We Have More Work Than We Can Handle

Introduction:

This week, Paul Downs, Jaci Russo, and Sarah Segal talk about how and when they start planning for next year. And here’s one happy challenge they’ve all confronted: What do they do when they don’t have the capacity to handle all of the work that’s coming their way? Do they staff up? If so, what happens if the work subsequently falls off? Do they create a backlog? Do they miss deadlines? Do they raise prices? Plus: Jaci shares an AI tool she’s been using to learn more about the decision makers her agency targets. And the three owners respond to a case study in ADA-compliance litigation taken from a Reddit post: “What are we supposed to do about this?” a business owner who has been sued for having a non-compliant website writes in the post. “I am trying not to overreact, but having my savings and my income taken from me this way is just devastating.” Jaci, whose agency builds websites, says there is a way to protect against those lawsuits.

— Loren Feldman

Guests:

Paul Downs is CEO of Paul Downs Cabinetmakers.

Jaci Russo is CEO of BrandRusso.

Sarah Segal is CEO of Segal Communications.

Producer:

Jess Thoubboron is founder of Blank Word.

Full Episode Transcript:

Loren Feldman:
Welcome Paul, Jaci, and Sarah. It’s great to have you here. The main thing I want to talk about today is, we’re getting very close to the fourth quarter of 2024, and I’m curious: When do you guys start planning for 2025? And what kind of process do you go through to budget, to forecast, to think about what you’ll invest in and what your goals are? Anybody want to take that on?

Paul Downs:
No. [Laughter]

Sarah Segal:
I can just tell you one thing that I’m working on. So in my industry, and I’m sure other industries, December and January are just horrible, in terms of new business. And you have a lot of contracts that near their end at the end of the year or are coming to a close. And January is just a very tough month, because so many companies are working on putting their budget together. So, I’m working tirelessly on planning for those two months in particular.

Loren Feldman:
What are you trying to do?

Sarah Segal:
Well, I’m trying to drum up business that will start in January. So, getting things kind of on track, making sure that any of our contracts that are set to expire are renewed for that period of time, and just making sure that we don’t have any wasteful spending that’s going to give us a tough time during that period. But it’s the same thing every year for us. We just get slow.

Loren Feldman:
Do you go through any kind of budgeting or forecasting process?

Sarah Segal:
Well, since I started my company, I’ve gone through a variety of different bookkeepers. I recently just let go a bookkeeper and hired a new person who is not a bookkeeper, but they’re a fractional CFO. And so that person is going to help me kind of do projections and be able to plan a little bit better for my business. Because it’s very much a weakness of mine. I’m fine with numbers, but I wouldn’t say that I’m the best person, in terms of doing projections.

Loren Feldman:
Have you had the fractional CFO long enough to have a sense of how it’s going?

Sarah Segal:
I’m really excited about them, but one thing nice about what they do is that they work with other PR agencies, so they understand my business. They also used to work in-house at a larger PR agency, so they’re very familiar with the process and how the books should look. So, I’m super optimistic about this person.

Paul Downs:
I don’t really do annual planning, because nothing much changes for us on January 1st, other than it’s a new year. Now, that does mean you’re going to file taxes on whatever happens in the next 12 months. But the nature of my business is that, in January, we’re doing work that we sold two or three months before. And so what I’m watching at all times is just: What’s the rate at which sales are coming in? And I’m looking for various metrics that I keep in mind to decide whether to hire or not.

I have a lot of expenses that are more or less fixed. Like, my rent is going to be my rent. And I’ve developed a sense of what ratios of revenue to certain types of employee that we have. The most variable thing every year has just been the number of sales we make, and I can’t always explain why that happens.

For instance, this year, we’re up almost 55 percent over last year. Last year, we did about $4.2 million, which was within the range of normal for the last three or four years since the pandemic. And this year, we’re on track for about $6.2 million right now. And so the planning decision I had to make was: What do you do about that? Because you can only move stuff through the factory at a certain rate without changing something: adding more people, adding more space, adding more equipment.

And because the increase in sales is so unexpected, I’ve decided that I’m going to do nothing other than let the backlog grow. And so that’s the kind of thinking that I’m doing more than, “Oh, it’s 2025.” You know, I don’t have contracts from the client end that need to be renegotiated or renewed. We’re just sort of waiting for people to call us and spend money, and by surprise, this year, they’re doing it like crazy.

Sarah Segal:
I assume that you have ebbs and flows of business, but when you get too many orders at once, do you space out when you could start a project? I was talking to a web designer the other day about a project, and she was like, “Oh, I would be able to start your project on October 15th.” Do you ever do that?

Paul Downs:
Oh, yeah. I mean, we have systems that allow us to see what the pile of work ahead of us consists of quite precisely. And so what we do is we let the backlog ebb and flow in order to handle surges in sales. And we can tell clients, “Hey, right now, as of today, it’s going to be 16 weeks. And I’m sorry we quoted you 12 weeks, but that was eight months ago.” And people are pretty cool about it. If there is a critical date, we usually find a way to make it happen, no matter what the backlog is.

But a lot of it has to do with having systems. First of all, we sell based on predicted amounts of labor hours that’s built into our pricing. So when a sale comes in, I can add that chunk of labor hours to the unused chunk that we have ahead of us. And I have software that shows me those cues very, very precisely. And a lot of it too is just like, shoot, I’ve been doing this 39 years now. And I have a pretty good sense of what that feels like. And so we just explain to the clients, “You got your order in, but a million other people got in ahead of you. And this is the way it is.” The nature of our work is that clients can accommodate that.

And then the other thing is, backlogs become self-correcting at a certain point, because there’s a perception among buyers of what would be reasonable to wait for custom work. And let’s just say, for the sake of argument, that under 16 weeks, everybody’s fine. And if you say when someone rings, “Hey, right now, we’re at 20 weeks,” half of them will just put the phone down. And so that if you sell too fast, you’re going to run into a situation where, while your backlog is high, then fewer people will buy, and that will correct itself. And I’ve learned not to worry about that.

What I’m watching to see is whether there’s some precipitous drop in the number of people who are likely to call us, like Covid being a good example. We were on track for our best year ever in February of 2020, but by April, it was pretty clear there was going to need to be an adjustment. So, a lot of it is just experience and records and having a model for selling that gives you some sense of: What do you have to do if you sell that thing?

Jaci Russo:
Sarah, I think that your web designer—and I may be wrong, but—I’m guessing they might be a freelancer or a very small team.

Sarah Segal:
Yes, they’re independent.

Jaci Russo:
Bigger companies, like my agency, we have a team of people. So we can always increase capacity as necessary so that we don’t have to have clients wait.

Paul Downs:
Let me just add one thing. Different businesses are constrained as to how they would increase capacity.

Jaci Russo:
Sure.

Paul Downs:
So, if you’re in web design, you guys can go out and hire freelancers, and all you’ve gotta do is find some freelancers. Whereas, I have to equip every person I hire with square feet, equipment, and management capacity. And those things make it quite difficult to suddenly scale up. When we hire new people, there’s a period of about two years before they’re even fully trained. So that makes me feel like running the backlog higher and lower, as opposed to just adding or subtracting people.

Sarah Segal:
I mean, yeah, you can say that you can just hire freelancers. I don’t feel like that. I’ve worked with a lot of freelancers over the years, and while I like a lot of them, personally, I don’t feel like they deliver to the same level of work of the people who are on staff. And so if I hire a freelancer, it’s 100 percent for a temporary, and then I plan on replacing that person with a staffer. I’d much rather have somebody on my team permanently, because I think that the output that they generate is a lot better.

Like, right now, we’re maxed out. We have just enough clients for just enough team. But I still want to make sure that we’re good in January-February. Because some of those projects that we have ended at the end of November. But if I add anything else now, I’m going to be in trouble, because I don’t have the capacity to service that—but I don’t want to hire a freelancer. So, it’s this weird kind of in-between space.

Paul Downs:
Well, that’s a classic problem in scaling up: Do you add capacity before the sale or after? And I can tell you that, in my experience, it’s a lot easier to deal with it after, because at least you know that the money is coming in. Whereas, if you build capacity and you just hope for the best, you can be badly surprised, and then you’re carrying all those costs.

Sarah Segal:
Adding capacity quickly in service-based industries like mine is harder than you think. Because there’s this trend of people working in public relations, and then they work in-house, or they work for an agency, until they’ve hit a certain level of seniority. And a lot of them will go and become independent contractors or freelancers. I can hire junior level people by blinking, and they’ll show up, and I’ll have a team. But I can’t hire anybody who knows what they’re doing. It’s very difficult to find a skilled worker at a certain level in the industry—at least in the Bay Area, which is where I am—and we have a hybrid work policy.

Loren Feldman:
Is that because of what you’re offering, in terms of salary? Or even if you pay more, you’d have that problem?

Sarah Segal:
No, even if I pay more, I’d still have that problem. You just don’t have the qualified applicants. It was funny, though. Last year, I was like, “Okay, you know what I’m going to do? I’m going to call this recruiter I know, who I’ve worked with in the past, when I worked for a different company.” And I was like, “Hey, do you have the bandwidth to help me find this level of human?” And she was like, “No, I don’t have bandwidth. I have too many people looking for people.” So, even the recruiter was like, “I can’t do it for you.”

Paul Downs:
Well, a lot of those are self-imposed constraints. And I mean, I’m not saying that you’re not correct about the difficulty, but I mean, I can think of strategies that, based on utter ignorance, should work—you know, like implementing more AI to do the initial drafts of things to get productivity up. And I’m sure you could tell me all kinds of ways to run my business better, too.

Sarah Segal:
I’m really good at saws. [Laughter]

Paul Downs:
I’m just gonna say, though, that every business owner chooses what they do and how they do it. And sometimes those things are real constraints, and they affect your ability to suddenly scale up or down.

Sarah Segal:
And I put in these constraints based on experience: having hired freelancers in the past, and their not doing what I needed them to do—or hiring somebody who was remote who literally did the bare minimum for their job. And that’s why I set my company up the way it is. Because I need to have a relationship with the people who I work with—and then to see how hard I personally work at my job so that they mirror that.

Paul Downs:
I think that’s an absolutely legitimate choice. Good for you.

Loren Feldman:
Paul, I wanted to ask you about your constraints. What would it take for you to decide you no longer wanted to just manage the backlog, and you did, in fact, want to add square footage, people management, whatever it takes to take on more capacity?

Paul Downs:
Probably the biggest constraint right now is management capacity on the shop floor, and so I’m planning on dealing with that, but it’s not in the nature of an annual plan. It’s more like, “Hey, this is the constraint at the moment.” My shop manager got four new employees who were trained in school but not trained in real life in the last six months, and has been busy trying to just digest that. Because when we add new people into any part of our operation, they have to learn a lot about what we do. Nothing we do is exactly like what you’re going to find in the next shop over. And so what I’m thinking about is: Can I solve that problem by developing some kind of lieutenant for him? And we have some people in mind.

And it gets very complicated when you talk about trying to get people to do this or that, because they have schedules and families and this, that, and the other thing. But I am not, at the moment, looking to hire outside, which would be the obvious step. Because I know that the disruption that a new player presents when you drop them into any part of the organization. And we’re not quite big enough to have excess capacity to absorb new people, but we may need it.

Now, what I’m going to do is wait till about March next year and see whether the current rate of sales coming in looks like the new normal, or whether it was a blip. If it was a blip, we just let the backlog fix itself. If it’s the new normal, I’ll probably be looking to hire again, but not immediately. So we’re fortunate, in that we have an industry where backlog goes up and down. Everybody gets it, and it’s not an extreme problem for me to let it balloon a bit.

Sarah Segal:
Can you expand in your current space? If it continues in March, do you have the space to do that?

Paul Downs:
We kind of do. And we ran into that a couple of years ago, where our existing shop was just like completely crammed, and we rented space in an adjacent building that we have. It’s not difficult to get from one shop to the other. They’re one elevator ride and then right over the floor. But there are constraints with that new space. It’s not a very pleasant place to be, so we use it mostly for storage. So we’re constantly looking to maximize the space we have. And then also, what can we outsource?

Now, the one thing that we haven’t done that’s fairly obvious is to just run the shop for more hours. And this is why factories often have a second and third shift, because when you can’t expand anything else, you can always just have people working more hours. But that requires a management capacity that we don’t have at the moment. What we do is very complicated. Every job is different, and it’s not like you can just be running another shift and run the same machines doing the same thing. So there may be a day when we run a second shift and develop a second team to pick up the projects after the first team leaves and continue to work on them. You’re just getting more hours per day. And that would be, in my case, probably the best way to deal with it. But it’s a daunting task to develop a whole other team and then figure out how they would interact on the same project with the previous team.

Loren Feldman:
Paul, when you have a big backlog, do you try surge pricing? Do you raise the rates?

Paul Downs:
Well, we stop giving discounts, that’s for sure. So one of the other weird things is that we’re frequently working on projects that were quoted more than a year ago. And a year ago, we were actually running through our backlog. It went down to six weeks, which is sort of a flashing red light. And so I was telling the sales team, “Hey, just make some sales. Quote this stuff very tight.” And now those jobs are hitting the shop floor, some of them, and so we’re working on reduced margins on revenue. But I’m for sure not letting any discounts happen on the sales end, because it seems like people are eager to buy, and they’re accepting the higher prices we’re proposing to them.

And we have the advantage that nobody really knows what our product should cost. [Laughter] So it’s not like anybody’s memory of buying—you know, like, “Oh, I’ve been buying a 20-foot conference table every week for the last 40 years or something,” like you would with the price of eggs. It’s just not like that. People come in for sort of one deal. So we can present prices to them, knowing that this is as low as you could possibly go, and they can’t get it anywhere else. So they’re going to come to us, or, “Hey, too bad, everybody else is backlogged too. We’re going to just charge you.”

Sarah Segal:
I think what’s common across all three of us is that customers don’t necessarily know how much things are going to cost. If you were to hire a PR agency, do you have any idea how much it would cost?

Jaci Russo:
No, but people think they know. [Laughter]

Sarah Segal:
Of course they do, because they Google it. Jaci, so when you have bigger projects that are like too many projects for your current team, do you have an arsenal of freelancers that you tap into? Or how do you manage that? And when do you decide to actually bring somebody on full-time?

Jaci Russo:
So we’ve been through these evolutions, and the backstory is necessary to understand. So when we first started, we were a media-buying company, period. I was a media buyer and we did media-buying. We placed media for people. Those people needed creative. So then we became media-buying and a creative shop. Luckily, I’m married to who I think is one of the greatest graphic designers in the country. So that helped a lot—and an excellent copywriter. And so, I was getting media clients, he’s kicking out creative, and we started hiring because we needed more capacity, more people.

We learned quickly that the project life was not conducive to my good mental health, because the ups and downs of that—everything y’all been talking about—stressed me out. So we did a few things as we evolved from media-buying into a full-service agency that was doing all these projects. We built a pretty robust intern network, and so we’d pull them in as university students, train them up. They’d come on as part-time, kind of in their senior year. We’d pick the best of them and turn them into full-time employees.

But Sarah, to your point, we’re missing that middle level of experience where they’ve worked in other places and they’re bringing knowledge to us. I want to hire people smarter than me, and if I’ve trained you your whole time, and you’ve never had another job, we have two problems: One, you only know what I’ve taught you, so you don’t know more than me. And two—and I say this with all the ego that it sounds like I have—you don’t know how good you’ve got it. If you haven’t worked somewhere else, you don’t appreciate having a 401(k) and paid health care, and a four-day work week, and flexible work conditions, and top of the market pay, and incentive profit sharing, and all your favorite snacks in the kitchen that you can just help yourself to at any time—as long as no one’s name is written on it.

Sarah Segal:
You’re preaching to the choir—100 percent agree with you on that.

Jaci Russo:
Right, and so we then evolved our next evolution—not just because I wanted people to appreciate snacks, but—because I didn’t want to be a project shop anymore. And so we don’t do projects. We haven’t done projects for, probably, I’m gonna say eight years, but that could be wrong. It could be 10 at this point. It feels like a century. And so we have retainer clients. So this way we don’t get a project, hire; lose a project, fire. We have steady growth. And my whole job is to add to that over time, because we’re going to lose people with attrition, but our average client rate right now is six years. So we keep our clients.

Loren Feldman:
Jaci, do you have an annual planning process? Do you—

Jaci Russo:
Oh, yes.

Loren Feldman:
How does it work? What do you do?

Jaci Russo:
So we do a couple things. We have a core leadership team that gets together and talks about who we want to be when we grow up. Michael and I, as the two leaders of that leadership team—this is a new piece to the puzzle—we went to an EIR, which is an entrepreneur in residence, at the Edward Lowe foundation in Michigan in July. And we did it for two reasons.

One, if you’re from Louisiana, you want to be in Michigan in July. Like, I just can’t even tell you all enough how Michigan in July is great for people from Louisiana. But two, it is an incredible program that Louisiana businesses have the privilege to be a part of because the state of Louisiana’s economic development department is in partnership with the Edward Lowe Foundation to help small businesses grow.

And so there’s a ton of resources and programming, and a lot of it paid for by the state to help small businesses get up through that second stage and continue to add payroll. I saw the numbers yesterday: For every $1 that the state of Louisiana spends in these programs, the companies that they support get $20 back in revenue and growth. So it’s awesome, right? We go up for three days, and it is light programming. There’s a guide. There are meals three times a day that they make for you. And otherwise, we were left to our own devices to work through the guidebook and really have some real conversations about growth—not just next year, but three years, five years, 10 years. You know, what’s it look like? Is there an exit strategy? What’s the next generation? How do we continue to build this thing that we’ve been doing for 24 years?

So that was awesome, and now we bring back the knowledge that we gained and the thoughts that we’ve had. And so usually it’s the first week of October that we get together and we start mapping out next year. But we have to do it after we finish doing all of our clients’ plans for next year. And so we tend to have those finished right about the end of September.

Loren Feldman:
And what’s the budgeting or forecasting process like? Are you trying to decide whether you’re going to be investing in the business or just maintaining what you have? What do you go through?

Jaci Russo:
We do all of that. We look at our own growth, in terms of the team, professional development, resources. We’re picking up a new client, it looks like, that’s in the Pacific Northwest. Super excited about it. And so they have some specific needs that we will want to accommodate. So we’re either going to do this one particular piece of work in-house, or we will leverage a team on the ground there, because it’s like, we fly there and do it, or somebody does it there and gives us some things back.

So we’ll work through that, and we’ll plan out for the clients we’ve had for 4, 6, 8, 10, 12 years. Who are they growing into next year? And how does that impact us, in terms of our resources? And then we look at our own growth—the clients we’ve added last year, this year, the ones we think we’ll be adding next year. And I’m the capacity manager. That’s my job: How do I continue to say yes to my team and my clients and make sure that everybody has what they need? I think that’s what a CEO does, is manage talent.

Sarah Segal:
What does it look like—your planning? Does it end up being just a document that you kind of live by and you check in on it quarterly? Or what does the actual output look like?

Jaci Russo:
I think of it in terms of campaigns, and so we’re looking for ourselves and for our client, because it’s the same answer.

Sarah Segal:
For yourselves.

Jaci Russo:
For ourselves, I still think about it in terms of campaigns. We’re looking at it in terms of—and this is going to, actually, I think, answer your question, Sarah—about growth. So, who do we want to have? You know, we have a database of people who we would say yes to if they wanted to hire us, and that’s a big distinction. We’re not saying yes to everybody. We say yes to people who fit our criteria.

Loren Feldman:
How do you generate that list, Jaci? Are these companies that you’ve had some contact with, or are you just picking companies out?

Sarah Segal:
A wishlist.

Loren Feldman:
Yeah, a wishlist.

Jaci Russo:
So, it’s: yes, and. There are companies who have reached out to us. There are companies that, because we’re category exclusive, if we don’t have a client in a certain category, we have our eyes on that category to see who’s in that space, and what are they doing, and who would be a good fit for us? It’s not going to be the biggest, and it’s not going to be the smallest. It’s going to be a company that’s probably in the middle and growing. And so we have some listening tools that keep us locked into who those companies are, and when we see them starting to make moves, it’s like, “Oh, hi, it’s nice to meet you.”

And so we get to know them. Oftentimes, it’s people who I meet when I speak at conferences. Because I do a lot of that. It’s people who see the videos I put out online and will reach out to me, and we’ll put their company—unknowing to them—through our screening process to determine that they’re a good fit. And then we put them into the database. So the database, really, are companies who meet the criteria that either reached out to us, or we’ve had our eye on and we’re now building a relationship with.

Loren Feldman:
Jaci, you’ve talked here a lot about making the effort to integrate AI into all sorts of processes at the company. Have you found a role for AI, in terms of identifying opportunities, or strategic planning, or any of the things we’re talking about?

Jaci Russo:
Oh, absolutely. There are a number of tools that have gotten better because of AI, and one of them is definitely prospecting. We use ChatGPT, just like everybody else, I think, in terms of a brainstorming partner and first draft of things and stuff like that, which is great. But there’s a really cool tool called Crystal that helps, I think, with understanding our prospects, and it integrates into LinkedIn and a few other resources. And it’ll tell you not just—I think all the tools could be like, “Hey, you should try emailing them this message.” No, it’s a little deeper than that. We subscribe to the theory that people are not one-size-fits-all, and so if you believe in Enneagram and DiSC and all of those different personality testings, this takes it one step further and matches it up to kind of how you should approach them, and I think gives really solid, good feedback. And so those are the kinds of tools that we use to make sure we’re properly courting the people who we want to be in relationships with.

Loren Feldman:
Can you give us a little bit more of a sense of what Crystal tells you?

Jaci Russo:
Oh yeah, sure, sorry. So, for example, in LinkedIn, it will give you a profile of that person, and so it’ll tell you what their personality type is, how they want to be marketed to, how much information to send them up front. It’ll tell you, “Lead with this in the email,” or, “You need to earn trust first and then come in with that.” It just really, I think, helps us not just talk to people the way we want to be spoken to, but communicate with people the way they want to be communicated with. And so I think it’s just believing that there’s not a one-size-fits-all.

Sarah Segal:
I would love to know what it says about me.

Paul Downs:
Yeah, me too. I’m very curious about that.

Jaci Russo:
I’ll send you all the link.

Paul Downs:
No, I want you to just do me.

Jaci Russo:
Oh, like right now live while we’re live on the air?

Paul Downs:
I’m just curious because, I mean, I have a public presence. I’ve got a LinkedIn profile, blah, blah, blah. And I’m always curious about whether these systems are actually any good at sussing out the things—I mean, there’s no way it could—but taking into account the things that I don’t necessarily put in public. So, I’m just very curious about that.

Jaci Russo:
Well, I’ll tell you, it nailed me.

Paul Downs:
If you were approaching me—I mean, I’m a growing company. If you had a PR pitch for me, I’d be very interested to see it.

Jaci Russo:
Right. Well, it nailed me, like 100 percent, which is what made me feel like, “Oh, this is worth the time.” And I think it’s about finding tools that you have confidence in. So when I look at some of the things that we do, in terms of how not just we do our prospecting, but how we maintain our relationships, how we do our reporting—to answer Loren’s original question: All of those things have been enhanced through different AI tools. Our reporting is so much better than it used to be, because we’re not just saying you had this many clicks on the website. We’re able to dig a lot deeper now into who those people are, where they came from, where they went, and what we need to do with them.

Sarah Segal:
Okay, I just did me, already. It says, “Sarah is likely to thrive in an unstructured environment and tends to act on intuition. Sarah is most likely an optimist who strives to leave a positive impact on those around her. She may appreciate spending a lot of time talking to others. There’s a chance she may occasionally be late to a meeting. But when she arrives, she will likely bring a lively, colorful story.” [Laughter] I love this!

Jaci Russo:
Is that accurate?

Sarah Segal:
Uh, yeah.

Jaci Russo:
Okay.

Sarah Segal:
Oh, this is hysterical.

Loren Feldman:
How does it know you’re likely to arrive late?

Sarah Segal:
I have no idea. That’s really creepy. I do this thing where I know I have a meeting coming up, right? And I have, like, three minutes before that meeting. I’m like, “Okay, I can do something before that meeting.” I’ll start doing it, and then I’ll look up, and it’ll be four minutes past the start, and I’m like, “Ugh.” It’s not a good thing. But I try not to do that very often. But that’s really interesting that it knows that.

Loren Feldman:
Jaci, I want to ask you, your wishlist obviously goes beyond just identifying a potential client. You’re identifying decision makers at that client and learning about their personalities and how to pitch them. How do you figure out who those decision makers at a potential client are?

Jaci Russo:
Good research.

Loren Feldman:
So just by title? You’re looking for the—

Jaci Russo:
We look for titles. I mean, you know, in my area, marketing directors and chief marketing officers and VPs of marketing are typically it. Sometimes it’ll be community relations. Sometimes it’ll be some other invented title, but for the most part, it’s marketing.

Loren Feldman:
And can you give us an example of something you learned about a target’s personality that allowed you to hone your pitch to better appeal to them?

Jaci Russo:
Well, I think that it reminds me that not everybody is as straightforward, direct, get to the point, make a decision and go, as I am. It keeps me in check, for lack of a better word, and makes me remember to be human. You build relationships. I’m a better marketer when I am focused on who I’m talking to and how they want to be communicated with and what their needs are, rather than my own agenda. And so tools like this, I feel like, help me do a better job of that.

Loren Feldman:
Paul, I’m guessing you found your profile. What have you learned?

Paul Downs:
It’s sort of like going to a fortune teller. I think that you could have gotten 40 percent of this just knowing that I run a small business, right? And so there’s certain things that they’re saying about me which I actually don’t agree with, and there’s certain things which I do agree with.

For instance, they’re putting me the opposite of an analyst, which is dead wrong. I analyze everything to death. And I’ve been keeping stats and data and things for 40 years.

Loren Feldman:
I’ll vouch for that.

Paul Downs:
I don’t know, but I don’t really show any of that on anything I’ve got on LinkedIn. It’s okay, but I don’t think it would be a magic key to unlock me to somebody trying to make a sale.

Sarah Segal:
Even if they’re imperfect, I think that what Jaci’s saying is it gives her or reminds her that not everybody is going to talk in the same way, or process information, or make decisions in the same way. And like, whether or not this stuff ends up being accurate about the person you’re reaching out to, at least it makes you more sensitive to how they process information.

Jaci Russo:
Correct.

Paul Downs:
They’re saying that you should present a kick-ass story to me, and I would actually be much more interested in a 10-tab spreadsheet about how you’re performing. And they’re just not catching that. So, is that because I hold that close to the chest in my public profiles? I don’t really know the answer to that.

Loren Feldman:
Well, if they found the blogs you wrote for The New York Times, they would know that you have an analytical bent.

Paul Downs:
Well, did they? I mean, that’s part of it. Like I certainly put plenty of portraits of me as a person out there in public. If you read everything I wrote, you would have a fairly good idea of that. Yes, I’m extremely analytical. And this profile is saying: No, you’re not so much. One of the things it said: I will get bored with a detailed presentation. [Laughter] No, I’ll probably be asking for more. So, you know, whatever, it’s a system, and it’s probably better than no system. So if you’re getting use out of it, go for it.

Loren Feldman:
All right, the clock’s ticking, and I want to run a situation by you guys. This comes from the small business subreddit. Let me just read this post to you from a small business owner:

“My small business has been sued for having a website that is inaccessible under the ADA.” We’re all familiar with this issue, sadly. “We use an official Shopify theme and only ever added apps that were approved and marketed as accessible. We never altered any code and ran a program to make sure our photos have alt tags. Our business is very small, but it is my only income, and we support a few families. The lawsuit has already cost thousands of dollars that we couldn’t afford. The firm suing never made any complaint to us to ask us to fix anything. They just sued. Their ‘client’ has sued dozens of businesses this year alone. Our lawyer says our only options are to pay or fight, both very expensive. This is heartbreaking to be scammed out of our money, and our employees lose their incomes. I contacted Shopify, and they said to use an accessibility app, which the lawsuit says actually makes things worse. I asked Shopify to support us because we only used what they provided, and they showed me their terms of service make them not responsible. There is nothing in the lawsuit that we could have avoided by creating our website more carefully. I’ve now talked to a number of web developers, and they said there’s really nothing you can do to make websites immune from this sort of suit. What are we supposed to do about this? I am trying not to overreact, but having my savings and my income taken from me this way is just devastating.”

I suspect we’ve all heard about situations like this. Anybody got any thoughts?

Jaci Russo:
I’ll go first. I think it is heartbreaking, and I have great empathy for this company, because I’ve been hit with unexpected tax bills for a city where we don’t have a location that would have merited us paying tax. And it costs a lot of money to go fight it, and so I appreciate how out-of-the-blue and sudden and impactful that can be. At the same time, I believe strongly in ADA and websites being accessible, because people who legitimately need to have the computer read the website to them, I’ve seen when websites aren’t built right, and that becomes an impossible task.

I think that there should probably be better standards and education. And so when someone who is not versed, well-versed and trained on how to build websites the right way, this is going to happen. And it is an unfortunate situation. I don’t know that I necessarily agree with the middle part about web people saying that it can’t be prevented, because there are tests that you can run, there are tools that you can use, there are fixes that you can provide that should keep a website completely ADA compliant.

Loren Feldman:
And in your experience, is that enough?

Jaci Russo:
I don’t think anything can prevent a lawsuit. I think anybody can sue anybody for anything. It’s part of our system. But I think that, you know, I have read both sides, where people had perfectly created websites and fought those lawsuits, and the law firm that was suing on behalf of their—I’m using air quotes—“clients”— because they just file suits nonstop, right and left—they lost, and they had to pay. And so that’s great when that happens. Maybe it will train these firms to stop filing nuisance lawsuits and really focus on helping actual people who need ADA compliance to function in their worlds.

Loren Feldman:
You guys build websites. Have you had this problem with sites that you’ve built?

Jaci Russo:
Well, I for sure don’t want to put us on the radar with companies like that, but so far, no, we’ve been very fortunate. We do everything possible to make sure that what we’re doing is fully compliant.

Paul Downs:
Is there any distinction between a site which is engaging in ecommerce and one which isn’t?

Jaci Russo:
Well, the ADA compliance tends to focus on things like: When the computer is reading the website, is there enough space around links? Does the link have a descriptor so they know what the link is going to? Do the images have alt image text so that the computer can tell the visitor to the website what that is a picture of? And those are all things that a trained website professional should do foundationally.

Sarah Segal:
Is the ADA compliance only in terms of ecommerce platforms? Or is it—

Jaci Russo:
No. Every website.

Sarah Segal:
Every website. Because I had a client who was telling me about this, and she was explaining to me how much money it was costing her to basically redo her entire website because of the fear of being litigated. But I’ve never thought twice about this for my website, which is super simplistic.

Jaci Russo:
Yep, every website.

Paul Downs:
The other question is: Okay, what are the possible paths after you receive this lawsuit? One is, I’m sure that what the law firm actually wants is for you to just write them a check to go away. So what kind of amount are we talking about? Would 5,000 bucks do it? Or is it something more? Second, what’s the jurisdiction of the lawsuit? And third, they filed a lawsuit. What if you just ignore it? Like, what would happen? Are they actually willing to go to the mats for somebody who is just not playing their game? Because obviously, the business model of the law firm is to send the summons, get a go-away check, easy-peasy, off to the next one. So I just wonder whether anybody has any experience with these other paths to getting rid of it.

Jaci Russo:
I don’t know. I feel like it really would be great if it was built the way that you driving without your driver’s license is. You know, you’ll get a fix-it ticket, as I would call it, because you are a licensed driver. You just don’t happen to have it on you at the time. And so as long as you can prove that you’re a licensed driver, you’re fine, and there’s no expense.

I have been hearing about some changes in a few jurisdictions where, now, it’s not for being unlicensed. The ticket is for not having your license on you or not having proof of insurance on you. So you can’t just fix it by proving you had insurance. At the end of the day, you didn’t have proof, and that was the violation. I think that the law firms, the two that I’m aware of, are not necessarily focused on making the world more ADA-compliant. They are focused on finding companies that have websites who are not compliant, and winning lawsuits against those companies.

Loren Feldman:
I believe there is legislation that’s currently stalled in Congress that contains a proposal that would give a business 30 days to fix whatever problems there are before they could be sued.

Jaci Russo:
That’d be great.

Paul Downs:
Yeah, I mean, that would be fantastic. This is another shakedown, and small business owners are exposed to a lot of them—the employee you fire who then comes back with a discrimination suit—and I think that it’s very difficult to get beyond the anger of being trapped in these things and then just do a really hard, cold, 30 seconds to write a check for X thousand dollars and this goes away, and then I can fix it at my leisure. As opposed to getting caught up in the battle, because the battle is mind-draining. And, yeah, I mean, if you settle one suit, that probably doesn’t give you any protection from another suit. But maybe there’s some finite number of law firms that are actually running this scam.

I mean, it sounds like the patent litigation thing, patent-trolling. And the real goal of these firms is to just get that quick check. So maybe there’s an opportunity to say, “Hey, I can’t pay you. I can’t pay whatever, but I’ll pay you $4,000. What do you say?” And just get rid of it that way. And there’s a lot of things that you’re going to run into when you’re running a business that are a version of that, where you’ve just got to be like, “Okay, I’ve just got to pay some money, and it goes away. And if I let it live in my mind, it’s still gonna end up paying the money, plus now it’s damaging my psyche.”

And part of being sort of a crusty old business owner is just learning to make those calculations. I’m sure that if Jay was in on this conversation, I mean, there’d be some smoke coming out of his ears, but he would also say, “At the end of the day, just write the freaking check. Move on.”

Loren Feldman:
According to what Jaci just told us, you can also write a check just to make sure that you are, in fact, compliant, and that there’s a good chance—

Paul Downs:
Well, that’s the service that this podcast is performing today. I’m going to go check with my web guys and say, like, “Hey, did you ever think about this?” But you get caught in stuff, and sometimes all you can do is shrug, write the check, and move on.

Sarah Segal:
Well, I think that going into compliance, for some businesses that have, I don’t know, 10 pages on their website is one thing. But for another, like an ecommerce site? Think about Amazon: how many pages of content, how much content they have from outside vendors.

Loren Feldman:
I’m not gonna lose any sleep over Amazon.

Sarah Segal:
No, I know, but they’re a good example of a large company with so many different landing pages. They probably have teams, at this point, working on being compliant.

Loren Feldman:
Well, I was surprised at the attitude expressed by Shopify toward this. You’d think they would—

Sarah Segal:
Oh, I know. I think that they found that out early, put it in their terms of service that, “We’re not responsible.” They knew that this was going to be a problem, and they protected themselves. That’s not surprising.

Loren Feldman:
There were a couple of comments on the Reddit page that I thought were noteworthy. One was a suggestion that you try your local SBA, that it’s possible to get either free or inexpensive legal advice to help with these situations. I guess it varies by location. It also said someone who was a little more combative suggested checking to see if the company suing you—I guess the law firm they’re referring to—has a website and then countersue them using the same guidelines.

Sarah Segal:
That’s smart. That would be awesome if that happened.

Paul Downs:
Yeah, but then you’re now heading off in a different direction than running your business, which is your best chance to recoup your money. If somebody hits you up for X amount of dollars, figure out how to get your business to generate X amount of dollars. That’s my advice.

Loren Feldman:
I think this was a feel-good suggestion. It would be good for the Hollywood version of this problem, right?

Paul Downs:
Yeah, justice is a very nebulous concept, and when you get down to situations like this, you kind of have to abandon it there. There isn’t going to be any justice. “Just get out of it as quickly as you can,” would be my advice.

Loren Feldman:
All right. Well, on that note, we are out of time. My thanks to Paul Downs, Jaci Russo, and Sarah Siegel.