I have taken a few weeks off of blogging.  Honestly, I felt like I needed the break, but I am excited about getting back on the saddle and writing again.

Since it has been a few weeks, let me give a brief update on what we have been up to.  Alerding Castor Hewitt has had an exciting beginning to 2010.  On January 1, Bill Boncosky joined us.  Bill is a business attorney / technology and SaaS law attorney working with privately held companies, primarily in technology industries.  Bill has spent the last seven years as General Counsel at ExactTarget.  We all have much to learn from him and are thrilled to have him as part of the team.  The IBJ put out a nice article in January on our firm's focus on entrepreneur law and Bill's joining us in this field.

This week Scott Kreider joined our business litigation group.  Scott adds to a team headed up by Mike Alerding that handles a difficult and necessary discipline for any full service business law firm – handling business disputes.  It is great to have him aboard.  Also, Mike made the IBJ's 40 under 40 the other week.  Good stuff.

Over the last few weeks our firm has helped four clients through capital funding processes - three from angel investors or private equity firms and one from a venture capital firm.  It is always encouraging to see business clients grow, and we count it as an honor to be part of their process.

We have also been involved with many businesses and business owners through customer deals and strategic business growth matters.  We will write more on some of those matters in future posts.  

I was a guest lecturer the other week at Purdue’s entrepreneurship capstone course.  Man I felt old, but I was very encouraged by the enthusiasm, drive and smarts from this class.  

So there is the fire hose version of the last few weeks.  2010 is off to a strong start for ACH.  I am looking forward to what is coming down the pike.


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

Last Tuesday, I attended the TechPoint Innovation Summit.  In addition to meeting some great entrepreneurs and technology business people, I was fortunate enough to hear Clayton Christensen speak about his disruptive innovation economic theory.  I have to admit that this was my first exposure to this particular theory, but it highly intrigued me and made me think about its applicability to the practice of law in general and to business law firms specifically.

In a nutshell, Christensen's theory describes the impact of new technologies on a given market.  Essentially, in any given market, there is first a push for centralization. This centralization actually results in a higher cost to the consumer as the centralized firms compete with each other for top billing.  Following that centralization, new technologies emerge that allow for businesses to do things cheaper and simpler.  These new technologies lead to innovations in the market that eventually force change or failure of the centralized companies.  I know that I've put together the 100,000 foot view of the theory, but you get the gist.

Applying this model to business law firms, you see the implementation of centralized firms, in the advent of the big law firm.  These big firms then compete with each other and ultimately drive up the cost to the end-user.  Following Christensen's theory, now is the time for disruptive innovators in the legal field.  This reality is evident in the hard impact that big firm's suffered in the recent economic times.  

In my humble opinion, this theory is why firms like Alerding Castor Hewitt are competing well in these markets and will not only continue to be effective, but will thrive.  Through the willingness to embrace technology and focus on cost-effective, simpler representation, firms like ACH can focus on the entrepreneurs that need this representation, but aren't willing to endure the big firm costs. 

Why is this important?  Because as the world continues to change and technology law and innovation comes to the forefront, the innovators will be leading the pack and will want representation that understands both their needs and their spirits.  While this new business reality continues to develop, those of us here at ACH will continue being disruptive innovators (which incidentally would also be a great name for a band).   

Operating under Indiana entrepreneurial law, I have seen a great number of contracts across my desk, and many for new business owners plunging into a world of negotiations.  Fresh out of the gate, it's important for savvy business owners to get up to speed quickly on essential provisions that should be included in their contracts.

For instance, for business owners who are retailers, wholesalers, or merchants who otherwise sell "property" (essentially, products that you can pick up and move), they are operating under the Uniform Commercial Code (UCC).  This is a uniform act passed by the Federal government to provide consistency between the states. 

Each state has adopted certain provisions of this act and incorporated into their state statutes, thus becoming state law.  In litigation, courts will abide by the state business law statutes and look to the UCC to fill any gaps that may be subject to interpretation.  Generally speaking, the UCC has been adopted fairly uniformly across the board with some discrepancies between the states, so it's important to understand how it may apply to your transactions while being aware of the local implications.

As an example, within the UCC, there is a definition for consequential damages, which are sometimes referred to as special damages that can open up a seller to a tremendous amount of liability if they don't negotiate this out of their contract with a disclaimer. 

While direct damages are exactly that, damages that are caused directly by a breach of a contract (such as the cost to repair or replace the item, loss of value to it, damages caused to the product), consequential damages are a step beyond.  Consequential damages are those that are:

1. reasonably foreseeable by the parties
2. at the time of contracting, and
3. caused by a breach of the contrac
   t

This is a factual determination that will be decided by the court, and could result in thousands of dollars in losses for a seller.  If a court decides that the buyer is awarded consequential damages, a seller could be forced to pay damages that would include loss of profits or revenue.  This could be exponentially higher than the cost of the product depending on the situation.

Don't get caught contracting without the proper terms in place to protect you, such as a disclaimer statement to consequential damages.  These disclaimers are often accepted by the courts as a reasonably negotiated term of an agreement and enforceable (depending on the jurisdiction). 

Business law firms like Alerding Castor Hewitt, LLP are here to help.  Give us a call.

Congratulations to Kyle Lacy on his recent publication – Twitter Marketing for Dummies.  The book is available by pre-order.  Check out Kyle’s blog site for pre-order information.

Kyle summarized his book on a blog post:

• Examines how Twitter’s style for character-count caps and real-time posting allows for unique marketing opportunities
• Analyzes several real-world examples of successful strategies for marketing on Twitter
• Discusses ideas for promoting brands on Twitter, building a following, communicating better with followers, and driving traffic to a Web site
• Shares the top Twitter applications

Kyle is CEO and co-founder of BrandSwag, a branding/marketing business that helps companies companies incorporate new, creative marketing tools that build stronger relationships with existing clients and foster effective relationships with new clients.


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

I have met with private equity firms, angel investor groups, and venture capitalists all over the nation about tying into private equity investments in Indianapolis – primarily with SaaS businesses.  I am always amazed by the cultural differences of investors in different areas of the country.

In Indianapolis, for instance, investors typically want to consider investment opportuntities by looking at aspects of the business plan in the following order: (1) Management Team; (2) Market Opportunity, and then (3) Investment Opportunity.  Maybe this is traditional Midwest relational values, but first and foremost, investors want to know who is involved.  Ultimately the investor wants to know that he trusts that the individuals can carry out the businss plan before considering the business plan itself and the investment deal. 

In California, on the other hand, this is flipped on its head.  Investors typically want to see (1) Investment Opportunity, (2) Market Opportunity, and then (3) Management Team.  Before you go into anything related to the opportunity or the ability of the team to carry it out, let’s talk about the deal.  What is the expected return?  What is the exit strategy? 

Note that in both cultures, all three elements have to exist.  You have to prove that the market has a business opportunity that can be met by this business, that this team can be trusted to carry out a plan, and that success on meeting this opportunity will provide a return to the investor that is significant enough for them to take the risk of making the investment.



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

It's exciting to be apart of the city of Indianapolis, and even more so when you get to be involved with those who are shaping the future of Indiana technology.

Business law firms are a great place to practice as a technology attorney.  I am fortunate to live in a world where software start-ups and fresh business ideas (that often times are solving tomorrow's problems) crop up everyday and are a way of life.  You would be amazed at some of the exciting new software developments that are underway for Indianapolis in the next couple of years.

Surrounded daily with people who are focused on creating that next great idea, I firmly believe that entrepreneurial law may be the most rewarding area for an attorney to practice.  I enjoy being able to participate in such a positive way- at that initial level where private equity investors may be considered, or assisting in the strategy for the co-founders to create the most beneficial corporate structure for their entity.

An Indianapolis start-up that I'm particularly excited about is one driving e-commerce, using Compendium Blogware's software, called Global Toaster.  
 

As an entrepreneurial law attorney working with emerging and mid-market technology and SaaS businesses I am often involved in intellectual property strategies with my clients.  I am not a patent attorney (although my firm has patent attorneys within our network of partners that we routinely work with).  I do, however, live and breath technology licensing and my firm handles copyright and trademark matters for our business law clients.

There is a good article on today's New York Times on-line edition entitled Small Business Guide to Intellectual Property.  The article addresses some high level questions often asked by owners and officers of emerging companies.

In particular, the article addresses common IP fallacies held by emerging business owners.  Here are five fallacies:



If you believe any of the above statements, take a look at the article.  Having a solid IP strategy is highly important for any business - whether a professional service business that needs to protect its brand identity or a technology company seeking to protect its proprietary methods. 


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

As an entrepreneurial law firm we partner with our clients at a unique level (at least unique as compared to most business law firms).  The attorneys at Alerding Castor Hewitt seek to partner with our business clients providing more than mere legal services, but serving as full service general counsel.  This means assisting in areas of business such as capital structuring and private equity, development of business strategy, and general business operational consulting.  We also have created our Partners in Success program which is a group of professional services providers that we routinely work with to better serve our clients in all of their business needs.

I had the privilege today of meeting with Brent Tilson of Tilson HR, Inc.  The following is a summary of Tilson HR from its website:

Your people are your most valuable resource.

And in today's competitive business world, your challenge is to optimize the balance between employee performance and cost containment.

At Tilson HR, we understand this delicate balance, and we have the human resources knowledge, processes, and technology to help you reach your specific business objectives.

To enhance the value of small to mid-size companies, we offer human resources services that:

·         Increase company profitability.

·         Improve workforce productivity.

·         Reduce administrative time.

·         Mitigate employment-related risk.

·         Decrease overall labor-related costs.

Tilson HR strategically focuses on privately held companies in early to mid-growth phases.  I was impressed with how they treat HR as the value of people rather than the mere management of policies - with overall company profitability in mind.  Many clients of Alerding Castor Hewitt could benefit from Tilson HR’s services.  Check them out.

 

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Alerding Castor Hewitt is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

I read an interesting article on the Seeing Both Sides blog last week which addressed valuation terms considered by private equity investors when negotiating deals.  The article primarily addresses how an entrepreneur’s misunderstanding of valuation terms could harm the entrepreneur’s ultimate equity position following the equity raise.

Among other topics addressed, the article discusses the impact of management option pools on business valuations as considered by venture capitalists or other private equity investors.  Here is an excerpt:

The moral of the story here is that entrepreneurs seeking to raise funds should not get lost in pre-money valuations.  Rather, they need to consider the entire impact of the deal terms on their ultimate equity position.  The entrepreneur in the above example obviously did not get the better deal because he was hung up on the pre-money valuation.



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Alerding Castor Hewitt is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

About three weeks ago I wrote a post addressing some of my concerns regarding the rumored state budget cut to innovation and entrepreneurship initiatives.  Sadly, the state legislatures decided to cut innovation funding substantially.

On July 1 the budget for Indiana's 21st Century Research and Technology Fund was cut by $35 million over the next two years.  This is an extremely short sighted move.  It has a negative impact on both attracting and promoting growth for emerging technology businesses - businesses which have proven to be high growth and high profit.  Promoting the success of these businesses leads to an increase in jobs, increase in average incomes, increase in consumer spending, and increase to tax dollars back to the state.  That is economic improvement.

It is odd that in the year of economic stimulus dollars being granted to the state to boost infrastructure and economy, our state takes a position to decrease funding to businesses that truly impact economic improvement. 

According to their website, the Indiana 21 Fund exists to stimulate the process of diversifying the State's economy by developing and commercializing advanced technologies in Indiana.


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Alerding Castor Hewitt is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

Chris Baggott, CEO of Compendium Blogware, recently listed Alerding Castor Hewitt’s blog site as one of five outstanding corporate blogs.  In his original post on iMedia Connection, Baggott identifies what makes a corporate blog outstanding.  He states, “To me, an outstanding corporate blogging program is one that accomplishes the clearly articulated goals of the organization.”

Here is Baggott’s post regarding ACH’s (formerly Alerding Castor) blog:



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See Also:
Blogging For Search


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Alerding Castor Hewitt is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

Corporate Headhunters consistently look at General Electric as a major hunting ground to find business leaders.  CEO Jeff Immelt listed what GE looks for when hiring talent.  They look for someone who:

• Is externally focused
• Is a clear thinker
• Has imagination
• Is an inclusive leader
• Is a confident expert

It is interesting that these are all behaviors, not traits.

Source: Talent is Overrated by Geoff Colvin



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Alerding Castor Hewitt is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

One of the business law firms located in downtown Indianapolis, Alerding Castor, LLP began in April of 2007 and has now recently added Brian Hewitt as partner.  Under the new name, Alerding Castor Hewitt, LLP, I couldn’t be more enthusiastic to be a part of this legal team.  What I find exceptional about this firm is that we work as a team in order to provide our clients with outstanding legal counsel.   

 

While I practice mainly on the transactional side of the law, working with clients on such projects as: strategizing and negotiating multi-million dollar agreements, preparing private placement offerings in accordance with funding law, and offering legal technology consulting for SaaS licensing, we work collectively as a firm for our clients and have many attorneys who focus more on litigation. 

 

For instance, litigators, who spend most of their lives in the courtroom, have an eye toward recent courtroom rulings and interpretations of the law (because they have spent countless hours researching court opinions and crafting their arguments against opposing counsel).  So, I find that in order to provide my clients with the best possible legal advice, at times it is absolutely essential for me to discuss and carefully consider the perspective of our litigation attorneys – and they are always glad to provide me with that insight.

 

That is what a team is all about: utilizing the strengths of every member for the collective benefit of the team… which ultimately means the client. 

 

As an Indianapolis attorney, I’m proud to be associated with this growing legal team: Alerding Castor Hewitt, LLP.

Section 230 of the Communications Decency Act (47 USC 230), entitled “Protection for private blocking and screening of offensive material”, is an important federal statute for any interactive computer service provider.  As a technology lawyer, my law practice largely focuses on SaaS law, software licensing law and Internet based businesses, this statute impacts several of my clients.

The statute essentially provides protection for providers of interactive computer services against information published by third parties on their site, provided that “a  provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections… are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.”

Where the notification requirement is met, Section 230 provides certain protections from liability when users encounter objectionable material through the Internet service.  230 essentially divides online content into first party content and third party content and says that online parties cannot be liable for third party content unless (1) it is covered by the Electronic Communications and Privacy Act (protection of individual’s communications via technology by government officers without court order), (2) federal criminal enforcement, or (3) intellectual property claims.

I often read the Technology & Marketing Law Blog by Eric Goldman.  In a recent post, Professor Goldman summarizes liabilities under Section 230.  Here is an excerpt:

As a final point, with the global nature of many ISPs, it is worth noting that many other countries do not afford the protections that the US provides under Section 230 (e.g., certain first world countries have found ISPs liable for negligence where they have failed to investigate material or user published content).  For Internet based companies doing business globally, it is worth considering the application of Internet laws of those countries.


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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

In the movie The Natural (based off the Novel by Bernard Malamud), Robert Redford plays the role of Roy Hobbs, a fictitious baseball player considered to be the most naturally gifted person to ever play the game. 

In the movie, Hobbs’ career nearly ended when he was only 19 years old.  He was on his way to his big leagues tryout when he was shot in the abdomen by a lunatic woman who was on a mission to kill the most talented baseball player.

A number of years later Hobbs returns to baseball – going through the minors and ultimately making the big leagues at age 36.  There he excelled and was called the greatest player to every play the game. 

Every baseball fan, including myself (go Cubbies), loves this movie.  People want to believe that some folks are so naturally gifted that they rise above everyone else at their craft.  These people are bigger than life itself.  They deserve what they have received because they were born with lucky genes.  In this case, Hobbs hadn’t played for over 15 years but returned and was hitting tons of home runs and led his team to the post season.  He had pure God-given talent.

In the business world, people believe this as well.  They believe that some folks just have what it takes to be successful.  They are born that way.  It is natural.  You hear people say things like “He is natural born salesmen”; “She was born to lead a company.” 

The problem is that this does not reflect reality.  If you look at the history and practices of people who really excel at business you will see a lot of hard work, dedication towards excellence, and practice, practice, practice, and then, more practice. 

In my profession, great lawyers learn to study the law.  They also practice - they write, read, read again, write again, then study more… when all is done, they read once again.

Late in his career, Larry Bird would still routinely show up to practices an hour or two before his teammates to practice free throws and three pointers.  This is what Geoff Colvin refers to as Deliberate Practice in his book Talent is Overrated.  It is the process of deliberately working on aspects of your profession in order to better yourself.  The goal is excellence.  The process is hard. 

Natural talent may exist in an extremely small percentage of the population, but most of us do not even know these people - and it is surely not the norm.  Most of us have to practice and practice and practice, and then do, in order to achieve excellence in our craft. 



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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

A friend of mine and I were recently discussing the growth and strategic direction of my law firm.  He asked me, “What do you want to be famous for?”  Wow – great question.  It implies something more than just building a business to collect a pay check.  It pushes an answer that describes the pursuit of excellence – something bigger than yourself – something that makes a true impact on community and culture.

Most people I encounter are perfectly fine with being fine at their job (this includes most attorneys I know).  I wonder if these folks understand the compromise of being fine with being fine.  Our culture teaches people that if you work work hard enough but not too hard , you can do well in life. 

I believe that hard work and being good at your job is a minimum standard.  Being good at one’s craft is merely a barrier of entry into your profession.  If you want to play, you have to at least be good.  If you don't meet this standard you will eventually be forced out.  If you do meet that standard - so what - there are a million others who have also met this standard.  You are now a commodity.  You are on the ball field, but you are an average player.  Nobody knows you or cares (except maybe your mom).  How do you move to the next level?  How do you become famous?

To be famous for something requires people to go beyond being good (or fine).  You must be exceptional.  So what makes someone exceptional at their profession (or at anything)?

There are many ways to answer this, and I have read countless books from countless authors on the topic, but I believe it comes down to infusing diligence, hard work and a pursuit of personal fulfillment.  When these things merge, a person's job ceases to be a job - it becomes part of that person's lifestyle.  At this point a person moves beyond merely trying to complete a project or finish a workday in order to collect a paycheck.  They pursue excellence.  They see their profession as part of their larger lifestyle which ultimately wants to benefit others.


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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

This is an exciting week at Alerding Castor, LLP.

The biggest news is the addition of Brian Hewitt as a named partner of our firm - to take effect on June 28.  Brian is coming from Williams Hewitt Barrett & Wilkowski, and practices in business law, commercial law, estate planning, banking law, probate and business litigation and mediation.  Brian is a rock star attorney and a big land for our firm!  We are very excited to have him as a partner.

I am leaving today on a three day trip to New York City and Chicago with the itinerary of meeting with three private equity firms, two angel investors, and two business clients.  The goal of my entrepreneurial law / SaaS law / business law practice is to help technology and SaaS businesses get their innovations to market and, thereafter, sustain business growth.  These particular private equity investors are great matches for some of our business clients that are looking to raise capital.

Other than that, we have just a ton of projects for great clients which are moving at high speed.  This is fun!

For my first foray into the world of blogging, I think the important first step is to answer the standard journalism questions necessary for any good story, namely, the who, what, when, where, and why.  Sorry for the length. I promise that future blogs will be shorter.  Without further adieu, here we go . . . .

 

Who:  This one is easy because I know a lot about me.  My name is Chris Stephen and I consider myself first and foremost a litigator.  Some people in my field like to classify themselves first as attorneys and then focus into their specialty, but I start with what I love.  I enjoy the law and I immensely enjoy helping people, which are both great aspects of being an attorney, but my passion is litigation.  The constant strategy that is trial and appellate litigation is intoxicating and addictive, and I seek it out.  Secondly, I consider myself a technophile.  I enjoy learning about the new and emerging technologies and the implications that they have for our world (and more specifically for the microcosm that is the legal world).  But for more about me, please feel free to check out my bio at http://www.alerdingcastor.com/professionals/cstephen.html      

 

What:  This question is slightly more difficult to answer.  What is “technology litigation”?  To me, it is the emerging areas of litigation that focus on the interplay of technology and our world.  Globally, we are becoming evermore connected and technology is advancing at an outstanding rate.  And, as with all areas of society, as innovation advances, the legal world is left to catch up.  As the legal world transitioned from the radio to the television and from the telephone to the Internet, new laws and new legal interpretations are constantly evolving.  This evolution has been evident for some time in the transactional side of the law as newly emerging companies seize new ideas and seek to make businesses out of them. But the litigation side is still burgeoning.  This is a natural consequence of the legal framework.  You often don’t have litigation first and transactions second. The transactions come first and then we litigators argue about where the transaction falls apart, and in doing so, law is created.  But too often in the law, people are trying to use 20^th (or sometimes 19^th) century laws to deal with 21^st century problems.  So my goal with this blog is to bring to light the new and emerging areas of law (and potential litigation minefields) that surround the interplay of technology in our world.  This encompasses information technology, e-commerce, privacy, data ownership, cyberlaw, e-discovery, website ownership, some trademark and just about anything else that I (or you) can think of.  Of course, I’m also likely to include general litigation points or developments that strike my fancy.

 

When:  I make no promises, but the when is going to be as often as I can.

 

Where:  While the scope of the issues I plan to address are global, my location is Indianapolis, Indiana, which is a beautiful mecca of the Midwest.  Be it ever so humble there is no place like home.  More specifically, the “where” is Alerding Castor LLP (or as I’m likely to affectionately refer to it “AC”).  Alerding Castor is a quickly emerging law firm in Indianapolis that focuses on virtually all areas of business and corporate law, general and complex litigation and trials, probate litigation, real estate, private venture capital, and technology law.  One of the name partners, David Castor is an outstanding transactional law who has established himself as a guru of SaaS law and transactions.  The other name partner Michael Alerding is one of the best litigators I’ve ever met.  Together they make a great team, and have brought together a great team.  Obviously, I’m somewhat biased because they sign my paychecks, but, I think they both deserve a “shout out” for what they are doing and what they are building. 

To learn more about AC, check out http://www.alerdingcastor.com/index.html .  To learn more about David, check out his blog at http://blog.alerdingcastor.com/blog/alerding-castor.   

 

Why:  “What work I have done I have done because it has been play. If it had been work I shouldn't have done it. Who was it who said, ‘Blessed is the man who has found his work’? Whoever it was he had the right idea in his mind. Mark you, he says his work--not somebody else's work. The work that is really a man's own work is play and not work at all. Cursed is the man who has found some other man's work and cannot lose it. When we talk about the great workers of the world we really mean the great players of the world. The fellows who groan and sweat under the weary load of toil that they bear never can hope to do anything great. How can they when their souls are in a ferment of revolt against the employment of their hands and brains? The product of slavery, intellectual or physical, can never be great.”  -Mark Twain

I read a great article in this month's The Practical Lawyer entitled Rainmaking: Talent is Overrated by Cordell Parvin.  Although the article is describing attorneys as business developers, I think the lessons apply well to all business owners. 

Rather than summarizing the article, I have posted it below.  Really a great read.  Enjoy...

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I meet many young lawyers who instinctively know they should get better at client development, but either never take the first step, or take the first step and give up.  These lawyers have bought into the idea that only few lawyers have what it takes to become rainmakers.

A couple of years ago I met with the managing partner of a 500-lawyer firm for which I was about to begin coaching for 15 junior partners.  He was my age, and in addition to being the managing partner, he was a leading rainmaker.

During our conversation, he expressed skepticism about the value of coaching: He said: “Rainmaking, you either have it or you don’t. Some lawyers are meant to be finders, others minders, and others grinders.”

While I agreed that for some people client development comes more naturally than for others, I respectfully disagreed with his premise that lawyers either have it or they don’t.  Several months into our coaching program, he acknowledged that based on what lawyers in the firm were doing differently, lawyers can learn to develop business.

Lately, I have been writing about how rainmakers are developed rather than being born with the gift to attract clients.  I have shared with you some of Geoff Colvin’s thoughts from his book and article, Talent is Overrated.

What Beats Talent?

When I mentioned the book to Kevin O’Neill, a D.C. lawyer I coach with Patton Boggs, he responded that talent will never beat:

• Showing up early and staying late;
• Exerting enough effort to allow luck to play to your benefit; and
• Convincing the clients that they matter to you and you are focused on serving them.

Kevin hadn’t read the book, but he certainly understood its principles.  Simply engaging in a flurry of activities like meeting contacts for lunch, writing articles, and speaking is not enough—that’s the rainmaking equivalent of the golfer who stands on the practice range hitting bucket after bucket of balls, but who never actually gets out onto the golf course.

Deliberate Practice

Colvin, and researchers before him, talk about “deliberate practice.”  He describes the typical golfer on the driving range hitting large buckets of balls without any improvement.  On those rare occasions when I practice golf on the range, I am one of those golfers who does not get better.  My wife, Nancy, is a different story.  She took up golf when she was 40 and now plays in tournaments all over the country.  She is driven to get better, and unlike me, she focuses on specific shots in specific situations and has a teacher giving her feedback.  I have seen her work on sand shots, flop shots over traps, and knock down shots into the wind.  When we play “date golf” she works on those shots on the course.  Nancy understands deliberate practice. 

Colvin refers to a landmark research paper done by K. Anders Ericsson, Ralph Th. Krampe, and Clemens Tesch Römer: The Role of Deliberate Practice in the Acquisition of Expert Performance, available at http://projects.ict.usc.edu/itw/gel/EricssonDeliberatePracticePR93.pdf.  With the research, Colvin suggests that “deliberate practice” has these characteristics:

• It is designed specifically to improve performance, often with a teacher’s help;
• It can be repeated often;
• Feedback on results is continuously available;
• It is highly demanding mentally, meaning it requires us to focus on the task at hand; and
• It isn’t much fun, because we do not do well rather than doing things we already do well.

I already owe a great deal to deliberate practice. I did it for legal skill development as well as client development. Here are my ideas for how lawyers can deliberately practice client development skills:

• Figure out what is going on and the implications for your clients.  I read Engineering News Record (ENR) weekly looking for news that would create legal issues for contractors.  If I were still practicing law, I would have iGoogle pages and Google alerts and read the ENR alerts to find issues;
• Write articles. I wrote a monthly column in Road & Bridges, a top industry publication for 25 years. Over time, I got better at selecting the topic, creating the title, getting readers engaged in the first paragraph, and offering a conclusion readers found helpful;
• Do some public speaking. I was so nervous the night before my first presentation to a construction industry group that I could not sleep a wink. I overcame being nervous by speaking in public as often as possible, including teaching senior high Sunday school at my church.  I also shot videos of myself speaking over and over again until I get more comfortable;
• Network.  I always hated networking and striking up conversations with people I did not know.  I decided I needed to network frequently to become better at it.  I went to functions just to practice my networking skills;
• Think up elevator speeches and elevator questions.  I practiced these on airplanes and other places where I met strangers;
• Work on asking questions and listening.  In law school we are not taught how to ask questions, and over time I believe we have lost listening skills.  Every meeting I had with a client I worked on asking better questions and being focused on the answers.  I also read books on asking questions and improving listening skills. 

In Talent is Overrated, Colvin talks about the important role teachers, coaches, and mentors play in developing skills. First, your teacher, coach, or mentor will help design the activities best suited for you to deliberately practice client development skills.  Second, your teacher, coach, or mentor can give you unbiased feedback on how you are doing. 

 

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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.

There was a great post on the bMighty blog last week regarding the debate between who Infrastructure as a Service (IaaS) is better targeted for – large enterprises (+1,000 employees) or small to midsize businesses (SMBs). 

According to a recent Forrester research report on cloud computing models entitled Conventional Wisdom is Wrong About IaaS, a higher percentage of enterprise-level businesses are interested in Infrastructure as a Service than SMBs.  Fredric Paul, the blog author, argues that despite this report cloud computing is more appropriate at the SMB level.  The reasons include: less legacy infrastructure, fewer security and compliance issues, greater capital expenditure constraints, smaller internal IT staffs, and a bigger appetite for innovation.

He concludes by stating: “Given the exponentially larger number of small and midsize businesses, even if they're a few percentage points less likely than enterprises to head to the cloud, there will still be waaayyyy more SMBs in the cloud than there will be enterprises.”

Over the last year I have seen the debate between the value of cloud computing, and SaaS, for enterprise vs. SMBs grow.  This is quite important to any cloud computing or SaaS business which is trying to refine its target market.  Many IaaS and SaaS businesses focus solely on SMBs, as described in Chris Anderson’s book The Long Tail.  Part of the reason is that this previously under-addressed market segment is huge – and there is much opportunity for quick sign on and customer benefit.  But, larger contract scale and margins from enterprise customers make that segment too enticing to ignore – especially in light of the growing trend of buy-in from these types of businesses.




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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.