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Litigation Practice Meets COVID-19—The View from California
Litigation Practice Meets COVID-19
The View from California
by Peter S. Selvin
The COVID-19 pandemic has had a profound and likely lasting impact on the way litigation lawyers conduct their practice. Below are some practical tips for managing in this new environment.
Civil Trial Scheduling
While our local Superior Court has not made an official announcement to this effect, it has been our experience that civil trials will be continued into 2021. This is in part because of the backlog of criminal and unlawful detainer cases, which have priority. While law and motion hearings have continued to proceed, these are all done remotely in our local Superior and US District Courts—typically via Zoom.
Technical Proficiency
An attorney’s facility with technologies such as Zoom is now key. There is a report of one civil matter in which the opposing party’s attorney experienced technical difficulties with logging in to a court hearing. In that instance, the Court deemed the attorney’s non-appearance at the hearing to be the equivalent of non-opposition to the relief requested. The Court granted the relief requested in the face of the attorney’s “non-appearance” at the hearing.
If any lesson can be taken from this incident it is that counsel must be familiar with the technology and ideally have back-up systems in place.
The Use of Demonstratives in Hearings, Arbitrations and Mediations
One of the obvious drawbacks from having to make virtual appearances at court hearings, arbitrations and mediations is that the use of physical demonstratives is now impossible. As I understand it, Zoom allows parties to “share” their screens with other parties during a remote or virtual session. This means that for the creative lawyer, demonstratives such as charts, timelines or other graphics can be shown to the judge, arbitrator, mediator or, if selected by counsel, to the adverse side. This feature mitigates to some degree the lack of immediacy that a virtual or remote appearance would entail.
Deposition Technology
A key aspect of civil litigation in the United States is a lawyer’s right to depose (in other words, pose questions to) an adverse or thirdparty witness under oath and in the presence of a court reporter. Like everything else, depositions have gone virtual. In this regard, there are now technologies which allow an attorney to load deposition exhibits which will be unseen to the adverse party’s lawyer until the examining witnesses choose to introduce the particular exhibit. That technology also allows both the examining attorney and the witness to manipulate the exhibit—for example, by having the ability to “scroll” the document on the screen and thereby call the witnesses’ attention to a particular page or portion of the exhibit.
The “Mute” Button
One of my partners had the experience of participating via Zoom in a court hearing. During a break in the proceedings, when the judge was communicating with her staff, she made some unflattering comments about one of the litigants. Unfortunately, she did not press the “mute” button. When her comments were revealed to her, she promptly recused herself.
This cautionary tale obviously also applies when co-counsel who are physically in the same place are conferring during the course of a Zoom hearing, negotiation, or mediation. As to situations in which co-counsel are not physical present, I believe Zoom has a functionality to allow those counsel to go into a separate virtual “room” and confer in privacy and screened off from the Zoom session in which all parties are present.
Marketing
As lawyers are accustomed to meeting prospective clients in person, lawyers will need to adapt in the ways that market. The limitation on face-to-face meetings means that social media, especially LinkedIn, is going to be more important. As I do a fair amount of professional writing, I have found that posting my articles both on my individual LinkedIn page and the firm’s LinkedIn has generated interest in the form of messages from referral sources and potential clients. While none of this has yet resulted directly in new business, I have found that increased visibility on LinkedIn and other platforms has enhanced my network and will potentially lead to new opportunities. n
Peter S. Selvin, Chair of ECJ’s Insurance Coverage and Recovery Department, is a business trial lawyer with more than 30 years of experience. While he specializes in the areas of insurance coverage and international litigation, his experience has touched many different areas of law, including real estate, intellectual property, and professional liability disputes. This article first appeared on the website of the Litigation Committee of the Legal Practice Division of the International Bar Association and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
JOURNALS
ATTORNEY OF THE MONTH 2020 2020
Two NichesNo Waiting
The Go-To Attorney for Two Hard-To-Reach Niches: Bicycle Injuries and Long-Term Disability Appeals
by Dan Baldwin
Joshua Bonnici is one of those fortunate few who have turned his interests into a business success, but also a means of helping other people facing often-catastrophic legal, medical and personal crises. Since forming Bonnici Law Group, APC eight years ago, he has become the go-to attorney in two unique and challenging practice areas: bicycle accident law and long-term ERISA disability appeals.
“My experience, as an attorney and, in the case of bicycle law, considerable personal experience as an avid cyclist and bike racer, really does make me uniquely qualified in these very specialized areas of law. Since I was a kid, I’ve been pulled to help people. Focusing on these areas allows me to provide help to people for whom there are very few options in terms of legal advisors,” Bonnici says. Founded in 2012, Bonnici Law Group has a legal staff of three attorneys and an assistant with plans to add a second assistant soon. The firm’s practice areas are solely personal injury and disability appeals.
Bonnici says that as a rider and racer intimately familiar with southern California roadways and bike paths, no other attorney in the area knows how to outline a bike accident as effectively as he does. In addition to the facts and figures of a case, he can tell the story of how the incident affected a client’s life, the personal and health costs, and what it means to be off the bike on an emotional level. “I speak bike” is his promotional tagline.
“I know how to break down GPX files and training programs to show past work cyclists have put into training and how to identify the local and statewide ranking of a racer—showing how unique the client is compared to other riders. I know the struggle of injuries on the bike, the struggle of missing out on riding because of an accident, losing rankings as a competitive racer, and statistically losing speed and fitness while recovering from injuries. I fight the insurance companies to insist that my clients are treated fairly and that they get what they deserve. And just as important, I get them back to riding soon.”
Bonnici says that training on the bike emphasizes numbers and goals: how much farther can a cyclist go on a given day or how much can they better their time on a particular route or segment, for example.
Those challenges provide motivation that’s purely in his control—something that is fun and something he takes to heart. “I try to instill that in my practice because although there are some things that are not in an attorney’s control, there are some things he or she can control. Focusing on that can oftentimes help narrow what the client’s immediate needs are, and what I can do in the short-term to help. What does the client need right now? Does the client need a second opinion on an injury to calm their concerns, or get an expert involved? Do they need a psychologist to treat their PTSD after getting hit by a car? Do they just need someone to talk to at the moment? The focus required in biking applies directly to providing effective and personal client service in those situations,” he says. The firm’s typical cyclist client ranges from someone who trains and races regularly in southern California, to the recreational cyclist wanting fresh air and a new way to experience San Diego. Clients often have a carbon fiber race bike, high-end cycling apparel and may pay for a training plan or cycling coach. They track their fitness and mileage with sophisticated apps and programs. They’re dedicated and
No Waiting
need someone just as dedicated to not only tell their story, but understand where they are coming from.
His in-depth, intimate knowledge approach wins praise from clients in all practice areas.
Working with Josh has been a pleasure. He immediately defused an incredibly stressful situation and guided us through a labyrinth of legal procedures. We wouldn’t have had an idea what to do without his help. Josh was easy to talk to and had a knack for making complex ‘legalese’ simple to understand. Unlike the other lawyers we met with, Josh actually listened more than he talked which was refreshing. He was straightforward about the risk/reward of litigation vs. settling and we couldn’t be happier we listened to his recommendation. We’re thankful we were referred to
Josh. M.M. Bonnici takes his commitment to his clients and to the sport a step further by donating a portion of their attorney fees to a local charity or non-profit of the client’s choice.
LONG-TERM CLIENT SERVICE FOR LONG-TERM DISABILITY APPEALS
Bonnici says, “On the LTD side I really like putting together long-term timelines—something I can really use in arguing cases. Proving the insurance company is wrong after they have denied somebody—taking their arguments and breaking them down and then knocking them down one at a time. The strategy behind making sure the client gets what they need and what they deserve really makes me tick.”
Much of Bonnici’s commitment to long-term disability clients comes from personal experience. His father has been on disability benefits for nearly 20 years after a horrific bike accident that caused a major brain injury. “I can speak with a client with extreme confidence because I have in a very real sense lived what he and his family are going through. I not only take the medical portion of the claim to task, but I know how to tell the whole story of who the client is, what he and his family are experiencing, and their emotional as well as financial costs. I bring those things to life for the insurance company since I know how they really do affect a person and their family.”
The firm’s typical LTD client is a disabled professional who has tried everything to be able to stay working, but their doctors tell them they need extended time off work. They may have a debilitating disease without a cure, or which causes symptoms that in the aggregate make living a so-called normal life very difficult if not impossible: suffering seizures, extreme fatigue, or migraines. Their disability may not be traditional or show up on an MRI. They need their story told through video interviews, timelines and through co-workers—whatever it takes to make their suffering real for those hearing their story.
Long-term disability cases can turn into a long-term relationship and this must be taken into consideration when taking on LTD clients. “If they don’t like me, that’s one thing, but if I’m not a fan of who this person is, that is something I really have to think about. The client and I are in this for the long-haul and we have to make that journey as a team.”
A claimant who has been turned down for disability benefits, or alternatively whose disability benefits have been terminated, will require competent counsel, well versed in the applicable litigation. “It is virtually impossible and certainly impractical for a disabled claimant to even attempt to singularly traverse through the virtually endless maze of an insurance company’s ‘claim’s team’ (Claim Specialist, the Appeal Specialist, In-house Nurse, the Peer-Review physician, the Vocational Specialist, and the Surveillance Specialist). A client not only needs an attorney who knows the law, namely ERISA, but who can also translate a client’s physical and emotional damage in an effective and impactful way that the insurance carrier, and possibly a judge, can’t deny,” Bonnici says.
“In a very real sense I become a member of their extended family. Often the term counselor includes listening to clients ‘spill their guts’ and offering a shoulder to cry on or acting as an informed sounding board for all kinds of family issues. I really enjoy connecting with the clients like that. I love fighting for my LTD clients because you’re not only trying to win a case, you’re making sure good, deserving people have the financial resources to live,” he says.
Dealing with ERISA policy issues is a very complex area of the law and one in which many attorneys and firms lack the necessary background and experience of the team at Bonnici Law Group. Approximately 50 percent of the firm’s business is referral and primarily involving ERISA, a complicated area of the law. “It’s a heavy statute and we get a lot of calls from other attorneys who have questions regarding ERISA requirements and procedures. And we pay referral fees according to the state bar rules,” Bonnici says.
A LIFELONG QUEST TO HELP PEOPLE IN NEED
Bonnici has always had one passion in life: to help people through life’s struggles. The urge was a calling he felt early in life and it is something he pursues daily. Some of his experiences include traveling with his church to Mexican orphanages, aiding classmates as a professor’s assistant, or volunteering at a local high school for homeless teenagers. He doesn’t wait for the opportunities to arise. He seeks them out. He decided on a career in law early and made the commitment in high school. He attended the University of California, San Diego, where he majored in Political Science and took advanced law courses prior to law school.
He married Julia, his high school sweetheart, the summer before his junior year in undergraduate college and transferred to UCSD that same summer while working 20 hours a week and taking 22 units in college. He earned his Juris Doctor from Thomas Jefferson School of Law and worked for a local plaintiff’s personal injury firm during and after his schooling. He also worked as a professor’s assistant, coached an award-winning alternative dispute team and took part in a volunteer teaching program, teaching homeless high school students at the Toussaint Academy in San Diego. “I kept telling people that I was going to be a lawyer, so that’s what I did. I really enjoyed the debate team and loved solving problems. People have always been very comfortable talking to me, so I figured that would be a good way to connect and give back to my community. My philosophy has always been the realization that truly helping a client isn’t just through representation—but through personal attention, zealous advocacy, and transparency,” he says.
After leaving the personal injury firm he joined a legal marketing business for a year. He was the only attorney on staff. A project that initially started as a possible joint venture with a friend from law school turned into Bonnici starting his own purely contingency law office with zero clients. He has since grown the business from a solo practitioner to a team of five.
FILLING THE FAMILY NICHE
In addition to bicycling and racing all over southern California, Bonnici enjoys spending time outside hiking and camping with Julia, his wife of 17 years, playing with his dog Marley, discussing baseball strategy, and amateur bartending (ask about his black walnut Manhattan, or his wife’s favorite, the guava mezcal sour).
Bonnici Law Group sponsors and supports the San Diego Velodrome, which supports VeloYouth and other local associations who get kids on bikes. They also sponsor San Diego Bicycle Club, San Diego County Bicycle Coalition, and SkyFlash Racing, an all women’s race team aiming to get more women into the sport of bicycle racing. Bonnici sits on the board of directors for the San Diego Mountain Biking Association to help raise money for multi-use trail maintenance and sustainability. He is on the ExComm for the Solo/Small Firm section of the California Lawyer’s Association (formerly the CA State Bar), is the sitting secretary, and the editor-inchief for their publication, The Practitioner. n
Contact Joshua Bonnici Bonnici Law Group, APC 1620 5th Avenue, Suite 625 San Diego, CA 92101 Phone: (619) 259-5199, ext. 101 josh@bonnicilawgroup.com www.BonniciLawGroup.com
EXPERIENCE
The Bonnici Law Group Team: Devin De Loa, Josh Bonnici, Freyja Wolken and Melissa Renteria
EDUCATION
• Thomas Jefferson School of Law 2006–2010
• University of California, San Diego—Political
Science major—2003–2005
HONORS/AWARDS & REVIEWS (AS OF 11/19/2020)
• San Diego’s Best Litigation Firm—San Diego Tribune • Awarded the “40 Under 40” award for businessmen in
San Diego • Super Lawyers Selected to Rising Stars: 2019–2021 • Google Reviews—5 Star Rating—25+ Reviews • Avvo Reviews—5 Star Rating—20+ Reviews • Yelp Reviews—5 Star Rating—5+ Reviews • Better Business Bureau—A+ Rating
HOBBIES/INTERESTS
• Biking • Baseball fan
• Weight lifting • Craft cocktails
Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon
Jan M. Eckermann, MD, FAANS is a boardcertified neurosurgeon with over 10 years of experience in managing complex neurosurgical patients.
We partner with personal injury attorneys to better serve your clients.
Conditions Treated:
Back pain Back injuries Back spasm Neck pain Shooting pain in the arm (cervical radiculopathy) Shooting pain in the legs (lumbar radiculopathy) Sciatica Herniated discs Pinched nerves Chronic pain syndrome Failed back and failed fusion syndrome Traumatic brain injury Concussions Carpal tunnel syndrome Lumbar fusions Spinal stenosis
Dr. Eckermann has two locations:
Newport Beach Office
1617 Westcliff Drive, Suite 203 Newport Beach, CA 92660 Phone: 949-514-7456 Fax: 949-209-4687
Bakersfield Office
2323 16th Street, Suite 407 Bakersfield, CA 93301 Phone: 661-479-7240 Fax: 661-843-7882
