Attorney Journal, San Diego, Volume 153 by Attorney Journals

SAN DIEGO

Volume 153, 2016 • $6.95

Demurring, Conferring and Amending—Everything Changed in 2016

Alena Shamos

Understanding and Preventing Mental Health Issues for Legal Professionals

Defining “Must Do”

Mike O’Horo

James Eischen

How to Move Forward with Good Plans… Instead of Waiting for Perfection

Paula Black

To Develop Business, Just Remember One Word

Bob Denney

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre

PROFESSIONAL PROFILE OF THE MONTH

Malcolm Roberts of Landay Roberts, LLP

Attorney of the Month

Samantha Greene Sevens Legal, APC, San Diego Securing a Strong Finish

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2016 EDITION—NO.153

TABLE OF CONTENTS 6 How to Move Forward with Good Plans… Instead of Waiting for Perfection by Paula Black

8 Demurring, Conferring and Amending—Everything Changed in 2016

by Alena Shamos

12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price

14 Understanding and Preventing Mental Health Issues for the Legal Professional by James Eischen

16 Samantha Greene Sevens Legal, APC, San Diego Securing a Strong Finish

CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson

by Jennifer Hadley

PHOTOGRAPHY Chris Griffiths

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Alena Shamos Bob Denney James Eischen Mike O’Horo Paula Black Monty A. McIntyre WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us 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.

ATTORNEY OF THE MONTH

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

25 To Develop Business, Just Remember One Word by Bob Denney

PROFESSIONAL PROFILE OF THE MONTH

26 Malcolm Roberts of Landay Roberts, LLP by Jennifer Hadley

30 Defining “Must Do” by Mike O’Horo

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

Being a perfectionist can be an asset as a lawyer. It’s VERY important for you to get the details right when working on a client matter or appearing in court. But in other ways, being a perfectionist can actually hold you back. Especially when it comes to business development. Being a perfectionist can keep you from making progress with plans that are good but perhaps not quite “perfect”… plans that would move your practice forward. Instead of sitting still. Here are three specific opportunities to STOP waiting for perfection and instead make progress. I’m sure there are many more that you could identify for yourself.

How to Move Forward with Good Plans… Instead of Waiting for Perfection by Paula Black Drawing on over twenty years’ experience in branding and positioning, Paula Black has advised law firms around the globe on everything from powerful and innovative design to marketing strategy and business growth. She is the award-winning author of “The Little Black Book on Law Firm Branding & Positioning,” “The Little Black Book on Law Firm Marketing and Business Development,” and “The Little Black Book: A Lawyer’s Guide To Creating A Marketing Habit in 21 Days,” as well as founder and President of Miami-based Paula Black & Associates. For more information visit www.paulablacklegalmarketing.com.

6 Attorney Journal San Diego | Volume 153, 2016

1. Articles and blog entries. How many articles do you have on your computer that are mostly completed but you haven’t finalized yet? You may think they are not quite perfect yet… but meanwhile, how many opportunities have you missed out on because potential clients or referral sources haven’t seen the articles? If the articles or blog entries are very good… get them published and start building your credibility! 2. Leadership roles in your organizations. I encourage most of my clients to get very involved in a small number of strategically important organizations. This involvement is a chance for the lawyer to build key relationships and demonstrate his or her expertise in front of an important audience. But so many lawyers are afraid to put the wheels in motion because they haven’t figured out EXACTLY how they will respond to every possible contingency that may come up in the next year. Don’t overthink it. Have confidence in yourself, in your abilities, and in your plan! 3. Your overall business development plan. Unless you’ve got all the business you could ever want, both currently and in your pipeline for the future, it’s important to have a business development plan. And you need to devote time and strategic thought to creating this plan. But you can’t let your perfectionism make you obsessed with getting every single detail of every single initiative exactly right. Get started! Get out there! Build relationships and generate business! Don’t feel the need to figure out every last detail… you can adjust and adapt your plan as necessary. The important thing is that you’re out there doing it. n

Demurring, Conferring and Amending— Everything Changed in 2016 by Alena Shamos Alena Shamos is a senior litigator at Lounsbery Ferguson Altona & Peak. Her civil litigation practice includes trial, real estate and business litigation, partition and quiet title actions, government tort liability, writ practice, appellate practice, constitutional challenges, unlawful detainer, municipal litigation, elections law, contract disputes, tort disputes, environmental litigation (CEQA and NEPA), inverse condemnation and construction defect litigation. Ms. Shamos represents government entities, businesses and individuals. www.lfap.com

ules regarding challenges to complaints changed significantly in 2016, with the enactment of Code of Civil Procedure § 430.41, and the amendments to Code of Civil Procedure §§ 472 and 472a. . Before January 1, 2016, if a party objected to a complaint, cross-complaint or answer, they could file a demurrer and follow the regular motion process to ruling. Now, a party planning to demur is faced with strict meet and confer requirements, which are geared to avoid the demurrer entirely. Both parties are required to participate in the meet and confer effort and observe new limits on the right to amend. These changes are intended to limit the number of demurrers heard in California’s already overburdened courts, so judges will be taking compliance seriously.

New Rules to Live By The best approach is to call your opposing counsel or schedule an in-person meet and confer meeting before sending a letter. Then you will know if you have to write a lengthy meet and confer letter, or simply document the terms of your agreement to resolve your objections to the pleading. Act quickly to initiate the meet and confer process, and make sure to set limits on your opposition’s response time. Under the new rules, the meet and confer must be completed within five days of your deadline to file a responsive pleading, unless you obtain an extension (CCP § 430.41, subdiv. (a)(2)). A thirty-day extension is available under CCP § 430.41 if meet and confer efforts take longer than expected by filing a declaration. The extension starts on the day the demurrer or 8

Attorney Journal San Diego | Volume 153, 2016

responsive pleading was originally due. Any further extensions require a court order based on a showing of good cause. Take careful notes during the meet and confer process, as you need to describe these efforts in a declaration if you ultimately file a demurrer. Expect that any email, letter or fax you exchange with your opposition will end up in front of the judge, as an exhibit to an opposing declaration. As meet and confers are required before demurring to amended pleadings, take note whether the other side is amending in good faith or to delay and harass. Keep in mind that if you ultimately file a demurrer and the court sustains your demurrer with leave to amend, you cannot file another demurrer on “any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version” of the pleading (CCP § 430.41, subdiv. (b).). The opposing side can no longer file an amendment after the due date for their opposition to your demurrer without a stipulation documenting your agreement (CCP §472, subdiv. (a).). The 2016 laws also set a new three amendment limit for a complaint or cross-complaint, which limits the court’s ability to sustain a demurrer with leave to amend. The court can only grant leave to amend, in excess of the three-amendment limit, if you can demonstrate the additional facts create a “reasonable possibility” the defect in the pleading can be corrected to state a cause of action (CCP §§ 430.41, subdiv. (e)(1) and 472a, subdiv. (c).). This rule also applies if you file an amended pleading by way of a stipulation. Include language in your stipulation that the amended pleading

contains additional facts that cure pleading defects or risk rejection of your amendment. There are important restrictions to the application of the three-amendment limit. It only applies to amendments filed “in response to a demurrer and prior to the case being at issue” (CCP § 430.41, subdiv. (e)(1).). That means the limit does not apply: (a) before the other side files its first demurrer, and (b) after a case is deemed at issue, which occurs once every cause of action in your complaint, or cross-complaint, is responded to by way of an answer (CCP § 430.41, subdivs. (e)(1) and (2).).

IS YOUR LAW FIRM MAKING THE BEST IMPRESSION?

For example, the three-amendment limit in CCP § 430.41 does not apply to an amendment made without leave of court before the first demurrer is filed under CCP §472, subdiv. (a), or to a motion for leave to amend filed later in the case. Courts have eagerly anticipated the enactment of these rules as a means to ease their burden. Your compliance, or lack thereof, can set the tone of your case. Make sure to review the rules carefully, or enlist the help of an experienced litigator when needed. n

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View our portfolio at skidmutro.com Attorney Journal San Diego | Volume 153, 2016

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Attorney Journal San Diego | Volume 153, 2016

COMMUNITY news n Finch, Thornton & Baird, LLP is pleased to announce the admission of Christopher R. Sillari as partner of the firm. Founded in 1987, the firm represents prominent public works and commercial contractors. Mr. Sillari practices in the areas of business and commercial litigation and transactions, federal CHRISTOPHER R. SILLARI procurement and claims, construction law, real estate, intellectual property, and appeals. Mr. Sillari’s practice includes advising clients on a variety of corporate, construction, real estate, and intellectual property matters, and handling disputes, including claims arising from contract breaches, commercial code violations, contract interpretation, real estate disputes, the misappropriation of trade secrets, trademark violations, and unfair business practices. He graduated law school cum laude and as a member of the Order of the Coif and the San Diego Law Review. Mr. Sillari was named a Super Lawyer – Rising Star in 2015 and 2016. n Higgs Fletcher & Mack, announced that Partner Anne Elise Goetz received the Wisconsin Alumni Association’s “Forward under 40” Award. Eight University of WisconsinMadison alumni from a pool of undergraduate and graduate students under the age of 40 were honored for living the Wisconsin ANNE ELISE GOETZ Idea: the principle that the UW should have a positive impact in Wisconsin and around the world. Goetz is a regular legal analyst on HLN and FOX networks and started her own legal education podcast, Your Life and the Law, that focuses on law in everyday life. In 2012, Goetz was appointed Chair of the Leadership Development Committee for Lawyers Club and served for two years. Goetz has been involved in Run Women Run and helped organize its political bootcamp, a full-day event teaching women how to build a campaign and run for office. “I’m incredibly honored to receive the recognition from the University of Wisconsin. To be one of eight individuals from all alums under 40 is really special,” Goetz said. “I always strive to make an impact and I’ve truly enjoyed using my passion for law to help others reach their goals.”

Attorney Journal San Diego | Volume 153, 2016

n Stueve Siegel Hanson LLP welcomes attorney Julie A. Kearns to the firm’s San Diego office. Her practice will focus primarily on antitrust and consumer class action litigation. Kearns has spent more than nine years litigating complex matters, including class action cases, in federal courts nationwide. Her diverse practice JULIE A. KEARNS includes having handled matters governed by federal antitrust and securities laws, as well as state consumer protection statutes and California rules governing corporate liability. She will practice nationally out of the firm’s San Diego office, which opened in 2009. n The San Diego-based law firm of Seltzer Caplan McMahon Vitek is pleased to announce that John I. Forry has joined the firm as of counsel. Forry is well known in the United States and internationally as a leading attorney and academic in the areas of international finance, investment, and tax planning JOHN I. FORRY and compliance. Throughout his 45-year career, Forry has represented U.S. and foreign businesses, financial institutions and individuals doing business either abroad from the U.S. or from abroad into the U.S., with a significant focus on Asia, Europe, Latin America and the Middle East. In addition to founding a California law firm focused on U.S. investments from abroad, Forry was a senior partner with Morgan, Lewis & Bockius LLP, where he headed the firm’s California offices and its Pacific Rim and Latin America international practices and served on its governing board. Forry has served on the advisory group to the U.S. Commissioner of Internal Revenue and on numerous professional organizations’ committees and projects. He has authored six books and approximately 50 articles on international finance, investment and taxation.

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

COMMUNITY news n Perkins Coie is pleased to announce that Mark R. Wicker has joined the firm’s Technology Transactions & Privacy practice as a partner in San Diego. Previously, Mark was a partner at Morrison Foerster. Wicker advises clients in all aspects of acquiring, developing, commercializing and licensing new MARK R. WICKER technologies and products. He has significant experience structuring strategic alliances, collaborations, joint ventures, licenses, and research development, manufacturing and distribution relationships, often using novel approaches and pioneering methods that further his clients’ business objectives. His clients range from startups to well-established firms in the life sciences, technology, wireless, social media, clean technology, chemical and material sciences industries. Wicker earned his J.D. from Columbia University School of Law and received his A.B. from Stanford University. Founded in 1912, Perkins Coie LLP has more than 1,000 lawyers in 19 offices across the United States and Asia. The firm provides a full array of corporate, commercial litigation and intellectual property legal services to a broad range of clients, from FORTUNE 50 corporations to emerging startups, as well as public and not-for-profit organizations. n The law firm Tyson & Mendes LLP is pleased to announce their newest California partner Susan L. Oliver, who will be based in the firm’s San Diego office. A trial lawyer with more than 23 years’ experience providing exceptional client service, Oliver has extensive experience representing both small businesses and SUSAN L. OLIVER corporations, hospitals, property owners, national youth-serving organizations and multiple dioceses across the nation. Oliver has been selected as a “Super Lawyer” by Southern California Super Lawyers each year since 2010. She has also been listed in Best Lawyers in America since 2012 and as a “Top Lawyer” in San Diego Magazine each year since 2013. Oliver is AV rated by Martindale Hubbell, which recognized her in the 2011 Bar Register of Prominent Women. Additionally, she was inducted as fellow in the Litigation Counsel of America—an exclusive honorary society for trial lawyers.

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Attorney Journal San Diego | Volume 153, 2016

Understanding and Preventing Mental Health Issues for the Legal Professional Tips, Anecdotes & Apps to Improve Coping Skills by James Eischen

he legal profession is stressful, but mental health challenges impact our entire country. According to the National Alliance on Mental Illness (NAMI), 1 in 5 adults in America experience a mental illness in a given year. While depression is the leading cause of disability worldwide, the National Institute of Mental Health revealed that 2.4 million American adults live with schizophrenia, 6.1 million live with bipolar disorder, 16 million live with depression and 42 million live with anxiety disorders. Those figures are unnerving. We cannot presume legal professionals are immune to this risk. We actually may face statistically greater risks. Legal professionals are subject to unforgiving deadlines, heightened duties and high expectations. We connect with profound losses and financial stress, while expected to analyze and interpret reality (whether in disputes or transactions) in a strategic and logical fashion. We digest and retain massive data and analysis loads. At times, we’re counted on to make split-second decisions in court, or while negotiating, that cannot be easily undone. We engage in conflict and navigate uncertainties without guaranteed positive outcomes. With all these responsibilities, it’s no wonder legal professionals are susceptible, and not immune from, mental health problems. According to the American Bar Association’s article, Mental Health Initiative Tool Kit for Student Bar Associations and Administrators, practicing lawyers exhibit clinical anxiety,

Attorney Journal San Diego | Volume 153, 2016

hostility and depression at rates that range from 8 to 15 times the general population. In addition, lawyers rank 5th in incidence of suicide and exhibit very high levels of substance abuse. We are not immune, we are very susceptible and people depend on us. So what can legal professionals do to deal with professional distress? The good news is that there are resources available to both practicing lawyers and law students. For example, the State Bar of California offers its Lawyer Assistance Program (LAP) that helps lawyers and State Bar applicants who are struggling with stress, anxiety, depression, substance use or concerns about their career. Participation is confidential as mandated by California Business and Professions Code §6234. In addition, meditation has been encouraged. According to Law Practice Management Advisor, lawyers who meditate have larger brains (if that is possible) and less depression. Meditation leads to an improved ability to deal with highly emotional or stressful events. There are various coping mechanisms that work for each individual. For example, exercising, eating healthy, listening to music, reading, volunteering, creating a flexible work schedule and connecting with friends and family are just a few of my own personal coping mechanisms. As the legal profession deals with often conflicting versions of reality, we all must become familiar with “cognitive distortions” and work on recognizing them not only in others, but also ourselves. This could greatly

enhance attorney professionalism and courtesy. Perhaps that is the essence of our collective journey toward a judicial temperament. We all need to make that journey. Outside of the traditional legal obligations of working toward judicial temperament, and charitable work, I have also discovered a less traditional resource: apps. There are a plethora of free and paid apps available for mobile phones and tablets. Here are seven to consider, and many, many more are available:

1. Moodnotes This app implements cognitive behavioral therapy (CBT) through simple daily questions that allow users to keep a log of their mood. My favorite aspect of this app is that if an individual logs negative moods, it takes them through a series of cognitive distortions and asks if perhaps they are getting their thoughts “caught” in a distortion. If so, it provides a brief curative reminder to help overcome the distortion.

2. Streaks This app allows users to select any behavior or habit they’re working on (journaling, exercise, etc.) and track on a daily basis if they accomplish the habit. This app is easy to use, not negative and very useful.

3. Mindfulness This is a simple meditation app that will deliver a gentle bell ring for 5, 10, 15, 20 or 30 minutes for when an individual wants to meditate. It delivers a “ping” when the user concludes the time selected, which can be helpful.

4. Gratitude This is a daily gratitude journal app, which allows users to electronically jot down things they’re grateful for and keep a digital log of those entries. It’s quick and easy to use.

5. MyFitnessPal This free app (sponsored by Under Armour, which also offers a paid version) lets users track their food intake and exercise on a daily basis, enter basic health data and establish a daily caloric intake goal with an eye toward either losing or maintaining a healthy weight. In addition, this app interacts with Health, the Apple health data tool kit. Users can use other apps to track exercise and have the data automatically loaded into MyFitnessPal to log calories burned.

6. Phraseology This is a good daily writing/diary system that offers some nice features for writing entries and is easier to use than the basic note-taking feature on most tablets.

7. WOOP This app was created by Gabriele Oettingen, the author of “Rethinking Positive Thinking.” The app is designed to help people create goals, ponder obstacles and then plan to succeed with a combination of positive thinking plus realistic assessment of necessary steps. Another resource was recently reported in The Atlantic (A First Aid Class for Mental Health, February 12, 2016, by Meagan Morris): “Since 2001, the National Council for Behavioral Health has attempted to combat that [mental illness] stigma with its Mental Health First Aid program, which teaches participants how to recognize when someone is going through a mental-health crisis, and how to help them get through it.” The training assessment algorithm is summarized with the acronym ALGEE: Assess risk of suicide/harm, Listen non-judgmentally, Give reassurance and information, Encourage appropriate professional help and Encourage self-help and other strategies. It’s important to understand that no app, anecdotal truism or mental health acronym can replace mental health counseling and intervention when needed. Legal professionals should get the professional help they need without delay. In the absence of crisis, however, it remains crucial for legal professionals to find their identity and meaning outside of their careers. Be someone more than purely a legal professional—be a complete person with interests, friends and resources. Be yourself, get a life, find new challenges and keep learning. If you suspect you need more help than lifestyle diligence, get the assistance needed. After all, family, friends, clients and colleagues are depending on you. In the end, you are the product, the source of important guidance and representation. If you are not well, then your ability to help others is impaired. So to the extent possible, be well. Or as the wise psychologist in the movie Silver Linings Playbook recommended to the Bradley Cooper character struggling to overcome mental health challenges: You need a strategy. We all do. n James Eischen is a Partner at Higgs, Fletcher & Mack LLP with more than 29 years of experience as an attorney in California. Eischen handles corporate, real estate and healthcare matters. He received his Juris Doctor from the University of California at Davis School of Law in 1987. Eischen is involved in numerous professional organizations, including the San Diego County Bar Association Law & Medicine Section, Attorney-Client Relations Committee, American Academy of Family Physicians healthcare compliance educator, American Academy of Private Physicians corporate secretary and chair of the Legal Compliance Committee. Attorney Journal San Diego | Volume 153, 2016

SECURING A

STRONG

FINISH

by Jennifer Hadley

Sevens Legal, APC: Samantha Greene’s successful track record in criminal defense in San Diego is rooted in a sincere desire to safeguard her clients and their families, and strengthened by her resolve to help those charged with misdemeanors, felonies and federal crimes to safely navigate through the long road in front of them. “The most important thing for the lawyers at Sevens Legal is that every single client is happy with the representation that they have received when their individual case is over. In this practice it is often difficult for a client to be ‘happy’ since most are facing serious criminal charges and potential consequences. However, we want our clients to know that we have done everything possible to obtain the best result. Personally, I want my clients to know I am available for them almost any time of the day or night because I understand that their criminal case is the single most important and all-consuming thing they are dealing with. Nobody wants to wait for answers and consultation. If I were charged with a crime I would want answers and help right away and that is what we strive to provide,” says Samantha Greene, Criminal Defense attorney and founder of Sevens Legal, APC.

TAKING THE FIRST STEPS After nearly 15 years of practice, Greene still remembers why she first decided to choose law as her passion and her profession. Growing up in Los Angeles, Greene’s father was a civil litigator, who first introduced her to the inside of a courtroom. “From the first time my father brought me into the courtroom to watch one of his trials, when I was six years old, and introduced me to the judge, sitting way up there on the bench, I have wanted to be an attorney,” Greene says. “But it wasn’t until I saw, firsthand, the way the criminal justice system can railroad somebody if they don’t have good, hard-working representation, that I knew I wanted to be a criminal defense attorney. From that moment I knew that I wanted to represent people in court and do everything within 16

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the law to make sure they were treated fairly,” she adds. As such, after earning her undergraduate degree from UCSB, Greene moved to San Diego in 1997 to attend University of San Diego, School of Law. Greene is self-deprecating when explaining how she created the opportunity to practice law in San Diego. “I fell into my first job by spending as much time there, volunteering my researching abilities and basically begging for a job. I met my soon to be boss and mentor and convinced him to give me a chance. He hired me for a 3-month probationary period.” Just as Greene had always suspected, the practice of criminal law suited her just perfectly, as it offered her the chance to help people by giving them a voice when they’re facing severe and lifealtering consequences for criminal offenses. Speaking candidly, she says, “I feel bad for people who are getting the shaft in life. It’s not even empathy…I just feel badly for people who made a bad decision, or who have an underlying cause behind the crime. Very few people are criminals because they are just bad people. The majority of the time there is an underlying issue. There may drug or alcohol addiction, or mental health issues. They often need a psychiatric evaluation to find out why they did what they did, and most importantly, to ascertain how can we prevent it from happening again.” Continuing she says, “Being a criminal defense attorney isn’t just about what happens in the courtroom. It’s about listening and answering questions, and guiding people through the criminal court system. Sometimes it feels like I’m 50% lawyer, and 50% psychologist. I am there to listen, and they like being given a chance to explain. But I am a straight shooter. I try to be

ATTORNEY

OF THE MONTH

22016 014

comforting, but my client and often their families need to know the truth. I give them the worst case scenario first. I don’t give them false hope, or I’m setting myself up to fail them. If they think I failed them they aren’t going to be happy,” she says. Moreover, Greene insists on making sure her clients have her cell phone number so she can be reached at virtually all hours. “It drives defendants crazy to not know what is going on, so we make sure we are accessible. Often times I will get a call from a mother or father, sister or husband of someone who is in jail for the first time and they don’t know what to do. I have found that working through the situation with the family as well as the client by explaining the bail process, the court process, what the timing will be, and so on, allows the family to sleep at night and gives them some peace of mind despite the fact that it isn’t always information they want to hear.” All the same, Greene’s years of experience have taught her that as far as clients are concerned, “knowing is so much better than not knowing,” she says.

SETTING THE PACE After six years, and rising through the ranks at the first firm she joined, Greene says the direction the firm took into other practice areas left her feeling that she wasn’t helping people as much as she could. She chose then to try her luck on the prosecution side, by joining the San Diego District Attorney’s Office. “I applied for the job and went through an incredibly rigorous application and interview process. I was lucky to get the job and for over two years, I used my experience as a defense attorney, as well as all that I learned at the DA’s office, and tried to be fair and even handed while executing my duties as a prosecutor. I had a wonderful experience and the camaraderie amongst the attorneys in the office was such an incredible learning tool,” she says. Yet Greene says that her work as a prosecutor only reinforced that she was meant to be working in criminal defense. “If you’ve always been a prosecutor, you’re only coming from one perspective. You’re looking at words on paper, rather than looking at a real person, with a real family. The prosecutors have all of the power, and the defendants are fighting impossible battles. If I had my way every criminal defense attorney would have experience as a prosecutor and prosecutors would have experience in defense. 18

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That way all sides have the benefit of seeing the whole person who is accused, rather than just what’s on a piece of paper in front of you.” Sheepishly Greene admits, “I liked having the opportunity to be able to explain in many cases, why some charges should only be misdemeanor charges.” After a couple of years, Greene explains that the prosecutor’s office was no longer a good fit with her growing family. She took a break from criminal law, and spent time writing appeals and teaching Legal Writing II at a local law school. Before long though, she says she needed to get back to work. More precisely, she needed to get back into defense work. She did so several years ago and since then has grown Sevens Legal, APC into a thriving practice with an incredibly loyal clientele, a largely referral-based practice, a perfect 10.0 Avvo rating, and a significant portion of her business stemming from fellow attorneys. Greene doesn’t deny that she works hard. She admits to losing sleep, worrying over clients, yet still finds her work as a voice for the accused, exhilarating. In a practice area largely comprised of men, she says she thrives in the environment. “There is a bit of adrenaline, obviously because my clients have a lot riding on me, and I have to know that I have done my very best for them. I made a commitment to help them come through the process as unscathed as possible,” she says. Furthermore, she knows that in order to continue running a successful firm, she needs to bring in new business, which is obviously another reason client satisfaction is vital. “Satisfied clients refer you to others, or their families refer you to others. When I get a good result for my client, it can change their life, and that feels great. They are also great referral sources,” she says honestly. The same goes for fellow attorneys. Greene and her team at Sevens Legal are honored to receive referrals from their colleagues in the San Diego legal community, and insists upon paying referral fees, in compliance with State Bar allowances. It also doesn’t hurt that Greene is not in competition with other attorneys. “We aren’t a threat to fellow attorneys because we only do criminal defense. We don’t practice in any other areas, so attorneys can feel comfortable referring their clients without fear that we would try to steal them, or take over other cases,” Greene says frankly.

LEADING BY EXAMPLE

In order to assure client satisfaction, Greene admits that she will turn down cases, but only if she knows she’s not the best attorney for the case. “I don’t turn cases down because of charges. People deserve to feel like they are my only client. If I know I don’t have the time to give them that, I will turn down the case, but it happens once in a blue moon. I love what I do,” she says. In fact, she’s carved a burgeoning niche in representing those who are charged with domestic violence, and/or sexual abuse, which are serious and sensitive charges. For her part, Greene is humble about her successes in these types of cases. “In sex crime and domestic violence cases, often the most important part of the case involves the calls you make right away. I’ve done a lot of these types of cases, so I know just how important it is to get busy making calls right away,” she says simply. She is also mindful of being understanding when it comes to the victim and/or the family of the victim. “This can be the hard part of the job. I try to explain to them that I understand that they were hurt, and I want to help make it better. If the victims are happy, or happier than they were, it makes things better for my client.” Furthermore, Greene says that fellow criminal defense attorneys in San Diego are by and large overwhelmingly helpful to one another, which also helps her provide the best possible representation. “People bend over backwards to help each other in criminal defense. There’s no acrimony in the field, because we are all on the side of helping people. I can call anyone in the San Diego defense community with a question or for help, and they will absolutely help. We are really lucky to practice in this legal community.”

TRACK RECORD OF EXCEPTIONAL RESULTS Representing everyone from children to adults facing misdemeanor, felony or federal charges, Greene has had her share of unusual circumstances, which she has overcome to her clients’ benefit. One such case involved a client facing serious charges. His fear was compounded by the fact that he had gone deaf as the result of a recent and serious infection. “He was not equipped to deal with the two situations at the same time. In order to resolve the case, and get all parties to communicate effectively, we had to find means of communication beyond telephone conversations. He also had other legal needs that he needed assistance with so we were able to set him up with representation he was comfortable with in the other fields. Every single client has a unique situation and a case that requires special attention and care. Sometimes this requires creative problem solving, and we strive to make sure that every single client, regardless of their situation, is given the best representation.” In another case that stands out in Greene’s mind, she is reminded again of why she loves what she does. “My client was hauling a tractor trailer over the border because that was his job. He would routinely pick up trailers from lots and haul them over, leaving them at some location on the US side of the border. On this occasion he picked up a trailer and checked to ensure it was empty and in good condition to be hauled. He noticed nothing unusual about the trailer. He brought it over the border and was sent to secondary, and the agents located a false wall, and found a significant amount of marijuana hidden. There was no evidence that my client knew about the presence of the drugs,

Contact: Samantha Greene Sevens Legal, APC Criminal Defense Attorneys samantha@greenecriminaldefense.com www.sevenslegal.com 619-297-2800 3555 4th Ave, San Diego, CA 92103 619-297-2800

EXPERIENCE

but he remained in custody while we fought the case all the way to trial in federal court. I knew he was innocent and when the jury came back with non-guilty verdicts it was the best feeling in the world,” she recalls. With passion for what she does, and unlimited potential for growth, what more could Greene want for the future? “My primary focus is on delivering exceptional results by making sure our clients are aware of all possible outcomes, that they know we are accessible by phone, email and text virtually around the clock, and by providing the best possible representation available.” Not surprisingly, that focus has led to her practice growing each quarter. With three attorneys, a case manager and investigator along with support staff, the firm will undoubtedly add additional attorneys in the coming months and certainly years. Those joining forces with Greene will undoubtedly appreciate her pragmatic approach to work-life balance. “We don’t have set hours at the office. We all know that our goal is to do the best we can for our clients. We know what hours we need to put in to do that, so attorneys can choose when they come into the office, and when they leave,” says Greene. Personally, Greene says that between lawyering and mothering, the time she spends working out is good for her clients, and her family. Exercising gives me the mental and physical stamina I need. I need that 60-90 minutes a day, where I have time to think without my phone ringing, checking my email or taking care of my kids,” she says honestly. In addition, she insists upon balancing work with her family life. “I spend as much time as I can with my husband and children doing fun activities, like swimming, going to parks, and attending school activities. We have wonderful kids, and an English Bulldog named The Fat-Mann,” she says with a laugh. Though Greene is comfortable poking fun at herself by quipping “I’m actually really boring,” the cases coming her way, the results she’s getting for clients, and her thriving practice tell a different story. Still, Greene is anything but egotistical. On the contrary, she says simply, “I care about my clients and their cases and how their lives are being affected by the criminal process. Everyone deserves quality representation, and deserves an attorney who will listen to them, be honest with them, keep them informed of the status of their case, answer their questions, and be there for them from the start to the finish line.” n

» EDUCATION • School Major Degree Graduated • University of San Diego School of Law JD—Juris Doctor, 2001 • University of California at Santa Barbara Philosophy BA—Bachelor of Arts, 1997

» WORK EXPERIENCE • Senior Partner, Sevens Legal, APC, 2011–Present • Attorney, Law Office of Samantha Greene, 2011-Present • Appellate Panel Attorney, Appellate Defenders, Inc., 2011-Present • Deputy District Attorney, San Diego County District Attorney’s Office, 2009-2011 • Senior Associates, Steigerwalt & Associates, 2002-2008 • Certified Law Clerk, San Diego County Office of The Public Defender, 2000-2000

» AWARDS • Best of Bar San Diego Business Journal, 2014 • Top Lawyers San Diego Daily Transcript, 2014 • Top Lawyers San Diego Daily Transcript, 2012

» ASSOCIATIONS • State Bar of California, 2002-Present • Federal Bar Association ( Southern District Of California), 2002-Present • Federal Bar Association ( Central District Of California), 2002-Present • Federal Bar Association ( Estern District Of Texas), 2006-Present

Attorney Journal San Diego | Volume 153, 2016

• Federal Bar Association ( Western District Of Virginia), 2004-Present

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

CALIFORNIA SUPREME COURT Arbitration (Employment) Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: The California Supreme Court affirmed the Court of Appeal’s ruling reversing the trial court’s order denying a motion to compel arbitration on the basis that the arbitration agreement was both procedurally and substantively unconscionable. The arbitration agreement was procedurally unconscionable because it was written on a preprinted form and offered on a take-it-or-leaveit basis, making it a contract of adhesion. But the ability of the parties to seek preliminary injunctive relief in the superior court, as is authorized by California Code of Civil Procedure section 1281.8(b), did not render the arbitration agreement substantively unconscionable. (March 28, 2016.)

Employment Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: See summary above under Arbitration. Kilby v. CVS Pharmacy, Inc. (2016) _ Cal.4th _ , 2016 WL 1296101: The California Supreme Court answered questions certified by the Ninth Circuit Court of Appeals regarding California wage order requirements that an employer provide suitable seating for employees under certain circumstances. The wage orders at issue state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (California Code of Regulations, title 8, sections 11040, subdivision 14(A) (Wage Order No. 4-2001), 11070, subdivision 14(A) (Wage Order No. 7-2001).) The California Supreme Court answers were as follows: (1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. (2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not 22

Attorney Journal San Diego | Volume 153, 2016

dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics. (3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability. (April 4, 2016.)

CALIFORNIA COURTS OF APPEAL Arbitration (Attorney Fees, Employment) Ling v. P.F. Chang’s China Bistro, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1169307: The Court of Appeal affirmed the trial court’s order correcting and remanding an arbitrator’s attorney’s fees award under the California Arbitration Act (Code of Civil Procedure section 1280 et seq.). The arbitrator exceeded his power by awarding statutory attorney’s fees to a defendant employer for work performed in defeating an employee’s inextricably intertwined claims, contrary to public policy embedded in Labor Code section 1194’s one-way fee shifting provision. The trial court’s remedy—correcting the award and remanding to the arbitrator to determine plaintiff’s reasonable attorney fees and costs as the prevailing party—was proper. However, the Court of Appeal vacated the trial court’s award of attorney fees to plaintiff for her petition to vacate the arbitrator’s first award because that fee award was not authorized by either a statute or the arbitration agreement. (C.A. 6th, March 25, 2016.)

Civil Procedure (Anti-SLAPP, Collateral Estoppel, Demurrer, Motion to Strike) Baughn v. Department of Forestry and Fire Protection (2016) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike because defendant California Department of Forestry and Fire Protection failed to demonstrate that plaintiffs’ action arose from conduct taken by defendant in furtherance of its right of speech in connection with a public issue or an issue of public interest. (C.A. 3rd, March 11, 2016.) County of Riverside v. Public Employment Relations Board (Service Employees International Union, Local 721) (2016) _ Cal.App.4th _ , 2016 WL 1238737: See summary below under Employment and Labor. Fenimore v. Regents of the University of California (2016) _ Cal.

App.4th _ , 2016 WL 1191530: See summary below under Torts. Hawkins v. SunTrust Bank (2016) _ Cal.App. 4th _ , 2016 WL 1367067: The Court of Appeal affirmed the trial court’s judgment on the pleadings for defendant in an action alleging wrongful foreclosure. The trial court properly ruled that the action was barred by a South Carolina judicial foreclosure judgment. (C.A. 2nd, April 6, 2016.) Staniforth v. The Judges’ Retirement System (Chiang) (2016) _ Cal.App.4th _ , 2016 WL 1224501: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend because the statute of limitations had expired. The action involved a subgroup of 10 retired jurists alleged by petition to have been underpaid, the last underpayment occurred in early 1987, and every potential member or beneficiary allegedly underpaid the benefits by JRS was deceased by January 1, 2005. The action, pleading a common count for “money owed” to the heirs of those deceased jurists, was not filed until 2012. The Court of Appeal found it was unnecessary to definitively divine the theory of liability to identify the applicable statute of limitations because it was satisfied that, under any and all of the possible theories underlying petitioners’ common counts, all claims by the heirs based on underpaid pension payments accrued at least seven years (if not decades) before the present action was filed, and the longest of the possible statute of limitations periods on the claims would have expired well before petitioners commenced the present action. (C.A. 4th, filed March 14, 2016, published March 29, 2016.)

Construction City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to prevent enforcement of Labor Code section 1782, which prohibits a charter city from receiving or using state funding or financial assistance for a public construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with the state prevailing wage laws. The Court of Appeal affirmed the trial court’s judgment upholding the constitutionality of section 1782 against a “home rule” challenge under Article XI, section 5(a) and Article XIII, section 24(b) of the California Constitution that was brought by several charter cities. (C.A. 4th, March 29, 2016.)

Employment and Labor Castro-Ramirez v. Dependable Highway Express, Inc. (2016) _ Cal. App.4th _ , 2016 WL 1298637: The Court of Appeal reversed the trial court’s summary judgment for defendant in an action alleging disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (FEHA) (Government Code, § 12900 et seq.), as well as wrongful termination in violation of public policy. The Court of Appeal found that a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled

family member. (C.A. 2nd, April 4, 2016.) City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: See summary above under Construction. County of Riverside v. Public Employment Relations Board (Service Employees International Union, Local 721) (2016) _ Cal.App.4th _ , 2016 WL 1238737: The Court of Appeal reversed in part and affirmed in part rulings of the trial court. The Court of Appeal ruled that the Meyers-Milias-Brown Act (Act) (Government Code, § 3500 et seq.) provisions for impasse resolution through advisory factfinding (factfinding provisions) do not violate Article XI, section 11, subdivision (a), of the California Constitution by delegating a county’s or a city’s home rule powers to a private person or body because the provisions do not divest a county or a city of its final decision making authority. The Court of Appeal held that Act’s factfinding provisions apply to impasses arising during the negotiation of any bargainable matter. The Court of Appeal also ruled that the trial court erred in denying an antiSLAPP motion to strike and awarding attorney fees and costs of $15,000 to the County of Riverside under Code of Civil Procedure sections 128.5 and 425.16(c)(1) after it found the antiSLAPP motion was frivolous. (C.A. 4th, March 30, 2016.) Davis v. Farmers Insurance Exchange (2016) _ Cal.App.4th _ , 2016 WL 1182718: The Court of Appeal affirmed in part and reversed in part decisions by the trial court in a case alleging wrongful termination in violation of public policy and failure to pay wages. The Court of Appeal affirmed the trial court giving to the jury CACI instructions amended to reflect the holding in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The Court of Appeal affirmed the trial court’s denial of plaintiff’s post-trial request for declaratory and/or injunctive relief after the jury awarded plaintiff no damages for wrongful termination. While the jury found that plaintiff’s age was a substantial motivating factor in his termination, it concluded that defendant would have made the same termination decision for legitimate reasons. However, the Court of Appeal reversed the trial court’s directed verdict for defendant on the wage claim, finding that plaintiff had presented sufficient evidence to allow the wage claim to go to the jury. (C.A. 2nd, March 28, 2016.) Ling v. P.F. Chang’s China Bistro, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1169307: See summary above under Arbitration. Pinheiro v. Civil Service Commission for the County of Fresno (2016) _ Cal.App.4th _ , 2016 WL 1212888: The Court of Appeal reversed the trial court’s order denying a writ seeking to overturn the decision of the Civil Service Commission for the County of Fresno (Commission) upholding petitioner’s dismissal as the County’s labor relations manager. Petitioner was denied a fair hearing because the Commission relied on evidence outside the record when it upheld his dismissal. (C.A 5th, March 29, 2016.) San Diego Housing Commission v. Public Employment Relations Board (Service Employees International Union, Local 221) (2016) _ Cal.App.4th _ , 2016 WL 1242539: The Court of Appeal reversed Attorney Journal San Diego | Volume 153, 2016

the trial court’s summary judgment and declaratory judgment holding that the Meyers-Milias-Brown Act (Government Code section 3500 et seq.) provisions for impasse resolution through advisory factfinding (factfinding provisions) apply only to an impasse arising during the negotiation of a comprehensive memorandum of understanding, not to an impasse arising during the negotiation of a discrete bargainable issue. The Court of Appeal disagreed, ruling that the factfinding provisions apply to impasses arising during the negotiation of any bargainable matter. (C.A. 4th, March 30, 2016.)

Evidence Kirchmeyer v. Phillips (2016) _ Cal.App.4th _ , 2016 WL 1183324: The Court of Appeal affirmed the trial court’s denial of a petition by the Executive Director (Director) of the Medical Board of California to compel production of a patient’s medical records from a psychiatrist under an investigatory subpoena duces tecum. The psychiatrist was being investigated regarding an alleged improper sexual relationship with the patient. Both the psychiatrist and the patient objected to production of the records. The Court of Appeal ruled that the medical records sought by the subpoena were protected by the psychotherapist-patient privilege in Evidence Code section 1014. Because the psychotherapistpatient privilege is grounded in the patient’s constitutional right of privacy, the Director had to show a compelling interest

Attorney Journal San Diego | Volume 153, 2016

justifying production of the medical records, and failed to do so. The Director also failed to establish any exception to the privilege. (C.A. 4th, March 28, 2016.)

Real Property (CEQA) Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) _ Cal.App.4th _ , 2016 WL 1169302: The Court of Appeal affirmed the trial court’s denial of a writ petition seeking to set aside, under the California Environmental Quality Act (CEQA) (Public Resources Code, section 21000 et seq.), an ordinance prohibiting mobile medical marijuana dispensaries in the City of Upland. The Court of Appeal concluded that the ordinance was not a project under CEQA. (C.A. 4th, March 25, 2016.)

Torts (Elder Abuse, Government Immunity) Alana M. v. State of California (2016) _ Cal.App.4th _ , 2016 WL 1224879: The Court of Appeal affirmed the trial court’s summary judgment for defendant based upon the immunity in Government Code section 831.2, which provides that no public entity “is liable for an injury caused by a natural condition of any unimproved public property.” The trial court properly granted summary judgment in this case where a tree fell onto a tent where plaintiff was camping with her family in Portola Redwoods State Park. (C.A. 1st, filed February 29, 2016, published March 29, 2016.) n

To Develop Business, Just Remember One Word 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.

everal years ago I conducted a half-day workshop on Business Development at the firm retreat of an AmLaw 100 firm. I closed by saying the following: “If you don’t remember anything we have discussed in the last three hours, then just remember one word.” Then I printed it on the flip chart—and explained what it stood for. Since then, whenever I have been with an attorney—partner or associate—who was at that retreat, he or she never fails to bring up that word and say something like, “As you can tell, I’ve never forgotten that. It really works.” What was the word? PALER! And what does it stand for? Plan how you’re going to approach the client or prospect. Ask questions. What are the problems they are dealing with? What are the issues they are facing and what are their plans for addressing these issues? Listen to their answers. Educate them on how you could help solve their problems or assist them in achieving their plans. Don’t try to sell. Request the business. In your own words and in your own way, “ask for the order.” Needless to say, ever since then, whenever I discuss Business Development with attorneys, I tell them it’s not complicated. Just remember one word. n

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Attorney Journal San Diego | Volume 153, 2016

MALCOLM B. ROBERTS PARTNER AT LANDAY ROBERTS, LLP

JOURNAL

FEATURED PROFESTSHIOENMAOL NPRTOFILE OF

2016

by Jennifer Hadley

ative San Diegan Malcolm B. Roberts, Partner at Landay Roberts, LLP, has wanted to help people for as long as he can remember. This desire to aid others, coupled with his love of problem solving and an unrivaled work ethic, has served Roberts well as an emerging star in the San Diego legal community. More importantly, these goals and skills have served many others over the years. “My dad retired as a Lieutenant from the San Diego County Sheriff’s Department. I don’t think he ever turned down an opportunity for overtime. Sometimes he was so tired that he would take a nap in the car in our driveway before coming into the house. I didn’t realize it at the time, but watching him work so hard helped me realize the importance of hard work,” Roberts says. “My parents have not only been great role models, but they have always been extremely supportive.” These days, Roberts, who was first recognized as a Top Young Attorney by the San Diego Daily Transcript in 2012, and was most recently named to the San Diego Business Journal’s 2016 Best of the Bar, and named a 2016 San Diego Rising Star by Super Lawyers, is proud to be the co-founder of Landay Roberts, LLP which he opened in 2014 with John Landay. “We represent plaintiffs and defendants in business disputes, class actions and personal injury matters, and we provide excellent and cost-effective service,” he explains. To do that, Roberts says, “We take a careful look at potential clients to determine their goal and we come up with a plan to achieve that goal. We also advise potential clients about the strengths and weaknesses of their case before we will accept the case.” As such, Roberts has a winning record for clients. In fact,

Attorney Journal San Diego | Volume 153, 2016

it was a case he worked on several years ago which served as the catalyst for launching his firm with Landay. That case – which included representation of 15 individual plaintiffs in a four-month jury trial, and resulted in a verdict in favor of the plaintiffs against a national title insurance company wherein massive mortgage fraud was perpetuated on the plaintiffs—also further piqued Roberts’ desire to work with more plaintiffs. On the defense side, Landay Roberts LLP recently succeeded in their motion to quash service of summons, thereby effectively forcing the plaintiff to dismiss their case against the New York corporation being sued in CA, who Roberts was representing. Not surprisingly, Roberts works as hard outside of the office as he does for his clients. He serves on the Board of Directors at the Olivia Hudson Foundation (OHF), which is dedicated to furthering pediatric brain cancer research, assisting families of children with brain cancer, and raising public awareness of pediatric brain cancer. He has volunteered for the Cancer Legal Resource Center, providing information and educational outreach on cancer-related legal issues to those stricken with cancer and others impacted by the disease. He has mentored young parolees through the VIP Mentor Program, served on the Board of Directors of the Earl B. Gilliam Bar Association, and mentors law students and younger attorneys. As far as the future is concerned for Roberts, he’s looking forward to a long, and continuously successful career in his hometown. With almost a decade of experience, Roberts loves what he does today as much as he did when he first became interested in the law. “I enjoy listening to a problem, and figuring out the best way to achieve the best result for each client.” Q

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7/12/13 5:04 PM

Defining “Must Do” by Mike O’Horo For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7,000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com

hether we’re talking about professional business development or our personal lives, there’s always a long list of things that we don’t get done, despite our declarations that we coulda, shoulda, woulda, oughta, wanta do them. So, which do we actually get done? Only those we must do. What defines “must,” and how does it differ from those other, aspirational, descriptions? It’s simple. We must do something when the consequences of not doing it are a) known and b) deemed unacceptable. Why is this important for lawyers and others trying to develop business? To answer, let’s first look at the progression of the biggest problems faced by salespeople of any description: 1. High “no-decision” percentage, which leads to 2. Long sales cycle, which causes 3. High cost of sales In the case of lawyers, who rarely track or measure cost of sales, we can substitute “time” as a proxy for dollars. Lawyers waste most of their time trying to get potential clients to reallocate a slice of their current legal spend to them. You don’t think of it this way, but you’re asking prospects to make two decisions: 1. To change existing (perhaps longstanding) buying habits 2. To make you the beneficiary of the shift You may think that your inability to accomplish this twopart mission is a reflection on your skills, experience, or reputation, or on the quality or duration of your relationship, or the strength of the incumbent’s relationship. That’s possible, but very unlikely. Far more likely is benign neglect. After all, most clients don’t have to make either of those decisions. What will happen if they ignore those decisions completely? Nothing at all. There’s no negative impact. Their cost of doing nothing is zero.

Attorney Journal San Diego | Volume 153, 2016

Think about the pros and cons here. The only pro is that maybe they gain some as-yet-unknown advantage by awarding you a slice of the current pie—but only maybe. That’s a pretty fuzzy value that won’t motivate many people at all. There are a lot more cons, and they’re far better understood.

• They don’t want to have to manage another law firm • They don’t want to disappoint, or explain the reapportionment to, the incumbent lawyers

• They’re too busy to devote time and attention to a decision that’s of minimal significance

• Decisions involve risk, and we only take risks when they’re necessary to get something important or valuable

Unless prospects perceive that failing to decide will produce sufficient negative consequences that cause unacceptable impact, they’ll decide not to decide. By now, you should recognize that your interests are best served, and align best with those of prospects and clients, by helping them more fully assess and appreciate their Cost of Doing Nothing relative to the decision on the table. If that turns out to be low, both the prospect and you can abandon the problem as not being important enough to require a decision. On the other hand, if your facilitated examination reveals far more strategic, operational, economic, and career impact than they previously recognized, they’ll recognize that they must make a decision, and that you’ve helped them reach this degree of clarity. You’ve performed a valuable service and delivered meaningful value. The alternative is to make your pitch, then wait around for a long time for a decision that likely will never come. Why be an anxious spectator? Instead, conduct yourself in a way that you be welcome as part of the decision. Isn’t that a better position to be in than that of pitchman begging for a slice of the pie? n

Charles Field

Ed Chapin

Jill Sullivan Sanford

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