ORANGE COUNTY
Volume 172, 2020 $6.95
The PPP Litigation Wave Is Coming
Phillip S. Bixby Prepare for the COVID Reptile
Dr. Ken Broda-Bahm California Case Summaries
Monty A. McIntyre Law Firm Strategies and Economic Turmoil
Roger Hayse
3 Important Steps to Change a Law Firm’s Organizational Culture
James McCarthy
How a Single Sentence Can Drive More Response to Your Marketing
Tom Trush
Identifying and Correcting Misconceptions Clears Your Prospect’s Head for Your Marketing Message
Trey Ryder
Attorney of the Month
Robert J. Francavilla Casey Gerry A Passion for Representing Human Beings in Personal Injury Cases
NEVADA REFERRAL & CO-COUNSEL RELATIONSHIPS
NEVADA’S LARGEST & HIGHEST RATED INJURY LAW FIRM
“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size.” ~ C. Michael Alder, Esq., Alder Law, Los Angeles, California, CAALA Past President and Former Trial Lawyer of the Year
801 SOUTH 4TH STREET | LAS VEGAS, NV 89101
2020 EDITION—NO.172
TABLE OF CONTENTS 6 Three Important Steps to Change a Law Firm’s Organizational Culture by James McCarthy
10 Prepare for the COVID Reptile by Dr. Ken Broda-Bahm
12 California Case Summaries by Monty A. McIntyre EXECUTIVE PUBLISHER Brian Topor
ATTORNEY OF THE MONTH
16 Robert J. Francavilla, Casey Gerry, Serving Orange County A Passion for Representing Human Beings in Personal Injury Cases
EDITOR Wendy Price CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson
by Dan Baldwin
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS James McCarthy Dr. Ken Broda-Bahm Monty A. McIntyre Phillip S. Bixby Roger Hayse Tom Trush Trey Ryder WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
10
22 Law Firm Strategies and Economic Turmoil by Roger Hayse
16
24 The PPP Litigation Wave Is Coming by Phillip S. Bixby
26 How a Single Sentence Can Drive More Response to Your Marketing by Tom Trush
28 Identifying and Correcting Misconceptions Clears Your Prospect’s Head for Your Marketing Message by Trey Ryder
26
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 2020 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
WITH US, BUSINESS IS PERSONAL Always Get The Red Carpet Treatment At Jilio-Ryan DEPOSITION SERVICES
VIDEO SERVICES
ONLINE & MOBILE SERVICES
•Certified Court Reporters
•Certified Legal Videographers
•Online Deposition Scheduling
•Court-Appointed Official Reporters
•Video Conferencing
•Online Document Repository
•Certified Legal Interpreters
•Video Deposition Streaming
•Jilio-Ryan Mobile App
•24/7, Last Minute Scheduling
•Video Transcript Synchronization
•Mobile Transcripts
•Nationwide Deposition Coverage
•Digital Deposition Streaming
•Productivity Enhancing
•Deposition Suites, Conference Centers
•Video Editing Tools
Transcript Tools
•Realtime Depositions •Electronic Transcripts •Electronic Transcript CD •Litigation Support Software Integration
Over 100 Years Combined Court Reporting Experience
•Complete Case Management
W W W. J I L I O R YA N . C O M
800.454.1230
3 Important Steps to Change a Law Firm’s Organizational Culture by James McCarthy
THE SOCIAL CONTRACT Many law firms have developed over time what is called a “Social Contract.” In this contract, the organization “agrees” to provide such things as structure, meaningful work, policies and procedures, associate career tracks and training, compensation, and experienced partner-level oversight. In return, staff provides time, effort, knowledge, skills, abilities, motivation, experience, etc. Together, these things harmonize to make a firm productive, and to run more or less smoothly. This Social Contract also helps form the basis for the Culture of an organization. As you will see shortly, culture consists of, or is reflected in part by the rules and regulations; agreements on how decisions are made; structures; symbols—such as mottos, dress codes, and space allocations—and perhaps most importantly, the underlying values and assumptions that guide everyday work and behavior. Culture is an excellent “lens” through which to look at what is happening in any firm. It touches all levels and all areas of the business. When a major change occurs, such as reorganization, a merger, or the introduction of a new strategic focus for the firm, that whole cultural foundation that has been built upon the unspoken agreements of the social contract can be shaken, severely damaged, or even destroyed. 6
Attorney Journals Orange County | Volume 172, 2020
In that scenario regular staff and perhaps even some Partners who knew more or less what their future would most likely be, now may not. They are not sure if their skills or background will be a match for the new requirements. They don’t necessarily know how to behave anymore. They may not even know how to do the work anymore, as such processes as billing arrangements and targets may change, schedules and assignments become unclear, seem to be arbitrary, or have simply disappeared. They do not have a clear sense of what is valued any longer. All this uncertainty helps them become frustrated and scared, and when people are scared, very dysfunctional things can happen. Because employees are worried and unsure, resistance to the changes can occur. It may manifest as conflict between workers; conflict with management; an increase in sick time usage or accidents; work slowdowns may happen; quality and productivity may suffer, there will be unclear messaging; potentially vague lines of authority, and more. Management is not exempt in any way from this process. Potentially, non-equity Partners, and perhaps some Full Partners may no longer be sure of how to do their jobs effectively; how to communicate; how to evaluate people; how to motivate; instruct, and develop subordinates—it may even be unclear how to strategize and set goals since a clear Strategic Future Picture may no longer exist.
So, what often happens is that the organization starts to “speak” louder at each other. For Leadership, Speaking can refer to the exercise of raw management power with little or no consultation, for example: • New roles; new policies and procedures; new assignments; increases in billing requirements; reductions in hours, even firings On the employee side, this can include: • Direct insubordination; peer conflict; poor work quality; work slowdowns; absenteeism; declining output, and more. Having a clear, well-articulated vision of the future substantially reduces the possibility that major change can significantly impact the future of your firm. Strategic planning offers several persuasive reasons for its use. Strategy: • Forces a look into the future and therefore provides an opportunity to influence that future or assume a proactive posture. • Provides better awareness of staffing, facility, and training needs. • Helps define the overall mission of the organization and focuses on the objectives, key leverage points, and measures of progress. • Provides a sense of direction and continuity. • Increases awareness, involvement, and buy-in, and provides standards of accountability for people, programs, and allocated resources. Firms have a stark choice; they can let the fear and uncertainty overwhelm them, with serious consequences for individuals and the business, or, they can act decisively, with a solid plan based on reliable data and connected to a well-articulated Strategic Plan. The first step in changing or affecting your culture involves understanding the culture you have. Once you gain a deep understanding of your present culture, you can look at longterm business strategies and goals and decide to what extent (if any) your culture may need to change. Just as structure and design may be viewed as the skeleton and muscles of the organization, culture can be seen as the firm's “heart”, or core. This culture consists of shared assumptions and values that shape partners', associates' and employees’ behaviors and help them understand the firm and their place within it. These assumptions and values are established over time by both formal and informal leaders. They are displayed and derived from such things as heroes, tales, and customs and present a powerful set of forces that are enduring, deep, and universally accepted.
A strong culture is one in which attitudes and standards are widely shared and strongly held. Such a culture offers many advantages, including: • Collaboration—Shared values enhance goodwill and mutual trust, encouraging teamwork. • Decision Making—Shared beliefs and values lead to more efficient decision making, since there are fewer disagreements about which ideas should prevail. • Influence—A strong culture serves to influence “right” actions. • Exchange of ideas—Agreement on beliefs and values facilitates enhanced communication. • Dedication—Strong cultures foster strong allegiance to the firm. Successful culture change requires an integrated process involving not only modifications of cultural elements, but also may include corresponding steps involving leadership; communication; behaviors, and even structural changes. That is, successful culture change cannot occur in a vacuum. There are several proven methods to help you in the first step of understanding your culture: • Culture Audit—A "culture audit" can help assess the culture that currently exists in your firm. An effective firm culture audit describes the overall working environment; identifies the unwritten standards and rules governing all interactions and workplace practices; determines possible barriers to effective work routines and communication and may make recommendations for addressing identified problems. • Organizational Character Indexing—Built upon the Myers-Briggs© personality types, a law firm's character can shape how decisions get made, new ideas are received, how people are treated, and whether change is accepted or rejected—all factors that affect firm performance. • Culture Surveys—A law firm culture survey is a way to take the pulse of a firm's culture. A culture survey can be a powerful tool to better understand the shared values that underpin performance, as well as to identify culture-related areas for change. • A newer and interesting method involves using both leader and organizational Preferences and Motivations as “lenses” into cultural components—ultimately, people have to want to make the change, and you need to know how change is best received or implemented in your firm.
Attorney Journals Orange County | Volume 172, 2020
7
• Still other methods include: Observation; Interviews of colleagues and clients; Focus Groups, and Examination of mission and vision statements. By gaining a clear understanding of your present culture, you will be able to make judgments regarding your desired culture and how to create it, based on both objective and subjective data. The next step, actual culture change, typically begins at the top of the organization, either from your Managing Partner, or from his or her Leadership Team.
Changing Your Law Firm’s Culture Culture change is particularly difficult because it often involves large-scale organizational change. In addition, the change is in things close to the “spirit”, or “heart” of the firm. Let’s examine some options for successful culture change: • Leadership (typically the Senior Partner and his / her team) must develop a compelling Future Picture, a set of recommendations, and a convincing case for change. A clear destination becomes even more important during implementation of the recommendations. It can help keep everyone motivated and moving in the right direction. If Partners, Associates, and Staff do not understand the vision and plans for how the changes will help, as well as the consequences of inaction, they will be less open to the recommendations. Solid, coherent tactics derived from the Future Picture must be developed to move the recommendations forward. • Keep a sense of urgency. In addition to the clear sense of direction provided by a shared Future Picture, employees also need to experience some level of urgency about changing the status quo. It is probably naive to think that all the leadership team’s recommendations will move forward on their own merits, so the plans must have plenty of support from all interested parties. Kotter (1995) believes that the sense of urgency is not high enough until 75 percent of a firm’s leaders (the critical mass) are convinced that “business as usual is totally unacceptable.” • Focus undivided attention on the new culture. “Undivided attention” is usually a good thing. However, because the stakes are so high and the competition is so fierce, leaders are increasingly required to spread their attention across a number of areas: client generation and servicing; concurrent change initiatives; human and organizational aspects of those change initiatives; ongoing strategic planning, and the day-to-day business of the firm. Consequently, there must be continual focus on the new culture, through multiple channels, and a strong message sent that the journey is just beginning.
8
Attorney Journals Orange County | Volume 172, 2020
• Value diversity and “subcultures” and honor the past. Diversity in the organization may be the key to successful culture change. Creating a new culture from scratch is difficult and may be seen as inconsistent with the norms and values of the firm. In addition, people may have invested themselves heavily in the past way of doing business. It often backfires when the past is criticized too strongly. Subcultures that already exist may embody desired characteristics and serve as “seeds” for change. Producing culture change is a bit like creating an infectious disease. You want a lot of people to “catch the bug” so they will spread it to other people. A bright focus must be kept on the recommendations and their implementation. • Communication is the key. If colleagues do not understand the desired culture, why it is important, and what must change to create it, it is doubtful that change will happen. If an information vacuum is allowed to develop, people will fill it by creating their own information, whether or not it is accurate. Unfortunately, they often feed their worst fears and make up disaster scenarios. A little information about what is and is not known can go a long way to ameliorate the tendency to feed the rumor mill with anxiety-producing tales. As the potential courses of action listed suggest, successful culture change requires a cohesive process involving not only changes in the culture, but also equivalent steps involving organizational elements such as leadership; communication; processes; policies, and perhaps even organizational form (structure) changes. Simply put, successful culture change cannot be done as a stand-alone project. It will almost certainly require several coordinated actions. Culture change always seems to take longer than the time planned or desired. Culture change is not immediate, and it will without doubt meet with uncertainty, frustration, and even anger. A particularly vexing problem is that in the middle of most major changes, the problems are quite evident, but benefits are still in the future. The firm must be willing to commit to the time needed for full and successful culture change. n James McCarthy joined Wolf Management Consultants, LLC as a very seasoned Organization Development (OD) and Executive Consultant. He has over 25 years line management and consulting experience with a multi-industry perspective. A Certified Professional Consultant, with five University Degrees, including Masters Degrees in Management, and in Organization Development, as well as eight professional certifications, Jim is recognized as an accomplished practitioner who has a complete grasp of the entire continuum of the Organization Development discipline—from planning through execution. Learn more at www.wolfmotivation.com.
Prepare for the COVID Reptile by Dr. Ken Broda-Bahm
M
ight a fear-based strategy have greater purchase in the present pandemic climate? People are certainly feeling scared and vulnerable these days. Even as states begin to relax the coronavirus stay-at-home restrictions, the death toll continues to climb, and a solid majority of the American public is not at all eager to get back out there. According to current Pew Research polling, nearly seven in ten Americans say their greater concern is with governments lifting restrictions too quickly, rather than not quickly enough. I expect that even after experts begin saying it is relatively safe to reengage, there will still be a lot of residual fear and some habits that might’ve changed for good. I have been chronicling many of the expected attitude changes in the wake of this crisis, and an additional perspective to consider is one that trades on fear and vulnerability: the plaintiff’s “Reptile” approach of trying cases by focusing on a personally relevant danger posed by the defendant. In the context of the worldwide virus lockdown, there is a good chance that jurors might be primed for the kinds of fear appeals that the Reptile depends on. While jury trials don’t seem to be getting underway in the immediate future, once they do, we might expect the Reptile’s chances of success to be influenced by a persisting state of public fear. With a jury preconditioned to look for threats, the strategy might have special resonance in this context. In this post, I will take a look
10
Attorney Journals Orange County | Volume 172, 2020
at some recent research and commentary that could point in that direction. The Reptile in a COVID context might involve the plaintiff’s attorney drawing a literal or a figurative connection with the current situation, such that a stand against the defendant becomes a symbolic way of gaining more control or safety. It might include express or implied messages like this: • We face too many risks (to our lives, health, and autonomy) • The defendant is contributing to that risk at the worst possible time • Taking a stand against the defendant’s actions protects society by setting a limit to what we will tolerate There are a few attitudinal changes that bear on that message.
Less of a Pullback from Sympathy? I have long noticed that there are many jurors who really don’t want to be influenced by the pathos of the case. If there is a particularly tragic loss or injury at the center of the case, then that fact will make that juror less likely to support that case. In what I call the “sympathy rebound,” the sad facts serve as a cue to this juror that the case is based on emotion and not
Greater Sensitization? on evidence or logic. In some ways, the Reptile perspective is tailor-made to address that, because it reframes the case away from that individual tragedy and toward a common threat posed to all of us. Based on a recent survey, however, we believe that there is some evidence that this sympathy rebound might be lessening in the current context. In other words, the pandemic’s role in putting many of us in a situation of potential threat and loss, has potentially created a little more empathy and a realization that tragic losses may indeed be real. Last month, April of 2020, we returned to a group of 200 juror-eligible individuals that we had surveyed last Summer (July of 2019). We wanted to see if their views had changed in the midst of the pandemic. In several ways, we found they had, and in the direction of greater compassion. For example, they were more likely to say that we should be doing more to ensure well-being. Society need to do more to ensure people’s well-being:
2020 0%
20%
56% 40%
60%
80%
Source: Persuasion Strategies, BigJury 2019-2020, N = 205
More specifically, respondents are also less likely to consider legal claims of damage to be exaggerated.
56%
2020 0%
20%
68% 40%
Source: Persuasion Strategies, BigJury 2019-2020, N = 205
60%
On the flip side, it is also possible that the pandemic has provided some perspective that could normalize the idea that “everybody has experienced some loss,” or even make some claims seem trivial. “The perspective that comes with the COVID-19 pandemic is likely to temper a jury’s impulse to assign blame for a tragic outcome, even in a sympathetic personal injury case. Jurors who have seen real suffering around them—and perhaps experienced it themselves through illness, the loss of a job, or the loss of a loved one—are more likely to be receptive to common personal injury defense themes like bad things happen to good people and there can be injury without fault.“ However it shakes out, and it is likely to be different in every case, legal strategies that try to personalize the case for a jury face an altered setting as a result of the coronavirus. Prepared attorneys on both sides of that strategy will have a particularly great need to know their audience, think broadly about what motivates them in understanding the case, and adapt. n
“Disagree” that most claims of disability, pain, and suffering are exaggerated. 2019
“The thought of death alone in an intensive care unit—with loved ones unable to be present and caregivers separated by layers of personal protective equipment—is as disquieting as it is real. Themes of alienation, exclusion and abandonment will pick at a raw wound with many jurors. Deployed appropriately, these ideas can resonate for either a plaintiff or a defendant.”
The Flip Side: Greater ‘Normalization’ of Loss
49%
2019
Of course, that shift of opinion within our longitudinal respondent pool does not definitively prove that people changed because of the virus response, but it is a reasonable inference. In a recent Law360 article, “6 Lessons on Jury Advocacy in the Wake of a Crisis,” Frances Morrison and John Tanski of the firm Axinn Veltrop and Harkrider note that, “A good trial lawyer should not underestimate the mental, physical and financial suffering that COVID-19 has caused or the scars that it will likely leave on us.” Specifically, they describe a phenomenon that has also been studied under the heading, “terror management.” When reminded of our own mortality, we are likely to be open to some of those same themes from others:
80%
Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 21 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.
Attorney Journals Orange County | Volume 172, 2020
11
California Case Summaries New California Civil Cases by Monty A. McIntyre, Esq.
These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https:// californiacasesummaries.mykajabi.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty’s case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.
CALIFORNIA SUPREME COURT Civil Code Scholes v. Lambirth Trucking Co. (2020) _ Cal.5th _ , 2020 WL 827863 : The California Supreme Court affirmed the Court of Appeal decision finding plaintiff’s action for damage to his trees from a fire that started on defendant’s property was untimely filed under the applicable three-year statute of limitations for trespass. The five-year statute of limitations and heightened damages provisions of section Civil Code 3346 are inapplicable to damages to timber, trees, or underwood from negligently escaping fires. (February 20, 2020.)
Employment Frlekin v. Apple Inc. (2020) _ Cal.5th _ , 2020 WL 727813: Responding to a request of the United States Court of Appeals for the Ninth Circuit to decide a question of California law, the California Supreme Court ruled that time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees is compensable as “hours worked” within the meaning of Industrial Welfare Commission wage order No. 7-2001. (February 13, 2020.)
12
Attorney Journals Orange County | Volume 172, 2020
Kim v. Reins Internat. Cal., Inc. (2020) _ Cal.5th _ , 2020 WL 1174294: The California Supreme Court reversed the Court of Appeal’s ruling affirming the trial court’s order granting defendant’s motion for summary judgment regarding the alleged Labor Code Private Attorneys General Act of 2004 (PAGA; Labor Code, section 2698 et seq.) violation after plaintiff settled his individual claims. Ruling on an issue of first impression, the California Supreme Court held that employees do not lose standing to pursue a claim under PAGA if they settle and dismiss their individual claims for Labor Code violations. Settlement of individual claims does not strip an aggrieved employee of standing, as the state’s authorized representative, to pursue PAGA remedies. (March 12, 2020.)
CALIFORNIA COURTS OF APPEAL Appeals County of Humboldt v. App. Div. (2020) _ Cal.App.5th _ , 2020 WL 1164262: The Court of Appeal granted a writ petition directing respondent to vacate its earlier order dismissing petitioner’s appeal and to issue a new order transferring the case to the Court of Appeal for further proceedings. In an enforcement action, petitioner issued a penalty of $88,800 against real party in interest Alejandro
Quezada for conditions on his property deemed to be public nuisances in violation of a county ordinance. Quezada filed a de novo appeal to the superior court, which reduced the penalty from $88,800 to $59,200. Petitioner then appealed to the superior court appellate department which dismissed the appeal. The Court of Appeal ruled that, in an unlimited civil action, a final judgment or order from a de novo appeal to the superior court under Government Code section 53069.4 is reviewable on appeal to an intermediate appellate court. (C.A. 1st, March 10, 2020.)
Arbitration Aldea Dos Vientos v. CalAtlantic Group, Inc. (2020) _ Cal.App.5th _ , 2020 WL 581464: The Court of Appeal overruled the trial court’s order confirming the arbitrator’s dismissal of an arbitration due to the homeowner association’s failure to vote in favor of pursuing arbitration before the arbitration was commenced as required by section 7.01B of the covenants, conditions, and restrictions.1 The Court of Appeal found the arbitrator exceeded his power because section 7.01B contravened state statutory housing policy by giving the developer the unilateral power to bar actions for construction defects. The Court of Appeal declined to follow Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743 and ruled that section 7.01B violated the state policy against unreasonable servitudes set forth in the Davis-Stirling Act, which prohibits the enforcement of unreasonable provisions in the CC&R’s (Civil Code, section 5975(a)). (C.A. 2nd., February 6, 2020.) Dougherty v. Roseville Heritage Partners (2020) _ Cal.App.5th _ , 2020 WL 1501701: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration in a case alleging elder abuse and wrongful death based upon the reckless and negligent care given to plaintiffs’ elderly father while residing in defendants’ facility. The trial court properly found the arbitration agreement was procedurally unconscionable because it was part of a 70-page stack of documents that plaintiff Lori Dougherty lacked time to review because her father was arriving imminently in an ambulance, plaintiff was never told she could modify, negotiate, or refuse to sign any of the admission documents, and plaintiffs had established that Dougherty had no opportunity to negotiate the arbitration agreement. The trial court properly found the agreement to be substantively unconscionable because of its restrictions on discovery,2 limitations on damages,3 and advance waiver of jury trial rights for any nonarbitrable causes of action.
The discovery limitations were particularly unconscionable because they limited the statutory discovery rights to vindicate an elder abuse claim. Finding the agreement was permeated with unconscionable provisions, the trial court properly declined to sever the offending provisions and declared the entire agreement void. (C.A. 3rd, March 30, 2020.) Section 7.01B required a vote of at least 51 percent of the association’s membership prior to beginning arbitration. 2 D epositions could be requested but could not be taken as a matter of right. There was no provision for interrogatories or requests for admission. 1
3
Punitive damages could not be awarded.
Attorney Fees George v. Shams-Shirazi (2020) _ Cal.App.5th _ , 2020 WL 632431: The Court of Appeal affirmed the trial court’s order awarding wife attorney fees of $13,000 under Family Code section 271 for having to defend husband’s repeated attempts to modify a custody order. Husband’s sole argument on appeal was that wife’s request was untimely because it was filed later than 60 days after the final judgment as required by Rules of Court, Rule 3.1702(b). The Court of Appeal held that Rule 3.1702(b) does not apply to postjudgment claims for attorney fees awarded under Family Code section 271. (C.A. 1st, February 11, 2020.)
Attorneys Reeve v. Meleyco (2020) _ Cal.App.5th _ , 2020 WL 1429362: The Court of Appeal reversed a judgment for plaintiff, following a jury trial, awarding plaintiff (an attorney suing for a referral fee) $78,750 and an award of $49,364.35 in prejudgment interest. Plaintiff was not entitled to a referral fee because the client’s written consent to the referral fee was not obtained as required by former rule 2-200 of the State Bar Rules of Professional Conduct (in effect during the relevant time period). Although the attorney handling the case later sent a letter to the client explaining that a referral fee would be paid, that it would not reduce the amount of the client’s recovery, and the client acknowledged getting this letter and understanding what it said, the Court of Appeal ruled that the acknowledgment did not constitute written consent to the referral fee. Finally, plaintiff’s quantum meruit claim was barred by the applicable two-year statute of limitations. (C.A. 3rd, March 24, 2020.)
Attorney Journals Orange County | Volume 172, 2020
13
Civil Procedure
Torts
Gulf Offshore Logistics, LLC v. Super. Ct. (2020) _ Cal. App.5th _ , 2020 WL 772610: The Court of Appeal granted a petition for writ of mandate and directed the superior court to vacate its order denying petitioner’s motion for summary judgment in a class action alleging California wage and hour violations by non-California residents and former crew members of a vessel that provided maintenance services to oil platforms located in the Pacific Ocean off the California coast. The trial court erred because Louisiana law, rather than California law, applied. Louisiana’s interest in the application of its laws was stronger than California’s. The employment relationships here were formed in Louisiana, between Louisiana-based employers and non-resident employees who traveled to that state to apply for, and accept employment. They received training and orientation in Louisiana and the administrative aspects of their employment were performed in that state. California’s interests were weaker because, although the crew members performed some of their work in California, neither the employees nor the employers were residents or taxpayers of California. (C.A. 2nd, February 18, 2020.)
Coats v. New Haven Unified School Dist. (2020) _ Cal. App.5th _ , 2020 WL 1181526: The Court of Appeal reversed the part of the trial court’s order granting defendant’s motion for judgment on the pleadings against the minor plaintiff, but it affirmed the trial court’s order against the foster mother plaintiff in an action alleging the minor plaintiff had been sexually abused by one of her high school teachers. The trial court granted the motion for judgment on the pleadings against both plaintiffs because they had not filed a government tort claim before they filed their lawsuit. The Court of Appeal reversed as to the minor plaintiff because of the 2019 amendment of Code of Civil Procedure 340.1, which extended the time to bring an action for damages resulting from childhood sexual assault to 22 years from the date the plaintiff attains the age of majority or five years from the date plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault. (C.A. 1st, March 12, 2020.) n
California Offices: Irvine, Los Angeles and San Francisco 949.660.8200 | ankura.com
Solving challenges with the right combination of expertise.
Ankura Consulting Group (Ankura) is a specialized independent consulting firm that provides litigation, financial, restructuring, strategic and operational consulting services. Our clients are corporations, legal counsel and government agencies facing the challenges of uncertainty, risk, distress and significant change. We focus on industries undergoing substantial regulatory or structural change and on the issues driving these transformations. Ankura is comprised of more than 1,500 professionals, including highly experienced eDiscovery experts; financial analysts; economists; certified public accountants; certified business appraisers; merger and acquisition specialists; professional engineers; and information management analysts. We have offices in over 38 cities worldwide.
14
Attorney Journals Orange County | Volume 172, 2020
At Employees First Labor Law, we provide exceptional legal representation to those who were wrongfully terminated, discriminated against, harassed, or injured at work. Our typical client has been fired for an illegal reason, has been discriminated against because of their race or gender or religion or sexual orientation, has been sexually harassed or retaliated against, hasn’t been paid overtime or their fair wage, or is facing a workplace injury. We’re labor law experts. We’re here to help you through this difficult time.
RECENT WINS: Traumatic Brain Injury $5,150,000 Settlement Wage & Hour Class Action $1,950,000 Settlement Sexual Harassment & Wrongful Termination $1,800,000 Settlement Disability Discrimination & Wrongful Termination $920,000 Settlement Workers Compensation $750,000 Settlement Jonathan LaCour, Managing Attorney
Generous Referral Fees Paid 5.0 ★ ★ ★ ★ ★ Average Rating
Jonathan LaCour | Managing Attorney 310.853.3461 | jonathanl@pierrelacour.com Offices Located in: Irvine | Pasadena | Pomona | Riverside | Long Beach | Victorville
A Passion
f o r Re p r e s e nt ing Hum an Bein g s i n P e r s onal Inj ur y C a s e s by Dan Baldwin
I have the best job in the world. I am passionate about representing individuals in personal injury cases because plaintiffs, human beings who have been harmed, are overmatched when taking on insurance companies, corporations, the government or other major entities that are at fault. Our firm gives these individuals a voice and the confidence to pursue justice against those who have harmed them,” says Robert Francavilla, Partner at Casey Gerry Schenk Francavilla Blatt & Penfield LLP, San Diego’s most established plaintiffs’ law firm. Francavilla focuses his career on serious personal injury, premises liability and highway design cases, including wrongful death, paraplegia, quadriplegia, severe burns, loss of limbs and major orthopedic injuries.
In a Wheelchair Unbound John H. v. Clinton River Medical Products was a complex product liability case involving a client who was wheelchair bound and who sustained fractures to the bones in his lower leg when his wheelchair’s power assist mechanism failed. He was descending the wheelchair ramp from his van when the device failed, sending the plaintiff crashing into the running board of a parked SUV. The plaintiff broke his tibia and fibula and although he did not require surgery, he was left with chronic pain.
16
Attorney Journals Orange County | Volume 172, 2020
Francavilla’s client, a 53-year-old paraplegic, was an Olympic caliber swimmer at 19 when he suffered a spinal cord injury in a swimming pool accident. Shortly before leaving the rehab hospital, he and his parents were told that he’d never be self-sufficient, that he was unemployable, he’d always be in a wheelchair, and that he would need to live in a nursing care facility. Undaunted, Francavilla’s client finished school, went to medical school, graduated, and ironically returned for his internship at the rehab hospital where he was treated. “We weren’t about to let down a person of that strength and character,” Francavilla says. The challenges in this product liability case were numerous and daunting. First, Francavilla had to convince a jury that someone who is paralyzed can still feel pain and in their client’s case, a heightened degree of pain. The defense argued that since he had not had surgery, had not complained about the pain, had less than $30k in medical expenses, that he had suffered only a minor injury and was exaggerating the pain. “The difference between me and the defense is that I get to know the people I represent. Had the opposing attorneys done the same, they would have discovered that John just does not complain. From the time he suffered his spinal cord injury, through pre-med, medical school and on the job as a radiologist, he never wanted a handout and vowed to make it on his own regardless of the challenges he faced.”
ATTORNEY
OF THE MONTH
2020
© Bauman Photographers
JOURNALS
Robert and partners (from left to right): Robert J. Francavilla, David S. Casey, Jr., Gayle M. Blatt, Frederick Schenk
Another challenge was the claim that their client earned a good living as a physician and didn’t need the money. Most young victims of spinal cord injuries go on public assistance and usually struggle through life. Persons close to the plaintiff stated the obvious truth that he was successful due to hard work, dedication, and a desire to earn everything that he got. He was proud to be a viable, tax-paying and self-sufficient member of society. The jury found him honest and credible. After an initial pre-trial offer of about $300,000 the jury awarded him $7.6 million in a verdict. “His was a compelling story. He was a perfect example of someone making the best of a bad situation, who made it to the top of his profession and still fought to do the very best he could do,” Francavilla says. Francavilla was awarded Trial Lawyer of the Year by the Consumer Attorneys of San Diego for his work on this and numerous other cases.
A Father’s Guidance Launches a Career Francavilla traces his drive and decision to become a personal injury attorney back to the guidance his father gave him. “My life was on a conveyor belt. I just moved along and followed the rules, without a major goal or direction,” Francavilla says. That changed when his father suggested a career in law. Francavilla says, “I was pretty good in debate class. I liked to argue and being the middle child in a family of three sons, I was always the mediator. I had some lawyer qualities and my father saw that. He gave me some of the most important advice of my life. He said you can give more than you take in this world and it’s a lot more satisfying. It’s important to care about
18
Attorney Journals Orange County | Volume 172, 2020
people. You can be in a position to help people who can’t help themselves. That is how you leave your mark.” Francavilla countered that he wasn’t the smartest guy in the world and possibly wasn’t up to an education in the law. “Dad said, ‘Yeah, but you have the passion and if you apply yourself, nobody can outwork you.’ Watching my dad often work two jobs to take care of my family and never giving up, was the impetus behind me wanting to become an attorney,” says Francavilla.
Getting the Low Down in Law School He initially got into the four-year evening program, but the day before classes started, a slot in the three-year day program opened up and Francavilla grabbed it. Francavilla still had concerns about whether he could cut it. During his first semester he received the lowest grade in the class in Contract Law. He went directly to the contract professor’s office with the intention of asking how to improve his efforts. Before Francavilla could say a word, the professor told him, quite seriously, that he might not be cracked up to be a lawyer based on his poor performance. In a scene right out of the law school movie, The Paper Chase, the professor even suggested that Francavilla go back to Admissions to see if he could get some of his money back and go on and do something else. “I refused to let him decide my fate. I managed to graduate in the top half of my class—a success, yet nothing to write home about, passed the bar on my first try, and got a job as an insurance defense lawyer right out of the box. My goal then was to find work as a plaintiffs personal injury lawyer representing individuals,” he says.
A Passionate Advocate and Trial Lawyer “I love people. I love being around people and getting to know their background and what makes them who they are. These qualities and personality traits are probably my greatest assets as a trial lawyer. They serve me well not only by helping me to get to know the people I represent, but in talking to juries. I feel like I have an ability to relate to everybody and show I care.
I love people. I love being around people and getting to know their background and what makes them who they are. “I’m also not afraid to do the hard work. I owe that to my dad and the human beings I represent. I fight until the end. To use a sports analogy, I never take a play off. I never think I’ve made it. I’m only as good as my last case. I never let up because I have to know I have done everything in my power to win, everything in my power to get fair and reasonable compensation for the people I represent. We go up against some of the best lawyers in San Diego, in California and sometimes the country. I have to be ready to give my all in every situation, to never coast. Fight to win within the bounds of ethics,” Francavilla says. The firm handles a lot of catastrophic personal injury cases. Francavilla says, “Our opponents are usually powerful and have the legal and financial backing to put up a fight. Most people don’t have the type of legal and financial resources to go against defendants like these. When we take on a client, our fees are contingent on if we win.” Sometimes the firm incurs hundreds of thousands of dollars in expenses trying to win
a case. As a businessman Francavilla realizes that if the firm doesn’t win, they’re out that money. Yet he would not have it any other way. “The people we represent have had their lives and the lives of their families ripped apart by the negligence of powerful entities that need to be held accountable. We are often their only hope for a better tomorrow,” he says. Francavilla is not intimidated by the odds. “I like these challenges. I am not afraid of any of the lawyers or firms I go up against.” “Thorough preparation is essential in a relentless pursuit of justice. We prepare every case as though it is going to trial. That is how I can get fair and reasonable compensation for the people I represent. Also, the fact I have a winning trial record and have demonstrated that I can deliver substantial and fair verdicts at trial lets my opponents know I am able to repeat those results in the courtroom time and again,” Francavilla says.
A Focus on a Special Group Francavilla and his wife of 18 years, Carla, have two sons, Zach (14) and Dominic (10). He is very active in his sons’ lives, especially in sports and fitness activities. The boys are talented basketball players and love the game. Francavilla coaches his kids’ basketball teams. The family are big Lakers fans and attend as many games as possible. Francavilla is an active runner and enjoys weight training. His experience many years ago as an amateur racing car driver ties in nicely with Zach’s interest in go-kart racing. Francavilla also discovered an interesting and rewarding way to involve his sons in his career. The firm conducts a lot of jury focus groups. He says that some of his best focus group information comes from his two sons. When discussing the facts of his cases with his boys, they often provide valuable insights. For example, in a case where he had to prove that
Team members (from left to right): Mary Jo Cunningham, Robert J. Francavilla, Carla Francavilla, Meagan L. Verschueren, Adam B. Levine, Christina Slomanson
© Bauman Photographers
Family: Carla, son Dominic (age 10), Robert and son Zach (age 14)
Contact Robert J. Francavilla Casey Gerry Schenk Francavilla Blatt & Penfield LLP 110 Laurel St. San Diego, CA 92101-1486 (619) 238-1811 www.CaseyGerry.com
20
Attorney Journals Orange County | Volume 172, 2020
© Bauman Photographers
EXPERIENCE
a machine had mangled the hand of their client, it was a manager, or someone authorized by the manager who had removed the machine’s safety guard. The firm needed witnesses to find out if the manager had ever walked through and seen the unguarded machine. Zach quickly asked if the company had video cameras in the workplace. “I hadn’t even thought of that. They always give me a cut-to-the-chase assessment of the case and how I should approach it. They keep me from getting bogged down in the weeds, which I sometimes do. Plus, it’s fun and provides real quality time with my boys,” he says. The bottom line in his approach to family, his career and his clients is constant. “If I can make a little part of this world better by raising good boys, loving and respecting my wife and improving the life of someone who through no fault of his own has suffered a tremendous loss, then I’ve gone a long way toward fulfilling what I believe is my life purpose.” n
» EDUCATION
• B.B.A. University of San Diego 1983 • J.D. University of San Diego 1980
» HONORS AND AWARDS
• 2019–2020 Lawdragon 500 Leading Plaintiff Consumer Lawyers • 2008–2020 Best Lawyers in America • 2007–2020 San Diego Super Lawyers • Robert J. Francavilla Named One of SD Metro Magazine’s Best Attorneys for 2017 • 2016 Consumer Attorneys of San Diego Trial Lawyer of the Year • Consumer Attorneys of San Diego’s Outstanding Trial Lawyers Award—SEVEN TIME WINNER • 2015 Top 25 Plaintiff Lawyers, L.A. Daily Journal, • 2014 Lawyer of the Year, Products Liability Litigation/ Plaintiffs, Best Lawyers • 2012 50 People to Watch in 2012, San Diego Magazine • 2012–2013 Top Attorneys, San Diego Daily Transcript • 2010 Top 50 San Diego Super Lawyers
» ASSOCIATIONS & MEMBERSHIPS
• State Bar of California • American Association for Justice (AAJ) • Consumer Attorneys of San Diego (Board of Directors, 1995–1999) • Consumer Attorneys of San Diego (Executive Board Member 2000–2005) • Consumer Attorneys of San Diego (President–2005) • Consumer Attorneys of California (Member, Board of Governors, 1998) • American Board of Trial Advocates (ABOTA)
We Do What’s Right for Our and Your Referred Clients IRVINE’S PREMIER FAMILY LAW FIRM • DIVORCE • SEPARATION • CHILD CUSTODY • CHILD SUPPORT • CHILD VISITATION • DOMESTIC VIOLENCE • RELOCATION
• RESTRAINING ORDERS • PATERNITY • POST JUDGEMENT MODIFICATIONS • ASSET & DEBT DIVISION • SPOUSAL SUPPORT & ALIMONY
GENEROUS REFERRAL FEES PAID At Sullivan Law & Associates, we are dedicated to doing the right thing and taking care of our clients, first and foremost. We understand what your referred clients are going through and strive to use our experience in this complex field to provide the best possible representation. Our Irvine attorneys are committed to excellence in every case we take on. Led by Richard Sullivan, a family lawyer with 40 years of legal experience, our team is here to deliver effective solutions by addressing every need and concern.
1920 Main Street, Suite 250 | Irvine, CA 92614 | (949) 590-8100 | Sullivan-Law.com
Law Firm Strategies and Economic Turmoil by Roger Hayse
T
he economic turmoil driven by the coronavirus has impacted virtually every law firm—some more significantly than others. Unfortunately, the pain has only begun for many. The demand for many transaction related practices is likely to be off for an extended period, and though most expect demand for litigation services to be steady, the ability of the court system to support the pre-virus level of activity is questionable. In addition, funding litigation may prove to be a challenge in the near term for many litigants. As law firm leaders seek insights to developing strategies for this reality, I recommend a report from McKinsey and Company, published a few days ago. The report—COVID-19: Implications for law firms—includes valuable perspectives. What to do. Although it is difficult to predict the actual decline in demand, firms can control how they respond to the decline. The following thoughts may provide some relief as your firm works on developing responsive strategies for the long term. Realization. Virtually every firm can improve time-entry, billing and collection processes. Improvement in these areas can soften the impact of the decline in demand. The current crisis provides an opportunity to get everyone on-board with strengthening performance in these areas. Client communication. If your firm does not have a proactive client communication/interview process, now is the
22
Attorney Journals Orange County | Volume 172, 2020
time to implement one. It doesn’t have to be sophisticated; but it does need to include direct communication between the client and either a firm leader or one of the attorneys principally responsible for the relationship. A robust client communication strategy includes both, and provides insight into possible opportunities while deepening the existing relationship. Internal communication. During any crisis, visible leadership that communicates frequently and directly is key to maintaining stability and preventing a run on the bank. Wise leaders find a way to strike a proper balance between reality and optimism. Transparency and vision are keys to maintaining the firm’s trust. Labor reallocation. For multi-practice firms, aggressive reallocation of personnel to areas of greater demand is a difficult but realistic option. Billing rates may need to be adjusted and some time may need to be written off; but to the extent firm talent can be moved from slow areas to those in greater demand, it should be explored. n Roger Hayse has spent more than 30 years closely advising law firm management and legal industry service providers. His career is highlighted by consistently providing the counsel and leadership critical to successful law firm transitions. Roger is a frequent writer and speaker, author of the 2002 book “Law Firm Strategy”, and co-author of the Hayse LLC Blog. Learn more at www.haysellc.com.
98% Success Rate
No recovery, no fee.
AGGRESSIVENESS & RESULTS We have recovered over $100 million for clients • Vehicle Accidents • Wrongful Death • Dog Bites
• Premises Liability • Construction Accidents • Spinal Cord Injury
• Brain Injuries • Medical Malpractice • Elder Abuse and Neglect
5.0 Average Rating
NEWPORT OFFICE 3300 Irvine Ave. Ste. 225 Newport, CA 92660 P 949.3361530
• Police Brutality • Defective Products • Pharmaceutical Injury
Referral Fees Paid RIVERSIDE OFFICE 11801 Pierce St. Ste. 200 Riverside, CA 92505 P 951.329.9466
LA OFFICE 601 S Figueroa St. Ste. 4050 Los Angeles, CA 90017 P 310.421.8009
TEMECULA OFFICE 41593 Winchester Ste. 200 Temecula, CA 92590 P 951.595.8221
877.590.0080 duquelaw.com
The PPP Litigation Wave Is Coming Anticipated “Qui Tam” Lawsuits Under the False Claims Act by Phillip S. Bixby
M
any businesses and other borrowers, such as nonprofit organizations, that received Paycheck Protection Program (PPP) loans are now several weeks into disbursing their PPP loans for payroll, mortgage or lease payments, and utility payments. Businesses submitted applications to obtain their PPP loans in which a representative of the business made several certifications, including a certification that the loan was “necessary to support ongoing operations.” At some point in the future, many of these businesses will attempt to have some, or all, of the loans forgiven. Throughout this process, these businesses face exposure, including exposure to their own employees, some of whom may file “Qui Tam” lawsuits against their employers alleging violations of the False Claims Act. Each business participating in the PPP should be aware of the risk and take steps to prevent or prepare for such potential lawsuits.
The PPP and the Certifications Made by Small Businesses to Secure Loans In response to the COVID-19 pandemic, congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act is the largest emergency stimulus package in history, devoting trillions of dollars’ worth of government funds to address the devastating impact of COVID-19 on the U.S. economy through direct impacts of the disease itself as well as self-induced damage to the U.S. economy caused by shutdowns, shelter-in-place restrictions, and quarantines. The CARES Act includes a myriad of provisions to boost the economy, including the PPP, which offers billions of dollars of loans forgivable under certain conditions. To secure PPP loans, businesses were required to submit “Borrower Application Forms.” These forms included various “Certifications and Authorizations” on the second page of the application packet. It is certainly likely that many applicants, in the rush to secure PPP loans, glossed over these certifications. However, several of these certifications may expose those businesses to litigation exposure for possible allegations of fraud or false claims.
24
Attorney Journals Orange County | Volume 172, 2020
Relevant Certifications under the PPP Applicants for PPP loans certified, among other things, that: • the applicant is eligible to receive a PPP loan. • the loans will be used only for the business-related purposes set forth by the PPP. • “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant;” • and the funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments as specified under the PPP, and that if the funds are knowingly used for unauthorized purposes, the applicant may be liable for federal law violations punishable by, among other things, substantial fines and possible prison sentences. The PPP Application requires that the certifications be made “in good faith.” On May 13, 2020, the Small Business Administration (“SBA”) responded to frequently asked questions by declaring that any borrower, together with its affiliates, which received PPP loans with an original principal of less than $2 million will be deemed to have made the required certifications concerning the necessity of the loan request in good faith. The SBA further stated that if it determines that a borrower “lacked an adequate basis for the required certification concerning the necessity of the loan request,” the SBA will seek repayment of the loan and will inform the borrower that no forgiveness will be forthcoming. Full repayment of the loan will preclude “administrative enforcement or referrals to other agencies” regarding the certification. This updated guidance from the SBA should significantly reduce a business’s exposure for its certifications regarding “necessity of the loan,” but certification exposure will remain as to the business’s certifications regarding loan eligibility and how loan proceeds are to be spent. Most businesses applying for, and accepting, PPP loans are doing so with the hope and possible expectation that all or most
of the loans will be forgiven, turning the loans essentially into grants. After a business has distributed its PPP funds and when it seeks loan forgiveness, it will be required to submit paperwork documenting what the money was spent on. Businesses making distributions of PPP loans are hopefully keeping meticulous records of those distributions. Such record-keeping will hopefully assist in obtaining substantial loan forgiveness. Such recordkeeping might also assist in defending against future fraud claims.
The False Claims Act and Qui Tam lawsuits Future fraud claims may come from individuals, including one’s own employees, in the form of “Qui Tam” lawsuits seeking recovery under the False Claims Act (FCA), 31 U.S.C. § 3729.
What is the FCA? The FCA was enacted during the Civil War in 1863 following concerns that suppliers of goods to the Union Army were defrauding the government. The FCA provided that false claims to the government were liable for double damages plus further penalties. The statute has been repeatedly amended, including amendments in 1986 allowing for treble damages and raising the limits of further penalties. Violations of the FCA require knowledge of the falsity of claims made to the government, which can include actual knowledge, deliberate ignorance of the truth or falsity of the information, or reckless disregard for the truth or falsity of the information. The FCA definition of “claims” includes programs such as the PPP, in which the Federal Government is requested to reimburse the contracting party.
What is a Qui Tam lawsuit? The FCA allows a private person to file suit for violations under the FCA on behalf of the government. A suit filed by a person on behalf of the government is known as a “Qui Tam action” and the person bringing the action is referred to as a “relator.” The action is filed with the court under seal and is provided to the local U.S. Attorney. The action is initially sealed for 60 days, allowing for the government to investigate the allegations in the action. The government then must notify the court whether it will “intervene” in the action, or decline to take over the action, in which case the relator can proceed without the government. If the government intervenes in the Qui Tam action, it takes over primary responsibility for pursuing the action, including the authority to dismiss or settle the action.
Why would an individual bring a Qui Tam lawsuit under the FCA? An individual may choose to initiate a Qui Tam lawsuit against a business, asserting that the business committed FCA violations regarding PPP loans. This could include allegations including, but by no means limited, to the following: • the business was not eligible for PPP loans. • the business did not spend the PPP money as required or made inaccurate filings about such expenditures; and/or
• the loan was not “necessary to support the ongoing operations of the applicant, or that the small business had recourse to other moneys.” Why would an individual make such allegations? The most obvious reasons might include: • To secure a financial reward. If the government intervenes in the Qui Tam action, the relator is entitled to receive between 15 and 25 percent of the amount recovered by the government. If the government declines to intervene, the relator’s share is increased up to 30 percent. • To obtain “whistleblower” status and to protect against termination or other negative employment actions. The FCA protects employees, contractors, and agents who engage in protected activity from retaliation in the form of their being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment.” 31 U.S.C. §3730(h)(1). • To “get back at” or to otherwise punish a business receiving PPP loans for a variety of reasons. • To take action against perceived wrongdoing out of a sense of moral righteousness or obligation.
What can businesses do to protect against this potential litigation? At this point, businesses have already made their “good faith” certifications in seeking PPP loans. Businesses will, in the future, be making further certifications or other representations in seeking possible forgiveness of those loans. To minimize the risks of a successful Qui Tam lawsuit under the FCA, businesses should be focusing on meticulous record-keeping of PPP expenditures and should carefully assess those expenditures for which it seeks loan forgiveness. It is not clear to what extent PPP loan forgiveness requests will be reviewed, but businesses should plan for close and careful scrutiny, particularly if the loan exceeded $2 million. Each payroll expense, mortgage or rent payment, and utility payment must be carefully documented. When the time comes to seek loan forgiveness, a business will hopefully be in a strong position to make such a request, having spent PPP funds only on eligible expenses and having documented such expenditures meticulously. Handling the PPP loan and forgiveness request properly and documenting all aspects of the loan’s use will put businesses in a strong position to prevent, or defend against, any potential Qui Tam lawsuits alleging fraud. Such proper handling of the loan, combined with the SBA’s recent guidance essentially presuming “good faith” for certifications regarding loan necessity, will put businesses in a strong position to prevent, or defend against, any potential Qui Tam lawsuits alleging fraud or other wrongdoing. n Phillip S. Bixby is a civil litigation attorney at Verrill Dana LLP. His practice focuses on aggressive and creative problem-solving to put his clients in the best possible position at alternative dispute resolution or trial. Learn more at www.verrill-law.com. Attorney Journals Orange County | Volume 172, 2020
25
How a Single Sentence Can Drive More Response to Your Marketing by Tom Trush
I
t’s among the most frustrating challenges in business... Persuading prospects who know they should take you up on your offer—but don’t follow through for some reason. Maybe it’s a money situation ... a lack of information ... a trust issue ... or possibly they’re just frustrated with part of your sales process ... Whatever the case, adding one piece of social proof to your marketing can help fix this problem. Now, I’m not talking about something as common as a testimonial, case study or review. What I’m sharing with you today targets a far deeper desire. In fact, it hits at the heart of three fundamental human motivations (as detailed by Steve J. Martin in The Small BIG: Small Changes That Spark Big Influence): 1. To make accurate decisions as efficiently as possible 2. To affiliate with and gain the approval of others 3. To see oneself in a positive light You see, our brains are wired to follow the crowd. So, mimicking the actions of others is often seen as a shortcut to good decisions and acceptance (see motivations #1 and #2). As such, it’s critical that you explain in your marketing how many others similar to your target audience already took action on your offer. Of course, you must be honest. Please don’t fabricate numbers to create fake appeal. Doing so only leads to lost credibility. One example Martin shares in his book comes from Britain’s Her Majesty’s Revenue & Customs, the agency tasked with collecting the country’s taxes. Martin and his team were brought in to help reduce the number of late payers. Previously, most efforts focused on repeated threats of fines and legal action. Martin and his team, though, tapped persuasive science by simply adding one sentence to the agency’s standard letter. It told recipients of the large number of citizens who paid their taxes on time.
26
Attorney Journals Orange County | Volume 172, 2020
This single line led to collecting 86% of the outstanding debt. For comparison, in the previous year, just 57% of the outstanding debt was collected. One sentence that explained what most others are doing literally brought in
“One sentence that explained what most others are doing literally brought in billions in overdue revenue.”
billions in overdue revenue. Incredible, isn’t it? You may have seen a similar concept carry over to hotel towel use. After all, how many times do you see signs suggesting you do the environment a favor and reuse your towel? Well, researchers Dan and Chip Heath from Stanford University discovered a way to get more people to take this action. The change in behavior only required (again) a single sentence. In their study, they increased towel reuse by 26% with a sign that said: Most guests at the hotel reuse their towels at least once during their stay. Notice again how this sentence tells what many others are doing. So, think about it ... How can you incorporate the actions of others into your offers? n Tom Trush is a Phoenix, Ariz.-based direct-response copywriter who helps entrepreneurs and executives craft lead-generating marketing materials. Pick up his latest book, “Escape the Expected: The Secret Psychology of Selling to Today’s Skeptical Consumers,” for free (just cover shipping) at www.writewaysolutions.com/blog/free-book-offer.
Identifying and Correcting Misconceptions Clears Your Prospect’s Head for Your Marketing Message by Trey Ryder
H
ave you ever gone hiking on what you thought was a flat, easy trail only to suddenly find yourself stepping over rocks, ducking to avoid tree limbs, and pushing aside underbrush and thorns? You face the same obstacles when you try to deliver your marketing message. For years, your prospect has believed stories that aren’t true, bought into silly myths and listened as friends told tall tales with exaggerated facts. Then you come along with a message about how you can help your prospect. Here’s the problem: His mind is so full of misinformation that you have almost no chance of getting through his mental underbrush and thorns. For example: • If your prospect has the misconception that he doesn’t have a problem, then he won’t likely take action to correct it. • If your prospect has the misconception that his problem isn’t big enough to worry about, then he won’t likely seek a solution. • If your prospect has the misconception that his problem will correct itself over time, then he will probably ignore it. • If your prospect has the misconception that his problem cannot be solved, then he won’t keep his eyes open for a way out. • If your prospect has the misconception that any solution is worse than his problem, then he will discount suggestions from people who offer answers. • If your prospect has the misconception that your services cost more than he can afford, then he won’t likely call you. Look at it this way: If you can say to yourself, “My prospects have a lot of misconceptions about (your subject). If they had correct information, many more people would hire me,” then you have the opportunity and the need to set the record straight. You do this by writing a message that identifies and corrects misconceptions. You may have seen the article I offer called “13 Marketing Misconceptions That Cost Lawyers a Fortune.” The title is attractive (if you have an interest in lawyer marketing) because it identifies incorrect information and adds that the result of bad information can prove costly. Further, because it mentions lawyers, it identifies my target audience. This increases response from attorneys and screens out others who think this information won’t apply to them. 28
Attorney Journals Orange County | Volume 172, 2020
I suggest that you compile a list of misconceptions that you know prospects have that keep them from solving their problem or hiring you. Your list should include misconceptions about all of the following: • Your field of law. • Your prospect’s problem. • Your recommended solution(s). • Your services. Make sure you identify as many as you can because all it takes is one misconception and your prospect won’t call you. Then, after you create your list, write your handout like this: • Identify the misconception. • State in absolute terms that it’s not correct. • Describe in clear language what is correct and what you recommend. For example, here’s one misconception from my “13 Marketing Misconceptions That Cost Lawyers a Fortune”: Misconception #8: You should mail your newsletter to clients and prospects quarterly. Not even close! In today’s over-advertised society, you’re fortunate indeed if you can create an impression in your prospect’s mind. If you hope to make your impression stick, you should send your newsletter at least monthly. The more often you mail to prospects on your mailing list, the more new business you will likely attract. The frequency with which you deliver your newsletter is much more important than its size. Make sure the title you choose will seize your prospects’ attention. Then offer your new educational handout so you attract inquiries from the target prospects you want to reach. When you clear up common misconceptions, your credibility increases and you attract prospects who, without this information, might never have understood their problem and the solutions you can provide. n Trey Ryder specializes in Education-Based Marketing for Lawyers. He designs dignified marketing programs for lawyers and law firms in the United States, Canada and other English-speaking countries. Trey works from his offices in Payson, Arizona and Juneau, Alaska. To read more of Trey’s articles, visit the Lawyer Marketing Advisor at www.treyryder.com.
Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.
To schedule, contact Christopher Schuster: (619) 231-1323 or christopher@adrservices.com
Organized, succinct summaries of EVERY new published California civil and family law case, published every month for $24.99 a month. Subscribe at californiacasesummaries.mykajabi.com
Attorney Journals Orange County | Volume 172, 2020
29
We Know Marketing Like You Know the Law
Let us “do the time” to get your project right! • Writing for the layperson • Putting together a presentation • Developing a marketing strategy • Sprucing up your website
Personal attention. Powerful results. Zero attitude.
• Designing an ad, booklet, flyer or brochure • Establishing a better logo, mission statement or tagline
215-550-1435 • penn-creative.com
PRSRT STD U.S. POSTAGE
PAID
Post Falls, ID PERMIT NO. 32
