ORANGE COUNTY
Volume 175, 2020 $6.95
Lawyers, Develop New Business by Selling Yourself One Hour of Your Time Every Day
Jay Harrington
What Should Businesses Tell Employees and Third Parties When an Employee Tests Positive for COVID-19?
Ashley Parr
COVID-19 Made Content Marketing More Than a King
Jim Bliwas
Trial Presentation Best Practices for the Virtual Courtroom
Jim Gill
Attorney of the Month
Is Your Law Firm a Group of Cats or Dogs?
Joseph Altonji
Professional Growth During the Coronavirus
Wendy Byrne
Process Planning Is an Essential Prerequisite to Successful Mediation in the Post-COVID-19 Era
Hon. James V. Ryan (Retired)
Brian D. Chase, Bisnar Chase, Newport Beach “The Auto Defect Guy”
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2020 EDITION—NO.175
TABLE OF CONTENTS 6 When Ambiguity Leads to Opportunity: Professional Growth During the Coronavirus by Wendy Byrne
8 Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom by Jim Gill
10 Lawyers, Develop New Business by Selling Yourself One Hour of Your Time Every Day
EXECUTIVE PUBLISHER Brian Topor
by Jay Harrington
EDITOR Wendy Price
12 What Should Businesses Tell Employees and Third Parties When an Employee Tests Positive for COVID-19?
CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Joseph Altonji Jim Bliwas Wendy Byrne Jim Gill Jay Harrington Ashley Parr Hon. James V. Ryan (Ret.) 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.
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by Ashley Parr ATTORNEY OF THE MONTH
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16 Brian D. Chase, Bisnar Chase, Newport Beach “The Auto Defect Guy” by Dan Baldwin
24 Is Your Law Firm a Group of Cats or Dogs? by Joseph Altonji
26 COVID-19 Made Content Marketing More Than a King by Jim Bliwas
28 Process Planning Is an Essential Prerequisite to Successful Mediation in the Post-COVID-19 Era
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by Hon. James V. Ryan (Ret.) Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2020 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
When Ambiguity Leads to Opportunity: Professional Growth During the Coronavirus by Wendy Byrne
U
ncertainty is a gate that often holds people back from making big changes in their life. Nothing says uncertainty quite like a pandemic. As the coronavirus continues to hover over like a dark cloud, it is forcing change in our lives, while also presenting new opportunities. Arguably, using the words “opportunity” and “pandemic” in the same sentence might seem contradictory. However, whether you are one of the millions of people who lost their jobs as a result of COVID-19, or if you are employed and expected to work longer hours and take on more responsibility, this is an opportune time to pivot and reinvent yourself. This article addresses some ways you can make the best of these unprecedented times while recreating yourself both personally and professionally.
It’s Not You, It’s Me Start by taking a good honest look at yourself. Avoid the blame game, but instead, dig deep and ask yourself what self-imposed barriers have been holding you back. Be open to this inward process of self-assessment, and ask yourself: • Do you have antiquated habits or routines? • Are you afraid of making mistakes or have self-doubt? • Have you had a lack of will or courage? • Do you have a fear of change? • Are you unclear on what you want? • Have you been open with your boss about your professional goals? • Are your self-perceptions creating obstacles? Answering these questions will likely inspire more questions and indeed, you might discover you don’t like all the answers. Self-scrutiny is uncomfortable, but it is imperative. I like to remind people to go into this process with the mindset, “Never failure, only feedback.” The information you derive from this activity is the golden ticket that will allow you to start chugging down the road to newfound success. Keep a list of the barriers you identify and look back on it periodically to ensure you aren’t returning to the same pitfalls. 6
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Set Goals Goals are critical to get to the next level both personally and professionally. Take for example a runner who consistently wins races, yet isn’t improving her time. After some consideration, it is determined that she has only been motivated to run as fast as necessary to win a race. This realization gives her incentive to push herself to run as fast as she can, improve her time, and maybe even break some records. It gives her a target to aim for and motivation when running gets monotonous or grueling. Goals create accountability and focus. They are measurable, ward off procrastination, and foster control over your life. When setting goals, make sure your goals are: • Realistic and attainable—If you set unobtainable goals, you risk becoming disheartened and losing confidence in your abilities. • Measurable—In order to gauge your success, it is important to set specific ways to quantify your progress. Going back to the example of the runner, instead of just saying she wants to improve her times, she should determine what she wants her new running time to be, for what distance, and by what date. • Relevant—Keep goals aligned with the over-arching mission you want your life and career to take. Otherwise, you are striving for something that won’t benefit you in the long haul. • Specific—In order to get where you want to go, define precisely what you want the end result to be. Hence, guiding you in the creation of well-defined goals.
Your Next Act: New Opportunities In my career, I have experienced both being laid off and working through some very challenging times. Albeit difficult periods in my life, I can honestly say they were times of greatest growth and when I had the utmost self-discovery. Positives came from what some may have considered negative situations and they presented openings for me to accept new undertakings, learn new things, and get to work with new people in new environments.
I gained new strengths and developed professionally in areas I never even considered. When faced with arduous times, rise to the occasion and take the time to discover new things and invent the next act in your career. • Take risks—Be proactive and don’t wait for someone to create opportunities for you, but create them yourself. • Get a mentor and be a mentor—Good mentors can help you solve challenges and often see possibilities that you do not see. • Go outside your comfort zone—Raise your hand for new challenges. • Be vulnerable—Let down your guard and take on new things. You might make mistakes, but at least you tried. • Don’t wait for permission—Be proactive. If you see a problem, find a solution. If there is a job to be done, do it. • Connect internally—Get to know people in other departments and fields of work. Oftentimes, opportunity lies within other areas of an organization or outside of your profession.
Give Yourself a Round of Applause Among the many great things about making positive changes is the opportunity to celebrate your accomplishments. Celebration reinforces the hard work and dedication you put toward meeting your goals. Even if you feel that your hard work has gone unnoticed by others, remember these great reasons why it is important to applaud your achievements. • The law of attraction—Hanging your hat on your victories helps reinforce and cultivate a success mindset that will carry over into your work and future goals and attract more success. • The happy factor—Celebration releases endorphins, which relieve stress and pain and are said to produce a feeling of euphoria. • Gravitation and motivation—Reveling in your success is important to keep you inspired to move forward and gravitate towards making new goals.
• Explore—Research occupations and take the opportunity to uncover where you want a career to take you.
• It takes a village—Give a shout out to those who helped you meet your goals. Praising those who supported you helps strengthen relationships, recognizes how much you value their assistance, increases the chance of them helping you in the future, and makes those who championed you feel good.
• Take inventory—Evaluate your strengths and weaknesses and don’t be afraid to ask others to weigh in on what they see as your strengths.
• Reflection—While celebrating, evaluate what worked well throughout your journey, what you learned, how you handled obstacles, and what you would change next time.
• Leverage your network—No matter how many connections you have, they can’t help you if they don’t know your situation. Reach out to your network and make them aware of your position while being specific about what you are seeking. Don’t limit your points of contact within your network because you never know who people know. Making these touchpoints will also help expand your network in the long run. • Realize your priorities—Identify what is most important to you in the next phase of your life. Do you want more financial stability or are you seeking more time with your family? After all, if you are looking to spend more time with family, taking a job that requires you to travel a lot and work long hours will not be a good fit. • Remember it’s a process—Just as beetles undergo metamorphoses in order to become a ladybug, and butterflies transform from a caterpillar, keep in mind that alteration takes time, patience, and persistence. “Change doesn’t happen overnight—it’s molded by people who don’t give up,” says author Mary E. Pearson.
Enjoy the Ride In the words of motivational speaker Gabby Bernstein, “Fun in the present ensures flow in the future.” Don’t just focus on the end result, but be sure to have fun throughout the process. If you fixate too much on achieving your goals, the outcome can start to feel like a struggle. Fun is good, and creates happy feelings, which can make attaining goals feel less taxing. Choose to make each day enjoyable. Block out time on your calendar if you have to and remember fun doesn’t have to be related to your goals.
The Bottom Line There is no time like the present. Things are uncertain and upside down, but it isn’t necessarily bad news. Focus on the future and take this time to open your eyes to see new opportunities. Wouldn’t it be great if you can look back one day and say that the pandemic didn’t define you, but you defined the pandemic? n Wendy Byrne is Marketing Manager at law firm Shumaker, Loop & Kendrick, LLP. Connect with her at: https://www.linkedin.com/in/wendyedwardsbyrne.
Attorney Journals Orange County | Volume 175, 2020
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Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom by Jim Gill
As early as May, the ABA Journal was raising the idea of virtual trials becoming a part of the “New Normal,” an oftused phrase to indicate life moving forward in the aftermath of the global COVID-19 pandemic. Now, three months later, virtual hearings and trials are becoming a regular occurrence, and as they do, challenges arise with them. This week’s eDiscovery Blues cartoon tries to capture a few of those challenges with our usual combination of levity and insight; in particular, the struggle of an attorney being able to gauge the reactions of various parties while presenting an exhibit on screen. Also, it was hard to pass up the chance to show someone taking advantage of professional attire for the camera, while still rocking shorts and fuzzy slippers off screen.
A Few Basics to Consider for Trial Presentation in the Virtual Courtroom As most of us become accustomed to video conferencing and remote work, a few things start to become apparent as being necessary. Second Monitor: When you move from a real life setting to video, your brain might be expecting the outcome of a multi-camera television production, but the reality ends up something like today’s cartoon. But with Zoom calls, you actually do have multiple camera views to work with. This is where having, at minimum, a second monitor in order to optimize presenting as well as organizing participant and speaker views is crucial. Backgrounds, Dress Codes, Lighting and Audio: In the recent congressional hearings with the leaders of
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Attorney Journals Orange County | Volume 175, 2020
Google, Facebook, Amazon, and Apple, one thing that came out of that was an analysis of the speakers’ video presences (there was a great write up about it in the NY Times). Keeping that in mind, here are some things to consider: • Attendees should keep their background simple and neat (backgrounds such as a beach landscape or a galaxy are inappropriate for the courtroom). • As dress codes are still required, attire needs to be professional. At least follow the “Zoom mullet” approach—business on the top, party on the bottom. • Also consider staying away from striped patterns in clothing. In a recent hearing, one participant was constantly closing his eyes, because another participant’s striped blouse was making him slightly nauseous as the pattern was visually vibrating. • Good lighting is also very important. Avoid being backlit. Also avoid dark spaces and shadows, which can add an unintentional, somber mood. Ring lights are more popular than ever and for good reason. • If you have to choose between good audio or good video, choose good audio. Investing in a quality mic can have a huge impact.
Opportunities and Challenges for Virtual Trials and Hearings To get more insight into the current situation, I reached out to Alicia Aquino, who is a Trial Presentation Specialist and Litigation Consultant, for her take. “Online trials are such a controversial topic; however, we see it CAN be done. Whether you’re in-person or online, organization and preparation are the keys to a seamless trial.” She goes on to add a few of the challenges she’s currently seeing. “We are finding that access to technology may be an issue for some states and counties. In an ideal situation, jurors would use dual monitors during trial. As with an in-person trial, the cost of trial equipment is shared between parties, ensuring all jurors have an adequate setup may be the burden of the parties in the future. “Another challenge with online trials is the internet speed varies from home to home, and jurors and parties are being dropped, causing delay. A possible solution may be asking jurors to participate at a public setting (i.e. library or government building) which can accommodate for safe social distancing. “There is a high level of importance for a technical or ‘IT bailiff’ during an online hearing or trial to assist with the coordination of jurors, breakout rooms, and any other tech issues. This person is trained by the court to handle the back end of the platform and logistics. Some courts face an issue with the budget of having a full-time person assist with technology. “Court reporters are being tasked with pulling up exhibits in a deposition; however, having an experienced trial tech will help streamline this process. Let the attorney handle the legal arguments while the tech handles the software and evidence.”
Three More Things to Consider for Trial Presentation in the Virtual Courtroom For further insight on how to better prepare for virtual courtroom presentation, I turned to Janelle Vindiola, Senior Project Manager for the Ipro Trial Services Team. 1. Practice, Practice, Practice Take time for incorporating multiple practice sessions within your own legal team, so they can learn what to expect when presenting visual evidence in a remote environment. Practice sessions can help determine internet connectivity between parties (including witnesses) to allow time for upgrading equipment if needed. And, as the court is usually the web host, allow time for a practice session between court and counsel to understand the court’s expectations and requirements, as well as learning the workflows between all parties.
2. Organization of Exhibits is Key to a Smooth Presentation If it is not already part of the process, it is suggested for the legal team to share a daily outline of exhibits to be presented. Because the trial tech does not have the convenience of sitting next to counsel, an outline will help the tech easily follow the counsel’s direction of strategy and be on queue to present. Make sure to have an alternate file sharing application to support distribution, since Zoom has a file size limitation of 512MB. Also, courts are known to disable the chat and breakout rooms in Zoom, so the file sharing function may not even be available. It is crucial to make sure all parties are on the same application platforms to easily follow group communications and data transfers. For trial teams (including trial techs), they will need to confirm alternate communications and have their own private cloud share as well. 3. Security is Important Make rooms private where possible and assign someone to vet participants as they enter the discussion. Zoom has a “waiting room” where people must go before being allowed in as means to prevent “Zoom bombing.” Someone will need to monitor that area for attendees if the proceedings are open to the public. As web hosting may not be 100% secured, review and understand the security policies of your web application and best workflows. Zoom is constantly updating their security features; make sure everyone has the latest build.
Conclusion As Alicia Aquino puts it, “The COVID-19 pandemic has created an opportunity for the legal industry to embrace technology and move cases through a virtual space. Although online jury trials are not ideal for long term, it is a viable option until we can all safely enter the same courtroom together. Although most courts are already familiar with Zoom for online hearings, there is an opportunity for a platform to be customized specifically to our industry and online courts.” While there are certainly other challenges that will continue coming up, a little planning, preparation, and communication can go a long way. Things have definitely changed in the past few months, but it’s exciting to see how our industry is leveraging technology to keep the justice system moving forward. n Jim Gill is the Content Chief at IPro Tech, LLC. Learn more at www.iprotech.com.
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Lawyers, Develop New Business by Selling Yourself One Hour of Your Time Every Day by Jay Harrington
... the best investment you’ ll ever make is selling yourself one hour of your time every day. (Excerpted from Jay Harrington’s new book, The Productivity Pivot)
O
ne of the many consequences of the COVID-19 crisis is that traditional approaches to new business development in the legal industry have been upended. Many lawyers are still working from home. There are no more lunch meetings. Events and other in-person networking opportunities are nonexistent for the foreseeable future. Given the economic downturn, demand for most legal services is down, so new business opportunities are harder to come by. Accordingly, it’s more important than ever for lawyers to be disciplined and focused on business development, but discipline and focus are hard to deploy these days. Even pre-COVID-19, many lawyers struggled to prioritize business development. The 24-hour, ondemand, always-on work culture of the legal industry saps lawyers of the willpower and energy necessary to remain focused on the task-at-hand for more than mere moments. These circumstances make it difficult to keep up with client work. They make it seem nearly impossible to focus on important but not necessarily urgent issues like professional and business development. That’s a big problem, because professional and business development are the very things that allow lawyers to grow and thrive over the arc of a long legal career. Indeed, to succeed over the long-term, a lawyer must continually
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increase knowledge, improve skills, and build and grow relationships that will create new business opportunities. Failing to do so will result in getting left behind.
“But I Don’t Have the Time” In my coaching practice, when I challenge lawyers to devote more effort toward business development, the response I hear most frequently is some variation of “I simply can’t find the time.” When lawyers respond this way, it’s because they’re hung up on the limiting belief that their highest contribution is focusing, often to the exclusion of all else, on their clients’ priorities—and billing lots of hours in the process. You must ruthlessly prioritize the time necessary to focus on building a practice When you operate on the belief that your own priorities—in this case, building a legal practice—must be relegated to the bottom of your to-do list, you’ll never “find” the time for business development. We all have the same number of hours to work with. Instead, you must ruthlessly prioritize the time necessary to focus on building a practice, with the understanding that it’s the most valuable investment you can make in your most important client: yourself.
Make a commitment. Develop a plan. Block time on your calendar for business development.
Sell Yourself One Hour of Your Time Every Day Research suggests that autonomy—the feeling that you are in control of your circumstances—is the most important contributor to career satisfaction. Lawyers who desire more autonomy will likely never get it if they’re dependent on others for billable hours. With clients of their own, a lawyer will make more money, have more options, and be able to exercise more control over their time. Accordingly, while building a practice requires hard work, it’s an investment that has a big payoff, both in terms of financial rewards and personal well-being. But none of those benefits will accrue if you’re not consistently engaging in the activities required to develop new business. You must prioritize the time necessary to build a practice. In my new book, The Productivity Pivot, I discuss the importance of spending one hour every day focused on business development. It’s a methodology adopted from the experience of Charlie Munger, who co-founded the law firm Munger, Tolles & Olson LLP, and later became a billionaire businessman as Warren Buffett’s partner in Berkshire Hathaway. After graduating from Harvard Law School, Charlie Munger moved to California with his family and began practicing law as an associate at a law firm. Early in his legal career, Charlie came to an important realization that would help set him on a path toward massive success—as a lawyer and then as an investor. He recognized that he was spending all of his time working on behalf of his clients. As a result, he was doing little to serve the person he came to realize was his most important client: himself. For Munger, the realization that he was his own most important client led him to adopt a daily practice as a young lawyer that became critical to his long-term success. He began “selling” himself the most important hour of his day—every day, first thing in the morning— and he used the time to work on personal and professional development. He wasn’t satisfied with his circumstances, so he decided to work for himself—one hour every day— to improve them. In an interview he gave for his authorized biography, The Snowball: Warren Buffett and the Business of Life,
Buffett recounts Munger’s approach: “Charlie, as a very young lawyer, was probably getting $20 an hour. He thought to himself, ‘Who’s my most valuable client?’ And he decided it was himself. So he decided to sell himself an hour each day. He did it early in the morning, working on these construction projects and real estate deals. Everybody should do this, be the client, and then work for other people, too, and sell yourself an hour a day.” Most lawyers think the path to success lies in devoting as much time as possible to working for paying clients. However, as Munger learned and Buffett observed, the best investment you’ll ever make is selling yourself one hour of your time every day.
Don’t Let This Year Slip By If you find the idea of carving out an hour every day to engage in business development activities unrealistic, you’re not alone. Despite the fact that one hour constitutes merely ten percent of most lawyers’ time each workday, they view an hour-per-day approach as unsustainable. What’s unsustainable, however, is the sporadic, frenetic alternative. You won’t build a practice if business development is only something you focus on when it becomes an urgent priority. Chances are, you set some big business development goals for yourself at the beginning of 2020. Perhaps they seemed so big that you never got started working toward achieving them. Even if you did get started, the COVID-19 crisis may have thrown you off-track. Today, with less than four months left in the year, is the perfect time to revisit those goals. Make a commitment. Develop a plan. Block time on your calendar for business development. Start selling yourself one hour every day. n Jay Harrington is the owner of Harrington Communications, a leading digital marketing agency for law, consulting, and accounting firms. He specializes in helping law firms build engaging websites and digital marketing strategies through creative design and storytelling. Jay is author of three books, The Productivity Pivot, The Essential Associate, and One of a Kind. He hosts the podcast The Thought Leadership Project. Jay is a graduate of the University of Michigan Law School, and previously he was a commercial litigator and corporate bankruptcy attorney at Skadden Arps and Foley & Lardner.
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What Should Businesses Tell Employees and Third Parties When an Employee Tests Positive for COVID-19? by Ashley Parr
As COVID-19 continues to spread rapidly, it is becoming more likely that, at some point, every employer in the country will be faced with the question of how and when to communicate information regarding an employee who tests positive for the coronavirus. Because a COVID-19 diagnosis is considered confidential medical information under the Americans with Disabilities Act (“ADA”), employers are prohibited from sharing such information and should shield screening, testing, and diagnostic information as they would other confidential medical information. Nevertheless, employers must disclose enough information to at least satisfy the Occupational Safety and Health Administration’s (“OSHA”) general duty clause—the agency’s requirement that employers maintain a safe work environment. An employee’s supervisor may be most likely to learn of an employee’s COVID-19 diagnosis. With that in mind, employers should train supervisors to report any disclosed positive COVID-19 test immediately to HR (or another designated contact), and supervisors should be reminded to maintain the confidentiality of any such report. The following questions and answers will provide employers a starting point about employers’ disclosure and confidentiality obligations after learning of an employee’s positive COVID-19 test. Notably, the same confidentiality rules and guidance apply with respect to employees who self-report potential exposure to COVID-19 or who are treated as presumptive COVID-19 positive.
number of individuals who need the information (e.g., a designated individual who will interview the employee to obtain a list of people with whom the employee had contact in the workplace or a supervisor who needs information about the employee’s ability to work, and who may have access to other confidential medical information). The employer should contact directly each co-worker identified by the Affected Employee and each co-worker who worked in any identified areas of the workplace and advise—without revealing the identity of the Affected Employee—that a person with whom he or she has been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. The employer may disclose when the Affected Employee was last in the workplace in order to provide co-workers a sense of how long to watch for symptoms, which can take up to 14 days to manifest. In addition to the employer’s specific instructions regarding work, the co-workers should be encouraged to self-isolate, monitor for symptoms, and to seek all medical care and testing that they feel may be appropriate. Depending on the employer’s size and workplace logistics, the employer should also consider issuing a general notice to its workforce that an employee has tested positive for COVID-19. Any such notice should reassure employees that, unless the employee has been notified directly by the employer, it is not believed that the employee has been in close contact with or shared a common workspace with the infected employee.
What information should the employer request from the employee who tested positive?
What should an employer disclose to third parties such as customers/clients, vendors, and others?
The employer must take immediate steps to identify the scope of the risk in its workplace by requesting certain information from the employee who tested positive for COVID-19 (the Affected Employee). Ask the Affected Employee to provide a list of employees or other work-related third parties with whom the Affected Employee came into “close contact” during the 14-day period prior to the positive test (the Incubation Period). The CDC generally defines “close contact” as being within approximately six (6) feet of someone for at least fifteen (15) minutes, or having direct contact with infectious secretions from someone with a COVID-19 case (e.g., being coughed on). The employer should also request that the Affected Employee identify all areas within the workplace where he or she was physically present during the Incubation Period, which is generally estimated as approximately fourteen (14) days.
While businesses are generally not obligated to disclose the existence of COVID-19 cases within their workforce to third parties such as customers/clients, vendors, or contractors, a business may choose to inform third parties that an employee has tested positive for COVID-19. Depending on the nature of the business, many businesses decide to disclose the positive COVID-19 cases within their workforce to specific individuals who may have come into close contact with the Affected Employee. Third parties appreciate the ability to make informed health decisions, and the disclosure allows the business the opportunity to also assure third parties that all precautionary measures recommended by the CDC have been implemented. However, with the exception of a staffing agency/contractor who placed the Affected Employee in his or her current position, the ADA does not permit businesses to disclose the Affected Employee’s identity or other medical information to third parties. Similar to disclosure to co-workers, a business may share the date on which the Affected Employee last worked. n
What should the employer tell other employees? Most importantly, to avoid violating the ADA, the employer must not disclose the identity of the Affected Employee, or anything specific about his or her medical condition or symptoms to others in the workplace. Similarly, no information that could be used to “identify” the Affected Employee without specifically identifying the name should also be kept confidential. The only exception applies to a very limited 12
Attorney Journals Orange County | Volume 175, 2020
Ashley Parr is an employment and labor law attorney in Nexsen Pruet’s Greenville office. In her practice, she counsels businesses and organizations on issues ranging from policy implementation to claims of discrimination. Learn more at www.nexsenpruet.com.
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© Christopher TOOD Studios
JOURNALS
LAW FIRM
OF THE MONTH
2020
Left to right: Jerusalem “Jay” Beligan, Associate; Scott Ritsema, Partner; Brian Chase, Partner; Shannon Barker, Legal Administrator and Gavin Long, Partner
“The Auto Defect Guy” A PERSONAL INJURY FIRM WITH A 99 PERCENT SUCCESS RATE EXPANDS ITS BRAND by Dan Baldwin
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“
cases. I called the administration, informed them of their error, and changed the direction of their investigation. NHTSA has now redoubled their efforts,” Chase says. A firm believer in sharing what he has learned about the automobile industry, Chase is the author of two auto defectrelated books: Still Unsafe at Any Speed and The Second Collision. “I really feel that what you put out, you get back, and I use that philosophy in all facets of my life. You give love you get love. In purely business terms, it’s the law of attraction—if you take care of your clients’ business, your clients will take care of your business,” he says.
Staging a Successful Career At one time Chase considered an acting career, but a passion for the law ultimately decided his career path. Still, his creative abilities find a successful outlet in trial. “Being a trial attorney allows me to be a creative story teller and fulfill that creative need, but, more importantly, being a trial attorney allows me to fulfill my true passion and calling: Having my life’s work matter and having a positive substantive impact on other peoples’ lives,” Chase says. He actually put that in his law school application as the reason he wanted to go to law school. “It was as true then as it is now,” he says.
© Christopher TOOD Studios
Although we are broadening the brand of the firm, I believe I’m still primarily known as ‘the auto defect guy,’” says Brian Chase, Managing Partner and Senior Trial Attorney at Bisnar Chase Personal Injury Attorneys. With more than 27 years of experience, Chase and his firm have earned a 99 percent success rate and have won more than $650 million for their clients. The firm was founded as Bisnar & Associates in 1978 and evolved into Bisnar Chase in 1998. The “auto defect guy” by-name is more than appropriate. For example, he is currently nationally recognized for his work for numerous police officers and civilians in California, Louisiana, Texas and Florida who suffered carbon monoxide poisoning while driving their Ford Explorers/Police Interceptors. A design flaw in the exhaust system allowed the poisonous gas to seep in the cabin of those vehicles. Police officers are often in their vehicles ten to eleven hours a day. The cars are generally kept running because of lag time in restarting the computer system and other electronics. Continued exposure to carbon monoxide gas can lead to dizziness, burning eyes, nausea, passing out/crashing and serious illness. More than 3,000 complaints have been registered with the auto maker or the federal government. Chase and his firm are at the forefront of the issue. “I was astounded when the National Highway Traffic Safety Administration’s investigation reported no injuries due to the defect. I knew that was wrong from my own
Brian Chase, Partner and Shannon Barker, Legal Administrator
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Chase was raised in a lower income family and a tough, low income neighborhood, which, with strong family support, prepared him for the rough and tumble world of personal injury law. He says, “You had to know how to take care of yourself. You needed street instincts. But I had a great supportive family, lots of support and love. I didn’t know I was poor at the time or even living in a not-so-nice neighborhood. I had the best childhood imaginable and wouldn’t trade it for anything.” While attending Pepperdine School of Law he clerked for an insurance defense firm with offices in OC and LA in the summers, eventually receiving offers from each firm. After graduating in 1992 he chose to work at a plaintiff’s law firm, then known as Bisnar & Associates. Within weeks of being sworn in he was in his first fiveday jury trial where he won four times what the defense had offered prior to trial. He handled several trials during his first two years and has continued to do so. He has been a member of ABOTA for years. “This was a near-perfect environment. From the beginning I wanted my life’s work to have a positive substantive impact on other peoples’ lives. I also wanted my career to be intellectually stimulating and challenging. I specifically went to law school to become a personal injury trial attorney. I didn’t just stumble upon it,” he says.
After working there for five years Chase approached Bisnar regarding a partnership. “Bisnar had built his law firm from scratch, he was a great businessman, an accomplished negotiator, he knew how to manage people, we shared a passion for doing the right thing by the clients. I knew that with my trial skills, my fire to grow the law firm, to do bigger cases and to serve more people, that together we could build something great. I proposed that he run the business and start marketing programs to non-attorneys, while I attended to running litigation and marketing to attorneys. From there we formed Bisnar Chase,” he says.
“The Auto Defect Guy” Drives On Bisnar Chase today has nine attorneys and 25 paralegals and support staff. Chase has and plans on continuing to expand the firm’s scope. One well-known example of their expansion is into mass torts and their effort of representing clients against Johnson & Johnson for their use of talcum powder in its baby powder products. The carcinogenic danger of talcum has been wellknown for more than 100 years. Talcum powder is a mined product. Ninety-nine percent of what is in a
© Christopher TOOD Studios
Gavin Long, Partner and Scott Ritsema, Partner
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bottle of Johnson’s Baby Powder is the substance mined directly from the ground. In the early days of that mining, 55-gallon drums of the material were labeled with warnings that the product could cause cancer. In the 1970s research indicated that talcum powder for commercial used was linked to ovarian cancer. Much like the carbon monoxide poisoning experienced by police officers in the Ford Explorer case, continuing use of the baby powder had devastating effects on women throughout the country. J&J finally quit selling baby powder (talcum powder) in the United States within the last few months. Other landmark cases Bisnar Chase has handled include: Schreiber v. Estate of Kiser (Leading California Supreme Court case dealing with expert witness designations and the scope of percipient expert witness testimony); Hernandez v. State of California (Dealing with governmental design immunity and establishing that two of three elements are questions of fact for the jury to decide, not the court); Martinez v Ford Motor Company (Leading auto products defect case dealing with forum non conveniens establishing certain circumstances when FNC grant is inappropriate); Romine v Johnson Controls (An auto products defect case affirming the sole use of the consumer expectation test for defect and dealing with and rejecting the component parts defense). Chase says he was affected and motivated as a teenager when he heard of the Ford Pinto cases in which Ford’s in-house accounting people determined that it would be cheaper to pay an estimated $200,000 per person killed or injured by the product’s defects rather invest a few dollars to fix the Pinto’s gas tank. He says, “I am very passionate about helping people whose lives have been ruined or significantly altered by defective products. I see many corporations that consistently place profit over people and safety. That offends and angers me. Trial attorneys are the best check and balance against corporate greed.”
Micro-Managing the Client Experience As the manager of his “staff of superstars,” Chase believes in delegating responsibility and accountability. “I like to delegate tasks to team members. I like them to have the autonomy to make their own decisions. I think that’s empowering to employees to do a good job, feel good about what they do, and create a better work environment,” he says.
When it comes to client care, he and his staff operate under a policy they call micro-managing the client experience. “We break down every contact we have with our clients to look at them from the client’s point of view to see how we can make our services better, more responsive, and more client friendly. It’s an ongoing process,” with much credit owing to Shannon Barker, the firm’s Administrator, Chase says. This commitment has led to some interesting innovations. For example, in their auto defect cases the firm has become a mini-auto manufacturer. They perform their own testing on vehicles to prove defects and discover alternative, safer and economical designs. They have invested millions of dollars in testing vehicles for defects and testing fixes that the auto industry could have used to make their vehicles safer. Taking care of a large volume of good people having bad experiences requires teamwork and Chase is proud of his entire team. “Every single person at the firm is critical to our success, from answering the phones and client intakes all the way through to settlement or trial. We all rely on each other to work as a team. Our philosophy, ‘teamwork makes the dream work.’” For this story he would like to highlight three key attorneys. Scott Ritsema, who recently made partner, was heavily involved with Chase in trying the Romine Vs. Johnson Controls, Inc. case and was instrumental in obtaining the $24.7 million verdict. Gavin Long, who also recently made partner, earned an $11 million verdict last year against a Scientologybased rehabilitation facility in which their client hanged himself. “Gavin was instrumental in uncovering a lot of dirt on the rehab facility and in the rehabilitation industry generally,” Chase says. Jerusalem “Jay” Beligan partners with Chase in the firm’s consumer and employment class action department. He was actively involved in the 9th Circuit published opinion, Sali v. Corona Regional Medical Center, which affirmed its view that evidence need not be admissible at the class certification stage and stating that inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification.
Maintaining Balance Is a Personal Matter Battling large corporations and organizations with virtually unlimited resources is, obviously, a stressful way to earn a living. Chase keeps matters in balance by leading a happy and successful personal life.
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Contact Brian D. Chase Bisnar Chase 1301 Dove Street, Suite 120 949-752-2999 Newport Beach, CA 92660 www.bestattorney.com
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EXPERIENCE
© Christopher TOOD Studios
He has a son and daughter. His daughter Cody lives in Los Angeles and is in the fashion industry and doing music on the side. Lee is in college studying political sociology. He also married his wife Andrea last year in the South of France. Chase enjoys spending time with his family and also enjoys golf and plays on a course near his home as often as possible or out at his place in La Quinta. He finds playing the guitar a great way to unwind. He’s been an avid surfer since the ’70s and enjoys traveling to explore historical sites and fascinating places. “To be truly successful in your professional and your personal life it’s essential that you do something you enjoy, with a purpose, for a cause, something bigger than you and do it with passion. Make your life’s work matter,” Chase says. n
» EDUCATION
• California State University, Long Beach, B.A., 1989 • Pepperdine University School of Law, J.D., 1992
» HONORS AND AWARDS
• Former Trial Lawyer of the Year Nominee, CAALA • Two time Trial Lawyer of the Year for Products Liability OCTLA • Trial Attorney of the Year, CAOC • 2020 Top 1% by the Natl. Assoc. of Distinguished Counsel • 2020 Litigator of the Year by the AIOTL • 2020 Top Plaintiff Lawyer, Daily Journal • 2019 Lawyer of the Year • 2019 America’s Top 100 Attorneys • 2017 Top 1% by the Natl. Assoc. of Distinguished Counsel • 2017 Top 100 High Stakes Litigator • 2016 Top 10% Lawyers of Distinction • 2014–2020 Best Lawyers • 2015 NADC Top One Percent Lawyers • 2013 Top Attorney in O.C. Award • 2008–2020 SuperLawyer • Since 2007–Top 100 Trial Lawyers in America, ATLA • California Supreme Court and Appellate Court case winner • Top 50 Orange County Lawyers, SuperLawyers
» PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
• Former CAOC President • Former OCTLA President • Member of the American Institute of Legal Advocates 2020 • Board Member of the Brain Society of California • 2019 Top 10 National Trial Lawyer High Stakes Litigator • Prestigious Member of the $500M Club • 2019 Top 1% by the Natl. Assoc. of Distinguished Counsel • 2019 Million Dollar Advocate • Past President of Orange County Trial Lawyers Assoc.
» ADDITIONAL PERSONAL ACCOMPLISHMENTS
• Author, Still Unsafe At Any Speed • Author, The Second Collision • Author of numerous legal publication articles • National Speaker on Personal Injury and Product Defect Law • Executive Committee Member of the Joint Coordinated Consolidated Proceedings group
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Is Your Law Firm a Group of Cats or Dogs? by Joseph Altonji
Is your firm a group of cats or dogs? Probably not a question most managing partners have considered recently, but surprisingly apt. Consider the behavior and hunting patterns displayed by the typical wild versions of cats and dogs. Cats hunt as solos. They stalk their prey individually, kill it, and keep it mainly for their own benefit, or for their own young—whom they teach to hunt for themselves at a very early age. The ultimate example of “eat what you kill.” Dogs (and related animals like wolves), on the other hand, hunt in packs and share the benefits of the kill across the pack. They have team strategies and team benefits. They respond to strong leadership, as Mike Short noted in his post “Law Firm Leadership is Like Walking the Dogs.” Domestic dog behavior is usually highly social. Most dogs like people and other dogs and like to play games. They will initiate playful group behavior, and most of them just want to be “with” their owners. Cats might like you (and even play “with you” if you dangle something in front of them) but from their perspective, it’s generally all about them. They own the place. Your primary job is to feed them, brush them, pet them ... you know the drill. Is it a surprise, then, that cats and dogs are naturally antagonistic and will fight each other absent early socialization to instill different behaviors? With these thoughts in mind, which kind of firm do you have? If you are like most firms, you probably have a mix of “cats” and “dogs” in your shop. There are likely to be a number of partners who really are solos, or sole proprietors, whose orientation is primarily to catch and hold on to their own clients, share as little as possible while maintaining strict control over the work they do hand out to others. You probably also have a number
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of partners whose natural inclination is to build teams, work with others, share the benefits of the practice, support each other on clients and just trust that they will be treated fairly in the process. Realistically, there is room for both in most firms, but the tensions between competing philosophies can sometimes be significant and can manifest themselves in many ways. There is a real difference between the type of firm you would build if you are catering to cats vs. dogs, and how you build the firm will have a major influence on how you are perceived in the marketplace, what laterals and young lawyers you attract, and how successful you might be in implementing your strategy. Where might those differences lie? Start with the obvious—how is your compensation system designed? Is it an “eat what you kill” type of system that encourages holding on to clients and work, only delegating what you cannot get done yourself or just don’t have the skills to do? Does getting someone else to work on your clients require a negotiation around credit sharing? Do all marketing “teams” need to have a pre-arranged deal on how credit will be allocated? Or does it encourage credit sharing, team building, collaboration across skillsets, and multiple relationships with key clients? Do partners benefit from creating client access for others? Training young lawyers to be future team members? Team marketing—“let’s catch the client first and worry about how the credit is allocated later?” Where the balance of these competing demands falls says a lot about which side your firm leans toward and striking this balance can sometimes lead to serious tensions around the firm’s compensation system and its implementation.
Next, consider how your practices are managed. Do the Practice Group Leaders have real authority and, more importantly, buy-in, to drive team efforts and activity? Can they generate real communal activity, and have some influence on the allocation of rewards? Or is the primary job of the Practice Group Leader to monitor what is happening among sometimes competing rivals in the practice and try to get people resources when requested while bothering them as little as possible? Finally, consider your approach to strategic thinking. As a firm, are you disciplined around and capable of agreeing on where the firm is going—and where it isn’t? And do your partners and other stakeholders buy in to the group decisions and work together to try to achieve those goals? If so, maybe you have a pack of dogs in your firm. Or, is your strategy a collection of what all the individual objectives stakeholders (or at least the most important cats among them) want to achieve, whether those objectives are realistic or compatible with each other? This suggests a clowder of cats (or maybe an ambush of tigers or pride of lions?). As you think about it, even the names of these groups of animals suggest very different personalities and very different power arrangements when they come together. Both cats and dogs can be successful, but in a law firm, there is probably a limit on how big a “cat” firm can be and remain successful. Every firm might need a share of cats to achieve some goals and maybe focus on specialized skill sets, but building real depth and scale successfully requires cooperation and team effort, not the building of individual fiefdoms. Unfortunately, in our new COVID world where getting together is difficult or impossible, it is harder than ever to collaborate and build team successes. There is a real danger of culture shift (more cat, less dog) in firms where leaders cannot—or do not—keep the focus on connectivity and support for all team members. If you do not want that outcome, keep a constant focus on your culture and your people, even while you consider the immediate business concerns and financial performance. As the leader of the pack, it’s your responsibility to assure the firm emerges from challenging times stronger and better than it entered them. n Joseph Altonji is a founding Principal of LawVision and has spent over 30 years consulting to law firms and their leaders both in the United States and internationally. Prior to launching LawVision, Joe spent 22 years with Hildebrandt Baker Robbins, and its predecessor firm, Hildebrandt International, as a strategist and senior Managing Director. He was a senior member and Co-Chair of Hildebrandt Baker Robbins Law Firm Strategy and Structure practice, and Chair of the Hildebrandt Baker Robbins Law Vision Coordinating Committee, which was responsible for systematically rethinking the business of law. Learn more at www.LawVision.com.
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COVID-19 Made Content Marketing More Than a King by Jim Bliwas
O
ver the past 10 years a law marketing axiom held that “content is king.” It still is. But thanks to the pandemic, content became elevated to Emperor. And like the fictional Emperor, it needs new clothes. There are simple reasons this happened. The lockdowns and stay-at-home orders blocked attorneys from many of their traditional marketing and business development activities that created new opportunities. It is nearly impossible now to take clients or prospects to lunch, speak at trade or professional association meetings, go to charity events, have a golf outing, mingle at live networking sessions, or attend alumni gatherings. Yet people still need legal services. They are looking online now more than ever and are retaining counsel even during the recession. For both B2B and B2C law firms, this means that creating remarkable content is paramount. Content marketing is more than scratching out a blog when you have time. It is your entire website. It needs to be a living, breathing reflection of not just what you do but how you do it, conveying the value you deliver. As a result, content marketing needs to interrupt the conversation going on inside the mind of a client or prospect at your website.
Content Helps Readers and You The overarching purpose of a website and its blog is to attract potential clients to your practice. Creating great content consistently helps a prospect understand how you will help them solve a problem, take advantage of an emerging trend, seize an opportunity, or think differently about an issue they are confronting. Having exceptional content benefits law firms of any size in four important ways: • It builds awareness of the firm’s brand • It builds trust in the firm’s reputation as an authority • It keeps a lawyer top of mind when somebody has a pressing need • It bolsters SEO so more people will find the firm 26
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Four Mistakes Blog Writers Make A well-written blog is the vehicle to deliver valuable thought leadership to your readers on an ongoing basis. But too many blogs still make four serious mistakes, reducing their effectiveness: • Not Interesting or Engaging. They are too technical and over the head—and interest—of most readers • Too Detailed. They focus on the minutiae of a subject rather than explaining how the detail shapes the bigger picture • Not Original. They cover a subject that has been written about in the business pages of newspapers or industry-focused publications without exploring a new angle • They Try to Sell. They are barely disguised sales pitches offering no actionable ideas or information Committing any of these errors wastes a golden opportunity to generate an inquiry.
Four Tips for Compelling Blogs During COVID-19 So how do you write compelling blogs in the COVID-19 environment? Here are four tips. • Offer Pragmatic Advice. Regardless of the situation in your state, a blog can be a resource to help your contacts through an unprecedented, fast changing situation. Some states remain mostly closed, some are reopening, others that reopened are shutting down again. It’s likely that running a business feels like being battered by a stormy sea. Be their lifeboat. • Use strong headlines. Your content needs to land an emotional punch, making people want to read the blog. We use the headline analyzer from the American Marketing Institute. It rates a headline and allows you to tweak what you’ve written to boost the headline’s appeal. • Write like you speak. Sounding professional doesn’t mean sounding stuffy. During COVID-19, people want to make human connections and, short of a video call, the best way to do this is by writing like a human, not an
impersonal bot. A Nobel Prize-winning economist has nearly 2 million Twitter followers because he writes like a real person, not a nerdy academic. • Be precise. Mark Twain said the difference between using the right word and the almost right word is the difference between lightning and a lightning bug. Don’t obsess over not being Twain; nobody is. Yet anyone can mobilize the English language and put it to work.
Strong Content Is More Than Strong Blogs A blog is only one part of a strategic approach to content marketing. • The New Normal—COVID-19 created a “new normal,” requiring a rethinking of every page on your website. This means ensuring that the content on each page is relevant for an unprecedented situation that is likely to be with us for some time to come. • Home Page—Besides summarizing what you do, explain how you add value for visitors who are likely struggling with their own COVID-generated problems and issues. The entire page does not need rewriting. Rather, adding a paragraph or two with embedded links to other, relevant information on how you are serving clients and customers during the pandemic could be sufficient.
• Service Pages—Until March, service pages could get away with just stating, “We do this and that.” Now, clients want and need to know how a specific service will help them adapt their own situation to the world as it is today. How this is done will vary from one firm and practice area to another, but it is a highly effective tool in generating inquiries. Analytics we run for clients prove it every month. • Social Media—It spills over to social media, as well. No longer can a post simply be “We have a new blog.” It needs to relate how that blog addresses an issue that COVID has created.
Don’t Leave Content Marketing to Chance There is more art than science to content marketing. Content became the Emperor because marketing is the fuel that fires your business development engine. Your content gives your marketing an extra shot of octane. n Jim Bliwas is a law marketing pioneer. Now, he is the senior marketing and content strategist for PSM Marketing. A former journalist, he creates website and blog content as well as articles for a range of clients.
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Process Planning Is an Essential Prerequisite to Successful Mediation in the Post-COVID-19 Era by Hon. James V. Ryan (Ret.)
In March 2020, mediation in the United States underwent a sea change due to the COVID-19 pandemic. The situation is still evolving, and no one can predict what the future may hold. However, it has become clear that for the foreseeable future, the mediator must pay special attention to the procedures governing the mediation, and he or she must work with the parties to formulate and agree on those procedures in advance. For most of the past 28 years in which I have practiced as a mediator, my method of preparing for mediation followed a standard and fairly predictable course. I and most like-minded mediators tended to focus on the substantive issues involved in the dispute. My standard practice was to request that the parties submit written memoranda summarizing their respective positions on the factual and legal issues. I also typically conducted private telephone calls with counsel in order to review those issues briefly with them in advance of the mediation. Except for rare occasions, we did not spend a great deal of time working through the procedural issues. We all approached the mediation with a common preconception of how it would be conducted. Our world changed dramatically in March 2020. In Boston, where my practice is primarily located, we were ordered to shelter in place in an effort to reduce the burgeoning number of COVID-19 cases. It suddenly became impossible to conduct a mediation in person, and I learned on the fly how to conduct a mediation by videoconference using Zoom or one of the other online platforms. Videoconference mediation remains a large part of my mediation practice, and it is likely to remain so for the near future.
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By July 2020, the rate of new COVID-19 cases in our area had slowed to the point where we are now able to engage in a limited reopening of our offices, so long as safety protocols are observed. It is now possible to conduct in-person mediations in Boston, provided that the participants adhere to certain safety protocols, including the requirement that they wear face masks, that we limit the number of persons occupying each room to enable social distancing and that we replace buffet luncheons with individually boxed lunches. For the foreseeable future, mediations can only be conducted either by videoconference or in compliance with social distancing and other safety protocols. The old way of doing business is no longer an option. I have come to understand that in addition to the traditional pre-mediation activities that he or she undertakes to prepare for the substantive issues involved in a mediation, the mediator must now work with counsel and the parties to formulate and agree on the ground rules for the mediation process itself. The first question to be addressed is whether the mediation will be conducted by videoconference or in person with observance of the safety protocols. If the mediation will be by videoconference, the mediator must ensure that all participants have suitable computer equipment and adequate internet access, that they are comfortable with the measures that have been taken to maintain the confidentiality of the process and that they are sufficiently familiar with the videoconference experience so that they are not distracted from focusing on the substantive issues and engaging in a meaningful negotiation. If an in-person mediation is planned, the mediator must confirm that all participants
are comfortable with and will agree to abide by the safety protocols, including the requirement of face masks. If those protocols are not acceptable to one or more of the parties, then the mediator must explore the possibility of other solutions, such as a hybrid process in which some participants attend in person and others participate by videoconference. My standard practice when scheduling a videoconference mediation is to conduct a brief test session in advance of the mediation with both counsel and their clients. This practice has yielded many benefits. It has enabled us to identify and correct any connectivity and/or technical problems that could potentially bring the videoconference mediation to a standstill. It has also enabled the parties to experience being placed in a virtual breakout room and to have the mediator visit with them. Whenever I schedule an in-person mediation, I now schedule a pre-mediation conference call with both counsel and clients. The purpose of the call is to address any procedural concerns. This practice has been very helpful in ensuring that the parties feel confident that they can safely engage in the process, that they and their counterparts will agree to abide by all of the required safety protocols and
that we will restrict the number of attendees in accordance with the new occupancy limits for our conference rooms. When preparing for either a videoconference or an in-person mediation, I believe that the mediator must engage with the participants beforehand in dialogue leading to agreement on procedural matters. By personally participating in that discussion, rather than delegating it to an administrative assistant, the mediator can build trust with the parties and convey to them a sense that we are all working together to craft the mediation process best suited to promote resolution of their dispute. I find that the parties appreciate the sense of empowerment that comes from working cooperatively with the mediator and the other party or parties to develop a mutually acceptable mediation process. This practice both enhances the parties’ satisfaction with the process and increases the likelihood of a successful mediation. n Hon. James V. Ryan (Ret.) is a highly skilled JAMS mediator and arbitrator who has successfully resolved thousands of cases involving a broad variety of issues, including labor and employment, construction, personal injury, toxic tort, professional liability, products liability, workers’ compensation, commercial, franchise, insurance, real estate, landlord-tenant, and mediated discovery.
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