The Legal Intelligencer Blog

8 Tips to Write Press Releases That Work

By Sarah Larson
Special to the Legal

Growing business in the legal industry isn’t as simple as hanging up a shingle and waiting for prospective clients to call or email. The industry already is crowded, and tens of thousands of law school graduates join the field each year.

How do law firms rise above the competition? There’s no substitute for being good at what you do, of course, but letting people know how good you are is crucial, and writing a decent press release can help spread the word.

Like every profession, journalism has its own rules, some written but many not. During nearly 20 years on that side of the communications business, I saw far too many press releases announcing otherwise important news written and sent by someone who clearly didn’t do their homework.

Here are some tips to ensure the next press release you send doesn’t make the reporter want to hit the delete button.

1. Start with news. Was your firm honored with an award? Was one of your partners elected to a bar association post? Did you hire a new attorney? Sponsor a charitable event? All of these accomplishments are worthy of announcing in a press release.
2. Commentary topics. Write about topics that are already in the news, so your releases ride the coattails of the news cycle. For ideas, review popular search topics at www.google/trends or check out what hashtags are trending on Twitter.
3. Follow AP style. It’s not called “the journalist’s bible” for nothing. Most news outlets in the United States adhere to the Associated Press Stylebook, and violations of style stand out like red flags to seasoned journalists. For example, your firm isn’t “number one,” it’s No. 1. Some months are abbreviated in a full date (Nov. 6, 2013) but not when written (the conference is scheduled for November). It’s worth investing $20 in a hard copy of the stylebook for reference, though online access also is available.
4. Length. Shorter is better. Keep each release to 400 to 500 words. People’s attention spans are notoriously short.
5. Legalese. Most of your audience, including the prospective clients you want to reach, aren’t as well versed in the law as you are. Explain or avoid jargon completely. Instead of saying, “The U.S. Supreme Court has granted certiorari,” say, “The U.S. Supreme Court has agreed to review…”
6. Headlines. A good headline is critical. Keep them short (10 words max). Use active verbs–announces, advises, etc. When possible, incorporate your name or phrases people might type in when searching, such as “Philadelphia malpractice attorney.”
7. Keywords. Incorporate terms that people might be searching for to help them find you, but don’t go overboard. Make sure the keywords are included in the most important spots–headline, summary and the first two paragraphs.
8. Visuals. OK, this one isn’t about writing, per se, but it will help your writing reach more people. Include a visual, such as a headshot of you, a photo from the office or your logo with each release. Words get more attention when coupled with images.

Anyone who says writing is easy isn’t working hard enough at it. These tips, though, will help you get started the next time your firm does something amazing that you want to share with the world.

Sarah Larson is vice president of public relations at Furia Rubel Communications Inc., an integrated marketing and public relations agency with a niche in legal marketing, where she oversees public relations, content and social media. She spent nearly 20 years as a journalist before switching to the agency side. Find her on LinkedIn, follow the agency on Twitter or visit www.furiarubel.com to learn more.

PAJ Asks to Reargue Restatement Case

By Max Mitchell
Of the Legal Staff

An amicus curiae in a high-profile products liability case has asked the state Supreme Court to hear its separate arguments in the case even though the justices heard from both the plaintiffs and defendant during an oral argument session more than a month ago.

The Pennsylvania Association for Justice made the unprecedented request of the high court in Tincher v. Omega Flex on Nov. 25. Through its application for relief, the PAJ argued that counsel for the plaintiffs had conflicting interests and failed to stick to the positions outlined in its appellate brief.

The case is believed to be the test case for whether the courts will adopt what some see as the more defense-friendly Restatement (Third) of Torts, or continue using the Restatement (Second) of Torts, which is thought to be more favorable to plaintiffs.

Writing the brief on behalf of the PAJ, Clifford A. Rieders, of Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmann, contended that Cozen O’Connor, which was counsel for the Tinchers, was conflicted because the firm had argued for the application of the Third Restatement in previous cases.

“The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by amicus curiae PAJ,” Rieders said in the brief. “A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this court.”

The brief further contended that attorney Mark Utke, who argued the case for the plaintiffs before the high court, strayed from the appellate brief when he conceded during the session that the court did not need to uphold its 1977 ruling in Azzarello v. Black Brothers, which upheld the Second Restatement.

In Azzarello, the court found that the phrase "unreasonably dangerous" in the Second Restatement did not refer to issues of negligence and determined that considerations of negligence are inappropriate in a strict liability case. Plaintiffs and defense counsel agreed during oral arguments that Azzarello went too far in its attempt to protect plaintiffs, and should be reversed.

“The impact of a court decision reversing Azzarello or abandoning the Restatement Second Section 402A is so significant that it should not be determined based upon a subrogation case essentially ‘owned’ by [an] insurance company and argued by one who is not committed to consumer protection policies,” Rieders said.

Tincher involves a couple that sued the flexible natural-gas piping company Omega Flex because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.

According to the PAJ brief, USAA Insurance Co. compensated the Tinchers for their damages and brought the suit seeking reimbursement from Omega Flex.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

Can Landlords Discriminate Against Criminal Tenants?

By James W. Cushing
Special to the Legal

Most people recoil at the idea of discriminating against people and probably just as many presume that existing laws prohibit discrimination. What many do not realize is that the laws against discrimination, for the most part, only cover those in so-called “protected classes.” The typical protected classes are, as one may expect, based on race, gender, national origin, religion, age (over 40), and disability. Needless to say, it is unlawful for a landlord to discriminate against prospective tenants on the basis of any of these. Aside from these protected classes, can a landlord discriminate in choosing his or her tenants on the basis of other reasons?

Obviously, a landlord generally wants to create a safe environment for his or her tenants and the others who live in the vicinity of the landlord’s property. Although seemingly responsible, may a landlord attempt to achieve the goal of safety by discriminating against potential tenants on the basis of their criminal records? As criminals or former criminals are not among those within the protected classes described above, discrimination against people with criminal records is legal.

Of course, if a landlord elects to establish checking potential tenants’ criminal backgrounds as part of his or her vetting process, he or she must do so for all applicants. In other words, the landlord cannot check the criminal backgrounds of black applicants while opting not to check the criminal backgrounds of white applicants.

Finally, it should be noted that the Department of Housing and Urban Development has established a new rule regarding policies that have disparate discriminatory effect on a protected class. A landlord will be in violation of the Fair Housing Act if he or she enacts a policy that has a disparate discriminatory impact on a protected class, even if that policy is seemingly lawful on its face. For example, if a landlord enacted a policy that prohibited all tenants from covering their faces when entering the building, it might be considered a violation of the Fair Housing Act because it had a disparate discriminatory effect on Muslims.

In sum, landlords, at this point, may legally use criminal backgrounds to exclude applicants as part of their vetting process when choosing from potential tenants as long as they apply the same standards to all of their applicants, as discrimination against former criminals is not yet an unlawful form of discrimination.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia. 

Mulgrew's Co-Defendant Sentenced for Fraud Charges

By Saranac Hale Spencer
Of the Legal Staff

Lorraine Dispaldo, co-defendant of suspended Philadelphia Traffic Court Judge Robert Mulgrew, was sentenced today in federal court to 18 months in prison.

Dispaldo had pleaded guilty in April to charges related to a scheme to defraud the state Department of Community and Economic Development out of state grant funds awarded to nonprofits.

A former administrative aide to state Representative Bill Keller, D-Philadelphia, Dispaldo had been charged along with Mulgrew in allegedly steering to improper purposes much of the $397,000 awarded to Community to Police Communications to purchase communications equipment for the police as well as to protect law enforcement officers by purchasing materials to secure vacant lots and buildings, as well as $460,000 awarded to the Friends of Dickinson Square to maintain the square and the surrounding area.

“Dispaldo helped orchestrate the scheme to fraudulently receive and misuse Pennsylvania state grant funds awarded to nonprofit groups,” according to a press release issued today by the U.S. Attorney’s Office. Paul L. Gray, of that office, prosecuted the case, according to the release.

Catherine M. Recker of Welsh & Recker represented Dispaldo.

In addition to the prison term, Dispaldo was ordered to pay a special assessment of $3,600 and restitution of $120,865 by U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania.

Mulgrew has yet to be sentenced.

Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.

The Trouble With Yes and No Answers

By Melissa M. Gomez
Special to the Legal

I have heard it said that there are only four good answers a witness can give in a deposition: “Yes,” “No,” “I don’t know,” and “I don’t remember.” I wholeheartedly disagree with this strategy.

Instructing a witness essentially not to provide any real answers to adverse questions can backfire in multiple ways, not the least of which is the fact that this advice essentially lets opposing counsel testify for our witnesses on the record. Think of it this way: When you read a deposition and the answers only confirm or deny the question, the content of that deposition is coming from the question. The question becomes the evidence. The wording of the question comes from the other side.

So the conundrum is clear: How do we get our witnesses to answer a question and nothing but the question, but still ensure that the language on the record comes from the right side of the case? The answer is one of balance.

I was recently working with some witnesses in a commercial case involving the privatization of a publicly traded company. The witnesses were very intelligent, high-powered people and they were fish out of water in the context of giving testimony. The group of them fell relatively evenly on the poles of the testimony spectrum. Specifically, some would flatly say yes to any question that had an element of truth in them, even if the context of the question was completely off base. Others went off on tangents, engaging in debates and working hard to convince opposing counsel he was wrong. I had my work cut out for me.

While the testifying tendencies of these witnesses were disparate, the foundation behind the preparation was the same. Specifically, there is a balance that every witness needs to understand how to strike. That balance is to find the sweet spot between one-word answers and dissertations of gratuitous information.

The key to this balance is threefold: First, understand the difference between answering and explaining. Second, know that rules are meant to be broken. Third, pick your battles. A witness who is grounded in these three things is on the road to being well prepared.

The first point: Understanding the difference between answering and explaining. There is a difference between adding context and providing an explanation. The first is helpful during cross-examination or deposition; the second is not. Take the following question, for example, in the investment case I referred to:

Question: “Would you agree with me that despite the fact that you were more profitable in 2008 than 2007, you represented to investors a poorer financial report in 2008?”

Explanation: “Well, in 2008, the United States was facing financial difficulties as a result of a crash in the real estate market. The result of that crash affected the entire economy of the country, including the businesses that resided within it…”

Answer: “While we did bring in more profits in 2008 than 2007, that increased profitability was not able to overcome the economic crash of that year; therefore, we did have a poorer financial report, which we communicated to the investors.”

Both answers tell the correct story. But only one begins and ends with an answer to the question as opposed to telling what sounds like an evasive side story.

The second point: Rules are meant to be broken. I have noticed that there are times when I give advice to witnesses and they, so eager for the help, take that advice to be absolute and applicable in every situation. For example, as I typically do, I instructed a witness in a different case to make sure to look at his jury in efforts to develop rapport. During practice cross, he didn’t even glance toward the attorney asking him questions. Instead, he kept staring at me, as I was filling in as his mock juror. I had to explain to him that addressing the jurors does not mean ignoring the questioner or staring the jury down. If it doesn’t feel natural, it doesn’t look natural.

No strategy or rule is absolute. They are tools to be pulled out of the toolbox when they apply. Good preparation is helping witnesses use their good judgment to know when to use a strategy and when to let it go.

Which brings us to the third point: Know when to choose your battles. It can be unhelpful and awkward to restate every single question in a cross-examination or deposition. So, when do you break the rule of making sure the language on the record is your own? When the correct answer really is yes or no or when the subject matter of the question is simply not an important topic to the case.

I have found that with the proper contextual application, most witnesses can understand the middle ground and apply it. In our commercial case described above, this framework brought the witnesses on both ends of the spectrum into that helpful sweet spot. They did a great job. And their testimony stood on its own.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at [email protected] or call 215-292-7956.

Fox Rothschild Re-Elects Leadership

By Zack Needles
Of the Legal Staff

Philadelphia-based Fox Rothschild has re-elected its two co-chairs, as well as its firmwide managing partner, to new three-year terms, effective April 1, 2014.

Phillip E. Griffin and Abraham C. Reich will continue as co-chairs of the firm and Mark L. Silow will continue as its managing partner.

Over the past three years, the firm has grown from 475 lawyers and 15 offices in 2010 to its current roster of nearly 600 attorneys in 19 offices.

In its most recent fiscal year, which ended in March, the firm grew its revenue by nearly 8 percent, from about $257 million to $277 million, and opened new offices in Denver, Coral Gables, Fla., and Morristown, N.J.

Silow told The Legal earlier this year that the firm felt it “had a really solid year in a market and economy that still continues to be challenging.”

Looking forward, Silow said the firm would focus its attention on growing its existing presence in the Denver, Miami and New York markets.

Silow said the firm's goal is to increase the bench depth of each one of its offices until they can all be characterized as "full-service."

But Silow said Fox Rothschild also has its eye on several regions of the country where it has yet to put down roots.

“We'd like to be in a major city in Texas, the Pacific Northwest, the upper Midwest and New England," Silow said.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

Proponents of Marrying Procurement and Legal Services

By Gina Passarella
Of the Legal Staff

In Tuesday’s Legal, I wrote about the interplay between procurement and legal departments and whether the two could work together in hiring outside counsel. The GCs I spoke to were skeptical at best about the idea, while a consultant to law departments praised the concept but said he found it lacking in the marketplace.

Since the article ran, we have received some feedback from those who are proponents of procurement taking a more active role in the purchase of outside legal services and say it’s already happening with increasing frequency. I thought I’d share some of their points.

Silvia Hodges Silverstein, a Columbia Law School lecturer who studies procurement’s influence on the purchase of legal services, said more and more GCs are not even asked "whether" they want to work with procurement—they just have to, as it is a top management mandate.

“GCs are often former law firm partners and are hardly the ones wanting to rock the boat,” Silverstein said. “Like anyone being forced to give up control over their budget and choice, they resist that development.”

Silverstein said the market isn’t the same as it was a decade ago, the time period during which those who spoke to The Legal first considered the legal and procurement departments working together. She said more data is available. It’s no longer unknown how much firms charge or how long they take for matters, for example.

“Law firms not being able to put a price tag on their services or legal departments not knowing how much they pay today shows negligence,” Silverstein said.

While it might not be the corporate procurement department selecting outside counsel, Silverstein said hardly any sizable legal department operates without a legal operations department staffed with quantitative business people helping the GCs make good business decisions.

Silverstein said paying less doesn’t equate to lower quality in a world when law firms are embracing project management and alternative fee arrangements.

Silverstein took issue with the argument that legal services are too unique to be included in a typical procurement process.

“My legal procurement research last year showed that about 20 percent of legal procurement professionals are, in fact, lawyers,” Silverstein said. “So the argument that the widget and pencil-ordering department ‘dares’ to buy legal services simply doesn't hold true.”

Silverstein pointed to GlaxoSmithKline’s use of online reverse auctions for any matter worth more than $250,000 as an example of how some legal departments have taken procurement beyond commodity work to other matters as well.

In the end, Silverstein echoed a sentiment the GCs had—that procurement can’t take over the entire process of selecting outside counsel.

“It is not procurement's job to pick the suppliers,” Silverstein said. “It is procurement's job to improve the process of sourcing and make better/more objective choices for the company on a total cost basis, not on the lowest price.”

Dave Sampsell’s company, BanyanRFP, looked to address some of the same concerns GCs expressed regarding their argument that legal services aren’t widgets that can be run through a sourcing department.

The Minneapolis-based company provides a cloud-based RFP application for legal departments. Sampsell said he often hears from GCs that they are hesitant to work with procurement departments or don’t like the applications procurement departments use to purchase legal services. Sampsell said that, in constructing his RFP process, he took into account that there needs to be a qualitative as well as quantitative aspect to purchasing legal services.

Gina Passarella can be reached at [email protected] or 215-557-2494. Follow her on Twitter @gpassarellaTLI.

Sticky Fingers: Minimizing Expense Report Fraud

By B.J. Hoffman
Special to the Legal

As outlined in a recent study by the Association of Certified Fraud Examiners, businesses typically lose 5 percent of annual revenues to fraud, waste and abuse. Fraud comes in many shapes and sizes, ranging from fictitious vendor schemes to “ghost” employees and inventory that perpetually falls off the back of company trucks.

Perhaps the most common schemes, though, are the smallish, “drip…drip...drip” losses from inflated employee expense reimbursements. Though the individual dollar amounts of these abuses tend to be low, often the losses are widespread within a company and occur over extended time periods. Accordingly, company losses grow to material levels.

Expense reimbursement schemes can be grouped into several categories:

• Personal expenses mischaracterized as business-related: Examples include personal lunches that are mischaracterized as business-related, or auto reimbursements for personal trips.
• Fictitious expenses: Reimbursement for expenditures that are never made by the employee. For instance, an employee who has access to a stack of blank toll receipts, or who writes a personal check for a business expense, later voids the check, and submits a photocopy of the original check to the employer for reimbursement.
• Overstated expenses: Legitimate business expenses incurred by an employee are overstated by altering supporting documentation. Also possible is inflation of expenses, where an employee is able to submit receipts for one level of travel, but where actual travel is at a less expensive rate (the classic example is reimbursement for business class airfare, while actually flying coach).
• Multiple reimbursements for the same expense: The employee is reimbursed more than once for a single business expense. An employee who is reimbursed for airfare based on a booked itinerary report, and then requests reimbursement based upon a credit card charge statement. Employee expense reports receive less scrutiny from employers, as amounts are often low. Also, employers want to trust employees, and don’t ordinarily want to disrupt workplace culture by imposing police-state-like rules. However, this trust is what allows for losses to accumulate.

Employers and auditors should be on the lookout for several indicators of potential expense reimbursement schemes, including:

• Expense reports that lack supporting documentation or which ordinarily are not subject to any review.
• Employee reimbursements that exceed annually budgeted amounts.
• Supporting expense documentation that is composed of photocopies, rather than original invoices.
• Submission for reimbursement of dated/old expenses.
• Reimbursement requests for “cash” expenses.
• Multiple expenses in the same or similar dollar denominations, or for rounded dollar amounts, or for total amounts that fall just shy of a predetermined threshold for further employer review.

Of course, it is preferable to devote resources to discouraging employees from attempting to falsify expense reports, rather than trying to ferret out individual fictitious expenses. Accordingly, policies should be developed and communicated to employees that outline acceptable expense reimbursement procedures, such as:

• Requiring detailed descriptions on expense reports, including the expense’s time, date, individuals involved and purpose.
• Mandating that original supporting invoices (not copies) be attached to the report.
• Outlining limitations on elapsed time under which an expense will be reimbursed (i.e. monthly).
• Listing specific types of reimbursements that are (or are not) reimbursable, and at what rates.

All expense reports should be first reviewed by the employee’s direct supervisor, as he or she has a deep understanding of the employee’s daily activities and would be the most knowledgeable party in determining whether an expense is reasonable.

Development and adoption of clear policies and procedures regarding employee expense reports will serve to limit losses to fraud, waste and abuse, and such savings can be highly material over time.

B.J. Hoffman is a certified public accountant and certified fraud examiner for Citrin Cooperman, an accounting, tax and business consulting firm. A partner in the Philadelphia office, he provides clients with a mix of audit, tax and litigation support services. He often works with closely held entities in a variety of industries, including professional service firms and real estate enterprises. He can be reached at [email protected] or 215-545-4800.

Pinterest’s Deal With Getty to Address Infringement Concerns

By Ashley Kenney Shea
Special to the Legal

When social networking site Pinterest first gained popularity, IP lawyers everywhere raised their eyebrows at the copyright infringement issues attendant with the site. In a nutshell, when users pin content that they do not own on Pinterest, Pinterest makes a copy of the full-size image to its servers. This action entails reproducing the image, often without the permission of the content owner, and with possible copyright infringement. Pinterest is distinct in this way from other social media websites like Facebook and Tumblr, where users generally post content that they own or link directly to third-party sources.

Pinterest has largely avoided copyright problems to date because many content owners find that its value as a promotional tool outweighs the negative effects of the reproductions. For most content owners, Pinterest pins do not result in a reduction of the market for the content; rather, the pins drive traffic to the content owner’s website, resulting in more hits, sales, followers, etc. According to social media analytics company Shareaholic, Pinterest is the second-largest referrer of traffic on the Internet after Facebook, with referrals to online publishers increasing by 66.52 percent from September 2012 to September 2013.

However, potential for liability has lingered both for Pinterest as a facilitator for mass infringement and also for users, since Pinterest’s terms purport to shift all responsibility for infringement to its users. (The terms state that users “assume all of the risk” of “pinning” content, and must “indemnify Pinterest in the event of a lawsuit,” even though many users are likely unaware of this fact.)

Now we may be seeing Pinterest begin to address some of its copyright issues. The company recently struck a licensing deal with Getty Images, the stock photo agency that owns the rights to approximately 80 million images, for an untold amount, in exchange for an agreement by Getty not to sue for infringement for use of its images on Pinterest. Under the deal, Getty receives photo credits on all images pinned on Pinterest boards as well as a link back to its site. Getty will use image recognition technology to identify Getty images on Pinterest, and update those photos with metadata that includes the time and location of the photo, the photographer, a caption, an image ID and licensing information. The licensing fee from Pinterest will be distributed between Getty and Getty’s photographers and illustrators. This benefits Getty, which unlike consumer-oriented websites, gains little value from Pinterest traffic.

Pinterest will benefit to some extent from the deal as well. The Getty metadata can be used to suggest more pins to Pinterest users for similar images. In turn, users will likely spend more time “pinning” on Pinterest, resulting in a network of linked data that can be more easily monetized by the site for advertisers. What about the users? They will enjoy a reduced risk of liability and more information about the images they pin—a win-win.

Griesing Law advises businesses and nonprofit organizations on intellectual property and new media matters. For more information, please contact Dina Leytes ([email protected] or 215-732-3924), Kathryn Goldstein Legge ([email protected] or 215-618-3722) or Ashley Kenney Shea ([email protected] or 215-501-7843).

Martin LLC Raises Money for ACS

By Alexa Woronowicz
Of the Legal Staff

More than 60 employees and family members from Martin LLC came together for the American Cancer Society’s “Making Strides Against Breast Cancer” walk Oct. 19 in Fairmount Park in Philadelphia, raising more than $1,000 for the cause.

To date, 2,535 participants raised $155,137 at the event.

Donations are still being accepted at makingstrides.acsevents.org.