SAN DIEGO
Volume 114, 2013 • $6.95
Attorney Gambles Chasing Fees and Loses Big
Derek Harris
Reducing Electronic Discovery Costs and Risks through Litigation Readiness
Jeff Jacobs
Selecting the Right Mediator for Your Dispute
Steven Kruis
How to Double Your Productivity in 30 Days
Executive Presentations Fleming & Fell PC
David Lorenzo
Attorney of the Month
PROFESSIONAL PROFILES
Chris Walton
RISING STAR
Colin Walshok
SHUSTAK FROST & PARTNERS P.C. Attorneys At Law
is pleased to congratulate our partner; Thomas C. Frost, for being named A Top Attorney 2012. We are proud of your recognition and pleased to have you honored for your tireless commitment to our clients and the legal system.
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• Named a “Top Influential for 2012” by The San Diego Daily Transcript
• Selected as a “Top Attorney” for 2012 – Corporate Litigation by The San Diego Daily Transcript
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CALMLY PerSeverAnt. ...where calm thinking leads to resolution. “I enjoyed your approach to mediation. Your perseverance and calm but determined attitude kept us going when we thought we had reached an impasse.” – Email from Plaintiff’s counsel in real estate non-disclosure case.
Steve Kruis: calm... thinking... resolute.
The Koll Center • 501 W. Broadway, Suite A186 • San Diego, CA 92101 Phone:619.702.8834•Fax:619.702.2030•steve@kruismediation.com•www.kruismediation.com Attorney Journal | Volume 113, 2013
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2013 EDITION窶年O.114
TABLE OF CONTENTS features PROFESSIONAL PROFILE
6 Executive Presentations by Jennifer Hadley RISING STAR
10 Colin Walshok
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by Karen Gorden
12 COMMUNITYnews 15 How to Double Your Productivity in 30 Days Learn New Ways to Double (and in Many Cases Even Triple) Your Productivity. by David Lorenzo EXECUTIVE PUBLISHER Brian Topor
PROFESSIONAL PROFILE
EDITOR Nancy Deyo
16 Fleming & Fell PC by Jennifer Hadley
CREATIVE SERVICES Skidmutro Creative + Layout CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Derek Harris Jeff Jacobs Steven Kruis David Lorenzo 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 窶｢ F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
ATTORNEY OF THE MONTH
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18 Chris Walton by Jennifer Hadley
24 Attorney Gambles Chasing Fees and Loses Big
Attorneys Pursuing Unpaid Fees Risk More Than Just Losing the Case. by Derek Harris
26 Reducing Electronic Discovery Costs and Risks through Litigation Readiness
Recent Court Decisions Make Clear that All Lawyers Need to Understand the Basics of Electronic Discovery. by Jeff Jacobs
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28 Selecting the Right Mediator for Your Dispute
What Should You Consider When Selecting a Mediator? by Steven Kruis
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 2013 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
Experience & Results Executive Presentations Proudly Congratulates ESTEY & BOMBERGER, LLP DONALD BECK
Stephen J. Estey, Esq. Michael Bomberger, Esq. Donald Joseph Beck, Esq.
For Their $23 Million Dollar Child Sexual MolestationVerdict Against LAUSD. “EP’s trial support services are always top notch and an important part of our success; especially with this record setting verdict against LAUSD.” - Steve Estey
Rick Kraemer Owner & CEO
Our record proves that EP delivers both Trial Video Graphics
Professional Trial Technicians Exhibit Display & Clip Creation iPad Prep with Case Integration Day-in-the-Life Videos Settlement Documentaries Promotional Videos Interactive Presentations Timelines, Charts & Illustrations Medical Exhibits
A QUEST TO
WIN
By Helping Attorneys Win in Trial, Rick Kraemer and His Company Executive Presentations Have Won the Loyalty of California’s Leading Attorneys. By Jennifer Hadley
C
hances are that you know Rick Kraemer. Even if the name sounds only vaguely familiar, you’ll likely recall the affable gentleman outfitted in a bowtie taking your photo at events hosted by ABOTA, Consumer Attorneys of California, or the Association of Southern California Defense Counsel. You will even recall that after he took your photo, he actually ensured that you received a copy. That’s Rick’s style; he’s charismatic, attentive to detail, competitive and a stickler for delivering on promises, all traits which have helped earn him the respect and loyalty of attorneys throughout Southern California. Kraemer credits his Midwestern upbringing, which included working on his family’s farm, with initially teaching him the personal rewards and value that result from hard work. His competitive nature revealed itself as he grew older and was a champion on his high school wrestling team. Today, Kraemer continues to rely on his work ethic and his competitive streak as the C.E.O. of Executive Presentations, a complete trial services company based in Los Angeles since 1986. Moreover, thanks in part to his team of trial technicians, video directors, graphics design consultants, photographers and production engineers at Executive Presentations, Kraemer is now affectionately known to those who’ve relied on his company’s trial presentations as “The Man with the Billion Dollar Boards.”
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Kraemer is quick to declare that “I’m a business and marketing guy,” he says. “I’m a strategizer by nature, and I always look at the big picture,” he adds. These skills would serve him well as years progressed, and would eventually lead to terrific success in a field he never set out to conquer. All the same, Kraemer positioned himself to helm the trial presentation company that would help attorneys like Brian Panish and Michael Piuze to win trial verdicts of more than $1Billion, as in the cases of Anderson v. GM and Boeken v. Philip Morris. Panish says, “Executive Presentations, the
San Diego ABOTA Chapter 2012 Holiday Party
His dedication to delivering the products and presentations that attorneys need to strengthen their cases, landed him accounts and the respect of San Diego firms and attorneys such as Wingert Grebing Brubaker & Juskie, LLP; Thorsnes Bartolotta McGuire; Estey & Bomberger; LLP, Kenneth Sigelman; Casey Gerry LLP; and Chapin Fitzgerald, LLP. Prominent Los Angeles clients include Panish Shea & Boyle LLP; Girardi & Keese; Shernoff Bidart Echeverria Bentley LLP; and Glaser Weil LLP. Orange County firms that regularly use Executive Presentations’ services include Robinson Calcagnie Robinson Shapiro Davis, Inc.; Aitken, Aitken & Cohn; and Callahan & Blaine.
Best in the West, always delivers. Whether in Bakersfield, San Diego, Long Beach, El Centro, Hayward or downtown LA— EP’s contribution is always a factor in our success.” His team’s multimedia presentations would also help Girardi & Keese to reach a settlement of $4.85 Billion on behalf of consumers injured by the drug Vioxx. Yet his beginnings were much humbler. Kraemer, who holds a B.A in Business Administration and a Masters in Marketing/ Management, began his career in sales. But things changed quickly when in 1981 Kraemer left Xerox to help form a company that developed computer graphics presentation systems. “Everything was being done manually. We did it electronically, even though the equipment was obviously rudimentary at the time,” he chuckles. However rudimentary it was, Kraemer sold a system to the US Senate which was used in the Oliver North Iran-Contra Hearings. “We were on the forefront in selling presentations to banks and corporations,” he explains. Unfortunately, a failed public offering led to the dissolution of the company. However, this proverbial cloud turned out to have a silver
lining, as Kraemer’s experience working with high level corporate executives allowed him to seamlessly “dovetail into the upper echelon of the legal community,” when it became clear that there was a “pressing need for ways to present information in the legal community.” As a result, in 1986, Kraemer saw the perfect opportunity to utilize his business, marketing and sales skills in the largest court system in the country and relocated to Los Angeles. Utilizing the computer graphics systems he had helped to develop, he formed Executive Presentations to provide trial services to Southern California Lawyers. He also formulated a subtle but powerful motto that remains to this day: EP Delivers.
PRECISE EXECUTION Today, 27 years after Kraemer first opened the doors of Executive Presentations in Los Angeles, things are of course very different. However, one thing has remained consistent: Kraemer’s inherent understanding of how people absorb information and, more importantly, why they buy what they buy. To him, the value of subliminal messaging cannot and should not be underscored. “You find a way for people—juries—to buy, not to be sold,” he says. Of course, successful sales—even to juries—traditionally depend upon successful marketing strategies, which is precisely where Executive Presentations has placed their focus.
EP Flow Chart Sample, Brian Panish – Pharmaceutical Litigation Attorney Journal | Volume 114, 2013
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“It is very easy to make legal arguments and concepts complex; the trick is making them simple and understandable for the jury,” Kraemer explains. “That’s where Executive Presentations has been so successful.” “We are unique in our collaborative approach to trials. We develop multimedia presentations all under one roof with our experienced and highly trained staff of 25 employees. When clients turn to us, they know that their needs will be met, as our services are all prepared in-house. The trial, video and graphic departments work interactively to determine the best method of presenting pertinent information and case material,” Kraemer says. Clearly, “jurors have come to expect multimedia presentations that run without fail in the courtroom. To be effective, information has to be distilled so that it can be understood very quickly,” Kraemer continues. That’s exactly what Kraemer’s team does, and to date has created trial presentations used in more than 10,000 cases. Although technology has changed, the process by which Kraemer and his team receive the necessary information from attorneys has remained the same. Executive Presentations’ work often begins with a personal phone call to Kraemer from an attorney, such as was the case on New Year’s Eve 2010, when he received a personal call from Isaac Larian, president of MGA. Larian had just hired Jennifer
Plaintiff cases in which Executive Presentations has been successful in helping to persuade San Diego juries include Brian Panish’s cases Yoon v. United States and Barber v. Mossy Ford, which resulted in verdicts of $17.8 Million and $14.45 Million respectively. On the defense side, Executive Presentations successfully assisted Patricia Glaser on the Art Attacks v. MGA case. “Glaser summed up her experience with Kraemer and his team by saying, “Executive Presentations is invaluable for clarity and simplicity.”
Keller to lead his trial team for the high stakes retrial of Mattel v. MGA (aka “Barbie v. Bratz”). Although the bet-the-company case required massive amounts of preparation, Executive Presentations responded with their characteristic innovation, helping Keller and MGA to ultimately be awarded a reversal of more than $300 Million. Not surprisingly, Keller would later remark “All of the EP people were consummate professionals.” “We meet with the attorneys to determine their presentation needs. We formulate a plan and a budget which may include graphics, video, and a trial team,” says Kraemer. Then it’s up to EP’s staff to develop a presentation strategy that “engages and persuades the jury,” he says.
Bill Shernoff, Michael Bidart, Vic George, Brian Panish, and Rick Kraemer pictured with Bucky Badger at Rick’s alma mater, the University of Wisconsin. 8
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FUTURE PRESENTATIONS As far as the future of Executive Presentations is concerned, Kraemer intends to continue doing what has proven so valuable to his clients: provide persuasive trial presentations that enhance the client’s case. Yet in looking back, it is plain to see that trying to determine whether it has been Kraemer’s subtle competitive streak, unwavering follow-through, or the delivery of the “billion dollar boards” his team creates, that has been responsible for the company’s reputation is, frankly, an exercise in futility. To Kraemer, they’re just parts of the greater whole. “We’re not practicing at this,” Kraemer says. “We aren’t a start up, we have the experience, and we are in this for the long haul.” And that long haul extends far beyond the creation of graphics and videos. Kraemer’s friendly demeanor and natural abilities with a camera have allowed him to get to know the Southern California legal community on a personal level, an added perk he’s realized as the result of hard work. Attorneys, judges and organizations have come to look to Kraemer and his team for advice and guidance on matters beyond the legal services Executive Presentations provides. Many consider Rick
“The success of EP’s work, either plaintiff or defense, speaks for itself. Rick and his staff are incredibly creative and talented.” — Alan Brubaker
a close personal friend, and he is often at family events and holiday parties. With a track record such as Kraemer’s -which included his assistance to Stephen J. Estey, Esq., Michael Bomberger, Esq. and Donald J. Beck, Esq. in obtaining a $23 million dollar verdict last month for a sexual molestation victim from Los Angeles Unified School District- it’s no wonder that clients rave about the work of Executive Presentations. And for those who have any doubt remaining, take it from Girardi & Keese Partner Tom Girardi who says, “It’s legal malpractice NOT to use Executive Presentations.” Contact: Rick Kraemer Executive Presentations www.epdelivers.com | info@epdelivers.com 213.480.1644 | 800.350.9944
An Ace In The Hole By Karen Gorden
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or San Diego born and raised Colin Walshok, the keys to success as an attorney have proven to parallel many of the strategies he first learned on the golf course. In fact, even his initial passion for helping others to tell their stories, which he now does as an attorney with Wingert, Grebing, Brubaker & Juskie, LLP, can be traced to his love of golf. After graduating from college, Walshok was working at Torrey Pines Golf Course when an opportunity to work for the non-profit organization Pro Kids Golf Academy presented itself. The organization’s mission: “To challenge underserved youth to excel in life by promoting character development, life-skills, and values through education and the game of golf ” appealed to Walshok immediately. An avid golf player on his way to earning his designation as PGA, Class A member, Walshok was thrilled with the opportunity to work in the sport he loved. However, the rewards he derived from working with the children proved even more gratifying than being on the golf course. “I saw these kids growing through the program.” He recalls listening to the stories of his students, and realizing “I could make a bigger impact if I went to law school and became an advocate for people that needed someone to tell their story.”
DISCIPLINE & PASSION When Walshok entered California Western School of Law, he brought his passion for listening to others, a burgeoning love of law, and perhaps most importantly, a strong sense of discipline, into his studies. “I treated law school like a job,” he says. In addition to serving as Associate Writer and Associate Editor of the California Western Law Review/International Law Journal, he was also the recipient of the Brigadier General John R. DeBarr Scholarship for Creative Legal Problem Solving. After clerking for Wingert, Grebing, Brubaker & Juskie, LLP for two years, he earned Juris Doctorate, magna cum laude, and was made associate with the firm in 2008.
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Today, Walshok’s practice focuses on personal injury cases, business disputes, construction cases and legal malpractice defense work, and he has handled a number of claims on behalf of individual clients who were referred to him—not surprisingly—by people he met through golf. Regardless of whether he’s working for plaintiffs or the defense, he’s found that all of his cases have had personally worthwhile impacts on his life, whether they are high dollar cases or not. One such plaintiff’s case involved his representation of a sole proprietor who did remediation work and was not paid for the work he provided in cleaning up after the 2007 wildfires. “My client was told that the owner’s insurance company did not pay the owner as much as expected and therefore my client was not going to be paid what he was promised. We learned in discovery that the owner was in fact paid what he was owed. Upon discovery of this information, we were able to reach a quick settlement. My client felt vindicated in that he was paid what he was owed, and the money made a significant difference for him as a sole proprietor,” Walshok says.
PREPARATION AND PRACTICE Of course, in law, just as in golf, it’s not enough to be passionate and disciplined. Winning requires a great deal of preparation and practice, and Walshok embraces both strategies. “Knowing the law and knowing the facts will obviously give you a leg up,” he says. He continues, “I believe you have to be more prepared and have a better understanding of the case than the other side to get your client the best results.” Regardless of whether he’s looking to improve as an attorney or as a golfer, Walshok knows that relentless practice is imperative. “Being an attorney is a craft and you can learn so much from watching other attorneys in action. I have learned a great deal from the attorneys I work with on cases at our firm-including the
For Colin Walshok, Passion, Discipline, Preparation and Practice Learned On The Course Also Prove To Be a Winning Strategy For Clients.
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value of being patient, and not reacting but instead relying upon the laws and facts to tell the story.” Moreover, Walshok acknowledges that he’s learned “from attorneys that I have gone up against on matters, and from simply handling numerous matters in my first five years as a lawyer.” As Walshok looks towards the future, it’s not surprising that plans to continue to blend his passions of golf and law are already in the works. Walshok was a recent presenter at the Club Managers Association of America’s International Conference with Attorney Chris Todd on the topic “Squaring the Match: Club Equality in the 21st Century.” The presentation focused on relevant case law throughout the country that analyzed the scope of the right to freedom of association at private clubs. Walshok is also admittedly excited about the fact that Wingert, Grebing, Brubaker & Juskie “is in the process of developing a niche golf practice in which we represent golf professionals, golf courses, and members of the golf industry with a wide variety of issues, including: premises liability issues,
employment law disputes, and general best practices.” If the measure of success is one’s ability to do what they love and earn a living doing it, Colin Walshok is by all accounts an exemplary example of success. Remaining focused on the strategies of passion, discipline, preparation and practice that have served him so well in both the courtroom and on the course, his dreams of “taking on larger cases and continuing to seek the best results for my clients in an efficient and effective manner,” are bound to come to fruition. n Contact: Colin Walshok cwalshok@wingertlaw.com 619-232-8151 Wingert Grebing Brubaker & Juskie LLP 600 West Broadway, Suite 1200 San Diego, CA 92101 www.wingertlaw.com
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COMMUNITY news nCooley LLP announced today that it received a jury verdict in favor of Websense Inc., a San Diego maker of corporate security software, in a patent infringement case pending before a jury in Delaware federal court. Finjan Inc., a provider of secure Web gateway solutions, sued Websense along with similar security software companies Symantec Corp., Sophos Inc., McAfee Inc., and TONY STIEGLER Webroot Inc., claiming that each company infringed on Finjan’s patents. Finjan sought hundreds of millions of dollars in damages. Following the three-week long trial, Chief Judge Sleet and the jurors agreed with the Cooley team, which argued that Websense’s security products do not extract a list of suspicious computer operations at the gateway of a computer network, and, therefore, do not infringe on Finjan’s patents. The Cooley team was led by litigation partner Tony Stiegler and included partner John Kyle, and associates Paul Batcher, Brian Lam, Erin Goodsell, José Rodriguez, and Jennifer Fontaine. “We are tremendously appreciative of the entire effort involved to win this important case,” said Christian Waage, General Counsel at Websense. “Tony and the Cooley team were superb.” nThe Gomez Law Firm kicks off 2013 by announcing a name change to Gomez + Iagmin, reflecting the naming of James Iagmin as Managing Partner of the firm, alongside Founder and Lead Trial Attorney John Gomez. Gomez + Iagmin will be moving to larger offices in downtown San Diego located at 655 West Broadway, Suite 1700 starting on February 1, 2013. With close to 20,000 square feet, the firm’s 25 attorneys and staff will JOHN GOMEZ AND be able to provide turnkey services JAMES IAGMIN to their clients in the areas of serious personal injury, wrongful death, product liability and mass torts, as the space includes 4 conference rooms, a boardroom for 26, and also a client lounge. Gomez + Iagmin continues to be at the forefront of the legal field, with an onsite law library, and a full courtroom with judge’s bench, jury box, counsel tables and gallery in order to offer continuing legal education courses and serve as a venue for mock trials or focus groups.
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nSolomon Ward Seidenwurm & Smith, LLP is well-positioned to comply with the San Diego County Bar’s December ethics opinion 20121 addressing technical competence when representing litigation clients with electronically stored information (ESI). The firm is one of the more technically sophisticated firms in processing and analyzing ESI. In BILL KAMMER May 2012, it installed Access Data’s new Summation Pro software, essentially serving as an alpha tester. Based on its input, Access Data patched and upgraded the program to the version now being installed at other firms throughout the world. Bill Kammer, a litigation partner, heads the firm’s eDiscovery and ESI services team. He oversees its client services and the use of the software, stating: “We are cutting edge in our ability to perform eDiscovery.” The new ethics opinion provides that lawyers lacking technical expertise to represent clients in eDiscovery evolutions must associate those who are eDiscovery adept. Kammer views his firm’s expertise as a tremendous service both to its own clients and potentially to other firms, commenting that the “new technology saves clients significant costs and allows Solomon Ward’s trial lawyers essential and expanded eDiscovery capabilities.” nKlinedinst PC is pleased to announce that San Diego attorney Daniel S. Agle has been named General Counsel of the Californiabased law firm. After serving as Assistant General Counsel during 2012, Mr. Agle will now take on the role of General Counsel in advising the firm’s attorneys, managers, and Executive Committee members on DANIEL S. AGLE all internal risk management matters. Mr. Agle is a key member of Klinedinst’s Professional Liability Group, primarily representing attorneys, accountants, and insurance brokers in complex litigation and arbitration in both federal and state courts. Mr. Agle has secured numerous major victories for his clients in these forums over the years. He also advises a variety of professionals on ethics and risk management matters, and represents judges, lawyers, and accountants before the Commission on Judicial Performance, the California State Bar Court, and the California Board of Accountancy. Active in the local legal community, Mr. Agle is currently involved in the Association of Discipline Defense Counsel, the San Diego County Bar Association, State Bar of California, and American Bar Association. Mr. Agle earned his Juris Doctorate cum laude from the J. Reuben Clark Law School at Brigham Young University, and attended undergraduate school at Brigham Young University where received his Bachelor of Science cum laude in 2003.
COMMUNITY news nMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. announced that Marty B. Lorenzo has joined the firm as a Member, expanding its Corporate & Securities Section in San Diego. A Major in the United States Marine Corps Reserve, Mr. Lorenzo is the latest addition to the office, which has one of the largest concentrations of military veterans practicing law in the San Diego area. MARTY B. LORENZO Over the course of his career, Mr. Lorenzo has developed extensive experience assisting public and private emerging growth companies in domestic and international transactions involving private equity and venture capital financings as well as mergers and acquisitions. His clients are in various industries which include media, government contracting, telecommunications, software, information technology, semiconductors, life sciences, health care services, retail, hospitality and clean technology. He regularly provides counsel on operational matters including corporate governance, internal investigations, federal securities compliance, foreign corrupt practices and post-merger integration issues. Mr. Lorenzo also frequently advises his international clients on issues related to expansion and consolidation projects, reorganization of assets, and crossborder business law matters. In 2010, Mr. Lorenzo received the San Diego County Bar Association’s Service to Diversity Award. The Filipino American Lawyers of San Diego and the Pan Asian Lawyers of San Diego have honored him with the Distinguished Service Award. In 2011, The Daily Transcript named him to its list of San Diego County Top Attorneys in recognition of his corporate transactional practice. nWingert Grebing Brubaker & Juskie proudly announces that Deborah Dixon has been named partner. Deborah started with Wingert Grebing as a law clerk, and after passing the bar in 2007, has been practicing complex litigation, trying numerous jury and bench DEBORAH DIXON trials. “Deborah continues to be an integral member of the firm,” says Managing Partner Stephen Grebing; “her partnership was welldeserved.” Deborah’s practice includes defending lawyers in professional liability actions, litigating complex business and contract disputes, and defending and prosecuting employment and personal injury matters.
nRon Ball, the former city attorney of Carlsbad, has joined Best Best & Krieger LLP as an of counsel attorney, the firm announced today. Ball, who retired from his Carlsbad position in December after 26 years, will practice in BB&K’s San Diego office where he will be a member of the firm’s municipal law practice group, one of the largest in California. BB&K attorneys serve as city RON BALL attorney to more than 30 cities in the state, and provide special counsel services to dozens more. Ball has an extensive background in legal issues that affect cities. During his tenure in Carlsbad, Ball worked on several high-profile and cutting-edge legal matters, including the creation of California’s first financing district, the defense and implementation of the city’s growth management plan, the drafting of the city’s first development agreement for Legoland, the drafting of the second agreement for the proposed Carlsbad desalination plant, the largest of its kind in the United States, drafting and implementing changes to Carlsbad’s city charter and participating in proceedings before the California Energy Commission. “Ron acquired extensive expertise in the critical areas of municipal law during his distinguished career as a city attorney,” said Jeff Ballinger, head of BB&K’s municipal law practice group. “We welcome him to BB&K and look forward to working with him.” Prior to joining Carlsbad in 1986, Ball was an attorney with Mendocino County. He attended Stanford University, earning a degree in civil engineering and the University of California, Berkeley where he obtained a master’s degree in business administration. Ball holds a law degree from the University of Santa Clara School of Law, graduating in 1977. Ball is the California State Chair, International Municipal Lawyers’ Association. He is also a member and former director of the North County Bar Association of San Diego County, and a director and former president of the San Diego StanfordClub. He lives in Carlsbad.
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
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How to Double Your Productivity in 30 Days By David V. Lorenzo Dave Lorenzo helps solo attorneys, large law firms and small independent law practices make a great living and live a great life. People say his down-to-earth personality reflects more of his street smarts than his Ivy-League education. He can be reached at 888.692.5531.
All of us are plagued with too much work and too little time. Many of us have experimented with various time management systems and various electronic scheduling programs that we hope will keep us focused and on track and help us improve our productivity. In reality, we all possess the tools we need to double (and in many cases even triple) our productivity. The secret is focus. I’m not taking about listen-to-your-wife-while-youwatch-the-basketball-game focus. I’m talking about focus on one task and one task only to the point of excluding everything and everyone else. And I’m talking about that kind of focus all the time. But for most people, this is easier said than done. Here’s how you can do it: Step one: Write down everything you have to do and everything that takes up your time and energy during the course of the week. Make a big list. On this list put everything you spend time working on and thinking about. Then lump these activities into categories. For example: driving to and from meetings, research, preparing a talk, returning client phone calls, sifting and sorting email, networking, drafting an agreement, etc. Step two: Select the five areas of focus that are the best possible use of your time. Notice: This step has a hidden step within it. You must determine what your time is worth and decide what is the best possible use of it.
Once you have selected the five things (or categories) that are the best possible use of your time, you can move on to step three. Step three: Ruthlessly eliminate everything else from your life except the five things that are the best use of your time. The idea is to delegate or otherwise permanently dispatch these things from your life. Get rid of them completely. Typical excuses: Whenever I introduce this concept to my clients, they always push back on certain items. Email, for example, is one of the biggest time wasters on the planet. Here’s what I encourage you to do with email: 1). Never keep email open on your desktop while you are working. 2). Train your assistant or paralegal to sort your email. Have them alert you to anything urgent, handle what they can handle and flag things that need your attention. 3). Schedule time to check and respond to email every day. Select an hour in the morning and an hour in the afternoon. 4). If something in your email will need longer than 5 minutes of work, schedule time to handle it. Actually put it on your calendar – as long as it is one of the five things you are focusing on. Another area people complain about is the telephone. Here is my solution for that problem: Never take an inbound call. Have all your calls go to voice mail. Have the voice mail transcribed and emailed to your assistant or paralegal. Have the assistant handle the issue or schedule time on your calendar for you to handle the issue later on (as long as it is one of your five areas of focus). n Attorney Journal | Volume 114, 2013
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It’s a Profession First At Fleming & Fell PC, Civility, Integrity and Experience Result in Big Firm Quality with Small Firm Flexibility By Jennifer Hadley
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eorge Fleming’s reputation as one of San Diego’s most highly regarded trial lawyers is well-deserved. With a career spanning more than 30 years, Fleming has tried more than 100 cases, was past president of the San Diego Chapter of the American Board of Trial Advocates, a Fellow of the American College of Trial Lawyers, named one of the Best Lawyers in America for more than a decade, and is routinely selected for inclusion in San Diego Super Lawyers. But what makes Fleming & Fell unique is its philosophy that the law is a profession first, not a business. To that end, Fleming has always placed emphasis on an often overlooked aspect of being a true professional; namely mentoring up and coming attorneys. Early in his own career, Fleming worked his way from law clerk to equity partner in McInnis, Fitzgerald, Rees, Sharkey & McIntyre. “The mentorship offered at McInnis was unique, top quality and nurturing. My vision was to [eventually] recreate a firm with an environment similar to that which I enjoyed at McInnis which included excellent trial lawyers, early and intense training of young lawyers, and impeccable ethics,” he says. In 2008, he brought his vision to life, forming a partnership with a gifted attorney he had mentored who shared his goals and commitment to civility and ethics. At Baker & McKenzie, Bibianne (Bibi) Fell was one of the associates who worked on Fleming’s cases. As had been his practice since early in his career, Fleming had taken an interest in training Bibi to prepare and take cases to trial. “He takes the approach of allowing you to test your skills in deeper waters, but promises not to let you drown,” Bibi says. “He was a senior attorney, and he got me involved. When George decided to leave ‘big law’ and open his own firm, I was ready to be his partner.”
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Big Firm Quality When Fleming and Fell launched their firm in 2008, they already had an incredible reputation in place, thanks in large part to Fleming’s profile in the San Diego legal community. Bibi was earning her own stripes as well. She was twice recognized as a Top Young Attorney by the San Diego Daily Transcript, and is an adjunct professor of Trial Advocacy at the University of San Diego School of Law. She regularly gives guest lectures to the students of the USD Civil Clinic. Fell also serves as a co-Program Director for the National Institute for Trial Advocacy’s Deposition Skills and Deposing the Expert Witness programs. She has taught both deposition skills and trial skills through NITA since 2008. Consequently, it came as no surprise that word-of-mouth referrals followed Fleming and Fell into their new practice, as did referrals from opposing counsel. The two also added Tracey Angelopoulos as a partner, and brought in Cary Miller and Charles Fell as Of Counsel attorneys for the practice. The end result is a team of attorneys who seek to resolve matters for clients with as little litigation as possible, but with the advantage of having the ability and willingness to take their clients’ cases all the way to trial if necessary. “Our clients have told us that hiring our firm sends the message to the other side that they are serious about going all the way,” says Bibi. Likewise, due to the reputation the firm has earned over the past five years, from time to time, Fleming & Fell PC is also pulled into cases shortly before trial as trial counsel.
Small Firm Flexibility Yet, despite its big firm pedigree, Fleming & Fell PC—which focuses on products liability litigation (individual and Class Actions); complex civil litigation; commercial litigation; contractual disputes & indemnification; labor and employment litigation; wage and hour disputes (individual and Class Actions);
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employee theft & trade secret; fiduciary litigation and unfair competition & business torts—is truly a boutique trial firm. “This is a profession first, and a business second,” says Fleming. “We don’t employ scorched-earth strategies. We owe it to our clients first and foremost to do a good job. We also have an obligation to the courts and the community not to waste resources.” As such, Fleming explains that in lieu of fighting every battle in a case, “we focus on the war.” That means that Fleming & Fell PC tends to focus on one or two critical weaknesses in opposing counsels’ argument, rather than fighting every little detail. In this way, the firm is able to efficiently and effectively handle what is important, while sparing clients the expense (and courts the time) of arguing over details that don’t matter in the grand scheme of things. “We only fight the battles worth fighting, and we pick our battles very carefully,” Fleming notes. Fleming & Fell’s reputation for integrity and professionalism with clients extends to courtrooms and to the community as well. “We work really well with others,” Fell says. “We are known for our civility, so judges know that if we’re fighting over something, it must really be an issue.” Fell acknowledges that part of what the firm does to remain committed to being professionals first may not appear to make a
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great deal of sense from strictly business standpoint. “As a smaller firm, we are able to be more flexible with our billing rates. We can set flat rates, or make adjustments as necessary,” she says. Moreover, Fleming & Fell PC allows its clients to have a say in which attorneys they want working on their cases, and to have direct access to the team at all levels. It is clear that George Fleming and Bibi Fell have found a strategy for success which results in victories for their clients, and allows them to remain committed to their core values of honesty, integrity and civility. With a steady but conservative growth plan in place, it’s only fitting that part of their expansion will include the mentoring of young attorneys that when it comes to practicing law, it’s a profession first. n Contact: gfleming@flemingfell.com www.flemingfell.com 858-554-0500 Fleming & Fell PC 4225 Executive Square, Suite 200 La Jolla, CA 92037
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REAPING WHAT HE SOWS… AND THEN SOME
By Jennifer Hadley
“I absolutely love what I do,” Christopher Walton says, with a smile in his voice. “I represent the clients I want, I run my own business, I’m as close as I’ve been to finding the ever elusive work/life balance, I’m able to take on volunteering projects and I can give back to my community.” Continuing, he adds that “sometimes I feel guilty about being so excited on the elevator in the morning, but the truth is, I can’t wait to get to work.” For Walton, who dedicates his practice exclusively to helping people who have suffered catastrophic injuries or loss due to the negligent or intentional acts of others, running a solo practice with a specialization in elder abuse has proven to be even more rewarding than he thought possible. His enthusiasm is absolutely palpable.
Sowing The Seeds: The Neighborhood Lawyer “When I was 12 years old, my friend Jeremy got in trouble and had some of his privileges withheld. We felt the punishment was overly harsh, but he was too afraid to discuss it with his parents,” Walton recalls. “I convinced him to allow me to ‘represent him.’ I recall interviewing his siblings to learn more about their prior punishments and then we arranged it so I was strategically invited to dinner, where I very delicately presented our position,” he laughs. “It was an entertaining dinner to say the least. His parents laughed but the next day they reduced his punishment. The word spread quickly and I was invited to a couple more dinners over the next year or two. In the process I was nicknamed “the neighborhood lawyer,” Walton continues. “As silly as it was, I will never forget the thrill of speaking on behalf of my friend that night. It cemented my desire to be a lawyer and help people.” Once the seeds of service to others had been planted, Walton went after his dream with gusto. “I developed an intense work ethic at an early age. I got my first job when I was 14 years old, and have had a job ever since. The reality was a lot of my friends were given things that I had to work, save and pay for myself. I recall having to sign my checks over to my parents in high school to cover the cost of my car,” he says. Working 30-50 hours a week throughout high school, college and law school, Walton got his first legal job his first year of law school. “I convinced somebody in career services to slip my resume into a pile that looked over a foot tall. The position was for third year law students only. I recall her telling me I would never get the job as a first year. A couple of days later, I called the managing partner Keith Greer, and told him he only needed to pull one resume out of the pile,” he remembers. “I was hired during the interview and a month later, he offered me a job for two years down the road after graduation.” Walton didn’t waste any time getting to work. He graduated with honors from California Western School of Law in just 2.5 years, and continued his work at Greer & Associates, primarily defending doctors in medical malpractice and some elder abuse cases. “As much as I enjoyed it, on some level I yearned for what I felt when I was 12 years old ‘representing’ my friend. My firm would take an occasional plaintiffs case and the enjoyment I 18
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‘Ordinary Guy’ Christopher Walton Reaps Extraordinary Personal and Professional Rewards By Doing What He Loves.
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“Opening my own practice has given me the most career satisfaction, I’ve ever had.” felt working on those cases was too great to ignore. I realized I needed to represent and fight for the little guy,” he adds. After a particularly contentious and hard-fought case in 2007, “I honestly thought opposing counsel, Bill Berman probably disliked me,” Walton says. Instead, Berman offered Walton a job, and he accepted after 6 years with Greer & Associates. “As I look back, I was offered a job by opposing counsel following the three most contentious cases in my career,” Walton recalls. “I consider that a direct reflection of the mentorship I received from Keith. He’s a great trial lawyer and taught me how to go about my business the right way and practice with confidence and civility.” For the next two years, Walton worked as a senior associate for Berman & Reidel, LLP where he honed his skills handling catastrophic personal injury and elder abuses cases. “I am blessed to have had the opportunity to work with Bill and still consider him a good friend. Bill is aggressive and very thorough and taught me the intricacies of working up a plaintiffs case,” Walton adds.
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In January of 2010, Walton opened the doors to his own personal injury firm, dedicating a large portion of his practice to elder abuse. “Elder abuse cases are unique and much different from any other type of personal injury case, including medical malpractice. They are often very emotional, time consuming, expensive and require a specific understanding of how multiple bodies of law co-exist,” says Walton. Fortunately, his previous experience handling both defense and plaintiffs cases lent itself to a thorough understanding of this niche area. “Our elderly deserve to live their final years with dignity, and feel safe, loved and cared for,” he explains. “They are extremely vulnerable and I am honored that I get to stand up for them and be a voice for them when they are too afraid, or simply don’t have the means or opportunity,” he adds. As one of only a handful of attorneys in San Diego who litigate elder abuse cases in the trenches on a day-to-day-basis, Walton derives endless rewards from the niche practice. “I run a very low volume practice. I am very selective in the cases I take, which allows me to be very accessible to my clients,” he says. “I personally handle their entire case. I know each one of my cases inside and out. That’s how I prefer to practice, and the way I’ve set things up intentionally.” Walton’s love for what he does has not gone unnoticed by clients or the legal community as a whole. Although as much as 50% of his practice involves elder abuse cases (with a large
portion of his work stemming from attorneys requesting Walton as co-counsel); he also receives numerous referrals to personal injury cases from former clients. “I focus on running a client-first practice. I personally take and return all phone calls. I work hard to treat every client like they are my most important client, regardless of the size of their case. I keep them updated in all aspects of the case, and I take time to thoroughly explain everything to clients. They are entrusting me with something very important and I don’t take that lightly,” Walton adds. “Even if I do not take a case, those who refer me cases really appreciate the time I take with potential clients,” he says. Continuing he says that it is not “unusual for me to walk a potential client through a full investigation that takes months and spend hours with the client,” even if he won’t ultimately take the case. “I’ve found that as a general rule, focusing my energy on ways I can help others is always reciprocated,” he says. “It really is a small legal community and the way you conduct yourself and the way you treat others, matters,” he says before adding, “your reputation lasts forever.” Walton’s principles are certainly paying off. He has recovered millions on behalf of his injured clients, and over the last 3 years, nearly 100% of Walton’s cases have been referrals from former clients, attorneys he’s litigated against, and attorneys he’s worked with. Further testament that honestly trying to help others has its own rewards is evident in Walton’s practice doubling its revenue each year since opening his doors, without advertising at all. “When I went out on my own, the economy was struggling, I had a family, school loans and a mortgage. It was a little scary, but I managed to stay calm, confident and most important, I wasn’t afraid to fail. At the end of the day, I never made a penny less than I made working in a law firm and I get to run my own show. Sometimes I pinch myself,” he adds.
Helping to Harvest The Next Crop For Walton, giving back to others is not only a way of life, but it is the way to happiness. “I love teaching, I love mentoring,”
he says. To that end, Walton is diligent about giving back to his alma mater, and more specifically, paying forward what he’s learned in his nearly ten years to the next generation of attorneys. In 2012, Walton was contacted by Professor Robert Seibel, who was a visiting professor at California Western School of Law. “He knew me from my work as a supervising attorney in the California Western School of Law Internship Program. He sat me down and explained his vision for launching the Access to Law Initiative (ALI).” As a legal incubator program, ALI is designed to bring affordable legal services to the San Diego community through associated attorneys in solo or small firm practice. Walton was intrigued and immediately agreed to help spearhead the program with Seibel. “It was certainly an honor that he selected me,” Walton says. “ALI fulfills two main objectives that I am passionate about: helping newer lawyers open and build their own practices, and helping to ensure that even those less fortunate have access to justice,” he says. Beginning with 8 attorneys, ALI was the first program of its kind on the West Coast, and has now grown to 14 attorneys, all California Western graduates who practice in a variety of legal disciples, and offer a significant amount of free and reduced price legal services to the community. Moreover, the program offers young attorneys mentorship in order for them to discover the rewards of economically viable careers while helping underserved communities and citizens. Walton placed the first incubator office down the hall from his and acts as an on site mentor. He also serves as the President of the Board of Advisors, of ALI, and loves the responsibility. “Every community service organization that ALI works with is faced with large unmet needs for legal services and we believe the lawyers can make a substantial contribution to helping those people while also establishing sustainable law practices,” he says. “Opening my own practice has given me the most career satisfaction I’ve ever had. It has allowed me to take on projects that I want to be involved with including ALI,” he remarks of hoping to encourage emerging attorneys to consider the benefits of a solo practice. Attorney Journal | Volume 114, 2013
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For Walton, “fighting the urge to take everything that came in the door,” while starting out has proven a sound strategy for creating a legal career that he loves. “So many lawyers I talk to feel that something is missing or keeping them from feeling the career satisfaction they desire. I was never unhappy [in what I was doing before], I’m just lucky to have found this much fulfillment. There are so many areas of law and so many things we can do to help people. I found those that I love, and now practice only in those areas,” he adds. “I realized that I get the most satisfaction from representing ordinary people, like myself.” In order to ensure that he continues to enjoy his work as much as he does, Walton plans to grow his firm slowly. “If the referrals continue to increase at the present pace, both in numbers and quality, I expect to hire in the next two years. However my long term goal is to remain very small, with no more than 4 employees.” Laughing he adds, “I’m in no hurry to get there.” Walton’s determination to keep his practice small, focus only on those clients he believes he can help, and only those cases which he can devote his all to, stems in large part to his refusal to let life pass him by, stuck in an office for 12 hours at a time. As the father to 4 year old Kayla and nearly 2 year old Caden, family time is not optional for Walton. “As a solo practitioner, I work harder than I ever have but enjoy a tremendous amount of flexibility. I can drop off or pick up my daughter from school, have dinner with my family, give the kids a bath, put the kids to bed, and get back to work by 8:30 pm,” he says. “Family is very important to me and I firmly believe you can be a successful lawyer without putting your family second,” he adds. In fact, he says that the same excitement he feels going into the office, is repeated at the end of the work day when he can’t wait to get home to his wife and children. From his compassion for his elderly and injured clients to his belief in doing what you love and the success following, it sure seems clear that Walton has reaped what he began sowing as a 12 year old neighborhood lawyer, standing up for his friends. And he’s not shy about talking about how grateful he is that he launched his own firm. “Opening my own firm has provided me with everything I dreamed of and the most job satisfaction I’ve ever had.” n Contact: Christopher Walton Walton Law APC cwalton@waltonlawapc.com www.waltonlawapc.com (619) 233-0011 750 B Street, Suite 3300 San Diego, CA 92101
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EXPERIENCE
Reaping the Personal Rewards
» AREAS OF PRACTICE • • • •
Personal Injury Nursing Home Abuse and Neglect Financial Elder Abuse Wrongful Death
» EDUCATION
• California Western School of Law, San Diego, CA - Juris Doctor, cum laude, December 2003 - Dean’s Honor List - Recipient, Dean’s Merit Scholarship - American Jurisprudence Award: Trial Practice - American Jurisprudence Award: Advanced Mediation Advocacy - American Jurisprudence Award: Clinical Internship - Winner, Negotiation Competition - National Environmental Negotiation Competition, Richmond, Virginia - Advanced Mediation Training Certificate - Vice President, Sports & Entertainment Law Society - Small Group Tutor • Western Washington University, Bellingham, WA - Bachelor of Arts, Communication, Minor, English, June 2001 - President’s Honor List
» PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
• President, Board of Advisors Access to Law Initiative, 2012 – present • Co-Chair, Elder Law Section San Diego County Bar Association, 2011 and 2012 • Awards Committee, Consumer Attorneys of San Diego, 2010 – present • Barrister, American Inns of Court, The Honorable William B. Enright Chapter, 2010 – present • Member, San Diego County Bar Association, 2004 – present • Member, North County San Diego Bar Association, 2004 – present • Member, Consumer Attorneys of San Diego, 2008 – present • Member, Senior Resource Association, 2011 – present
» PRO BONO ACTIVITIES
• Volunteer Attorney, Service Members Civil Relief Act Pro Bono Program • Mentor, California Western School of Law Mentorship Program • Mentor, Access to Law Initiative • Supervising Attorney, California Western School of Law Internship Program
» RECENT SPEAKING ENGAGEMENTS
• Civil Remedies Under California’s Elder Abuse Act, Senior Resource Association, 2012 • What Every Legal Nurse Consultant Must Know About California’s Elder Abuse Act, American Association of Legal Nurse Consultants, San Diego Chapter, 2012
EXCELLENCE TRIAL LAWYERS • Business
• Personal Injury
• Wrongful Death
• Mass Torts
www.thegomezfirm.com Yolanda S. Walther-Meade, CMO Local: 619.237.3490 | Toll Free: 866.395.6792
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As lawyers often advise their clients, any litigation involves some element of risk, and “there is no such thing as a slam dunk.” A recent California case illustrates that when attorney fees are on the line, the stakes are increased and litigants—and their counsel—need to evaluate carefully the risks before going all-in. In Nemecek & Cole v. Horn, the California Second District Court of Appeal affirmed an attorney fees award, concluding a string of cases that started with a lot boundary line dispute between neighbors. By the end, the attorney at the center of these cases was more than $600,000 in debt after being ordered to pay attorney fees three separate times—once by an arbitrator and twice by two different trial court judges.
Attorneys Pursuing Unpaid Fees Risk More Than Just Losing the Case
Attorney Gambles Chasing Fees and Loses Big by M. Derek Harris M. Derek Harris has been named by the Atlanta Business Chronicle as a “40 Under 40 Up & Comer.” He is a Fellow in the Leadership Council for Legal Diversity’s Fellows Program, an Associate Editor for ABA Litigation News, a member of the State Bar of Georgia’s Children and the Courts Standing Committee, and a member of the Board of Directors for the Law Pipeline Program, Inc. “Attorney Gambles Chasing Fees and Loses Big,” originally published in Litigation News online, Oct. 31, 2012. © 2012 American Bar Association. Reproduced with permission. All rights reserved.
Attorney Steven Horn was initially retained to represent a couple in a lot line dispute against their neighbors. Horn’s clients lost and failed to pay Horn’s invoice. Horn then sued his clients for unpaid fees. They counterclaimed for fraud. “It’s almost universally the case that when attorneys sue clients over fees, the clients think of something they didn’t like that their attorneys did, and they counterclaim,” observes Betsy P. Collins, Mobile, AL, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “Then you have a malpractice claim instead of just a fee claim,” adds Collins. “Many attorneys and law firms are reticent to enter into fee disputes because of the danger to their reputations—if not to their financial well-being—from the counterclaims,” notes Thomas J. Donlon, Stamford, cochair of the Section of Litigation’s Appellate Practice Committee. “Even if the counterclaim is unsuccessful, the negative publicity that arises from allegations of fraud, malpractice, or malfeasance is more damaging than the amount recovered,” explains Donlon. Horn retained Nemecek & Cole to represent him in the litigation against his former clients. The case resulted in Horn being awarded $42,282.56 on his fee claim and a matching award for his former clients on their fraud counterclaim. These awards offset, resulting in a net judgment of zero dollars. Horn’s former clients, however, sought and were ultimately awarded $380,000 in attorney fees because “they were the prevailing defendants on the complaint.” Horn settled the case for $250,000 while it was on appeal.
Know When to Fold When Attorney Fees Are in Play Horn, undeterred by his loss to his former clients or the hefty fee award, made another litigation gamble. This time, Horn initiated arbitration against his former counsel, Nemecek, asserting that
the firm’s negligence was the cause of the “disastrous results” in the litigation with his former clients. Nemecek counterclaimed for unpaid attorney fees that Horned owed to the firm. “Having lost that first case so substantially, to then turn around and sue his next lawyer, really indicates that he didn’t analyze his situation very closely,” concludes Donlon. “When professionals are going to sue over fees, they better decide carefully what their risk is,” Collins warns. “When you’re not prevailing in a variety of forums, you are usually better off finding a different battle to spend your time on,” adds Bruce A. Rubin, Portland, OR, cochair of the Section’s Alternative Dispute Resolution Committee. Horn and Nemecek were awarded nothing on their respective claims asserted in the arbitration. The arbitrator, however, found that Nemecek was entitled to $289,028.95 in attorney fees and denied any offset claimed by Horn, finding that “Nemecek was the prevailing party since they were granted virtually all the relief they sought on Horn’s claim.”
Know When to Run From a Fee Dispute Horn, still determined despite his mounting losses, pressed on and filed a petition to vacate the arbitration award and to oppose Nemecek’s confirmation petition. The arbitration award was confirmed and, for the third time, Horn was ordered to pay fees. This time, he was required to pay his opponent’s
“reasonable attorneys’ fees” in connection with the confirmation proceedings in the amount of $42,207.31. After losing at arbitration and in the confirmation case, Horn played his last card and appealed the confirmation decision. He argued that the trial court abused its discretion because the fee award from the confirmation proceedings “was more than double the amount actually incurred” and the fee award should have been capped at the amount actually incurred. The appellate court disagreed, affirmed the trial court’s judgment, and permitted Nemecek to recover its costs for the appeal from Horn, which made Horn a four-time loser in litigation that all began with a lot boundary line dispute between neighbors. While this case is exceptional, it teaches litigants fundamental lessons to keep in mind when attorney fees are on the table. “You need to talk to your client, whether you’re on the plaintiff’s side or the defense side, about the risk of being exposed to an attorney fee award to the other side. That’s a discussion that I’m not sure happens as often as it should,” says Edward A. Salanga, Phoenix, cochair of the Section’s Expert Witnesses Committee. “It’s not as simple as, well, if we don’t win, my client doesn’t recover anything and maybe I don’t get paid if I’m on a contingency fee agreement. In some cases, there is an additional ramification, actually exposing your client to a fee award,” explains Salanga. When attorney fees are in play, recognize, evaluate, and know the risks before gambling on litigation. n
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DTIGlobal.com Attorney Journal | Volume 114, 2013
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Reducing Electronic Discovery Costs and Risks Through Litigation Readiness by Je Jacobs
R
ecent court decisions imposing sanctions and holding both in-house and outside counsel responsible for poor electronic discovery practices make clear that all lawyers need to understand the basics of electronic discovery, or at least know when and how to engage colleagues, litigation support teams and service providers who are experts in the field. They should also know how their clients can use litigation readiness to reduce the costs and risks of electronic discovery. Litigation readiness starts with effective information management, on the so-called “left side� of the Electronic Discovery Reference Model (EDRM). A well-structured records retention policy and schedule, ensuring that information is kept only as long as required to meet legal and regulatory requirements, business purposes and, of course, compliance with any holds imposed for pending litigation or investigative proceedings, helps reduce the costs associated with storing unnecessary and outdated paper records and electronic data. When coupled with 26
Attorney Journal | Volume 114, 2013
an effective email usage and retention policy, ideally enforced with an electronic tool that automatically deletes emails that have not been archived within a specified period of time, the amount of data that needs to be preserved, collected, processed and reviewed in responding to litigation or investigatory discovery requests can be significantly reduced, with accompanying cost savings. Under the amended FRCP, and many state and local rules, initial disclosure of copies or descriptions of relevant ESI and its sources is required within about three months after the beginning of a case. In order to be able to comply with this requirement within the requisite time frame, and also to avoid the risk of overlooking sources of potentially relevant information, it is helpful to have a data map identifying the major sources of ESI within an organization, including email and other messaging systems, electronic archives, collaborative tools and workspaces, corporate applications and databases, along with contact information for the business owners and users and the IT personnel responsible for managing or administering each one. This
is also a convenient place to keep track of systemic retention (and deletion) and backup protocols, in case it is necessary to suspend them to implement a litigation hold. The data map should also include legacy or decommissioned systems that contain organizational information, even though those systems may not be considered reasonably accessible. Keeping the data map up to date requires regular communication with the IT department to make sure that changes are recorded as new systems and applications are brought online and old ones decommissioned. A number of electronic discovery decisions, including those in the Zubulake v. UBS and Qualcomm v. Broadcom cases, have stressed the importance of having a discovery response plan, ideally one that is developed and put in place before it needs to be activated in response to a specific litigation or investigatory matter. A good start involves creating a discovery response team, with representatives from legal, IT, HR, records, compliance, and other affected business units who will develop the response plan and be responsible for putting it into action when needed. It is also a good practice to select and enter into agreements with any service providers who may be needed, so that the terms, conditions and pricing will be in place before they are needed. The discovery response plan should include a documented, repeatable and legally defensible workflow, with detailed procedures for executing and documenting each step of the process. Given the number and cost of discovery sanctions imposed for inadequate preservation, the ability to impose a timely and effective litigation hold has to be at the center of any discovery response plan. The hold process should include the preparation of hold notices from templates, and methods for transmitting hold notices, receiving and documenting acknowledgments of receipt and compliance, providing periodic reminders of ongoing hold obligations, and ultimately releasing the hold. This can be done manually using spreadsheets, but keeping track of large numbers of custodians in large numbers of pending matters may require the use of legal hold tools or software, which may save personnel costs and automate documentation, thereby also reducing risk. This combination of litigation readiness elements – retention polices, data mapping, discovery response team and a documented discovery response plan – can all go a long way towards helping organizations reduce discovery costs and risks, and helping their counsel sleep better at night. n Jeff Jacobs is DTI’s associate general counsel and also heads up DTI’s litigation readiness consulting practice, advising clients on records retention policies, data mapping, and the evaluation and development of discovery response plans. He is a frequent conference speaker and presenter of CLEs on a wide range of electronic discoveryrelated topics. www.dtiglobal.com Attorney Journal | Volume 114, 2013
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What should you consider when selecting a mediator? This article addresses the salient factors that will enhance the likelihood of a successful mediation.
Selecting the Right Mediator for Your Dispute by Steven H. Kruis, Esq. Steven H. Kruis, Esq. has mediated and litigated thousands of cases for the past 32 years. A former managing partner of a major San Diego law firm, he began mediating in 1993, and handles real property, business, probate, employment, and injury matters. He is a full-time mediator with Kruis Mediation. www. kruismediation.com
Timing. When is a dispute ripe for a productive mediation? Generally speaking, it is when the parties possess enough information to intelligently discuss liability, causation, and damages. Once the dispute evolves to that point, and the parties share a genuine interest in reaching resolution, mediation is timely. Selecting the mediator. One size does not fit all. The personality types and needs of the parties, the level of client control, your relationship with opposing counsel, and the nature of the dispute all factor in to determining the best mediator for each particular dispute. Regarding mediation styles, on one side of the spectrum is the facilitative model and purist mediator who works toward finding creative solutions that meet the interests and needs of the parties, ascribing relatively little importance to their legal rights. The best cases for the facilitative model are those more about emotions than money, especially when the parties will continue their personal or business relationship. The mediator is a facilitator, not evaluator. On the other side of the spectrum is the evaluative model which the mediator evaluates the case and tells the parties what it is worth. The case is solely about money, and the emotional aspects of the case are not highly relevant. The hybrid model is in the middle of the spectrum where the mediator is a skilled facilitator who shares neutral impressions with the parties to help them better evaluate the matter. Instead of assigning a value to the case and prevailing upon the parties to agree with that value, the hybrid-model mediator endeavors to get the parties to agree with each other as to what the case is worth. Emotions— hurt feelings, anger, animosity—are important in that they must be addressed before getting down to the business of negotiating a settlement, but these cases are ultimately about money. The subject matter of the dispute and the personalities of the mediation participants will dictate the best type of mediator. A strong-willed and successful business client may not react well to an aggressive evaluative mediator, but instead will require a much more nuanced approach, whereas an unsophisticated but hardto-control client with unrealistic expectations may benefit from that approach. Interviewing the mediator. Once you have determined the type of mediator most appropriate for your matter, is it appropriate to call a prospective mediator and discuss the case and mediator’s style? Many practitioners are reluctant to make such a call as an ex parte communication. However, remember that mediation is nothing more than a series of ex parte communications. Since the mediator is not making a decision, there is no ethical or legal prohibition to a pre-mediation communication. In fact, the law encourages such communications by cloaking them in mediation confidentiality. California Evidence Code §
1115 (c) defines a “mediation consultation” to include a call to a mediator “for the purpose of initiating, considering … or retaining a mediator.” Under § 1119 (a), communication during a mediation consultation is subject to all of the protections of mediation confidentiality as if made during the mediation itself, even if the prospective mediator is not ultimately retained to mediate the dispute. When interviewing the prospective mediator, consider inquiring about mediation style, training, experience, strengths, and weaknesses. Other appropriate questions include: have you previously worked with my opposing counsel? What is your view of your role in mediation? What lessons has your mediation experience taught you? Do your unsuccessful mediations have common characteristics that the parties could have avoided? What effort will you make to follow up if we do not settle the case? What advice do you have for me in preparing for mediation? Getting opposing counsel to embrace your suggested mediator. Once you have decided on the mediator with whom you are comfortable for your case and want to propose to opposing counsel, how can you enhance the likelihood that counsel will agree to your suggestion? Ideally, the mediator will have previously mediated with you and opposing counsel. If you have used the mediator before, but opposing counsel has not, disclose that fact up front. Explain why you believe the mediator would be a good fit for the case, and invite counsel
to call the prospective mediator. Also, provide opposing counsel in the current case with the name and contact information of the attorney or attorneys who opposed you in the prior case mediated by the prospective mediator. Good mediators generally have positive experiences with such opposing counsel, who will most likely provide favorable input. There is no better recommendation than that coming from your adversary in a prior case that was successfully mediated by the mediator you are proposing! Tell the mediator what you need. If possible, speak with the mediator before the mediation. If a pre-mediation call cannot occur, let the mediator know at the outset of the mediation that you would like to speak in private. Either in the pre-mediation call or private meeting at the outset of the mediation, let the mediator know how he or she can help you either with your client or opposing counsel. Be prepared to discuss any client control issues, client constituents that may have influence on the client, the relationship, if any, between the parties, and how you interact with opposing counsel. Mention your thoughts about a joint session, and any other salient points that will help the mediator understand the dynamics underlying the case, and any impediments to settlement. By following these suggestions, you can find the right mediator for your case and enhance the likelihood of a successful mediation. n
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