After practicing for almost thirty years, I have read a lot of briefs and seen many different writing styles. It still amazes me, however, that many lawyers ignore a fundamental tenet of persuasive writing- telling the reader their position in the opening paragraph. Instead, the rationale is not revealed until several pages into the pleading. Choose your words wisely. Drop the archaic language (e.g., COMES NOW) and get to the point. Your reader will thank you.
Author: Scott R. Bialecki
Scott Bialecki, a former FTC attorney and IP litigator, is the co-Chair of Sheridan Ross P.C.'s Litigation Group.
WHAT I WISH I KNEW AS AN ASSOCIATE
I have worked at both small and large firms. All offered associate training programs. Some were better than others. However, rarely did any program focus on the nuts and bolts of our practice. In the next few weeks, I’ll provide some helpful tips. Today, I’ll discuss five marketing tips for associates:
- Join a Board. It’s a great way to meet people. However, check with your general counsel to make sure that you are minimizing your individual liability and are free of conflicts. Beware of the Board trying to use you as a lawyer as you are not representing the Board. And it’s best if it’s not the Board of a client so that no one is confused about your role.
- Don’t treat your LinkedIn account like Facebook. LinkedIn is a great way to keep your network informed about various topics and important events. Be selective about whom you let join your network and don’t let anyone join your network unless you know them.
- Visit your clients for free. Visiting your clients in person is one of the best ways to effectively represent them. You often learn things that wouldn’t necessarily surface on a telephone call. By not charging for the visit, your client will appreciate your commitment to and investment in their business.
- Always network. Every month, make an effort to meet with someone whether for lunch or breakfast, or if not possible, via phone. Young associates can connect with former law school classmates, who will serve as future referral sources.
- Be different. You only have a limited amount of time after trying to make hours and have a life. Use your time wisely. Join a group of interest that doesn’t have lawyers or if it’s lawyer-related, try to find groups that don’t have a lot of lawyers with your specialty. So, if you are an IP lawyer, go to a business-focused CLE as corporate lawyers are often some of the best referral sources.
READ THE GUIDES AND THEN CONSULT YOUR COUNSEL
Every few years, the FTC puts out helpful guides in order to provide insight into various issues for consumers and businesses. Last December, the FTC released its Health Products Compliance Guidance pertaining to advertising interpretation, substantiation and enforcement issues. The provided examples are particularly instructive.
One example (Example 12) deals with the advertising of nasal strips that will reduce the sound of snoring. Even though the advertiser had “competent and reliable” evidence supporting this claim, the FTC took the position that a prominent disclosure should have been made, indicating that the product does not treat for sleep apnea for which snoring is a primary symptom.
I suspect that most businesses would not have considered the requisite sleep apnea disclosure. As such, it is always helpful to review the Guides and then consult your counsel.
One example (Example 12) deals with the advertising of nasal strips that will reduce the sound of snoring. Even though the advertiser had “competent and reliable” evidence supporting this claim, the FTC took the position that a prominent disclosure should have been made, indicating that the product does not treat for sleep apnea for which snoring is a primary symptom.
I suspect that most businesses would not have considered the requisite sleep apnea disclosure. As such, it is always helpful to review the Guides and then consult your counsel.
IF IT LOOKS TO GOOD TO BE TRUE, IT PROBABLY IS.
It usually happens when you are in need of work. You open your e-mail and find an inquiry from someone looking to hire you. In fact, they are even willing to give you a retainer. So, you click on the e-mail only to fall prey to a phishing scam.
I must admit that I have not been paying attention and opened a few of these types of emails on my phone. Fortunately, nothing terrible has happened as most are not designed to work in an Apple OS environment.
In any event, here’s the fastest way to tell. Look at the sender’s true email address. While often spoofing someone sounding credible, the actual email address will quickly reveal the fraud. So, the next time you are contacted out the blue, hover over the email address before taking any action.
I must admit that I have not been paying attention and opened a few of these types of emails on my phone. Fortunately, nothing terrible has happened as most are not designed to work in an Apple OS environment.
In any event, here’s the fastest way to tell. Look at the sender’s true email address. While often spoofing someone sounding credible, the actual email address will quickly reveal the fraud. So, the next time you are contacted out the blue, hover over the email address before taking any action.
NEED MORE THAN CC’ING YOUR LAWYER
It’s inevitable. Companies need to discuss legal issues. But how can employees do so while maintaining privilege? A California U.S. District Court recently took the position that merely CC’ing a company’s counsel on an email is not enough to maintain privilege. There must be evidence of an intent to obtain legal advice.
Here’s the practice pointer. If your employees are discussing a legal matter at the request of counsel, say so in the email. Something like, “per our lawyers’ request, we are contacting you” should give the company a fighting chance at maintaining privilege.
The California matter is a reminder that routine business communications cannot be shielded by privilege.
Here’s the practice pointer. If your employees are discussing a legal matter at the request of counsel, say so in the email. Something like, “per our lawyers’ request, we are contacting you” should give the company a fighting chance at maintaining privilege.
The California matter is a reminder that routine business communications cannot be shielded by privilege.
SUPREME COURT MAKES FTC’S JOB MORE DIFFICULT
For years, pursuant to Section 13(b) of the FTC Act, the FTC has been able to pursue violators in court for permanent injunctive relief as well as restitution or disgorgement. However, a question arose as to whether Section 13(b) actually allows a federal Court to award equitable monetary relief of this nature.
Yesterday, the Supreme Court answered the question in the case of AMG Capital Management, LLC v. FTC. The FTC may not seek restitution or disgorgement under Section 13(b) of the FTC Act.
While the FTC may still seek monetary relief after it has engaged in administrative proceedings and issued cease and desist orders, this ruling is a significant blow to its enforcement powers. Administrative proceedings typically take longer and are more cumbersome. Restitution and disgorgement under Section 13(b) were effective tools that I used at the FTC to address consumer fraud.
It will be interesting to see how this ruling affects the FTC’s approach as to future consumer protection matters.
COVID-19 CONSUMER PROTECTION ACT CLAIMS FIRST CULPRIT
Sometimes, companies decide to “test” the market with their advertising before having adequate substantiation. If they are first-time offenders, the mistaken belief is that the FTC will not do much to them if they are caught for violating Section 5 of the FTC Act. They think that the FTC will merely require them to take the product off of the market.
Enter the COVID-19 Consumer Protection Act (“Act”), which was enacted in late December 2020 for the duration of the COVID-19 public health emergency. This Act allows the FTC to seek civil penalties against first-time offenders that violate Section 5 of the FTC Act by engaging in deceptive acts or practices “associated with the treatment, cure, prevention, mitigation, or diagnosis of COVID-19.” Indeed, the FTC brought its first case just last week against a company for marketing Vitamin D and Zinc products that were allegedly as, or more, effective than currently available vaccines.
Per the Act, the FTC can seek a maximum civil penalty of $43,280 per violation. However, it is unclear how this penalty will be applied.
The lesson is that companies marketing products in the COVID-19 space need to be weary of the significant civil penalties associated with this Act. First-time offenders of Section 5 of the FTC Act are no longer insulated from civil penalties while this COVID-19 law is operative.
DON’T FORGET ABOUT THE WEBSITE
Sometimes, companies spend significant resources trying to develop a particular theme for an advertising campaign while ignoring even more egregious claims being made on their website. So how does this happen? There is a disconnect between Legal and Marketing.
Legal might approve a particular ad and then Marketing decides that it can use a portion of it in another context because it has been “cleared.” The problem is that ads are vetted based on the “net impression” that is made on consumers. As such, taking a claim out of the context of the particular ad can cause an issue.
Often, companies list customer testimonials on their website, which contain atypical performance-related claims. They think that since they are truthful, there isn’t any sort of liability, which is untrue. Indeed, the performance claims (e.g., saved $1000) may be even more aggressive than the claims being vetted for use in the primary ad campaign.
Disclaimers are another area of concern. While certain disclaimers may have been approved for use in print advertising, they may not be effective when presented online because consumers can’t see them.
Simply stated, one size does not fit all when it comes to advertising. As such, companies should take a holistic approach to ensure that claims are being properly presented in all respective media.
NO NEWS IS STILL WORTHY OF AN UPDATE
Lawyers like to have many clients. However, dealing with so many different problems, lawyers sometimes fail to realize the impact that an issue has on a particular client.
It is like going to the doctor and awaiting test results. You want your doctor to be as concerned about receiving your results as you are. If it is a Friday afternoon, you want your doctor to call you and let you know that s/he is on top of the issue even if there is nothing new to report before you head into the weekend.
It is the same with the law. Clients want to know that you are on top of their issue even when there is new nothing to report. Providing periodic updates will assure clients that you have not forgotten about their issue and will help to ease their anxiety. And while it is up to you, you might want to provide these non-material updates on a non-billable basis. The goal is to maintain a long-term relationship, not to nickel and dime clients. So, remember that sometimes “no news” is still worthy of an update. Your clients will thank you.
It is like going to the doctor and awaiting test results. You want your doctor to be as concerned about receiving your results as you are. If it is a Friday afternoon, you want your doctor to call you and let you know that s/he is on top of the issue even if there is nothing new to report before you head into the weekend.
It is the same with the law. Clients want to know that you are on top of their issue even when there is new nothing to report. Providing periodic updates will assure clients that you have not forgotten about their issue and will help to ease their anxiety. And while it is up to you, you might want to provide these non-material updates on a non-billable basis. The goal is to maintain a long-term relationship, not to nickel and dime clients. So, remember that sometimes “no news” is still worthy of an update. Your clients will thank you.
WHAT LAW SCHOOLS DON’T TEACH YOU
I was the first person in my family to become a lawyer so everything was new to me. While law school taught me how to write a brief, it failed to prepare me for law firm life.
In the past 25 years, I’ve made a lot of mistakes. However, as a result of these mistakes, I’ve developed a laundry list of lessons, which I will share in the upcoming weeks. Hopefully, they will help you as you navigate your law career. There are a lot of great lawyers out there competing for work. There are few trusted advisors.
In the past 25 years, I’ve made a lot of mistakes. However, as a result of these mistakes, I’ve developed a laundry list of lessons, which I will share in the upcoming weeks. Hopefully, they will help you as you navigate your law career. There are a lot of great lawyers out there competing for work. There are few trusted advisors.