Attorney Journal, San Diego, Volume 155 by Attorney Journals

SAN DIEGO

Volume 155, 2016 • $6.95

Nonverbal Communication

Jeff Wolf

The Busy Lawyer’s Online Marketing Update

Consultwebs

What’s Hot and What’s Not in the Legal Profession

Bob Denney

Your Law Firm’s Online Reviews

Eric Welke

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre

Attorney of the Month

Tony Dunne,

A Cut Above

Dunne & Dunne

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TABLE OF CONTENTS 6 McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre

8 What’s Hot and What’s Not in the Legal Profession

by Bob Denney

12 COMMUNITYnews

EXECUTIVE PUBLISHER Brian Topor

EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners

by Jennifer Hadley

CIRCULATION Angela Watson

22 Your Law Firm’s Online Reviews

PHOTOGRAPHY Chris Griffiths

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Bob Denney Monty A. McIntyre Jeff Wolf Eric Welke Consultwebs WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us

ATTORNEY OF THE MONTH

16 Tony Dunne Dunne & Dunne A Cut Above

by Eric Welke

24 The Busy Lawyer’s Online Marketing Update by Consultwebs

28 Nonverbal Communication by Jeff Wolf

SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

28 Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal. Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2016 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size. We recently settled a significant case in Nevada after two days of mediation. Rick was masterful in dealing with the retired judge mediator, the defense team, and our clients, and he maximized the recovery. Whenever I need anything in Nevada, the Richard Harris Law Firm is there for me.” ~ C. Michael Alder, Esq., Alder Law

CAALA Past President and Trial Lawyer of the Year 2004 Los Angeles, California

“I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick’s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client’s sizable recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick’s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case.” ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010 San Francisco, California

McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq.

Monty A. McIntyre has over 30 years of experience as a mediator and arbitrator. More than 35 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at 619-233-1323 or kelsey@adrservices.org

UNITED STATES SUPREME COURT Employment (Title VII Discrimination) Green v. Brennan _ U.S. _ (2016), 2016 WL 2945236: The United States Supreme Court vacated the judgment of the Tenth Circuit Court of Appeals and remanded for further proceedings. When an employee resigns in the face of intolerable discrimination and claims they have been constructively discharged, under Title VII, the matter alleged to be discriminatory includes the employee’s resignation, and the 45-day clock for a constructive discharge begins running only after the employee resigns. (May 23, 2016.)

CALIFORNIA SUPREME COURT Torts (Asbestos) Webb v. Special Electric Company, Inc. (2016) _ Cal.4th _ , 2016 WL 2956882: The California Supreme Court affirmed the Court of Appeal’s ruling reversing the trial court’s entry of a judgment notwithstanding the verdict in an asbestos case because substantial evidence demonstrated that defendant breached a duty to warn Johns-Manville Corporation (Johns-Manville) and foreseeable downstream users like plaintiff about the risks of asbestos exposure. The California Supreme Court formally adopted the sophisticated intermediary doctrine as expressed in the Restatement Second of Torts. Under this rule, a supplier may discharge its duty to warn end users about known or knowable risks in the use of its product if it: (1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product. Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings. Defendant forfeited the sophisticated intermediary defense by not presenting it to the jury. Although the record clearly showed Johns-Manville was aware of the risks of asbestos in general, no 6

Attorney Journal San Diego | Volume 155, 2016

evidence established it knew about extreme risks posed by the crocidolite asbestos supplied by defendant. Moreover, the record was devoid of evidence that defendant actually and reasonably relied on Johns-Manville to warn end users like plaintiff about the dangers of asbestos. (May 23, 2016.)

CALIFORNIA COURTS OF APPEAL Arbitration Baxter v. Bock (2016) _ Cal.App.4th _ , 2016 WL 2995535: The Court of Appeal affirmed the trial court’s by order confirming an Guy Loranger arbitration award in a fee dispute case, but vacated and remanded the portion of the order awarding attorney fees to defendants for the confirmation hearing. The arbitrator in this case was not required to make a disclosure regarding his consulting practice, and plaintiff failed to prove his claim that the arbitrator was biased against attorneys. The Court of Appeal, however, found no reasonable basis for the difference in compensation assigned by the trial court to defendants’ two attorneys who had similar experience and qualifications. The Court of Appeal vacated that portion of the attorney fee order and remanded for the trial court either to assign the two attorneys the same rate of compensation or to articulate a reasonable basis for any difference. (C.A. 1st, filed May 18, 2016, published May 24, 2016.) Rice v. Downs (2016) _ Cal.App.4th _ , 2016 WL 3085995: The Court of Appeal reversed the trial court’s order compelling arbitration of tort claims by plaintiff against defendant, his former attorney. While the parties consented to jurisdiction in state and federal courts sitting in California for “any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement,” they agreed to arbitrate only “any controversy between the parties arising out of this Agreement.” Viewing these adjacent provisions together, the Court of Appeal ruled that the parties intended to arbitrate only a limited range of claims, i.e., those arising out of the agreement, while litigating a much broader range of claims, i.e., any claim arising out of, under, or in connection with the agreement or transactions contemplated by the agreement. The Court of Appeal reversed the judgment confirming the arbitration award

with respect to the claims of legal malpractice, breach of fiduciary duty, and rescission. (C.A. 2nd, June 1, 2016.)

Civil Procedure (Anti-SLAPP, Costs, Joinder, Statue of Limitations) Aghaji v. Bank of America, N.A. (2016) _ Cal.App.4th _ , 2016 WL 3085551: The Court of Appeal affirmed the trial court’s order sustaining demurrers, without leave to amend, to the omnibus third amended complaint. 222 plaintiffs filed 22 related mass actions against various financial institutions and mortgage loan servicers. Plaintiffs are homeowners from all over the country. Each mass action involves numerous plaintiffs whose loans originated with and/or were serviced by a single defendant or related affiliates. The defendants in the lead case were Bank of America, N.A. and several of its subsidiaries or divisions and affiliates or agents. Plaintiffs challenged only the trial court’s denial of their request for leave to amend their unfair business practices cause of action to add factual allegations to support an entirely different theory than was suggested in the complaint. Plaintiffs failed to show that their proposed additional facts were sufficient to state an unfair competition law claim. Moreover, even if their proposed additional facts were sufficient, plaintiffs clearly demonstrated that the claim could not be prosecuted as a mass action because the 222 plaintiffs’ claims do not arise out of the same transaction or occurrence as required by Code of Civil Procedure section 378. (C.A. 2nd, May 31, 2016.) Charton v. Harkey (2016) _ Cal.App.4th _ , 2016 WL 2994747: The Court of Appeal affirmed the trial court’s finding that one defendant was entitled to costs, but reversed its decision to reduce that defendant’s cost award by 75% because she was one of several jointly-defended parties. The Court of Appeal concluded that, when the Legislature revised Code of Civil Procedure section 1032 in 1986, it intended to eliminate the unity of interest exception as a basis for denying a prevailing party the right to recover costs. Under section 1033.5, when less than all of a group of jointly represented parties prevail, the trial court must apportion the costs among the jointly represented parties based on the reason for incurring each cost and whether the cost was reasonably necessary to the conduct of the litigation on behalf of the prevailing parties. The court may not make an across-the-board reduction based on the number of jointly represented parties because doing so fails to consider the reason for incurring the costs and whether they were reasonably necessary for the prevailing party. (C.A.4th, May 24, 2016.) Doe v. Roman Catholic Archbishop of Los Angeles (2016) _ Cal. App.4th _ , 2016 WL 3034674: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, but remanded the case to give plaintiffs the opportunity to amend the complaint. The trial court properly found that plaintiffs’ claims for childhood sexual abuse by a priest had expired before their lawsuit was filed, the claims were not tolled under Insurance Code section 11583 by gifts the priest gave to plaintiffs, and the claims were not revived by legislative changes made over the years to the statute of limitations. Because the complaint alleged when the payments

by the priest started but was silent as to when they stopped, the Court of Appeal remanded to allow plaintiffs an opportunity to amend the complaint to allege tolling under section 11583. (C.A. 2nd, May 26, 2016.) Rand Resources, LLC v. City of Carson (2016) _ Cal.App.4th _ , 2016 WL 3085525: The Court of Appeal reversed the trial court’s order granting an anti-SLAPP motion to strike. Plaintiff, formerly the defendant’s exclusive agent sued for breach of, and interference with, the agency contract and related causes of action. The Court of Appeal concluded that the trial court erred because defendants’ actions did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute. (C.A. 2nd, May 31, 2016.)

Employment Seibert v. City of San Jose (2016) _ Cal.App.4th _ , 2016 WL 3085205: The Court of Appeal reversed the trial court’s order granting a writ of administrative mandamus to set aside a decision by the Civil Service Commission of the City of San Jose (Commission) denying plaintiff’s appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The Court of Appeal ruled that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient’s age (16 years old), could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that plaintiff lacked actual or constructive knowledge of the recipient’s age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. (C.A. 6th, May 31, 2016.)

Torts (Assumption of Risk, Molestation) Bertsch v. Mammoth Community Water District (2016) _ Cal. App.4th: The Court of Appeal affirmed the trial court’s summary judgment for defendant in a wrongful death action. Decedent tragically lost his life while skateboarding with his brother in the resort town of Mammoth Lakes. The two were traveling downhill at a “pretty fast” speed, without helmets, when the front wheels of decedent’s skateboard hit a small gap between the paved road and a cement collar surrounding a manhole cover, stopping the wheels and ejecting him from the board. The impact of decedent’s skull with the pavement resulted in a traumatic brain injury and ultimately death. The trial court properly granted summary judgment based on the doctrine of primary assumption of risk. (C.A. 3rd, June 1, 2016.) n

Attorney Journal San Diego | Volume 155, 2016

What’s Hot and What’s Not in the Legal Profession by Bob Denney Bob Denney is a recognized authority on strategy, management and leadership for law firms and companies. He serves as an outside Director on company boards and has also served as an interim CEO in turnaround and crisis situations. For further information visit our website at www.robertdenney.com.This article appeared in a recent edition of Of Counsel. It is reprinted with permission.

ike all our previous reports, this update is not based just on law firm surveys but also on information we are continually gathering from legal departments, other providers of legal services, the legal and business press and data compiled by various resources. We are not attempting to report on every development, many of which are obvious and widely recognized, but only on those that we believe are having, or will have, an impact on the profession.

it due to corporate relocations. Residential is still a mixed picture but is heating up outside some of these cities because millennials are starting to move out of the city to be closer to where they work.

• White Collar Crime. As we reported last December. Getting Hot

• Insurance Defense. Insurers increasing using law firms to handle major claims by business insureds.

Practice Areas

Mixed Reading

Red Hot

• Commercial Litigation. “Bet-the-company cases” continue

• Cybersecurity. No longer just in large firms. Mid-size firms

are recognizing its critical importance. There are some predictions that clients will administer security audits which some firms will fail.

• Regulatory. New Federal regulations are being published

almost daily. The FDA, FCC, SEC and the FAA lead the parade. However, unlike in much of the rest of the profession, there is an under-supply of experienced lawyers in this area.

• Government Relations. As TMG’s Steve Nelson reported

earlier this year, door-opening relationships are no longer enough. Effective lobbyists must be equipped with facts, data and technical expertise to convince members of Congress what’s best for the country and their constituents.

Hot

• Immigration. Will be Red Hot by the end of the summer

as politics continue to mix with the legal issues, while those flames are also fanning …

• Labor & Employment. As we reported last December. • Elder Law. Also as we reported at year-end, but still not widely recognized.

• Intellectual Property. While many of the large firms have

been recruiting laterals from IP firms, most of the surviving IP firms have continued to do well due to patent and continued trademark litigation.

• Real Estate & Construction. Commercial has become hot in the suburban areas outside some major cities, some of

Attorney Journal San Diego | Volume 155, 2016

to be Hot but the rest of litigation continues to be mixed. For the reasons we discussed last December we do not foresee any major change.

• Energy. Ranges from Hot to Cool regardless of the

geographic area. One reason is uncertainty about oil prices.

• Corporate. Ranges from Hot to Cool depending on the client mix.

• Environmental. The Climate Change Law may affect future efforts to regulate greenhouse gas emissions.

Industry Groups Hot

• Technology. Not just in law firms but all providers of legal services as well as, in many cases, their clients.

• Health Care. Including, as we reported last December, at

least 15 practice areas such as finance, regulatory, labor & employment.

• Financial Services. Will get Red Hot next year, regardless of who is the next President.

• Manufacturing & Distribution. • Aviation/Airlines. • Transportation other than airlines • 3D Printing. Still not widespread but continues to be

hot in firms such as Benesch, which has formed a multidisciplinary group comprised of members of its Innovations, Information Technology and IP Group.

Marketing & Business Development • Social Media. Continues to be hot. Also see “Other Trends & Issues.”

• Content Marketing. Which is what many law firms have

been doing for years—writing or speaking about the law and sharing its impact on clients. As we reported last December, it continues to be hot as syndicators like LinkedIn and JDSupra push content to other sites and services.

• Videos. Really another form of Content Marketing,

generally included in a firm’s web site. If done well, they can be very effective, as Steve Taylor discussed in the March issue of Of Counsel.

• AILFLN (the Association of International Law Firm

Networks). This new association “represents the common interests of global and regional law firm networks.”

• “Best Lawyers,” “Super Lawyers” etc. Lists. They continue to proliferate. We discussed them in our December report and we agree with Ross Fishman in his June 6 post on Attorney at Work: “Stop squandering precious marketing dollars on them.”

• “Affordable Lawyers” Lists. As with the above, these are also ads, mostly placed by personal injury and divorce lawyers.

Other Trends & Issues • Demand for Legal Services. This has failed to return to prerecession levels in over 60% of U.S. law firms according to Altman Weil’s recent Law Firms in Transition Survey. This has resulted in a surplus of lawyers and reduced profitability in many firms other than the largest. Furthermore 62% of the firm leaders surveyed believe this will be a permanent trend. We agree—but we also believe the total amount of legal services performed by all providers—law firms, non-legal service providers legal departments—will actually increase.

• Billing Rates. Despite the softness in demand, billing rates

at some of the largest firms continue to increase although the actual billings reflect discounts which are also increasing.

• Clients Have Become Competitors. The irony of the whole

situation is that, because many legal departments are now doing work that used to be handled by their law firms, many clients have really become competitors to the law firms seeking their business.

• Associate Salaries. Last week Cravath, immediately followed

by Milbank and Paul Weiss, raised associate salaries for the first time in nearly a decade. Expect more of the largest firms to follow suit before long but, due to the overall lackluster performance of the rest of the legal profession, don’t look for this to be the start of a trend.

• Municipalities are Hiring Outside Attorneys to Handle Civil-Rights Investigations. Chicago, New Orleans and

Baltimore are a few of the cities that felt their staff attorneys did not have the expertise or time to deal with certain matters, particularly DOJ probes and other complex civil rights investigations.

• Social Media. My Case blog has just reported cases and statistics where it has been used as evidence in court.

• Online Degree Program. Syracuse University College

of Law is drawing up plans to launch an online degree program. If granted ABA and state regulators approval, it would enroll students as early as January, 2018 and would be the second law school to get ABA approval for this, the other being Mitchell Hamline School of Law in Minnesota.

• Mergers Continue. While no definite figures are available as

of this writing, mergers continue to be hot. Most of these are really acquisitions which are a major part of the growth strategy of the acquiring firm and, in many cases, a survival strategy for the acquired firm.

• Origination Credit. Riley Safer Holmes Cancila, a new

45-lawyer firm in Chicago, two of whose partners were in management positions at Hardin, is eliminating origination credit and the requirement that associates bill 2,000 hours a year. Will this be the start of a trend, at least in smaller and mid-size firms? Only time will tell.

• No Seven Dwarfs but Now Seven Giants. Despite the

reduced demand for legal services, seven of the largest international firms have continued to grow, either through traditional mergers or formation of a Swiss verein, a structure we reported on in prior Communiques.

• Commercial Litigation Funding. Despite opposition within

the profession, it continues to increase. Originally it was only a means to enable firms to carry large cases. Now major investment companies and other sources are providing capital for other purposes including launching boutique start-ups. Opponents say this violates the ban on outside investors in law firms but the funders say it isn’t purchasing equity but is an alternative type of financing which is eventually paid back.

• Lateral Hiring. Continues in many firms even though the national retention rate continues to be only 50%.

• The Accountants are Coming Closer. We reported last

December that the Big Four accounting firms have been acquiring law firms in the countries that have authorized

multidisciplinary practices—Britain, Australia and Mexico. Now Deloitte announced in April that it had purchased Conduit Law, a Canadian firm that provides outsourced lawyers. However, Deloitte also stated that it “had no plans to enter into the legal market or to compete with law firms here in the U.S.” Perhaps the current state of the legal profession could be welldescribed by Thomas Paine: “These are the times that try men’s souls.” And women’s. n

Attorney Journal San Diego | Volume 155, 2016

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Attorney Journal San Diego | Volume 155, 2016

COMMUNITY news n Antoinette Middleton, founder of the Law Offices of Antoinette Middleton, recently announced the firm, which focuses on probate and estate planning, is celebrating its fifteenth anniversary. “Our success and longevity can be attributed to a dedicated team and a passion for educating seniors and families about the importance of making estate planning a priority,” said Middleton. Middleton is especially passionate about ANTOINETTE MIDDLETON reducing the number of seniors and dependent adults who become victims of elder and dependent adult financial abuse and reducing the number of families who lose their homes to Medi-Cal estate recovery. She views these two areas as serious threats to family security due to the nation’s rapidly aging population and the rise of Alzheimer’s. “Protection is best achieved by encouraging seniors and families to work with qualified and verified legal and financial professionals, and to start early. Our goal is to continue educating families on the importance of early estate planning to consist of an advanced healthcare directive, a will, durable power of attorney, and in many cases a living trust.” n Marking the fifth CaseyGerry partner to join the ranks of a national organization comprised of leading lawyers and judges, Thomas Penfield has been elected to the American Board of Trial Advocates (ABOTA). Membership to ABOTA – which is committed to the preservation and promotion of the civil jury trial – is by invitation only. A former member of the board of directors of the San Diego County Bar Association, Penfield THOMAS PENFIELD is also past president of the North San Diego County Bar Association, the past chair of the American Bar Association’s Task Force on Plaintiffs’ Policy of the Tort, Trial and Insurance Practice Section (TIPS) and former vice chair of the TIPS’ Trial Techniques Committee. He is featured in Best Lawyers in America – a revered annual peer ranking of the nation’s top attorneys and was named a Diplomate of Trial Advocacy by the American Association for Justice. Penfield concentrates his practice on personal injury, products liability and class actions. A past recipient of the Environmental Lawyer of the Year Award from the Sierra Club’s San Diego Chapter, he is a graduate of California Western School of Law (J.D. 1974).

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us

Attorney Journal San Diego | Volume 155, 2016

n Sanford Heisler, LLP, has announced the promotion of Charles Field, Esq., who is based in the firm’s San Diego office, to Partner and Chair of the firm’s Financial Services Litigation practice. CHARLES FIELD Field was General Counsel of Nicholas-Applegate Capital Management and its successor, Allianz Global Investors Capital, from 2002 to 2013. He has considerable private practice experience and a deep knowledge of investment law, which he uses to assess whether sellers have breached their legal obligations and whether an aggrieved investor can recover damages. Field also has considerable experience protecting elders from financial abuse and investors of all ages from stockbrokers, investment advisers and financial planners whose actions are not in investors’ best financial interests. Field is licensed to practice law in California, Indiana and the United States District Court for the Southern District of California. The McClellan Law Firm is pleased to announce that attorney Conor J. Hulburt has joined the firm. Hulburt has nearly a decade of experience representing individuals and businesses in cases CONOR J. HULBURT involving major personal injury, wrongful death, product defect, bad faith, and business disputes. He spent the first part of his career representing defendants, affording him an inside understanding of the insurance defense mindset. In 2015 and 2016, he was recognized by the San Diego Business Journal as the “Best of the Bar” in personal injury. Hulburt is a member of the San Diego County Bar Association Civil Litigation section leadership, and the founder of SDCBA WetSuits, a group of surfing lawyers. He volunteers with the San Diego Volunteer Lawyer Program, handling issues ranging from employment to property disputes.

n Hecht Solberg Robinson Goldberg & Bagley LLP (HechtSolberg) has named David M. Gao an associate with the firm, which provides counsel on all real estate matters, including business and finance transactions; land use, planning and entitlements; common interest developments; and litigation and DAVID M. GAO risk management. Gao, who was admitted to the State Bar of California in 2016, graduated from University of California, Los Angeles (UCLA) School of Law, where he was co-editor in chief of the UCLA Asian Pacific American Law Journal, which focuses on the legal, social and political issues affecting Asian Pacific American communities. He was an intern with the UCLA Athletics Compliance Department and an extern for Hon. Judge Roger Benitez, U.S. District Court, Southern District of California. He also volunteered with the El Centro Legal Asian Americans Advancing Justice Citizenship Clinic. Gao graduated with a bachelor’s degree in Literary Journalism from the University of California, Irvine, where he was editor in chief of the New University newspaper n Sullivan Hill Lewin Rez & Engel is pleased to announce that associate Elvira Cortez has been elected to the 2016-2017 Lawyers Club of San Diego Board of Directors. A member of Sullivan Hill’s construction, insurance, and litigation practice groups, Cortez practices primarily in the areas of construction and insurance ELVIRA CORTEZ litigation matters, with an emphasis on construction defect actions, construction claims and insurance coverage disputes. She was named to the San Diego Business Journal’s Best of the Bar list for 2016. Cortez earned her B.A from the University of California, Los Angeles in 2005 and her Juris Doctor from American University Washington College of Law in 2009. Founded in 1972, the Lawyers Club is a specialty bar association that works, through its many programs and events, to advance the status of women in the law and society. Membership is comprised of over 1,300 individuals including attorneys in both private and public sectors, judicial officers, the San Diego District Attorney, past presidents of the San Diego County Bar Association, community leaders, law school students, and other members of the legal community.

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A Cut Above Anthony Dunne & 619 DIVORCE Stay on Top of Emerging Fields of Family Law by Jennifer Hadley

“W

hen I was 15 years old I was asked by my guidance counselor what I wanted to do for a living. I answered: trial lawyer,” says Anthony (Tony) Dunne, Managing Partner and Trial Attorney at Dunne & Dunne, LLP, and 619 DIVORCE. Ten years later, at just twenty-five years old, Dunne was in his first jury trial, sitting first chair in an insurance defense case. He would go on to try dozens of other cases over the next decade, to marked success for his clients. So what then made the successful trial attorney relocate from Orange County to San Diego, and in doing so transition into family law? To hear Dunne tell it, he realized over time, that his trial experience and civil litigation background would be a critical asset for a family law firm, and its respective clients. But he wasn’t interested in hanging his hat with just any San Diego family law firm. James P. Dunne was no stranger to the San Diego legal community. An established family law attorney, he welcomed the opportunity to join forces with his son, who partnered up with him to learn the ropes of family law, all the while continuing to provide civil litigation services, and to assist in the firm’s family law cases that were clearly heading to trial. “My father is a Certified Family Law Specialist. That coupled with my civil background made us a formidable team,” Dunne says. Since that time, the father-son partnership has become synonymous with success in both garden variety divorces, and of late, in more unique cases. Indeed, the attorneys at Dunne & Dunne, LLP and 619 DIVORCE continue to carve out their niche as pioneers in newly emerging fields of family law, such as reproductive law in San Diego, Orange County, Los Angeles and Palm Springs.

Attorney Journal San Diego | Volume 155, 2016

Cutting His Teeth In Trial The reason for the firm’s enduring reputation for excellence is unquestionably rooted in the victories obtained for clients, many of which are won in trial by Dunne. The University of California, Irvine graduate earned his law degree with honors from Western State University School of Law, where he was awarded half a dozen American Jurisprudence Awards, began his legal career working for a variety of notable civil litigation firms. “I was with three different, large firms before opening my own. I wanted to make my own decisions so that I could own the results,” Dunne recalls. Thus, after being admitted to the Bar in 1990, Dunne would spend the first decade of his legal career doing just that in Orange County, before finding his interest becoming increasingly piqued by the possibility of practicing family law. “Civil litigation moves slowly. By contrast, family law moves quickly. Family law involves real people who need rules to live by every day. They need rules for spousal support, for child support, child sharing and many other day-to-day events. In addition, the dynamic of family law cases involves being able to help people, not necessarily businesses, to sort out disputes, and that feels good,” Dunne says. Going through his own divorce, after what he refers to as his “disastrous” first marriage, further reinforced to Dunne that an attorney with a tremendous amount of civil litigation and trial experience, could only be an asset to others who were going through their own divorce, or facing other incredibly complex family law matters. Thus he delved into the work more than 15 years ago, and continues to find the practice of family law to be stimulating thanks in part to the new challenges which consistently arise within the field. To that end, Dunne says that his decision to enter and become

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Attorney Journal San Diego | Volume 155, 2016

firmly entrenched in the practice of family law was a perfect fit for him. “There are a lot of attorneys who practice family law, who have no experience doing something else. We are trial lawyers that work together, firm wide, from the inception of the case to its conclusion. Each case requires a custom design and strategy, which is a product of our combined expertise, and close adherence to our clients’ desires. Executing that strategy maximizes our clients’ recovery, whether through trial or settlement.” By way of example, he says, “We deal with everything, from very simple divorces, to very complex cases, where there is a lot of money at stake, or one partner is self-employed, or there are very sophisticated asset structures in place. There are so many issues that can come up in a divorce. There are issues of cash flow, of property rights, of dividing up businesses, and determining separate and community property can be complicated.” Fortunately for his clients, however, Dunne is no stranger to complex litigation, nor does he have any reservation about going to trial. “My civil litigation background helps with the day-to-day requirements in family law. And it doesn’t hurt that I’m not afraid to try cases. Personally, I would prefer to go to trial, but obviously, we pursue other means to resolution, first.” Success in trial is standard for Dunne, who has had multiple cases in the Court of Appeal, such as, In Re Marriage of Buie and Neighbors (2009) 179 Cal.App.4th 1170, wherein Dunne successfully appealed the trial court’s decision in favor of his client.

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Attorney Journal San Diego | Volume 155, 2016

Carving A Place At The Top Of Emerging Areas Although all family law cases inherently involve a lot of moving parts, Dunne says that the practice area still continues to expand, allowing him to continue broadening his horizons, as new laws continue to be passed. For his part, Dunne welcomes the challenges. In particular, he and his colleagues continue to take on cases that are still fairly rare, though becoming more common. “Reproductive law is on the rise, including medical assistance to couples, and surrogacy issues with both heterosexual and same sex marriages and partnerships,” Dunne says. For example, he notes that medical assistance to couples such as through IVF, can present unique challenges when things go south between spouses. “Couples have found themselves fighting over frozen eggs, or embryos, which causes contract law and public policy to intersect,” Dunne says. However, Dunne admits that he finds these types of cases fascinating. “The way law has changed over the past fifteen years has really been interesting, and I like being a part of it,” he adds. Likewise, issues of surrogacy can lead to challenging legal dilemmas. In these cases, Dunne says that these disputes can be made even more complex, as a third party is often caught in the midst of a dispute. “There are issues that do arise with the person who is carrying the baby, or in cases for example, when maybe it is the surrogate’s egg, but the sperm is from the biological father.” Dunne has also dealt with issues concerning the date of implantation, and cases wherein one party changes their mind.

Continuing he adds, “Attorneys referring clients to Dunne & Dunne and/or 619 DIVORCE are assured that their referral will receive a customized approach and strategy for their unique case. Too much ‘kneejerk’ type of case handling occurs in family law. We do not perform any work that the client isn’t completely on board with, and consequently, feels invested in,” he says. Dunne acknowledges that it also doesn’t hurt that Dunne & Dunne LLP and 619 DIVORCE pay generous referral fees to fellow attorneys. The rest of Dunne’s caseload comes from referrals from past and present clients, who are often pleased to find that he is still willing to accept occasional civil litigation cases. “I am not actively looking for those cases, but if a former or present client has a civil matter that I can help with, I am willing to take some of those on. I want to be able to help my clients however I can,” he explains.

Other challenges develop when multiple children are conceived through surrogacy and/or IVF. “This becomes very complex litigation because there are several factors all at play, pertaining to contract law, family law, and public policy.” In addition, the legalization of same sex marriage has resulted in additional new challenges, as often times same-sex couples have been raising children together for many years, yet they weren’t legally married when the child was born. Dunne has seen disputes between biological and non-biological parents in both marital and non-marital situations. “When people begin to fight over biological rights, the cases become very convoluted,” he explains. Finally, Dunne says that family disputes involving a transgender spouse tend to be increasingly multifaceted. Still, even in the most challenging of scenarios, Dunne is eager to work through the various components with clients. “There are brand new laws going into effect. There aren’t a lot of attorneys handling these types of cases yet, but we welcome them,” he says. These types of complex family law cases, along with others, that are clearly heading to trial, often land on Dunne’s desk as the direct referral from a fellow colleague. “We do receive attorney referrals, particularly if the case is going to have to be tried, because I’m known for enjoying trial,” he says.

Attorney Journal San Diego | Volume 155, 2016

Staying Sharp, By Staying The Course As far as the future is concerned for Dunne & Dunne LLP and 619 DIVORCE, Dunne says that he plans to remain at the forefront of emerging sub-fields in family law, and plans to serve the San Diego legal community and beyond “until I’m 120,” he says with a laugh. Since there tends to be a bit of truth in every jest, Dunne is teasing but explains that together with his wife, he has four children ranging in age from 1-22, and they plan to have two more children, through IVF in the near future. “We each had children when we got married, and we have had children together, and we are planning to have more. Having kids is enjoyable, when you’re in a good relationship. It’s fun, and raising children is very natural for us,” he says with a smile. “It’s just the way we are. My family is my passion. If I’m not working, I’m with my wife and children.” n Contact Anthony Dunne Dunne & Dunne, LLP 701 B Street, Suite 955 San Diego, CA 92101 619-232-9260 www.DunneFamilyLaw.com www.619Divorce.com mail@dunnefamilylaw.com

Your Law Firm’s Online Reviews by Eric Welke Eric Welke is a Marketing Consultant as ConsultWebs.com, where his role is to create, implement and manage digital marketing solutions for our law firm clients, with a focus on business growth and sustainability.

“S

oftware is eating the world.” What an interesting quote to contemplate. What do you imagine when reading this quote? Marc Andreessen certainly provides a brilliant description and vivid imagery of the modern business landscape in this quote. As the inventor of the Web browser, co-founder of Netscape, and co-founder of the venture capital firm, Andreessen Horowitz, Andreessen offers a unique insight in these five little words that few others have. The reality in today’s world is that most attorneys spend much of their time on a computer, tablet, or smartphone—and so do their potential clients. Technology is literally taking over lives as we become more dependent on it. The majority of the public now uses software when searching for legal representation. The rise of powerhouse sites like Avvo, FindLaw, and Lawyers.com is a testament to this. Of course, you may hear a radio ad, see a TV commercial, or even hear about a law firm through wordof-mouth—but, most people want to verify what they’ve heard in ads or referrals, and they turn to Google. What reputation does your law firm have on Google? Google your law firm name and see what the search results say about your firm’s reputation. Is it five stars? Three stars? One star? Do you even have any reviews? It is those little star ratings that will weigh heavily in the mind of your potential clients when they are making their decision about representation. According to one recent study, 88% of consumers use online reviews to determine whether a local business is good. Which means, the presence (or absence) of those five stars can make (or break) much of your business. Below we will explore four easy steps your law firm can use to better manage its online reviews. Please remember to ensure that all activities that you engage in related to reviews or marketing fall in compliance with applicable Bar regulations and guidelines.

Step 1: Get Listed! The first thing that must be done—get your law firm listed! The reality is there are hundreds, maybe thousands, of review sites, but probably less than 30 really matter to your practice.

Attorney Journal San Diego | Volume 155, 2016

These review sites can be separated into three categories:

1. The majors 2. Legal 3. Local Every law firm in the U.S. should be listed on the majors: • Google My Business

• Yelp • Facebook • YellowPages • Better Business Bureau • Citysearch • Yahoo! Local • Bing Local • DexKnows • Insider Pages • Judy’s Book • MerchantCircle • Foursquare • Manta Likewise, every law firm should also be listed on the most popular legal review sites: • Findlaw

• Avvo • Justia • Lawyers.com • Nolo • Martindale • LegalMatch • HG.org • SuperLawyers • LawyerCentral

Finally, each metro has its own local directories. Moz and BrightLocal have put together some good lists for you to use. Some of these local sites may not support reviews, but it’s still a good idea to get listed on them.

Step 2: Get Building! Build your online presence by keeping your firm’s website up-to-date, and your social media continually updated with fresh content. Social media platforms can be a good place to highlight your strengths, positive case results, and awards you have won. You can even share reviews or comments satisfied clients have left. Make sure your firm information like office hours, contact information, and Web address is listed accurately in online review sites and other platforms such as Google and Yelp. It is a good idea to connect your website via hyperlink on each platform so potential clients can easily go straight to your site.

Step 3: Get Marketing! People are not looking for the first law firm they see, they are looking for the best. While it used to be about being the best website and the first ranked in a Google search, having the Internet at our fingertips has changed things. In the old days, word of mouth or advertisements were the best way to get business. Now, when potential clients are looking for a law firm and receive a recommendation, they will most likely search sites for reviews. Even someone using a generic search term such as “law firms” will likely be influenced by the results with four or five stars in the review section. Potential clients are seeking reinforced perception of your firm when reading online reviews. The goal is to make sure your advertising efforts are consistent with your reviews and show that other clients are pleased with your work. Building positive reviews that display in search results is key in getting more business to walk through your door. As tempting as it may be, never pay for reviews! There are several reasons for this. First, it is unethical and illegal, especially if they are not actual clients. There have been lawsuits brought against businesses in the past for fake reviews, costing companies thousands of dollars. Also, never use incentives or anything that could be seen as a bribe in obtaining reviews. While actual cash may not flow from hand to pocket, the cash value does. If you offer coupons, free services, or discounts, you are simply bribing for a review and you are breaking the FTC’s and Google’s policies. Instead, you should kindly ask your clients to leave reviews for your firm. This should be a natural process and something the client wants to do based on the quality of representation they received from your firm, not through incentives. By providing a link either through email, social media and/or your website, you are making it simple for your clients to review your firm. When asking your clients for feedback, timing is critical. Ask clients to leave a review after their cases have ended

with positive results. Ask them to pull up your firm’s profile on their mobile device while in your office or send them an email with a link and ask them to leave a review. As you gain more positive reviews, remember to promote them. As your clients permit, you can post them to your Facebook page, tweet them from your Twitter account, or link to them from your website.

Step 4: Always Control the Narrative You should know what is being said about your law firm at all times—whether it is pleasant to hear or not. The best practice you can follow in managing online reviews is controlling the narrative. So how do you do this when others are posting reviews about your law firm for anyone on the Web to see? You should interact with all of the comments. When you receive a great review, thank the reviewer and respond with how much you enjoyed representing them or working with them. When a negative review is posted, you need to respond. Remember, potential clients are reading the reviews, which means they will also see your responses. Here are some important tips to remember when responding to unfavorable reviews: • Don’t let the outside world see you sweat or become angry.

• The client is almost always perceived as right on review sites, even when they are wrong.

• Always stay professional and positive. • Do not get defensive. Stay calm. • Correct facts, not opinions. • Own the issue if something did happen. • Share what has been done to avoid future problems. • Turn it around by highlighting your strengths. Potential clients won’t necessarily know any history or facts behind a bad review, so the biggest mistake you can make is acting defensive and upset. You need to remember to use empathy and thoughtfulness. Apologizing for a mistake or a miscommunication acknowledges something went wrong and lets potential clients see you care. Most people reading reviews of your law firm will not expect 100% positivity. We live in a world of imperfection, and clients don’t expect you to be perfect. People want to see your reaction to what others say about you, how you carry yourself, and if they feel heard by you. By responding to all reviewers in a thorough, meticulous way, you are able to control the narrative and show that you are willing to take that extra step for your clients. Reviews can become your worst enemy or your best friend. Make the choice to let them impact the way you manage your practice in a positive light. If you work diligently to improve and/or gain reviews, your practice has the potential to increase its online presence and caseload. n

Attorney Journal San Diego | Volume 155, 2016

THE BUSY LAWYER’S ONLINE MARKETING UPDATE by Consultwebs.com Staff

team of more than 50 search marketing experts shares the most important news that attorneys need to know about online marketing and web technology from the recent past.

for your firm? You now have the added opportunity to catch a potential client’s attention with more intriguing titles and informative descriptions. This information provided by Rachel Harmon @r_charmon

Snapchat Rises to 10 Billion Videos Viewed a Day

Links & Photos Will No Longer Count Against Twitter’s 140 Character Limit, Reports Say

We know you are busy so we did the reading for you. Our

Snapchat has reported that users are watching 10 billion videos a day, an increase from the previous 8 billion just two months ago. Law firms may not be considering Snapchat as a means of marketing currently, but with Snapchat’s added “stories” feature there may be a new avenue opening for law firm marketing. This feature allows videos to be viewed multiple times in a 24-hour window, creating a broader audience and more marketing opportunities. This information provided by Kristina Sandine @houseofsandine

Bloomberg reported that Twitter will soon stop counting photos and links as part of its 140 character limit, giving users more freedom for somewhat lengthier tweets. Newsweek ran an article with some additional information on the subject a couple of weeks later. These changes, according to the reports, are coming to Twitter users soon. Without needing to use up to 23 characters to include a link, what more will law firms be able to say to their Twitter followers? This information provided by Mike Zellmer @michaelzellmer

Google Gives Us Space in the Best Way Possible

New SERP Feature Announced: Rich Cards

Google recently increased the width of its main column of search engine results. While this impacts many parts of search engine results, one of the most notable is the increase in space for titles and descriptions from around 55 characters to 70 characters. Descriptions have also increased and are now 100 characters per line, however, the total characters count is around 150-160. What does this mean 24 Attorney Journal San Diego | Volume 155, 2016

At their yearly developer conference, Google reps went into more detail about the latest feature to Search – Rich Cards. Currently displayed only for recipe and movie search results, these cards are the latest addition to an ever-more-structured

(and visual) Google Search experience. This could mean a new opportunity for your firm to stand out. This information provided by Chase Billow @chasebillow

Savvy Attorneys Market Their Practices Online Attorneys continue shifting dollars away from traditional advertising (e.g., billboards, bus benches, television, etc.) and toward the Web. Consumers are looking more and more to the Internet for answers to their questions, including how, when, and which attorney to hire. This is especially true for civil litigation attorneys, such as personal injury, workers’ compensation and Social Security disability cases. This information provided by John Damron @consultwebs

Google AdWords Launches New Features for Mobile Ads and Maps Google has announced new tools and features to AdWords for mobile ads and maps. These include expanded description lines, responsive display ads to fit different devices and formats, more customized bidding options and pilot features for Google Maps which allow advertisers to introduce more information about their business. These latest offers from Google AdWords reinforce the need for your firm to understand the importance of mobile. “As consumers live their lives online and blur the lines between online and offline, it’s more important than ever to build business for mobile,” stated the Senior Vice President, Ads and Commerce. This information provided by Tina Catedrilla @consultwebs

Google Search Hits 2 Trillion a Year Google won’t confirm the exact number of searches it handles per year but a starting number of around 2 trillion was reported. That many searches breaks down to about 3.8 million searches a minute. It becomes more apparent every day how important it is for law firms to optimize their content, ensure they are mobilefriendly and stay up-to-date on how potential clients search for them. This information provided by Consultwebs Staff @consultwebs

Facebook Expands Ads to Reach Those Who Aren’t Facebook Users

potential clients who don’t have Facebook accounts, worry no more. Facebook recently announced that it is expanding its advertising reach to show ads to all people who visit websites and apps in its Audience Network, not just those who have Facebook accounts. Facebook was already factoring in users’ interests to serve them relevant ads, but this new move will put relevant ads in front of those without Facebook accounts, as well. Good news for law firms who are seeing a good return on Facebook marketing and want to reach a broader audience. This information provided by Corrie Benfield @copydesk

Sharp Decline in Facebook Engagement for Non-Video Content We are seeing a steep decline in content on Facebook that does not contain video. Even top publishers are seeing much less interaction. Mark Zuckerberg himself has stated his focus is on promoting Facebook live and other video content. With Zuckerberg influencing the masses and shifting focus to video, it may be time to step up the videos and live content your law firm publishes. This information provided by Consultwebs Staff @consultwebs

Google’s Next Mobile-Friendly Update Will Include PageSpeed Gary Illyes (the new Matt Cutts) gives insights about where Google is headed when he speaks at various conferences around the world. On June 1, in Sydney, Australia, he mentioned that PageSpeed would be a factor in the next mobile update. Have you tested your firm’s website PageSpeed lately? Access Google’s PageSpeed Insights Tool and see where your firm stands. This information provided by Eric Reiss @consultwebs n Article provided by Consultwebs.com staff of talented online marketing professionals who skillfully manage all aspects of a law firm’s web campaign. Consultwebs.com takes a holistic approach to effectively grow audience, increase engagement, and maximize effectiveness to help our clients get more cases from the web.

If you’ve been worried that your Facebook ads aren’t reaching Attorney Journal San Diego | Volume 155, 2016

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Nonverbal Communication Functions of Nonverbal Communication It’s vital to understand how we communicate, not just the meaning of the words we speak. As a leader or manager, you should explore how nonverbal communication serves many functions: Repetition. Gestures, such as nodding, serve to reinforce what’s being said. A nod of the head is, in fact, one of the most universal gestures, understood across many cultures as an agreement or understanding between two people. Substitution. Substitution involves replacing a spoken word with a nonverbal cue. You can nod your head without saying a word or wave your hand instead of saying good-bye. You haven’t uttered a word, yet you have communicated effectively. Complement. A smile or a pat on the back can complement words of enthusiasm or praise. Accenting. You may accent a particular word in a sentence, such as “I am very disappointed in you!” A strong tone of voice dramatizes the message. Misleading or Deceiving. Can you tell when an employee is lying? Detecting deception is usually based on nonverbal cues. Facial expressions, body movement, and tone of voice will often expose the truth versus lies in criminal investigations.

Improving Nonverbal Communication Workplace communication, whether verbal or nonverbal, drives all activity between you and others. So, how do you improve it as you listen to and speak with others? Step 1: Watch yourself...and others. When communicating, focus on the use of your body. The goal is to increase the expressive nature of your body, when appropriate, without being overdramatic. Be aware that gestures are often more useful with groups such as in meetings and presentations. If a person’s words fail to match their nonverbal cues, it’s best to trust the nonverbal messages. Listen with your eyes. In most cases, the nonverbal message is more accurate.

Attorney Journal San Diego | Volume 155, 2016

by Jeff Wolf

Step 2: Maintain eye contact. Eye contact is crucial when speaking with anyone, particularly coworkers, superiors, or direct reports. It promotes trust and understanding. Try to increase eye contact when speaking with others, and see if they’re making and maintaining eye contact with you. If someone avoids eye contact, you’ll likely sense the person’s discomfort or dishonesty. You can ease another’s discomfort by asking questions that enhance communication. Step 3: Work on your posture. Your mother emphasized the need to stand up straight and avoid slouching in your chair. As it turns out, Mom was giving you your first lesson in nonverbal communication. Posture is a nonverbal indicator of confidence level. A gesture conveys a message by using one part of the body, whereas a postural shift involves the movement of the body as a whole. A closed posture (folded arms and crossed legs) indicates a closed personality and a lack of confidence. Open posture (arms spread in a relaxed manner) is a much more confident pose. Posture should also be in sync with conversations so you avoid sending mixed messages. When you’re sitting behind your desk or at a meeting table, sit up straight. Don’t slump; it conveys disinterest and inattention. Leaning back, or rocking back and forth in your chair, tells others you’re bored. In contrast, leaning forward in your chair when listening to someone speak demonstrates active interest in both the person and conversations. Step 4: Straighten your desk. A sloppy desk or office sends the message that you’re disorganized and careless. Messy desks may be a symptom of a larger problem such as inefficiency, which stems from an inability to find files or other important papers. Disorganization creates stress and limits productivity. Instead of creating vertical piles on your desk, rely on to-do files that can be stored inside a drawer. Step 5: Read your audience. If you’re making a presentation, be aware of your audience’s nonverbal communication. As your presentation progresses, watch for signs of slouching, yawning, or dozing off; this means you’ve lost their attention. If, on the other hand, the group is energized and interested, participants’ body language may convey that they want you to ask for their

thoughts and input. Learning to read a group’s mood enhances your abilities as both a speaker and manager. Step 6: Listen to your voice. Paralanguage, or paralinguistics, involves the various fluctuations in one’s voice, such as tone, pitch, rhythm, inflections, and volume. These cues can have a powerful effect on communication. A loud or very forceful tone, for example, may convey a stronger and more serious message, as compared to softer tones. Sarcasm can also cause problems in the workplace. A manager’s sarcastic tone creates stress because their tone (joking) is meant to contradict their words (hurtful or biting). Step 7: Question yourself. Throughout the day, monitor your progress. Ask yourself the following questions about your performance: How was I perceived at the meeting? Could I have done something differently? Were people really interested and paying attention to what I was saying? Did I listen well to others? As you answer these questions, your self-awareness will increase. n Jeff Wolf is one of America’s foremost executive business coaches, speakers and management consultants. Prestigious Leadership Excellence Magazine named him one of the Top 100 Thought Leaders for his accomplishments in leadership development, managerial effectiveness and organizational productivity. His strategic focus on solving corporate and human issues has BSVAD_MARC_FINAL_new2.pdf 1 1/5/15 3:26 PM garnered continuing raves from myriad global organizations.

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Attorney Journal San Diego | Volume 155, 2016

Attorney Journal San Diego | Volume 154, 2016

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