Bottom Line Business Insights : Maryland Business Lawyer & Attorney : Wagonheim Law Firm : Mergers & Acquisitions & Contractual Negotiation

Guest Blogger: Michael J. Lentz, Esquire

I’ll admit it – I used to be profoundly annoyed by, and more than a little bit uncomfortable with, the notion that Twitter could be a useful tool in the development of my commercial litigation practice. I envisioned Twitter as the latest unwelcome step in the drive-thru-ification of America, where fast and easy often replace, and are often deified at the expense of, thorough and thoughtful. I viewed Twitter as nothing more than one of many ways for the self-absorbed to tell the rest of the world about their lives - it seemed unnecessary at best, and shallow and self-aggrandizing at worst. 

Last week, though, I attended an excellent webinar on the use of Twitter for client development, presented by Kevin O’Keefe, the founder of LexBlog (full disclosure: LexBlog hosts this blog). I’m not going to attempt to reiterate Kevin’s points here – you can follow his blog or follow him on Twitter. At the start of the webinar, I was largely Twitter illiterate – I didn’t know a hashtag from a hash brown. More to the point, I literally could not fathom that Twitter could be useful to me, so I didn’t see any reason to attempt to become literate. 

An hour later, though, I had specific examples of ways in which Twitter might be useful to a busy litigator trying to develop a practice. Certainly, some of the suggestions were inapposite. Others were sensible in theory, but might be difficult for me to put in to practice, given a finite amount of time to devote to the effort. There were other suggestions, though, that made sense immediately, and that I knew I could put into place immediately. Receiving fairly simple, concrete examples of what Twitter can do for me made me change the way I thought about Twitter. I’m still not convinced that it’s the eighth wonder of the world, as some of its advocates seem to believe, and I’ll probably never use it as fully as Kevin and others like him do, but I am convinced that it has its place. 

This epiphany reminded me of an important marketing lesson: when you’re marketing, whether verbally or in writing, and whether your audience is an enormous group or a single individual, make the presentation not merely about you, and your skills and talents, but about what you can do for your audience. Leave your audience with simple, concrete examples of how your business, product or service can help them.  No matter how good your business is at what it does, prospective customers and clients will not become actual clients and customers unless and until you can explain, simply and completely, how your business will benefit them. 

Michael graduated from Georgetown University Law Center in 1998. After spending five years with large Baltimore firms and three years as a solo and small firm practitioner, Michael joined Wagonheim Law in 2006, where he continues to utilize his extensive experience in commercial, bankruptcy, and appellate litigation to work with companies throughout the mid-Atlantic region.

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There is no such thing as privacy. You would know that if you were inclined to take even a casual glance at Sports Illustrated as 2010 ran down. The sports world was consumed with stories about Brett Favre’s alleged texts to Jets sideline reporter, Jenn Sterger and now two massage therapists as asserted in recent court filings. Not to be outdone, Jets head coach, Rex Ryan, found himself on the sidelines while all of New York seemingly became obsessed about his wife’s internet persona. 

Now, a Michigan court is preparing to weigh in on the subject of online privacy. According to the ABA Journal, a Michigan man is facing felony charges for reading his wife’s e-mail in an effort to determine whether or not she was having an affair. He was charged under a statute intended to apply to computer hacking, but is read to apply to a circumstance in which someone uses another person’s password, without permission, to, in this case, do a little investigative research.

Given the prevalence of online activities in our society, the issue of online privacy has almost universal ramifications.   A week doesn’t go by when we do not hear a question from one of our clients involving employees texting, using Facebook accounts, or simply shooting e-mails around the office. The legal issues can run the gamut from unauthorized use of equipment to sexual harassment and the creation of a hostile work environment.

But what are the employer’s rights?

There are three statutes which have to be considered when an employer contemplates monitoring the employee’s use of e-mail, telephone or the internet: (1) the Electronic Communications Privacy Act of 1986; (2) the Maryland Wiretap Act; and (3) the Maryland Stored Communications Act.   Maryland courts have consistently explained that the purposes of Maryland law on the subject is to prevent the unauthorized interceptions of conversations where one party has a reasonable expectation of privacy. 

If asked, many employers would maintain that no employee has a reasonable expectation of privacy if company equipment is being used for the communication. But that is not always the case. The question can turn on the type of monitoring at issue and the employer’s goals in taking the offending actions. For example, videotaping employees is different than recording their phone conversations or perusing their e-mail after they have left for the day.

In each case, there may be a legitimate business purpose behind the company’s actions. We’ve all heard the recorded message that “calls may be monitored for quality assurance.” Another reason for monitoring, this time relating to e-mail, is that companies can be sued for copyright infringement or even sexual harassment, depending upon information downloaded by employees onto company systems. 

By far, the best policy for any business where monitoring will take place or even where employees have access to e-mail and the internet is to create and distribute a written policy explaining the company’s right to engage in the specific type of monitoring anticipated by the company. The warning alone, if well drafted and universally distributed, will serve to limit or eliminate the employee’s expectation of privacy. And in the end, that’s what it comes down to – fair warning, reasonableness, and the question of what a normally intelligent person’s privacy expectations should have been.

We’ll just have to see how the court defines “reasonable expectation of privacy” where Brett Favre and the Michigan husband are concerned.

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“I got a phone call this morning from one of our oldest customers. He fired us. After 20 years, he fired us. Said he doesn’t know us anymore. I think I know why.” 

The speaker recounted his phone conversation to his account reps, saying “we used to do business with a handshake, face-to-face. Now it’s a phone call, a fax, ‘get back to you later,’ with another fax, probably.” 

This United Airlines commercial was originally aired before e-mail and the advent of social media. First aired twenty years ago, in 1990, it still resonates. So many businesses are started by an entrepreneur, skilled in the producing the product or service that spawned the company. Customers came because of the skill and stayed because of the attention. As the owner of a small business, the founder could track every project and knew every client. When someone was upset; he knew it.

Growth has a way of making that kind of personal attention obsolete. Time passes and a founder looks around to realize that whole projects are being performed for customers he never met.   And what about the ones he knew – the ones who built his business or who inspired him to go into business in the first place? Chances are, they’ve been delegated. Delegated to talented people, to be sure, but delegated just the same. 

Sooner or later, the thought has to occur to these customers – your old friends -- that if they mean little enough to your company that they can be delegated, your company means little enough to them that they can go elsewhere.  

Looking ahead to 2011, most business owners set targets for growth -- more revenue, more customers, bigger projects, better distribution. But how many set goals reflecting stronger relationships, customer retention, and expressions of gratitude? 

Many years ago, I read a book in which the author urged business owners to “pay attention to the ‘fine’s.’” He meant that people rarely voice their complaints. When asked about service or the particular product they purchased, even when dissatisfied, they’d normally respond that things were “fine.” Not every customer can be counted on for enthusiasm. After all, there isn’t an infinite amount of enthusiasm to go around. But the silence and the “fine’s” speak volumes to those with a keen enough ear and enough focus to notice. 

So what are you doing to focus on client retention, rather than just growth? Studies indicate that a new client is 7 times more expensive in terms of marketing and advertising dollars than existing clients. The point is that it is much cheaper and more efficient to keep the clients you have than spend every ounce of energy trying to bring new prospects in the door. 

If you do not already track trends in returning business, 2011 is an ideal time to start. After all, nothing speaks to customer satisfaction more than repeat business. Even more than tracking it, look for the things that increase the pace of returning business over time. 

Perhaps, like those executives in the United Airlines commercial, you can forgo e-mail, faxes and phone calls, and, just once in a while, put in the time to travel even great distances for a handshake.

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Not long ago, I was on a plane, giving some serious thought to the business applications of Facebook, MySpace, LinkedIn, and Twitter.  I was thinking about business, but the subject I kept returning to was fish gills. 

It was my 12th grade biology teacher, Mr. Williams, who posed the question: "Why are gills deeply ridged, almost like the pages of a book, rather than smooth?"  The answer was "surface area."  A gill's sole function is to absorb as much oxygen from the water as possible -- just like lungs in a human.  The more ridges, the greater amount of surface area.  The greater amount of surface area, the greater the exposure to oxygen -- all packed into a confined space.  Which brings us back to the social networking sites.

Facebook, MySpace, LinkedIn, and Twitter are all about exposure to the outside environment.  The greater a person's participation, the more friends, fans, followers and connections.  From a business standpoint, exposure to potential customers out there in the environment equates to one's surface area.   

But it's not just surface area that matters.  For the organism to thrive, gills must be exposed to the proper environment.  A fresh water fish will die in salt water.  Similarly, large scale exposure of a business to a community of non-buyers will result in noteriety, not success. 

And that's the question facing businesses, my own included --- how can a business ensure that its social networking initiatives gain exposure to the right environment? 

I welcome your thoughts.

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