ORANGE COUNTY
Volume 101, 2014 • $6.95
The Rambling Witness
Jan Mills Spaeth, Ph.D Tips for Engaging Clients
Video Marketing Tip for Attorneys
Gerry Oginski
What is Education-Based Marketing?
Trey Ryder
Are You Referable?
David Lorenzo
Attorney of the Month
Eric Dubin HIGH PROFILE WINNER
The Energetics of Entrainment
Martha Hartney
Why Law Firm Billing and Trust Account Systems Must Work in Tandem
David Jr. Law Firms
Soft Underbelly for Hackers?
Christopher T. Anderson
Brinig & Company INCORPORATED
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His philosophy?
GO THE EXTRA MILE. Each year, a group of dogged adventurers runs from Huntington Beach to San Diego in the So Cal Ragnar Relay. It takes teamwork, endurance, and the will to push yourself when others are falling behind. It’s not unlike the level of commitment that Jeff makes to his clients, working tirelessly to help them find the perfect space to grow their businesses. So whether he’s running the Ragnar or helping companies with their real estate needs, Jeff’s tenacity and persistence make him the kind of person you want on your team. Find out how Jeff and Hughes Marino are going the extra mile for OC business owners with our tenants-only approach to commercial real estate. Call Jeff today at (949) 333-3111.
JEFFREY SHEPARD Principal and Senior Vice President, Hughes Marino, Inc.
Orange County 2 Park Plaza Suite 750 Irvine, CA 92614 tel: (949) 333-3111 www.hughesmarino.com
SAN DIEGO ORANGE COUNTY LOS ANGELES
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2014 EDITION窶年O.101
TABLE OF CONTENTS features
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6 Are You Referable? by David Lorenzo
8 The Rambling Witness by Jan Mills Spaeth, Ph.D
10 COMMUNITYnews 12 Video Marketing Tip for Attorneys
by Gerry Oginski
16
EXECUTIVE PUBLISHER Brian Topor EDITOR Jennifer Appel
by Jennifer Hadley
24 Tips for Engaging Clients
PHOTOGRAPHY Chris Griffiths
STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden
ADVERTISING INQUIRIES info@AttorneyJournal.us
High Profile Winner
by Trey Ryder
CIRCULATION Angela Watson
WEBMASTER Mariusz Opalka
16 Eric Dubin
22 What is EducationBased Marketing?
CREATIVE SERVICES Skidmutro Creative Partners
CONTRIBUTING EDITORIALISTS Christopher Walton Monty A. McIntyre Gerry Oginski David Jr. Martha Hartney Christopher T. Anderson Trey Ryder David Lorenzo Jan Mills Spaeth, Ph.D
ATTORNEY OF THE MONTH
26 Law Firms
Soft Underbelly for Hackers?
The Energetics of Entrainment by Martha Hartney
26
by Christopher T. Anderson
28 Why Law Firm Billing and Trust Account Systems Must Work in Tandem by David Jr.
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Proudly Congratulates Rizio & Nelson
Gregory Rizio, Esq. Lead Counsel
Darren Pirozzi, Esq. Second Chair
For their $57,947,402 personal injury verdict in an auto accident case with a $15,000 policy, with the lid off “The jury loved the magnetic board and PowerPoint presentation that EP produced.The whole EP staff did an excellent job in helping my clients obtain this monumental verdict. When you say ‘EP delivers’, you truly undersell the value of what you do.”
- Greg Rizio
Innovative Design Interactive Presentation Timelines, Charts & Illustrations Medical Exhibits Animation
Latest Technology Digital Trial Databases Synchronized Depositions Equipment Rental Packages
Rick Kraemer Owner & CEO
Winning Strategies Presentation Consulting iPad Prep with Case Integration Professional Trial Technicians
ARE YOU REFERABLE? By David Lorenzo David V. Lorenzo is the Chairman and Founder of Rainmaker Lawyer Consulting. He and his team help attorneys make a great living and live a great life®. If you’d like a FREE CD from Dave, titled: The Five Secrets to Making a Great Living and Living a Great Life as a Lawyer, visit: www.LawyerSecretsCD.com or call 888.692.5531
As I sat in the waiting room of a successful personal injury attorney, I was struck by what was missing. On the walls were tasteful (some might even say classy) paintings. Each one was signed and numbered by the artist. They were a nice touch and a departure from the usual press clippings and brag articles you find adorning the walls of most trial lawyers. The receptionist was immaculately groomed and conservatively dressed. The furniture was clean and comfortable with a relaxed living room feel. The location of the office—a class “A” building in the good section of a lower income neighborhood —struck me as an unusual choice. Most of the lawyers in town were near the courthouse. Jim Jenkins selected a high traffic shopping district for his office location. It was a place everyone could easily find. When I met Jim, I noticed his clothing and demeanor seemed consistent with everything else in his law firm. Jim was smart but used everyday language. He built his personal injury practice almost exclusively by referral. There were no billboards around town with his photo. His face was not plastered on the side of a bus. He spent no money on television or radio advertising and he didn’t even have a website. Yet everyone in town knew him and respected him as a fantastic trial lawyer. How did this average lawyer (by his own admission) who graduated from an average law school, develop a law firm that routinely, year-after-year netted over seven figures in personal injury settlements and judgments? 6
Attorney Journal Orange County | Volume 101, 2014
He focused on making himself “referable”. And he used some highly effective, ethical techniques that make him the logical choice for legal advice for the people in his community. Let’s look at how Jim, and the hundreds of lawyers like him, become magnets for referrals.
HOW TO BECOME MORE REFERABLE There are three elements necessary for a client to pass your name along to another person as a potential client. These elements make you referable. If you want to receive more referrals people must: l
Know you
l
Like you
l
Trust You
BEING KNOWN AND BEING REMEMBERED The first quality of a referable lawyer is visibility. This
means that people know who you are, they know what you do, and they know how to describe what you do. Obviously your clients and your former clients know who you are, but you want to constantly remind them. They must remember what makes you different from everyone else who does what you do. They must remember the benefits to working with you. And they must be able to describe, these things specifically to others. To make sure people can accurately describe who you are, how you help people, and what makes you different, you have to give them some examples of your work. Give them a story to tell. This not only allows the referring party to understand the type of person you can help, and specifically, what you can do, it also helps them describe how you can potentially help others.
LIKABILITY The second quality of a referable lawyer is likeability. People are not going to refer others to you if they don’t like you. It is a pretty rare occasion when someone says to a friend: “This guy is a real jerk, but you must hire him immediately.” Don’t be phony. Be yourself. Be a regular person. Match your language to your potential client base. Don’t use twenty words when three or four will do. Do not try to impress your client with your expansive vocabulary or your knowledge of legal terms. Speak with them using professional yet easy to understand language. Always make sure you balance their understanding with respect for their intelligence. Don’t talk down to people. Be courteous. Common courtesy is not all that common. Here’s a refresher in three simple steps: First whenever you are meeting someone, whether it’s a formal appointment or an informal appointment, show up on time. Your respect for someone’s time shapes their perception of your integrity. If you show up thirty minutes late for a meeting with me, it shows you have no respect for me. If you don’t respect me, I certainly will not like you. Second, be positive. Speak positively about life in general. Nobody wants to be around someone who is full of negative energy. Look for positive qualities in others. People do not send their friends, relatives or clients to meet with negative people. Finally and most importantly of all, take pride in your appearance. Be clean, well groomed and appropriately dressed. If you are not proud enough of yourself to be clean and well dressed (not expensively dressed but appropriately dressed), people will not be proud enough of you to recommend you to others. You should always meet your clients wearing professional attire. Those are the three elements of likability. 1). Show up and be on time, 2). Have a positive attitude and 3). Take pride in your appearance
ESTABLISHING TRUST The final quality of the referable lawyer is trust. Trust is made up of two components: credibility and believability. When it comes to your credibility, honesty and integrity are of the utmost importance. Do not cut corners or try to embellish the facts to look good. Review your website and all of your biographical profiles. Make sure all information is accurate and complete. There is no room for even the slightest exaggeration. Believability begins with how you conduct a conversation with the client. Listen carefully and respond to him realistically. It is your job to discuss alternative approaches to the client’s situation in a non-judgmental way. If you have seen this situation before, say so. If, most of the time, it doesn’t end well, you must be direct with him and give him an honest assessment. Jim Jenkins has mastered the art of being referable but he didn’t do it overnight. Put these referral-driving habits into practice now and you will reap the rewards throughout your career. If you want to build a law firm that does business “by referral only” you must be worthy of the referrals you would like to receive. While many of these ideas may seem like commonsense, it is their consistent application that leads to results. n
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The RAMBLING WITNESS by Jan Mills Spaeth, Ph. D.
QUESTION: How do you prepare a talkative witness who rambles instead of answering questions directly? If you don’t have a sock handy, use a stopwatch or an hourglass. Literally. Your rambling witness can be trained to answer concisely when watching the clock. This will teach the talkative witness to shrink responses under pressure and stress; stress that will also occur in the deposition or courtroom. Continue this practice throughout the witness prep session. It will take time for the witness to become skilled and comfortable with short responses. Some answers can be done in 5 seconds or less, some 10. Few answers need more than 20 seconds. Count out 20 seconds. A lot can be said in this timeframe, and research has shown that jurors and fact finders can lose interest in longer answers. Even when a witness has much to say, like an expert, observers pay more attention when the attorney frequently interjects a question or comment, even if it is something simple like “Please tell us more” or “Can you elaborate?” This also ensures that the attorney maintains control of the testimony, and avoids the “runaway witness” syndrome! In addition, this keeps the interest of jurors and others because, out of curiosity, they want to know the answers to the questions. 8
Attorney Journal Orange County | Volume 101, 2014
Jan Mills Spaeth, Ph.D. Since 1980, Dr. Spaeth has worked nationally as a trial consultant on mock trials, focus groups, witness preparation, jury selection and case strategy. She has written extensively on legal issues, and published a series of DVDs on witness preparation with the American Bar Association. She is a member of the American Society of Trial Consultants, the American Bar Association, and the American Psychological Association. She can be reached at 866-505-4131, www.adjuryresearch.com, and jms@adjuryresearch.com.
In addition, in witness preparation, we ask witnesses to answer a question in one or two sentences, a short paragraph at the most. Have witnesses visualize this in terms of size. They can then better translate this to their responses. Another approach is to ask witnesses to visualize the headlines and first few sentences of a newspaper article. This is where most readers focus. If important points are made in the middle of the article, they are often missed. Teach your witnesses to make their points quickly, up front, like newspaper articles. When asked a “yes” or “no” question, teach talkative witnesses to answer with an affirmative or negative response first if they can before providing an explanation. Otherwise, the explanation cannot only be perceived as an excuse or evasive, but observers can lose interest by the time the question is actually answered. Of course if neither a “yes” or “no” response is correct, the witness needs to politely state this before providing an explanation. Lastly, videotape the witness in both a rambling state and a concise state so the witness can view the difference. If all else fails, show a videotape of the rambling witness to office staff or a focus group, get their feedback, and share this with the loquacious witness. This often provides the needed motivation for change! n
COMMUNITY news nFisher & Phillips LLP announced that Sheldon Blumling, a partner with its Irvine, Calif. office and chair of the firm’s Employee Benefits Practice Group, was one of 48 attorneys at the firm featured in Chambers USA: America’s Leading Lawyers for Business 2014. Blumling was recognized for his focus area SHELDON BLUMLING in Employee Benefits & Executive Compensation. Each year, Chambers USA publishes a list of the top law firms and attorneys across the United States. It determines rankings through thousands of in-depth interviews with randomly selected attorneys, clients and businesses. “Sheldon Blumling has consistently been ranked among the top attorneys in Chambers USA, a recognition of his high caliber of work and his commitment to providing stellar client service,” said James J. McDonald, managing partner of the Irvine, Calif. office of Fisher & Phillips. “Blumling, through his practice area focus of employee benefits and executive compensation, offers a valuable layer of support to our clients.” nFermin Llaguno, a shareholder in the Orange County office of Littler, the world’s largest employment and labor law practice representing management, has been recognized in the newlyreleased “Nation’s Most Powerful Employment Attorneys,” an annual list compiled by Human Resource Executive® magazine and Lawdragon, FERMIN LLAGUNO which recognizes employment lawyers nationwide for professional excellence. Attorneys are nominated by Human Resource Executive’s® and Lawdragon’s subscribers and then selected after a rigorous vetting process. Llaguno is managing shareholder and founder of Littler’s Orange County office. He is a founding member of Littler’s Spanish Services Group and has served as a member of the firm’s Board of Directors and Diversity and Inclusion Council. Llaguno is also an active member of Littler’s Class Action Avoidance and Defense Practice Group. With experience in all facets of the litigation process, Llaguno’s practice includes both individual plaintiff and class action litigation and he advises and represents clients in all areas of labor and employment law.
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
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Attorney Journal Orange County | Volume 101, 2014
nPalmieri, Tyler, Wiener, Wilhelm & Waldron LLP has welcomed Katherine M. Harrison an associate practicing in the Estate Planning department. Ms. Harrison assists in the preparation of wills, trusts, and premarital agreements. Ms. Harrison also has experience in the Corporate department, assisting in drafting various corporate documents. KATHERINE M. HARRISON Ms. Harrison received her undergraduate degree in Psychology from the University of California, San Diego (B.A., 2009) and her law degree from the University of California, Irvine School of Law (J.D., 2012). While in law school, Ms. Harrison served as a Judicial Extern to the Honorable James V. Selna, United States District Court, Central District. Ms. Harrison was also a board member for UC Irvine Law Review. nMayte Santacruz has joined AlvaradoSmith APC’s Orange County office. In her new role, Santacruz will utilize her significant experience in complex business litigation matters with the firm’s commercial litigation, intellectual property, and real property practice areas in addition to continuing her MAYTE SANTACRUZ well-documented history of pro bono legal representation. Prior to joining the Firm, Ms. Santacruz was an associate in the Orange County office of Latham & Watkins, LLP where her practice focused on complex business litigation, with an emphasis in securities claims. In addition to her litigation practice, Ms. Santacruz dedicated hundreds of pro bono hours assisting immigrant victims in dire need of legal representation. Her commitment to pro bono work was recognized in 2012 by the State Bar and the Orange County Public Law Center. nJonathan Terry has been hired as a partner in Newmeyer & Dillion, LLP’s Newport Beach office. As a founding partner at Ulich & Terry LLP from 2004 to 2014, Terry serviced the legal and risk management needs of the residential and commercial building, development, and construction industry. Admitted to JONATHAN TERRY the California Bar in 1993, Terry is also a member of the CLM Alliance, the Building Industry Association, the Association of Business Trial Lawyers, the Aliso Niguel Business Council, and the Surfrider Foundation.
COMMUNITY news nAllina Hightower, an associate at Rutan & Tucker, LLP has been named to Lawyers of Color’s Second Annual Hot List. This list recognizes early- to mid-career minority attorneys working as in-house counsel, government attorneys, and law firm associates and partners. Rutan & Tucker, LLP is very pleased to have Allina named to this ALLINA HIGHTOWER exceptional group. Ms. Hightower’s practice involves a variety of business and civil litigation matters, including contract litigation, securities and investments, landlord/tenant disputes, real property litigation, unfair competition, business, corporate and partnership disputes, and business and commercial litigation. Ms. Hightower actively supports diversity through her service on Rutan’s Diversity Committee. Additionally, Ms. Hightower firmly believes in helping, through pro bono work, those individuals who are unable to afford legal representation. Specifically, Ms. Hightower has been involved with the Public Law Center by providing representation to clients in familial disputes and refugees seeking asylum in the United States. nBerger Kahn has been recognized in 2014 as One of “California’s Top Ranked Law Firms. Only 215 firms were recognized as a “2014 California’s Top Ranked Law Firms” and Berger Kahn was proud to be selected among this very distinguished group. With a ranking determined by American CRAIG S. SIMON Lawyer Media, and based upon the determination that over one-third of the firm’s practicing attorneys have achieved Martindale Hubbell’s highest rating of AV Preeminent, this honor will be published in the California edition of the Wall Street Journal and The Recorder magazine.
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nThe State Bar’s Solo and Small Firm Section has selected Solange E. Ritchie to receive the 2014 Myer J. Sankary Attorney of the Year Award. The State Bar Solo and Small Firm Section presents the Award each year to someone who has shown dedication to public service, given time and energy to SOLANGE E. RITCHIE promote access to justice, and who has demonstrated leadership to the legal community. Solange will be presented with the award Friday, Sept. 12, 2014 at the State Bar of California’s 2014 Annual Meeting in San Diego.
Attorney Journal Orange County | Volume 101, 2014
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I
magine that you needed to hire an attorney and you decided to search out one online. For those attorneys that have web video, which one would you choose if you were to base your decision off their video? Would you choose the lawyer who tells you how great they are and what a fantastic law school they went to?
Video Marketing Tip for Attorneys by Gerry Oginski Gerry Oginski is a veteran New York medical malpractice and personal injury trial lawyer and is the only video producer who is also a seasoned medical malpractice trial lawyer. He has produced and created over 500 educational videos to promote his own law firm using his New York Medical Malpractice Video Blog. Gerry has also created the Lawyers’ Video Studio, to help get other lawyers get onto video. You can reach Gerry personally at 516-487-8207 or by e-mail at Gerry@lawyersvideostudio.com. He welcomes your call.
On the other hand, maybe you’d prefer a lawyer who tells you how wonderful their firm is and how much money they’ve obtained for their clients over the last ten years? Better yet, would you prefer a lawyer who does nothing more than say “Come to me because I’m a lawyer and I’m here?” There is a recurring theme when you watch attorney videos most attorneys’ videos are quite poor. I don’t mean technically bad, I mean their content is bad. What’s so terrible about their content? Let me count the ways: 1. They offer no useful information, 2. They don’t explain anything, 3. They don’t understand what their online viewer is looking for. Why would anyone look for a lawyer online? The answer is simple. They don’t know a lawyer and they don’t know someone who knows a lawyer. They’d rather search online to see if someone can help solve their legal problem. That’s where 99.9% of lawyers miss the boat. This also applies to other professionals who use the Internet to market their services. People going online and searching attorney videos are people who have a problem. They are looking for someone to fix their problem. How can you be the one that resonates with them and compels them to pick up the phone to call? When an attorney creates an online video to market his or her services, he does so hoping that an online viewer will: 1. Find the video 2. Press play 3. Watch the full video 4. Be so compelled by that video that the viewer will request more information. Let’s go through these one at a time.
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Attorney Journal Orange County | Volume 101, 2014
1 SEARCHERS MUST FIRST FIND THE VIDEO Many attorneys rely on their video production company to optimize their video for the search engines. Some producers know how, others don’t. You can see which ones ‘get it’ by reading the description of any attorney video on YouTube. Those do-it-yourselfers may not fully understand why it is so critical to have a compelling headline, a summary of the video in the description, and relevant keywords. It goes without saying that even with a technically perfect video, if nobody can find your video, you’ve wasted a lot of time and money creating your video.
2 THEY MUST PRESS PLAY Just because a video is listed on page one of YouTube in the search results does not mean it will be watched. Unless you have a compelling headline and content, nobody will care about your video. Think about it again. Why would anyone beside your spouse, mother and best friend watch your video? Unless it’s a hilarious viral video, most people will not be interested in watching your attorney video. Then who will watch it? People who have a legal problem. People who need help. People who are searching for an attorney to solve their particular problem. Unless your viewer has a legal problem like the one you handle, your video will not be watched. It’s that simple. That’s why most lawyer videos never go viral. If you follow REELSEO’s Jeremy Scott’s viral video roundup every Friday, you see detailed reasons why video goes viral. Attorney videos never fit the pattern for widespread viewing of their video.
3 WHY ATTORNEY VIDEOS ARE NEVER VIRAL Attorney video is never funny, unless it’s a parody or a spoof. Lawyer video is pretty boring and never ‘cutesy’ in the way you might see in a viral video. “Objection! Judge…that video has no
information. The lawyer just talks about himself.” “Objection sustained. You’re right. Next video please, and make it snappy, I want to go to lunch…” A video doesn’t need to go viral in order to be watched. In fact, for an attorney, if it does go viral, it’s likely a mistake. But, a video that’s unwatched is wasted marketing dollars.
4 THEY NEED TO WATCH THE FULL MESSAGE That seems easy right? You spend your time making a good video. You think you have content that people want to watch. You upload your video and then watch your analytics. You can’t understand why your videos are not watched till the end. Most people are leaving after 15 seconds. Huh? Some stay to watch a full minute. One or two linger for 2 1/2 minutes. Yet nobody got to the five-minute mark. “What’s up with that?” Do you know why you must evaluate your analytics? So that you know what you’re doing right, and more importantly, what you’re doing wrong! If nobody is watching your video till the end, you need to ditch that video and start over. You need to edit and trim your content and fix your description and headline. Here’s a little secret that most online viewers inherently know but attorneys do not. Many lawyers talk way too much and don’t listen enough. If that’s how you come across on your video, you’ve lost your viewer forever. Lawyers talk for a living. Lawyers give advice on a daily basis. Yet, it is the video producer’s job to control the attorney by guiding him and focusing what he’s trying to say. Remember, anyone can create a technically excellent video once you learn how. However, it takes an experienced video producer to know what your online viewer is looking for and how to get your talent, in this case the attorney, to convey that message in a way that the viewer will want to watch.
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5 THEY SHOULD BE COMPELLED TO ACT Why would someone want to call you after seeing your video? Do you tell them something they don’t already know? Do you explain something to them that shows you’re an expert without coming out and saying “I’m the expert!”? Or, do you tell them about your credentials; where you went to school; that you graduated in the top of your class at Harvard law school; that you clerked for a Federal judge for a few years, and that if they’re lucky, you might just talk (down) to them? Guess what? If you’re a professional offering your services and using video to market your services, do you really think a viewer cares about you? They don’t. 99% of attorneys using video online today don’t understand that. A viewer who is taking the time to search for a lawyer doesn’t know a lawyer and is looking for someone to help solve their problem. Talking about yourself too much simply gives them a reason to look elsewhere. Ironically, the fault lies not with the attorney for
talking about themselves, but rather his video producer, who should know better and understand what a viewer wants and needs to watch. The only way to get a viewer to pick up the phone and call is to create a compelling video that a viewer needs to watch. If you can learn how to do that, you’ll be way ahead of your competition.
CONCLUSION—HOW TO CREATE A COMPELLING ATTORNEY VIDEO So, how do you create a compelling video that a viewer will want to watch? Simple. Don’t talk about yourself; explain how you can help solve a viewer’s problem (without giving any legal advice); give information that nobody else is providing online; give the information away for free. Why do that? So that you are viewed as the wise man on the totem pole, and viewers will want to call you for more information. n
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Attorney Journal Orange County | Volume 101, 2014
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HIGH PROFILE WINNER ERIC DUBIN’S RELENTLESS PURSUIT OF JUSTICE HAS MADE HIM THE PUBLIC FACE OF PLAINTIFFS ADVOCACY by Jennifer Hadley
A
lthough he’s best known for winning the $30 million dollar jury verdict against actor Robert Blake for killing his wife, Bonny Lee Bakley, after the state of California failed to prove his guilt; trial attorney Eric Dubin has been a powerhouse plaintiff’s attorney for more than 20 years. He’s been named “The Best Lawyer in Orange County,” one of the “Top 20 Lawyers in the State of California” and one of the “Top 100 Trial Attorneys in America.” He’s appeared on every major television news program, in virtually every newspaper in the world, and been invited to speak at legal functions from coast to coast. He’s hosted a legal radio show and written several books. His work and trial strategies have been cited time and again in studies and other cases. In other words; Eric Dubin is absolutely fearless when it comes to representing victims of life altering incidents, representing people with severe injuries from an accident, or representing the surviving family in wrongful death cases. But what’s most striking when talking with Dubin, is that he’s one of the nicest guys in town. So much so that he has been named a “Great Guy of Orange County” by Orange Coast Magazine. Indeed, for a man known for taking on adversarial giants, and winning time after time, Dubin remains remarkably unaffected by the fame. In fact to hear him tell it, he’s just a kid from Detroit who first became interested in the law after a middle school field trip to a local courthouse. “I watched two attorneys fiercely battling it out in court, but then get in an elevator and act very friendly to one another. 16 Attorney Journal Orange County | Volume 101, 2014
How they could go from battle in the courthouse to being so cool with each other outside fascinated me,” he says. From that point on, Dubin knew that a career in law was to be his fate, and he would go after it with everything he had.
HANDS-ON TRAINING WITH THE BEST
For Dubin, there is simply no substitute for hands-on trial experience, which propelled him to accept a position in insurance defense after law school. “I was thrown into trial work quickly. I was able to get experience in depositions and in the courtroom early on. I did everything I could to go to trial,” he recalls. Dubin was a standout from the start, and he began capitalizing on the shortcomings of his opponents in court. “I saw so many victims leave money on the table that a better plaintiff’s lawyer would have grabbed [for them],” he recalls. In fact, after winning a particularly crucial case just a few years into his career, his former defense firm rewarded him with a trip to Napa, wherein nationally renowned trial attorney Gerry Spence was to serve as Keynote Speaker for the event. “I actually felt bad about that settlement. The plaintiff really did deserve the money they were seeking. They didn’t get it because their lawyer was weak,” he recalls. The trip would soon change everything for Dubin. “I met up with Gerry Spence at the conference. He told me about his trial college but he wouldn’t train defense attorneys.
ATTORNEY
OF THE MONTH
christopher TODD studios
2014
Photography by Getty Images
Many of Eric’s cases have obtained national media attention.
He let me know that if I became a plaintiff’s attorney, he would train me,” Dubin says. So when Dubin resigned from defense work and opened his own plaintiff’s firm, he began training with Gerry Spence, and says that the mentorship he received proved invaluable. “He taught me how important it is to expose your own flaws to a jury, in order for them to open up. It’s not about being perfect; it’s about moving the jury. People don’t go watch Shakespeare performed to see if the actor memorized his lines; they want to be moved by the story,” Dubin says. “It’s not about being a ‘perfect lawyer,’ it’s about being able to connect and demonstrate truthfulness,” he adds. In addition to strong trial skills, Dubin believes it’s vital to be the most prepared person in the room, in order to be successful for his clients. Moreover, he made a commitment early in his career that he would always go to trial before he would accept a low offer. But before it got to that point, Dubin would put everything he had into maximizing depositions. “Cases are won at deposition, and I need to be the one in the room asking the questions and gaining the ammunition I need to develop powerful cross examinations. Too often I see large firms make the mistake of using multiple or inexperienced lawyers to cover various aspects, including depositions,” Dubin says. “You can’t really understand how crucial the deposition process is until you’ve tried a lot of cases, and I was fortunate to try a lot of cases early on.” Therefore, when it comes to depositions, Dubin says he wastes no time getting to the core issues. “I never ask any kind of background questions. The first question is always the hardest question. Right off the bat, I start with the tough questions; there is no warm-up,” he says.
18 Attorney Journal Orange County | Volume 101, 2014
PERSONAL RESPONSIBILITY FOR PLAINTIFFS
Perhaps the most significant decision that Dubin made as a new plaintiff’s attorney was the decision to handle all of his cases personally. “I handle every single aspect of every case I accept. No case is ever dished off to a young associate to run with. I do have a large administrative staff, and I often work and consult with other top trial attorneys. There are some really amazing attorneys out there like Dan Callahan, Tom Mesereau and Steve Fink whom I’m extremely proud to call my good friends,” he says. Indeed, when it comes to taking responsibility for his clients, Dubin carries the full weight, and he has found it to be an honor. “Very early on I represented a 14 year old girl who was attacked in a bathroom of a McDonald’s. She had a rough life even before that, yet she always had an angelic smile and attitude. I took my fee and bought her everything she needed for school. She cried and told me that nobody had ever done something like that for her before. Watching her graduate from high school was a high point in my life. Winning justice for deserving people is what I live for, and I take justice very, very seriously,” he says. To that end, Dubin has never shied away from the opportunity to share his passion for plaintiff’s work with others. As such when the opportunity to teach courses at Whittier Law School earlier in his career arose, he took it and taught courses on ethics and legal remedies. He also leapt at the chance to host a radio show in Los Angeles, in spite of the fact that the show would air at 6:00 am on Saturday mornings. “I would leave Orange County at 3:00 am, just to make sure I wasn’t late,” he laughs. Legally Speaking with Eric Dubin was a call-in show, airing on CBS Radio in which listeners would ask questions, and Dubin would answer. One day, thanks to
christopher TODD studios
Eric has authored several books that has been cited worldwide and is a frequent guest speaker on winning high profile trials.
PUBLIC FACE OF JUSTICE
It was Bonny Lee Bakley’s sister who heard Dubin on the radio. Distraught over the fact that actor Robert Blake had killed her sister, coupled with the fact that his defense team had absolutely crucified Bakley’s character on a national scale, the family turned to Dubin for help. Thus began what Dubin today refers to as “5 years of craziness.” “I had to succeed where the State of California fell short, which was in proving that Robert Blake killed Bonny Lee Bakley,” Dubin says. “It was my Mt. Everest. It was the largest investigation in LAPD history. The number of documents in the case totaled in the millions,” he says. But Dubin was determined to get justice for Bakley’s children. “After all of the horrible things that Robert Blake’s lawyers had said about Bonny Lee Bakley, I convinced the jury that Bonny was a loving mom, regardless of the massive media-trashing about her name and her life, who loved her children, was dead because of Robert Blake,” Dubin says. Continuing he says, “I gave it 1000%, because that’s all I know how to do. Everything I’d learned had taught me to be fearless. I moved to Burbank for four months to be able to work 22 hour days, and went into hardcore trial mode. The opposing attorney’s record at trial was 170 wins and 3 losses. He hadn’t lost a trial since 1970,” Dubin recalls. Yet Dubin prevailed, and the jury awarded the family of Bonny Lee Bakley $30 million dollars in general damages. “There were no special or punitive damages. I proved that Robert Blake killed his wife,
and that she wasn’t some scam artist who “had it coming.” But winning the trial didn’t mean that Dubin would be enjoying any type of anonymity at the conclusion. He’d already become a household name appearing on programs such as The Today Show, Good Morning America, The Early Show, The Fox News Channel and CNN. He was quoted in countless newspapers, invited to speak at schools and functions throughout the nation, and even threw the ceremonial first pitch at Tiger Stadium. Along the way, he says that he learned a great deal about the way the media works, and how to properly utilize it to benefit or protect clients or others. “The media can be an amazing tool, but it can be brutal. Trial lawyers are definitely fair game. I learned that the more you say to the media, the less power you have. The key is to have a plan and purpose, and anticipate the media’s angle before you speak. I have talked to the world, and especially at press conferences, I have learned to emphasis my message over and over again, no matter what questions the reporters are asking me. That way you limit their ability to stray,” he explains. By way of example, he tells of recently phoning GM after a family of four test drove an SUV which exploded. “I called, and Eric defeated Robert Blake’s team of lawyers and obtained a $30 million dollar jury verdict.
Photography by Getty Images
one listener, Dubin unwittingly transitioned from becoming a public voice for victims to becoming the public face of justice for what would become Los Angeles’ most high profile case since the O.J. Simpson trial.
FOCUS ON THE FUTURE
Today, Dubin remains as busy as ever, and shows no signs of slowing down. “Eventually, down the road, I’d love to get back into teaching, and I’d love to write more books, but for now my passion and focus remains on helping deserving victims. I don’t like seeing people hurt. Insurance companies act like it’s no big deal, and like these aren’t real people,” he says. “I win because I care.” This is further evidenced by the time Dubin volunteers with Tom Mesereau at the Mesereau Free Legal Clinic where he provides free legal services alongside Michael Jackson’s former attorney. Clearly, Dubin’s career is on fire, and he is more in-demand than ever. “I have amazing clients and amazing cases, and I will always maintain the exact level of excellence. The best lawyers in the state send me cases, as they know their client will get incredible representation, plus they will get a prompt and large referral fee. And they know I will be the one handling their client’s case,” he says. “I consider being a trial lawyer a tremendous honor and a great responsibility. The people I represent suffer and survive life altering incidents, and to be able to get them justice; that’s what I live for. ” n Contact: Eric Dubin Dubin Law Firm www.dubinlaw.com 949-477-8040 edubin@dubinlaw.com 19200 Von Karman Ave. Sixth Floor Irvine, CA 92612 20 Attorney Journal Orange County | Volume 101, 2014
christopher TODD studios
EXPERIENCE
let them know who I am and if they didn’t recall this deadly truck by Friday, that I was going to file an injunction and make them the Pinto of the SUV world,” Dubin says. “Safety must always come first,” he adds. Suffice to say, Dubin was thrilled when Friday came and 2 million GM SUVS were recalled. “It was a bucket-list moment. I was proud to contribute to keeping American families safe, and making it clear that corporate profits can never come before children’s and families’ safety,” Dubin says. Dubin also capitalized on the high profile case to further educate others about injustices he’s found throughout the course of his legal career. In the years following the Blake case, he wrote two books, Beyond Reasonable Doubt, which he co-authored with Larry King, and The Star Chamber: How Celebrities Go Free and Their Lawyers Become Famous. To this day, Dubin remains a legal expert for ABC News. But what the publicity hasn’t done, is prompt him to take other high profile cases, just for the sake of his own publicity. He admits to turning down the opportunity to work on the Michael Jackson Estate case against AEG. On the other hand, he has taken on some other highly visible cases in and around Orange County, including the Kelly Thomas/Slidebar civil case, the Rose Hills wrongful burial case, and the Larry H. Parker Inc. malpractice/fraud case. He’s also currently representing a rescue worker, who suffered spinal injuries resulting from a fall, while searching for the lost hikers in Trabuco Canyon in 2013.
» AWARDS AND ACCOMPLISHMENTS • Top 20 Lawyer in California - Los Angeles Daily Journal • Top 100 Trial Lawyer in America - National Trial Lawyers Association • The Best Lawyer in Orange County - OC Weekly Magazine • Top Lawyers of Orange County - OC Metro Magazine • Super Lawyer - Los Angeles Magazine • Super Lawyer Rising Star - Los Angeles Magazine • Top 10 Verdict California - Los Angeles Daily Journal • Top 100 Verdict in America - Verdicts and Settlements • Multi-Million Dollar Advocate Forum - Life Member • Certificate of Recognition for Exemplary Leadership in Business -California Legislature Assembly
» AFFILIATIONS • Multi-Million Dollar Advocate Forum • William P. Gray Inn of Court • Orange County Bar Association • Los Angeles Bar Association • National Trial Lawyers Association Top 100
What is Education-Based Marketing? by Trey Ryder Trey Ryder specializes in Education-Based Marketing for lawyers. He offers three free articles by e-mail: 11 Brochure Mistakes Lawyers Make, Marketing Moves Most Lawyers Miss, and 13 Marketing Misconceptions That Cost Lawyers a Fortune. To receive these articles, send your name and e-mail address to trey@treyryder.com and ask for his free packet of marketing articles
Y
ou have two choices when you select a marketing message. You can choose sellingbased marketing, in which you take on the role of a salesperson and deliver a sales message. Or you can choose Education-Based Marketing, in which you take on the role of a consultant and educate prospective clients about their problems and the solutions you can provide. Selling-based marketing is built around a selling message, sometimes called a sales pitch. The sales pitch is often delivered using methods that reach out to prospective customers, such as telephone selling, direct mail, and door-to-door sales. Education-Based Marketing is built around an educational message, which replaces the sales message. The educational message is commonly delivered to prospective clients through educational means. These include written materials, media publicity (articles and interviews), advertising, seminars, newsletters, audio and video tapes, and Internet web sites. Frankly, you can educate your prospective clients using any method through which they can get your information and advice. Typically, your Education-Based Marketing program works
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like this: You create an educational message, which you first put into the form of a written handout. Then you offer your handout to prospects who are interested in your services. Prospects call your office to get your free written materials. You respond by sending the materials and inviting prospects to an upcoming seminar. In addition, you keep prospects educated through your educational newsletter. You put your message in front of your prospects through paid advertising, articles in newspapers and magazines, and interviews on radio and TV. In addition, you communicate with people on your mailing list and invite them to attend your seminar and bring their friends and associates.
SELLING-BASED MARKETING CREATES THESE PROBLEMS: 1. Prospects go out of their way to avoid you because they are tired of selling and sales pressure. They don’t like to be approached by salespeople who have something to sell.
2. Prospects don’t think they can trust you because all of us have been burned by salespeople who gave us “inaccurate” and even false information in their eagerness to earn a commission. 3. Prospects are defensive and protective because they
expect you to try to pressure them into buying something they don’t want or need.
EDUCATION-BASED MARKETING PROVIDES THESE SOLUTIONS: 1. You give prospective clients what they want, information and advice—and you remove what they don’t want, a sales pitch. 2. You maintain your dignity because you never make any effort to sell. 3. You establish yourself as an authority because prospective clients see you as a reliable source of information. 4. You don’t seek out prospects; instead, they call you. 5. You reach prospects during the first stage of the decisionmaking process, often before they call your competitors. 6. You identify even marginal prospects who suffer from phone-call fear, but who aren’t afraid to call for your free information. 7. You prove that calling your office is nothing to be afraid of. In fact, it’s a positive experience. 8. You save money because you don’t need expensive brochures. 9. You receive calls from qualified prospects who are genuinely interested in your services and you screen out people who are not your prospects.
10. You establish your credibility and make a positive first impression by offering helpful information rather than a sales pitch. 11. You save time by answering common questions in your materials and seminars, rather than answering the same questions over and over. 12. You begin to earn your prospect’s loyalty because you’ve made an effort to help him, even if he doesn’t become your client. 13. You know precisely how well your marketing works because you can count the number of prospects who respond—and the number who go on to become clients. 14. You gain a competitive advantage simply by using this method because few, if any, of your competitors currently use it. 15. You benefit from the synergy of several educational methods that reinforce each other. 16. You earn a true profit, rather than just creating more work and more overhead. Now I invite you to profit from this unique method. n
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Former State Bar Investigator 2006-2011
OF COUNSEL DAVID SAUBER ESQ.
Former State Bar Trial Counsel 2000-2010
www.StateBarDefenseAttorney.com | 909-622-5049 Attorney Journal Orange County | Volume 101, 2014
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Tips for Engaging Clients The Energetics of Entrainment by Martha Hartney Martha Hartney’s is a successful Estate Planning lawyer in Colorado and co-creator of the Estate Planning Bootcamp. As a Law Business Mentor her greatest hope is to help other lawyers claim, or reclaim, the joy and the spiritual pursuit of being a lawyer.
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Attorney Journal Orange County | Volume 101, 2014
hen I started out in law practice, I kind of thought that my services would just be wanted and needed and that I’d eventually get paid for my expertise. Getting clients would be easy, right? Almost automatic, since I had the qualifications and skills they needed. Then, as I learned the art of working with clients… I was shocked to find out that how I behaved and “felt” in a meeting was the most critical factor of my success. What I’ve discovered is that my expertise is a very small part of the reason why people choose to work with me or not. Certainly as I’ve gotten more and more experienced in the area I’ve chosen, my confidence has risen which gives my advice more “umph.” However, the reality, and something they don’t and can’t teach in law school, is that… Your “presence” is far more important in your success than your experience or your expertise. What I’m talking about is energetic “entrainment,” the magical, mystical effect humans have on each other when we’re together. Have you ever been in a room with someone who’s angry and found yourself either wanting to run away or feeling angst yourself? Or been in the presence of someone completely calm and realized your breathing has become deeper and more steady? That’s our bodies’ natural desire to pattern and harmonize with one another. It’s what makes family, community, and society possible. When you meet with a client, you are beginning a process of entrainment to one another’s energy patterns. The person you’re looking at is looking for clues as to how to act, feel, behave, and react to the subject matter you’re talking about. Clients often have feelings and fears that even they do not quite understand—and are confused about how to tackle the big muddled ball of thoughts, feelings, ideas, preconceptions, and opinions rolling around in their heads. Your first order of business is to anchor them—old school style, to “build rapport,” which is a phrase that doesn’t do this process justice. It really is about finding
trust and confidence in one another. Your client needs to be heard, needs to be seen, wants to be entertained and wants to be released of the fears they’re carrying around. Your sole goal in the first part of your meeting is to help them settle in so they can start doing that.
Here are some questions to reflect on before you go into a meeting to see how you might be showing up and what you can adjust in your own energy to give your clients the experience they want: 1. How are you feeling right now? What emotions are in your body, both positive and negative? Are you nervous, scared, excited, shut down, frenetic, needy, upset? Or are you peaceful, confident, calm, joyful, grateful? 2. What is the temperature of your body’s energy? Are you more cool or warm? If you had to pick which color, would you appear more blue or more red? Don’t try to shift or change it, just notice. You will naturally have a more cool or warm energy pattern. Neither is good or bad, it just is. 3. What thoughts are going on in your mind? Are you working on your to-do list just before you go into a client meeting? Are you thinking about how much you need this client in order to
make your bills this month? If so, pause and breath. Let these thoughts glide away from you for now. You can get back to them later. Or not. 4. What music have you been listening to? Books you’ve been reading? Television or movies you’ve been watching? I have been surprised at how affected by my consumption of media I am. You, like me, may be porous this way—where the energy of the music, book, TV show is showing up in your body and mind. If that’s the case, make a point to take greater care of what goes in so that you can better manage what comes out. 5. What are the worries you’re carrying right now? Write them down somewhere so you can put them down and focus only on what and who is in front of you. 6. What is your intention for this meeting? If your intention is to make money, your potential client will sense it and put up barriers to you. Set an intention that is client-focused, not youfocused. What issue are they bringing you that you can help them understand and possibly solve? It sounds elementary, I know, but you’d be surprised at how often lawyers don’t put their client’s needs and wants ahead of their own energetically. Utilize these questions before future meetings and you’ll be surprised at your results. n
Areas of Expertise Business/Commercial • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property/CEQA/Land Use • Wrongful Death
Past President: San Diego County Bar Association 2014 President of the San Diego Chapter of the American Board of Trial Avocates (ABOTA) Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 26 Years of Experience as a Mediator and Arbitrator 34 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants
Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.
Relentless Optimist® | Rapid, Reasonable Resolution™
To schedule contact Genevieve Kenizwald: phone (619) 233-1323, email gen@adrservices.org 19000 MacArthur Blvd., Suite 550, Irvine, CA 92612. | Offices in Irvine, San Diego, Los Angeles, Silicon Valley and San Francisco www.adrservices.org | www.montymcintyre.com
Attorney Journal Orange County | Volume 101, 2014
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Are law firms really a “soft underbelly” for hackers? Yes, according to numerous legal security experts and recent news reports. Understandably, more corporate clients are demanding their law firms take increased security measures. So why are law firms on the hacker radar? Quite simply, because law firms—especially smaller and midsize firms—tend to lack the level of security of their corporate clients. This can provide hackers with a proverbial “back door” into confidential and privileged data of more secure businesses, via their law firms. 12 PRACTICAL WAYS TO PROTECT YOUR CONFIDENTIAL INFORMATION
Law Firms: Soft Underbelly for Hackers? by Christopher T. Anderson Christopher T. Anderson is the Product Manager for the LexisNexis® Firm Manager™ application. Firm Manager is a web-based practice management system that keeps attorneys and staff of small law firms connected to all the details of their clients, cases, matters and firm business. LexisNexis Firm Manager helps attorneys organize, secure, and have constant access to all the clients, documents, appointments, tasks, contacts, and matter information, anytime, anywhere. Mr. Anderson is an attorney, and prior to working with LexisNexis, he was the managing partner of an eight-attorney, full-service law firm in Georgia. Mr. Anderson practiced in the fields of family law and business litigation. Previously, he served as an assistant district attorney in New York City, and in Athens, Georgia. Mr. Anderson was also Associate General Counsel and Director of Client Services for RealLegal, a legal software company. He is a graduate of Cornell University, and received his Juris Doctorate from the University of Georgia School of Law in 1994. Christopher Anderson is admitted to practice in the federal and state courts of New York and Georgia.
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Surprisingly, the biggest threat to law firms comes from within their own walls. Many law firms have some type of security plan in place, but these measures need to be tested continuously to protect against the latest threats. Using a “check-off-the-list” security methodology can make law firms a soft target for hackers. Adding insult to injury, many seemingly harmless activities of law firm employees also put the firms at risk. Think about the last time you visited your firm’s reception desk. Notice a sticky note taped to the desk with passwords and confidential information on it? How do you know visitors aren’t trolling for this type of information? Also, when your firm upgrades to new devices, what happens to all that old hardware—not just computers and laptops, but tablets, phones, thumb drives and even copiers? These are all questions law firms should be able to answer with confidence, and it goes well beyond passwords and discarded devices. The good news is there are multiple ways you can mitigate your security risks. The first step, though, is acknowledging you are not immune to a breach. (For those of you who don’t believe your firm is being targeted, I say you’re just not looking.) That said, your security plan should strike a balance between protecting against bona fide threats and outright paranoia. Here are 12 commonsense steps to protect your firm. 1. Use firewalls. Any firm that uses computers must use firewalls—it’s that simple. Firewalls provide a critical
first line of defense when it comes to checking all webbased traffic coming into and going out of the firm and blocking traffic that is not desired, or looks like it is not legitimate. Firewalls should be applied both to the network and individual computers. 2. Use strong passwords. Don’t use passwords that are too short, and avoid using personal information such as a child’s name or birthdays that are easily hacked. A good website to gauge the strength of your password is howsecureismypassword.net. 3. Use good hygiene. Going back to the sticky note example, make sure you are using good “hygiene” by ridding the office of easy-access points. 4. Remove residual data. Know how to browse the web securely—and remember, every website you visit can leave cookies. This residual data should be encrypted and wiped regularly. 5. Use caution on social media. Once you put information in the public domain, such as by posting it to Facebook, Twitter or YouTube, it can’t be taken away. Think carefully before posting sensitive information on social media sites, and have good policies around what others in the firm do too. 6. Wipe discarded devices. The legal industry is evolving rapidly and so are our devices. Make sure, as you upgrade to the newest tablet or smartphone, that you are wiping discarded devices with military-grade software. Sometimes physical destruction is a good idea. Or, better yet, hire professionals to do it. 7. Implement a breach plan. Assume hackers will get ahead of you and do everything you can to prevent a breach. If you don’t already have a plan in place, work with a consultant or data breach management company to protect your firm’s assets. Know in advance how you will: • Protect and access data • Notify clients in the event of a breach • Get back up and running 8. Use virtual private networks. VPNs are a great way to access information remotely and securely. If you frequently use VPNs for business travel, I recommend investing in a screen protector, which will prevent those around you from viewing your screen. Also make sure to use HTTPS sites rather than HTTP sites. HTTPS should ensure the information you are browsing is locked and secure on your device. 9. Maintain document security. Reviewing and sharing documents is fundamental to lawyers. When shopping for
cloud-based file-sharing products, look for software that provides: • Secure file sharing • Secure file sync • Digital rights management • Secure web access • Mobile productivity • Terms and conditions that reflect your duty to your clients around confidentiality, privilege and safekeeping 10. Know the difference between the public and private cloud. Not all cloud solutions are created equal. Public cloud offerings—those available to the public—are often free, or close to it. Read the terms and conditions carefully and ask the following questions before you consider using a service: • How will my data be protected? Public cloud solutions’ security should be validated by third parties such as eTrust, U.S. Data Centers and SysTrust, to name a few. • Who will own the data? Understand what they will do with the data and read the conditions so you know what they will do if the government calls or if you cancel your subscription. • How readily available will the data be to you? • The private cloud provides a privately hosted place to store and access data, and only those approved to use it are welcome. While typically you’ll have to pay to use private cloud services, many provide an important internal layer of security. 11. Be savvy about encryption. Make sure you know where your data is stored and ensure the data is encrypted both while it is in transit and while it is at rest. 12. Prepare a notification of practices. Craft language that clearly explains to clients how their data is stored and how it will be protected.
BE PREPARED While no law firm is immune from a security breach, the most important step firms can take to protect their data is to be prepared. This means developing a security breach plan and sticking to it. The system should be audited regularly, and clients and employees should be educated about the process and engaged in the dialogue. Security, after all, should be a way of life for law firms today. n
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Why Law Firm Billing and Trust Account Systems Must Work in Tandem CHOOSING LEGAL-SPECIFIC BILLING SOFTWARE
LAW FIRM BILLING AND TRUST ACCOUNTINGARE INTERRELATED
Law firms typically require legal-specific billing programs to handle a variety of client billing arrangements, such as hourly, fixed and contingency fees. However, law firms often select a billing system without adequately analyzing their trust bookkeeping requirements. While attorneys understand the importance of complying with stringent trust account bookkeeping rules, they frequently do not grasp that many billing and trust activities function like a bicycle built for two and are best managed in an integrated fashion. Because legal billing practices come under purview of state ethics departments, it is equally crucial that billing and trust accounting software help you comply with regulations.
A standard practice for most law firms is collecting advanced client payments (retainers) for services. In general, states have strict accounting rules that require attorneys to deposit unbilled/unearned client funds in trust accounts. If an attorney expects to use advanced funds quickly and the specification is in the client engagement letter, state rules may permit deposit of retainers in a regular operating accounts. The rule of thumb is strict adherence to states’ professional and ethical rules pertaining to client funds. Failure to abide by the rules and maintain proper trust and operating account bookkeeping could result in administrative, civil or criminal sanctions. If your law firm accepts and deposits client retainers in trust
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accounts until charging the funds to invoices and transferring them to an operating account, it is important to ensure your billing system also meets all your trust accounting needs.
KEEPING TRACK OF RETAINER BALANCES First and foremost, whether you deposit retainers in trust or operating accounts, you must always know a client’s retainer balance. Remember, retainers are client funds, not your funds. With each invoice, apart from the amount billed, you will need to supply retainer balance information. Once you generate an invoice, you might apply retainer balances to pay off the invoices. If the retainer is in a trust account, you must: l
Issue a trust check payable to the law firm for the invoiced amount.
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Make a deposit in your firm’s operating account.
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Apply the deposit to the invoice and mark the invoice paid.
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l l
l
Update the client’s retainer balance and unpaid balance, when retainer funds are used to pay invoices.
retainer balances. In fact, it’s beneficial to know the client balances for each of the following at all times: l Unbilled Balance: The total dollar value of the time and expense cards recorded, but not billed. l
l
l
Update the client’s retainer balance and unpaid balance as retainer funds are applied and invoices marked as paid.
MISSING A CRITICAL STEP THROWS YOUR BILLING AND TRUST ACCOUNTING OUT OF SYNC If you fail to complete any of the above steps in your ledger or bank account, your system will be out of sync. For example, if you applied a trust retainer to an invoice, but forgot to write a check in the trust bookkeeping system, the result will be an invoice marked paid, but funds not drawn from client trust account. Numerous combinations of this sort are possible and each mistake will result in severe administrative headaches.
MAINTAINING A 360 DEGREE VIEW While working on a legal matter, it’s nice to know current
Operating Retainer Balance: Client retainer balance in the operating account. Trust Retainer Balance: Client retainer balance in a trust account.
The above balances are interconnected and you must update them simultaneously. When you convert time/expense cards to invoices, the unbilled balance goes down and unpaid balance goes up. Likewise, when your office pays invoices from retainer balances, the unpaid balance goes down and the retainer balance goes down. l Knowing these balances at all times gives you a 360 degree view and puts you in much better control. Here’s how: l
If the retainer is an operating account, you must: Apply funds received and previously deposited in the operating account toward invoices and mark invoices paid.
Unpaid Balance: The total amount you have billed the client, but that has not yet been paid.
l
l
If the unbilled balance exceeds your comfort zone, you can invoice immediately rather than waiting until your next scheduled billing date. If unpaid balances are rising, start sending payment reminder letters along with overdue invoices. If retainer balances are available, invoices are unpaid and your engagement letter allows you to apply retainers, you can quickly pay off those invoices.
TYPICAL BILLING & TRUST ACCOUNT SCENARIO Here is a simplified example of how to handle the retainer for a legal matter and its corresponding trust account. 1. On January 1, you opened a new case with a $5000 initial retainer and deposited it in your attorney trust account. Your trust books must reflect client balance of $5000. 2. In the month of January, you recorded $2700 in time/ expenses charged to the matter. On January 31, your books must show the matter’s unbilled balance as $2700 and retainer balance as $5000. 3. On February 1, you generated an invoice converting unbilled time/expenses to billed status. Your books must reflect the
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matter’s unbilled balance as $0, unpaid balance as $2700 and retainer balance as $5000. 4. On February 1, you paid the invoice from the retainer balance. Then, your books must reflect the matter’s unbilled balance as $0, unpaid balance as $0 and retainer balance as $2300. You will make a bank deposit with $2300 trust check to your operating account, which your accounting ledger must reflect.
The same system must also provide required trust bookkeeping safeguards. Trust accounting is fundamentally a different bookkeeping concept and must be able to: Support monthly bank statement reconciliation. l
l
Even this simplified, but practical illustration shows how law firms billing and trust activities are closely interrelated.
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LIKE INVOICES, RETAINERS AREN’T ONE TIME EVENT
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Most law firms send reminder notices for aging invoices (if you don’t send late payment reminders, numerous studies suggest your chances of getting paid fall exponentially with rising invoice aging). It is also common for a good billing system to automatically prepare batch reminder notices for all overdue invoices and print your choice of cover letter. Retainers are in the same league with invoices and late payment reminders, and are not just a one-time event. However, law firms often forget to ask for replenishments, when retainer balances fall below a required amount. If your engagement letter requires a client to maintain a specified retainer balance, you must ask for “replenishments.” Just like periodic invoice reminders, it is highly recommended law firms make it a practice to generate retainer replenishment demand letters. Chances of a client coming in on their own and handing out additional advances are not very high!
TRUST BOOKKEEPING SAFEGUARDS ARE A “MUST HAVE” While you weigh the advantages of an integrated billing-trust account system, do not forget that it’s not enough for the system to track retainer funds in trust accounts. Trust funds are strictly client funds; they follow special accounting rules.
30 Attorney Journal Orange County | Volume 101, 2014
Produce three-way reconciliation statements (tie book with bank with individual ledger card balances. General ledger balances with details about the portion of funds that have cleared/not cleared the bank. Prevent common trust bookkeeping mistakes from occurring such as ledger card overdraft, co-mingling with other ledger cards, duplicate check numbers, etc. Print checks, deposit slips etc.
BENEFITS OF A BILLING AND TRUST ACCOUNTING SYSTEM THAT WORK IN TANDEM Your firm will reap strong benefits with accounting software that blends trust account bookkeeping with your time-tracking and billing system. Not only will you improve back office efficiency, you’ll spend less time on billing management and have more hours available for casework. Built in system safeguards ensure trust account compliance with state regulations and give you peace of mind. Last, but not least, when billing and trust accounting systems work in tandem, you’ll increase profits and improve your firm’s financial picture. n David Jr: Marketing Executive EasySoft-USA which is a leading legal software provider since 1986, Easy Soft offers specialized programs (available as desktop and cloud versions) for real estate, family law, time, billing & trust account management and document automation. Over 15,000 users nationwide use Easy Soft products to increase office productivity. Find other valuable info and product details at http://www.easysoft-usa. com. Article Source: http://EzineArticles.com/3544450.
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