Legal And Ethical

To paraphrase Seth Godin, there’s only one thing you have to do to be “remarkable” and that’s actually, “to be remarkable.” He has also suggested that a critic, referred to as a troll, can interfere with your remarkability. My concept of a troll is just the opposite – a troll is a pretender selling nothing more than pretense.

I believe to be remarkable, you must deliver remarkable service. You can’t just be a salesperson, promising and promising what you won’t or cannot deliver. That turns you from genuinely remarkable into a remarkable troll.

I recently ran into just such a sales-troll. He personally came to Vickie Milazzo Institute, did a wonderful presentation, charmed our staff, promised the moon and, when it came time to deliver, sent work product that was unsatisfactory, full of errors and which didn’t reflect agreed upon delivery metrics. When he was challenged on the failure to deliver, his troll-like act was to crawl back under his bridge or wherever it is that trolls live.

I’m sure that you’ve run into this troll-type. The person who called you every day to make the sale, but after the sale is suddenly unavailable, out of the office, on a mission trip to Lower Handstandastan, lost his cell phone, has the swine flu or is at the funeral of yet another “close” relative (how many grandparents can you really lose?). Eventually, you get a call back, accompanied with more promises and then, later on, more broken promises and disappointment.

I encourage CLNC^® consultants to offer risk-free guarantees as a standard part of their legal nurse consulting business. After all, the first mission of any company is to serve its customers to their satisfaction. Sure, some customers will be harder to satisfy than others and certainly there are one or two who may never be satisfied. How you and your CLNC^® business handle those customers is what makes you “remarkable,” not your success in ignoring those customers. Sometimes they even push you to another, better level.

For me business is personal and the team at Vickie Milazzo Institute knows that I take the satisfaction of all of our prospects, CLNC^® students and Certified Legal Nurse Consultants personally.

Remember when you were a kid, everyone got a trophy for playing, even if their team came in last. Well we’re not kids anymore – we’re adults in an adult world where if we want to feel good, we have to do something to genuinely feel good about.

Service is what you do for the customers and sometimes in spite of the customers. “Can’t please everyone” isn’t an aphorism, it’s a cop-out. Sam Walton once said, “The customer isn’t always right, but he’s still the customer.” Here at Vickie Milazzo Institute we’re dedicated to providing customer service, delivering what we promise and standing behind our guarantee. Beware of sale-trolls in all their shapes and forms and whatever you do – don’t settle for less than you deserve. That only feeds the trolls and encourages more troll-like behavior.

As for the troll mentioned in this blog, we somehow managed to end our relationship professionally and amicably. I wished him future success, knowing full well he is destined for failure. How do I know?  Because now I am being serviced by someone who is genuinely remarkable. In today’s post bubble economy the world can no longer afford a pretender. I for one will be glad to be rid of the trolls.

Success Is Inside!

That’s a pretty powerful question with many different answers. Back in June, I tweeted about a high-profile case that involved an MD who was blogging about his medical malpractice trial as the trial was in progress. I used this as an example to illustrate why Certified Legal Nurse Consultants should recommend that their attorney-clients check out social media (and the blogosphere) for postings by opposing parties (and their own parties), before and during a trial. That case ended in a substantial settlement for the plaintiff after the MD was shown to have exposed trial strategy, ridiculed the case and made generally inappropriate postings for which he was confronted during the trial.

Another MD blogged about a recently concluded medical malpractice trial. His blogging initially raised all sorts of HIPAA questions (which became a nonissue once the suit was filed and anything happening at trial became public). Just to be safe, the MD allegedly changed some of the “facts” as you can read in his disclaimer. This raises issues of what sort of information should or should not be exposed, even after a trial. Granted you can sit in a courtroom, listen to the testimony and see the evidence, but you are not privy to the thinking, reasoning and strategy decisions of the attorneys and the parties they represent. Perhaps that’s something an attorney wouldn’t want his defendant or plaintiff blogging about. Read the articles and analyses on both these cases and make your own decisions. Keep in mind that attorneys are under their own ethical restrictions that we’ll discuss below.

A famous poker player won’t appear on those poker television shows that televise a player’s hand. He doesn’t want people to see how he plays, bluffs or calls on certain hands because they could develop a strategy to beat him. Trial attorneys might feel the same way about having their strategies exposed.

That being said, let’s look at a different set of potential bloggers, the jurors and/or courtroom spectators. In our electronic age no one, and I mean no one, likes to be “off the grid.” Spectators blogging from the courtroom are the equivalent of news reporters and don’t present a problem.

Smart phones with easy Internet access like the Blackberry^® or iPhone^® have created modern day courtroom issues. Judges have always admonished jurors not to read about a case or view television trial coverage, but how many judges give jury instructions regarding blogging? Tweeting (micro-blogging) and even researching the basis of the parties’ claims raises issues during a trial. Even something as simple as texting can be problematic. Remember, jurors are supposed to make their decisions based solely on the information they receive in the courtroom – only the evidence introduced at trial. So if a juror reads a blog about the trial, that would be the same as viewing a news report about the trial or Googling the underlying claims. That sort of behavior risks prejudicing the case or raising the possibility of a mistrial. Attorneys should search social media and the blogosphere during and after trial for traces of this type of misconduct. Some people are shameless about what they post, so armed with a few keywords and content of text messages sent during a trial, it can be quite simple to discover and possibly render a juror liable for contempt.

So far we’ve discussed the plaintiffs, defendants and jurors – what about the plaintiff and defense attorneys? Any Certified Legal Nurse Consultant will remember from the Institute’s CLNC^® Certification Program that attorneys are ethically prohibited from disclosing certain confidential client communications without the client’s consent. This applies to the blogosphere both during and after trial. But what about statements made in advance of trial or while selecting the jury that might tend to influence a well-read jury pool? A few attorneys make money writing books about their high-profile clients but that’s well after the client’s gone to jail (or not). A gag order by a judge can preclude an attorney from blogging about an ongoing trial. Attorneys may use hypothetical postings as long as there is no reasonable likelihood the client or situation can be identified. With all this in mind, blogging, texting and even list serve postings will be an issue to watch (or read about).

Judges, like attorneys, are ethically restricted from discussing pending or ongoing matters being litigated. So, if you think you see the judge texting from beneath the bench, let your attorney-client know. They may not want to risk the ire of a judge who’s simply discussing dinner plans, but might infer the judge wasn’t fully present during trial.

Finally, there’s you – the legal nurse consultant. As you work closely with the attorney-client and the litigation team, you’ll have inside information about the case, the parties, strategies, etc. As an agent of the attorney you are also precluded from disclosing certain confidential information. If you value your legal nurse consulting business you must refrain from tweeting and blogging about a trial in progress (“The defense expert is getting blown away – we’re moving in for the kill with my questions on SOC.”) without your attorney’s knowledge and permission. In fact, I recommend you not discuss your cases at all on the Internet. Frankly, it’s poor business practice.

Social media and blogging are emerging parts of cyberspace and both sides in the legal arena need to explore and monitor their usage. It’s a brave new world of communications and communicability for legal nurse consultants and the legal profession. If you use your mind (while others around you are losing theirs), you’ll successfully avoid any amateur mistakes.

Success Is Inside!

Certified Legal Nurse Consultants have long known that the pharmaceutical and medical device industries have a vested interest in not only making sure that their products get wide distribution on the market, but also that they gain favorable press coverage in the healthcare and mainstream media. The extent of the “full court press” they make to gain such coverage takes on different extremes. Everything from parties, trips, gifts and research sponsorships are used to help influence writers. Another popular but hidden measure is the use of ghostwriters. They are often hired by the pharmaceutical or device industries themselves to write the articles, which are then submitted under the signature of an “impartial” doctor. Sometimes the so-called “ghost” may simply have ties, such as a sponsorship from the related industry or manufacturer, but other times the ghost may actually be part of the industry being written about. Just to name a few, many of you will remember the controversy surrounding disclosures of this practice related to Fen-Phen, Vioxx^® and Premarin^®.

According to The New York Times, many major medical journals are taking baby-steps in the right direction to identify and hopefully stop this practice, while others are not yet committed to the process. The Public Library of Science in its PLoS Medicine journal has called for a “zero-tolerance” ban on such ghostwriting and has suggested various remedies, including sanctions in situations where the ghostwriting is not disclosed.

Given the fact that many medical and other healthcare providers rely on these journals for unbiased information to make decisions regarding the use of different drugs, devices and treatments or even when creating standards of care, policies and procedures, etc., the information should be free of slant, spin or other bias. But apparently this isn’t true or at least doesn’t happen as often as we would hope.

The author of an article should be the person or persons who wrote or contributed the majority of the article, not the person who signs their name to it or submits it to a medical journal or other publication. At the very least the ghosts should be disclosed in the article’s acknowledgments, contributions or references.

Unfortunately, it appears that the major medical journals have not completely adopted nor have they enforced this policy. I am also not aware of any research being done to determine whether the professional nursing journals have adopted a similar policy. Until an impartial organization looks into this, or at least until the nursing journals adopt a policy of transparency, we’ll have to assume that nursing journals have the same potential level of bias or influence as do the medical journals.

What should be done? First the journals (scientific, medical or nursing) should put into effect a sanction policy for those situations in which a ghostwriter, sponsorship or other potential for bias is later disclosed or discovered. The second is for those same journals to adopt a transparency policy which then should disclose such bias as soon as it is discovered.

It’s imperative that healthcare professionals and ultimately the consumer are able to fully trust professional journals. Until ghostwriting is “ghostbusted,” we’re not in a position to place that trust. Until that day, Certified Legal Nurse Consultants should continue to question and challenge the validity of research studies where indicated.

Success Is Inside!

I’ve previously blogged about the fact that potential employers are searching social media to discover what people have posted prior to hiring them (and in some cases after they’re on the payroll). Tom has discussed the fact that photos posted on the Internet may contain metadata that includes date, time and even a GPS location of where the photos were taken. We’ve also explained how Certified Legal Nurse Consultants can use deep-web search engines to locate information about an expert or party who is not generally available on the Internet. I’ve also talked about whether legal nurse consultants (or parties involved in a lawsuit) should be blogging or texting about legal cases. Even your cashless toll-pay tag and the information from the computer that runs your car’s motor can provide relevant information. Now it’s time to tie it all together and discuss the potential discoverability of all those postings a plaintiff or defendant has made to Twitter, Facebook, MySpace and other similar sites.

In a lawsuit, almost all communications concerning the suit or its subject matter made by a party to anyone other than their attorney (and in some cases their spouse) are potentially discoverable. These social media communications may be used as a statement against interest, evidence of wrongdoing or character evidence. In the old days, paper records in the custody of a party were the primary source of discovery, but today discovery extends to all sorts of electronic communication.

In any case where the information may be relevant to a plaintiff or defendant, the social media communications of the parties may be discoverable and as Joe Friday used to say, “can and will be used against them.” There is no reasonable expectation of privacy in information generally available to the public. There may be such an expectation for information posted to a “protected” group on Facebook or Twitter where only “Friends” or “Followers” may see the info – but this hasn’t been fully hashed out by the courts. Two famous cases used photos posted on Facebook and MySpace to aid in sentencing of defendants.

The savvy Certified Legal Nurse Consultant should recommend to all attorney-clients that communications or other information relevant to the suit (or likely to lead to the discovery of relevant information) be requested from relevant parties (plaintiff or defense) through interrogatories, requests for production and requests for admission. This would include:

• The email addresses of all email accounts (business and personal) used by a party before, during and after the period relevant to the lawsuit;

• The domain names of any websites (business and personal) owned or operated by a party before, during and after the period relevant to the lawsuit;

• The user names and account information for any social networking sites that a party belonged to or interacted with (such as Facebook, MySpace, Twitter, etc.) before, during and after the period relevant to the lawsuit;

• The domain names or address of any blogs owned, operated or contributed to by a party before, during and after the period relevant to the lawsuit regarding the subject matter of the lawsuit;

• The domain names of any blogs posted to, or comments posted to any blog or similar website(s), before, during and after the period relevant to the lawsuit;

• Whether or not any information posted by a party was posted to a “password protected,” “by invitation only” or otherwise restricted website or portion thereof before, during and after the period relevant to the lawsuit;

• The account names and telephone numbers of any cell phone or other telecommunications account used or belonging to a party before, during and after the period relevant to the lawsuit;

• Names of any web browsers used or belonging to a party before, during and after the period relevant to the lawsuit;

• Names and addresses for any Internet service provider (ISP) used by a party, before, during and after the period relevant to the lawsuit.

An attorney may have to request copies of some of this data pulled from back-ups of the relevant computer systems and may need to request access to the computers of a party to obtain this information.

Finally, think about how you personally use social media. Anything and everything you post online, whether it’s a review of a product, a critique of someone or something, pictures of you, an email you send, a blog you comment on, etc., all are likely to be discoverable and may end up being used as evidence in cases where they are relevant.

If you use your social media wisely it shouldn’t be an issue – but as illustrated by the cases above, not everyone is likely to think before they post.

Success Is Inside!

Hammurabi was a ruler of ancient Babylon from about 1790-1750 BC. He’s most famous for writing down one of the first and most comprehensive listing of laws that existed during his reign. Hammurabi’s writings covered both civil and criminal law ranging from general to quite specific. His code isn’t a code in the legal sense that we’ve come to think of; the laws are not broken down by subject area and some refer to fees to be paid to specific occupations.

His code was published in every city that he ruled and believe it or not, was not the only set of laws in existence in that time period. Just about every king or ruler promulgated their own laws (but didn’t have the Commerce Clause of the U.S. Constitution to even out trade). The Code of Hammurabi wasn’t just his own proclamations, it also codified common laws that existed during that time.

Several copies of the Code of Hammurabi exist, but the most complete and most famous is in Paris, safely ensconced in the Louvre. That specific stele was discovered, in what is now Iran, in 1901 by Gustav Jequier. It didn’t originate there, it had been taken to Iran as plunder during the 12th century BC. Not only did we have collections of laws during that period but we also had early art collectors.

The Code of Hammurabi

Louvre Museum Paris

What makes the Code of Hammurabi interesting to me and hopefully to Certified Legal Nurse Consultants, is that Hammurabi caused some of the first personal injury, medical malpractice and wrongful death laws to be “written in stone,” so to speak. Laws, which if they were on the books today, might make some doctors and nurses think twice about the quality of their practice. Disciplinary procedures for healthcare providers were pretty tough in those days!

Here’s some of my favorite examples from L.W. King’s 1910 translation of the Code of Hammurabi:

Personal Injury:

• If a man put out the eye of another man, his eye shall be put out.
• If he break another man’s bone, his bone shall be broken.
• If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.
• If he put out the eye of a man’s slave, or break the bone of a man’s slave, he shall pay one-half of its value.
• If a man knock out the teeth of his equal, his teeth shall be knocked out.
• If a free-born man strike the body of another free-born man of equal rank, he shall pay one gold mina.
• If a freed man strike the body of another freed man, he shall pay ten shekels in money.
• If the slave of a freed man strike the body of a freed man, his ear shall be cut off.
• If he knock out the teeth of a freed man, he shall pay one-third of a gold mina.
• If during a quarrel one man strike another and wound him, then he shall swear, “I did not injure him wittingly,” and pay the physicians.

Wrongful Death:

• If the man dies of his wound, he shall swear similarly, and if he (the deceased) was a free-born man, he shall pay half a mina in money.
• If he was a freed man, he shall pay one-third of a mina.
• If a man strike a free-born woman so that she lose her unborn child, he shall pay ten shekels for her loss.

Medical Malpractice:

• If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

Hammurabi also created the first medical care reform system by regulating the pay doctors would receive for certain operations.

• If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.
• If the patient be a freed man, he receives five shekels.
• If he be the slave of someone, his owner shall give the physician two shekels.
• If a physician heal the broken bone or diseased soft part of a man, the patient shall pay the physician five shekels in money.
• If he were a freed man he shall pay three shekels.
• If he were a slave his owner shall pay the physician two shekels.

Finally, Hammurabi also dealt with judicial or legal malpractice.

• If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgment.

It seems to me that Hammurabi in some respects was a man ahead of his time.

Success Is Inside!

First impressions are important. Today, more and more Certified Legal Nurse Consultants are making their first impressions online, not only with the legal community but also with other CLNC^® consultants. So, what impression are you making with your online presence? Do you have a plan to guide and steer your online efforts in the right direction? Here are some strategies for making your first online impression count.

Facebook

Facebook is one of the fastest growing forms of social media. My own Facebook profile is open to anyone to view. This includes attorneys, legal nurse consultants and just about anyone with a Facebook account. Keeping an open profile makes it easier for people to find me and takes up less “housekeeping” time. Other people choose to keep their Facebook profile open only to their “friends.”

Whatever your preference, think about who your “friends” are and what they are saying. Screen your prospective Facebook friends carefully. Do you personally know everyone on your friend list? Whether you do or don’t, you’ll need to check your Facebook postings daily and keep your profile page tidy. While you don’t have a lot of control over your “home” page you do want to cut out postings like “Susan invited you to a squirt-gun fight” or “Jamie scored 100,000 petals on flower-pot-mafia-shootout.”

You may not write something offensive on your “wall,” but someone else might and if an attorney-prospect sees it while vetting you, that might put an end to a relationship before it even begins. Make a choice, Facebook is either business or personal but you blend the two at your own risk.

LinkedIn

Another form of social media is professional networking sites like LinkedIn. We’ve discussed LinkedIn in past blogs. Be sure that the members of any networking organizations (online or offline) that you join act professionally. As social networking grows in popularity, more and more people are drawn to it. But another caveat – be careful who you endorse, recommend and admit to your network. There’s an old saying that people judge you by the company you keep so keep that in mind when signing up for some of the networks out there.

Twitter

As Twitter has grown in popularity, it has also grown in the number of people who send nothing but endless streams of meaningless dialogue (“RT @SammyTune Rock on You Mad Dogue”). In my opinion there are fewer and fewer people tweeting content. Just take a look at the main Twitter timeline and you’ll see what I mean. Yogi Berra is credited with saying something to the effect of “Nobody goes there anymore, it’s too crowded.” Twitter is rapidly reaching that point as spammers are now getting on board. Despite that, I’m staying with Twitter as an effective way to communicate with my “followers,” that is, people who read my tweets.

Be sure to use Twitter carefully. If you join Twitter you should know why you’re joining and be prepared to put some thought into your tweets. Be careful who follows you and who you follow. Just because someone has 2,121,407 followers doesn’t mean they have something important or relevant to say. There are lots of ways to artificially inflate follower totals using “autofollowing” programs. If you want to follow someone, take a look at who is following them. If their follower list is packed with spammers, crackpots or other undesirables you may not wish to follow that person. Likewise though, it’s easy for people (and their inane comments) to appear on the list of people you follow (and on your timeline). The more popular you become, the more people will try to ride on your coat-tails. (Believe, me, I know. Tom says some people have hung onto mine for so long they couldn’t even stand if they let go and tried to walk on their own.)

I recommend that you cull your Twitter followers, and people you follow, no less than daily. Again, people will judge you by the company you keep and I personally don’t believe Twitter is the place to let it all hang out on your religious and political opinions or anything you wouldn’t want your children to see.

Twitter is also no place for shameless self-promotion and you don’t want to be a serial tweeter. If someone has nothing to do but tweet all day, it’s apparent they’ve got nothing else to do and that tells you all you need to know about their success level. Tweet when you have something to say that informs and entertains.

Just remember to “protect your tweets.” You should approve each potential follower. It’s a slower way to build a following, but more reliable than letting just any old twit follow you. (If you want to entertain, remember Ashton Kutcher can show Demi in her undies but we don’t want to see your spouse in theirs!)

If your Twitter homepage is public and you list it in your marketing materials, you want only professional tweets appearing in case a prospective attorney-client visits your Twitter homepage. That means you follow only people who tweet professionally. My motto is quality over quantity. If you want to use Twitter for personal use only – keep it out of your business materials. There’s no middle road in my opinion. Tweet professionally and to professionals and expect the same back.

Keep It Professional

If you’re using your social media networks for professional use, the same rules apply to all social media sites regarding headshots, biographies and content. Post only a professional-appearing photograph for your thumbnail and reflect the image you wish to convey when adding photographs to your galleries. Those Catwoman Halloween costume shots are out no matter how much you like them.

Write a professional biography for your profile and only post when you have something to say. Make sure your posts are about something you’ll be comfortable with other people reading (friends don’t let friends drink and post). Always remember, social media is a form of communication that will last on the Web for a long time after you (or someone else) have posted and may come back to haunt you when you least expect it.

Remember, when posting anything online there’s no such thing as personal use only. More and more attorneys and their staff are searching the Internet, Twitter, Facebook and other social media sites for such diverse purposes as expert witness screening, jury selection and looking for evidence. Companies have long been Googling not only prospective, but current employees as part of the hiring and retention process. You’re being looked at whether you want to be or not.

Keep It Your Own

In whatever types of social networking you choose to participate, use the same good judgment you would when creating your website or running your legal nurse consulting business. Don’t use materials or intellectual property owned by others without their permission. Remember, as the ultimate publisher, you’re the one who will be held responsible for any infringements.

Find Yourself

Savvy legal nurse consultants run variations of their name through the different search engines at least once a month. These used to be “vanity searches,” but today think of them as “image maintenance.” Look to see what profile you present to the web and to prospective clients. You might be surprised, pleasantly or otherwise. If it’s unpleasant, it’s time to take some steps to correct that image. See you on the Web!

Success Is Inside!

If you’ve ever doubted doing what’s right not what’s easy, doubt no more.

A recent article in BusinessWeek reported that ethical companies and companies that have a higher purpose than just making money are the ones that are strongest and last the longest. As business owners we set the tone for the entire company. We should expect integrity not only of ourselves, but also from everyone who touches our CLNC^® business in any way – employees, legal nurse consulting subcontractors, expert witnesses, attorneys and vendors.

If someone acts less than ethical it’s best to disassociate. Over my 27 years in business I’ve had a remarkable success rate, but I have had to discontinue a few professional relationships with people who failed to act with integrity. Sometimes it’s hard to disassociate because it means losing a highly skilled professional, or a valued resource, but let’s face it – people judge us by who we hang with.

In your legal nurse consulting business you will encounter situations where ethical questions arise. When you do, you’ll have to look to your inner voice and decide which side of the fence you’ll sit on. You can’t sit on top of the ethical fence, it’s either one side or the other.

There are any number of ways for doing business and any number of ways for making money. Some are quick and easy and some are hard. In my experience the ethical way is not the easiest, but does give you the highest payoff in terms of personal satisfaction and authentic success. Integrity is a success formula that brings your attorney-clients and their referrals coming back to you year after year.

One of the reasons I offer my risk-free guarantee for the CLNC^® Certification Program is because I believe so strongly in it. My integrity values require that we stand behind our products and programs and our CLNC^® consultants stand behind us in return. Our relationship with our CLNC^® students grows stronger after the sale because every Vickie Milazzo Institute staffer also embraces these values.

BusinessWeek reported that companies “whose moral compass points to true north” are less likely to fail than are those without a good ethical base.

On what foundation is your legal nurse consulting practice built? Which way does your moral compass point? I hope we’ll be able to spot polar bears together on our way north!

Success Is Inside!