The Business of Law – Marketing and Business for Enterprising Attorneys

Our friends over at the American Association for Justice announced last week that they are wading into the medical malpractice debate in a big way. As you know, the argument that’s been made by countless pundits is that tort reform in general, and medical malpractice reform in particular would lead to huge cost savings for our health care system. I’ll have a lot more to say about that myth in the coming days, but sufficed to say, it’s a ridiculous assertion, as numerous economists have made clear.

AAJ has decided not to let the myths go unchallenged. They have launched a new advertising and advocacy campaign to make sure people understand the importance of civil justice in preventing medical malpractice. The campaign is focused on one very troubling statistic. 98,000 people die every year from preventable error. It’s such an important stat that the AAJ is using the website: www.98000reasons.org as the home base for the campaign.

The TV and print ads which are running across the country make the point that 98,000 deaths is “like two 737s crashing every day for a whole year.”

Pretty powerful stuff. If you agree that tort reform is not the answer to cutting health care costs, and that the civil justice system is an important safety net for protecting patients, then please get involved now in the AAJ’s campaign.

Kudos to our very own Dave Weineke Director of Digital Marketing at Sokolove Law who will be leading an upcoming discussion on lead generation at a conference organized by Marketing Sherpa.

Dave is also featured in a recent article on the site.  Dave, who helps Sokolove stay at the cutting edge of digital marketing offers his insight into how Sokolove manages its databases and CRM to produce customized email messages that improve subscriber engagement.

Dave will also be talking about lead generation in a digital age on BlogTalk Radio on September 24th, and speaking to the Direct Marketing Association in Palo Alto on September 25th about the Four Emerging Pillars of Digital Marketing.

While we do a lot to promote that Sokolove is the leader in marketing legal services, we often don’t get a chance to share the spotlight with the people behind the scenes. We’re happy to see Dave get a shout out for the great work he’s doing!!  His advice is spot on. Ask him about it.

Sokolove Law has never been accused of being a white shoe law firm.  Far from it.  In fact we like to think of ourselves as entrepreneurs who are pushing the envelope of providing legal services.

Of course I’m talking about nurses.  We have a team of them at Sokolove and they are extremely valuable to our business.

As one of the largest marketers of legal services in the country, we deal with a huge number of incoming calls and web submissions from would-be clients.  Not surprisingly, a significant number of these cases are related to someone who has been injured in some way—perhaps on the job, or in their car; maybe they’ve been the victim medical malpractice, or they’ve become sick because they were exposed to some kind of chemical in their home or their business.

Our job, for our clients and co-counsel firms is to accurately vet those cases, figure out which leads have good claims ready to be litigated, and then refer those cases to our co-counsel so our clients can get compensation for their injuries. To do that, to truly sift the good cases from the weak (or worse frivolous) ones we have to know a lot about medicine.  That’s where our nurses come in.

Our nurses’ desk is staffed by a team of seven nurses who handle incoming inquiries from would-be clients seven days a week.  They are talented professionals who are not only expert at analyzing cases and determining whether there might be liability.  But they also comfort our prospective clients, and help them to cope with their injuries.

For our co-counsel firms this nursing exercise is vital in terms of separating the good leads from the bad.  Too many of our competitors simply churn leads without really doing the diligence to understand the client’s potential claim.  Whether it’s a birth injury case, or medical malpractice, or environmental exposure such as asbestos, our nurses are a critical part of the Sokolove team that is committed to delivering a higher quality solution for our partners.

In fact, Nursing Spectrum, recently profiled Kathy McGinn who manages our nurses’ desk.  Click here to check out the piece.  And next time someone says white shoe law firm, you’ll can share with them a different perception of the term.

Here’s an amazing statistic I recently came across. According to the U.S. Department of Labor, in one year alone, they received 1,983 complaints of employees treated unfairly under the Family and Medical Leave Act (FMLA). Of those, 1,087 were found to be true violations resulting in $1.5 million in back wages for the workers. The primary violation found was that people who tried to take leave for family reasons were wrongfully terminated.

At Sokolove Law, we talk about our mission of providing access to justice and helping those who have no chance in our legal system. These are the people we’re talking about. Someone who loses their job simply because their employer refuses to grant them leave to care for a sick family member, or support a pregnant spouse.

But they’re also the kinds of cases that allow us to do well while doing good. The reason is that the FMLA is pretty clear cut, and yet as we’ve seen people violate it all the time. When they do, we and our co-counsel firms will be there.

The FMLA permits eligible employees to take up to a total of 12 work weeks of unpaid leave during any 12 month period for one or more of the following reasons:

• Birth and care of a newborn child of the employee
• Placement with the employee of a child for adoption or foster care
• Care of a spouse, child or parent with a serious health condition
• Serious health condition of the employee

In January 2009, the FMLA was amended to include employees who take a leave because of any qualifying exigency relating to the active duty or call to active duty of a spouse, child or parent.

Employers are required to continue to provide benefits and to reinstate the employee to their old job or an equivalent one when they return.

Unfortunately employers either don’t grant the leave, or fail to reinstate the employee. In the worst circumstances, they actually terminate the employee allegedly for “cause” which is very often not the case.

Under the FMLA, employees who prevail in court can collect actual damages for lost wages, benefits and expenses plus interest. In addition the can collect lawyer fees and equitable relief (meaning reinstatement to their job). FMLA even allows parties to collect liquidated (double) damages unless the defendant can prove they acted in good faith.

Another medical device case type that we’ve been watching has to do with Calaxo Osteonconductive Interference Screws, also known simply as the Calaxo Screw. These devices are used to repair knee ligaments and promote bone growth most often after ACL repair or reconstruction. ACL injuries are common in many athletics including football, soccer, ice hockey and downhill skiing.

The Calaxo Screw was supposed to be an innovative product because it’s made of a bioabsorbably polymer, so that unlike conventional screws used to reattach ligaments, it could be reabsorbed by the body 12 months after surgery.

The problem is that the Calaxo Screw has been linked to graft failure and premature material degeneration. Symptoms include swelling, fluid build-up around the knee redness around the joint, loss of flexibility in the knee area, screw fragmentation, and localized joint pain. These side effects often require additional surgery to remove dead or infected tissue.

From 2006 to 2009, more than 300 adverse effects related to Calaxo Screws were reported to the FDA, and in August 2007, the manufacturer Smith & Nephew voluntarily recalled 68,000 units implanted worldwide. Some of the product was also recalled in October 2007 in the U.K.

There have been several suits filed alleging failure to warn patients about possible side effects. We’ll be monitoring the case, and may engage in a marketing effort targeting potential litigants who may have been given one of these screwed up screws as part of their surgery.

I’m catching up on some of the news that broke over the summer, and one of the interesting stories was about bioengineered proteins usined during spinal fusion procedures to correct neck pain. These substances sold by either Medtronic or Stryker are not technically approved for neck procedures, but Doctor’s are not prevented from using them for that. A new study however suggests that patients whose treatment included the proteins had more complications than patients who didn’t.

According to a study in the Journal of the American Medical Association, (subscription required) researchers at Boston’s Brigham and Women’s Hospital found that patients who received the proteins during treatment for lower or middle back pain had increased complications after the procedures, and in some cases those complications may have been underreported because they did not occur until after patients left the hospital. Check out a very good New York Times story on the subject here.

While the study is fairly new, we at Sokolove have been following the complications associated with off-label use of these proteins going back more than a year. In fact, the FDA has received dozens of complaints over the past four years of neck swelling and breathing problems in patients given the product for neck pain.

Last July the problem became so accute that the FDA issued a Public Health Notificiation indicating the life-threatening complications associated with the proteins. In December and January, the first lawsuits were filed.

As ever, we’re monitoring the situation and looking for affiliates who are interested in potential leads in this area. If you’re interested in partnering with us on marketing efforts, shoot me a note.

Valerie Fontaine and Roberta Kass, two legal search consultants with Seltzer Fontaine Beckwith, have a great piece on crafting a business plan for Attorneys over a Law 360 (subscription required but well worth it).

In the midst of economic turmoil, Fontaine and Kass direct their piece to both senior attorneys who are looking to join firms as well as junior attorneys looking to position themselves for the future. The bottom line, according to them:

“Having your own client base is an essential element to taking control of your destiny, which can mean having the widest possible selection of job offers, starting your own firm or negotiating a better position within your current firm.”

To accomplish this, the author’s argue attorneys need to create business growth plans for themselves, just like businesses do. Lawyers should identify targets, outline specific strategies (within the parameters of ethical requirements of course) and also recognize the costs of those business development activities.

They’re both right of course, and their point underscores something I’ve been saying for quite some time: if the turmoil in the legal industry has taught us anything, it’s that to be sustainable, our law firms need to behave more like businesses.

At Sokolove law, we try to look at every aspect of our business and really hone in on ROI. Where are we seeing demands from clients, and what types of cases are emerging as new opportunities? Finally, how do we deploy human and financial resources to meet that demand? Click here to listen to what our affiliates say about working with us.

This August a group of our co-counsel joined Sokolove Law to play some baseball at Boston’s historic Fenway Park. It gave us the opportunity to put business aside and have some fun. Here are some highlights!

To put this blog post together, I read some material, thought about my reaction to it, sat down and spent some time writing down my point of view.  I edited it, and asked my assistant to proofread it for me, then I sent it out the door (or in this case, posted it).

All told, that whole process took me about an hour plus maybe fifteen minutes by my secretary for proofing and editing.

If I were a lawyer at a big firm, this blog post would have cost my client as much as $400.  That’s a little crazy and I’m not the only one who thinks so.

Paul Lippe the founder of Legal OnRamp writing at Am Law Daily enthusiastically endorses the death of the billable hour.  Referencing a recent Wall Street Journal story (subscription required) about the number of clients who are starting to demand fee for service contracts.

Lippe is a smart guy, and he offers  a nice “on the one hand, on the other” analysis while ultimately deciding that the death of the billable hour will likely lead to an increase in value for the firm and the client.

I’m a little more harsh.  I’ll say that the death of the billable hour for lawyers is long overdue and totally obvious.  The billable hour is a disservice to lawyers, clients and the interest of justice.

(continue reading…)

Larry Ribstein is with me!!  A few weeks ago, I laid out the case for outside ownership of law firms, arguing that it was good for firms, and good for access to justice.  Well according to the ABA Journal, University of Illinois law professor Larry Ribstein told the Philadelphia Inquirer that big law firms need a more creative approach to their current woes—one that might include selling shares to outside owners.

Quoting the ABA Journal:

He says changes in legal ethics rules to allow outsiders to own shares in law firms would give firms access to lower-cost financing and the freedom to expand in ways that can serve lower-paying clients. “Ribstein elaborates in a draft paper (PDF) posted on Ideoblog. Law firms are business entities, he argues, but ethics regulations regard them “as the worker cooperatives they once were.”

I was, as I often am…more blunt.  We run our law firms right as if they were country clubs, with the partners gathering around to decide weighty issues and determine what direction to take the business in.

That’s insane.  Let’s run our law firms like businesses they are.  Let’s have the lawyers do excellent client work, which is of course what they do best, and let’s have the investors and professional managers run the business, manage cost, allocate resources, and provide strategic direction…you know the stuff business people do well.