Attorney Journals, San Diego, Volume 238

Developing Litigation Issues

Colin Kass & Tim Mungovan

Little League, Big Returns: The Power of Local Engagement

• $22,659,551 settlement for clients defrauded in a local Ponzi scheme in Levin v. Chicago Title, et al. (2021)(Michael Kirby & Jason Kirby).

• Complete defense jury verdict in real estate dispute and more than $400,000 collected for attorneys’ fees and costs in Batter v. McElhinney, et al. (2019)(Jason Kirby).

• $2.1 million jury verdict for firm client in Doe v. San Diego Unified School District, et al. (2018)(Jason Kirby & Michael Kirby).

• $1.1 million arbitration award for firm clients on cross-complaint after zeroing plaintiff on $6 million damage claim in Step Strategy Advisors v. Solid Gold Health Products for Pets, Inc., et al. (2018)(Jason Kirby lead counsel).

Sponsorships can go really right or really wrong— and we’re here to help your law firm get it right. It’s far more than just a logo splashed on a jersey or a website. The most successful sponsorships are built on relationships and shared values.

Seriously, the ROI for local engagement is much higher than most lawyers realize. When paired with local press coverage and strategic content creation, sponsoring a local event can even help with your SEO efforts.

No matter your area of practice, you can find an appropriate sponsorship opportunity and reap the benefits of local engagement. Here’s how.

Here Are the Top Benefits of Local Engagement for Law Firms

The return on investment for local engagement can be extremely high. It’s relatively easy to find a local event to sponsor, and the brand exposure and community connections you’ll earn are well worth the cost of admission. Strategic local sponsorship can help firms maximize visibility and cultivate a positive brand perception among potential clients and referral sources.

Benefits:

• Demonstrate commitment to community and philanthropic spirit

• Establish valuable partnerships with local businesses to increase referrals

• Create lasting impressions among potential clients and community influencers

Remember that marketing is all about getting your brand in front of the right audience. Your local reputation has a big impact on your ability to get hired. Without ever taking on an actual case, local sponsorship can position your firm as a trusted community leader. Plus, you can feel good about investing in your community. Win win!

Little League, Big Returns: The Power of Local Engagement

by Omnizant

Examples of Sponsorship Opportunities

Don’t feel the need to reinvent the wheel! Sponsorship is about giving a boost to a local initiative and then riding their coattails. You’re just supporting a group that’s already working hard.

Sponsorship ideas for lawyers:

• Local sports teams (adult or kids)

• Farmers markets

• Toy drive

• School supply drive

• Volunteer trash clean-up days

• 5k races

• Giveaways

• Scholarships

• Community auctions

• Other grassroots events

Start by checking your local bar association guidelines to understand its rules around things like giveaways and sponsorships.

Next, ask the organization whether they would prefer money, time, or materials. Some organizations simply need an injection of cash, others need human power. When reaching out, law firms should highlight their commitment to the local community and the value they can bring as sponsors.

Then, agree on how you’ll be showcased as a sponsor. Your logo could be emblazoned on the back of jerseys, on a banner, on a gift package for participants, or on the event program and website. You could even ask to speak at the kickoff event—or throw out the first pitch at a game.

How to Pick the Right Sponsor Opportunities

Exposure is good, but smart exposure is better.  If you need some guidance on identifying a suitable organization for your law firm, here’s how we identify a smart sponsorship opportunity:

• People: The event participants reflect the firm’s target audience.

• Topic: The event’s topic or values align with the firm’s brand values.

• Impact: The sponsorship relationship would be mutually beneficial.

Here’s an example. Say you’re a personal injury law firm focused on car accident injuries. Which is a better fit, a Little League sponsorship or volunteer community cleanup day?

Option 1: Little League

• People: Kids and their families

• Topic: Competition, support local talent

• Impact: New jerseys for the team and brand exposure

Option 2: Community Clean-up Day

• People: Active civic-minded locals

• Topic: Safe streets, take care of each other

• Impact: Improve quality of life on city sidewalks

In this case, the community clean-up day seems better aligned with this firm’s target audience, values, and impact. There’s potential for an ongoing relationship based on mutual priorities (safety on the streets) and, for the price of coffee and doughnuts, the ROI could be quite high. Ready to reach out? Keep it simple when reaching out about sponsorship opportunities. Try one of these templates:

• We have been following your organization’s incredible work within our community and would like to express our interest in becoming a sponsor. We believe that together, we can amplify your results and positively impact more people. Can we join forces?

• I am reaching out on behalf of our law firm to explore the possibility of a sponsorship partnership. We admire the work you do and would be thrilled to support your efforts. Let’s chat!

• At our law firm, we firmly believe in supporting local organizations that make a real difference. Your organization’s commitment to [community cause] aligns perfectly with our values, and we would like to explore a potential sponsorship partnership.

• Our law firm shares a common vision for community empowerment, and we would love to contribute to your cause through a sponsorship collaboration. Let’s explore the possibilities!

How to Get the Most Mileage out of Your Investment

To maximize the impact of local engagement and sponsorships, law firms can employ several strategies.

Firstly, press releases play a crucial role in garnering attention and generating local SEO mentions. By crafting compelling press releases with newsworthy angles, law firms can attract media coverage and build valuable backlinks for improved search engine rankings. It can be helpful to foster relationships with local journalists and publications to increase the chances of coverage.

Secondly, leveraging social media platforms allows firms to broadcast their engagement and continue building a relationship with the local community. With the permission of participants, capture photos or videos of the event and share them on your firm’s social channels.

Finally, consider collaborating with a legal marketing agency to streamline everything, ensuring coordinated coverage and maximizing your exposure.

Review and Next Steps

Take a break from chasing the Google rankings and meet your neighbors. Investing in your local community can yield major fruit. A smart sponsorship opportunity aligns with your audience, your values, and your goals. n

Since 2006, Omnizant’s team of digital marketing experts, designers, developers, and writers has helped over 2,000 law firms develop powerful websites that drive business growth. Learn more at www.omnizant.com.

On July 3, 2023, a new app called Threads appeared on the App Store with a release date of July 6 being planned. Threads is a new social media platform developed by Meta—Facebook and Instagram’s parent company—which is being positioned as an alternative to Twitter.

As many law firms start to learn about Threads, they may be wondering whether or not they will experiment with the platform. And in turn, law firms who are on the brink of dropping their Twitter strategy are looking to Threads to see if it could become a replacement for the type of content Twitter is known for.

Backed by an almost $800 billion dollar company like Meta, it’s clear that law firms can trust that Threads is on the right trajectory.

But just what exactly is Threads like? And should law firms give the platform a go? We break it down in this article:

What Is Threads?

Threads is a platform “…built by Instagram. Threads is positioned as an app where people can have real-time, public conversations with one another.”

Over the past several months, many Twitter users have been disgruntled by the numerous changes happening to Twitter under its new leadership. In fact, Twitter has frequently fallen below its weekly sales forecasts, at times even as low as 30%. Many platforms have tried to emerge to replace Twitter, but none have been successful. However, this new Meta-backed app is promising, given the power and trust held by a company as large and well-known as Meta.

Threads looks to replace Twitter, once known as the online ‘public town square’ where users could easily swap information, ideas, and news.

As of July 10th, Threads already has 100 million accounts, and many top brands have started joining, including DLA Piper, White & Case, and Cooley. And it’s no wonder so many are hopping on Threads, as users already on Instagram can easily create an account using their existing account/ data.

Threads Features

So, what features does Threads have, and how is it different from Twitter?

The good news is, Threads is in its very early days, and

Threads Social for Law

Firms: Your Most Pressing Questions Answered

by Natalie Moe

they plan on adding more and more features moving forward. However, as of right now, Threads offers these features:

• Users with Instagram will automatically gain their Instagram following on their new Threads account, so building a following is easy.

• Posts can be up to 500 characters long.

• Videos can be up to 5 minutes long.

• Threads have built-in tools to enable productive conversations. Users can control who mentions or replies to them.

• Safety is taken seriously, and Threads will enforce Instagram’s community guidelines.

Even with a robust set of features allowing Threads to remain competitive against Twitter, the platform still has some key differences from Twitter:

• The platform only features one feed rather than a ‘For You’ and ‘Following’ feed

• You cannot caption alt text yet on the platform

• Shockingly, the platform features no hashtag search functionality at the moment

• The platform has no web version, only mobile.

• Twitter allows edit options for paid users, however, Threads offers no edit options at the moment

Although Threads differ in some ways from Twitter, many users are happy with these differences, viewing them as positive compared to changes recently made at Twitter that they disagreed with.

What Does This Mean for Law Firms?

As this platform emerges, the risks of hopping on it are slim to none. With backing from Meta and the creation team being Instagram’s, the platform is guaranteed to take privacy and safety seriously.

Furthermore, the ease of connection between Instagram and Threads makes the setup easy. Those looking to try Threads don’t have to worry about organically building a following as their Instagram following automatically attaches itself to their Threads account.

Already many in the legal sphere are quickly hopping on the

app. Top legal publications like JD Supra, Law.com, American Bar Association, Above the Law, and Lexblog have joined. And 25 of the Amlaw 200 firms are already on Threads.

Threads has quickly gained popularity amongst lawyers, smaller firms and solo practitioners, particularly those in the personal injury, family law, and tech spaces.

Overall, Threads is a good choice for law firms and lawyers looking to position themselves as thought leaders, share legal industry news, and share text-heavy content, similar to how Twitter has been used in the past.

Concerns to Keep in Mind

Luckily, law firms do not have to worry about privacy and safety concerns when it comes to joining Threads. Since the platform is backed by Meta, Threads does not suffer from the typical privacy issues that young social media platforms often face.

And with Instagram’s team covering its creation and maintenance, law firms can be sure that the team knows how to run a social media app. However, a key concern that law firms should keep in mind is that if they do ever decide they want to delete Threads, they may want to think twice. Although it’s great that Threads and Instagram are connected, this now means that if users delete one account, the other will be deleted as well. So, if you decide to delete your Threads account after impulsively making one, then your Instagram will go with it.

Another cause for concern is how public Threads is about

its competition with Twitter. Tensions are high between Twitter and Threads, as well as their CEOs Elon Musk and Mark Zuckerberg. So, many are speculating that lawsuits are potentially on the horizon.

Furthermore, as Threads is such a young app, there isn’t much research yet on what demographics are using it. Law firms should pay close attention to how the Threads user base evolves, as they may need to alter their strategy if user demographics aren’t aligning well with their target audience.

Takeaway: So, the question remains: should law firms join Threads? The answer is yes. There are not many negatives to joining Threads at the moment, and with its backing by Meta/ the Instagram team, law firms can be sure that creating an account won’t actively harm them.

As more and more information comes out about Threads, be sure to follow our blog for the latest news and insights on building a successful Threads strategy. n

Natalie Moe is a Marketing Manager at Good2bSocial, where she is responsible for the company’s digital marketing, social media, content strategy, and marketing communications. Before Good2bSocial, Natalie gained marketing experience by assisting different business and non-profit organizations with their digital marketing needs. Natalie graduated from Marquette University with a double major in Public Relations and English. Learn more at: www.good2bsocial.com.

Video is becoming more than a “nice to have”—it’s essential for law firm marketing. Video not only gains interest across more channels, but it can also add credibility to your content. Production value doesn’t matter as much as the information presented—if you can provide value and education to your audience, they will be happy to engage with your videos. To that end, we’ve put together a list of topics that make great video content. If you’re stumped when it comes to subject matter, take a look at the following list of 8 topics for law firm videos.

8 Types of Videos Every Law Firm Needs

1. A Client Testimonial

Getting a client to share why they trust you can mean a lot to prospects or new clients. It’s a form of social proof, which plays a huge role in a potential client’s decision process. When possible, you want to share specific and tangible results. You can do this through brief case studies, a collaborative exchange such as a Q & A with a current client, or by asking a previous client to share a quote via a clip. By putting your client testimonials into video format, you appear more trustworthy, as now potential clients can see this testimonial is coming from a real, relatable client.

Tips for creation:

• Make the focus of filming on the client and its representative

• Include the client representative’s name and title in the quote

• Allow the client to dictate the script and use their own words

2. “Explainer” Videos

This type of video can drive a lot of engagement, but you need to have a strategy before posting. What is the goal of the video? Who is the audience? Really think about the problems

8 Types of Videos

Every Law Firm Needs in 2023

by Kevin Vermeulen

your readers are facing, and how to break down the steps that address those problems. Then, shape your story around those components. Explainer videos are a great place to add other media. Think of explainer videos as a video version of your ‘How to’ or guide type of blog posts.

Tips for creation:

• You can use infographics, animation, or live action to walk people through the steps you’re talking about

• Don’t be afraid to repurpose other content like blogs for this video

• Leverage text to make steps clear

3. Short Form Social Media Video

If you’re active on social (and you should be), you can pull some fodder from there for short videos. Consider items that you’ve posted on social—such as behind the scenes or Q & A items—and link to them and elaborate in video content. If you’re featuring something timely on social, such as an upcoming webinar or sharing an award your firm won— elaborate on that material and create a quick clip that your social media posts can link to. Since the creation of TikTok, short form videos are now performing best on social media. Stick to creating videos for social media that are biteable and easily consumable.

Tips for creation:

• Always include closed captions

• Optimize content for small screens

• Consider your thumbnail and make sure it’s eye catching

4. A Website Video

When people are making a decision about which firm to work with, they want to get a feel for your attorney’s personality, your culture and mission statement, and what you stand

for. Providing this information on the homepage or “about us” page in a quick and efficient way is helpful for website visitors. Apply a personal touch to your videos and ensure that content is genuine, personable, and helpful. For example, you might have the founder of your firm share why he or she started their own company or highlight a non-profit your firm is passionate about and why.

Tips for creation:

• Focus on making your values clear

• Make sure text, font, colors, and images are in line with the branding of your website

• Use real associates and attorneys in the video

• Make your practice areas clear

5. Tips Video

Who doesn’t love getting tips from experts? Videos with specific tactics can live as extra content on your website and further explain things that your clients may have questions about. For example, if you’re a DUI attorney, you could walk people through the “dos and don’ts” of a traffic stop. A family law attorney can lay out the different stages of a typical child custody case. You don’t have to take a deep dive into every subject, but providing helpful information is a great place to start and begin building trust with your client base. Share these videos on social media or to your email database.

Tips for creation:

• You can repurpose blogs into this video type

• Include the number of tips in the title and number each tip throughout the video

• Have an attorney go over the tips

• Include a strong call to action on next steps they should take if they need further help

6. Attorney Bio Videos

In these videos, you’ll share professional as well as personal information on your firm’s lawyers. Viewers will be interested in an attorney’s background, experience, education, family life, and hobbies. This helps personalize your attorneys and humanize your brand, so that individuals feel more comfortable before they even meet your staff. You can even incorporate photos of the attorney featured for a more engaging approach. We suggest posting these to social media and to the individual attorney’s bio page on the website.

Tips for creation:

• Make sure attorneys speak clearly and slowly

• Have the script written in a way that is natural to speak

• Include the attorneys’ names and specialties in the video

7. Paralegal Insights

These professionals are a key part of any law firm. In many cases, clients interact with a paralegal more than their attorney. That’s why it’s important for paralegals to create their own thought leadership. Ask paralegals to choose a topic they’re passionate about and create a video that highlights their unique expertise and perspective.

Tips for creation:

• Coach paralegals on what it means to be a thought leader

• Include some background on what types of cases the paralegal has worked on

• When creating the script, include excerpts from each paralegal’s unique experiences and perspectives

8. Podcast Teaser

Promote audio snippets from podcasts, radio shows, etc. using video. There are tools available (such as Wavve) that can turn your audio into custom-branded, animated marketing videos for social sharing. Doing so is a great way to generate interest in your podcast and promote your latest topics and speakers.

Tips for creation:

• Include excerpts from the most important parts of the episode

• Make sure the background color, fonts, and branding match your podcast show’s branding

• Include some visual elements to accompany the audio like headshots of the guest and host and sound waves

Takeaway: Online video has become an increasingly important part of an overall digital marketing strategy, and for good reason. When done right, video can help your law firm be found online, strengthen relationships with your audience, and provide credibility that is essential in the legal world.

Kevin Vermeulen is Partner and Chief Operating Officer for Good2bSocial. He has over 30 years of marketing and advertising experience, including 22 years working in various senior management roles, including Chief Revenue Officer and Chief Marketing Officer for ALM Media, a leading legal publisher, helping lawyers, law firms, consultants and companies grow their business. During Kevin’s tenure at ALM, he worked with professional services companies in the financial, digital, real estate and legal industries. Learn more at: www. good2bsocial.com.

HARMONY IN LAW

The Dynamic Duo of Prager Jones, APC

Uniting Legal Expertise with Genuine Compassion and Transforming Lives in Family Law

by Dan Baldwin

If you don’t care about your client, and I mean genuinely care about your client, how can you possibly expect the judge to care? Our depth of compassion is one of the things that separates Prager Jones, APC from other firms,” says Founding Partner, Steven J. Prager. The firm’s practice areas are divorce, child custody and visitation, domestic violence and restraining orders, mediation, parentage, and prenuptial agreements. Prager, Jones, and their team’s commitment to client care is reflected in the firm’s holistic approach. Their attorneys have considerable and varied experience in all aspects of family law. They are committed to providing solutions to family law outside of the courtroom whenever possible by encouraging clients to focus on wellness, therapy, mediation, estate, and financial planning.

Clients respond to their genuine care with genuine praise:

“If I could leave more than 5 stars I would! Without this law firm and its secret weapon Mr. Steven Prager my outcome in the court room would have been in favor of the odds we were up against, and not in favor of myself or my son. Without too many details and to keep it short, this was a move away case which can be difficult on paper and emotionally for all parties involved (including the attorneys)  Steven Prager is as sharp as the edge on a new blade. As quick as the blink of an eye, and as thoughtful and caring as if he were fighting for his own son. What makes Seven Prager dangerous to the other team, and the ace in your back pocket you can’t wait to show, is his ability to predict and foresee things followed by exercising precise and proper planning against any play to come his way. His mind is a fine chess game, and he is ready to call checkmate before the first pawn is played. However, above all his talents is the one that shines is his ability to excel exceed, and peak while under pressure in the court room. So much so that the judge noticed his closing statement and commented on it as one of if not the best she

has ever heard in her time. My odds were slim, and my finances were slimmer, I was nervous. Steven worked with me, every step of the way answered every phone call, every text, during and after hours, around the clock. He earned my trust, and I don’t hand that out easily. I do not write reviews, but I felt it was needed after all dedication this law firm showed me and my family. Simply put, Steven Prager saved my relationship with my son.”

The current staff includes two attorneys, three paralegals, and one legal assistant.

A GENUINE DYNAMIC DUO

Founding Partner Morgan Nusbaum Jones says that another aspect of their ongoing success is the dynamic between the partners. “We complement each other as attorneys so well and it is incredibly effective, especially in high conflict, high asset, or high stakes cases. I am very meticulous and quite nerdy when it comes to community property law. Steven is an amazing advocate and great at the bigger picture and developing a creative legal strategy. I love finding a tiny detail that helps take a case in a new direction or helps us craft a winning strategy or argument. Our energy collaborating on a case in any capacity is really one of my favorite aspects of my job,” she says.

Prager focuses his practice primarily on a variety of divorce and family law cases. During the past 12 years he has handled more than 750 cases with a better than 90 percent success record. He began his career with the San Diego County Public Defender in 2010. He joined the Marshall Sanders firm in 2012, becoming a partner in 2015 before leaving to form Prager Jones, APC. He is a licensed Divorce Attorney in the State of Texas and admitted to practice law before the U.S. District Court, for the Southern District.

© Bauman Photographers

Co-founders: Morgan N. Jones & Steven J. Prager

Jones handles a wide variety of family law matters. She is a graduate of Loyola Law School, Los Angeles. She began her family law career at the Law Office of Cynthia A. de Petris in Los Angeles. She then joined the family law divisions of Pacific Litigators, APC, and the Marshall Sanders firm in 2016 before joining Prager in Prager Jones, APC. She is admitted to practice before the U.S. District Court, Central District.

HITTING THE RIGHT NOTE

In a fascinating way, each partner was drawn to the legal field through a love of music. Prager, a college music major, has been playing guitar for more than 30 years and Jones is a classically trained singer.

Before deciding on a career in law, Prager had a 10year career in the entertainment industry. He worked for record companies, music management, and handled a lot of producing, especially live music events. In 2007, Ryan Seacrest hired him to help produce a reality show for MTV called Crash My School

While working at Ryan Seacrest Productions, he began “flirting” with the idea of going to law school. During a production meeting for a new reality show under development, the discussion turned to the need to get the legal department involved. “At that moment, a light bulb went off in my mind that lawyers had the ultimate authority when it came to actualizing a TV show. That moment inspired me to follow through with law school and return to LA as an entertainment attorney,” he says. The success of the developing reality show would eventually go on to exceed everyone’s expectations, and become titled, Keeping Up with the Kardashians

Prager invested his earnings from his time at Ryan Seacrest Productions to backpack around Europe and the Middle East before coming back to the U.S. to attend law school in San Diego. “I would eventually realize how dreadfully boring the actual work of an entertainment lawyer is and lose interest.” While working at the public defender in law school, he lost interest in transactional law and became fascinated with litigation and trial advocacy.

Jones says, “I think my younger self would be very surprised to learn that I became an attorney, much less a family law attorney.” She spent her youth on stage starring in musicals and playing violin in youth symphony. She did undergraduate studies and the Berklee College of Music as a classical vocalist. She was also a coloratura soprano who loved singing.

She soon realized that she did not want to pursue music professionally and ended up majoring in Music Business/Management. That led to courses on the legal side of the music and entertainment industry, which led to Loyola Law School Los Angeles with her plans centered on practicing entertainment law. “Like Steven, I did not find the legal subject matter underlying entertainment law interesting. Community property law ended up being one of my favorite subjects and ignited a passion for family law,” she says. The change in “tone” has been welcomed by those in need in the community as illustrated by a recent testimonial.

“I got really lucky when I decided to select a law firm off of Yelp. I had no idea what to expect or how to navigate the divorce process whatsoever. Steven Prager and his partner, Morgan Jones did not disappoint. Filing for a divorce is very scary, especially if your husband is the main source of income and you have two children to care for. Prager Jones always protected our interests, while allowing us to continue our daily lives in the best possible way. Morgan and Steven were diligent, professional, calm, and focused. Steven is incredible at deescalating any situation, he will amaze you in the court room. Morgan is compassionate and she really listens to your concerns. Morgan thought of angles that I didn’t know existed. Morgan will research every detail so that you get the best possible outcome. Both partners have represented me in the court room. Their ability to communicate with the judge during hearings is impeccable. Steven & Morgan are both great at calming your nerves during a high conflict divorce. Today my children and I finally live a peaceful life. I won full custody and my children have never been happier. If you are in an abusive marriage and have a strong desire to protect your children and their future, then Prager Jones is your answer.”

A RESCUE DIVE

The solution to an emotional and complex case came from a simple, yet unexpected source inspired by one of Prager’s other passions—scuba diving. He is a certified rescue diver and a graduate of shipwreck school where divers are trained to safely explore shipwrecks.

The case involved the firm’s representation of a father who obtained custody of his children due to the mother’s increasing schizophrenia. After losing custody, the woman kidnapped the children and headed for the San Diego International Airport. Prager and Jones immediately obtained a court order for the case to be

referred to the District Attorney’s child abduction unit. To their surprise and dismay, they discovered that thirty children were missing in San Diego County with only two police officers assigned to locate them. The unit said they could expect an update in three to four months.

“Law school just doesn’t prepare you for this kind of situation. We had to get really creative in our thinking,” Prager says. He remembered a classmate from shipwreck school who had been with the FBI and the Secret Service. Prager reached out and together they came up with the idea to assemble a privately funded task force consisting of former federal agents now working in the

private sector along with high-level private security professionals. Prager and Jones learned about a secretive gray-market network of professionals who work for the government but provide information to the private sector for a handsome fee. These people (aka ghost operatives) do not interact with attorneys directly but insulate themselves and communicate through trusted sources.

Their efforts tracked down the mother through her credit card purchases and triangulated her location through her mobile phone. Within a few days the task force located the mother at a motel on the east coast (location withheld for confidentiality). Their client got

Bauman

Photographers

Avid boxing fans: Oscar Silva (Paralegal), Steven J. Prager (Co-Founder), Brandon Rodriguez (Paralegal).

Courtesy of Tiger Smalls Boxing.

on the next flight and flew out to the motel where the mother was staying with the children. The mother refused to open the door or relinquish the children.

The task force developed a plan in which their client created a big ruckus at the motel to draw a response from local law enforcement who was in the know. When several patrol units, with sirens blazing, arrived at the scene, the mother opened the motel room door. Their client grabbed the door and held it open long enough for the two children to run out of the room and into the arms of a former FBI member of the privately funded security task force. The local law enforcement pretended to arrest the client and then escorted him to the airport. At the same time, the FBI agent escorted the two children to the airport where they were reunited with their father. They all got on the next flight back home. The mother was never seen or heard from again.

Co-founders: Steven J. Prager & Morgan N. Jones

“I’d like to tell you that this case was one of a kind—it’s not. This is what we do for a living,” Prager says.

FIRM CULTURE

“Our firm and the legal industry have come a long way and we’re proof of that. The first woman to become a lawyer was in 1879. Even in the 1950s, only three percent of all attorneys were women. Prager Jones is 50 percent woman-owned and we’re seeing a lot more of that. Our office is pretty progressive with a highly diverse workforce. I’d say half our staff is bilingual. We look at the person’s personality to see if they would be a good match for our culture. That’s the most important thing to us. We’re very laid back,” Prager says.

“We have an extremely casual work environment. Similar to a Silicon Valley start-up. We wear jeans and sweats to work. I let my dog run around the office. We have a fully stocked kitchen at our office which gives us

a little bit of that work from home vibe. We don’t micromanage our employees or make them punch a timecard. We understand that a human life goes beyond one’s vocation. People have families, personal obligations, other circumstances they are dealing with, and often need time to decompress. We’d made sure to create a culture that prioritizes wellness. We have the lowest billable hour quota for our associates in San Diego. We understand a lawyer’s career is a marathon and not a sprint. Because of that we are geared toward our team’s long-term success,” Prager says. n

Contact Prager Jones, APC 7777 Alvarado Avenue, Suite 201 La Mesa, CA 91942 (619) 439-7671

www.pragerjones.com

© Bauman Photographers

Finding the right match between a job candidate and a critical role in your organization can take time, dedication, and even a little luck—so the need to rescind an offer of employment can be difficult for you and the potential new hire. Even if you rarely rescind an offer, you should be prepared to follow certain best practices before and after the situation arises. What are the five most common reasons for rescinding an offer and the five steps you should consider taking to minimize the impact and your legal risk?

Top 5 Reasons for Rescinding an Offer and Key Points to Consider

1. Failed Drug Test

If your company has a comprehensive workplace safety policy, your process may include making job offers contingent upon passing a pre-employment drug test. From the start, it’s a good idea to let job seekers know what to expect during the recruiting, interviewing, hiring, and onboarding process—and this includes mentioning any background screening, drug testing, or other requirements. Additionally, when applicable, you should make it clear that the job offer is contingent upon passing such tests. While employers can generally rescind a conditional job offer if a potential new hire fails a drug test, many states require employers to follow certain steps before taking adverse action. Therefore, you should understand and follow the rules and guidelines in the applicable state. You should also recognize the state-law trend to protect off-duty use of cannabis and consider whether you want to continue testing for it, and if so, how you will handle positive test results without running afoul of such laws.

2. Background Check Issues

Perhaps you run a criminal background or credit check before an offer is official. If so, you should carefully review applicable rules and regulations if your selected candidate fails to meet your criteria.

Companies that conduct background checks on potential new hires must comply with a host of federal, state, and local laws. For example, under the Fair Credit Reporting Act (FCRA), you must provide applicants with advance notice (known as a

5 Reasons You Might Rescind a Job Offer— and Top 5 Ways to Ease the Impact

by Rich Millisor and Michelli Rivera

clear and conspicuous stand-alone disclosure) that you will be conducting a background check, and the applicant must provide written consent. Additionally, you must provide the applicant with copy of the report and certain notices before and after taking adverse action.

Moreover, many jurisdictions prohibit employers from making decisions based on arrest records, and the U.S. Equal Employment Opportunity Commission (EEOC) has extensive anti-discrimination guidelines for employers that conduct background investigations, including conducting an “individualized assessment” relating to criminal history records.

You should also be aware of any state or local “ban-the-box” laws that dictate when in the hiring process employers can ask about criminal history and what steps they need to take if they intend to take adverse action.

3. False Statements on a Resume or Application

Although research results vary, many studies have found that about a third to half of job seekers admit to lying or making misleading statements on their resume. Common falsehoods involve prior work experience, skills, and education, according to Entrepreneur. For example, an applicant may imply they received a degree from a university they merely attended for a brief period—or they may fudge their dates of employment to inflate their tenure.

Do you have processes in place to verify such information? What steps do you take when you find a discrepancy? You should ensure your job applications and background screening forms explain what will happen if applicants provide false statements. Give them a chance to explain and follow consistent procedures.

4. Red Flags from References, Social Media, or Other Interactions

Your selection process may include checking references and connecting with a potential new hire on social media platforms. But what should you do if you discover negative information about the candidate while speaking with references or viewing their online activity? What if your post-offer interactions with the candidate raise red flags?

Proceed with caution. Document the reasons you decided to

rescind the offer and make sure they are fair, objective, applied consistently, and not based on protected characteristics, such as age, disability, race, religion, or sex.

While you can generally rescind an offer or fire an employee for egregious social media posts, you should keep up with National Labor Relations Board (NLRB) guidance—which is subject to change—on what types of postings, statements and exchanges may be deemed “protected concerted activity,” particularly when they pertain to wages, hours, and working conditions.

5. Budgetary Constraints and Business Restructuring

Unfortunately, businesses may need to cut back on expenses, projects, or hiring when there’s an unexpected economic downturn, revenue loss, client shift, or other occurrence that impacts the budget. Or perhaps your company had a recent change in leadership or a major restructuring and a few jobs you intended to fill will no longer be needed under the newly structured company regime. Since these situations aren’t always predictable, you may need to rescind an offer as a result.

First, think about whether the job candidate may be a fit for another open role in the organization. If there are no other potential positions available, be sure to let them know as soon as feasible so they can shift their focus and make other plans.

5 Quick Tips to Ease the Impact and Keep You Compliant

1. Clearly Communicate

As we mentioned above, you should let job applicants know what to expect from your selection and onboarding process. If you make a job offer, be sure to tell the potential new hire that the offer is contingent upon passing a drug screen, background investigation, and/or any other applicable criteria. As a best practice, you should consider putting all the steps in writing and asking the candidate to sign an acknowledgment in addition to any required forms for initiating and completing a background check.

Likewise, you will want to clearly communicate the reasons for rescinding the offer. Depending on your business, prior interactions, and reason for withdrawing the opportunity, you should decide whether an in-person or Zoom meeting, a phone call, or another form of communication is the best way to break the news.

2. Avoid Knee-Jerk Reactions

You may be shocked to complete a bad reference check, discover a potential discrepancy on a candidate’s application, or find egregious posts on their social media accounts. But it’s essential to take a deep breath and a step back to evaluate the situation. Is there a reasonable explanation for the mismatch between their resume and the verification? Was the reference credible? Was the candidate’s identity stolen? Was their social media post taken out of context or potentially protected by applicable employment and labor laws?

Be polite and be sure to give the candidate an opportunity to

explain or provide additional documentation. Also be sure to follow any notice requirements and other steps under federal, state, and local laws.

3. Document Your Reasons

Employment arrangements in most U.S. jurisdictions are “atwill,” which means that you and the worker can terminate the employment relationship for any lawful reason, at any time, with or without notice—and that rule generally applies to job offers as well. For most positions, you will want to include an appropriate “at-will” disclaimer in your job offer that negates any specific job expectancy.

Still, you’ll want to be sure that your decision is not based on any unlawful, discriminatory reasons and that you’re not otherwise obligated to honor the offer for contractual or other legal reasons. In some cases, job candidates have claimed that they relied on the promise of employment to make critical or costly decisions, like quitting another job or making arrangements to move to a new city.

That’s why it’s so important to explain when the offer is contingent and let them know when your pre-employment screening is complete. Even when the offer is rescinded after all conditions are met—such as when there’s an unexpected economic downturn—you’ll want to document the reasons for rescinding the job offer and save any supporting material.

4. Have a Backup Plan

While you should inform the job candidates you didn’t select in a timely manner, you may want to identify your top two or three qualified contenders who could potentially fill the role if your top prospect doesn’t work out. This could save you time and reduce the associated cost of starting the process over again if they are still available.

5. Seek Legal Counsel

There are a number of legal issues that can arise when you make the difficult decision to rescind an offer of employment. Thus, it’s a good idea to reach out to experienced legal counsel while you are developing your recruitment, selection, and onboarding processes and before you communicate your decision to withdraw the offer. n

Rich Millisor is a regional managing partner of the firm’s Cleveland office. He focuses on representing employers and consumer reporting agencies in complex litigation, including individual and class claims asserted under the Fair Credit Reporting Act (FCRA), Fair Labor Standards Act (FLSA) and other federal and state employment laws.  Michelli Rivera is a partner in the firm’s Atlanta office and Co-Chair of its FCRA and Background Screening Practice Group. She represents clients in all areas of labor and employment law including employment discrimination claims, wrongful termination claims, wage and hour disputes and audits, non-compete and restrictive covenants, compliance, training, and prevention. Learn more at: www.fisherphillips.com.

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

Developing Litigation Issues

by Colin Kass and Tim Mungovan

a lawyer frames a query, as even an apparently plainworded 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 wideranging 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 thirdparty 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 usergenerated 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 algorithmicallyorganized 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 ANTITRUST ISSUES

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. n

Colin Kass is a partner in the Litigation Department and Co-Chair of Proskauer’s Antitrust Group, and a member of the Firm’s cross-disciplinary, crossjurisdictional Coronavirus Response Team. As a seasoned trial lawyer, Colin has handled many of the nation’s most complex and innovative antitrust cases over the past 20 years. Tim Mungovan is the immediate past chair of the Firm’s Litigation Department, chair of the Securities Litigation practice and is currently a member of the Firm’s Executive Committee. His practice is focused on securities, commercial litigation, governance, and bankruptcy-related matters. Learn more at: www.proskauer.com.

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