Berbay's Blog: Marketing for law firms, engineers, CPAs, architects and other professional services

“Litigation follows the wealth,” commented the Hon. Andrew Guilford on a panel of judges at the recent Los Angeles County Bar Association program, “New Patent Litigation Pilot Program in the Central District of California: What Every Patent Litigator Needs to Know.” Along with Judge Guilford, the Hon. Otis D. Wright, the Hon. George H. Wu, and the Hon. S. James Otero were the panelists at this well-attended and very engaging program.  Judge Guilford added that intellectual property (IP) reflects the economy’s future. He illustrated his point by noting that a few years ago, there was a lot of real estate litigation; then, there was financial-services litigation, and now there is IP litigation—so litigation follows the money and is definitely on the rise.

With an eye toward helping Central District judges handle this increase in IP cases— which represents about 4 percent of their dockets—as intelligently and expeditiously as possible, the District launched this patent litigation pilot program on September 19, 2011. Now, within 30 days of a case filing, judges can reassign newly filed cases to this panel if they involve a patent issue.

During the discussion, the judges acknowledged that they are not patent experts and not Federal Circuit judges. So, they need lawyers’ time and expertise to get them to the level of the proficiency in the federal system as they address IP litigation.

The panelists also noted that 18 districts have adopted local patent rules, and that 12 have adopted them within the last three years. Citing a Law360 article, Judge Otero commented that there is a lot of forum shopping because of the way the rules are structured in different districts. Currently, the Central District does not have local patent rules. When asked how many attorneys in the audience would like local patent rules in the Central District, a majority of the group raised their hands.

Additionally, the panel addressed the issue of damages and how judges act as gatekeepers in this regard. Because more cases settle before going to trial, attorneys have fewer opportunities to hone their cross-examination skills. The judges acknowledged that if attorneys were better at cross-examination, they’d be making points about damages and their value during the cross-exam. However, because lawyers are not as skilled in this area, the onus is increasingly on judges to lead the discourse. For instance, it is less up to judges to say that the discount rate you’re using is really ridiculous. Whereas they’re really thinking that recognizing and making this point is what a skilled attorney would do.

Judge Guilford pondered who was the best expert with respect to damages — an economist or a CPA.  In his view, selecting the expert is outcome determinative — as soon as the judge approves the expert, the case is done. He wants an expert who will call it right down the middle.  An audience member who was both an economist and CPA commented that an attorney experienced in cross-examining witnesses should draw out the story well enough so that the jury can make a decision.

The kind of experts Judge Wright prefers are true experts who have devoted their lives to that particular subject and published on the subject.  For example, mention a treatise at trial and bring in the author as the expert — that’s heavy duty credibility in his eyes. He eschews “hired guns” who will testify to whatever their paying clients want.

The judges concluded the forum by offering practice pointers from their perspective:

• Be brief. Consider how you can best communicate with the judge and jury. Build themes and coalesce and simplify messages.

• Retain trust. One panelist sees many attorneys lose a judge’s trust by overreaching or making outrageous claims. He emphasized how critical it is to protect one’s credibility. Judge Wu added that full disclosure is also part of credibility. For instance, if you lack information, acknowledge it.

• Be transparent.  Judge Otero described an attorney who impressed him when he said, “Here’s a brief and here’s the law that supports it, but I really want you to be aware there’s this one decision that goes against this.” Judge Otero said he has never forgotten that attorney, who, through his honesty, built credibility and trust.

• Be courteous to court staff. Court staff is an extension of a judge and will tell him or her their impressions of attorneys; this, too, affects trust and credibility.

• Keep everything simple. Because these judges are not on the Federal Circuit, they don’t have that level of expertise. Therefore, simple is best.

It was clear that the audience found this seminar as engrossing as I did.  The panelists offered insights that many in the audience hadn’t considered before and information that will benefit them as they move forward in their work.

Berbay recently blogged about how to take a professional photo, offering quick tips on how to dress, groom and pose to help you achieve a quality shot. Those are good pieces of advice to consider before taking a professional photo, but there are also many things to consider during the photo session. These factors are frequently overlooked, but can make a big difference in the outcome of your photographs.

• Clothing – Right before posing for a photo, make sure that all ties and suit jackets are straight, and that dresses or pants are not wrinkled.  Even if you wear the type of clothing Berbay recommended in our previous post, a crooked tie or wrinkled pants can cancel out the positive effect.  Too, when it comes to group shots, discuss everyone’s clothing beforehand so that you harmonize appropriately.

• Positioning – How are you sitting or standing? Where are your hands? Positioning is a key element of a professional photo. This is especially true in group shots: If everyone’s hands or legs are placed differently, the picture will appear uncoordinated.  A professional photographer can help you arrange everyone so that they look natural.

• Hair – Knowing that you would be taking a professional photo, you probably spent more time than usual grooming your hair. But that was this morning. The camera easily picks up small flaws, so it’s important to take one last look at your hair just before the shoot begins and double-check that stray hairs aren’t sticking up, covering your face, etc. The photographer can clean up hair in the editing process, but you want to have your hair as close to picture-perfect as possible.

• Background – What’s behind you? Of course, you’re the focus of the picture, but your background affects your appearance. If you decide to use a solid color for your backdrop, you should choose a color that won’t wash out your skin tone and should also match or coordinate with the color of your outfit. If you opt for a backdrop that’s not a solid color, like a library or a staircase, check for distracting objects. For example, if you’ll be photographed in front of a bookcase, see that all the bookshelves are full; if they’re not, it skews the picture and draws the eye away from the focus – you. Also, you may love the colorful abstract picture in your conference room, but if it’s in your picture, it will capture the attention in the photo. Finally, as a rule of thumb, don’t use windows or mirrors as backgrounds because they cause glare.

• The Macro Perspective – To determine if a shot will be a quality photo, take a full step or two back and look at it as a whole. Also, look through the camera lens.  Oftentimes, when you’re looking too closely at the details, you miss something obvious. That’s why we recommend you step back and get the “macro perspective” on a shot to see if anything is missing or needs to be changed.

Remember these important factors during your photo shoot (and prepare thoroughly beforehand) and you’ll come out of the experience with high-quality professional photos that positively represent you.

About 20 years ago when I first worked in downtown Los Angeles, my office at Arthur Andersen was located across the street from the L.A. Public Library. There had been a fire in the library; the building was fairly damaged and the neighboring “park” had a tall fence around it.  Overall, it was an unkempt area.  There was talk that a new park and a restaurant were going to be built there, but this seemed such a distant prospect as to be unreal. In general, downtown was ailing, and from my perspective, it was not improving

Two decades later, lo and behold, the library has been restored, there’s a beautiful café and a lovely park next door. The city center is experiencing a dramatic revitalization and was immediately apparent when I recently took the 9^th Annual Fall Downtown Los Angeles Program and Tour, a fascinating survey of new and renovated downtown properties that was offered by the Downtown Center Business Improvement District. From the retro offices at the Spring Arts Building, the luxurious apartments at the Orsini, to the pioneering shops along Seventh Street, it’s clear downtown is becoming a real destination.

This got me thinking: It didn’t happen all at once. As a young professional at Arthur Andersen, I didn’t have the perspective necessary to see that progress can, and more often than not does happen gradually. This holds as true for urban development as for professional services marketing and business development.  Getting all your marketing pieces into place—your website, blog, newsletter—can seem as overwhelming at the outset as a blighted neighborhood. But one need only look at the property-by-property, block-by-block rejuvenation of downtown L.A. to see that if you take the process one step at a time, building upon what you’ve completed and remaining positive, the results can be pleasantly surprising.

Who is the last naked lady? Well, first, she’s not always a who; sometimes, she’s a what. Second, she takes many forms (sometimes even professional services marketing-related, I swear; bear with me). Most of all, the last naked lady is difficult to relinquish, though her relinquishment brings greater rewards than her possession.

OK, OK—enough riddles. The last naked lady is an idea. It came to me after a male friend of mine told me why, even after having dated his then-girlfriend, now-wife, for about five years, he feared the commitment of marriage: “I was afraid to commit to the fact that she could be the last naked lady.”

This friend now has been happily married for more than 20 years. In retrospect, he admits his fear was misguided. But, of course, he’s not alone in having felt that way. Man or woman, in our relationships and in our careers, we are often afraid to commit to being whom we want to be (or, sometimes, whom we already are) and bid adieu to the last naked lady—to our other options.

Among Berbay’s clients, this fear of commitment takes the form of professional services firms being scared to define what they do—to declare, “Our focus is representing entrepreneurs in the food industry,” instead of, “Our focus is representing entrepreneurs in general” (Ever tried to find those general entrepreneurs, much less, cost-effectively market to them?).

Why this fear? Why do our clients have such trepidation about targeting a defined market? It’s understandable, really. They’re concerned that if they promote themselves as focusing on one or two areas, prospective clients and referral sources won’t think of them for opportunities outside those fields. But, in reality, more often the opposite happens: A referral source thinks of a client because it has a specific, memorable focus. The referral source comes to the client and says, “I realize you specialize in food-industry entrepreneurs, but a widget entrepreneur I know has a need. Can you work with her?”

Of course you can. Let the last naked lady go, and you’ll find you never needed her after all.

I was asked a question in a meeting with a prospective professional services firm yesterday—a question I’ve heard a number of times before, and that always puzzles me: “What trade or professional organizations should our professionals be involved in? Where should they be putting their time and energy to meet the people they need to meet?”

The reason this question perplexes me is, there’s really no mystery there. Finding relevant organizations is not the challenge.  Determining which organizations to actually invest in demands a bit greater—but still not much—of a time commitment (We recommend that you select three to five organizations and go to a couple meetings of each to figure out whether you want to get more involved). No, it isn’t a matter of locating the organizations—it’s whether your professionals will in fact go to the meetings, get involved and invest the time necessary to create visibility, demonstrate their credibility and expertise, and build relationships.

Many times, we have identified organizations for a client, notified them of the time and place of the groups’ next meeting—even offered to accompany their professionals so that they are not as uncomfortable. But if the professionals won’t go to a meeting or put forth the effort to get involved in an organization, then all our support is for naught.

If and when a professional has chosen to participate in one or two organizations, then she faces a real hurdle: Distinguishing herself from the other professionals in the group who are in the same field. For example, there’s probably not a trade or professional organization on Earth that doesn’t already have an attorney who has already claimed the attorney spot. They’ve been involved, visible and created name recognition.  That doesn’t mean, though, that another attorney can’t join the group and offer an alternative; perhaps the new attorney practices in a different area, or maybe some people in the organization don’t especially like the first attorney. Carving out a niche for oneself—not simply finding a group—is the true challenge when it comes to professional organizations.