Articles Posted in Communications

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This week there has been lots of press on the Apple Samsung case, particularly in the Bay Area. The discussion is not limited to SV insiders, because the case deals with issues many of us have confronted in our professional lives: how to deal with a company or person taking ideas without paying for them or attributing them to their rightful owner. As the jury deliberates, they will struggle with complex questions simply put: who took what from whom, or at all.

As lawyers, we are supposed to be really good at making sure we follow the law — we do not take another entity’s intellectual property or copyrights. Having worked for many years and still consulting for a major information technology and publishing entity that owns a great deal of intellectual property, I understand the lines we must draw to protect our businesses, technologies and protected ideas, including patents and marked services or products. Working for two decades in the entertainment world, I have also vigilantly protected the IP rights of major production companies that allow our products to be featured on their productions.

I have experienced this sense of loss when something we create is picked up without attribution or payment or permission. A number of years ago, work I was involved with was “infringed” by one very large lawyer-related organization. This entity used both a name and trade dress that was very similar to something my team and I had created. When I showed this to my ceo he said “take it as a compliment, its flattering.” I wanted to send a cease and desist. He said no. Later the issue came full circle when I tried to hire a freelance writer who also wrote for the “infringing” entity. The writer apologetically declined because as he said “the management [of the other organization] doesn’t want me to write for you because it might be confusing since our publication names are so similar.” Exactly. But so wrong.

Now, as any of you IP lawyers know that is a sweet admission: the recognition that the names were so similar as to be confusing was good evidence for infringement. We all know that confusion in the marketplace is a critical factor in infringement. Although perhaps not evidence of actual confusion, this admission by management at the lawyer organization was enough for me to go back to my ceo suggesting a cease and desist letter. He said no again. I was frustrated, because I thought wrong is wrong and should be righted. But my ceo did not want to engage in this fight, it wasn’t our core business that was being trampled and it did not represent revenue, but it did represent significant marketing dollars. At the time, I was not able to say something or do what I thought was right … at least let them know we were aware of what they were doing.

But now I am saying something. Because as we see the apparent demise of business ethics, it is these “small” infringements that ultimately become big challenges to revenue. Remember what mom taught: sharing is fine, but taking is not fine.

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Recent interesting reading in the Harvard Business Review supports the sound advice — choose your words carefully — if you can. Say what?

In computer-assisted research over the past couple of decades, Professor James Pennebacker, author of the The Secret Life of Pronouns, What Our Words Say About Us, has determined that words like pronouns say big things about a person’s stability and honesty, among other things. In fact, his research reveals that these words actually say more than “content words.” That means words we usually throw around to connect what we are trying to express — such as pronouns and prepositions really say a great deal about us.

Professor Pennebacker explains his research quite powerfully. He says “function” words are more socially bound than other content words. And he says that we really cannot control the way we use these words, they just happen and are difficult to track without the use of computer analytics.

One example given is a simple sentence with lots of pronouns. ” ‘I don’t think I buy it’ ” reveals a focus on self, but ” ‘That’s ridiculous’ ” doesn’t. The Professor also explains what happens when a person lies. Perhaps these words are a way to couch their real feelings? So that use of the word “we” is used more often than “I.” And when we are being more honest, we use words such as “but” and “without.”

The Professor also notes that in researching the use of words, he did not anticipate this result. He says ” ‘In study after study, we kept finding the same thing … it was the pronouns, articles, conjunctions, and other function words that made a difference, not the content words.’ ”

Not only does the research reveal that our brains react differently to function words, but they are more tied to emotional state and other revealing factors such as social standing and personality. These subtleties are not easy to discern without applying computer analysis to language. Who knew that we reveal so much in the little connectors “we” used to think weren’t so important.

Choosing pronouns carefully, “I” commend the HBR piece as good, interesting and unexpected reading.

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I am intrigued by Josh Erlich’s recent piece in the HBR Blog Network, For Great Leadership, Clear Your Head. It is well worth considering his rationale for what he calls “mindshifting” — in which he persuasively advocates that in order for senior executives to best do their jobs, thinking time is key.

WIthout having done a scientific study, I would bet that many good ideas are formulated when we put down the devices. Why? Because at times our minds need a break from the onslaught of incoming information to get to the big ideas.

“Mindshifting” is purposeful reflection that has a methodology and includes, among others, some common sense steps that most executives, managers and busy professionals in leadership positions likely do not think is value-time. And replicating that reflective time is essential for the first step for the successful mind shift … which is key, Erlich says, for strategy to percolate.

Erlich suggests we must first “[r]emove the obstacles” which will mean different things to different people. In one case, that meant he says creating a strong enough team so that leadership can delegate and free-up time to work on the “big picture.” Another step in this process is to “[q]uiet the noise” and create time to breathe and practice “mindfulness” which is akin to a meditative state in which greater focus is achieved.

Other specific ways to reach a state of mind in which the big ideas and strategy will develop are to: “[p]ercolate” which requires effective reflection using valued networks such as mentors and peers to cross-check what appear to be your good ideas; “[c]larify your message” which should be at the top of leaderships’ list of communications must-do’s; and “[k]eep reflecting and adjusting” which is similar to a rebalancing system in your investment portfolio, to ensure the strategy you have set for your business is working and when it isn’t, be strong enough and honest enough to alter your course.

WIthout leadership at the top of any organization that is clearly working through and communicating objectives, it is much more difficult to ensure that strategies will be implemented correctly and will be successful. In my opinion, what Mr. Erlich is advocating for leadership is business-critical and applies to professional services, as well as other organizations. Put the Blackberry down and go to the reflecting pool, you might just come back with your best strategic plan ever.

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Networks have a mind of their own. When they work as they should, they can enhance our business lives in very big ways. But they can also pull focus and time away from other important business development efforts.

Networks are not created overnight and then need attention. Left neglected, they can languish and fall away.

Recently, I came across a fine piece in the Harvard Business Review about people with really successful networks and why and how they work. In their piece Managing Yourself: A Smarter Way to Network, the authors describe the key attributes of really good networks and the people who use them wisely and well.

Good networks don’t have to be big, but they do need to be effective. They need to include key participants that not only actually DO something when asked, but also provide ideas and support.

I have long been a believer that being generous in your own network, is the only way one can expect generosity back. “Reciprocal relationships also tend to be more fruitful; the most successful leaders always look for ways to give more to their contacts,” say the authors of Managing Yourself. And this point is noted over and over again.

One of the most effective executives interviewed for the piece described her business success managing a major tech company’s business unit this way: ” ‘People may chalk it up to luck, but I think more often than not luck happens through networks where people give first and are authentic in all they do.’ ”

If you are not thinking about “giving” and “generosity” in your own network when asked, and if you are not reciprocating without hesitation, it is urgently important that you study the HBR piece for the data that will alter your approach and help you develop a better, more effective network. And, if you are a giver and find that some in your network are not, remove them from your network. But whatever you do, when someone in your networks seeks your support and has given theirs, withhold at your own peril.

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Full disclosure: I am the sort of person who gets off the plane in DC and heads directly to the National Archives before doing anything else. I wholeheartedly admit that I am a fan of seeing these documents up close and personal and have been asked by security to “move along” as I stand mesmerized by their enormity.

Apparently, not many young Americans would likely beg their parents to head to the Archives. But they probably all should go there before stopping elsewhere in our beautiful capital city.

This year, the ABA is focusing its educational effort on civics education for young Americans. The ABA has noted that many of us are not as well-versed as we should be in the documents that are at the core of our Democracy.

On a recent trip to Philadelphia, I stopped by the National Constitution Center. I walked through the Balance of Powers section and much to my amazement there was a student sitting poised on a board, a real live person that is, to demonstrate the balance of powers and to tell visitors what it means. The student was reluctant to spend time explaining this to me once I revealed my profession. “You already know about this,” she said, “I am supposed to explain this to kids who don’t know about what this means.” I was thrilled to see the display and the student volunteer and happy to move on, just like in the Archives, sort of.

Several years ago, former ABA president Mike Greco asked members to wear gavels on our lapels and explain the Separation of Powers to anyone who asked. An intelligent 30-something friend of mine did ask and when I responded “the gavel stands for Separation of Powers — would you like to talk about this?” She responded graciously, “No, I am not interested in politics.” When young intelligent Americans of voting age believe that Separation of Powers is a political issue, you know we are in trouble.

It takes time to become an expert on the Constitution, but being an American doesn’t require that much expertise. Basic knowledge is better than none. And although I applaud the efforts of those who mention the Constitution for their own purposes, one wonders whether they have actually read it. (You all might recall recently when one Senate candidate who disclaimed being a witch, also claimed she was a constitutional expert because she went to a graduate school program for a week. Need I say more?)

Go to Twitter, tell your kids, tell your friends’ kids, share your knowledge. Blog about it on your marketing blogs just once — it won’t be a problem for your SEO I promise.

If you have a chance to educate just one person about American Democracy, please do. It’s the only way we have a prayer of keeping it viable for the long term.

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Last week, McElhaney on Litigation posted a piece in the ABA Journal about effective trial lawyers and their ability to tell a story. He makes the point that “lawyers who want to become effective communicators must understand that stories are at the heart of how people think, learn, exchange ideas and struggle to understand the world around them.”

Professional Stories Are Compelling, Facts are Just That

I totally agree with this premise and want to extrapolate out to the importance of storytelling in effective marketing communications for both lawyers and law firms.

In my opinion, many law firms and lawyers do not tell a clear, refined and compelling story about themselves or their law practice in their communications, particularly on the web. Just take a quick run through law firm websites and you will probably find this to be the case. Most law firm sites inform visitors with somewhat dry and factual copy about the specific areas of practice and personnel.

But in my view, very few tell a great story. This includes not only some context or history of the practice, but getting to the heart of who you are as a law firm and what makes your lawyers unique. One exception is the Kilpatrick Townsend site, which leads on its home page with case stories. The cases and attorneys involved are highlighted with photography, great short headlines, as well as graphics that grab interest. This draws the viewer into the story and connects it back into the firm’s strengths.

McElhaney makes the fine point that good stories are about interrelationships, rather than “snapshots of isolated events.” I agree and contend that those interrelationships include people, events and a combination of the two in the context of professional marketing and positioning.

Consider this point and go back to your own site and ask yourself whether there is a compelling clear story that is integrated into the higher purpose and values of your brand. You might find its time for a rewrite.

Every Picture …

Dry, expected copy is not compelling and the same is true of photography. Most law firms do not portray their lawyers or law firm with interesting photos. I have two words to solve this problem: custom photography. And two more that are critical for compelling head shots: natural light.

I cannot emphasize enough the importance of integrating custom photographs that tell a story into your law firm website. I have advised many clients to do this and have storyboarded and directed photo shoots and sessions for law firms and lawyers when I have redone their sites.

Custom photography carries great impact in storytelling. Stock photos are more difficult to integrate into a compelling story. Finally, taking bio headshots in natural light with a feeling that does not come across as posed, is very compelling if done well.

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Avoid the overwhelming and daunting task of establishing a business or professional social media presence with this excellent post by a seasoned marketer. This is a reasoned list of considerations that will help anyone trying to work through a social media strategy.

This valuable advice applies to many other communications efforts and is particularly helpful for marketing and communications professionals trying to make social media work for our clients, firms and businesses.

Briefly summarized, these five important recommendations include that social media users should: set goals, have realistic expectations about results, take on one social media site at a time, be consistent about attending to profiles, and schedule social media activity as a regular part of the work day.

Great advice.

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When the DOJ recently subpoenaed Twitter for access to the accounts related to Mr. Assange, as well as other individuals involved with WikiLeaks, we were all reminded that there are evidentiary components to our social media posts.

It wasn’t that long ago that we were frantically disseminating usage policies to employees, law firm personnel and clients on the perils of the electronic age, including the new fangled electronic discovery. Once you have seen captured emails in major litigations and investigations, you ask yourself: Did these executives fail to realize that these emails exist in perpetuity?

We have migrated from what only recently was “web 2.0” to a sophisticated social media world that has quickly matured far beyond our expectations perhaps.

Twitter has a policy of notifying users that information has been requested by the government, but that is generally not possible since most government requests also preclude this step. As noted by Mashable, Twitter’s spokesperson explained that “to help users protect their rights, it’s our policy to notify users about law enforcement and governmental requests for their information, unless we are prevented by law from doing so.”

In the WikiLeaks matter Twitter was permitted by the court to avoid the gag order usually in place and to notify users of the request. Mashable’s opinion is that “Twitter’s challenge to notify users when their information is being sought by a government entity is a step in the right direction in protecting users who may be exchanging sensitive information in the name of journalism.”

Although most of us are not posting tweets that are of interest to governmental agencies, it is a good reminder that social media is now a mature channel of communication and that tweeting too is serious business.

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The time has come to admit to ourselves the significance of social media and the fact that it is not going to get less important. There is a place for social media in the legal profession and lots of us know we just need to accept it and dig in.

Recently I asked a very bright young adult (24) with a social media job a at a tech giant, why she values sites like Twitter and Facebook. She said she “loves it” because it allows her to have, what I would call various “communities of interest” in all areas of her interests such as news, work and entertainment. But more than this, it allows her to see what matters to the people in her network — and to use that as a way to know more about things she might never otherwise see or learn.

I finally got it. Social media replicates and enhances interactions within communities that are multi-dimensional. Rather than getting a link to an interesting article and seeing that in one dimension, social media allows us to see who else cares about an issue and even better, enhances our community depth and breadth. For example, not only does one of my formidable FB “friends” have a journalistic background in tech and science, he presents his research “finds” to our FB community and we enhance that by our knowledge base. In other words: we learn about cool stuff we never knew about before.

So what’s wrong with that? Nothing.

As professionals we need to dispel the sense that social media is lite on substance. It doesn’t have to be. Big things can be communicated through this vehicle. It’s all about content and value and that will never change.

If we are not out there communicating in this spinning world of social media, we might be left out of opportunities to create communities of interest that are real and dynamic.

Many lawyers are now beginning to see the inevitable — get in or get shut out of potential to reach broader audiences and in turn, to learn and broaden our own world and knowledge base.

Caveat: My young tech friend and I agreed that those who post only self-serving content are not interesting in the long run. Content is key. So say something of value and others will value your involvement in their community of interest.

Today, mashable business has posted a whopping list of its own resources for businesses and marketing. So, spend some time checking out the past year’s guides for business and marketing as stated by one of the biggies in the social media world. In their words. ‘this roundup can get you well on your way to establishing a successful business or marketing campaign.”

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It’s getting complicated. The reports that MBA programs are adding courses on digital media to ensure that their grads have the requisite knowledge base to add immediate value when they join management. Naturally, those of us who are not digital natives might well need some support in the details of social media know-how.

This of course prompts the discussion on legal issues raised in the use of digital media by businesses both internally and externally. In the piece, David Kaufman, a partner at Duane Morris cautions that ” ‘ [c]ompliance with the rules is complicated, and mistakes are easy, and plentiful.”

Kaufman has published the “Top Ten Rules to Avoid Legal Trouble in Social Media Programs and Campaigns” and they are absolutely worth a close look. He addresses everything from content to internal management of social media policy. I highly recommend a full read of his version of the ten commandments.