Attorney Journals, San Diego, Volume 243 by Attorney Journals

SAN DIEGO

Volume 243, 2024 $6.95

Law Firm Suit Against AI Legal Subscription Service Dismissed

Jon Jekel

7 Reasons to Design a Law Firm Sales Process

Steven M. Bell

2024 Digital Strategy Planning

Omnizant

6 Strategies to Encourage Lawyer Engagement with CRM Systems

Chris Fritsch

California Case Summaries

Monty A. McIntyre 4 Law Firms Doing It Right on Instagram

Haley Maresca

Law Firm of the Month

PROFESSIONAL PROFILE OF THE MONTH

Dan Stanford

The Original Legal Malpractice Firm

Frantz Law Group, APLC San Diego Driving Change

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 • $22,659,551 settlement for clients defrauded in a local Ponzi scheme in Levin v. Chicago Title, et al. (2021)(Michael Kirby & Jason Kirby). • 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).

501 West Broadway | Suite 1720 | San Diego, CA 92101 | 619-487-1500 | www.kirbyandkirbylaw.com

2024 EDITION—NO.243

TABLE OF CONTENTS 6 Digital Strategy Planning for 2024 by Omnizant

10 Four Law Firms Doing It Right on Instagram by Haley Maresca PROFESSIONAL PROFILE OF THE MONTH

12 Dan Stanford The Original Legal Malpractice Firm EXECUTIVE PUBLISHER Brian Topor

by Dan Baldwin

14 Seven Reasons to Design a Law Firm Sales Process

EDITOR Wendy Price

by Steven M. Bell

PUBLICATION DESIGN Penn Creative

LAW FIRM OF THE MONTH

CIRCULATION Angela Watson

16 Frantz Law Group, San Diego Driving Change

PHOTOGRAPHY Chris Griffiths

by StoryStudio

STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Steven M. Bell Chris Fritsch Jon Jekel Haley Maresca Monty A. McIntyre Omnizant StoryStudio 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.

22 Law Firm Suit Against AI Legal Subscription Service Dismissed for Lack of Standing by Jon Jekel

24 Six Success Strategies to Encourage Lawyer Engagement with CRM Systems by Chris Fritsch

26 California Case Summaries: New California Civil Cases by Monty A. McIntyre

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Digital Strategy Planning for 2024 by Omnizant

Digital strategy planning can seem overwhelming. Many firms are thinking of improving their performance in 2024. We’ve identified an approach to digital strategizing that we hope will simplify your process and yield better results for your firm.

new year is a potent cocktail of stress, accomplishment and setting lofty goals for the future. Digital strategy planning is your key to calmly and confidently meeting the demands of the New Year. Here’s how to create a digital strategy, what to include, what to exclude and our three-pillar digital planning philosophy (which you can steal for your own firm’s strategy).

What Is (and Isn’t) a Digital Strategy A digital strategy is your firm’s playbook for managing your digital assets and online presence. It’s a document that will guide your approach for navigating predicted and unpredicted issues in the future. This strategy should consider assets like your website, mobile, email touchpoints, social media and any digital marketing. One note on timelines: Note that a digital strategy is a relatively short-term document. Whereas business strategies tend to include a long-term roadmap and other kinds of forecasting, it simply doesn’t make sense to plan so far ahead with digital strategy. Technology and trends change so frequently. It’s more important to understand your priorities and processes so that you can adapt to changes. A digital strategy should focus on general approaches, not specific forecasting or didactic action plans. Budgeting is very tricky with digital strategy, so we’ll cover that section down below in more detail.

Areas Your Strategy Should Encompass Consider breaking your digital strategy into five key areas.

Attorney Journals San Diego | Volume 243, 2024

• Social Media: Which platforms are you investing in? Who is responsible for these platforms and what policies exist to manage the content? What’s the plan for negative events? Are there other platforms where your audience is more active? • Mobile: Is the site responsive? Will you be building any native apps for your firm? If so, what platforms will you support? Think about how you can enhance the mobile experience for clients on the go. • Email: Who is responsible for mass email correspondence? Who is maintaining your lists? Do you have a plan for privacy protection? Do you want to consider personalization, targeting or other automation in the future? Consider newsletters and trigger-based emails in this category. • Website: Assess the user experience of your site. Does it align with your firm’s values? What features are you supporting and will you add or remove any? How do you decide on content? Who is responsible for technical, design and content maintenance? • Digital Marketing: Consider your current online marketing channels, including PPC and SEO campaigns. Are they reaching the right audience? How’s the process working for your team? Are there new marketing avenues you may like to explore? You may wish to include a budget subsection for each category as well as an overall budget section. We also recommend a “people, process, priorities” approach. This could be applied to each bullet point above, so long as you are careful to ensure alignment between each area.

Who Is Responsible for Digital Decisions? The key to unlocking a successful digital strategy is assigning responsibility. Clear responsibilities ensure that, even if something fails, you’ll have someone who is responsible for reporting it so you can address it. Start by sketching out your digital team. Who makes decisions about different elements? Is there one person who is at the top and must give approval? Who actually does the work once it’s assigned? Who reviews the marketing data? Will all of your digital assets and campaigns be managed in-house or will any of it be outsourced? What are the criteria for making this decision, and what are the criteria for selecting a supplier or contractor? Note any platforms that your team uses to track action items and report back. Include frequencies for making these reports. If there’s a lack of clarity on any of these points, don’t try to solve it in your own head. Note the confusion and include it as an opportunity to improve next year, or pitch a few options based on your knowledge. You’ll get better results by collaborating with the rest of the team. One tool you can use here is a responsibility assignment matrix (RAM), although this could be overkill for smaller firms with fewer digital marketing projects on the go.

What Policies Will Guide Future Digital Decision-Making? Now that you’ve identified personnel, you can move onto policies and processes. Clear frameworks can streamline your process while ensuring consistent outcomes. Think through areas like social media, content creation, website management and potential crisis situations (like bad PR or data leaks). Are there any decisions you find yourself making again and again? Could you formalize any of these processes into some sort of policy? For example, you might consider a document for social media guidelines that indicates which topics are allowed, enabling you to eliminate extra approvals and hasten the creation to publication pipeline. This document could include style and content boundaries, too. Consider policies for content removal, coding standards, accessibility and crisis management. What merits the removal of a piece of content? Does it get archived? Does it require a statement on social media? Do you have an accessibility checklist for social media and newsletter content? How do you respond to negative reviews?

You don’t need exhaustive definitions in your digital strategy. However, you can identify these areas and set yourself on a path to creating these policies in the near future. The goal is to document each process clearly and ensure easy access for key people, preserving your values one time so that every future decision is aligned with your values and goals.

Are There Priorities That We Can Use to Guide Us? Priorities can help guide your digital decision-making when information is hazy. Of course, digital strategies are intimately tied to business strategies and priorities. Identifying key priorities can expedite decision-making and keep everyone aligned. Start by defining your digital users and digital business objectives. Everything should be tied back to these two clearly defined groups. Who are the people you’re targeting and serving? What do they need? What is the main purpose of your digital presence, or the purposes of each platform? Is it to serve, educate, entertain, convert, reassure? Here’s an example of how this exercise in priorities could help you in the future. Let’s say your content team has decided on a slate of features for your blog. A partner suggests a new post on a totally separate topic. You can use your list of digital priorities and audience profiles to determine if this new topic should or should not displace the other ideas in your slate.

Organize Your Work Into a Roadmap You’ve made great progress! Now, collect your work into a roadmap with at least five key categories: social media, mobile, email, website and digital marketing. For each section, identify the main benefits that each one provides. Explain how it’s currently performing (you can blend qualitative and quantitative data here). Include areas for improvement and make some recommendations in the long and short term. As you write your recommendations, start with issues that need immediate attention. You can give more detail to this section because the need is imminent and you have more information. As you proceed with future tasks in the long-term, you can reduce the level of detail. This is only logical, as the technology will change in the next few years and it would be unwise to too closely predict a version of the future and devote resources to addressing it.

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Finally, please feel free to recommend a consultation with outside experts if you and your team do not possess specialized knowledge in certain areas.

Money Matters and How to Budget for Change Okay, it’s time to address the financial elephant in the room. Legal marketing in a recession can be scary! How do you budget for an unpredictable future? We like the agile model, which sees digital marketing as an annual ongoing project rather than a fixed cost project. Try to think of it like allocating funds dynamically to adapt to emerging trends, seize opportunities, and address challenges. Some fluidity in your annual budget is required to ensure that your digital strategy remains agile in a changing digital world. We see a lot of marketers and firms stuck in an outdated model of fixed cost projects. They’re simply unable to keep pace with the newest requirements, and so they fall behind. The agile model acknowledges that your digital presence is never finished and is constantly being improved. Because of

this, an annual ongoing budget is the way to go. Try setting an expected cost for each area of work. Tweak depending on whether you plan to do it in-house or hire contractors, then add some contingency. Now, you have to live it and adapt as you go.

Review and Next Steps Digital strategies for law firms should include flexible, agile budgets and a “people, process, priorities” approach to guiding digital decision-making. Avoid getting bogged down in the details! Instead, focus on creating frameworks and assigning responsibility to enable your firm to confidently adapt to the coming challenges and new technology of 2024. Digital strategy is dynamic in nature. It takes skill, adaptability and accountability to get results. n Since 2006, Omnizant’s team of digital marketing experts, designers, developers and writers has helped over 2,000 law firms develop powerful websites that drive business growth. Learn more at www.omnizant.com.

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Attorney Journals San Diego | Volume 243, 2024

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Four Law Firms Doing It Right on Instagram by Haley Maresca Although Instagram is one of the most popular social media sites in the world, many legal marketers are reluctant to invest time in the platform because of its focus on consumer marketing and its youthful audience. If the past few years of marketing have taught us anything, it’s that trust and credibility can be damaged by a social media strategy that doesn’t catch on across major platforms. When looking up businesses they want to collaborate with, users frequently start their search on their preferred social media network. Consider the initial impression you would like to leave on a user who finds your social media page empty. In our yearly whitepaper, The Social Law Firm Index, we examined and ranked the top 200 law firms in America (as determined by the American Lawyer) based on how they use and adopt social media to spread thought leadership messaging. We’re looking at four law firms’ Instagram accounts in this post that are doing it successfully. Reviewing these four accounts will give you perspectives on how your law firm can update its Instagram strategy and show you what success on the platform looks like in 2023.

1. DLA Piper

2. Brown Rudnick

Social media success is something that must be earned via constant effort, as demonstrated by Brown Rudnick. With the help of its most well-liked cases, Brown Rudnick creates content to satisfy the needs and wants of its audience. With Reels and Carousel Posts, they take advantage of Instagram’s most recent features. By adding pictures of people, Brown Rudnick further elevates their firm. They frequently use a lawyer’s face as well as podcast features and recent events to keep the posts interesting, even if they wish to share copy in the graphic.

3. White & Case

Instagram is just one part of DLA Piper’s integrated digital strategy, which also includes email, social media, and the web, and is intended to give its external audiences a consistent, valuable experience. Instagram serves as the company’s main platform for posting images, videos, and podcasts of its attorneys and business professionals in action—whether they’re interacting with clients, winning accolades, or showing up as guests for interviews. They use stories for more current and popular topics such as diversity and interesting Q & A’s to concentrate their feed on content that highlights their longevity and leadership in the field. The company’s strategy has shown to be effective because it continuously garners favorable engagement. 10

Attorney Journals San Diego | Volume 243, 2024

White & Case’s neatly arranged and distinctively branded profile creates a fantastic first impression. They share pertinent links, including links to their other Instagram accounts, using Linktree, and display the subjects of their Highlights using branded graphics. In addition to updating its main page, White & Case knows how to take advantage of market segmentation by setting up distinct Instagram pages for various audiences. They make use of all the most effective post formats, such as carousels, reels, and stories. Additionally, White & Case is aware that Instagram is primarily a visual platform and that the company should use it to humanize itself. Thus, they have a ton of human photos, but more importantly, they use professional and personal Reels to highlight the lives of their lawyers.

4. Bracewell Bracewell demonstrates how the foundation of Instagram for legal firms is compelling imagery and robust branding. When Bracewell publishes graphics in place of photos, those posts are branded with a similar font, format, style, and color scheme, creating a visually pleasing grid. Strong visuals are another tool Bracewell uses in their Highlights display photos. Once more, Bracewell shows that they’ve modified their approach to be unique to Instagram by using Linktree to make link sharing simple. Reels are another tool Bracewell uses to present images and content in a visually appealing and easy-to-read manner. Takeaway: For law firms, Instagram success might be a little different than on other platforms. Above all, though, these legal firms demonstrate how Instagram is the ideal platform for showcasing your culture and values, humanizing your business, and finding fresh ways to interact with your audience. n Haley Maresca is a writer for Good2bSocial, a leading digital marketing agency exclusively serving the legal industry. Good2bSocial empowers national and international lawyers, law firms, and companies within the legal sphere to harness the true power of digital to achieve their business and marketing goals. Learn more at good2bsocial.com.

FIRM FOCUS ON EMPLOYEE BENEFITS LAW

Corey F. Schechter PARTNER

Butterfield Schechter LLP is San Diego County’s largest firm focusing its law practice primarily on employee benefit legal services. Our experience in employee benefits law and business law provides creative solutions for the most pressing business concerns. We are also dedicated to employee ownership and know all things ESOP (Employee Stock Ownership Plans). Learn more at www.bsllp.com.

Marc S. Schechter Paul D. Woodard

FOUNDING PARTNER

mschechter@bsllp.com

PARTNER

Helping You See ERISA and Employee Benefits Law Clearly Practice areas include: ESOPs - Pension, Profit Sharing, 401(k) Plans - ERISA Litigation - ERISA Compliance - IRS and DOL Audits - Nonqualified Deferred Compensation Plans - Stock Options Plans - Business Transaction & Succession Planning - Qualified Domestic Relations Orders (QDROs)

Attorney Journals San Diego | Volume 243, 2024

Dan Stanford Founder of “The Original Legal Malpractice Firm” by Dan Baldwin

JOURNALS

FEATURED PROFESTSHIOENMAOLNPTROFILE OF

2024

“Growing up with Yavapai Tribe members as my neighbors made me appreciate the hardship people go through and it made me want me to become an attorney so I can help people in their time of real need. I grew up with people who struggled, so I can easily identify with clients struggling, especially those suffering from the incompetent or worse efforts of attorneys and law firms,” says Dan L. Stanford, Founder of Stanford And Associates. He was one of the first lawyers to be certified as a California Certified Specialist in legal malpractice law. He has received Trial Lawyer awards from the Consumer Attorneys of San Diego and has prosecuted more legal malpractice claims throughout California than any other lawyer in the state. He regularly lectures throughout California and publishes articles on the subject of trial work and legal malpractice. The unique nature of his practice has generated local, regional and national media coverage, including Newsweek, Reader’s Digest, USA Today, San Diego Magazine and California Lawyer. Stanford considers growing up poor an advantage. “All my friends growing up had homes with dirt floors – that’s poor. Knowing them made me committed to achieve a different result for myself. I grew up the son of a chef and a waitress and I was the first in my family to go to college.

Attorney Journals San Diego | Volume 243, 2024

I never knew what a silver spoon was. Growing up poor drove me to work hard and strive to succeed,” he says. An interest in the old Perry Mason television series pointed him toward a way to achieve those goals through a career in law. As a young lawyer in the 1980’s, he observed some lawyers make serious mistakes or fail to represent their clients as they should and he tried to refer legal malpractice cases to many of the plaintiffs’ lawyers he knew in San Diego. None of them wanted to take on other lawyers, since they were the source of referrals. “About 1990, I decided the timing was right for me to go out on my own, open my own practice and start my own, unique law firm specializing in the prosecution of legal malpractice lawsuits. I saw a serious problem in our legal community and I decided to dedicate my professional life to fixing

it. That’s where ‘The Original Malpractice Firm,’ comes from,” Stanford says. Stanford And Associates has been in business 34 years, but Stanford has been practicing law for almost 50 years. He is the only lawyer in Southern California who strictly limits his practice to representing clients in legal malpractice cases against lawyers and law firms. During the first fifteen years he practiced on the defense side, first as a partner at Luce, Forward, Hamilton & Scripps, and then as a partner at Pillsbury, Madison & Sutro, experience that provides Stanford with the unique ability to analyze any case from both sides. His firm only represents clients and never lawyers. A boutique firm, they have three attorneys and two paralegals and only accept 12-15 cases at any one time, which allows the team maximum focus on each client. Stanford says, “Every client has been through a terrible experience at the hands of at least one lawyer. Blowback? I don’t really get that. Good lawyers appreciate what I do and the bad lawyers hate me. I can live with that. All our cases come from referrals from other lawyers who know what I do and the way we handle our cases as selective as we are.” Stanford and his firm have handled legal malpractice cases in a wide variety of substantive areas including the probate field, in the tax area, family law, corporate and real estate law and bankruptcy law, to name a few. “One of our favorite topics involves ‘conflicts of interest,’ which may arise in many substantive areas of the practice,” he says. For example, an 84-year-old widow with a heart condition came to him because she was being evicted from her house by her longtime lawyers. She had gotten behind in her mortgage payments to the Bank of America and had gone to her longtime lawyers for help. They told her not to worry and to let the house in Rancho Santa Fe go into foreclosure. They would buy it and let her live in it rent-free for the rest of her life. She listened to them, followed their advice, and the lawyers ended up with title to her house. After a few months and realizing that owning the house was perhaps more expensive than they had thought, the attorneys demanded that she pay rent. When she balked, they hired the best eviction law firm in town to evict her. At the unlawful detainer trial, the judge didn’t want to hear anything about breaches of fiduciary duty or legal malpractice, since the case was limited to a narrow landlord tenant dispute. She lost and was facing eviction when she came to Stanford And Associates. “We were able to stop the eviction, and, after some litigation, we were able to get her house back—free

and clear of any liens—plus payment of the insurance policy limits of the lawyers involved. That case reaffirmed my decision to focus on this narrow field of the law,” Stanford says. “Experience is what you get when you don’t get what you want.” That statement, made after Stanford came in second in a race for State Controller in 1986, is a reference to the value of experience. (The quote was so notable that it was picked up by Reader’s Digest Magazine, and subsequently in dozens of books about famous quotes.) “Experience makes you stronger. Most of the things I’ve learned in life, I’ve learned the hard way. Overcoming hardship and bad experiences makes you a better person. You’re going to achieve more if you have bad experiences and challenges than if you never try. Experience makes you a stronger person.” Stanford maintains a balance between work and family. He has been active in sports his entire life, playing football, basketball and baseball throughout his youth. As an adult he settled on softball, golf and snow skiing. “Organized sports taught me many of the most important life lessons, including the importance of teamwork and handling adversity,” he says. His passion outside of the office is spending quality time with his four grown children and three young grandchildren. At work he is known for taking his work seriously, but for not taking himself too seriously. At home he is busy with family duties and in “trying to be a good role model for the next generation.” The future for Stanford and his firm is one of continuing growth and service to the community and the legal profession at large. As of January 1, 2024, he moved his firm into the offices of Dunn DeSantis Walt & Kendrick to work with some of the top lawyers in that firm, including Kevin DeSantis, David Cardone, Jim McFaul and Adam Yarbrough. “I have enlarged and strengthened our team of lawyers so that we can continue to prosecute legal malpractice cases throughout California as an expanding service to our clients and to the legal community at large,” Stanford says. n

Contact Stanford And Associates 750 B Street, Suite 2620 San Diego, CA 92101 (619) 695-0655 stanfordandassociates.com

Attorney Journals San Diego | Volume 243, 2024

7 Reasons to Design a Law Firm Sales Process by Steven M. Bell

recent survey conducted by Chief Sales Officer Insights—a survey about achieving revenue goals—determined that a vast majority of companies are still flying by the seat of their pants when it comes to formalizing, reviewing, and measuring their sales processes. The survey did not even cover the law firm vertical, where the phrase “sales process” is virtually unheard of. Is that a problem? Maybe. “If you can’t describe what you are doing as a process,” said quality and efficiency guru W. Edwards Deming, “you don’t know what you’re doing.” I would never contend that law firms don’t know what they are doing. They are populated with brilliant individuals who solve unimaginably complex client issues. And they generate large, profitable revenue streams. Like all industry verticals, they have their flaws, but for most of them, not having a formal process does not mean that they don’t know how to sell. More likely, they have not yet seen the benefit of analyzing what works, documenting it, and replicating it. Should they do so? If they’d like to outperform peers, yes. The survey mentioned above concluded that a business with a formal sales process that is defined in writing and regularly reviewed delivers substantially better performance than those with ad hoc or informal sales processes. For law firms, crafting a sales process need not be complex. We have written frequently on the topic of how to do so. Basically, it involves capturing and analyzing case studies of how today’s key clients progressed from unawareness of the firm to awareness, interest, consideration, engagement, expansion, and finally—the most-desired stage of the process—to strategic, institutional clients. Implementing and sustaining a sales process is more challenging than arriving at one in the first place. We’ll cover that topic in a future INSIGHTS article. Meantime, here are seven good reasons for a law firm to start building one now.

A sales process:  Helps a firm focus. A good sales process defines with great specificity the client base of the future and the steps required to acquire that client base. 14

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 Elevates brand. A firm’s sales approach can be a valuable part of its reputation in the marketplace. Think “The McKinsey Way.”

 Facilitates management’s ability to track and measure performance. This includes monitoring key performance indicators (KPIs), analyzing conversion rates, accurately predicting revenue, and identifying areas for improvement.

 Promotes efficiency. A well-constructed sales process defines the role of each function or participant, ensuring that the steps are taken in the right sequence, completely, and at the right time.

 Reduces stress on the part of professionals for whom sales is not the first choice of tasks. A sales process is little more than a business ‘to-do’ list, which only remotely resembles the “salesly stuff” that so many disdain.

 Facilitates integration of marketing and sales (not to mention other departments). A sales process begins with professionals who help make prospective clients aware of the firm and its offerings and extends through client service professionals delivering a deeply satisfying experience. Every function in a client development department— indeed in the whole firm—plays a vital role in the successful execution of the whole sales process.

 Runs on its own. Lawyers and staff professionals alike often are amazed when a sales process delivers a new client or additional high-value work for an existing client… almost by magic. Sometimes, just taking the steps results in a client getting to “yes” with virtually no selling in the sense that many people construe it. n Steven M. Bell is a pioneer of law firm Sales and Business Development, in 2001, Steve created one of the legal profession’s first sales functions at Womble Carlyle Sandridge & Rice (now Womble Bond Dickinson) and has consulted with professional services firms around the globe on establishing and operating sales departments, navigating ethical requirements, and designing compensation systems for professional services salespeople. Learn more at www.LawVision.com.

DRIVING CHANGE FRANTZ LAW GROUP’S IMPACTFUL LEGAL BATTLES IN TRANSPORT AND SOCIAL MEDIA by StoryStudio

an era when legal battles have the power to shape our societal landscape, Frantz Law Group, APLC, is making headlines with two landmark cases. Each highlights the firm’s commitment to addressing crucial societal issues, and each sends a hopeful message to communities that are often overlooked or marginalized. The first is a wrongful death suit following the tragic death of a Modesto man in a highway collision. Frantz Law Group obtained a historic multimillion-dollar jury verdict that became a powerful statement against negligence in the trucking industry. In another formidable legal front, Frantz Law Group is taking a bold stance against the titans of the digital age, going to battle against social media giants to protect the mental and emotional health of children and adolescents. Both cases underscore the critical role of legal expertise in challenging negligent behaviors and setting new safety precedents. With its involvement in these two distinct yet equally pivotal lawsuits, Frantz Law Group demonstrates a steadfast commitment to championing the causes of the less powerful.

A TRAGIC COLLISION: UNVEILING THE TRUTH Take the case of Pedro Avila, a decorated Army combat veteran with tours of duty in Iraq, Afghanistan, and Kuwait. James Frantz, lead trial counsel at Frantz Law Group, describes the thirty-six-year-old Avila as a patriot and a hero. “He enlisted in the Army when he was twenty. After 9/11, he wanted to serve his country. He was a great guy, a wonderful husband, and father to six kids.” In January of 2019, Avila lost his life in a catastrophic collision with a tractor-trailer on California SR-99. The vehicle was operated by an unqualified driver who failed to respond to multiple warning systems indicating the truck was running out of fuel. After the engine failed, the truck stopped on a dark highway and partially blocked the road,

Attorney Journals San Diego | Volume 243, 2024

leading to the fatal accident. “They had a driver on the road that had insufficient training driving a 25,000-pound truck,” says Frantz. To make matters worse, the trucking company attempted to cover up details of the collision, even falsifying and back-dating safety and inspection reports. “Not trained to check their equipment, no warning capabilities to warn other drivers when they’ve broken down … and they created phony reports saying they had safety warning equipment on board … and now we have this disaster,” says Frantz. “It should never have happened.”

JOURNALS

LAW FIRM

OF THE MONTH

2024

HISTORIC VERDICT: A TURNING POINT IN ROAD SAFETY With the expert guidance of Frantz Law Group, Avila’s family sought justice, culminating in the largest jury verdict in San Joaquin County Superior Court history for a wrongful death trial involving a tractor-trailer collision. The verdict resonates deeply with anyone concerned about road safety, but it also highlights a critical issue in the trucking industry: the need for responsible driving and adherence to safety protocols. “I’m hopeful [that] the publicity of the verdict will send

a message to other trucking companies to change their bad behaviors, to follow the rules,” Frantz says before adding a warning: “Don’t cut corners, and certainly don’t try to cover up your mistakes—own up.” The heartbreaking incident that claimed the life of Pedro Avila sparked a significant five-week jury trial in San Joaquin County. The jury returned its verdict for the family of this patriot and war veteran on 9/11/2023. The victory is more than a legal triumph. It’s a significant step forward to safer roadways. Thanks to Frantz Law Group, the case has become a beacon of hope for accident victims and a stern warning to those who compromise road safety.

Attorney Journals San Diego | Volume 243, 2024

Rahul Ravipudi, Partner

SOCIAL MEDIA UNDER SCRUTINY: THE PIONEERING LAWSUIT While Frantz Law Group continues to champion the rights of those harmed by road accidents, its legal acumen extends to accountability in the virtual world. The firm’s involvement in a lawsuit against social media giants focuses on digital highways, where the safety and well-being of our youth are at stake. Standing at the vanguard in the fight against the pernicious effects of unchecked social media engagement, Frantz Law Group is representing more than 800 school districts nationwide in their lawsuits against social media companies like Meta (Facebook’s parent company), TikTok, and

Attorney Journals San Diego | Volume 243, 2024

YouTube. This groundbreaking legal challenge, filed in the Federal District Court in San Francisco and in state court in Los Angeles, alleges that these social media platforms have significantly contributed to a mental health crisis among students. It points to an alarming rise in anxiety, depression, self-harm, bullying, body dissatisfaction, and other mental health issues linked to the usage of these platforms. Frantz Law Group attorney William Shinoff explains how the platforms target young people. “Their algorithms are intentionally addictive—they’re made in a way to make sure that users are constantly on their platforms, especially children.” According to Shinoff, “intentional” is the key word here. “The fact is that [social media companies] have conducted their own internal research and studies on how to make sure they’re keeping children on the platforms while being fully aware of the associated harms. Instead of making

it safer for children (students), they ignore the harms, and, consequently, we are now witnessing a massive mental health crisis of students within the school system.”

A UNITED FRONT: SURGEON GENERAL’S ADVISORY AND NATIONAL SUPPORT In support of the school district claims, the lawsuit references a series of studies and reports, including the May 2021 advisory by U.S. Surgeon General Vivek Murthy which outlines the detrimental effects of social media on vulnerable youth. The report explicitly highlights a former Meta employee’s congressional testimony that reveals private and internal research about the harmful impact of Meta’s products on

teenagers, especially girls. The lawsuit is at the forefront of a growing movement seeking to hold social media companies accountable for their content and its impact on users. Since the Surgeon General’s advisory, attorneys general across the United States have rallied to the cause. “We have forty states, forty attorneys general with us. We are greatly encouraged that government entities have joined this litigation,” Frantz says with confidence that the tide is turning against the digital platforms to the benefit of 8.5 million students enrolled in the school districts represented by Frantz Law Group. The litigation seeks not only accountability and change in social media behavior but also to mitigate the ongoing damage in school districts across the country. “For the school districts, our clients are seeking injunctive relief, pursuant to federal and state court orders requiring them to take

Attorney Journals San Diego | Volume 243, 2024

specific measures to make these social media platforms safer for children,” Shinoff says. “Unfortunately, school districts’ funding to address these mental health problems is extremely limited. The school districts want to provide greater mental health resources and staffing for the affected students.” These lawsuits filed by Frantz Law Group (on behalf of more than 800 school district clients) are pivotal to safeguarding the well-being of millions of students across the United States. As the legal proceedings unfold, the outcome of this litigation should herald a new era of accountability and responsibility on the part of social media companies, ultimately leading to significant safety changes in the way these platforms operate and affect our children.

or representing hundreds of school districts against the overwhelming power of tech giants, the firm has consistently shown a deep commitment to equitable justice. The firm stands as guardians for those who might otherwise be overwhelmed by the weight of larger, more powerful entities. “I have been doing this work for forty-four years, and it’s a joy every day to assist people that are in a bad way,” Frantz says, reflecting on his own adolescence. “When someone is picking on you, you don’t want them to get away with it. You fight back. Some of these people have no one to fight back [for them], so they have us fight back. I feel honored when they choose us to join their battle … and when we go to battle, we do not screw around.” n

BEYOND THE COURTROOM: INSPIRING SOCIETAL CHANGE Frantz Law Group’s advocacy in cases like these not only aims to deliver justice to affected and harmed parties but also to inspire broader societal changes. Whether fighting for a grieving family seeking justice for a lost loved one

Reproduced with permission from San Francisco Chronicle and SFGate, December 2023 issue. 20

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Law Firm Suit Against AI Legal Subscription Service Dismissed for Lack of Standing by Jon Jekel

U.S. District Court in Illinois dismissed a case by the Chicagobased law firm MillerKing LLC against the so-called “robot lawyer” DoNotPay, Inc. (DNP). It found that MillerKing did not have standing to bring false advertising, false association and other claims against DNP, because it did not sustain concrete injuries due to DNP’s conduct. The case, pitting a traditional firm against an AI-driven legal service provider, raises questions about the role of artificial intelligence in the legal domain. DNP offers an online, subscription-based service that it claims will help consumers “fight corporations, beat bureaucracy and sue anyone at the press of a button.” It offers services related to marriage annulment, speeding ticket appeals, timeshare cancellation, breach of contract, defamation, copyright, child support, restraining orders, and trusts—as well as standardized legal documents. However, DNP is not licensed to practice law and does not employ licensed attorneys. Rather, it uses artificial intelligence to provide its services. MillerKing is a traditional law firm. In the lawsuit against DNP, it sought to bring a class action on behalf of “all law firms in the United States in existence during the Class Period,” with claims for: • False Association under the Lanham Act, 15 U.S.C. § 1125(a) (1)(A), alleging that DNP made representations creating a false impression that it was affiliated with licensed attorneys and approved by the state bar; • False Advertising under the Lanham Act, 15 U.S.C. § 1125(a) (1)(B), alleging that DNP falsely represented that its services were offered by a lawyer, which influenced the purchasing decisions of DNP’s customers; • Violations of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq., alleging that DNP’s misleading statements misrepresented the affiliation, sponsorship, and quality of its services; and • Unauthorized Practice of Law under the Illinois Attorney Act, 705 ILCS 205/1, and the Corporation Practice of Law Prohibition Act, 205 ILCS 220/1 and 705 ILCS 220/2. The case raises interesting questions about the nature of False Association and False Advertising claims under the Lanham Act. It also raised broader questions about how AI-driven services like DNP fit into the legal landscape, particularly when they operate in a manner similar to traditional legal services. Yet, the decision came down to a simple issue: Article III standing. As the opinion explained, Article III of the U.S. Constitution limits federal courts to resolving “cases” and “controversies,” meaning “actual and concrete disputes [that] … have direct consequences on the parties involved.” According to the court, the key is that the plaintiff 22

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must have a “personal stake” in the outcome of the suit. In particular, the plaintiff must establish that it suffered a concrete, particularized, and actual or imminent injury caused by the defendant that could be redressed by judicial relief. In the suit against DNP, MillerKing claimed to have injuries resulting from a “direct diversion of clients from [itself] to DNP” and “a lessening of the goodwill associated with [the firm] and [its] goods and services.” It further claimed that allowing DNP to practice law without the requisite experience, competence, and licensure would harm citizens in need of legal services, and also infringe the rights of law firms that employ licensed attorneys. The court found these arguments unpersuasive. It said that MillerKing “has not alleged any lost revenue or added expenditures as a result of DNP’s conduct, nor has it alleged that any client or prospective client has withheld business, has considered withholding business, or has even heard of DNP.” Further, the court found that MillerKing “has not presented facts to support its claim that DNP has hurt its reputation or lessened its goodwill.” While MillerKing claimed that DNP had provided poor customer service and caused adverse legal consequences for its customers, it didn’t show that such failures “were imputed to MillerKing specifically or lawyers generally.” The court dismissed the suit against DNP without prejudice, giving MillerKing an opportunity to amend its pleadings and try again. Regardless of how MillerKing chooses to proceed, the case has significant implications for the legal and tech industries: 1. Regulatory Challenges. It highlights the need for regulations regarding AI in legal services, particularly with respect to consumer protection, ethical standards and the unauthorized practice of law. 2. Competitive Landscape. Law firms must consider the growing competition from tech-driven legal service providers and the need to adapt to a changing marketplace. 3. Technological Innovation and Legal Ethics. Balancing technological innovation with the ethical practice of law is a critical challenge, and this case serves as a reminder of the balance between embracing new technologies and adhering to the established legal framework. As AI continues to advance, the legal community must grapple with these emerging challenges, ensuring that innovation does not outpace the ethical and legal standards that define the profession and protect consumers. n Jon Jekel is a Senior Associate at Pillsbury Winthrop Shaw Pittman LLP. Jon advises artists, inventors, startups and Fortune 500 companies on intellectual property matters, with a particular emphasis on copyrights and trademarks. Learn more at www.pillsburylaw.com.

Six Success Strategies to Encourage Lawyer Engagement with CRM Systems by Chris Fritsch

In today’s legal landscape, marked by rapid change and high demands on time, the integration and effective use of Customer Relationship Management (CRM) systems is not just a technological upgrade but a critical pivot towards operational excellence and client service enhancement. Overcoming the inherent resistance to change in legal environments is essential, as the successful adoption of CRM systems directly correlates to a law firm’s efficiency, client relationship management and ultimately, its competitive edge. Embracing a strategic approach that prioritizes value, simplicity and efficiency is key to unlocking the potential of CRM systems. This approach can transform them from mere administrative tools to indispensable assets for business development and client engagement. Here, we outline six pivotal strategies to facilitate this transformation and elevate CRM adoption among attorneys, ensuring that your firm not only keeps pace with the industry’s evolution but leads it.

 Streamline Sharing of Appointments and Activities Strategy: Select a CRM system that facilitates easy sharing of appointments and activities, allowing marketing teams to provide proactive support. Implementation: Implement features where marketing professionals can access attorneys’ schedules to prepare strategic materials and insights for upcoming client or prospect meetings.

 Ensure Data Integrity Strategy: Maintain accurate and up-to-date CRM data to ensure reliability. Implementation: Establish a regular data cleaning process, which can be outsourced if necessary, to maintain the CRM’s integrity and usefulness.

 Communicate the Direct Benefits

 Redefine CRM Success

Strategy: Explicitly explain how the CRM system benefits the individual lawyers, not just the organization.

Strategy: Shift away from traditional models that heavily rely on attorneys for data entry.

Implementation: Conduct workshops or one-on-one sessions demonstrating how CRM usage can streamline their marketing and business development efforts, ultimately leading to personal success and client satisfaction.

Implementation: Adopt newer CRM approaches where the bulk of data entry and management is handled by support staff or automated systems, reducing the burden on attorneys and focusing their involvement on strategic input and relationship management.

 Simplify and Personalize the User Experience Strategy: Opt for CRM systems with user-friendly interfaces and customizable dashboards that align with the daily needs of lawyers. Implementation: Choose CRMs that can integrate seamlessly with other systems lawyers use daily, like billing and document management, to create a centralized, efficient workspace.

 Demonstrate Ease of Accessing Valuable Insights Strategy: Show lawyers how they can independently derive valuable insights from CRM data with minimal effort. Implementation: Regularly schedule sessions with marketing professionals to assist lawyers in updating and extracting relevant contact information and insights from the CRM. 24

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Conclusion: A Value-Driven Approach The cornerstone of successful CRM adoption lies in the “value exchange.” By making it straightforward for attorneys to contribute and extract value from the CRM, law firms can foster a culture of active participation. While the journey to full CRM adoption is gradual, the investment in these modern strategies is crucial for long-term benefits, enhancing both the efficiency of lawyers and the overall success of the firm. As a CRM Success and Business Development Technology Consultant, Chris Fritsch works with leading professional services firms across the country to help them select and implement the right CRM and eMarketing solutions to support their marketing and business development efforts and maximize value and return on investment. Learn more at clientsfirstconsulting.com.

California Case Summaries New California Civil Cases by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries (one paragraph), organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on either a monthly, quarterly or annual basis. Monty also offers specialized practice area annual summaries in the areas of Employment, Family Law, Real Property and Torts. For more information go to https://cacasesummaries.com. A California civil trial lawyer since 1980, a member of ABOTA since 1995, a past president of the SDCBA and San Diego ABOTA, and also an expert Zoom user, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases throughout California in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. Website: adrservices.com/neutrals/mcintyre-monty/. To schedule a matter, contact Monty’s case manager Haward Cho, (619) 233-1323 or haward@adrservices.com.

CALIFORNIA COURTS OF APPEAL Arbitration Folke v. Pulliam (2023) _ Cal.App.5th Supp. _ , 2023 WL 7179443: The Court of Appeal reversed the trial court’s order denying plaintiff’s petition to vacate the arbitration award— the award provided that defendant was entitled to recover all fees paid to plaintiff—in an attorney fee dispute under the Mandatory Fee Arbitration Act (MFAA; Bus. & Prof. Code, 6200 et seq.) The trial court denied the petition, concluding it lacked jurisdiction because plaintiff had not timely served the petition to vacate within 100 days of service of the arbitration award as required by Code of Civil Procedure, section 1288.2. The Appellate Department disagreed, concluding that under Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, the failure to timely serve the petition to vacate was not jurisdictional, and plaintiff’s request for equitable relief should have been considered by the trial court. Plaintiff requested equitable relief from the untimely service of his petition based upon multiple and unsuccessful attempts of service, and also based on defendant having had actual notice of the action as evidenced by her opposition to the petition. The case was remanded to the trial court for it to take evidence and assess the three factors for equitable tolling of a statute of limitations: (1) timely notice to the opposing party, (2) lack of prejudice to the opposing party, and (3) reasonable and good faith conduct by the moving party. (Appellate Division of the Los Angeles Superior Court, October 6, 2023.)

Attorney Fees Zarate v. McDaniel (2023) _ Cal.App.5th _ , 2023 WL 8182862: The Court of Appeal reversed the trial court’s order 26

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awarding plaintiffs $13,000 in attorney fees and costs after it concluded that defendant’s anti-SLAPP motion to strike plaintiffs’ complaint was frivolous. The Court of Appeal, however, reversed the attorney fee award because plaintiffs did not comply with Code of Civil Procedure section 128.5(f)’s safe harbor provision which required them to serve their sanction motion on defendant before it was filed with the court, and give defendant 21 days to correct or withdraw the challenged antiSLAPP motion. Plaintiffs did not do this. Instead they waited to file their sanctions motion until after the court had denied the anti-SLAPP motion. Under these facts, Plaintiffs were not entitled to attorney fees and the trial court was directed to deny plaintiffs’ request for attorney fees and costs. (C.A. 2nd, November 27, 2023.) Snoeck v. Exak Time Innovations (2023) _ Cal.App.5th _ , 2023 WL 7014096: The Court of Appeal affirmed the trial court’s order awarding plaintiff $686,795.62 in attorney fees after plaintiff obtained a verdict, following a jury trial, of $130,088 in his disability discrimination action. Plaintiff requested an award of $2,089,272.50 in attorney fees. The trial court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation to account for plaintiff’s counsel’s lack of civility throughout the entire course of the litigation, awarding fees totaling $686,795.62. The Court of Appeal held that a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees, and may apply, in its discretion, a positive or negative multiplier to adjust the lodestar calculation (a reasonable rate times a reasonable number of hours) to account for various factors including attorney skill. The record in this case amply supported the trial court’s finding that plaintiff’s counsel was repeatedly, and apparently intentionally, uncivil to defense counsel, and to the

court, throughout the litigation. (C.A. 2nd, filed October 2, 2023, published October 25, 2023.)

Civil Procedure Vargas v. Gallizzi (2023) _ Cal.App.5th _ , 2023 WL 6781376: The Court of Appeal affirmed in part, and reversed in part, the trial court’s post-trial orders, following a jury trial in a personal injury case where the jury awarded plaintiffs $15,125 in damages. The trial court denied plaintiffs’ request for $350,000 in attorney fees and costs pursuant to Code of Civil Procedure section 2033.420 based on defendant’s failure to admit requests for admission regarding the medical records, a timeline of treatment, and causation, and awarded defendant $28,547.66 in costs pursuant to Code of Civil Procedure section 998. The Court of Appeal disagreed, concluding that the trial court erred by denying plaintiffs’ motion for expenses pursuant to section 2033.420. Code of Civil Procedure section 2033.420(a), provides expenses shall be awarded if the party requesting the admission “thereafter proves the genuineness of that document or the truth of that matter” and the statute contains no requirement the proof be made at trial. During a pretrial hearing the trial court ruled the medical records would be considered business records and plaintiffs therefore proved the matter. The trial court erred by finding plaintiffs were precluded from receiving cost-of-proof expenses because defendant, after the pre-trial ruling, had not disputed the medical records’ status as business records at trial. Having found plaintiffs proved the medical records were business records, section 2033.420 required expenses be awarded unless one of the exceptions was established. The Court of Appeal concluded that none were. Although plaintiffs’ counsel had failed to establish the medical records were business records in a prior trial, defendant had no reasonably held good faith belief she could prevail on the merits of the business records issue. The Court of Appeal affirmed the trial court’s award of costs to defendant section 998. The case was remanded for the trial court to determine the amount to which plaintiffs were entitled for proving the medical records were business records. (C.A. 2nd, October 13, 2023.)

Employment Arce v. The Ensign Group, Inc. (2023) _ Cal.App.5th _ , 2023 WL 6890702: The Court of Appeal reversed the trial court’s order granting defendants’ motion for summary judgment in plaintiff’s action under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The trial court granted summary judgment concluding that plaintiff had not offered any competent proof that one or more cognizable Labor Code violations occurred during her employment in connection with her right to meal and rest periods. The Court of Appeal disagreed, holding that the trial court erred in granting summary judgment because defendants did not meet their initial burden of establishing plaintiff’s lack of standing. It was not enough for defendants to show that plaintiff had not been denied a meal or rest break during the

year before she submitted her PAGA notice. They also needed to establish that plaintiff had been paid all outstanding meal and rest premiums—either before or after her termination. Defendants needed to provide evidence that either (1) plaintiff had never suffered a Labor Code violation, and thus, no premiums were due upon her termination, or (2) they paid all premiums at the time of the violations, so no additional monies were due plaintiff upon her termination. (C.A. 2nd, filed September 19, 2023, published October 19, 2023.)

Landlord – Tenant Castaic Studios v. Wonderland Studios (2023) _ Cal.App.5th _ , 2023 WL 7592532: The Court of Appeal affirmed the trial court’s order sustaining defendant’s demurrer, without leave to amend, to plaintiff’s unlawful detainer action. Plaintiff and defendant entered into an agreement where plaintiff granted defendant the “exclusive right to use” certain areas of its commercial property. The agreement specified that it was a “license agreement,” as opposed to a lease, with plaintiff retaining legal possession and control of the premises. The agreement was to be governed by the contract laws and not by the landlord tenant laws. After defendant defaulted, plaintiff filed an unlawful detainer action seeking possession of the property. The trial court properly sustained defendant’s demurrer without leave to amend because plaintiff had waived its right to pursue the remedy of unlawful detainer. (C.A. 2nd, November 15, 2023.)

Torts Brancati v. Cachuma Village, LLC (2023) _ Cal.App.5th _ , 2023 WL 6803375: The Court of Appeal reversed the trial court’s order granting defendant’s motion in limine to disqualify plaintiff’s medical expert in her action for personal injuries due to toxic mold exposure. The trial court granted defendant’s motion, concluding that plaintiff’s medical expert was not qualified to testify on whether toxic mold exposure was the medical causation of plaintiff’s illnesses. The Court of Appeal disagreed. Because the medical expert was qualified and his opinion was based on facts and a differential diagnosis, the trial court erred in excluding his expert opinion testimony. (C.A. 2nd, October 16, 2023.) Jones v. Regents of the University of California (2023) _ Cal. App.5th _ , 2023 WL 8229170: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s action for personal injuries. Plaintiffs sued defendant after plaintiff Rose Jones (Rose), an employee of defendant, was injured while riding her bike on University grounds on her way home from work. The trial court properly granted the motion for summary judgment. Rose’s exclusive remedy was workers’ compensation because the “premises line” rule extended her course of employment until she left the University’s premises. (C.A. 4th, filed October 31, 2023, published November 28, 2023.) n Attorney Journals San Diego | Volume 243, 2024

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