ORANGE COUNTY
Volume 157, 2019 | $6.95
To Speak Like the Best, You Need to Prep Like the Best
Joey Telucci
Cover
Nobody Wants a Debbie Downer During Initial Consultations
Kirk Stange
The Legal Risks of Snapchat
Howard Wexler and Minal Haymond Avoiding Trade Secrets Litigation
H. Barber Boone Optimizing Your Law Firm’s Financial Health
Andrew Jillson
Law Firm of the Month
FOX LAW
A Specialized Personal Injury & Mass Tort Trial Firm Getting Extraordinary Results for Ordinary People Making a Move with a Purpose
Darin Morgan
Lessons Learned from Navy SEALs
Patrick Lamb
How to Find and Keep Talent
Kevin Krese
Pull the Plug on Social Media
Adrian Dayton
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2019 EDITION—NO.157
TABLE OF CONTENTS 6 Avoiding Trade Secrets Litigation: Hiring New Employees by H. Barber Boone
8 Making a Move with a Purpose by Darin Morgan
10 How to Find and Keep Talent by Kevin Krese
12 Snap! And You Miss It
EXECUTIVE PUBLISHER Brian Topor
by Howard Wexler and Minal Haymond
14 Lessons Learned from Navy SEALs
EDITOR Wendy Price CREATIVE SERVICES Penn Creative
by Patrick Lamb LAW FIRM OF THE MONTH
CIRCULATION Angela Watson
16 FOX LAW A Specialized Personal Injury & Mass Tort Trial Firm Getting Extraordinary Results for Ordinary People
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Adrian Dayton Darin Morgan Patrick Lamb Kevin Krese Howard Wexler Minal Haymond Joey Telucci Kirk Stange H. Barber Boone WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
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22 Optimizing Your Law Firm’s Financial Health by Andrew Jillson
24 Pulling the Plug on Social Media by Adrian Dayton
26 To Speak Like the Best, You Need to Prep Like the Best by Joey Telucci
30 Nobody Wants a Debbie Downer During Initial Consultations by Kirk Stange
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Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2019 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
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Avoiding Trade Secrets Litigation: Hiring New Employees by H. Barber Boone
M
any companies hire employees that have gained experience at competitors. In fact, it is fairly standard; and there isn’t anything wrong with that practice. After all, employees are generally able to take their knowledge, skills, and experience with them when they leave one company for another, and companies often want to hire people with that experience. Trade Secrets problems often come when an employee brings documents or files with them from their prior employer. It is usually not anything as nefarious as an employee secretly downloading documents the night before they resign under the cover of darkness, though that does happen from time to time. The most common scenario is that an employee, working for a company, saves some work, reference materials, contacts or customer lists, etc. on a hard drive or their personal laptop to work on from home, or while they’re travelling. It is intended to help them in their work for their company—long before they contemplate moving to another company. It may even “technically” be against the company policy, but the documents are used to assist the employee in furthering the work of the company, so no further thought is given. Then, sometime later, that employee leaves the company for your company, a competitor. That employee likely has documents on external hard drives, in e-mails, or on a personal computer that the former company may consider proprietary, or even a trade secret. The employee may even promise that he is not bringing anything over but doesn’t think about the reference documents he created while employed at his prior company sitting on his personal computer. The employee doesn’t think about the listing of specs of different products from several market competitors he had from his former company. Or, the employee doesn’t think about the contact list he has because he is friendly with the customers and will want to contact them in advance of the next conference. Now, the stage is set for lengthy, expensive litigation. So, how can you avoid it? First, when hiring a new employee, make your intentions clear verbally and in writing that you do not want the new employee to bring anything to your company. Making sure that the employee understands, “We want you and we don’t you to bring anything with you.” This ensures there is no miscommunication about you and your company’s intentions. Include that statement in e-mails before, during, and after he is hired. Don’t embed it with a series of other information about insurance forms, parking passes, etc. This is important enough that it deserves its own dedicated e-mail. 6
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Second, find out if the new employee has any Non-Disclosure or Non-Compete Agreements with any prior employers. Some states, such as California, consider an employee’s knowledge about proprietary processes to be a trade secret, even if it is not in writing and only in their memory. But the employee should have some knowledge of what he can not disclose to other employers. Some companies ask employees, in their exit interviews, to sign confidentiality agreements or non-disclosure agreements. Ask your new employee if he was asked to sign any agreements before he left. It may seem like you are prying into their business, but once litigation is filed, it quickly becomes your and your company’s business. It is better to avoid any problems on the front end. Finally, remind your employees, even those who are not new, that you do not want them to use other companies’ proprietary information. A periodic e-mail from someone high enough in the company to get noticed should suffice. Many companies will offer sales or pricing information to their customers through e-mails or through websites, but those e-mails and websites likely have statements that the information is proprietary and “is intended for the use of the recipient only.” Customers may also offer to give your employees this information to help you better price your products or to allow you to match your competitors’ prices. This practice can be tricky and loaded with potential for danger. The particular scenario, including the jurisdiction, matters as to how best to handle this. The best practice may be to ask the customer to tell you product by product what price they can get somewhere else and ask if you can beat that price. A customer is generally allowed to bargain-shop. Instruct your employees that they are only allowed to view information they are able to get on their own from the internet. Obviously, if your competitor posts information on their website—in a publicly available manner—without requiring a username or password, your employees have free rein to use that information in any way. Keeping aware of potential openings to trade secret litigation won’t necessarily prevent your company from being brought into it, but you will have done your best to prevent it. n H. Barber Boone is an attorney at Butler Snow LLP. Barber focuses his practice on commercial litigation issues including breach of contract, intellectual property, antitrust, and employment issues, as well as a variety of other types of commercial and environmental litigation. To learn more, please visit www.ButlerSnow.com.
Making a Move with a Purpose by Darin Morgan
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hree to five years into an associate’s legal career is the prime time for associates to consider making lateral moves within the various legal markets. Most firms are looking at candidates at this experience level with very specific credentials and experience to fill precise needs. An amazing thing happens, however, once a candidate submits his or her résumé for the position. Even though the firm has been looking long and hard for candidates with such credentials and experience, the firm will often start asking probing questions before scheduling an interview. First and foremost, they will want to know why you are looking to move. The answer to this question can be complicated, as you do not want to criticize your current firm or work experience, lest you make yourself appear to be a less-desirable candidate to the potential new firm. Moreover, as an associate, there are a finite number of moves you can make before you are perceived as a “jumper.” So, before you enter the job market, you need to understand your own motivations and be prepared to answer that pointed question—and your answer is going to be a determining factor in whether you even get an interview.
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So, what are good reasons to move, both for your career and/or for the purposes of convincing a target firm that they should make you an offer? Here are six, some of which may raise a red flag, however, if not presented smoothly:
1. To make more money This one is perhaps the most legitimate reason for switching firms, though, of course, you do not want to mention this in an interview for fear of looking tacky or unsophisticated. If you started your legal career in a lower paying boutique or smaller firm, or at a national firm that is not on the highest compensation scale, it is only natural to seek out higher compensation at some point, especially if you need to pay back loans or have a family to support. That said, moving because of compensation concerns must be handled with finesse and requires strong interview preparation since most firms consider it undignified to lead off with money as a reason why you would move. A better tactic is to let the firm know you think highly of them, their work, and their reputation—how could you not be interested in applying?
2. To get better work If you are looking to work on more sophisticated matters, you may need to make a move to a higher ranked firm with a stronger brand name or one that is strong in your practice area. Hiring managers understand when associates make moves for this reason and often respond well to this as a reason for a move—provided you can sell your prior experience as relevant and valuable. Chances are either you like the work itself at the new firm or you want a better platform to eventually land in-house, which is easier from a higher ranked firm or a firm that is known to place associates with their clients. However, beware of being too forthcoming with your desires to eventually move in-house at the early stages of the interview process. Firms are not worried about what they can do for you initially; they want to know what you can do for them. Once they are convinced you can help them, they are more willing to go into sell mode and explore the possibilities of an eventual in-house move. Remember the new firm is looking to “buy” your work experience, so make sure you point out the good things about your prior experience while telling them you would prefer to get the better work at their firm.
3. To gain more work-life balance Today, many firms offer similar compensation packages and similar hours “targets,” but a firm with some semblance of work-life balance is often a differentiator. Some firms have more reasonable expectations of associates, and when they say 1,950 hours, they mean it. Some firms are better than others at allowing telecommuting or offer good parental leave policies regardless of your gender. These are all differentiators that must be carefully navigated when making a move—you want to make sure you do not move from the frying pan to the fire—but they are viable desires and acceptable reasons for switching firms, as long as your expectations are reasonable. Again, this must be handled with care, as most firms do not want to hire people looking for a “lifestyle” firm even though many people move for this reason alone. Candidates often reference their current firm’s culture as a reason for a move. Firms can often read between the lines with this, but at least you are not telling them, “I want to work less.” Consider meeting with a firm again post-offer to sit down with their associates and ask them what their life at the firm is really like.
4. To set yourself up for partnership If you have partnership aspirations, switching firms may be the only way to reach that goal. Some firms place more emphasis on certain core practices, which are most profitable for their firm. So, while you may be doing great work at a
name brand firm now, if the practice group is small, not held in high regard internally or is not profitable enough, there may not be a business case for a firm to ever elevate you—no matter how good you are. If that is the case, you may need to find a new situation to give yourself a better shot, which a firm who puts more emphasis in your practice area may understand. In this case, it is easy to tell a firm you are being proactive with your career, and your ambitions dictate that their practice and firm may be a better fit for you. This answer is often favorably received.
5. To move to a new geography This reason is the easiest to explain. If your firm does not have an office in the city to which you plan to move—or does not have a policy that allows associates to freely move to their other offices—this is a good reason that raises very few, if any, eyebrows from the firm, as long as you can articulate why you wish to move to the new geography. Some cities are more provincial than others, and the firms will want to know what ties you have to the new city, so be prepared to elaborate on those ties and reasons.
6. To escape difficult partners While a perfectly viable reason for wanting to move firms, this is another scenario that must be handled with care and finesse, as firms will worry that you cannot handle a little adversity if you are too open about this initially. No matter how good a new firm’s culture may be, every firm has tough partners. This is the practice of law, after all. That being said, you have no reason to spend your career in fear of specific partners, and if you cannot escape them at your current firm or make a situation more tenable, it is a perfectly reasonable strategy to find a new firm with a more affable group in your practice area. While there are many personal reasons you could have for wanting to switch firms, there are only a few that firms are going to accept and still see you as a strong candidate for joining their team. As soon as you apply to a firm, the firm will begin their due diligence to learn more about you and why you may want to move. Be prepared from the outset of your search with your reasons as to why you want to make this move and why, if any, you have made prior moves. Firms today are going to press for these reasons before deciding to even meet with you, so be prepared and be ready with the right answers. If you can articulate strong and acceptable motives, a firm is more willing to sit down and interview you—and eventually hire you. n Darin Morgan is the Managing Partner of our Philadelphia office and a Partner in our Washington, D.C., office, and is very active in both markets. He places both partners and associates into both large and boutique law firms. To learn more, please visit ww.MLAGlobal.com. Attorney Journals Orange County | Volume 157, 2019
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How to Find and Keep Talent in a Highly Competitive Market by Kevin Krese
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ne of the biggest problems companies face, in particular middle market companies, is a lack of available talent or a lack of the right talent to fill vacant roles. In fact, the National Center for the Middle Market has reported that 44% of middle market firms indicate that a top recruiting challenge is finding candidates with the required skills for a position. Additionally, J.P. Morgan has recently reported that this problem is growing, increasing 25% over last year. There are several external and internal factors contributing to this problem. A low unemployment rate of 4% as well as the related heavy competition for talent creates a small pool of qualified candidates. Sometimes there are the right people within the region, however an inadequate public transportation system can make a commute difficult or even impossible. Companies may also have internal deficiencies contributing to these recruiting and retention problems. For instance, the company may not have a strong training and development program to prepare employees for future roles or growth opportunities. This, coupled with the fact that workers are changing jobs more frequently than in the past often leads to a successor not being developed or even identified upon a sudden employee departure. In fact, Career Builder recently reported that 40% of workers plan to change jobs during 2019, a statistic that companies would be well served to address before vacancies of key positions become a detriment to company performance and growth. So, what can companies do about this problem?
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Retain Employees It is certainly better to prevent good employees from leaving in the first place than trying to replace them. The Society for Human Resource Management states that the cost of hiring is $4,129 per employee. If you factor in lost productivity and ramp up time, that number is undoubtedly much larger. So, what steps should companies take to retain and attract good employees? • This may seem obvious, but they should pay more, particularly for key employees. This involves knowing the market and paying at or above that rate. • They should offer unique, sought-after benefits. For instance, if child care is a concern for employees or desired employees, they should offer tailored child care benefits or even back up child care benefits (as Starbucks has recently offered). • Benefits like flexible work schedules or even remote working arrangements can sometimes be a huge benefit for employees. Offering extended parental leave or leave to care for parents or grandparents can also be a key differentiator for employers. • Additional vacation days, retirement contributions, wellness incentives, student loan repayments or even longevity bonuses can help create stickiness amongst employees. • Probably most important is that employers should focus on career management for employees and formally train and develop them for future roles. • Lastly, one often overlooked important practice is to provide constant feedback and seek out feedback from employees on a wide range of topics, including satisfaction levels.
Recruit Smarter Recruiting has certainly changed. The days of posting a job and waiting for resumes to come in are gone. Employers should leverage the technology and recruiting resources available to streamline recruiting and succession planning. • Employers should know their ideal candidates and be visible to them by using social media platforms such as LinkedIn. These tools allow for more of a pull mechanism as opposed to the traditional push method of attracting candidates. • Using external resources, such as specialized recruiters, can be a big help in identifying the right candidates. This can add cost; however, it may be worth it. • They should be strategic in hiring and retaining, and a succession plan should be formally identified and developed for key roles. • Employees can be a great source for potential hires. Employers should offer referral bonuses and other incentives.
Be Open to New Ideas In this highly competitive market for talent, it is important to be open minded in order to cast the widest
possible net. Companies that invest in brainstorming and thinking outside the box when it comes to employee sources and work arrangements may see strong human capital returns. • Employers should partner with local industry groups, trade schools and universities. This could be a great way to build relationships and ensure a strong pipeline of qualified workers. • They should utilize remote workers where it can be done effectively. All the necessary technology exists to allow this flexibility and expand the pool of available candidates. • When it is not possible to fill certain roles, outsourcing might be the most effective method. In some cases, it can even be the most economical choice. In a challenging market for talent it is important for employers to know their current and desired employees and be open to a new way of thinking regarding recruiting, employee benefits and work arrangements. The rewards could be huge by way of a consistent and motivated workforce. n Kevin Krese is the Chief Financial Officer at Buckingham, Doolittle & Burroughs, LLC. Please visit www.BDBLaw.com to learn more.
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SNAP! AND YOU MISS IT The Legal Risks of Snapchat and Disappearing Evidence in the Workplace by Howard Wexler and Minal Haymond
Snapchat and other photo-sharing apps have redefined how users and employees share information. Due to the ephemeral nature of Snapchat photos and videos, employers may face hurdles in identifying and investigating workplace misconduct. This article examines how employers can navigate employee issues in an era of “disappearing” social media.
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t is almost hard to imagine that barely two decades ago, we used cameras with physical reels to record our memories. Today, photo reels, and to some extent, even standalone cameras are remnants of a bygone era. In their place are a multitude of online photo-sharing platforms, like Snapchat, Instagram and Facebook. Printed photos have turned into “live feeds.” Scrapbooking has given way to Facebook timelines. And photo albums have morphed into 24-hour Snapchat “stories.” Photo-sharing has increasingly become ephemeral, and fleeting, which is not always a positive from an employer’s perspective. As with other forms of social media, platforms like Snapchat can be a prime tool for inappropriate
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conduct, like harassment and bullying. More worryingly, the disappearing nature of photos on such platforms means it may be more difficult to detect, address, and rectify such improper conduct, and indeed use such evidence in court.
The Curious Case of the Disappearing Photo: The Advent of Snapchat Snapchat has gone from being a relatively unknown app in 2011 to now exploding on the internet. Like its social media counterparts Instagram, Facebook and Twitter, the app has
commanded worldwide attention. It now boasts over 187 million users. A 2018 Pew research poll makes clear that a majority (63%) of Snapchat users visit the platform on a daily basis. Part of what makes Snapchat so appealing to its users is the “disappearing” nature of its photos. The app allows users to post messages that last for only 10 seconds before they disappear. The app also erases pictures and videos users upload within 24 hours. Moreover, the messages “autodestruct,” meaning that unless one takes a screenshot, the content disappears in a matter of seconds. Disappearing images are by no means limited to Snapchat. Facebook and Instagram have launched their own version of “stories,” which also allow users to post 24-hour photos and videos that disappear.
Snapchat as a Source of Evidence Given the ever-presence of apps like Snapchat, we can expect that harassment and inappropriate conduct, which may have previously extended as far as email and text messages, can now occur “off-the-clock” virtually anywhere, and may be limited to 10-second intervals. What’s more, employers may see claims attempting to hold them liable for the conduct of their employees on social media. Troublingly for employers, the fleeting nature of Snapchat photos can make such behavior hard to detect. When employees post harassing or bullying social media posts on Facebook, that data can be saved. On Snapchat, it may not. As a further complication, when an employee saves a Snapchat photo or “story” by screenshotting the evidence, the app directly notifies the photo poster. This can be particularly difficult for litigating and addressing alleged workplace harassment when the Snapchat photos are the only source of evidence.
Breaking Through the Filters: Using Snapchat Evidence Does this mean there is no hope of using Snapchat evidence in investigations and in court? Not entirely. To the contrary, Snapchat has proved to be a compelling source of evidence for juries in certain instances. In July 2016, a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat. Jurors viewed screenshots of the Snapchat video during the trial. Employers can similarly utilize Snapchat evidence to their advantage. For example, a Snapchat photo or “snap” can be a useful defense tool for an employer whose employees have
been accused of harassment. A snap may show the timing of the alleged harassment and establish a consensual relationship between the alleged perpetrator and victim. Snapchat’s “Geofilter,” which marks the user’s specific location, may also be used to trace the exact location of alleged illegal conduct, which can prove an important piece of evidence in litigation. While several courts have been receptive to Snapchat evidence, some courts have refused to admit Snapchat evidence unless the individual taking the photo is willing to testify as to its authenticity. Other litigants have reached out to Snap, Inc. itself to gain user information, but per their guide, Snapchat refuses to participate in any lawsuit, save for certain exceptions (such as imminent danger.) Given the potential hurdles in obtaining and admitting such evidence in court, employers should consider all potential sources of evidence in investigating workplace misconduct.
Best Practices for the Future Employer The use of photo-sharing apps is ever-present and unlikely to decrease. In this era of constantly uploaded and disappearing content, employers should consider revisiting their social media policies. • If you are conducting a workplace investigation, consider using other forms of corroborating evidence, like witness interviews. If you cannot recapture the snap, you might ask witnesses for a detailed description of the contents, time and date of the alleged snap. Also consider taking interviews of people who directly witnessed the conduct, on Snapchat or otherwise. • Train employees and managers on handling investigations when complaints involving social media do arise. • Include examples of inappropriate workplace conduct when updating your social media handbook policies. n By Howard Wexler and Minal Haymond of Seyfarth Shaw LLP. Howard M. Wexler is a partner in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state agencies. Minal Haymond is an associate in the Labor & Employment Department. She represents employers in a diverse range of matters, including defending businesses in wage and hour litigation, contractual disputes, class action suits, and single plaintiff suits involving breach of contract, discrimination, meal and rest period violations and wrongful termination in state and federal court. Learn more by visiting www.seyfarth.com.
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Lessons Learned from Navy SEALs by Patrick Lamb
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will admit it up front—I am in awe of Navy SEALs. My brother-in-law was a career Naval officer and, once upon a time, my sister ran the officer’s club at the Naval Amphibious Base in Coronado, CA, home of the SEAL Command. Through them, I have met a number of SEALs, each as impressive as the next. I have heard SEALs speak to audiences in which I sat, and I have spoken with SEALs while sharing a beer or several. I will never forget the time one SEAL told me there were 8 ways he could kill me with just his little finger. True or not, I absolutely believed him. So, I fully admit I suffer from hero worship. Now that my confession is behind me, let me state without equivocation that SEAL teams are the most effective fighting forces on the planet. I have always wondered why, so I’ve read as many books by and about SEALs as I could find. I just finished The Navy SEAL Art of War, by Rob Roy, a retired Chief Petty Officer and long-time member of SEAL Team Six—the best of the best. Drawing on lessons learned as a SEAL, Roy applies the lessons to corporate America. The lessons make great sense to me, though I confess to perhaps reading them through the prism of my admiration. But I wanted to share a couple of lessons Roy shared—lessons from both his SEAL experience and also from his corporate training experience.
1. Practice. Practice. Practice some more. And then Practice even more. “Close Quarters Combat [hand-to-hand] is one of the most difficult things a SEAL does. Something as intense as hand-to-hand fighting requires that an individual be honed to a razor’s edge so that actions aren’t debated or deliberated over but are performed without hesitation.” He explains how this razor’s edge is achieved: “when you are well-trained, everything becomes instinctual … Repetition (training) leads to memorization and memorization leads to instinct. Therefore, one must train their skills until they know a procedure cold. And then they must train some more.” If I look at my own performance critically, I see a massive failure in my own levels of preparation measured up to what should be required. It’s a good exercise for everyone, regardless of job description. 14
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2. Teams matter “SEALs expect to lead, but they are willing to be led by someone with a better plan … If, in the heat of battle, someone else on the team has a better extraction plan than the team leader, the team leader will defer to the other’s expertise. That kind of ‘team ability’ requires trust, confidence, and respect from every member of the team. It’s also what makes SEAL teams so special and effective. Rank may have its privileges, but it’s usually moot on operations.” There is so much packed into that small statement. What strikes me is the lack of ego in decision-making. Again, something to aspire to achieve.
3. Teams really matter “I find the notion of team before self resonates with my clients, the executives I work with. They understand and value a culture of teamwork. When you’re in charge of an organization, it’s easier to see the value of an orchestrated, team-focused approach to running a business. Individuals, however, sometimes are unable to see things as clearly.” I find small teams more effective than solo cowboys. Teams neutralize the weakness of an individual. Teams reflect the maxim that 2+2=5. Why don’t we use them more in our business? Why are we so fond of silos? I am left to wonder how successful a business could be if it embraced the lessons of our most successful fighting force. But I know that some lessons they have learned are critical for me to learn. n Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and cope with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation. To learn more, please visit www.ValoremLaw.com.
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I wanted to work with like-minded attorneys who truly wanted to help people that have been harmed. I wanted to take the cases I found inspiring. And I wanted to grow a law firm in a successful and philanthropic way, where we could do well and also make our community better. To hit these goals, I knew the best bet was to create my own firm and carve my own path,” says Dave Fox, Founder of Fox Law, APC. The core team at Fox Law includes experienced trial attorneys Joanna Fox (Fox’s wife), Chris Hendricks, Courtney Vasquez, Of Counsel Russ Gold, and paralegals Corinne Britt and Anne Brennan. All of Fox Law’s attorneys have successfully first- or second-chaired trials to verdict. Fox honed his trial practice as a federal prosecutor at the United States Attorney’s Office in San Diego. Fox says that unlike many plaintiffs firms, Fox Law’s attorneys were all trained at some of the best ‘big firms,’ including Morrison & Foerster, DLA, Cooley LLP, and Luce Forward. “We each made the decision to switch from these large defense firms to focus on fighting for everyday people who have been harmed by corporations, insurance companies, and individuals that abuse their power. Essentially, we’ve trained with the big guys to better represent the little guys,” Fox says. Notably, Fox’s first plaintiffs-side wrongful death trial was an automobile accident case against his old colleagues at the United States Attorney’s Office. Fox prevailed in a long and hard-fought trial, and ultimately obtained $5 million for the family of a deceased Navy veteran. 16
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Fox credits three factors for his firm’s prominent position in the personal injury arena. First, they attack each case for their personal injury clients with the same tenacity, attention to detail, and resources they brought when representing Fortune 500 companies and the United States Department of Justice. Second, passion. They put their egos aside, truly listen to their clients, and put their heart and soul into counseling their clients through one of the most difficult times of their lives. And third, focus. They’re not a “mill” and take a limited amount of serious cases so they can give plenty of time and attention to each client. With this approach, in just the past few years, Fox Law has recovered more than $75 million in verdicts and settlements. “We entered this business because we wanted to make a bigger change in peoples’ lives. You can’t do that by ‘flipping’ whatever insurance policy shows up and settling cases cheap. We meticulously investigate and pursue every theory of liability and avenue for recovery before reaching any type of resolution,” Fox says. The firm’s typical clients are individuals who are seriously harmed by the negligence of another person or corporation, and are suffering major injuries that will affect them for the rest of their lives. Through their growing mass tort and class action practice, Fox Law’s attorneys represent people who have been defrauded as consumers, harmed by a defective drug or medical device, or have lost their home or business due to a wildfire caused by a negligent utility company.
JOURNALS
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© Bauman Photographers
Cover Story
© Bauman Photographers
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Joanna Fox, Dave Fox and Chris Hendricks
Joanna Fox, who joined Fox Law after nearly a decade at Morrison & Foerster, brings an exceptional depth of litigation and trial experience from her background working on wrongful death aviation and product liability cases across the country. Chris Hendricks, who joined from Herold & Sager, brings over a decade of experience in and out of trial for and against public entities and the country’s largest insurance carriers. Courtney Vasquez comes from DLA Piper with a substantial trial history in products liability cases, and a deep understanding of mass torts and class action litigation. Russ Gold, formerly a partner at Luce Forward, offers over twenty years of experience trying and litigating major personal injury and complex disputes. Due in part to their background in complex multimilliondollar cases, courts in Los Angeles, San Francisco, and Sacramento have appointed Fox Law’s attorneys to various Plaintiffs’ Steering and Executive leadership committees to help guide JCCP litigations involving billions of dollars on behalf of thousands of plaintiffs.
council members to put in new lighted stop signs at the intersection. “My relationship with these clients and the drunk driving component also inspired me to be a primary sponsor of Mothers Against Drunk Driving (MADD), and I’ve had the pleasure to Chair their San Diego Advisory Board for the past three years,” Fox says. Aside from personal injury trial work, Fox says he hopes the firm’s work on mass torts and class actions will also make a difference. For example, Fox Law currently represents more than 1,500 individuals, businesses, avocado farmers, and wineries that were devastated by California’s wildfires ignited by PG&E in the North Bay, and Southern California Edison (SCE) around Los Angeles, Ventura and Santa Barbara counties. Fox hopes their work and leadership in these cases will help their clients restore their homes and businesses, while at the same time create fire safety changes to California’s electrical infrastructure.
Combining the Entrepreneurial Spirit with a Passion for People
Cover Story
Going the Extra Mile on a Drunk Driving Case
Fox says that often important and game changing information is available to those who “turn over every stone” in the investigation. Fox recalls a case he handled involving a pedestrian/college student who was struck and killed late on a Friday night by a drunk driver. The driver had left a bar for his home, and blew through a stop sign going twice the speed limit in his personal car. He had minimal assets and insurance. The driver went to prison for several years. The student’s parents were devastated. The Fox Law team dug well beyond the police report, and personally interviewed every person close to the driver and the victim to understand what was really going on that evening. They found the driver could be considered to have been in the “course and scope” of his work at the time of the crash, and that his company could also share some blame for encouraging an environment that loosely mixed work and alcohol. Fox filed a wrongful death case and pursued these theories for more than two years. They deposed the defendant in prison, everyone near the defendant at the bar, his co-workers, people familiar with his car usage, and other witnesses. After fiercely litigating the case, Fox Law obtained for them $5 million for the family on the eve of trial. This was a case that may have been otherwise passed over or “flipped” by a firm that takes on a high volume of cases or doesn’t dive that deep into a case. “We entered this line of work to make big changes in our clients’ lives. You can’t do that by taking whatever money or insurance proceeds are first offered to the client—you have a duty to really dig into every case.” Fox says. The firm went beyond the courtroom and persuaded city
From his days in college, Fox was interested in taking on people who were abusing their power. It’s been a theme throughout his life, which led him—while in school—to work with the “Innocence Project,” seeking to exonerate wrongfully convicted individuals. Also during college, he explored a career with the FBI. The Bureau didn’t have an internship program available the summer he applied, but suggested he look into opportunities at the U.S. Attorney’s Office—the lawyers who prosecute the cases the FBI brings. Fox says, “I gave it a try and loved it. I worked alongside attorneys taking down major mob bosses and white-collar criminals trying to game the system.” Years later, as a federal prosecutor himself, he prosecuted cases involving weapons trafficking, organized crime, and public corruption, including a high-profile five-week trial against corrupt United States Border Patrol agents. After trying over a dozen cases for the United States, he ultimately discovered that he did not want to spend his life putting people in jail. Instead, he wanted to help victims get back on their feet. Empathy for the client is central to the firm’s success. He believes that part of being a good human being carries over into being a good attorney. “You have to listen to people, hear what they truly want, and you’ve got to care about their health and happiness. If you do that, you’ll build trust and a unique bond. That bond will translate into a passion that will resonate with the jury, and separately, into a lasting relationship. There are many clients we still stay in touch with, years after their case resolved. It is inspiring to hear how they’re doing and how our results continue to make their lives a bit better.” The firm’s approach has not only brought successful outcomes for clients, but has also attracted the attention of other law
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Chris Hendricks, Joanna Fox, Dave Fox, Anne Brennan and Corinne Britt
firms. Now, the majority of the firm’s cases are referred from other attorneys that either do a different type of work or are looking for their expertise, resources, and infrastructure for their own personal injury or mass tort case. Fox Law also prides itself on thanking those attorneys with generous referral fees for trusting the firm to help their family, friends and colleagues.
paraplegic and disabled clients now receive the level of care they always deserved. We’ve seen our wildfire clients’ pride restored from having the ability to restore their burned down homes and businesses after recoveries we obtained against a negligent utility.”
Cover Story
Never Settling Cases Cheap
Attorney Chris Hendricks says, “We refuse to settle cases cheap. We are passionate about trying our cases to juries if the defendant is unreasonable, no matter what the circumstance is or what resources are required.” He cites a recent case where the firm represented a 65-yearold woman who slipped and fell at a chain super market. The fall aggravated her severe pre-existing shoulder arthritis and led to a shoulder replacement. Juries do not generally receive slip and fall cases well and greet them with skepticism, particularly when there are pre-existing medical issues. Fox and Hendricks took the case to trial arguing that the exacerbation had a larger impact on the woman’s everyday life than met the eye. They obtained a verdict of more than $1.43 million dollars. Joanna Fox says, “It’s absolutely wonderful to see our results beyond the numbers. We’ve seen families now have enough money to replace the wages and losses associated with losing their loved ones and buy the home they always dreamed of. We’ve seen our
www.FoxLawVideo.info
Always Give Back
Fox Law is very active in the community. Since its inception the firm has hosted an annual end-of-summer fundraiser on the deck of the Del Mar Plaza for a different charity or non-profit. They’ve raised thousands of dollars for MADD, Boys and Girls Clubs, and local animal shelters. Attorneys and colleagues have enjoyed the sunset ocean view, live music, food and drinks from Il Fornaio, and great raffle prizes from local hotels and spas. Fox says, “If your business has done well in your community, I feel it has the responsibility to then do good by it.” For its October 10, 2019 fundraiser, the firm is looking forward to partnering with organizations dedicated to helping human trafficking survivors (Free to Thrive), and the advancement of LGBTQ rights (Tom Homann Law Association). That blend of philanthropy and tenacious client representation will continue to be the foundation of the firm. “Our personal injury cases are always exciting, and I am also very enthusiastic about our mass torts and consumer class actions practices, both of which have really taken off in the past couple of years. I see the firm continuing to grow and succeed by making positive changes in more people’s lives. “I definitely don’t feel any need to be the biggest firm on the block, just the one that always delivers the best results and experience for its clients” Fox says. ■ Contact Dave Fox FOX LAW, APC The Plaza Building 225 West Plaza Street, Suite 102 Solana Beach, CA 92075 858-256-7616 info@FoxLawAPC.com www.FOXLAWapc.com
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Optimizing Your Law Firm’s Financial Health in 2019: Four Areas to Focus Your Spring Cleaning by Andrew Jillson
F
ingerprints are unique. No two snowflakes are alike. And each law firm has its own personality. Whether small or large, local, national, or international in scope, general service or specialized boutique, driven by profit or public service, each law firm has its own DNA. Though distinctive, many law firms share common characteristics. One shared by all law firms is the need to be financially healthy. Law firm financial health is the universal need of every law firm— without financial health a law firm’s future is seriously suspect. Absent a solid financial footing, a law firm cannot sustain itself. There is no better time than now to make your firm’s financial health a priority. To get there, four key financial and management elements should become integral to every firm’s go-forward planning. This is true no matter a firm’s practice, its size, location, or focus. 1. Manage debt and capital to appropriate levels. A law firm’s financial health is greatly impacted by the debt it carries and the invested capital maintained. The incurrence of debt in moderate amounts can be helpful, but too much debt can create a burden that undermines stability. To the extent physical assets (furniture, fixtures and equipment) are financed, the amount of debt should not exceed the unamortized asset value. While working capital debt may smooth out cyclical revenue realization for a firm, relying too greatly on credit lines can prove troublesome and signal the need for more capital. Moreover, maintaining adequate capital in the firm should not be an afterthought. Being the opposite of debt, capital at appropriate levels can provide a firm with a healthy financial profile. 2. Strictly manage the creation and collection of the firm’s inventory. A law firm will struggle if it does not generate sufficient revenue. No doubt having a great client base helps. But developing a steady stream of revenue also can depend on having systems and processes that manage client intake, time entry, sending out invoices, and collecting bills. Having such systems and processes is not enough. The firm must have the ability and discipline to assure firm-wide adherence. This means that the firm’s professionals must understand that there are adverse 22
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consequences if they fall short in complying. Hands-on inventory management greatly contributes to financial health. 3. Create expectations about productivity and manage to expectations. Underperforming professionals can hurt greatly. An important step to achieving financial health is the prompt and effective management of overcapacity. Responding to underperformance is best handled by clearly articulating to all personnel firm standards and expectations, monitoring each person’s performance against expectations, and taking proportionate measures when expectations are not met. Adjusting compensation, coaching, supplementing training, or departure management are some of the proactive measures available. Consistent management of the firm’s human resources is essential to financial health. 4. Understand and manage the value in the firm’s productivity and inventory. All client work is not created equal. Some is more profitable than others. A smart firm pursues only the client work that contributes to its financial health. All client work should be reviewed to determine if it is accretive. Similarly, personnel and the work they do should be reviewed for their contributions to firm financial health. Personnel whose contribution to firm revenues is exceeded by their cost (compensation, benefits, overhead), generally are not helpful. On the non-human side, all costs the firm incurs should be analyzed and questioned. While some intangible contributions are inevitable if not irreplaceable in most firms, a close examination of the margins associated with the work a firm does and the personnel that do it can help eliminate unnecessary soft spots. Every firm seeking success should stay focused on these four areas that directly impact financial health. Is your firm giving these areas the right amount of attention? n Andrew Jillson is a Director at Hayse, LLC and a veteran when it comes to the challenges and opportunities faced by an enterprise in transition. In his more than 30-year career as a lawyer, Andy has provided strategic counsel across every industry. He brings deep experience wherever personnel, operational, strategic and/or legal issues converge to necessitate organizational change.
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Why Some Professionals are
Pulling the Pl u g on Social Media by Adrian Dayton
“ T his is my last and final post� is one angst-filled way to quit social media in a blaze of glory. I’ve always found it entertaining that when people finally realize that social media is taking up too much of their attention and becoming a distraction, they find it necessary to draw as much attention as possible one last time. It is becoming more and more common for professionals to check out completely from social media. 24
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Here are the primary reasons I’ve observed:
a disaster at certain moments, at least on a weekly basis. Social media sometimes fools people into thinking they are the only ones in crisis.
Social Media Has Become an Addiction The addictive nature of social media has been well documented. The number one reason professionals quit social media is not because it keeps them from getting work done, but because it bleeds into their personal time, hurts their relationships with family and friends, and keeps them from enjoying activities like exercise or reading books that used to be priorities.
Social Media Is Distracting Them from What They Want Most “In the absence of clearly defined goals, we remain focused on activities.” My mentor Paul Brown taught me this one many years ago, and it is so true for social. Social media makes everyone feel busy without actually accomplishing anything. In the book Leader’s Eat Last by Simon Sinek, he discusses brain chemistry around achievement. When we have quick wins or accomplishments, we experience a little endorphin rush. Social media platforms have been able to deliver a similar sense of accomplishment with an accompanying rush of likes, retweets, favorites, and heart symbols. The problem is that these “wins” are only virtual and give us a false sense of accomplishment that isn’t lasting.
Social Media Is Making Them Unhappy Leon Trotsky once wrote while in exile, “Life is not an easy matter … You cannot live through it without falling into frustration and cynicism unless you have before you a great idea which raises you above personal misery, above weakness, above all kinds of perfidy and baseness.” While Trotsky had an unusually difficult life, every life is hard and frustrating, but when you turn on social media you don’t see real life. You see glamor shots. You see people’s lives in a carefully scripted way. The other day I was on a conference call at my home office when my daughter came into the room screaming for breakfast. I muted my side of the line while I carried her to the kitchen, fixed her a bowl of cereal, then returned to my call. Twenty seconds later she was screaming. I walked back in (muting my line) and cereal was everywhere—all over the table, the floor, her hair, and her pajamas. It was a disaster. Everybody’s life is
They Don’t Have a Deliberate Approach to Social Media Over the past ten years, I’ve spoken to almost 20,000 professionals about social media and I’ve interviewed and coached hundreds more. The #1 issue I hear from professionals goes something like this, “I have LinkedIn/Twitter/Instagram but I don’t do anything with it.” The professionals I see bringing in the most business and having the most success use social media strategically to accomplish specific goals. One lawyer I work with uses Twitter and LinkedIn to promote his blog posts and television appearances. Another professional uses LinkedIn to set up meetings with hard-to-reach executives. If you don’t have a specific purpose, you may just be spinning your wheels on social media.
They Have Never Landed a Single Piece of Business from Social Media To quit social media because you haven’t brought in business is kind of like quitting exercise because you are still fat. If what you are doing on social media isn’t working, change what you are doing. Don’t just keep spinning your wheels; change it up. Set a new meeting once a week, post one blog post or article each month, start commenting on and re-sharing good articles you find, push yourself to provide more value to your network. Otherwise, you are just wasting your time. I love social media. I’m a lifer—not just because it is my business, but because I find it incredibly useful. Before you consider quitting altogether, try and set more clear goals and create realistic objectives that will force you to stretch yourself. And if you do finally decide to leave social media forever, don’t make a last and final post. Just delete the app, put on your sneakers, and go outside to enjoy some sunshine. n Adrian Dayton is the Founder & CEO of Clearview. After losing his job as an attorney at a major corporate law firm in Buffalo, NY, during the economic downturn in 2009, he wrote his first book, “Social Media for Lawyers: Twitter Edition,” and soon after that, “LinkedIn & Blogs for Lawyers” (co-authored by Amy Knapp). By then, social media had exploded; Adrian was in the right place at the right time. To learn more, please visit www.ClearViewSocial.com.
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To Speak Like the Best, You Need to Prep Like the Best Prepare, Practice and Perform for Optimum Public Speaking by Joey Telucci
I
recently went to the Legal Marketing Association’s (LMA) educational program, “Training the Trainers for Public Speaking Success” to gain knowledge on the tools, tips and techniques for preparing lawyers to give a presentation—whether it be at a bar association meeting, conference, webinar or another event. Moderated by our own Traci Stuart, the panel included public speaking experts David Adams, Founder, Revenue Wise; Marianne Fleischer, Founder, Fleischer Communications; and Doris Pickering, CEO, Silicon Valley Speaks. As marketers, we know that every speaking engagement is a potential business development opportunity; however, getting our clients to understand the intricacies of preparing a successful, revenue-generating talk can sometimes be challenging. Even the most experienced speaker has their quirks and bad habits, and presentation coaching can go a long way in getting the most out of an engagement—both personally and professionally. No matter the type of presentation, all participants involved have a set of goals. Whether you are the presenter or an attendee, the universal goal is to come away from the presentation with something that you can use for personal betterment. Adams outlined four goals for each side to keep
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in mind, stating: “An audience member wants to: 1) learn something; 2) apply what they learn; 3) enjoy themselves; and 4) evaluate people to hire. On the other hand, the speaker wants to: 1) generate new leads; 2) secure new clients; 3) build their relationships with existing clients; and 4) build their brand.” In order to achieve these goals, presenters must understand the specifics of the opportunity (length, topic, audience demographic, etc.). Fleischer emphasized the importance of fine tuning the presentation to discuss what is at stake for those listening and what they can take away from doing so. The more targeted a speaker can be, the better the presentation. In order to make the subject at hand more engaging, Fleischer encouraged the use of an anecdote. “Anecdotes can be a great presentation technique,” she said. “Tell the story by identifying a clear plot, a twist to make it interesting, a resolution and lesson learned. This is far more appealing than posting a text heavy slide, and the audience will retain the information better.” Focusing on engagement and brevity, a slide presentation must be in line (timing-wise) with what the presenter is saying. Once a slide is projected on the screen, the audience will immediately begin to read it and will likely
tune out whatever is being said. Pickering mentioned that since members of the audience read at different levels and speeds, putting up slides with bullets, sub-bullets and subsub-bullets will make the presentation extremely difficult to follow. Instead, she suggested that slides should only highlight the key points and be used as visual aids. While keeping the presentation succinct is key to maintaining the audience’s attention, it will be useless without the right delivery. For any of us, it is important to know what we do when we are presenting. “Presenters should video themselves to point out a nervous tick and have something tangible to view in order to stop it,” she said. “If someone tells you that you are talking too fast, believe them! You have to be conscious of your speed, and practice speaking slower.” Fleischer added that an audience must hear the presenter and believe in what they are saying. Awareness is key and taking the time as a speaker to practice a presentation and its pace multiple times beforehand will help fight those habits. Nervous energy can also be identified and eliminated by the presenter by methods including walking on a stage or quietly grabbing the fingers of their fidgeting opposing hand to remain centered and calm. Ultimately, it all leads back to getting the business cards of audience members after the presentation is over. But how is this done? Adams mentioned that every presentation needs
a great hook to start a dialog. Three go-to hooks to use are: 1) a scored worksheet/assessment; 2) a guide or whitepaper; and 3) a free or flat-fee service. Each of these can give the audience some incentive to pay attention or a reason for the presenter to reach out after the session concludes. As with anything in life, the more you do something, the better at it you become. Helping a speaker understand what worked and what can be improved on is critical to them wanting to present again and mastering the craft. Oftentimes, presenters focus too much on the negative and although they may say they don’t have the time to practice, it really is their job to do so. Pickering often tells clients to use their commute as a time to practice their presentations. In order to be totally comfortable on stage, especially if something does not go according to plan the day of, you must be totally prepared. This comes with repetition. Getting new clients is the end game and marketers need to drive the point home to them that speaking engagements are business development opportunities. n Joey Telucci is an Account Supervisor at Blattel Communications. He focuses his talents on working with professional service firms to help get their message across through a variety of different channels and platforms. Whether it’s connecting them with media to discuss a certain business issue or crafting an award nomination or strategic press release, his focus is to enhance their profile and position them as the experts. Learn more at www.Blattel.com.
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Nobody Wants a Debbie Downer During Initial Consultations by Kirk Stange
I
nitial consultations are an important part of most law firms. Potential clients meet attorneys about their cases. They want an attorney who can help them achieve their goals. Most clients come in knowing generally what they want. Some attorneys, however, become naysayers who focus exclusively on worst case scenarios. They instantly become pessimistic about what it is the client wants. They then turn that pessimism into being the bearer of bad news during an initial consultation meeting. This kind of pessimism does not lead to the attorney retaining many new clients. Yet, many attorneys who do this, do not even see it in themselves and cannot understand what it is they are doing wrong. A Saturday Night Live skit that really portrays this well is Debbie Downer. In one episode of Debbie Downer, Debbie meets her match when she sits at a table with Bob Bummer. Both Debbie Downer and Bob Bummer have the same trait in common. They both like to dampen the mood by making negative comments that are entirely pessimistic. If there is something positive that is happening in any episode of Debbie Downer, Debbie never focuses on it. Instead, she instantly jumps to making negative comments, smirking and the wah-wah sound is then played. This negativity deflates the room so badly that people literally get up and leave. Every episode ends with Debbie Downer all by herself. The same thing happens when a lawyer plays the role of Debbie Downer (i.e. the naysayer) during an initial meeting. The potential clients literally get up and leave. While they might give an excuse for why they are leaving without hiring the lawyer (like they don’t have the money), they never come back. It is true that some potential clients come into the law office with what seems like a difficult case. It is true as well that a lawyer needs to point out the potential cons of any case. At the same time, it is important for attorneys to give
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potential clients IRAC answers to their questions where they also give the pros. What most potential clients need are evenhanded assessments of their goals so that they can make an informed decision, not complete and utter negativity. It is also important to realize that no lawyer has a crystal ball. Thus, when an attorney first meets a potential client, it is just a first meeting. This means that there may be additional facts that the attorney does not know about yet that could impact the case. It also might be the case that nobody could predict with certainty what a judge or jury would do. In this vein, any attorney who has practiced long enough will also agree that there are some cases where their client came out substantially better than they ever imagined at the first meeting. There are also other cases where a client came out worse than what the attorney had originally thought. When a potential client is facing a legal matter, they need a lawyer to represent them no matter their situation. Lawyers can help any client through important legal matters. But lawyers who play the naysayer role of Debbie Downer (or Bob Bummer) do nothing but chase the potential clients away. These potential clients then end up being represented by another lawyer who was more even-handed in their assessment of the situation. For this reason, lawyers who need new business really need to keep their naysayer tendencies in check.  n In 2007, Kirk Stange founded Stange Law Firm, PC with his wife Paola and has worked diligently to grow the firm to what it is today. In addition to practicing law, Kirk spends time educating attorneys and other law professionals at CLE Seminars through the Missouri Bar, myLawCLE, the National Business Institute and other organizations. To learn more, please visit www. stangelawfirm.com.
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