Attorney Journal, San Diego, Volume 119

SAN DIEGO

Volume 119, 2013 • $6.95

Dealing With the “Leadership Vacuum” in Law Firm Management

Joel A. Rose

Secrets of a Master Negotiator

Matthew Swyers

Is This Claim Covered?

Rocky Copley

What Is A ‘Door Lawyer’ And Why It Sucks To Be One!

Alexis Neely Professional Profile

Candice Klein

Robert J. Francavilla Attorney of the Month

ERWIN J. SHUSTAK SHUSTAK & PARTNERS

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2013 EDITION—NO.119

TABLE OF CONTENTS features 6 Dealing With the “Leadership Vacuum” in Law Firm Management Every Law Firm, Regardless of Size, Needs Leadership

by Joel A. Rose PROFESSIONAL PROFILE OF THE MONTH

10 Candice Klein

by Jennifer Hadley EXECUTIVE PUBLISHER Brian Topor EDITOR Nancy Deyo

12 COMMUNITYnews 15 What Is A ‘Door Lawyer’ And Why It Sucks To Be One!

CREATIVE SERVICES Skidmutro Creative + Layout

Learn Why Being a Door Lawyer Can Suck Your Life Away.

CIRCULATION Angela Watson

by Alexis Neely

PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Alexis Neely Joel Rose Matthew Swyers Rocky Copley Christopher Walton Steven Kruis WEBMASTER Chase Jones ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

10

ATTORNEY OF THE MONTH

16 Robert J. Francavilla

15 22 Is This Claim Covered?

How to Analyze an Insurance Policy

by Karen Gorden

16

by Rocky Copley

24 Secrets of a Master Negotiator

Use These Skills From a Former Trial Attorney to Increase Your Ability to Negotiate a Deal.

by Matthew Swyers

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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Dealing With the

“LEADERSHIP VACUUM” in Law Firm Management

By Joel A. Rose

Every law firm, regardless of size, needs leadership. Good law firm management cannot be achieved until all the partners agree to subordinate some degree of independence to a managing partner or an executive managing committee. The partners must strike a balance between their rights as owners and their responsibilities as citizens of the firm. They must relinquish some personal prerogatives in order to achieve the overall results that they would not be able to attain on their own.

In theory, all partners are created equal. By dint of partnership status they are accorded the same rights and privileges. As many firms discover, though, this is not the case in practice. Invariably, each partner has his or her own idea about how to perform the job, and partners exercise their authority accordingly.

If the firm is to establish a form of governance that will satisfy all of its members, the attorneys must first acknowledge the need for leadership. The designated leader, whether an individual or a management or executive committee, will not succeed until all attorneys in the firm recognize that the impetus for successful management is derived from the willingness of all firm members to be governed. The partners must also recognize that managing a firm, either as the managing partner or a member of a committee, is just as important and as difficult as performing client work.

In some firms, the leadership role is assumed easily and naturally, because the individual is either a founding partner or controls a significant client base. In firms in which the partners are relatively young and inexperienced, the process of “natural

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selection,” as it were, may be somewhat more difficult, if not virtually impossible. In situations in which no partner surfaces as a natural leader or no one wants the job, the firm must take aggressive action if it wishes to grow and satisfy the professional, economic and personal objectives of its members.

Hard Decisions Needed In any case, the firm must make some hard decisions about the kind of leadership that is required and what the members of willing to live with. Should the general partnership elect a managing partner? Should this individual be appointed by the management committee?

Sometimes the size of the firm will preclude this dilemma.

The smaller firm is in a position to establish a democratic form of governance that includes all the partners in a leadership role.

If this is not practical, the partners face a difficult choice. They risk setting up two power centers if the general partnership elects both the management committee and the managing partner.

This will create great potential for dissension and divisiveness.

To avoid this debacle, selection of the managing partner by the management committee is the preferable course of action.

What kind of person makes a good managing partner?

Generally, lawyers are not recruited to a law firm on the basis of their interest or skills in management. They are rarely trained by the firm in management skills. Consequently, lawyers’ skills and levels of interest in management are greatly varied.

Any management committee will include some attorneys who are good managers and some who are not. This should not be viewed as an obstacle. Management skills are not necessarily the only factors that qualify an attorney to serve on a management committee. It may be equally important to provide equitable representation on the committee to each of the groups of lawyers that constitute the law firm.

The requisites for leadership are, in this day and age, wellknown. The leader must garner respect and support, have clout and wield it when necessary. The leader’s skills must combine judgment, timing and vision.

The amount of time available for management is limited and must be used wisely.

The managing partner must keep the objectives of the firm in proper perspective. The managing partner must be able to rise above the “self ” and understand that the good of the firm must come first. The managing partner must be able to make decisions and have them stick. Perhaps most importantly, the managing partner must want to manage the firm.

Many partner want a great deal of “say” in firm operations, but stop short of following up on their advice or opinions with recognizable action. Such “management by debate” leads many management committees down a blind alley of endless discussions and meetings. It can be generally agreed that the members of the management committee and the managing partner, as lawyers, want primarily to practice law. The amount of time available for management is limited and must be used wisely.

Collaboration is the best way to generate ideas and options for managing the firm. In the most successful firms, much gets done by teams of partners pulling together. The firm, not the leader, becomes the star; the leader serves primarily as the one who articulates the firm’s goals and plans for accomplishing its objectives.

There are some management functions, however, that should be performed by the management committee or the managing partner and should not be delegated. There are other tasks that may be performed by either the committee or the partner, but that also may be performed by individual members of the management committee or other lawyers in the firm. The

managing partner and the committee should be charged with those functions that require their specific talents and energy. In placing responsibility for other tasks, it is important to make certain that the management committee and the managing partner have the time to perform the functions that only they can perform.

Management Checklists The following are some of the functions that the management committee should perform: 1. Monitoring the firm’s economic performance.

2. Providing long-range planning and direction.

3. Making certain that systems are established and individuals are responsible for all the areas of the firm’s management.

4. Making major decisions and recommendations to the firm in such areas as lawyer compensation, billing rates, opening of additional offices and entering new areas of specialization.

5. Communicating with the firm as a whole, so that the management committee has the benefit of the views of other lawyers and so that the other lawyers understand the decisions and programs that the management committee adopts.

The following are some of the functions that the managing partner should perform: Attorney Journal | Volume 119, 2013

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1. Maintaining the morale of the lawyers, as a group and individually.

3. Does the firm use announcements or newsletters? Are the attorneys invited to contribute to committee reports?

2. Anticipating management needs recommendations for fulfilling them.

4. Does the firm hold retreats to disseminate information or address special topics?

and

making

3. Supervising the administrator.

4. Making decisions concerning matters that do not warrant consideration by the management committee, such as implementation of personnel policy.

5. Does the firm provide the attorneys, particularly junior partners and associates, with adequate feedback?

Firm Policies: 1. Does the firm have an established policy concerning new clients?

5. Implementing the management committee’s decisions by informing the proper attorneys and by following up to see that the decisions have been implemented.

2. Are the criteria for accepting or rejecting clients known to all the attorneys?

6. Coordinating all management activities.

4. Does the firm conduct attorney evaluations on a regular basis? Are the evaluation criteria meaningful? Are attorneys informed of the results?

Responsibility for the following functions may overlap, in that they can be performed by the managing partner, a member of the management committee or another lawyer: 1. Overseeing the firm’s financial matters and reporting system, including preparation and monitoring of budgets, billing, collection, cash flow, analysis of management reporting for time and money and recommendations on investment of excess funds.

3. Does the firm have established criteria for hiring?

5. Are the criteria for becoming a partner or a member of the executive committee known? Are they reviewed on a periodic basis?

6. Has the firm established policies regarding nonbillable activities, such as pro bono work, client relations, community activity and firm administration?

2. Overseeing lawyers’ career development, including evaluation, training and general work assignments.

7. Are the attorneys fully informed concerning the firm’s billing policies?

3. Overseeing legal assistants’ career development, including evaluation, training and work assignments.

8. Do the attorneys know the hourly rates of partners and associates, and the policy concerning expenses?

4. Investigating, evaluating and making recommendations to the management committee on special projects, such as acquiring senior lawyers, opening additional offices and specialization in new areas.

9. Have the attorneys been informed about the incomedistribution structure for partners and associates?

5. Overseeing firm facilities, particularly expansion or remodeling.

The following are suggested questions that a managing partner may use as a guide in determining whether his or her management practices and style of leadership effectively serve the firm.

Communication: 1. Are the firm’s methods of internal communication functioning well?

2. Do all of the attorneys attend meetings, dinners or luncheons? Are they invited?

Organization: 1. How are the departments organized? Are the areas of practice adequately staffed and supervised?

2. Are the attorneys aware of the functions of various committees?

3. Do any of the younger attorneys serve on committees? Does representation on committees reflect all firm matters?

4. How is committee membership determined? Who serves on the committees? How are they selected? What is their tenure?

5. Does the administrative staff support the attorneys’ needs and requirements?

6. Is the firm’s equipment and office technology up-to-date?

The managing partner must keep the objectives of the firm in proper perspective.

Decision-Making: 1. Do the attorneys participate in decision making?

2. Are the attorneys involved in the billing process, particularly the individuals responsible for the client and for performing work on client matters?

3. Are the attorneys’ views and input encouraged?

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4. Are the attorneys informed about events and planning regarding the number of associates or paralegals to be hired?

About department expansion or contraction? About major new matters?

In assessing his or her function, the managing partner should realize that attorneys’ expectations regarding the practice of law may well be different from the expectations that attorneys held ten years ago. These expectations may have changed in regard to hours of work, specialization, income, risk, independence and ethics. Attorneys have a greater desire to know the reasons behind decisions and to participate in decision making.

The managing partner might consider how the social, educational and economic backgrounds of the new crop of attorneys have changed, and how these changes may be reflected in their attitudes, needs and expectations. Ultimately, these changes will be reflected in the firm’s recruiting activities, turnover, work product and fields of specialization.

In the final analysis, it is the work that binds and unifies the various components of the firm - that is, the attorneys. The prudent managing partner will recognize the need to chart a course that mediates between the requirements of the practice of law and the needs of those who perform the work. n

Attorneys have a greater desire to know the reasons behind decisions and to participate in decision-making.

Joel A. Rose is a certified management consultant and president of Joel A. Rose & Associates Inc., management consultants to law firms based in Cherry Hill, New Jersey. He has extensive experience consulting with private law firms, and performs and directs consulting assignments in law firm management and organization, strategic and financial planning, lawyer compensation, the feasibility of mergers and acquisitions, and the marketing of legal services. He may be contacted at jrose63827@ aol.com; Telephone: (856) 427-0050 or (800) 381-1645, Fax: (856) 429-0073.

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Attorney Journal | Volume 119, 2013

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Candice Klein Serves as Clients’ Ally, Advocate and Friend.

Confidante

&

Comrade

By Jennifer Hadley

JOURNAL

FEATURED PROFESTSHIOENMAOLNPTROFILE OF

2013

H

“As a child, I watched my mom go through divorce. I was in court several times with her and always felt her insecurity because she did not really understand the process or what her rights were.

in January of 1997, and passed the bar in November of 1997.

Within weeks of passing the bar, I was given a case and told to ‘go try this case.’ I remember it as if it were yesterday. The feeling I had when I was speaking to the jury about what my client had lost and why we needed their help to bring about justice-I knew this was what I was supposed to be doing,” Klein recalls.

I remember watching all of the men in their grey suits whispering amongst themselves in the hallways of the courthouse. I never wanted to be insecure like that, and at six years old, told my grandma that I was going to be an attorney,” says Candice Klein, Partner with Carpenter, Zuckerman & Rowley, LLP (CZ&R).

Sixteen years after joining her firm, Klein is anything but insecure about the law. In fact, in March 2013, she became the first and only female partner with CZ&R. But her climb to partner of one of California’s largest firms devoted exclusively to personal injury victims might have gone another way entirely.

“My original focus in law school was on entertainment law. At the time CZ&R handled some entertainment law cases, but our main clientele were personal injury victims. I took the job

Since that first trial, Klein has never forgotten that feeling, and has channeled all of her efforts into being the most compassionate confidante her clients can have. “I represent seriously injured clients. I recognize that these clients are often struggling with great pain and loss and fear,” Klein says. “I try to do what I can to understand their pain,” she adds. In order to do this, Klein spends an enormous amount of personal time with her clients. “I go to their homes, and have dinner with them at their homes. I find that by experiencing a part of their life with them, I can better understand, and therefore translate the losses to a jury,” she says.

To Klein, being there for her clients extends beyond keeping them updated on their cases. “I make unsolicited

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Compassionate Confidante

phone calls. I update my clients without having to be asked.

Even when there is a lull in the case, I stay in touch. My clients know that I am interested in their well-being and I find it makes them feel more willing to confide in me, and therefore improves my ability to represent them, when we are in constant communication,” she adds.

Continuing, she says, “I care about these people the way I care about my friends.” To illustrate, she recalls “Recently I represented a mother and her daughter who were involved in a car crash where both were severely injured. The mother had just moved to California and did not have a job. Because of her injuries, she was unable to provide for her family and ended up in a homeless shelter. I was gravely concerned about her daughter, who luckily had a friend she was able to live with so she could continue without disruption at high school. I regularly met with her to make sure she was doing ok, and that she had enough money to eat and take care of herself,” Klein says. Moreover, “I eventually hired her as a law clerk. She now wants to be an attorney,” Klein says with a smile.

Clever & Capable Comrade

Of course, all of the compassion in the world wouldn’t be enough if Klein didn’t have the expertise to stand as a clever and capable comrade for clients. Fortunately, she has those skills in spades. Klein is a graduate of Gerry Spence’s Trial Lawyers College. She was also one of a very select few attorneys to attend UCLA’s prestigious ‘Gross Anatomy Program for Litigators’ in 2007. In this program, Klein received hands on training with cadavers, wherein injuries ranging from spine and disc injuries, to brain injuries, to soft-tissue injuries were studied. “I got to really understand the injuries that I’m communicating to jurors,” she says.

Klein also has plenty of trial experience, which she credits with her successful trial track record. “I want the jury to ask questions,” she says. Her belief that juries provide invaluable opportunities to learn and become a better lawyer is also based on experience. “I had a tough case that I tried in 2011 that ended in a hung jury. I re-tried the case a few months later and obtained a significant verdict for my client. I listened to the jurors after the first trial and realized that they had many questions about facts that I thought were obvious. I was able to answer all of those questions the next time around at the second trial. I learned that you can never take anything for granted.

I’m always learning, and win or lose, I’m always talking to the jury afterwards,” she says.

Moreover, CZ&R’s capabilities are second to none, giving Klein additional ammunition for cases. “Our firm is on the cutting edge of personal injury litigation. We have a team that looks for test cases to develop strategies around some of the most difficult legal obstacles to victims obtaining recovery for

I find that by experiencing a part of their life with them, I can better understand, and therefore translate the losses to a jury. their losses. For instance, for years, supermarkets and other big retailers have escaped liability on slip-and-fall cases by pretending to have no notice that their floors were dangerous.

We have developed a new strategy that eliminates the need to prove notice, and have won several otherwise unwinnable jury trials. Likewise, in connection with a bank, we’ve developed a financial instrument that allows a car accident victim to effectively purchase insurance after-the-fact and therefore not be subject to Prop. 213 which would bar them from recovering pain and suffering,” Klein explains.

Unassuming Ally

With her trial experience, the extensive strategies she and her partners employ for the benefit of clients, and the hundreds of millions of dollars the firm has recovered for clients, one might think that CZ&R exudes typical, powerhouse, formidable law offices. Yet nothing could be further from the truth. Indeed, Klein’s passion for becoming friends with clients isn’t limited to her visits to their homes, or time spent on the phone. The firm has made it a point to make their offices welcoming and unthreatening as well.

“Our firm is very dog friendly. We often have several small dogs in the office, which help make people comfortable. When clients come into my office, they feel more at home when they have a dog curling up next to them,” she says. Klein also has her 6 month old son in her office with her for a few hours a day several times a week. The welcoming atmosphere doesn’t go unnoticed by clients, either. “They are surprised by how ‘normal’ we are,” Klein says with a chuckle. n Contact: Candice S. Klein Carpenter, Zuckerman & Rowley, LLP 619-814-9000 www.czrlaw.com Candice@czrlaw.com 750 B Street, Suite 330 San Diego, CA 92101

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COMMUNITY news nAttorney Michael Bomberger, of the product liability firm Estey & Bomberger, has been appointed Plaintiff’s Co-Lead Counsel in a California mass tort lawsuit filed against Skechers USA over alleged serious injuries caused by the company’s Shape-ups toning shoes.

Attorney Jennifer Greene, also of Estey & Bomberger, was appointed to the Plaintiff’s Steering Committee MIKE BOMBERGER for the California coordinated cases.

“Being appointed as Co-Lead Counsel gives us the opportunity to quarterback this litigation,” said Bomberger. “We look forward to investigating what research and development – if any – Skechers performed prior to putting this dangerous product on the market. We also seek to pull back the curtain on Skechers alleged false advertising claims that put profits before consumer safety.”

The first lawsuit against Skechers, which was filed in January 2012 in Los Angeles Superior Court, states that 37 plaintiffs located in states across the country have suffered serious injuries, allegedly as a result of wearing the Skechers Shape-ups toning shoes.

Since that initial filing in January 2012, there have been 24 new complaints filed against Skechers in the California coordinated proceedings, involving an additional 277 plaintiffs alleging injuries caused by the use of the Skechers Shape-Ups toning shoes. nIntellectual property trial lawyer Roger Denning has been elected to Fish & Richardson’s national Management Committee. Denning will continue to try cases, as well as serve as managing principal of the firm’s Southern California office, based in San Diego. He also serves as the firm’s national recruiting principal.

As a member of Fish’s seven-member ROGER DENNING Management Committee, Denning will participate in strategic and operational decisions on a firmwide basis for the firm’s 12 offices worldwide.

“I am honored that my colleagues have entrusted me with this responsibility,” stated Denning. “I am excited and humbled to have such an important role in shaping the future of our firm, and I look forward to the challenges this opportunity will bring.”

Denning’s practice focuses on complex litigation, particularly patent infringement and other technology-related cases. He has tried patent cases throughout the country involving a wide variety of technologies, including medical devices, pharmaceuticals, computer software and hardware, semiconductors, network interface and golf ball design.

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nFor the third straight year, Higgs Fletcher & Mack has provided a $10,000 scholarship to a deserving University of San Diego law student.

The scholarship was made possible by contributions from 29 of the firm’s attorneys, and awarded to Lisa Charukul for the 2013 academic year.

“Our firm and attorneys STEVE COLOGNE AND LISA CHARUKUL have made it a priority to promote diversity in law school education,” said Steve Cologne, partner at Higgs Fletcher & Mack. “We all support this important mission and are proud to collectively continue to help USD students complete their education.”

Charukul was awarded the Diversity Scholarship based on her community service involvement, academic achievement, commitment to volunteering and other personal qualities.

Currently, Charukul is interning at the Public Defender’s Office and is slated to graduate in 2013.

Higgs Fletcher & Mack has been contributing to the USD School of Law since 2004 and created the Diversity Scholarship in 2010 to help significantly lessen the financial burden of law students in need.

Kilpatrick Townsend & Stockton announced today the addition of Shelton Austin to the firm’s San Diego office. Mr. Austin joins the firm as an associate on the Electronics and Software Team in the internationally recognized Intellectual Property Department.

Prior to joining the firm, Mr. Austin worked as an associate SHELTON AUSTIN at Knobbe Martens Olson & Bear. He focuses his practice on intellectual property, patent preparation and prosecuting in various fields including wireless communications, computer, software, electronics, and medical devices. Prior to attending law school, Mr. Austin worked as a patent examiner with the U.S. Patent and Trademark Office.

Mr. Austin earned his J.D., cum laude, from the University of San Diego School of Law, where he was a member of the San Diego International Law Journal and was a member of the Order of the Coif. He earned his B.S. in Electrical and Computer Engineering from Ohio State University.

COMMUNITY news nShustak & Partners congratulates Jonah A. Toleno on being awarded an “AV” rating from Martindale-Hubbell, with a 5.0 out of 5.0 overall rating in Securities Law, General Practice and Business Law. Martindale-Hubbell reserves the “AV” ranking for those attorneys whose peers rank him or her at the highest level of professional excellence and who adhere to the JONAH A. TOLENO highest professional standards of conduct, ethics, reliability, and diligence. Ms. Toleno extends her utmost gratitude and appreciation to her colleagues who participated in the voluntary peer review process on her behalf. nKlinedinst PC is pleased to announce the hiring of Kyle T. Overs and Shauna M. Oakley. Mr. Overs will join the firm’s Professional Liability practice group, counseling and defending clients in malpractice claims brought against attorneys, accountants, and other professionals.

Prior to joining Klinedinst, Mr. Overs volunteered in the pro bono division KYLE T. OVERS of the Legal Aid Society of San Diego, assisting clients in domestic violence, medical malpractice, and unlawful detainer cases.

Mr. Overs earned his law degree from the University of Arizona School of Law, where he graduated cum laude. He earned his undergraduate degree in Business Management from Wake Forest University.

SHAUNA M. OAKLEY Ms. Oakley has joined the firm’s Construction and Real Estate practice groups. Prior to joining Klinedinst, Ms. Oakley handled complex civil litigation matters for a boutique firm in San Diego. She oversaw all stages of the litigation process in both Federal and State court proceedings, including extensive motion work, discovery and deposition practice, and court appearances.

Ms. Oakley earned her undergraduate degree from the University of California, San Diego, where she graduated magna cum laude with a B.A. in Political Science. Ms. Oakley then went on to earn her Juris Doctor from the University of Texas School of Law.

nThree months after the opening of the San Diego office of Ogletree, Deakins, Nash, Smoak & the firm has already received a unanimous jury verdict in favor of its client, Catalina Restaurant Group, which owns and operates Coco’s and Carrows restaurants throughout California, Arizona and Nevada.

The case concerned two restaurant General Managers who claimed they SPENCER SKEEN were misclassified as exempt from California’s overtime, meal and rest period regulations.

According to Spencer Skeen, Managing Shareholder of Ogletree’s San Diego office, “The jury’s decision vindicates Coco’s treatment of general managers as employees that are exempt from California’s overtime, meal and rest period requirements.” The original founders of Ogletree’s San Diego office, Spencer Skeen and Tim Johnson, tried the case to the jury. The office has grown to five attorneys and is expected to continue growing rapidly. nWilson Turner Kosmo LLP has added Karen K. Haubrich and Emily J. Fox to the firm’s employment law practice. Founded in 1991, Wilson Turner Kosmo LLP is one of the largest women-owned law firms in the region.

Haubrich joins Wilson Turner Kosmo as Senior Counsel and holds over 20 years experience in labor KAREN K. HAUBRICH and employment practice. Prior to joining the firm, Haubrich was a Senior Counsel at AT&T, where she was responsible for employment and labor related advice and litigation in San Diego, Orange, Riverside and Imperial Counties. She also ran training sessions on a variety of labor/ employment subjects for managers and departments. Haubrich received her J.D. from Santa Clara University and a B.A. from Stanford University.

EMILY J. FOX Fox joins Wilson Turner Kosmo as an associate and has previously represented private and public employers in all aspects of labor and employment litigation. She has also counseled clients on day-to-day employment matters and advised employers on the latest developments in workplace law. Fox obtained her J.D. from the University of San Diego and a B.A. from the University of California San Diego.

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Attorney Journal | Volume 119 , 2013

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Attorney Journal | Volume 119, 2013

What Is A ‘Door Lawyer’ And Why It Sucks To Be One!

By Alexis Neely Alexis Neely is the Co-Founder of New Law Business Model, an author and a former solo practitioner who built a million dollar a year law practice from scratch. She also graduated first in her class at Georgetown Law, clerked on the 11th Circuit Court of Appeals and worked for three years at the large firm of Munger, Tolles & Olson. In her solo law firm, Alexis created a law business model clients loved and she wrote a bestselling book on legal planning for parents, Wear Clean Underwear. She now mentors lawyers on how to attract clients, engage those clients and serve those clients using her new law business model. You can read her Law Business Manifesto (and receive over $20,000 of practice tools) at www.LawBusinessManifesto.com

Before I can tell you why being a door lawyer is sucking your life away, I need to make sure you are clear on what it is exactly.

So, what is a door lawyer? A door lawyer is…

Fortunately, there is a solution. It’s to stop taking everything and anything that walks through the door and do just the opposite.

• a lawyer who, in the past, might have been called a general practitioner • a lawyer who takes whatever walks in the door—a divorce here, a criminal case there, a personal injury for good measure and the occasional will and trust, etc.

• There’s some part of you that knows this is not the best way to serve your clients, but you think you need to do it to be successful.

• But it’s just not working.

• You are tired. Overwhelmed. Stressed out. Know that you aren’t serving your clients to your highest and best ability.

It’s time to get picky about who you work with and ONLY work with people who meet your criteria. My friend Michael Port says it best in his bestselling book, Book Yourself Solid — you need to create a red velvet rope between your prospects and your services. The only people who get past the red velvet rope are the people you have chosen to work with, called in strategically and are absolutely right for you.

Everyone else gets referred out.

Now, you might be saying to yourself, “this girl is crazy. I need to take everything that comes my way or I’m not going to survive.”

But there’s another part of you that already knows, survival mode isn’t cutting it. And if you keep going as you are, you are not going to survive. You’ll either burn out, leave the law, or have a heart attack (or other medical issue that keeps you from keeping on as you are).

There IS a better way.

Before I share it with you though, let’s look at WHY being a door lawyer simply does not work.

1. When you take everything that walks in the door, you can’t charge premium fees because you are literally reinventing the wheel for every new matter so you have no systems, feel like a novice for each new case, and really cannot hold yourself out as the best in town.

2. When you are taking everything and anything, you cannot effectively market. Effective legal marketing requires direct communication between you and your prospect in which you let your prospect know you get him or her and how you can help. You do this by educating your prospects about specifically what’s on their minds. You cannot do that if you are trying to reach everyone. #1 you don’t have enough money and #2 you don’t have enough time.

3. When you are taking whatever comes your way, you’ll never be the expert. You’ll never be able to design a system for serving your clients that turns them into raving fans. You’ll always be tired and stressed out.

Ready to make a shift yet?

There is a better way, but it’s going to require a big shift in your thinking and the way you’re doing things. You’re going to have to focus on who you’re going to serve and what you’re going to offer them, and eliminate doing any work other than that. This is the foundation of your transformation.

It’s time to decide on a specific subset of people who need a specific type of legal service—that you are particularly suited to provide because of your own personal history or specialized training—to start to market to and serve.

When you narrow down your focus from a marketing and client-service perspective, everything shifts in your practice: • You’re able to create systems.

• You can effectively market your services.

• You can invest your marketing dollars wisely.

• You can become confident in the service you provide, because you know it’s the best.

• You can have more than enough work.

• Your clients will want you to do more for them—and if you really want to provide a wide range of services you can offer them as gifts and favors to your existing clients, only on the back-end—just don’t market that up front.

Your mind will tell you that you’re going to starve, that there’s not enough work, that you have to take everything to make ends meet, but that’s not how it works. There are lawyers serving in the smallest of niches who are incredibly successful—lawyers who serve only dads in divorce and who only serve families with vacation homes and cottages, to name two. Be the known lawyer in your community for the service you provide, and there will be more than enough work out there for you, but only when you focus and stop taking everything because you feel you have to. n Attorney Journal | Volume 119 2013

15

Everything

Is Personal

By Karen Gorden

B

efore Robert J. Francavilla, partner in San Diego’s oldest plaintiff’s law firm, Casey Gerry Schenk Francavilla Blatt & Penfield, LLP, was even in high school, he planned to pursue a career in which he could help others. “My father told me that if I wanted to help change things for the better, being a lawyer would be a great way to do it,” Francavilla says.

Continuing, he explains, “my dad worked extremely hard for our family and taught me to treat others well.”

He also recalls his father encouraging him that nothing was impossible. “He told me, if you feel overmatched, you can still always outwork others,” he says. His father was proven right. The determination to work hard has served Francavilla—and more importantly—his clients extremely well for more than 25 years.

“I never give up when it comes to my clients.”

PLAINTIFF’S WORK: A PASSION PROJECT For Francavilla, who joined CaseyGerry in 1985, deciding to go into plaintiff’s work came with a great deal of responsibility. His clients, many of whom have suffered serious personal injury, ranging from brain and spinal injuries, to loss of limbs, severe burns, to major orthopedic injuries, are simply outmatched when it comes to recouping their dignity and rising above tragedy. “The odds are stacked against our clients. They are up against powerful organizations, product manufacturers, public entities and insurance companies. Most of my cases involve catastrophic 16

Attorney Journal | Volume 119, 2013

injury. My goal and objective is to return these people to a life of dignity and give them hope for a better tomorrow. I am in a position to help them, and that’s a big responsibility which I take very seriously,” he says.

It’s also a responsibility that Francavilla enjoys tremendously. “My clients inspire me. Sometimes I wonder, ‘Wow, could I do what they are doing?’ These people have been knocked down and continue to step up to challenges. I learn so much from them,” he says.

He says many of his clients demonstrate sheer grit in the face of overwhelming adversity. “They motivate me, and I have the honor of helping them get the compensation they need to return them to a place of feeling like they have value.”

It is precisely because Francavilla forges such strong bonds with his clients that he is able to battle fellow “top-fight attorneys” and emerge victorious time and again. “I am working for a person, a human being,” he says, as opposed to working for an insurance company or large corporation. “When I get to know these people and hear their stories, it makes me care so much more.”

To that end, he admits that what drives him to put everything he has into a case for a victim isn’t just about winning. “My fear of losing and letting these people down far outweighs any elation that comes from winning.”

Not surprisingly, he has reaped some significant verdicts and settlements. In fact, Francavilla has achieved results of more than $22 million in just the last several months—most recently settling a complex premises liability case on behalf of a seriously injured client for $7.5 million in damages. He is relentless in his pursuit of justice. “I never give up when it comes to my clients,” he says. “If someone or some company is responsible and will not own up to that responsibility, I will fight to hold them accountable.”

Robert J. Francavilla’s Passion for Plaintiffs Is Palpable.

ATTORNEY

OF THE MONTH

2013

Top row, left to right: Nicole C. Cusack, Law Clerk , Robert J. Francavilla , Mary Jo Cunningham, Paralegal.

Bottom row, left to right : Paul A. Francavilla , Investigator , Angela M. Jae , Associate Attorney.

What sets Francavilla apart from many lawyers is his ability and willingness to take cases to trial when justice demands it. He explains that, “Every single case is approached as if it is headed to trial. This type of thorough preparation ensures a fearless pursuit of any challenge or adversary.” His five Outstanding Trial Lawyer Awards received from the Consumer Attorneys of San Diego, nomination for Consumer Attorneys of California Trial Lawyer of the Year, and numerous trial victories attest to that.

CHOOSING A CHALLENGE Francavilla’s drive to help others means that he will take on extraordinarily difficult cases—and battle to receive fair and just compensation. While he most often takes on large and highly visible cases, he is quick to confirm that he will take on less serious injuries if he believes that a client was wronged, even if the case presents a challenge. “I’m not afraid of going up against anyone,” he says. “My passion for helping others keeps me going.”

Moreover, his passion is shared by the entire firm, which will do everything in its power to help clients who have suffered injury receive compensation so they can move on and rebuild their lives.

However, that’s not to say that they take every case. “We are fighters and we will not shrink from a challenge, but we do not think it’s fair to put the client through years of stress, if we don’t think we can win. Clients appreciate that honesty,” he adds.

18

Attorney Journal | Volume 119, 2013

But that doesn’t mean that the firm doesn’t take each case that comes in seriously. As a matter of fact, CaseyGerry invests its own resources in cases it may ultimately wind up turning down.

“Our mock jury and focus groups are often used to determine whether or not we will take a case. We are able to watch mock jury deliberation on closed circuit, which allows us to do our job better. Sometimes cases we might have turned down, we pursue as a result of using focus groups,” Francavilla says. Of course, he admits that focus groups don’t always predict how a case will go, but can help highlight strengths and weaknesses of potential or ongoing cases. “We are willing to invest in cases even if we don’t ultimately take them.”

Another advantage CaseyGerry clients enjoy is Francavilla’s ability to call on his in-house investigation team—which includes his own brother, Paul Francavilla—to obtain witness statements and photos, so that the firm can accurately determine whether a potential client has a good case and to properly prepare for trial.

Careful case selection is of utmost importance to the CaseyGerry firm, and according to Francavilla, this has been true since the firm opened its doors more than 66 years ago. “David Casey Sr.’s desire was to provide CaseyGerry clients with access to the courthouse, and preparing the right cases for trial is the best way to accomplish this,” he says.

“We are willing to invest in cases even if we don’t ultimately take them.”

IT’S NOT A GAME

But what about those who claim that football players should obviously know that they are putting themselves at risk, when they choose that career? According to Francavilla, that’s not true and not altogether the point. “The NFL is the model, and represents the ultimate in football. From college, to high school to the pee-wee league, they set the standard. When the NFL withholds information, what does this mean for the health and well-being of our kids? The lawsuit is raising awareness, and ideally proving that better medical attention and better returnto-play policies after a head injury are crucial. Players must heal to the point that they have no more symptoms, or else they are more vulnerable to reinjury,” he explains. “This is especially true of children and teens whose brains are still developing. “

For Francavilla, one thing is clear when it comes to helping victims receive the compensation they need to rebuild their lives. “This is not a game. These are real people, and this is real GOODWILL AS A WAY OF LIFE life,” he says. For him that begins when he goes to a client’s In the same way that his father instilled in him the values and home, and sees the ways their lives have been upended by lessons that helped shape the person and lawyer he is today, a horrible tragedy. Even if he knows it will be a tough case, Robert works to instill in his young sons a devotion to keeping believing in the cause is his single greatest asset. people safe and advocating on behalf of those who have been Such was the case of teenage football player Scott Eveland. In victimized. For now he does so at a level that his young sons can 2007, Eveland collapsed on a San Marcos high school football understand. “I try to teach them that it is easy to be critical of field and ultimately suffered a serious brain injury stemming someone, it is easy to make people feel bad. The real challenge from bleeding in the brain. Together with senior partner David is to help make people feel better. My seven year old is already Casey Jr., Francavilla was able to obtain a $5 million dollar protecting kids on the playground who are being picked on,” he settlement to help support the disabled athlete for the rest of says with a smile. Ultimately, “I do this job as a way to provide his life. my family—wife, Carla, and sons, Zachary and Dominic— The high profile case, which settled in 2012, set a record for with a better life and to give them an appreciation of their life the greatest number of depositions (more than 250) taken on a and compassion for the hardships of others. They know that I personal injury case in San Diego. But the experience also served try to help people make the best out of a horrible situation.” as the catalyst for Francavilla’s advocacy for football players on That passion for helping others transcends into charity work an even greater scale. “After the Eveland case, I was contacted for Francavilla personally, and for the firm as a whole. Francavilla by a retired NFL player. He explained that he expected torn serves on the Board of Directors of Head-North, a Del Mar based ligaments, strains and sprains, but no one ever gave him the nonprofit dedicated to providing help and hope for spinal cord information—which the NFL had—which demonstrated that injury survivors. Francavilla was invited to serve on the board repetitive trauma to the head can lead to lifelong brain damage,” Francavilla says.

In 2012, following the death of Junior Seau, CaseyGerry was appointed to serve on the Plaintiffs Steering Committee overseeing national MDL litigation against the National Football League (NFL) which alleges that multiple concussions can lead to long-term brain injuries. Francavilla’s success in the Eveland case led to his serving on the medicine and science sub-committee of the NFL suit.

“Had players been given the accurate information, that repetitive head trauma was so dangerous, I think many would have left the game. These players, who have the biggest chunk of their life remaining after they retire, are thrown to the scrapheap, with potential lifelong injuries. I’ve even spoken to an NFL Hall of Famer, who told me ‘if I would have known, I The Francavilla family: Carla, Dominic, Robert and Zachary. would have played baseball instead,’” Francavilla says.

Attorney Journal | Volume 119, 2013

19

Contact: Robert J. Francavilla www.cglaw.com | rjf@cglaw.com 619.238.1811 110 Laurel St., San Diego, CA 92101-1486 20

Attorney Journal | Volume 119, 2013

EXPERIENCE

by a client he’d previously represented. “The organization works really hard to help those who have suffered a spinal cord injury adjust to their new lives,” he says. Not surprisingly, fellow members of Head-North also include family members of clients that Francavilla has represented.

“The work that Head-North does to help people transition into their new ‘normal’ is remarkable,” he says.

Francavilla’s colleagues at CaseyGerry are also immersed in various non-profit organizations, serving in leadership positions for community and charitable organizations including the Civil Justice Foundation, Big Brothers Big Sisters, Lawrence Family Jewish Community Center, the United Jewish Federation, the San Diego County (Del Mar) Fair Board and the San Diego Kiwanis Foundation. The firm has also contributed financially to support organizations including but not limited to, the Paul Jacobson Spinal Cord Foundation, Las Patronas, the USD School of Law and Children’s Hospital of San Diego. CaseyGerry attorneys also played a key role in developing legislation and policies that led to Trial Lawyers Care (TLC), which provided pro bono legal support to the families of the victims of 9/11/01. The program became the largest pro bono undertaking in the history of American law.

The goodwill efforts of the firm can be traced in large part to the firm’s managing partner, David Casey, Jr. “He has worked incredibly hard to continue to make the firm that his dad opened in 1947 better and better,” Francavilla says. “He has successfully helped the firm earn its stellar reputation with judges and lawyers, as well as reinforce our staying power, and our excellent trial results,” he adds.

But of course, no man is an island, and certainly not within the CaseyGerry firm. “All of our attorneys live in, and want to better the San Diego community. It is our home,” he says. Within the walls of the practice, the sense of family and community prevails as well. “It’s a family oriented firm, and with husbands and wives and kids stopping by, it can be like Grand Central in here,” he jokes.

Indeed, the firm cares about family, cares about the San Diego community, cares about setting standards for excellence, and most importantly, cares about helping those who need their help. In coming years, Francavilla expects that the firm’s mass tort division will grow, but he admits “there is no pre-planned mode of expansion in place.” However, “we are open to bringing in new people to help service our clients, because we are always interested in areas of law where we can help people.” n

»» EDUCATION • University of San Diego, B.B.A. • University of San Diego, J.D.

»» AFFILIATIONS • State Bar of California, Member • Consumer Attorneys of San Diego, President • American Board of Trial Advocates, Member • American Association for Justice, Member • San Diego County Bar Association, Member

»» AWARDS • Five Time Winner of the Consumer Attorneys of San Diego Outstanding Trial Lawyer Award • Super Lawyers, San Diego Edition, 2007 – 2013 • Best Lawyers in America 2008 – 2013 • Top Attorneys, San Diego Daily Transcript 2012 – 2013 • Top 50 San Diego Super Lawyers, June 2010 • 50 People to Watch in 2012, San Diego Magazine, January 2012

Miller & James, LLP Attorneys at Law

David D. Miller

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

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

Patricia I. James (“PJ”)

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

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

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

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

C

rackhead Craig was driving his Monster Truck down the freeway when he encountered stopped traffic due to an automobile accident. Crackhead decides to take the Monster Truck off road and drives across an empty field until he encounters a parking lot for an empty warehouse. Crackhead drives the Monster Truck up a ramp, through the warehouse, and out the back door off of a loading ramp. Unfortunately, Eggshell Eddie was driving by the loading dock after completing his inspection of the warehouse as a potential location for his exotic birds import company. Crackhead’s Monster Truck flies through the air and lands on the Honda Civic driven by Eggshell Eddie. Eggshell was severely injured. Eggshell retains his brother-in-law, Billy Greenhorn, to represent him. Attorney Greenhorn had recently passed the bar after completing a correspondence course from a law school that he learned about on the back of a matchbook cover. Attorney Greenhorn filed a complaint alleging one cause of action for battery against Crackhead. Crackhead notified his insurance carrier, Allsnake Insurance Company, of the claim. Allsnake denies coverage on the basis that Crackhead was engaged in off road activity at the time of the accident which is excluded by the policy and the complaint only alleges a claim for battery which is an intentional act. The policy does not cover claims arising out of intentional acts by the insured.

Crackhead retains you to evaluate Allsnake’s coverage position.

ANALYZING THE POLICY Parts of the Policy.

Is This Claim Covered?

(How to Analyze an Insurance Policy)

By Rocky Copley

Rocky Copley is in his twenty-ninth year in the practice of law. He has substantial experience in the area of civil litigation and has tried numerous trials before both juries and the bench. His practice emphasizes personal injury, insurance coverage and insurance bad faith, wrongful termination, sexual harassment and discrimination, and business litigation. In 1986, he opened and managed the San Diego regional office for the statewide law firm known as Borton, Petrini & Conron, LLP. He rose to the level of senior partner in that firm. He left the firm in late 2005 to open his own law practice. He is currently the principal owner of the Law Office of Rocky K. Copley, located in downtown San Diego.

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Attorney Journal | Volume 119, 2013

An attorney evaluating coverage must read the entire policy. Clients frequently provide their attorney with only a portion of the policy, a summary of the policy benefits or simply a copy of the declarations page. The first thing you need to do is request the insurance carrier provide you with a certified copy of the policy or verify that what the client provided is a complete copy of the policy.

When you receive a copy of the policy, you want to review the various parts of the policy. The declarations page will provide you with the types of coverages, the identities of the named insureds, the policy period and will also identify the policy forms. You should verify that your client purchased the type of coverage that is needed to cover the claims against your client. Do not trust the understanding of your client as to the types of coverages that they possess. Clients frequently do not know the full extent of the coverages provided under their insurance policy. In fact, court opinions frequently recite the fact that most policy holders never read their insurance policy.

You should verify the incident in question occurred during the policy period and that the policy was in full force and effect at the time of the incident. If not already provided, you should ask the carrier to provide its coverage position in writing. The California Fair Claims Settlement Practice Regulations (10 CCR 2695.1, et seq.) requires insurance carriers to either accept or deny a claim in writing and explain, in whole or in part, the specific statute, applicable law or policy provision, condition or exclusion, upon which the coverage denial is based and explain the application of the statute, applicable law or provision, condition or exclusion to the claim. (10

CCR 2695.7(b)(1)) The coverage denial letter will allow you to verify that the coverage denial was not based upon cancellation of the policy for nonpayment of premium. It will set forth the legal basis under the law or the policy upon which coverage was denied. With that information, you can then analyze whether the insurance carrier’s coverage position was correct.

The declarations page will identify the named insured.

However, the actual policy provisions will identify other persons who are insured under the policy. If a corporation is identified in a commercial general liability policy as the named insured, the “persons insured” provision in the policy ordinarily extends coverage to its stockholders, directors and executive officers acting in their capacities as such, and to employees of the corporation acting in the course and scope of their employment. Homeowner policies refer to the “named insured” and other “resident relatives” of the named insured’s household.

Automobile liability insurance policies ordinarily include any person using the insured automobile with the named insured’s permission. Therefore, you should confirm that the policy covers your client as either a named insured or as one of the other persons who are covered under the policy.

It will be your client’s burden to initially establish that he or she is potentially covered under the policy. Once that potential has been established, the burden of proof shifts to the insurance carrier to establish by undisputable evidence that there is no potential for coverage under the policy in order for the carrier to deny your client a defense. Montrose Chem. Corp. v. Superior Court (1993) 6 Cal.4th 287, 300.

The declarations page will also identify the policy forms. It is important that you confirm each of the policy forms that comprise the actual policy. Policy forms have numbers assigned to them which generally appear at the bottom corners of the policy forms. These form numbers are listed on the declarations page. Insurance companies sometimes erroneously claim that coverage is excluded under as endorsement. However, unless that endorsement is listed as one of the forms on the declarations page, the endorsement is not part of the policy and will not apply to excluding coverage.

After you have confirmed that you have the actual policy, you should review the entirety of the policy. The first part that you should review is the coverage section. The insuring clause is the basic agreement by the insurance company to provide coverage to its insured. An insuring clause may be a single sentence or a series of sentences. Most policies contain several insuring clauses which provide “first party” or “third party” coverages, or both. First party coverages would typically be situations such as property insurance, medical payments coverage in an automobile policy, uninsured or underinsured motorist coverage, etc. Third party coverages provide coverage for acts by an insured for which liability may be imposed upon the insured to pay damages

that are covered under the policy. The typical example would be liability insurance. An example of the insuring clause of a liability insurance policy would be “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We have the right and duty to defend the insured against any ‘suit’ seeking those damages.”

After you have established that your client is a named insured, you must determine whether the insuring clause covers the claim. For liability insurance, an insurance carrier owes two separate and independent duties to its policy holders. It owes the duty to defend and a separate duty to indemnify. The duty to defend is broader than the duty to indemnify. The duty to defend is determined at the outset of the litigation whereas the duty to indemnify is determined at the conclusion of the case.

An insurance carrier is required to provide a defense even though non-covered acts are also alleged in the third-party complaint.

In the situation of Crackhead Craig, he is being sued solely for battery. However, the facts giving rise to that claim would support a claim for negligence. Whether or not the insurer owes a defense will depend upon (1) the terms of the policy; (2) the allegations of the third-party’s complaint against the insured; and (3) all facts known to the insurer from any source. Montrose Chem. Corp. v. Superior Court (1993) 6 Cal.4th at 295-296. The determination of whether the insurer owes a duty defend is typically made in the first instance by comparing the allegations of the complaint with the terms of the policy. A carrier is obligated to defend even groundless, false or fraudulent claims. However, the complaint need not allege a covered cause of action. If the complaint discloses enough facts to indicate a potential for coverage, the duty to defend arises so long as the facts alleged in the underlying complaint give rise to a potentially covered claim, regardless of the technical legal cause of action pled by the third party. Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 510.

In the Crackhead Craig situation, the complaint may or may not contain enough factual allegations to establish that the claim is covered. Most experienced attorneys would contact opposing counsel and explain the benefits of amending the complaint to more specifically plead a covered cause of action or would obtain more facts to provide to the carrier to trigger a potential for coverage and thereby obligate the insurer to defend. Most experienced plaintiffs counsel are sufficiently cognizant of coverage issues that they routinely plead facts and causes of action (e.g., negligence) that would be covered under an insurance policy. When analyzing the claim to find coverage for your client, you should expand the scope of your knowledge of the facts so that you can find a legal theory that could be asserted based upon those facts that would be covered under

The duty to defend is broader than the duty to indemnify.

Continued on page 27 Attorney Journal | Volume 119, 2013

23

SECRETS

OF A

MASTER

NEGOTIATOR

Use these skills from a former trial attorney to increase your ability to negotiate a deal.

By Matthew Swyers

L

ife is negotiation. So much of our daily lives revolve around this practice, and yet so few of us spend any time truly learning what it takes to become great at this requisite skill.

Think about it: How much of your life involves negotiation? Most people don’t realize when it is taking place. But it surrounds us. It is who we are.

Sure, everyone knows that you have to negotiate to buy a car.

Some may even know that almost every retailer—if pushed—will negotiate a better price for an item. But what about the more subtle forms of negotiation? Do you even recognize when these occur?

Have you ever said to your spouse, “I’ll take out the trash. Can you load the dishwasher?” Negotiation. When you ask for a raise?

Negotiation. Who’s driving? Negotiation.

Since I was a child, my parents have always told me I was good at manipulating others. Negotiation. Perhaps it was inevitable that 24

Attorney Journal | Volume 119, 2013

I went into law, at least initially. A profession that heightened my abilities at reading people and knowing how to react to the tells they were giving me.

After half a lifetime of negotiating and learning the techniques to do so better, here are a few of the secrets I have picked up:

BASIC SKILLS 1

Listen

To negotiate, you must learn how to listen and apply what you hear to formulate your next move. Every word has a purpose. Every statement, a hidden tell. If you listen carefully, I mean really carefully,

you will be able to hear and understand what your opponent in the negotiation truly wants. Listening is the bare minimum skill you must have to start building your abilities as a good negotiator.

2

Be Willing to Walk Away

When two sides are negotiating, one of the other most basic skills you must retain is the ability to walk away if the deal does not satisfy your requirements. Some may think this is axiomatic, but it is not.

Once I was assisting a friend in negotiating the purchase of a new car. At the end, we were close, but the dealer refused to remove some extra charge that was just more fat on the bone for his sales price.

After much back-and-forth over this item, we reached an impasse: the salesman would not take it out of the price, and I would not move without his taking it out. I stood up, politely thanked him for his time, and said to my friend, “Let’s go.”

To my surprise, my friend remained seated, turned his eyes toward me, his expression quickly changing to that of a child’s wanting a toy in a toy store, and said, “But I really want the car.” At that point, any chance of continuing to negotiate a better deal evaporated like a puddle on a hot Southern summer afternoon. If he would have stood and walked, we would have never made it to the door before that item was taken off the cost. But by not being willing to walk away, we gave the other side a critical advantage: He knew we would not walk.

Always be willing to walk away from a deal, and let it be known in either a subtle or not so subtle manner, as the situation dictates.

INTERMEDIATE SKILLS 1

Feign Indifference, Don’t be Indifferent

Obviously we care about the thing we are negotiating for, otherwise there would not be a negotiation. But just as we must be willing to walk away from the deal, equally as important is that you must never let the other party know how much you want or need to make the deal.

For example, for anyone who is familiar with my other writings ,you may recall that I am a trial attorney who has tried hundreds of cases in my career and litigated thousands more. At some juncture during the course of litigation, the parties will discuss settlement.

Irrespective of my client’s concerns and directives, I always feign indifference during settlement discussion. Why? Because if the other side ever gets a whiff that you are not willing to try the case, it will have a decided advantage over you in the negotiation process.

So no matter if my client is ready to take the case to the mat or can’t afford or does not want to move forward anymore, opposing counsel gets the same routine from me every time: “We can try to settle the case or just go to trial. I’m good with whatever.” The goal in feigning indifference is to be as difficult to read as a blank page.

In the end, however, it is a valuable skill to have in any negotiation.

So you may not be indifferent, but never let them know.

2

Have the Ammunition You Need

In litigation, this is about having your case ready to go to trial if it does not settle and making sure the other party knows you are

ready. In other negotiations, such as in real estate, it’s about letting a prospective purchaser know you have another buyer on the line and that if he does not meet your terms, you’ll just sell it to the other guy. In any negotiation that involves an alternative action if the terms are not met, you must let the other party know you can, and will, do a specific act they do not want you to do in the event terms are not met. In short, let the other party know that you have your ammo and are willing to use it.

Many years ago, my then firm represented a man who had been horrifically injured by a product. Our firm was brought in to represent his interests against the manufacturer. Because of certain confidentiality provisions, I cannot mention the product or even the type of product it was. Suffice to say, however, it was the first case of its kind and had significant national exposure on not only a media level but political as well. Well, as in any litigation case, the parties are required to exchange documents whether they are detrimental or not to your case.

We knew that the defendants were holding out on us and saying that these specific very damaging reports did not exist despite the fact we had witnesses that testified to the contrary. We knew if we got our hands on these reports, they would be shaking in their boots. Well, to make a long story short while referencing a great episode from Seinfeld, we employed a special team of people to “retrieve” the reports for us, and “yadda yadda yadda,” we appeared at pretrial with these ultra-damaging reports in hand. The case, one of the most contentious and longest I had ever been involved in, settled minutes later. Why? Because we had the ammo.

So it does not matter if it is litigation, real estate sales with an alternative buyer, or otherwise, always have the ammo—or appearance thereof—to support your side in the negotiation.

ADVANCED SKILLS 1

What Motivates the Other Party? Use It

As a prerequisite, you must always listen. Listening, as stated above, is critical to hearing what the other side wants. But on a higher level, you must strive to understand why. What is motivating the why? If you can listen between the lines to understand that which truly motivates the other party, you will gain a decided advantage in the negotiation of the deal.

Let’s take an example from McDonald’s, the iconic company that is now making significant inroads in China. A few years ago, I watched a special on McDonald’s that was fascinating. It went through the company’s history, business philosophies, and plans for expansion. In regard to expansion, the company has at least one team of individuals canvassing China looking for great locations for future McDonald’s.

In this show, McDonald’s found and built a restaurant on a relatively undeveloped plot of land on the outskirts of an industrial city. Why? Because McDonald’s had done its research and knew that within three months of the purchase or lease of that land, the local development authority would be approving a mixed-use high-rise community situated adjacent to McDonald’s Attorney Journal | Volume 119, 2013

25

new location that would house over 20,000 residents. So, sure, McDonald’s wanted the land to build a restaurant.

But if you were the owner of that land, wouldn’t you find it helpful to understand what motivated the selection of that site?

Armed with that knowledge, is it not reasonable to ask for a higher price in the negotiation process? That what in this instance is McDonald’s desire to acquire the property. The why, however, and a more thorough understanding of the why, is what would really drive the deal.

So listen and figure out what motivates the other side. It will give you a leg up in the negotiation.

2

L ead Them to the Water and Let Them Drink

A good negotiator knows you can lead a horse to water but you cannot make it drink. Despite your best efforts, the horse must drink on its own.

In litigation, our clients are often frustrated at the length of time it sometimes takes to settle a case out of court. Sometimes this frustration even boils over into demands that we speed the process up or make the other party sign or respond to an offer of settlement.

At the end of the day, however, no amount of complaining, yelling, or otherwise can make the other party sign an agreement.

In the end, you can negotiate the deal but the final negotiation— where you ultimately get the party to sign on the dotted line— well, that is all up to them.

You cannot hold their head underwater until they sign. But you can subtly remind them that every day the agreement is not signed they are just racking up more attorney’s fees. Heck, I like to even throw in a little humor, referencing the fact I will soon be sending two kids off to college, and I certainly don’t mind if they take their time; they are just helping with my kids’ college education fund.

So as in any negotiation, you must be tactful and subtle and lead them to the deal but always be mindful you cannot force a deal to be made. A strategy of repeated subtle influence in this regard is often required.

3

A ccent Morphing

Familiarity breeds comfort. Comfort leads to a heightened ability to get a deal done. Let’s face it; we are comfortable around those with whom we feel some common bond. Years ago, when we got out of a lengthy negotiation, my co-counsel turned to me and said, “Never realized you had a Southern accent before.” As the day wore on, my accent dissipated, and I returned to my normal manner of speaking.

Well, it seemed that I had, during the course of negotiation with the opposing counsel, started speaking in a slight to moderate Southern accent during our marathon discussions before a court in Western Virginia. The opposing counsel himself was a large, imposing Southerner much like Fred Gwynne’s portrayal of Judge Chamberlain Haller in My Cousin Vinnie. Well, it seems that somewhat subconsciously, after hours of stalemate in this heated discussion, I had started adopting the accents of the opposing 26

Attorney Journal | Volume 119, 2013

counsel and the judge, a local legend himself. I know this may sound crazy, but we traced when the ice broke in regard to the settlement talks back to around the time I started speaking in a more gentile, Southern manner.

And so began a practice of mine of sometimes morphing my accent, ever so slightly in some instances, more so in others, to create a bond of familiarity between myself and the person with whom I am negotiating. Now, I’m not saying if you are from the deep South and are negotiating with someone from Brooklyn, you should suddenly lose your drawl and go all Vinnie Barbarino on them. Rather, slight, almost imperceptible changes in your accent to mirror your opponent in the negotiation can create an unconscious feeling of familiarity with you without the other side even realizing it, to the extent that it can, and often does, assist in the negotiation of a deal.

4

V ilify, Unite, and Conquer

Often we are placed in a position that no one wants to be in.

A position that someone else has put us in. But the only way out is to negotiate a truce. This is often the case in law when you receive a preliminary ruling that does not support your case or, as is often the case, a ruling that makes trial more difficult for both parties. When this occurs, use the master technique of vilifying the third party, using it to unite those parties in the negotiation, and then conquer the deal through the aforesaid vilification and uniting of common interests.

For instance, we were once in a proceeding in which the judge made a ruling on evidence presented at trial by opposing counsel that was going to fundamentally change the outcome of the case.

It was evidence the opposing counsel had offered and, upon our objection, should have been denied but the judge was new, did not know this area of the law very well, and let it in over very stern objections. Even the opposing counsel was stunned it was received.

At the end of the day, all trial counsel agreed that the party offering the evidence was actually in a very bad position. They would likely now win the case, but because the ruling on that critical piece of evidence was simply wrong, we had an absolute grounds for appeal that would be victorious years later, with the matter most likely having to be retried at significant cost and expense.

So what did we do? Vilify, unite, and conquer. Realizing our good fortune, we quickly vilified the court to the opposing counsel, making it appear like the enemy. We established that all parties were now in the same boat, having been sabotaged by this bad ruling. And we settled the case, because no one wanted a three-year appeal that would result in a new trial four to five years from the date of the current trial.

Vilify, unite, and conquer. It won’t always be available for you.

But when it is, use it to get a deal done. n Matthew Swyers is the founder of The Trademark Company, a Web-based law firm specializing in protecting the trademark rights of small to medium-size businesses. The company is ranked No. 138 on the 2011 Inc. 500. @TrademarkCo

Is This Claim Covered?

Continued from page 23

the policy. If it involves a business liability policy, you need to also explore those facts that would establish that the conduct of the officer, director or employee was sufficiently connected to the covered business that would trigger the duty to provide a defense on the basis that the alleged unlawful conduct was by a named insured or persons covered under the policy.

It is important to keep in mind that insurance policies typically do not cover breach of contracts. Consequently, you must look to some tort liability theory to help trigger coverage.

In addition, you should also focus on the types of damages being sought, or potentially sought, by the plaintiff. Pure economic damages arising out of a breach of contract situation would not be covered. In contrast, if the insured was guilty of negligence and that negligence caused the claimant to suffer economic damages such as lost income, medical expenses, etc., those damages would be covered along with any bodily injury or property damages. Most liability coverage policies cover damages for bodily injury and tangible property. You should carefully read the allegations in the complaint. Pure emotional distress damages, without some resulting bodily injury damages, have been held by some courts not to constitute bodily injury.

However, bodily injury damages can include emotional distress damages. Pure economic damages like loss of market value do not constitute property damages unless there has been physical damage to tangible property.

After obtaining sufficient facts to trigger coverage, you should tender the defense to the insurance carrier as soon as possible. The policy should be read to determine if there are particular locations that a tender of defense should be sent to notify the carrier. Many people utilize insurance brokers to place their insurance coverages. Insurance brokers who work with a multitude of insurance carriers are considered the agent for the policyholder and not the insurer for most of their acts. Eddy v. Sharp (1988) 199 Cal.App.3d 855, 865. If you have difficulty finding the location to tender the defense, call the carrier or the insurance agent for that information. The insured is required to provide notice to the insurer in order to trigger its duty to defend. The tender may be either formal or constructive notice to the insurer. Good practice suggests that a written tender of the defense to the insurer should be made in order to document that actual notice has been given. No tender of a defense is required if an insurer has already denied coverage of the claim. In such cases, notice of a lawsuit or service of the lawsuit is excused because the insurer has already expressed its unwillingness to undertake a defense. Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 883. An insurer who denies a defense based upon late notice of the claim will bear the burden of establishing that it was substantially prejudiced by the delay in being provided notice of the claim. Select Ins. Co. v. Superior Court (1990) 226 Cal.App.3d 631, 637. That has proven to be a difficult burden to meet. Substantial prejudice has been found not to exist even when a default judgment was entered

before notice was given.

Most policies will also contain general terms and conditions that impose obligations on a policy holder during the pendency of the defense of a claim. You should review those general terms and conditions to insure that any special provisions that apply to your situation have been met. You do not want to provide the insurance carrier with a technical excuse to justify its denial

It is important to keep in mind that insurance policies typically do not cover breach of contracts. of coverage or withdrawing its defense.

In business situations, certificates of insurance are frequently provided to third persons. Certificates of insurance simply establish the existence of coverage but do not necessarily prove that the certificate holder is covered under the policy. A certificate of insurance can also name the certificate holder as an additional insured under the policy. In that situation, the certificate holder is also covered under the policy to the extent the policy provides coverage for the named insured.

TYPES OF LIABILITY COVERAGE – OCCURRENCE VERSUS CLAIMS MADE There are two basic types of liability insurance policies. Occurrencebased policies are much broader in scope of coverage than claims made. An “occurrence” is generally defined by the policy as an accident, including continuous or repeated exposure to substantially the same harmful conditions. So long as damage has occurred during the policy period, the policy is triggered. The policy will provide coverage even though the claim is not made until after the policy expires. Gilliam v. American Cas. Co. of Reading PA (N.D. CA 1990) 735 F.Supp. 345, 349, fn. 4. Because the insurer bears the risk of claims being made years later for acts or injuries which occurred during the policy period, occurrence policies are typically more expensive than claims made policies. Montrose Chem. Corp.

Of Calif. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 689).

The term “accident” as used in an occurrence policy is given a common sense interpretation. It is generally interpreted as “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

Delgado v. Interinsurance Exch. of Auto Club of Southern Calif.

(2009) 47 Cal.4th 302, 308. Therefore, the word accident in the coverage clause of a liability policy refers to the actual conduct of the insured for which liability is sought. The injury producing event is not considered an accident so as to trigger coverage “when all of the acts, the manner in which they were Attorney Journal | Volume 119, 2013

27

done, and the objective accomplished occurred as intended by the actor.” Delgado v. Interinsurance Exch. of Auto Club of Southern Calif., (2009) 47 Cal.4th, 302, 311-312. Whether an insured’s conduct and the injury the insured inflicted were “unexpected, undesigned and unforeseen,” is viewed from the insured’s perspective, and not that of the injured party. Id. at pages 308-309. Many courts have held that an accident can exist when either the cause is unintended or the effect is unanticipated. However, most of those decisions pre-date the California Supreme Court decision in Delgado v. Interinsurance Exch. of Auto Club of Southern Calif., which involved an assault and battery situation.

In contrast to occurrence policies, claims made policies cover only claims made against the insured while the policy is in effect. Abifadel v. Cigna Ins. Co. (1992) 8 Cal.App.4th 145, 159. Claims made policies were developed to “limit an insurer’s risk by restricting coverage to the single policy in effect at the time a claim was asserted against the insured, without regard to the timing of the damage or injury, thus allowing the carrier to establish reserves without regard to possibilities of inflation, upward-spiraling jury awards, or enlargements of tort liability after the policy period.” Montrose Chem. Corp. of Calif. v.

Admiral Ins. Co. (1995) 10 Cal.4th at 688. A claim in a claims made policy is typically defined as a “written demand for civil damages or other relief against the insured.” Unless the policy has a “prior acts exclusion,” a claims made policy provides retroactive coverage which means that it covers claims made against the insured during the policy period regardless of when the liabilityproducing act occurred. By contrast, an occurrence policy provides coverage, for acts or omissions that occur during the policy period, regardless of when the claims are made. Consequently, “claims made policies theoretically provide unlimited retroactive coverage, whereas occurrence policy offer unlimited prospective coverage.” Gilliam v. American Cas. Co. of Reading PA (N.D. CA 1990) 735 F.Supp. at 349, fn. 4. A prior acts exclusion in a claims made policy may exclude claims based upon acts conducted prior to the policy period. So long as the provision is conspicuous,

Any provisions that take away or limit coverage that is reasonably expected by the insured must be “conspicuous, plain and clear” to be enforceable. plain and clear, their validity has been upheld.

Ordinarily, a claims made policy does not cover claims which are first made after the policy has expired, even if the insured’s act or omission and the harm occurred while the policy was in effect. To address this situation, “tail coverage” is available to 28

Attorney Journal | Volume 119 , 2013

extend the time within which a claim may be made. Under that circumstance, the insurance protection is provided if the wrongful act took place during the policy year and the claims are made before the expiration of the extended reporting period under the tail coverage. Taub v. First State Ins. Co. (1995) 44 Cal.App.4th 811, 818.

Many claims made policies also require that the insured report such claims to the insurer during the policy period or within a short period of time after expiration. These types of policies are often referred to as “claims made and reported” policies. Absent such a provision, claims made against the insured during the policy period are covered although not reported to the insurer until after the expiration of the policy.

However, a delay in notice may be a defense to the enforcement of the policy under the conditions of coverage found in most claims made policies.

EXCLUSIONS OF COVERAGE Insurance policies contain various provisions that take away or limit coverage. Any provisions that take away or limit coverage that is reasonably expected by the insured must be “conspicuous, plain and clear” to be enforceable. De May v.

Interinsurance Exch. of Auto Club of Southern Calif. (1995) 32 Cal.App.4th 1133, 1137. The California Supreme Court has explained, “An insurer cannot escape its basic duty to insure by means of an exclusionary clause that is unclear ...

The burden rests on the insurer to phrase exceptions in clear and unmistakable language ... The exclusionary clause must be conspicuous, plain and clear.” State Farm Mut. Auto Ins. Co. v.

Jacober (1973) 10 Cal.3d 193, 201-202. In situations where an exclusion has been added to the basic policy form or by way of an endorsement to a policy that has been renewed, the insurer is required to provide notice of the reduction in coverage. “It is a long-standing general principle applicable to insurance policies that an insurance company is bound by a greater coverage in an earlier policy when a renewal policy is issued but the insured is not notified of the specific reduction in coverage. Fields v.

Blue Shield of California (1985) 163 Cal.App.3d 570, 578.

In general, while insuring or coverage clauses are interpreted broadly, exclusionary clauses are construed narrowly against the insurer. State Farm Mut. Auto Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 101-102. The burden is placed upon the insurer to prove that the exclusion applies. Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 880.

PRACTICAL TIPS FOR BASIC COVERAGE ANALYSIS Since the duty to defend is triggered upon the insured providing notice to the carrier, notice should be provided to the carrier of the claim as soon as possible. Many carriers will provide a defense even before it has conducted any investigation of the underlying claim or made a final determination on coverage.

However, counsel should be very sensitive about allowing the

Since most cases settle, the duty to defend can be more financially meaningful to your client than the duty to indemnify.

from its insured. Carriers are aware that any attempt to seek reimbursement from its insured for its defense costs will require the carrier to meet its burden of proof to establish that the defense costs were incurred solely for uncovered claims. Any defense costs that were incurred to defend both covered as well as uncovered claims will still be the responsibility of the insurer and reimbursement would be denied.

CONCLUSION insured to provide a recorded statement or to be interviewed by the insurance carrier before having a firm grasp of the underlying facts and the potential coverage defenses that might apply to deny coverage for your client. If coverage is tenuous, it may be wise to enlist the aid of an attorney who specializes in insurance coverage matters. It’s not simply the need to develop the basic facts of the claim; counsel needs to develop and investigate very early those facts that would trigger coverage and would impose a duty to defend upon the carrier and also to eliminate any applications of coverage exclusions or other coverage defenses to the extent possible. Since most cases settle, the duty to defend can be more financially meaningful to your client than the duty to indemnify. In fact, most cases that involve situations where the carrier defends the underlying claim under a reservation of rights will settle and the carrier will waive any right to reimbursement

After utilizing your unique knowledge of the anatomy of an insurance policy, you write to Allsnake and inform it that the plaintiff has amended the complaint to include a cause of action for negligence. You also pointed out that the off-roading exclusion does not apply because Crackhead had driven off the field and had driven across a parking lot and then through an abandoned building when the accident occurred. Investigation shows that Crackhead Craig was unaware of the presence of Eggshell Eddie as Crackhead drove off of the loading ramp at the warehouse. The collision was unexpected and unforeseen and therefore constituted an accident which is covered under the policy. Allsnake Insurance realizes its error and recognizes your superior skill as an attorney. It reverses its position and provides a defense for Crackhead and ultimately settles Eggshell Eddie’s claim. Once again, justice has prevailed and Crackhead Craig is singing your praises. n

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