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2017 Survey Results: Lawyers’ Use of Social Media for Marketing
Joan Feldman Sabotaging Your Practice? Just Stop It!
The Bright Line Between Marketing and Sales
What Should Your Law Firm be Doing with PPC and SEM?
Attorney of the Month
Omar A. Siddiqui
of Ulwelling | Siddiqui LLP, Costa Mesa THE PROBLEM SOLVER
Using Evernote in Your Law Practice: Five Ways to Start
Heidi Alexander Controlling Witnesses on Direct and Cross
Ben Rubinowitz & Evan Torgan
Harness the Power of Media Publicity to Build Your Image As an Authority, Attract New Clients and Increase Referrals
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TABLE OF CONTENTS 6 2017 Survey Results: Lawyers’ Use of Social Media for Marketing
by Joan Feldman
8 Harness the Power of Media Publicity to Build Your Image as an Authority, Attract New Clients and Increase Referrals by Trey Ryder EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden
10 Sabotaging Your Practice? Just Stop It! by Ruth Carter
by Jennifer Hadley
WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournal.us
by Heidi Alexander
24 What Should Your Law Firm be Doing with PPC And SEM?
by Paul Julius
26 The Bright Line Between Marketing and Sales
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ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
22 Using Evernote in Your Law Practice: Five Ways To Start
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16 Omar A. Siddiqui of Ulwelling | Siddiqui LLP, Costa Mesa The Problem Solver
by Mike O’Horo
28 Controlling Witnesses on Direct and Cross
by Ben Rubinowitz & Evan Torgan
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Survey Results: Lawyers’ Use of Social Media for Marketing
by Joan Feldman
acebook continues to gain fans in the profession, according to Attorney at Work’s 2017 Social Media Marketing Survey, conducted in February. This is the third year we’ve asked lawyers about their social media habits, preferences and attitudes, and 302 responded to this year’s survey. How are lawyers using social media in their marketing efforts? Here is what we learned.
WHAT’S THE SOCIAL MEDIA STORY FOR LAWYERS THIS YEAR? Nearly everybody is now using social media: 96 percent of responding lawyers say they do. What’s more, 70 percent of this year’s respondents say it’s actually part of their overall marketing strategy (compare that with 60 percent just two years ago).
Which sites are regularly used? Facebook is getting more love than ever—80 percent of lawyers responding say they use it regularly, up from 72 percent last year. Twitter use is growing, too. Last year, 47 percent of
6 Attorney Journal Orange County | Volume 133, 2017
lawyers said they regularly use Twitter—that count has jumped to 59 percent. LinkedIn is still No. 1 among lawyers, but it is falling behind a bit—89 percent reported using it regularly last year compared with 84 percent this year. As for Snapchat, 4 percent say they use the emerging platform regularly.
What’s used most often? When asked which platform they use most often, Facebook came out on top: 48 percent of the lawyers cited Facebook compared with 27 percent who said they spend more time on LinkedIn. (Perhaps that’s why LinkedIn is making big changes over there.)
BUT IS IT WORKING? Only 7 percent of this year’s responding lawyers say they believe their use of social media is directly responsible for bringing in new clients. (That’s an increase over last year, when only 3 percent said it was directly responsible.) However, 42 percent say it is “somewhat” responsible. As for which platforms are most effective for bringing in new business... Facebook again took first place—at 31 percent—with LinkedIn second at 27 percent. “None” was a close third, at 26 percent, and Twitter a distant fourth at only 5 percent.
media as part of their marketing plan, compared to 70 percent of all lawyers surveyed. Solos continue to use LinkedIn first (82 percent) and Facebook second (78 percent), but Twitter is gaining a greater following over past years. Almost 60 percent of solos reported using Twitter—a 14 percent increase over 2016. However, Facebook pulled into first place—at 34 percent compared with 22 percent for LinkedIn—when we asked which platforms are most effective for bringing in new business. Twitter was next, pulling only 3 percent.
MAKING THE LEAP TO PAID SOCIAL AND CONTENT-SHARING TOOLS Paid social advertising. For the first time, we asked respondents if they are using paid social media advertising to market their firms. Of the 40 percent who said yes, 50 percent regularly use Facebook Ads, the most popular platform for this by far. In contrast, only 8 percent pay for LinkedIn ads and only 4 percent purchase Twitter ads.
When asked, “Do you believe lawyers are actively using social media for marketing purposes or is it really more hype than reality?” lawyers were split: 44 percent say they do believe lawyers are actively using it, while 43 percent think it is hype. A little help here? Do lawyers handle all of their social media marketing activities themselves? Most do, according to the survey results: 67 percent do it all, while 23 percent say they get some help, and 10 percent say it is all handled by someone else. Management tools. How are lawyers managing multiple social accounts and scheduling their marketing activities? When asked, “Do you use any social media management tools such as Hootsuite, Google Analytics, TweetDeck, Buffer, etc.?” 38 percent say they take advantage of management tools, while 58 percent say they do not.
ABOUT SOLO PRACTITIONERS’ USE OF SOCIAL MEDIA Compared with last year’s results, more solo practitioners are talking the social media talk and walking the social media walk: 94 percent of solos say they are using social media—10 percent more than last year. In addition, 75 percent say they use social
Content sharing. We also inquired about content-sharing platforms—websites that help lawyers and law firms distribute articles. We learned that of the 31 percent who reported using a platform beyond their own blog, website or social media accounts, 32 percent are using LinkedIn’s publishing platforms and 26 percent are using Facebook publishing tools, while 9 percent use JD Supra and 7 percent use Medium. n Joan Feldman is Editor-in-Chief of Attorney at Work and partner at Feldcomm. She has created, steered and contributed to myriad leading practice management and trade publications, including the ABA’s Law Practice magazine where she served as managing editor for a dozen years. Joan is a trustee and fellow of the College of Law Practice Management, and a graduate of the Medill School of Journalism. Follow her @JoanHFeldman, LinkedIn, and on Google+. Previously published in Attorney at Work.
Attorney Journal Orange County | Volume 133, 2017 7
Harness the Power of Media Publicity to Build Your Image as an Authority, Attract News Clients and Increase Referrals by Trey Ryder Trey Ryder shares his marketing method with lawyers through a wide range of publications. In addition, he writes and publishes his free e-zine, The Ryder Method™ of Education-Based Marketing. And he maintains the Lawyer Marketing Advisor at www.treyryder.com. He can be reached at firstname.lastname@example.org.
ublicity is the term I use to describe feature articles in newspapers and magazines—and interviews on radio and television. Publicity can be a powerful tool when you use it correctly. The idea of hiring someone to handle publicity goes back to Biblical times. In fact, the first press agent in recorded history was Samuel, who handled publicity for Moses. When Moses was leading his people to the Promised Land and they reached the Red Sea, he called for Samuel. He asked, “Samuel, where are the boats I asked you to rent for our journey?” Samuel looked down at the ground and said “I’m sorry, Moses, I forgot. With all the food I had to order, and the supplies I had to stock, I forgot to rent the boats.” Moses raised his voice and demanded, “Samuel, now what do you expect me to do? Do you think I can just raise my rod over the Red Sea and God will part the waters?” Samuel looked up, with a twinkle in his eye, and replied, “Boss, if you can pull that off, I’ll get you two pages in the Old Testament.” When I discuss publicity, the decision-maker at the print media is called the editor. The decision-maker at the broadcast media is called the producer. When I say “editor,” I’m referring to both. Media publicity benefits you in many ways. First, it establishes a high level of credibility and shows that you are an authority in your field. Otherwise, the editor would not have featured you in an article or interview. Second, it gives you a way to reach dozens, hundreds or even thousands of prospects, depending on the media outlet where your article runs or your interview airs. 8 Attorney Journal Orange County | Volume 133, 2017
Back in 1983, using education-based marketing, I was successful at getting my wife into Ann Landers’ advice column. At the time, my wife Stephanie published a monthly newsletter for people with diabetes. She offered free information of interest to people with diabetes. Ann Landers ran my wife’s letter, which included her offer of free information and her address. Stephanie received over 19,000 written inquiries the first week, 23,000 in all. The main Scottsdale post office opened their doors on Saturday just so I could wheel the mail cart out to my car. As a result of this staggering level of publicity, my wife skyrocketed to the top of her profession. She spoke at national conventions. She was named to the National Board of Directors for her American Association of Diabetes Educators. And two years later, she was the program chairperson for the nationwide convention, which that year was held in Phoenix. Several years ago, before I limited my work to attorneys, one of my clients owned a water damage restoration company that removed water from flooded buildings. He wanted to increase his credibility with insurance companies, so he asked me to write a news release for him. He sent out the news releases and within a week or so, while I was working at my computer, I heard my client’s voice. I looked up and he was being interviewed by CNN Headline News, following a flood in California. One news release immediately established his credibility as a national expert on flood damage and restoration. One of my clients filed a multi-million dollar damage suit relating to an automobile accident. I wrote his news release and sent it to the appropriate media. The article about his lawsuit
appeared on the front page of his local newspaper. Here’s a case history about an estate planning attorney I worked with for over five years. We mounted an ongoing publicity campaign and, as you can see from these results, his publicity program proved immensely profitable. His first opportunity for publicity was an interview on an hour-long radio talk show in Phoenix. The interview took place the day after Christmas, so the listening audience was larger than usual. He offered his free fact kit during the interview. Within ten days, he received 426 calls from prospects requesting his educational materials. Next, I ghost wrote an article that I submitted to a local senior newspaper under his by-line. When the publication hit the streets, he received over 400 inquiries from prospects. The largest newspaper in Arizona—the Arizona Republic— interviewed this lawyer and ran an article in an area section where he was presenting a seminar. As a result of this one article, 233 people attended his program. Later, a local television station interviewed him on the midday news. The news department put his telephone number on a graphic, which appeared on the TV screen. Within three hours of the newscast, he received 200 calls from prospects requesting his free materials. After two days, the number topped 500. In this lawyer’s case, the timing was right, prospective clients were eager, and his free materials were compelling. We were
able to make excellent use of the media—and all this publicity was free. When you communicate with editors, keep in mind that they are often on deadline. They want to receive your message, but almost never have time to talk with you on the telephone. I suggest you communicate with editors exclusively in writing. This way they can read your query letter or news release whenever it’s convenient for them. If they’re interested, they will either call you or run your news release as is. You may have heard of a press kit, which is generally a twopocket folder filled with news releases, background material, photographs—anything the public relations firm can think to include. I encourage you not to spend money on press kits. The only opportunity a press kit affords is the opportunity for the p.r. firm to prepare it—and charge you $5,000 to $10,000, or even more. Many editors have told me they often throw press kits into the trash, unopened. Editors don’t have the time or desire to wade through lengthy materials. They want query letters and news releases that are newsworthy, to the point and well written. When you learn how to appeal to editors—and how to provide materials they want—you open doors that will serve you well for your entire professional career. n
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Attorney Journal Orange County | Volume 133, 2017 9
Sabotaging Your Practice? Just Stop It! by Ruth Carter
ast month, I attended TBD Law, an invitation-only lawyer unconference. The purpose of the event was to take a step back and look at the future of law practice. For me, it was a chance to reflect and strategize about how to be more effective and efficient as a practitioner. It also gave me the kick in the butt I needed to focus on a big goal for me this year: bringing my first online course to market. Toward the end of the event, we were given a worksheet to write out our schedule for putting our plans into action. At the bottom of it was the prompt “I commit to stop doing these three things”—and three blank lines. Although challenging and painful, I resigned myself to writing “Watching YouTube and crap web surfing in the office.” I am the master of thinking “I’ll just take a quick brain-break,” and then losing hours of productivity to mindless videos. But I have too many projects and too little energy to waste bandwidth watching Fails of the Week or Irish People Taste Fritos (and I enjoy both those channels). Since returning from the event, I’ve stuck to my guns. I look to my to-do list on the Wall of Pain instead of YouTube when I need to refocus my mind. When I really need a brain-break, I walk a lap around the office or step outside for a few minutes; getting the blood flowing helps calm my restless mind.
What Lawyers Say They Need to Stop Doing In an anonymous survey, I asked my fellow legal eagles, “When you consider your future plans as a lawyer and a person, what’s the one thing you need to commit to stop doing?” There were some obvious themes in the responses I received. Setting Boundaries There were several responses about managing interactions with others. These lawyers said they need to stop: • “Saying yes to more work when my plate is already overflowing.” • “Completing tasks that I can delegate to a member of my team.” • “Entertaining crazy. I let my bleeding-heart rope me into helping people long after my brain says they are bad news, crazy or unreasonable, and to get out. I need to listen to my brain more, and my heart less.” One of the best pieces of advice I heard in my own career was, “You never regret the client you didn’t take.”
10 10 Attorney Journal Orange County | Volume 133, 2017
Avoiding Time-Sucks Like me, several respondents said they need to stop doing things that waste their time, including: • “Meeting with people for coffee or lunch who do not add value to my personal life, practice or clients.” • “Checking my emails more than four times on any day.” I agree with that email comment. When I travel, and don’t have 24-7 access to email, I see how fast I can clear new messages in batches. Looking at emails as they come in wastes time because it’s not just about reading the message—it takes time to figure out where I was in my other project, or to get back on track. Multiple people reported they need to give up time-sucks related to clients who balk at paying. They said: • “I’m done giving my time away for free. Oh, really? You want a consult with me to review your documents and give you advice? That’ll be $250.” • “I don’t work for people who complain about paying me, won’t pay me, or want to use my time for free. If someone doesn’t want to pay for what I do for them, I will redirect that time to my family or something I find more rewarding and beneficial.” Professional Confidence Interestingly, a few respondents said they need to stop denying their professional competence, saying they need to stop: • “Triple-guessing my abilities as a lawyer and editing everything to death.” • “Feeling like I’m not a real lawyer.” As lawyers, we are part of a profession. Yes, we have tremendous responsibilities and many of us are stricken with perfectionistic thinking (myself included). But it’s just a job. Being lawyers doesn’t mean we stop being human. So, what about you? What will you commit to stop doing? n Ruth Carter is a lawyer, writer and speaker. She is Of Counsel with Venjuris, focusing her practice on intellectual property, social media, First Amendment and flash mob law. Named an ABA Journal 2012 Legal Rebel, Ruth is the author of the ABA book The Legal Side of Blogging for Lawyers, as well as Flash Mob Law: The Legal Side of Planning and Participating in Pillow Fights, No Pants Rides, and Other Shenanigans. In Nothing But the Ruth, she writes about the lessons she’s learning while building her practice. She blogs at UndeniableRuth.com. Follow her on Twitter @rbcarter. Previously published in Attorney at Work.
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COMMUNITY news n Seltzer Caplan McMahon Vitek is pleased to announce that Rebecca Van Loon has been certified as a specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization. The State Bar of California’s program for certifying legal specialists is a California Supreme Court-approved REBECCA VAN LOON method of certifying attorneys as specialists in 11 specialty areas of law for the purposes of increasing public protection and encouraging attorney competence. Attorneys are certified through a process that includes a written examination, demonstration of a high level of experience in the specialty area, attendance at a prescribed number of approved education programs, and favorable evaluation by other attorneys and judges familiar with the attorney’s work. Van Loon received her LL.M in Taxation, magna cum laude, from the University of San Diego School of Law, her Juris Doctorate degree, cum laude, from Willamette University College of Law and her Bachelor of Arts degree, cum laude, from Gonzaga University.
n Alan Greenberg and Wayne Gross, partners at Greenberg Gross LLP, have been named to the Top 50 2017 Orange County Super Lawyers list. Greenberg was named a Super Lawyer in the categories of Business Litigation and Professional Liability: Defense. Greenberg has been repeatedly ALAN GREENBERG named in Best Lawyers of America. Mr. Greenberg is a Fellow of the Litigation Counsel of America, a highly selective trial lawyer honorary society composed of less than onehalf of one percent of American lawyers. He also served as Chair of the Judiciary Committee of the Orange County Bar Association for 2014-2015. He serves on the WAYNE GROSS board of directors for the Federal Bar Association of Orange County and is a member of the board of governors of the Orange County chapter of the Association of Business Trial Lawyers. Gross was named a Super Lawyer in the categories of Business Litigation; Criminal Defense: White Collar; and Professional Liability: Defense. Gross has been repeatedly recognized for his outstanding trial work, including recently being selected by his peers for inclusion in The Best Lawyers in America® 2016. He is a past president of the Orange County Bar Association and of the Orange County Bar Association’s Charitable Fund. n Every year, Super Lawyers magazine publishes its list of the top 5 percent of lawyers throughout each state. For the third year in a row, Aitken Aitken Cohn is proud to announce that all qualifying attorneys were selected Super Lawyers for 2017. Partners Wylie Aitken, Darren Aitken, Chris Aitken, and Richard Cohn have been on the exclusive list for more than 10 years in the area of Plaintiff Personal Injury, Business Litigation, and Medical Malpractice. This is Ashleigh Aitken’s fifth year on the list and fourth consecutive year for partners Michael Penn and Casey Johnson. Additionally, this is the fifth year that Attorney Atticus Wegman has been named a Super Lawyers Rising Star.
12 Attorney Journal Orange County | Volume 133, 2017
COMMUNITY news n Snell & Wilmer is pleased to announce that Daniel S. Rodman, a partner in the firm’s Orange County and Las Vegas offices, has become a Fellow of the American College of Trial Lawyers, one of the premier legal DANIEL S. RODMAN associations in America. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. Although there are currently approximately 5,800 Fellows in the U.S. and Canada, membership can never be more than 1% of the total lawyer population of any state or province. The College’s Fellows are carefully selected from among advocates who represent plaintiffs or defendants in civil proceedings of all types, as well as prosecutors and criminal defense lawyers. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. At Snell & Wilmer, Rodman has a trial practice concentrated in product liability litigation, with principal emphasis on defending motor vehicle manufacturers and suppliers against claims of wrongful death or catastrophic injury in California and Nevada. n Klinedinst PC has officially welcomed a new associate to its Santa Ana office. Katelyn Walsh will be defending veterinarians in litigation and administrative proceedings. Before joining Klinedinst, Ms. KATELYN WALSH Walsh gained significant experience in the areas of criminal defense, family law, and construction defect. Ms. Walsh attended law school in Chapman University on a full merit scholarship, where she earned a JD/MBA. While an undergraduate at University of California, Santa Barbara, she earned a Bachelor of Arts degree in History, Italian, and Medieval studies.
n Newmeyer & Dillion LLP is pleased to announce that two of the firm’s Orange Countybased attorneys—Ben Ammerman and Rondi Walsh—have been elected to partnership. Their promotions are effective immediately. Ammerman focuses his practice in the areas of business, real estate, and tort litigation. In addition to his private practice, Ammerman presently serves as a Commander in the Navy BEN AMMERMAN Reserve Judge Advocate General’s Corps. He’s also an active alumnus, currently named cochair of the University of Southern California’s 20th Reunion Committee. Walsh has incorporated into her practice the representation of policyholders in first- and third-party insurance coverage, and business lawsuits involving contracts, property disputes, products liability and construction defect issues. She also has litigated numerous political RONDI WALSH and election law matters and has worked both professionally and as a volunteer on numerous political campaigns. Walsh is also an active member with the National Charity League.
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Attorney Journal Orange County | Volume 133, 2017 13
Keller/Anderle LLP BUSINESS TRIAL LAWYERS
Scientist, Engineer, CIA Partner, FBI Advisor, and High-Profile Trial Lawyer Omar Siddiqui is Who Individuals, Businesses, and Even the Federal Government Turn to for Solutions to Complex Problems by Jennifer Hadley
any measure, Omar A. Siddiqui, Partner at Ulwelling | Siddiqui LLP, is frankly… fascinating. As a scientist, engineer, trial lawyer and advisor to both the FBI and the CIA, suffice it to say, Siddiqui has indeed fulfilled his childhood dream of becoming a “Renaissance Man.” Siddiqui explains, “My childhood heroes were polymaths like Leonardo da Vinci and Benjamin Franklin. They were scientists, engineers, inventors, artists, and statesmen who mastered engineering and science, humanities and the arts. In their footsteps, I too wanted to be a millennial renaissance man—at the nexus of engineering/science and law.” “Alternately, I wanted to be Darth Vader when I grew up, so this was the closest possible career choice,” he adds with a laugh. It is precisely that quick humor, his mastery of both science and the law, coupled with a nearly palpable passion for championing the cause of the powerless, which have made Siddiqui such a successful trial attorney. “I absolutely love what I do. Every case is an adventure,” he says. Not surprisingly, his enthusiasm, backed by intelligent expertise, and complemented by subtle wit, has led him to win millions of dollars for his clients, all the while earning him a spot as a frequent expert for multiple media outlets. Moreover, the invaluable assistance he’s provided to both the CIA and FBI, has earned him reverence from both agencies, for serving as both a community partner and Muslim-American liaison, on the front lines of national defense and counter-terrorism efforts. Yet, to hear Siddiqui tell it, his esteemed career can all be traced to a single mission: to solve problems for others through a steadfast pursuit of truth.
Pursuit of Truth Siddiqui was born to an immigrant father who came to America in the 1950s from Pakistan via the Queen Mary. 16 Attorney Journal Orange County | Volume 133, 2017
Seeking a higher education, his father would go on to become a prominent engineer, all the while Siddiqui was growing up in Orange County, attending Sunny Hills High School, before completing his undergraduate and graduate degrees in Engineering at USC. “It was a given that I would become an engineer, like my father. I wanted to be an engineer. In engineering, all efforts are geared towards finding one solid answer. Wherever you go in the world, math and science are constants, and engineering and science seek definitive answers in the search for truth,” he says. In fact, Siddiqui explains, even his name is representative of his pursuit for truth. “Siddiqui means ‘The Truthful’ in Arabic,” he says. However, Siddiqui also fell in love with trial advocacy after spending time studying law at Loyola Law School in Los Angeles. Though he admits going directly from graduate school where he earned his Master of Science in Engineering, into law school was a bit of a challenge, he wouldn’t do anything differently. “Law school was the complete opposite of engineering and science,” he says. “To become an attorney, I had to change my engineering mode of thinking, because unlike engineering the search for truth in law is subjective. There is often no one right answer to a legal problem. Ten different juries may come back with ten different verdicts,” Siddiqui explains. Yet, that’s precisely why Siddiqui decided to pursue law. “A lot of lawyers shy away from math and science. I have always loved and embraced them—they are at play in nearly every practice area of law,” he says. Moreover, Siddiqui knew that he wanted to use his scientific background to support his mission: to champion the cause of the innocent, the powerless, and the helpless. He was afforded the opportunity to learn the courtroom skills necessary to do so through being accepted at
© Wallis Photo LLC
OF THE MONTH
Attorney Journal Orange County | Volume 124, 2016 17
ck om President Bara Birthday wishes fr a dy Michelle Obam Obama & First La
FBI Los Angeles / U.S . Coast Guard Exercise (Unclassifi ed) – San Diego, CA
t of the 44th Presiden Mr. Siddiqui with , Barack Obama. the United States
one of the nation’s most renowned law schools. “Being accepted at Loyola Law School, which is known for trial advocacy and litigation, and has produced Super Lawyers such as Johnny Cochran, Mark Geragos, Brian Kabateck, Tom Girardi, Gloria Allred, Robert Shapiro and countless judges, was a great honor,” Siddiqui says. Upon graduation, he would begin cutting his teeth as an associate at the prominent Los Angeles litigation firm of Morris Polich & Purdy LLP. Within just a few years, Siddiqui, a young associate at the time, found himself thrust into the media spotlight for his work on a highly-publicized case he brought to the firm, which incidentally, the firm wasn’t exactly eager for him to tackle. All the same, in DeSalvo v. Buca di Beppo, Siddiqui saw an opportunity to help two models who had their images used in an outdoor ad campaign by the national restaurant chain and its advertising agency. Calling it a clear case of identity theft, Siddiqui’s interest was immediately piqued. “I promised one of the partners at the firm that I’d work on the case between the hours of midnight and six am, and that it wouldn’t interfere with my other work,” Siddiqui says. “This wasn’t a typical type of case for the firm, but he supported me, even though we had to jump through some hoops,” he says. Trusting his gut paid off, as the jury returned a verdict in favor of the plaintiffs of more than $277,000. In addition, the case thrust Siddiqui into the media spotlight with news outlets including the Los Angeles Business Journal and the Daily Journal covering the case extensively. That case would not only put Siddiqui on the proverbial map as a powerful advocate, but it would also serve as the catalyst for his decision to launch his own firm. “Large law firms tend to follow a cookie cutter model in addressing legal problems, and can become entrenched in rigid rules and billable hours, leaving little room for creativity and emotion,” Siddiqui says. As such in 2004, driven by a desire to fight for the powerless, wherever he was needed, Siddiqui gave up his secure position to forge his own way through partnering with a colleague to form Ulwelling | Siddiqui, LLP. “I had a vision of providing excellence and service to my clients, handling a wide range of matters from simple local business disputes to high-profile complex cases,” he says.
Problem Solving as Firm’s Focus Siddiqui, National Director Spe cial Projects (FBI National Cit. Acad. Alu mni Assoc.), at the FBI Academy in Quantico, VA. an brainstorming CIA Director John Brenn CIA Community international policy with r Partner/Adviso Siddiqui.
18 Attorney Journal Orange County | Volume 133, 2017
True to his vision, Siddiqui’s firm focused on solving problems for those who needed his help, irrespective of the specific type of case. From entrepreneurs, large international corporations and Fortune 500 companies, to aspiring actors, models, stuntmen, rap artists, and Hollywood celebrities, saying that Siddiqui has a diverse book of clients is, at best, a gross understatement. He’s served as counsel to mosques, churches, synagogues, along with club owners, liquor stores, and casinos. Ulwelling | Siddiqui, LLP has represented both plaintiffs and defendants including engineers, architects, accounting firms, doctors, dentists, international business executives, fellow attorneys, grocery store chains, and even judges.
“Our firm specializes in the art and science of trial advocacy and litigation. We have successfully tried cases involving business and corporate law, intellectual property, entertainment and sports, real estate, labor and employment, criminal defense, construction and professional liability and civil rights,” Siddiqui says. “With our unique background, we think differently. We understand our clients’ objectives and problems and find costeffective solutions to those problems. We understand that each case is unique. While one matter may call for trial and complex litigation, another might best be resolved through a simple phone call. Our firm’s lawyers are trained to recognize and apply individualized solutions. We listen and we communicate clearly. We are prepared to serve as trial lawyers, advocates, counselors, defenders, or negotiators as the circumstances may warrant,” he explains. By way of example, in another highly-publicized case, which was reported in USA Today, amongst others, Siddiqui represented a high-ranking LAPD captain, who was found to have hundreds of bootleg movie DVDs in her car and her home. She came to Siddiqui after she had been sued in federal court by Columbia Pictures, Disney, MGM, Paramount, Twentieth Century Fox and other powerhouse studios. As a longtime, respected member of the LAPD, she had asked a judge for help in fighting these giants. “Apparently, the judge told her that there was ‘some kid who beat-up Buca di Beppo and was too young to know what he should be charging,’ and referred her to me,” Siddiqui chuckles. Though still a young attorney at the time, Siddiqui was not only fearless, but eager for the opportunity. Siddiqui’s case strategies obtained a miracle result for his client. Another high-profile case was Bellagio Jewelry, Inc. v. Croton Watch Co., in which Siddiqui represented a small family business
Nancy U.S. Speaker of the House, t the FBI sen Pelosi, and Mr. Siddiqui pre Medallion n Coi National CAAA Challenge . D.C in Washington, Strategizing airp ort security with TSA Administrator, Pe ter Neffenger
which owned the trademark “Bellagio” for jewelry and watches. After successfully preventing the Bellagio Las Vegas from selling Bellagio branded watches and jewelry in its luxury resort and casino, Siddiqui’s client then sued the Croton Watch Co. in federal court for trademark infringement, alleging that Croton had unlawfully refused to stop using the disputed trademark in selling its own line of watches on ShopNBC. Several prominent law firms from Manhattan and Los Angeles defended Croton in an epic David versus Goliath trial. Once again Siddiqui prevailed, the court ruling in favor of Siddiqui’s client entering judgment in the amount of $831,274. High-profile cases such as these brought still more increasingly complex and highly visible cases to Siddiqui’s plate. Though he admits to being fortunate in being able to be selective about the cases he takes, he asserts that his decision to accept a case is not based on the value of the case. Rather, he selects cases based on whether he believes in the case, regardless of how much of a fight it may be. A perfect demonstration of his dedication to helping those who need help despite all odds stacked against him, is evident in Compton v. Riverside County Sheriff's Dept. et al. In this highly-publicized case, Siddiqui represented a client in a civil rights action, after he was beaten by several Riverside County Sheriff’s Deputies, and then subsequently and falsely charged with resisting arrest. “There was no video, and it was his words against theirs, initially,” Siddiqui said. However, as the case progressed Siddiqui was able to convince the jury that the deputies were lying. The jury returned a swift verdict in favor of Siddiqui’s client, the judgment totaling over $1.3 Million, which was one of the highest verdicts awarded for a non-wrongful death case.
FBI Director James Comey presents Mr. Siddiqui with the FBI Director’s Leadership Award in a ceremony at FBI Headquarters (Washington, D.C.) on April 15, 2016.
Honoring President’s Day (2016) with President Barack Ob ama. President Obama am iably refers to Mr. Siddiqui as “The Lawyer.”
Attorney Journal Orange County | Volume 133, 2017 19
© Wallis Photo LLC
Protecting Others as A Personal Mission Although Siddiqui’s high-profile cases had made him a familiar face on television, he wasn’t contacted by the FBI to help in the fight against terrorism as the result of any of the headlinegrabbing cases. Instead, it was through his work as attorney for the Islamic Center of Irvine, which first caught the attention of the FBI. “A man had come to the mosque, and unlike most who are interested in the beliefs and theology of Islam, he began speaking to members about organizing terrorist activities and making references to jihad. We immediately turned him over to the FBI,” Siddiqui says. “As a Muslim-American it is my duty to help protect and safeguard our nation.” It was several years later, before the man who Siddiqui helped turn over to the FBI was revealed to be an FBI informant sent to the Center under then President Bush’s Operation Flex. Needless to say, the revelation had Siddiqui once again in the headlines. This time, he was also on the FBI’s radar, as a potential ally in counter-terrorism efforts. Siddiqui was more than willing to provide whatever assistance he could, and by 2010, he began serving as an advisor and consultant to the FBI. He subsequently went on to become Chairman of the Board of the FBI Los Angeles Citizens Academy Alumni Association. Today, he serves as the National Director of Special Projects of the FBI National Citizens Academy Alumni Association. The program has been such a success, that the CIA has also tapped Siddiqui as a Community Partner and Advisor, to help with creating a similar program. Siddiqui is a regular fixture in Washington, meeting with 20 Attorney Journal Orange County | Volume 133, 2017
former President Obama numerous times between 2014-2016. While a guest of President Obama and First Lady Michelle Obama at the 2015 White House Holiday Reception, Siddiqui was provided with intelligence that proved instrumental in the investigation into the December 2015 San Bernardino terrorist attack. For his efforts as a first line of defense in the war on terrorism, Siddiqui has been bestowed with numerous awards. In 2016, FBI Director James B. Comey recognized Siddiqui as recipient of the FBI Director’s Community Leadership Award, saying, “You have done extraordinary good across communities in this country and you have made a lasting difference. Thank you for that good, thank you for what you represent, and thank you for inspiring not just the FBI, but the entire country.” Not long after, Siddiqui was the Keynote Speaker at the CIA’s Martin Luther King Jr. Day event held in the CIA Headquarters Auditorium, aka “The Bubble.”
“Let the Future Tell the Truth...” –Nikola Tesla As a tried and tested trial attorney, Siddiqui’s name has become synonymous with troubleshooting even the most complex of legal problems and emerging victorious time and again. Named a Super Lawyer several times and each year since 2015, his litigation and trial skills have earned him accolades from multiple media sources including Los Angeles Magazine, and Orange Coast Magazine. He also makes time to give back to the legal community and his alma mater through serving as a member of the Board of Directors at Loyola Law School.
Contact Omar A. Siddiqui Ulwelling | Siddiqui, LLP OSiddiqui@usllp.com usllp.com Orange County Park Tower 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 714-384-6650 Los Angeles Engine Company #28 644 S. Figueroa Street Los Angeles, CA 90017 213-489-1450
© Wallis Photo LLC
Dedicated to protecting the innocent, Siddiqui has proven his commitment to using his extraordinarily unique skill set, education, and problem-solving capabilities to benefit not only those he represents in legal matters, but to protect those he will never meet, as an Advisory Board Member of the Police Chief ’s Advisory Committee for the Fullerton Police Department, in addition to the advising and consulting roles he fills for the FBI and the CIA. So, what does the future hold for Siddiqui? “Nobody will remember the Lamborghini you drive,” he says. “They will remember how you helped them with their problems—where you were in their time of need. I intend to keep helping others find solutions to their problems.” To that end, Siddiqui has a full plate with forthcoming cases including a gruesome excessive force case involving Riverside County Code Enforcement Officers, along with representing the Friends of Coyote Hills in their fight to save 510 acres of land in Fullerton, from development by Chevron. He also plans to continue assisting both the FBI and the CIA on matters of national security, and counterterrorism efforts. Beyond that, Siddiqui won’t confirm if he will follow the suggestions of both the former President of the United States, or Congressman (and Deputy DNC Chair) Keith Ellison and enter into the political arena. He’s certainly proven time and again that he is not afraid to take risks. However, he can’t help but reflect , when asked directly if he plans to run for office himself, “When the President tells you to run for Congress, it’s hard not to explore the idea. In these times of uncertainty, there are a lot more questions than answers…. a lot of problems that need to be solved.” n
» EDUCATION • Loyola Law School, Loyola Marymount University, J.D., Law – 1998-2000 • University of Southern California, M.S., Engineering – 1995-1997 »» Activities and Societies: Dean’s Honor List; School of Engineering Honor Society; Tau Beta Pi, Chi Epsilon • University of Southern California, B.S., Engineering – 1993-1995 »» Activities and Societies: Dean’s Honor List; School of Engineering Honor Society; Tau Beta Pi, Chi Epsilon • Chicago-Kent College of Law, Illinois Institute of Technology, Law – 19971998 »» Charles Evans Hughes Moot Court Competition (Chicago, Illinois); Trial Advocacy • California State University, Long Beach, Engineering – 1995 • University of California, Irvine, Engineering – 1990-1993 • Fullerton College – 1991
» HONORS & AWARDS • Certificate of Appreciation – Central Intelligence Agency (CIA), January 2017 • FBI Director’s Leadership Award – FBI Director James Comey (Federal Bureau of Investigation/Dept. of Justice), April 2016 • FBI Certificate of Recognition – U.S. Dept. of Justice/Federal Bureau of Investigation (FBI), November 2015 • Certificate of Participation – Central Intelligence Agency (CIA), June 2015 • Certificate of Congressional Recognition – U.S. House of Representatives (Ed Royce, 39th Dist.), June 2014 • Certificate of Congressional Recognition – U.S. House of Representatives (Ed Royce, 39th Dist.), April 2014 • California State Assembly Certificate of Recognition – California State Assembly (Young Kim, 65th Dist.), August 2015 • California State Assembly Certificate of Recognition – California State Assembly (Sharon Quirk-Silva, 65th Dist.), June 2014 • Certificate of Appreciation – County of Orange, California, November 2016 • Certificate of Appreciation – City of Fullerton/Fullerton Police Dept., June 2016 • Certificate of Appreciation – Southern Poverty Law Center (SPLC), 2015-2017 • Certificate of Appreciation – Bethel Korean Church (Irvine, CA), January 2017 • Certificate of Excellence – Consulate General of Pakistan (Los Angeles), August 2004 • Super Lawyer – Los Angeles Magazine, 2009-2017 • Super Lawyer – Orange Coast Magazine, 2015-2017
» ORGANIZATIONS • Federal Bureau of Investigation (FBI), Advisor/Consultant (National Security/ Counter Terrorism) – 2010 to Present • Central Intelligence Agency (CIA), Community Partner/Advisor – 2015 to Present • InfraGard Alliance (FBI + Joint Regional Intelligence Center + OC Private Sector Terrorism Response Group), Alliance Member – 2010 to Present • Fullerton Police Department, Advisory Board Member (Police Chief’s Advisory Committee) – 2015 to Present • Loyola Law School, Loyola Marymount University, Member, Board of Directors – 2016 to Present
Using Evernote in Your Law Practice: Five Ways to Start
by Heidi Alexander
hen talking with lawyers about Evernote, I often get the same comment: “I heard it was a good productivity tool so I downloaded Evernote, but I haven’t figured out how to get started with it.” Fortunately, there are some simple ways to jumpstart using Evernote in your law practice. First, for those unfamiliar with Evernote, it is essentially a cloud-based information repository. It can be used to collect, organize and access data; save and store web articles and emails; take notes; draft content; collaborate with others; annotate PDFs; and much, much more. By syncing to the cloud, Evernote allows lawyers to access information they need when and wherever they need it. Lawyers can leverage Evernote in myriad ways, including storing and organizing legal research, administering firm business, archiving emails, drafting and storing marketing plans and materials, managing case and matter information, and tracking tasks. Let’s get started with five simple ways to use Evernote. 1. Drafting and Storing Meeting Notes Evernote is an excellent tool for quickly taking and saving meeting notes. Start a note with a click of a button from your computer or mobile device. Evernote automatically saves the note and syncs it to all your devices when you are connected to the internet. If you are taking notes on your mobile device, turn on smart note titles, which will predict the title based on your calendar, location and note contents. You can also save handwritten notes as searchable PDFs by using Evernote’s built-in mobile photo tool to snap a picture of them for direct upload to your Evernote account. 2. Saving Webpages for Future Reference Often, we stumble across interesting and important information on the internet that we might like to reference later, send to a client or pass on to a colleague. Evernote is an ideal place to store those articles and webpages. Evernote owes its popularity in part to its web clipper tool. With the web clipper, you can save articles, text and images from the web directly into Evernote from any device. If it’s an article you’d like to read later, save it to a “Read Later” notebook or give it a “Read Later” tag so you can easily find it in your Evernote repository. 3. Creating a Legal Research Repository Many attorneys who use Evernote use the web clipper to save and organize their legal research. You can organize your research into topical notebooks, such as Employment Discrimination, Landlord-Tenant, Search and Seizure and so on. Then, when 22 Attorney Journal Orange County | Volume 133, 2017
you save individual research files, such as case law, you can assign each one to the proper topical notebook and tag it with identifiers such as the matter(s) it references, its case proposition and disposition, fact pattern, and jurisdiction. The next time you need a SCOTUS case on sex discrimination, you can use Evernote search terms to retrieve it. No more wasting time searching through stacks of printed case law for that one case proposition you need, or reinventing the wheel by doing sophisticated searches in Westlaw or Lexis to locate something you’ve previously found. 4. Collecting and Storing Business Cards What do you do with all those business cards you brought home from last night’s networking event? Do you leave them scattered on your desk (so they’ll inevitably end up in the trash) or put them in a box (and never reference them again)? Instead, upload them immediately to Evernote using its business card tool. By snapping a photo of a business card using the Evernote app on your mobile device, all the relevant information is automatically collected and imported into your Evernote account, as well as other contact databases such iCloud or Outlook. You can also use Evernote’s one-click LinkedIn feature to find your business card contact in LinkedIn and request a connection. 5. Saving and Storing Emails Oftentimes, we receive emails with important information we need to reference at a later date. You can save those emails easily into Evernote. There are three ways to do so: 1) forward emails to your Evernote account using your unique Evernote email address (for Premium users only), 2) use the free Evernote web clipper with Gmail, or 3) use the free Evernote add-on for Microsoft Outlook (versions 2010 and 2013). If you haven’t already, sign up for an Evernote account, download it onto your desktop or your mobile device (or both) and get started using it in one or all of these five ways. n Heidi Alexander is the Director of the Massachusetts Law Office Management Assistance Program, where she advises lawyers on practice management matters, provides guidance in implementing new law office technologies, and helps lawyers develop healthy and sustainable practices. She frequently makes presentations to the legal community and contributes to publications on law practice management and technology. She is the author of “Evernote as a Law Practice Tool,” an ABA Law Practice Division publication, and serves on the ABA TECHSHOW Planning Board. Previously published in Attorney at Work.
Interview with an Expert:
What Should Your Law Firm be Doing with PPC and SEM? by Paul Julius
onsultwebs recently sat down with Paul Julius, our resident expert on digital advertising, PPC and all things SEM, to discuss some important topics for our law firms. We hope you find the information he shared helpful to your firm. CW: The terms SEM and PPC are used a lot in legal marketing circles, but there seems to be some confusion around them on occasion. Could you define what those terms mean? PJ: SEM stands for search engine marketing, which some people use meaning pay-per-click advertising, but it’s really evolved into a broader approach including any spot that you can buy on the web—AdWords PPC, Bing, as well as paid social media, or a direct buy where you negotiate to show your ads on a particular site, like a local news website, paid content marketing. We approach it like anything that is a paid marketing option online falls under SEM. So, SEM is paid, and by contrast, SEO (search engine optimization) is “organic,” where you are investing in a longer-term presence to try to get better visibility in organic search results. PPC is a part of SEM, and PPC stands for pay-per-click. That refers to the billing method that a lot of platforms use where they charge you for every time your ad gets clicked, regardless of how many times it is shown. Then there is CPM (cost-perimpression), where you pay a rate per thousand impressions of your ad, regardless of how many times it is clicked. So PPC is a part of SEM and involves anything where you pay for each click. CW: Lots of law firm marketers have said that PPC is way too expensive, seeing pricing in certain markets or practice areas that is well above $100 per click. If a firm doesn’t have a massive budget, is PPC even worthwhile for them? PJ: I think it depends. First, yes, a lot of people say that the clicks are expensive, but you need to keep in mind that there is a lot of intent behind a lot of those expensive keywords. So you need to determine if it’s worth the cost to get those people to your landing page. You always have to look at, “What is our ROI?” You don’t want to be running at a loss, although some firms also have the perspective that getting cases that competitors won’t get might be worth running at a reasonable loss. It all depends on your goals. Also, there are different kinds of things that you can do with PPC. Some PPC can get expensive, but there are some options that are less expensive. You can do display advertising on a pay24 Attorney Journal Orange County | Volume 133, 2017
per-click basis, for example. And you can get creative with a lower budget. You can hyper-target your locations. You can do some ad scheduling where you only run ads on certain days or certain parts of a day. Those are a couple of ways to work on a lower budget, but that’s not necessarily ideal. It’s important to keep in mind that the best PPC campaigns are the ones that have the budget to run consistently. You never know when that prospect will be looking for help, and so you want your firm to always have that presence. If you have unlimited budget, yes, you can dominate in PPC, but you don’t need to spend a ton to get some results. CW: If a law firm has never done anything with PPC before, and they are wanting to try it for themselves, how do they get started? PJ: If you don’t know anything about PPC, I’d suggest getting AdWords certified. It’s free. There are a bunch of videos to get you started with the basics: how to set up a campaign, what all the different components are, the keywords, the ad groups, ad extensions, everything. With the legal industry, I’m a bit torn. There is no substitute for experience, but a firm could spend a lot of money just figuring things out. I would really recommend spending the time to do some research beyond just what AdWords certification will give you. Look around online. There are some other resources too. Certified Knowledge by Brad Geddes, PPC Hero, those are pretty good. I think once you get through that stuff and are comfortable with the basics, you can get into it. But, set yourself some limits for both time and budget. For example, say we’ll give this 30 days and a budget of $4,000. Then keep an eye on things and see what happens. Google has good support as well, so if you have questions, you can get answers. CW: Following up on that, what are some landmines to avoid when getting started with PPC? PJ: A few things. Watch out for single-word keywords like “lawyer,” or “attorney” or like “Boston lawyer.” You could get into a lot of trouble with that. You’ll see a lot of volume, but most of it will probably be irrelevant to the practice areas you are going after and you could waste a lot of money. Don’t put too many keywords into an ad group. Every keyword term in an ad group should be pretty relevant to each other. You don’t want to have more than 10 or 20 keywords in
an ad group because it’s going to be tough to write ad copy that is relevant to that specific group. That can affect your quality score and what you end up paying for your clicks. A low-quality score can cause you to pay a lot more. Lastly, make sure your landing page for every campaign is driving the actions that you’re looking for. You probably don’t want to point ads to your homepage or your “personal injury lawyer” page. You just paid for someone to click on your ad and come through to a page, sometimes at a pretty high price. You need to do everything you can on that page to get them to take the action that you want them to take, most likely to contact you. Your firm’s homepage or practice-area pages may not have all of that. A big red flag is if you’re getting clicks and not getting anyone to contact you. You probably want to take a look at your landing page and make some changes. You can be much more direct, have more of a sense of urgency and use the page to alleviate some of the fears that people may have in contacting you. For example, you can say, “Free, noobligation case consultation,” answer some of their questions, and include some strong calls to action that you may not want on other pages of your site. CW: What’s the biggest mistake a law firm can make with PPC? PJ: Not paying attention. If a firm doesn’t track conversions, meaning they don’t know if people are contacting them because of their PPC ads, or any other marketing efforts for that matter. If you don’t know if your campaign is working, you can’t make adjustments to make it better, and you wouldn’t know if you were wasting money. So, that’s the biggest mistake. Also, some firms use the “set it and forget it” approach. That’s where they set up a campaign and then just let it run without checking on it. If you aren’t monitoring your spending, your different ad groups, your quality score, results and everything else, you can’t improve it, and you won’t see if you’re wasting your budget. You have to stay on top of it. CW: Is there a type of SEM that every law firm should be doing, in your opinion? PJ: Every firm’s needs and goals are different, but if there is one thing that comes closest to “every firm should be doing this,” it’s probably brand protection. What I mean by that is bidding on your firm’s own name in AdWords, for example. What can happen is that a prospect may be looking for your firm, search for it specifically, and then see an ad for another law firm in their search results. Keep in mind, very often the first four results are ad results, and on mobile it’s pretty much all you see until you scroll. Especially if you are not running an ad for your branded terms, they may see another firm’s ad, click on it and hit another law firm’s site, and you may have just lost a case. If your ad is there at the top, and they were searching for you, that’s protecting your brand in those results. That might not apply to all law firms and may not be completely necessary, but it is something to be aware of. Remarketing, also, is something firms should look into to
show people ads after they leave the firm’s website to keep your firm in front of them. It may not be applicable for all firms, based on their practice areas or their situation, but it’s something to explore. CW: Right now, what is the biggest opportunity for law firms in SEM? PJ: Facebook. But, you need to have an active Facebook page to make the paid side of Facebook worthwhile. Facebook has its own algorithm to see how active your page is, how many likes you have and everything, and that will affect your ads’ performance. The better your organic presence on Facebook, the better your ads will do too. If you have a dormant Facebook page, you won’t do as well as if you have an active page where people are engaged. There are lots of different types of ads and ways to boost your exposure on Facebook. They have carousel ads, they have ads where people can fill out a form right on Facebook and never even have to go to a landing page. And the ways that you can target people on Facebook are much more refined than you are able to get with other platforms. With targeting, for example, if your firm was looking for employment discrimination cases against a particular employer, you could target people who currently work there or used to work there. If it was only in a couple of states, you could target those states specifically. You can target by gender, education level, job title, interests and other information that’s available in Facebook, to narrow your audience to much more likely candidates for the cases that you’re looking for. CW: Any other advice for law firms that can help them with their paid online marketing? PJ: It’s important to note, and this may be obvious, that SEM is a “here and now” kind of strategy. You are paying for a presence on the web to get leads, most times, and when you stop paying, that presence stops too. With SEO, it’s a longer-term play, where you are laying the foundation to establish authority and get traffic from organic search results to get leads. It takes a bit longer, of course, so there are advantages to each approach. Ultimately, a strong balance between SEM and SEO is what I see works best. When a firm is really strong organically in some practice area search terms, but is still working on getting rankings up in another area, that is when they can use AdWords to get opportunities with those kinds of cases. And definitely make sure that the ROI is there for whatever you’re doing online. n Paul Julius has an extensive background in Web design and online marketing. He brings a unique combination of skills and perspectives to his role as a Digital Advertising Lead with Consultwebs. Paul is responsible for setting up, managing and maintaining all PPC campaigns for our clients, including campaign strategy, keyword research, bids and the analysis and reporting of results. Attorney Journal Orange County | Volume 133, 2017 25
The Bright Line Between Marketing and Sales by Mike O’Horo For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at email@example.com.
hese days in the legal world, you don’t hear the terms “marketing” and “sales” very often. “Marketing” lost its luster during the severe cutbacks in law firms’ marketing communications programs during the recession. Firms lost their appetite for big investments that would take a long time to pay off (at least visibly) because they faced a rapid shrinkage in client demand. Lawyers needed work and cash now. That required an emphasis on Sales. In-house Marketing departments and outside consultants recognized that and made a massive and rapid shift away from marketing in favor of sales. However, since “sales” was a term that made many firms and lawyers uncomfortable, we adopted the less-threatening euphemism “business development.” Today, everything is BD. Does it really matter if you refer to your client-getting pursuits as “business development,” or “marketing,” or “sales”? Absolutely, and not merely because I’m a language zealot. Undefined terminology (such as “relationship-building”) provides cover for activity-for-its-own-sake, and enables us to delude ourselves that we’re making progress when we’re not. Here are my definitions of the three terms:
Marketing One-to-many communication that creates awareness of your value and stimulates prospects voluntarily to engage with a sales-decision process. Sales One-to-one direct interaction with the end customer that converts demand by facilitating an informed buying decision. Business Development Working through partners (channels) to sell to the end customer, in a scalable way. (From Andrew DuMont’s blog) The key distinction is that BD is selling through channels. BD teams work through existing partner infrastructures. The art of business development comes in identifying partners that fit your needs, while finding a way to provide value to the partner’s end customer and business.
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Examples of Lawyer BD If you get most of your business through a distribution relationship with a trade association, you’re doing BD. Say you’re providing an incorporation package for startups through an incubator. You made one sale—the distribution agreement. The incubator is doing all the rest of the selling for you. This is different than referrals, where the source is providing you with leads, but you must still make each individual sale. If you’ve packaged legal advice with a technology company’s solution, that company is your channel. They’re selling your offering direct to their customer for you. That’s BD.
You’re Not Doing BD Most lawyers aren’t doing much, if any, of these types of things. Yet, when we describe our activity as “business development,” it makes us feel good that we’re, well, developing business. But we’re not. We’re marketing. There’s no way around the fact that, if you want more business, you have to sell. Successful marketing gives you a willing person to sell to, but you have to make the sale. The bright line is the decision. Unless you’re helping a prospect inform and make a specific decision about a specific offer, you’re not selling, you’re still marketing. It’s only when you progress to the point where the entire focus is on deciding whether or not to buy that you’re selling. Everything else is marketing. If it’s about your products or services, it’s marketing. You may have some overlap, i.e., where you have to do some ongoing solution discussion during the sale, but the important point is recognizing that if you’re not talking about a decision, you’re not selling yet, which means you’re not getting closer to getting business. Is the key pipeline-quality indicator how many decisions are in process? Not how many articles or blog posts you’ve written, or speaking engagements you’ve had. Not how many downloads of your eBook. And not even how many sales calls you’ve had. Until there’s a decision under discussion, it falls under “necessary but not sufficient.” Focus your efforts on getting more decisions under consideration and, more importantly, where you’re facilitating them rather than sitting on the sidelines awaiting them. n
Controlling Witnesses on Direct and Cross by Ben Rubinowitz and Evan Torgan
In virtually any case you try, you will be confronted with the uncontrollable witness. Unfortunately, an out-of-control witness can destroy a case. Your job is to prevent this from occurring. There are many ways to deal with the out-of-control witness, but the starting point is to listen to the witness and to pay attention to each answer. As attorneys, we are very good at speaking to people, giving advice and pontificating, but often not so adept at listening to what people have to say. During a trial, although oratorical skills are important, good listening skills are critical. Moreover, although most trial attorneys are worried about controlling the adverse witness, controlling their own witness is just as important.
Direct Examination Most attorneys, while proud of their cross-examination skills, neglect the required devotion to artful direct examination. The first step to control on direct examination is to understand the parameters. While control is paramount, understanding that direct examination must be generally conducted in a nonleading format is crucial. Most leading questions will draw objections, so take control of your direct by utilizing questions that elicit narrative responses. Questions that begin with words such as who, what, where, when, how and why should always elicit narrative responses. Therefore, most questions during direct examination should begin with such words. Here is an example: Q: What is your name? Q: Where do you live? Q: How long have you lived there? Q: Who else lives there? Q: When did they move in with you? Q: Why did you move there? To continue to exercise control, you need to use transitional phrases to direct the witness into a new area of inquiry. Such transitional phrases are leading in nature, but because they include words of transition, are permissable. Q: I direct your attention to June 12, 2010, at approximately 6 o’clock in the evening, and I ask you: Where were you at that time? Q: Did there come a time that the police arrived? Q: Directing your attention to the bottom of the page titled nursing notes, whose signature appears there? 28 Attorney Journal Orange County | Volume 133, 2017
Following up answers with words that cajole the witness to respond also help you exercise control over the witness: Q: What happened next? Q: Continue. Q: Proceed. Q: Go on. Q: Describe. Of course, even with artful questioning, and thorough preparation, you can run into an unresponsive and out-ofcontrol witness. Take your client, for example, who has never testified in court before. Nervousness and adrenaline can take control of the situation, and the direct can end up going something like this: Q: Where do you live? A: I have lived there for 20 years. Q: How many children do you have? A: I love them. They are all wonderful. Q: Did there come a time that an ambulance arrived? A: I was in agony, writhing in pain on the ground. To prevent these types of answers from destroying the direct examination, you must listen to scrutinize the responses. Many lawyers, even on direct examination, are tied to their notes, preparing for what they will ask next. Conducting a direct is not the time to be tied to your notes. On the contrary, you must pay close attention to your witness’ answers. Q: Where did you feel the pain? A: It was the worst pain I have ever felt in my life. I couldn’t believe it. I couldn’t even breathe and my life flashed... Q: I understand that it was very bad, but I’m asking specifically where you felt that pain. A: It was in my lower back. The same type of control should be exercised with the expert witnesses you call as well. Many times expert witnesses will ramble on after first being responsive to your questions. It is important to rein them in. For example, take the following approach with a physician who rambles on beyond the scope of the question. Q: Do you have an opinion, to a reasonable degree of medical certainty, as to whether or not these injuries are permanent? A: Yes. They are permanent, and they will prevent her from working in the future and will require a lifetime of medical care. Moreover, because the disc is impinging on the spinal cord it will ...
Q: Let me stop you there, and we will get to the rest of those issues later. First of all, why do you say they are permanent? Q: In addition to finding the injury is a permanent one, do you have an opinion, to a reasonable degree of medical certainty, as to whether or not she will ever be able to return to work? Q: What is the basis for your opinion? A: She can’t work because her herniated disc prevents her from sitting. However, she will require a lifetime of physical therapy— Q: Permit me to interrupt you for a second. Why does that herniated disc prevent her from sitting down to work? With an expert, as with your client or any other witness, you can exercise control while staying polite and keeping the flow of the examination going smoothly. Even though your witnesses on direct are generally friendly and cooperative, it is still an important skill to be able to maintain control over them.
Cross-Examination Although maintaining control is important on direct examination, it is critical on cross. Witnesses who are adverse generally have an axe to grind and can hurt your case if given the opportunity. The key is to never allow them the opportunity. Just as non-leading questions are the rule on direct, leading questions define cross. Leading questions are those that contain within them the answer, questions that suggest the answer, and questions that call for a yes or no answer. When asking a leading question, state a fact and get the witness to agree with it. Q: You are the defendant in this case, true? Q: On the day of this incident you were driving a truck, correct? Q: That truck was quite heavy, right? Q: As a matter of fact, it weighed over 32,000 pounds, didn’t it? When cross-examining a witness, you are basically making a summation to the jury, and getting the witness to agree with you. There is not much wiggle room when the questions are leading, tight and suggestive. However, it is just as important to pay attention to the witness’ answers and not be tied to a script. You must be able to distinguish answers that are responsive, answers that are unresponsive, and answers that are in fact responsive, yet add gratuitous information. Q: You are the defendant in this case, true? A: Yes, but someone served me in the middle of the night. Q: On the day of the incident you were driving a truck, correct? A: On the day of the accident it was raining real hard and impossible to see. Q: That truck was heavy, wasn’t it? A: Not as heavy as a lot of rigs on the road that day. Q: As a matter of fact, that truck weighed over 32,000 pounds, true? A: I didn’t have a scale. You can follow your script, ignore the answers, continue with your notes and lose the case. A better way, however, would be to pay attention to the witness and demand responsive answers.
Here is one way that examination could go: Q: You are the defendant in this case, true? A: Yes, but someone served me in the middle of the night. Q: I didn’t ask you when you were served, but there is in fact no question that you were served, correct? A: Yes. Q: And you are the defendant in this case, true? A: True. Q: On the day of the accident, you were driving a truck, correct? A: On the day of the accident it was raining real hard and impossible to see. Q: Sir, my question was simple: on the day of the accident you were driving a truck, correct? A: Correct. Q: And because it was raining real hard, you had to exercise caution, true? A: True. Q: Because when it rains hard, it makes visibility more difficult, true? Q: And as a result you have to be even more careful than usual, right? A: Right. Q: And you, Sir, as a professional truck driver, had an obligation to keep a proper lookout, correct? A: Correct. Q: And to maintain safe distance from the vehicle in front of you, true? A: True. Q: That truck was heavy, wasn’t it? A: Not as heavy as a lot of rigs on the road. Q: I’m not asking you about other rigs, Sir, I am specifically asking about yours: You’d agree with me that the truck you were driving was heavy? A: What do you mean by heavy? Q: Sir, your truck weighed over 32,000 pounds, true? A: I didn’t have a scale. Q: But you did have an owner’s manual, didn’t you? A: Yes. Q: And you also had a side door, right? A: Right. Q: And both the owner’s manual and the side door indicated that the truck weighed 32,000 pounds, correct? A: Yes. Q: And you would admit, wouldn’t you, that the front of your truck struck the back of my client’s vehicle? A: Yes. Q: No doubt about it, right? A: Right. There are other ways to procure responsive answers on cross examination. One way is to simply repeat the same question over and over again until you get a responsive answer. Attorney Journal Orange County | Volume 133, 2017 29
Q: Doctor, you would agree with me that my client has a scar on his face, true? A: It is not very big. Q: Doctor, you would agree with me that my client has a scar on his face, true? A: I can hardly see it. Q: Doctor, you could agree that my client has a scar on his face? A: Yes. Another way is to add preambles to your questions such as “that wasn’t my question, Sir;” “my question was simple;” or “Sir, that is all well and good, but mine was a different question.” Q: Dr. Smith, your examination of my client took less than 15 minutes, true? A: My examination was thorough, and I did all I had to do. Q: Sir, that wasn’t my question. My question was specific: Your examination of my client took less than 15 minutes, true? A: It took close to 15 minutes. Q: And by close to 15 minutes you mean less than 15 minutes, correct? A: Yes. Yet another way to get responsive answers is by getting the court’s assistance. However, this should be done sparingly. This should only be done after a pattern of abuse by the witness, and only if you know it will get assistance from the court. Q: Dr. Smith, you would agree that the report of the radiologist in evidence shows a herniated disc at L4-L5, right?
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A: Yes, it does, but it also shows a severely degenerated disc, with arthritic changes that took years to develop. Q: My question was, the report shows a herniated disc, true? A: It does, but I’m telling you it is not causally related to the accident. It is from years of degeneration. Q: Sir, the radiologist called it a herniated disc at L4-L5, true? A: Yes, but it has nothing to do with the accident. Q: Your honor, I move to strike everything the doctor said after “yes” as unresponsive. The court: Granted. Controlling witnesses is a very important part of trial practice: During direct examination, by asking non-leading, open-ended questions that call for narrative responses, sprinkled with appropriate uses of transitional questions; during cross-examination, by asking tight, leading questions that contain within them the answer and simple call for agreement by the witness. Most importantly, on both direct and cross, pay careful attention to the answers before thinking of your next questions, and always obtain responsive answers. n Ben Rubinowitz is a partner at Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz and an adjust professor at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. They can be reached at firstname.lastname@example.org and email@example.com. Richard Steigman, a partner at Gair, assisted in the preparation of this article.
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