Attorney Journals, Orange County, Volume 184 by Attorney Journals

ORANGE COUNTY

Volume 184, 2021 $6.95

Legal Business Development Lessons From … Seinfeld?

Steve Fretzin

Not All Partners Are Created Equal: A look at Partner Compensation

Shari Davidson

Preparing for Downsizing: A Career Guide for Lawyers

Kimberly Lerman

Using Internet Research to Get to Know Your Prospective Jurors

Top 4 Tips When Creating Your Business Continuity Plan

Miles Hutton

Katie Albers

7 Terrible Mistakes Lawyers Make in Arbitrations

David Taylor

3 Ways to Use Content to Create Relationships with Your Referral Network

Lindsay Griffiths

Attorney of the Month

Candice S. Klein

Chang | Klein, LLP & Athea Trial Lawyers Serving Orange County

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2021 EDITION—NO.184

TABLE OF CONTENTS 6 Using Internet Research to Get to Know Your Prospective Jurors by Miles Hutton

8 Top 4 Tips When Creating Your Business Continuity Plan by Katie Albers

12 Legal Business Development Lessons From … Seinfeld?

by Steve Fretzin EXECUTIVE PUBLISHER Brian Topor

ATTORNEY OF THE MONTH

16 Candice S. Klein, Chang | Klein, LLP, Hermosa Beach & Serving Orange County Dissecting the Law with Commitment and Balance

EDITOR Wendy Price CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson

by Dan Baldwin

PHOTOGRAPHY Chris Griffiths

22 Seven Terrible Mistakes Lawyers Make in Arbitrations

STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Katie Albers Shari Davidson Steve Fretzin Lindsay Griffiths Miles Hutton Kimberly Lerman David Taylor 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 email or postal mail.

by David Taylor

24 Preparing for Downsizing: A Career Guide for Lawyers by Kimberly Lerman

26 Three Ways to Use Content to Create Relationships with Your Referral Network by Lindsay Griffiths

28 Not All Partners Are Created Equal: A look at Partner Compensation by Shari Davidson

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. Not affiliated with any other trade publication or association. Copyright 2021 by Sticky Media. All rights reserved. Contents may not be reproduced without written permission from Sticky Media. Printed in the USA

Using Internet Research to Get to Know Your Prospective Jurors by Miles Hutton

ith the rise of social media, there is now a great deal of public information existing on the internet about many individuals. As part of jury selection, this information can be gathered and analyzed to provide attorneys with a much fuller, richer picture of a prospective juror than would be attainable through voir dire alone. This article guides you through how professional jury consultants, such as those at DecisionQuest, can aid the process.

CAN’T HURT TO ASK The best way to maximize a thorough background internet search on each prospective juror is by getting the jury pool list several days in advance. Therefore, it is important to ask the judge or the court clerk if he or she will be willing to provide this list to you early.

GO BEYOND SOCIAL MEDIA Social media sites such as Facebook, Twitter, LinkedIn, Instagram, and YouTube, along with a cursory Google search, can provide valuable information on prospective jurors. However, it’s important to go further to uncover more potentially useful information that exists on the web about a particular individual. Searches can be conducted on public websites that give information about a person’s family members, political party registration and campaign contributions. Public websites can also be used to obtain pictures of the person’s home and valuation of his or her property. Many trial consultants then supplement the information found publicly on the internet through an online subscription database that gives information about bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings.

AVOID INADVERTENT COMMUNICATION The ethical rules governing attorneys’ conduct prohibit ex parte communications with prospective jurors and members of a sitting jury. Bar associations around the country have expressed different opinions as to whether the generation of an automated message to the prospective juror because of an attorney or jury consultant searching him or her constitutes an ex parte communication. Regardless of the rules in a particular jurisdiction, it is better to avoid the ethical quandary of a consultant inadvertently sending a prospective juror such a message. To avoid this possibility, research should be conducted anonymously and use privacy settings so that the prospective juror never knows that his or her information has been searched. 6

Attorney Journals Orange County | Volume 184, 2021

THINK AHEAD Before conducting searches, full juror profiles should be created for both the plaintiff and defense, i.e., a list of the demographic, experiential and attitudinal characteristics that are indicative of whether a person will likely be receptive towards either the plaintiff’s or defense’s case. Once these profiles are created, lists of topics to be on the “lookout” for can be created. These “positive” and “negative” factors produce insight in terms of whether each fact found is indicative of someone who will likely be more receptive to your side or the other side’s arguments at trial. It is also useful to be on the alert for characteristics that indicate which prospective jurors will likely lead during deliberations such as those individuals with advanced degrees, management positions at work, jobs that involve public speaking or those with expertise with issues involved in the case or prior jury service.

“FILTERING” THE SEARCH RESULTS When finding information about a prospective juror on the internet, it is typically not useful to indiscriminately save everything. As a better alternative, jury consultants typically create a summary sheet for each prospective juror, which contains only the information that is judged to be useful for jury selection based on the juror profiles that were created prior to conducting the searches. At the clients’ request, jury consultants can analyze the internet search results (along with any information provided on a written juror questionnaire, if applicable) to provide an overall rating of the juror in terms of the likelihood of him or her being receptive to your case arguments.

CONCLUSION If done improperly, internet research can turn out to be a “headache” that takes up a lot of your time from reviewing the unorganized voluminous information found without much positive gain. Performed correctly, internet research on prospective jurors can greatly enhance your chances of seating a jury that is receptive to listening to and appreciating your case arguments. n Miles Hutton is a Senior Consultant in DecisionQuest’s Boston office. Dr. Hutton works with high-profile clients on case evaluation, strategy development, venue studies and juror profiling. He has consulted a variety of cases throughout the country including insurance, contract, patent, securities, pharmaceutical liability, white-collar crime, antitrust, asbestos, and toxic tort matters.

Top 4 Tips When Creating Your Business Continuity Plan by Katie Albers

hether it be natural disasters, cybersecurity attacks, or global pandemics, workplace disturbances occur frequently and when companies least expect them. Disaster preparedness and business continuity plans (BCPs) have never held more importance, especially with the events this past year has offered. A wide variety of hazards can occur in the workplace, the most prevalent of which are natural disasters, human-caused, health, and technology-related disruptions. Therefore, companies should be continually monitoring their continuity plans and understand where their risks lie in the case of an unexpected event to better avoid, reduce, and mitigate the impact and loss.

Value of Business Continuity Plans BCPs are valuable because they focus on proactively planning, developing, testing, and implementing processes and procedures that aim to maintain business operations in the event of a disruption. BCPs define timely and controlled methods to prevent and recover from losses resulting from potential threats such as natural disasters or cyberattacks. It’s important that companies place value in constantly monitoring and updating their BCP so when interruptions do occur, a company can handle them in a rapid, cost-effective, and consistent manner. The energy industry is particularly vulnerable to unanticipated events. For example, the cold snap that descended on Texas in February reduced crude oil production by more than 1 MMbbl/d. Natural disasters such as Hurricane Harvey in 2017 impacted more than 336,000 customers due to outages reported by leading utility companies. Natural disasters shouldn’t be the only hazard companies prepare for. Recent health and technology-

Attorney Journals Orange County | Volume 184, 2021

related continuity scenarios created prolonged issues as well. The COVID-19 pandemic has caused unpredictable trends in demand for oil, as well as fluctuating price indexes, and the recent cyberattack on Colonial Pipeline halted operations sending shockwaves across the entire energy supply chain from the U.S. Gulf Coast to the Northeast. Incidents like these can have lasting impacts if the disaster isn’t handled in a timely and orderly way. That’s why having an established BCP can help save companies time and money while also preserving the brand reputation and customer satisfaction. The following are four helpful tips when creating an effective BCP:

 Identify Critical Pain Points and Risks A good first step when creating a BCP is to identify areas within your company that are most at risk if a major unforeseen circumstance were to occur tomorrow. If the company has an existing enterprise risk management system, this would be a good place to look for data when identifying risks. Conducting surveys is also a great way to gain information and insight on where employees believe weaknesses lie within the company. Understanding where these critical pain points lie, the impact they would have on certain processes and personnel if they were interrupted, and the total impact it would have such as loss of time, money, and data are important factors to consider when building your BCP. When a disaster occurs, the organization isn’t going to be able to run the business as normal. Organizations need to prioritize critical functions such as protecting the revenue cycle, supply chain efficiencies, external financial reporting, and month-end close. Calculating these risks

and prioritizing areas that would affect the company most is the best place to start when deciding how to approach your recovery strategies.

 Create a Plan with Involvement from all Departments To create a successful BCP, it’s recommended that leads from each department of the company come together to collaborate on the continuity plan. Each department lead should highlight areas they believe are at most risk within their specific business unit and communicate these to the group. Having a space to explain their own risks and how they could affect other parts of the company will create an awareness of where crucial dependencies exist within your organization. For example, the accounts payable and finance team will benefit most from the BCP if they create the plan together. By working together, both teams understand their critical processes, how they are interdependent, and the approach they will take in the event of a disturbance. Encouraging collaboration and communication between departments when building a BCP will create a sense of teamwork, interdependence, and strengthen the overall continuity plan.

 Integrate the Plan with Proper Training and Testing Once the plan is created, it’s important that all employees are made aware of the BCP and what their duties would be in the event of an unforeseen disruption. The plan should be simple and clear for the ease of employee understanding. During a disaster, business operations aren’t running normally so if the continuity plan is overly complex, it will ultimately add to an already chaotic situation. Integrating the plan requires proper training at all levels of an organization. The goal is to have a collective understanding and preparedness of specific actions to take during an unexpected event. Training should occur as part of the onboarding process after creating the continuity plan and should be reviewed at least once a year by all employees. Along with proper training, employees should have easy access and know where to find BCP documents when required. Keeping physical and electronic copies within each department allows team members to quickly review roles, responsibilities, and tasks in case the main server is down.

Testing is also an important step when creating a sustainable continuity plan. Initial and periodic testing should be performed based on the specific needs of the business. Testing the continuity plan helps validate the effectiveness of the BCP and identifying problem areas within the organization in the event a disruption occurs. Rehearsals, table-top exercises, and simulations further create valuable opportunities for cross-functional teams to step through the plan together, practice processes, and reinforce communication channels.

 Consistently Update and Monitor the BCP Companies should be consistently monitoring the business and operating environment looking for changes that necessitate an update to the BCP. Beyond yearly updates, other events such as the implementation of a new enterprise resource planning (ERP) or energy trading risk management (ETRM) system or a reorganization of one or more departments are good examples of triggers for when companies should update the BCP. Consistently checking in with identified department leads and understanding emerging risks across the organization will help proactively maintain the health of the continuity plan.

Summary Business continuity and disaster planning have never been more important. With continuous economic, social, and environmental changes, it’s important that businesses expect the unexpected and have an established continuity plan for when disturbances eventually occur. Having a methodical and sustainable plan, ensuring proper training throughout the organization, and seeking advisory help are all crucial to surviving and thriving business operations in an uncontrollable environment. n Katie Albers is a Consultant in Opportune LLP’s Process & Technology group based in Houston. Prior to joining Opportune during her collegiate studies, Katie gained experience in international brand relations and business marketing while serving as a Digital Product Intern at Hilton International in Dallas and an International Marketing Intern at Vestri in Florence, Italy. Katie graduated from the University of Oklahoma with a B.S. in Supply Chain Management and a minor in Marketing.

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Attorney Journals Orange County | Volume 184, 2021

Legal Business Development Lessons From … Seinfeld? by Steve Fretzin

don’t know about you, but I’m a huge Seinfeld fan. I’ve probably seen each hilarious episode four or five times. Even with the massive amount of shows being pumped out of Netflix, Amazon Prime and countless others, I haven’t seen a show that literally makes me laugh out loud as much as Seinfeld (Big Bang is a close second). So, you might be wondering, what does that have to do with business development as a lawyer? Here are five funny situations or lines from Seinfeld that I have miraculously turned into a teachable moment.

Seinfeldism #1: The Telemarketer One of the best lines or scenes in the history of television is when Jerry gets a phone solicitation at home. We all know how annoying and disruptive they are, so we usually just screen them out or hang up immediately when they start talking. Jerry does one better. He tells a telemarketer that he’s busy now but would be happy to call the solicitor later when “he’s” at home. When the solicitor objects and says he doesn’t want to be disturbed at home, Jerry says, “now you know how I feel” and hangs up on him. NICE! The takeaway on the BD front is how unwanted selling, is, well, unwanted. My suggestion to all attorneys is to STOP convincing, selling and pitching. Start off on the right foot by demonstrating your expertise and differentiation in the marketplace by providing value to others through effective social media posts, videos and articles. Then, when you do have an opportunity to sell, don’t do it. Focus on building relationship, asking questions, listening and empathizing with your new prospective client. You’ll be amazed at how “bought in” he or she will be.

Seinfeldism #2: The Contest If you haven’t seen this episode, you are missing out on TV gold! Jerry and his gang have a contest to see who can hold out the longest… . While I’m not able to share the specifics of the contest in this “G-rated” article, feel free to look it up. The “ah-ha” moment here is to engage your competitive mindset with others to achieve a goal or accomplishment.

Attorney Journals Orange County | Volume 184, 2021

This could be a group or the partner in the office next to you. Have a competition on who can complete their business/ marketing plan for 2021 first or who can get the bigger bonus off of new originations in 2021. Even if you’re a solo, you can find another lawyer who may be willing to compete with you. Whatever the case, getting others to share in something fun and financially rewarding can’t be a bad thing.

Seinfeldism #3: Yada, Yada, Yada When George’s girlfriend mentions that her ex-boyfriend was over the other night and “yada, yada, yada,” she was tired the next day, he loses his mind. This is another Seinfeld gem that not only displays George’s insecurities, but shows how people can gloss over the details to get to the end of the story without sharing the much-needed specifics. This is so relevant as we leave 2020 in the rearview mirror and approach 2021 with a specific and detailed approach to growing one’s law practice. Anyone can say, “I’m going to develop business in 2021 and yada, yada, yada, I’m sure I’ll have my best year ever.” All lawyers need to consider a written plan that outlines and details the specific actions that will lead to your best year ever. This doesn’t have to be an MBA 30-page novel, but rather a two-three pager that provides direction on a daily, weekly and monthly basis.

Seinfeldism #4: Elaine’s Crazy Dance I think everyone has a friend who is a terrible dancer. Maybe they know it or maybe not. In this episode, Jerry’s friend Elaine is seen dancing at a work party in front of her entire staff. What she doesn’t know is that she’s the worst dancer EVER! Obviously, the fact that she’s clueless about it makes this super funny. The take-away here is that you might be a terrible networker and not even realize it. There are still lawyers out there pushing business cards or aggressively asking for business without any thought of reciprocation or connecting the other party. I have found that in many cases, the lawyer doesn’t realize his/her skills are outdated or inappropriate. When I see a networker making these mistakes, I don’t immediately

discount them or toss them aside like yesterday’s Amazon box. It may be possible that with a little help, support and coaching, this person could turn things around. By the way, if you’re getting referrals from people without helping them in return, you might be the person I’m describing.

Seinfeldism #5: The Soup Nazi For you Seinfeld fans, I couldn’t leave you hanging. This is not only one of the best episodes, it’s also so crazy and ridiculous, you’ll never forget it. There’s a new soup take-out joint in the neighborhood and it’s the best (the best Jerry, the best!). There’s only one problem. The chef running the restaurant is very, very strict. This doesn’t end well for George, who asks for bread and thusly gets his soup taken away from him. “No soup for you!” exclaims the chef. Getting to the biz-dev takeaway, you must consider what you are willing to do to get your delicious soup or decide to go your own direction and find another great place to eat. From a legal business development point of view, there isn’t only one good way to develop business. If the method you’re trying isn’t working, then simply try something else.

Years ago, I was in a legal networking association. I found it to be dry, isolating and clannish. It didn’t take me too long to realize this wasn’t going to be enjoyable or beneficial to my business, so I bounced. There are dozens of ways to grow business as a lawyer, so don’t stay too long or feel there’s only one avenue to go down. My suggestion for 2021, focus on your low-hanging fruit. Make a list of your clients, top referral sources and best friends to meet up with and selflessly help connect them. They should reciprocate with a little coaching, which may lead to easy business for you. If you’re a fan of Seinfeld, I hope you enjoyed us sharing a couple of fun moments and takeaways together. If you’ve never seen it, give it a try and I hope it makes your belly hurt like it does mine. Either way, make 2021 your best year ever through proper planning, execution and follow through. n Steve Fretzin is a three-time author, host of the BE THAT LAWYER Podcast, and top business development coach for attorneys. For the last 16 years, he has helped hundreds of attorneys to double or triple their books of business. Many of his clients consider him to be “The Lawyer Whisperer.”

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Translating our clients’ injuries to a jury is critical. Instead of just talking about it, I’m able to visualize in understandable detail so that I can explain it to the judge or jury. It’s something that becomes a part of you. It’s no longer just reading about it in a textbook. It’s understanding how the muscles and ligaments work together and what it means for your client when they have suffered an injury. With a deeper understanding of anatomy, I’m able to describe for the jury what the loss is because they’re not used to hearing the facts in that personal a manner”, says Candice S. Klein, Founding Partner of Chang | Klein, LLP. Founded in October 2020, the firm specializes in finding compelling stories and causes in complicated, high-profile cases involving wrongful death, sexual assault and catastrophic injuries combined with a social justice element. Klein’s reference to visualization reflects her go-the-extra-mile commitment to client service. To better understand the nature of her clients’ injuries she is one of a small and select group of attorneys who have completed the UCLA Gross Anatomy Program for Litigators, a science-based program designed to teach enrolled attorneys human anatomy. The course is essentially the same as that for first-year training of medical students. Her group worked on weekends, learning about everything from orthopedic injuries to brain injuries in the most detailed and graphic manner possible. The course included detailed lectures and participation in the dissection of three cadavers. She has also scrubbed in to observe a back surgery to help a jury understand the process, how frightening, emotionally stressful, and how physically painful surgery can be for one of her clients. This client had a lumbar disc replacement and fusion surgery. “You learn a lot of things from books and articles, but until you actually experience it, it doesn’t make full sense. That’s how I learn. I’m definitely a visual learner. Participation in those medical procedures gives me a real edge in communicating the trauma my clients experience. I can do that with the necessary emotional power backed by accurate detail of the physical side of the case,” Klein says.

A N E A R LY E X PE R I E N C E A N D A N E A R LY CO M M ITM E NT TO TH E L AW Klein knew she would become an attorney from the age of six when she observed and became fascinated with the court proceedings during her mother’s divorce. “I have a clear recollection of sitting in the hallway with my mom while she was intimidated and unclear of what her rights were. I remember looking out at all the male attorneys in their gray suits in the hallway whispering among themselves. Even at that early an age, I wanted to know what they knew. Based upon that experience, I knew I wanted to be a lawyer. I wanted to be in a position to always help others when they were scared and at their most vulnerable,” Klein says. That early commitment stayed with her. She graduated from Southwestern University School of Law, Los Angeles, California, earning her J.D. in 1997. She started her legal career at Carpenter, Zuckerman & Rowley LLP, where she practiced for 17 years and became partner. She then moved to Panish Shea & Boyle LLP where she was a trial attorney for seven years. Klein is also a graduate of Gerry Spence’s prestigious Trial Lawyers College at Thunderhead Ranch in Wyoming. “I went to the ranch in Wyoming for three weeks and it was lifechanging. Most people who come back from the ranch will tell you the experience not only affects how you represent your clients, but it also affects your personal life. Every aspect. They get to the core of who you are and once you know who you are it’s easier to connect with other people. The better you know yourself, the better you can represent your clients,” she says. Even the COVID pandemic provided unexpected bonuses. She says the past year has created opportunities to step inside herself and decide her true passions and priorities. The fact that she could not go out, meant that she had to go in. Staying at home due to COVID allowed her to reflect and redirect her moral, spiritual, and mental compass.

Attorney Journals Orange County | Volume 184, 2021

There is so much injustice and pain in the world and my career has been dedicated to helping those who are suffering permanent and serious physical or emotional injuries.” — CANDICE KLEIN

“

“Being at home with my family helped me understand how important it was to nurture my personal life as much as my work life. There is so much injustice and pain in the world and my career has been dedicated to helping those who are suffering permanent and serious physical or emotional injuries. Reflecting on this new light, I decided to find a way to make a difference more effectively. In doing so, I found a business partner who shared that vision.” During her time at Panish, Shea & Boyle, she met her business partner, Deborah Chang. They developed a close relationship and in 2020 it was a natural progression for the two women to combine forces and start Chang | Klein LLP. It is said that timing is everything, and that sometimes in the direst of times, opportunity forces itself upon you. Those times and that opportunity arrived amid the worldwide COVID pandemic. This past year Klein has also become of counsel to the female powerhouse, Athea Trial Lawyers. Her work with Athea is proving to be highly rewarding and productive. “Athea unites the most successful women trial lawyers in the country all working in concert together for justice. This experience is important because it shows that women can have a successful career, can get great verdicts and can be as effective as anyone in the business. We need more women trying cases. Athea formed with a common important goal: to ensure that women trial lawyers succeed. The verdicts, success records, and leadership of the Athea Trial Lawyers speak volumes about the power of women in the courtroom and in the legal profession.”

C H A N G | K LE I N , LLP Chang | Klein is known for a relentless passion, as well as the use of the latest, cutting-edge technology coupled with beautiful, compelling visual graphics, which have helped obtain some of the highest record verdicts and settlements in the country. They find winning strategies where others cannot through innovative brainstorming and creative, outof-the-box thinking. Within a short period of time, they have become recognized by their peers as some of the top trial lawyers in America. One of their guiding principles is to prepare every case as if it is going to trial and they leave no stone unturned in the pursuit to get their clients the results they deserve and need. Some of Klein’s most sensitive cases have to do with women being sexually abused and sexually assaulted. The level of trust she creates with her clients is exemplified by the story of a woman who, due to a sexual assault, endured a tumultuous time in her day-to-day life. Klein successfully settled the case against the offending company, affording considerable compensation to her client which enabled her client to get the psychological help she needed. A year later, her client found herself in an emotionally challenging situation. In need of a friendly and trusted voice, it was Klein that she called in the

middle of the night who was able to comfort her and get her through that incident. Other clients readily agree. For anybody who has been through the legal system, you know that it's a mentally draining process. And for anybody who is new to this, just like I was, you want Candice on your team because it's tough. I was the type of client who needed her hand held the entire time. I asked many questions, had many moments of doubt, but it never seemed to bother Candice how many times I texted/called or emailed her. She was extremely responsive and put my priorities on the top of her list. If you're reading this and are need of an attorney, I would wholeheartedly recommend Candice and her wonderful team because they've changed my life.” —L.M., sexual assault victim Providing her cell phone number to each of her clients, Klein takes pride in building personal relationships with her clients and their loved ones, and they know that she is someone that they can trust and confide in during the ups and downs of litigation. Chang | Klein LLP is an all-female litigation firm including partners Deborah Chang and Candice Klein, as well as trial attorney Sarah Kim, a nurse attorney, Mary Ellen Whiteman, and of counsel, Bibi Fell. Chang | Klein LLP is affiliated with Athea Trial Lawyers LLP.

A LE A D I N G E X A M PLE O F LE A D I N G A BA L A N C E D LI F E Klein is determined to eradicate a prevalent misconception about the legal profession. “When I began practicing, I was told in no uncertain terms that to be a successful attorney, I

Candice with husband Shawn and son Griffin.

Attorney Journals Orange County | Volume 184, 2021

Contact Candice S. Klein Chang | Klein, LLP 44 Hermosa Avenue Hermosa Beach, CA 90254 (310) 300-1080 www.changklein.com

EXP ER I ENCE

would have to forget about living a balanced life. It was either the business or the family, but not both. That freaked me out. But I didn’t buy it. Women should not have to choose between being a good mother and a good lawyer. I choose to be both,” Klein says. She has tried more than 30 jury trials to verdict and has a proven track record of winning difficult cases. With more than 20 years of experience in law she has recovered millions of dollars in jury verdicts and settlements on behalf of her clients. She has been named a Super Lawyer in Southern California since 2018 and was recognized among the Best Lawyers in America in the practice area of Personal Injury Litigation—Plaintiffs. She has served as a speaker at numerous seminars involving civil litigation, from pre-litigation through trial, for entities such as the Consumer Attorneys of California (CAOC), the Consumer Attorneys of Los Angeles (CAALA), the San Diego County Bar Association, as well as the Los Angeles County Bar Association. She serves as Co-Chair of the Women in Law Committee for CAALA, she was recently elected to the CAALA Board of Governors and is a Board Member Emeritus of the Los Angeles Trial Lawyers’ Charities (LATLC), which provides financial assistance to the homeless, hungry, disabled, survivors of abuse, veterans, and children’s education. Klein continues shattering gender stereotypes of a woman having to choose between a career or a family. In addition to being a successful attorney, Klein is a successful working mother. She and her husband, Shawn, who have been together for 30 years, live close to nature in Topanga with their eight-year-old son, Griffin, and their dog, Lacy. Her personal joys include hiking, running, swimming, traveling, and RVing with the family. “We need movement,” she says. Klein also practices daily meditation. “COVID has changed everything, and a lot of good has and is coming out of how people are adapting to the challenge. We don’t want to go back to the so-called norm. I’m looking forward to continuing taking depositions from home and doing my work here instead of having to commute and fight traffic. Getting the work done is most important. I don’t think I could be a great lawyer if I weren’t balancing that with a great personal life,” Klein says. n

» EDUCATION • Southwestern University School of Law, Los Angeles, California, J.D. – 1997 • University of California, Irvine, B.A. – 1994

» BAR ADMISSIONS • California • U.S. District Court Southern District of California • U.S. District Court of Colorado

» AWARDS • Selected to Super Lawyers: 2018 – 2021 • Recognized by Best Lawyers for Southern California: 2018 – 2021 • Recognized by Best Lawyers in America: 2018 – 2021

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Top 7 Terrible Mistakes Lawyers Make in Arbitrations by David Taylor

here is a great argument that lawyer advocacy in an arbitration is more essential than at trial in court. Agreeing to arbitrate disputes is a serious decision for any general counsel. There are many pros and cons, but when a dispute is arbitrated, finality is the rule rather than the exception. Great arbitration lawyering is therefore essential. The following are the top seven mistakes I have seen while representing parties in arbitrations, as well as while serving as an arbitrator.

Stubbornly Sticking to Losing Positions Is an Error 1. Mangling the Arbitration Clause Arbitration is a matter of contract. There are detailed articles on drafting arbitration clauses, but far too often drafters fail to consider the basics. Which disputes will be subject to arbitration, “any and all” disputes or only limited issues? Prehearing discovery is limited, so what information will you need in the event of a dispute over this contract? What rules will apply? What discovery will be allowed? Who will choose the arbitrator and how will she/he be chosen? Will there be one arbitrator or a panel of three, and should qualifications be listed? Will you need to formally include third parties in the event of a dispute, and if so, allow for such consolidation in the clause?

2. Not Performing Due Diligence on the Arbitrator After an arbitration demand is filed with the alternative dispute resolution (ADR) agency, all counsel are sent a list of potential arbitrators with bios. The selection process is like selecting a jury. Cross off unacceptable arbitrators; list the rest in order of preference; send the list back to the administrator. Soon you will be assigned an arbitrator. Remember, this is the person who will render a final and non-appealable decision. The mistake is not researching beyond the provided bios. You want someone who will “call balls and strikes” with no conflicts. Look for presentations or articles. Call colleagues. When you are assigned your arbitrator, start the process all over again to find out the arbitrator’s preferences and dislikes. 22

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3. Not Folding Bad Claims/Defenses As the late philosopher Kenny Rogers sang, “You gotta know when to hold ‘em, and when to fold ‘em.” Don’t present every possible claim or defense to the arbitrator and refuse to concede positions. An arbitration is not a hearing before a judge who may not know anything about the subject matter. The arbitrator is an industry expert. A party’s credibility on all positions is vital. Presenting four great claims and two highly questionable ones, or stubbornly sticking to losing positions, is an error. Conceding certain claims/defenses during a hearing can increase your credibility to the arbitrator.

4. Not Understanding Pre-Hearing Discovery Limits In arbitration, party document discovery is always allowed. The mistake is not knowing your arbitration pre-discovery rights and limitations. Does the arbitration clause address pre-arbitration discovery? The rules of civil procedure do not apply in arbitrations. Depositions may not even be allowed. What about pre-hearing “third-party” document discovery? Unlike in a court trial, there is no right to third-party discovery. This is a huge factor in agreeing to arbitration in the first place. Federal circuit courts differ on the enforceability of such subpoenas. The arbitrator has no power to enforce any subpoenas.

5. Not Getting the Exhibits Right In arbitration, exhibits are introduced, but remember, the rules of evidence do not apply. Typically, on the day of the hearing each side shows up with its own set of exhibit books. This is a mistake, and can cause confusion and an unhappy arbitrator, as many times there are identical exhibits that have different exhibit numbers. Counsel should first exchange a list of proposed exhibits and then work together to create a joint set of exhibit books. Create an index that can also include tabs for pre-hearing briefs, summaries of damages, and pictures. A joint exhibit set allows everyone to “sing from the same song sheet.” It is also extremely helpful for counsel’s prehearing preparation to know all the exhibit numbers. If the arbitration is document intensive with multiple exhibit books,

use binders that are easy to open and close. In addition to the index, include a dated exhibit list.

6. Not Being Creative at the Hearing In court, there may be key witnesses or experts who testify on day one, and the witnesses who rebut that testimony may testify days later. No witnesses can be taken out of turn, regardless of circumstances. In arbitration, creativity is the key. If there are experts, you can suggest a “hot box” and have them testify back-to-back or even at the same time, presenting their multiple opinions one at a time. There may be key witnesses on both sides on more than one issue. Suggest having them testify back-to-back, take them out of order, or testify via zoom. Always remember that the arbitrator is being fed facts and arguments through a fire hose.

7. Not Making the Arbitrator’s Post-Hearing Decisions Easier Well before the time that the proof in an arbitration is closed, think how you can help the arbitrator make a wellinformed award. Offer to submit post-hearing summaries

that link up specific issues or claims to witness and exhibits. Be clear about the damages and relief you are requesting. Although most arbitrators do not request formal posthearing briefs, it may help to offer a short and pointed summary of your damages or defenses or answer a specific question of law. The takeaway is this: Don’t let the informality of arbitration cause you to not prepare as you would in court. Great arbitration lawyering is essential to get to the best possible result. An award is, with very few exceptions, final. n David Taylor has a national construction practice representing all participants in the construction industry and is recognized as one of the leading construction lawyers in Tennessee and the Southeast. He has appeared for clients in court cases and arbitrations in more than 30 states and frequently negotiates for clients on the “front end” of a commercial project regarding what types of construction contracts and clauses to use to avoid future disputes. Republished with permission. This article, Top Seven Terrible Mistakes Lawyers Make in Arbitrations, was published by Today’s General Counsel on April 28, 2021.

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Attorney Journals Orange County | Volume 184, 2021

Preparing for Downsizing: A Career Guide for Lawyers by Kimberly Lerman

any organizations today are facing hard decisions about what steps to take to increase the chances of remaining viable during a major economic downturn. One way companies cut costs is by downsizing. As a result, many workers have started to question their job security as the news of layoffs abounds. It can be very difficult for employees to keep going about business as usual when the signs of upcoming layoffs become more prevalent—for example, when new projects are put on hold; hiring, spending and salary freezes are implemented; nonessential budgets are cut; executives having more private calls than usual; or there have already been multiple rounds of layoffs. It can be easy to feel helpless at this time because regardless of how hard you work and how much you contribute, you may have no control over whether or not you are retained by your employer during tough economic times. There are, however, many things you can do to help prepare for the worst. Don’t underestimate the power of networking for lawyers—if you haven’t built a professional network, now is the time to get started.

Smart Lawyers Continue to Perform Highly First and foremost, it is important that you continue to work diligently and perform your job in a highly professional manner. Even though your current performance and behavior aren’t likely to be enough to change a decision that recently has been made based on economic factors, how you handle yourself during this difficult time contributes to your reputation. This is important not just in terms of securing references from your current employer, but also because your professional actions all contribute to your personal brand, or your personal reputation in your professional community, which may stay with you throughout your career.

Looking for a Legal Job Right Now? Brush up Your Legal Résumé Next, even though you will be hard at work in your current job, it’s best to also take the time to update your résumé and

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your LinkedIn profile, and put together some template language to use as a basis for cover letters to accompany job applications. That way if you do find yourself in the unfortunate position of being downsized, you will have your resume and cover letter templates ready to go, and your LinkedIn profile will already highlight your skills and legal experience for recruiters to see when they are searching for candidates for new roles.

Legal Careers Are More Flexible Than Ever: Take Time to Reflect Third, if you do find yourself a victim of downsizing, I recommend you immediately file for unemployment insurance, as it can take some time before you will start receiving those benefits. Once that administrative step is complete, then I recommend you take some time to reflect on what you want to do next in your career. Think about what you liked and disliked the most in your past jobs, and consider whether it’s time to explore the possibility of doing something different. Contract work can give you the opportunity to try out new roles that you may not have considered previously. I often speak with lawyers many years after they were laid off, and it’s not uncommon for them to tell me that in hindsight the layoff was a good thing—because it gave them time to focus on their career path. Many of these attorneys changed their professional focus and are much happier with their career trajectory now than they were with their former career track. If you do find yourself out of work involuntarily, one silver lining is that you will have the time available to reflect on your professional path and to redevelop your career plan.

Networking for Lawyers: Don’t Underestimate Relationships When you are looking for a new job, networking is more important than ever. If you’ve already built a professional network, now is the time to take advantage of the work you did to build it. It’s time to reach out to your contacts to let them know you’re looking for a new job, and make sure they have a current copy of your resume so that they can forward it

along to those looking to hire. If you’ve lost touch with many members of your professional network, now is the time to invite them to reconnect, whether for a COVID-safe, socially distanced outdoor lunch or a virtual happy hour (bonus: no travel required). If you haven’t already built a professional network, now is the time to get started. Think about what types of organizations and events could be most useful for you and then seek out ways to become involved with them. Even though in-person networking events are mostly still on hold right now, you can still focus on putting together a plan so that when social distancing becomes unnecessary, you can get started right away with attending events, seeking out speaking opportunities, and expanding your network. To do this, spend time now thinking about organizations with which you would like to become involved to help grow your network; consider professional associations, school and law firm alumni groups, and volunteer opportunities with non-profit organizations. Do some research to figure out which groups will help you connect with the right professionals and then get your name added to their mailing lists and keep an eye out for volunteer opportunities.

Thought Leadership for Lawyers When someone is actively searching for a new job, we typically recommend that 80% of their job-search time be spent on inperson networking, but during this global pandemic that isn’t feasible. Since social and professional events are all on hold right now, it is a great time to do a lot of writing instead, and it is extremely easy to self-publish on LinkedIn. Think about your areas of expertise, how your knowledge may help others with whom you want to connect, and then get to writing. Articles are a great way to showcase your expertise to your network, and you can circulate them via social media and email as a way to keep in contact with and build your network.

Applying for Legal Jobs Next, while I usually tell people that many (most) legal jobs are found through networking connections, applying for jobs posted online should also be a component of your job search process. Many jobs are still filled this way, and while the process can be time-consuming and sometimes frustrating, it should be a regular part of your routine. I find it is helpful to subscribe to email distribution lists on websites like Indeed and LinkedIn, and then be sure to monitor those emails regularly so that when new opportunities arise you can apply early. After you submit an online application, be sure to check LinkedIn and your contacts list to see what connections you already have at the company. In addition to going through the hiring company’s online application process, I also recommend that if you can do so, it helps to have someone at the company pass your resume along to the General Counsel or other hiring authority.

Staying Sharp with Pro Bono Work If you wind up in the unfortunate situation of being unemployed involuntarily, consider taking advantage of your free time to do some pro bono work. There are many organizations that provide licensed lawyers and attorneys with opportunities to do pro bono work remotely, and some of them may even provide malpractice insurance and administrative support to cover the work you do through them. In many cities, there are organizations that provide pro bono opportunities geared toward transactional and in-house attorneys, so you may be able to find some opportunities to help non-profits or other charitable entities without needing to draft a pleading or appear in court. Not only can you help support a good cause by doing pro bono work, but it’s also something you can talk about in future job interviews.

Flexible Legal Talent: Contract Work for High-Performing Lawyers Finally, consider doing contract legal work during your search for a permanent role. There are many staffing companies that provide the opportunity for seasoned attorneys to do highlevel, sophisticated legal work on a contract basis, and some of them may even provide you with benefits such as health insurance. As a bonus, many contract assignments offer flexible working arrangements so you may be able to continue going on job interviews and attending networking events while also engaging in the practice of law. As another benefit, contract work can give you the opportunity to try out new roles that you may not have considered previously, and this can be helpful as you gather information to decide what career path you want to take going forward. Also, contract legal work could enable you to keep your skills sharp and stay connected with the legal community during your job search. If you’re still not convinced, consider that at times contract roles can lead to permanent employment offers. There are many benefits, and few downsides, to doing contract work during your search for a permanent position. While we are all hoping for a speedy economic recovery, many organizations still face tough decisions to remain viable. Instead of worrying, spend your time and energy focused on planning and preparing for the possibility that you will need to find new employment, you will then be in a better position if you get the unfortunate news that your job has been eliminated. n Kimberly Lerman is a Talent Manager in the Atlanta office of Legility. She works primarily with attorneys, placing them in a variety of positions in corporate legal departments across numerous industries as well as at law firms.

Attorney Journals Orange County | Volume 184, 2021

3 Ways to Use Content to Create Relationships with Your Referral Network by Lindsay Griffiths

As a lawyer, in addition to the network of clients and potential clients that you’ve built, you’ve also built a network of referral sources. This may be formal or informal (or more likely, both). One of the most overlooked opportunities for further developing your relationships with these sources of referrals is content—not only does it help you to get to know these sources better, but it also provides you with collateral that you can use with your primary client/potential client networks. Before you dive into the following recommendations (and, of course, as a best practice for leveraging any relationshipbuilding activity), I suggest that you identify your goals— what are you looking to achieve and what are the key practice/ industry areas/jurisdictions that you and your firm are focused on. For example, if you really get along with an IP lawyer in London that you met at a conference once, but you’re hoping to develop more clients in M&A from Brazil, then it doesn’t make sense to reach out to the former, except as a friend.

 GET INSPIRED When we refer to content, this can mean articles, blog posts, podcasts, video, client alerts, etc. Content refers to the universe of items produced by you and your colleagues that you share with your clients, potential clients, and the legal or business community that is designed to educate them on your area of practice or industry. Use the content that your fellow members or referral sources are creating as a springboard for your own commentary—as you would with outside inspiration, cite your fellow members or referral sources and add your own thoughts on similar laws, recent legislation, decisions, etc. for your own jurisdiction that may similarly impact your clients. This highlights collaboration, as well as your own expertise. Don’t forget to then send your content back to the original authoring firm to share with their own clients as well, and to the network (if formal or semi-formal) itself to share more broadly.

 SHARE REFERRAL SOURCE CONTENT This is particularly effective when you’re in a formal or semi-formal network—take the content that other firms are authoring or producing and share that with your 26

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clients and potential clients, as well as internally with your colleagues. You don’t have to share everything but include targeted, relevant articles, alerts, etc. in your firm’s newsletters and alerts to showcase the breadth of your firm, the expertise of your fellow members, and get your clients to begin thinking regularly about referrals and multijurisdictional opportunities. Not only does this benefit others, but they may realize that because of the reach your firm has, they can come to you for work that they would have taken elsewhere. Similarly, ask if your referral sources will consider doing the same with your content.

 CO-AUTHOR CONTENT The goal with this suggestion is to reach out to one or more of your referral sources and work together on that content that you’re already producing—write an article together that showcases your expertise, co-host a podcast where you invite clients as guests, collaborate on a blog. Get creative about the ways in which you create content, which will allow you to get to know each other better, and then you can share that content externally with clients and potential clients—this not only reinforces your bond, but it showcases the breadth of your abilities as a lawyer by your access to other experts. With so many of us still in a lockdown of some type, content is a great way to build and leverage the relationships that we have in order to showcase the breadth and depth of our reach. I particularly love the idea of two firms in a network with a shared goal starting a podcast together to interview their clients or get to know each other on a deeper level. What other creative ideas can you identify to use content to further your referral relationships? n Lindsay Griffiths is a law firm network executive responsible for the oversight and management of dayto-day operations of the International Lawyers Network. Develops strategies and implementation plans to achieve the ILN’s goals. Responsible for recruitment, member retention, and a high level of service to members. Engages in the legal industry to stay on top of trends, both in law firms and with law firm networks.

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Not All Partners Are Created Equal: A Look at Partner Compensation by Shari Davidson

This white paper is only intended to be a guide. Each law firm is unique when it comes to compensation and organizational chart. This subject is very complex with many moving parts. No law firm’s compensation models are the same. Each law firm compensates their partners and staff based on their strategic goals and organizational structure.

Not All Partners Are Created Equal All attorneys start their careers as associates, and many will go on to become of counsel, non-equity partners, or equity partners.

EQUITY VS NON-EQUITY PARTNERS There are two main types of partnerships within a law firm, Equity and Non-Equity. The main difference between Equity and Non-Equity is that Equity Partners take the most risk and for doing so, get the most rewards. This typically creates a twotier compensation system for partners. Equity Partners lead the firm into the future. They have full voting rights which include, but are not limited to, evaluating attorneys, firing, recruiting, and strategic direction of the firm. Many law firms offer their attorneys Equity partnership and Non-Equity partnerships. An Equity Partner is an owner of a law firm. Looking from the outside, you may not be able to know who an Equity Partner is and who is not. Sometimes, law firms will differentiate by title (see below on firm titles and what they mean). • Non-Equity Partners do not have the same job security as Equity Partners. • Non-Equity Partners have more flexibility to where and how they want to work. • Most Non-Equity Partners receive a salary instead of partnership distributions. • Non-Equity may be paid by W2 vs. Equity Partners who are paid by a Schedule K-1. Both Equity and Non-Equity attorneys can receive a base salary or draw with bonus. Again, this depends on the firm. There are two ways an attorney can be invited to be an Equity Partner: • Buy in—Each firm has a different buy-value. It depends upon the overall value of the firm, over-head etc. Some firms will offer an attractive loan for an Equity Partner to 28

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finance the buy-in. Each law firm determines how the buyin and buy-outs are structured. The terms are included in the shareholders agreement. • Sweat Equity—It’s just that. How much effort and business the attorney brings to the table. The value is determined by the attorney’s practice, originations, and leadership within and outside of the law firm. Typically shares or percentage points are awarded based on the lawyer’s contributions to the firm’s bottom line. This compensation is clearly defined in the firm’s bylaws. Both Equity and Non-Equity Partners demonstrate many similar traits. Partners typically demonstrate ambition and drive, interpersonal skills, strong work ethic and leadership skills.

WHAT’S IN THE TITLE? WHAT IS IT WORTH AND WHAT DOES IT MEAN? • Equity Partners / Member / Shareholder / Executive Partner—Essentially these titles indicate that you own a percentage of the firm’s earnings. Many firms may not identify an Equity Partner by title. In large firms, an Equity Partner may be forced to retire early or take a step down in title and position. Since the new 70 years young is now considered the old 50 years young, the older attorneys are leaving the large firms to continue to practice in smaller firms. • Non-Equity / Income / Contract Partners—Non-Equity attorneys usually do not bring enough business to the table necessary to be an Equity Partner. It is easier and less complicated for Non-Equity Partners to move to another firm. Equity Partners and Named Partners (Partners name on the firms door) have been known to move to other firms. Many attorneys may laterally move to another firm taking their book of business to become an income partner. Law firms are very careful who they ask to marry, it’s all about your ability to make it rain. • Managing Partner (CEO)—A managing partner can be an equity partner, income partner, staff partner and sometimes a senior associate. • Staff Partner—This title is given to those lawyers who have the expertise but don’t have a book of business. A

Staff Partner can charge Partner billing rates. Clients prefer working with any partner of the firm as they take comfort knowing they have an experienced attorney advising them, not an associate. • Of Counsel vs Counsel (Also, includes Special Counsel and Sr. Counsel)—Yes, this is very confusing. Again, each firm views and defines titles and compensation differently. One firm’s title and compensation may be very different from another firm’s. The Bar Association provides guidelines regarding titles. The information is directional at best, as each firm interprets the guidelines differently to suit their needs. Generally, Of Counsel is an attorney who is employed by a firm but not as an associate or partner. Some use this term for those who are associated with the firm but are not employed with the firm. Often the designee is a former judge or government official transitioning to private practice, or an attorney that is not an associate or at partner level, or an attorney who is getting ready for retirement.

COMPENSATION MODELS There are two types of compensation approaches: Closed and Open. • A Closed compensation model means it is a mystery to everyone except the compensation committee as to how much each attorney makes. • An Open compensation model is transparent, all are able to review how the partners are compensated. Compensation models can be a hybrid system as there are benefits to both models. When creating a compensation model take into account the firm’s: • Size • Type (regional, boutique, middle market, virtual law firms to top AM200). • Approach How they bill their clients (contingency vs. retained or hybrid). Each category can have numerous subsets of how they are going to compensation the partners. Every firm designs how they want to compensate their attorneys. One approach is using the Formulaic Approach which accounts for: • Client originations—how much work one did on the case, billable hours, non-billable hours. • Administrative and managerial duties. • Leadership, marketing, mentoring etc. The Lockstep Model is based on tenure at the firm. All equity partners are paid the same scale based on the number of years at the firm. Each year equates to pay increases automatically. This is seen in many of the top AM law firms.

This model creates transparency, stability as well as loyalty, by placing emphasis on group achievement and teamwork. A lockstep model provides certainty and benefits from diversifying opportunities and spreading risk. Lockstep does not address underperforming partners or those who make it rain. A Merit-Based System, or modified lockstep, enables partners looking to retire to continue to fit within the structure as well as reward those who bill more hours. This is seen in some of the AM law, although mainly seen in smaller firms. The Eat What You Kill model bases compensation on the revenue that each attorney generates. Eat What You Kill doesn’t account for referrals and developing the firm’s standing in the community and from within. Many smaller firms use this model, some AM laws and virtual law firms also use this model. Here too, maybe a hybrid of all the above. The Rule of Thirds or the One-Thirds Rule is a quick down and dirty way to calculate what a Partner’s book is worth and the base draw/salary they will receive. Bonus and origination credit percentages can be formulaic or negotiated. This is how the Rule of Thirds works: • 1/3 of the attorney’s book goes to salary. • 1/3 of the attorney’s book goes to overhead. • 1/3 of the attorney’s book goes to profit. Again, this is just a guideline. Virtual law firms may pay the attorney up to 80% of their book of business. Some smaller firms may pay the attorney 40% or higher for new business. The Rule of Thirds only looks at origination credit, not the intangibles that the attorney brings to the table. Partner compensation is very complex and is different, varying from firm to firm. Billable hours are your friend. This is a wonderful way to measure your success in hard numbers. But there are several other factors that line your pockets. Each firm has a list of criteria that they use to measure your contributions for compensation. The criteria may account for the size of the firm as well as the book of business you bring to the table and your leadership. An attorney that wants to be promoted in their firm needs to know what targets they should be aiming for. Talk to the executive compensation committee and find out what is important to your firm. If you are seeking to make a lateral move, know the law firm practice inside and out. Who are your clients, what has been your originations for the last three years. Have a marketing plan ready. Get all information you need for the lateral partner questionnaire (LPQ). Watch out for the next white paper on making a transition. n Shari Davidson is the founder of On Balance Search Consultants LLC. and On-Balance Life Centers. On Balance Search Consultants is a boutique search firm that specializes in finding top talent in the legal community. Shari has placed lateral partner attorneys, as well as group acquisitions and law firm mergers. And has assisted her clients in recruiting lateral associates, paralegals, and legal secretarial positions. Learn more at: www.onbalancesearch.com.

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