Attorney Journals, San Diego, Volume 212 by Attorney Journals

SAN DIEGO

Volume 212, 2021 $6.95

Merger as a Law Firm Succession Strategy

Roger Hayse

How Legal Project Management Tackles Stress and Burnout

7 of My Favorite Networking Tips

Lindsay Griffiths Women Making the Lateral Partner Move

Shari Davidson The Next Disruption for the Legal Industry

Susan Lambreth and Dr. Maria-Vittoria Carminati The Triple Threat Facing Generalist Law Firms

Katherine Hollar Barnard Top 10 Questions You Should Ask to Plan for Growth

Kalon Gutierrez

Michael Short

Litigating with Pro Se Parties

Melissa A. Tulis

Attorney of the Month

Deborah Dixon, Gomez Trial Attorneys, San Diego

Resilience and Perseverance

2021 EDITION—NO.212

TABLE OF CONTENTS 6 How Legal Project Management Can Tackle Stress and Burnout Attrition by Susan Lambreth and Dr. Maria-Vittoria Carminati

8 Seven of My Favorite Networking Tips—Yes, Even in a Pandemic

by Lindsay Griffiths

10 The Next (Foreseeable) Disruption for the Legal Industry

EXECUTIVE PUBLISHER Brian Topor

by Michael Short

EDITOR Wendy Price

12 Merger as a Law Firm Succession Strategy

CREATIVE SERVICES Penn Creative

by Roger Hayse

14 Women Making the Lateral Partner Move

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Dr. Maria-Vittoria Carminati Shari Davidson Lindsay Griffiths Kalon Gutierrez Roger Hayse Katherine Hollar Barnard Susan Lambreth Michael Short Melissa A. Tulis ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30212 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via email or postal mail.

by Shari Davidson

LAWYER OF THE MONTH

16 Deborah Dixon, Gomez Trial Attorneys, San Diego Resilience and Perseverance by Dan Baldwin

22 The Triple Threat Facing Generalist Law Firms, Part 1 by Katherine Hollar Barnard

26 Litigating with Pro Se Parties by Melissa A. Tulis

28 Top Ten Questions Every Company Should Ask Themselves to Plan for Growth

by Kalon Gutierrez

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media. Not affiliated with any other trade publication or association. Copyright 2021 by Sticky Media. All rights reserved. Contents may not be reproduced without written permission from Sticky Media. Printed in the USA

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How Legal Project Management Can Tackle Stress and Burnout Attrition by Susan Lambereth and Dr. Maria-Vittoria Carminati

et’s talk about stress. We already know that legal project management (LPM) plays a critical role in boosting law firm profitability and enhancing client relationships. But can it reduce stress levels? Absolutely. LPM instills a discipline and provides structure, for example, for budgeting, planning, and transparency—activities that can clearly mitigate unpleasant surprises. And where you have unpleasant surprises, stress will surely follow. In fact, the American Bar Association confirms that stress has a key role in driving away many minorities, including women, from the legal profession. Stress is among the top reasons female lawyers report for leaving the practice of law. Other reasons include caretaking commitments, the emphasis on marketing or originating business and the number of billable hours, which are key stressors as well. In this article (our second in a series on LPM and D&I), we will explore how LPM can decrease toxic stress-related attrition, enhancing your law firm’s diversity and inclusion efforts.

Stressed Female Lawyers Are Leaving “Women of color have the highest rate of attrition from law firms as they continue to face firm cultures where their efforts and contributions are neither sufficiently recognized nor rewarded ... ,” according to Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color, ABA Report (Jun. 22, 2020). Attrition among women and diverse lawyers has been a critical issue for many years. A 2014 report by the National Association of Women Lawyers confirmed that while law schools were producing female graduates in record numbers, the law firm attrition numbers were distressingly high. By 2016, for the first time, slightly more women than men entered law school. The trend is clearly moving in the right direction. But somewhere along the way to the most tenured positions in law firms, the pipeline is leaky. ABA reported that in 2010, 65 percent of lawyers were men. Ten years later? At 67 percent, the number has barely moved. Just a measly 20 percent of equity partners are female. If you think that nothing much has changed, you’re in good company. The Illinois Supreme Court Commission on

Attorney Journals San Diego | Volume 212, 2021

Professionalism reported in 2020: “Not much has changed for women of color attorneys at law firms over the past 14 years, according to a study released last month by the American Bar Association’s (ABA) Commission on Women in the Profession.” Attorney attrition is driven by chronically unhealthy stress levels coupled with billable hour demands of the profession. The Camden County Bar notes that some 25 percent of lawyers suffer from stress, which can manifest as depression, substance abuse, or even addiction. As mentioned, women, in particular, report leaving the profession, in part because of family obligations. During the pandemic, female lawyers, already facing a wide range of caretaking responsibilities, are challenged even more. Gender expectations have changed, yes, but not to the extent that will prevent COVID-19 from chipping away at some of the hardfought gains that women have made. Burnout is high for everyone, but particularly for mothers, black women, and senior-level women. Not surprisingly, women left the workforce in January 2021 at four times the rate of men, according to the Bureau of Labor Statistics. There must be a better way.

LPM as a Stress Management Tool While LPM can’t fix everything, here’s where it can help. Historically, lawyers are famous for finishing projects at the last minute. Whether it’s due to procrastination or unforeseen changes, the net result is that the legal profession is unnecessarily stressful. In comparison to, for example, business schools, law schools generally provide minimal training in the skills needed to manage projects efficiently. LPM is a discipline that includes the planning and active management of matters. It can help matter teams avoid “fire drills,” as well as the hallmark peaks and valleys of legal workloads. When the team is trained in LPM, the entire process of handling a matter end-to-end results in less stress. Project management, contrary to common misconception, does not involve spending the day hunched over a project plan. It is mainly about clarifying roles and responsibilities, aligning interests of clients and their legal providers, and having clear communication. LPM done right allows lawyers and their teams to avoid the issues that drive

clients and outside counsel crazy, such as over-staffing matters, mismanaging expectations, overspending and—the biggest concern on both sides—billing snafus. Do you find that matters progress more smoothly when you are: • Facilitating open dialogue via kick-off meetings, status updates and regular communication? • Understanding and scoping the work in advance? • Communicating in a timely manner roles, responsibilities, risks, and expectations? • Escalating risks and concerns to the appropriate stakeholders? • Planning and staffing appropriately with the right people at the right time? • Tracking progress and accomplishments to manage the timeline as agreed? • Monitoring workloads so that it is more rare that anyone is overwhelmed or short of time? • Providing on-time, no-surprises delivery? That’s what LPM can help you do. And it’s how you keep your best people, as well as your clients satisfied. It’s clear that work is better and less stressful when you can avoid incomplete

deliverables, uncommunicated expectations, fake deadlines, and those “who’s-on-first” moments when the team isn’t performing at its finest. LPM can enhance efficiency and lift the morale of hard-working team members. That should help your law firm experience lower levels of attrition, especially of women and minorities. n Susan Lambreth has over 25 years of experience as a consultant to the legal profession. Susan assists firms in implementing effective legal project management initiatives and trains legal professionals in LPM skills. Along with a colleague, Ms. Lambreth co-created the first legal project management certification program in 2010 and launched the first online eLearning courses in legal project management (LPM LaunchPadTM course). Susan has also helped implement effective practice group management at almost 100 firms, including nearly half of the largest firms in the U.S. Ms. Lambreth is the author of three books on legal project management, as well as three on practice group management. Dr. Maria-Vittoria “Giugi” Carminati, Esq., CEDS, JSD, is an e-discovery attorney, a legal tech author, and a social justice activist. She has spent 12 years litigating around the country and is currently licensed in Texas, Colorado, New York, and DC. Dr. Carminati also speaks four languages and has published a number of books, articles, and blogs. She is a BVOP Certified Project Manager and BVOP Certified Agile Director.

Attorney Journals San Diego | Volume 212, 2021

7 of My Favorite Networking Tips— Yes, Even in a Pandemic by Lindsay Griffiths

’ll tell you a secret—the pandemic may not be over, but you can still be networking. Even when networking is primarily done in a virtual way, the substance of it has not changed; only the platform. So what does that mean when it comes to networking?

It’s a Marathon, Not a Sprint You can’t go to one networking event and expect to get business. We may have gotten WAY more efficient through our use of Zoom and Teams, but that doesn’t mean that we’re necessarily cutting to the chase through our use of virtual technology and throwing out the need to build relationships—we still need to do that. You may be attending networking events online or even regularly connecting with clients who are going to refer you to others for new business, but it may happen just as slowly as before. So continue to be patient and employ the same relationship-building techniques as you would if you were meeting in person.

Your Elevator Speech Isn’t About YOU We’ve all heard so much about having our 30-second elevator speeches “at the ready.” And this is true. But for lawyers (and for other professionals!), these thirtysecond commercials should explain how you solve the problems of your potential clients. It tells people a) who your clients/potential clients are, b) what you can do to help them, and c) why that person should keep talking to you. We’ve gotten MUCH more casual in the pandemic, which, in some ways, is great, and in others,

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has made us a bit ... lazy ... about our brands. Yes, I said the dreaded “b” word. Your “elevator speech” is part of your brand. Consider what has changed in the last year about the ways in which you help your clients. My guess is that you’ve become even MORE of a trusted partner and counsel. How else can you emphasize the problems that you solve for your clients when you describe what you do? Is it time to refresh that description? You may not be meeting as many people in person, but what do you say when you meet someone online?

Networking Is About the Pre-, During-, and Post-Event Engagement Don’t think that all you have to do is show up at an event to be successful. Have you researched the attendees beforehand and identified your goals for attending an event? Have you connected to potential contacts and joined in on any social conversations so that you have warm connections instead of cold ones when you arrive? Have you set up meetings in advance instead of relying on blind luck? After the event, have you scheduled follow-up opportunities, such as virtual meetings or calls? Have you connected to the people that you’ve met on social media, such as sending them a LinkedIn request that is specific to the conversation you had at the networking event? This all worked really well for inperson events, but it can ALSO work well for virtual ones—anything works better when you plan in advance, and then work your plan. And while there is a light at the end of the tunnel when it comes to the pandemic,

virtual events aren’t going away any time soon, so you’ll be very much ahead of the game when it comes to your competition if you work to make the most out of them instead of crossing your fingers when you attend.

Social Media Can Supercharge Your Efforts Social media will always supercharge your attendance of an event. While this is more useful for larger events, such as virtual conferences, use it before an event to conduct research on fellow attendees that you’d like to connect with and join in on any conversations that may be happening around the event hashtag, if there is one. Connect with event organizers and speakers before or during the event to leverage current and future opportunities. Connect with fellow attendees that you’ve chatted with after the event, referencing your conversations in your invitation, to keep the conversations going. It can be hard to connect virtually with new people, especially at larger events, but this is a way to make the world smaller.

Act Like the Host Connect with the organizers or hosts of any networking event and offer to be helpful. The organizers will usually know everyone attending an event, and you can use them as a resource to help connect you with the right people—ask them who else is attending that you should be connected with. Get to know the organizers and their needs, and depending on the event, you may be well-placed to become a speaker or resource for future events. Ask if you can help to promote the event with your contacts, or if there is another way to be supportive. Don’t be false with your agenda though—work at being genuinely helpful in your efforts as an extra “host” and the organizers of the event will appreciate your assistance! (As a part-time events organizer myself, I can tell you that we can spot the difference).

You Have Two Ears and One Mouth Use wisely. Epictetus said, “We have two ears and one mouth so that we can listen twice as much as we speak.” This is essential when networking, because listening allows you to better identify your networking companions’ problems, issues, and needs so that you

can better assist them. It’s also been found that when someone spends time listening to someone, rather than telling them about themselves, the speaker finds the listener to be highly intelligent. Show off your intelligence by doing more listening than sharing. This used to be more difficult when virtual networking was done over the phone and you had fewer visual cues, but with the help of Zoom and Teams, you get more of the benefit of people’s facial expressions and body cues. Be an active listener and engage in the conversation in a way that lets the speaker know you care about what they are saying.

Learn About Cultural Differences Before You Go Somewhere New I usually would use this in reference to traveling to a new place (and that still matters!), but honestly, cultural differences can vary even industry to industry—we know that the legal industry, for instance, has our own language and customs. I will always encourage you to get outside your comfort zone and attend the events where your clients and potential clients are, and there may be a cultural difference there—what is their “language,” what are their “customs”? Sometimes, the only way to learn about these is by observation, but you can sometimes do some pre-attendance research as well. Things may also differ for certain companies in a virtual environment than in person—some groups will insist that everyone keep their cameras on, and everyone muted, while others will have everyone off mute. You may want to inquire beforehand whether you need to show up camera ready to an event or not! We may be currently living through a once-in-alifetime pandemic, but the ability to connect and network with each other virtually isn’t going away any time soon. As a result, we’ll need to settle in and adapt our networking skills to these platforms for good. n Lindsay Griffiths is a law firm network executive responsible for the oversight and management of day-to-day operations of the International Lawyers Network. Develops strategies and implementation plans to achieve the ILN’s goals. Responsible for recruitment, member retention, and a high level of service to members. Engages in the legal industry to stay on top of trends, both in law firms and with law firm networks. Learn more at www.ilntoday.com.

Attorney Journals San Diego | Volume 212, 2021

The Next (Foreseeable) Disruption for the Legal Industry by Michael Short

o say that we are in a period of change and transition is an understatement. About a year ago, we all went home, the IT professionals in all law firms proved they were worth their weight in gold, and most law firm partnerships went on to have remarkably “normal” or better years ... at least financially. While there is still much talk of what the “new normal” will look like, most of the discussion revolves around how much space and how many support staff we really need, who gets to stay home, and how do we maintain our culture and convey it to the new hires and laterals. These are all important challenges that leadership teams must resolve over the short term. However, there is a rapidly developing business model shift that will not be as abrupt, will not feel as seismic, and yet is going to have a far more lasting and uncomfortable impact on the legal industry. This is the generational shift in the economic buyers of legal services (“EBLS”, for purposes of this article), as ownerships, General Counsel positions, or other influential posts are transitioned from Boomers to younger generation buyers who will have very different outlooks on what “value” is and how it is delivered, what they want from a relationship with their lawyers, and what loyalty will mean in the future. Boomers are already outnumbered in the workforce by the multiple post-boomer generations. In my recent experiences with clients of law firms (with whom we interact regularly as part of strategic planning processes), while outnumbered, boomers generally remain in the key EBLS positions within most significant client relationships. As long as this is the case, old and comfortable patterns for business development and client relationship maintenance are safe and useful. In fact, I often ask these clients if COVID-19 will impact how they want to interact with their lawyers in the future. I also ask if COVID-19 has changed how a new firm can get a chance with the client for business development purposes. While the responses start with an acknowledgment that more can be done via online meetings, the vast majority state that this is still a

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relationship business and there is much value in faceto-face meetings and personal connections. Still, we often hear questions within partnerships such as, “Who will be the next business developers?” or “Who will be the next leaders of the firm?” Time is marching on within the law firm world and most partnerships are already wrestling with these internal succession/transition issues. Concurrently, time is also marching on within the EBLS population and, once the percentage of EBLS who are non-boomers becomes significant (for me, this is 25% TO 33%, because the pace of transitions will increase dramatically from this point forward), the business of law will reach a tipping point that, once passed, will have a far greater impact on both the business and the practice of law than anything resulting from COVID-19. With respect to the business of law, COVID-19 thrust us, operationally, ten years into the future and, as a result, we are now wrestling with internal issues related to the support of the lawyers and the provision of legal services. In contrast, the coming shift in EBLS from boomers to others will result in the need to re-think the business and practice of law to address future issues such as: • How will EBLS want to relate to their law firms? More remotely? More narrowly and specialized? • How will EBLS want to interact with their Relationship Partners ... and what will that role involve in the future? • Will non-Boomers demand a Relationship Partner of the same generation? Will Senior Partners be forced out of client relationships? • How will we develop new business relationships and expand the practice and revenue bases when the whole nature of business development may shift, based on the desires of the next generation EBLS who are likely to be more metric and reputation focused?

So much has been written on how differently each generation thinks and acts. To date, most of the related conversations within law firms have been focused on the attraction and retention of talent within the younger generations and understanding each other within the firm. Externally, we occasionally see a privately held family business pass from a grandfather to a granddaughter, but the impact of such transitions still feels like “one-off” incidents. As months and years pass by, this generational tipping point nears. When it really takes hold within any law firm’s client base, it will feel like a tsunami of change that will make the COVID-19 related modifications feel like a minor aberration. All aspects of client relationship development, management and service will be impacted, and, by extension, all internal support functions will need to be realigned with the new client “experience”. To further complicate matters, this tipping point won’t have a defined start date. It will ease its way into all client bases and, if not addressed aggressively, will absolutely result in lost clients and talent. As with any significant change, we cannot sit on our hands and hope this turns out well. Hope is not a strategy. It’s fairly simple to map out the likely retirements from a partnership to see when key client relationships will be in

transition and who may pick each one up. It is a bit more difficult to predict when transitions will occur within clients ... and even more difficult to predict who the next EBLS will be, but we can make educated guesses. As these transitions take place, learn as much as you can from your non-boomer EBLS—of course, without making them feel like they are lab rats—because their opinions and preferences will impact every aspect of a successful law firm in the future. Buckle up. The next 5-10 years will be filled with major changes that fundamentally shift how we do most everything. The good news is that they can be identified and addressed ... if you’re paying close attention. If you do, when your client base reaches its tipping point, you won’t be in scramble-mode trying to adjust on the fly. That never turns out well. n Michael Short is a founding Principal of LawVision. He counsels law firms around the world on strategic, management, compensation, and financial issues. Over the course of his over three-decade long career as a consultant to the legal industry, Michael has worked with well over 700 law firms. His client base ranges from small, “local” firms in many countries to large, multi-national operations. Learn more at www.LawVision.com.

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Attorney Journals San Diego | Volume 212, 2021

Merger as a Law Firm Succession Strategy by Roger Hayse

irst generation law firm leaders find themselves confronted by a classic “good news-bad news reality.” The good news is that they are nearing the end of what for many has been a rewarding career. The bad? Most have no clear path of succession— for client relationships or leadership responsibilities. There are a host of reasons; but the reality for most is an unplanned career dilemma—remain active long enough to develop and execute a succession plan, or go ahead and step away and put equity (not to mention legacy) at risk post departure. Faced with the dilemma, many law firm leaders find themselves entertaining a merger as a succession solution. For those considering merger as a succession strategy, there are five compatibility issues to consider.

Culture There is a lot of confusion about what culture really is. Simply put, culture is what work life is like inside a firm day to day. What characterizes behaviors ... what do conversations sound like ... what topics and issues capture attention and imagination. There is a strong correlation between a firm’s culture and what the firm most values. Not what it says about these things on the website or in recruiting materials; but where investments are made and stakes put in the ground. Eloquent copy describing a shared commitment to client service, community, collegiality, and collaboration are common. Too often there is a world of difference between what the website says and what the law firm is. When entertaining a merger, combining with a firm with a compatible culture is essential to continued happiness and longterm retention of personnel at all levels.

Client Profile Compatibility In addition to the obvious issue of legal conflicts of interest, compatibility of client/work profile is critical to executing a merger that will meet a firm’s succession goals. The more dissimilar the profile of clients in terms of sophistication of work, size of client companies and the related rate structure, the more difficult it is to achieve an effective integration of the two firms. A merger between a firm that represents large multinational companies on “bet the company” matters and a firm that does more routine work that yields a lower rate structure is problematic from the word “go,” no matter how much both parties want to believe otherwise.

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Compensation System Differences in the cornerstones of each firm’s compensation system—the degree of subjectivity in the system, the level of draws, the balance between draws and catch-up distributions, open vs. confidential, broad based participation in compensation setting vs. a small controlling body—all of these factors provide an opportunity for conflict. Finding a merger partner with similar compensation system values and function will help in achieving succession objectives.

Financial Ambitions Every firm is different in terms of financial performance and objectives. A lack of similarity in what is valued will yield dissatisfaction, a sense of us versus them and, over the long haul, a combination that will drive attrition from one side or the other.

Leadership Style Finally, the issue of compatible leadership is a critical consideration when a merger is considered as a solution to succession issues. A group of partners that have existed in an environment with a leader that routinely engaged partners, allowing them to actively participate in the decision making and policy-setting process will be unhappy in a new environment that doesn’t include such involvement. A merger can be a solid, even dynamic solution to issues of succession; but a critical success factor is the honest evaluation of leadership styles on both sides of the equation.

Conclusion The market for mergers has become very hot again. Law firm leaders looking to merger as a succession solution will likely find a number of options. It is easy to be seduced by the perceived upside. Leaders who devote appropriate attention to these five factors will be much more likely to engage in combinations that survive the test of time ... and deliver succession solutions for clients and firm personnel alike. n Roger Hayse has spent more than 30 years closely advising law firm management and legal industry service providers. His career is highlighted by consistently providing the counsel and leadership critical to successful law firm transitions. Learn more at www.haysellc.com.

SPECIALIZING IN COMPLEX BUSINESS LITIGATION

BET-THE-COMPANY CASES OVER 65 YEARS OF COMBINED EXPERIENCE REFERRALS/SUBSTITUTIONS ACCEPTED AT ALL STAGES OF LITIGATION, INCLUDING TRIAL • Complete defense jury verdict in real estate dispute and more than $400,000 collected for attorneys’ fees and costs in Batter v. McElhinney, et al. (2019)(Jason Kirby). • $2.1 million jury verdict for firm client in Doe v. San Diego Unified School District, et al. (2018)(Jason Kirby & Michael Kirby). • $1.1 million arbitration award for firm clients on cross-complaint after zeroing plaintiff on $6 million damage claim in Step Strategy Advisors v. Solid Gold Health Products for Pets, Inc., et al. (2018)(Jason Kirby lead counsel). • Michael Kirby received the 2021 Best Lawyers in America® distinction for (1) Bet-the-Company Litigation, (2) Commercial Litigation, (3) Litigation – Real Estate, and (4) Litigation – Securities.

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Women Making the Lateral Partner Move by Shari Davidson

aking a lateral move is a big decision. It’s important that anyone making the career move does it for the right reasons. Men still dominate lateral equity partners within law firms. There is plenty of room for women to use their leadership and marketing skills. If you are overlooked for partner, you may think about taking your portfolio of business down the street to another firm. Change is scary for everyone. Not making a decision is still a decision. Feel the fear and do it anyway. You made the decision, now prepare. Dig deep inside yourself, tell me what you want. • What practice areas do you provide to your clients? • Do you need offices in other locations? • Do you need to work virtual?

• A current CV, Business plan and Representative Matters available. • Accurate billing information for the past (3) three years (originations, billings, hourly rates, hours billed, realization rates, etc.). Work with a recruiter. A recruiter should be able to help you manage the process by: • Carefully have your recruiter query the interest level without releasing prospective lateral name or firm. • If there is mutual interest, set up meetings and keep the conversations going.

• Do you need marketing support?

Prep and debrief before and after each meeting.

• And most importantly, what do you bring to the table?

• Streamlining any materials, such as LPQ, compensation discussion and offer, prepping for resignation and most importantly be a sounding board for all concerns.

“That’s the basis of the strategic search, from here we can put you back in control of your career.”—Shari Davidson, President, On Balance Search Consultants.

Lateral Partner Process • If you are a partner at your current firm, read your agreement now. • Align yourself with a reputable recruiter. • Have a clear idea what the next career move will be and why. For example: Your next firm must have a robust marketing group to support you and have offices throughout the United States to serve your clients. The firm must have a culture that allows you to be home for your children. Research firms that are a good fit for your lifestyle and what you want. It is critical that your specialized skill set must align with the firm’s strategic goals.

Make sure you have ...

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• Virtual law firms may be the way to go. Working virtual is very doable, the support is there from cross selling to attorney collaboration. Thankfully, there are some great law firms for women to work for. Know the early warning signs. If your firm starts laying staff off or there is an increase in attrition, it may be time to start looking. Making a lateral move will impact your career, resist the initial temptation to make a move based solely on compensation. Consider all the factors, then don’t be shy, make it happen. n Shari Davidson is the founder of On Balance Search Consultants LLC. & On-Balance Life Centers. On Balance Search Consultants is a boutique search firm that specializes in finding top talent in the legal community. Shari has placed lateral partner attorneys, as well as group acquisitions & law firm mergers. And has assisted her clients in recruiting lateral associates, paralegals, and legal secretarial positions. Learn more at: www.onbalancesearch.com.

JOURNALS

ATTORNEY

OF THE MONTH

2021

RESILIENCE & PERSEVERANCE Expanded Role for Deborah Dixon as New Managing Partner at Gomez Trial Attorneys

eborah Dixon credits much of her expanded role at Gomez Trial Attorneys to her perseverance in the face of professional challenges. As of February, she is the Managing Partner of the firm’s Complex Department. The firm has about 50 professionals, from lawyers to staff with San Diego as the main office, but the firm has nearly ten offices in California. Clients of the Complex Department are individual persons who were harmed by a product or pharmaceutical drug or mass fraud/ deception by a corporation. The department helps people who have been either physically or monetarily injured by a single product or event. Much of their practice focuses on corporations violating the law or manufacturing defective products. Dixon loves the idea of helping people in a focused litigation. It is a bit counter-intuitive, she says, but in the class actions she helps thousands and hundreds of thousands of people recover money, most of whom she never meets or has direct contact with at any time in the litigation. Class actions allow her and her team to get redress that victims could never get on their own and no other lawyer would do for them as an individual case. Her policy for her mass actions is to really get to know each client so their attorneys can tell their stories in a coordinated action before one judge. Otherwise, it would be very difficult and expensive for each client to bring a separate lawsuit against huge corporations. Large litigation is risky because it is high-stakes, expensive and years of litigation, but has a real impact for many people on an individual level.

Dixon says, “Cases like these are what make me keep going. I get excited by the challenges I know will be coming in the day or in a case. Things like evaluating new cases, delving into the science or technology of some cases, evaluating if we’re in a position to help someone, prepping for depositions, getting ready for court—I really look forward to all of that.”

EARNING NATIONAL ATTENTION IN A GENDER DISCRIMINATION CASE Dixon handled a gender discrimination case for a number of women working for a scientific institution with government connections. The case was the first of its kind and a case that garnered national attention, including coverage by the national news media. “Those are the cases where resilience and perseverance pay off. I felt like my clients were brave and I needed to be that much more for them and to take as much as I could for them to shield them. Because it became so public and became national news, the events put my clients in the spotlight, which they never wanted. That case was a defining career moment that I appreciate every day as difficult as it was,” Dixon says. The case took years to litigate. Dixon says that there was not single element of the case that was easy. “Ultimately, we were able to bring about change. That’s the kind of stuff that drives me. You bring about change. You make sure corporations and governments, and institutions are held responsible.”

Attorney Journals San Diego | Volume 212, 2021

“My mom said she knew I’d be an attorney. I was advocating for friends and relatives at an early age. I also developed a real love for debating. I knew I wanted to do that someday as a career,” Dixon says. The desire to do something that allowed her to advocate on behalf of people stayed with her and began to blossom during her college years. She changed her major at UCSB to Law & Society. She also took prelaw classes and discovered she loved them. Dixon had a college Constitutional law class where the professor used the Socratic-method to call on students, like a law school class, and the subject matter and discussion intrigued her further. She decided to apply for law school. She worked as an intern in the Legal Aid Domestic Violence Restraining Order Clinic in college. There she saw what it was like in real life to represent a client and speak on behalf of someone in the courtroom. She earned her B.A. in Law and Society. One of her favorite activities was participating in the law school simulations class and observing actual court cases and seeing people advocating before the court. “I said, ‘Oh, no! I’m going to take the LSATs. I’m going to do this.’ Once I figured out that I wanted to be a lawyer, there was no other profession for me. That was it, I was all in, and have been ever since.” Resilience and perseverance kept her motivated while earning her own way through college and California Western School of Law, where she earned her J.D. in 2007. Her strong personality traits stem from childhood where people learn at an early age that challenges can be handled on one of two ways: avoiding them or overcoming and pushing through them.

“Once I figured out that I wanted to be a lawyer, there was no other profession for me. That was it, I was all in, and have been ever since.” —Deborah Dixon

Attorney Journals San Diego | Volume 212, 2021

“Resilience is a mindset. For example, as a young associate, you either sink or swim. You can handle the litigation, or you can’t. I knew I wanted to forge that path, to become a well-known litigator. I’m still trying today. You’re going to face difficulties on the job, in the courtroom and in the society. You just have to show strength and push on through,” she says. Dixon says a drive to work with the best and have opportunities to litigate large cases that impacted a lot of people brought her to Gomez Trial Attorneys. John Gomez, who has a national reputation for his trials and verdicts, was developing a complex litigation department to continue to litigate mass and class actions. She was excited to join him in 2015.

ALWAYS AN ADVOCATE

Those personality traits and her skills as an effective advocate paid off in the firm’s class-action lawsuit against Apple, a case that was litigated for more than seven years. The case related to a defect in the iPhone 4,5 and 5s and was heavily litigated and a difficult and complex challenge. Apple had excellent attorneys both in-house and outside counsel. Apple also is a huge corporation that had infinite resources to expend in defending its product. Their case was one of the first class-actions to ever be certified against Apple relating to a defect in its iPhone. The case resolved within weeks of trial. The firm’s attorneys were actively preparing for trial when they were able to reach a $20 million settlement. That wasn’t the end of the process. The day before final approval hearing, allowing resolution of the litigation, the courts completely shut down because of COVID-19. “We continued to persevere and got final approval as soon as the courts reopened and minimized the delay to getting the class paid as much as we could. High stakes litigation like class actions against Apple drive us to be the best and get the results for our clients,” Dixon says. Dixon’s work often involves working with referrals. The firm offers generous referral fees but more important, she says, is that when attorneys refer a case, they will be putting their clients in the best hands possible. She and her team take pride in providing the best possible client experience. Her policy, and that of the firm, is to treat every client as a member of the family. “Many of our referral partners know that when they refer us a case, that we will fight as long and hard as needed to make sure their client is well taken care of to the very end. Our firm has won more than $750 million dollars in awards and settlements for its clients, which is remarkable.” Dixon says they can take cases many lawyers would not because they have a team that is efficient, resourceful, and extraordinarily talented. Equally important, they are not scared off by the huge corporations they go against. “We are not afraid to take case to trial, even mass and class actions, and we know how to effectively litigate for our clients, but we do not lose the personal touch. We know our clients, their stories, and the way they have been harmed. We do not forget why we are bringing a case—we

TAKING ON THE GIANTS OF INDUSTRY

know the real impact it has had on our clients, even if in the class case, where we have not met many of the people injured, we still know the importance of standing up to big corporations who have done wrong,” she says.

COMMITTED TO HER PROFESSIONAL AND CIVIC COMMUNITY Dixon moved to San Diego in 2004 to attend law school and never left. “San Diego is my hometown now.” She is personally active in her professional community. She is a director of the San Diego County Bar Foundation, and the San Diego Inns of Court; a member of the Lawyer’s Club Advisory Board; was selected a Lawyer Representative to serve the United States District Court for the Southern District of California; is a past president of the Lawyers Club of San Diego; served for three years as a Director on Lawyers Club’s Board of

Attorney Journals San Diego | Volume 212, 2021

“I refused to give up because I wanted to be part of this amazing profession that allows us to represent people and causes.”

EXP ER I ENCE

Directors; served as a co-chair for Fund for Justice, the Lawyers Club’s non-profit; served as the President of the Alumni Association Board of Directors; is an adjunct professor of trial skills for the Distinguished Advocates Trial Skills class; and an adjunct to Alternative Dispute Resolution. Dixon is the middle sister of five sisters. They started a charitable foundation in 2020 called Sisters Rise Together. The mission statement is to raise money and give money to charities in California that are addressing, educating, and eliminating discrimination and violence against women in all its forms.

» EDUCATION • B.A. UC Santa Barbara – Law and Society Major • J.D. California Western School of Law

» RECOGNITIONS • Super Lawyer by Super Lawyers 2016-2020

Her commitment to reliance and perseverance has not waned and in fact has gotten stronger each year and with every case and experience. “Everyone has struggles and hardships. This practice is difficult and demanding. Even though I had to figure out how to support myself and pay for college and law school, I knew it was an investment in my future and one that I was willing to make. I refused to give up because I wanted to be part of this amazing profession that allows us to represent people and causes. I hope my example here will help open doors and raises awareness for women in positions like that across San Diego and the country,” Dixon says. n Contact Deborah Dixon Gomez Trial Attorneys 655 W. Broadway, Suite 1700 San Diego, CA 92101 619-929-9818 www.thegomezfirm.com

• Super Lawyers “Rising Star” in 2014 and 2015. • Named by San Diego Metro Magazine as one of the best and brightest in San Diego in its “40 Under 40” designation, 2014. • “Best of the Bar” since 2014. The San Diego Business Journal • Recognized by the San Diego Daily Transcript as a Top Attorney in 2015 and the 2012 Top Young Attorney, and as a 2012 Woman of Influence. • Rising Star Alumni of the Year by California Western School of Law. • Director with the San Diego County Bar Foundation and San Diego Inns of Court. • Selected Lawyer Representative to serve the United States District Court for the Southern District of California. • Past president of Lawyers Club of San Diego • Served as a co-chair for Fund for Justice, Lawyers Club’s non-profit. • Served on the California Western School of Law Alumni Association Board and was President from 2015-2016. • Active in mentoring your lawyers and law students.

Attorney Journals San Diego | Volume 212, 2021

• Served as an adjunct professor of trial skills and an adjunct in Alternative Dispute

The Triple Threat Facing Generalist Law Firms, Part 1: Insourcing by Katherine Hollar Barnard

orkload is up for 76.7 percent of corporate legal departments, according to Altman Weil’s 2020 Chief Legal Officer Survey. But that won’t necessarily correspond with additional work for law firms. Indeed, despite an increase in work, from 2019 to 2020, 70.2 percent of legal departments did not increase their law firm spending; 38.4 percent decreased it. Nearly 13 percent of those who trimmed their outside counsel budgets did so by more than 10 percent. Specifically, when asked how they planned to cover their overall workload, 54.8 percent of legal departments—more than half—said they would shift work to their in-house workforce. The budget trends support this: 40.4 percent of legal departments increased their internal budgets, while 36 percent report plans to hire more in-house lawyers and 10.6 percent plan to hire contract lawyers. In 2021, law firm spending is slated to continue its slowdown: 73.4 percent of legal departments said they will not increase their law firm spend, with 39.5 percent planning a decrease.

A Larger Trend Altman Weil data shows that 2020 was the third straight year that in-house spend exceeded outside counsel spend. But the shift toward insourcing goes farther back. Legal Evolution shared statistics from the Bureau of Labor Statistics: • From 1997 to 2016, the number of employed lawyers in law firms grew by 27 percent. • For the same period, the number of employed lawyers in in-house legal departments grew by 203 percent. In 2016, BTI Consulting reported that corporate general counsel had shifted $4 billion in legal spending back in-house by September. For context, that’s akin to seeing the salaries for 27,733 lawyers evaporate.

The Motivation Writing for Legaltech News, Nathan Cemenska of Wolters Kluwer shared three primary benefits for insourcing legal work: • Better understanding of the business. As Cemenska writes, “[Corporate legal departments] pay a high hourly rate for outside counsel to ask basic questions—questions that insourced teams can skip because they work in the 22

Attorney Journals San Diego | Volume 212, 2021

same organization and already know most of the answers. In addition to saving time and money, this reduces frustration by not having to bother business folks with questions and (expensive) meetings those folks view as unnecessary distractions from making money.” • Better alignment. Similarly, insourced teams are better aligned with business priorities. Cemenska argues that inhouse counsel tends to focus on business facilitation over basic risk management. • Better processes. Insourcing work doesn’t always mean hiring, Cemenska points out. Many tasks are ripe for process improvement, and the legal teams that explore new workflows, technology solutions or automation can find significant ROI. A 2016 survey by Thomson Reuters had a more straightforward approach. When asked why they were working with fewer outside law firms, 58 percent of in-house counsel cited cost containment, 52 percent cited efficiency, and 39 percent cited quality. The cost factor is far from negligible: According to the Association of Corporate Counsel’s Global Legal Department Benchmarking Report, the median cost per lawyer is $90 per hour. Meanwhile, the average hourly rate for a lawyer in Georgia is $292; in New York, $308. (Multiply that by three for Big Law.)

What’s Vulnerable The GC 350: Benchmarking Study for the In-House Community provides a look at in-house counsel preferences for work distribution. When it comes to level of work sent to law firms: • Low-level legal process: 16 percent outsourced. • Day-to-day legal: 16 percent outsourced. • High-level strategic: 26 percent outsourced; and • Specialist advice: 45 percent outsourced—nearly three times as much as the first two categories. When it comes to subject matter, in-house departments are more likely to claim the areas of focus that either require a thorough understanding of the company’s operations (i.e., commercial work) or broad knowledge in a general field (i.e., employment). The areas typically handled internally: • Bribery, corruption, and compliance: 92 percent. • Company and commercial: 87 percent. • IT and e-commerce: 78 percent.

• Regulatory: 76 percent.

• Matters that are frequent (contracts, trademarks).

• IP: 64 percent.

• Matters that are similar (employment issues).

• Insurance: 55 percent; and

• Matters that are low stakes.

• Employment and employee benefits: 51 percent.

• Matters that are straightforward (i.e., single-party transactions, single-party plaintiffs, contract review).

Conversely, the areas typically sent externally pertain to sophisticated or complex areas of the law (i.e., environmental, or corporate finance) or projects involving multiple parties or jurisdictions (i.e., M&A and dispute resolution). They include: • Capital markets: 86 percent. • Insolvency and restructuring: 83 percent. • Banking and corporate finance: 78 percent. • M&A: 76 percent. • Competition and antitrust: 62 percent. • Real estate and environmental: 61 percent. • Tax: 59 percent; and • Dispute resolution: 57 percent.

What This Means for You It’s time to take a hard look at your work and what it means to each client. How likely is your work to be insourced? Consider these risk factors:

If your work fits any of these criteria, it’s imperative you offer—and deliver upon—meaningful value for the client. Some options may be: • Are you the go-to firm for agribusiness, fashion, or banking? • Are you the leading litigator in a certain jurisdiction? Does your firm have deeper roots, a bigger footprint, a commanding presence in your state? • Do you have leading experience with a given statute, transactional maneuver, or regulatory agency? • Process. Do you have a better—and proprietary—method? It’s time to take a fearless self-inventory—and start making a meaningful claim to the market. Well-branded specialist firms will be the most protected from the influx of work in-house. n Katherine Hollar Barnard started Firesign to help legal industry clients attract, win, and retain business. She draws upon more than 10 years of experience at two of the nation’s largest law firms to build brands that connect and business plans that deliver. Learn more at www.firesignmarketing.com.

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Litigating with Pro Se Parties by Melissa A. Tulis

stablished case law tells us that pro se litigants are held to the same standard as represented parties, but that is not always the case in a judge’s eyes and should not always be the case from a practical standpoint. Pro se parties should be treated with the same respect we extend to colleagues and adversary attorneys, but with more patience and a lot more caution.

First and foremost, create clear boundaries that you do not represent the pro se party. Be direct and repetitive about this. When a pro se party asks a question that calls for legal advice, instead of simply stating you cannot give legal advice, state why. A request for legal advice is an opportunity to politely remind the pro se party that you do not represent them, your role, and what party you represent. Further, the only legal advice you can give is suggesting an unrepresented party speak with an attorney. Suggesting an unrepresented party seek counsel may be met with frustration from a party who cannot afford to hire representation, but it reminds a party of their right to obtain counsel and further reinforces that you are not that party’s counsel.

Without giving legal advice, be transparent in your answers to a pro se party’s questions. There is no need to hide the ball. To a limited extent, we can tell pro se parties what to expect in our course of action without advising them how they should proceed. For example, if a party asks what will happen at an upcoming hearing, we can respond with our client’s intentions for the hearing, e.g., that we will seek a continuance, a judgment, or dismissal of that party’s claims, whatever the case may be.

Do not argue the law with a pro se party. If an unrepresented party raises a legal issue, particularly in telephone or real-time correspondence, avoid arguing with them about it. Their position may be a clear misunderstanding of the law, but debating the issue or explaining why you disagree with their position comes too close to legal advice. It is safer to state you disagree with their position and recommend they consult an attorney. For example, if a pro se party calls to

Attorney Journals San Diego | Volume 212, 2021

dispute proper service, it is safer to respond that your records show proper service or that your position is that service was perfected. If you explain the law’s intricacies on the perfection of service of process in an attempt to show the pro se party they are wrong, you may inadvertently be giving legal advice. Continuing with this hypothetical, your explanation on proper service may be an excellent cliff notes version for a student in 1L Civil Procedure, but it does not consider all relevant facts this unrepresented party may not be telling you. This could lead the pro se party to fail to allege improper service in her answer, thereby prejudicing her ability to dispute service later even if she had a valid argument.

Finally (and second only to not giving legal advice), be kind. Pro se parties are often defendants being thrust into the unfamiliar legal arena for the first time. For the attorney, this is business, but for a pro se party, this is personal. Be understanding of heightened emotions. This can be a very confusing and stressful time for pro se parties. Do not misinterpret an aggressive defense from a pro se party as over-litigiousness; there is a well-earned culture in our country of mistrusting attorneys and the legal system. Pro se parties often fear they’ll be taken advantage of or lose their rights if they don’t fight you at every step. This can understandably create roadblocks, delays, and frustration for an attorney, but the attorney would be welladvised to remain kind, patient, and understanding. Our legal system can be challenging for pro se parties to navigate, and we should understand that barrier to accessibility. We can zealously represent our clients while striving not to be an additional barrier to accessibility ourselves. n Melissa A. Tulis is an associate at Smith Debnam in the firm’s Consumer Collections practice group, Melissa assists a broad range of businesses through the rigorous stages of the collection litigation process, including presuit collection efforts, lawsuits, judgments, and executions. These matters often involve a myriad of moving parts—the assemblage of which must be precise and unblemished both in execution and completion. Learn more at www.smithdebnamlaw.com

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Top Ten Questions Every Company Should Ask Themselves to Plan for Growth by Kalon Gutierrez

t its core, growth must be dynamic. Smart ideas and cutting-edge products or services are key ingredients to the success of any startup, but in order for emerging companies to truly scale, it’s necessary that company leadership take a very active and thoughtful role in that growth. There are various events that inevitably drive growth—financing rounds, product launches, mergers and acquisitions, public offerings, marketing, and PR initiatives. Growth for growth’s sake is not necessarily beneficial to a company. There are many implications to consider. We offer a list of ten questions we believe every company should be asking themselves before these major growth catalysts occur. The earlier in the process that a company asks these questions, the better prepared they’ll be to drive valuable and sustainable growth.

 What defines growth for my company? There are different forms of growth that companies can take on—revenue, profit, customers, employees, etc. For many tech companies, for example, growth is not about profit, especially at the outset. Rather, often it can be about customer acquisition and overall revenue. Some long-standing public tech companies still remain unprofitable to this day, in spite of huge valuations.

 What are the upsides and downsides of my company’s future growth? It’s commonly assumed that growth = success and all good things come with growth. But there are many potential downsides to consider when preparing for a company’s growth—for example, loss of collegiality and company culture.

 What headline represents my growth story today, and in what publication would it be placed? What headline would ideally represent my company at its time of exit?

Attorney Journals San Diego | Volume 212, 2021

If your company were to be featured on the front page of any major publication, which one would it be and what would the headline read? Thinking this through early on is a great way to paint a more tangible north star for the company. Thinking through who would feature your company (your advocates) and who would read the story (your target customers/partners) helps define your distinct brand of success.

 What do I want my company to be known for? In line with the above exercise, can you succinctly describe the key takeaway for your company? Depending on your vision, this can focus on areas such as product, people, or overall reputation. Companies often underestimate the value of market differentiation—what the company stands for.

 What do I want my company not to be known for? This question ultimately targets the blind spots—what potential risks are out there? Is your industry controversial? What could your competitors say about you? Growth will generate interest but also invites criticism. It’s important to think early on about what you could be known for and would like to steer clear from. Consider creating a purposeful action plan to navigate accordingly and be in control of your story.

 What key barriers remain in place today that will hinder my company’s growth? Now that you’ve identified what you do not want to be known for, consider what obstacles remain that might inhibit your ability to move forward. Some of these barriers may be within your control to clear and others may not. By way of example, in spite of a compelling product road map and founder story, a company could be limited by being part of an industry that investors have recently shied away from. Regardless of whether you have control over these factors, it’s important to identify them and plan to address them.

 What tailwinds are in place to propel my company forward?

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This could be a combination of favorable market conditions, newfound awareness of and broader interest in a product category, supporting growth in ancillary industries, and more. Identifying and leveraging these conditions can efficiently propel a company’s growth trajectory.

 What is my company’s moat? A moat is something that insulates your company from its competitors. What is proprietary and defensible about my company? This could be intellectual property, but it could also be high loyalty and switching costs for a large customer base.

 Who is my lifeline? When times get tough—and, yes, they do at some point for every growth company—it’s important to know who is on your “phone a friend” short list. This could be a combination of advisors, partners and/or investors. It’s important to identify these resources now and to keep them properly updated on speed dial throughout the growth life cycle. These lifelines will help you better pre-empt challenges and, when they do arise, more effectively address them.

 What’s next ... ? The final question is left intentionally vague. As a growth company, it’s important to give yourselves time to brainstorm—no set agenda, timeline, or deliverables; an opportunity to explore future potential. Be bold, and as they say to authors, “keep the pen going”—now is not the time for edits. Answering these questions is just the first step. We welcome an initial consultation to take a deeper dive, operationalize your answers and take action. n Kalon Gutierrez is a managing director with Manatt’s digital and technology consulting practice in the firm’s San Francisco office. As an entrepreneur and strategist, Kalon leads technology and innovation initiatives for top disrupters, including co-founding three consumer-focused companies. Kalon guides nextgeneration consumer, retail, media and entertainment, financial services, and education companies through the full landscape of business, brand development, partnership, investment, and growth opportunities. Learn more at www.manatt.com.

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