Curt Harler

Wednesday, 25 April 2007 20:00

Beyond the core

One definition of trust in the business world is allowing someone outside the company to handle an important task or operation. However, the decision to out-source functions like operating a call center should not be taken lightly.

“An outsourcing partner bears the burden of turnover, training, health insurance, support,” says Ken Dawson, chief marketing officer at InfoCision Management Corp. “They can do it all: marketing, creative services, copywriting, direct mail, fulfillment — not just handle calls.”

Smart Business talked to Dawson about some of the key considerations for outsourcing call center operations.

Why outsource?

The big reason is that call center operations usually are not part of a company’s core business. Call center professionals bring marketing experience that branches far outside of your product. We have experience with hundreds of clients, spanning dozens of vertical markets, as well as every media channel in existence today.

Scalability and flexibility are paramount. Productivity is the lifeblood of a call center operation. That is, the ability to blend a couple of programs where necessary to keep a client from paying for unproductive time or dedicated agents. Increasingly, federal and state rules require a level of regulatory compliance that is critical in many industries. If you do outbound calling in-house, I can almost guarantee you are not able to invest enough to guarantee full compliance the way a good outsource partner can.

When comparing your in-house operation to outsourcing, look at the fully loaded cost of your operation, not just the $12-an-hour paid to an agent. Add the cost of technology, supervisors and other support. A good partner will have a more robust infrastructure. The agents will be better trained.

How do you choose an outsourcing partner?

Price is important, but not the most important factor. Pair with a partner who will take the time to know your products or services well. Evaluating the technology, quality controls and productivity measurement tools should be a given. But you need a partner who will take the time to learn your product, your goals and your services. It should be able to provide you with innovations and marketing concepts to improve your product offering.

Consider their resources and ability to dedicate needed agents. If your business starts a new national ad program, you may need to scale capability from 20 to 800 agents. There is no way an in-house call center can do that. What do you do with all the idle people if the campaign does not fly? With a good partner, you can ramp up and ramp down almost instantly without a major capital investment.

How do you monitor an outsourced function?

Even the best partner must be monitored. The telephone works well because it can be used to build a one-to-one human relationship. But that dynamic encounter opens the door for human error, so a company needs to be sure the call center takes a consistent approach and quality controls are in place. Be sure the agents stick to the script.

Real-time reporting is vital so you can see the metrics and listen to calls. The outsourcer should provide an online, dedicated portal. On-demand reporting is a key. That said, don’t try to run reports every five minutes — you’ll be unnecessarily stressed out if numbers are down and falsely elated if they are up.

Another suggestion is to listen to calls. Your outsourcing partner should provide a digital file of every call, if needed.

Can a service provider eventually become a key part of the company? Is this a good idea?

Yes. You must treat outsourcing providers like partners, an extension of your business. They need to be empowered with data so they can cross-sell and upsell.

In a good relationship, the partner should have full integration into the company’s database, be able to see billing systems, track customer transactions. It makes for a much more powerful experience with your customer. Yes, it takes a lot of trust. But it assures better customer service from simple things like changing addresses to scheduling repairs and adds the possibility to upsell and activate a premium service in minutes.

How, and how frequently, should outsourcing agreements be re-evaluated?

Don’t do it on price alone. Look at return on investment. Give a relationship time to grow and flourish. If things go well and results are consistent and strong, I’d recommend re-evaluating every couple of years. It isn’t bad to give another supplier 5 percent of the market to be sure you are getting optimum results. But changing suppliers every six months is detrimental to all parties.

KEN DAWSON is chief marketing officer at InfoCision. Reach him at ken.dawson@infocision.com or (330) 668-1400. In business for 25 years, InfoCision Management Corp. is the second-largest privately held teleservices company and a leading provider of customer care services, commercial sales and marketing for a variety of Fortune 500 companies and smaller businesses. InfoCision is also a leader of inbound and outbound marketing for nonprofit, religious and political organizations. InfoCision operates 28 call centers at 12 locations throughout Ohio, Pennsylvania and West Virginia. For more information, visit www.infocision.com.

Sunday, 31 December 2006 19:00

Targeted messaging

Telephone marketing is the purest form of marketing. It is the only channel that allows you to get real-time feedback from consumers and a yes/no answer after each transaction. The phone is also the best place to utilize business intelligence to craft a customized message and to truly have one-to-one marketing. It is a complex but rewarding technique for focusing on people who fit a demographic profile and matching an offer tailored specifically to them.

“One-to-one marketing is simply custom tailoring offers to customers based on their wants or buying profile,” says Ken Dawson, chief marketing officer at InfoCision Management Corp. “It is the exact opposite of mass marketing, like on TV, where the same message is beamed to a wide assortment of people with no regard for preference, demographics and behaviors.

“It works with anything you sell. Outbound, you can avoid targeting people who never will respond or modeling to create a prospect list. Inbound, you can use targeted messaging to up-sell or cross-sell. It works for all kinds of products and services.”

Smart Business asked Dawson more about targeted messaging or one-to-one marketing.

What are some of the key demographics when targeting a message?

The best way is to look at past customer experience with your organization and overlay that data with demographics. That lets you tailor a message that will spur customers to buy.

Take a service such as cable TV: If a customer pays a year in advance with a 20-percent discount offer, it is much more likely the customer will not respond for a renewal at full price. Give the customer what he or she wants.

There is consumer-level data available on every household in the United States — all 110 million of them. They are expensive to buy, but those databases offer demographics, psychographics, buying behaviors and sometimes even credit scores. This gives the marketer a look at the customer’s income, profession, hobbies and buying behaviors. For example, you can determine that a person of a certain age and professional status who reads certain publications is more likely to donate to a conservative cause. It allows you to focus oneto-one on things that he or she is interested in.

Once you have the data, what then?

When you have your message or new product, determine a demographic profile for your past customers. This allows you to create a model prospect. This process will allow certain data points to come forward and you can measure the frequency that each demographic point exists.

Then, pull in everyone from the prospect universe who is within certain parameters of that model customer. Even with existing customers, you can draw a profile and cross-reference who is likely to buy accessories. All prospects can be scored based on how well they match your model.

This propensity to purchase is what makes the phone so much better than mass media. With the flexibility of a one-on-one sales pitch, you can communicate with customers based on their needs.

Take two people who respond with an inbound call to the call center and purchase a cell phone. The next step is to up-sell them peripherals. Based on their profile, you might offer a car charger, a docking station or a headset to go with their cell phone. In a perfect world, that offer is populated on the screen and can be changed in real time, depending on the customer’s needs or desires. Again, each offer is driven by the model and what is known about the consumer.

How do you get good business intelligence?

The best way to get business intelligence is to have a well-maintained base of your own customers. Buy a CRM (customer relationship management) system and maintain and update the database religiously.

When prospecting for new customers, several U.S. companies gather data points and sell them to companies that want to target a new market. You can lease or rent that information. An advantage to having a partner like us is that we have a standard subscription to many of these databases. Our clients have access to the information, but the cost is amortized across all of our clients, so the price is more reasonable.

Are there pitfalls?

Inaccurate data or broad assumptions are the most dangerous aspects of true one-to-one marketing. Don’t try to force customers into a class based on what you want them to buy. Let the data speak for itself.

Give customers what they want to buy and let them buy it the way they want.

KEN DAWSON is chief marketing officer at InfoCision Management Corp., Akron. Founded in 1982, InfoCision is a privately held teleservices company and is a leading provider of inbound and outbound marketing for nonprofit, commercial, religious and political organizations. Reach Dawson at (330) 668-1400 or ken.dawson@infocision.com.

Sunday, 29 October 2006 05:55

Overseas banking

Receiving and depositing a check from a customer across town is a simple process. However, as a firm grows and its business moves offshore, banking becomes more complicated.

“Any good local bank can provide any service that a New York bank can provide,” says Christina Moinette, head of international services for First Merit Bank. “We provide personalized, one-on-one service. We service the small customer as well as the large customer. We have the ability to facilitate any need the customer may have.”

Smart Business asked Moinette what kinds of international services a business owner should expect a local bank to provide to the business.

What are the typical services an international banker provides?
A bank’s International Services Department will provide the following products: letters of credit, including those for standby, export and import; escrow; international collections, both bank-to-bank incoming and bank-to-bank outgoing; international check collections and encashment; international bank notes, both buying and selling; international wire transfers, both incoming and outgoing; as well as forward contracts. All of this is in addition to the usual currency exchange services.

How do letters of credit work?
When you purchase goods oversees, the seller may request you to provide a commercial letter of credit. The letter of credit provides the seller with assurance that payment will be made against compliance with terms of the letter of credit. The issuing bank substitutes its creditworthiness for that of the buyer.

We issue the letter of credit to an advising bank in the seller’s country. The advising bank then forwards the letter of credit to the seller. The seller determines his compliance with the letter of credit, ships the goods, prepares proper documentation and then presents them to the advising bank. The advising bank then forwards documentation to your bank. If documents comply with the terms of the letter of credit, payment is made to the seller immediately (sight draft) or at a future date (time draft). One of the big benefits of a letter of credit is that your bank substitutes its credit for that of the buyer. Letters of credit are readily accepted by overseas sellers and they assure payment to the seller.

How about letters of credit received here in the States?
Many banks can advise or confirm a letter of credit being received by you. After you prepare your documentation and present it to the bank, it will verify your documents against the terms of the letter of credit and forward them to the issuing bank for payment. Your account is usually credited when payment is received.

Should I expect my banker to provide language skills, as well?
Most good international banking operations can provide an interpreter or have documents translated for the customer if required. However, it is standard that most contracts involving U.S. companies, both originating in the United States and those originating abroad, be written in English. So in many cases, translation of a contract is a moot point on this side of the exchange.

How does EFT (electronic funds transfer) work?
A bank provides international funds transfer services for expediting overseas payment requirements. Funds may be transferred by draft or electronically (EFT). Drafts are drawn on foreign banks in U.S. dollars or a variety of foreign currencies. Wire transfers may also be made in U.S. dollars or a variety of foreign currencies to foreign banks in favor of parties abroad. Payments are made in a variety of foreign currencies.

This may provide you advantages when purchasing items overseas in the seller’s currency. The ability to issue travelers checks and banknotes in foreign currencies is also a benefit, as is the option to order and accept delivery of necessary foreign currency.

Couldn’t a big bank in New York do a better job with international work?
Any good local bank can provide any service that a New York bank can provide: personalized, one-on-one service.

In addition, some local banks with international services usually offer an automated letter of credit and international collection system that customers can access via the Web. Those are real conveniences for the executive who travels a great deal.

If I do a lot of business, say in England or France, should I have a banker in London or Paris, too?
Maybe in years past that was a consideration. However, it is not necessary in today’s environment. Local banks have accounts available in various currencies to meet the needs of the customer globally.

CHRISTINA MOINETTE is head of international services for FirstMerit Bank. Located in Akron, she brings over 20 years of international banking experience to customers throughout Northeast Ohio. Reach her at (330) 384-7178 or christina.moinette@firstmerit.com.

Thursday, 26 October 2006 07:11

Reducing high costs

The recruiting and hiring process is an expensive one, and the stakes are high — especially as the labor pool continues to shrink in this job-seekers’ market. Making a poor hiring decision can be even more costly in the wake of employee training and ramp-up expenses. As a result, many companies are increasing their use of prescreening tools in an effort to improve the hiring process, according to Robin Perrett, business development manager at Spherion Corp.

Smart Business spoke with Perrett about the challenges of hiring qualified candidates and some popular prescreening tools in use today.

First, what are the primary concerns voiced by Human Resources Department executives these days, as the job market continues to tighten up?
More than two-thirds, or 68 percent, of HR executives have defined recruiting issues as their top concern over the next few years. And one-third indicated that keeping employment costs under control is their primary focus, according to the Spherion Emergent Workforce Study, which is conducted by Harris Interactive on behalf of Spherion Corp.

What can companies do to address recruiting issues and manage these costs?
One way to help avoid costly mistakes is to leverage prescreening and assessment tools during the hiring process. We’re seeing the use of these tools becoming more routine, with nearly half of companies (48 percent) indicating their use of screening methods has increased over the past five years. A large majority (71 percent) employ at least three different kinds of screening or testing programs.

What is the most popular screening tool?
By far the most common tool in use today is the background check, with almost 80 percent of companies conducting background checks of prospective employees for all levels of positions. Background checks are no longer the exclusive domain of high-risk industries, companies or positions, either. They are routinely conducted by all kinds of companies, for all kinds of jobs, to help make sure those prospective employees are who they say they are.

What other prescreening tools are commonly used?
Behavioral assessments help to reveal how prospective employees might react in certain business situations. Interestingly, credit checks have become popular even among nonfinancial companies and for jobs that are not traditional money-handling positions.

According to Spherion senior vice president Carl Greenberg, an industrial psychologist, ‘The credit check has become a general measure of responsibility and organization. For example, if you cannot organize your finances, how are you going to responsibly organize yourself for a company? Organization is a measure of responsibility.’

In addition to background and credit checks, other tools in use during the hiring process today include skills testing, behavioral interviewing and drug testing. Use of these tools in some combination can save a recruiter or hiring manager time by helping to screen out less qualified candidates and streamline the selection process.

Is there a message here for job candidates as well?
Job-seekers should be aware of the variety of prescreening tools that may be used by a prospective employer and have some idea of what facts they might reveal. For example, a candidate may want to become familiar with his or her own credit report. Candidates might want to conduct an online search of their own names to see what information comes up. It’s always a good idea to have done your homework when you are looking for new employment.

Is there any difference between large and small companies when it comes to using prescreening tools?
Our research reveals that smaller organizations — those with $500 million or less in revenue — are more concerned with finding qualified/skilled workers (41 percent) and keeping employment costs under control (35 percent). Yet despite the greater degree of concern, smaller companies have not increased their use of screening methods in recent years the way larger companies have.

Specifically, only 39 percent of smaller companies have increased their use of screening tools, compared to 61 percent of mid-sized firms ($500 million to $1 billion in revenue) and 66 percent of large companies ($1 billion plus). That’s quite a difference — and yet any company can benefit from using these tools to identify qualified candidates and reduce their overall hiring costs.

What’s your advice for recruiting and hiring managers?
Employing a combination of these tools as a consistent component in your HR program can help reduce costly selection mistakes and streamline the hiring process. It can significantly improve your ability to make a great choice the first time.

ROBIN PERRETT is business development manager for Spherion Staffing Services in Clearwater. Reach her at (727) 536-2400 or robinperrett@spherion.com. For more information about Spherion, visit www.spherion.com.

Thursday, 21 September 2006 12:00

Finding the right professionals

Finding and hiring the correct candidate for a job — whether labor or professional — can be an expensive and time-consuming process for a corporation. One way to shortcut both hurdles is to hire a professional recruiter. However, hiring a recruiter is just like hiring a new employee; you need to choose the right one.

Smart Business asked Brent Short, managing director for Spherion Professional Services Group, what a company should expect from a recruiting firm.

Isn’t networking the best way to find a job or an employee?
It’s true that networking works best. When you work with a recruiting firm, you are using our networking group. And we are networking every day.

Why hire a recruiting firm?
The biggest benefit is that you are hiring our network of people. And we know the individuals. Nine out of 10 times, we know the good eggs and the bad eggs in a particular field. It is not a matter of matching a person to a resume. It’s a matter of finding the right fit for the right job. If a person is a free-wheeling computer programmer, there is no reason to send him or her to a button-down kind of office.

Where does a company start?
The best place is to start with internal employees about potential workers. Ask who they know who might be right for the job. We see a number of companies offering lucrative bonuses — $4000 to $6000 — if an employee finds a match who stays 90 days to six months. If that does not work out right away, look for recruiting help.

What’s next?
Pick a recruiting firm you know and trust. Or choose two firms. You are buying their networks. But look, too, at what other things the company will do for you. Do they qualify candidates with a 10-minute phone interview or do they bring them into the office for a 45-minute sit-down talk? Are they active in negotiations?

What about job boards?
The job board route is no better than classified ads were 10 years ago. Do you really want to invest time and money in fielding all the irrelevant calls from who-knows-where? Most companies are too busy to deal with that sort of situation. A good recruiter will have a list of your ‘must-haves’ and your ‘Christmas wish list.’ If you can walk away with half the list checked off, you win.

Is a perfect match reasonable to expect?
There are two schools of thought: get an experienced person, further along in his or her career; or get a younger, cheaper hire who you can mold to your fit. Today we see a lot of more-experienced candidates, perhaps with a salary history over $100,000, who have great skills but have been out of work for a while. They are willing to accept a job for $65,000 with benefits.

What other things does a recruiter offer?
First — and the most critical in the process — is that we help negotiate salary. Second, we do reference checks. That can range from calling previous employers to doing a full background check.

Third, we offer confidentiality — in both directions. Often a company doesn’t want the competition or its internal staff to know it is in the job market. Or a ‘gentleman’s agreement’ will not allow it to hire from a direct competitor. We can make those initial phone calls without naming the company involved.

Fourth, we save our clients a lot of time. They don’t have to be bothered with phone calls, e-mails, letters and the like — often from candidates who are not at all good fits for the job.

How long does the recruiting process take?
The total time depends on how quickly your company sees the candidates. Generally speaking, it will take us from 48 hours to a week to find viable candidates. The time to hire, if everyone moves expeditiously, usually is about three weeks.

What will this cost a firm?
Typically, in the Tampa area, it is 25 percent of the first year’s salary. A lower fee is not necessarily good. You have to ask what part of the process is the firm not doing in exchange for a lower fee. And are they going to show you their top candidate for a lower fee?

Is it a buyer’s or seller’s market?
In Tampa Bay, unemployment right now is 2.2 percent. If you want a job, there’s one out there for you. Because of the low unemployment rate, it’s tougher to not only to locate the right candidate, but also to navigate the hiring process.

BRENT SHORT is managing director for Spherion Professional Services Group. Reach him at (813) 864-1111 or brentshort@spherion.com.

Monday, 28 August 2006 13:06

Do needles hurt less?

When a national magazine like U.S. News & World Report singles out a hospital like Akron General Medical Center as one of the top health care providers in the country, what does it really mean to patients and others in the area? Is there any validity to such rankings? Is it a guarantee of good service? Will needles hurt less?

Mike Petrochuk, director of planning, strategy and market research for Akron General Health System, says winning an award is recognition of an organization’s performance based upon the selection criteria.

While awards are a good place to start looking, Petrochuk says consumers are best advised to consider a variety of sources — including their physician’s advice and the experience of friends — when choosing a hospital.

Is going to an award-winning hospital a guarantee of getting good service?
No award is a guarantee of exemplary service. Most of the awards capture public data and conduct a series of statistical analyses and comparisons.

The only organization that I’m aware of that surveys the general public is the National Research Corporation. It annually publishes the most-preferred hospitals within many markets within the United States.

Many awards are specific to departments (cardiac, neonatal). Does this mean a patient should only consider a hospital for an area where it has won awards? Or does excellence in one area rub off on others?
Keep in mind that not every hospital provides a full range of services. Patients need to determine whether the services that they need are even offered by their local hospital. Similarly, patients should look at a number of information sources — not just hospital rankings — when making a decision. You should gather information from your doctor, family members or friends. Some hospitals even publish quality data right on their Web sites.

What does the health care industry consider the true awards for best clinical and business practices?
There are many awards or honors that a hospital can receive. Each of them has its own unique perspectives and strengths. We look at recognition from a variety of sources ... from our patients, physicians, community, and other external benchmarking and regulatory agencies.

In the end, the highest award comes from the patients and families that we serve.

What does the U.S. News & World Report award mean?
This recognition means that we rated higher than most other hospitals based upon the magazine’s unique criteria. The award is another validation of a high level of quality and service. It also provides recognition for physicians and employees.

Is there any validity to such rankings?
There is no one ranking that can perfectly assess ‘the best hospital.’ We look at — and patients should look at — hospitals that are recognized across the different ranking organizations. Looking at many of these rankings paints a more complete picture of the hospital’s performance.

How do the award programs gather information for their decisions? Does the award find the institution, or do institutions go after these awards?
For the past 17 years, U.S. News & World Report’s ‘America’s Best Hospital’ award has been given annually to hospitals in 16 different areas. Data is derived from public information (Medicare and American Hospital Association databases) and other accrediting agencies.

There are probably hospitals that aggressively seek these types of awards. We’re focused on our mission and service to the community. In the end, being recognized by the magazine is ‘icing on the cake.’

Really, how much better is the No. 1 hospital than the No. 5 — or even the No. 5 from the No. 50 hospital?
U.S. News & World Report ranks the top 50 hospitals in each of their specialty areas. While there are some statistical nuances between the No. 1 and No. 50 hospitals, one can’t make a conclusion that the No. 1 hospital is 10 times better than the No. 10 hospital. We’re proud to be included and ranked highly on the ratings.

MIKE PETROCHUK is director of planning, strategy and market research for Akron General Health System. He holds a doctorate in business from Cleveland State University and is a Fellow of the American College of Healthcare Executives. Reach him at (330) 344-6984.

Monday, 31 July 2006 10:24

Corporate real estate leases

Whether it involves negotiating a lease on a 50,000-sq. foot office facility, interfacing with a car salesman or simply negotiating terms to refinance an existing mortgage, people respect the opinions of those who consistently come out on top.

“When negotiating corporate real estate transactions, we learned that there are many factors that create optimum results — from the broad market to an individual’s personality and temperament,” says Ken Ward, managing partner at CRESA Partners Orange County in Newport Beach, Calif.

Smart Business asked Ward to share his thoughts regarding corporate real estate transactions.

What are the advantages of a short-term versus a long-term lease?
A company’s business plan should dictate the term of the lease. Communicate your short- and long-term business objectives with your corporate real estate adviser. He or she should then be sure to align the real estate transaction with the company’s long-term business plan. Where we are in the real estate cycle can also have an impact on the ideal lease term; however it should not in and of itself drive the real estate decision. Rather, the business objectives and operational needs of the company should do that.

Accordingly, positioning your company to maximize economics and/or landlord concessions is both an art and a skill. In some cases when it’s appropriate, we will advise our client to pursue a short-term extension in order to support the company’s long-term objectives and/or to position a company to take advantage of lower costs likely to occur if and when we expect real estate values or rental costs to fall. For a 15,000-sq. foot office tenant, the difference in striking a five-year lease at the height of the real estate cycle versus the bottom of that cycle can be $800,000 in rent and $300,000 in tenant improvement dollars. With everything else being equal, companies that effectively address this issue actually realize a competitive advantage because their cost of doing business is less.

Are there issues other than the standard economic or cash issues that executives should consider?
Companies should pay more attention to liability issues that may have an adverse economic impact to the company over the term of the lease. These can include costs that the tenant is responsible for, like paying the landlord 50 percent of any sublease income you may generate during the lease term or bringing the property back to its original condition after the lease expires. Other considerations include cancellation rights and/or the right to give space back to the landlord. HVAC repair and/or replacement can be another black hole to tenants. Most tenants carry insurance, but there are issues involving whose deductible is met first and who ultimately pays for what in the event of a loss.

If I want to retain the very best real estate adviser, what should I look for in personality and temperament?
1) Experience: decades of experience, having completed hundreds of negotiations involving assignments representing tenants.

2) Skill and ability: that is self-evident and sets them apart from the crowd. Included in that would be strong communication skills.

3) Creativity: the ability to see and create an extraordinary result through unconventional means.

4) Strategic mindset: a personality that is clearly strategic and unconventional, including the ability to think in the abstract and prognosticate landlord reactions and/or responses.

5) Professionally aggressive: As a general rule, ‘Type A’ personalities have a tendency to produce better results because they are less adverse to conflict. Look for someone who is relentless and consistently pursuing every angle in order to create additional savings and a better overall result for your company.

What what other considerations can increase the probability that a company will achieve the best economics, terms and conditions possible?
First and foremost, I would hire a specialist. Even if you have worked with the same real estate broker for years, taking the time to interview at least one or two other real estate specialists most often will result in hundreds of thousands of dollars in unexpected savings. Listen to how each adviser approaches your specific issues. Look for a strong history of superior performance. Walk away knowing what it is that makes that specific adviser unique. How does he or she measure up against competitors? I would always avoid retaining a company or adviser wherein a potential conflict of interest could occur. Ask if the adviser’s real estate company is focused specifically on supporting the objectives of your company, or whether they also represent landlords.

KENNETH D. WARD is managing partner with CRESA Partners Orange County. CRESA Partners is an international corporate real estate advisory firm that exclusively represents tenants/space users and specializes in the delivery of fully integrated real estate services. CRESA Partners along with their integrated service groups, represent more than 50 percent of the Fortune 1000. Reach Ken Ward at (949) 706-6623 or kward@cresapartners.com.

Tuesday, 23 May 2006 12:00

Appealing the case

While news headlines and television dramas pay homage to the excitement of legal trials and big-dollar verdicts, it is not uncommon for decisions to be appealed. Often, in the appeals process, a verdict is set aside or an award sharply reduced.

Any business owner considering an appeal should know that it is quite a different game in the appellate court. Since she focuses on appellate litigation, Smart Business asked Kim Kocher, a partner at White and Williams LLP and chair of the Philadelphia firm’s Appellate Practice Group, to explain the differences between everyday trials and the appeals process.

What is the difference between an appellate specialist and a trial attorney?
Their focus is completely different. The trial attorney is focused on developing the factual record, persuading the fact-finder with the evidence, and establishing/defeating witness credibility. The task of the appellate specialist is to identify trial errors in the record developed at trial (the transcribed testimony and exhibits).

Instead of retrying the case, the focus of the appellate attorney is to distill the case into forceful legal arguments with an eye toward the appellate court’s limited standard of review.

It seems the original trial attorney would be quite familiar with the case. Should one use the same attorney for an appeal as for the trial?
There are important reasons for using an appellate specialist not just on appeal, but at the post-trial stage. In terms of familiarity with the case, quite often the trial attorney has an impression of the facts that is not borne out by the cold record. The appellate attorney will carefully review and digest the record with the same perspective as the appellate court. After review of the record, the experienced appellate attorney will select and craft the issues, and may spot issues overlooked by trial counsel, that are worthy of appeal.

What do you tell clients about the emotional investment in a case — both their own and their trial attorney’s?
The emotional investment in a case of both the client and trial attorney often plays an exaggerated role in the decision to take an appeal and what issues to appeal. I try to provide my clients with an objective, dispassionate evaluation of the chances for success on appeal to assist them in making a well-informed decision.

How do the appellate rules differ than the trial rules most of us are familiar with?
The appellate courts are governed by a different set of procedural rules than the trial courts. There is very little overlap. Even motions practice, content of briefs and formal requirements differ significantly.

Additionally, certain appellate rules are jurisdictional, meaning that noncompliance with the rule may result in a dismissal of the case. Because the appellate rules can create dangerous traps for the inexperienced lawyer, it is important to have an attorney well-versed in the applicable rules.

When is it appropriate to appeal a verdict? How do you gauge the likelihood of success of an appeal?
The decision to take an appeal involves weighing multiple factors such as the risk or benefit of appellate precedent on the issue, the delay in resolution of the case, the size of the verdict, the cost of the appeal (including post-judgment interest and the premium on an appeal bond), and, of course, the chances of success on appeal.

The evaluation of the chances of success on appeal is, unfortunately, not an exact science. Relying on my years of experience, I gauge the likelihood of success on appeal based on objective scrutiny of the record, analysis of pertinent legal authority, the applicable standards of review and the jurisdiction at issue.

Do different types of actions or venues (administrative court, federal court, state court) involve different approaches upon appeal? Can you describe a few pertinent distinctions?
There are major differences in the post-trial and appellate procedure itself. For example, as between federal and state court, the timing of the entry of judgment differs. In federal court, judgment is automatically entered on the verdict. In contrast, in Pennsylvania state court, for instance, judgment is not entered until after resolution of post-trial motions. Knowledge of such a distinction is critical because the appeal period begins to run from the entry of judgment. Also, as between judicial and administrative appeals, the scope of review may differ. Where the appellate court is limited to review of the trial record, there may be an opportunity in an administrative appeal to further develop the record.

KIM KOCHER is a partner at White and Williams LLP and chair of the firm’s Appellate Practice Group focusing on appellate litigation and consultation in areas such as products liability, contract actions and insurance coverage matters. Reach her at (215) 864-6332 or kocherk@whiteandwilliams.com.

Friday, 26 December 2008 19:00

Dealing with bankruptcy

Perhaps the only thing worse than a customer whose payments are 60 days overdue is one who notifies you that it is declaring bankruptcy. What you do in the days after a debtor declares bankruptcy has a major effect on what, if anything, you collect.

“It is important to have a general understanding of how bankruptcy can affect your ability to collect an outstanding debt and the steps you should take to maximize that potential recovery,” says Bradley C. Mall, attorney with Munck Carter, P.C. in Dallas. “Even before the current financial crises, we saw a sharp increase in the number of bankruptcy filings.”

In August 2008, bankruptcy filings reached a new high of 4,476 per day. At that time, predictions were that bankruptcy filings would top one million by the end of 2008. Given the current financial times, actual filings are likely to be significantly higher. What is a business owner to do?

Smart Business asked Mall how a business owner should react to a client’s bankruptcy filing.

If I hear that a client is declaring bankruptcy, what should I do first?

The safest thing is to confirm that filing by contacting the debtor and obtaining a case number and/or name and telephone number of the debtor’s attorney. Alternatively, most attorneys can confirm the filing through the bankruptcy court’s online filing system, PACER.

Failing to confirm a filing can have adverse consequences. Not only is any action taken in the pursuit of collection voidable post-filing, such action may open you to monetary liability. Actions taken in pursuit of debt collection — even actions as simple as filing a lien — violate the Bankruptcy Code’s ‘automatic stay’ provisions and are voidable.

What is ‘proof of claim’?

In the business world, to receive payment for services rendered or products supplied, you submit an invoice. In a bankruptcy proceeding, creditors file a proof of claim. You should attach any and all documents that support your claim. For example, if the claim is based on a promissory note, attach the note. If the debt is secured by collateral, attach confirming documents, such as a Uniform Commercial Code Financing Statement (UCC-1). A proof of claim is deemed allowed upon filing with no more action to be taken unless and until an objection is filed as to the claim.

This does not mean that you will receive all or any money from the debtor. Rather, it establishes your claim and its position within the hierarchy of claims payment. You do not have unlimited time to file proof of claim. In a Chapter 7 (liquidation) case, the deadline is usually 90 days after the first meeting of creditors. In Chapter 11 (reorganization) cases, the court sets the deadline.

How do I move up in the payment hierarchy?

Vigilance in the processing and protection of your claim before bankruptcy is filed is key to your position in the hierarchy of claims payment under the Bankruptcy Code. Where your claim falls in terms of payment is entirely dependent upon the classification of your debt prior to the bankruptcy filing. So, if your debt is secured, your claim will have priority, i.e., be paid before general unsecured creditors. This does not mean that your claim will be paid in full, or even at all.

Conversely, failure to properly perfect and record your security interest may cause your claim to be classified as unse-cured, which is close to last in line for payment. Further, because the bankruptcy trustee (or the debtor in Chapter 11 cases) can avoid any transfer of an interest in the debtor’s property (such as filing a UCC-1 or other lien documents) that occurred up to 90 days before the filing, it is important to ensure that you are timely taking the necessary steps to perfect your security interests and thereby protect any potential claim should the debtor file for bankruptcy protection.

What is this going to cost me?

This depends on numerous variables that should be analyzed in considering how best to proceed. Just because a debtor files for bankruptcy protection does not mean you should throw up your hands and write off the debt. Chances are you will not receive 100 cents on the dollar. But, if you take the necessary steps during the course of your everyday business activities to perfect and protect your claim, chances are good that you will receive some return.

In any case, consult a bankruptcy attorney who can explain the process and your options and help you determine an appropriate course of action.

BRADLEY C. MALL is a shareholder with Munck Carter, P.C., practicing in the Litigation Section. His practice focuses on commercial disputes and includes trials, arbitration, mediation and appeals. Reach him at bmall@munckcarter.com.

Tuesday, 25 November 2008 19:00

Dealing with e-discovery

When it comes to computers and the legal world, things are happening at warp speed. It seems that every week there is new precedent set when it comes to e-discovery. What must corporations keep? Who can see what? Who are the relevant actors?

If attorneys are challenged to keep up with case law, what’s a business owner to do? We turned to Dyan M. House, an attorney with the Dallas law firm of Munck Carter, P.C., to help point us in the right direction.

“E-discovery is a hot topic right now, and it affects everyone in business today,” she says.

There has been a significant number of cases dealing with e-discovery issues, especially since the Federal Rules of Civil Procedure were amended to address issues with electronically stored information (ESI). Those rules went into effect on December 1, 2006.

Smart Business talked to House to find out what businesses need to know about e-discovery.

What is the scope of changes in e-discovery?

In many ways, the issues we are facing with e-discovery are not that different from those involved in discovery of paper documents and other tangible items. However, given the amount of ESI that is created on a daily basis, these issues are compounded. Every day, billions of e-mails are sent and numerous documents and other files are created.

ESI can be found on a broad range of devices and in various media, including live e-mail systems, archive e-mail systems, computer systems (including legacy systems), portable backup media, USB keychain drives, network servers, home directories, shared files, backup tapes/disaster recovery tapes, phones, PDAs and more.

There was a New York case on employment law that set the framework for e-discovery. What does it say?

Zubulake v. UBS Warburg, LLC is generally considered the first definitive case on issues in e-discovery. In 2003 and 2004, the Southern District of New York issued a series of opinions that addressed the scope of a party’s duty to preserve electronic evidence during the course of litigation, a lawyer’s duty to monitor his or her clients’ compliance with electronic data preservation and production and imposition of sanctions for destruction of electronic evidence. The Zubulake court set forth an analysis for deciding disputes regarding the scope and cost of the discovery of ESI. The analysis includes considering the availability of evidence sought from other sources, the extent to which the requests are tailored to obtain relevant information and the importance of issues at stake in the litigation.

The Zubulake and Qualcomm cases both addressed sanctions. What did the courts say?

The Zubulake court noted that the severe sanction of an adverse inference instruction may be imposed when the party seeking the sanction can show that:

1) the party having control over the evidence had an obligation to preserve the evidence at the time it was destroyed;

2) that the evidence was destroyed with a culpable state of mind; and

3) that the destroyed evidence was relevant to the party’s claim or defense. Because the court determined that the employer willfully deleted e-mails, the court granted the plaintiff’s request for sanctions, ordering the defendant to pay costs of re-deposing witnesses with respect to issues raised by the destruction of evidence.

Qualcomm Inc. v. Broadcom Corp. is much discussed because of the egregious nature of the discovery violations and severity of the sanctions. The fact that Qualcomm’s attorneys accepted unsubstantiated assurances that prior searches for relevant documents were sufficient and they ignored numerous warning signs that the document search and production were inadequate, more than 46,000 relevant documents were not produced. Therefore, the court imposed an $8.5 million sanction on Qualcomm and referred the matter to the State Bar of California for investigation.

When am I under ‘reasonable anticipation of litigation,’ and what does this require of my company?

‘Reasonable anticipation of litigation’ is determined when an organization’s relevant people anticipate litigation. When a party is under a ‘reasonable anticipation of litigation,’ the party’s duty to preserve evidence is triggered. This also means that the company’s routine document retention/destruction policy should be suspended and a ‘litigation hold’ should be issued to ensure that relevant documents are preserved. Determining when there is a reasonable anticipation of litigation is a fact-dependent analysis. At the absolute latest, a party’s notice of the filing of a lawsuit is the trigger.

DYAN M. HOUSE is a member of the Intellectual Property Section of Munck Carter, P.C. where she concentrates her practice in the areas of trademark, copyright and licensing. House provides counsel to a variety of businesses including restaurants, retail, engineering firms, software companies and nonprofit organizations on the transactional side as well as preparing for and handling litigation. Reach her at (972) 628-3638 or dhouse@munckcarter.com.