Attorney Journal, San Diego, Volume 120

SAN DIEGO

Volume 120, 2013 • $6.95

3 Things Every Lawyer Needs To Know Before Hiring an Assistant and Seeing the ROI McIntyre’s California Civil Law Update Organized Succinct Summaries

Monty A. McIntyre

Closing Skills of Successful Rainmakers…and Other Myths

Cindy Greenway

Off the Books Management: Managing the Non-Financial Assets of the Law Firm

Eric Dewey

Timothy B. Corcoran MEDIATOR OF THE MONTH

James H. Mayer

Edward “Skip” Babbitt Attorney of the Month

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2013 EDITION—NO.120

TABLE OF CONTENTS features 6 Closing Skills of Successful Rainmakers… and Other Myths

by Timothy B. Corcoran MEDIATOR OF THE MONTH

10 James H. Mayer

10

by Jennifer Hadley

EXECUTIVE PUBLISHER Brian Topor

12 COMMUNITYnews

EDITOR Nancy Deyo

ATTORNEY OF THE MONTH

16 Edward “Skip” Babbitt

CREATIVE SERVICES Skidmutro Creative + Layout

by Jennifer Hadley

CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Cindy Greenway Eric Dewey Monty A. McIntyre Timothy B. Corcoran Christopher Walton Steven Kruis WEBMASTER Chase Jones ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

22 Off the Books Management

15 24 3 Things Every Lawyer Needs To Know Before Hiring an Assistant and Seeing the ROI

Managing the Non-Financial Assets of the Law Firm

by Eric Dewey

27

You Need an Assistant Who Can Help You with Practice Growth Strategies—More Than Just Day-to-Day Legal Client Work.

But Where Do You Start?

by Cindy Greenway

27 McIntyre’s California Civil Law Update

Organized Succinct Summaries

by Monty A. McIntyre

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.

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Closing Skills of Successful Rainmakers …and Other Myths

By Timothy B. Corcoran

I was recently invited to present at a law firm retreat on the topic of closing skills, presumably in the hopes that my remarks would magically transform reluctant partners into willing rainmakers.

As the partner in charge of retreat planning said to me, “We need to give our weaker partners a shot at carrying their own weight; otherwise we need to make some changes.” Before agreeing to present at the retreat, I asked the partner if the successful rainmakers would be in attendance and open to new ideas as well. He assured me that attendance was mandatory for all, and if I needed help the successful rainmakers would be happy to contribute anecdotes of their own successful techniques. We then proceeded to talk basketball, as we both shared an interest in an NBA team that was likely headed for the playoffs.

When I delivered my remarks at the retreat, I included a number of basketball analogies. Yes, I know, sports analogies are trite and overused and often gender-biased. But the quote providing the theme for my remarks was offered by legendary UCLA basketball coach John Wooden, whom I’ve quoted previously, and has wide appeal: “It takes ten hands to make a basket.” In short, my goal was to bust the myth that rainmaking is a skill akin to scoring in basketball, that a successful law firm simply needs more scorers to thrive.

The reality is it takes a coordinated effort between lawyers who are successful at networking and generating visibility for the firm, and lawyers who can not only successfully understand a client’s business challenges but create custom solutions to address the challenges, and lawyers who deliver the legal work necessary to achieve the desired outcome, and lawyers tasked with managing the project and ensuring that it stays on track and on budget, and lawyers who continually communicate with the client to minimize surprises and stay abreast of new developments, and 6

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staff professionals who provide support for all of the above, and so on. This is not unlike a basketball game in which one player boxes out the opponent and secures a rebound, and another player pushes the ball up court, and another player sets a screen to free a teammate, and another drives to the basket and draws the attention of several defenders, and another player spots up in the corner so when the driving player passes the ball, he takes and makes, the open shot. Beautiful basketball is a team sport, and so is running a successful law firm.

Not only are there no magical words that will transform reluctant rainmakers into gregarious, glad-handing, backslapping master networkers, there is no certainty that finding or developing such skills is a guarantee of success. Here are five common myths about rainmaking that we can dispel right now, with corresponding suggestions for alternate approaches:

Rainmaking is not the same as networking.

While being visible in the community of clients and potential clients is important, it’s only one facet of rainmaking.

Some lawyers enjoy, or at least can tolerate, the cocktail and conference circuit, and the visibility is undoubtedly beneficial.

But simply becoming known is only part of the equation. And there are many ways to become visible, including authoring scholarly articles on substantive legal matters, blogging about emerging trends of interest to clients, using social media to become known “virtually” in the desired circles, speaking at

client events, volunteering on charity boards alongside potential clients, and much more. There are opportunities for lawyers of all personality styles to successfully generate visibility.

Rainmaking is not the same as asking for the business.

There are countless sales books on closing techniques, most of which are helpful when you’ve run out of kindling for your fireplace or lighter fluid for your charcoal grill. But as guides to successful professional tactics to win business, most do more damage than good. When’s the last time you, as a consumer of goods and services, felt great about a purchase in which you were manipulated to buy something you didn’t need, or paid a price higher than necessary? Closing techniques are about manipulation, but successful consultative selling is about matching the benefits of your offering to a client’s stated needs.

If your lawyers are meeting a lot of prospective clients but not winning new engagements, it’s likely they need work on asking questions to better understand needs, not making clever statements to entice the prospect to buy.

Rainmaking is not the same as discounting.

In every sales organization, there’s always a sales manager or executive we call the “hero.” She’s the one that demands all of her salespeople remain firm on price but when a sale has to be made,

often at the end of the month or the quarter, she will offer the brilliant insight that only a seasoned manager of special talents has, and promise a steep discount to close the deal. These heroes are toxic. The salespeople aren’t allowed to use the same tactics and the clients know it, so savvy clients have the patience to wait until the hero is called in. Law firms that employ undisciplined discounting to win work erode profitability and create internal price pressure because clients accustomed to discounts from practice A will demand it from practice B. If your primary tactic to win work is lowering the price, then your rates are either too high to start or you haven’t demonstrated sufficient value to the client to justify your expense. Organizations that don’t perpetually rely on discounts focus on quantifying the cost to the client of not acting, and quantifying the benefits of a favorable outcome, and quantifying the value the firm can bring in delivering the desired outcome.

Rainmaking is not the same as growing top line revenue.

Whether it’s winning new engagements or recruiting laterals with a portable book of business, many law firms focus on new revenue. As the old saying goes, all revenue is good revenue. But like many old things—eight-track tape players and wooden skis come to mind—we should stop using it. What this approach ignores is the cost of sales. Any analysis of law firm finances demonstrates that it’s far more efficient, and far more likely, to cross-sell services to existing clients than to sell new services to Attorney Journal | Volume 120, 2013

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new clients. Yet most firms put far more time and energy into selling services to new clients while ignoring effective methods to delight and retain existing clients. And no matter how many times we hear that clients treasure law firms that provide predictability, we fail to make the connection that excellent lawyers who rely on deep subject matter expertise to manage legal projects tightly are as critical to retention (and revenue) as those who bring in new engagements.

Rainmaking is not the same as generating profit.

Too often firms focus on top line revenue without regard to the cost of delivery. If I can earn $5 million in new fees, but it takes $6 million to deliver the legal work, this is obviously a bad idea—yet many jump at the opportunity, presumably under the delusion that what they lack in profit potential they can make up with poor math skills. Even if I can deliver the legal work for $4.5M and generate $0.5 million in profit, it may still be a bad idea if those same resources devoted elsewhere could have delivered $1 million in profit. Managing legal projects profitably has as much (if not more) to do with service delivery than rates. If the client will only pay $1 million for legal services that once generated $2 million in fees, the savvy firms

find ways to lower the cost of delivery so as to turn a profit at the lower fee level. The clueless firms continue to hunt for dumb clients willing to pay double the market value, possibly by coercing them through clever closing techniques.

Managing a modern law firm is challenging, just as making the playoffs is difficult for a basketball team in a competitive league. Those basketball teams that identify the various skills of their players and combine them together in unique ways to maximize strengths, minimize weaknesses and exploit opportunities presented by competitors tend to win more games and championships than those teams who believe recruiting top scorers is the key ingredient for success. Law firms must also recognize that rainmaking isn’t about clever closing techniques or finding that elusive client willing to pay far more than anyone else for a service. It’s about maximizing all of the firm’s resources to find, win and keep clients, and this requires everyone to contribute. And while many contributions won’t appear on the stat sheet after the game, champions know that it takes the entire team to win. n Timothy B. Corcoran delivers keynote presentations and conducts workshops to help lawyers, in-house counsel and legal service providers profit in a time of great change. To inquire about his services, contact him at +1.609.557.7311 or at tim@corcoranconsultinggroup.com.

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Attorney Journal | Volume 120, 2013

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Attorney Journal | Volume 120, 2013

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No Substitute For Experience

By Jennifer Hadley

James Mayer, Esq.’s inimitable experience results in solutions, savings and satisfaction for clients.

JOURNAL

FEATURED MEDIATOR

OF THE MONTH

2013

W

ith a resume that boasts Rufus Choate Scholar, graduation with Distinction from Dartmouth College as a National NROTC Scholar, Harvard Law School (with honors), a Defense Superior Service Medal for service in Desert Storm and the Legion of Merit, the title of Rear Admiral, and senior officer in the Naval Reserve, it would be understandable if James Mayer had a bit of an ego.

However, from the moment he begins speaking, it’s obvious that nothing could be further from the truth for the retired senior corporate partner at Pillsbury Winthrop Shaw Pittman (formerly Pillsbury Madison & Sutro). Jim Mayer is instead extraordinarily affable and humble. What comes through instead is a clear passion for solving problems, and a palpable excitement in regards to finding solutions.

SOLUTIONS

Mayer’s ability to offer solutions to disputing parties can be traced to his vast experience as both an attorney, logistics supply officer and for the past 21 years, mediator. As a Martindale-Hubbell AV rated attorney since 1980, during his career at Pillsbury Winthrop 10

Attorney Journal | Volume 120, 2013

Shaw Pittman, “I represented partnerships, start-up companies and some of the largest international corporations,” he recalls.

His work involved everything from setting up the initial VISA card operation, and the initial public offering of credit scoring pioneer Fair Isaac Company (FICO), to representing Chevron in its acquisition of Gulf Oil Corporation, in a staggering $11 Billion deal. In fact, it was Mayer who opened the Pillsbury firm’s office in San Diego in 1988 with an associate. Today the firm has 43 attorneys in its San Diego office.

In 1992, however, an opportunity arose that would allow Mayer to begin learning the ropes of solutions for all parties involved in a case, as opposed to representing just one side of a dispute. “In 1992, Bates-Edwards Group, one of the leading mediation firms on the West Coast wanted to open a San Diego office. Pillsbury had an advisory partner program which provided a flexible opportunity to join Bates-Edwards. My mediation training included basic theory from San Diego’s National Conflict Resolution Center and an advanced training through CDR Associates, Negotiation Strategy Institute, Institute of Conflict Management and Professor Mnookin, now Director of

the Negotiation Project at Harvard,” Mayer says.

In 1994, armed with years of experience as an attorney, and having just retired as a Rear Admiral and the senior officer in the Naval Reserve, Mayer became an independent mediator. Three years later, he retired from Pillsbury as a senior corporate partner to become a full time mediator. And to hear him tell it, it has been one of the most rewarding decisions he’s ever made.

“ ”

If you give me enough time, I believe I can solve just about anything.

Mayer’s multi-faceted background makes him unique in mediating disputes, particularly ones with a commercial or business nexus where negotiating skills are crucial. “Many of these cases require an understanding of the underlying business aspects and development of creative solutions beyond monetary figures,” Mayer says.

It is precisely the development of these creative strategies for solution that Mayer finds tremendously gratifying. When it comes to professional business disputes, for example, Mayer relishes such challenges as “unwinding the transaction,” and admits that his “business background and logistics supply experience does come in handy.” In order to focus the parties, Mayer encourages them to exchange briefs, but also welcomes confidential letters from both parties. He usually meets one on one with each party at the beginning of mediation sessions, so that he can get to know those involved on a personal level.

Mayer also encourages parties to have a joint session, but honors requests to decline if the parties prefer not to participate.

These strategies have paid off astonishingly well for Mayer and his clients, as he’s earned a more than 90% settlement rate over the course of his career. Not surprisingly, his talents haven’t gone unnoticed.

For the past 15 years, Mayer has been one of a few mediators to serve in San Diego on the Financial Industry Regulatory Authority (FINRA) panel. He also serves on the San Diego Superior Court’s mediation panel. This year he was also named among 2013 top lawyers (mediation) by San Diego Magazine.

SAVINGS

Mayer is a firm believer that most disputes can be solved, and in many cases, relationships preserved. For example, when talking about employment contracts and harassment disputes he says that sometimes, a mere apology from a senior official can go a long way. “Most people don’t want to lose their jobs. There are friendships involved and recognition at stake. A 32 year old client often doesn’t want to get a payout and just sit around.

Primarily, they want the harassment or discrimination to stop.

This opens the door to a wide variety of solutions.”

In fact, Mayer chuckles when saying “if you give me enough time, I believe I can solve just about anything.” However, that doesn’t mean that he’s out to rack up hours to bulk up his earnings. “I don’t nickel and dime people,” he says. On the contrary, Mayer charges roughly ½ the hourly rate that other experienced mediators charge. Moreover, he doesn’t charge for travel to mediations. The savings he’s passed on to clients as a result of mediating disputes in Nevada, Arizona, and Hawaii, in addition to California, is therefore significant.

“I believe that results are much more important than income generation,” Mayer says. In fact, it takes some prodding to get him to admit that quite frankly, he isn’t dependent on income from mediation these days. He mediates because he loves it. He loves the challenges, and the opportunities to sort out complex issues to the satisfaction of the parties. However, he concedes that in order for parties to put forth their best efforts, there does need to be an investment. Mayer has found that “they do need to have something at stake.” All the same, Mayer doesn’t book multiple mediations in a single day, nor does he charge for perhaps the greatest use of his time—thinking about a particular case; he instead, merely bills for sessions and reviewing background material.

SATISFACTION

For Mayer, the problem-solving strategies employed to bring about resolution, not only result in satisfaction for clients, but for himself, personally. In regards to the joint sessions he holds between parties, “it is an interesting process to keep under control, and to observe personalities,” he says. “In disputes often the apparent problem masks underlying emotional issues. Persistence, patience, listening skills and understanding the underlying issues are crucial to achieving the agreement of the parties,” Mayer explains.

Indeed, there are very few challenges that don’t get Mayer excited. When it comes to general commercial and business, real estate, corporate & securities, employment and environmental disputes, Mayer is eager for the opportunity to help. “I just like to be useful to society,” Mayer says of using his expertise to help bring about satisfied clients.

With more than 1,000 mediations under his belt, Mayer has an almost childlike enthusiasm for the work he feels lucky to be able to do. “I like solving problems. I find the process fascinating.” n Contact: James H. Mayer, Esq. Mayer Mediation Services just-results@msn.com 7924 Ivanhoe Avenue, Suite 3, La Jolla, CA 92037 Phone: 858-551-5525 | Fax: 858-551-5554

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COMMUNITY news nFish & Richardson has been named to the National Law Journal’s (NLJ) “2013 Appellate Hot List” as one of 20 firms “doing killer appellate work before the Supreme Court, federal circuit courts of appeal and state courts of last resort.” This is the third time that Fish has been named to the “Appellate Hot List.” Last month, Fish was named to the NLJ’s second annual “IP Hot List” for the ANN CATHCART CHAPLIN second year in a row.

The NLJ noted Fish’s unique “no egos” approach to its appellate cases, with an elite core briefing team “in charge of crafting rock-solid legal arguments” while the arguments themselves are handled by the trial attorney who is most knowledgeable about the case.

“It’s an honor to again be recognized as one of the country’s top appellate firms,” said Ann Cathcart Chaplin, Litigation Practice Group Leader at Fish & Richardson. “Complicated IP appeals that involve precedent-setting and industry-changing legal and technical issues are our specialty. Our clients not only stick with us when an appeal is necessary, but we are often hired to handle appeals in cases other firms have lost.” nFisher & Phillips LLP is pleased to announce that three of its San Diego attorneys, founding partner Chris Hoffman, and partners David Monks and Regina Petty, have been selected for inclusion in this year’s 2013 San Diego Super Lawyers®.

Hoffman is the founding and managing partner of the San Diego office. He represents employers in CHRIS HOFFMAN matters ranging from wage-andhour class action litigation to traditional labor matters. He regularly assists employers to draft and enforce arbitrations agreements, and successfully argued one of the most often cited decisions from the California Supreme Court in this area, Little v. Auto Stiegler.

Monks counsels employers on a wide variety of matters, including employee discipline and termination, wage-andhour issues, disability accommodation protocols, family and medical leave issues, investigations of harassment and other misconduct, and independent contractor issues.

Petty practices in state and federal courts at the trial and appellate levels and is experienced in multi-district and class action litigation. She successfully argued Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 before the California Supreme Court, a case noted on Bender’s California Labor & Employment Bulletin’s top ten list of most significant cases and trends for the Fair Employment and Housing Act’s fiftieth anniversary.

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nBuchanan’s experience handling approximately 300 appeals and writs in state and federal appellate courts includes briefing, arguing, and winning a unanimous decision in the U.S. Supreme Court in Williamson v. Mazda Motor of America, Inc., 131 S.Ct. 1131 (2011). Williamson was a products liability case against Mazda for failure to install a lap/shoulder seatbelt in the aisle seat of a minivan.

MARTIN BUCHANAN On October 26, 2012, the Consumer Attorneys of San Diego presented Martin with the Outstanding Advocate Award for his victory in Williamson.

In 2012, California Lawyer magazine awarded Martin a prestigious California Lawyer Attorney of the Year (CLAY) award in the appellate category. In 2011 and 2012, he was recognized as one of 500 Leading Lawyers in America by Lawdragon. In 2011, he was named as one of the Top 100 Lawyers in California by the Los Angeles Daily Journal and one of the Attorneys of the Year by The Recorder. Martin has also been selected as one of the top appellate lawyers in Best Lawyers in America and San Diego Super Lawyers, which listed him as one of the Top 50 Lawyers in San Diego in 2011, 2012, and 2013.

He is a recipient of the Paul Bell Memorial Award for appellate advocacy and two-time recipient of the California State Bar’s Manuel W. Wiley Award for Pro Bono Legal Services.

Cynthia Morgan, partner at Higgs Fletcher & Mack, was recently elected Board Chair of Civic San Diego (formerly Centre City Development Corporation and Southeastern Economic Development Corporation).

In addition to overall Board management, Morgan will make committee appointments and strategically CYNTHIA MORGAN assemble Working Groups that will take on heightened issues addressing neighborhood-specific concerns.

“I am thrilled to have been elected Chair of an organization with a great history that is transforming itself to meet the economic development needs of the City,” said Morgan, former Treasurer of the Board and land use attorney. “The Board is a collective of experts dedicated to making San Diego a better place; Civic San Diego is the vehicle that allows us to do this.”

Civic San Diego (CivicSD) has made a number of recent announcements, including the implementation of an Affordable Housing Master Plan for downtown and surrounding areas as well as receiving its first federal tax credit allocation worth $35 million.

The Board will continue to help execute CivicSD initiatives, find more financing, encourage the building of affordable housing and focus on outlying neighborhoods to further economic goals for redevelopment project areas.

COMMUNITY news nPettit Kohn Ingrassia & Lutz is pleased to announce that three shareholders in the firm’s San Diego office have been selected for inclusion in the 2013 San Diego Super Lawyers list: Douglas A. Pettit for Professional Liability: Defense, Thomas S. Ingrassia for Employment Litigation: Defense, and Jennifer N. Lutz for Employment & Labor.

DOUGLAS A. PETTIT Pettit is a founding shareholder and chair of the firm’s Professional Liability and Business Litigation groups. He has been listed in Best Lawyers in America every year since 2011 and the San Diego Super Lawyers list every year since 2007.

In 2013, Doug also received the distinction of being on the list of the “Top 50” attorneys in San Diego for JENNIFER N. LUTZ the third time.

Ingrassia is a founding shareholder and co-chair of the firm’s Employment & Labor group. He has been selected for inclusion in the San Diego Super Lawyers list every year from 2008 – 2013, listed in Best Lawyers in America and The Daily Transcript honored Tom as one of San Diego’s Top Attorneys in 2011.

Lutz is also a founding shareholder THOMAS S INGRASSIA and co-chair of the firm’s Employment & Labor group. Most recently, Jennifer was nominated for The Daily Transcript’s 2013 Top Attorneys award. This is the third consecutive year that Jennifer has been selected for inclusion in the San Diego Super Lawyers list. nSan Diego Volunteer Lawyer Program (SDVLP), has announced its 2013 award recipients. Ben Wagner has received the Pro Bono Publico Award. This award honors a San Diego attorney who has selflessly provided legal services on behalf of SDVLP. Wagner is a litigation associate with Mintz Levin who dedicates his time and pro bono services to domestic violence victims.

DLA Piper LLP received the Sustaining Justice Award, which honors a San Diego law firm that has provided on-

going extensive support to SDVLP over the years through its provision of pro bono legal services and financial support.

Melissa Blackburn-Joniaux is receiving the Exemplary Award. This award honors an individual who has volunteered extensively with SDVLP, but not necessarily by providing direct legal services. Blackburn-Joniaux, of the Law Offices of Melissa Blackburn-Joniaux, has helped organize SDVLP’s Women’s Resource Fair every year since its inception 24 years ago, in a variety of roles.

Kirby Noonan Lance & Hoge; Cohelan, Khoury & Singer; and Hanson Law Firm are all receiving the Access to Justice Award. This special award honors law firms that have directed significant, special financial support to SDVLP. The recipients will be honored at SDVLP’s annual Justice For All Celebration on September 19 at the San Diego Natural History Museum in Balboa Park. Doors open at 5:45 p.m., with the award program beginning at 7:00 p.m. nKilpatrick Townsend & Stockton announced today that partner Bill Shaffer will be joining the firm’s San Diego office this summer. Mr. Shaffer, who served until June 1 as the Silicon Valley Office Managing Partner for two years, will continue his practice focusing on patent prosecution and counseling as a member of the firm’s internationally BILL SHAFFER recognized Intellectual Property Department.

Mr. Shaffer’s patent and prosecution and counseling practice includes patent portfolio building/management, patent analysis and post-grant patent procedures, including reexamination and reissue proceedings. As part of his client counseling practice, Mr. Shaffer assists clients with formulating validity and infringement opinions, patent enforcement and licensing strategies, and patent design-around efforts.

Mr. Shaffer is a member of the firm’s Executive Committee.

In 2011 and 2012, he was recognized as a Northern California “Super Lawyer” in the area of Intellectual Property by SuperLawyers magazine. Mr. Shaffer was recommended by Legal 500 US in the area of Patent Prosecution in 2012. He was named a 2013 “IP Star” by Managing Intellectual Property magazine.

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www.gomeziagmin.com

RESOURCES TO WIN Business n Wrongful Death n

Personal Injury n Mass Torts n

For more information, please contact: Yolanda S. Walther-Meade Local: 619.237.3490 | Toll Free: 866.395.6792 655 West Broadway | Suite 1700 | San Diego, CA 92101

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STAYING ON TARGET Edward “Skip” Babbitt’s Focus On The Jury Trial Is Razor Sharp.

By Jennifer Hadley

M

any attorneys in San Diego would draw a blank when asked if they know Edward Babbitt. However, as soon as they realize you’re talking about Skip Babbitt, that all changes. As one of the most active personal injury attorneys in the San Diego legal community, most know Skip for his trial techniques and tireless educational efforts in legal organizations and associations, including the San Diego Inns of Court and Consumer Attorneys of San Diego.

Indeed, as the CASD Education Chair from 2010 – 2013, Babbitt has presented dozens of seminars.

Likewise, as the immediate Past President of the San Diego Inns of Court and a workshop leader since 2001, Babbitt has made it a point to keep himself immersed in not only his own legal education, but has been determined to mentor and assist other plaintiffs attorneys in the community. This he does for two reasons. First, it keeps his focus squarely on his work as a trial attorney. Second, he does it “to make the plaintiffs bar in San Diego as strong as it can be.”

Identifying the Target Interestingly, one of Babbitt’s passions outside of the law is long distance precision shooting, which has proven to be a metaphor for his life’s work as a trial attorney. By gradually narrowing his focus from the very beginning of his career, he has been able to hit his target of successful jury verdicts with astounding precision for more than 20 years.

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Babbitt’s desire to become an attorney started to come into focus while he was still in high school.

“The year was 1977. I had a journalism teacher who suggested that I would be a good trial attorney, based on my class discussions while editing the high school paper. She was probably the most influential person in my quest to be an attorney, by forcing me to take the high School ROP tests to determine my aptitude. From that point on, I figured out the plan, spent four years getting a Political Science degree at UC Riverside and three years of law school at USD. At age 24, I had my license to practice law,” Babbitt recalls.

Initially, Babbitt’s practice was in an entirely different area of law. “In 1985, I joined the insurance defense firm of Shifflet Sharp & Walters as an associate,” he says. He was successful in the work, and by the time he left the firm 12 years later, he was a partner, and the firm had grown from seven attorneys to 32 attorneys.

Although skilled as a defense attorney, “Eventually I realized that the reason I wanted to be a lawyer when I was 17 was to help people, not to save insurance companies money,” he says. “Both sides are necessary, but my heart was always with the underdog, not the corporate giant,” he adds.

As such, Babbitt decided to become a plaintiff’s personal injury attorney as a solo practitioner in 1997, and since that time has never looked back. However, he is quick to point out that his background defending the very companies he now brings to trial has served him and his clients immeasurably. “Having worked

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“…my heart was always with the underdog, not the corporate giant.”

for the defense industry my first 12 years in practice, I pretty much know how the insurance company and defense attorneys are going to behave three months before my clients’ incident happens,” he says.

Narrowing The Scope When Babbitt launched his own firm, he knew without a doubt that he would serve his clients –typically serious injury/ surgical intervention personal injury cases ranging from car, motorcycle, tractor-trailer collisions; to highway defect, slip and fall, products liability cases, complex medical issues with multi-faceted surgical procedures and brain injury—as a trial attorney, not a settlement lawyer.

“I try cases. I don’t beg the defense or the insurance company for money. I evaluate my clients’ cases as objectively as is practical and send a reasonable settlement demand. If the defense does not come within 75-80% of the range for settlement, I cease negotiation, and set up for trial without much discussion,” Babbitt explains. “The worst thing you can do to an insurance company is give them the silent treatment,” he says with a chuckle.

Whereas many firms promote themselves as trial attorneys, but actually settle most cases, Babbitt’s record clearly proves that he is a trial attorney. In fact, in the last year alone, he’s tried an impressive 6 cases to verdict. Frankly, nothing makes him happier than being in front of a jury.

Aiming For Connection With The Jury “The successful key to being a trial lawyer is becoming the most trustworthy person in the courtroom. We sell our cases to the jury, not the judge or the defense attorney,” he says.

Fortunately, the ability to connect with the jury in just moments comes naturally to Babbitt.

His mindset from the beginning of a trial is to form a bond with the jury, so that they are interested and eager to hear his clients’ cases. To build rapport, he will often open with questions to the jury such as “How many of you got your summons in the mail, and immediately thought “Dang”?” To show the jury that he understands, he too raises his hands, and acknowledges that jury duty can cause some disruptions to life, but then immediately sets about to empower the jurors.

“I explain to them that our jury system is the envy of the world. That there are few other places where a homeless person, for example, has the same access to justice as a giant corporation.

That everyone is on equal footing in the courtroom. I present the opportunity to serve on a jury as an honor and a privilege,” he adds.

By the time opening statements roll around, “I am on, when I’m in front of the jury. I feel like I’m telling a story to 12 friends, like you would at a party,” he says. Of course, “you cannot tell their story without knowing who your client is and what their life is like,” he adds. Only then can he “paint a picture with words” that the jury can see clearly in their own minds’ eye.

“We sell our cases to the jury, not the judge or the defense attorney.”

The Trial Team—Skip Babbitt and assistant Stormy Keyes

Yet Babbitt doesn’t preach. He views his role in front of the juror as that of a mentor, while the jurors themselves are heroes. “I am there to show the jury the evidence, explain how the process works, and give them the tools to make the right decision,” he says. Continuing, he explains, “Everyone wants to make the right decision, based on having the right information. It’s only natural,” he says. “That’s how I present to the jury—that I am just there to empower them to make the right decisions on their own. They are the true heroes,” he says.

Honing His Skills “Having practiced in San Diego for the last 28 years gives me tremendous insights as to how the personal injury practice has evolved,” Babbitt says. However, that’s not to say that he relies solely on experience to carry him through to success. On the contrary, it has been Babbitt’s concerted efforts to stay at the forefront of education, and then to educate others that has cemented his position as a true master of his craft.

“In the last 10 years, my focus has been on teaching litigation skills to attorneys. As the CASD Education Chairman since 2010, I put on approximately 10 seminars a year to plaintiff attorneys on various aspects of our practice. Since 2006, I have been on the board of directors for San Diego Inns of Court, teaching trial techniques to attorneys from both sides of the fence,” he says. Moreover, he does a great deal of attorney consulting, and says “I enjoy watching the light bulb come on when I brainstorm with an attorney on the strengths and weaknesses of their case, and show them how to make lemonade out of lemons.”

A perfect example of learning new techniques, then passing that knowledge on to others, came just a few months ago as a result of utilizing the Expedited Jury Trial Procedures under CCP 630 et seq. “The case involved a significant head on collision. At the TRC, I presented to the judge that the defense and I had agreed to the one-day jury trial. The judge responded that he was agreeable, but had not done one before and asked how they worked,” Babbitt says. “I explained to him the procedures outlined by the Code and we went forward the next week,” he continues.

Recognizing that if the judge himself wasn’t clear on these EJT procedures, it was almost certain that his peers were unfamiliar with them as well, Babbitt seized on the opportunity to educate his peers. “I notified members of the CASD ListServ that I was doing the Expedited Jury Trials, and invited them to attend and observe,” he says. Fifteen to 20 plaintiffs’ attorneys took the opportunity to witness the EJT first hand.

Two months later, Babbitt was involved in a second EJT, and once again, invited his fellow attorneys. Dozens of peers showed up again, and following this trial (which Babbitt also won), Babbitt invited both presiding Judge Dato and the opposing counsel to collaborate on a seminar with him for CASD several weeks later. Both were happy to participate. The seminar showed Babbitt’s peers how utilizing this new procedure could result in incredible cost savings for the client, and time savings for the court. “It’s a great way for young attorneys to get trial experience, without the cost of a full trial,” he says.

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Staying On Top of His Game For Babbitt, things have truly never been better. In addition to having amassed accolades such as Outstanding Trial Advocacy Awards and Presidents Awards from CASD, Babbitt is a member of ABOTA, and has lectured at his Alma Mater’s Consumer Attorney Division.

Outside of the office, life is also good for Babbitt, if a little busy. Between juggling cases and his involvement with CASD and Inns of Court, Babbitt admits that he just recently returned from his first family vacation in three years. There he spent two blissful weeks with his wife Ericka, 7 year-old son Gage, and 5 year-old daughter Devin. “The most precious moments were wading in the ocean with my children’s arms wrapped around me.

Looking at their tanned faces beaming up at me, it was just perfect,” he says.

But for now, it’s back to business for Babbitt, who is busy as ever, but ever mindful of hitting the mark, every time. For him, that means keeping a low overhead, and abiding by the best advice he was ever given. “No matter how much you need the work, don’t take bad cases.”

To date, those strategies have paid off in spades, and he intends to continue in the same trajectory for the immediate future. “I see more trial technique teaching, and more consulting in my future,” he says. Yet, when you love telling a story to a jury the way that Babbitt does, it’s a safe bet that his future is also going to include lots of happy endings for his personal injury clients. n Contact: Skip Babbitt Law Office of Edward J. Babbitt APC www.Babbitt-injurylawyer.com 619-543-1789 Skipdude37@aol.com

EXPERIENCE

Clearly, educating others is nearly as important to Babbitt as working tirelessly for clients, but he admits that he gets gets a lot in return out of his efforts. “Teaching attorneys through CASD and San Diego Inns of Court keeps my finger on the pulse of lawyering skills and results in the San Diego legal community. The Education Chair for CASD has kept me involved with new and older attorneys who pick my brain on procedure and case evaluations on a monthly basis. Networking with some of the best legal minds in the San Diego plaintiff’s bar keeps me on top of the curve. Striving to stay on top of the current legal trends and trial techniques to enhance non-economic damages for settlement and trial purposes is a constant learning process,” he says. Clearly it’s one that pays off in referrals as well, as up to 50% of Babbitt’s cases come to him as direct referrals from fellow attorneys.

»» EDUCATION • UCRiverside , BA Political Science 1981.

• USD School of Law JD 1984.

»» EXPERIENCE: • Admitted to California Bar 1985.

• San Diego Inns of Court—President 2012, workshop leader since 2000.

• CASD Education Chairman 2010-2013

»» AWARDS: • CASD Outstanding Trial Advocacy Award 2007 Mack v. Kurelko • CASD Presidents Award – 2011 • CASD Presidents Award – 2012

»» MEMBERSHIPS: • ABOTA – Associate member 2012

»» SEMINARS: • Expedited Jury Trials January 2013 • Demonstrative Evidence at Trial March 2013 • Utilizing Focus Groups – May 2013

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• Liens and Medicare – June 2013

Miller & James, LLP Attorneys at Law

David D. Miller

David has over 35 years of experience, primarily representing plaintiffs in the areas of civil litigation and medical malpractice. He is a board-certified civil trial specialist through the National Board of Trial Advocacy and has served as a faculty instructor for that organization. Super Lawyers has recognized David in their annual publication of top attorneys in San Diego in the area of medical malpractice. He is also a fellow with the Litigation Counsel of America.

In 1968, David became Ranger qualified. He was on active duty in the United States Marine Corps as a platoon and company commander from 1968 to 1972, serving in the Republic of Vietnam in Southeast Asia in 1969. He spent 27 years in the Marine Corps Reserve, attaining the rank of Lieutenant Colonel.

Patricia I. James (“PJ”)

After earning her bachelor’s degree in English from the University of San Diego in 1976, PJ went on to attend California Western School of Law in San Diego, graduating in 1979. PJ has worked with David since 1989.

While David serves as the firm’s trial attorney, PJ acts behind the scenes, using her writing skills to move cases from the initial stage of preparing the complaint through the interim stage of motions and written discovery and finally, to the last stage of settlement or trial.

In sum, David has established himself as a leader ready to take your case through trial.

Miller & James, LLP 2550 5th Avenue, Suite 815, San Diego, California 92103-6624 Tel: 619.685.0077 | Fax: 619.685.0011 | Email: contact@millerandjameslaw.com

OFF THE BOOKS MANAGEMENT

Managing the Non-Financial Assets of the Law Firm

By Eric Dewey

T

here’s no shortage of financial reports for Managing Partners and firm leaders. But some metrics, critical to the firm’s success, require a new way of thinking about the firm’s ‘financial’ reports. The job of managing a law firm can typically be boiled down to a few key responsibilities. These include client relations, organic growth, strategy and firm culture. However, few firm leaders have a reporting process to monitor these key responsibilities. Here are some suggestions for setting up a reporting system that will ensure firm leaders have the reporting structure to monitor these important drivers of the firm’s success.

1. Client Relations Managing the firm’s reputation is critical. This can involve reviewing community service involvement, which boards the firm’s attorneys are on, the level of giving to charitable causes, the types of pro bono work performed, the diversity of the attorney mix, the firm’s ranking in various lists, client satisfaction, brand equity, press mentions and other tactics that give insight into the status of the firm’s reputation in the market. But this is cumbersome, time consuming and typically only episodic in its use. There is a better, simpler, more precise way to monitor client relations.

There is one driver that exceeds all others in telling you everything you need to know about client relations. It also happens to be a simple metric to monitor. It is called the Likely to Refer survey.

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Use the single question survey to ask every client after each matter, ‘On a scale of one to five, how likely are you to refer the firm or one of its attorneys to your closest family, friends or business peers?’ This survey is surprisingly accurate and has been proven to correlate closely with revenue and profit improvements in the hundreds of businesses that have used this tool.

2. Organic Revenue Growth There are two types of growth. Growth resulting from management’s decision to raise prices, acquire assets, eliminate assets, improve collections and improve cost containments is called ‘managed growth’. These are ‘managed revenue sources’ in that they are tools used by management to improve revenues. The second type of growth is organic growth which, is growth which results from the attraction of new clients or the expansion of work from existing clients. Organic growth is a more precise measure of the firm’s competitiveness in the market place and the degree to which it is meeting client needs and delivering quality services.

To benchmark organic growth, ask your CFO to break out revenues that are not the result of managed decisions. You two can agree on what those ‘managed decisions’ are but the key is to isolate those sources of revenue which come from client satisfaction, improved reputation and marketing initiatives. This metric is also a good barometer of the success of the firm’s marketing program.

3. Strategic Focus Most strategic plans, if they are well done, will come with a list of action items and steps which must be taken to accomplish the plan. Monitoring the hundreds of activities in multiple departments can be time consuming. A better way is to monitor what does not get done. Strategy is the art of saying no. You will quickly find how focused your strategy is when you ask for the opportunities that are declined and the reasons that are declined. It will also help you ensure that firm leaders are using the strategy as a filter in how they conduct business—a key attribute of successful strategies.

4. Cultural Engagement: The commitment to the culture of the firm can be seen in a number of ways, including the morale of people in the firm, the level of cross selling occurring in the firm, the level of trust that attorneys and staff have for both the leadership in the firm and among their peers and the pride that people show and speak of with regards to the firm. One key indicator of the level of commitment to the culture of the firm is the internal engagement in the firm. Engagement comes from a belief that contributing to the success of the firm will directly benefit the individual’s personal situation. This is the fundamental building block of the firm’s culture.

A strong barometer of this engagement can be found in the level of involvement in activities that are important

to the firm. Identifying those activities and tracking the involvement of both attorneys and staff members on firm committees, charitable and community endeavors, attendance at meetings and training and other functions can be a strong indicator of the level of engagement that exists in the firm. In the end, the level of internal engagement is a proxy for the strength of the belief and commitment people have in the firm’s culture. If this commitment to the culture is soft, engagement will be weak.

Conclusion Each firm will have to set these dashboards up differently depending upon the data and systems available in the firm. But set them up you should. Monitoring the important off-balance sheet drivers of the firm’s success is a critical responsibility of the Managing Partner. n Eric Dewey authors the Legal Marketing Blog, Lawyer Up! and was recently named the Guest Expert of the ABA’s annual marketing and client development edition of Law Practice Management magazine, due out in November of 2013. Dewey’s expertise includes client development; strategy and planning; marketing ROI and client opportunity analysis; client service training and program development; brand and reputation management; and organizational improvement. He can be reached at: 502-693-4731 or at www.groupdewey.com.

Areas of Expertise Business/Commercial • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property/CEQA/Land Use • Wrongful Death

Past President: San Diego County Bar Association 2014 President of the San Diego Chapter of the American Board of Trial Avocates (ABOTA) Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 25 Years of Experience as a Mediator and Arbitrator 33 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants

Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee Relentless Optimist® Rapid, Reasonable Resolution™ 501 West Broadway, Suite 1330, San Diego, CA 92101 | Phone: (619) 990-4312 | Email: monty.mcintyre@gmail.com www.montymcintyre.com

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3

Things Every Lawyer Needs To Know Before Hiring an Assistant and Seeing the ROI

By Cindy Greenway

You know you need help in your law practice. You need an assistant who can help you with practice growth strategies—more than just day-today legal client work. But where do you start? How will you find the right person and what will they do once you hire them?

Hiring an assistant can be a very exciting time, but also a very stressful time. I remember someone saying to me years ago…

“Cindy, I know I need help. I know I need an assistant to help me. But I don’t know what I don’t know. Can an assistant really help me grow my law practice? I have a few ideas of how they can help me, but I’m not really clear on what they can offer me.”

There are 3 very specific things you should know about yourself and your practice before you even consider hiring an assistant. By having a full understanding of these 3 areas, you put yourself in a much better position to attract the right assistant, hire the right assistant, and have him or her help you in ways you really want and need (plus you will experience a greater return on your investment!)

Before I share these 3 items, let me say that they may appear to be very simple, yet ridiculous things to consider before hiring an assistant. However, let me assure you that when you take the time to clearly identify these pieces, and consider them when going through the hiring process, you are much more likely to find the ‘right’ person.

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1

Know your target market

It may surprise you to know that many lawyers cannot accurately describe their target market. This is hurting your practice and also will hurt in finding the right assistant.

When you are clear on your target market and you can share this information, you will attract people who are interested in your target market and are also passionate about supporting them. You do not want to hire an assistant who has no interest in your core market (i.e., your current and potential clients).

When an assistant is also clear on who you serve and who you want to attract, they can constantly support you practice growth activities such as researching potential speaking opportunities and more.

2

Know your goals and priorities

Your goals and priorities are likely connected to finding more clients and generating more revenue … but how?

What strategies do you want to implement in order to support you in finding more clients? What will you do to support increased revenues? The how is the critical piece to this item.

Your assistant is an implementer. They are not your coach or your business consultant. You cannot expect an assistant to tell you how to build your practice. However, what you should expect from a good assistant is that they will implement the pieces needed to accomplish your HOW—your priorities and goals.

Perhaps you want to speak more regularly in your local community to allow you to connect with more leads and potential clients. Or you want to make sure your ezine (newsletter) goes out on a more regular basis so you can keep in touch with people in your database. By identifying the HOW and communicating this via your search for an assistant, you are much more likely to find the right person who understands your goals and priorities, is interested in providing this support, and who has the skills you need.

3

Know your expectations

What does the perfect assistant look like to you? I’m not referring to physical appearances, but more specifically – their personal qualities, skills, location, availability, etc. Are you willing to work with someone virtually or do you want someone in-house? Do you want them to be knowledgeable in a specific piece of software, or have specific training? Do they need to be available Monday to Friday from 9-5 or are you flexible?

Consider what the perfect assistant ‘looks like’ and make it part of your search. In your job description or postings, include some of these preferred qualities and expectations. It will weed out the people who don’t match them, and grab the attention of others.

A lawyer who shares details about the firm’s priorities and goals will build a stronger more valuable relationship, faster with his/her assistant.

Ultimately, the clearer you are in these areas, the easier it will be for you to find the right person to join your practice.

If they don’t have every single quality you’re looking for, consider what you need now versus what will be needed later and therefore can be learned.

How Long Before I Will See ROI From My New Assistant?

The quick answer is—approximately 90 days.

At first, 90 days may feel like a lifetime. However, when you consider the milestones you’ll hit in that time, and the full support you’ll receive after ramping up, 90 days really isn’t that long at all.

A lot of ‘downloading’ takes place in the first 90 days of a lawyer/assistant relationship. Both parties need to set aside and invest time to allow for this ‘downloading’—getting to know one another, asking questions, communicating details, identifying specific tasks to support the accomplishment of goals and more.

Without this investment of time and communication, the lawyer/assistant relationship is set to fail. Lack of communication is the number one reason behind the damage to and ultimate failure of a lawyer/assistant relationship. Consider this—would you rather invest a little bit of time now to make sure things get off on the right track, or go down the wrong track and later waste time, money and wind up feeling extreme frustration?

Here are 7 tips to ensure a successful lawyer/assistant relationship from the start: If you have been working with an assistant for some time and have not implemented these key tips, start now.

Within a short time, you will experience a significant (and very positive) difference in your relationship, including emotional centeredness and a return on your investment of both time and money.

to be just as committed as you are to your current and prospective clients.) Remember, you are priming your assistant to accomplish various tasks, projects and client relationships on your behalf. By committing to the assistant now, you will experience greater rewards personally and professionally moving forward.

1. Be committed

2. Connect once a week in person or via phone

Yes, you may run a very busy law practice; however it’s critical that you are committed to the process of onboarding a new assistant to your team. (You have

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goals. I suggest setting aside 60 minutes at the same time and day of the week, each week. Some calls may be much shorter than 60 minutes; however, by blocking out a full hour, you allow for time when it is needed.

More info can be shared verbally than what you can communicate through several emails back and forth. The weekly call also gives the assistant an opportunity to ask questions, clarify details, let the lawyer know what they need to do, and take action much more quickly.

3. Share details about your practice, your typical clients and their needs

5. Share your challenges (outside of practicing law) What do you wish you could do less of? What really stumps you and takes you way to long to complete? What is sitting on the side of your desk that you just can’t seem to get done? Share these details with your assistant. They may be able to completely take some of these items off your plate, and assist you with seeking external resources to get a task done. This allows the assistant to provide even more ROI by applying initiative in getting things done on your behalf.

6. Share your expectations

Tell your assistant about your practice, your target market, the typical client you serve, the challenges you take on and more. The more they know about the environment in which you practice and the people you support, the better.

This allows them to consider ways to handle sensitive situations in the most effective way and gives them a clear visual of what you and your practice stand for.

The lawyers I speak to are always stumped by this piece. Are there specific qualities you want in someone? Or do you want some things handled in a very specific way? Communicate these issues to your assistant—if you do not, how are they to know that you prefer things done a certain way? Examples may be that you expect your emails responded to within a 24 hour period. Or that they provide you with a summary each Friday with updates on tasks and projects.

4. Share your goals, your priorities—be open and honest

7. Ask how you can support them to do their best work

A lawyer who shares details about the firm’s priorities and goals will build a stronger, more valuable relationship, faster with his/her assistant. This information allows the assistant to implement a mindset and initiative that allows them to think ahead, seek resources, and identify all the important pieces that will support the accomplishment of a priority or task and take action.

Don’t expect your assistant to fully apply initiative unless you have taken the time to share these details.

By implementing these 7 tips, your assistant will not only be ‘in the know’ with you and your practice, but you’ll be supporting them to apply their initiative, take care of things on your behalf, support you in growing your practice and more.

Lawyers who choose to not implement these tips will experience a very different relationship—one that requires continuous delegation and hand holding …. and one that provides very little satisfaction or return on investment of time and money.

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You may not realize that your response, communication and activity with your assistant can strongly support, or completely damage their ability to do their best work. For example, to do my best work as a VA, I need my clients to commit to a quick weekly meeting via phone, I need my emails responded to—even if my client doesn’t have the exact answer at that time, and I need to know my boundaries— what can I do without requesting approval and how far can I push. When I feel the commitment from my lawyer, and I can easily access the information I need, I can move forward in a much faster pace, get things done and do great work.

If you are an assistant, I encourage you to implement these 7 tips within your lawyer relationships. Perhaps share this article, or communicate to your lawyer what you need in order for them to realize an impressive return on their investment with you. n Cindy Greenway is the Editor in Chief of LawMarketing.com, the premier online resource for attorneys and legal marketers. Cindy’s background includes training assistants and assisting business owners with identifying and finding the right team members for their practice. Visit Cindy at LawMarketing.com.

McIntyre’s California Civil Law Update Organized Succinct Summaries

By Monty A. McIntyre, Esq.

Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

U.S. SUPREME COURT Constitution/Civil Rights Shelby County, Alabama v. Holder _ U.S. _ (2013): The U.S. Supreme Court reversed the District of Columbia Circuit Court of Appeals. Section 4 of the Voting Rights Act of 1965 is unconstitutional because of the failure of Congress to update the coverage formula. The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.

(June 25, 2013.)

Employment/Labor University of Texas Southwestern Medical Center v. Nassar _ U.S. _ (2013): The U.S. Supreme Court reversed the Fifth Circuit Court of Appeals and remanded for further proceedings. The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under section 2000e3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer. (June 24, 2013.)

Vance v. Ball State University _ U.S. _ (2013): The U.S. Supreme Court affirmed the judgment of the Seventh Circuit Court of Appeals. An employer may be vicariously liable for an employee’s unlawful harassment under Title VII only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. (June 24, 2013.)

Family Hollingsworth v. Perry _ U.S. _ : The U.S. Supreme Court vacated the decision of the Ninth Circuit Court of Appeal because petitioners did not demonstrate standing to appeal the judgment of the district court. The Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the district court, finding California’s Proposition 8 unconstitutional and enjoining the enforcement of Prop. 8, is now the final judgment. (June 26, 2013.)

United States v. Windsor _ U.S. _ : The U.S. Supreme Court affirmed the Second Circuit Court of Appeal.

The Defense of Marriage Act (DOMA) singles out a class of persons deemed by a state entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the state Attorney Journal | Volume 120, 2013

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finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. (June 26, 2013.)

Torts/Product Liability Mutual Pharmaceutical Company, Inc. v. Bartlett _ U.S. _ (2013): The U.S. Supreme Court reversed the decision of the First Circuit Court of Appeal. State-law design-defect laws that effectively require generic drug manufacturers to change generic drug labeling to provide stronger warnings in violation of federal law prohibiting generic drug manufacturers from independently changing their drug labels are pre-empted by federal law under PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011). (June 24, 2013.)

9th CIRCUIT COURT OF APPEAL Insurance City of Buenaventura v. Insurance Company of the State of Pennsylvania _ F.3d _ : The Ninth Circuit Court of Appeals affirmed the district court’s summary judgment for the defendant carriers. The district court properly found no coverage under the policies because they were issued after the occurrence that led to the underlying litigation. The condominium buyers’ complaints allege that they were damaged by the City’s negligence when they purchased their units in early 2001, over a year before the 2002-2003 Great Lakes policy and two years prior to the 2003-2004 Insurance Company of the State of Pennsylvania policy. They do not allege that they were wrongfully damaged by the City’s affordable housing program, or that the program was in any way unlawful. They merely ask that the program be suspended as to them because of the City’s 2001 negligence. Also, both policies expressly exclude coverage for declaratory or injunctive relief, so those claims by the condominium buyers cannot provide a basis for duties to defend or indemnify. (June 26, 2013.)

CALIFORNIA SUPREME COURT Family In re Marriage of Green (2013) _ Cal.4th _ : The California Supreme Court reversed the Court of Appeal and affirmed the trial court order requiring the husband to pay the wife one-half of the amount, plus interest, that the community expended to obtain additional retirement credit for the husband’s premarital military service. What matters in determining whether retirement benefits are community or separate property is the person’s marital status when the services on which the benefits are based were rendered. Because the husband rendered the military service before the marriage, the California Supreme Court concluded that, except for the community’s contribution to the cost of obtaining the credit, the four years of additional credit were the husband’s separate property. (June 24, 2013.)

CALIFORNIA COURTS OF APPEAL Arbitration Roberts v. Packard, Packard & Johnson (2013) _ Cal.App.4th _ : The Court of Appeal reversed the trial court’s award of attorney fees to defendant after it prevailed on a motion to compel arbitration. Because only one side—plaintiffs or their former attorneys—can prevail in enforcing the contingency fee agreement in question, the determination of the prevailing parties must await the resolution of the underlying claims by an arbitrator. Attorney fees can be awarded only to the parties that prevail in the “action.” (See Civil Code section 1717(a), (b)(1).) The trial court erred in awarding interim attorney fees to the former attorneys for filing a successful petition to compel arbitration. (C.A. 2nd, July 3, 2013.)

Attorneys Deluca v. State Fish Co., Inc. (2013) _ Cal.App.4th _ : The Court of Appeal reversed the trial court’s granting of a motion to disqualify plaintiff’s counsel. Plaintiff informed defendant he would be using an expert witness who had testified on behalf of the defendant in a prior trial of issues between the parties. Defendant objected on the ground the expert possessed

Attorney fees can be awarded only to the parties that prevail in the “action.”

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Attorney Journal | Volume 120 , 2013

confidential attorney-client and work-product information learned when retained on behalf of the defendant. The defendant moved to disqualify plaintiff’s counsel from further representing plaintiff on the basis that plaintiff’s counsel had obtained access to the confidential information possessed by the expert. The trial court granted the motion and disqualified plaintiff’s counsel. The Court of Appeal, however, concluded that defendant failed to satisfy its burden of establishing that the expert possessed confidential information materially relevant to the pending proceedings. (C.A. 2nd, June 27, 2013.)

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Real Property/CEQA/Land Use/ Environment/Homeowners Association Wittenberg v. Beachwalk Homeowners Association (2013) _ Cal.App.4th _ : The Court of Appeal reversed the trial court’s denial of a writ petition seeking to void an election to amend bylaws. The trial court erred in ruling that, under Civil Code 1363(a)(1), the homeowners association board did not have to give members with opposing viewpoints equal access to media used by the board to explain its actions. The trial court also erred in finding that the board did not violate Civil Code section 1363.03(a)(2) when it did not permit free access to common areas for purposes reasonably related to an election.

On remand, the trial court should consider both violations in deciding whether an election to amend the bylaws needed to be voided. (C.A. 4th, June 26, 2013.)

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Torts/Personal Injury/Wrongful Death Cann v. Stefanec (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s summary judgment for defendant. The trial court properly ruled that the primary assumption of risk doctrine applied to this situation where plaintiff was injured after her UCLA swim team teammate/defendant dropped weights when she lost her balance. The Court of Appeal found that weight lifting involves an inherent risk of injury to persons in the vicinity of lifters who drop weights because of a loss of balance, injury suffered during a lift, or other reasons.

Because weight training involves the risk that the weight will be dropped, defendant’s conduct after she lost her balance was not totally outside the range of ordinary activity of the sport.

(C.A. 2nd, June 24, 2013.) n

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