Set in Style

The corner liquor store is a financial institution covered by EESA, and so is the dry cleaners, the deli, the bakery, and the grammar school. Here’s the definition of financial institutions covered by EESA, according to the Congress:

FINANCIAL INSTITUTION.—The term ‘‘financial institution’’ means any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, organized and regulated under the laws of the United States or any State, territory, or possession of the United States, the District of Columbia, Commonwealth of Puerto Rico, Commonwealth of Northern Mariana Islands, Guam, American Samoa, or the United States Virgin Islands, and having significant operations in the United States, but excluding any central bank of, or institution owned by, a foreign government.

More on all of this tomorrow — but first, a furious devotion to a pressing deadline.

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Update: The definition of ‘‘financial institution’’ in the Senate’s version of the bill includes gas stations, movie theaters, and the Smithsonian.

Here’s the opening to this alert published by Farella Braun + Martel, a firm that claims it is “known for our imaginative legal solutions and the dynamism and intellectual creativity of our lawyers.”

It’s a good read — far better than the usual “on Date, some Court ruled that such-and-such is prohibited by this-or-that.”

But it’s misleading.

How so?

Well, consider that the alert was published on 9 September. The governor approved SM 90 on 22 July; he approved AB 2075 on 1 August. And he made his vow not to approve any more legislation (until legislators agreed on a budget) on 6 August. In other words, his vow came after he approved the two bills.

The opening suggests otherwise.

A big deal?

No. But a bit too creative. The cautious client might begin to wonder what other liberties the firm takes with facts (and wonder why it waits a month after some significant events before it issues an alert about them.)

Note: of the two attorneys credited with authoring the alert, the firm claims one (Doug Dexter) is an editor, and the other (Holly Sutton) was an editor. 

Yesterday, I wrote about the value of publishing a client alert promptly — while the subject of the alert is still news.

While I was writing, CFO.com was publishing this article about the risks of credit-default swaps. And guess what? That article discussed and quoted this client alert about risks and opportunities in the credit-default swap market. The alert was published by Nixon Peabody just a day earlier.

The value of it? CFO.com attracts over 10,000 pairs of eyeballs a day. That’s 10,000 people who might see the alert, and it’s a handful of prospects who just might decide to contact Timothy Mungovan or Jonathan Sablone, the attorneys who wrote that very timely client alert. That’s also 10,000 people, a few of whom might bring the alert to the attention of  Nixon Peabody’s next big client.

So . . . if you’re just now setting out to write an alert about credit-default swaps and the woes at Lehman Brothers and AIG, rest assured — your alert will be less than very timely. 

What happens is this — most attorneys write most client alerts for an audience of other attorneys (esp. corporate counselors). Fine — so long as their alerts are well written, informative, and published promptly.

(As I mentioned in a recent post, a survey of GCs shows that — when they’re really interested in something, they don’t wait a month or two before they read about it, and after they read about it, they move on. They read the first alert about this or that, and then they’re too busy to read subsequent alerts — the ones that are published weeks or months later. Hence, the emphasis on timeliness.)

An attorney looking to be noticed might consider writing for another audience — the public. That’s right. Suppose you write a client alert, and your target audience is corporate counsel. Then the public — which includes journalists and such — won’t bother to read it. Heck, they probably won’t even be able to understand it.

Now, suppose you write an alert in such a way that a business reporter at the Wall Street Journal can grasp it. Then you just might get noticed by that reporter (assuming marketing has done its job). If the alert’s about something of considerable interest, you just might get a call from that reporter. Heck, the reporter might even quote you in an article.

Wouldn’t that be nice?

It won’t happen if you write your alerts just for other attorneys. The more hifalutin’ your writing style, the less likely you are to be noticed.

News isn’t usually news for all that long. One week, it’s Sarah Palin. The next, it’s a huge storm. After that, it’s the woes on Wall Street. Next week, it’ll be something else. Who knows what?

News organizations move fast. They can’t wait until next week to present the events of this week. Next week, they’ll be covering who knows what.

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This morning is like any other in most respects. I get my coffee, check the news, and then check my mail. After that, I turn to a folder full of client alerts that were published in the last 24 hours.

As with any other morning, most of the alerts are about things that happened (relatively speaking) long ago. There’s one about something the SEC did in June. There are quite a few about things that happened in the last week of August or the first week of September. There’s even one that claims a set of rules were “published in the Federal Register on November 9, 2008.”

But the one that grabs my attention is this one. What’s so striking is that it’s about something that just happened yesterday.

(more…)

For some companies (think Amazon), Web site rankings are absolutely critical. For others (think a Great Big Law Firm), they don’t matter at all (they say).

So, why wonder why a site run by an artist at an ad agency — Puppies and Flowers — gets more traffic* than Weil Gotshal, a firm that claims it’s the #2 law firm in the U.S.

Might it have something to do with Weil’s exuberance when one of its attorneys is quoted in a magazine article? (Can you imagine Amazon issuing a press release because someone at the firm was quoted in a magazine article?)

(more…)

You know the old saying — the attorney who represents himself has got a fool for a client.

Ditto for the attorney who serves as his own editor (or figures he’s such a terrific writer, he doesn’t need one).

Consider this post from Davis Wright Tremaine’s Digital Media Law Blog, or this post from the firm’s Privacy and Security Law Blog.

Now, suppose a prospective client reads either post and decides to contact the author. He clicks the link to Brian Kennan, but, rather than Kennan’s contact info, the prospective client sees this:

OK. So Kennan left the firm, and the firm wants to make like he never worked there. 

But Kennan did work there, and something he wrote has attracted a prospective client. Given what it’s done, does the firm have any chance of converting this client?

I say, the firm would have a better shot at converting this client if — rather than posting an error message — it displayed this page or this page instead.

I say, the firm should come up with a comprehensive policy on what to do with the dearly (or otherwise) departed, one that also handles things like this.

Contract drafting guru Kenneth Adams has this interesting piece in The National Law Journal about dysfunctional drafting.

Once again, he bemoans the use of legalese.

Here’s a snippet:

[L]egalese renders a contract a chore to read, negotiate, interpret and use as a model. As a result, companies waste vast amounts of time and money that, increasingly, they can ill afford. And the fog of legalese makes it more likely that a contract will contain a drafting flaw that deprives a contract party of an anticipated benefit. That, in turn, could lead to a dispute — much litigation has its roots in mishandled contract language.

Once again, our perpetual question:

What can an editor do for an attorney?

Consider the intro to a white paper written by two lawyers — both heavy hitters, one the former general counsel of a large federal agency:

A growing number of agri-food companies in the global food supply chain are adopting agriculture sustainability standards. These companies include seed suppliers, producers, processors, distributors, restaurants, and supermarkets. The reasons for this movement are complex. Factors include an emerging business interest in corporate social responsibility, consumer demand, and a growing awareness of all that is involved in the making of a food product. Whatever the reasons, agri-food companies publish agriculture sustainability standards in a variety of venues: marketing materials, advertisements, reports, and company websites. These publications range from simple statements of commitment to glossy, sophisticated statements buttressed by matrixes, score cards, and performance indicators.

Agriculture sustainability standards in these speech venues create legal risks for the agri-food company. These risks make it imperative for the agri-food company to seek legal counsel from a lawyer with an expertise in the substantive law underlying these risks and in the legal, policy, and business contexts of production agriculture and the global food supply chain.

Here’s that same copy after it’s been touched by an editor (yours truly):

A growing number of agri-food companies — including seed suppliers, producers, processors, distributors, restaurants, and supermarkets — are adopting agricultural sustainability standards. The reasons for this are varied but typically include a growing interest in corporate social responsibility, a response to consumer demand, and increased public awareness of all that is involved in the making of a food product.

Whatever their reasons, agri-food companies often publish their sustainability standards in a variety of places: marketing materials, TV and magazine ads, industry reports, and corporate Web sites. Their statements range from catchy one-liners to sophisticated arguments buttressed by matrices, score cards, and performance indicators.

Whether short or long, these statements carry significant risks for those that make them. Hence, it is imperative that companies making these claims seek counsel from lawyers who have expertise in the substantive law, as well as in the legal, political, and business pillars of the global food supply chain.

That’s a good example of what a skilled and experienced editor can do — take an attorney’s rough draft and turn it into something that does what the attorney wants it to do.

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What about ROI, as they call it?

When two heavy hitters decide to invest their time in preparing a white paper, they’ve made a wise investment — if what they write makes them look good.

Let’s suppose these two heavy hitters invested a few hours each to write this eight-page white paper. They could have spent that time doing other work, so they sacrificed something like $2,500 to $3,000 (in billable hours) to write the paper.

Had they invested another $250 to $300 to have an editor review and polish their work, they would have stood a much better chance of getting a great return on their investment.