HUMAN LAW MEDIATION

The Court of PR has more importance than the Court of Law Part 2

Carolyn Elefant has alerted me to this post of hers on her Legal Blog Watch gig .

It is such a good post of hers I have decided to quote it in its entirety.

"Used to be that lawsuits against firms for discrimination were a hushed affair, filed and pursued under cloak of secrecy. Law firms kept suits quiet, fearing damage to their reputation that might place them at a recruiting disadvantage. At the same time, most lawyers suing their firms kept quiet as well, fearing that a complaint would label them as a whiner and end their career.

So in this context I'm not sure if the lawsuit filed against Sullivan and Cromwell by Aaron Charney, an apparently still-employed associate at firm, for discrimination based on sexual orientation is simply an unexplained aberration or a new trend towards duking out claims not just in the court but in the court of Internet-driven public opinion.

As reported in Gay Associate Sues Firm For Discrimination (NY Law Journal 1/17/07), Aaron Charney filed a pro se suit against his employer, Sullivan and Cromwell, alleging that several partners discriminated against him because he is gay. From the article:

Aaron B. Charney accuses several of the firm's top partners of discriminating against him because he is gay. He also claims the firm initiated a retaliatory campaign after he filed an internal complaint, culminating in the issuance of a fabricated performance review.

In a statement e-mailed yesterday to all Sullivan & Cromwell lawyers, chairman H. Rodgin Cohen said the firm categorically denied Mr. Charney's allegations. He said the associate had made similar claims in May 2006, at which time he engaged a lawyer to demand a multi-million-dollar payment from the firm. The firm had investigated Mr. Charney's claims then, said Mr. Cohen, and rejected the demand for payment.

But that's hardly the end of the story. Over at Above the Law, David Lat has been providing extensive coverage, including a copy of the complaint, an interview with Charney, a memo attached to Charney's complaint about allegations of the firm overbilling clients and commentary from a sympathetic S&C former summer associate. (Full coverage accessible here.)

If Charney hopes to gain public sympathy, he has -- at least as evidenced by a poll put out by Lat, which shows that 64 percent of readers side with Charney. And with disclosures about S&L billing and other alleged practices, the firm isn't looking good (though again, that's just one side of the story).

Is Charney's public lawsuit something we can expect to see more of in the future? After all, with big-law reputations what they are, firms can suffer some serious damage in the court of public opinion (recall the surge that came to the support of popular blogger Denise Howell when she announced that she'd been terminated by her firm, Reed Smith). At the same time, law firms can use public opinion to their advantage as well. A law firm sued for discrimination might argue that it terminated an associate for incompetence and circulate inferior work product to back up its claims. 

By apparently resorting to what David Giacalone calls e-shaming, Aaron Charney may have opened up a huge can of worms. I admire Charney's conviction and his courage in speaking out, but at the same time, I hope for his sake (and other associates who've been treated unlawfully by law firms and are considering legal action) that all of this doesn't come back around and damage his career."

My observations - I totally endorse Carolyn's conclusion at the end.....There is a danger that the courageous Mr Charney will damage his career by taking such a stance. 

The Court of PR has more importance than the Court of Law

Chapter 6 of my wiki book deals with the Court of PR obtaining more importance than the court of law.

With this in mind, consider the Apple/Cisco dispute over the iPhone trademark which is being extensively covered on the blogosphere. 

Kevin O'Keefe writes:

"Mark Chandler, Cisco's SVP and General Counsel, is making wise use of Cisco's blog to respond to questions regarding Cisco's suit with Apple over Cisco's iPhone trademark. Chandler responds in a down to earth transparent fashion that's likely to influence bloggers, mass media, and the financial community who are covering the suit.

Robert Scoble says he's never seen blogging like this. Neither have I.

What takes me back is Scoble picking up on this unique use of a lawyer's blog while the legal blogosphere has been silent on Chandler's use of a blog."

Look at some of the wording from Cisco's Mark Chandler:

"So, I was surprised and disappointed when Apple decided to go ahead and announce their new product with our trademarked name without reaching an agreement. It was essentially the equivalent of “we’re too busy.” Despite being very close to an agreement, we had no substantive communication from Apple after 8pm Monday, including after their launch, when we made clear we expected closure. What were the issues at the table that kept us from an agreement? Was it money? No. Was it a royalty on every Apple phone? No. Was it an exchange for Cisco products or services? No.

Fundamentally we wanted an open approach. We hoped our products could interoperate in the future. In our view, the network provides the basis to make this happen—it provides the foundation of innovation that allows converged devices to deliver the services that consumers want. Our goal was to take that to the next level by facilitating collaboration with Apple. And we wanted to make sure to differentiate the brands in a way that could work for both companies and not confuse people, since our products combine both web access and voice telephony. That’s it. Openness and clarity. "

Some observations:

1 It takes a strong knowledge of blogging to have the confidence to use a blog in litigation.

2 The language is clear, open and avoids legal lease. Most lawyers would struggle with that.

3 Some negative comments have been made on the Cisco blog...To be expected but with the power of search engines and ease of publication, better to have speak on your blog than elsewhere. Overall the feedback is positive.

4 Could the blog influence perception of the litigation? Yes if enough bloggers support Cisco.

Organisations have not come to terms with the content revolution

There is an article in the Telegraph today by Richard Tyler which covers some of the issues which this blog has been dealing with.

Web content specialist Gerry McGovern points out in his new book Killer Web Content that the web has become a global memory bank. McGovern says that "Before the web came along, denial was a reasonably strong strategy, but that is no longer a case. The web is rolling 24 hours a day, 365 days a year and so much information is being recorded that can later turn up on Google or YouTube."

The Telegraph goes on:

"He cited the recent US mid-term elections as an example of how information caught on tape or camera came be rapidly disseminated via the web. "Emails, instant messages, voice mails and video clips all contributed to the embarrassment or downfall of several US political figures," Mr McGovern said.

"Senate candidate George Allen was caught on camera making a remark that was branded racist. Democrat John Kerry's alleged slur on US troops in Iraq was also filmed. And [former Representative] Mark Foley and [New Life Church] preacher Ted Haggard were trapped by instant messages and voice mails."

Mr McGovern said most individuals and organisations "have simply not come to terms with the content revolution that has swept through our world over the past 20 years. There have never been as many people reading and writing, and videoing and viewing. It's almost like a rite of passage today for young people to do a blog or make a video.""

How to damage your credibility in the blogosphere

This is in today's Guardian.

"When The Carphone Warehouse boss Charles Dunstone started his corporate blog earlier this year, he was hailed as a cutting-edge chief executive; a man prepared to open up the inner workings of his company to the wider world and willing to communicate directly with his customers.

But that was April, when Britain's biggest mobile phones retailer was riding high on a wave of favourable publicity about its "free" TalkTalk broadband offer.

Scroll forward a few months and the web is full of tales of "My TalkTalk Hell" as the group struggles to cope with the demand it so badly under-estimated, leaving thousands of customers angry and frustrated.

So what did Dunstone do at the height of the crisis? He simply stopped blogging. From September 1 until earlier this week - two and a half months - he failed to make a single entry. His post this Monday largely consists of an apology for his lengthy absence and a reassurance that the broadband supply problems are being worked out."

Thank you to Alex from IMPACT for letting me know about this.

Edelman issues acknowledgement

As has been blogged about elsewhere, the head of global PR Company, Richard Edelman & its well known blogger, Steve Rubel have started to engage the blogosphere about the Walmart blog.

Welcome as this is, my main difficulty is not with the offence related to the Walmart blog, but rather the disengagement from the conversation after news about it leaked out.

I relate to what Shel Holtz has written:   

"The problem I still have is with how long it took to begin participating in the conversation. I sympathize with Edelman’s desire to get all the facts, but this was a genuine, bona fide, reputation-damaging crisis. As the title of Gerald Baron’s excellent crisis communication book informs us, “Now is Too Late.” Nobody should know this better, as it relates to social media, than a PR agency that promotes and implements social media solutions (not to mention provides crisis communication counsel). It should have taken hours, not days, to ascertain the facts in order to address the crisis quickly. I would hope fast response is another issue Edelman is addressing with his employees. Even “We’re listening and looking into this and will let you know what’s going on once we have the facts” would have been better than the deafening silence."

This issue shows a real potential limitation of blogging consultants.

You can have all these nice technologies etc but what you have to possess are speedy investigatory processes(to ascertain the facts) and the capacity to respond quickly.The best organisations are ones that are transparent, open and have clear lines of communication.

Whilst writing, I would like to give Steve Rubel some credit. He has taken the time to address comments on his blog and on others blogs as well. At least there is now some engagement on the blogosphere. 

P.S I initally blogged this was an apology. I do not think that is strictly correct.

P.P.S 18/10/06 - Another  post of note is here by David Taylor again. 

Memo to CEO - How to launch a counter-attack on the blogosphere

Market Sentinel are a UK based firm dealing with online monitoring and response.

Here is one of their posts on their blog which illustrate how an organisation can help its brand on the web by using a blog.

The example is a corporate blog, done by food company Whole Foods.

As Mark Rogers of Market Sentinel writes "Whole Foods CEO John Mackey clearly realised the huge threat to his brand from author Michael Pollan’s book the Omnivore’s dilemma and used the blog to take a lot of trouble in answering the detailed points Pollan had made.....Pollan had not approached Whole Foods during the writing of the Omnivore’s Dilemma. In the book he criticised Whole Foods and compared it to Wal-Mart for, he said, failing to source locally...... John Mackey produced chapter and verse supporting his contention that Whole Foods indeed sourced produce locally."

As Mark observes regarding the success of the blog:

" Pollan emerges a little battered from the exchange. Mackey is commended for his transparency. He seems to have spiked the guns of those who were setting Whole Foods up to be a corporate villain in the organic foods arena. "

In my view this illustrates one of the key issues regarding blogging and social media. It is tool that anyone can use not just tecchy oriented people who may have an axe to grind against a corporate.

Why organisations are attacked on the blogosphere

One of the key concerns facing organisations is how they can be attacked on the blogosphere.

Flemming Madsen of Onalytica has done a useful post earlier this year which gives a structure to the way that a negative story can move forwards on the blogosphere.

"For a negative story to gain a growing following and reach that tipping point where it gains a life of its own (where the story about the story becomes interesting) it seems that a number of prerequisites need to be in place:

1) The story must be true and must have merit. False claims do not get much support as they erode the credibility of those who reference it (as a problem).

2) The issue/problem/injustice must be clear: A product that is generally not working; a service that is sold but cannot be delivered; an organisation that is saying one thing and doing the total opposite. If you can argue the case from different points of view it will most likely only gain traction with those who already share the bloggers view on the issue.

3) The issue/problem/injustice the blogger is facing/experiencing should be experienced by several others. The issue must be relevant for at least a reasonably large constituency. If it’s just the one customer who had a bad experience it is not enough to start a fire.

4) The blogger must be a good communicator. If the problem is described in too much technical detail mainstream media and less technical bloggers may not find it as interesting.

5) Branded online media (can be one of the top 20 blogs) or traditional off line media brands must at some point in time write about the story to give it that final piece of credibility.

So to sum it up: if you are doing what you are saying you are doing and not making objectively false claims about your product or service, then chances are you will be fine.

If, on the other hand, you are saying one thing and doing the opposite, then it is probably only a matter of time before you find yourself exposed. "

The final point that Flemming makes highlights one of the ironies about blogging - Those companies who display old fashioned virtues like integrity will be in a better position than those who do not.

Source of post - Matt O'Neill 

7 weeks on - How is Reed Smith's online profile now?

Chris Anderson, author of the Long Tail writes:

"For a generation of customers used to doing their buying research via search engine, a company’s brand is not what the company says it is, but what Google says it is. The new tastemakers are us. Word of mouth is now a public conversation, carried in blog comments and customer reviews, exhaustively collated and measured. The ants have megaphones."

Let us see this theory put into practice.

Denise Howell, one of the pioneers of United States legal blogging was terminated about 7 weeks ago from top United States law firm, Reed Smith.

After she posted about this on her blog, there was an outpouring of posts on the blogosphere in support of Denise and many were critical about the law firm.

How much lasting damage has the firm suffered to its online profile as a result of the fallout?

Let us do a Google Search of "Reed Smith" to find out.

Whilst the situation is fluid, on page 1 of a Google Search this entry appears at number 9:

Robert Ambrogi's LawSites: Reed Smith's blogger buzz

In one of my posts yesterday about Reed Smith's termination of Denise Howell, ... They show huge surges in blogger mentions of Reed Smith and Denise Howell ... www.legaline.com/2006/07/reed-smiths-blogger-buzz.html - 21k - Cached - Similar pages

Go to page 2 and the entries from 13 to 16 are as follows:

Denise Howell leaving Reed Smith - Ross' Employment Law Blog

Denise Howell leaving Reed Smith July 16, 2006. Denise M. Howell Denise Howell, a beacon to law bloggers, says her law firm fired her. ... www.lawmemo.com/blog/2006/07/denise_howell_l.html - 23k - Cached - Similar pages

LexBlog Blog : Reed Smith launches women's career forum and sacks ...

Reed Smith fired Denise Howell, a leading blogger, IP lawyer, ... Listed below are links to weblogs that reference 'Reed Smith launches women's career forum ... kevin.lexblog.com/.../reed-smith-launches-womens-career-forum-and-sacks-female-blogger/ - 35k - Cached - Similar pages

LexBlog Blog : Reed Smith Internet discussion up 50% upon firing ...

I'd be scared as hell if I was working at Reed Smith and this guy was the ... Listed below are links to weblogs that reference 'Reed Smith Internet ... kevin.lexblog.com/.../reed-smith-internet-discussion-up-50-upon-firing-of-lead-blogger/ - 34k - Cached - Similar pages

DennisKennedy.blog: Is This What They Teach at Reed Smith University?

Saturday, I learned on Denise's blog, Bag and Baggage, that Reed Smith had ... Since Reed Smith has engaged in some merger activity recently and there were ... www.denniskennedy.com/blog/2006/07/is_this_what_they_teach_at_reed_smith_univers.html - 33k - Cached - Similar pages

Where is the response of the firm to Denise Howell on Google?  I understand that one was made but it is not easy to find.

The problem that the law firm faces is that with the ever increasing importance of an online profile, irrespective of whether the firm was justified or not in firing Ms. Howell, it now has a negative online profile. 

Hopefully from the firm's point of view, other news will come to surround Reed Smith when would be clients and staff do an online search. But for the time being, the organisation's online profile is damaged goods.   

Recommended white paper - How to measure the influence of bloggers

Measuring the influence of bloggers on corporate reputation - a White Paper by Market Sentinel, Onalytica and immediate future considers Jeff Jarvis's campaign against Dell and shows how his influence (and the damage to Dell's reputation) can be measured.

An interesting read. The file is 6.67 MB so it is a big file to download.