Attorney Journal, San Diego, Volume 125

SAN DIEGO

Volume 124, 2013 • $6.95

A General Understanding of California’s Elder Abuse Act

5 Reasons Why Lawyers Can No Longer Ignore Web Video

Fernando Ziemer

William M. Berman McIntyre’s California Civil Law Update

Monty A. McIntyre

A Collection Policy to Avoid Write-Downs

Ed Poll

MEDIATOR OF THE MONTH

Jeffrey Joseph RISING STAR OF THE MONTH

Alex Ozols

PROFESSIONAL PROFILES

Amy Porter of LawPay Eddy Borysewicz of Invendica, Inc. Attorney of the Month

John Carpenter

2014 EDITION—NO.125

TABLE OF CONTENTS features 6 McIntyre’s California Civil Law Update Organized Succinct Summaries

by Monty A. McIntyre MEDIATOR OF THE MONTH

10 Judge Steven R. Denton (Ret.)

by Jennifer Hadley

12 COMMUNITYnews

14 5 Reasons Why Lawyers Can No Longer Ignore Web Video

EXECUTIVE PUBLISHER Brian Topor

by Fernando Ziemer

EDITOR Nancy Deyo

ATTORNEY OF THE MONTH

16 John Carpenter

CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS William Berman Ed Poll Fernando Ziemer Christopher Walton Mike O’Horo Monty McIntyre 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.

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by Jennifer Hadley

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21 A Collection Policy to Avoid WriteDowns How to Define the Collection Policy and Handle Write-Down Requests

by Ed Poll

PROFESSIONAL PROFILE

22 Eddy Borysewicz of Invendica, Inc.

by Karen Gorden

24 A General Understanding of California’s Elder Abuse Act

by William M. Berman RISING STAR OF THE MONTH

26 Alex Ozols

by Karen Gorden PROFESSIONAL PROFILE

28 Amy Porter of LawPay

by Jennifer Hadley

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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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9th CIRCUIT COURT OF APPEAL Arbitration

McIntyre’s California Civil Law Update Organized Succinct Summaries

Chavarria v. Ralphs Grocery Company _ F.3d _ (9th Cir. 2013): The Court of Appeal affirmed the district court’s denial of a motion to compel arbitration in a class action alleging violation of the California Labor Code and Business and Professions Code sections 17200 et seq. The district court properly found the Ralph’s arbitration agreement was unconscionable under California law and was not preempted by the Federal Arbitration Act. (October 28, 2013.)

Ferguson v. Corinthian Colleges, Inc. _ F.3d _ (9th Cir. 2013): The Court of Appeal reversed the district court’s partial denial of defendant’s motion to compel arbitration in a putative class action alleging a deceptive scheme to entice student enrollment. The district court had partially denied the motion regarding Plaintiffs’ claims for injunctive relief under California’s unfair competition law, false advertising law, and Consumer Legal Remedies Act relying on decisions by the California Supreme Court establishing the Broughton-Cruz rule (see Broughton v. Cigna Healthplans of California (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303), which exempts claims for “public injunctive relief ” from arbitration. Based on decisions of the United States Supreme Court including AT&T Mobility LLC v. Concepcion, 563 U.S. _ , 131 S. Ct. 1740 (2011) and Marmet Health Care Center, Inc. v. Brown, 556 U.S. _ , 132 S. Ct. 1201 (2012), the Court of Appeal concluded that the Broughton-Cruz rule is preempted by the Federal Arbitration Act. (October 28, 2013.)

Copyright

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 619-9904312 or monty.mcintyre@gmail.com.

Seven Arts Filmed Entertainment Limited v. Content Media Corporation PLC _ F.3d _ (9th Cir. 2013): The Court of Appeals affirmed the district court’s dismissal of a copyright infringement lawsuit claiming copyright ownership of three movies. Where the gravamen of the copyright infringement lawsuit is ownership and a freestanding ownership claim would be time-barred, any infringement claims are barred.

Because Paramount Pictures Corp. clearly repudiated the ownership claim of plaintiff more than three years before the lawsuit was filed, the district court properly dismissed the action. (November 6, 2013.)

CALIFORNIA COURTS OF APPEAL Arbitration Goldman v. Sunbridge Healthcare, LLC (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. Plaintiff sued two 6

Attorney Journal | Volume 125, 123, 2014 2013

skilled nursing care facilities for improper care and treatment of her deceased husband. When the husband was admitted, the wife signed documents that contained arbitration agreements. The trial court properly found that the wife did not have authority to sign the documents for her husband and did not sign in her individual capacity, and properly denied the motion to compel arbitration. (C.A. 3rd, filed September 27, 2013, published October 28, 2013.) Also categorized under Tors/Elder Abuse/Personal Injury/Wrongful Death.

Young v. Horizon West, Inc. (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. Plaintiff sued for damages for her treatment at a skilled nursing care facility.

Her daughter signed the admission papers with an arbitration agreement. The trial court properly denied the motion because the daughter lacked authority to sign the arbitration agreement on behalf of her mother. (C.A. 6th, October 28, 2013.) Also categorized under Tors/Elder Abuse/Personal Injury/ Wrongful Death.

no longer in effect and no relief could be granted. The writ petition was therefore denied. (C.A. 2nd, October 30, 2013.)

Civil Procedure/Anti-SLAPP/New Trial/Rules of Court/Verdict

Employment/Labor

Garcia v. Cruz (2013) _ Cal.App.4th _ : The Appellate Division reversed a judgment for the landlord following a bench trial in an unlawful detainer action. The trial court erred in denying the tenant her constitutional right to a jury trial after the tenant failed to post past-due rent pursuant to the court’s order under Code of Civil Procedure section 1170.5. Section 1170.5 does not authorize the court to conduct a bench trial if the tenant fails to deposit money as ordered by the court. (Appellate Division of the Los Angeles County Superior Court, November 6, 2013.) Also categorized under Real Property.

Vesco v. Superior Court (Newcomb) (2013) _ Cal.App.4th _ : The Court of Appeal granted a writ petition ordering the trial court to vacate its order granting a trial continuance and also ruled that plaintiff was entitled to notice, to view documents, and to an opportunity to be heard when the disabled defendant requested accommodations under California Rule of Court 1.100. (C.A. 2nd, November 6, 2013.)

Contracts Eel River Disposal Resource Recovery, Inc. v. County of Humboldt (2013) _ Cal.App.4th _ : The Court of Appeal reversed the trial court’s order denying a writ of mandate regarding the issuance of a government contract. The phrase “competitive bidding” was found to be ambiguous and the Court of Appeal ruled it had to be construed consistent with related statutes applying a “Lowest Responsible Bidder” requirement. (C.A. 1st, November 5, 2013.) Also categorized under Government.

Corporations Cal-Western Business Services, Inc. v. Corning Capital Group, Inc. (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s judgment dismissing the action on its own motion. Because Cal-Western was the assignee of a judgment owned by a suspended corporation, Cal-Western lacked capacity to sue. (C.A. 2nd, November 6, 2013.)

Volpei v. County of Ventura (2013) Cal.App.4th _ : The Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration. The memorandum of agreement (MOA) between the County and the Venura County Deputy Sheriff’s Association did not bind Volpei to arbitrate his claims for

Law firm with too much space?

Attorney in need of an office?

Constitution/Free Speech Steiner v. Superior Court (Volkswagen Group of America) (2013) _ Cal.App.4th _ : The Court of Appeal denied a writ petition, but ruled that the trial court improperly ordered an attorney to remove for the duration of a trial two pages from her website discussing similar cases to the case being tried.

The Court of Appeal concluded the order was an unlawful prior restraint on the attorney’s free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given by the trial court, were the presumptively adequate means of addressing the threat of jury contamination. Although the order was improper, it was

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Attorney Journal | Volume 125, 2014

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retaliation, harassment and discrimination under the Fair Employment Housing Act because the MOA did not provide for a clear and unmistakable waiver of Volpei’s right to a judicial forum for his statutory discrimination claims. (C.A. 2nd, November 7, 2013.)

Family In re Marriage of Davis (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order establishing the date of separation under Family Code section 771. The Court of Appeal rejected the husband’s argument that the decision of In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 controlled and, for separation to occur, a spouse had to move out of the residence. The Court of Appeal found there was substantial evidence to support the trial court finding that the date of separation was June 1, 2006, not the date of physical separation on July 1, 2011. (C.A. 1st, October 25, 2013.)

Insurance Farmers Insurance Exchange v. Superior Court (Bautista) (2013) _ Cal.App.4th _ : The Court of Appeal granted a writ petition ordering the trial court to set aside its denial of Farmer’s motion for summary adjudication and issue a new order granting the motion for summary adjudication in a tragic case arising from the wrongful death of a toddler granddaughter who was accidently run over by her grandfather as he entered his driveway. The Court of Appeal concluded there was no coverage under the homeowners policy due to the vehicle exclusion. The grandmother’s alleged negligent supervision of the granddaughter was sufficiently related to the grandfather’s use of his vehicle that it fell within the motor vehicle exclusion. (C.A. 2nd, filed October 1, 2013, published October 28, 2013.)

Legal Malpractice Wise v. DLA Piper LLP (US) (2013) _ Cal.App.4th _ : The Court of Appeal reversed the trial court judgment for plaintiff following a jury trial for legal malpractice and directed that judgment be entered in favor of defendant DLA Piper. Plaintiff sued DLA Piper for malpractice because a judgment it had obtained was not extended and the client was not notified.

The Court of Appeal found that the testimony of plaintiffs’ expert was based upon an incorrect legal theory and was too speculative, and concluded there was no substantial evidence that the judgment against the judgment debtor was collectable.

(C.A. 4th, filed October 8, 2013, published October 28, 2013.)

Real Property Fowler v. M&C Association Management Services, Inc. (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s summary judgment for defendant in a class action alleging that transfer fees charged upon the sale of homes managed by M&C for homeowner associations were improper because there was no prior recorded notice of the fee as allegedly required by Civil Code section 1098.5. The trial court properly found that no such notice was required. (C.A. 1st, October 28, 2013.)

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Attorney Journal | Volume 125, 2014

South County Citizens for Smart Growth v. County of Nevada (KKP Lake of the Pines, LLC) (2013) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s denial of a writ petition alleging CEQA violations in approving a commercial real estate project.

The County did not err in not preparing and circulating a revised draft environmental impact report (EIR) adding a staff alternative because the staff alternative was not “significant new information” within the meaning of the CEQA Guidelines. No findings were required regarding the staff alternative because it was offered after the preparation of the final EIR and adequate alternatives were discussed in the EIR. (C.A. 3rd, filed October 8, 2013, published November 6, 2013.)

Torts/Elder Abuse/Personal Injury/ Wrongful Death Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) _ Cal.App.4th _ : The Court of Appeal affirmed in part and reversed in part a judgment following a jury verdict in an elder abuse case.

The trial court properly rejected defendant’s jury instruction on clear and convincing evidence and refused to instruct regarding state regulations on the use of restraints. However, the trial court abused its discretion in admitting into evidence a class A citation and a statement of deficiencies issued by the state Department of Public Health against San Marino, and this prejudiced the jury verdict on negligence and elder abuse. That portion of the verdict was reversed, as was the related award of damages. The verdict on the Patient’s Bill of Rights was affirmed, but the monetary award was reversed because it exceeded the amount in Health and Safety Code section 1430(b). The attorney fee award was also reversed. (C.A.2nd, November 4, 2013.)

State Department of State Hospitals v. Superior Court (Novoa) (2013) _ Cal.App.4th _ : The Court of Appeal granted in part and denied in part defendant’s writ petition filed after the trial court overruled a demurrer to plaintiff’s complaint seeking damages arising from the rape and murder of plaintiff’s sister by a prisoner four days after he was released from prison. Defendant’s petition was denied as to the third cause of action for writ of mandate because: public entities and employees have no immunity under Government Code section 845.8 for breach of mandatory duties, the complaint alleged defendants breached the mandatory duty to designate two psychologists or psychiatrists to evaluate an inmate identified by the Department of Corrections as likely to be a sexually violent predator, and plaintiff had standing to seek a writ of mandate in the Superior Court. However, the petition was granted as to the other causes of action because the Court of Appeal found plaintiff could not prove causation as a matter of law. The trial court was directed to sustain defendant’s demurrer without leave to amend as to those causes of action. (C.A. 2nd, October 30, 2013.) n See U.S. Supreme Court opinions at: http://www.supremecourt. gov/opinions/opinions.aspx See 9th Cir. opinions at: http://www.ca9.uscourts.gov/opinions/ See Ca. opinions at: http://www.courts.ca.gov/opinions.htm

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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 Attorney Journal | Volume 125, 2014

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JOURNAL

Bauman Photography

ROUND 5: Reinvention

MEDIATOR

OF THE MONTH

2014

Jeffrey Joseph Embraces The Evolution of His Legal Career Jennifer Hadley

“I

like the idea of reinvention,” says Jeffrey Joseph, founder of Joseph Mediations. Yet for Joseph, whose legal career began more than 40 years ago, the move to full-time mediator in 2012 wasn’t part of a plan he had conceived of decades ago. Instead, it was the result of a natural evolution of his experience. “That’s the great thing about law,” he says.

“Whatever you’re doing now, you can always do something else in the future,” heA. adds.

by Joel Rose Joseph’s latest reinvention wasn’t a particularly surprising career move. After all, he’s been mediating since 1994 and serving as an arbitrator since 1983. But what has come as a surprise is how busy he is, and how rewarding he finds the work. “The best thing about mediating is helping people.

Being able to talk to them, and tell them why I can help is rewarding. You can see the look of relief in their eyes when a settlement has been reached,” he adds.

But Joseph is candid when he says that he did not initially get into mediating for those reasons. “I wanted to raise my professional profile,” he says. The irony lies in the fact that Joseph’s profile really didn’t need to be raised. As an AV rated attorney by Martindale-Hubbell since 1983, suffice to say that Joseph’s track record spoke for itself.

Rounds 1-3: Criminal Trial Lawyer, Civil Trial Lawyer, Professor Joseph’s legal career began after earning his J.D. from UC Davis

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FEATURED

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in 1972. For the first 8 years of his career, Joseph practiced criminal law in the Criminal Section and Special Prosecutions Unit of the California Attorney General’s Office. He became the first San Diego Deputy Attorney General to be assigned to the San Diego District Attorney’s Office, which afforded him the opportunity to try felonies, misdemeanors as well as preliminary hearings and grand jury proceedings. “I have done over 200 appeals and am counsel of record on 23 published, precedent-setting decisions, in criminal and civil cases, many involving significant constitutional issues. I have had cases in the United States Supreme Court, California Supreme Court and every District Court of Appeal in California,” he explains.

After 8 years in criminal law, Joseph was ready for his first major reinvention. In 1980, he took a job with Caltrans as a trial lawyer, where he tried million dollar and six-figure personal injury, property, contract, employment and environmental cases. He also took his first steps towards a future in ADR, becoming a court-ordered arbitrator in 1983. By 1992, Joseph was appointed Deputy Chief Counsel in charge of the Caltrans San Diego office, supervising 17 lawyers and making all settlement and trial decisions for the next 14 years.

“As a trial attorney and Deputy Chief Counsel at Caltrans, I was very fortunate to practice in tort, property, contract, employment, environmental and even constitutional law,” he says. It was during his tenure with Caltrans that Joseph began setting the stage for his next reinvention. Beginning in 1990,

he became an Adjunct Professor of Law at Thomas Jefferson School of Law. For twenty years, he taught eight different courses: Civil Procedure, California Civil Procedure, Trial Practice, Education Law, Environmental Law, American Legal History, Legal Writing and Legal Synthesis. Moreover, it was during this time that he was formally introduced to mediation. Joseph says, “I had done court-ordered arbitrations from 1983-1994 before the mediation program started. It was obvious that mediation was going to supplant arbitration as the ADR method of choice, so I took the mediation course at the National Conflict Resolution Center in 1994, and was on the original panel when the San Diego Superior Court launched the mediation program that year.”

Suffice to say, Joseph was more than a little busy. As such, he says that his reliance on technology was born of necessity.

“I didn’t have a secretary. I basically scheduled for myself.

Between teaching, arbitrating, mediating and trying cases, I became very tech-based,” he says. What he didn’t know then however, was that his use of technology would ultimately serve as a marketing bonus when he became a full time mediator. But before he would embrace mediation full time, he had one more phase of reinvention to get through.

Round 4: Associate Dean & General Counsel By 2006, Joseph was ready for another change. He left Caltrans, and went from adjunct professor to Associate Dean and General Counsel at Thomas Jefferson School of Law. Coincidentally, he found that his experience in mediation was helpful almost immediately. “When I became Associate Dean, the neighbors of the school were on the warpath to close down the school because of students parking in the neighborhood, in violation of the school’s Conditional Use Permit issue by the City of San Diego. For two years, I attempted to serve as peacemaker with the neighbors, the students, and the City while the school’s Dean and Board of Directors figured out a permanent solution. Ultimately, the Board decided to move the school to East Village and I was able to keep the various parties at bay until the move could be made. My mediation experience was quite useful,” he recalls.

Over the next six years as Associate Dean and General Counsel for Thomas Jefferson, Joseph racked up award after award. He was named a Super Lawyer in the field of Education Lawyer for three years until the publication ceased including education lawyers in 2009. The San Diego Daily Transcript named him a Top Attorney for Government (2006) and in 2011, he was named a Top Attorney in the Academic Field.

He received the Bernard E. Witkin Award for Education from the San Diego Law Library Foundation in 2010.

Joseph also served on the Board of Directors of the San Diego County Bar Association from 2009-2012. He joined the San Diego Superior Court ADR Committee in 2009, and

served the San Diego County Bar Association Conference of Delegates, for the California State Bar from 2005-2010.

The Final Round: Full Time Mediator

By the time Joseph decided to step down as the Associate Dean and General Counsel to Thomas Jefferson School of Law in 2012, he had no fewer than 2,000 mediations and arbitrations under his belt. He decided that his areas of focus in mediation should match his experience as a litigator and educator. With an emphasis on Personal Injury, Business/ Commercial/Consumer, Education, Employment, Real Estate, Construction, Environmental and Agricultural Disputes, he opened the doors of Joseph Mediations in what was originally going to be a “downshift.”

However, the transition has been anything but a downshift, thanks in no small part to 40 years of legal experience in the San Diego legal community. However, Joseph’s longstanding love and use of technology has also inadvertently played a role in keeping him nearly as busy as ever.

“When I left the law school, I wasn’t going to market myself,” Joseph explains. However, he did intend to run a green office. “Confirming letters are sent by email as PDFs. All briefs are displayed on my iPad mini using a program called iAnnotate. I have done 14 mediations and 1 arbitration using Skype. I use a number of anatomical apps on my iPad to illustrate medical conditions, and Google Earth to identify the location of any particular location relevant to the case. There is no mediation office in San Diego that uses technology more intensively or efficiently than we do,” he says.

Continuing, he adds, “But then I put my calendar online.

It’s been an accidental marketing device,” he laughs. Indeed, on Joseph’s website, his calendar is easy for all to see and access, which he says has made scheduling for attorneys incredibly easy. “People don’t have to call and try to coordinate multiple parties, and they like that,” he says.

Yet the calendar, coupled with Joseph’s well-rounded background and extensive experience, have put his vision of “downshifting” on hold. One look at his calendar online reveals that Joseph is incredibly busy with mediations, week after week.

But he admits he wouldn’t have it any other way. “I want to stay active. Assisting people in the litigation process and resolving their cases brings a lot of personal satisfaction.” n Contact: Jeffrey A. Joseph Joseph Mediations www.josephmediations.com Jeff@Josephmediations.com 619-307-2484

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COMMUNITY news nJuanita R. Brooks, a principal in Fish & Richardson’s IP Litigation Group, was named a “2013 Intellectual Property MVP” by Law360. Brooks was one of only 10 attorneys selected for the “IP MVP” award, which honors the top players in the legal industry for their exceptional work.

According to Law360, “in one of the year’s most talked about cases,” JUANITA R. BROOKS Brooks “secured (a) ruling that wiped out a $23.5 million infringement judgment against Fresenius USA Inc” and set an important precedent that post-grant review such as reexamination can directly impact the outcome of patent litigation.

Noting her “aggressive advocacy,” Law360 stated that “also this year, Brooks represented Allergan in two separate cases at the Federal Circuit that maintained patent protection for the company’s glaucoma drugs” and successfully “represented Apple, Inc. in a trial where the plaintiff sought $172.3 million in damages.”

CHRIS HOFFMAN

nFisher & Phillips LLP announced that the law firm is included in the 2014 “Best Law Firms” rankings from U.S. News & World Report and Best Lawyers. The firm has been included in all four editions of the prestigious rankings. In addition to the national “First-Tier Ranking,” 18 of the firm’s offices, including San Diego, received “Metropolitan First-tier Rankings.”

The San Diego office was awarded the ranking for management-side

employment law.

“This first-tier ranking from such a prestigious national publication validates the value Fisher and Phillips attorneys deliver to our clients,” said Chris Hoffman, San Diego founding and managing partner. “Doing only one thing - representing employers in labor and employment matters here in San Diego – allows our clients to benefit from a focused, business-like approach to workplace legal issues.”

Firms included in the 2014 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a “FirstTier” ranking signals a quality law practice and a breadth of legal experience and knowledge.

nMarking the largest settlement since the Telephone Consumer Protection Act (TCPA) was enacted in 1991, San Diego attorney Mark Ankcorn has settled a milestone “robo-calling” class action lawsuit against Bank of America for more than $32 million.

Ankcorn, of counsel to San Diego-based CaseyGerry, filed and litigated the case – which stemmed MARK ANKCORN from charges the banking giant harassed consumers who fell behind on mortgage and credit card payments – for more than two years. According to Ankcorn, this is the largest cash payout ever under the TCPA, which was designed to protect consumers from unwanted phone calls. Settlement papers were filed in federal court in San Jose and the proceeds will go to nearly eight million consumers in the class. nIn its 2013 Super Lawyers® Business Edition, Super Lawyers® named the top attorneys and law firms in commercial practices across the nation and London. In the field of litigation, Super Lawyers® named Sandler, Lasry, Laube, Byer & Valdez LLP of San Diego as the top Small Law Firm in the State of California.

“We were thrilled to receive this surprise statewide honor,” says Managing Partner Lynne Lasry. “Although all of our partners were named Super Lawyers® earlier this year, we are very pleased to be named the leading small law firm for litigation, especially as we represent clients throughout California.”

Founded in 2000, Sandler, Lasry, Laube, Byer & Valdez LLP is a partnership comprised of well-established civil trial attorneys specializing in civil litigation, including jury and court trials, arbitrations and appeals. Partners Jim Sandler, Lynne Lasry, Tom Laube, Jeff Byer and Richard Valdez are all litigators, while partner Ed Silverman is an appellate specialist. The firm services a broad client base, representing large public and private entities but also smaller businesses and individuals. The firm is often retained by large law firms seeking local counsel in San Diego or California-based matters.

SANDLER, LASRY, LAUBE, BYER & VALDEZ, LLP

Have a Press Release you would like to submit for our Community News?

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Email it to PR@AttorneyJournal.us

COMMUNITY news nGomez Iagmin Trial Attorney Ben Coughlan has been named a Top Young Attorney by the San Diego Daily Transcript.

Ben receives this award in the 1-2 years of BEN COUGHLAN practice category.

Earlier in 2013, Ben was also named a Top Attorney in the Personal Injury/ Property Damage category by the Daily Transcript. He was also selected in 2013 to attend the Tips/ABOTA National Trial Academy in Reno, Nevada.

Ben joined Gomez Iagmin in 2011 as a law clerk. Prior to joining the firm, he clerked for criminal defense attorneys Robert and Dana Grimes. He is a graduate of the University of San Diego School of Law, where he competed on the National Mock Trial Team. Prior to law school, Ben spent three years in the media relations department of the San Diego Padres. He received his Bachelor’s Degree in Broadcast Journalism from Northwestern University. nLoren Freestone of Higgs Fletcher & Mack, LLP was recently elected to the San Diego County Bar Association Board of Directors. Beginning in 2014, Freestone will help bring awareness LOREN FREESTONE and action to pressing issues affecting the legal profession including lack of court funding, rising litigation costs and diversity.

“As attorneys, we all endeavor to lead happier, more fulfilling lives,” said Freestone.

“The Bar can, and should, become the conduit to foster relationships to assist in creating a more fulfilling experience. I want to help SDCBA become an organization that lawyers can expect will adequately address the issues facing San Diego attorneys.”

Freestone’s leadership background has been focused on fostering relationships within the minority and specialty bar associations. He plans to use those skills to build on initiatives and coalition building within the Bar to address and advance the pressing matters facing the Bar today.

nButterfield Schechter LLP is pleased to announce that the firm name has changed to Butterfield Schechter & Van Clief LLP and has moved to a new office at 10021 Willow Creek Road, Suite 200, San Diego, California 92131.

The firm is also pleased to announce that partner Elizabeth Van Clief has earned a certified legal specialist designation in taxation law from the State Bar of California.

Van Clief is one of only forty certified specialists in taxation law in San Diego. Rob Butterfield and Marc Schechter founded the firm in 1998. Elizabeth Van Clief was promoted to partner in January 2012.

BUTTERFIELD SCHECHTER, LLP

nBoydContreras APC is proud to announce Thomas Georgianna has been promoted from associate to the position of Managing THOMAS GEORGIANNA Associate for the Civil Litigation Division and Chapter 11 Bankruptcy Division of the firm. Mr. Georgianna represents businesses in the practice areas of general business litigation, commercial arbitration, and chapter 11 bankruptcies.

He is admitted to the United States Federal Court for the Central and Southern Districts of California.

Prior to relocating to California in 2006, Mr. Georgianna practiced in New York as in-house counsel for a major insurance provider. While in New York, Mr. Georgianna took in an excess of 120 awards administered by the American Arbitration Association for his expertise in arbitration.

Mr. Georgianna is a regular speaker for the California Association of Business Brokers. He is also a contributor of numerous legal blogs and articles.

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5 Reasons Why Lawyers Can No Longer Ignore Web Video

by Fernando Ziemer Fernando Ziemer is the business director of Law Firm Video Solutions, a boutique video marketing company for law firms. With a background in SEO and film production, Fernando Ziemer helps lawyers boost their online presence with web videos that inform and educate their potential clients. For additional information, call Fernando at (858) 345–7459 or email at fernando@lawfirmvideosolutions.com.

Traditionally, referrals have always been the most important means of new lead generation for lawyers.

However, in the last few years, there has been a significant shift in the way consumers search for legal help. Of course, a substantial share of new business is still generated through referrals. However, consumers are now doing their homework online before selecting the attorney they choose to represent them.

An online presence and reputation management have become of paramount importance for attorneys seeking to attract new client leads online. With the rise of broadband and mobile technologies and the increasing availability of higher quality, yet inexpensive, video production equipment, this significant change in online user behavior has transformed video in a booming marketing platform.

If you’re serious about growing your legal practice but still cringe at the idea of developing video content, the following five reasons will help understand why video can be a valuable addition to your web marketing arsenal.

In an overcrowded space, video is a differentiating factor.

Despite a major cost decrease, a significant majority of lawyers are still reluctant to add videos to their marketing mix. Here’s a hypothetical scenario: a consumer browses on average 5 websites before contacting a personal injury lawyer in her area.

However, only 1 out of the 5 websites have wellproduced videos. Considering that each site contains the usual content elements, such as copy, testimonials, professional qualifications, contact form, perhaps a blog - which website do you think will stand out more? There’s no question that video will add higher perceived value to your website, and it will set you 14

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apart from your competition.

Web pages with a video thumbnail get a higher CTR (click-through-rate).

Video content can be used to make your web page snippets more attractive to search engine users. By using a paid video hosting solution that offers video SEO capabilities such as Wistia (YouTube won’t work), you can have a video thumbnail appear under your web page title on the search engine results page (SERP).

The trick here is that, to online consumers, images have a much stronger appeal than plain text.

Consumers who see a video thumbnail on the SERP will be much more likely to click on your site as opposed to other competing sites without a thumbnail.

Consumers prefer video because it’s easier to consume.

Ok, you’re a lawyer, and you probably think of reading as an enjoyable activity (I hope so). However, seeking legal help can be a daunting experience for most people. Have you ever considered the possibility that navigating long blocks of website copy could be unappealing for some consumers, and in fact, could be driving many of them away? This rings true, especially for a significant portion of young adults affected by information overload, stress, and lack of concentration caused by psychiatric conditions such as ADHD (Attention Deficit Hyperactivity Disorder). Video is a much more user-friendly format to communicate with your prospects because it is far more engaging and it takes less effort to consume.

Video is a trust-building medium.

Trust is a major decision-making factor for hiring any

service provider – and lawyers are no exception. Video enables you to speak to your client audience with greater transparency.

Only the combination of moving pictures and sounds can empower you to convey your authority in a personal way. When your prospects can see and hear you in a video, they’ll be better armed to make the decision as to whether you are the right attorney to represent them or not. It’s important to refrain from the cookie-cutter lawyer video approach of “I have this many years of experience…” or “Aggressive representation right from the start.” Your prospects will trust you based on the content you cover in your videos; therefore adding value and educating them on their legal matters will be vital for a successful video strategy.

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Attorney Journal | Volume 125, 2014 15 5:04 PM 7/12/13

Desire,

ATTORNEY

OF THE MONTH

2014

Creativity

& Big Firm Resources

John Carpenter is driven by a desire to work hard & creatively for injured people, and is supported by his big firm resources.

Jennifer Hadley

“o

ur firm was founded on the principle that justice for injured people is more important than insurance company profits. Justice with a discount is no justice at all,” says John Carpenter, partner with Carpenter, Zuckerman & Rowley, one of California’s largest law firms exclusively dedicated to the representation of injured people.

This guiding principle has led to enormous success for Carpenter and enormous compensation for his clients. In the nearly 25 years since he has been in practice, Carpenter has won more than $100 million for individuals with life-altering injuries. The reasons Carpenter has been able to follow this principle can be broken down simply. He has an enormous desire to work hard for his clients; he loves the creativity required to achieve the results for his clients, and he is backed up by big firm resources, including Carpenter Zuckerman & Rowley’s large appellate practice.

The Desire “I was an attorney by the time I was 24,” Carpenter says. “My stepdad was an attorney, and he was a big influence,” he recalls. However, Carpenter’s early years as an attorney just weren’t as personally gratifying as he’d hoped they would be. “I was dissatisfied with the 16

Attorney Journal | Volume 125, 2014

practice of law when I was representing companies.

Companies don’t need you in the same way that injured people need you. Injured people need my help, as many of them can’t work for the rest of their lives,” he says. Continuing, he adds, “A company doesn’t bring you into the ‘corporate family’ in the same way that injured people adopt you into their real families. It’s just not the same.”

However, that personal satisfaction came swiftly as soon as Carpenter decided to shift gears and focus his attention on building a practice that would only represent injured people. “You know that feeling you get when you do something nice for a stranger? When you walk up to someone on the street who is clearly struggling and you give them $10? Those random acts of kindness? That’s how my job makes me feel every day. Working with severely injured people allows me to bring about positive changes for people who need help, and that makes me feel good,” he says.

By way of example, Carpenter recalls a case wherein his client was disabled in an auto accident, rendering him paralyzed from the neck down. “He was kept alive by a ventilator,” Carpenter says.

Recalling that he had to convince the judge that the trial should be held closer to his client’s home due to

Bauman Photography

Attorney Journal | Volume 125, 2014

17

Bauman Photography

the fact the batteries powering his ventilator would not hold the charge long enough for his client to travel, Carpenter becomes noticeably passionate. “His batteries did die in the court in the middle of my argument. Fortunately, we had a nurse there who was actually manually keeping him alive with a ventilation bag while I fought to have his trial moved,” Carpenter says. “This is the reason my wife gets mad at me for coming home late. This is the reason I pull several all-nighters a month. My clients are the reason I can work really hard.

They have suffered terrible, devastating injuries, and they are so brave. When I can help to change their lives for the better, I am inspired to do whatever it takes for them.”

Creativity Wins Cases Inspiration breeds creativity, and for Carpenter, this holds particularly true. “Practicing law is an incredibly creative endeavor,” he says. As an attorney specializing in traumatic brain injuries and other life-altering injuries, Carpenter’s practice requires enormous amounts of creativity, as his clients are often unable to recall important details because of their injuries. “We have to become investigators. We have to look at different angles of attack. We have to tell the story in an interesting and creative way so that juries want to listen,” he says. Moreover, he says, “we have some bad laws in California. We have to be creative, and we have to be cutting edge in order to make wrongs right for our clients.”

To illustrate the necessity of creativity in his practice, Carpenter recalls another case of a client who was paralyzed

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Attorney Journal | Volume 125, 2014

as the result of an auto accident. However, due to California law, those injured in auto accidents are not eligible for noneconomic damages if they do not carry auto insurance. “My client was driving his car in his lane, when someone made a lane change into him,” Carpenter says.

Yet, because his client was not able to obtain auto insurance, he was denied any claim for his pain and suffering.

Carpenter was more than willing to take the case and to fight—ultimately to victory—for his client. “We have an entire population of people who care for our children and our homes. We trust them to care for our families. But if they get hurt, they are unable to receive any help. That’s not right, and we have to make it right for them,” he adds. Fortunately, he and his colleagues at Carpenter Zuckerman & Rowley are able to do this by “putting on a true, honest case. We believe in sticking to what is undeniably true in a case,” he says.

In another example of the need for creativity, Carpenter recalls a case wherein he was responsible for proving his client had suffered a brain injury, even as “the defense was calling him a liar,” Carpenter says. “My client was a personal trainer to celebrities, and had been seriously hurt in a car crash. It was a controversial case at the time because many doctors used to incorrectly believe that you couldn’t have a traumatic brain injury without the loss of consciousness,” he adds. “We were on the cutting edge of traumatic brain injury research, pointing to the experiences of veterans in Iraq and Afghanistan,” he says.

Carpenter was unwilling to cave to the defense, no matter

Bauman Photography

how long he had to fight. “I was single when I started work on this case. By the time we finished, I was married and had a child,” Carpenter says of the five year long case. “There were roughly 300 experts involved. We had taken hundreds of depositions. We knew we were fighting on the right side, and we fought hard,” he says of the case, which ultimately resulted in a nearly $14 million dollar settlement in favor of Carpenter’s client. “It was a really satisfying case,” Carpenter recalls. “The insurance company denied my client was even injured,” he says, adding that “we enjoy fighting bullies.”

Indeed, when it comes to fighting bullies and taking on big cases, Carpenter Zuckerman & Rowley is the furthest thing from a shrinking violet. Instead, the firm takes on huge corporations, high profile individuals, the State of California, and individual counties when necessary. “We’ve sued the biggest bullies out there: Toyota, Ford, railroad companies, other Fortune 100 corporations, City Hall, and celebrities,” Carpenter says, in addition to the thousands of cases against insurance companies the firm has challenged in court.

For example, Carpenter successfully sued Tulare County when his client, an experienced motorcycle rider, lost his leg in an accident. “He was out riding on a country road, which came to a T-intersection. His motorcycle didn’t stop, and he slid into the intersection. He was an experienced rider. He knew how to drive,” Carpenter says. “I knew there had to be something else that caused the accident.”

“I went to the scene, and took a close look at the police photos. The road was not maintained safely. We sued the

county in a roadway design case,” Carpenter says. “The jury came back so quickly that I wasn’t even done putting my exhibits in the car when I heard that the jury had reached its verdict. We won, and we changed his life so he could put it back together,” Carpenter says proudly.

Big Firm Backing The reason Carpenter and his colleagues take on such big cases is due in large part to the fact that Carpenter Zuckerman & Rowley has a thriving appellate practice. “We back up our results,” Carpenter says. “You can’t bring a case against someone without being able to back it up in the court of appeals,” he says. “We are relentless, and we have the resources, including our appellate practice to back up our cases,” he says.

It is precisely because the firm consistently earns such big results for their clients that the defendants routinely push back. “Even after you win a jury verdict, insurance companies will hire big defense attorneys to whittle down your judgment. It’s cheaper for them to file an appeal than pay the judgment. Carpenter Zuckerman & Rowley believes it is a lawyer’s highest moral calling to stand up for injured people against the big insurance companies that routinely refuse to take responsibility and seek only to maximize their profits,” Carpenter says. “Our appellate practice stands up to the challenge.”

As any attorney knows, in order to go toe-to-toe with massive clients such as insurance companies, the firm must

Attorney Journal | Volume 125, 2014

19

EXPERIENCE

have the financial resources to see contentious cases through, no matter the cost. Carpenter Zuckerman & Rowley has financial resources in spades. However, money in the absence of manpower won’t suffice when taking on corporations and companies the size that Carpenter Zuckerman & Rowley routinely fight. To that end, the firm has more than a dozen lawyers and a robust mentoring program for younger lawyers inside and outside of the firm to train them in the Carpenter, Zuckerman & Rowley method.

“Being a successful lawyer doesn’t come to you overnight.

Factually, medically and procedurally, young lawyers need experience. When insurance companies think they can settle on the cheap, you have to know how to fight back,” Carpenter says. “When a lawyer takes a low settlement from an insurance company, it hurts all injured people because the insurer will try to settle on the cheap again next time.

When every lawyer knows how to fight, all injured people benefit.” As such, “many younger lawyers who are just getting started refer their cases to us and we use it as an opportunity to train them. We like to show them how we invented the wheel, so they don’t have to reinvent it,” he says of the mentoring program. Perhaps even more importantly, “they don’t need to learn by making mistakes [at the expense of clients],” he says. The resulting team of experienced and emerging attorneys ensures that Carpenter Zuckerman & Rowley has “the resources to match the firepower of big insurance companies which do everything in their power to try to get a discount on the payment of legitimate claims,” Carpenter says.

The growing team at Carpenter Zuckerman & Rowley led the firm to select San Diego as home to their second location, in 2012. “San Diego is pretty much paradise,” Carpenter says. “The more time I spend here, the better.

Cases will come, and we will grow organically as we need to. We have a fantastic team, and we are ready to move full steam ahead. I’m really excited about practicing here.” n

» ADMITTED: • 1991, California

» HONORS AND AWARDS: • Carpenter, Zuckerman & Rowley, LLP. has appeared at the #1 spot in the monthly “Winningest Firms” list published by VerdictSearch., Winningest California Law Firm, Verdict Search • Verdict of the Week, Verdict Search • Top 100 Trial Lawyer, The National Trial Lawyers

Contact: Carpenter, Zuckerman & Rowley, LLP www.czrlaw.com EMAIL: info@czrlaw.com 619-814-9000 750 B Street, Suite #3300 San Diego, CA 92101

• Super Lawyers: 2013

» BAR/PROFESSIONAL ACTIVITY: • CAOC • CASD • CAALA

» VERDICTS AND SETTLEMENTS: • On the eve of trial, John settled a case for $13.86 million settlement for a former professional fighter who suffered a traumatic brain injury in an automobile collision. ,2011 • John served as counsel in a bar fight case in which a college football player was beaten by a security guard. The jury awarded CZ&R’s client more than $6.8 million despite the client having incurred less than $23,000 in past medical bills., 2010

20

Attorney Journal | Volume 125, 2014

A Collection Policy To Avoid Write-Downs

by Ed Poll Ed Poll is the principal of LawBiz Management. He coaches lawyers to greater profits with less stress; he is the creator of the new Life After Law coaching program that enables lawyers to plan for a profitable exit. He can be reached at (800) 837-5880 and edpoll@lawbiz.com.

A firm’s realization rate is fundamental to “The Business of Law.” Realization is simply the percentage of what is billed that is actually collected, and in today’s economy, low realization remains the biggest financial problem for most lawyers. A 95 percent realization rate means that, even as the firm pays expenses at 100 cents on the dollar, it is earning five cents less. This is lost cash flow, and cannot continue.

For any firm, the old advertising cliché, “we lose a little money on each sale but make it up in the volume,” is simply suicidal.

Defining a collection policy

Low realization results from not telling clients at the beginning of an engagement what is expected of them, and from failure to follow through with the consequences of their failure to pay, consequences that you discussed with them in your very first meeting. When this happens, it is because firms have failed to establish, explain and enforce an effective, written collection policy.

Such a collection policy should cover everything from the beginning of the relationship with the client to the payment of the final bill to alternatives for handling a fee dispute.

Because the collection policy is the foundation for all future fee and collection considerations, be as detailed as possible in the terms spelled out in a written fee agreement. Typically, a written fee agreement is required for contingency work but not for hourly or transactional work, though states increasingly require all agreements to be in writing. Lawyers should embrace having a written fee agreement and a budget by which the client affirms what to expect in terms of events, money and time. Both of these items also provide marketing benefits by defining and managing client expectations and by removing uncertainty about fees.

Handling a write-down request Even with a collections policy

and a budget in place, a dilemma in these tough economic times may occur. If a client receives the lawyer’s bill, contends that it is too high, and refuses to pay it unless the invoice is written down, there are at least two ways to respond, depending on how the collection policy for the engagement has been structured.

If the client signed an engagement agreement before the matter began, the lawyer is under no obligation to write down the invoice simply because the client thinks it is too high. Because the engagement agreement is the foundation for all invoices, be as detailed as possible in how the terms are spelled out.

Two criteria in particular can prevent a write-down request. The first, as noted previously, is to include a written fee agreement. Second is to define the collection cycle that sets specific dates of the month by which clients will be billed. For example, state in the agreement that invoices will be sent on or about the twenty-fifth of the month with payment due by the twentieth of the following month. With the terms established, bill in a regular and timely way, using statements that contain a full narrative of the work done and the goal accomplished by that work. However, a lawyer could consider a fee write-down

to adjust bills that are in dispute in order to match value as seen by the client. The only professional requirement is that a fee should be reasonable and in proportion to the value of the services performed.

Does the lawyer have the skill and experience to justify the fee? Does the client understand the amount and nature of the fee and the work done to justify it? Answering “no” to either of these questions could mean that an invoice write-down is warranted.

Note that what is being discussed here is not the result of a matter but the value a client attaches to it. For lawyers to guarantee a result in a legal matter comes under Rule of Professional Conduct 7.1’s prohibition of false or misleading communication, which the ABA’s commentary says includes “lead[ing] a reasonable person to form an unjustified expectation” about what an attorney can accomplish.

However, lawyers and law firms can be held accountable to a level of effort and standard of performance for service within the lawyer’s own control, and a firm may feel that a write-down is the best way to resolve a dispute.

Pursuing the last resort If a voluntary write-down is not warranted,

a 2012 opinion from the New Jersey State Bar’s Advisory Committee on Professional Ethics affirms that it is ethically permissible to retain a collection agency to secure payment from former clients who have not paid their bills. The caveat the Committee made, namely that only such information as “is reasonably necessary for the agency ... to collect the debt” should be revealed, is simply common sense; confidentiality of files is a fundamental lawyer responsibility.

However, the Committee also asserted, “Lawyers may not initiate a collection action against current clients.” This flies in the face of everything embodied by “The Business of Law” and is not required by the Rules of Professional Conduct.

Rule 1.16 (“Declining or Terminating Representation”) allows lawyers to withdraw from a representation if “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

Withdrawal cannot be made without adequate notice and without careful records of the client’s billing and payment performance. But if these two caveats are observed, using a collection agency or initiating fee arbitration on current clients who are not paying is perfectly justified, assuming a collection policy is in place. Otherwise, the representation becomes a pro bono assignment, and pro bono service not stipulated in the engagement agreement is unnecessary.

Some say that law is different from other businesses, and with respect to ethics issues, that may be true. But there is nothing unethical about wanting to get paid and taking steps to get paid, while fulfilling all ethical obligations. Lawyers are subject to the Rules of Professional Conduct, but law firms are and will continue to be subject to the rules of economics. n Attorney Journal | Volume 125, 2014

21

Less Is More

JOURNAL

FEATURED

When it comes to E-Discovery and Document Management, Invendica’s customizable software is by design simple, yet powerful.

PROFESTSHIOENMAOLNPTROFILE OF

2014

H

Karen Gorden

“We have a strong belief that today’s software is being overcomplicated,” says Eddy Borysewicz, founder of Invendica, a San Diego-based online document management company, specializing in creating custom software for law firms since 2006. “In most cases, people only use about 10-15% of what is offered in any software package. We have designed our software with as few bells and whistles as possible, providing only the essential tools needed for completing tasks. This allows our clients to focus on work, not trying to learn another complicated software package. Invendica has brought simplicity back to the market,” he adds.

Simple…

For Borysewicz, the belief that less is more when it comes to document and data management has remained consistent since his early years as a software developer. “Our head developer, Tom Nguyen, and I have been writing software for more than 15 years. It was standard practice for companies to encourage us to come up with the coolest functions we could to add to the packages. Tom and I never understood it. Sure, it’s cool, but who is going to use it? Databases became so cumbersome to use, that you had to take a week long training course just to be able to use them,” he says. However, it was a request he received while freelancing that helped him recognize that attorneys in particular needed simple but powerful ways to search volumes of data and documents in an efficient manner.

“I was contracted by Julie Meloche, a senior paralegal at Latham & Watkins LLP, before E-Discovery was even a word.

They had a huge, technical case that contained multiple productions of computer hard drives. At the time, there was nothing on the market to review this kind of information, nor any vendor that had experience with this kind of data,” Borysewicz says. “I worked diligently with Julie to create one of the first E-Discovery review tools, which was specifically designed for this case. She was able to bring it back to her team to electronically review hundreds of thousands of documents in a 3 week period.”

Shortly thereafter, Borysewicz launched Invendica. “Our software was designed in conjunction with paralegals and attorneys to be powerful yet simple. This allows us to brainstorm with people that actually use our services to come up with the

22

Attorney Journal | Volume 125, 2014

best possible solutions. We know that the easier our software is to operate, the more productive our clients can be with it.”

To that end, Invendica not only created simple software, but they are proud to create user-specific software. “We strip down the databases and set them up however the law firm wants them set up,” Borysewicz explains. “We help them to fine-tune the way the software works, and encourage them to customize it.

We are eager to hear from clients who say ‘It would be really neat if I had a button or function that did X, Y, Z.’ We will get the team together and implement that functionality for them. No other hosting vendor, even the large ones, are able or willing to customize the software like we are,” he adds.

This customization clearly appeals to attorneys. By way of example, Russell Aoki, a Seattle, WA-based attorney says,” I enjoy working with Invendica for their ‘can-do’ attitude.

Invendica has shown a willingness to provide what the endusers want and not what a database company thinks they need.

The Invendica team has worked countless hours on complicated discovery productions to create easy-to-use search capabilities unique to federal criminal prosecutions.”

In addition to creating customized software for law firms of all sizes, including firms which use Macs as opposed to PCs, Invendica is proud of the fact that “our product is extremely easy to use. We can teach anyone how to use it within 15-20 minutes,” Borysewicz says. However, he is quick to add, “We don’t give our clients a software package and hang them out to dry. We love working directly with our clients and offer training sessions and customized hand-holding that goes beyond our software. We never want a client to use our software on one case, and then put it on a shelf because it was a nightmare. We are trying to help attorneys revolutionize the way they manage their data.”

Invendica is able to provide this level of customer service largely because the company insists on doing everything on their own. “We own our software outright. Nothing is done offshore. Everything is done in-house. If there is a bug, clients don’t have to call India. We don’t rely on anyone else. If something needs to be done, we get it done. This results in the most user-friendly software experience, backed by unparalleled customer service,” Borysewicz says.

Bauman Photography

…But Powerful

Of course simplicity alone wouldn’t be enough to earn Invendica the kind of government contracts it has secured. The software has to be powerful. According to Borysewicz, Invendica’s custom software is amongst the most powerful available. In fact, “recently we were approached by the US District Court to modify our software to support wiretaps and surveillance videos. This was something that no current product could support alongside document management. We were able to work to develop this technology and deploy it under a very short deadline,” he says. Video and audio files can be searched by time of call, duration, caller, location of video camera, line sheets, or by other fields of information as requested. “We are one of the few companies that can support documents, audio and video files,” he adds.

The fact that all data is hosted online makes the jobs of attorneys-no matter how many are involved in a single casemuch easier, according to Borysewicz. “Attorneys and cocounsel can access what they need from virtually anywhere.

You don’t have to drag a external drives or boxes of discovery home with you, and everything is always where it needs to be,” he explains.

Borysewicz is very clear that the last thing attorneys need

when fighting a big case, is a program that was supposed to make their lives easier, but actually makes it more difficult. “We know there are different levels of technological skills. Young attorneys have been using computers their entire lives, most of them are computer wizards in their own right. Senior attorneys generally want a screen that is clean and clear, without a bunch of clutter, and functions that they won’t use. We are happy to customize the software to bridge this gap,” he says.

Indeed for Borysewicz, the beauty of what he and his team offers law firms of all sizes is the fact that it is designed to be easy to use, “without all of the clutter of gimmicks, and buttons that you will never use. Our clients are small to large firms requiring online databases for any size document population. Our niche is providing tools that are easy to use. We can help anyone with any level of technological knowledge to truly understand E-Discovery, databases, and how to correctly manage complex cases and overwhelming amounts of data.” n Contact: Eddy Borysewicz Invendica, Inc. www.Invendica.com eddy@invendica.com (855) 517-9976

Attorney Journal | Volume 125, 2014

23

Although California’s Elder Abuse Act has been in existence since 1991, this body of law is still misunderstood and often misused by many.

A General Understanding of California’s Elder Abuse Act

by William M. Berman, Esq. William M. Berman, Esq., is an AV-rated personal injury attorney and a renowned nursing home abuse/neglect attorney whose firm, Berman & Riedel, LLP, handles some of the most serious personal injury and wrongful death cases against nursing homes (skilled nursing facilities (SNFs)), residential care facilities for the elderly (RCFEs) and board and care facilities for the elderly. Mr. Berman has received numerous awards and recognition in this field of law for his excellence in practice and outstanding results in pursuing matters for victims and family members of those who have suffered serious injury or wrongful death through the harmful acts of elder care providers.

Indeed, many practitioners fail to recognize the intricacies that surround a claim for elder abuse/neglect, the biggest misconceptions usually being the statutes that relate to such a claim (or related claims, such as H&S Code §1430(b), which differs), the pleading requirements to establish such a claim, the standard of proof required to prove such a claim, and also, who can bring such a claim. The latter of these issues takes on an even greater significance because many practitioners are simply unaware that this distinct body of law provides one of the few basis wherein a decedent can bring a claim post-mortem to recover for their pre-death pain and suffering.

By way of background, California’s Elder Abuse and Dependent Adult Civil Protection Act (often referred to simply as the “EADACPA” or “Elder Abuse Act”) is specifically recognized as an independent cause of action; the body of law is found at Welfare & Institutions Code §15600 et seq. In enacting the Elder Abuse Act, the California Legislature expressly recognized that elders are particularly subjected to acts of abuse, neglect, or abandonment for which the State of California has a distinct responsibility to protect its elderly population.

As part of its preamble, the Elder Abuse Act expressly states that the Legislature “desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment.” The statute further states that most elders and dependent adults who are at the greatest risk of abuse or neglect by their caretakers suffer “physical impairments and other poor health that place them in a dependent and vulnerable position.” The Legislative history notes behind the Act demonstrate that it was the express intent of the Legislature in enacting this distinct body of law to provide incentives through enhanced civil remedies to redress the reckless acts and/ or omissions within the Act’s ambit that are perpetrated against our elders, noting: “The Legislature further finds and declares that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. ... It is the further intent of the Legislature in adding Article 8.5 (commencing with §15657) to this chapter to enable interested persons to engage attorneys to take up the cause of abused elderly

persons and dependent adults.” It is the enhanced protections and remedies that were provided to prior “weaker” laws that make taking on a rightful case of elder abuse/neglect viable for practitioners.

To encourage private enforcement of these laws through the engagement of private civil attorneys, the Elder Abuse Act affords heightened remedies and removes bars to recovery that have discouraged counsel from taking on elder abuse cases in the past. These heightened remedies include the recovery of economic, non-economic and punitive damages . Moreover, under the Elder Abuse Act, a plaintiff who proves that a defendant is liable for neglect or abuse can recover for their pre-death pain, suffering, and/or disfigurement. (Welf. & Inst. Code § 15657(b)). If the victim dies before the lawsuit has commenced, upon petition, the decedent’s personal representative has the right to maintain an elder abuse action on the decedent’s behalf. Welf. & Inst. Code, § 15657.3, subd. (d)(1). The Elder Abuse Act allows a decedent, through a legal representative, to pursue post-mortem pain and suffering damages up to $250,000, whereas the death of a plaintiff in California typically eliminates any recovery of non-economic damages to a decedent. And, as an additional measure of recovery, the Act mandates that attorney’s fees and costs be awarded where a defendant is found liable for elder neglect or abuse with the requisite degree of misconduct.

Whether alive or deceased, a plaintiff alleging a violation of the Elder Abuse Act must demonstrate by clear and convincing evidence that the defendant: (1) subjected an elder to statutorily defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression or fraud in the commission of the abuse. Cal. Welf. & Inst.Code § 15610.27.

As defined under the Act, the term “Neglect” includes, but is not limited to: (1) failure to assist with personal hygiene, or in the provision of food, clothing, or shelter; (2) failure to provide medical care for physical and mental health needs; (3) failure to protect from health and safety hazards; and (4) failure to prevent malnutrition or dehydration. Welfare & Institutions Code § 15610.57(b). The term “Recklessness” refers to the “subjective state of culpability greater than simple negligence” described as the “deliberate disregard of the high degree of probability that an injury will occur.” Cal. Welf. & Inst. Code § 15610.07. And while these terms may ring in “tones” of negligence, proving a claim for elder abuse or neglect is vastly different.

A common misconception is that acts of elder abuse/neglect and medical malpractice are one in the same. They are not. Not only are both separate and distinct causes of action with different statutes of limitations and different burdens of proof, but acts of medical malpractice speak to the provision of improper care whereas acts of elder abuse speak to physical harm, and acts of elder neglect speak to the “withholding” of care. Unlike claims of medical malpractice, the Elder Abuse Act encompasses a medical provider’s recklessness, e.g., the withholding of medical services, while medical malpractice focuses on negligence, e.g.,

the substandard performance of medical services. The standard of care for a medical malpractice case is “the knowledge skill and care ordinarily possessed and employed by members of the profession in good standing.” However, in a case brought under the Elder Abuse Act, the plaintiff must show “reckless, oppressive, fraudulent, or malicious conduct” in failing to provide medical care, assistance with activities of daily living, or other care needs to ensure the safety and well-being of an elder or dependent adult.

Pleading, supporting, and proving acts of elder abuse/ neglect are no insignificant tasks. The Elder Abuse Act, while a powerful body of law, has many procedural requirements that are vastly different from those of pleading and proving a claim of medical malpractice. Indeed, there are many pleading and proof requirements that are not germaine to a claim of medical malpractice. Although the Elder Abuse Act offers important legal protections to the elderly while making the pursuit of these claims more attractive to counsel based upon the incentives of an award of attorneys’ fees and costs, a practitioner must understand the nuances of the laws that guide a claim for elder abuse/neglect or they will undoubtedly face significant challenges in handling such a case, including the prospects of having a rightful claim time-barred or dismissed. n

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Fierce Passion Leads to Success Karen Gorden “I believe that if you work hard enough that you will succeed.

I hear people—all the time—saying that they hate their jobs and that ‘work is not supposed to be fun.’ I don’t ever see it like that. We live in a world where we are in control of our own destiny. No one can get in the way of that, and nothing ever should. I believe if someone wants something bad enough, then they should go for it, and not let any obstacles stand in their way,” says Alex Ozols, criminal defense attorney. “I love what I do,” he adds with a smile.

For Ozols, those convictions have certainly come to pass.

“I have wanted to be an attorney my entire life. I am from Vancouver, British Columbia and since I was a young kid, I had always told people I was going to be a lawyer in California. I always knew, and I had a goal from a very young age. I just had to take the steps to get there,” he explains.

For Ozols, taking the steps means giving his heart and soul to whatever is placed before him. For example, he took multiple unpaid internships with various law firms while in college. “I did everything that I was asked to do, and I always tried to exceed expectations by doing more than was asked of me,” he says. The internships played a pivotal role in helping Ozols narrow down the field of law in which he would ultimately specialize by showing him how badly people need competent defense attorneys.

“I remember interning at the public defender’s office. A girl sat in front of us talking about her case. She was facing prostitution charges; she was a repeat offender and she was only 19 years old. I remember thinking to myself, ‘Where did 26

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this girl go wrong? Does she not have family? What happened in her life that she is now willing to sell herself, and subject herself to danger?’ I felt so bad for her, and it changed the way I thought about people,” he says. “I wanted to help her.”

A second landmark in Ozols’ early legal work further confirmed that Ozols was destined for a career in criminal defense. “I worked for an Innocence Project, where I met people who had been wrongfully convicted. Specifically, I met one man who had sat in prison for 19 years before he was exonerated. I talked with his attorney, who had been working on his case for probably at least 15 years. I asked him how he could have worked on the case that long. It seemed to me like he had dedicated his life to this man. All that had mattered to that attorney was that he believed in his client. It was a powerful moment for me, and I hope that at some point in my career I can help someone like that,” Ozols says.

With a commitment to succeeding no matter how hard he must work, and a fierce passion for defending those who need his help, it is no surprise that Ozol’s star continues to rise as a criminal defense and trial attorney in the San Diego legal community. He has closed more than 130 cases in the last year, and taken more than a dozen to trial. “I will go to trial on anything. All I need are the facts, and I am there,” he says. “If anyone feels like they have been wronged by the system, or they need help, or they need equal representation, I am there for them, and I will do whatever it takes to help them. I never ever want to see an innocent person go to jail.”

As the result of Ozol’s seemingly unending drive, he’s been involved in extraordinarily challenging cases, and won them. “I

Bauman Photography

have worked on cases where people are facing 10 life sentences, Federal Cases with large amounts of local publicity, multiple codefendant felony cases, and an immense number of DUI cases.

I have appeared in courthouses in LA, El Centro, Murrieta, Temecula, Santa Barbara, Newport, Westminster, and every single courthouse in San Diego,” he adds.

He attributes his success so early in his career in part to his education. “I have a degree in Psychology from the University of British Columbia, and I am so proud of that. UBC often ranks in the top 30 in the world. People underestimate how much psychology plays in our profession. Every interaction in criminal defense involves considering the psychological effect of the situation. Trial is like a psychological chess game; you always need to stay one step ahead of your opponent. There are twelve jurors and you have to convince them you are right.

You need to think about the way you speak, look, and act.

Every mannerism, every movement you make is important,” Ozols says.

However, he points out that his background would only have carried him so far. The other reasons for his success include treating his clients with respect and having a sense of humor.

“I try to connect with my clients in a personal way. They are human beings and they deserve my respect. I do not talk down to them,” he says. Equally as important for Ozols is maintaining levity in the notoriously adversarial field of criminal law. “I do my best to use humor to lighten the mood, and I always have fun in what I do. If I didn’t, I would hate my job. It has paid off as it has been a huge relationship builder, a great ice breaker

and a great way for people to really take the barrier down, relax and open up,” he adds.

Yet, he is also quick to give credit to others for helping him to achieve such marked success so early in his career. “Some people are afraid to ask for help. I don’t know what the reason is, but that’s not the way to do it. I always ask other attorneys for help. I never think that I know it all, and I reach out to people who are experts in their areas. I have learned more from my colleagues here in San Diego than any law school could have taught me in a lifetime,” Ozols says.

As far as the future is concerned, Ozols knows he’s just barely scratched the surface, but envisions a career wherein he can ultimately “work on some of the biggest cases in Southern California.” He says, “For me, it has never been about money, prestige or any of that. I honestly just want to help people and I want to love what I do. I don’t ever want to be the guy who worked 15 hour days, but hated his life. In five years, I hope to be able to choose my clients, and go in there and fight as hard as I can for the ones that I choose.” n Contact: Alex Ozols Ozols Law Firm 8880 Rio San Diego Dr. Suite 800 San Diego, CA, 92108 ozolslawfirm@gmail.com www.thesandiegocriminallawyer.com 619-288 -8357 Attorney Journal | Volume 125, 2014

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Endorsed by the San Diego County Bar Association,

LawPay Introduces New Services for the New Year.

taught how to do this in law school. Traditional merchant accounts did not afford lawyers any assistance, as they wanted to be able to take fees out of the trust account,” Porter says.

“There was no solution for attorneys to correctly handle their accounts and avoid the commingling of funds, yet it is required by the American Bar Association that the IOLTA accounts remain free from third parties’ fees and restricted from third party access,” she continues.

Solution To Ethical Dilemmas Jennifer Hadley t is critical for attorneys to handle credit card transactions between their trust and operating accounts correctly,” says Amy Porter, CEO of Austin, TX-based LawPay. “Why would any attorney gamble with their trust account by using a service not designed to properly handle payments and the ethical concerns surrounding client funds?”

For Porter, the answer to this question became obvious nearly a decade ago, when she was first made aware of the fact that there was no system in place for attorneys that would allow them to separate earned fees versus unearned fees. “Attorneys are not

“I 28

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The quandary attorneys then found themselves in was not only a matter of ethics, but a potential legal pitfall as well.

“Attorneys can be fined, and even disbarred for commingling funds,” Porter says. “Commingling funds is one of the biggest ethics violations in the legal industry,” she adds.

That was until 2004, when Porter launched LawPay. “LawPay was the first of its kind to recognize the unique needs of the legal profession when accepting payments,” Porter says. The recognition came as the result of Porter’s time spent on the Electronic Transactions Association’s President’s Council and Board of Directors. While serving

Korey Howell

in that role, Porter found bar association after bar association requesting a solution for the needs of their attorneys. “They wanted to know if we had a best practices solution for their members,” Porter recalls.

“The LawPay program was developed with the input of bar association partners and their ethics committees. At their request, we examined the requirements for handling client funds and developed a solution,” she says. That solution involved Porter going to the card processing banks and working tirelessly to get them to waive their right to have access to the trust accounts. “This is risky for a bank. The majority of card fraud stems from merchant accounts. Banks were not willing to take the risk and guarantee that the IOLTA accounts would remain off-limits,” Porter says. “It wasn’t until we had the leverage of 20,000 merchants that the banks agreed to our terms.”

With agreements in place, Porter put developers to work on the back end of the LawPay platform, and built a team that now includes the largest number of Certified Payments Professionals, as certified by the Electronic Transaction Association, employed in Texas. Moreover, because LawPay was designed to meet the exclusive needs of attorneys and law firms, the nature of their narrow client base allowed them to provide

all kinds of services to it’s attorney clients that other merchant accounts simply don’t provide.

“We give our clients lots of flexibility. They are not bound by having a general merchant account,” Porter says. To start with, LawPay doesn’t hold funds for a determined period of time before allowing the attorney access to them. Secondly, because LawPay works exclusively with attorneys and law firms of all sizes, the company is relatively small, enabling LawPay to “react more quickly to changes in the bankcard industry so as to minimize the impact to our attorney merchants,” Porter adds.

“We are also able to monitor transactions and risk on a daily basis. Lawyers routinely have $10,000 deposits and similar large sums. This is a typical charge. But if we suddenly see 100 transactions each for $5.00, we know to flag the account. The needs of attorneys are different from the merchant account needs of a restaurant,” Porter says. Similarly, because LawPay is a boutique merchant processing company, attorney clients will find that whenever they call LawPay, their call will be answered by a live processing professional. “We don’t have phone trees, and our team is based out of our in-house corporate office,” Porter says.

From left to right: John Porter, Tracey Gavin, Amy Porter, Erin Brooks. Janelle Benefield, Michael Mitchell.

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To say that the legal community has taken notice of LawPay’s perks is an understatement. Because LawPay meets the requirements for the American Bar Association and most state trust account guidelines, as well as the Attorney’s Professional Code of Conduct, to date, LawPay has earned 87 exclusive endorsements and recommendations from legal industry groups including 39 state bar associations.

New Services For a New Year

Yet Porter still seeks out new opportunities to provide even more convenience and assurance to attorneys accepting credit cards. “There is so much more than can be offered to merchants in addition to just swiping a credit card,” she says. As such, beginning this year, LawPay’ s practice management tools have been moved to a cloud-based platform, allowing attorneys even greater professionalism.

Porter says, “The new platform includes a secure web payment page for each client. They can then simply send an email to their clients and request payment online. This allows them to bill and accept payment in a professional manner, while removing the need for the attorney to ever physically handle their clients’ credit cards.” This new feature has appealed to attorneys because it reduced their liability for storing or protecting sensitive card information. “If the attorney never even sees the credit card number, they are not liable in the event a client falls victim to credit card fraud or identity theft,” Porter adds. Moreover, she

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adds that, “emailing a secure payment link looks a little more professional than pulling out your phone, and swiping a card through a credit card reader.”

The new online payment program that LawPay is rolling out for 2014 includes a custom transaction management system which will allow attorneys to tag and track important client data associated with their charges. For example, attorneys can group invoices by practice area, by name of the attorney, by case or by clients. “This will give attorneys a clear overview of payments received, and help to see what percentage of business is earned through credit card payments,” Porter explains. The system also boasts a useful bank reconciliation system, all of which is hosted for the attorneys by LawPay. For Porter, it’s unclear why any attorney would gamble with their trust accounts, or put their own livelihood at risk by using a traditional merchant account for credit card transactions. “In an industry full of mega-banks, mega-processors and megacustomer service headaches, LawPay has differentiated itself by providing a very specialized, personalized and industry-focused approach to payment processing.” n Contact: Amy Porter LawPay www.LawPay.com 866-376-0950 aporter@affinipay.com

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