Professional Conduct as pertains to trial publicity says:

Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

But the Florida Bar Rules, under which Mr. O’Mara is also subject, says:

RULE 4-3.6 TRIAL PUBLICITY

(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

(b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement [emphasis added]. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.

Focusing only on the first sentence of 4-3.6 (b), a person such as myself might think that setting up a FB Page that allows the public (a third party) to comment on the case gets dangerously close to violating this rule. Could the lawyer’s Facebook Page be assisting other persons in making extrajudicial statements? Never mind that O’Mara (and company) are now “moderating” the comments (after 4 days of open comments seen by the public: read prospective jury pool), what attorney in his right mind would want to vet all those comments and be responsible should one slip by that was argued by the opposing counsel as prejudicous!!!! Think: “cowboy?” I’m thinking David Letterman material…

Why Facebook?

You might ask, why would O’Mara, the mouthpiece, choose FACEBOOK as a channel? Simple, Facebook is the first place many people go to for information from people they KNOW, LIKE and TRUST. Why not create a Facebook Page for this client when MILLIONS of people will see these comments (good, bad or ugly) in their news stream. (Talk about tainting a jury, eh?)

A bad example, but one I’m personally familiar with, is that during the OJ trial third party buzz was created by face-to-face discussions among real time friends and such, limited by geography. Lawyers in the case did not enable it—technically. Today, on Facebook we know what our FRIENDS, thousands of them in some cases, are thinking-feeling-talking about by what they post on their status updates, not to mention that all their activity on Facebook Pages are passively posted to their stream and seen by their Friends. Do you think a lawyer that is maintaining a “Page” that allows public, third party discourse, is enabling?

Is it a defense strategy?

I’m not a defense lawyer and I don’t “think” like one ordinarily (I have a clear conscious), but I have to ask: Could a defense strategy be enabled by a social media presence?

Truly, after mulling this around in my brain, I concluded: I have never known a defense attorney to be upfront about much, especially where communication falls outside attorney client privilege. (I agree with that tactic by the way.) I’m going out on limb here to say that O’Mara is saying the right things on his blog/Facebook Page/Twitter, but I’m almost certain there is more beneath the surface… His posted statements claim that he’s using social media because it’s the message, not the medium. Again, it is a common practice for the attorney mouthpiece (my words) to respond to the press, ergo the public at large and the medium is less important than the message. But, a great defense attorney always has another angle up their sleeve and every move they make relates to legal strategy. Ask Jack McCoy.

Either O’Mara understands, or his social media counsel has advised, that social media has real power to influence causes, i.e. Arab Spring (I do not imply that this is remotely the equivalent of a movement by an oppressed people group, but just as an example), and etc. I think O’Mara’s move will play out in the big picture and maybe the big screen too $$$$. Social Network: Part II? Your thoughts?

I’d like to think that he is simply, as he says, accessing the tools to meet a need for efficiency in responding to emails, phone calls, etc., but we won’t know until this whole thing is played out in the courts.

The Edge of the Envelope or Genius?

O’Mara’s use of social media is riding on the edge of the envelope and I suspect the Bar will shut him down sooner or later. Or not. I have been involved in high profile cases responding to the media. Would I advise a client to use social media if I thought it could be done within the boundaries of the ethics rules and it created public communications efficiencies without sacrificing the defense? Yes.

Is it he genius? In this case, the jury is still out. I personally think this tactic will come back to haunt O’Mara and Zimmerman, not because of the medium, but because of the message. While I’d like to believe that he is using social media for good, there is that nagging intuition that says there is more behind the curtain. The question in my mind is, can social media factor into case dismissed? Unfair trial, jury bias, technical error, or incompetent counsel? Not to be flip, my sympathy goes out to the family of Trayvon, and Zimmerman is innocent until proven guilty by a jury of his peers, but don’t you think it will make a good “Law and Order” episode?

On a typical day, Catherine Zinn sits in on a lot of meetings. She meets with existing clients, new clients, firm executives, and partners. After a full day of meetings, she represents the firm at networking events and seeks to identify prospects. Sounds like just another ho-hum day in the life of a client development professional at any law firm—or not. You see, Catherine is the Senior Client Development Executive at DLA Piper, the largest law firm on the globe, and she doesn’t just attend meetings, she “owns” many of them. More importantly, the results of these meetings are tangible, for example, contributing in part to an overall 11% increase in revenue in 2011.

Catherine Zinn, Sr. Client Development Executive, DLA Piper

When Catherine agreed to meet with me this week, over the phone, in advance of her session at the upcoming Legal Sales and Services Association (LSSO) RainDance 2012 Conference, we talked about what makes the DLA Piper sales team top performers and how her meetings are a genuine catalyst in driving firm revenue.

“In every corner you can point to at least one win that never would’ve happened, but for the sales team. The partners and leadership know this and we are very well regarded.”

(Talk about job security! Wow!)

Sales Professionals Are Integrated Throughout the Firm

Formal sales departments are still relatively new for law firms, and non-existent in most. Perhaps even stranger is the fact that many lawyers are still reluctant to allow client development executives to interact with their clients! I asked Catherine about that.

“Though not always the case at many law firms, at DLA Piper, we speak directly with clients and work with prospects. A key ingredient to our success is that our sales executives have a seat at every table.”

She explained that the sales professionals are also not under-valued in internal meetings.

Our sales executives are not order fillers or the de facto scribe at internal executive meetings. The firm does not view the world as us and them (SIC) lawyers and non-lawyers. Everyone is given permission to achieve on their merits alone.

(Yes, Virginia, even a “non-lawyer” has real value to contribute!)

“We are integrated with every pillar in the firm; practice leaders, clients, accounting, research, the library, marketing, management, etc. In many cases, we drive the meetings. We develop the agenda, bring up the difficult issues, and we make the judgment calls.”

Whether internally among partners or externally among clients and prospects, Catherine explained that her charge is to keep her proverbial finger-on-the-pulse to insure a healthy environment in which to drive revenues.

The Recipe

Catherine suggests that there are four primary components to a strong client development program (the ingredients of the secret sauce):

1. Direct relationships with the top.
2. Regular meetings with current, and new, clients.
3. Internal collaboration.
4. Lead generation events.

No surprises in this list. Many an excellent law firm gives some degree of lip service to all four components, however, as Catherine pointed out, and I agree, it’s the execution of those steps that will make the difference.

On Direct Relationships with the Top:

“The effectiveness of the sales team is dependent upon respect and inclusion from the top down. The global CEO of our firm loves what our sales team does. We communicate frequently. We are folded into the management team, not by a mandate or organizational chart, but because we deliver results.”

On Meeting With Current Clients:

“I’m focused, fairly exclusively, on general counsel relationships. I am 100% sales and business development, meaning 50 percent of my time is spent selling to prospects, typically general counsel of Fortune 500 companies, and 50 percent meeting with current clients, again typically general counsel, to talk about how the relationship is working.”

She told me that in these meetings she tries to uncover what’s working and what’s not in order to improve services, or, as only a sales person can expect, expand the relationship to provide additional services that make sense for the client and the firm.

She explained that client relationships aren’t on the entitlement plan—relationships are earned. You can’t build a loyal relationship with a client if you’re not connecting frequently and executing on your word. The sales team fills an important co-role in client service delivery.

On Meeting With New Clients:

“Every new client gets attention from our sales team. First, I sit down and do a needs assessment. I try to learn what’s going on in their company, their preferences, challenges, what’s working with other outside counsel relationships, or not, and generally to see if anything pops. Then, together we create a planned program for their account. We follow through, follow up, reassess, revise, and make sure we are exceeding expectations.”

How comforting for a new client to know they have an ombudsman of sorts that they can contact for a service issue without be charged by the hour for an attorney’s time. After all, it’s what happens after-the-sale that makes the difference between an indifferent client and a loyal client, right?

On Internal Collaboration:

Driving the internal pipeline is critical to the sales professional’s success at DLA Piper.

“It is nearly impossible to create internal collaboration and cross selling within sectors without knowing what your colleagues have been doing to move things forward.”

Catherine leads a face-to-face, weekly regional meeting with their corporate department partners, who are typically viewed as the client relationship partner.

“I sit down with about 20 partners every week to discuss the pipeline. We use this meeting to make our colleagues generally aware of what we’ve been doing. We each report on any client meetings that we had that week, update each other on where we are with prospects, and generally hold one another accountable.

“The sales process is dependent upon internal coordination and these meetings are a key component.

“And, when the sales professional ‘owns’ the meeting, they stay on it and manage the bejesus out if it. Energy and execution is my focus, and when you ride others to do the same, sales happen.”

On lead generation:

“If I’m not attending a general networking type of event such as the Silicon Valley Association of Corporate Directors, I may have helped plan an event, placed the speakers, brought in a VIP group of clients, or have driven the attendance at the event to insure that just the right people are involved. In all cases, I am both representing the firm and mining for opportunities.”

It’s hard work and it’s working.

DLA Piper saw an 11% increase in revenue last year, according to Catherine.

And, while she admitted that not all of it can be attributed to the efforts of the sales teams (the firm has an active strategy in acquiring lateral talent), there’s little doubt from anyone that the client development team is earning their keep.

Catherine emphasized that not one size fits all. She gives credit to the firm leaders who approach the business of law with an entrepreneurial philosophy.

What is working for DLA Piper may not work in another firm, but it is definitely a starting point for brainstorming where legal services sales teams are concerned.

That’s why she plans to make her session at RainDance 2012 highly interactive. Using a white board to record attendees’ ideas, she will guide the group through what no doubt will be a very lively discussion. I’ll follow up with Catherine after the conference to report on the VMO blog about the outcome of the session.

About RainDance 2012

It’s in Chicago, June 5-6. It’s the only focused event of its kind, designed to educate law firms in addressing sales and service challenges. Follow on Twitter @LSSO_org

Have we reached a tipping point? Can yesterday’s rules hinder a lawyer’s ability to serve their clients today? “Yes,” say the leaders (and members) of the Legal Marketing Association (LMA).

The issues at stake

1. The patchwork quilt of advertising rules across states is exhausting and difficult to maintain in today’s world where multi-jurisdictional practices are common. It’s a huge pain. So, in 2005, the LMA sent its first official position statement to the American Bar Association (ABA) advocating the need for uniform advertising rules for all jurisdictions.

2. The Internet has changed forever the way we communicate with others and how professionals and businesses educate the public about their services and products. For lawyers, the ABA Model Rules of Professional Conduct that relate to advertising and marketing are pre-Web 2.0, and they are simply outdated. Short of the impossible idea that the ABA could regulate the Internet, lawyers and marketers need clarification in the use of new tools made possible by technology in order to comply and still serve today’s Internet addicted clients and potential clients. In 2009, the LMA formed a task force to help move those things along, too.

How it unfolded: The ABA Commission on Ethics 20/20

In 2009, the ABA acknowledged that advances in technology and global legal practice developments were reaching a tipping point, and that a top down review of the ABA Model Rules of Professional Conduct was necessary. The ABA Commission on Ethics 20/20 was established under then ABA President, Carolyn B. Lamm. Their job: Conduct a thorough review.

The final request for comments, on relevant parts of the Commission’s earlier drafts, closed April 2, 2012. The Committee is slated to discuss and finalize their recommendations at the Annual ABA meeting, August 2012. Draft resolutions to date are found here. My earlier summary of the last draft can be found here.

LMA behind the scenes

No shrinking violet, the LMA, aka, The Authority for Legal Marketing, formed a task force to respond to the Commission’s calls for comment. They had these objectives in mind:

1. Build a bridge between traditions that the profession holds dear and the reality of all that is new and transformative.
2. Respond to the need for LMA members to be conversant with the rules and regulations.
3. Show leadership in helping the profession adapt new tools embedded with respect for the profession.

I recently had an opportunity to speak to LMA Executive Director, Betsi Roach, and past presidents Nathan Darling and Kim Perret, to catch up on how the LMA is working on members’ behalf on these important issues.

“The Task Force, created by Nathan Darling, 2010 President, and chaired by Kim Perret, 2006 President, works with the ABA Commission on Ethics 20/20 and with the Florida Board Review Committee in order to ensure that the voice of the legal marketing community is heard on significant issues such as how Internet-based communication and marketing tools can be used in every firm’s marketing mix and the negative impact that state by state rules and regulations can have in this new border free marketplace,” explained Roach.

The timeline goes something like this: Task Force was created in late 2009. Darling presented LMA’s position on the Model Rules review with in-person testimony before the ABA Commission in October 2010 and written comments. Darling and Perret also landed a private meeting with 20/20 Commission co-chair, Jamie Gorelick, to further advocate LMA’s views.

“We believe that our advocacy helped the ABA avoid going further in the wrong direction,” explained Darling. “Our involvement to date also leaves the door open for addressing upcoming issues after the Commission releases its final proposal in August 2012.”

Meanwhile, in 2011, Perret presented official LMA comments to the Florida State Bar Review Board, in a follow up to the 2005 position statement. (Florida currently holds the top award, in my opinion, for particularly irrational standards for lawyers’ Internet use. I say they need all the help they can get.) Moving on…

“Focus on the message, not the medium,” says Darling.

“We’re not just trying to focus folks on the ethics rules, we’re trying to change the way lawyers find and develop business,” explained Perret. “Up for debate is: How are customer relationships actually formed and what role does the Internet play?”

More specifically, areas in debate include:

• Can a customer relationship be formed via a “chat now” screen?
• A Tweet? A blog post? A Facebook status update? (PLEEEEASE, seriously?)
• Pay per click advertisements that offer a “contact us” or application option?
• What role do referral-network links play in engaging new clients?

Darling added,

“At the end of the day, many of the activities on the web equate to educating buyers of legal services about the services you offer. Even when they are found online, lawyers are not forming client relationships without full disclosures, agreements, or in-person identification, appropriate paperwork with signatures, and so forth.

“Federal statutes, heck, the U.S. Constitution, are in place to govern how commerce works. Why should lawyers be handicapped from competing for business within that structure?”

They shouldn’t. I applaud the LMA for their concern and for leading advocacy efforts to help the profession transform itself in the new information economy. Technology renders traditional borders meaningless. State by state regulation of the profession only causes confusion, layers of enforcement (that laughably the Florida Bar intends to delegate to peer policing), and ultimately unnecessary expense for law firms.

For example, an LMA survey, conducted for the purpose of presenting the ABA 20/20 Commission with statistics, revealed that collectively, hundreds of thousands if not millions of dollars in cash and valuable lawyer and staff time ($10-30K per firm of the 194 firms responding) are spent by law firms each year in an attempt to comply with the contradictions imposed by multi-jurisdictional ethics rules regarding Internet use. This is on top of the fact that even many honest attempts at compliance can fall short due to technical shortcomings or misunderstandings. This scenario cannot be sustained, nor should it.

The facts are simple. According to the LMA Task Force:

1. People, retail consumers of legal services as well as businesspersons and corporate counsel, seek information via the web as a matter of course, daily. Websites are information on request—not advertisements.
2. You can’t paint with one brush. All social media does not constitute solicitation. A distinction must be made between regulating the medium and regulating the message.

Agreed and agreed. Moving on…

What’s ahead for LMA advocacy efforts?

“We will continue to seek ways to advocate in the interests of our members where evolving Internet advertising issues and related topics develop. We are prepared to respond to follow up issues after the August 2012 meeting of the Commission,” said Darling. “And, we are committed to making a difference in addressing the issues that go beyond business development and marketing, including ongoing questions related to professional ethics and law practice management. We believe this is an area where marketers can and must show leadership. Marketers can play a critical role in leading their firms, ethically, as they adapt their practice to compete in the 21^st century.”

The LMA also informed me that in the near future they will have a section on its website devoted to reference information on the Model Rules, state-by-state rules, and the ABA 20/20 Commission. An ethics program via webinar is planned for the Fall of 2012 and an in-person session at the 2013 Annual Conference to be held next spring in Las Vegas, Nevada, is in development.

I am impressed by the advocacy efforts of the LMA. I’m also relieved to learn that marketers have a seat at the table. That’s right…we’re not just planning parties and printing nametags anymore. The very large and venerable profession appears to now recognize that diversity of voice is important for a healthy transition to the realities of new media and marketplaces. Darling and Perret reported that the Commission has been very open and objective in regard to their contributions. This surely is worth great recognition to all involved.

I encourage all lawyers and marketers to consider joining the LMA and receiving membership benefits. If you have further interest or questions, please feel free to contact the LMA directly. They will be more than happy to assist you. (Disclaimer: I am an LMA member but hold no official role in the organization and receive no compensation for endorsement. Simply a cheerleader on the sidelines for a great organization.)

But wait…there’s more!

During my discussion with Darling and Perret, I asked, “Who owns the issue of liability in the law firm? HR? Marketing? Management? Lawyers? What are professional liability insurers saying?” Good questions. As far as we know, they’re not saying much right now. So, while it may be a sleeper issue for the moment, what happens when the House of Delegates approves the ABA Model Rule changes is anyone’s guess. Will there will be some trickle down effect? Might insurers require a social media audit before a law firm’s policy gets renewed?

In a follow up post here on the VMO, we’ll imagine that a managing partner gets a memo from Chubb or Attorneys’ Liability Assurance Society, Inc. (ALAS) that reads like this: If you have a Facebook page, take it down now because we will not cover any social media-related mal-practice claim etc, etc…GULP.

Can the marketer (or LMA) be a bridge to liability issues that are CRITICAL to the marketer’s toolbox?

Hmmm… Sign up to receive the VMO in your mailbox or RSS reader so you won’t miss a post!

Boarding a flight between Montreal and Miami yesterday I overheard a mother tell her son, who looked no more than 3-years-old, “Turn off your iPad.” She suggested, gently, that he take a nap until we were up in the air, at which time he could sign into the American Airlines’ (please don’t become United Airlines, service will suffer) wireless service and “play.”  I was immediately envious—I’m a digital junkie, lusting after the new iPad and couldn’t believe this 3-year-old kid (toddler?) had one! I don’t even own an iPad2—though simply an exercise in discipline because I can’t quite YET justify carrying around another device when the ones I have meet every need quite efficiently. (But if I won one in a raffle or a VMO fan would ship one to my door, I’d certainly accept the gift with gratitude!)

Still, as I looked around the economy class cabin, everywhere kids were tethered to some electronic device. We must face the fact: our kids are digital natives. They do not know life before the Internet and in many cases before mobile devices, which are now the literal center of their universe—even those as young as 3 years old! This WILL have an impact on how we deliver legal services in the next 10 years, maybe less as today’s teenagers, also digital natives, become entrepreneurs, inherit the family business or wealth, buy homes, pay taxes and more, and seek a different legal services model, yes?

The ABA Journal cover story this month, April 1, 2012 edition, profiled the “…Footprints of America’s Switched-on Lawyers.” Lots of interesting commentary, insight, and even techie confession in this article from folks like Richard Granat, Niki Black, Carol Elefant, and others.  I recommend reading it, after you finish reading this post, of course.   Then read Rik Myslewski’s, The Lifer column in this month’s Mac | Life magazine, “Take Time to UnPlug” for another piece of advice for those who still remember what it was like to listen to the sounds of silence or indulge in a face to face conversation!

DIGITAL DISRUPTION CONTINUES

The news here on this VMO post is that most of our kids today are completely programmed to easily adapt to evolving technology. When today’s adults are faced with the next disruptive version of the Internet, the Semantic Web, (coming soon to a connection near you, with lots of “scary” stuff that is sure to peak and freak any clear thinking adult’s privacy and security thresholds), our kids will take to it like fish to water.

They will likely not question a single sign on ID (that hackers could capture and do who knows what), and will likely readily embrace the concept of a “personal data locker” in the cloud. What’s that? Well, the personal data locker on the semantic web will be, for example:

1. “a portal to a world of custom-made products based on their personal ontology,”*
2. It will include a body scan, models of feet and hands, and even a biometric profile of how you move.
3. This data locker, containing your specifics, will enable suppliers to make or customize their product for you!
4. No more trudging through reviewer comments about size or fit of the jeans you’re longing to own on a retailer’s website!

According to this fascinating book, which I have been slogging through since 2010 because it is frankly mind-boggling, *Pull: The Power of the Semantic Web to Transform Your Business, David Siegel, November 2009, your ontology, the niche areas of your interest, will be stored in your “data locker” and will satisfy various kinds of semantically specified requirements, so it gets smarter and smarter in personal recommendations the more you feed it. Think Pandora or the new Google search engine. You will be able to add your “friends’” ontologies, with their permission of course, to your locker so recommendations can be semantically integrated with yours.

Your data locker will store your medical, tax, legal records and more, along with your social, physical, and educational records, and probably even an archive of who you voted for in every election. Your purchases, likes, dislikes, calendar, photos, groceries, friends, vacations, restaurant selections, repair bills—virtually EVERYTHING will be stored digitally on the Internet so it can retrieve and connect random bits of data to inform your next moves. And, if you believe what they are saying, it will make you life better, more efficient, and more customized—everyone will have a defacto personal assistant via the cloud. Despite the fact that we may be more vulnerable to nefarious activity, (or in some cases government interference), heck, we don’t have a choice, do we? The kids, our legacies, will embrace it and thus, while we are still around, we will be required to adapt–again! Don’t be caught sleeping may be apropos.

Digital Natives and LEGAL SERVICES

Legal services providers will have to face a new round of threats to discovery, confidentiality, pricing, delivery, and more… ARE WE READY? Digital natives, who know nothing other than transacting via the Internet, will demand that your services be available 24/7 and accessible via the net. Yes? No? Will the profession be forced to adapt? Can we envision this? Will the data locker be implemented while you’re still practicing and how will that look? Do you have plans in place? Are you watching this unfold or are you being proactive?

I think the “virtual” law firms, the lawyers that are adapting to technology, definitely have a head start. I’m not just talking social media for marketing, I’m suggesting this is a delivery and storage issue. After all, most courts have all their records digitized now and filing, researching, and more are all accomplished remotely. No more treks down to the courthouse to face a surly clerk and sort through paper files that result in paper cuts and disability claims.  Nope, records are available via the Internet and are being used  by paralegals and legal assistants as convenient and time saving developments. IT professionals are looking into the cloud for storage—are document storage facilities becoming extinct? And, proprietary software development companies, are they scared? Many are being forced to shift their business models in this new digital nation. The sky is falling…..

Social Media

Back on earth…following my most recent public speaking engagement at Legal IT 6.0 in Montreal – shout out to the event – it was amazing, one of the many astute attorneys attending the event came to me and commented on how refreshing it was to hear me propose that social media is not mandatory, but rather can be used as a complementary tool to our off-line business development and marketing activities. Seems, according to his observations, that many social media speakers are setting a tone of do-it-or-else-suffer-severe-consequences. This is never my approach. It has to make sense to the individual and be used in an appropriate context—at least for now.

BUT, I agree to a degree that ignoring the global marketplace found on the World Wide Web could delay progress for those who are in the transitional demographic—too young to retire in the next 10 years but too old to feel that the social web is the only means to new business.  For the digital natives…well, what else is there? Paper? Pencils? Crayons? Blocks? Globes? Balls? Roller skates? Hugs? Birds? Beaches? Bikes? Playgrounds? Nursery rhymes sung by a calming mother or father’s voice while falling off to sleep? Hmmm… Will that custom-fit pair of jeans be worth the exchanges? They may never know the difference…

If you want something done, ask a busy person to do it. The more things you do, the more you can do. (Attributed to Lucille Ball)

Today, everybody is busy, right? Or maybe not and we’re just disorganized so we look busy? Maybe its just a throw away excuse? Well, I’m really busy, but here I am, carving out the time to write a blog post! How did I find the time? I made the time because the task is valuable and important to me on many different levels; and hopefully for my readers!

I sympathized with someone this week who, after I chided her to get engaged in social media, commented that she is too busy for social media. She has a full time job that requires a rigorous travel schedule, she has a young family, and to top it off she has a second “full time” volunteer job as the president of a large professional association. How anyone can handle two full time jobs and a family is certainly remarkable, but is it a justifiable reason to skip social media?  Do we give her a pass?

Social Media Examined

Despite what some (self identified laggards) may have concluded: that social media is for people who have time on their hands to kill, I beg to differ. Social media is a highly influential medium that is being accessed by (very busy) business persons around the world in huge numbers.

The social web (i.e. social networks, blogs, YouTube, review sites, and more) holds the attention of CEO’s of some of the most forward-thinking organizations, the top journalists, the Executive, Judicial and Legislative branches of the U.S. government, foreign governments, scientists, clergy, authors, artists, and entertainers—the thinkers and doers of our world.

This simply begs the question in my mind: Can a full-time businesswoman and volunteer leader of a geographically dispersed membership possibly afford to ignore the conversations that would help her better understand the people, issues, places, and ideas being put forth in social media by her clients, her organization’s membership (including vendors and sponsors who underwrite many of the programs), and her colleagues? What about those of her competition or the journalists who might help her promote her causes?

The answer: He/she who makes the loudest excuses, simply doesn’t see the value in doing it. When it comes to social media, be careful with those excuses because, if it hasn’t already, ignoring it will eventually set you back. I suggest you start now by putting one foot in front of the other…slowly, and move forward—to the best of your ability. (Which was exactly the businesswoman’s final agreement in response to my urgings. Kudos!)

Here are 10 tips to get up and running:

1. You’ve got to find your rhythm. Social media listening and engagement needs to become a natural part of your day or evening. It’s the same as checking email.
2. Make sure your mobile devices are “app-ed” up. Your most important social media channels should be travel ready. You can get a lot done while on the go. (Just not while you’re driving!)
3. Choose the right channels. If you’re putting in the time and not getting benefit (defined in many different ways), move on. Talk to business people you admire and who use social media, they’ll be happy to steer you in the right direction.
4. Take the time to gather the right people into your networks. It won’t take long. Start with only people you know and expand from there. Build your network before you need it. I promise it will be worth it.
5. Filter the noise. Don’t get caught up in reading every post that passes through your stream. Use precious time allotment more effectively.
1. Create lists and saved searches in Twitter.
2. Create a dashboard in iGoogle for your favorite blogs, journalists, and Google Alerts. Make it your landing page when you open your browser. Quickly scan the conversation.
3. Remove overly chatty friends from your Facebook stream by unsubscribing to their status updates. (You can still keep them as FB friends, you just won’t be bothered by their games, photos and links to canned thoughts for the day. Simply go to one of their posts in your timeline and click the little drop down arrow to the right of the status update, click unsubscribe to change your preference.)
4. Manage your FB settings to only notify you when you’ve been tagged in a post or other media like a video or photo. This is the easiest thing to do, still many don’t. It gives you a notification in your email box so you can quickly link to the mention and respond if appropriate.
5. Join only ONE group on LinkedIn and be present and accounted for.
6. Only respond when you think you can add something worthwhile, or when promoting others’ content can deepen your relationship with them. (by sharing their content). Sometimes it takes only a second to send a link or point someone in a helpful direction. Other times it takes writing a bit more. No one will judge you by the length of your response, only by the content in it. Be smart. Add a personal insight or comment to links you share. The extra minutes you spend writing it will go a long way toward your contribution to others and your credibility.
7. Load up your Internet browser’s tool bar with helpful short cuts to clipping programs like Evernote or to Twitter, link shorteners (though most networks now have onsite auto shorteners) and YouTube.
8. Practice mailbox hygiene. Email newsletters sprout like weeds. I swear I don’t remember subscribing for half of them, the other half seemed wise at the time, but do I read them? Probably not. Unsubscribe to most, keep only the ones that you really read or that have links to content within your subject matter so that you can easily access and share to Twitter, Facebook, etc. without ever having to search the web.
9. Create a paper.li –a little newspaper that you create by selecting custom subject matter. Your weekly paper.li will post to Twitter, include author Twitter handles and build followers.
10. Easy does it! You don’t have to be social 24/7. You don’t have to be social every day. But, be social…to the best of your ability. We all have off-line obligations, many are critical to our business, however, neglecting online opportunities just may hurt you more in the end.

I’m not suggesting there aren’t reasons to skip social media, there are. However, “I’m too busy” is an excuse, not a well-thought out choice. If you need help making choices, the VMO provides  practical training on social media, but only for very busy people!

And now for something REALLY fun….

This post may not be directly important to your work as a marketer or lawyer, but I’m pretty sure you’ve heard or read many of these words in one context or another, and may even be wondering what they mean.

The Cloud? Social Discovery? SOA? De-dupe? SoLoMo? Robust? Emoticon?

Well, fact is, so do the people who actually use them in their work! Curious? No, that’s not on the list, but if you are, here are the Most Confusing High Tech Buzzwords of the of the Second Decade of the 21st Century, thus far (2010, 2011 & 2012) as released by The Global Language Monitor.*(see end of post for explanation of how the list was compiled.)

Note: Along with the tongue-in-cheek commentary provided by GLM, where I could find them, I’ve added common definitions in italics.

1. Big Data. Big Data is a big buzzword.  It has been called the key to new waves of productivity growth, essential to the US place in global economics, and more.  Now if only we could agree on exactly what this means and how we get there. Consider yottabytes: A quadrillion gigabytes. Hint: Just think a lotta bytes. In information technology, big data consists of datasets that grow so large that they become awkward to work with using on-hand database management tools.
2. ‘The Cloud.” The Cloud, in various manifestations has been ranked No. 1 for 2008, No, 4 overall for the decade, and now as No. 2 for 2012. Still all very nebulous. Most commonly defined as the Internet, where delivery of computing as a service (software as a service of SAS) rather than a product, i.e., shared resources, software, and information, are provided to computers and other devices.  
3. The Next Big Thing.  A cliché rendered nearly meaningless by the innumerable daily claims made by VCs, entrepreneurs, college dropouts, etc.  Actually, you can count the history of next big things on your fingers, and possibly toes.
4. Social Discovery. Social discovery is the process by which a user finds and connects with another while a social network is a social structure of people with social connections between them. Webster’s 1910 definition: “Consisting in union of mutual converse.” Might be an excellent corporate strategy.
5. Web 2.0 (3.0, and so on).  Ranked as the 1,000,000th English-language word in 2009, it just keeps morphing along. Web 2.0 is a loosely defined intersection of web application features that facilitate participatory information sharing, interoperability, user-centered design and collaboration on the World Wide Web.
6. Solid State. As in Solid State Disks (SSDs).  Remember ‘solid-state’ televisions switched from vacuum tubes (Paleozoic)? How about LED watches from the ’80s (Mesozoic)?  Today, it’s all-about Solid State Disks. Think iPad, net-books, and other handheld computers, all light weight because they don’t contain the spining hard disk drive. They use SSD for data storage.
7. CERN. You might want to understand the acronym before the Earth is swallowed up in the ‘mini’ black hole it just might create. CERN is The European Organization for Nuclear Research. It is the world’s largest particle physics laboratory and home of the first Web server used by British scientist, Sir Tim Berners-Lee.
8. Solar Max. In the 1850s telegraph wires melted.  Best not to shuck off the hype here. Solar maximum or solar max is the period of greatest solar activity in the solar cycle of the sun.
9. De-dupe. First we dupe, then we de-dupe. Flash forward to 2014: Re-duping!  Ah, the next big thing! To de-dupe is removing duplicates in records linkage, i.e. databases.
10. 3G/4G/5G. One of the benefits of having an open, open standard (AKA, no standard). Anybody can claim to lead as the (Generation) ‘standard’ expands into meaningless. The G stands for the generations of cellular mobile communications.
11. SoLoMo. This is not an oh-so-trendy neighborhood like Soho or Dumbo, at least not in the sense of brick-and-mortar.  This is the convergence of Social, Local, and Mobile.
12. SOA.  The number one Most Confusing Tech Acronym of the decade. Solutions Oriented Architecture (SOA), is the underlying structure supporting communications between services. SOA defines how two computing entities, such as programs, interact in such a way as to enable one entity to perform a unit of work on behalf of another entity. There a highly popular SOA for Dummies edition and Google Books list 47,300 editions that explicate upon the subject.

Want more?

Here is the first decade (2000-2009) of the 21st century’s Most Confusing High Tech Buzzwords with GLM comments.

HTTP — HyperText Transfer Protocol is used for HTML (HyperText Markup Language) files. Not to be confused with text-on-too-much-Starbucks.

Flash — As in Flash Memory.  “Flash’  is easier to say than “ I brought the report on my EEPROM chip with a thin oxide layer separating a floating gate and control gate utilizing Fowler-Nordheim electron tunneling”.

God Particle – The Higgs boson, thought to account for mass. The God Particle has eluded discovery since its existence was first postulated some thirty years ago.

Cloud Computing – Distributing or accessing programs and services across the Internet. (The Internet is represented as a cloud.)

Plasma (as in plasma TV) — Refers less often to blood products than to a kind of television screen technology that uses matrix of gas plasma cells, which are charged by differing electrical voltages to create an image.

IPOD – What the Alpha Whale calls his personal pod. Actually, Apple maintains that the idea of the iPod was from the film 2001: A Space Odyssey. The origin of the word IPAD is a completely different story.

Megapixel – Either a really large picture element (pixel) or a whole mess of pixels.  Actually, one million pixels (that’s a lotta pixels) OK, what’s a pixel? Computer-ese for picture element.

Nano – Widely used to describe anything small as in nanotechnology. Like the word ‘mini’ which originally referred to the red hues in Italian miniature paintings, the word nano- is ultimately derived from the ancient Greek word for ‘dwarf’.

Resonate – Not the tendency of a system to oscillate at maximum amplitude, but the ability to relate to (or resonate with) a customer’s desires.

Virtualization – Around since dinosaurs walked the planet (the late ‘70s) virtualization now applies to everything from infrastructures to I/O. I/O, refers to the communication between an information processing system (such as a computer), and the outside world, possibly a human, or another information processing system.

Solution — Ever popular yet still an amorphous description of high tech packages of hardware, software and service

Cookie — Without cookies with their ‘persistent state’ management mechanism the web as we know it, would cease to exist.

Robust — No one quite knows what it means, but it’s good for your product to demonstrate robustness .

Emoticon  — A smiley with an emotional component (from emotional icon).  Now, what’s a smiley? :’) (See Robust)

De-duping – Shorthand for de-duplication, that is, removing redundant data from a system.

Green washing – Repositioning your product so that its shortfalls are now positioned as environmental benefits:  Not enough power? Just re-position as energy saving.

Buzzword Compliant — To include the latest buzzwords in literature about a product or service in order to make it ‘resonate’ with the customer.

Petaflop — A thousand trillion (or quadrillion) floating point operations per second. Often mistaken as a comment on a failed program by an animal rights’ group.

Hadron – A particle made of quarks bound together by the strong force; they are either mesons (made of one quark and one anti-quark) or baryons (made of three quarks).

Large Hadron Collider – The ‘atom smasher’ located underground outside Geneva. Primarily built to re-create the conditions of creation, 1 trillionth of a second after the Big Bang.

So, there you have it. If you made it through this list, you may now consider yourself EDUCATED! Happy Friday

* From the The Global Language Monitor website: the GLM uses a proprietary algorithm, the Predictive Quantities Indicator (PQI) to track the frequency of words and phrases in the global print and electronic media, on the Internet, throughout the Blogosphere, as well as accessing proprietary databases. The PQI is a weighted Index, factoring in: long-term trends, short-term changes, momentum, and velocity.

Are you SURE you want to post that?

This should be the last thing you should say to yourself before hitting “Post.” I know, I know, the topic has been covered ad nauseam. But, yes, it really matters.

My two cents.

For the past three years I’ve indulged in an “unplugged” stay in Mexico—not because they do not have the infrastructure, they do—because it is a lovely country and I enjoy the people, sights, experiences, and FOOD! (and—yes, Mexican wines can be quite nice-for a price!)

Taking a clean break from my online networks and blogging gives me a well needed perspective—you should try it.

FLOOD WARNING.

This year, upon my return, I plugged back into Facebook and found my stream flooded with post after post of links to pabulum—insipid, simplistic, and frankly bland content. (How could I have missed that pre-break?) Well, this realization led me to conclude that it’s just way too easy to hit send/link/post 3^rd party opinion pieces or rehashed, divisive political dribble without adding value or anything resembling a human conversation.

News FLASH!

This does not endear me to you. This does not make me want to do business with you. This makes me think you are a puppet. This does not even want me to be your “friend” on Facebook. (Hmmm…now there’s an idea. Maybe it’s time to cull the troops.)

I admit, perhaps it is a statement about the “friends” I have. (Apologies to those FB friends who are genuinely engaging! And there are many. Family gets a pass.) Still, for the most part, I personally know all my Facebook friends. They are either professional colleagues, people I went to school with, friends of my kids, or people I know or have met in real life today. As this is the case I know that many of these insipid postings are not what we would be talking about in face-to-face conversation. Why do they post that stuff? Because they really care or they feel free, unaccountable, bored? I’m not trying to psychoanalyze, just sayin… Well, okay, I admit to sharing a video of Whitney Houston singing “The Greatest Love,” but I’m not talking about that kind of stuff. I like to know that you know we’re all sad when an artist passes. I’m talking about stuff that is not only insipid, but is also is potentially divisive and polarizing. That’s just not…well, polite.

What happened to “politics and religion are not polite” social conversation in casual relationships—which is how I categorize most of my “friends” on Facebook. Did we loose our manners in the face of Facebook?

Political musings about protesting this, that, and the other thing do nothing to lure me into a more fulfilling, or in the case of business, productive, relationship.

Note to self.

If you are at all interested in using social media to build business relationships, do not get sucked into the trap of feeling free just because its easy to click Post. EVERYTHING you post tells something about you. EVERY post you make is potentially building your professional platform, your brand and your future!

Is it okay to talk about your family, yes! Is it okay to share photos of your pets, your vacation, your best friend’s wedding, yes! Is it okay to share a link and add a comment that has the potential to add value to your network, yes! Is it okay to have fun, yes! Is it okay to broadcast controversial positions? Only you can decide. Is it okay to post something best left unsaid? As the old Microsoft slogan goes…”what do you want to do today?”

My Unsolicited Advice?

Social media has become mainstream. People will talk. Don’t give them something to talk about. It can ruin your day or your career.

Guard your reputation as if it were your life! Hey, it is your life! And, one final note, if I see you posting to Facebook a lot, like all day long, I’m going to think–hey, you need a life.

Is your blog and/or website mobile friendly?

The New iPad release today reminded me that NOW is the time to “get your mobile on.” Most of our law firm websites and blogs were developed to be viewed on a horizontal rectangle. But a mobile device is smaller and most of all vertical. Sure, touch screen technology let’s you pinch and spread the content or rotate the vertical rectangle horizontally, but for a true mobile experience you need more. Plus, if you’re on your mobile device (i.e., smartphones, tablets, iPad, iTouch, etc.) you are probably on the move, looking for a snippet of information about this or that, and you only want the essentials.  A mobile website should give mobile users just that. Fast download, a reader friendly layout, and the critical information up front. If the user wants to access the complete website for deep content, they can still do that from a link built into most mobile designed websites.

If you use the WordPress platform for your blog or law firm website, you can simply add this nice little plugin, WPtouch, and give your mobile readers the experience they desire.

“WPtouch plugin transforms your WordPress website into an application-like theme, complete with ajax loading articles and effects when viewed from the most popular mobile web browsing devices like the iPhone, iPod touch, Android mobile devices, Palm Pre/Pixi and BlackBerry OS6 mobile devices. The admin panel allows you to customize many aspects of its appearance, and deliver a fast, user-friendly and stylish version of your site to touch mobile visitors, without modifying a single bit of code (or affecting) your regular desktop theme. The theme also includes the ability for visitors to switch between WPtouch view and your site’s regular theme.”

Don’t wait any longer! Get it free. Go to your admin dashboard, select: Plugins, Add New, Search WPtouch, Install Now, Okay, Activate Plugin, go to Settings. The default settings are mostly okay though there are few things I decided to change.

1. In General Settings/Post Listings: Image. If you don’t bother to add a thumbnail for each post you make, select from the Post Image drop down menu, no thumbnail or image. It just takes up valuable real estate.
2. In General Settings/Post Listings: Excerpts. Uncheck, Show Author Name, Categories, Tags, and Hide Excerpt. This will give your mobile viewer the post title and the excerpt, giving them a better idea of what’s behind the door. If you have a multi-author blog, you probably will want to keep Show Author.
3. In Advance Options/Default and Custom Icon Pool: Add an icon. You can upload one icon to be used for branding pages. The plugin offers many other standard icons that you can use for Podcast pages, Video, etc., but it’s pretty easy to put your logo icon in there and use it for the key pages. To do this, you’ll need to create an icon. The fastest way to do that is to use an icon generator. There are several. One simple one is at icon-generator.net. Simply select a style and upload your logo and it creates a zip file you download to your desktop. Expand the zip file. Then go to the plugin settings for WPtouch in your WP blog dashboard (under Settings, select upload, select the 512 image (best resolution) and hit upload. Make sure to SAVE your settings and then reopen settings and you’ll find that your new icon is in the list.
4. In Advanced Options/ Menu Pages and Icons. Check (or uncheck) the pages you want on your mobile site (the posts will automatically be there by default) and select the icon you want to represent the page. Select 512. Hit save and that’s it.

Then go and check out your new mobile website/blog on your smart phone or tablet.

You don’t use WordPress?

If you don’t use WordPress for your firm’s website or blog but you totally understand the value in having a mobile site, I can help. My company, Law Gravity, now offers mobile website solutions for all sizes of firms. For example, 10-15 mobile pages, an initial set up fee of $200 to make your website content mobile friendly, and a month to month fee of $115 for hosting and unlimited support, no annual contract required, will get you going. If you don’t like it, you can cancel anytime. Plus we load you up with lots of nice extras! So, for the price of a modest dinner for two each month, you can “get your mobile on!” Contact me directly to learn more. (Wait, there’s more! If your law firm isn’t inclined to go mobile just yet, but you’re serious about marketing your practice, we can set up a mobile micro-site for you featuring your profile, practice, articles, speeches, video, contact info, or more. A great marketing tool!)

Potential buyers got their first look at Facebook financials yesterday, which showed the company produced a $1 billion profit last year from $3.71 billion in revenues. The company derives 85% of those revenues from advertising, with the rest from social gaming and other fees. The initial public offering could value the social network between $75 billion and $100 billion, putting the company on track for one of the biggest U.S. stock-market debuts of all time.

Facebook’s membership growth has been staggering. The company said in its filing that it has 845 million users globally, up 39% from a year earlier.

Facebook takes pains to mention the importance of privacy, mentioning the word 35 times in the filing, and even listing its “privacy and sharing settings” as one of the ways the company creates value.

The number of ads delivered on the site grew 42% and the average price per ad grew 18% over 2011 from 2010, according to the filing.

The company attributed the improvement to a vast trove of information that allows marketers to “show their ads to a subset of our users based on demographic factors such as age, location, gender, education, work history, and specific interests that they have chosen to share with us on Facebook or by using the Like button around the web or on mobile devices.”

 (Wall Street Journal)

INVESTORS’ RISK

While all this is quite interesting data to me, there was one particular piece in the IPO filing that caught my attention:

As a matter of required disclosure, to caution investors against buying blindly, Facebook had to release a list of “risks” on the S-1 Registration Statement.

A quick review of those risks, which follows, made me think…this is a terrific exercise and one that law firms could benefit from—a REALLY HONEST assessment of their “risks.” 

SIDE BAR: A SWOT analysis completed during strategic planning—strengths, weaknesses, opportunities and threats—will likely get you to the answers, as I’m thinking threats could be substituted for “risks.” With one caveat: your list of threats cannot be unfounded nor cliché. I’ve seen many law firm SWOT reports, and I have to say that too many have made me wonder if they were just filling in the blanks or if they really knew or understood their actual market risks?

Now, if a law firm did plunge into a market risk assessment, what if instead of keeping risks hidden in the executive boardroom, what if that list was distributed among the firm’s stakeholders (not just partners but also employees whose careers are dependent upon the success of the law firm)? Couldn’t that help the firm’s best interest? After all, they are all investors at various levels and…they have ability and responsibility to protect the firm’s best interests from its risks. How can they do that if they don’t know what they are? Management? Do all your attorneys know? Is it practical to share that information with an associate who might be on his way out in another year and off to a competing law firm?

What do you think? Maybe not? Just saying…I think it would be of great benefit on several levels.

 Here is the list pulled from the Facebook SEC Form S-1 Registration Statement. Thanks to Brian Solis for pointing it out on his blog post of Feb 1, 2012.

FACEBOOK RISK FACTORS

Risks Related to Our Business and Industry

If we fail to retain existing users or add new users, or if our users decrease their level of engagement with Facebook, our revenue, financial results, and business may be significantly harmed.

The size of our user base and our users’ level of engagement are critical to our success. We had 845 million monthly active users (MAUs) as of December 31, 2011. Our financial performance has been and will continue to be significantly determined by our success in adding, retaining, and engaging active users. We anticipate that our active user growth rate will decline over time as the size of our active user base increases, and as we achieve higher market penetration rates. To the extent our active user growth rate slows, our business performance will become increasingly dependent on our ability to increase levels of user engagement in current and new markets. If people do not perceive our products to be useful, reliable, and trustworthy, we may not be able to attract or retain users or otherwise maintain or increase the frequency and duration of their engagement. A number of other social networking companies that achieved early popularity have since seen their active user bases or levels of engagement decline, in some cases precipitously. There is no guarantee that we will not experience a similar erosion of our active user base or engagement levels. A decrease in user retention, growth, or engagement could render Facebook less attractive to developers and advertisers, which may have a material and adverse impact on our revenue, business, financial condition, and results of operations. Any number of factors could potentially negatively affect user retention, growth, and engagement, including if:

1. users increasingly engage with competing products;
2. we fail to introduce new and improved products or if we introduce new products or services that are not favorably received;
3. we are unable to successfully balance our efforts to provide a compelling user experience with the decisions we make with respect to the frequency, prominence, and size of ads and other commercial content that we display;
4. we are unable to continue to develop products for mobile devices that users find engaging, that work with a variety of mobile operating systems and networks, and that achieve a high level of market acceptance;
5. there are changes in user sentiment about the quality or usefulness of our products or concerns related to privacy and sharing, safety, security, or other factors;
6. we are unable to manage and prioritize information to ensure users are presented with content that is interesting, useful, and relevant to them;
7. there are adverse changes in our products that are mandated by legislation, regulatory authorities, or litigation, including settlements or consent decrees;
8. technical or other problems prevent us from delivering our products in a rapid and reliable manner or otherwise affect the user experience;
9. we adopt policies or procedures related to areas such as sharing or user data that are perceived negatively by our users or the general public;
10. we fail to provide adequate customer service to users, developers, or advertisers;
11. we, our Platform developers, or other companies in our industry are the subject of adverse media reports or other negative publicity; or
12. our current or future products, such as the Facebook Platform, reduce user activity on Facebook by making it easier for our users to interact and share on third-party websites.

______________________________________________________________

As a bonus, here’s the open letter from Mark Zuckerberg, CEO, included in the S-1 filing. The Facebook mission statement:

LETTER FROM MARK ZUCKERBERG

Facebook was not originally created to be a company. It was built to accomplish a social mission — to make the world more open and connected.

We think it’s important that everyone who invests in Facebook understands what this mission means to us, how we make decisions and why we do the things we do. I will try to outline our approach in this letter.

At Facebook, we’re inspired by technologies that have revolutionized how people spread and consume information. We often talk about inventions like the printing press and the television — by simply making communication more efficient, they led to a complete transformation of many important parts of society. They gave more people a voice. They encouraged progress. They changed the way society was organized. They brought us closer together.

Today, our society has reached another tipping point. We live at a moment when the majority of people in the world have access to the internet or mobile phones — the raw tools necessary to start sharing what they’re thinking, feeling and doing with whomever they want. Facebook aspires to build the services that give people the power to share and help them once again transform many of our core institutions and industries.

There is a huge need and a huge opportunity to get everyone in the world connected, to give everyone a voice and to help transform society for the future. The scale of the technology and infrastructure that must be built is unprecedented, and we believe this is the most important problem we can focus on.

We hope to strengthen how people relate to each other.

Even if our mission sounds big, it starts small — with the relationship between two people.

Personal relationships are the fundamental unit of our society. Relationships are how we discover new ideas, understand our world and ultimately derive long-term happiness

At Facebook, we build tools to help people connect with the people they want and share what they want, and by doing this we are extending people’s capacity to build and maintain relationships.

People sharing more — even if just with their close friends or families — creates a more open culture and leads to a better understanding of the lives and perspectives of others. We believe that this creates a greater number of stronger relationships between people, and that it helps people get exposed to a greater number of diverse perspectives.

By helping people form these connections, we hope to rewire the way people spread and consume information. We think the world’s information infrastructure should resemble the social graph — a network built from the bottom up or peer-to-peer, rather than the monolithic, top-down structure that has existed to date. We also believe that giving people control over what they share is a fundamental principle of this rewiring.

We have already helped more than 800 million people map out more than 100 billion connections so far, and our goal is to help this rewiring accelerate.

We hope to improve how people connect to businesses and the economy.

We think a more open and connected world will help create a stronger economy with more authentic businesses that build better products and services.

As people share more, they have access to more opinions from the people they trust about the products and services they use. This makes it easier to discover the best products and improve the quality and efficiency of their lives.