Attorney Journal, San Diego, Volume 158 by Attorney Journals

SAN DIEGO

Volume 158, 2016 • $6.95

How to Have A Successful Retreat: Walk on Water

Bob Denney

Effective Strategies to Gain More Online Reviews

Jonathan Goudy Key Success Factors to Achieve Your Career Goals

Brian Tracy

3 Steps to Business Development Simplicity

Mike O’Horo

Specific Facts Build Powerful Marketing Arguments

Trey Ryder

McIntyre’s Civil Alert: Organized Succinct Summaries

Monty A. McIntyre

Attorney of the Month

J. Daniel Holsenback, Renaissance Man

San Diego

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2016 EDITION—NO.158

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

12 COMMUNITYnews 14 Key Success Factors to Achieve Your Career Goals

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price

by Brian Tracy

ATTORNEY OF THE MONTH

16 J. Daniel Holsenback San Diego Renaissance Man

by Jennifer Hadley

CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson

22 How to Have A Successful Retreat: Walk on Water by Bob Denney

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Patricia Klier Karen Gorden

CONTRIBUTING EDITORIALISTS Monty A. McIntyre Bob Denney Mike O’Horo Jonathan Goudy Trey Ryder Brian Tracy

ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

26 3 Steps to Business Development Simplicity 28 Specific Facts Build Powerful Marketing Arguments

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24 Effective Strategies to Gain More Online Reviews

by Trey Ryder

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

CALIFORNIA SUPREME COURT Civil Procedure (Jurisdiction) Bristol-Myers Squibb Company v. Superior Court (Anderson) (2016) _ Cal.App.4th _ , 2016 WL 4506107: The California Supreme Court affirmed the ruling of the Court of Appeal which held that petitioner was subject to the personal jurisdiction of the California courts on the basis of specific jurisdiction. Petitioner objected to California exercising jurisdiction over it for claims alleged by nonresidents of California. Personal jurisdiction was authorized by Code of Civil Procedure section 410.10. Although petitioner’s business contacts in California were insufficient to invoke general jurisdiction, the California Supreme Court concluded that the company’s California activities were sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction under which personal jurisdiction is limited to specific litigation related to the defendant’s state contacts. (August 29, 2016.)

Government Department of Finance v. Commission on State Mandates (County of Los Angeles) (2016) _ Cal.App.4th _ , 2016 WL 4506106: The California Supreme Court reversed the decision of the Court of Appeal finding that storm drainage system permits issued by a state agency were federally mandated and local government agencies therefore could not seek reimbursement from the state for the associated costs. (California Constitution, article XIII B, section 6(a).) The California Supreme Court disagreed, concluding that no federal law or regulation imposed the conditions nor did the federal regulatory system require the state to impose them. The permit conditions were imposed as a result of the state’s discretionary action. (August 29, 2016.)

CALIFORNIA COURTS OF APPEAL Arbitration Penilla v. Westmont Corporation (2016) _ Cal.App.4th _ , 2016 WL 4709888: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration of a complaint 6

Attorney Journal San Diego | Volume 158, 2016

by 61 mobile home tenant plaintiffs alleging contract, tort and statutory causes of action. The Court of Appeal ruled that the arbitration agreement was procedurally unconscionable because it failed to disclose prohibitively expensive arbitration fees and was neither provided in a Spanish-language copy nor explained to respondents who did not understand written English. The arbitration provision was also substantively unconscionable because it imposed arbitral fees that were unaffordable or would have substantially deterred respondents from asserting their claims, unreasonably shortened limitations periods for many of the asserted causes of action, and unreasonably limited the remedies available in arbitration for statutory claims. (C.A. 2nd, September 9, 2016.)

Civil Procedure Local TV v. Superior Court (2016) _ Cal.App.4th _ , 2016 WL 4578645: The Court of Appeal granted a writ petition and ordered the trial court to grant petitioner/defendant’s motion for summary judgment in a case alleging misappropriation of name and likeness and other causes of action. The Court of Appeal concluded that, based on the broad consent given in a written agreement between respondents/plaintiffs and Los Angeles television station KTLA regarding the distribution of “Kurt the CyberGuy” materials to other television stations, respondents could not prove lack of consent to the manner in which petitioner used the CyberGuy material. (C.A. 2nd, September 2, 2016.) Minick v. City of Petaluma (2016) _ Cal.App.4th _ , 2016 WL 4578644: The Court of Appeal affirmed the trial court’s order granting a motion for relief under Code of Civil Procedure section 473(b) setting aside an earlier order granting defendant’s motion for summary judgment in a personal injury case. Plaintiff’s attorney submitted a declaration in support of the motion explaining that, at the time that he prepared plaintiff’s summary judgment opposition papers, he was suffering from a serious illness for which he was under heavy medication. Although the attorney was unaware of it at the time, cognitive impairment caused by a combination of his illness and his medicated state led him to overlook readily available evidence. The Court of Appeal deferred to the trial court’s broad discretion in ruling on this type of motion. (C.A. 1st, September 2, 2016.)

Suarez v. Trigg Laboratories (2016) _ Cal.App.4th _ , 2016 WL 4655761: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike. Plaintiff had previously sued defendant for quantum meruit for consulting services provided by plaintiff to increase company profits and sell the company. That lawsuit was settled at a mediation for $175,000. Plaintiff did not know, at the time of the settlement, of communications that defendant and its counsel and potential buyers were engaged in regarding a sale of the business. When plaintiff later learned of these discussions, he sued to rescind the settlement agreement based upon fraudulent concealment, and again sought quantum meruit. The Court of Appeal ruled that the trial court properly granted the anti-SLAPP motion because the action arose from protected activities. The Court of Appeal did not consider the second issue, whether plaintiff could demonstrate a likelihood of success on the merits, because plaintiff/appellant raised no issue on appeal regarding this issue. (C.A. 2nd, September 7, 2016.) Visha Dev, M.D., Inc. v. Blue Shield of California Life & Health Insurance Company (2016) _ Cal.App.4th _, 2016 WL 4538397: The Court of Appeal affirmed the trial court’s summary judgment for defendants. Plaintiff’s claim for quantum meruit was barred because it was filed more than two years after he received the Explanation of Benefit letters. (C.A. 2nd, August 31, 2016.)

Employment Castro-Ramirez v. Dependable Highway Express, Inc. (2016) _ Cal. App.4th _, 2016 WL 4506089: The Court of Appeal reversed the trial court’s summary judgment for defendant. Plaintiff sued his former employer, defendant, alleging causes of action for disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), and wrongful termination in violation of public policy. Plaintiff’s son requires daily dialysis. According to the evidence, plaintiff must be the one to administer the dialysis. For several years, plaintiff’s supervisors scheduled him so that he could be home at night for his son’s dialysis. The schedule changed when a new supervisor took over and ultimately terminated plaintiff for refusing to work a shift that did not permit him to be home in time for his son’s dialysis. The Court of Appeal ruled that plaintiff had demonstrated triable issues of material fact on his causes of action for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. (C.A. 2nd, August 29, 2016.) Hott v. College of the Sequoias Community College District (2016) _ Cal.App.4th _, 2016 WL 4611056: The Court of Appeal reversed the trial court’s ruling that plaintiff was entitled to year-for-year credit for her 15 years of administrative experience as an administrator for defendant when determining her salary as a new faculty member after her administrative position was eliminated due to budget cuts. The Court of Appeal ruled that the trial court erred by finding plaintiff was entitled to a salary

greater than the maximum credit for five years of experience authorized in the collective bargaining agreement. (C.A. 5th, September 6, 2016.)

Government California Public Utilities Commission v. Superior Court (2016) _ Cal.App.4th _ , 2016 WL 4540053: The Court of Appeal granted a writ petition and commanded the trial court to set aside and vacate its order overruling a demurrer and to enter an order sustaining the demurrer without leave to amend. Public Utilities Code section 1759 bars the superior court from exercising jurisdiction over a lawsuit to compel the California Public Utilities Commission to produce documents under the Public Records Act. (C.A. 1st, August 31, 2016.)

Labor Hott v. College of the Sequoias Community College District (2016) _ Cal.App.4th _ , 2016 WL 4611056: See summary above under Employment.

Real Property Coastal Hills Rural Preservation v. County of Sonoma (2016) _ Cal. App.4th _, 2016 WL 4538384: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to overturn respondent’s approval of a proposed expansion of a Buddhist retreat center. The trial court correctly ruled that respondent had properly adopted a mitigated negative declaration in lieu of a formal environmental impact report in approving the third in a series of master use permits for real parties in interest Jack Petranker and the Head Lama of the Tibetan Nyingma Meditation Center. (C.A. 1st, August 31, 2016.) Lucioni v. Bank of America (2016) _ Cal.App.4th _, 2016 WL 4655762: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint seeking an injunction to prevent a foreclosure. In an action under the Homeowner’s Bill of Rights for violation of Civil Code section 2924(a)(6), requiring an entity initiating a foreclosure to be legally entitled to do so, injunctive relief is not authorized by either Civil Code section 2924.12(a)(1) or 2924.19(a)(1) and therefore is not available as a remedy for a violation of section 2924(a)(6). (C.A. 2nd, September 7, 2016.) Schellinger Brothers v. Cotter (2016) _ Cal.App.4th _, 2016 WL 4491450: The Court of Appeal affirmed the trial court’s judgment of $2,855,431.77 for plaintiff for breach of a contract to sell real property, following a bench trial. The Court of Appeal agreed with the trial court finding that defendant committed an egregious bad faith breach of his contract with plaintiff, and plaintiff suffered damages proximately caused by the breach in the amount fixed by the trial court. While the damages were of unprecedented size, they were expenses properly incurred in preparing to enter upon the land and consequential damages and therefore recoverable under Civil Code section 3306. (C.A. 1st, August 26, 2016.) n Attorney Journal San Diego | Volume 158, 2016

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Attorney Journal San Diego | Volume 158, 2016

COMMUNITY news n James P. Hill, a shareholder of the law firm Sullivan Hill Lewin Rez & Engel, was recently selected by his peers for inclusion in the 23rd Edition of The Best Lawyers in America® in the fields of Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law. Additionally, Hill was also recognized by Best Lawyers® as the 2017 Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization JAMES P. HILL Law “Lawyer of the Year” in San Diego. Only a single lawyer in each practice area and community is honored with a “Lawyer of the Year” award. A founding member of the firm, member of its Executive Committee and chair of the firm’s Insolvency and Commercial Bankruptcy practice group, Hill practices primarily in the areas of bankruptcy, insolvency and commercial law. His bankruptcy experience includes representation of creditors, bankruptcy trustees and select bankruptcy debtors in Chapter 11 business reorganization cases. He also works regularly with clients on asset sales and acquisitions, on state and federal court receivership cases, and on business workouts and dissolution matters, among other commercial law matters. n Jody A. Landry, a shareholder in the San Diego office of Littler, the world’s largest employment and labor law practice representing management, has been recognized as Best Lawyers Labor Law—Management “Lawyer of the Year” in San Diego. Inclusion in The Best Lawyers in America©, one of the longest running and most respected publications in the legal industry, is based JODY A. LANDRY entirely on peer review. For the 2017 edition, “Lawyer of the Year” accolades were designated to 5,254 individuals for their truly exemplary work in a specific practice area and metropolitan region, with only one attorney honored per specialty and location. In her practice, Landry handles a variety of employment litigation matters including single plaintiff, class and collective actions in state and federal courts. She regularly handles class actions involving a variety of wage and hour issues, and frequently works on audits to help clients avoid wage and class actions. Her clients include retailers, service establishments, manufacturing operations, transportation companies and recreational/leisure establishments.

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

Attorney Journal San Diego | Volume 158, 2016

DARRYL SOLBERG

DAVID BAGLEY II

JOHN HECHT

PAUL ROBINSON

n Four lawyers with Hecht Solberg Robinson Goldberg & Bagley LLP (HechtSolberg) have been designated among the Best Lawyers in America© for 2017 in a total of seven practice areas. The selections were made based on an exhaustive peer-review evaluation involving thousands of leading lawyers throughout the United States. “Three of the honorees, John Hecht, David Bagley II and Paul Robinson, have been listed consistently for 10 years in the area of Real Estate Law, illustrating the firm’s distinction and longevity in serving the real estate investment and development industry,” said Mickey Maher, managing partner at HechtSolberg. “They were joined by Darryl Solberg, who was recognized in three separate practice areas: Business Organizations (including LLCs and partnerships), Corporate Law and Real Estate Law.”

COMMUNITY news n Fish & Richardson has announced that San Diego-based IP litigator Juanita Brooks has been named an “Intellectual Property (IP) Trailblazer” by The National Law Journal (NLJ). This year’s IP Trailblazers annual list was culled from hundreds of nominations of leaders in patent, copyright, JUANITA BROOKS trademark, and trade secret law. Brooks, who is a principal in Fish’s Southern California office based in northern San Diego County, has a nationally recognized trial practice specializing in complex IP litigation. She has handled more than 150 trials in her career and has served as lead counsel in more than a dozen patent trials in the last few years. Brooks’ stellar record and reputation as an IP superstar has made her one of the most sought after patent litigators in the nation. Fortune 500 companies and start-ups alike turn to Brooks when the financial stakes are high. Her patent litigation success has protected billions of dollars of sales for her clients and made new patent law.

n Higgs Fletcher & Mack has announced that Partner and Business and Corporate Law Attorney R. Michael Jones was named President of the Association for Corporate Growth (AGC) San Diego Chapter. Elevated from Program Chair to President, Jones is responsible for R. MICHAEL JONES the leadership of the organization, which includes working with the committee chairs, board of directors and the Executive Director, Judy Susser-Travis. Known as the organization where executives, investors, lenders, capital providers, business owners and professionals come together to network and learn, ACG lays the foundation for many business deals and transactions while promoting the professional interests of its members through monthly breakfasts, happy hours and other networking events. Jones represents nearly 40 mid-market companies. His clients are in a wide range of industries including cleantech, electronic design and manufacturing, financial services, architectural services, real estate development, securities brokerage, food manufacturing and distribution, electronic components distribution and health care services. Prior to being named ACG San Diego President, Jones served as President Elect, Program Chair and was a member of the program committee.

n Seltzer Caplan McMahon Vitek is pleased to announce Hang Alexandra Do as the firm’s newest associate. Do joins Seltzer Caplan’s litigation department where her practice will center on insurance law, intellectual property, real property disputes and professional liability disputes. HANG ALEXANDRA DO Prior to joining Seltzer Caplan, Do was a litigation associate at the intellectual property firm Lewis Kohn & Walker. She also served as research assistant to Professor Robert Bohrer at California Western School of Law. Do received her J.D. from the California Western School of Law in 2015, completed all required coursework for a M.S. in Organic Chemistry from California State University, Fullerton and her B.S. in Biology from the University of California, Riverside. She is fluent in French and holds dual citizenship with the United States and France.

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Attorney Journal San Diego | Volume 158, 2016

Key Success Factors to Achieve Your Career Goals Y

by Brian Tracy

our primary goal should be to increase the likelihood that you will be one of those remarkable people who achieves greatly and makes a real difference with his or her life. And this is very much in your own hands. To realize your full potential, you must focus on your career goals, hard work and success factors. Free yourself as much as possible from randomness and uncertainty. You must organize your life in such a way that the probabilities of achieving your career goals are extremely high. You must learn the cause and effect relationships between what you want and how to get it through hard work and goal planning. You must take complete control over every part of your life and create your own future. You must leave nothing to chance.

LUCK OR HARD WORK? When people achieve great success faster than others, they are immediately accused of having “good luck” and rarely attribute it to hard work. When people make a mess of their lives, largely due to their own shortcomings, they dismiss it as “bad luck.” One of the reasons for this confusion about the reasons for success and failure is that most people don’t understand the difference between “chance” and “luck.” Chance refers to gambling, to casinos, to blackjack, poker, slot machines and horse racing. In games of chance, the outcome is almost completely out of your control and has nothing to do with success factors in life. Luck, however, is something completely different from chance. What we call “luck” is really the Law of Probabilities in action. The “lucky” individual has done many things that in combination dramatically increased the likelihood that his or her desired career goals would be achieved. If you examine the history of any great success, and review the many actions that preceded it, you will see that the success factors precede it; you will see a definite pattern emerge. You will see that the successful individual did many little things, sometimes for years, which made the final success possible.

THE BASIC PRINCIPLE OF ACHIEVING YOUR CAREER GOALS Here is a rule: There is a direct relationship between the number of different things you attempt and your likelihood of eventual success in achieving your career goals. If a new salesperson gets up early each morning, works hard, plans his day, works steadily all day long, talks to as many prospects as possible, follows up persistently, and continually 14

Attorney Journal San Diego | Volume 158, 2016

works on himself to improve his selling skills by reading, audio learning and regular attendance at sales courses and seminars, he is going to be far more successful than another salesperson who fails to do these things. His high earnings will not be a matter of luck but rather of design and hard work. Success factors in life and in your career goals are as follows, if you get a good education, thoughtfully match your career choice with your natural talents and abilities, and continually work to upgrade your skills and the value of your contribution to your company, your eventual success by achieving your career goals will not be the result of luck.

CREATE SUCCESS FACTORS FOR YOURSELF An additional luck factor is The Law of Averages, which is an extension of the law of probabilities. This law says that, “Although you cannot predict which one of a series of events will be successful, by the Law of Averages, you know that by doing a certain thing a certain number of times, you will achieve your career goals.” If you read more books, you are much more likely to read something that can help you in your work or personal life and you are adding to your success factors. If you put in hard work by making more sales calls, you will be much more likely to meet the prospect who has an immediate need for what you are selling and you are adding to your success factors.

ACHIEVE YOUR LIFE GOALS If you continually innovate and try new methods to achieve your goals or solve your key problems, you are going to be vastly more successful than someone who plays it safe and tries nothing new or different and you are adding to your success factors. If you wish to achieve success in life and reach your career goals, you must put in hard work and invest in the success factors that will get you there. n Brian Tracy is recognized as the top sales training and personal success authority in the world today. He has authored more than 60 books and has produced more than 500 audio and video learning programs on sales, management, business success and personal development, including worldwide bestseller The Psychology of Achievement. Brian's goal is to help you achieve your personal and business goals faster and easier than you ever imagined. You can follow him on Google+, Twitter, Facebook, Pinterest, Linkedin and Youtube.

& DD

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Anthony Dunne Dunne & Dunne, LLP 701 B Street, Suite 955 San Diego, CA 92101

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Renaissance Man Trial Attorney, General Counsel, and Actor Turned Mediator J. Daniel Holsenback Has Spent More Than 25 Years Preparing For His Final Act As A Mediator With ADR Services

by Jennifer Hadley

“I

have a background different than other mediators and that background makes me uniquely effective as a neutral,” says J. Daniel Holsenback, neutral with ADR Services in San Diego. Indeed, the former trial attorney, who previously served as Vice-President and Director of the San Diego County Bar Association, also counts experience as general counsel for companies in the real estate and software industries, as part of his varied background. Moreover, the AV-Preeminent rated attorney boasts white-shoe firm training, and served as a fivetime member of the San Diego Delegation to the annual California State Bar Conference of Delegates. He also carved a name for himself as a working actor, and was considered for federal and state judgeships. In addition, Holsenback, the winner of the 2002 SilverTongue Extemporaneous Speaking Competition, was repeatedly named one of the San Diego Daily Transcript’s Top Attorneys in the fields of Real Estate Litigation, Corporate Litigation, and Personal Injury. He also earned the distinction of being named one of the Top Lawyers in San Diego by San Diego Magazine. So what would prompt an established, respected trial attorney to switch gears at the height of his success, to focus on conflict resolution as a mediator with ADR? To hear Holsenback tell it, a convergence of life experiences made the formerly winat-all-costs attorney realize that his tolerance for conflict had decreased, until finally, he says “when it hit zero, I knew I was ready for a change.” Fortunately, his background had prepared him for just such a change, and as such when the opportunity to build a mediation practice with ADR in January 2016 arose, the timing was impeccable. “My life experience qualified me to be a mediator before I mediated my first case,” he says.

BACKSTORY “In sixth grade I leafed through the career pamphlet file at my local public library, and then read a book about Clarence Darrow and decided I wanted to be a trial lawyer,” Holsenback 16

Attorney Journal San Diego | Volume 158, 2016

recalls. “But by ninth grade that dream had become an either-or proposition. I was going to be either a lawyer or an actor,” he says. The son of an Imperial Beach fireman and a homemaker, Holsenback earned his Bachelor’s degree in Politics & Government at the University of Puget Sound, with a minor in theatre. He was twice a finalist for National Collegiate Actor of the Year. “I had acting chops, but when I was accepted at King Hall I chose to first pursue law,” he says. The decision would prove to be a game changer, but not because Holsenback was limited to law. On the contrary, his desire to be the best at everything he did would propel him to excel in both the law, and acting. After earning his J.D. from the University of California Davis School of Law, where Holsenback served as the Senior Notes and Comments Editor for the UC Davis Law Review, the recipient of the Patrick Hopkins Memorial Award for Outstanding Law Review Writer was given the opportunity to cut his teeth at Gray Cary Ames & Frye, San Diego’s largest law firm. “I was a member of the civil litigation and intellectual property department,” he recalls. However, within just three years, his own drive to excel had him striving for more hands-on experience. “After three years, I desired a chance at more first chair trial experience, plus more schedule flexibility, so I could simultaneously pursue acting and law. I met Don Tremblay, a fantastic trial lawyer who gave me that chance,” Holsenback says fondly. Things couldn’t have gone better for Holsenback. “Within a week of leaving Gray Cary I had a role at North Coast Repertory and a guest starring role on a television show,” he recalls. He continued working steadily as an actor while his legal career was in no uncertain terms, thriving. During the eight years he spent at what became Tremblay & Holsenback, “Don and I were panel counsel for several insurers and handled selected plaintiff cases as well. I firstchaired cases in areas including licensing disputes, copyright infringement, trademark infringement, patent infringement, legal malpractice, breach of contract, breach of fiduciary

ATTORNEY

OF THE MONTH

Â© Bauman Photographers

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duties, construction defect, insurance bad faith, shareholder dissolution and personal injury,” Holsenback says. Holsenback’s star continued to climb both in the legal community and in the entertainment industry. By day he was lauded for his legal acumen, taking $7.8 M judgments as first chair in a construction defect case, and by night performing as a standup comedian or reporting for work at San Diego Repertory for a two-person, 34-character play opposite Herbert Siguenza.

SECOND ACT After years of victory both onstage and in the courtroom, and not long after what Holsenback describes as the hallmark accomplishment of his firm, wherein Tremblay & Holsenback fought for and achieved the largest insurance bad faith settlement in California in 1998, the ever competitive attorney was ready to take on a new challenge. “In 2000, I answered the siren call of the dot-com era and became general counsel for a video game software development company, while also getting ready to wear the second hat of 18

Attorney Journal San Diego | Volume 158, 2016

actively serving as co-counsel for that company in precedentsetting copyright, trade secret, trademark, and patent litigation versus Sony in the United States District Court, Northern District of California,” he says. Still, within a year, he was ready for even greater diversity and new challenges, and consequently formed Holsenback APC in 2001. He spent the next 12 years as first-chair in plaintiff and defense cases involving agency relationships, breach of contract, breach of fiduciary duty, class action, construction defects, corporate dissolution, defamation, employment, fraud, indemnity, insurance bad faith, intellectual property (including copyright, patent and trademark laws), legal malpractice, personal injury, premises liability, product liability, professional negligence, real estate, respondeat superior, unfair competition, and wrongful death. Holsenback’s insatiable appetite and deserving reputation for winning, along with his involvement with the Bar Association, and his charitable works made him an easily recognizable face in the San Diego legal community. That is, he says, until personal adversity almost ran him out of the legal profession all together.

PLOT TWIST In 2014, Holsenback was faced with adversity beyond his own control. “It wasn’t just that I was trying to win cases. I realized that since I was a boy I had always viewed life as a win-lose game that had to be won. With this win-at-all-cost mindset, it is no surprise that the standards I set for my work, athletic performance, everything, were impossibly high and did not allow for the enormously important fact that the outcome of most things in life is beyond my control. Having clients come to me with their biggest problems, asking me to solve them, gave me an illusion of control, but life events, like the death of my father, and the end of my marriage forced me to confront my lack of control. I took a year sabbatical, studied exercise science at UCSD, spent as much time as possible with my son, and had decided to walk away from the law entirely,” Holsenback says candidly. The year away from law had a profound impact on Holsenback to say the least. Upon reflection, he realized that his inherent desire to help others solve problems was not abating. Instead, it was evolving. He began to realize that conflict is inevitable, but rather than remain forever in the midst of conflict, he wanted to help as many people as possible to navigate through conflict. To put it another way, he realized that rather than competing with others, he now wanted to help others navigate through their own conflicts. As fate would have it, during this time, a friend called on

Holsenback for help. “His real estate investment firm had a one-year project, where they asked me to head up their legal operations. That experience reminded me how much I missed solving legal problems. But I needed more time away from a desk, and I needed to be on my feet,” he says. “And by that point my tolerance for conflict was at zero.” Still, he recalled that “As a litigator, mediations were one of my favorite parts of my craft. Nowhere else do you get the chance to directly persuade your adversary. I had been encouraged by other mediators that mediation might be a good fit for me. That coupled with the personal adversity I was working through, made it clear that mediation as a career would be consistent with my personal development. I would be able to enjoy a new career where I did not have to personally win every case, but it is even bigger than that. My goal became to have a life where I didn’t have to win every moment, and thus, a life where balance, self-acceptance and compassion can take root and flourish; a life that is other-centered rather than selfcentered,” Holsenback says sincerely. Once the idea had taken shape, there was no stopping Holsenback, although he admits that his journey to mediator is unconventional. “Most mediators generally build up a mediation practice, easing into it, and phasing out of litigation. I didn’t do that. ADR really took a chance on me, because of my background. Having been a trial lawyer, with lots of mediation

STANDING OVATION One of the reasons Holsenback’s career as a mediator is off to such a strong start can be attributed to the fact that he is committed to mastering his new craft as evidenced by his recent completion of Mediating the Litigated Case at the Straus Institute at Pepperdine University. Holsenback’s experience as a business litigator and general counsel has led him to encourage the selective use of joint sessions, especially in business cases where the parties have a future relationship to preserve. “I see joint sessions, often, as a lost opportunity to: (1) directly persuade the opposition; (2) let each party see their attorney advocating their cause; and (3) to size up the opposition’s counsel (in effect getting a taste of trial). With a sufficiently strong mediator facilitating the process, it need not become the breast-beating exercise that caused it to go out of vogue.” Holsenback’s mediation style is not only giving him immense gratification, along with allowing warring parties to heal, but he’s also providing a venue for attorneys who are eager to work collaboratively. Suffice it to say, this opportunity has been well received to say the least. Christopher R. Allison, attorney at Gates, O’Doherty, Gonter & Guy LLP, says “I have had the pleasure of working with Dan for months on a challenging case that has not yet settled. Throughout this process, Dan has continually demonstrated the ability to listen, empathize, analyze, communicate, and persevere. I will continue to work with him on this case and look forward to working with him again on many future matters.”

Attorney Journal San Diego | Volume 158, 2016

and trial experience, coupled with having served as general counsel for two different industries made me unique,” he says. “But I didn’t bring a book of clients with me.” Thus after obtaining professional certificate training in Mediation Skills at Northwestern University, Holsenback embarked upon the final act of his career in early 2016. Suffice it to say, his unusual background has parlayed into a truly unique mediation style that is already earning him the praise of some of San Diego’s most renowned attorneys. John Gomez, Founder of Gomez Trial Attorneys, says, “Having worked closely with Dan as a litigator, I know how broad and deep his legal knowledge and understanding is. During the matters we handled together, Dan quickly identified the issues and the relative strengths of both the plaintiff and defense positions. His mind is uniquely sharp and his legal experience runs the gamut of different types of litigation. He is also a pleasure to be with and around. Whether a business, injury or some other matter, I would feel confident using him as a neutral to fairly mediate any matter.”

Likewise, Randy Kay, attorney at Jones Day, is glad to have Holsenback available as a neutral with ADR. “We need more mediators with Dan’s background in business and IP and I look forward to using him for the right case,” he says. With incredible support from the legal community, and a firm conviction that he’s found the perfect stage for the final act of his career, Holsenback is understandably excited about his future with ADR. “As a litigator, my practice focus shifted enough times where I can comfortably say, I have sufficient experience to mediate cases involving real estate to intellectual property, business and employment disputes, personal injury and insurance bad faith. Throughout the years, I enjoyed using ADR mediators such as Wayne Peterson, Mike Roberts and Steve Kruis. When I met with Dario Higuchi, Director of Operations for ADR Services, he impressed me with the fact-finding mission he had undertaken in an attempt to see what the market wanted from its mediators. They wanted them to be prepared, involved, caring and persistent. That’s a mission I can get behind and am proud to be a part of. I’m incredibly excited for this role.” n Contact J. Daniel Holsenback 225 Broadway, Suite 1400 San Diego, California 92101 USA P: (619) 233-1323 dholsenback@adrservices.org www.holsenbackmediation.com

How to Have a Successful Retreat: Walk on Water

by Bob Denney

lanning and conducting a successful retreat is like walking on water—it’s a lot easier if you know where the rocks are. The best way to find the rocks is to follow certain guidelines. Some of them apply to every retreat, regardless of the firm. Others vary, depending on the purpose of the retreat and the culture and goals of the firm.

Some of the Reasons for Holding a Retreat • To develop or approve a strategic plan. This is serious business.

• To discuss a major issue—such as a possible merger or

new compensation plan—or to launch a new marketing or business development program. This is also serious business.

• Begin planning far in advance; three months is the bare

minimum. Size is a factor here. A retreat for 200 people requires considerably more planning than a retreat for ten.

• Once firm management has decided on the purpose and

objective of the retreat, appoint a Retreat Committee and let them plan the retreat.

• The objective will determine who should attend all or at least part of the retreat: partners only, all lawyers, administrative managers, support staff? In any event, be certain that all firm leaders attend.

• Invite input, by questionnaire or interview, from those who will attend, on what they feel should be on the agenda.

• Don’t include routine operations matters on the agenda.

These belong in regular management or partner meetings.

• To discuss the “state of the firm.” This may be serious

• Hold on a weekend. Begin Friday. End by mid-afternoon

• To provide an opportunity for the members of the firm—or

• In most cases, select a site which will require everyone to stay

business.

all the attorneys—to communicate and socialize together. This is important.

• Even if there is no serious business, it is wise to hold a retreat annually. It is no coincidence that the firms with strong cultures and good internal communications generally hold an annual retreat.

Planning the Retreat • Clearly define the objectives—and be sure they can be accomplished.

Attorney Journal San Diego | Volume 158, 2016

Sunday.

overnight. The additional cost is worth it. Some of the best discussions occur over a drink after dinner or during a walk before breakfast.

• If it is a serious business retreat, consider having an

experienced outside facilitator who will also be involved in planning the retreat.

• The best schedule for a serious business retreat is no more

than three sessions, no longer than three hours each. Make sure that all topics can be properly addressed.

• Don’t schedule business sessions after dinner.

• Distribute the agenda well in advance along with any reports or “white papers” the attendees should review beforehand.

• The recreational facilities needed—golf, tennis, fitness

centers, etc.—depend on the attendees’ interests as well as the purpose of the retreat. Recreational time for a social retreat will be greater than for a serious business retreat. But, even in the latter case, break time is needed to allow ideas to percolate and the mind to breathe.

• Plan and check out every detail in advance. Murphy’s Law applies to retreats as well.

• Distribute to all appropriate parties minutes or a summary of the retreat. This is the final responsibility of the Retreat Committee and should be done promptly, i.e., within a week.

• It is usually the responsibility of firm management to

ensure that all follow-up action steps are taken and that the schedule for completing them is adhered to.

• Feedback is important. Firms often have all attendees

Conducting the Retreat • Strive for participation by everyone who attends. No one

should be allowed to hold his or her comments until a later date. On the other hand, no one should be allowed to dominate the discussions. These are some of the factors an outside facilitator can generally handle better than someone from the firm.

• Most people participate more actively in smaller groups so

include break-out sessions for in-depth discussion followed by reports to all attendees for further discussion as needed.

• Be sure all post-retreat, follow-up steps are understood and assignments made.SD Attorney Journal - 1st Proof.pdf 2015 Fragomen

Post Retreat Follow-Up

complete an evaluation form at the close of the retreat and turn it in before they leave.

A successful retreat is a tremendously uplifting experience— just like walking on water! In both cases it is worth the time and effort to determine where the rocks are. n 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.

1 10/6/2015 7:45:44 PM

Attorney Journal San Diego | Volume 158, 2016

Effective Strategies to Gain More Online Reviews by Jonathan Goudy

nline reputation management for law firms has been in the spotlight over the last couple of years and many law firms are going to great lengths to boost their online reputations. It is clear that the public loves to read the opinions and experiences of past clients before taking the plunge to commit to a particular law firm. Even if a potential client hears about your firm offline, chances are they will still go online to do their “homework.”

What Does Not Work Well Doing Nothing and/or Being Oblivious Reviews do not typically show up on their own. You must at least ask your clients to consider it, and often need to reiterate it to them during multiple stages along the way. At the very least, you should always be aware of what is being said about your firm and actively respond to your firm’s reviews. You should always thank clients for positive feedback and attempt to remedy any negative review received. Not being involved or ignoring comments could negatively impact your reputation. By always responding to comments and reviews you will be in a better position to control the narrative about your firm. Getting to it When Time Permits If your law firm is struggling to gain more online reviews, you need to take a closer look at your current strategy. Focusing on reviews “as time permits” is one of the most common issues we see when there are a lack of reviews. If you can make time for it, and make it a top priority of the firm, you will likely see the results you seek. Perhaps your only method to gain reviews is to send an email to your previous satisfied clients once a month, requesting their feedback. Unfortunately this method often receives little response and cultivates a very small volume of published online reviews for firms each year.

What Does Work Well Have a Dedicated Employee Focused on Reviews If budget is an issue, make reviews a primary focus for one of your current employees. Delegating the responsibility to request reviews and follow up with satisfied clients is a great strategy for gaining more reviews. You could even consider incentivizing that person with a small bonus for each review they are able to collect. Having seen this method in action, a law firm has the potential to increase their reviews significantly in a small amount of time. 24 Attorney Journal San Diego | Volume 158, 2016

Online Review Software Management Systems Implementing an online review software system such as BirdEye is another method for gaining more reviews. A system like BirdEye can take the guesswork out of the reviews process by continually following up with clients through email and text. BirdEye makes leaving reviews very easy by providing clients a link. If your firm is closing a high volume of cases a month, Podium might be a good option for you. Podium is another online review software system, though it has a higher price tag than some others. Podium builds their application programming interface (API) code into your case-management software, so anytime a case closes in your system, the client receives a text and an email. Podium also works well for international law firms, making it possible to text review requests to international phone numbers.

Other Important Tips In order for your law firm to continue to gain online reviews you must have an online presence. Make sure your firm is listed on applicable review sites and spend time building and maintaining your online presence. Some important tips to remember when working to get more online reviews: • It is vital not to wait too long to request a review. As time passes, the enthusiasm of your satisfied client may slip away. • Make your strategy a priority. Even the best intentions fall flat without dedication to your review-gaining plan. • Don’t create work for your client. Make the review process as simple as possible. Provide clear instructions, links and encouragement. • Don’t panic in the face of a negative review. As you continue to grow positive reviews, a negative one won’t hinder you. Besides, having fifty 5-star reviews is a little unnatural and can appear suspicious. • Always be sure that your techniques for collecting online reviews are in accordance with state and local bar guidelines, laws, and requirements of various review platforms. Gaining online reviews can positively impact your marketing efforts and is essential for the growth of your firm. We hope these tips will equip you and your firm to make generating client reviews a part of your firm’s daily agenda. n Jonathan Goudy is a Marketing Consultant for ConsultWebs and directs and coordinates clients’ online marketing efforts, with a specific focus on generating qualified leads. Learn more at www.Consultwebs.com.

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Attorney Journal San Diego | Volume 158, 2016

3 Steps to Business Development Simplicity by Mike O’Horo For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com.

hy do so few lawyers engage in business development, despite abundant and inarguable evidence of its necessity? Many lawyers have told me that the biggest barrier to getting started is feeling overwhelmed, not knowing what to do, or how to begin. Fair enough. You’re not alone. Psychologists cite three obstacles to getting started:

62%

Mental Paralysis

44%

Procrastination

38%

Distraction

You’re paralyzed and unable to start

Not starting due to boredom or lack of motivation

Tried to start but got distracted or interrupted

According to the Getting Started Blues survey, the most frequently cited reason for being stuck is feeling “overwhelmed with so much to do” (68%). Lawyers can certainly identify with that. Others cited “how-to” reasons: • Inability to prioritize—38% • Don’t know where/how to start—33% • Inability to plan out the project—22% • Unclear direction—18% Lawyers trying to begin business development for the first time, or trying to do it in a serious way for the first time, may experience all of these. In my observation, one significant cause is complexity. The legal industry media is awash in articles about business development, each advocating for one or more of dozens of strategies and tactics.

Attorney Journal San Diego | Volume 158, 2016

There are two major categories of business development:

Opportunity Generation Enabling those who need your help to recognize that, and motivating them to contact you to discuss those needs.

Opportunity Conversion Helping those who contact you to make a good decision about what they should do, if anything. In today’s businses development conversation, you’ll be inundated with discussions about the why, what, and how of social media, inbound marketing, content marketing, search engine optimization, and any number of other buzzwords. If you didn’t already arrive at the task confused and overwhelmed, that should get you there pretty quickly. Most of the complexity relates to the choice of channels you’ll communicate in, and which mechanisms and tools you should use to optimize that. The good news is that in the beginning those questions are premature. They’re the equivalent of arguing whether you should fly or drive on your vacation before you decide what you want to do and where you want to go. Let’s boil this monster challenge down to its three essential components:

A service to sell.

Not just any service, but the one that you most enjoy providing. Money is only part of your compensation. Another, important one, is doing work that you find challenging, stimulating, and interesting. That’s when you’re at your best, and when it feels least like work. This work must solve a problem that has sufficient impact (strategic, operational, economic, emotional) that, once people recognize that impact, they deem it unacceptable and feel compelled to take action, accept risk, and commit funds. For example, you may love figuring out creative structures to attract expansion capital to growth-stage companies.

Someone to sell it to.

As with your choice of service focus, not just anyone. You need to define an identifiable group of people who share certain characteristics that cause you to conclude that they are very likely to have this problem, acknowledge having it, and to acknowledge its consequences (strategic, practical, economic, emotional). One common shared characteristic is industry. Companies in the same business are likely to experience the same problems. Not all of them at any one time, but most of them at one time or another. Unless they’re outliers (which we can always ignore), they’re almost certain to encounter this problem at some time or another. You may even be able to predict the life cycle stage at which it’s most likely to occur. In our capitalization example above, we might conclude that the typical Silicon Valley-style consumer tech startups don’t need to raise enough capital at any one stage to require multiple sources with differing interests to coalesce, or that their product-development cycles are too short to require your degree of complexity. You may conclude that a capitalintensive industry such as polymers is opportune due to its heavy R&D requirements, and the need to cobble together disparate investors such as manufacturers, materials suppliers, and customers. (My apologies to anyone in the polymer business who is laughing at my ignorance. This is purely an illustration of logic.)

A way to communicate with those “someones.”

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At the very least, you need communication channels that are established and trusted, and that reach a sufficient number of people who care about your problem frequently enough for you to get noticed, establish relevance, and form the desired impression. This is where today’s large discussion about social media, content marketing, etc. comes in. Social media such as Twitter, Facebook, LinkedIn, Medium, Instagram, Quora and others are channels. As are blogs, email, article placement, and public speaking at conferences. They’re the vehicles that enable others to receive your message and decide how relevant your message and you are to them. They enable you to remain in contact with those who are likely to be faced with the problem you solve, long enough for you to establish your relevance to that circumstance, and still be in contact when the time comes for them to take action to solve it.

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7/12/13 5:04 PM

Specific Facts Build Powerful Marketing Arguments by Trey Ryder

awyers often carry out marketing programs under the misconception that if they offer general information about their practice, their prospects will figure out the rest. Wrong! If you assume your prospects will fill in the blanks, you’re asking too much. For example, if I said to my prospects, who are attorneys, “I’m a marketing consultant for lawyers” and told them nothing more, I might get a few phone calls, but not enough to sustain a business. As consumers, you and I are bombarded with hundreds of marketing messages every day. We do our best to screen them out unless the product or service interests us. The problem is, sometimes we get so good at screening out advertising that we exclude even those ads that could have helped us had we paid attention. Then we turn the tables. As marketers, you and I take little comfort knowing that our prospects try to screen out our messages as successfully as we screen out messages from other advertisers. How you craft your marketing message and how you deliver information directly relates to whether your prospects focus on your message or tune it out. The most powerful marketing messages are specific and direct. They leave nothing to your reader’s imagination. What’s more, you’ll find that the more information you provide, the more your prospects believe your message because it is positive and specific. These tips will increase your prospect’s interest, your credibility, and your chances of getting the response you want. Apply these tips through all of your marketing communications: Tip #1: Provide full facts that support your marketing message. When you identify and prove the problem exists— and identify and prove your solution works—you should include specifics, numbers, facts and detailed descriptions in every step. Here are sample statements about lawyer marketing. Which do you find most persuasive?

Attorney Journal San Diego | Volume 158, 2016

Statement 1: Lawyers who market their practices increase their average income. Statement 2: Lawyers who market their practices increase their average income by 300%. Statement 3: Lawyers who market their practices increase their average income from $75,000 to $225,000 per year. Summary: Statement one offers no specifics. It may be true, but you find no facts on which you can rely. It is nothing more than an unsubstantiated claim. Statement two is more vivid because of the 300%, which is clearly an eye opener. Statement three is the most persuasive because it gives exact dollar amounts that you clearly understand, rather than a percentage. Disclaimer: Don’t rely on these numbers because I made them up. But even if the numbers aren’t correct, they look correct because they are specific. Specifics create the appearance of truth. Your marketing is vivid, persuasive, and credible when you include specifics. No question, when you write in generalities, you write more quickly. But the time it takes to research and include precise facts is well rewarded because your persuasive powers increase dramatically. Tip #2: Invite your prospects to take action. At one time or another, you’ve probably called a business only to find that the person who answered the phone was less than helpful and, perhaps, downright rude. After we experience this a few times, all of us wonder whether our calls are welcome. In your materials, use statements like: I invite you to call with your questions or concerns. I’ll be happy to talk with you over the phone or in person, whichever you prefer. You could rephrase it, focusing on “you”: You’re invited to call me to discuss your company’s legal matters. I’ll be glad to talk with you over the telephone, or in my office or yours, whichever is easiest for you. Tip #3: Tell prospects the action you want them to take. The more you leave to chance, the more you risk that your prospect won’t do anything. Here are a few action statements:

• To receive your free copy of my Executive Briefing on Director’s Liability, call (phone number) or e-mail (address). • If you’d like to talk with me over the telephone, call (phone number). • Call now to reserve your seats for my next seminar: (phone number). Tip #4: Tell prospects how easy it is to respond. Your prospects may perceive contacting you to be such a hassle that, instead, they decide to “just forget it!” What’s more, they may hate leaving messages because not all lawyers return phone calls. Take these steps: Tell prospects how easy it is to respond to your offer. Then assure prospects that, if you’re not available when they call, you’ll return their calls promptly. For example: • You can reach me by phone (number), fax (number), or e-mail at (address) — whichever you prefer. If I’m with a client when you call, I’ll get back with you just as soon as I’m available. • You can reach me simply by picking up the phone and dialing (number). If I’m out when you call, I promise I’ll return your call just as quickly as I’m back in the office. Tip #5: Tell prospects the specific services you offer. Law has become so specialized that your services may be more narrow or broad-based than your prospects expect. The only specific, direct way to cover your bases is to describe in detail the services you offer. Because if your prospects don’t think you provide a particular service, they’ll call someone else. To attract prospects who need specific services, you should spell out in your marketing materials the services you offer. Tip #6: Name the specific clients you serve. If your field of law is broken down by the types clients you serve, spell out those types or groups. If prospects don’t see their group in your materials, they could easily conclude that you won’t represent them. Tip #7: Provide specific facts whenever possible. One of my friends is a trial attorney who won the largest judgment in Arizona. When I refer a prospect to him, if I told the prospect only that he is a trial attorney, they might not know what that means. This is because people think of lawyers more for the types of cases they handle and the type of law they practice than for the methods they use (trial) to achieve the result. So, instead, I give them key facts on which they can rely: First, I say he is my friend, which transfers my credibility to him. Second, I say he won a $1,500,000,000 judgment at trial, the largest ever awarded in Arizona, which proves he is a skilled, experienced lawyer. Third, I say he has handled several cases for my wife and me, which serves as our testimonial. Three key facts, all true, all specific, and all designed to help the person decide whether to contact this lawyer. In conclusion, you hurt your marketing effort when you use words that are not specific or direct. Don’t assume anything. Spell out everything. Generalities hurt. Specifics persuade. n Trey Ryder specializes in Education-Based Marketing for Lawyers. He designs dignified marketing programs for lawyers and law firms in the United States, Canada and other English-speaking countries. Trey works from his offices in Payson, Arizona, and Juneau, Alaska. To read more of Trey’s articles, visit the Lawyer Marketing Advisor at www.treyryder.com. Attorney Journal San Diego | Volume 158, 2016

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