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Client Alerts and Bulletins

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Client Alerts and Bulletins: 

Why Can’t they be Short, Concise and Written in Plain English?

 

If you have an important piece of new legal information you think your clients ought to know about, shouldn’t you write to them in a short comprehensible way?

 

 

 

                                                                             Jerome Kowalski

                                                                             Kowalski & Associates

                                                                             April, 2010

 

 

I am an avid collector of client alerts and bulletins that so frequently adorn mahogany credenzas in elegant law firm reception areas. Like so many of you, I also find my email inbox the proud recipient of almost daily bulletins, alerts, urgent breaking bulletins and other explications regularly emitted by so many law firms, painfully laden with thousands of words.  For the last six months or so, I have periodically printed many of them; not because I am not eco-friendly, but to try to understand the point and purpose of so much written, prolix and turgid work and effort.

Of course the message of all of these de rigueur reception room ornaments and inbox cramming emails is to demonstrate a law firm’s expertise in particular practice areas.  The clutter in the inbox is presumably designed to convey what should be a simple message: not only is the law firm an expert in a particular practice areas but, most significantly, to (a) convey to clients that the firm is on top of cutting edge issues; (b) something new just happened in a court, a legislature or a regulatory agency that affects a client’s business; and (3) I guess, branding.  The painful verbosity of these alerts and bulletins simply defeats these purposes.

Most ordinary publishers, whose function is to drive customers to read all or part of their periodicals “get it”  We each receive a daily set of one or two sentence summaries of breaking news and from their major trade publisher, such as Law 360 and the Am Law group; wanna read more?  Press the link.  They accomplish their primary objective: Drive readers to the relevant journal, read the full text and expose readers to their advertisers.  Major newspapers get it.

An example from today’s (April 22, 2010) alert from the Washington Post:

News Alert: Obama to ask CEOs to abandon ‘furious efforts’ to block financial overhaul

06:11 AM EDT Thursday, April 22, 2010

——————–

President Obama will travel to New York on Thursday to call on financial executives to abandon their “furious efforts” to block a financial regulation overhaul bill by hiring an army of lobbyists, according to planned remarks released by the White House. “I want to urge you to join us, instead of fighting us in this effort,” Obama plans to say.

Of course, this is followed by a link to the full paper.

The question I have always had is why are law firms addicted to exposing clients to extensive (and mostly ignored) tell all legal gibberish? Why don’t law firms comprehend that the highest and best use of a quick bulletin is also just a driver?  But you don’t want to drive your clients to a rambling article written by an associate with too much time on his or her hands.  You want to drive them through your front door, not away from it. Prolix jargon laden stuff is just not a revenue driver.

What is it that a client wants to know?  What does the client need to know?  Logic suggests that the message ought to be plain and simple:  “hey, client there is something new out there which impacts on your business, here is a brief description of what that new thing is; call us so that we can advise you on what you need to do to deal with it.”  The style and cadence of long winded expositions most law firms regularly secrete assume that the reader is a law school professor or a judge.  We forget that the majority of readers are company executives, pressed for time, and unfamiliar with the lingua fraca of the legal profession. And we also forget that in house counsel do not have the time or patience to read the fascinating procedural history of a court holding, which authors of these pieces somehow feel will rivet a reader’s attention.

Lawyers’ addiction to writing rambling technical jargon must be replaced by a two sentence teaser followed by a link. Optimally, the linked article should be, as commanded by the Federal Rules of Civil Procedure, a concise statement of the facts and applicable law.  Motions to dismiss loquacious client alerts and bulletins are rather simple and non-appealable: A quick hit of the “delete” button.

Our problem is that an occupational hazard of practicing law is prolixity, reliance on jargon, and all too frequently an essential need to write in the style of a second year law student, use acronyms, mnemonics and defined terms (hereinafter “defined terms” ).  Apparently, all too often the language of these client alerts appears to be designed to see how fast the author can get the recipient to hit the “delete” button.

Here are some fairly recent real examples of client alerts I have received.  So as not to unnecessarily embarrass the authors, I have made some minor alterations to the texts, but retained the vivaciousness of the bulletin. I have also taken the liberty of making some personal parenthetical italicized editorial comments to illustrate the point. I could give you a score more, but then I would be guilty of the same sin and your left index number will be heading to the delete button. I will also spare you the millions of words written in a new language, familiar only to a chosen few, called Zabruskie.

Example 1

Third Circuit Court of Appeals Finds Employers Have Liability for Incorrectly Classifying Employees as Free From the Exemption Under the Administrative Exemption of the FLSA

(Sayeth the corporate executive: “huh’?)

The United States Court of Appeals, sitting en Banc, (why are the judges sitting in a bank and doesn’t this guy know how to spell?) on an Appeal from the United States District of New Jersey (who cares what courts decided this stuff? I only need to know whether it affects me and my company), that yet another employer would be liable for back wages when it incorrectly classified one of its employees as falling within the “administrative exemption of the Fair Labor Fair Standards Act (“FLSA”)  (you’ve got to love those initials).

The author then went on with a two page single spaced carefully detailed and rather excruciating explanations of the facts of the particular case, its procedural history, quotes of the relevant statute,  regulations, prior precedents, promulgated thereunder (God, I hate that word) and ultimately the court’s holding.

In fact, the only information a client needed to know was that a recent court decision held that an employee who was involved in both sales and marketing may be entitled to receive overtime. That should have been followed with a short subtle or overt invitation to the client to call if he or she had any questions.

Example 2

(Actually, this is one of my favorites; it’s double columned, in eight point type and goes on for three wall to wall five pages and 16 footnotes):

 

On March 5, 2010, the Financial Crimes Network (“FinCen”) along with six other federal regulatory agencies (I’ll spare you the identification of each member of the list, each followed by an acronym)  issued joint guidelines (the “Guidelines”) to clarify those and consolidate those regulators (the “regulators”) expectations regarding financial institutions’ (“financial institutions”) obligations to obtain beneficial ownership information relating to certain relating to certain customer accounts (“customer accounts”) and relationships in connection with the Bank Secrecy Act (“BSA”) and the Anti Money Laundering Act (“AML”) compliance program referred to jointly as  (“BSA/AML”) .

I’ll spare you the 10,000 words that follow, assuming you already presumably have sufficient Ambien stored in your medicine cabinet, if after reading the first 55 word largely incomprehensible sentence you haven’t already deleted it. What should have followed a ten word sentence, of course, are six one or two sentence bullet points.  And, then, perhaps, a link to the prolix “advisory”

Let’s be real:  Almost nobody at any financial institution who has a legal question regarding any of these issues is going to say  “wow we aren’t certain if this transaction raises an issue under the “guidelines ;” let’s carefully read Firm X’s alert and figure out what to do.” The client (may, and I do mean may, since the advisory will probably have been deleted and relegated to that great nether) will pick up the phone or dash an email to counsel and ask counsel the question. The bottom line is that what the lawyer really wants is the development and enhancement of the client relationship and the ability to obtain revenues arising out of the consultation. What the client wants to know is that these guys know the rules and can give me a direct informed response to his or her current question.

There certainly is some utility in including on your web site a library of extended discussions of particular legal issues, accompanied by an easy to follow index.  Optimally, what you want is to have your client take a look at the pertinent article, only when necessary, obtain some basic understanding of the legal question, satisfy itself that the firm has requisite expertise on the subject, obtain some guidance from the article and then pick up the phone and say to counsel, “we have this particular issue, I’ve read what you had to say on your website and am I correct that the issue is resolved by the pertinent point you made?”  The optimal result should be a response that “: the issue isn’t quite that simply resolved, let’s talk about it some more and I will then be able to give you more detailed and applicable advice.”  (Oh and be able to send you a bill for that time spent).

 

            The great incongruity of the turgid, long winded, prolix, boring “client alert” or “bulletin” [sic]  is the little footnote that always follows: (“this alert is not intended to provide legal advice.  The analyses, conclusions and/or views expressed herein do not necessarily represent the opinion of the law firm or any of its lawyers or the opinion of any court or agency of the government.” (Huh? Then why did you write it and why did I spend three hours reading this instead of simply deleting it? Next time I get one of these, I will just hit that old ‘delete’ button”.)

 

            I won’t bother to address here whether this tiny disclaimer actually absolves a law firm from liability.

Perhaps firms should be thinking about developing an IPhone or IPad app that links to a firm’s web site based library of articles.  But that question should be addressed as forward thinking law firms start digesting the greatest advantages of cloud computing.  If you are still using a Dictaphone or struggling with your two index fingers to use your PC, while spending a great deal of time with your firm’s help desk,  the first two sentences of this paragraph assuredly are expressions of a new era, of which you have no clue.  But, that’s okay. Hopefully, your marketing department will understand the idea and consider its utility in consultation with management partners familiar with this new epoch.

© Jerome Kowalski, 2010.  All Rights Reserved.

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5 Responses

  1. […] and include a link to your posting .  Keep adding to your email list new prospective clients. I previously addressed this issue, if you forgot, click this link.  Lesson 6: Include a link to your posting on Linked In and the relevant groups to which you belong […]

  2. […] The next few weeks should be the time during which you should be sending your clients succinct alerts and bulletins explaining in crisp simple English sentences how each of these events affect them and their […]

  3. […] occasional lunch or the annual pilgrimage by management to the client.  Nor does mere reliance on Client Alerts or Bulletins , while critical, […]

  4. […] Continued rise in clients using social media, particularly blogging, to identify competent counsel, with a concomitant rise in law firms regularly posting substantive blogs and circulating client alerts and bulletins. […]

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