Attorney Journal, Orange County, Volume 108 by Attorney Journals

ORANGE COUNTY

Volume 108, 2015 • $6.95

Strategic Planning for Small Law Firms

Roy S. Ginsburg Sometimes You Have to Say “NO”

Robert Denney

Protecting Clients from Unnecessary Liability When Using Social Media in Recruiting and Hiring

Todd R. Wulffson & Lindsay Ayers

PROFESSIONAL PROFILE OF THE MONTH

Rick Kraemer

30 Years of Personal and Professional Accomplishments Which All Began with a Camera PROFESSIONAL PROFILE OF THE MONTH

DTI Global

Greg Mahoney Dispels the Myths That All Litigation Support Services are the same Don’t Lose Your Shirt When Raising Your Fees

Frederick J. Esposito, Jr.

Attorney of the Month

Brett R. Wishart RESTORING HOPE

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2015 EDITION—NO.108

TABLE OF CONTENTS features

PROFESSIONAL PROFILE OF THE MONTH

6 Rick Kraemer

30 Years of Personal and Professional Accomplishments Which All Began with a Camera

by Karen Gorden

10 COMMUNITYnews 12 Protecting Clients from Unnecessary Liability When Using Social Media in Recruiting and Hiring EXECUTIVE PUBLISHER Brian Topor

by Todd R. Wulffson & Lindsay Ayers ATTORNEY OF THE MONTH

16 Brett R. Wishart

EDITOR Wendy Price

PROFESSIONAL PROFILE OF THE MONTH

CIRCULATION Angela Watson

22 DTI Global

Greg Mahoney Dispels the Myths That All Litigation Support Services Are the Same

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Frederick J. Esposito Robert Denney Roy S. Ginsburg Todd R. Wulffson Lindsay Ayers WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us

Restoring Hope

by Jennifer Hadley

CREATIVE SERVICES Skidmutro Creative Partners

by Jennifer Hadley

16 26 Don’t Lose Your Shirt When Raising Your Fees by Frederick J. Esposito

24 Sometimes You Have to Say “No” by Robert Denney

28 Strategic Planning for Small Law Firms by Roy S. Ginsburg

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in 2014, ABOTA recognized and honored Kraemer as an Honorary Legacy Patriot Fellow of the American Board of Trial Advocates, at its meeting in Philadelphia. Then national ABOTA president, Mark P. Robinson Jr., who presented Kraemer with the award, said, “Rick is ABOTA’s most committed outside resource.” It follows that he has earned the trust, friendship, and business of the majority of Southern California’s most renowned attorneys, both on the plaintiff and defense sides. In addition to Mark Robinson, Jr., Kraemer counts Orange County’s plaintiff attorneys Wylie A. Aitken, Michael J. Avenatti, Daniel J. Callahan, Gerald A. Klein, Gregory G. Rizio, Eric V. Traut, Mark B. Wilson, and defense attorneys James M. Baratta, Andrew S. Hollins, Jennifer L. Keller, Todd C. Theodora, Larry N. Willis, and Christopher P. Wesierski as clients and valued friends. Wesierski says this about Kraemer, “Rick Kraemer is the best at collaborating on trial techniques and what works with a jury. My partner and I have known Rick since we first started our firm back in 1987. EP is the organization to have on your side when you get ready for battle in a courtroom.” Although Executive Presentations is the go-to presentations vendor for established attorneys, including OCTLA Products Liability 2014 Trial Lawyer of the Year Brian D. Chase, and OCTLA Medical Malpractice Trial Lawyers of the Year Sean M. Burke and Heather J. Higson, Kraemer is equally as committed to working with young, fresh talent. By way of example, OCTLA Young Gun Trial Lawyer of the Year and CAALA Rising Star for 2014 Robert T. Simon utilizes Executive Presentations’ trial presentation services with great success. Simon describes his experiences with the company, “EP has been our trusted friend in five of my verdicts in 2014. The expertise of the trial technicians is superb! Rick Kraemer is a tireless leader and has been key to my firm’s success.” For his part, Kraemer and Executive Presentations continue to deliver winning results, as evidenced by the recent record $139 million settlement achieved by John C. Manly and Thomas M. Moore, plaintiff’s attorneys in Doe v. LAUSD. According to Manly, “We could not have achieved this result without EP,” while his co-counsel Moore said, “Executive Presentations best understands the unique challenges of complex trials.” Last year Kraemer was called upon by Paul S. Meyer, Jennifer L. Keller, and Kay Rackauckas to help defend a human trafficking case for their client, Princess Meshael Alayban. EP successfully assisted on the case, and all charges were dismissed. Paul Meyer stated, “The team at EP helped us organize a huge amount of information and prepare to present our side of the story in a clear and focused manner. They were an integral part of achieving justice for our client.” “Taking pictures has definitely fostered enduring relationships with attorneys, judges, and their families,” Kraemer says. “It has been a key element in growing and maintaining contacts, and helps to remind everyone of Executive Presentations’ dedication, and my loyal friendship,” he adds.

EP’s “New Digs” Downtown Recognizing the renewed vibrancy of downtown Los Angeles, Kraemer decided to relocate his company from Mid-Wilshire to 915 Wilshire Boulevard, Suite 1700. Executive Presentations is now in the heart of the action, according to Kraemer. “We are in one of the fastest growing metropolitan districts in the nation and near the largest superior courthouse in the country. ADR, ARC, JAMS, and Judicate West are all located within blocks of our new office,” Kraemer explains. Joining him downtown are seasoned employees he has retained from every decade since the 1980s. In addition, the company continually recruits the best and brightest rising stars to its team. Kraemer coined the motto “EP Delivers,” and his staff is dedicated to doing exactly that. Kraemer stays true to his Orange County roots with his regular presence here multiple times a week, although the Buick is long gone. “Our mobility is enhanced by being downtown, and adjacent to the 110 freeway. We are lucky to have great views of the new Wilshire Grand skyscraper, L.A. Live, and the Staples Center,” he says.

Milestones and Forward Momentum With a career that has been marked by many noteworthy victories for clients and a personal network that has grown to include more than 10,000 connections on Kraemer’s personal holiday card list, it would be understandable that Kraemer might be slowing down. However, nothing could be further from his mind. If anything, Kraemer is more energized and excited about the future than ever. In fact, as he celebrates his 60th birthday on March 11, those around him can’t help but notice that his energy level keeps on building. Indeed his colleague of 30 years, Denny Clark, is still amazed by Kraemer’s seemingly endless enthusiasm for his work. “Rick has the same intense drive that he brought to California when he hired me,” Clark remarks. When asked the secret to his vivacity, Kraemer responds, “I exercise an hour a day to stay physically fit and mentally sharp, but I don’t do it all on my own. My better half, Judy, a registered dietician, and her daughter, Alexandra, have been an invaluable part of my enjoyment of life and well-being,” he says. Alexandra will graduate from Chapman University in May. Kraemer fulfilled his childhood dream of living in California and blazed his own trail to become one of the most recognizable and trusted faces in the legal community. As for the future, he looks forward to many more years serving California attorneys. Kraemer promises, “From working with first year lawyers to senior partners on both sides of the bench, EP will continue to ‘Deliver’ what we always have—experience and results.” n Contact: Rick Kraemer Executive Presentations www.epdelivers.com info@epdelivers.com 800.350.9944

Attorney Journal Orange County | Volume 108, 2015

COMMUNITY news nHittelman Law Group has changed its name to Hittelman Strunk Law Group, LLP as of January 1, 2015. According to Partner Steven G. Hittelman, “After several years of unparalleled success for our clients, I am proud to announce that we are changing our name to give my partner, Kerri L. Strunk, CFLS, the recognition she rightfully deserves in KERRI L. STRUNK our firm name. We will continue to provide exceptional service to our clients, dedicated leadership in the county, and steadfast support to our colleagues.” nNewmeyer & Dillion, LLP, is pleased to announce that Robert K. Scott has joined the firm as a partner in the Newport Beach office. Bob brings his diverse insurance practice to Newmeyer & Dillion, supplementing the firm’s full range of insurance representation. Bob’s practice includes all aspects of firstparty bad faith insurance litigation, ROBERT K. SCOTT which supports the firm’s continued growth plan. In addition to his strong litigation practice, Bob is a frequent lecturer and speaks nationwide on a variety of insurancerelated topics. Bob has practiced law in California for over 35 years. Bob has represented developers and other business, hospitals, athletes, doctors, entertainers, business executives and other individuals in an array of JOHN E. VAN VLEAR complex coverage issues. In addition, Partner John E. Van Vlear has joined the firm’s Environmental practice. John is a litigator, clean-up strategist, and real estate counselor for all aspects of contaminated sites. John’s expertise is a great addition to the Land Use and Eminent Domain practices at Newmeyer & Dillion. John practices in both state and federal courts, and represents clients before a wide range of environmental agencies. His matters typically involve a complex array of soils, water, and/or air contamination. His portfolio of projects includes airports, commercial land, industrial properties, landfills, mines, gas stations, residential properties, and Superfunds sites.

JENNIFER KELLER

KAY RACKAUCKAS

nArcher Norris announced today that Partner Limor Lehavi has been named a Southern California Super Lawyer by Super Lawyers magazine for the fourth consecutive year. Lehavi is based in the firm’s Newport Beach office. The patented multi-phased selection process includes independent research, peer nominations and evaluations, LIMOR LEHAVI identifying attorneys who have attained a high degree of peer recognition and professional achievement. The selections are made by the research team at Super Lawyers®, a Thompson Reuters business. Only five percent of attorneys in California are named to this list each year. Lehavi focuses her practice on insurance-related matters, including insurance coverage, claims analysis and evaluation, insurance bad faith litigation, agent and broker E & O, and unfair business practice cases. She was previously named a Super Lawyers Rising Star from 2007-2010.

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us ANDREW MAR 10

Attorney Journal Orange County | Volume 108, 2015

nJennifer Keller and Kay Rackauckas, nationally prominent attorneys at Keller Rackauckas LLP in Irvine, have been named in several categories of the 2015 “Southern California Super Lawyers.” Super Lawyers is a rating service of outstanding lawyers from a wide range of practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Jennifer Keller was named to the 2015 Top 50 Orange County Lawyers, Top 50 Women Lawyers, and to the Business Litigation list. Kay Rackauckas was named a Super Lawyer in White Collar Criminal Defense.

nFish & Tsang LLP announces the addition of Andrew Mar as an associate attorney to the firm’s expanding IP practice. Mar has nearly a decade of IP legal experience and specializes in prosecuting patents in the fields of electrical engineering and computer science. He holds a bachelor’s degree in electrical and computer engineering from Carnegie Mellon University and a juris doctor from Loyola Law School.

COMMUNITY news nMore than 250 business and community leaders gathered on Feb.5 to celebrate the grand opening of longstanding law firm Tredway Lumsdaine & Doyle’s Orange County regional office. The firm, which recently relocated to a new space to accommodate a larger footprint, and regional growth, unveiled its contemporary and collaborative design at the celebratory event. City and state dignitaries were in attendance, including Irvine Mayor Stephen Choi, who presented Partners Mark Doyle and Daniel Gold with a certificate of recognition for its thriving practice and continued presence in Irvine. The evening also included a ceremonial ribbon cutting, office tours, and wine and hors d’oeuvres.

nFor the ninth consecutive year, Fisher & Phillips LLP’s Irvine, Calif. Managing Partner James J. McDonald, Jr. was selected for inclusion in 2015 Southern California Super Lawyers®. Each year, no more than five percent of the lawyers in California are selected by the research team at Super Lawyers to receive this honor. For more than 30 years, McDonald JAMES J. MCDONALD, JR. has practiced labor and employment law exclusively representing management. McDonald’s practice involves litigation of all types of employment disputes, including jury trials, bench trials and arbitrations, with special emphasis on wrongful termination, sexual harassment, employment discrimination, Americans with Disabilities Act, mental health issues in the workplace and trade secrets and unfair competition matters. He also counsels employers on labor and employment aspects of mergers and acquisitions. McDonald is lead editor of the treatise Mental and Emotional Injuries in Employment Litigation (BNA Books 2001) and author of more than 50 published articles on labor and employment law. He also serves as Vice Chair and General Counsel of the Irvine Chamber of Commerce.

TREDWAY LUMSDAINE & DOYLE

nFewer than five percent of attorneys receive the Super Lawyers recognition, and this year, all six Berger Kahn principals plus three partners have been selected to the Southern California Super Lawyers list. Managing Partner Craig Simon and Principal David Ezra were selected to Super Lawyers “Top 100” STEPHAN COHN list for the third consecutive year and Principal Sherman Spitz is newly added to the “Top 100” list this year. Enjoying a sixth consecutive year on the Super Lawyers “Top 50 Orange County” list are Managing Principal Craig Simon and Principal David Ezra. Principals Sherman Spitz and Lance LaBelle are selected to the “Top 50 Orange County” Super Lawyers list for their third consecutive year. Principal Teresa Ponder is named to the Super Lawyers list for her fourth consecutive STEVEN GENTRY year, while principal Stephan Cohn is named to the Super Lawyers list for his third consecutive year. Partners Dale Amato and Steven Gentry are recognized to the list of Super Lawyers for the second year, and Partner Richard Collins is newly added to the list for 2015. Attorney Journal Orange County | Volume 108, 2015

PROTECTING

CLIENTS FROM UNNECESSARY

LIABILITY

When Using Social Media in Recruiting and Hiring byTodd R. Wulffson and Lindsay Ayers

TODAY,

virtually all companies use social media as a tool to attract, recruit and hire employees. Unfortunately, many organizations also are using social media in a way that can draw a potential lawsuit. As counsel for these companies, the key is to step in and make corrections in procedures and practices before suits are filed. Companies generally use social media in the hiring process when: 1. Advertising for and recruiting candidates 2. Screening applicants 3. Conducting a social media background check as part of the hiring process Hiring managers need to be aware that the potential liability and risk of being sued increases through each of these three stages.

SCRUTINIZE HOW SOCIAL MEDIA IS USED AS A RECRUITING TOOL Social media is an inexpensive way to reach many prospective candidates quickly, which is why it is an attractive recruiting tool for many companies. However, marketing positions via social media, through use of targeted ads for example, can lead to claims of racial, age, and religious discrimination, and investigations by the U.S. Equal Employment Opportunity Commission (EEOC). As counsel for companies using social media for recruiting, it is important to scrutinize recruiting practices closely. If the 12

Attorney Journal Orange County | Volume 108, 2015

company uses a targeted ad (offered by some social media sites), this may target anyone who has friended or “liked” the company’s site. If the company’s social media “audience” is comprised solely of teenage boys, the company may become a target for EEOC investigators and plaintiff’s counsel, who can claim that the directed ad was designed to exclude other groups. This can be particularly problematic if the company has a contract with the government, and needs to reach out to minorities, women, the disabled and veterans.

SCREENING APPLICANTS VIA SOCIAL MEDIA IS A DANGEROUS PRACTICE Using social media to screen applicants is a rapidly growing cause for companies to be sued. Counsel should advise clients that screening applicants by looking at their Facebook pages is inadvisable and could to get them sued because a Facebook page is likely not intended to be viewed by prospective employers. By reading someone’s posts, looking at his/her pictures, and doing some quick math on his/her graduation dates, it is fairly easy to ascertain a candidate’s age, race, national origin, sexual orientation and/or disability status. Managers should be trained that companies are not allowed to consider these things as a prospective employer. If these factors are assessed, companies face the risk of having to explain why this information was viewed before eliminating an applicant from the interview pool. Counsel also should inform clients that in addition to discrimination lawsuits, screening applicants via social media

may directly run afoul of the law. Both the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) have specific rules on notice that must be provided to a consumer (i.e. potential employee) before a consumer report can be obtained, and he/ she must be informed if negative information was a basis for an employment decision. In addition to the FCRA and ICRAA, there are a host of laws governing the use of credit checks and criminal records for hiring. In relation to a company’s social media screening uncovering protected information, without proper guidance from counsel, it is very easy for a company to make wrong moves and unwittingly violate a law when eliminating an applicant from the interview process. Counsel should suggest that employer clients consider the model provided by the rising trend of “ban-the-box” laws which prohibit (mostly public) employers from performing criminal background checks until after an offer is made. Since social media behavior, like someone’s criminal history, is more likely to be used as a basis to deny employment a good deal of time, money and potential liability can be saved with a policy of transparency. Companies should tell all applicants that they will be subject to a comprehensive background check, including social media, only after they are given an offer of employment. Most applicants who know they will not pass this hurdle will simply not apply, and then the company is only focusing resources on people who are otherwise qualified for the position.

USE OF SOCIAL MEDIA FOR BACKGROUND CHECKS IS A BALANCING ACT While companies can draw lawsuits for conducting background checks on potential employees, it is even more likely to draw lawsuits for failing to run background checks. When advising clients on background checks, the recommendation is to analyze and balance the costs and benefits of conducting a background check. The cost of the information needed should be measured against the cost (i.e. risk of litigation or bad public relations) if a lawsuit develops after hiring the wrong person. With respect to use of social media, it should never be the sole source of background check information. Counsel should be advising corporate clients that the first step, when determining how social media will play a part in background searches, is to decide what information is needed from the social networking sites. Is social media expertise a requirement of the job? Will the employee be high profile such that his or her public posts reflect on the company? Is there need for more than just résumé verification? The goal is to assure that the company’s actions were consistent, objective and job-related. In addition, companies should ensure upon signed authorizations from applicants that specifically mention a comprehensive social media check. Assuring that corporate clients keep record of all the background searches, and provide the applicant with negative information that may disqualify them

while allowing them the opportunity to rebut that information, will greatly reduce the chance for a lawsuit down the line.

TIPS TO ASSIST YOUR CLIENTS IN AVOIDING LIABILITY To assure compliance with Title VII, the Fair Employment and Housing Act (FEHA), current state laws and the like, it is important to assure your clients’ stated policies and handbooks are updated and being enforced properly in accordance with various laws. Hiring managers should be trained and told repeatedly that they cannot do any research into candidates beyond what HR provides. They should be advised that all notes and interview documents should be returned to HR and destroyed following interviews, so as to avoid unexpected production of these notes in litigation. One manager’s handwritten comments on a résumé can lead to evidence of the alleged discriminatory action in hiring decisions. Hiring managers need to be encouraged not to email comments, as email is eternal and can easily be taken out of context. Assure that you, as the company’s counsel, or HR, is doing all of the social media screening and checks, and that managers are not violating AB-1844 by asking applicants or employees for passwords or other access to their social media accounts. Finally, be aware that certain actions taken as an attorney when involved in the hiring and firing processes for a company can be discoverable. For example, if an attorney is the hiring manager, the notes taken by that attorney during the hiring process will likely not be privileged. n Todd R. Wulffson is partner at Carothers DiSante & Freudenberger LLP, a leading California employment, labor and immigration law firm providing litigation and counseling services to California employers. Wulffson has 25 years of experience counseling and defending businesses in labor and employment issues and has extensive experience representing employers across the entertainment, manufacturing, banking, hospitality, financial services and retail industries. Wulffson focuses on issues related to human resources, and the implementation of proactive measures to reduce risk and cost, including substantial experience in the evolving area of social media in the workplace. He is a frequent speaker, author and resource to employers nationwide on analyzing and implementing employee-related social media policies.To contact Wulffson, email him at twulffson@ cdflaborlaw.com or call (949) 622-1661. Lindsay Ayers is a trial attorney and partner at Carothers DiSante & Freudenberger with more than a decade of legal experience. She frequently litigates on behalf of California employers in state and federal courts on employment-related claims of wrongful termination, discrimination and harassment as well as claims of unfair competition, breach of contract and various business torts. Ayers is a sought-after speaker on labor and employment issues. To contact Ayers, email her at layers@cdflaborlaw.com or call (949) 622-1661. Attorney Journal Orange County | Volume 108, 2015

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RESTORING

HOPE Brett R. Wishart helps individuals to move through adjustments in their families with compassion, clear expectations, civility in practice and years of expertise focusing exclusively on family law by Jennifer Hadley

“I

didn’t fall into the practice of family law because that’s what came in my door. I opened my door and hung out my shingle to do this very job. I attended law school knowing that family law was all that I would ever practice,” says Brett Wishart, Founder of The Law Offices of Brett R. Wishart in Irvine, CA. “Many attorneys have a natural aversion to family law cases because they can be so emotionally charged. They do not want to get involved in the pain and heartache associated with the break-up of family relationships, and I understand that,” he adds. However, Wishart is precisely the type of attorney who is well equipped for this type of work. In fact, serving others —particularly when they are at their lowest— has been his goal not only as an attorney, but in all aspects of his life. “As a family law attorney, I help individuals who are going through some of life’s most difficult challenges. I try to ease burdens, to calm fears and to restore hope by providing my clients with good advice, a clear understanding of what they can expect of me, and of the legal process they are going through. I help them make decisions that have a lasting impact on their families and their children. While I can’t save their marriages, or restore to them what they once had, I can guide them through the legal process so that they can move on with their lives,” he says. 16 Attorney Journal Orange County | Volume 108, 2015

FAMILY FOUNDATION “From as early as I can remember my parents ingrained in me a desire to attend college and become a professional of some kind. As I grew older, my father would occasionally invite me to go to court with him,” he says of his father, Barry J. Wishart Esq., who began practicing family law in Orange County in 1981. “I watched him work with others, and saw how he helped his clients. I admired him greatly and wanted to do what he did. As it turned out, he wanted me to come work with him. Going to law school therefore seemed like the perfect fit for me,” Wishart recalls. Born and raised in Orange County, Wishart served a twoyear mission trip for his church in Boston before attending Brigham Young University for his undergraduate degree. He also married his wife Lisa, and secured a substantial scholarship to attend Western State University College of Law, in Fullerton, California. Before attending law school, he’d also become a father. “When I started law school, Lisa and I had been married for two years and we had three children—our first son Tanner, and our twins Brendon and Conner. My law classes began just a few weeks after the twins were born. Lisa worked full-time as an emergency room nurse at St. Joseph’s hospital, and absolutely

ATTORNEY

OF THE MONTH

2015 2014

The business team, from left to right: Patty Barragan, Steve Amata, Me, David N. Booth, Esq., and Holly Quintana Not pictured, Peggy Stewart.

supported our family. Most law students aren’t married, and even fewer are parents,” Wishart says. Continuing, he recalls, “While most parents know the joys, challenges and adjustments that come with bringing home a new baby, few families are fortunate enough to have 3 little ones at the same time. Likewise, only those who have attended law school are familiar with the many pressures and demands imposed on students. In many respects, law school and parenthood require similar sacrifices. I learned that the pattern for success for both was the same: hard work, diligence and patience.” “In many ways I was more fortunate than many of my peers as I had a loving and supportive spouse and a young family that provided me with all of the motivation I needed to keep going. I could not fail, nor could I settle for mediocrity. In reality, the only difference between me and my fellow students was that I went on more dates, I changed diapers in between briefing cases, and often held a baby in my arms with a bottle as I studied. I wouldn’t change a thing if I had to do it again,” he says with a smile. After his first semester, Wishart began working part-time for his father, who had practiced family law exclusively at his firm in Brea, The Law Offices of Wishart & Garland. “I followed my dad everywhere, and watched what he did. I had the good fortune to learn from him what they don’t teach you in law school, which is how to practice law. I participated in numerous client interviews, depositions, trials and law and motion hearings. By the time I had graduated and passed the 18

Attorney Journal Orange County | Volume 108, 2015

Bar, I had been to nearly every court house in Orange, Los Angeles, San Bernardino and Riverside Counties. I knew the family law judicial officers as well as many of the experienced family law practitioners,” Wishart says. As such, as soon as Wishart was sworn in, he was very busy. “Many of the cases I had worked on in law school became my cases and I took them over. I inherited a substantial caseload almost instantly and was immediately immersed in trial work,” he says of the early years of his career.

COMPASSION FOR CLIENTS, CIVILITY IN PRACTICE Wishart’s passion for helping those going through family turmoil is, frankly, palpable. “In my opinion, there is no more important area of the law than family law. It concerns areas and issues that matter most in life. Much of the practice of law deals with paperwork. Family law deals with people and their children, not just paper. It also requires knowledge of many other areas of the law, ranging from criminal, tax, real estate, bankruptcy, estate planning, contracts, etc.,” Wishart says. “I love practicing family law because I get to work with many different people who are really struggling and in need of help. I treat them with kindness, patience and love. I want the best for them and their children. I help to restore hope,” he says. To that end, he adds, “I try to be professional, calm and kind. My clients are already emotionally worked up. If I do not stay

composed and level-headed, I will not be of much use to them.” In addition to helping his clients directly, Wishart seeks to serve as a resource to the legal community as a whole. By way of example, in 2006, just one year after being admitted to the Bar, Wishart was elected and appointed to the Executive Committee of the Orange County Bar Association’s Family Law Section. He was the only member that had practiced for less than five years at that time, and consequently he represented the young family lawyers of the Bar. Wishart served in that position until 2009. By 2013, he had also been appointed as a member of the Orange County Standing Committee of the State Bar Family Law Section Executive Committee (FLEXCOMM) where he remains a member today. Wishart also seeks to help others through volunteering his time as an expert for the Divorce Support Center (divorcesupporcenter.org), a non-profit organization that helps individuals and families in crisis. Wishart also dedicates time to answering various questions posed on the legal website Avvo, where he is not only a top contributor, but has been awarded the Client’s Choice Award 2013-2015, and maintains a rating of 10.0 Superb. Similarly, Wishart contributes articles on the subject of family law to the website LaFamily.com. Wishart’s sincere desire to do what is in his clients’ best interests lends itself well to working in what he calls an overwhelmingly “friendly” group of fellow family law attorneys in Orange County. “It only helps our clients when the attorneys get along. We can both save our clients money and it is much easier to do our jobs

as attorneys when we are civil with our opposing counsel,” he says. In fact, many attorneys who have served as opposing counsel have publicly acknowledged Wishart’s strengths in this arena by endorsing him on Avvo. Attorney Gerald Anthony Maggio writes: “I have been the opposing counsel on cases with Brett Wishart and his firm and I have found he and his firm to be very prepared, professional and knowledgeable. Moreover, he is very reputable and not underhanded in ways that end up causing his clients (or mine) to spend unnecessary legal fees. He has the ability to both advocate for his client’s interests and still work reasonably with opposing counsel.” Similarly, Attorney Shakeb Ahmad Razai writes, “I had the pleasure of working with Brett in the past on a somewhat highly emotional case (from the clients’ perspectives). He was very reasonable, ethical and just a great person to work with. I look forward to working with him in the future. He is always prepared, highly respected, and well educated in the family law arena.”

NEW BRANCH ON FAMILY LAW TREE After several years working with his father and his brother, Ben, who ultimately joined the family firm Wishart and Associates, LLP, Wishart became the senior trial attorney for the firm. He personally tried hundreds of contested cases involving a variety of complex family law matters. A few years later, he took over as Managing Partner, where he was responsible for training and supervising several other associate attorneys and legal assistants.

The Wishart family. Front row from left to right: Brendon (age 13), Courtney (age 5), Alyssa (age 3), Joshua (age 2), Conner (age 13) and Kaitlyn (age 11). Back row from left to right: Tanner (age 14), Brett, Lisa and Micah (age 8).

Contact: Brett R. Wishart The Law Offices of Brett R. Wishart www.wishartfamilylaw.com brett@wishartfamilylaw.com 714-702-1440 4 Venture #290 Irvine, CA 92618 20 Attorney Journal Orange County | Volume 108, 2015

EXPERIENCE

But by 2014, Wishart says that the time was finally right to fulfill his longstanding desire to launch his own firm, and he did so by opening his practice in Irvine. That same year he was named one of Orange County’s Top Attorneys by OC Metro. He was also named one of the “10 Best Attorneys” in California by the America Institute of Family Law Attorneys in the area of client satisfaction 2014-2015. Yet Wishart is quick to point out that none of his successes would have been possible without the support of his own family. “My parents really guided me, and gave me a great opportunity. And my wife Lisa deserves so much credit. She has believed in me, and put up with me throughout this whole adventure,” Wishart says. He also says that his faith has everything to do with his desire to help others. “We are very involved and active in our church. Together Lisa and I teach a marriage and family course each Sunday. I really want to help and serve my fellows however I can,” he says. Wishart is also dedicated to working as hard for his own family as he is for his clients. “Outside of work, my time is largely devoted to my children, who are great students and are involved in various extra-curricular activities. I’m also the second of five children, and family means so much to me.” After a decade of exclusive practice in the field of family law, Wishart’s satisfied clients have come from virtually every walk of life. Whether they are self-made millionaire business men and women, celebrities, professional athletes, physicians, fellow attorneys, marriage and family therapists, or stay-at-home parents, Wishart says that no matter their unique circumstances, they all have one underlying trait in common. “They all have an adjustment in their family relationships that they need guidance on. Some are preparing for marriage, while others are going through a divorce, legal separation, or annulment. They have children and are in need of child custody or visitation orders, or need child or spousal support. Some have addiction issues, or domestic violence has occurred and restraining orders are necessary. All of them are seeking help to improve their quality of life and to have a measure of peace and certainty in their family relationships. I work hard to be a conduit for them to achieve that. ” n

» EDUCATION • Graduated from Brigham Young University with a Bachelor of Arts Degree. Major: History, Minor: English—2000 • Graduated from Western State University College of Law with a Juris Doctor Degree and award for “Scholarly Merit:” 2004

» EXPERIENCE • Elected and appointed to the Executive Committee of the Orange County Bar Association’s Family Law Section: 2006—2009. • Appointed as a member of the State Bar Family Law Section Executive Committee (FLEXCOMM), Orange County Standing Committee: 2013—Present • Authored several articles on the subject of family law which have been published at lafamily.com, an online magazine or e-zine. • Featured “Expert” and volunteer at the “Divorce Support Center” (divorcesupportcenter.org), a non-profit organization that helps individuals and families in crisis.

» AWARDS • Orange County’s “Top Attorneys” featured in the September edition: 2014 • Named as one of “10 Best” Attorneys in California by the American Institute of Family Law Attorneys in the area of “Client Satisfaction:” 2014—2015 • Avvo.com Rating: 10.0 Excellent: 2013, Superb: 2014-2015 • Client Choice Award 2013-2015 • Client Distinction Award 2015

JOURNAL

FEATURED PROFESTSHIOENMAOL NPRTOFILE

2015

END–TO–END eDISCOVERY DTI Global’s Greg Mahoney Dispels the Myths That All Litigation Support Services Are the Same by Jennifer Hadley

“T

he term litigation support has become so muddled,” says Greg Mahoney, Consultant with DTI in Orange County. “Many times companies that provide printing or scanning are called litigation support companies. Other companies may provide printing, scanning, processing and hosting, but will contract out forensic consulting and document review. It’s important not to compromise confidentiality by subcontracting anything out. Sensitive information in high-profile or high stakes cases should not be changing hands. As a client, it was ideal to have all of our work done with one partner to ensure the highest level of security,” he continues.

Attorney Journal Orange County | Volume 108, 2015

Full Suite of Support Services When asked why he transitioned to DTI after having spent years as a client with law firms and the state government, Mahoney explains, “I found DTI to be truly an end to end eDiscovery Company. A situation has yet to arise where it was necessary to outsource any work as our solutions include litigation readiness consulting, forensic collections, data processing, online document review, and contract attorney review.” Two real points of emphasis for Mahoney was DTI’s offerings in forensic consulting and managed review services. In addition to having the largest managed review services in the world, with 13 review centers internationally, DTI’s contract attorneys

speak over 20 foreign languages including Japanese and Chinese. Their own certified forensics lab is located in Rancho Cucamonga, which is helmed by Peter Garza, who spent 10 years with NCIS, and has served has a Court Appointed Special master. Garza oversees 7 forensic experts, who perform duties ranging from imaging laptops and cell phones to onsite extractions of data, to analyzing data. “Garza has testified in numerous trials as a forensic expert. He also consults with attorneys on the most cost-effective ways to acquire data and utilize forensics,” Mahoney says. “As a client, it’s important to feel confident in the expertise your eDiscovery partner brings” he adds. That’s what Mahoney has experienced with his colleague, Jeff Jacobs, who spearheads the litigation readiness division and who is perhaps best known for his work as Associate General Counsel with MCI/ WorldCom during the Verizon acquisition and accounting fraud investigation. “His knowledge and expertise is second to none. He’s been both a litigator and in-house counsel. He knows exactly how to prepare for government investigations, and has a wealth of knowledge in the information governance realm,” Mahoney says. That expertise extends to Mahoney himself. “I contemplated law school after graduating from college, and decided to obtain some relevant work experience before heading off to school,” he says. Mahoney found the perfect use for his degree in Political Science and Computer Science by working with Massachusetts’s Department of Revenue, Litigation Bureau. “I was first exposed to the eDiscovery world while working for the state government in Massachusetts,” he says. From there, Mahoney transitioned to a position with Boston based firm, Mintz Levin, as a litigation technology analyst. Thereafter he served as an eDiscovery consultant with Gibson, Dunn and Crutcher here in Orange County. “I leverage my own work experiences with both the government and top law firms to support my clients. It’s very rare for someone in my position to have the same knowledge set and understanding of the entire EDRM,” he says. “I understand issues from the client’s perspective including tight turnaround timelines, and I have the ability to foresee what issues may arise in a given situation and how best to circumvent those issues. I also personally have a deep knowledge of all of the tools that are utilized, including being a Relativity Certified Administrator. I’m the main point of contact for my projects, and I have personal experience in each step of the process. I’ve been in the weeds performing this work. I know how to translate technical information into layman’s terms and understand the unique technical nuances attorneys face today,” Mahoney says. Mahoney further explains that a full suite of litigation support services is necessary, because frankly, the market demands it.

“ABA rules are set in stone, and the duty of competence is clear that attorneys need to address eDiscovery, and they need to follow the new amendments. They can’t afford to bury their heads in the sand anymore, and expect leniency from the bench. I work with my clients to educate them on the best practices to avoid problems with the Bar.”

Services for Firms of All Sizes Mahoney is quick to dispel the myth that he works only with large corporations and law firms on massive document reviews. “Yes, I do work with Top 100 AM firms, but I also work with solo attorneys, small to medium sized firms, and in-house counsel at corporations. I assist with any type of case imaginable, from IP, employment, M & A, securities, contracts, government investigation, etc. Each type of client has its own unique needs. A solo practitioner may need us to handle all of their document review. For corporations and larger firms, we are glad to support, and augment what they are already currently handling in-house. I can work with someone who only needs a laptop or cell phone imaged or needs a handful of contract attorneys fluent in a foreign language. I will custom tailor our services to what our client needs.” By way of example, Mahoney says, “Recently I was working with a local litigation boutique on a class action suit and we were up against some fast approaching discovery deadlines. The weekend before the Monday afternoon deadline was a holiday and for some reason the firm started experiencing issues within their internal email system late on a Friday afternoon, and were unable to receive incoming emails. Over the course of the holiday weekend, I made sure to provide continual updates over the phone until everything was sorted out and all document productions were completed before the deadline. I am happy to do whatever it takes for our clients.” As far as the future of DTI is concerned, Mahoney predicts the company will continue to follow its trend of growing organically and through strategic acquisitions. Regarding Mahoney’s personal plans for the future, he says that he can’t imagine working in another market. “I’m a continual learner, and problem solver. This field is constantly evolving. On the tech side, there is always new software to learn, and on the legal side there are always new amendments and case law. I love looking at the needs of a particular case, and delivering the customized solutions.” n Contact: Greg Mahoney www.dtiglobal.com gmahoney@dtiglobal.com 774.571.5875

Attorney Journal Orange County | Volume 108, 2015

SOMETIMES YOU HAVE TO SAY “NO” by Robert Denney Bob Denney is President of Robert Denney Associates, Inc. He and the firm provide management, marketing and strategic planning counsel to law firms and privately held companies throughout the United States and parts of Canada. He has authored or co-authored seven books and has written many articles on these subjects. For information about Bob, the firm and their services, visit their website www.robertdenney.com.

he Managing Partner of one of our clients recently said to me, “The hardest thing in the world for most lawyers is to decline an opportunity for increased business, even when it’s because of a conflict or a question of ethics.” There’s obviously no question about having to say “no” in those situations. But there are other opportunities for increased business when the wise decision for the firm or the individual lawyer would be to say “no.” Here are a few examples.

LATERAL ENTRY OPPORTUNITY A 40-lawyer litigation boutique was approached by a widely recognized and highly successful partner at a BigLaw firm about joining the firm as a lateral entry partner. He had a blue chip client list and a large book of business. He planned to bring his entire group with him, including two younger partners and two associates. He demanded a guaranteed compensation package that would have made him almost the highest paid partner in the firm. He also demanded that, not only his two partners but also the two associates, be brought in as equity partners. The firm very much wanted this lawyer, his clients and the revenues that would probably ensue. But, after reviewing the situation with us, the partners decided that, if they met all his demands, it would disrupt the firm. They said “No.” Six months later our client did bring in a lateral entry partner who also had a blue chip client list and a substantial book of business but did not require his compensation be guaranteed or that the two associates he brought with him be admitted as partners. The firm has continued to grow and also has further strengthened its already strong culture. By the way, the other lawyer and the rest of his group have remained with his firm.

was giving that work to this firm—work, by the way, which was also profitable.

STRATEGIC DECISION In today’s highly competitive legal market, some firms accept work from current or potential clients even though they have limited experience or capability in an area. This is an unwise attempt to be “all things to all people,” or at least to all clients, instead of differentiating themselves by being recognized for their expertise in certain areas of practice or selected industries. What most firms should do is make the strategic decision to focus on and develop certain practice areas, types of clients or industries. Concurrent with this is to decide there are certain services they will not attempt to provide or certain clients they will not accept and, as a result of this strategic decision, decline opportunities for increased business in these instances. This does not mean firms should say to their clients at times, “We don’t want your additional work.” What they should say is, “We’re not the best choice for this work. Let us refer you to a firm that has the expertise you need in this area.” By handling the situation this way, the firm strengthens its relationship with its clients because it demonstrates that it places their interests ahead of its own desire for additional business. Despite the soundness of this decision, there will still be partners or managers in the firm who disagree. Some will say, “That’s all well and good but it’s just bringing another firm into the picture and running the risk of our eventually losing the client.” That misses the point. The realities are: 1. You can’t prevent a client from using other law firms or professional advisors and . . .

CLIENT DEMAND

2. You keep clients loyal to you by serving them superbly and earning their trust.

One of the top three clients of a 200-lawyer firm demanded a number of additional “value added” services as part of a different fee arrangement or they would take all of that work to another firm. The arrangement they demanded would make this client unprofitable for the firm to serve. Despite the considerable revenue involved, our client said “No.” It did, however, offer to provide other additional services at no charge and also proposed a different AFA which would still be profitable for the firm. After some discussion and negotiation, the client agreed to the firm’s proposal. Shortly thereafter, in a surprising development, the client then announced it was terminating another firm and

Others in the firm will say, “That’s fine for established firms who have so much business they can afford to say ‘No.’ We can’t.” The reality in this case is that, if you decide you can’t afford to decline business until you’re established and overwhelmed with work, you’ll never be established and differentiated from your competition. This principle doesn’t just apply to law firms. It applies to every business and professional firm—including consulting firms such as ours. Yes, we practice what we preach! It’s not easy and it requires courage. But successful operations have learned that sometimes you have to say “No.” n

Attorney Journal Orange County | Volume 108, 2015

As part of your law firm’s strategy, you want (ideally) to align your pricing methods, metrics and communications with your clients’ value proposition. That, of course, is easier said than done. Most firms struggle to achieve the delicate balance between the rates they need to charge and the rates clients are willing to pay. And all firms face the same fear: What if you miscalculate and lose your best clients? Still, there comes a time when you have to increase your rates to stay profitable.

HOW TO RAISE FEES WITHOUT LOSING CLIENTS

Don’t Lose Your Shirt When Raising Your Fees by Frederick J. Esposito, Jr. Frederick J. Esposito, Jr. is Executive Director of Rivkin Radler. He has more than 20 years of law and accounting firm experience. He writes and speaks extensively on legal management topics, including billing, collections, financial and profitability models, risk management, human resource development, project management and alternative fee arrangements. Follow him @ lawmgtguru. Previously published in Attorney at Work.

So, how do you implement a rate increase without driving away the client? It comes down to communication, metrics, timing and value. Here are some thoughts on how to go about it. 1. Get over the fear factor. Don’t let fear keep you from raising rates! Chances are, if you are making excuses to avoid a rate hike, those excuses are a cover for speculations based on fear. 2. Communicate the “whys.” When your firm has specific reasons for raising rates, tell your clients. Perhaps you froze rates during the recession out of consideration for your clients’ financial situations, or to keep their business. Maybe you wrote off a considerable amount of time each month resulting in even lower effective rates. No matter how big or small, letting clients know about these financial courtesies builds goodwill—and it can be a great client development tool. 3. Understand the metrics. Before deciding to increase your rates, know your firm’s economics. Do you know where your breakeven point is, profitwise? How much it costs to produce a billable hour, or a brief? Or your costs by timekeeper? Understanding the economics makes it much easier to determine the increase. Keep in mind that smaller increases — 3 to 5 percent per year—are generally better, and are met with less resistance when they are implemented consistently (i.e., the same time each year). When setting rates, it’s not just about what the firm “needs” to charge to break even, but also about what the firm “wants” to generate in fees. Review your costs, calculate your breakeven point, and determine a suitable rate. You might also consider the 80/20 scenario: Identify the 20 percent of your clients who generate the least profit and either raise their rates or terminate them. If this sounds harsh, keep in mind that you are in business to generate profit—you cannot afford to carry unprofitable clients just because you like them. 4. Timing is everything—no surprises! The worst thing you can do is fail to tell clients about your rate increase, instead letting them find out when they open their next invoice. Let your clients know in writing that you are increasing rates and provide sufficient notice, perhaps 60 days. Also, as a best practice, make sure your engagement letters include language indicating the firm will, upon notice, adjust rates periodically. This should alleviate some pushback. Some clients will resist and attempt to negotiate the proposed rate increases. That opens the door for discussions about the actual value of legal services provided … and brings us to No. 5. 5. Talk about the value being delivered. Will you lose some clients who aren’t willing to pay a higher rate? Maybe. But if you do, your firm needs to ask an important question: Why doesn’t the client perceive the full value of the services provided? Get past the fear factor and help clients understand the value your firm delivers. At every chance, seize the opportunity to educate them! n

Attorney Journal Orange County | Volume 108, 2015

Areas of Expertise Business • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property • Wrongful Death

Past President: San Diego Chapter of ABOTA, San Diego County Bar Association Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 30 Years of Experience as a Mediator and Arbitrator 35 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants

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Attorney Journal Orange County | Volume 108, 2015

STRATEGIC PLANNING for Small Law Firms

by Roy S. Ginsburg

Pressed for time and averse to business jargon, solos and small law firms may be overlooking benefits of strategic planning that include more and better business over the long term.

If a small law firm is perfectly happy with its current status and future outlook, then it does not need a strategic plan. But really, how many firms can claim to be perfectly satisfied? Most small firms want more business and better business. To achieve this goal, these small firms need a strategic plan. If you don’t know where you are going, after all, any road will get you there. Following many roads in random directions is inefficient and ineffective. If you do know where you are going, you can follow a specific and direct path to success. When asked what their law firms should accomplish in the next few years, most small-firm leaders will say that they want to be more successful. They will say that they plan to do this by working harder and smarter. These vague aspirations, however commendable, do not constitute a plan. It is not surprising that many small law firms lack strategic plans. Their counterparts at larger law firms have staff to manage the firm, so that the lawyers can concentrate on clients. Solos

Attorney Journal Orange County | Volume 108, 2015

and small-firm lawyers must do it all themselves. As a result, strategic planning often takes a back seat to client matters.

WHAT IS STRATEGIC PLANNING? When attorneys hear the term “strategic planning,” their innate cynicism often takes over. They envision hours spent with a high-priced consultant who spouts arcane business jargon and then presents obvious recommendations. In other words, these attorneys envision a complete waste of their time and money. Put these preconceptions aside. Strategic planning is not all that complicated. It is simply a process that forces a law firm to pause briefly to carefully consider where the practice has been, where it is today, where you would like it to be in the future— and how you can make this happen. In other words, strategic planning is a process in which an organization defines its goals and then creates a plan to achieve these goals. The process forces busy lawyers, who are often scrambling to keep up with the day-to-day tasks of lawyering, to actually anticipate the future. Most plans cover one to three years.

A successful small law firm strategic plan should consider a firm’s unique culture and vision, emerging trends in the legal market that might provide opportunities, emerging threats in the market that might dictate a change of course, and any needed operational changes. Plus, a strategic plan can be simple. In fact, less is more. Law firms should not try to accomplish too much, too soon. If initial goals are too ambitious and not reached, firm members will likely get discouraged and resist future efforts. Success in achieving smaller, simpler goals can create the momentum and confidence needed to achieve more difficult goals down the road.

Regarding the marketplace:

WHY DO LAW FIRMS RESIST?

• Do we have the right leadership? Are there gaps?

Common obstacles to strategic planning include: • Lack of incentive. Strategic planning requires an investment in nonbillable hours, which are not rewarded by most law firm compensation systems. Many firms resist spending time on an activity that brings no reward. • Lack of consensus. Most law firms are democratic institutions that rely on consensus in order to get things done. Strategic planning may uncover difficult issues and spark differences of opinion. Many firms resist conflict and simply hope that a problem will go away. • Lack of leadership. Strong leadership is required when dealing with difficult issues. Often, when consensus is hard to achieve, a managing partner operating alone lacks the skills and political capital to effectively manage significant changes. • Lack of execution. Once created, even the best strategic plans must be implemented. This takes time and resources. Many firms find it easier to ignore a plan and concentrate on client matters. • Lack of accountability. Strategic plans often impose no adverse consequences for inaction. Even if they do, the firm may not enforce these consequences. When lawyers fail to follow through on a plan’s tactics, they must be held accountable.

• Who are our competitors? • What do they do better than we do? What do they do worse? • What is our reputation in the marketplace? How can it be improved? • How can we distinguish our firm from our competitors?

Regarding internal issues: • How would we describe our firm culture? • What are our core values? • Are we getting work out efficiently, effectively, and in a timely manner? Which improvements are needed? • Are our marketing efforts adequate, or should they be upgraded? • Do we have the right number of the right kind of employees? Are our training needs being met? • Are any of our lawyers close to retirement? What changes will this bring about? • Is the firm the right size or should it be smaller or larger? • Are professionals and staff compensated fairly and consistently with our culture? • Does our technology allow us to compete in today’s culture?

Regarding external issues and trends: • Will any practice areas be impacted by changes in the coming years in the regional economy, legislation and regulation, and/or political climate?

Regarding clients and services: • Who are our top clients and what kind of work do we do for them? • How will their needs change in the future?

STEP BY STEP PLANNING

• Which are our most profitable practice areas?

1. Assess status and gather facts. One popular and straightforward strategic planning tool that can be used by a small law firm is a SWOT analysis, in which lawyers identify the firm’s strengths, weaknesses, opportunities, and threats. Most firms will already know what these are, but have never carefully considered them all in one place. Do not get carried away. Identify only the most important elements in each category. To be more thorough, use these questions to trigger discussion.

• Should we reduce or eliminate some areas while growing or adding others, in order to meet client needs going forward? When assessing client needs, do not rely only on lawyer perception of these needs. Lawyer and client perceptions may not be in alignment. Solicit direct client feedback via confidential interviews (usually for larger clients) and client questionnaires (usually for smaller clients). This information can also be used to identify (and plan for) future opportunities or potential loss of business.

Attorney Journal Orange County | Volume 108, 2015

1. Organize and rank. The above discussions will uncover a lot of information. You cannot possibly deal with all of this information at once. To keep the strategic planning process simple and focused, concentrate on perhaps three or four issues. If these issues are not immediately obvious, discuss one further question: What worries us most about the firm’s future? The answer to that question will inform your list. Some of these issues may be longstanding problems that have not yet reached crisis level, but have been neglected for too long. Thus, strategic planning not only forces small law firms to consider the future, it also motivates them to proactively tackle lingering problems that have been holding them back.

contributions of everyone—not just the partners. On the other hand, associates and staff do not have an ownership stake in the firm and will be less immediately affected financially by any changes that are part of the strategic plan. Also, there may be certain issues that are better kept confidential. When it comes to inclusiveness, there are no hard-and-fast rules. In the opinion of many experts, expanded participation should be seriously considered for some parts of the process. Outside Consultants. A disciplined small law firm should be able to work through the strategic planning process on its own, but many find this process far easier when it is facilitated by an outside consultant. A skilled consultant can:

2. Create a plan. With the information gathered and priorities ranked, it is time to create an action plan. This document should be short and simple. It should address:

• Rein in uncooperative partners;

• What are the three or four realistic goals for this plan? Don’t be tempted to expand the list. Less is more. • How will we achieve these goals? What are the specific tactics (including “to-do” lists)? • Who is responsible for accomplishment of a tactic? • What are the final deadlines and interim deadlines? • How will the firm measure and reward results? • Will the firm offer disincentives to ensure accountability? 3. Just do it! The most difficult part of any small law firm strategic plan is execution. The best strategic plan will be wasted if it just sits on the lawyers’ desks gathering dust. To avoid this result, progress towards meeting plan goals must be monitored regularly. Constant monitoring is critical to hold people accountable, so everyone involved knows who is walking the talk and who is not. Results must be measured and communicated. It is also critical for making revisions. Perhaps some assumptions were incorrect or a tactic is not working as planned. Perhaps a lawyer has left the firm. A strategic plan is a flexible, living document—not etched in stone. Most often, monitoring is best accomplished by holding regularly scheduled meetings each month. These meetings can be short, allotting just enough time for each person to give an update. If changes need to be made to the plan, a little extra time can be added.

INCLUDING OTHERS Associates and Staff. There are pros and cons to including associate attorneys and law firm staff in the strategic planning process. On the plus side, they can provide a unique perspective on issues, providing a more accurate and well-rounded picture. Including associates and staff also sends a positive message that the firm is inclusive and values the opinions and 30

Attorney Journal Orange County | Volume 108, 2015

• Keep the process moving along by avoiding side-tracks; • As an objective outsider, obtain more accurate perceptions about the firm from the partners; • Question long-held (but possibly outdated or incorrect) assumptions and beliefs that cannot be raised by partners due to firm politics; and • Provide an independent and objective voice to the process when individual lawyers are tempted to favor their own vested interests over the firm’s. Although all types of businesses engage in the strategic planning process, law firms offer some unusual challenges. It is usually best to retain a consultant who has worked with law firms and is attuned to their economics and business development practices. In addition, an experienced consultant will have a better understanding of the unique lawyer personality and what makes lawyers tick. For all of the reasons mentioned above, solo practitioners should also engage in the strategic planning process. On one hand, the process is simpler. On the other hand, it can be harder for a solo practitioner to stay on track without peer pressure to do so. Even solos can benefit from the discipline imposed by an outside consultant.

CONCLUSION Small law firms that want more business and better business cannot achieve these results simply by wishful thinking. They need a direct roadmap to get from where they are today to where they want to be tomorrow. They need to follow that route without getting side-tracked. They need a strategic plan. n Roy S. Ginsburg is an attorney coach and consultant who has helped numerous lawyers achieve practice development goals and career satisfaction. He is a frequent CLE speaker and consults with firms and individuals nationwide. For more information, visit www.planningforlawfirms.com. This article was first printed in Bench & Bar of Minnesota.

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