May 20, 2019

Ross Guberman: Client Alert or Client Asleep?

Many law firms market themselves by sending out “client alerts” about the latest hot case or regulation.

Here’s a secret: These client alerts leave most clients cold.

Why? Because they fail the “So what?” test.

A Typical Alert

A typical client alert starts like this:

In Verzini v. Potter, No. 03-1652 (3d Cir. 2004), the court discussed the relationship between two defenses that employers can use under the Americans with Disabilities Act (“ADA”). The Court considered both the “direct threat” defense and the “business necessity” defense. The Plaintiff, a postal worker, told his supervisor that his neighbors were peering into his windows while he slept. The supervisor was concerned that the employee was not fit for duty and ordered him to be examined by a psychiatrist. The psychiatrist diagnosed the employee with chronic paranoid schizophrenia. The Postal Service eventually fired him. Plaintiff sued for disability discrimination, but the Postal Service insisted that it had a “business necessity” to fire him because it had to ensure workplace safety. . . .

Any clients still reading are tapping their pens.

A Better Approach

Start by telling your clients what they can or should do now. Only then discuss the case or regulation—and only to highlight the “So what?” factor.

Try something like this:

Under a recent Third Circuit ruling, if an employer fires an employee to preserve workplace safety, the employer need not prove that the employee has directly threatened anyone. In that case, for example, the court allowed the Postal Service to fire an employee who was “unfit for duty” simply because he had refused treatment for paranoid schizophrenia. Although this case appears to allow employers to fire an employee for legitimate business needs alone, employers should take the following steps before doing so. . . .

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

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