Media strategy and the tips and tactics of developing female organizational power were the big topics of the morning at this year's DRI Sharing Success seminar in sunny Scottsdale at the Westin Kierland Resort.  The morning started off with TV and radio personality, Mary Katherine Ham.  She regularly defends her political opinions on her morning radio program, The Morning Majority, and against Bill O'Reilly on The O'Reilly Factor.  Her presentation focused on finding our voice and crafting our message and defense in the media - be it in the press, on tv, or on the Internet at large through social media.  Enlightening and refreshing and a great start to the morning. 

Linda Bray Chanow from the Center for Women in the Law spoke next and offered a very interactive discussion on the perceptions of female power in business and law. Simply by starting with a classic scenario we've all seen in our professional careers,  attendees peppered Ms. Chanow with questions and comments. Overall an incredibly collaborative and insightful presentation that will surely lead to continued discussions amongst all the attendees during the rest of the seminar.  Definitely excited to see what the rest of day has to offer.  

The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

Do you feel at a loss or intimidated or repulsed by the thought of using social media? Like it or not, social media sites are a new means of communication, which we cannot ignore any more than we can ignore email. The fact is social media, if used properly, can be an effective, professional, and personal tool. If you are not using these sites currently, take a few minutes to see why you should be using social media and what you can do efficiently and effectively to save time, learn more and even advance your career. 

A 2011 Midlevel Associates Survey conducted by The American Lawyer demonstrates that although the salary gap between minority and majority associates is closing, persistent differences continue to exist.  Hispanic associates reported the highest increase in their salary from 2008 to 2011, while Asian associates reported the highest salary and billing rates as compared to both their minority and majority counterparts, despite a decrease in their average salary.  Nonetheless, minority associates continue to rate job satisfaction categories lower than their majority counterparts. 

The survey also demonstrates that firms are making an effort to retain their minority associates.  Black and Hispanic associates were the most likely to report that they had mentors – 86.5 % and 83.1%, respectively.  Notwithstanding, all minorities thought that they had a lower chance of making partner than white associates.  Only 60% of Blacks, 63.7% of Asians and 68.4% of Hispanics thought that they were headed toward promotion.  How effective are these mentoring relationships when minority associates do not believe that they will reach the upper echelons of their firms?  What is the missing link between mentoring and retention/advancement of minority associates?  Has your firm employed innovative efforts to address the issue of advancement of minority attorneys?

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1322459168295&Survey_of_Minority_Associates_Shows_Persistent_Differences&cmp=tsm-cc-CCDDSurvey              

Assume everything you write or e-mail an expert will be discoverable.  Even if you can somehow keep it from being discovered, you will probably spend your time and the client’s money to keep it confidential.  With that in mind, before you send anything to an expert ask yourself whether you would have a problem with the other side seeing it.  If so, think long and hard before sending it.  Also, folks have become too casual in what they include in e-mails, and I’ve found this true with experts, particularly their staff.  So try to avoid e-mailing experts and their offices whenever possible, sticking to phone calls and faxes when possible.  And ask them not to e-mail you.  Yes, it is less convenient, but it will help ensure that the experts don’t make errant comments that become part of their permanent file (which at some point will likely have to be produced to the other side).

In the movie, Super 8, JJ Abrams and Steven Spielberg do a great job in showing us, not simply telling us.  The opening scene is a mill worker removing the numbers 784 from a sign which reads “784 days since our last accident” and replacing it with the number “1.”  The audience knows an accident has occurred, likely a tragic one (since it is hard to believe that no one has suffered any scrapes or bruises or pulled muscles throughout the entire plant for over 2 years). ”Something happened,” you’re thinking to yourself, “and it was bad.”  The movie then cuts to a scene in a boy dressed in his Sunday’s best, sitting in the swing in his yard, ankle-deep in snow.  And then you’re like, “poor kid.  He lost someone.”  The makers of the film could have started with a narrative – “hey audience, there’s been a bad accident at the mill and it affects this boy.”   Yawn.  Instead, they show us, they don’t tell us.  And by showing us, their message is so much more effective.

When trying to persuade others, whether in a motion, at a hearing or at trial, try to paint pictures with your words.  Create images to show your audience your point. Don’t be satisfied by simply telling them.  Show them.  You could tell the jury that a witness was not at a good vantage point to see the accident.  Or you can create an image of how little he could see what was going on, showing the jury that he couldn’t have possibly seen what happened.  Think about how and when you can show more, versus simply telling, to make your advocacy more compelling, more dynamic and make yourself more of a storyteller.  

I’m working through a fascinating tome on the birth and history of ESPN, Those Guys Have All the Fun – Inside the World of ESPN.  Besides giving us an inside look at ESPN, which started from nowhere and was broadcasting from what some would say nowhere (no offense to Bristol, Connecticut, which I’m sure is a lovely town), the book provides us a sense of what goes into turning a great idea into reality.  The first lesson I took from the book is that a great idea is not enough. 

In 1978, Bill Rasmussen had a dream for an all sports channel, and with $9,000 he put on his credit card and some money he squeezed from family members, he sought out investors.  Eventually he landed a huge one and ESPN was on its way.  Unfortunately, his big idea was not enough.  All the hours he and his family poured into the venture was not enough.  Even the money wasn’t enough. What he lacked was a coherent, detailed long-term plan that projected how ESPN would succeed.  Others would come work for the company. Those who had a plan.  Ones who could see Bill’s vision, who understood you needed more than just a vision and who created a plan to implement it.  And along the way, Bill lost control, became what some would say ”irrelevant” and was eventually bought out.  His idea wasn’t his anymore.  His dreams had become someone else’s.  And that was it.  A brilliant man was pushed out.  Unfortunately for Bill he was missing the plan - details big and small – and eventually he got in the way of his dream.  ESPN appeared to have outgrown him.

Whether it is planning for a case, leading an organization or figuring out your life, yes, you need the big ideas.  Without Bill, there may never have been an ESPN.  And yes, you need the hard work.  And sometimes, you’ll need capital too.  But those ingredients don’t work unless you know where you’re going and have figured out how best to get there.  That means both big picture and little picture. That means understanding and knowing the “business” of whatever you are doing.  Figuring it out as you go along isn’t good enough.  See where it got Bill. 

On August 4, 2001, the American Bar Association's standing committee on ethics and professional responsibility issued formal opinion 11-461 entitled, "Advising Clients Regarding Direct Contacts with Represented Persons."  As a general rule under ABA model rule 4.2, a lawyer cannot communicate with a person that a lawyer knows is represented by counsel without the opposing counsel's consent to the communication.  This rule extends to the use of an intermediary as an agent to communicate with the represented person.  However, it is also sometimes useful for litigants or parties to a transaction to be able to communicate with each other even though they have their own counsel.  In such instances, the parties maintain the right to communicate directly.  Sometimes these communications may require a lawyer's assistance.

Advising your clients on this point is considered proper.  The primary question addressed in the newly issued opinion is whether a lawyer can advise and assist a client in communicating directly with a represented party without violating Rule 4.2.  The ABA Committee felt that there was tension regarding the lawyer's ability to assist the client and effectuating direct client to client contact. 

The ABA Committee had previously stated in formal opinion 92-362 that a lawyer can ethically advise a client to communicate directly with a represented adversary to determine if the adverse party's lawyer had informed them of a settlement offer.   In the new opinion, the committee states directly that "the decision to communicate directly with a representative person may be the client's idea or the lawyer's.  Some decisions and opinions suggest the counsel may be violating the rules prohibiting communication with a representative party by encouraging or failing to discourage a client speaking directly to the other party."  A concern remained under existing rules that a lawyer might run afoul of Rule 4.2 by "scripting" or "masterminding" a client's communication with a represented person.   The Committee stated that "what constitutes 'scripting' or 'masterminding' the communication is not clear, but such a standard, if too stringently applied, would unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client."  The Committee concluded that without violating Rules 4.2 or 8.4, a lawyer can give assistance to a client regarding substantive communications with a represented party that could include what subjects are to be addressed regardless of whether the lawyer or the client proposes that the communication take place.  The lawyer may review, redraft and approve a letter or an outline for a conversation that the client wishes to use in the communications with the adversary.  The client may also request that the lawyer draft the basic terms and an agreement that he or she wishes to discuss with an adversary.   Nonetheless, some examples of overreaching do remain. 

The committee references several of them in its opinion stating that they include "assisting the client and securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.  To prevent such overreaching, a lawyer must, at a minimum advise her client to encourage the other party to consult with counsel before entering into allegations, making admissions or disclosing confidential information.  If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement."