Attorney Journals, San Diego, Volume 221

SAN DIEGO

Volume 221, 2022 $6.95

Controlling Witnesses on Direct and Cross

Ben Rubinowitz and Evan Torgan The Key to Time Management

Gary L. Sasso

What to Do with Leads Acquired at a Conference

Paula Black

6 Client Service Standards for Success

Garnett Bandy

Marketing with Canned “Free Reports” Achieves Little

Trey Ryder

Goals vs. Objectives: A Real Difference

Dr. John Burnett Why Are so Many Firms Preoccupied with Revenues Instead of Profits?

Gerry Riskin

Attorney of the Month

H. Gavin Long, Bisnar Chase Serving San Diego Man in the Arena

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).

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2022 EDITION—NO.221

TABLE OF CONTENTS 6 What to Do with Leads Acquired at a Conference

by Paula Black

10 The Key to Time Management—and Achieving Work/Life Balance

by Gary L. Sasso

12 Goals vs. Objectives: A Real Difference

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by Dr. John Burnett EXECUTIVE PUBLISHER Brian Topor

ATTORNEY OF THE MONTH

16 H. Gavin Long, Bisnar Chase, Newport Beach Man in the Arena

EDITOR Wendy Price CREATIVE SERVICES Penn Creative

by Dan Baldwin

22 Marketing with Canned “Free Reports” Achieves Little, Reflects Poorly on You

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Garnett Bandy Paula Black Dr. John Burnett Gerry Riskin Ben Rubinowitz Trey Ryder Gary L. Sasso Evan Torgan ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30213 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 Trey Ryder

16

24 Why Are so Many Firms Preoccupied with Revenues?

by Gerry Riskin

26 Six Client Service Standards for Success

by Garnett Bandy

28 Controlling Witnesses on Direct and Cross

by Ben Rubinowitz and Evan Torgan

24

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Legal Business Development: What to Do with the Leads You Acquire at a Conference

by Paula Black

I

worked with a client the other day to figure out what strategy she should put into place to maximize the 60 business cards she picked up during a two-day conference that was truly filled with people who are her target market. First and foremost, it’s about building relationships, so where do we begin?

The first “touch” needs to be a very personal email, referring to the interaction at the conference. This presented a problem for my client since she couldn’t remember something specific about each of the 60 individuals she met. It’s not unusual ... 60 people are too many unless all you are going to do is turn the names and emails over to your marketing department to add to your database. And the probability of turning those people into clients is slim to none.

There is another way. Since the attendees of this conference are her target market, she needs to make sure these 60 individuals do not slip through her fingers.

Hence, it will take a bit of time but could have great rewards if done right.

 Do research on each person.

When she sees their photo, it may jar her memory or she will find something in the bio that will be relevant.

 Sort them into A, B and C possibilities.

“A” being the hot leads.

 The A’s need to be sent with the VERY personal message.

And include something you are giving them. A piece of

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information or some gesture that would be valued. You need to give something before you ask for something.

 Repetition, repetition, repetition!

It’s important that you schedule your future touch points, at least 3 for this “after conference follow-up.” So, “touches” number 2 and 3 need to be planned out. All three should happen within 2 weeks of the conference.

 On-going follow-up.

A’s could be once a month, B’s could be once a quarter and C’s twice a year. Each time, refer to something that happened at the conference or some personal conversation.

The idea with the “A” leads is to stay top-of-mind. With B’s and C’s, it is to move them up the chain. Think of reasons to get together. A football game, a concert, etc.

Remember that generally people don’t have work just waiting for the right attorney. They find YOU and then it’s a matter of time ... when you will be thought of...for work. Building the relationship is the name of this game ... play it well, my friend! n Paula Black is a legal business development and branding expert, author, consultant and coach.

She has advised individual lawyers and law firms around the globe on everything from powerful and innovative design to marketing and business development strategy and implementation. She is the award-winning author of “The Little Black Book” series and the Amazon-best selling “The Little Black Book: A Lawyers Guide To Creating A Market Habit In 21 Days.” For more information visit: inblackandwhiteblog. com or paulablack.com.

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The Key to Time Management— and Achieving Work/Life Balance

by Gary L. Sasso

G

ood time management does not consist of following numerous rules for handling emails, telephone calls, errands, crises, or the myriad assignments and distractions we face every day. Instead, it comes down to one fundamental rule: Do everything now that you now know you have to do. This may sound like mumbo jumbo or a fortune cookie message, but it is actually quite simple, relevant, and potentially life changing.

What does it mean? At any given time, we can list many things we know at that time we have to do.

Some of these tasks have imminent deadlines, while others have seemingly distant ones (several days, weeks, or even months away). Most people plan formally or intuitively to start and complete these tasks at or around the time they are “due,” i.e., close to the actual deadline. This is a formula for disaster.

Why? Because what we know about the future at any given moment will be overtaken in the coming days, weeks, and months by other events we cannot foresee. Deadlines may be pushed up, and more and more tasks—and opportunities—will arise between the current day and our deadlines. So if on any given day, we calendar everything we then know we have to do, and plan to start and complete those tasks only as we approach their deadlines, we risk lacking sufficient time to finish those tasks due to the emergence of intervening events.

Waiting to tackle assignments presents another problem, too. Because none of us can fully appreciate the scope of any task until we start it, we almost always fail to appreciate certain of its aspects. As a result, we typically underestimate the complexity of what we must do and the time required to do it well. Therefore, when we plan to start an assignment right before the deadline, we risk not allowing ourselves enough time for

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preparation, care, reflection, refinement, revision, and follow-up.

How do we cope with these challenges? Within reason, and with some appreciation of priorities, we must start and substantially complete right away everything we know at any given time we will have to complete eventually. Obviously, this requires some ranking of tasks to address those that simply cannot wait (e.g., true emergencies or fielding calls or emails requiring an immediate response). But subject to addressing our most pressing obligations, we must strive to start now—and make serious headway on—everything we know we have to do, even those matters with more distant deadlines.

There are corollaries to this rule. Within reason, it requires us to work “overtime” on projects that do not have imminent deadlines. I often work evenings and weekends to start, and substantially complete, tasks that are not due for many weeks or even months. This helps me identify the contours of the project and allows me sufficient time to conduct any necessary follow-up. Importantly, it allows me to reflect on projects while they sit.

I am also able to circulate my work or thoughts to others involved, giving them plenty of time to provide meaningful input at their convenience.

This process immeasurably enhances the quality of my work, almost always ensures that I get it done “early,” and, most important, virtually eliminates stress or the crises that often occur when we are confronted with true deadlines.

Does this mean we must work slavishly without reprieve day in and day out? Actually, it means just the opposite. If we stay ahead of our work, we can integrate into our schedules time for ourselves, our families, and our friends. We are less likely, however, to squander time that we should use

productively on our work or more purposefully in our personal lives. We are also less likely to experience guilt or anxiety when we do choose to take time for ourselves, families, or friends.

To manage the thousands of daily chores and interruptions that cross our desks, we simply apply the same rule to everything we do. This means we let nothing wait. Within reason, we must constantly move through emails, phone calls, and other assignments to ensure we are always on top of them. Obviously, some work requires concentration, and we shouldn’t interrupt it by checking email every 30 seconds. And sometimes we simply can’t, as when we are in a meeting, at a hearing, or driving. But we should check in when we reach logical break points. If our day gets consumed by the urgent, we need to work late to deal with the important, even when no actual

deadline to complete the assignment, you’re stuck.

You have to forfeit your family or personal time because you’ve given yourself no flexibility. If you are always working against continual deadlines, you will always be out of balance in your personal life. Conversely, when you stay ahead of your work, you are truly working for yourself on your own terms. When you allow your life to be controlled by imminent deadlines, you are always working for somebody else. That is oppressive, and you will resent it over time. This leads to a feeling that you lack work/life balance.

Occasionally, of course, we all face true emergencies. But we rarely resent those. They are often challenging in a positive way, and managing them can be very rewarding. But we are able to plunge into them aggressively and effectively, without imperiling other obligations, only if we

“Leave nothing for tomorrow which can be done today.”

—ABR AHAM LINCOLN

deadlines loom. This keeps us from pushing those projects off to the eve of their deadlines, compromising the quality of the most important things on our calendars.

When we are personally swamped with one project (e.g., a trial or closing), delegation comes into play. Even when we can’t personally move the ball forward on projects we know we have to address, we can task someone else with doing so, making sure they understand they must approach the project at the earliest possible time, too, and not on the eve of its deadline.

I’m convinced following this rule is the only truly effective means to achieve work/life balance.

Doing so gives you control over your life in a way that nothing else can. You will always be ahead of your work. So if you plan to work an evening or weekend to start or complete something that is not actually due for many days, weeks, or even months, and you would like to take that time off instead for something important to you—for example, to see a play, spend time with your loved ones, visit friends, read a book, exercise, or pursue a hobby—you can “give yourself the night off.”

But if you have waited until the eve of a true

have other matters under control. Emergencies we create through our own procrastination, by contrast, must be avoided. There is a much greater risk that these “faux” emergencies will arise frequently and become a way of life, creating needless stress and personal tradeoffs.

Finally, if you follow this rule, you will always be free to jump on unexpected professional opportunities. If your work is under control, you can leave it for awhile to pitch a new client or handle an exciting piece of work on a short fuse.

I am not alone in advocating this rule. Abraham Lincoln once said: “Leave nothing for tomorrow which can be done today.” Well said, Mr. President. n Gary Sasso represents business clients in securities fraud and consumer fraud class actions and other complex litigation at the trial and appellate level, in the financial services industry, energy sector, products manufacturing industry, and services sector. Mr. Sasso has tried cases in the areas of securities fraud, business contracts, products liability, professional malpractice, employment discrimination and termination, eminent domain, bankruptcy, construction, administrative law, and land use in Florida, Maryland, Pennsylvania, and Virginia.

Attorney Journals San Diego | Volume 221, 2022

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Goals vs. Objectives: A Real Difference

by Dr. John Burnett

It

happened again last week. I was meeting with a new client and her staff. It was our second meeting, and we were discussing their new marketing plan—my primary task.

The discussion was coming along nicely, when, predictably, it happened. It always happens! Mr. X [MBA NYU] and Ms. Y [MBA Florida] got into a heated argument about the most appropriate goals [term used by both] for their marketing plan.

Mr. X pushed for increased sales, while Ms. Y insisted that, “customer retention needs to increase by 10%.” Grace, the President, thought that both objectives [her word] were on target. No big deal, right?

For me, it is, and I contend it should be important to you. I have to admit that I have a bias about these sorts of things. After 41 years teaching marketing, I feel a personal obligation to make sure that certain business terms are used correctly.

I should acknowledge that I recognize that industries often use different terminology than academics. Still, one social benefit of academics like me is to study concepts and provide standard understandings.

I also understand that, in general, most business managers are not big on definitions unless they can see a clear benefit.

Typically, they are accepting of the jargon used in a particular sector of business. I posit that the distinction between goals and objectives is real and important. It is not just semantics.

I wish to address three areas: [1] order, [2] differences, and [3] benefits.

In respect to order, goals always come before objectives.

The business plan delineates the business goals, followed by the business objectives. Goals are the bases for the objectives.

Many companies have essentially the same overarching goals, i.e., increase sales, increase profits, decrease operating costs, and reduce churn. Objectives are specific.

This sequence follows through into the various business functions as well. Accounting has a set of goals followed by specific objectives. This is true for marketing, finance, human resources, manufacturing, and so forth. For example, a good starting point would be to provide the marketing function with the goal of sales. Without the integral intermediary step translating that type of goal into concise and actionable marketing objectives that align the product attributes, brand assets, and user needs, success is limited.

The differences are real as well.

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GOALS ARE: • • • • • •

Broad and generic Intangible Cannot be measured Long term Based on ideas Example: Decrease costs in order to enter new markets.

OBJECTIVES ARE: • • • • • •

Narrow and specific action plans Tangible Can be measured Short term Based on facts Example: Decrease operating costs in our Eastern European plants by 30% by January, xxxx.

So, what are the benefits? The primary benefit of understanding the differences between goals and objectives is that it makes a company more strategic. Instead of various company managers using various versions of goals/partial goals and objectives/partial objectives, the process will be standardized and implemented the same by all. Essentially, the specificity of objectives will identify the optimum set of strategies, which, in turn, will implement the most effective/efficient tactics. Optimum strategies and effective tactics are two additional benefits.

I end this article with a bit of academic thinking. When creating cogent objectives, four elements should be considered.

First, an objective should identify the subject, e.g., customer, country, department, competitor. Second, what action needs to be taken? Third, how should that action take place? Fourth, what is the time line? Let me give you a marketing objective for the company I mentioned earlier: Increase Internet sales by January.

I hope you will take the ideas expressed here seriously. Using correct terms does matter. n Dr. John Burnett is the President of John Burnett Marketing, expert witness, consultant, and author. He can be reached at, jburnettdba@me.com. If you are interested in learning more about legal marketing planning you might check Dr. Burnett’s ebook, “How to Avoid Random Acts of Marketing: A Plan for Small to Midsized Law Firms.”

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Man in the Arena DOING THE RIGHT THING FOR THE UNDERDOG AT BISNAR CHASE

by Dan Baldwin

It’s always David and Goliath. Our clients are always the underdog, and they are under tremendous pressure. Part of my job with a plaintiff who has been mistreated is to reassure them that they are doing the right thing, that they are in the right and that I am their champion in this battle,” says H. Gavin Long, Partner and Trial Lawyer at Bisnar Chase Personal Injury Attorneys.

Long has a wide range of jury trial experience in cases from murder and fraud to medical malpractice in state and federal courts. He is known for taking personal injury cases to trial and has consistently obtained verdicts above the defendant’s offer, beating the plaintiff’s CCP 998 and busting wide open the defendant’s insurance policies.

“Being a trial lawyer fits my personality. For me, it’s the best job I could have. I get a lot of satisfaction when an insurance company has to pay a large jury verdict out of its own pocket (on top of the policy limits) because they would not pay the policy limits. Bisnar Chase is one of the top law firms in California and also has a national presence. Ten years ago, I saw an ad in the Daily Journal for an attorney position and decided to take my shot. Fortunately, I got the job amongst 50-60 applicants,” he says.

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Crushing the Competition One of the ways Long and his firm crush the competition is their willingness to not only go that extra mile for their clients, but to take the journey into new territory. Their nationally recognized and innovative use of crash test dummies in cases involving vehicles is a perfect example.

Long cites cases in which a roof-crush severely injured a client. In such cases, they find a match for the truck that was involved in the incident and recreate the accident.

They and their experts flip the vehicle, drop it on its roof, and examine the exact kind of damage caused.

“We invest hundreds of thousands of dollars doing crash testing in our auto defect cases. We become like a mini auto manufacturer and prove through testing we can make cars safer for consumers. We do car-tocar crash tests to mimic an actual crash. We buy SUV’s and drop them on their roofs to show roof crush and alternative designs. We do sled testing with hybrid III fully instrumented crash test dummies to show how we can create safer seats, and so on and so on,” he says.

It’s an expensive process. Not only does the firm have to purchase an exemplar vehicle, they also have to go to the considerable expense of the recreation. They hire professionals who can provide validated information

© christopher TODD studios

JOURNALS

ATTORNEY

OF THE MONTH

2022

I believe in perseverance, aggressiveness, and when you don’t want to keep working you push yourself even harder because there’s an end game—getting justice for your client.”

© christopher TODD studios

Trial Attorney and Partner: H. Gavin Long with Managing Partner and Senior Trial Attorney Brian Chase.

acceptable in a court of law. People involved in the testing may include a reconstructionist, a bio-mechanic, and experts on such specific items as roofs, seats, seatbelts and on other elements of automobiles and other vehicles.

“You’re trying to recreate what happens to people in crashes without using real people. It has a dramatic impact on a jury when they see how violently a dummy (like a person) is affected,” Long says.

The Advantage of Experience Actually, going to trial is rare throughout the nation and California is no exception. Therefore, very few attorneys actually acquire a significant amount of trial experience.

Long is an exception.

“I heard a statistic that 91% of trials in California are tried by only 300 attorneys. There’s just not a lot of experience to go around. A lot of lawyers market themselves as trial attorneys, but we actually do it. We have three ABOTA attorneys here and that’s a lot for a firm of this size and I’m proud to be one of them,” Long says.

Trial experience is more than assurance for the client; it is a powerful force for the opposing side to face. Long says, “If your opposition doesn’t think you are going to fight, that you don’t have the resources to fight, you’re never going to get a good settlement; they’re not going to offer your client any real money. Then if you try the case, at that point you have to have done the work—put in the time, energy, money and whatever we need. We have the lawyers who have the skills to actually try cases.”

A Big Win for the Little Guy He cites a particularly challenging case and an example of the value in trial experience—a case in which he won the largest verdict against a rehab facility in California at that time.

John Cunningham was a 35-year Boeing employee with a wife of 25 years and two teenage daughters. He was in good shape and worked out with weights. He got aches and pains and eventually became addicted to pain medication. When someone is on pain medication their anxiety kicks up. While still working, he also became addicted to anxiety medication.

He was a functioning prescription drug user.

The addiction became a problem. He began acting out, not eating, not sleeping, and exhibiting other addictive traits. Cunningham realized he had a problem and he decided to get off the drugs. He had a lot of plans. He was about to retire. He and his wife were looking at buying property in Idaho.

In the course of getting off the pills, his wife found a rehab facility, which looked good from the advertisements. He went to the facility which immediately transferred him to a

detox center. There are two parts to the rehab process. One, is detoxing from the substance. And then there’s the rehab where the client learns how to avoid a relapse. The rehab center sent Cunningham to a detox center for the first stage of treatment. It was later determined that all the clients of the center needing detox were sent to this facility. Part of the arrangement was a guarantee that the patient would be sent back to the referring facility after the detox period.

The detox facility was staffed with unqualified people.

After the initial screening, he never saw a doctor and his withdrawal (detox) wasn’t properly managed. The effect of their neglect was to torture the patient by keeping him in a constant state of pain—delusion, vomiting, isolation, tremors and shaking. “I don’t care how tough you are, after a while you’re going to quit,” Long says.

On the seventh day at the detox facility, he was in so much pain that he took his belt, walked into his bedroom, and hung himself in his closet. The firm sued the referring place because they referred him to an unqualified facility.

They also sued the detox facility because they didn’t know what they were doing.

The odds did not favor Long and his team. There have been 25 or so suicide or attempted suicide cases tried in California since 1986. Only six verdicts were in favor of the plaintiff.

The trial took a month. The David vs. Goliath case pitted Long against a team of five experienced attorneys.

The largest verdict at the time for similar cases in California was around $9 million. This verdict came in at $11 million.

The jury gets to assign liability—divide up the pie. The jury only found John 15 percent responsible for hanging himself, which means that 85 percent came from what these people did by torturing this man.

That case is just one example from his record of success at trial. He routinely gets jury verdicts in excess of the defendant’s insurance policy limits. One example is where the insurance company would not pay the $100,000 policy limits and he received a jury verdict of $3,000,000 (all non-economic damages). In another example, Long turned down a combined $450,000 offer from two defendants that had $1,000,000 policies and Long received an 8-figure jury verdict. In another example, the insurance company would only pay $30,000 against a $100,000 policy and the jury verdict was $660,000. In another example, the defendants offered $205,000 against a $500,000 policy and the jury verdict was $1.1million.

Long says, “I’m a competitive person. I believe in perseverance, aggressiveness, and when you don’t want to keep working you push yourself even harder because there’s an end game—getting justice for your client. When you win, it’s an incredible feeling well beyond the money you get for your client. It’s seeing and experiencing doing the right thing.”

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© christopher TODD studios

Long joined Bisnar Chase in April 2012 and has handled a surprisingly large number of auto accident cases in an equally short period of time. He has taken a number of those cases to a jury trial, winning an overwhelming majority of those cases.

Long says, “Clients and attorneys call me because I have a consistent track record of getting jury verdicts above the defendant’s insurance policy limits. So, when the lawyer/client is in a situation where the defendant’s insurance company will not pay the policy limits, they want me to try the case to get a verdict of above those insurance limits and collect, which I routinely do.”

Rather than being intimidated by the odds that are often against him and his firm, Long is aggressive in the process of fighting and winning against unscrupulous insurance companies—corporations that have absolutely no problems playing hardball with injured victims who are trying to get their lives back on track after a traumatic, life-altering event.

“When I expose these insurance companies and their tricks, I just love that. I love taking the insurance companies down.

People diligently pay their premiums to insurance companies thinking that they’ll get compensated during a time of need.

But, instead, they find out after an accident that they have to jump through hoops. And after all that, they may not get anything,” he says.

He informs mistreated clients that it is wrong to assume that the insurance company is a friend and that the representatives and the company often just don’t care. When someone is harmed and makes a claim, they are not considered a person, but are just a file. Regardless of the damage to the physical body, the family or the future well-being of the individual, he or she is in their minds just paperwork.

After one of his trials a juror said in an interview, “Gavin Long did a hell of a job in presenting the plaintiff’s case. He was ‘Johnny on the spot’ with all the questions. I was very impressed. If I was in need of something like that, I would want him to be my attorney.”

Long says, “It’s an honor be the one the client has chosen to take on Goliath. I take that seriously. That’s what motivates me—showing them they were right trusting me.” He said his wife, Rebekah, Brian Chase and Joshua Karton are the individuals who have had the greatest impact on where he is today as a trial lawyer. n Contact H. Gavin Long Bisnar Chase 1301 Dove Street, Suite 120 Newport Beach, CA 92660 949-752-2999 BestAttorney.com

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EXP ER I ENCE

Fighting the Insurance Companies

» EDUCATION • Servite High School • USC, undergraduate • Whittier Law School

» HONORS AND AWARDS • Orange County Trial Lawyer of the Year: 2016, 2020 (nominated in 2021) • Consumer Attorney of California Trial Lawyer of the Year, Runner-Up, 2020 • Member of ABOTA • Two of the Top 50 Jury Verdicts, 2019 • Top Plaintiff Lawyer, Daily Journal 2021 • Past board membership: OCTLA & CAOC • 2016 – 2020 Orange County Trial Lawyer of the Year • 2020 California Trial Lawyer of the Year Runner-Up • Consumer Attorneys of California (CAOC) Board of Governors • Top 50 Verdicts in California 2019 • 2018, 2021 Lawyers of Distinction • BestLawyers 2016-2022 • Top Plaintiff Lawyer Daily Journal 2021 • 2016 Top Gun Trial Lawyer of the Year – OCTLA • Over $25 Million Recovered • Avvo 5-Star Rated • Top One Percent in the Nation • Super Lawyers

Marketing with Canned “Free Reports” Achieves Little, Reflects Poorly on You

by Trey Ryder

L

ook in almost any newspaper and you’ll see a FREE REPORT offered by a lawyer, chiropractor, real estate agent, plumber—someone from nearly every profession and trade. The marketers selling the Free Report strategy to professionals have renewed the hope of service providers who have grown tired of a poor response from display ads.

On occasion, lawyers have asked me to review these reports.

If you’re thinking about using one of these reports, here are a few observations and concerns, based on the reports I’ve seen.

Positives:  The free report gives you something tangible to offer, which you can send to the caller by mail or e-mail. This allows you to identify the interested prospect by his name and address or e-mail address. (This is good, and one of the fundamental principles of Education-Based Marketing™.)  The free report is usually quite long. This gives you plenty of time to excite the reader and build momentum, so when the reader reaches the end, he will call for an appointment or take the desired action. (Long messages are usually more persuasive than short messages, so this is good.)  The free report usually explains the subject so the prospect better understands his problem, and sees you as one who can provide the solution. (This, too, is fundamental to the Education-Based Marketing™ process.)

In short, the offer of a free report appears to be consistent with the Education-Based Marketing™ model. But the free reports I’ve seen are not at all consistent with my view of EducationBased Marketing™.

Negatives:  By its nature, the information in the report must be generic so marketers can sell it to lawyers (or other professionals) who offer a similar service. While generic information can help the reader understand the subject, nowhere does the report say anything specific about you. As a result, the reader doesn’t learn why he should hire you over any other lawyer.

Competitively speaking, the free report falls flat.  The reports are usually written using high-pressure sales copy. The problem is, high-pressure sales copy turns off most 22

Attorney Journals San Diego | Volume 221, 2022

people. It’s like a high-pressure salesman, only on paper. The people who respond best to high-pressure copy are those who have little education. The irony is that people who don’t have much education are the least likely to ask for information, such as a free report.  The high-pressure sales copy reflects poorly on you. Since you offer the report over your signature, the reader thinks these words are your words. Likewise, the reader thinks the letter’s sales pressure comes from you. Ask yourself, are you comfortable sending prospects a written report that is filled with high-pressure sales copy? To put the shoe on the other foot, would you respond positively and make an appointment if you called and received this report by mail?

No question, offering free educational materials works. Every marketing program I create relies on free written materials as a key component. But you must be sensitive to the exact wording and the tone of the writing. Educated prospects rarely respond to high-pressure copy. Instead, educated prospects want clear explanations that make sense. They want you to respect the fact that they have a brain. They want you to explain their options. And they want to make their own decisions without any pressure from you.

Often these free reports cross that line and try to pressure prospects into taking action. And then, equally as bad, someone follows up by calling the prospects on the phone. When that happens, these prospects regard you the same way they regard other telemarketers.

So while educational handouts are a key tool in EducationBased Marketing™, the words you choose and the tone you set are critical to attracting new clients. The free reports I’ve reviewed don’t come anywhere close to the essence of Education-Based Marketing™. Instead, they’re packed with high-pressure copy designed to seize your prospect by the throat. And as a consumer, that’s something I’ve never appreciated. n Trey Ryder specializes in Education-Based Marketing for lawyers. He offers three free articles by e-mail: 11 Brochure Mistakes Lawyers Make, Marketing Moves Most Lawyers Miss, and 13 Marketing Misconceptions That Cost Lawyers a Fortune. To receive these articles, send your name and e-mail address to trey@treyryder.com and ask for his free packet of marketing articles.

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Attorney Journals San Diego | Volume 221, 2022

23

Why Are so Many Firms Preoccupied with Revenues Instead of Profits?

by Gerry Riskin

P

rofits are a better way to measure a law firm’s financial health. This article explores why so many firms are preoccupied with revenues instead of profit and what you can do about it ...

If you double your revenues and your margins remain constant, you will double your gross profit. If the number of partners doubles in the same period, you are standing still (well, less the cost of champagne).

Why are so many firms preoccupied with revenues instead of profit? Here are the most common reasons firm leaders focus on the wrong numbers: • Various publications rank firms by revenues. Firm leaders are therefore motivated to try to achieve as high a ranking as they can, for both wholesome and unwholesome reasons—wholesome including positioning to obtain marketing advantages, and unwholesome being basically ego.

• The partners themselves understand the simplistic measure percentage increase, and it is appealing if you don’t know any better.

• Percentage increase included inflation, without highlighting it, so even if there are margin squeezes, revenue enhancement still sounds good.

• Revenue is simpler to calculate than profit, at least firm-wide.

THE VISIBILITY TEST When it comes to measuring the performance of individuals, many firms still focus on recorded billable hours. Recorded hours are perceived to have value, so if we know the billable hours of two lawyers, A and B, and B’s are 120 percent of A’s, we can safely assume that B is producing more for the firm than A. Or can we?

Some slightly more sophisticated firms measure billings, and even more sophisticated ones measure cash receipts. These measurements fail to disclose the true profitability of the practice, which is ascertainable only by going beyond hours or billings or receipts to include costs allocated to the revenue source.

For example, knowing that a lawyer recorded million worth

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of time is a beginning. Knowing that 0,000 was billed is better, and knowing that 0,000 was received is better yet. But we cannot really assess the value of the practice until we know that the costs associated with that revenue generation were 0,000— producing a net contribution of 0,000.

ALLOCATING COSTS (THE DARK SIDE) Why are so many firms reluctant to allocate costs? Here are some of the reasons: • It is not simple to allocate costs. What do you count and what don’t you count? It may be easy to allocate staff if there is a 100 percent allocation to a group or team, but in the real world it usually gets a lot messier than that.

And then there are issues like this: Is the new office in Timbuktu, which specializes in Practice Area X, a cost of that practice area, or is it the beginning of a presence that benefits and adds international credibility to the entire firm and therefore a cost of all practice areas?

Having discretion as to allocation creates dilemmas.

And we hate dilemmas.

• The computer systems may not allow the flexibility to do the combinations and permutations of calculations, or the people who operate those systems may be ill-equipped or just plain reluctant to handle the changes.

• Change means some uncertainty, and therefore discomfort. It won’t be done the way we have always done it so successfully. It’s not broken, is it?

• Politics. Individuals with significant personal power are not about to allow any new measurement process that they have not already analyzed to the nth power to determine exactly how it might affect them personally.

Partners are as sensitive about cost allocation as they are about compensation.

• The ramifications of doing the analysis may be dangerous.

If practitioners in Practice Group A were to learn how much more profitable they really are compared with Practice Group B, they may begin putting tremendous pressure on decision-makers as to compensation and

other important issues. There might even be a drive to expel Practice Group B from the firm. Worse, the entire Practice Group A may shop for another host firm where they will be more appreciated, or break away to become a boutique. Either way, the firm’s fabric is torn.

If you are truly managing, you need the data to determine profitability. How you share the data is a different matter.

Profit is typically deduced by subtracting expenses from revenues, usually firm-wide. Instead, financials ought to calculate profit from many more perspectives: by lawyer, practice group, industry served, client, geographic location, and by any other useful dimension within the firm.

I am not saying you should publish this information; I am saying you need to ascertain it.

If your systems won’t give you the data (or worse, if the data are not being captured), priority one is to create systems that will. You may have to make reasonable compromises, but sit down with your data processing people (internal and external) and determine what is possible. Talk to your counterparts in firms using the same software and find out how far they are going in this direction. Compare notes.

Next, begin to analyze—even if you have to guess—what is going on. Begin to formulate your views (or educated suspicions) as to where profitability is being enhanced and where it is under attack.

Third, manage accordingly. What does that mean? Well, individual situations are far too unique to generalize here, but you may find this list of questions helpful. Whether you are analyzing individuals, groups, or locations, thinking about these issues might get you started: • Are we placing excessive emphasis on hours?

• Are we placing insufficient emphasis on rates?

• How can we get rates up, if not today, then over time?

• Are we honestly assessing the quality of the client list?

• Are we accurately assessing the contribution each client makes to our firm?

• Should we fire some of the clients at the bottom of the list?

• Do our marketing efforts bring us sufficiently highquality new clients?

• Are we measuring individual performance accurately (as opposed to simplistically believing billable hours or cash receipts in the absence of data on related costs)?

• Are we still recruiting based on linear thinking like the quality of the schools and class ranking, or are we beginning to think about other attributes, such as collateral experience (summer jobs), other degrees, and how that nonlegal experience and education may fulfill future firm needs (even several years from now)?

• Are we tolerating people who are hurting us? In the long term, it may be sensible to tolerate and even foster lessprofitable practices if they complement more profitable practices and the people in them are part of the glue that holds the firm together (leaders, founders, facilitators, and mentors of value).

On the other hand, it may be imperative to stop tolerating less-profitable practices if they include people who are difficult, unresponsive, or adversarial to management, harsh with junior professionals or support staff (or peers), or who consume a lot of time and energy (high maintenance).

PRACTICE GROUP LEADERS When the firm doesn’t know how to properly measure your group’s performance, ignore the Neanderthal measurements and focus on making your group powerful and successful. The suggestions above can be applied to your group as if it were a firm. Your success will give you options. Be patient, but over time if you cannot persuade your firm to measure the group’s real profit contribution rather than merely revenues, maybe your group would be better off in a more enlightened environment.

If you are managing the top line without regard to the bottom one, you are on a perilous journey—a slippery slope to oblivion.

There are as many bottom lines in a professional firm as there are ways to examine a multifaceted gemstone. Firm leaders who begin to explore true profitability (even secretly, so the billablehours-and-revenue freaks don’t find out) will enhance the real performance of their firms.

It’s like having a new indicator on your car’s instrument panel showing fuel efficiency by miles per dollar. After all, this is what partners are really seeking: maximum return on their financial interest in the firm. n Gerry Riskin, B. Com, LLB, P. Admin, is an internationally recognized lawyer, author and management consultant and Founder of 30-year-old Edge International. A graduate of commerce as well as law, he practiced since 1973 and was Managing Partner of a firm in Canada and Hong Kong.

Gerry is author of The Successful Lawyer (published by the American Bar Association). His other books include: Practice Development: Creating The Marketing Mindset, Herding Cats and beyond KNOWING. He is co-creator of the acclaimed programs PracticeCoach® and Rainmaking®., has served the Conference Board of Canada and is a Visiting Fellow of The College of Law in London, a visiting lecturer at Fordham Law School in New York, a Visiting Fellow of the College of Law Practice Management and a Visiting Professor at the University or Pretoria in South Africa. Gerry specializes in counseling law firm leaders and partners on issues ranging from leadership to business development. Gerry is currently actively serving clients in Canada, the USA, the UK, Europe, South Africa, Latin America, Australia, New Zealand and India.

Attorney Journals San Diego | Volume 221, 2022

25

6 Client Service Standards for Success

by Garnett Bandy

It

is a cultural shift that can seem quite daunting for a law firm typically focused more on billings and results.

Consider, however, what keeps bringing you back to that restaurant or coffee chain that charges you slightly more than a competitor but makes you feel like the most important client there. It is often the employees who treat you with respect, ushering up such phrases as “my pleasure,” or “can I refill that for you?” You might have a good client base without an emphasis on superior client service, but you will not sustain it or get many referrals without adapting.

Improving customer satisfaction will help you increase revenue, reduce churn, improve client retention and create more referrals.

Here Are Six Client Service Standards That Can Be Your Key to a Successful Future  DIFFERENTIATE YOURSELF Go beyond “best price” and offer true value for working together. Become the professional and trusted advisor that clients can rely on. Take pride in your firm’s commitment to client satisfaction; make yourself available and consistently communicate with clients. Consider client service training for all of your staff, including lawyers.

Make your commitment to clients known through visual reminders such as plaques or a strong mission statement, and share both in-house and externally that this mission is what your firm is all about.

 INQUIRE, TRACK AND MEASURE Studies have shown that a satisfied client will tell a maximum of two people about great service; however, a dissatisfied client will tell a minimum of 11 people about bad service.

To make matters worse, technology has increased these statistics with the ability to comment via email or by posting 26

Attorney Journals San Diego | Volume 221, 2022

on blogs and social media. Still, a client does not have to say anything to be dissatisfied. As the saying goes, “what is measured is managed,” so ask clients to rate the service they have received and use that information as feedback for your staff. Fix the problem areas as quickly as possible.

Continuously remind your teams of the long-term goal of achieving superior customer service.

 MONITOR SERVICE ISSUES AND EXPECTATIONS Sometimes neither client service nor communication comes naturally to legal IT or attorneys; yet, if they want to survive and thrive, they have to be able to do both.

Continuous reiteration by management and ongoing training can help transform the typical law firm culture into a service culture. Conduct quarterly check-ins with your team regarding service issues and their ability to meet client expectations.

 TALK LESS, LISTEN MORE Clients often say the quality they appreciate most in a legal professional is that he or she “understands my business” and “listens.” By the same token, the number one complaint clients have about their contacts at a firm is a perceived lack of communication or responsiveness and a feeling of being out of the loop. Communicate often and remember that clients are both internal and external. Translation: All co-workers should be treated with the same respect and courtesy as a client, regardless of position or pay grade.

 ENCOURAGE TEAMWORK Each service provided should be understood by everyone across the board. A “not my job” attitude is detrimental to exceptional client service. Though each employee does not need to be an expert in every area, training on how to handle inquiries and how to redirect the client to the person best able to address his or her need is imperative.

Rather than allowing people to point to someone down the hall or transfer a call with no introduction, ask each team member to apply a little personal service and try, at

every point of contact, to make sure clients are in touch with the right person. This kind of customer service is remembered and appreciated.

 REGAIN THE LOST ART OF HUMAN RELATIONS In this era of texting, Facebook and other social media platforms, fewer and fewer verbal conversations take place.

Phones should be answered promptly, professionally, consistently and with the proper tone. When a call is answered, the focus should be on four basic steps: greeting the client, identifying the firm, identifying whom the caller is seeking and presenting an offer of service.

Repeating the other person’s name before the call is over reinforces a connection. Encourage face-to-face meetings as much as possible, and remember that each contact is a reflection of the firm’s culture. Continuously remind your teams to represent your firm well.

Handle with Care Even if you employ these tactics, you cannot get customer service 100 percent right 100 percent of the time. What happens when problems occur? Research shows that customers whose complaints are satisfied will

actually use more of your services than they did before the deficient service incident. Be sure your team has a system or protocol for handling unhappy clients, and take complaints seriously. Of course, you cannot offer a free dessert as restaurants do or an upgrade to first class as you find with airlines, but you can ask questions to make sure you understand exactly what happened and what the client expects in return. Doing your best to recover from the mistake is important to the success of your firm. Correcting mistakes and focusing on the six service principles outlined will differentiate you and your firm and ensure that your client views you as a necessity, and not just an amenity. n Garnett Bandy is a 20-year veteran of the legal facilities management and outsourcing industries.

For the past 13 years, he has served as a director in both sales and operations for Document Technologies Inc. (DTI). During the first 10 years, he was an integral part of opening up more than 20 new markets for DTI. For the past three years, Garnett has served as the National Director of Best Practices and travels across the country speaking on client service and providing leadership training for DTI’s 2,500+ employees. Contact him at gbandy@dtiglobal.com.

Attorney Journals San Diego | Volume 221, 2022

27

Controlling Witnesses on Direct and Cross

by Ben Rubinowitz and Evan Torgan

In

virtually any case you try, you will be confronted with the uncontrollable witness. Unfortunately, an outof-control witness can destroy a case. Your job is to prevent this from occurring. There are many ways to deal with the out-of-control witness, but the starting point is to listen to the witness and to pay attention to each answer.

As attorneys, we are very good at speaking to people, giving advice and pontificating, but often not so adept at listening to what people have to say. During a trial, although oratorical skills are important, good listening skills are critical. Moreover, although most trial attorneys are worried about controlling the adverse witness, controlling their own witness is just as important.

Direct Examination Most attorneys, while proud of their cross-examination skills, neglect the required devotion to artful direct examination. The first step to control on direct examination is to understand the parameters. While control is paramount, understanding that direct examination must be generally conducted in a nonleading format is crucial. Most leading questions will draw objections, so take control of your direct by utilizing questions that elicit narrative responses.

Questions that begin with words such as who, what, where, when, how and why should always elicit narrative responses.

Therefore, most questions during direct examination should begin with such words. Here is an example: Q: What is your name?

Q: Where do you live?

Q: How long have you lived there?

Q: Who else lives there?

Q: When did they move in with you?

Q: Why did you move there?

To continue to exercise control, you need to use transitional phrases to direct the witness into a new area of inquiry. Such

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transitional phrases are leading in nature, but because they include words of transition, are permissible.

Q: I direct your attention to June 12, 2010, at approximately 6 o’clock in the evening, and I ask you: Where were you at that time?

Q: Did there come a time that the police arrived?

Q: Directing your attention to the bottom of the page titled nursing notes, whose signature appears there?

Following up answers with words that cajole the witness to respond also helps you exercise control over the witness: Q: What happened next?

Q: Continue.

Q: Proceed.

Q: Go on.

Q: Describe.

Of course, even with artful questioning and thorough preparation, you can run into an unresponsive and out-ofcontrol witness. Take your client, for example, who has never testified in court before. Nervousness and adrenaline can take control of the situation, and the direct can end up going something like this: Q: Where do you live?

A: I have lived there for 20 years.

Q: How many children do you have?

A: I love them. They are all wonderful.

Q: Did there come a time that an ambulance arrived?

A: I was in agony, writhing in pain on the ground.

To prevent these types of answers from destroying the direct examination, you must listen to and scrutinize the responses.

Many lawyers, even on direct examination, are tied to their

notes, preparing for what they will ask next. Conducting a direct is not the time to be tied to your notes. On the contrary, you must pay close attention to your witness’ answers.

Q: Where did you feel the pain?

A: It was the worst pain I have ever felt in my life. I couldn’t believe it. I couldn’t even breathe and my life flashed …

Q: I understand it was very bad, but I’m asking specifically where you felt that pain.

A: It was in my lower back.

The same type of control should be exercised with the expert witnesses you call as well.

Many times, expert witnesses will ramble on after first being responsive to your questions. It is important to rein them in. For example, take the following approach when a physician rambles on beyond the scope of the question: Q: Do you have an opinion, to a reasonable degree of medical certainty, as to whether or not these injuries are permanent?

A: Yes. They are permanent, and they will prevent her from working in the future and will require a lifetime of medical care. Moreover, because the disc is impinging on the spinal cord it will ...

Q: Let me stop you there, and we will get to the rest of those issues later. First of all, why do you say they are permanent?

Q: In addition to finding the injury is a permanent one, do you have an opinion, to a reasonable degree of medical certainty, as to whether or not she will ever be able to return to work?

Q: What is the basis for your opinion?

A: She can’t work because her herniated disc prevents her from sitting. However, she will require a lifetime of physical therapy ...

Q: Permit me to interrupt you for a second. Why does that herniated disc prevent her from sitting down to work?

With an expert, as with your client or any other witness, you can exercise control while staying polite and keeping the flow of the examination going smoothly. Even though your witnesses on direct are generally friendly and cooperative, it is still an important skill to be able to maintain control over them.

Cross-Examination Although maintaining control is important on direct examination, it is critical on cross. Witnesses who are adverse generally have an axe to grind and can hurt your case if given the opportunity. The key is to never allow them the opportunity.

Just as non-leading questions are the rule on direct, leading

questions define cross. Leading questions are those that contain within them the answer, questions that suggest the answer, and questions that call for a yes or no answer. When asking a leading question, state a fact and get the witness to agree with it.

Q: You are the defendant in this case, true?

Q: On the day of this incident you were driving a truck, correct?

Q: That truck was quite heavy, right?

Q: As a matter of fact, it weighed over 32,000 pounds, didn’t it?

When cross-examining a witness, you are basically making a summation to the jury, and getting the witness to agree with you. There is not much wiggle room when the questions are leading, tight and suggestive. However, it is just as important to pay attention to the witness’ answers and not be tied to a script.

You must be able to distinguish answers that are responsive, answers that are unresponsive, and answers that are in fact responsive, yet add gratuitous information.

Q: You are the defendant in this case, true?

A: Yes, but someone served me in the middle of the night.

Q: On the day of the incident you were driving a truck, correct?

A: On the day of the accident it was raining real hard and impossible to see.

Q: That truck was heavy, wasn’t it?

A: Not as heavy as a lot of rigs on the road that day.

Q: As a matter of fact, that truck weighed over 32,000 pounds, true?

A: I didn’t have a scale.

You can follow your script, ignore the answers, continue with your notes and lose the case. A better way, however, would be to pay attention to the witness and demand responsive answers.

Here is one way that examination could go: Q: You are the defendant in this case, true?

A: Yes, but someone served me in the middle of the night.

Q: I didn’t ask you when you were served, but there is in fact no question that you were served, correct?

A: Yes. Q: And you are the defendant in this case, true?

A: True Q: On the day of the accident, you were driving a truck, correct?

A: On the day of the accident it was raining real hard and impossible to see.

Q: Sir, my question was simple: on the day of the accident, you were driving a truck, correct?

A: Correct.

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29

Q: And because it was raining very hard, you had to exercise caution, true?

A: True.

Q: Because when it rains hard, it makes visibility more difficult, true?

Q: And as a result you have to be even more careful than usual, right?

A: Right.

Q: And you, Sir, as a professional truck driver, had an obligation to keep a proper lookout, correct?

A: Correct.

Q: And to maintain safe distance from the vehicle in front of you, true?

A: True.

Q: That truck was heavy, wasn’t it?

A: Not as heavy as a lot of rigs on the road.

Q: I’m not asking you about other rigs, Sir, I am specifically asking about yours: You’d agree with me that the truck you were driving was heavy?

A: What do you mean by heavy?

Q: Sir, your truck weighed over 32,000 pounds, true?

A: I didn’t have a scale.

Q: But you did have an owner’s manual, didn’t you?

A: Yes. Q: And you also had a side door, right?

A: Right.

Q: And both the owner’s manual and the side door indicated that the truck weighed 32,700 pounds, correct?

A: Yes. Q: And you would admit, wouldn’t you, that the front of your truck struck the back of my client’s vehicle?

A: Yes. Q: No doubt about it, right?

A: Right.

There are other ways to procure responsive answers on cross examination. One way is to simply repeat the same question over and over again until you get a responsive answer Q: Doctor, you would agree with me that my client has a scar on his face, true?

A: It is not very big.

Q: Doctor, you would agree with me that my client has a scar on his face, true?

A: I can hardly see it.

Q: Doctor, you could agree that my client has a scar on his face?

A: Yes.

Q: Dr. Smith, your examination of my client took less than 15 minutes, true?

A: My examination was thorough, and I did all I had to do.

Q: Sir, that wasn’t my question. My question was specific: Your examination of my client took less than 15 minutes, true?

A: It took close to 15 minutes.

Q: And by close to 15 minutes you mean less than 15 minutes, correct?

A: Yes. Yet another way to get responsive answers is by getting the court’s assistance. However, this should be done sparingly. This should only be done after a pattern of abuse by the witness, and only if you know you will get assistance from the court.

Q: Dr. Smith, you would agree that the report of the radiologist in evidence shows a herniated disc at L4-L5, right?

A: Yes it does, but it also shows a severely degenerated disc with arthritic changes that took years to develop.

Q: My question was, the report shows a herniated disc, true?

A: It does, but I’m telling you it is not causally related to the accident. It is from years of degeneration.

Q: Sir, the radiologist called it a herniated disc at L4-L5, true?

A: Yes but it has nothing to do with the accident.

Q: Your honor, I move to strike everything the doctor said after “yes” as unresponsive.

The court: Granted.

Controlling witnesses is a very important part of trial practice: during direct examination, by asking non-leading, openended questions that call for narrative responses, sprinkled with appropriate uses of transitional questions; during crossexamination, by asking tight, leading questions that contain within them the answer and simply call for agreement by the witness. Most importantly, on both direct and cross, pay careful attention to the answers before thinking of your next question, and always obtain responsive answers. n Ben Rubinowitz is a partner at Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz and an adjunct professor at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. They can be reached at speak2ben@aol.com and info@torgancooper.com.

Richard Steigman, a partner at Gair, Gair, assisted in

Another way is to add preambles to your questions such as “that wasn’t my question, Sir”; “my question was simple”; or “Sir, that is all well and good, but mine was a different question”: 30

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