Strategic Marketing

By Frederick J. Esposito, Jr. 01 Apr, 2024
As part of your law firm’s strategy, you want (ideally) to align your pricing methods, metrics and communications with your clients’ value proposition. That, of course, is easier said than done. Most firms struggle to achieve the delicate balance between the rates they need to charge and the rates clients are willing to pay. And all firms face the same fear: What if you miscalculate and lose your best clients? Still, there comes a time when you have to increase your rates to stay profitable. How to Raise Fees without Losing Clients So, how do you implement a rate increase without driving away the client? It comes down to communication, metrics, timing and value. Here are some thoughts on how to go about it. Get over the fear factor. Don’t let fear keep you from raising rates! Chances are, if you are making excuses to avoid a rate hike, those excuses are a cover for speculations based on fear. Communicate the “whys.” When your firm has specific reasons for raising rates, tell your clients. Perhaps you froze rates during the recession out of consideration for your clients’ financial situations, or to keep their business. Maybe you wrote off a considerable amount of time each month resulting in even lower effective rates. No matter how big or small, letting clients know about these financial courtesies builds goodwill—and it can be a great client development tool. Understand the metrics. Before deciding to increase your rates, know your firm’s economics. Do you know where your break even point is, profit-wise? How much it costs to produce a billable hour, or a brief? Or your costs by timekeeper? Understanding the economics makes it much easier to determine the increase. Keep in mind that smaller increases—3 to 5 percent per year—are generally better, and are met with less resistance when they are implemented consistently (i.e., the same time each year). When setting rates, it’s not just about what the firm “needs” to charge to break even, but also about what the firm “wants” to generate in fees. Review your costs, calculate your break even point, and determine a suitable rate. You might also consider the 80/20 scenario: Identify the 20 percent of your clients who generate the least profit and either raise their rates or terminate them. If this sounds harsh, keep in mind that you are in business to generate profit—you cannot afford to carry unprofitable clients just because you like them. Timing is everything—no surprises! The worst thing you can do is fail to tell clients about your rate increase, instead letting them find out when they open their next invoice. Let your clients know in writing that you are increasing rates and provide sufficient notice, perhaps 60 days. Also, as a best practice, make sure your engagement letters include language indicating the firm will, upon notice, adjust rates periodically. This should alleviate some pushback. Some clients will resist and attempt to negotiate the proposed rate increases. That opens the door for discussions about the actual value of legal services provided ... and brings us to No. 5. Talk about the value being delivered. Will you lose some clients who aren’t willing to pay a higher rate? Maybe. But if you do, your firm needs to ask an important question: Why doesn’t the client perceive the full value of the services provided? Get past the fear factor and help clients understand the value your firm delivers. At every chance, seize the opportunity to educate them!
By Jeremy Reeves 01 Apr, 2024
Ever wonder what the difference was between struggling businesses and businesses that seem to dominate everything they do? I have. It’s something I’ve been studying my entire career while working with businesses everywhere, from startups to those making millions each year. And from what I’ve discovered ... It has nothing to do with the market (there are successful businesses in every market, after all) It has nothing to do with price points (there are businesses successful selling $1 widgets, up to million-dollar contracts) So what is it? The “Secret” Is Having 3 Unique Systems In Place One for turning prospects into clients. Another for turning new clients into immediately more profitable clients. And a third for turning those clients into repeat, higher value raving fans who spread your message for you. Let’s start with the first ... System #1: The Acquisition Path The acquisition path is the marketing system you put in place to turn prospects into first-time buyers of your service. During this phase, prospects are first learning about you. Out of the three systems, this is the one most people focus on the most (even though it’s the least profitable). Most people have no follow-up system in place. When potential clients find out about you they either do business with you right then, or they’re lost forever. That’s a bad position to be in. To make this process more effective, you’re going to want to use several strategies including: Coming up with the perfect value proposition. Segmenting your email campaigns so you’re speaking directly to the wants and needs of your prospects. Retargeting prospects to “follow” them and present offers that are specific to the reasons they visited your website. Trust-building campaigns to establish trust. Authoritative content so they see you as an authority in your marketplace (which also builds trust). Long-term nurture campaigns so you’re in frequent communication with them, leading to you being in front of them when they’re finally ready to make a buying decision. Low-risk offers to have them make the leap from prospect to clients. Surveys to determine exactly who they are, what they’re struggling with and how you can help solve their problems. ... and many others! The purpose of this stage is to take them from the current stage of the buying process they’re in to the moment they realize that you are the ONLY choice as the solution to solve their problem. Your marketing systems need to be set up in a way to make the sale to anybody, whether those persons are nearly ready to buy when they first learn about you or are just starting their research. System #2: The Profit Generation Path If you want to grow your business quickly, your main goal should be to acquire the maximum amount of clients upfront and then have back-end profit systems in place to make them more valuable to your business. Many businesses use something called a “loss leader” model where they acquire a new customer, either at break-even or even a slight loss. This allows you to scale your business because you know your back-end will make those loss leaders more profitable overall. However, this is mostly used when selling products. Since you’re a lawyer, that’s not necessary. The reason I bring it up is because it’s a great exercise to think about how you could make that happen—if you have to. If you can figure that out, it means you’ve come up with a way to dramatically increase your overall lifetime customer value. When you dramatically increase how much an average client is worth to your business, it allows you to spend more, which takes your business to an entirely new level. One of the ways you can do this is in your profit generation path. The profit generation path is the point in between the prospect and client stage. It’s the stage where you make an immediate upsell the moment they buy from you. For example, the second you generate a new client you can offer them additional services which add more value to them. An easy example of this is buying a new car, followed by the salesman asking you if you want one of about a dozen “extras” such as an extended warranty, upgraded tires or seats, or a custom paint job, just to name a few. The point of this stage is to decrease the amount of time it takes to make that new customer more profitable to your business. Instead of waiting several months to hit your ROI goals, you can do so in a matter of minutes. And once you’ve done that you can move into the final system... System #3: The Profit Multiplier Path Your final stage includes systems you have in place for your customers. Think about what you have in place now. What happens to a customer after they buy from you? Do you follow up with them ... ask them how the order/experience went ... make sure they’re getting the most value out of your product/service ... offer them additional products/services that can help them ... or ask for referrals? If not—you need to. I’m always stunned by how many businesses make a sale, collect money from those customers who allow their business to be profitable ... and then never get in touch with them again! Remember Scrooge McDuck’s room full of gold? It’s like being given access to that room for an entire year, yet you simply walk in, take one handful, walk out and never return again. Crazy, I know. But that’s exactly what happens in 95% of businesses today. It’s also why you need to have follow-up systems in place for your clients. To stay top of mind, offer them additional services they may find valuable, ask for referrals and make sure they never even consider doing business with any of your competitors. Where Do You Go From Here? Now that you know what you need to do, the first step is taking a look at what you already have in place and which of these three systems would give you the fastest revenue growth. For example, if you already have no problem getting new clients but aren’t converting them into repeat buyers, you should start with #2 or #3. On the other hand, if your clients tend to become raving fans on their own, put your time into getting more clients, at a lower cost, on a more consistent basis. In other words, your next step is finding the holes you have in your marketing, and fixing them! I hope this article has helped you and given you a clear path as to what you need to do to increase revenue in your business this year. 
By Noreen Fishman 01 Mar, 2024
While convincing a prospect to take action is always the primary goal, it’s not going to happen unless you can accompany them on their journey from awareness to eventual conversion. In order for that to occur, potential leads must first be able to locate your firm. Then, to ensure you’re well-positioned to provide what they require, you must also know where a potential client is located in their journey at all times. All of that might seem like a big ask, but it’s actually fairly easy once you know what to do. Let’s delve into some essential demand generation strategies for lawyers and explore how selecting the right approach can streamline your client journey. Essential Demand Generation Strategies for Lawyers 1. Content Marketing: Crafting a Winning Strategy If you want to grab your audience’s attention and keep them in the loop, having some fresh content is the way to go. Build a solid content strategy that coincides with what your audience is looking for. This will not only boost the quality of leads but also boost business development. To get things started, just make sure your content speaks to the needs and issues your audience cares about, define the audience you’re talking to, and plan out your content creation and sharing strategically. 2. Lead Scoring: Prioritize Quality Leads Don’t waste your time on leads that won’t likely turn into client conversions. Try out a lead-scoring strategy. Look into what your prospects are up to online and offline, then add some points for engagement. This way, you’re ensuring only the leads with a good chance of being converted get top priority. 3. Account-Based Marketing (ABM): Tailoring Solutions for Success Shift your attention to small groups or individual accounts with ABM. It’s like customizing solutions for specific issues that are pain points. This collaborative style lets you use personalized marketing, keeping those high-priority clients in the loop. Quality data is crucial to building a list of qualified target clients. 4. Social Media Channels: Capturing Interests Effectively Tap into the power of social media platforms to engage with and understand what makes your target audience tick. Create content that interests them, and that aligns with what they need. Personalized and transparent content builds trust, and nothing is more important. Social media provides platforms for making connections that feel personal. 5. Email Marketing Optimization: A Significant Data Source Evaluate and enhance your email marketing campaign performance by considering factors such as open rates, spam, and unsubscribe rates. To improve overall effectiveness, implement best practices, including personalized content, segmentation, responsive templates, and strategic testing. 6.Event Marketing: Building Brand Awareness and Credibility Events are a powerful tool for boosting brand awareness and credibility. Whether attending smaller, more intimate events or hosting your own online or face-to-face, these interactions provide timely solutions to your audience, allowing you to earn their trust and build brand loyalty. 7. Intent Data: Identifying In-Market Clients Utilize intent data to understand online activities and identify potential customers. Tailor your marketing approach based on search intent to create demand. By effectively leveraging intent data, firms can discover prospects, deliver quality leads, and shorten the cycle. 8. CRM and Marketing Automation: Streamlining Processes Integrate Customer Relationship Marketing (CRM) and marketing automation tools to efficiently manage demand generation efforts. Enhance lead generation, social media scheduling, analytics, drip email campaigns, and more, improving overall productivity. 9. Demand Funnel Framework: Visualizing Customer Journey Utilize an efficient demand generation funnel to map the customer journey stages. Tailor your framework based on the unique characteristics of your brand, audience, and offerings. Understanding the stages of discovery, engagement, conversion, and reward enhances customer journey visualization. 10. Web Insights and Inbound Marketing: Unleashing the Power of Your Website Your website plays a pivotal role in demand generation. Analyze digital footprints to uncover visitor interests, pain points, and content preferences. Inbound marketing, centered around building lasting relationships, involves blog posts, content offers, and web resources. Takeaway Embark on your demand generation journey by selecting the strategy that aligns with your law firm’s business development goals. Implement it seamlessly across your marketing teams to increase lead quality, genuine interest, and demand for your services.
By Omnizant 02 Jan, 2024
Digital strategy planning can seem overwhelming. Many firms are thinking of improving their performance in 2024. We’ve identified an approach to digital strategizing that we hope will simplify your process and yield better results for your firm. A new year is a potent cocktail of stress, accomplishment and setting lofty goals for the future. Digital strategy planning is your key to calmly and confidently meeting the demands of the New Year. Here’s how to create a digital strategy, what to include, what to exclude and our three-pillar digital planning philosophy (which you can steal for your own firm’s strategy). What Is (and Isn’t) a Digital Strategy A digital strategy is your firm’s playbook for managing your digital assets and online presence. It’s a document that will guide your approach for navigating predicted and unpredicted issues in the future. This strategy should consider assets like your website, mobile, email touchpoints, social media and any digital marketing. One note on timelines: Note that a digital strategy is a relatively short-term document. Whereas business strategies tend to include a long-term roadmap and other kinds of forecasting, it simply doesn’t make sense to plan so far ahead with digital strategy. Technology and trends change so frequently. It’s more important to understand your priorities and processes so that you can adapt to changes. A digital strategy should focus on general approaches, not specific forecasting or didactic action plans. Budgeting is very tricky with digital strategy, so we’ll cover that section down below in more detail. Areas Your Strategy Should Encompass Consider breaking your digital strategy into five key areas. Social Media: Which platforms are you investing in? Who is responsible for these platforms and what policies exist to manage the content? What’s the plan for negative events? Are there other platforms where your audience is more active? Mobile: Is the site responsive? Will you be building any native apps for your firm? If so, what platforms will you support? Think about how you can enhance the mobile experience for clients on the go. Email: Who is responsible for mass email correspondence? Who is maintaining your lists? Do you have a plan for privacy protection? Do you want to consider personalization, targeting or other automation in the future? Consider newsletters and trigger-based emails in this category. Website: Assess the user experience of your site. Does it align with your firm’s values? What features are you supporting and will you add or remove any? How do you decide on content? Who is responsible for technical, design and content maintenance? Digital Marketing: Consider your current online marketing channels, including PPC and SEO campaigns. Are they reaching the right audience? How’s the process working for your team? Are there new marketing avenues you may like to explore? You may wish to include a budget subsection for each category as well as an overall budget section. We also recommend a “people, process, priorities” approach. This could be applied to each bullet point above, so long as you are careful to ensure alignment between each area. Who Is Responsible for Digital Decisions? The key to unlocking a successful digital strategy is assigning responsibility. Clear responsibilities ensure that, even if something fails, you’ll have someone who is responsible for reporting it so you can address it. Start by sketching out your digital team. Who makes decisions about different elements? Is there one person who is at the top and must give approval? Who actually does the work once it’s assigned? Who reviews the marketing data? Will all of your digital assets and campaigns be managed in-house or will any of it be outsourced? What are the criteria for making this decision, and what are the criteria for selecting a supplier or contractor? Note any platforms that your team uses to track action items and report back. Include frequencies for making these reports. If there’s a lack of clarity on any of these points, don’t try to solve it in your own head. Note the confusion and include it as an opportunity to improve next year, or pitch a few options based on your knowledge. You’ll get better results by collaborating with the rest of the team. One tool you can use here is a responsibility assignment matrix (RAM), although this could be overkill for smaller firms with fewer digital marketing projects on the go. What Policies Will Guide Future Digital Decision-Making? Now that you’ve identified personnel, you can move onto policies and processes. Clear frameworks can streamline your process while ensuring consistent outcomes. Think through areas like social media, content creation, website management and potential crisis situations (like bad PR or data leaks). Are there any decisions you find yourself making again and again? Could you formalize any of these processes into some sort of policy? For example, you might consider a document for social media guidelines that indicates which topics are allowed, enabling you to eliminate extra approvals and hasten the creation to publication pipeline. This document could include style and content boundaries, too. Consider policies for content removal, coding standards, accessibility and crisis management. What merits the removal of a piece of content? Does it get archived? Does it require a statement on social media? Do you have an accessibility checklist for social media and newsletter content? How do you respond to negative reviews? You don’t need exhaustive definitions in your digital strategy. However, you can identify these areas and set yourself on a path to creating these policies in the near future. The goal is to document each process clearly and ensure easy access for key people, preserving your values one time so that every future decision is aligned with your values and goals. Are There Priorities That We Can Use to Guide Us? Priorities can help guide your digital decision-making when information is hazy. Of course, digital strategies are intimately tied to business strategies and priorities. Identifying key priorities can expedite decision-making and keep everyone aligned. Start by defining your digital users and digital business objectives. Everything should be tied back to these two clearly defined groups. Who are the people you’re targeting and serving? What do they need? What is the main purpose of your digital presence, or the purposes of each platform? Is it to serve, educate, entertain, convert, reassure? Here’s an example of how this exercise in priorities could help you in the future. Let’s say your content team has decided on a slate of features for your blog. A partner suggests a new post on a totally separate topic. You can use your list of digital priorities and audience profiles to determine if this new topic should or should not displace the other ideas in your slate. Organize Your Work Into a Roadmap You’ve made great progress! Now, collect your work into a roadmap with at least five key categories: social media, mobile, email, website and digital marketing. For each section, identify the main benefits that each one provides. Explain how it’s currently performing (you can blend qualitative and quantitative data here). Include areas for improvement and make some recommendations in the long and short term. As you write your recommendations, start with issues that need immediate attention. You can give more detail to this section because the need is imminent and you have more information. As you proceed with future tasks in the long-term, you can reduce the level of detail.  This is only logical, as the technology will change in the next few years and it would be unwise to too closely predict a version of the future and devote resources to addressing it. Finally, please feel free to recommend a consultation with outside experts if you and your team do not possess specialized knowledge in certain areas. Money Matters and How to Budget for Change Okay, it’s time to address the financial elephant in the room. Legal marketing in a recession can be scary! How do you budget for an unpredictable future? We like the agile model, which sees digital marketing as an annual ongoing project rather than a fixed cost project. Try to think of it like allocating funds dynamically to adapt to emerging trends, seize opportunities, and address challenges. Some fluidity in your annual budget is required to ensure that your digital strategy remains agile in a changing digital world. We see a lot of marketers and firms stuck in an outdated model of fixed cost projects. They’re simply unable to keep pace with the newest requirements, and so they fall behind. The agile model acknowledges that your digital presence is never finished and is constantly being improved. Because of this, an annual ongoing budget is the way to go. Try setting an expected cost for each area of work. Tweak depending on whether you plan to do it in-house or hire contractors, then add some contingency. Now, you have to live it and adapt as you go. Review and Next Steps Digital strategies for law firms should include flexible, agile budgets and a “people, process, priorities” approach to guiding digital decision-making. Avoid getting bogged down in the details! Instead, focus on creating frameworks and assigning responsibility to enable your firm to confidently adapt to the coming challenges and new technology of 2024. Digital strategy is dynamic in nature. It takes skill, adaptability and accountability to get results.
By Ty Dedmon 01 Dec, 2023
The power and the peril of generative AI has been one of the most talked-about topics in legal circles since ChatGPT’s explosion into public conscience in late 2022. The arrival of generative AI into our world is now a stark reality. Lawyers need to understand both the basics of the technology and its legal implications when considering the use of generative AI. Generative AI Within the Legal Industry Many legal professionals have started to explore practical uses of generative AI in areas such as research, discovery, and legal document development. A Thomson Reuters study found that 82% of law firm attorneys believe that ChatGPT and generative AI could be applied to legal work. However, trepidation remains, as the same study found that only 51% felt it should be applied to legal work. This isn’t shocking. Similar feedback has been received in the medical field and other professions. We have long relied on predictions of AI, and generally a trust but verify approach has aided our comfort. The fundamental principle of human oversight cannot be underscored enough for generative AI to be successful. In legal, draft work product will be presented by generative AI, but it is up to the attorneys to take the rough material produced by technology and mold it into a final product that accomplishes the specific objectives of their clients. The predicted benefits of generative AI will never arrive without trained human lawyers to oversee the process. The Dual Effects of AI on Discovery Generative AI’s impacts on the discovery process are twofold. On the one hand, these capabilities will enable completely new methods of data extraction, linking, summarization and reasoning—extending existing predictive AI capabilities into a whole new realm. Not only will AI be able to analyze and identify characteristics about documents going through discovery, but it will now be able to generate information and insights about those documents, too. On the other hand, the adoption of generative AI into the enterprise through tools like GitHubCoPilot are going to add an entirely new layer of complexity and questions related to documents during the discovery process. If CoPilot is used to write an email, where does responsibility for the content of that email lie? Is there a need to differentiate documents created by AI versus created by a human? How will that be handled? Currently, most available generative AI products are limited in scale and have yet to show proven value. Initially, uses of generative AI focused on using conversation to augment search—how can we gain information from a corpus using natural language understanding? Exciting at first for the novelty, these approaches seem to be more AI in search of a problem, rather than a problem uniquely fit for a generative AI solution. As generative AI is nearing its first birthday, it is still too early to have clarity about how either of these components will evolve but based on past precedent and the specific qualities of generative AI, there are some leading areas of promise. Getting the Most out of Your AI Strategy The most favorable generative AI discovery approach involves looking beyond the standard workflows of today and reimagining how they could change. What would it look like if you could connect existing predictive AI capabilities and new generative ones? How might the previous view of the Electronic Discovery Reference Model change? The organizations that are best positioned to successfully develop and/or embrace generative AI in discovery are those already fluent in leveraging predictive AI in discovery now. There are many low-risk entry options into predictive AI for discovery. For example, predictive AI can be used to help secure personally identifiable and personal health information. Organizations can use AI to automate the redaction of the identified information, and by doing so, can greatly reduce the laborious efforts to manually redact each instance of sensitive data. More sophisticated use cases include privilege prediction. Oftentimes, static search term lists are over inclusive and do not identify all potentially privileged documents. An organization could begin to develop a privilege prediction model with their data while still leveraging traditional, potentially privileged search lists. The combination of the AI and the familiar search list provides an enhanced privileged identification process that is then tested and verified by attorneys. The return-on-investment organizations reap from this approach increases as the process is repeated for each new model. Current Legal Considerations and Guidance The European Union is leading the way in terms of regulations with its Artificial Intelligence Act. This law seeks extraterritorial reach, like the General Data Protection Regulation, and looks to enact an expansive, horizontal regulatory scheme across all industries. Similar to the implementation of the GDPR, U.S. companies may unwittingly find themselves subject to its reach and need to monitor its passage. Canada is taking a similar, broad-based approach with Bill C-27. Currently, there are no U.S. laws enacted that create specific rules for the use of generative AI tools. Specific legal guidance from federal regulatory agencies and courts in the U.S. is limited. However, American lawmakers have indicated significant motivation to exercise greater oversight on the development and use of generative AI tools. Recently, Senate Majority Leader Chuck Schumer organized a hearing on the future of AI regulations, which Elon Musk, Bill Gates, and Mark Zuckerberg all attended. Schumer indicated the goal is to “maximize the benefit and minimize the harm … and that will be our difficult job.” Whether the oversight is a horizontal model providing guidance across industries like the EU’s AI Act, or a vertical model where individual departments and agencies create guidance targeted to their industry groups, is still to be determined. For now, agencies such as the U.S. Equal Employment Opportunity Commission, the U.S. Department of Justice and the Federal Trade Commission have issued statements asserting that generative AI is within their regulatory authority. These agencies further indicated that bias, discrimination and misleading consumer information and privacy that are present in automated systems will be held to existing legal standards. Beyond these efforts, it is likely that the Federal Rules of Civil Procedure will need a refresh to account for generative AI. Discovery is going to include even more data types, algorithms, training sets and prompts. Expect that bar associations and other industry stakeholders will issue guidance on generative AI competencies for legal application. Courts are just beginning to encounter the new questions raised by this technology. There are many different examples of guidance and opinions, and some judges have even asked attorneys to confirm they will not use generative AI to write legal briefs. Other scholars and judges have suggested that litigants cite the tool they have used to create their work product when it is submitted to a court. Before You Adopt, Think Cybersecurity Along with efficiencies and innovation, generative AI presents new risks, like data security, privacy, and reliability. For example, it is critical to assume that any information used for ChatGPT prompts could become public. A company’s intellectual property and reputation can be immediately compromised due to undisciplined use of ChatGPT and similar tools. With the rise in interest and use of these tools, we’ll also see a subsequent rise in cybersecurity risk. Machines will inevitably learn that a business is interested in, for example, certain proprietary topics or competitive opportunities. This information can be accessed by bad actors, who will use it to get better at impersonation. As such, a first reasonable policy step for any business is to sound the alert about the potential for AI-generated phishing attempts. Organizations need to invest in developing a mature information governance program. New technology onboarding should be planned as part of the program, as well as preservation and defensible disposal. Employee education and training is also paramount in mitigating risks associated with generative AI. The National Institute of Standards and Technology published an AI risk management framework in collaboration with public and private sectors. The framework outlines characteristics of trustworthy AI and offers guidance for addressing them. The characteristics include “valid and reliable, safe, secure and resilient, accountable and transparent, explainable and interpretable, privacy enhanced, and fair with their harmful biases managed.” A mature information governance program will allow companies implementing the next generation of AI tools to evaluate, test and continuously monitor the performance of their technologies across all of these risk vectors. What’s Next for Generative AI The IT function has typically taken the lead in responding to the technology innovations of the day; but with generative AI, it has become clear that the attorneys need a major seat at the table in this new conversation. Organizations must prepare for the generative AI revolution we are sure to see in the coming years. Those who excel in our new reality will remain curious and nimble. Those who do nothing will become obsolete.
By Julie Lorson 01 Dec, 2023
When you need information, your first stop is likely Google—or at least, that used to be the case. While search engines used to monopolize peoples’ quest for knowledge, the current digital landscape offers new ways to find answers. Those new channels present a significant change in the way that people find information, which could have a big impact on the way your firm gets discovered. To make sure legal marketers get the full picture, we’re covering four statistics about how people search from HubSpot’s recent report. 4 Statistics About Search from HubSpot 31% of social media users turn to that channel for answers to questions: That means almost one in three people will try finding information or asking questions on social media either before, or along with, turning to other methods. While a search engine is still dominant (more on that below), more people are relying on social media as a source of key information. AI is a newer channel that is picking up traction for queries, but only 12% of the study respondents tried AI before search engines or social media. 29% of Gen Z and Millennials combined prefer social over search engines: This is compared to 15% of total consumers across age brackets who do the same. On the other hand, only 18% of Gen X and 3% of the boomer generation would prefer searching on social media instead of search engines. Those numbers represent a significant chunk of digital traffic and are expected to grow in the coming years. It’s important to consider what will happen as Gen Z ages, moves into career roles, and gains more disposable income. Additionally, AI platforms based on machine learning will get more robust and smarter, so people will be more comfortable relying on them for information. A small group of people (about 9%) already prefer using AI chatbots to answer their questions. That is another group that will certainly grow as AI tools continue to progress and build familiarity. Generally, most people still say search engines are the best way to get information: Even with the statistics we just listed, on a broad scale, people still turn to search engines for answers to questions. Though there are viable alternatives that will continue to gain traction and improve performance, brands seeking to drive traffic should continue to focus on search engine optimization. At the end of the day, search engines are still the most powerful resource to drive discovery of your firm—so the strategies that make that happen are just as important as ever. Though you might want to diversify your digital strategy, now is not the time to move away from your SEO efforts. 54% of people use their phones to search: Mobile traffic has increased each year, and we are now at the point where more than half of the search inquiries performed occur on mobile devices. It’s more important than ever to keep mobile device habits in mind when planning your website content. A bit more than half of the study respondents said they use their phone when looking up questions online, but this trend occurs more often in younger generations. Mobile-first search is more common with Gen Z and Millennials. In fact, 80% of Gen Z use their phone most often when searching, while millennials are at 62% and Gen X are at 66%. Takeaway: This information is based on one study from one company but certainly mirrors the current research and data that is widely available. In general, AI is going to be quite disruptive, just as social media was (and still is). It’s important that forward-thinking firms keep this in mind as they plan content and their social media presence. Additionally, mobile-first searching is a trend that will only continue climbing, so not accounting for mobile-friendliness or responsive design is a big mistake. Search engines are just as important as always, though they have some competing channels now—that means digital marketers shouldn’t take their feet off the gas with search optimization efforts.
By Stefanie Marrone 01 Dec, 2023
The legal industry is experiencing a transformative era driven by new technology, changing client expectations and a globally connected business landscape. As we head into 2024, law firms need to devise and implement a fresh approach to marketing and business development, regardless of their size. Here’s how to devise a strategy tailored to your firm’s needs. Why Your Law Firm Needs a Marketing and Business Development Strategy Law firms, irrespective of their size or specialization, are vying for a share in a market where clients are more informed, discerning and cost-sensitive than ever before. A clearly articulated strategy not only provides direction, clarity and focus for a firm’s growth efforts but also serves as a compass, ensuring alignment in decision-making and resource allocation. ing it down crystallizes intent, fosters accountability and facilitates communication across the firm, making the strategy tangible and actionable. Not having a strategy document can lead to missed opportunities, rendering firms reactive rather than proactive. Crafting, documenting and implementing a strategy now allows law firms to seize opportunities, positioning them for the challenges and opportunities in the new year. Understanding the Different Needs of Law Firms by Size The same strategy and tactics for implementation of a law firm marketing strategy is not one size fits all because every firm is different, and has unique challenges and advantages, budgets, talent and practice and industry strengths. That being said, it’s important to understand the differences between the firm sizes so that firms can create a bespoke and effective marketing strategy. Small Firms Challenges: Limited resources, brand recognition and expansive competition from similarly sized competitors. Strengths: Agility, personal client relationships, niche specializations. Mid-sized Firms Challenges: Positioned between nimble smaller firms and resource-rich larger ones, these firms face competition from both sides. Strengths: Broader service range, a mix of agility and resources, potential for strategic partnerships. Large Firms Challenges: Maintaining innovation, ensuring consistent branding across global locations, managing vast human resources. Strengths: Established brand recognition, abundant resources, diversified expertise, global reach. Key Takeaways Adaptability is paramount. The landscape will continue evolving and rigidity can lead to obsolescence. Understand your firm’s unique value proposition and communicate it effectively. The era of digital dominance continues. Online marketing, social media marketing, virtual networking and remote consultations will remain crucial. Client-centric approaches win. Understand their changing needs and adjust your strategies and tactics accordingly. How to Create a Law Firm Marketing and Business Development Strategy Let’s explore the essential components for a comprehensive marketing and business development strategy for law firms and how to create a strategy document. Executive Summary: Begin with a concise overview of your strategy’s purpose, highlighting primary objectives and the anticipated outcomes. This provides a snapshot for stakeholders who need a quick understanding of the strategy’s direction. Firm’s Vision and Mission: Reiterate your firm’s foundational vision and mission. This section acts as a reminder of your firm’s core values and the overarching goals you aim to achieve, ensuring alignment in all strategies. Client Segmentation and Profiling: Detailed information about your current and potential client base. Recognize patterns in client industries, sizes and needs to tailor your services and marketing message. Competitive Analysis: A thorough examination of direct and indirect competitors, understanding their strengths, weaknesses, opportunities and threats (SWOT). This will help identify market gaps and areas where you can differentiate your services. SWOT Analysis for Your Firm: Understand your firm’s internal and external factors that could impact future growth. This gives a holistic view of the environment in which you’re operating. Digital Presence Assessment: With the growing importance of online platforms, review your website, social media channels, online reviews and any other digital touchpoints. Assess their effectiveness and areas for improvement. Goals and Objectives: Set clear, measurable and time-bound goals. Whether it’s expanding into a new practice area, increasing client acquisition by a certain percentage or boosting online engagement, ensure every goal aligns with the firm’s broader mission. Tactics and Initiatives: Outline specific actions to achieve the set objectives. This could involve launching a new content marketing campaign, investing in new CRM software or hosting regular client feedback sessions. Budget Allocation: A detailed financial plan outlining the allocation of resources for each tactic. This should include projections for expected returns on investments. KPIs and Metrics: Define key performance indicators to track progress against objectives. These could range from website traffic and conversion rates to client retention rates or revenue per client. Feedback and Iteration: Establish a process for regular strategy reviews, allowing for adjustments based on results, feedback, and changing market conditions. Stakeholder Engagement Plan: Outline how you will keep partners, associates and other key firm members informed and engaged in the strategy’s rollout and progress. Risk Management: Identify potential risks and challenges that might hinder the strategy’s success, along with mitigation plans for each identified risk. The Components of a Marketing and Business Development Strategy Here are the key areas your marketing and business development strategy document should include. Putting this together will involve interviews with key stakeholders; research on clients, competitors and peers; analytics from past marketing initiatives; data on client revenues; and an understanding of market factors, including opportunities and challenges. Objective: Clearly define what you aim to achieve, e.g., increase client acquisition by 15% in the next year, raise visibility of certain practices, support the marketing efforts of new laterals or a new office, etc. Target Audience: Identify and understand your ideal clients by practice and industry. Value Proposition: Articulate why clients should choose your firm over competitors. Channels: Decide where you’ll promote your services—from digital platforms, to content marketing to events and everything in between. Action Plan: List activities to achieve your objectives, assigning responsibilities and deadlines for strategies and tactics. Budget: Estimate financial resources required for each activity (sponsorships, consultants, technology, training, etc.) and budget accordingly. Monitoring & Evaluation: Define metrics to measure success and schedule periodic reviews of strategies and tactics. Creative Implementation Ideas Here are some innovative marketing ideas, segmented by law firm size. For Small Firms Localized SEO: By optimizing your website for local search terms, you can better position your firm to attract clients in your vicinity. Community Involvement: Active participation in local events, pro-bono legal clinics or community-based activities not only boosts your firm’s visibility but also builds trust and goodwill within the community. Testimonials and Case Studies: Showcase success stories or testimonials from satisfied clients to build credibility. This word-of-mouth marketing can be particularly compelling for small firms seeking to establish their reputation. For Mid-sized Firms Webinars & Workshops: Regularly hosting informative sessions on legal topics can solidify your firm’s position as an industry expert. These platforms also offer an opportunity for direct engagement with potential clients. Strategic Partnerships: By joining forces with non-competing firms or businesses, such as accountants or financial advisors, you can extend your reach and offer complementary services to a wider clientele. Referral Programs: Given their position between small and large firms, mid-sized entities can benefit immensely from referral programs, encouraging satisfied clients to refer others in exchange for certain incentives. For Large Firms Thought Leadership: Establishing your firm as a thought leader, through comprehensive research, insightful articles and opinion pieces, can significantly enhance brand authority and attract high-profile clients. Tech Integration: Embrace the latest technological innovations. Implement AI-driven chatbots to handle initial client queries, utilize a sophisticated CRM system to enhance client relationship management and explore VR capabilities for offering immersive virtual office tours or client meetings. Global Networking: Large firms often have an international presence. Capitalize on this by organizing or participating in global legal symposiums, workshops and conferences. This not only elevates the firm’s global profile but also helps in cross-border client acquisition. Conclusion Recognizing the nuanced needs based on firm size is essential. Small firms, while agile and specialized, grapple with limited resources and competition. Mid-sized firms have a blend of agility and resources but compete with both smaller and larger counterparts. Large firms, boasting global reach and abundant resources, must strive for consistent branding and innovation. Success hinges on adaptability, a strong digital presence and a client-centric focus. Implementing tailored strategies—like local SEO for small firms, webinars for mid-sized ones or AI integration for large firms—can drive business growth. The takeaway? Be proactive, leverage unique strengths and keep innovation at the forefront for optimal marketing success in 2024. 
By Guy Alvarez 30 Oct, 2023
With 1.7 billion users today, a growth of 17% from 2022, it’s safe to say TikTok is one of the fastest-growing social media platforms we’ve seen yet. And its unique biteable video format has permeated every level of the social media sphere, causing a huge push for short-form videos, and even influencing Instagram to move away from photos and more towards videos. But with such a young audience, many legal marketers may feel TikTok isn’t worth the investment, or they may be unsure of how a law firm should even go about posting on TikTok. (What’s a ‘For You’ page? What’s a ‘Sound’?) The truth of the matter is, TikTok is no longer just for Gen Z dance videos. Many lawyers have been quick to get on the app, and the algorithm has made it worth their time. Due to TikTok’s rapid pace with trends, and its hyper-adaptive algorithm, many lawyers and law firms have found success by creating relatable content that not only generates brand awareness but most importantly humanizes their brand and informs their audience. So, how can law firms start using TikTok? Why Should Law Firms Be on TikTok? Many law firms and lawyers think TikTok isn’t worth their time. Sure, it’s nothing compared to LinkedIn, but TikTok’s fun and creative nature offers a wonderful opportunity for firms and lawyers to think outside of the box and really connect with their audience on another level. As a young app, TikTok lacks many of the formalities and expected production costs that have permeated other video platforms like YouTube. Because brands on TikTok can be their most authentic selves, law firms can really showcase their personality and culture. TikTok provides an opportunity to show your audience that you’re not just another lawyer speaking legalize into the atmosphere. You’re a real person, just like them, who’s there to educate, offer advice, and above all else have some fun. Still not convinced TikTok is worth the investment? You can easily repurpose your TikToks as Instagram Reels or Facebook videos too. And above all else, recent conversations from tech giants have shown there’s a huge push toward video for social media. So, getting comfortable with short-form social media videos could also do your brand some good. An Overview of TikTok for Law Firms TikTok is a video sharing app that allows users to share videos that are as little as 15 seconds to as of recently, 10 minutes long. One of the reasons TikTok has become so popular is that it has simplified the video creation process. Users can shoot and edit their videos in the app, with features such as filters, noise reducers, enhancements, speed effects, subtitles, and much more. The app is set up with two different feeds for users—a For You page and a Following page. The Following page is akin to any other social media platform, it’s simply a feed that shows you videos from pages you are following. However, the For You page has revolutionized the way social media algorithms work. The For You page is a feed that shows users content from both accounts they do and do not follow that the app believes they would enjoy. As TikTok’s popularity continues to surge, the platform has introduced an exciting new feature called the TikTok Shop, providing users with the opportunity to both purchase and sell a diverse range of products. Definitions FYP—For You Page. This is the page where users can view videos from those they aren’t/may be following that have been selected by the algorithm based on the user’s past preferences. PFP—Profile Picture. Make sure you have a branded profile picture that showcases some personality and fits into the circle sizing. POV—Point of View. Often users make POV videos where they show themselves doing something as if someone else is watching. Usually, the action that is being depicted in these videos is something very typical of the user. (Example: The caption may read ‘POV: I’m meeting with another happy client after winning their case in court’ and the video may be a clip of them smiling and shaking hands with someone) Sound— Every video on TikTok is accompanied by a sound. In basic terms, it’s simply the auditory components of a video. What makes them unique is that users can add music, voice-over, whatever, and save this Sound to the Sounds library, where any TikTok user can take the Sound and repurpose it for their own videos. Often, certain sounds will become trendy and develop a large following. Duet— Duets allow your own video to play simultaneously next to someone else’s video (usually someone you’re responding to). This is a great way to network with those in your industry/ audience. (Example: you’re a personal injury lawyer and you see a video of someone sharing their experience settling in court. You may ‘duet’ the video and add some captions with commentary.) Storytime— Similar to YouTube, many users find fame by sharing stories about their experiences. (Think case study, but a lot more casual and verbal instead of written.) Transition— Like any video, a transition is how you move from one scene to the next. However, on TikTok, many transition ideas will become trends, and they can be used in tandem with certain sounds and ideas. When you’re researching trends, pay special attention to how others are cutting between scenes. Using the right transitions can really help ensure your videos fall in line with what your audience wants to see. Stitch— Similar to duets, this feature allows you to respond to another video on your own. Only in this case, the new video you create will only include a short clip from the one you’re responding to. This is a huge trend that’s easy to hop on. People will post specific videos saying ‘Stitch this with a time you…’. Repost— The repost feature allows you to repost TikToks that belong to other users from your own TikTok account to share with your audience. What’s the Secret to the Algorithm? TikTok’s For You page means any user has the potential to get their content seen—even if they don’t have a large following. That’s the beauty behind it. The goal of the For You page is to show users content that they will enjoy the most. It’s believed that past engagement has a huge impact on which videos are selected for users. Basically, if a user is engaging (liking, commenting, sharing, saving) with many videos on a particular topic, with particular hashtags, particular trends, or with particular sounds, TikTok will show them more videos of a similar nature in their For You page. As an example, many law firms have found engagement by hopping on the ‘5 Things I Wouldn’t Do as a ____’ trend. They’ve formatted their videos in the way others have while executing their trend, and they’ve used hashtags most often associated with that trend. Therefore, if a user is watching and engaging with many ‘5 Things I Wouldn’t Do as a ___’ videos, then it’s very likely they’ll see Lawyer Joe’s video on ‘5 Things I Wouldn’t Do as a Divorce Lawyer’. Now, imagine that on a large scale. The #5thingschallenge hashtag currently has 179.2 million views…. Think of all the people who will potentially see Lawyer Joe’s ‘5 Things I Wouldn’t Do as a Divorce Lawyer’ video. How Do I Create TikToks? Yes, TikTok is a lot more laid back than other platforms. But its uniqueness is a double-edged sword. You can’t simply repurpose YouTube videos and expect them to perform. You have to understand the trends, trending sounds, dialect, and audience in order to find success. This involves a lot of social listening, some goal setting, and some creativity. Decide what type of video you want to make­— As we said, a clip of you speaking legalese won’t do well. Explore TikTok, or follow an account where they break down the latest trends (check out @trendbible). Choose which trend you’d like to hop on, and review the wealth of videos under that trending sound or hashtag. Take note of sounds, caption conventions (which parts are spoken vs. written out), transitions, facial expressions, etc. Connect this trend to the legal industry— How can you make this trend work for the legal industry? If people are doing day-in-a-life videos, create one focused on a ‘day in a life as a lawyer’. If there’s a trend where people are sharing advice or tips, hop on that and share your own tips as a lawyer. There are even a lot of sounds that are popular but don’t have a rigid structure. You can simply use a trending sound and hashtags to share some thought leadership content via spoken word. (Think blog post, but spoken and much more casual.) Above all else, get creative, but keep in mind the conventions for different trends like specific transitions, sounds, word choice, etc. Shoot your video— It’s time to shoot! Grab a tripod, friend, or shoot selfie style. It may take a few tries but don’t worry, you can always save your attempts to ‘Drafts’ and try as many times as needed. When you’re ready to shoot, simply hit the + button at the bottom of your screen. Then select any effects you’d like to use in the bottom left corner. The bottom-most panel is where you can select the length of your video (3m, 60s, or 15s), and above that is where you select the speed. (In most cases just do 1x, this will be normal speed.) The right-hand panel is where you can add effects or enhancements. When you’re ready to go, hold down on the red circle to start shooting. At the very top, you’ll see the music icon. This is where you can select the ‘sound’ you’d like to use. Final Adjustments— When you’re done shooting, release your finger and hit the red circle in the bottom right corner with a check. From there, you can use the right panel to add text, adjust clips, captions, etc. (Hint: try using the ‘noise reducer’ at the bottom—it’ll make your audio much clearer.) Always try to add auto-generated captions—this will ensure every user is able to understand your video. And don’t be afraid to give your video a title so people know what it’s about. You can add text by hitting the T button, typing, and then dragging the text where you prefer. After that, hold down on the text so you can set the duration where you’d like it to play. Time to Post— Hit Next, now it’s time for a caption! First, make sure to turn on comments, duets, and stitches. This will ensure people can engage with your video on every level. And make sure your video is set to be shared with Everyone, not just followers. (This’ll ensure you’re on the For You page). And don’t forget to toggle to ‘Manage Video Quality’ so you can ensure your video is of the highest quality. Now’s the time for a caption. Do your due diligence and research which hashtags work best for your industry, and for this trend. And don’t forget to capitalize on any number of trending hashtags to maximize your video’s potential. Make sure your caption is something that showcases your firm’s personality and adds some context to the video. A Look at Lawyers Doing it Right @lawbymike (7.4M Followers, 160.7M Likes) @thelawyerangela (1.6M Followers, 25.2M Likes) @kennedylawfirm (1.6M Followers, 36.1M Likes) @husbandandwifelawteam (319.5k Followers, 14.6M Likes) @thepaynelawyer (242.8k Followers, 3.6M Likes) @lawyerpaige (1.7M Followers, 11.8M Likes) Takeaway: Remember, above all else, TikTok is about showcasing your brand, lawyers’ personalities, and company culture. TikTok can be highly educational, so this is a great opportunity to share some thought leadership content. But remember, while TikTok is young, that doesn’t mean there aren’t any conventions or best practices. You must prioritize social listening and do your due diligence to understand what’s trending, what will perform well, and how to execute your videos.
By Kevin Vermeulen 30 Oct, 2023
The legal industry is very unique in terms of marketing. For one thing, it’s highly competitive. Additionally, much of legal marketing relies on compelling content and thought leadership—that most legal professionals don’t have time to create. Plus, there are certain ethical and legal considerations that make creating legal content more complicated. Why Is Content Marketing Important for Law Firms? For those reasons plus others, it can be a truly daunting task to create thoughtful legal marketing content—but it’s a necessity. Content marketing is absolutely essential for any law firm or attorney who wants to generate web traffic and ramp up their leads. In case you need more convincing, let’s take a look at some of the reasons that legal organizations need web content marketing. 1. SEO Matters (A Lot) and Content Marketing Improves It Your website needs content, that much you know. Everything from the copy on your service pages to your blog tells prospects what your firm is about. All of that content also tells search engines what your firm can offer. Content provides that much-needed context to search engines so that they understand how trustworthy and valuable your site is. You’ll rank higher if search engines are able to quickly assess what services you offer, where you’re located, who you serve, etc. By having a better understanding of all of this, search engines know when to serve up your website during search inquiries. The more opportunities for that to happen, the better. Plus, your content provides lots of opportunities for implementing researched keywords so that you can rank even higher—thus attracting more traffic. 2. Great Web Content Can Attract Backlinks Backlinks occur when other sites find your content useful and then link to it. Such links offer strong signals to Google and other search engines that your site is credible and valuable to others. Backlinks can also be a powerful source of referral traffic. The more valuable your content is, the more links you’ll attract. Concentrate on building high-quality, informative content for your audience, answering common questions. Another great way to encourage backlinks is to publish original research and statistics—these are often searched for and cited in other works. For example, an infographic or white paper that compiles information from real clients could be valuable in another person’s research. 3. Strong Content Drives Social Sharing Here is where you want to get creative. Legal content doesn’t have to be stuffy. Consider creating short videos that explain complex topics, or putting together visually aesthetic infographics. Your goal is to create content that is so helpful, people feel the need to share it. Including social proof like testimonials and case studies are also helpful in getting real-life people to show your content to others. Make sharing easy by including share or post buttons where they are easily visible on all content, and being active on social media and YouTube. The more that your content is shared, the more traffic your site will receive. Note: the caveat here is strong content—not all content is worth sharing. Think about the information that is truly valuable, and who you’re trying to reach. If you stumbled upon your latest blog, would you share it? 4. Use Conversion-Optimized Content for Nurturing Leads Conversion rate optimization (CRO) is the process of improving your content, website, or campaigns to convert visitors into leads. CRO practices will help you gain traffic and then turn that traffic into more qualified leads. Some of the basics are adding compelling calls-to-action on pages and posts, and making sure your website speed, navigation, and contact forms all operate quickly. Look for ways to personalize content so that you can increase on-site conversions and reach potential leads in new spaces. You can also use content to reach people who are in different stages with your firm—you can reach new leads with introductory content and send more tailored content to people who have already engaged with your firm. Make content a part of your overall lead nurturing strategy and you’ll see better results. 5. Informative Content Is Better for Your Website’s Authority In the legal industry, what you know is crucial. Displaying what you know is an important part of gaining trust, both with prospects and with search engines. Things like client reviews, referrals, guest blogging, and other tactics are also helpful for improving overall website authority and reach. By publishing informative and educational content on your website, you can showcase your legal expertise and build trust with your audience and with search engines. Takeaway: Investing in great content will pay dividends over time. Creating a thoughtful content strategy will pay off in terms of increased visibility, traffic, brand awareness, and leads. We encourage you to take the time to build out an intentional content strategy based on the specific niche you serve and the interests of your audience. 
By Colin Kass and Tim Mungovan 01 Aug, 2023
The seventh Webinar in the “Age of AI” series focused on the risk factors at the intersection of litigation and AI. The presenters started with a brief background on AI and the practice of law and shifted to guidance in advising clients in this area, particularly with respect to the liability of AI platforms, FTC scrutiny of AI tools, and AI-related issues in ethics and antitrust. The advent of AI and generative AI feels new, untested, and perhaps of limited utility for some industries, such as for the practice of law. The presenters compared the current sentiment about AI with the reticence felt by many industries when the internet first started to grow in popularity and use in the mid- to late 1990s, even noting how one state bar ethics opinion advised attorneys doing legal research on the internet to ensure the information is dependable. The presenters opined that these same types of issues and concerns are once again arising with today’s new technology applications involving AI. The Practice of Law and AI It is possible that using AI tools could result in a waiver of attorney-client privilege and the confidential nature of information, particularly when using publicly facing AI tools such as ChatGPT, which, by default, shares user inputs with the developer for training purposes. Some potential methods to mitigate such risk include the use of AI tool APIs (e.g., ChatGPT API data is not used to train or improve the ChatGPT model but is only retained for 30 days to monitor for “abuse and misuse” and even non-API users can change default settings to disable training and data retention). The presenters noted that the safest action for practicing law is to simply avoid inputting any confidential information into an AI tool, suggesting that caution be taken in the way a lawyer frames a query, as even an apparently plain-worded query, if disclosed, could reveal hints as to confidential work or issues that a lawyer is analyzing for an active litigation, for example. Practitioners might also consider a bespoke enterprise license from an AI provider that would typically offer more robust data protections than a publicly facing product and would be structured as an internal AI tool that is siloed but relies on a base AI for general knowledge. One important question in such an arrangement, according to the presenters, is whether the developer allows the customer to control the incremental knowledge that is gained through internal queries to the AI tool; such issues must be carefully considered, along with practical issues such as vendor lock-in (as, depending on the underlying agreement, the customer could conceivably only control such incremental knowledge gain as long as it is still a customer) and the potential pricing power a licensor would have over the licensee in such a situation. As to the rules of professional conduct, the presenters noted several issues that are relevant with the use of AI, including the duty of confidentiality, duty of competence in the benefits and operation of technology and a duty of candor to the tribunal. The latter concern was a principal issue in an ongoing litigation that made the news when plaintiff’s counsel in motion papers cited six non-existing cases that were produced by ChatGPT, and later spotted as “bogus” by opposing counsel, prompting the court to set a date for a hearing on possible sanctions. This incident prompted some federal judges from other jurisdictions to require attorneys to make certain attestations regarding court filings that were drafted with the assistance of AI tools (with no judge instituting an outright ban on the use of AI tools for legal filings). Another topic in this area is AI and legal document creation, which is one step beyond using AI to search for information, rather using AI to create a legal document such as a contract, legal brief, or something else. The presenters pointed out the benefits of AI-assisted work product, such as expediting the creation of legal documents and other uses in discovery or detecting errors in basic forms and contracts, but noted that, in the short term, AI tools are not advanced enough to replace a lawyer’s function but can only assist in certain basic efficiencies. Importantly, the presenters pointed to the New York State Bar Rules of Professional Conduct, Rule 1.4(2), which concerns disclosure to clients about how the client’s objectives are to be accomplished. Thus, the presenters stressed that if a lawyer is intending to use AI to research issues, draft documents or perform similar functions, it likely makes sense that the lawyer should ensure the client agrees with the use of such technological methods, with such issues perhaps memorialized in the client engagement letter. The presenters closed their discussion about AI and the practice of law with a brief mention of investment advisors and AI. Like the practice of law, a core foundational duty of an investment advisor is a duty of care and a duty of loyalty. For example, as pointed out by the presenters, a duty of care in this instance would require the investment advisor to act in the best interest of the client, including a duty to provide advice suitable to the client, which includes a reasonable investigation into the investment and to avoid basing investing advice on material inaccurate or incomplete information. Thus, according to the presenters, one could see how the use of generative AI tools, which contain disclaimers about the fabricating of content, by an investment advisor could implicate these principles (e.g., an investment advisor using AI to make investment decisions for a client could implicate both duties). On a related note, the SEC has expressed concerns on AI and its programming. For example, the SEC has pointed out the potential for concentrated risk from multiple trading platforms using the same predictive analytics AI tools to make investing decisions and mitigate risk could actually produce wide-ranging risk in the markets if multiple platforms relied on the same AI-produced analysis. Liability Surrounding AI Tools While the first part of this webinar presentation outlined the many ways that use of AI tools might go wrong, the next question is: Who is going to be liable? Liability risk, wherever it may fall, has important implications, such as steering developers into altering their products to reduce such risks. The presenters started the discussion about potential methods AI generators can use to limit liability, such as through: Disclaimers AI generators have used disclaimers on their websites to seek to limit potential liabilities (e.g., “May occasionally generate incorrect information;” “May occasionally produce harmful instructions or biased content”). Are these sufficient? The presenters noted that perhaps such contractual disclaimers could be deemed enforceable against the user who is presented with such disclaimers and continues to use the service. However, such disclaimers may not necessarily protect against liability when the service impacts third parties. Third Party Liability As the presenters noted, AI generators would necessarily have to consider whether Section 230 of the Communications Decency Act (CDA) would provide immunity from claims that seek to treat the service as the publisher or speaker of any information provided by another information content provider. The presenters framed the issue this way: Are there claims that you can bring against an AI generator or generative AI platform that does not depend on it being the publisher of third-party content? Would the generative AI platform be deemed the content creator of output (no immunity) or merely the publisher of third-party content and prior training data (potential immunity under CDA Section 230)? The presenters noted that one might argue that generative AI tools, merely by their name, suggest they “generate” content and thus would not enjoy CDA immunity like a social media platform that hosts user-generated content. On the other hand, one could make an alternative argument that a generative AI tool is not a person or entity creating independent content, rather an algorithm that arranges third party training data in some useful form in response to a user prompt, and thus should be protected by CDA immunity for output. To this point, courts have not ruled on this issue, so the area remains unsettled, particularly when the Supreme Court recently declined the opportunity to comment on CDA immunity as it pertains to algorithmically-organized content in the Twitter and Gonzalez cases. To be sure, based on those Supreme Court decisions, an AI developer may not even need to rely on CDA immunity to avoid secondary liability for certain actions if it has released a lawful, general-purpose, neutral tool that was subsequently employed unlawfully by users. FTC Scrutiny—Deceptive Advertising On another front, the presenters remind viewers about the FTC’s own enforcement powers over unfair and deceptive trade practices. The agency released guidance stating how “AI can turbocharge fraudulent practices” and that “firms should be on notice that systems that bolster fraud or perpetuate unlawful bias can violate the FTC Act” and that “there is no AI exemption to the laws on the books.” In fact, the FTC recently released a report about how it is concerned that “AI tools can be inaccurate, biased and discriminatory by design” and that the agency would focus its enforcement priorities on the use of AI with regard to deceptive advertising and unfair competition: “The FTC has also warned market participants that it may violate the FTC Act to use automated tools that have discriminatory impacts, to make claims about AI that are not substantiated, or to deploy AI before taking steps to assess and mitigate risks.” The presenters asked that, given these statements by the FTC, entities should consider building extra protocols if an AI generator’s product is going to be used to generate advertising. Even given the use of conspicuous disclaimers, the law remains unsettled as to these questions. FTC Scrutiny—Antitrust The FTC is focused on whether the changes that AI will bring into our society are consistent with antitrust laws. FTC Chair Lena Khan has noted that there is already the risk that established players in the AI industry will be tempted to unlawfully restrain new entrants to maintain their dominance and that “a handful of powerful businesses control the necessary raw materials that start-ups and other companies rely on to develop and deploy AI tools.” Thus, as the presenters noted, it all comes down to data. Current AI tools are trained on huge datasets of information scraped from the web. However, now content and media companies that before unknowingly provided data for the development of generative AI have asked for payment or a license for future use of their content. It should also be noted that standard website terms of service typically prohibit the scraping of their content using automated means and thus such web content may not be “free” or available to train AI, as a matter of contract. The open question is: Are such restrictive website terms lawful, and can they be enforced in these instances? The FTC has hinted that such “take-it-or-leave-it” web contracts might constitute unfair methods of competition, in certain circumstances, but this issue is certain to play out in the future development of generative AI and whether the FTC will bring enforcement actions against entities that attempt to stop developers from using publicly-available website data for AI training purposes. Additional AntitrustIssues From a high-level perspective, the presenters noted that innovation and disruption routinely breed antitrust concerns, and in the current climate, we may see incumbents seek to unlawfully restrain AI companies that may be perceived to be threatening established businesses. On the other hand, incumbents could also seek to use AI to maintain their competitive positions. The presenters stated that just as agreements to block AI use and development could be deemed anti-competitive, so can agreements to adopt it (e.g., competing firms entering into separate agreements with a single AI platform that uses a common pricing algorithm could be alleged to be collusion). From an enforcement perspective, the presenters also noted that regulators and enforcers have taken note that in bringing such cases, a company’s use of algorithms leaves behind a digital trail that could be examined by regulators.
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