SAN DIEGO
Volume 132, 2014 • $6.95
Law Firms
Soft Underbelly for Hackers?
Christopher T. Anderson Why the Right Billing Software Matters to Law Practices
Top 4 Business Mistakes Law Firms Should Avoid
David Jr.
Ali Asadii
McIntyre’s Civil Alert
Organized Succinct Summaries
Monty A. McIntyre
Tips for Engaging Clients
The Energetics of Entrainment
Martha Hartney Computer Forensics Expert Witness Testimony
Peter Garza
RISING STAR
John Landay
Kirby Noonan Lance & Hoge
Creating a Powerful and Effective USP for your Law Firm
Romeo Richards
Attorney of the Month
Thomas Frost COOL, CALM & COLLECTED
Brinig & Company INCORPORATED
FORENSIC ACCOUNTING AND BUSINESS VALUATION 1983 – 2014 Resolving financial disputes for over 30 years Business Litigation • • •
Business valuation Damages analysis Accounting investigations
Civil Litigation • • •
Personal economic loss Wage & hour claims Alter ego analysis
Family Law • • • •
Family Code §4058 income analysis Separate property tracing Professional goodwill Pereira / Van Camp analyses
Estate/Trust/Probate • •
Trust litigation accounting Valuation discounts
Brinig & Company, Inc. (619) 687-2600 • Fax: (619) 544-0304 brinigco.com • info@brinigco.com 401 B Street, Suite 2150, San Diego, CA 92101
2014 EDITION—NO.132
TABLE OF CONTENTS features 6 Tips for Engaging Clients The Energetics of Entrainment by Martha Hartney
8 Top 4 Business Mistakes Law Firms Should Avoid by Ali Asadii
10 Creating an Effective and Powerful USP for your Law Firm by Romeo Richards
12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor
ATTORNEY OF THE MONTH
16 Thomas Frost
EDITOR Jennifer Appel
Cool, Calm & Collected by Jennifer Hadley
CREATIVE SERVICES Skidmutro Creative Partners
22 Law Firms
Soft Underbelly for Hackers?
CIRCULATION Angela Watson
by Christopher T. Anderson
24 Computer Forensics Expert Witness Testimony
PHOTOGRAPHY Bauman Photographers
STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Christopher Walton Monty A. McIntyre Martha Hartney Ali Asadii David Jr. Christopher T. Anderson Peter Garza WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
6
16
by Peter Garza
RISING STAR OF THE MONTH
27 John Landay
Kirby Noonan Lance & Hoge by Karen Gorden
28 McIntyre’s Civil Alert
Organized Succinct Summaries by Monty A. McIntyre
30 Why the Right Billing Software Matters to Law Practices by David Jr.
27
Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal. Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2014 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
Peterson Reporting. Providing nationwide service since 1986. LAW FIRM & ATTORNEY SPECIALIST
Harvey A. Lenett, RHU General Agent/Broker License #: 0375704 and 0H93377
40 YEARS OF EXPERIENCE Offering: Life Insurance • Health Insurance Annuities • Long Term Disability Long Term Care Qualified and Experienced Expert Witness Phone (619) 546-5996 | Halenett@cox.net LenettQuote.com
From day one of your
Reporting
deposition to the last day
Videography
of your trial, Peterson Reporting
Trial Presentation
is an indispensable member
Law firm with too much space? Attorney in need of an office?
of your trial team. Proven professionalism and proficiency
Free Conference Rooms Live Streaming Services Video Conferencing Services
for more than 25 years. Locally owned, globally known.
Global Reach Complex Cases Accurate, Fast
DowntownSublease.com A FREE sublease listing service brought to you by Hughes Marino, voted San Diego’s BEST commercial real estate company two years in a row by readers of the U-T.
530 B Street, Suite 350 San Diego, CA 92101
619 260 1069
Since 1986 petersonreporting.com Call to request green delivery of your transcripts and receive a discount.
Peterson AttJrnl HPV.indd 1
Attorney Journal San Diego | Volume 132, 2014
5
7/12/13 5:04 PM
W
Tips for Engaging Clients The Energetics of Entrainment by Martha Hartney Martha Hartney’s is a successful Estate Planning lawyer in Colorado and co-creator of the Estate Planning Bootcamp. As a Law Business Mentor her greatest hope is to help other lawyers claim, or reclaim, the joy and the spiritual pursuit of being a lawyer.
6
Attorney Journal San Diego | Volume 132, 2014
hen I started out in law practice, I kind of thought that my services would just be wanted and needed and that I’d eventually get paid for my expertise. Getting clients would be easy, right? Almost automatic, since I had the qualifications and skills they needed. Then, as I learned the art of working with clients… I was shocked to find out that how I behaved and “felt” in a meeting was the most critical factor of my success. What I’ve discovered is that my expertise is a very small part of the reason why people choose to work with me or not. Certainly as I’ve gotten more and more experienced in the area I’ve chosen, my confidence has risen which gives my advice more “umph.” However, the reality, and something they don’t and can’t teach in law school, is that… Your “presence” is far more important in your success than your experience or your expertise. What I’m talking about is energetic “entrainment,” the magical, mystical effect humans have on each other when we’re together. Have you ever been in a room with someone who’s angry and found yourself either wanting to run away or feeling angst yourself? Or been in the presence of someone completely calm and realized your breathing has become deeper and more steady? That’s our bodies’ natural desire to pattern and harmonize with one another. It’s what makes family, community, and society possible. When you meet with a client, you are beginning a process of entrainment to one another’s energy patterns. The person you’re looking at is looking for clues as to how to act, feel, behave, and react to the subject matter you’re talking about. Clients often have feelings and fears that even they do not quite understand—and are confused about how to tackle the big muddled ball of thoughts, feelings, ideas, preconceptions, and opinions rolling around in their heads. Your first order of business is to anchor them—old school style, to “build rapport,” which is a phrase that doesn’t do this process justice. It really is about finding
trust and confidence in one another. Your client needs to be heard, needs to be seen, wants to be entertained and wants to be released of the fears they’re carrying around. Your sole goal in the first part of your meeting is to help them settle in so they can start doing that.
Here are some questions to reflect on before you go into a meeting to see how you might be showing up and what you can adjust in your own energy to give your clients the experience they want: 1. How are you feeling right now? What emotions are in your body, both positive and negative? Are you nervous, scared, excited, shut down, frenetic, needy, upset? Or are you peaceful, confident, calm, joyful, grateful? 2. What is the temperature of your body’s energy? Are you more cool or warm? If you had to pick which color, would you appear more blue or more red? Don’t try to shift or change it, just notice. You will naturally have a more cool or warm energy pattern. Neither is good or bad, it just is. 3. What thoughts are going on in your mind? Are you working on your to-do list just before you go into a client meeting? Are you thinking about how much you need this client in order to
make your bills this month? If so, pause and breath. Let these thoughts glide away from you for now. You can get back to them later. Or not. 4. What music have you been listening to? Books you’ve been reading? Television or movies you’ve been watching? I have been surprised at how affected by my consumption of media I am. You, like me, may be porous this way—where the energy of the music, book, TV show is showing up in your body and mind. If that’s the case, make a point to take greater care of what goes in so that you can better manage what comes out. 5. What are the worries you’re carrying right now? Write them down somewhere so you can put them down and focus only on what and who is in front of you. 6. What is your intention for this meeting? If your intention is to make money, your potential client will sense it and put up barriers to you. Set an intention that is client-focused, not youfocused. What issue are they bringing you that you can help them understand and possibly solve? It sounds elementary, I know, but you’d be surprised at how often lawyers don’t put their client’s needs and wants ahead of their own energetically. Utilize these questions before future meetings and you’ll be surprised at your results. n
Helping victims of Elder Abuse and Personal Injury receive the Justice and Compensation they deserve. NursiNg home Neglect
|
FiNaNcial elder abuse
|
PersoNal iNjury
southern california super lawyers list top attorneys, San Diego Daily Transcript top 40 under 40 california litigator, ASLA avvo rating 10.0 “superb” avvo clients’ choice award 2012 & 2013
750 b street, suite 3300 | saN diego, ca 92101 | 619.233.0011 | www.waltoNlawaPc.com
Attorney Journal San Diego | Volume 132 2014
7
Top 4 Business Mistakes Law Firms Should Avoid by Ali Asadii Ali Asadii, MBA, MA(IT) is an author, business consultant and owner of Asadii Business Consulting, a management consultancy firm that specializes in guiding small and medium-size establishments in managing themselves efficiently and effectively. For more information contact Ali at ali@aprofitmaker.com or via the web at www. aprofitmaker.com. Article Source: EzineArticles.com/6940564
THE BUSINESS OF LAW has its own set of rules and regulations. Nevertheless, as with any other business, it can suffer due to certain mistakes, industry inaccuracies, and errors made by the law firm or its staff. Whether your law firm is large or small or whether you have a solo practice, these business mistakes can lost you dearly. Given below are the four most common business mistakes that law firms should avoid.
1 NOT FOCUSING ON YOUR NICHE This is particularly applicable to smaller law firms and solo practices. In an attempt to gain more clients and business, there is a temptation to spread yourself too thin and take on cases outside your area of expertise. Don’t give in to this temptation. Focus on your niche, as it allows you to deliver greater client satisfaction that will automatically enhance business and profitability. Once you are well established, you may expand the services your firm provides by hiring experts in other areas. Larger law firms that handle diverse cases should assign specific areas of work such as corporate law, environmental issues, and real estate to specific people. Having everyone look at everything is a sure recipe for disaster.
2 NOT MARKETING EFFECTIVELY Some law firms do not believe in marketing at all and want to rely completely on word of mouth and referrals. This is a mistake. At the other end of the spectrum are law firms that spend heavily on advertising and are puzzled by the lack of results. Marketing is an essential tool to promote your law business, but it needs to be used intelligently to offer maximum value. It is not necessary to have a full-page ad in a national newspaper. You may get better results with a small ad in a local magazine that has a greater chance of being read by your target clients. Your website can also serve as a cost-effective marketing tool. 8
Attorney Journal San Diego | Volume 132, 2014
3 NOT PAYING ATTENTION TO RECEIVABLES Providing the best services to clients costs money, but when clients don’t honor their bills on time, most lawyers are reluctant to follow-up. Some clients may take advantage of you and delay payment even further. If this situation continues, you will be left low on cash, which will ultimately affect the quality of service. Remember that clients will not leave your firm because you ask them to pay what they owe, but they will surely leave if your level of service goes down.
4 NOT COMMUNICATING WITH CLIENTS Not communicating is a common mistake that most lawyers commit without even being aware of it. The volume of work in a law firm is so large that you tend to be overwhelmed and may actually have no time to communicate with your client. Sounds unbelievable? But it is true. Communication with your clients is very important for business. You may be working very hard for their interests, but they need to know it. Giving regular updates to your clients by phone or email is essential. These are some of the most common business mistakes that law firms regularly make. Avoiding these mistakes will help keep your clients happy, and you will be able to retain them longer than you would otherwise.
THE GOLDEN RULES l
Find your niche and become an expert in it
l
Market yourself well
l
Pay attention to cash flow
l
Stay in touch with your clients n
Month-to-Month Office Space Symphony Towers, 33rd floor -
Unobstructed panoramic views Receptionist onsite Free gym Free downtown shuttle Kitchen amenities included Print, copy & scan onsite and ready to use Internet included 5 conference rooms included
For more information, contact Elizabeth Meunier at frontdesk@symphonyexec.com or 619.961.4150
Areas of Expertise Business/Commercial • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property/CEQA/Land Use • Wrongful Death
Past President: San Diego County Bar Association 2014 President of the San Diego Chapter of the American Board of Trial Avocates (ABOTA) Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 26 Years of Experience as a Mediator and Arbitrator 34 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants
M A. MI, E. Mediator, Arbitrator & Referee ADR Services, Inc.
Relentless Optimist® | Rapid, Reasonable Resolution™
To schedule contact Genevieve Kenizwald: phone (619) 233-1323, email gen@adrservices.org 225 Broadway, Suite 1400, San Diego, CA 92101 | Offices in San Diego, Irvine, Los Angeles, Silicon Valley and San Francisco www.adrservices.org | www.montymcintyre.com
Attorney Journal San Diego | Volume 132 2014
9
Creating an Effective and Powerful USP for Your Law Firm By Romeo Richards
T
he biggest asset to any client is your unique selling point (USP). Your USP solves the client’s problem and creates a differentiation amongst all of your rivals. For your business to thrive and attract long-term clients, you need to find and improve your unique selling point through law firm marketing. In order to have a successful business, discover and constantly build on your USP. Always remember to constantly deliver your USP. Meet your clients’ expectations and your USP will allow you to gain referrals. You will be surprised at the number of referrals that come your way.
Why is USP important in a law firm? It is essential for any law firm to have a unique selling proposition (aka unique selling point) to ensure the life of the business. In a highly competitive market, a unique selling proposition is the reason clients buy your service. In simple language, your uniqueness will stand out in a crowded legal market. A USP will differentiate you from the competition and will bring you clients. Therefore, your USP must be a wide-ranging, compelling, and appealing message to your market. USP can work like magic; or it can destroy you position in the legal market if the wrong one is chosen. Your USP will help you build a profitable law practice and will keep your business thriving. The first point when deciding your USP is deciding what your main promise is to your prospective clients. Finding your main promise is a vital part of your law firm. It is better to be an intellectual when describing the service or solution you provide to your prospective clients. USP is a legal marketing message used to show how you want to serve your clients.
How to create an effective and powerful USP Your USP must be the first detail a client remembers about your business. The unique selling proposition has to be short, memorable, and expressed exactly the way you want clients to remember. 10
Attorney Journal San Diego | Volume 132, 2014
Here are the steps on how to create an effective USP: 1. Define your distinctiveness. A unique selling proposition must explain your law firm’s unique service. The service you offer must be one of a kind. 2. Think like your clients. Many business owners attempt to think like their clients by looking at values, needs, problems and beliefs. It is a big help in creating an appealing USP. 3. Define your promise. An important part of a successful USP is making a promise to your clients. Your USP can be verbalized, however this promise you make to your clients should be put in writing. 4. Keep it short, effective, and unique. Form your USP so that it’s most effective. Include powerful ad words and highly visual adjectives that will directly communicate to the clients. 5. Verify your USP. Don’t verify your USP with your family, but with your client. Find out what he thinks and ask for feedback on how to improve your statement. Don’t ask for feedback from just one client; instead ask for feedback from 50 or more of your clients. Like all businesses, you want a solid stream of clients, better revenue, and more profits. Even if you serve your clients better than your competitors, your business will not last long if your message is not delivered effectively.
Romeo Richards is the CEO of The Business Education Center. The Business Education Center provides the most comprehensive business coaching and training to professionals such as doctors, lawyers, accountants, business consultants, private security firms and retail executives. Romeo can be reached at: info@theprofitexperts.co.uk. Article Source: http:// EzineArticles.com/7211773
CALIFORNIA STATE BAR DEFENSE LAWYERS RECENT AND FIRST-HAND STATE BAR INVESTIGATIVE AND TRIAL EXPERIENCE
WE HANDLE all phases of proceedings including investigations, trials and appeals … Admissions, moral character, reinstatements and provide ethics consultations
LAW OFFICES OF ANTHONY RADOGNA
Former State Bar Investigator 2006-2011
OF COUNSEL DAVID SAUBER ESQ.
Former State Bar Trial Counsel 2000-2010
www.StateBarDefenseAttorney.com | 909-622-5049
SAN DIEGO AND ORANGE COUNTY’S LEADERS IN…
• ESI Processing & Hosting • Data Acquisition & Forensics
• Managed Document Review • Paper-based Discovery Services
501 W. Broadway Suite 400 San Diego, CA 92101 Office: (619) 234-0660
FREE MCLE SEMINARS!
Call us for information to schedule a complimentary in-person or webinar MCLE seminar on a variety of electronic discovery topics.
DTIGlobal.com Attorney Journal San Diego | Volume 132, 2014
11
COMMUNITY news nGomez Trial Attorneys is pleased to announce that acclaimed trial lawyer Jude Basile has joined the firm as “Of Counsel.” In that capacity, he provides mentorship, training and strategic advice. He is also available to try select cases for firm clients. While serving as “Of Counsel,” Mr. Basile also maintains his separate national trial practice at JUDE BASILE The Basile Law Firm. A member of the prestigious “Inner Circle of Advocates,” limited to 100 trial lawyers nationally, and the immediate Past President of Gerry Spence’s “Trial Lawyers College,” Mr. Basile is considered as one of the country’s elite trial attorneys for people. Among his many recognitions, Consumer Attorneys of San Diego have awarded Mr. Basile 7 separate “Outstanding Trial Lawyer” awards and he has been named “Trial Lawyer of the Year” by peer groups on 4 different occasions.
nSeltzer Caplan McMahon Vitek is pleased to announce that Brian M. Katusian has been certified as a specialist in taxation law by the State Bar of California Board of Legal Specialization. Katusian is an associate at Seltzer Caplan, and his practice emphasizes tax law, taxexempt organizations, business law BRIAN M. KATUSIAN and ERISA/employee benefits. Katusian advises clients regarding the various tax consequences of a wide range of business, employee benefits, and estate planning transactions. He also represents entities and individuals in a wide variety of tax matters before governmental entities, including the Internal Revenue Service, California State Board of Equalization and California Franchise Tax Board. Katusian received his Juris Doctorate degree from the University of San Diego School of Law and his Bachelor of Science degree in management science, with honors, from the University of California at San Diego.
nSan Diego personal injury law firm Martinez & Schill LLP is pleased to announce the opening of their downtown San Diego law office located at 501 West Broadway, Suite 800, San Diego, CA 92101. The San Diego office marks the second location for Martinez & Schill LLP, as the firm also continues to assist MARTINEZ & SCHILL LLP clients from their Riverside office. “As our firm continues to expand throughout Southern California, we were looking for an ideal location to better serve our clients,” says Partner Jennifer Martinez. “The central location of downtown San Diego and the opportunity for growth in the local community made this an easy decision for our firm.” The San Diego personal injury lawyers at Martinez & Schill LLP bring 37 years of combined legal experience to their practice. The experienced team of lawyers includes Founders and Firm Partners, Jennifer Martinez and Michelle Schill, and Of Counsel Attorney, Kent Thaeler.
nKilpatrick Townsend & Stockton announced today that Partners Ken Jenkins and Bill Shaffer were named to the inaugural San Diego Business Journal’s listing of the 2014 “Best of the Bar” leaders. The San Diego Business Journal recognizes top San Diego lawyers as selected by their peers and KEN JENKINS showcases those who have made a significant impact in the community. Individuals selected to the inaugural Best of the Bar list are among the “most outstanding in San Diego.” Dr. Jenkins is the Managing Partner of Kilpatrick Townsend’s San Diego office. His practice focuses on patent counseling and patent litigation, primarily in the health BILL SHAFFER and life sciences and the oil and gas-petrochemicals industries. Dr. Jenkins additionally provides strategic advice in high-stakes patent litigations involving challenges under the HatchWaxman Act. Mr. Shaffer focuses his practice on patent prosecution, counseling and portfolio building/management in electronics, semiconductor and computer-related technologies. Mr. Shaffer has been lead or co-lead on numerous post-grant patent procedures, including reexamination and reissue proceedings, and has provided in-depth analysis of patent portfolios in the context of licensing negotiations, venture capital investments, and corporate acquisitions.
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
12
Attorney Journal San Diego | Volume 132, 2014
COMMUNITY news
WILLIAM M. LOW
CHRISTOPHER MARCHESE
LISA MARTENS
JOHN PHILLIP
MATT SOSKINS
nWilliam M. Low of Higgs Fletcher & Mack, LLP, has recently become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in the United States. Fellowship in the College is extended by invitation and only after careful investigation of experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism and civility. “It is a tremendous honor to become a Fellow of the American College of Trial Lawyers,” said Low, a senior trial lawyer and partner at Higgs Fletcher & Mack. Low began his legal career over 30 years ago at the law firm of McInnis, Fitzgerald, Rees, Sharkey & McIntyre, and was its managing partner when it merged with Higgs Fletcher & Mack in 1999. He is currently a senior trial lawyer at Higgs Fletcher & Mack. The newly inducted Fellow is an alumnus of Loyola Law School. nFish & Richardson today announced that 39 of its attorneys have been recognized as “IP Stars” by Managing Intellectual Property (MIP) magazine, far exceeding the number of attorneys named at any other U.S. firm. Five of Fish’s “IP Stars” are from the firm’s Southern California office, based in San Diego. The “IP Stars” list highlights the country’s leading intellectual property attorneys and is based on recommendations by peers and clients. The five San Diego Fish principals named “IP Stars” are: Juanita Brooks, Teresa Lavoie, Ph.D., Christopher Marchese, Lisa Martens, and John Phillips. MIP is a leading international magazine for in-house IP counsel. “IP Stars” are recommended and confirmed by peers and clients in each respective jurisdiction. The list is based on extensive research conducted among IP practitioners in more than 80 countries between September 2013 and January 2014. nHiggs Fletcher & Mack, a San Diego-based, full-service law firm for 75 years, announces the hiring of attorney Matt Soskins as Special Counsel. He has extensive transactional, as well as litigation experience in the area, and will expand the firm’s health care practice. “Matt will also be of significant value to our clients who need to ensure they keep in compliance with existing consumer privacy and data protection laws,” said John Morrell, Managing Partner of Higgs Fletcher & Mack. “We’re excited to have him aboard!“ In addition to his extensive legal knowledge, Soskins draws on experience gained working in three separate health systems to help integrate regulatory compliance requirements with operational realities. He comes to Higgs from Tri-City Medical Center where he served as the Compliance Officer and Vice President of Legal Affairs. Prior to that, Soskins worked for DiCaro, Coppo & Popcke, LLP where he represented numerous hospitals and physicians in professional liability cases, medical board inquiries, medical staff privilege inquiries and civil litigation. He is a 2008 graduate of the University of San Diego School of Law and also holds a Ph. D. in psychobiology from Northwestern University. Attorney Journal San Diego | Volume 132 2014
13
C OOL, CALM & C OLLECTED ATTORNEY
OF THE MONTH
2014
Thomas Frost’s commitment to capturing the facts and ensuring collectability has won him the loyalty of clients ranging from Fortune 500 companies to individual victims of financial and securities fraud
by Jennifer Hadley
“I
front load cases with a tremendous amount of time and energy. I thoroughly research and analyze every potential claim and party at the outset of my representation, giving a tremendous amount of consideration to collectability issues,” says Thomas Frost, Managing Partner of The Frost Firm. “When I take responsibility for a person’s or a company’s financial dispute, I will leave no stone unturned and deliver a passionate and accurate presentation of the facts,” adds the San Diego native. However, Thomas didn’t necessarily harbor lifelong aspirations of becoming an attorney. Born to a family of health care professionals, Frost discovered his passion for advocacy as the result of a speech class during his undergraduate work. “I discovered something powerful and evocative about public speaking. Whenever I engaged in public speaking, I experienced a great deal of anxiety immediately beforehand but after the first few words came out, a sense of calm and purpose overwhelmed my fears and energized me,” he says. Frost promptly set his sights on law school. “As a first year law student at USC, it seemed like everyone in my class but me had attorneys in their families and knew exactly how to take law school exams and to otherwise succeed in law school. Shortly into my first year, I learned many students were taking practice exams based on professors’ old exam questions, which were readily available in the law school’s library. I spent countless hours writing and evaluating those practice exams and excelled on exams as a result of my hard work. But I learned a more important, seemingly obvious lesson in the cutthroat environment prevalent in law school. I
16
Attorney Journal San Diego | Volume 132, 2014
learned to always exhaustively search for any available strategic advantage in the law, and business in general, and expect your peers will do the same,” Frost says.
Keeping His Cool
Though Frost was very clear that he needed to search for advantages, he admits that his foray into practice following law school had a few hiccups. “I struggled to find my way in a large firm environment,” he says. In 1999, he returned to San Diego from Los Angeles, and landed an interview with what was then Shustak, Jalil, & Heller, P.C., (now Shustak & Partners P.C.). With offices in San Diego and New York, “Erwin Shustak gave me a chance and served as my mentor for many years. I learned how to try cases with conviction, and equally important, how to run a law practice. When I was invited to be a named partner of the firm, it was both an honor and outstanding career opportunity. By 2013, it was a natural evolution to start my own firm,” Frost says. The Frost Firm’s attorneys have recovered millions of dollars on behalf of clients including publicly traded companies, manufacturing firms, retailers, real estate development companies, recording studios, captive and independent insurance agencies, hedge funds, mutual funds, registered representatives and investors. Forums for representation have included Federal and State Courts, and high stakes arbitration before FINRA, JAMs and AAA. Regardless of the venue, Frost is nothing if not over prepared. He enters each forum fully armed with facts and consequently,
Photography by Bauman Photographers
Attorney Journal San Diego | Volume 132, 2014
17
Photography by Bauman Photographers
confidence. “Not long ago I watched Tom Hanks interviewed on Inside the Actor’s Studio. Asked what occupation least appealed to him he said, ‘A lawyer. That’s doing homework for a living.’ I was struck by his comment because on the one hand, he was right. As lawyers, doing homework is imperative no matter how experienced or successful we become. But I cannot imagine another profession or occupation I would rather pursue. Helping people in times of great need, while overcoming the unique challenges presented by a diverse clientele, is immensely gratifying. The hard work in practicing law doesn’t feel like homework, when I find empathy for clients,” Frost says. By way of example, Frost recalls a case early on in his career. “One of the first cases I tried involved an investment dispute between a relatively sophisticated securities attorney and his financial advisor. I represented the attorney who lost his young family’s entire nest egg as a result of investment losses in his brokerage account. At the outset of the case, my hopes were dim. I worried that the FINRA Panel hearing the case would think my client must have known what his broker was doing, and therefore embraced the risk of the broker’s investment strategy. But as I came to know him, I believed in his case and in him. He really had no idea what his broker was up to, and truly believed his broker was treating his account as he would his own mother’s. I introduced evidence that the broker did 18
Attorney Journal San Diego | Volume 132, 2014
manage his mother’s account, and protected it, while leaving my client hanging out to dry.” Frost won a big six-figure award in the case, compensating his client for all of his monetary losses, plus interest, attorney’s fees and punitive damages, which are not commonly awarded in FINRA arbitrations. The overwhelming majority of people who reach out to Frost have a similar story. “They come in, and they know that fraud has been committed or they’ve been financially oppressed, but they don’t understand how or why it happened. We block off an entire afternoon for an initial consultation, or longer if needed. We review documents to get a good handle on the issues before we even discuss a retainer. Once we determine what the case entails and where it will be litigated, we use our very close relationships with expert witnesses, who we value and rely heavily on, to help with reviewing the numbers and details,” Frost explains.
Collectability as a Core Concern
Much of Frost’s preparation involves determining collectability for a client. After all, a huge award, of which his clients will never see a dime, is frankly rather hollow. As such, Frost says, “I give tremendous consideration to the issue of collectability at the outset of any case. There is no better feeling at the end of the case than when we have succeeded in helping a client through a financially catastrophic life event. To see the relief they feel in knowing that they can get their lives back on track
drives me to push cases along.” For example, he recalls representing orphan siblings who discovered when they reached adulthood that their LPL broker and trustee of their family trust defrauded them out of their entire inheritance and life savings over a 20-year period. “I recovered an award after trial of $1.8 million and helped these young siblings get their adult lives back after suffering an overwhelming and devastating financial tragedy,” Frost says. In another case, Frost recovered a $5.4 million award after trial against the third-largest Spanish-language television network in the United States, and the President of that company who was based in Texas. Long before the Federal Court in California entered final judgment on the award, Frost already retained local counsel in Texas and completed all of the necessary paperwork to enforce the prospective judgment in Texas, where substantially all of the individual defendant’s assets were located. “We had to move fast because the network’s mounting debts raised serious concerns regarding a potential bankruptcy filing. My strategy to ensure the collect-ability of my client’s award depended, in part, on quickly and aggressively enforcing the award against the individual defendant, who actively was raising investment capital for another venture at that time. Frost’s strategy worked and the defendant arranged to satisfy the substantial judgment over approximately 10 years.
Keeping Calm and Balanced
With preparation and collectability as Frost’s top priorities, he also focuses on remaining calm and cordial with opposing
Preparation and commitment pay off for Frost in the backcountry of British Columbia.
counsel. “I’m surprised how many attorneys have conflicts with other attorneys. Attorney referrals are very important, especially in a close knit legal community like San Diego. In larger metropolitan areas, opponents may never see each other again after a case resolves, but those who practice corporate and securities law in San Diego for any length of time tend to see the same opponents on the other side of the courtroom more frequently,” he says. To that end, Frost strives to practice law as a gentleman, by refusing to take the adversarial nature of litigation personally. “Diligence, skill and preparation speak volumes in the courtroom or at the negotiating table, whereas pettiness and aggression reflects poorly on a client’s position. I never underestimate the attorneys on the other side of a case, and always show my adversaries and their clients due respect,” he explains. Moreover, his professionalism has earned him recognition including being named a Top Attorney in the area of Corporate Litigation by the San Diego Daily Transcript in 2012 and 2014, and longstanding membership in the Million Dollar Advocates Forum for recovering million dollar and multimillion dollar awards after trial. “Many of my clients over the years were referred by former opponents, which is the ultimate professional compliment. Maintaining consistently high standards of professionalism pays great dividends in the forms of referrals and a better quality of life,” he says. Indeed, for Frost, a high quality of life obviously includes a successful practice, so he takes steps to ensure that The Frost Firm remains successful through constantly reinvesting in
Frost finds perspective offshore his Downtown offices.
Attorney Journal San Diego | Volume 132, 2014
19
THE FROST FIRM TEAM AUDIE DE CASTRO
Of Counsel to the firm
“Audie de Castro is Of Counsel to the firm. Mr. de Castro focuses on corporate and securities transactional matters for the firm. Mr. de Castro’s professional experience as a CPA performing forensic accounting services is tremendously valuable to the firm’s transactional clientele. With his financial background and business acumen, Mr. de Castro serves as corporate counsel to public and private companies, and handles complex and large transactions, such as mergers and acquisitions, securities offerings, licensing, distributorships, and commercial real estate deals.
CRAIG H. WENDLAND, ESQ.
Senior Associate
Craig H. Wendland is a Senior Associate in the Civil Business Litigation and Transaction Practice in The Frost Firm’s Downtown San Diego Office. Mr. Wendland has dedicated his practice to the representation of a broad range of clients in the fields of telecommunications, medicine, software, the life sciences and high technology in a variety of Business Transaction, Litigation and Intellectual Property matters. Mr. Wendland’s primary practice focuses on complex civil litigations, licensing and commercial disputes involving biotechnology, the high sciences and other emerging technologies. Mr. Wendland’s experience also extends to complex securities transactions and litigation, derivative actions and arbitrations.
KAROLYN RODRIGUEZ
Paralegal
Karolyn Rodriguez is a Paralegal in the Firm’s San Diego office. Ms. Rodriguez assists the Firm’s attorneys with document productions, electronic discovery, pleadings, research, case management, trial preparation and audio-visual presentations. 20
Attorney Journal San Diego | Volume 132, 2014
TIMOTHY J. O’LEARY
Of Counsel to the firm
Timothy J. O’Leary is Of Counsel to the Firm based in the San Diego office. Mr. O’Leary focuses his practice on labor and employment litigation. Mr. O’Leary’s labor and employment practice encompasses all aspects of employment law, including state and federal court proceedings, administrative hearings before EEOC, DFEH, OSHA, and the California Labor Commissioner, and employer counseling. Mr. O’Leary has had substantial courtroom and trial experience in the area of employment law, so he understands the importance of preventive personnel practices and the diligent administration of employment policies and regulations to avoid costly litigation.
GENEVIEVE M. RUCH, ESQ.
Associate
Genevieve M. Ruch is an attorney with the Frost Firm. Ms. Ruch works on a variety of matters with the firm’s partners, including business and corporate litigations, securities litigations and arbitrations, intraindustry FINRA arbitrations, and contractual disputes. Ms. Ruch graduated from San Diego State University, majoring in Political Science with a minor in Business Management. She attended the University of San Diego School of Law and graduated cum laude, earning many high-grade awards throughout her law school career. Ms. Ruch was a member of the San Diego Law Review and served as a Comments Editor.
NAOMI NUNEZ
Administrator
Naomi Nunez is the Firm’s Administrator, based in our San Diego office. Naomi manages the accounting and billing departments and completes a variety of administrative duties. She works closely with the Firm’s CPA, as well as Firm Partners to coordinate management tasks and complete financial and billing audits.
Contact: Thomas Frost The FROST FIRM www.thefrostfirm.com tfrost@thefrostfirm.com 619-822-1740 1010 Second Ave., 24th Floor San Diego, CA 92101
Photography by Bauman Photographers
EXPERIENCE
the firm, in his hometown community, and in his personal life. “When I experience some measure of financial success in a given month or year, I try not to rest on my laurels, and instead consider hiring another associate or paralegal, and pursue advertising opportunities. Incremental growth not only frees up time to focus on the big picture, but also almost universally pays dividends down the road,” he says. As far as reinvesting in the San Diego community, The Frost Firm is well known for their charitable contributions and volunteer work. “Our attorneys have devoted hundreds of hours to a wide range of pro bono matters, and received the California State Bar’s Wiley M. Manuel Award for Pro Bono Legal Services for our work giving back to the community,” Frost says proudly. Similarly, the attorneys at The Frost Firm have also been honored with the San Diego Volunteer Lawyer Program’s Distinguished Service Award. Finally, Frost has also learned to make time for himself and his family, in order to maintain a better balanced quality of life. Married to Jemma since 2007, Frost is quick to give credit to his wife for not only putting her nursing career on hold to be home with their 4 year old daughter, Keira, but for her support and encouragement when it came to launching his own firm. “She convinced me anything was possible and we embraced the risk together to flourish for the sake of our young family,” he says. Whenever possible, family time is spent enjoying the outdoors. “I enjoy sailing, surfing and snowboarding. They are each meditative in their own ways and help me to reflect on and balance family, career, cases and life in general. I believe engaging in these physical meditative pursuits gets me out of my head and activates right-brain creativity in my decisionmaking, which otherwise may be missing from a life [spent exclusively] in the office,” he says. n
» EDUCATION • University of Southern California Law Center, Los Angeles, California J.D. - 1996 • University of California, Los Angeles, California
B.A. - 1992
» PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
• California State Bar Association • San Diego County Bar Association • Public Investors Arbitration Bar Association • American Association of Justice • Consumer Attorneys of California • Association of Trial Lawyers of America
» BAR ADMISSIONS • California • U.S. District Court Southern District of California • U.S. District Court Central District of California • U.S. Court of Appeals 9th Circuit
» AWARDS • “Top Attorney 2012” in the area of Corporate Litigation, as selected by the Editors of the San Diego Daily Transcript. • “Top Attorney 2014” in the area of Corporate Litigation, as selected by the Editors of the San Diego Daily Transcript.
“Quality time with my young family means everything,” says Frost.
• Longstanding member of the Million Dollar Advocates Forum for successfully recovering seven figure awards after trial.
Are law firms really a “soft underbelly” for hackers? Yes, according to numerous legal security experts and recent news reports. Understandably, more corporate clients are demanding their law firms take increased security measures. So why are law firms on the hacker radar? Quite simply, because law firms—especially smaller and midsize firms—tend to lack the level of security of their corporate clients. This can provide hackers with a proverbial “back door” into confidential and privileged data of more secure businesses, via their law firms. 12 PRACTICAL WAYS TO PROTECT YOUR CONFIDENTIAL INFORMATION
Law Firms: Soft Underbelly for Hackers? by Christopher T. Anderson Christopher T. Anderson is the Product Manager for the LexisNexis® Firm Manager™ application. Firm Manager is a web-based practice management system that keeps attorneys and staff of small law firms connected to all the details of their clients, cases, matters and firm business. LexisNexis Firm Manager helps attorneys organize, secure, and have constant access to all the clients, documents, appointments, tasks, contacts, and matter information, anytime, anywhere. Mr. Anderson is an attorney, and prior to working with LexisNexis, he was the managing partner of an eight-attorney, full-service law firm in Georgia. Mr. Anderson practiced in the fields of family law and business litigation. Previously, he served as an assistant district attorney in New York City, and in Athens, Georgia. Mr. Anderson was also Associate General Counsel and Director of Client Services for RealLegal, a legal software company. He is a graduate of Cornell University, and received his Juris Doctorate from the University of Georgia School of Law in 1994. Christopher Anderson is admitted to practice in the federal and state courts of New York and Georgia.
22
Attorney Journal San Diego | Volume 132, 2014
Surprisingly, the biggest threat to law firms comes from within their own walls. Many law firms have some type of security plan in place, but these measures need to be tested continuously to protect against the latest threats. Using a “check-off-the-list” security methodology can make law firms a soft target for hackers. Adding insult to injury, many seemingly harmless activities of law firm employees also put the firms at risk. Think about the last time you visited your firm’s reception desk. Notice a sticky note taped to the desk with passwords and confidential information on it? How do you know visitors aren’t trolling for this type of information? Also, when your firm upgrades to new devices, what happens to all that old hardware—not just computers and laptops, but tablets, phones, thumb drives and even copiers? These are all questions law firms should be able to answer with confidence, and it goes well beyond passwords and discarded devices. The good news is there are multiple ways you can mitigate your security risks. The first step, though, is acknowledging you are not immune to a breach. (For those of you who don’t believe your firm is being targeted, I say you’re just not looking.) That said, your security plan should strike a balance between protecting against bona fide threats and outright paranoia. Here are 12 commonsense steps to protect your firm. 1. Use firewalls. Any firm that uses computers must use firewalls—it’s that simple. Firewalls provide a critical
first line of defense when it comes to checking all webbased traffic coming into and going out of the firm and blocking traffic that is not desired, or looks like it is not legitimate. Firewalls should be applied both to the network and individual computers. 2. Use strong passwords. Don’t use passwords that are too short, and avoid using personal information such as a child’s name or birthdays that are easily hacked. A good website to gauge the strength of your password is howsecureismypassword.net. 3. Use good hygiene. Going back to the sticky note example, make sure you are using good “hygiene” by ridding the office of easy-access points. 4. Remove residual data. Know how to browse the web securely—and remember, every website you visit can leave cookies. This residual data should be encrypted and wiped regularly. 5. Use caution on social media. Once you put information in the public domain, such as by posting it to Facebook, Twitter or YouTube, it can’t be taken away. Think carefully before posting sensitive information on social media sites, and have good policies around what others in the firm do too. 6. Wipe discarded devices. The legal industry is evolving rapidly and so are our devices. Make sure, as you upgrade to the newest tablet or smartphone, that you are wiping discarded devices with military-grade software. Sometimes physical destruction is a good idea. Or, better yet, hire professionals to do it. 7. Implement a breach plan. Assume hackers will get ahead of you and do everything you can to prevent a breach. If you don’t already have a plan in place, work with a consultant or data breach management company to protect your firm’s assets. Know in advance how you will: • Protect and access data • Notify clients in the event of a breach • Get back up and running 8. Use virtual private networks. VPNs are a great way to access information remotely and securely. If you frequently use VPNs for business travel, I recommend investing in a screen protector, which will prevent those around you from viewing your screen. Also make sure to use HTTPS sites rather than HTTP sites. HTTPS should ensure the information you are browsing is locked and secure on your device. 9. Maintain document security. Reviewing and sharing documents is fundamental to lawyers. When shopping for
cloud-based file-sharing products, look for software that provides: • Secure file sharing • Secure file sync • Digital rights management • Secure web access • Mobile productivity • Terms and conditions that reflect your duty to your clients around confidentiality, privilege and safekeeping 10. Know the difference between the public and private cloud. Not all cloud solutions are created equal. Public cloud offerings—those available to the public—are often free, or close to it. Read the terms and conditions carefully and ask the following questions before you consider using a service: • How will my data be protected? Public cloud solutions’ security should be validated by third parties such as eTrust, U.S. Data Centers and SysTrust, to name a few. • Who will own the data? Understand what they will do with the data and read the conditions so you know what they will do if the government calls or if you cancel your subscription. • How readily available will the data be to you? • The private cloud provides a privately hosted place to store and access data, and only those approved to use it are welcome. While typically you’ll have to pay to use private cloud services, many provide an important internal layer of security. 11. Be savvy about encryption. Make sure you know where your data is stored and ensure the data is encrypted both while it is in transit and while it is at rest. 12. Prepare a notification of practices. Craft language that clearly explains to clients how their data is stored and how it will be protected.
BE PREPARED While no law firm is immune from a security breach, the most important step firms can take to protect their data is to be prepared. This means developing a security breach plan and sticking to it. The system should be audited regularly, and clients and employees should be educated about the process and engaged in the dialogue. Security, after all, should be a way of life for law firms today. n
Attorney Journal San Diego | Volume 132, 2014
23
COMPUTER EXPERT WITNESS TESTIMONY by Peter Garza Peter Garza is the managing director of Forensic West, Legal Services at DTI. Garza has worked as a consulting, testifying or neutral computer forensics expert on hundreds of civil litigation cases. Previously he has worked as a special agent with the Naval Criminal Investigative Service specializing in computer forensics. Contact him at pgarza@dtiglobal.com.
C
omputer forensics experts and other technical witnesses will likely focus on the technology first and other facts in questions posed while providing testimony. I have often experienced firsthand attorneys’ struggles with a witness in the interpretation of technical details. What may seem like minor details to a nontechnical person will often change the answer a technical witness will give. Asking about print logs when discussing a Microsoft Windows system may yield an unexpected answer if the witness narrowly interprets the question knowing Windows keeps event logs not print logs. My former partner, now United States Magistrate Judge Mitch Dembin wrote an article years ago comparing technical people and attorneys. He explained that technical people will see things as black and white while lawyers deal with the gray areas of issues. This tendency to think in a binary way may cause a technical witness to give an unexpected answer. In an ongoing case, I reviewed the deposition transcript of a system administrator who described his level of access in a Linux environment as that of a “superuser.” Linux is a popular operating system, similar to Microsoft Windows or Mac OSX, utilized in some engineering, software development, server or other specialized environments. More experienced Linux
24
Attorney Journal San Diego | Volume 132, 2014
administrators would tend to refer to administrator systemlevel access for altering system settings and other data on a relevant server as having “root” privileges. I was consulting during the deposition of the opposition’s designated expert, an experienced Linux administrator, when the testimony of the prior witness was discussed. I had alerted the plaintiff’s attorney that the prior witness used the term superuser but the opposing expert would likely use the term root to refer to his ability to alter system settings and other data on a relevant server. I have often worked with attorneys who understand what a root user is. I expect they would not skip a beat in examining an IT administrator providing testimony on Linux or other operating systems; however, most of my attorney clients would be more comfortable discussing more familiar Windows issues. During this deposition much time was spent simply pinning down a cagey witness who kept explaining that superuser is not the recognized term for root access and providing a vague answer. Eventually the witness reluctantly acknowledged that the prior witness may have used the incorrect term while the level of access described was in fact root access and would have provided the prior witness the ability to make the changes to the system that were at issue.
In the heat of battle seemingly unimportant technical details can throw an attorney off the pace. In providing deposition or trial testimony, I must often make the decision whether I will help the attorney deposing me or simply answer what is asked as it is asked. The opposing technical witness above chose to narrowly interpret what “superuser” meant and correctly said there is no such account in Linux, thus making my client attorney work harder to elicit useful testimony. If the witness had been kinder, he might have acknowledged that the attorney was probably referring to root access and moved the issue along. It is often difficult for attorneys who do not have a technical background to anticipate such snags. Testimony regarding mixed references to slashes and backslashes in describing folder paths would be another example. Windows uses the backslash character, which leans to the left. Other operating systems such as Linux rely on the forward slash character in describing folder or director paths. Attorneys can save time by familiarizing themselves with the technology or forensics protocols involved in a case before crafting questions. Understanding the difference between a copy of a file in Windows and a forensic copy of data will help pinpoint examination regarding issues pertaining to the preservation of data. Even a casual understanding of the technical issues will help attorneys avoid losing ground when examining a technical witness. Reviewing the relevant technical issues with an expert and preparing an outline of the anticipated examination of a technical witness will may avoid giving an opposing witness too much wiggle room. Simply taking a moment to have a technical witness explain technical issues also may make things easier. Computer forensics practitioners share many terms that most are likely to understand (such as Linux administrators who understand what root means). Explaining chain of custody, forensic image backups, keyword searches and other common computer
evidence terms up front may remove some hurdles. What I have found when discussing important details is that the attorney changing a minor fact or term may cause me to change my testimony. In one recent trial I was cross-examined regarding my opinions involving the opposition’s reported destruction of evidence. Initially the deposing attorney posed a question involving a particular type of encryption—a type of encryption not available at that time for the model of computer used by the opposition—and I answered the question as it was asked. Subsequently, the attorney performing cross-examination then addressed the encryption question using different facts about how an encryption mechanism may have inadvertently caused a data loss, and I answered that question as it was asked. He then challenged my earlier testimony, complaining that I had changed my answer. The choice of words used on the encryption question in crossexamination changed the meaning of the question, thereby changing my expert testimony. In a number of instances when I have provided expert witness testimony regarding the results of forensic analysis, very specific questions have tended to derail testimony an opposing attorney is apparently trying to elicit. I necessarily listen when an opposing attorney paraphrases my prior testimony or asks questions that change technical details. Often seemingly minor details about how metadata (embedded or system data about files or data, like the creation date) is altered or stored, about entries in system logs or how one can show proprietary data was sent to a personal account by a now former employee may change the answer a forensics expert will provide. Asking me if the administrator used a “superuser” account may simply result in a “no.” The attorney will then have more work to do to connect the dots from the term superuser to the privileged system account called root on Linux systems. n
Attorney Journal San Diego | Volume 132, 2014
25
skidmutro.com
IDEAS DESIGN MARKETING POWERFUL RESULTS! web
social
“I call Skidmutro the rock stars of graphic design and marketing. When I ask for the impossible, they make it happen. Every. Single. Time. And then some. Incredible!” – Evan Wawrzyniak, RDS Automotive Group
Is it time to freshen things up at your law firm? Get in touch today and we’ll make your next project a reality. 215-460-0835 jenny@skidmutro.com
Ads • Proposal Design • Photo Retouching • Business Cards • Logos • Newsletters • Marketing Strategy • PowerPoint Presentations • Copywriting • Websites • And Much More
JOURNAL
FEATURED RISING STAR
OF THE MONTH
Photography by Bauman Photographers
2014
John Landay By Karen Gorden
FOR JOHN LANDAY, associate with Kirby Noonan Lance & Hoge, LLP, becoming an attorney made a great deal of sense, given his natural aptitudes and passion. “A combination of my life long involvement with the sport of lacrosse and passion for writing led me to law. Lacrosse, like most sports, is adversarial and early on I discovered that I loved competing. Moreover, while lacrosse has rules, it is not static or rote,” he says.
“As for writing, my father was an avid reader and my mother was a former English teacher. As a result, I became interested in writing and sought opportunities to write. After I spent a summer on Capitol Hill as a Congressional Intern analyzing legislation, drafting persuasive correspondence and speeches, it clicked in my mind that being a litigator was a perfect fit for me, as it combined the attributes of lacrosse and writing that I loved best,” Landay explains. That coupled with the fact that his grandfather was a successful entrepreneur and businessman only fed into Landay’s certainty that a future in business law would be both interesting and rewarding. “I enjoy learning about different companies, their models and operations. Every business I represent is unique and I am constantly getting a close-up look at what they do and how they operate. This keeps things fresh and intellectually stimulating,” he says.
Today, six years after joining Kirby Noonan Lance & Hoge, LLP, Landay has plenty of successes under his belt. “I have helped to successfully prosecute and defend numerous high stakes lawsuits and settle those matters on favorable terms for clients. I have taken and defended depositions, argued in federal court and successfully arbitrated a contract dispute,” he says. He’s also proactive when it comes to gaining trial experience in addition to what he’s earning at the firm. “I am constantly striving to hone my legal expertise and skill,” he says. Landay explains, “As a younger associate looking for additional trial experience I found a great program offered by the US District Court for the Southern District of California that matches firms up with pro se litigants on the verge of trial,” he says. “I’ve got a trial coming up next month.” Not surprisingly, Landay’s diligence is earning him respect in the San Diego legal community, and particularly within his own firm. Firm partners are touting Landay’s accomplishments to date, and predicting a bright future. “John has contributed to all cases with maturity and expertise far beyond his years. He exhibits superior attention to detail and has quickly developed into an excellent attorney. We are confident that he is only beginning to tap into his potential,” says partner James R. Lance. So what’s next for Landay, who was named a 2013 Top Young Attorney by the San Diego Daily Transcript? “Every case affects me personally and professionally. I develop a close relationship with all of my clients and work to obtain the very best outcome for them, no matter the circumstances. For me, it is only by investing myself in each client and each matter that I can truly be successful.” n Attorney Journal San Diego | Volume 132, 2014
27
McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq. Monty A. McIntyre, is a Relentless Optimist® who serves as a mediator, arbitrator and referee with ADR Services, Inc. As a mediator his mission is to bring peace into the lives of people by excellently helping them resolve disputes. As an arbitrator and referee his mission is to help parties obtain Reasonable, Rapid Resolution™ of their disputes. Mr. McIntyre is the 2014 President of the San Diego Chapter of the American Board of Trial Advocates (ABOTA). He was the 2002 President of the San Diego County Bar Association. He has extensive experience representing both plaintiffs and defendants in business, insurance bad faith and tort litigation. He is a Master in the Enright Inn of Court, and a multiple CASD Outstanding Trial Lawyer award recipient. To schedule contact Genevieve Kenizwald at ADR Services, Inc. by phone (619) 233-1323 or email gen@adrservices.org.
U.S. SUPREME COURT Erisa Fifth Third Bancorp v. Dudenhoeffer _ U.S. _ (2014): Under ERISA, the fiduciary of an employee stock ownership plan (ESOP) is not entitled to a presumption of prudence. ESOP fiduciaries are subject to the same duty of prudence that applies to ERISA fiduciaries in general. (June 25, 2014.)
9th CIRCUIT COURT OF APPEALS Employment Davis v. Nordstrom, Inc. _ Davis v. Nordstrom, Inc. _ F.3d _ (9th Cir. 2014), 2014 WL 2808139: The Court of Appeals reversed the district court’s order denying a motion to compel arbitration. Following the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), Nordstrom made revisions to the employee arbitration policy contained in its employee handbook, including rules precluding most class action lawsuits. The Court of Appeals found that Nordstrom complied with the 30-day notice requirement in its policies, and that California law imposed no duty upon Nordstrom specifically to inform employees that their continued employment constituted acceptance of new terms of employment. (June 23, 2014.) Johnmohammadi v. Bloomingdales, Inc. _ F.3d _ (9th Cir. 2014), 2014 WL 2808135: The Court of Appeals affirmed the district court’s order granting a motion to compel arbitration. Plaintiff had the right to opt out of the arbitration agreement, and had she done so she would be free to pursue her class action in court. Having freely elected to arbitrate employment-related disputes on an individual basis, without interference from 28
Attorney Journal San Diego | Volume 132, 2014
Bloomingdale’s, plaintiff could not claim that enforcement of the agreement violated either the Norris-LaGuardia Act or the NLRA. (June 23, 2014.)
CALIFORNIA SUPREME COURT Arbitration Iskanian v. Cls Transportation Los Angeles, LLC (2014) _ Cal.4th _ , 2014 WL 2808963: The California Supreme Court ruled that California’s refusal to enforce a waiver on grounds of public policy or unconscionability is preempted by the FAA and the holding to the contrary in Gentry v. Superior Court (2007) 42 Cal.4th 443 has been abrogated by recent United States Supreme Court precedent. However, an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative actions under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Labor Code, section 2698 et seq.) is contrary to public policy. Because the FAA’s goal of promoting arbitration as a means of private dispute resolution does not preclude the California Legislature from deputizing employees to prosecute Labor Code violations on the state’s behalf, the FAA does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract. (June 23, 2014.)
Torts Verdugo v. Target Corporation (2014) _ Cal.4th _ , 2014 WL 2808965: The California Supreme Court held that under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an automated (or automatic) external defibrillator for use in a medical emergency. (June 23, 2014.)
CALIFORNIA COURTS OF APPEAL Civil Procedure (summary adjudication) Delon Hampton & Assoc. v. Superior Court (2014) _ Cal. App.4th _ : The Court of Appeal granted a writ of mandate directing the trial court to sustain a demurrer, without leave to amend, to a cross-complaint alleging improper design and construction of a stairway and handrail at a Metropolitan Transit Authority Station in LA. Because the defects alleged were patent, the action was barred by the four year statute of limitations in Code of Civil Procedure section 337.1. (C.A. 2nd, June 23, 2014.) Paramount Petroleum Corporation v. Superior Court (Building Materials Corporation of America) (2014) _ Cal.App.4th _, 2014 WL 2803449: The Court of Appeal affirmed in part and reversed in part the trial court’s rulings on cross-motions for summary adjudication. The trial court erred in granting summary adjudication in GAF’s favor on liability, because summary adjudication cannot be granted in favor of a plaintiff on liability alone, but the trial court did not err in granting GAF summary adjudication on Paramount’s defense of mutual mistake. (C.A. 2nd, June 20, 2014.) Peake v. Underwood (2014) _ Cal.App.4th_ : The Court of Appeal affirmed the trial court’s sanctions order under Code of Civil Procedure section 128.7 dismissing plaintiff’s complaint against a defendant real estate agent, and ordering plaintiff to pay $60,000 in attorney fees to the defendant. Plaintiff’s claims were factually and legally frivolous because the undisputed evidence showed the agent had fulfilled his statutory and common law disclosure duties, and plaintiff had actual notice of facts disclosing prior problems with the subfloors. Plaintiff declined to dismiss the action during the statutory safe harbor period, and instead amended her complaint to add claims similar to claims she had previously dismissed. (C.A. 4th, June 25, 2014.) Rufini v. CitiMortgage, Inc. (2014) _ Cal.App. _ : The Court of Appeal affirmed in part and reversed in part the trial court’s order sustaining demurrers, without leave to amend, to a complaint arising from a failed home loan modification and eventual foreclosure. The trial court erred in not allowing plaintiff leave to amend the causes of action for breach of contract, negligent misrepresentation and violation of Business & Professions Code section 17200. The trial court properly sustained the demurrers to the causes of action for negligence, breach of fiduciary duty and an accounting. (C.A. 1st, filed May 28,2014, published June 23, 2014.)
summary judgment for State Farm. Plaintiffs were sued for conspiring to aid a mother in abducting her son from his father. State Farm denied the tender of the defense of that action because abduction claims were not covered claims under the terms of the State Farm policies. The trial court properly granted summary judgment because State Farm offered admissible evidence showing the claimed loss suffered in the underlying case was not within the insuring agreement and plaintiffs failed to establish a triable issue of material fact. (C.A. 4th, filed June 6, 2014, published June 26, 2014.)
Torts Delon Hampton & Assoc. v. Superior Court (2014) _ Cal.App.4th _ : See summary above under Civil Procedure. Heskel v. City of San Diego (2014) _ Cal.A.4th _ : The Court of Appeal affirmed the trial court’s summary judgment for the City. Because plaintiff failed to present any evidence that the sidewalk condition was obvious such that the City, in the exercise of due care, should have become aware of it, his claim failed as a matter of law notwithstanding evidence that the condition was present for over one year before the accident. (C.A. 4th, filed June 13, 2014, published June 23, 2014.) n
Insurance (Homeowners) Upasani v. State Farm General Insurance Company (2014) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s Attorney Journal San Diego | Volume 132, 2014
29
Why the Right Billing Software Matters to Law Practices by David Jr. David Jr: Marketing Executive EasySoft-USA which is a leading legal software provider since 1986, Easy Soft offers specialized programs (available as desktop and cloud versions) for real estate, family law, time, billing & trust account management and document automation. Over 15,000 users nationwide use Easy Soft products to increase office productivity. Find other valuable info and product details at http://www.easysoft-usa.com. Article Source: http://EzineArticles.com/7964717.
Y
our firm can choose from an array of commercial billing software packages but it’s important that you choose a product that provides features needed by the legal industry. Generic business software works great for a generic business. However law firms have specific billing conditions that only dedicated attorney time and billing software can satisfy. One such requirement is matterbased billing.
MATTER-BASED BILLING Common business software is capable of handling client billing, and may even be able to handle multiple billing models such as both hourly rates and flat fees. The problem with using these packages for a law firm is that they break down billing by client and not by assignment. In the legal field, attorneys must separate each matter into a separate billing. Let’s say John Doe is getting a divorce. He wants you to handle that but also wants to update his will and other paperwork to reflect the dissolved marriage. The firm accepts the divorce case at an hourly rate with a retainer and the simple will at a flat fee. These two cases must be kept separate. In particular if the estate planning ends up incurring extra expenses to be billed to the client, the office cannot take that from the retainer for the divorce case.
THE PROBLEM OF GENERIC SOFTWARE A clever lawyer might decide to try to fake it using general time and billing software. You set up each matter as a separate “client”, so you have “John Doe-Divorce” and “John DoeWill”. That allows you to keep billing separate and there is no
30
Attorney Journal San Diego | Volume 132, 2014
danger of funds from one matter being used in another. All done. Except that if Mr. Doe calls about his divorce, someone answering the phone and looking at his records might not realize there is also a will matter. Even worse, you might incorrectly link matters. So when Jane Smith calls about her divorce you see “Jane Smith-Will” and assume that’s her case as well. Unfortunately it’s a different Jane Smith and you just gave confidential information to a stranger.
LAW-SPECIFIC SOFTWARE Legal billing and accounting software keeps matters separate while still relating them to the same client. The billing for each matter is handled independently, so an invoice would go out for the will expenses without touching the divorce retainer. However all matters are linked so users can see a client’s entire package of services at a glance without the risk of assuming two people with the same name are the same person. Finally, matter-based record keeping isn’t just good practice management; it’s usually the law. Offices that try to cobble together matter-based solutions without using billing software for lawyers are creating an administrative nightmare and exposing the practice to unnecessary risk. A carpenter doesn’t use a wrench to hammer a nail. A butcher doesn’t use a meat cleaver to filet a fish. A lawyer shouldn’t use the wrong billing software in the practice of law. Use only dedicated attorney practice management software to get the capabilities needed by the modern law firm. n
PRSRT STD U.S. POSTAGE
PAID
Post Falls, ID PERMIT NO. 32
UNRIVALED JURY VERDICTS SETTLEMEN T S PERSONAL SERVICE REFERRAL FEES
PANISH SHEA & BOYLE is happy to discuss how
we may assist you in your case. Please contact
the Honorable Judge Peter Polos (Ret.) for more
information at polos@psblaw.com.
WWW.PSBLAW.COM
310.477.1700
1.877.800.1700