ORANGE COUNTY
Volume 162 2019 | $6.95
Lawyers, this Approach Can Backfire on You
Nancy Myrland Electronic Signatures in the Courts
David Peterson
Law Firm of the Month
HHJ Trial Attorneys, Full Court Press
Shrewd Marketing Moves Most Lawyers Miss
Trey Ryder
California Civil Case Summaries
Monty A. McIntyre Presentations—A Way to Become a Magnet for New Business
Jeff Wolf
Serving Orange County
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“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size.” ~ C. Michael Alder, Esq., Alder Law, Los Angeles, California CAALA Past President and Former Trial Lawyer of the Year
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2019 EDITION—NO.162
TABLE OF CONTENTS 6 Presentations—A Way to Become a Magnet for New Business by Jeff Wolf
8 Lawyers, this Approach Can Backfire on You by Nancy Myrland
10 Community News 12 California Case Summaries New California Civil Cases EXECUTIVE PUBLISHER Brian Topor
by Monty A. McIntyre, Esq.
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EDITOR Wendy Price CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Monty A. McIntyre Nancy Myrland David Peterson Trey Ryder Jeff Wolf WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
16 LAW FIRM OF THE MONTH
16 HHJ Trial Attorneys Full Court Press by Dan Baldwin
22 Electronic Signatures in the Courts by David Peterson
26 Shrewd Marketing Moves Most Lawyers Miss by Trey Ryder
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Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2019 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
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Presentations—A Way to Become a Magnet for New Business by Jeff Wolf
Y
ou are trying to build your book of business. With the competition getting nimbler and more aggressive, it hasn’t been easy. Clients are unfaithful yet they’re demanding more of your time. You have tried to be a consultative business developer, working on building relationships. You’ve been trying to do as much as you can with limited time. One way to become a proven winner in business development—for yourself, the firm and your colleagues— is to get out there and give a talk to a roomful of people. Presenting your positions shows you as an expert, or better, THE expert, in your area of specialty. Speaking to a captive audience allows you to make your points and deliver your strongest messages. The crowd will hang on your every word. You are the authority everyone came to see and hear. If you do it well, you’ll find this form of business development is incredibly successful. It attracts new clients. You become a people magnet. They’ll walk up to you, engage you in conversation, slip you their business cards and say, “Please call me.” Translation: “I like your
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message and think you are the type of lawyer with whom I want to do business.” The calls and emails will continue for several weeks as word of mouth spreads through the business community. Sadly, most speaking opportunities for lawyers end up wasted. All that worry about the presentation, the pressure of the prep work and, at last, the performance, result in an empty-handed return to the office. What if you could come back with a list of potential clients who are excited about working with you and your firm? As a professional speaker and presentation skills coach, I have seen lawyers speak in front of audiences over and over. Most have no clue how to give their audiences a motivating and memorable experience.
A Golden Opportunity Wasted I recently gave a keynote address in Los Angeles and, prior to my talk, the association had a lawyer give the membership
a legal update. His thirty-minute monologue of facts and figures, presented in a droning, monotone voice while leaning on the podium, was a disaster. I watched in disbelief as a golden opportunity to connect with the audience slipped away, second by second. Every two or three minutes, groups of people got up and walked out. Flabbergasted, I watched an audience of over 500 people, previously excited to be there, shrink by about 50%. When the speaker finally finished, he garnered a smattering of half-hearted applause—mostly because he had finished. The emcee thanked him and asked, diplomatically, if we could all take a 10-minute break—so they could regroup everyone for the next presentation—mine. This is one of many sad examples of lawyers wasting not only their own valuable time, but also the audience’s valuable time while leaving a bad impression in the minds of 500 potential clients. When I talk with lawyers who have just given a presentation, they usually think they have done a tremendous job. Yet, no one comes up afterward or they never receive any calls or emails from the members of the audience. They then tell me, “Speaking is a waste of time and it just doesn’t generate business.” My answer to these lawyers is very simple and straightforward: “If you give a great speech, business will follow.”
The Keys to Success If you are going to be a presenter, the expert, the font of wisdom, you must remember one central fact. It’s not about you. It’s about them, the audience, the listeners and people who are investing their precious morning, afternoon or evening time to hear and see you. They listen intently with one question in mind: what’s in it for me? As well, they want to be engaged by your personality and passion for your subject matter. If you are passionate about your topic, your listeners will become excited about it too. If you deliver your message with enthusiasm, voice variance and convincing inflections, staying clear of the podium and employing dramatic body language, you will become a people magnet. That podium puts a wall between you and the audience. Ditch it and connect with the people you want to win over. Don’t let the podium be a barrier—that just tells those folks you’re nervous and uncertain. Remember, you’re the expert. You know your material frontwards, backwards and inside-out. Come out in the open and be open. Stand tall and confident. Connect. Smile and use a tone of voice that makes people feel good.
Here’s something to take to heart. A famous study on communication found that: • 55% of communication is body language • 38% is tone of voice • 7% is the actual words
A Success Story Last year I spoke at an event attended by over 700 people from companies large and small. After my speech I sat in on a couple of workshops. One was a presentation by an attorney to about 75 people. A podium stood at the front of the room, but she didn’t go near it. Instead she walked from side to side and up and down a few rows. Why? To connect with her audience. She carried herself with poise and dignity and was passionate about her subject, corporate tax law. Everyone could see that she knew her stuff and was well-prepared. She gave her talk with energy, passion and style. When it was over, I counted 25 people who came up to her and handed her their cards, saying they were interested in speaking further with her. I heard them say so. After the room emptied, and while she was packing up her things, I walked up to her and introduced myself. We talked about how her presentations were generating new business for her firm and self-evident benefits for herself. She said she had been doing approximately eight to 10 presentations a year. Each year, her speaking had led to increased revenues. We shared a knowing laugh when I told her our consulting firm has seen the same results. When I asked her what the key to her success was, she said, “Most lawyers think it is a waste of time to speak because they don’t want to make the effort to practice. Most of my colleagues have the attitude that it is always about them but, in the real world outside of law, it is all about the needs of the audience. That’s why I continue to speak and keep growing my practice at an unbelievable rate each year.” n Jeff Wolf is known as one of the country’s top business development coaches, is a highly sought-after consultant and has worked with hundreds of attorneys to become successful rainmakers. He has been featured on NBC, CBS, CNBC and FOX. As founder and president of Wolf Management Consultants, LLC, he has built a valued practice that addresses the critical problems confronting lawyers and law firms today in the areas of business development, career development, skill development and firm development. He may be reached at jeff@ wolfmotivation.com or in his San Diego office 858-638-8260.
Attorney Journals Orange County | Volume 162, 2019
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Lawyers, this Approach Can Backfire on You by Nancy Myrland
B
e very careful. If this is not your style, then suddenly adapting it because you think everyone else is doing it is going to backfire on you. Lately, I have seen some people produce content that has them jumping at the camera and using bigger sounds and more drama in their audio. I am all for adding one’s personality to whatever the content is, but doing it the wrong way can hurt more than help. Let’s talk about a few examples.
More Inflection and Gestures In writing, we have the added responsibility of putting our personality into our words so they punch a little bit and so that people can picture us when they’re reading our words. You want them to picture you when they read your words, don’t you? You don’t want them to become bored when they read what you write. That is why you will continue to see so many suggestions about writing conversationally and to incorporate storytelling when writing or speaking. These practices help your words come to life, which is what you want. In audio, we also must use a little bit more personality, or what might be interpreted as inflection. Some are naturally a little bit more dramatic when they speak. Dramatic isn’t even a good word; rather they tend to use a little bit more personality when they speak. They don’t have to worry about adding that much additional inflection. Then there’s video. What I’m seeing lately really concerns me. This isn’t with everybody, but I think this is happening with more people because they are watching Gary V., or Gary Vaynerchuk. You may have heard of him. Gary can be pretty animated. He can also be low key. He and other video marketers or video producers have a lot of high-energy practices they incorporate into their content. They jump at the camera, and they suddenly use elevated motions and sounds. Gary does this naturally and has done it so long that it is natural and effective … for him. Come to think of it, I think Gary’s use of these motions has decreased over the years. His style has evolved. Some who are attempting to adapt his more animated style as their own make it appear as though they are saying “OH MY GOSH, everything is the BEST and the GREATEST, and I’m going to yell at the camera, or I am going to incorporate a jump cut here and a jump cut there.”
Don’t Copy if It’s Not You I’ve seen a few people I know who use this very effectively, but I’m also seeing some people try to copy some of these practices and going a bit overboard. Do you know what the problem is? The problem is that this is not them at all. I click on one of their videos or one of their messages and I last about two or three seconds and I’m gone … if I even open it … because 8
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they’ve begun to get a reputation for being overly dramatic and over-the-top. I’m someone that finds it challenging to watch or listen to people who are not being themselves or not being authentic in their delivery.
This Is Why It Happens I know when we’re producing something like audio or video and even writing, we get into the mode of thinking we must deliver something a little bit more than what we normally would in regular conversation because we’re in a marketing mode. We know we need to stand out from others by not being the same. Instead, what we need to do is to practice regularly so we get to the point where we are just being ourselves and letting our personalities shine, letting our personalities enter the conversation, and using inflection when we normally would. Of course, if you don’t use any inflection, find a way to work it in naturally, or work with someone who can help you do that.
My Suggestion to You • What I want you to do is to watch those people who are using these practices authentically and where it seems natural. That is the practice that is going to be most effective for you, not emulating actions that don’t match your personality or your brand. • Show your passion and excitement, but don’t stretch it to the point that it is unnatural or not in agreement with who you are when others meet you offline. • Don’t incorporate practices just because someone told you that was the latest and greatest editing practice, or because you think you must jump out of the screen to get everyone’s attention. • Please don’t start raising your voice because you think I am going to listen to you, because that is likely not going to happen … at least not a second time.
Bottom Line This can really hurt you in the long run. If this is not your personality, then nobody’s going to listen, read, or watch. Then what have you accomplished? Well, absolutely nothing but turning people away. n Nancy Myrland helps lawyers grow their practices and provide training and guidance to make that happen. She teaches lawyers & legal marketers how to strategically integrate social & digital media into existing marketing and business development practices to retain clients & grow firms. To learn more, please visit: https://www. myrlandmarketing.com/.
COMMUNITY news n Tyson & Mendes LLP has expanded to Orange County with a new office that will be led by new Managing Partner Richard Somes. The location will allow the leading insurance defense firm to increase its complex litigation work in the region for a wide array of clients. Somes, RICHARD SOMES who will serve as Managing Partner of the Tyson & Mendes Orange County office, has extensive litigation experience representing individuals and businesses in state and federal courts throughout California. His practice focuses on general liability, premises liability, personal injury, surety law, construction, medical malpractice, toxic and mass torts, and employment law. Somes joins Tyson & Mendes after 12 years working at Koeller, Nebeker, Carlson, Haluck LLP in Irvine. “Rick has been extremely successful throughout his career, saving clients millions of dollars and achieving exceptional results,” said Tyson & Mendes Managing Partner Robert Tyson. “With him leading the new Orange County office – alongside our expanding branches in San Diego and Los Angeles – we will be able to provide our unique methods for success to the entire Southern California region.” n Snell & Wilmer is pleased to announce that Orange County attorney Sarah M. Ayad has joined the Board of Directors for Mariposa Women and Family Center. Ayad concentrates her practice on product liability litigation in state and federal courts, with an emphasis on defending motor vehicle and SARAH M. AYAD consumer product manufacturers and suppliers against claims of wrongful death and catastrophic injury. She obtained her J.D. from the University of California, Hastings College of the Law in 2016 and her B.A. in political science from the University of Southern California in 2012. Ayad serves on Snell & Wilmer’s Diversity and Inclusion Committee and the Public Law Center’s Silent Auction Committee. She is a member of several local law groups including the Orange County Coalition for Diversity in the Law. Mariposa Women and Family Center is a nonprofit organization that specializes in women’s health issues, including counseling, mental health, drug and alcohol support, domestic violence, community workshops and professional training. Since its inception, the organization has been passionate about improving the health of local communities through the well-being of women, their children and their families. 10
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n Best Lawyers has named 13 Stradling partners to its 2020 list of Best Lawyers in America. The annual recognition of leading lawyers is based on a rigorous, national peer-review survey involving more than five million evaluations. Best Lawyers is the oldest peerreview publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere. The following attorneys have been selected for inclusion: • Jason Anderson – Real Estate Litigation • Larry Cohn – Biotechnology & Life Sciences • Marcie Damisch – Healthcare • Jason De Bretteville – Commercial Litigation • Chris Ivey – Corporate • Karla Kraft – Commercial Litigation • James Richman – Real Estate • Marc Schneider – Commercial Litigation • Mark Skaist – Venture Capital Law • David Thompson – Public Finance Law • Steven Hanle – Intellectual Property • Alice Ostdiek – Public Finance Law • Fred Neufeld – Bankruptcy and Restructuring n For the third time in the last five years, a Minyard Morris attorney has been recognized as “Orange County Family Law Lawyer of the Year” by Best Lawyers in America©. Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. Partner Lonnie K. Seide, CFLS, JD has been selected for 2020. Founding partners Michael A. Morris, CFLS, JD and Mark E. Minyard, CFLS, JD were selected in 2018 and 2016, respectively. All are Certified Specialists in Family Law by the State Bar of California Board of Legal Specialization. Based in Newport Beach, Minyard Morris has limited its practice to family law for over 40 years. Practice areas include, among others: Divorce Litigation; Business Valuation; Child Custody and Visitation; Paternity; Spousal Support; Characterization and Division of Complex Assets; Deferred Compensation, Plan Valuation and Characterization; Domestic Violence; Retirement Plan Valuation and Characterization; Separate Property Tracing; Stock Option Characterization and Apportionment; and Validity of Premarital and Post marital Agreements.
LONNIE K. SEIDE
MICHAEL A. MORRIS
MARK E. MINYARD
Orange County’s Premier
REAL ESTATE, BUSINESS, TRUST & ESTATE PLANNING ATTORNEYS
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California Case Summaries New California Civil Cases by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https://californiacasesummaries.mykajabi.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty’s case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.
CALIFORNIA SUPREME COURT Civil Procedure Wilson v. Cable News Network, Inc. (2019) _ Cal.5th _ , 2019 WL 3281342: The California Supreme Court affirmed in part and reversed in part the Court of Appeal’s judgment in a wrongful termination case holding that the anti-SLAPP statute (Code of Civil Procedure, section 425.16) did not apply to claims alleging discriminatory or retaliatory employment actions, or to a defamation claim for privately discussing the alleged reasons for plaintiff’s termination with potential employers and others. The California Supreme Court ruled that the anti-SLAPP statute has no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges may qualify as protected speech or petitioning activity under section 425.16. Because defendant employer established that some of plaintiff’s claims arose in limited part—though not in whole—from protected activity, the trial court should determine whether those portions of plaintiff’s claims had enough potential merit to proceed. The Supreme Court held that the privately communicated remarks were not made in connection with any issue of public significance, so the antiSLAPP statute did not apply to them. (July 22, 2019.)
Settlement Monster Energy Co. v. Schechter (2019) _ Cal.5th _ , 2019 WL 3022773: The California Supreme Court reversed the decision of the Court of Appeal holding that attorneys signing a settlement agreement with the words “Approved as to form and content” were not liable for a breach of a confidentiality provision in the agreement. The Supreme Court concluded that the notation “approved as to form and content” means that counsel has read the document, it embodies the parties’ agreement, and counsel perceives no impediment to his client 12
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signing it. An attorney’s signature on a document with such a notation does not, as a matter of law, preclude a factual finding that the attorney intended to be bound by the document’s terms. The intent question requires an examination of the agreement as a whole, including substantive provisions referring to counsel. Ultimately, this question would be resolved by the trier of fact. This issue arose in this case via an anti-SLAPP motion to strike filed against the complaint alleging violations of the confidentiality clause in a settlement agreement. The Supreme Court ruled that plaintiff had sufficiently showed a probability of success on the merits so the anti-SLAPP motion should have been denied. (July 11, 2019.)
Taxes City and County of S.F. v. The Regents of the University of Cal. (2019) _ Cal.5th _ , 2019 WL 2529253: The California Supreme Court reversed the Court of Appeal decision that had affirmed the trial court’s denial of a writ petition seeking to compel respondents to collect and pay to petitioner a tax on drivers who park their cars in paid parking lots. The California Supreme Court ruled that the California Constitution allows petitioner to apply this tax collection requirement to state universities that operate paid parking lots in the city of San Francisco. (June 20, 2019.)
Torts Quigley v. Garden Valley Fire Protection Dist. (2019) _ Cal.5th _ , 2019 WL 3071308: In a personal injury action where a firefighter was injured when she was run over by a water truck as she was sleeping, the California Supreme Court reversed the Court of Appeal decision that had concluded that defendants did not waive their defense of immunity under Government Code section 850.4 by not alleging it as an affirmative defense because it was jurisdictional and could be raised at any time. The California Supreme Court disagreed, ruling that section 850.4
immunity does not deprive a court of fundamental jurisdiction but rather operates as an affirmative defense to liability that may be forfeited if not timely raised. The case was remanded to determine whether or not defendants had waived their defense of immunity under section 850.4. (July 15, 2019.)
CALIFORNIA COURTS OF APPEAL Arbitration Valentine v. Plum Healthcare Group, LLC (2019) _ Cal. App.5th _ , 2019 WL 3338166: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration of an action for elder abuse and wrongful death. The plaintiffs were the husband as decedent’s successor in interest, the husband individually, and the children of decedent. The trial court properly found that, although the husband did not sign the arbitration agreements as decedent’s agent, he expressly bound himself to arbitrate all claims he held individually and as the successor in interest. As a result, both decedent’s claim for elder abuse and the husband’s individual claim for wrongful death were subject to arbitration. However, the trial court properly denied the petition because the children’s claims were not subject to arbitration and allowing the arbitration and the litigation to proceed concurrently could result in inconsistent findings of fact and law. (C.A. 3rd, filed July 2, 2019, published July 25, 2019.)
Attorney Fees Hanna v. Mercedes-Benz USA (2019) _ Cal.App.5th _ , 2019 WL 2511940: The Court of Appeal affirmed the trial court’s order, following a settlement for $60,000 of a Song-Beverly Consumer Warranty Act (Civil Code, section 1790 et seq.) action, awarding plaintiff costs of $13,409.21. However, it reversed the trial court’s order awarding plaintiff attorney fees of only $60,869 instead of the fees requested of $259,068.75 using the lodestar method. The Court of Appeal ruled that plaintiff was entitled to recover attorney fees after a January 2016 CCP 998 offer from defendant, the trial court erred in failing to use the lodestar method to determine fees after the January 2016 998 offer, and a fee award under the Song-Beverly Act may not be based on a percentage of plaintiff’s recovery. (C.A. 2nd, June 18, 2019.)
Attorneys Doe v. Superior Court (2019) 36 Cal.App.5th 199: The Court of Appeal granted a petition for writ of mandate directing the trial court to vacate its order granting defendant’s motion to disqualify plaintiff’s attorney and enter a new order denying the motion. Plaintiff brought claims for sexual harassment and sexual assault against defendants Southwestern Community
College District (District) and three District employees. The complaint also alleged sexual harassment of two other female District employees which presumably showed that defendant had notice of other similar misconduct. The trial court granted a motion to disqualify plaintiff’s counsel because he spoke with a District employee before her deposition was taken. There was no evidence that the employee had accepted the District’s offer to represent her or had otherwise retained counsel at the time of the contact. The Court of Appeal ruled that the purpose of California State Bar Rules of Professional Conduct Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable. It is not designed to prevent a plaintiff’s lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable. (C.A. 4th, June 13, 2019.)
Civil Procedure Cole v. Hammond (2019) _ Cal.App.5th _ , 2019 WL 3315786: The Court of Appeal reversed the trial court’s order granting plaintiff’s oral motion to voluntarily dismiss a case without prejudice, pursuant to Code of Civil Procedure section 581(b) (1), during a hearing on defendants’ motion to dismiss the action for failure to bring the case to trial within five years under Code of Civil Procedure section 583.360. In 2011, plaintiff sued defendants because they refused to pay rent to plaintiff based upon an assignment of rent from the landlord who owed a $500,000 judgment to plaintiff. A few months after the lawsuit was filed, defendants started paying rent to plaintiff. Some initial discovery was done, but the case languished for years. In January 2018, defendants moved to dismiss the case under section 581(b)(1). The trial court erred in denying defendants’ motion for mandatory dismissal and instead granting plaintiff’s motion for voluntary dismissal. The trial court was ordered to grant the motion for mandatory dismissal. A mandatory dismissal would be a determination on the merits entitling prevailing party defendants to attorney fees under Civil Code section 1717. (C.A. 2nd, July 24, 2019.) Samsky v. State Farm Mutual Automobile Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 2610898: The Court of Appeal reversed the trial court’s order denying claimant’s motion for attorney fees under Code of Civil Procedure section 2033.420 for having to prove during an arbitration matters that respondent denied in its response to requests for admissions. The Court of Appeal ruled that the party opposing the motion for attorney fees has the burden of proving that one of the exceptions in section 2033.420(b) applies, and the trial court erred in requiring the moving party to prove that none of the exceptions applied. Because claimant proved he was entitled to costs under section 2033.420(a), and respondent failed to prove that any of the exceptions to a cost award applied to it, the matter was remanded to determine the amount to be awarded to claimant. (C.A. 2nd, June 26, 2019.) n 13
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PRESS Hepburn, Hernandez & Jung Trial Attorneys’ Relentless Pressure Leaves Opponents Scrambling
O
nce a client signs the retainer agreement, the partners at HHJ Trial Attorneys pick the lead attorney best suited for the case. Partner Michael Hernandez says, “Each attorney brings a different set of skills to the table. Elliott (Jung) is great with science and doctors, Adam (Hepburn) is great with complex legal issues, and I will take on any issue in any setting. But with that said, every case is different, and we pick the lawyer that is best suited to win to be the lead on that case.” Once chosen, the lead attorney creates a game plan and delegates tasks to the other attorneys at the firm. The attorneys all work together to start building their offense and the litigation train begins. “HHJ Trial Attorneys doesn’t give opposing counsel the opportunity to breathe; the attorneys apply a full court press in every case to make opposing counsel know off the bat that this will be the worst months of their (legal) lives,” Hernandez says.
Public Defenders to Civil Plaintiffs’ Attorneys The three partners at HHJ Trial Attorneys started their careers at the San Diego County Public Defender’s office. Hepburn says, “the Public 16
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Defender’s Office gave us invaluable experience. We were trying cases from start to finish while we were still in law school. The PD’s office has some of the best trial attorneys around, and it is one of the greatest environments to work and to learn the practice of law.” After passing the bar exam, Hepburn, Hernandez and Jung were immediately hired out of hundreds of applicants. In the first couple years as attorneys, the three young attorneys distinguished themselves as exceptional trial attorneys that were willing to take any case to trial. A
JOURNALS
LAW FIRM
OF THE MONTH
© Bauman Photographers
2019
The HHJ Trial Attorneys team – Michael Hernandez, Adam Hepburn and Elliott Jung
former client said, “Michael is a machine. He told me that my case was a total loser, but the deal is not worth taking because I was going to get the same deal or better after trial if we lost. Michael said we should go to trial and give the prosecutor some gray hair and maybe pull out a win. In trial, Michael was a magician. In jury selection he memorized all 50 of the jurors’ names. It was incredible. We ended up getting a hung verdict and the judge dismissed my case.” Within the five years that Hernandez was at the Public Defender’s office, he established a reputation for taking on the
most difficult cases and winning them at trial. At one point, he won six straight jury trials. Another attorney in the community said, “Michael was winning the craziest cases. In one case, his client was charged with driving under the influence and crashed into a pack of horses with people on them. The client blew a .18 on the breathalyzer, Michael took it to trial and won. In another case, Michael’s client was charged with theft when he was exiting Target with a shopping cart full of items. Michael told the jury that his client was just pretending to steal to see if the loss prevention officer following him was racially profiling Attorney Journals Orange County | Volume 162, 2019
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© Bauman Photographers
him. The jury came back with a full acquittal.” In another case, Hernandez represented a rap artist who was charged with driving under the influence of marijuana. The jury returned a verdict of not guilty and Michael asked the judge to make the Sheriff’s Department give the two pounds of marijuana they seized back to his client (before marijuana was legal in California). The judge granted Michael’s motion and the Sheriff’s Department returned the marijuana. Shortly after, Michael’s client expressed his gratitude by giving Michael a shout-out in a rap song titled, “Don’t Judge a Book by its Cover.” Michael was quickly elevated to felonies where he worked on serious and violent crimes. Michael specialized in high-profile drug smuggling cartel cases where he represented people charged with smuggling kilos of narcotics across the United States and Mexican border. Hepburn’s track record of success at the Public Defender’s Office began even before he was licensed to practice law. He obtained a not guilty verdict for a wrongfully accused U.S. Navy serviceman where the prosecution wouldn’t let down. Hepburn remembers the client telling him, “Thank you so much, I’m telling everyone to call you if they ever need an attorney,” and Hepburn smiled and said, ‘Well, thanks, but I’m actually just an 18
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intern, I don’t have a bar card yet.’” It wasn’t long until he did become an attorney and achieved trial win after trial win, gaining a reputation as a skilled litigator amongst his peers and the court. He obtained not guilty verdicts in many misdemeanor and serious felony cases. One of his favorite not guilty verdicts was a case where his client’s conduct was captured on camera and law enforcement used a confidential informant. Hepburn used the entrapment defense, when most of his peers told him it would never work. Hepburn spends much of his time giving back to the community by serving as a trial coach to law students at his alma mater, California Western School of Law. He believes his experience and time at the Public Defender’s Office served as the best training ground to become an aggressive plaintiff’s attorney, a switch he made after nearly five years of working for the county. Jung has also had dozens of trial wins when he was at the Public Defender’s office. Most notably, he had a client who was charged with vehicular manslaughter after he ran into a man riding a bicycle in the middle of the night. Jung found a police officer in the case that analyzed the crash scene and determined that his client was not culpable. After going to his house to track him down, he and his investigator learned that this officer walked into a meeting with the District Attorney’s Office and tried to tell them that he believed it was too dark outside for the client to see where the body was placed and he thought they should drop the charges. They asked the investigating officer to leave the room and they continued to prosecute the case. Jung subpoenaed the officer to explain his side of the story at trial, arguing that his client was a medic in the military, and would never leave a person behind. The jury quickly returned a not guilty verdict.
Attending Gerry Spence Trial Lawyer’s College All three partners were accepted into the Gerry Spence Trial Lawyers College in 2015 and 2016. The Trial Lawyers College is known as the most prestigious trial training program in the world. It is hosted only twice a year on Gerry Spence’s ranch in Dubois, Wyoming. The college only takes an average of 50 students across the nation for each session that lasts between three to four weeks. Many of the top trial attorneys in the nation, including Gerry Spence, fly in to teach presentation and delivery techniques. In fact, professional actors and psychodramatists work daily with the students with the goal of mastering the art of presentation. At one point, Harrison Ford landed his helicopter on the ranch and started teaching the lawyers acting skills. While at the ranch, Hepburn, Hernandez and Jung worked with elite plaintiffs’ personal injury attorneys on specific
@DavidHatfieldPhotography
techniques involving opening statements and presenting damages to a jury. They were immediately drawn to this style of storytelling because it allowed them to convey a full picture of their client to the jury. They loved to be able to convey a picture that started from the beginning of the client’s story, unlike the story they were generally bound to when representing people accused of crimes, where they were limited to a narrow window with the goal of highlighting reasonable doubt.
Leap to Civil Law After the Trial Lawyers College, Hepburn, Hernandez and Jung created a plan to build a law firm where they could handpick clients that needed them most. They would use their individual skills and work as a team to build each client’s case. They would tell the opposition what they are willing to settle a case for instead of asking what the other side was willing to settle for. If the case did not settle for the just amount, they would take it to trial. In March of 2018, all three left the San Diego Public Defenders’ Office and opened up Hepburn, Hernandez & Jung Trial Attorneys. All three partners work up every case, giving each client the benefit of having their own team of attorneys. Hepburn says, “I have an intense focus on evidence. Elliott is one of the best story-tellers in the industry, and Michael is the creative force and master strategist. We use all our skills to make sure our presentation is flawless.” Hepburn is the head of the personal injury department. Jung handles personal injury and employment law and Hernandez handles personal injury, criminal defense and civil rights cases. The firm deals with nearly every type of personal injury case, including severe spinal injuries, brain injuries, and wrongful death. They work with the best experts in the field and are aggressive in fighting for clients who have suffered any type of catastrophic injury. They employ three attorneys, two paralegals, two law clerks, and three investigators. In their first civil trial, the defendant’s insurance company refused to pay their client her offer of $23,000 for neck and back pain she felt after a collision. The defendant’s policy was only $50,000. The insurance company said that she wasn’t hurt because the impact was minor and she over-treated. The insurance company offered only $4,000 to settle the case. HHJ Trial Attorneys stepped in on the case last minute to take this insurance company head-on at trial. During trial, the insurance company spent tens of thousands of dollars calling expert doctors that graduated from Harvard and the University of Pennsylvania medical schools. These doctors testified that the x-rays and MRIs showed no sign of injury and insinuated that the client was faking the injury. Hepburn gave the opening statement and presented every
witness to the jury. Jung cross examined the experts, pitting them against each other, and gave the closing argument. He went into detail about how the client’s life had changed. He talked about her love for running and how that was taken away from her. He described intimate details about her pain, that he only knew through spending countless hours with her. The jury started deliberating and within a couple hours they reached a verdict of $110, 217.17. This number was an extreme outlier because it was over 27 times the offer. One juror stated, “I was in awe of Adam and Elliott’s performance throughout the jury trial. At one point during closing arguments I got tears in my eyes thinking about how hard Elliott was fighting for his client and how good it must feel to be his client watching him and knowing he was doing everything in his power for her.” After the trial the defense attorney offered to pay the full policy of $50,000. The attorneys at HHJ rejected the offer and started preparing to file a lawsuit against the insurance company for bad faith for the remaining $60,000. The insurance company backed down and paid the full value reflected in the jury’s verdict. Hepburn says this is just one of many cases that affirms the partners’ combination of effective storytelling and willingness Attorney Journals Orange County | Volume 162, 2019
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to litigate, based on a genuine love for the art of lawyering. “We are constantly attending legal trainings and consulting with the best attorneys in the country to sharpen our skills as trial attorneys. Our firm places obtaining justice for our clients over our own personal profit as a firm, because that’s how legal representation should be—the client always comes first. Many of our cases end up in litigation because we know we can get the client more if we keep fighting. We take on a limited number of cases where we know we can give our client the full attention and dedication that they deserve. We pride ourselves on being connected to our clients. Every client has our personal cell phone number and can contact us anytime,” he says.
About HHJ
The Big Barn, Wyoming
Since the start of the firm in 2018, HHJ Trial Attorneys has recovered millions of dollars for their clients. They have taken on giant corporations, gone toe-to-toe against the biggest law firms, brought lawsuits against high-profile celebrities such as Drake and Odell Beckham Junior, sued banks in complex employment disputes, litigated cases throughout the United States, appeared in federal court, and handled many high-profile media cases. HHJ Trial Attorneys are often consulted on serious cases by other attorneys to aid in trial strategy and presentation. Approximately 30 percent of their cases are brought in from other firms hiring them for their litigation skills. HHJ is well known for giving generous referral fees to referring attorneys and donating their time by helping new attorneys. “With more than 100 jury trials of experience, the attorneys at Hepburn, Hernandez & Jung Trial Attorneys will continue their zealous advocacy on behalf of those who have been wronged and those who deserve a team of attorneys that won’t stop until justice is served,” Hernandez says. ■
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© Dan C. Schaar at CZR
Contact HHJ Trial Attorneys (Hepburn, Hernandez & Jung Trial Attorneys) 945 4th Avenue, Suite 201 San Diego, CA 92101 888-505-2934 www.hhjtrialattorneys.com Instagram: @hhjtrialattorneys Facebook: hhjtrialattorneys
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Electronic Signatures in the Courts by David Peterson
B
ecause electronic signatures have become more common in the business community, now is a good time to review some of the legal issues that arise in the use of electronic signatures. There are several statutes that give legal effect to electronic signatures in many instances, and electronic signatures have been accepted as valid by the courts. The use of software such as DocuSign and Adobe Sign (previously known as EchoSign) is becoming common. This software offers some features and related services that are not available to negotiators who are simply exchanging emails. From a legal standpoint, the most noteworthy feature is an audit trail that can be used in court to show the circumstances surrounding the execution and delivery of the documents, and to authenticate the signatures. Attorneys often must introduce documents in court proceedings. It is not simply a matter of handing a copy of the contract to the judge. A witness with knowledge must identify the contract and testify that the parties did in fact execute and deliver the contract. If the representatives of each party were together in a room and watched each other sign the document, it may not be difficult to provide that testimony. But if the documents were transmitted over the internet, and the only evidence is that the sending party received an email confirming the agreement, it may be more difficult—particularly if the opposing party denies sending the email confirmation. DocuSign and Adobe Sign keep a 22
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record of when the contract was emailed to the parties, when they signed the contract with their electronic signatures, and when the signed contract was returned to the sender. They also offer security features intended to confirm the identity of the signer. This audit trail can assist the party seeking admission of the document in a court proceeding. In one case, for example, Schrock v. Nomac Drilling, LLC, 2016 WL 1181484 (W.D. Pa. 2016), the defendant claimed that the EchoSign electronic signature on the agreement was not his. He claimed that the email transmitting the document was directed to a company email address rather than to an email address that was personal to him. However, the court agreed with the plaintiff that the signer’s identity was adequately verified by the fact that the signer entered the last four digits of the defendant’s social security number, as required by the EchoSign software, and evidence showed that the defendant was present on the worksite at the time of the e-signature. The Schrock case has no authoritative force because it is a lower court opinion and was not published, but it illustrates that some courts are willing to accept the procedures offered by e-signature software to authenticate the signatures. However, it can also be a hindrance if the parties have been less than diligent in following the procedures required by the software. For example, the software inserts a code on each page of the document to ensure that the document to which
the signature was affixed was the same document provided to the party for signature. In business, however, it is not unusual for parties to sign signature pages in advance of closing and then for those pages to then be attached to a completed final version of the agreement at closing. In the final document, the code may appear only on the signature page, which might make it difficult to authenticate the document in court. In another unpublished lower court proceeding, Scholar Intelligent Solutions, Inc., v. New Jersey Eye Center, P.A., 2016 WL 5745112 (D.N.J. 2016), the plaintiff relied on a DocuSign signature, and the defendant denied signing. The court found that the lack of a DocuSign code on the signature page raised a significant issue that required a trial since the other pages of the contract did have such a code. The software might also insert into the document alerts that there were irregularities in the execution or delivery of the documents. The software, for example, might warn that one or more of the signatures could not be authenticated or are missing, or that the document has been changed in some way. In some instances, those warnings may not be entirely accurate in their description of the issue. For example, it may be that only some of the parties executed the document electronically. The signatures of those who signed in ink may be reported as missing because they were not added to the electronic version of the document. The warnings may in some instances help the parties comply with all of the procedures imposed by the software, but if the parties do not follow up on those warnings or procedures, then the final signed document may raise ambiguities that might motivate
a court to require additional proof or simply deny admission of the document into evidence. Moreover, an attorney who is being asked to give a legal opinion based on such documents might balk at doing so. Although there are several reported cases where the courts have admitted documents signed electronically and there are statutes that require them to do so in some instances, there are few reported cases in this area as of the current time. There is little doubt, however, that the expanding use of electronic signatures and software designed to facilitate electronic signatures will continue to give rise to disputes that will need to be resolved by courts. Parties who use such software should be aware that the software is very demanding in its authentication procedures. If the parties are not able to comply with those procedures, then it might be better to use a more traditional, non-electronic method of executing and delivering the documents.  n David Peterson has a broad background in commercial litigation, including bankruptcy, creditors’ rights, and foreclosures, as well as commercial transactions, including lending transactions, sale transactions and secured transactions. Dave represents lenders, creditors and lessors in sophisticated Chapter 11 reorganizations and Chapter 7 liquidations. He has represented creditors in negotiating Chapter 11 bankruptcy plans, as well as litigation concerning confirmation of bankruptcy plans. He has handled preference litigation, fraudulent conveyance claims, exemption litigation, and a wide range of other kinds of litigation arising out of bankruptcies, including appeals. Learn more at www.lowndes-law.com.
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Shrewd Marketing Moves Most Lawyers Miss by Trey Ryder
Follow these proven marketing secrets to gain a competitive edge in your effort to attract new clients and increase referrals.
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Define and dominate your niche early. The first lawyer in a category usually becomes known as the authority in his field. He has a much stronger marketing position than lawyers who follow. You get no points for being an also-ran. If another lawyer already dominates the niche you want, create a new specialized niche in which you can be first. When you hold the first position in your niche, prospects seek out your services because they perceive you to be the most knowledgeable, experienced attorney in your area of law.
2
Don’t underestimate the importance of your marketing message. When lawyers conclude that a marketing method doesn’t work, the problem is usually not the method. The problem is almost always
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a poor or incomplete marketing message. Some lawyers accept that not all prospects will hire their services, so they move on to other potential clients. They deduce that these prospects are really window shopping and have no intention of buying. After reaching this conclusion, lawyers feel satisfied because now they have a plausible explanation for something they could not otherwise explain. After attending hundreds of lawyer seminars, and reviewing stacks of lawyer marketing materials, I’ve found that lawyers routinely face three major marketing obstacles: (1) Their marketing message is not complete. (2) Prospects don’t understand what the lawyer says. And (3) the lawyer’s message does not motivate prospects to act. Before you launch your marketing program, make
sure you create a complete marketing message that prospects understand and motivates them to hire you. Without a powerful message, your marketing program will fail.
3
Appeal to your prospects’ self interest. Prospects will hire you only if they know how they will benefit. Prospects always ask, “What’s in it for me?” Make sure your message focuses on your ability to help prospects prevent a problem, solve a problem, or achieve a goal. The most powerful way to explain how your prospect benefits is by following this principle: The fear of loss is greater than the desire for gain. In your marketing message, explain that when your prospect hires your services, you will help him keep from losing what he has—and you will help him achieve the results he wants. Also, make sure you emphasize what your prospect loses if he doesn’t hire you.
4
Make sure prospects know how you differ from other attorneys. Prospects don’t hire you because you’re the same as other lawyers. They hire you because you’re different. Positive differences are your competitive advantages. Your strengths may be in your knowledge, skill, judgment, experience, reputation, speed, accessibility, responsiveness, self confidence, results, and other criteria. First, identify which competitive advantages are important to your prospects. Then emphasize to prospects how they benefit from those advantages when they hire you.
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Establish the highest possible level of trust. Prospects want to trust you, yet everyone today is skeptical. You increase your credibility when you (1) explain things in plain English, (2) discuss your prospect’s problem, (3) answer your prospect’s questions, (4) offer specific solutions, (5) explain how you have helped other clients in similar situations, (6) offer testimonials from past clients (not permitted in some jurisdictions), (7) offer letters of recommendation from professional colleagues (also may not be allowed), (8) discuss the depth of your background, education, and qualifications, (9) provide copies of newspaper articles you wrote or in which you were quoted, and (10) allow your prospect to make his own decision about hiring you, without pressure from you or your staff. To increase your credibility with prospects, review how you make decisions when you hire a professional. What do you look for? What can the professional do or say that will increase your level of trust? When you identify key steps that you find persuasive, adapt those elements to your presentation so you receive the same benefit.
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Keep your message simple. Every day, your prospects suffer from information overload. As a result, they screen out complicated messages. A simple message is the only message that has any chance of getting through. Dale Carnegie said, “The best argument is that which seems merely an explanation.” You know you have created a strong marketing argument when your prospects respond by saying, “That makes sense.”
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Don’t talk over your prospect’s head. (Almost everything you say is over your prospect’s head.) In most cases, when prospects understand you, they trust you. Try to address prospects at the sixth grade level using short, simple words. Many lawyers breeze through seminars and prospect meetings feeling reassured with the smiles and positive head nods they receive. They often conclude prospects understood what they said. Don’t believe it. Work hard to boil down your message to short words—vivid examples—relevant case histories—and simple analogies. If you must use a legal term, define it.
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When you begin an explanation, always go back to square one. When you assume your prospect knows and understands basic facts, you’re almost always wrong. Your message may be old hat to you because you’ve repeated it many times. But this may be the first time your prospect has heard it. Don’t assume anything. Don’t skip over anything. Always start from the beginning, lay the foundation for your explanation, and speak in plain, everyday English.
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Answer every question your prospect might ask. You can’t expect your prospect to hire you until he has enough information to make a hiring decision. The longer you keep your prospect’s attention—and the more information you provide— the more likely you are to earn a new client. Long marketing messages work, not because they’re long, but because they’re complete. Deliver your entire marketing message at every opportunity: In your written materials, at seminars and on your website. If you take shortcuts in the beginning, you’ll earn fewer clients in the end.
10
Invite prospects to call you with their questions. People often hesitate to call lawyers they don’t know because they aren’t sure whether their calls are welcome. Your prospect may not know whether you work on cases like his, whether he can afford to hire you, or whether he should act now or wait awhile. One simple, unanswered question may be all that keeps your prospect from hiring you. And if you have the opportunity to answer that question, this Attorney Journals Orange County | Volume 162, 2019
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new client could be yours. Make sure prospects know you welcome their calls.
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Use a warm, friendly photograph with good eye contact. Your photograph is worth five thousand words. The larger the size of your eyes, the more your photo will attract your prospect’s attention. Notice that I didn’t say a larger photo is better. It isn’t the size of the photo that matters, it’s the size of your face—specifically, the size of your eyes. When prospects see your photograph in your written materials and on your website, they feel as if they already know you. Your photograph creates the feeling that you’re together. So, when you can’t be in the room with your prospect, rely on your photograph to take your place.
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Restate important parts of your marketing argument. When prospects take in new information, they forget most of it. Yet, for your marketing effort to succeed, people must understand their problems and the solutions you can provide. Early in your meeting, list the important points you will make. Emphasize and explain those points during your time together. Then summarize them before your meeting ends. You help prospects remember what you said when you repeat key parts of your message. Also, you help them remember when you provide written materials that again deliver your message.
13
Use supportive, bonding words. Cold, impersonal words turn off prospects. Instead, attract clients using bonding words like “share”, “invite” and “welcome.” “I’m pleased to share this information with you.” “I welcome your call.” “You’re invited to call me at the office.” Make sure your prospect knows you’re working together to achieve a goal or solve a problem. Your prospect may already feel pressure from an adversary. Make sure he doesn’t see you as an adversary, too.
14
Write the way you talk. “Here is the material you requested” is much more friendly than “Enclosed you will find ….” When you write the way you speak, prospects hear your words as if you’re speaking to them. Your writing is warm and inviting, the way you are when you’re there in person. Cold, stilted expressions turn off prospects and give an unrealistic impression of who you are—unless you really are cold and stilted.
15
Don’t use advertising to deliver your marketing message. Instead, use ads to direct prospects to your message. For example, your ad can invite prospects to call for your free fact kit, attend your seminar, request your newsletter or visit your website. This saves you a lot of money, builds a mailing list of qualified prospects, and allows you to target your marketing efforts toward prospects who want what you offer. 28
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Sign letters in blue ink. Laser printers put so much black on the page that a black-ink signature hardly gets noticed. Blue ink has been a staple in direct mail letters for decades because marketers discovered that letters with blue signatures draw a higher response than letters signed in black. When you sign letters in blue ink, you draw attention to your signature and emphasize to your prospect that you signed the letter yourself.
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Use serif fonts to make your documents easy to read. Serif fonts, where the letters have little feet, are easier to read because serifs connect the reader’s eyes with the letters that follow. Sans serif fonts, without feet, tire your reader’s eyes because they have to manually connect the letters into words. (When your reader’s eyes get tired, he has all the reason he needs to stop reading.) Sans serif fonts work well for headlines and sub-heads where the words are large and bold, but not for paragraphs.
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Raise your rates and attract better clients. When lawyers hire me, I usually suggest that they raise their fees, for two reasons: (1) Marketing can be expensive. You need added revenue to cover your new overhead. (2) While low fees may attract new clients, they are usually not the clients you want. Clients who pay the smallest fees often cause the largest headaches. So increase your fees and you’ll screen out (at least some) troublesome clients.
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Make sure you get paid. All your work is pro bono until your client’s check clears the bank. Learn how to talk openly and proudly about fees. Explain that your fees are one measure of your knowledge, skill and experience. Explain that as an experienced lawyer, you can often solve a problem quicker—and negotiate a better result—than a lawyer with less experience. After you’ve made your educational presentation, don’t hesitate to ask your prospect for his permission to move forward and, if appropriate, a check. If your prospect doesn’t intend to hire you, the sooner you find out, the better. And if he does hire you, you can move on to other matters. Remember: If you can’t collect money, you’ll end up working for someone who can. The wise lawyer gets paid while his client is still in jail. n Trey Ryder shares his marketing method with lawyers through a wide range of publications. In addition, he writes and publishes his free e-zine, The Ryder Method™ of Education-Based Marketing. And he maintains the Lawyer Marketing Advisor at www.treyryder.com. He can be reached at: trey@treyryder.com
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