Attorney Journal, San Diego, Volume 118

SAN DIEGO

Volume 118, 2013 • $6.95

Lawyer Gets Exactly What He Deserves

David Lorenzo

Ray Artiano Founding Partner of Stutz Artiano Shinoff & Holtz

Ending Elder Abuse

Christopher Walton Put Your Hurt Aside and Pick Your Words Carefully

Martha Newman Bigger and Bigger Changes, Redefining the Industry

Doug Gerstner

Professional Profile

Clayton Anderson Rising Star of the Month

Ahmed Diab

Mediator of the Month

Monty A. McIntyre

Stutz Artiano Shinoff & Holtz Law Firm of the Month

ERWIN J. SHUSTAK SHUSTAK & PARTNERS

Attorneys At Law WE REpRESENT: • Brokerage firms & financial institutions • Financial & investment advisors & financial planners • Defrauded investors (over $900 million recovered for our clients) • Companies & individuals in complex securities & business disputes Call or email us for a confidential analysis of your situation

ERWIN J. SHUSTAK, ESQ. • Top Rated Lawyer New York 2012 • Top Rated Lawyer San Diego 2013 • AV rated by Martindale Hubbell (highest level of professional excellence) • Named a “Top Influential for 2012” by The San Diego Daily Transcript • Named a Southern California SuperLawyer® in 2007, 2008, 2009 (securities & business litigation) • Selected as a “Top Attorney” of 2005 by the editors of The San Diego Daily Transcript • 36 years extensive legal experience

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To schedule a mediation, please contact our case manager, Sue Housh, at 619.239.2020 or sue@agreement.com.

2013 EDITION—NO.118

TABLE OF CONTENTS features MEDIATOR OF THE MONTH

6 Monty A. McIntyre

by Jennifer Hadley PROFESSIONAL PROFILE OF THE MONTH

8 Clayton Anderson

by Karen Gorden RISING STAR OF THE MONTH

6

10 Ahmed Diab

by Karen Gorden

12 COMMUNITYnews

EXECUTIVE PUBLISHER Brian Topor

15 Put Your Hurt Aside and Pick Your Words Carefully

EDITOR Nancy Deyo

How to Respond to a Colleague Caught Criticizing You

CREATIVE SERVICES Skidmutro Creative + Layout CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS David Lorenzo David King Keller Christopher Walton Doug Gerstner Martha Newman 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.

by Martha Newman

10

LAW FIRM OF THE MONTH

16

Stutz Artiano Shinoff & Holtz

by Jennifer Hadley

22 Ending Elder Abuse

June 15th Marks Elder Abuse Awareness Day; But Statistics Show That Elders Need Our Advocacy More Than Ever

by Christopher Walton

24 Bigger and Bigger Changes, Redefining the Industry

There are Bigger Changes Occurring that Will Redefine Our Industry

16

by Doug Gerstner

27 Lawyer Gets Exactly What He Deserves

by David Lorenzo

28 You’re In Sales, Get Over It

Here’s a New Way of Thinking About Selling to Get Over Your Resistance

by David King Keller

Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal.

Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement.

Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2013 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

Experience & Results Executive Presentations Proudly Congratulates Shernoff Bidart Echeverria Bentley LLP Young Wooldridge, LLP

Ricardo Echeverria, Esq.

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Scott D. Howry, Esq.

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PROBLEM

SOLVER Monty McIntyre Finds Possibilities for Parties, Answers for Attorneys and Satisfaction in Solutions

F

By Jennifer Hadley

or more than 30 years, Monty McIntyre has been a fixture within the San Diego legal community. He’s served as President of the San Diego County Bar Association, as a delegate in the American Bar Association House of Delegates, as a member of the Executive Council of the National Conference of Bar Presidents, and currently serves as Vice President of the San Diego Chapter of the American Board of Trial Advocates (ABOTA).

As a civil trial lawyer in San Diego, McIntyre has represented both plaintiffs and defendants in business, commercial, construction, insurance, real estate, serious injury, medical malpractice, wrongful death and tort litigation. And with more than 30 civil jury trials tried to conclusion, and more than 100 cases including jury trials, bench trials and arbitrations, suffice to say, McIntyre has had his share of time in front of decision makers.

But what he’s more concerned with these days is being a peacemaker.

He began serving as a San Diego Superior Court arbitrator in 1985 and was later chosen as “one of a select group of San Diego lawyers who were invited to receive mediation training by the American Arbitration Association in 1993,” McIntyre says. The training brought back to mind the reason McIntyre fell in love with the law in the first place. It would ultimately also serve as the catalyst for his gradual transition into full-time mediation, arbitration, and discovery referee work with the opening of The Mediation and Law Office of Monty A. McIntyre in January 2013.

IDENTIFYING PROBLEMS “I grew up during the Civil Rights Era,” McIntyre recalls. “I thought I wanted to go into politics to make better laws and a better society. I decided that, in order to do that, I’d better learn the law.” As it turned out, McIntyre loved the law. “I had a passion for it. I also began to see that too little was being accomplished by politicians, so instead I decided I would try to make improvements to society as an attorney,” he says.

For his countless clients over the years, McIntyre did, indeed, make a difference. For example, he obtained a $19 million settlement for a girl with a brain injury in a medical malpractice case. He’s also obtained millions of dollars in settlements and judgments in first-party, bad faith insurance cases. Yet, he always felt a greater sense of fulfillment through helping parties find closure. “As a mediator, I call upon my extensive civil 6

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trial experience in a number of areas. I’ve tried a lot of cases with great outcomes, but I feel like I’m helping more through mediation. I thoroughly enjoy guiding people to a successful resolution,” he explains.

PROVIDING ALL POSSIBLE SOLUTIONS For McIntyre, part of providing solutions means offering all possible avenues available to settle disputes. And with 20 years of experience as a mediator, McIntyre knows that “some cases need more of an evaluative approach, others need more of a facilitative approach,” he says. “It’s important to get a sense of who you’re dealing with and figure out what is going to work best for the parties involved.”

As much as he refuses to abide by a one-size-fits-all approach to mediation, or to exclusively offer mediation services, he is happy to provide arbitration services as well as discovery referee services.

In fact, he predicts that discovery referee services will become increasingly popular over time as more and more attorneys see that “court funding problems will result in continued delays,” he says. “I don’t think the budget cuts are going to go away even when the economy gets better. I think, over time, attorneys will be willing to pay for faster results. Instead of waiting four or five months to have a motion heard, they can be decided in 20-30 days,” he explains. “It’s a much more efficient process, and it is a tool that should probably be used more often.” Moreover,

“Referees must follow the law, and their decisions are appealable.”

JOURNAL

FEATURED MEDIATOR

OF THE MONTH

2013

attorneys like the fact that, unlike an arbitration which leaves very little room for appeal, “referees must follow the law, and their decisions are appealable,” he adds.

McIntyre has also found a way to distinguish himself in the mediation arena. With his Midnight Mediation™, McIntyre provides a new option for attorneys and their clients. This service is a “last-ditch effort before trial,” and McIntyre is happy to offer these spontaneous services which are scheduled from 9 a.m. to 5 p.m. on Saturday and Sunday. Part of the reason for offering this unique, last-minute service is due to McIntyre’s inherently positive outlook and belief that it’s never too late to settle a case.

“As a mediator, I believe my job is to be a Relentless Optimist™,” he says. In fact, he felt so strongly about this concept that he trademarked the phrase.

ANSWERS FOR ATTORNEYS McIntyre’s lifelong goal of providing solutions to society and its problems mandates that he keep current with California case law. As a challenge to himself last summer, he decided to summarize all civil cases in California every two weeks. “It keeps me current and disciplined,” he says. However, he wasn’t happy keeping his work to himself. On the contrary, he found a way to provide educational resources, including MCLE credits for fellow attorneys. “McIntyre’s California Civil Law Update provides succinct and organized summaries of all civil cases,” he says. Delivered free of charge every two weeks via email, it allows California attorneys to keep up with new civil cases

including those in their specialty practice areas.

For fellow attorneys looking to keep up with new civil cases while also earning their required California MCLE credits, McIntyre’s California Civil Law Update is also available as an audio version. For $180 per year, McIntyre’s California Civil Law Update provides attorney subscribers 7 California Participatory MCLE Credits each year. “Attorneys can download and listen to the summaries whenever and wherever they want to, on their computer, iPhone, iPad, or Android phone. By listening to the summaries, you will get great ideas for your cases. Plus, you will get all of your required general MCLE credits over three years,” McIntyre says.

In regards to the future, McIntyre plans to continue to focus on solutions. While his passion for law keeps him practicing as an attorney, he intends to move towards mediation, arbitration and referee work full time. Consequently, it’s not surprising that this Relentless Optimist™ has positive expectations for his future work. “I love being creative, I love growing and learning, and I really love ultimately finding a solution to seemingly irresolvable disputes. It’s good for parties, and it’s good for me,” he says. n Contact: The Mediation and Law Office of Monty A. McIntyre www.montymcintyre.com | www.montymcintyre-law.com monty.mcintyre@gmail.com | 619.990.4312 501 West Broadway, Suite 1330 San Diego, California 92101 Attorney Journal | Volume 118, 2013

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FROM THE GROUND UP JOURNAL

FEATURED PROFESTSHIOENMAOLNPTROFILE OF

2013

H

Clayton Anderson’s Construction Defect Practice Is Built upon a Foundation of Experience, Expertise and a Constant Source of Clients.

By Karen Gorden

W

ith more than 30 years of experience in construction defect law, Clayton M. Anderson, Senior partner of Clayton M. Anderson & Associates, has certainly seen his share of changes in the housing market. Through the booms and the busts, if there is one thing that is certain in his field, it’s that the only constant is change. Yet these changes have proven time and again to result in a consistent caseload for the 1976 graduate from the University Of San Diego School Of Law. In fact, today, roughly five years after the unprecedented building boom came to a crashing halt, Anderson admits that he is “still cleaning up the mess” that resulted from properties which he says “never should have been built,” due to poor craftsmanship and mismanagement by development companies whose “only goal 8

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is to close escrow.” However, those homes were built and as a result, countless homeowners have paid the price in terms of cost and stress due to defects in the home’s construction.

Fortunately for those homeowners, though, Anderson’s contingency fee based practice is rooted in decades of experience and subsequent expertise, resulting in millions recovered for homeowners.

Evolving Experience & Resulting Expertise At first glance, Anderson may seem an unlikely sort to become an attorney. After all, he did spend his initial years after college as a journalist, even being tear-gassed in Berkeley, covering war protests in the early 1970’s. But he

soon realized that he possessed marketable skills-including an extensive writing background-that served as a powerful tool to accompany his entrepreneurial spirit. “Being a lawyer is the ultimate entrepreneurial experience,” he says.

As such, after graduating from law school, he admits that after a few years of working for real estate firms in the late 1970’s, Anderson was ready to go on his own, and launch his own practice, which he did in 1982. “It was a boutique field at the time,” he recalls. Much of his work in the 1980’s involved work with HOAs and he chuckles when remembering one of his early cases involving 80 condominiums. “We settled for about $80K, which was real money at that time.”

But by 1991, Anderson began looking for other cases that would allow him to put to use the expertise he’d acquired in his 10+ years of battling for homeowners’ rights. He found a niche market with individual homeowners. “With individual homes, you don’t have a shared roof, for example, that you have in condos. Single family residences require you to work with experts to investigate each home,” he explains. His success as one of the few attorneys who were working on cases involving “10, 20, 30 homes at a time,” further solidified his expertise in the niche field.

In the 1990’s, he also found another niche working as a plaintiff’s attorney for clients who had bought condo conversion projects. “The conversions were a scam. People were buying apartments, giving them minimal upgrades and then selling them,” he says. Suffice to say the condos were wrought with construction defects, and Anderson became the go-to-guy for helping those who had been scammed.

While he admits that the construction defect field became crowded in the 1990’s, very few attorneys devoted their entire practice to the work. “There are a lot of attorneys, very good lawyers who dabble in the field,” he says. But there are only a handful who have been working exclusively in the field, and even fewer who have the experience of “more than 40 trials, and more than 2 dozen cases where more than $1 million has been recovered,” he adds.

Constant Caseload In today’s market, Anderson remains busy helping homeowners who became victims of overbuilding and the subpar construction that has become synonymous with many homes built in the early 2000’s. From defective condo conversions to million dollar homes, Anderson attributes the sheer volume of construction defects to the lack of skilled labor, virtually no regulation on inspections, and looks which are deceiving.

“We’ve been working on a case of an $11 million dollar home that has a patio pulling away from the house, and an infinity pool that won’t hold water,” he says.

The steady flow of work is to be expected of course, in a field where the market is constantly in a state of flux. For example,

“I GET GREAT SATISFACTION IN WORKING WITH OTHERS AND HELPING TO GET A GOOD DEAL FOR THEM,” during the construction boom leading up to 2008, “2 million housing units were being built each year in the nation. California was building 10% of that, and about 20% of those homes have problems. That means that 30-40,000 homeowners need help and only a fraction of them get the help they need,” he says. But getting them the help they need is precisely what keeps Anderson fulfilled. “I get great satisfaction in working with others and helping to get a good deal for them,” he says. Specifically, he adds, “We can provide the services people need; we will front the money, so that they aren’t stressed out by the bills.”

Given Anderson’s tenure in the field, it’s not surprising that he’s quick to point out that surrounding himself with other highly specialized experts has played a significant role in his success. “Our paralegals are highly trained. They are not drafting wills one day, and then coming back to work on defect cases. They are highly specialized, and building these cases is a real art,” Anderson says.

He also credits his sheer longevity in the field for having given him an understanding of insurance companies, and forcing him to “bring a lot of patience” to each case. But it’s a field that Anderson loves, and he plans to continue to run his La Mesa practice with attorneys Bradley Schuber and Gerald Sherwin, and his separate, Sacramento-based construction defect practice, Anderson & Schoech, in much the same way he always has. By nature, the plaintiffs firm is kept “pretty lean,” Anderson says, “we employ about 10 attorneys up and down the state.”

As for the immediate future, Anderson is focused first and foremost on continuing to help clients who were victims of faulty construction during the last boom. But after so many housing cycles, he’s learned to predict what’s coming next. And it seems only a matter of a few years before there’s another big swing in the housing market, ensuring that his practice stays busy for years to come. n Contact: Clayton M. Anderson & Associates 619-589-8800 www.a-k.com | canderson@cma-a.com 8220 University Avenue, Second Floor La Mesa, CA 91942-9321 Attorney Journal | Volume 118, 2013

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JOURNAL

FEATURED RISING STAR

OF THE MONTH

2013

AHMED DIAB

Rising Star

By Karen Gorden

“I don’t think anyone wakes up as a kid and says ‘I want to do insurance subrogation when I grow up,’” Ahmed Diab says with

a chance. At the time I didn’t know whether I actually wanted to be an attorney, but I figured that law school would provide me with career options even if I didn’t want to be a lawyer. It wasn’t until I took an internship and was actually out in the field that I realized that I wanted to be a litigator,” he explains.

a chuckle. Yet, just five years after earning his J.D. from California Western School of Law, not only is Diab working in insurance subrogation, but he has been hand-picked by one of the nation’s leading subrogation attorneys to helm the San Diego office of Stutman Law. Instead, Diab always assumed he’d go into the medical field.

“I come from a family that is entrenched in the medical field.

My dad is a doctor and my mom is a nurse. My father is from Egypt and my mother is from South Korea. They even met at the hospital where I was eventually born,” he says. However, as Diab was finishing his pre-med requirements, he realized that it was not something he was passionate about. Still, “my parents had looked to America as a place where I could get a great education. They sacrificed a lot to uproot their lives to give me

Once he got that experience, he knew he’d found the right path. “The nature of litigation was just something that suited my personality,” he says. However, he’s quick to acknowledge that he received incredible mentorship and opportunities that not all young attorneys get. As an associate with Green Bryant & French, LLP, Diab was mentored by Joel Bryant, whom he credits with giving him the experience he needed to helm the San Diego office of Stutman Law. “For many young attorneys, like myself, being in trial is kind of like Oz—a place that you think exists and you always hope to go to, but never really do.

I was fortunate to work with Joel Bryant for several years, and he made it a point to allow me to second chair his trials with him,” Diab says.

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A PREFERENCE FOR PLAINTIFFS

Five Years Into Practice, Diab Becomes Managing Attorney of San Diego Office of Nation’s Largest Subrogation-Only Firm “Being in trial allows you to see why you’re doing what you’re doing with depositions. I’m so much better of a lawyer for having done so,” he says. His hard work and increasing experience was obvious to others as well. As a result, his colleagues and even former opposing counsel nominated him for the Daily Transcript’s Top Young Attorney award, which he earned in both 2010 and 2012.

Moreover, his hands-on experience taking depositions for elder abuse and personal injury cases helped prime him for his transition to subrogation. “Robert Stutman was amazed to see I’d already taken nearly 200 depositions in my career,” he says.

Likewise, his work on financial elder abuse cases had allowed him to go against large financial institutions that took advantage of the elderly, which would serve as valuable experience for his work at Stutman Law. Although Diab loved the elder abuse work, when he was approached to transition to subrogation, he admits his interest was immediately piqued. “With elder abuse law, you may get the case a full year after the events. In subrogation, I still get to do plaintiffs’ work, and I get to see the case through from day one,” he says. “There is an element of urgency, for example when there is a fire loss. It’s taught me so much about the importance of early investigation. It also keeps it exciting,” he adds.

Diab is also thrilled with the variety of cases that he is bringing into the newly opened San Diego office. He sheepishly admits “I sometimes lose interest in things quickly,” so the opportunity to work on such diverse cases ranging from mass tort to single property subrogation cases appealed to him. He also explains that “working with Stutman would allow me to go up against high caliber opposing counsel,” which he says, “can’t help but make you a better attorney.”

FUTURE PROJECTION: UNLIMITED POTENTIAL One of the reasons that Stutman Law’s future on the West Coast looks so bright can be traced to the fact that the firm is devoted exclusively to subrogation. While there are firms who do insurance subrogation in San Diego, many of them also do insurance defense. Diab felt extremely comfortable knowing

that “Subrogation is all we do. We are always the plaintiff, so we never have to take contrary positions in court. Focusing on subrogation allows us to always keep our clients’ interest first.”

A second reason Diab is projecting rapid growth for Stutman Law on the West Coast lies in the very unique structure of the firm. “We have different departments, which are like sub-specializations,” Diab says. These include a new loss department, wherein cases begin on day one, a small loss department, mass tort department and a large loss department.

“We take cases of all sizes, but obviously you don’t litigate a $6,000 case,” Diab says. That’s where the company’s expertise in mass tort comes into play, he explains. “We are able to push manufacturers to settle suits in groups because of the expert negotiators and litigators in our mass tort department,” he says.

But make no mistake; Stutman Law is not a small case firm, routinely obtaining seven and eight figure results for their clients. With more than 60 different insurance companies as current or past clients, “we represent the Travelers’, the Liberty Mutual’s, the Mercury’s, the AAA’s, big clients,” Diab says.

Indeed, since the firm’s inception in 1995, Stutman Law has handled thousands of property subrogation cases, has brought claims against almost every major product manufacturer in the country and has tried hundreds of property subrogation cases.

Having five offices across the country also allows the firm to actively litigate wildfires and other similar catastrophic losses throughout the country.

For Diab, the potential for growth in California seems unlimited.

The San Diego office is already extremely profitable after just 7 months, and the firm is opening a third West Coast office in San Francisco this month, which Diab will also be instrumental in overseeing. “We plan to expand rapidly in California, and will be hiring additional attorneys soon,” he says. n Contact: Ahmed Diab, Esq. Stutman Law 750 B Street, 33rd Floor, San Diego, CA 92101 www.stutmanlaw.com | diaba@stutmanlaw.com 619-937-6272 ext 210

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COMMUNITY news nA San Diego man represented

by Mike Bomberger of Estey & Bomberger has received $3.5 million after being struck and run over in a Costco parking lot by an elderly driver. Miguel Rodriguez, 49, suffered broken bones throughout his body and a punctured lung as a result of the accident, which occurred in March 2010, according to the San Diego Police Department’s accident report.

MIKE BOMBERGER “This accident was the result of an elderly driver who mistakenly pressed the accelerator rather than the brake. Unfortunately, this accident scenario is not uncommon for elderly drivers,” said Bomberger. “There’s a strong need for elderly drivers to maintain their independence. But such needs must be balanced against public safety and the multiple accidents and serious injuries that occur as a result of elderly driving errors.”

We believe there should be more frequent testing for elderly drivers to ensure their ability to drive safely and to protect the public from such tragic accidents.” Estey & Bomberger is currently representing people in three separate cases that involved devastating injuries from elderly drivers. n Steven Strauss of Cooley LLP in San Diego is representing the family members of Junior Seau, who recently brought a wrongful death suit in California state court against the National Football League and helmet maker Riddell Inc., claiming the brain trauma that the famed former linebacker suffered on the field led him to commit suicide.

STEVEN STRAUSS The complaint asserts that Seau developed chronic traumatic encephalopathy after being hit repeatedly in the head over the course of his football career, and that although the NFL was aware of the evidence and risks associated with repetitive traumatic brain injuries for many decades, it deliberately ignored and hid the information from its players. nHiggs Fletcher & Mack announces the hiring of new partner James (Jim) J. Eischen, Jr. With more than 25 years of legal experience, Eischen is a national expert in medical physician reimbursement compliance who represents a variety of medical practices and health care IT companies across the U.S. and internationally.

Regularly utilized by the American Association of Private Physicians (AAPP) to lecture on medical compliance

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issues for the last four years, Eischen is expanding his physician compliance outreach to integrative/ holistic education conferences both locally and nationally. Mr. Eischen also maintains a health news aggregation service for physicians that is utilized by the AAPP. His background also includes JIM EISCHEN 24 years of dispute/litigation expertise involving corporate, real property and commercial litigation as well as transactional representation for commercial and residential real estate developers.

Prior to joining Higgs, Eischen maintained a successful practice, the Eischen Law Group. He earned his undergraduate degree from Creighton University and his Juris Doctorate from the University of California at Davis. nErwin J. Shustak and Jennifer S. Hegemier have been selected by San Diego Magazine as “Top Lawyers in San Diego.” Erwin was honored for his excellence in Securities, Finance and Complex Business Litigation and highlighted as one of San Diego’s “Top Attorneys That You Need to Know.” As the founding and managing partner of Shustak & ERWIN SHUSTAK Partners, Erwin’s trial and arbitration experience includes business, securities, and financial fraud; breach of contract; real estate transactions and disputes; employment disputes; unfair competition, non-compete and restrictive covenant cases; probate and estate disputes and intellectual property disputes including copyright and trademark infringement.

Jennifer Hegemier was honored JENNIFER HEGEMIER for her excellence in Civil Appeals and Writs. Jennifer heads the firm’s Appellate Practice Group with 18 years of expertise in a wide variety of issues on appeal, including Complex Business Litigation; Real Estate and Land Use; Bankruptcy; Civil Procedure; Civil Rights; Commercial Contracts; Constitutional Law; Environmental Law; Governmental Agencies: Construction Defect; Anti-SLAPP; Personal Injury; Premises Liability; Animal Law; Family Law; Insurance / Bad Faith; Labor and Employment; Products Liability; Intellectual Property; Professional Malpractice and many others.

COMMUNITY news nJohn H. Gomez, Founding Partner and Lead Trial Attorney for Gomez Iagmin Trial Attorneys, has been selected as a member of the Summit Council, an exclusive group comprised of top civil justice attorneys in the United States.

Summit Council members are nationally recognized by their peers as top civil justice advocates. All JOHN GOMEZ members have obtained at least one $10 million dollar jury verdict and at least three jury verdicts in excess of $1 million dollars as lead counsel in jury trials, have served as the President or Chair of a state or national civil justice association, or have served as Chair of a plaintiff’s steering committee for a major mass tort or class action litigation. Gomez Iagmin Trial Attorneys is a plaintiff’s law firm specializing in serious personal injury, wrongful death, complex product liability and mass torts. nFish & Richardson has been named to The National Law Journal’s (NLJ) “2013 Intellectual Property Hot List” as one of 20 firms “that have demonstrated creative, formidable talent in litigation, patent prosecution and dealmaking” in cases that “often have billions at stake.” This is the second year that Fish has been named to ANN CATHCART CHAPLIN the NLJ “IP Hot List,” which the publication started in 2012.

“We are honored to once again be recognized as one of the best IP firms in the country,” said Ann Cathcart Chaplin, Litigation Practice Group Leader at Fish & Richardson.

The NLJ noted that Fish retained its long-held title for filing more patent litigation than any firm nationwide and played a leading role in a number of precedent-setting intellectual property cases in 2012. Fish’s 2012 wins include: a landmark victory for Mayo Clinic at the U.S. Supreme Court, an en banc Federal Circuit win for W.L. Gore that clarified a twoprong test for establishing willful infringement, and a Federal Circuit win for Cephalon that protects their $140 million a year AMRIX drug until 2024 and set a new legal standard for proving patent invalidity in Hatch-Waxman cases.

nKlinedinst PC is pleased to announce the addition of Jamie M. Ritterbeck and Floyd A. Brown to the San Diego office of Klinedinst PC. Ms. Ritterbeck joins the business litigation team, and will work primarily with Shareholder James D. Crosby on complex and general business litigation cases.

Prior to joining Klinedinst, Ms. FLOYD BROWN Ritterbeck worked for a busy litigation defense firm in Newport Beach where she handled all phases of litigation, from discovery and depositions to settlement negotiations and court appearances.

Ms. Ritterbeck earned her law degree from the University of San Diego School of Law and her undergraduate degree from Florida State University. While in law school, JAMIE M. RITTERBECK Ms. Ritterbeck interned at the USD School of Law’s Appellate Clinic, where she successfully represented her client before the Ninth Circuit Court of Appeals and the Board of Immigration Appeals, resulting in her client’s release from federal custody. As a result of her outstanding work, Ms. Ritterbeck was honored as the Outstanding Clinic Intern.

Floyd Brown will work primarily with the employment law, construction, and real estate practice groups. Mr. Brown has a wide range of litigation experience, including law and motions, drafting and responding to discovery, meeting and conferring with both counsel and clients, and managing client communications.

Before being elevated to an attorney, Mr. Brown worked as a litigation paralegal with Klinedinst, supporting all phases of litigation, from legal research, document review/management to witness interviews, and trial support.

Mr. Brown graduated law school from Thomas Jefferson School of Law. Prior to law school, Mr. Brown served in the United States Air Force for 23 years, retiring as a Technical Sergeant. While in the Air Force, Mr. Brown served as a noncommissioned officer, and defense paralegal in the Air Force JAG Corp. Mr. Brown served in locations around the world, including Germany, Cuba, England, Bosnia, and is a Gulf War Veteran.

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Attorney Journal | Volume 118 , 2013

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Put Your Hurt Aside and Pick Your Words Carefully

By Martha Newman Martha M. Newman is a professional attorney coach who guides lawyers through business development, career advancement, and transitions.

She is also the author of Top Lawyer Coach, a dynamic website devoted to lawyer marketing, networking, and professional practices.

In my attorney coaching sessions, clients come to me asking how they should respond to a colleague who was caught criticizing them. It’s stunning and hurtful, to say the least—but a situation like that should not be swept under the rug. There are feelings involved. And trust.

The first thing I tell clients in this situation is: Put your hurt aside. Next, I recommend they examine the real reason they want to confront the co-worker who was talking about them. What is the ultimate goal? Is it to...

• Get more information about what the co-worker said?

• Tell the co-worker to stop chatting and criticizing?

• Explain your side of the story?

You don’t want to over-react, yet you also don’t want to miss an opportunity to glean information about yourself—albeit difficult.

Develop a clear strategy of what you want to accomplish, then set out to have the conversation in person. E-mail is not the venue for this situation as words and tone can easily be misconstrued.

Here was some words and phrases you can use without sounding overly defensive.

“I overheard you and Beth discussing my contribution to the meeting. I want to explain why I took that approach so you are clear about my motivations.”

“I understand that you have some reservations about my contribution to the meeting. Can we meet for lunch to discuss this?

I’d like to make sure you are clear about my direction.”

“Since you and I work together every day, let’s discuss my work style so you have a better sense of what to expect from me and why.”

Notice the absence of confrontation. Steer clear of strong language that may create an even more adversarial relationship.

Ideally, you want to give the other person an opportunity to discuss the issue with you and clear up any misconceptions. n Attorney Journal | Volume 118 2013

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MASTERFUL

MOSAIC

By Jennifer Hadley

“S

uccess should not be measured in numbers. Success should be measured in terms of client satisfaction and employee satisfaction,” says Ray Artiano, founding partner of Stutz Artiano Shinoff & Holtz, APC. As one of San Diego’s oldest mid-size law firms, which are not branches of national firms, this modus operandi appears to be working exceptionally well for the 40-attorney firm.

Founded in 1982, the firm has remained intentionally “small by national standards, but mid-size by San Diego standards,” Artiano says. However, the recognition that the firm and its individual attorneys has received clearly demonstrates that the quality of work clients receive is on par with the biggest firms in the nation.

“About 10 years ago, Corporate Counsel Magazine named us one of the top five firms in San Diego,” says Artiano. “Usually you don’t see that sort of recognition, with a firm of our size,” he adds. Indeed, the other four firms on the San Diego list were much larger. However, it served as testament to the fact that Stutz Artiano Shinoff & Holtz’s business philosophies and strategies had materialized into a firm which people had taken notice of. The same remains true today, as the company was just named a “Go-To” Firm by The American Lawyer for 2013.

“Family, not your job, comes first” To this day, Artiano is adamant that the firm’s focus on family/ work balance, its atmosphere of teamwork, and the strength of its individual attorneys are the reasons for the firm’s success.

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More specifically, it is the reason that Stutz Artiano Shinoff & Holtz has represented so many public entities including cities, municipal districts, colleges, school districts, publicly held corporations and small businesses for so long.

Putting The Pieces Together From the get-go, Stutz Artiano Shinoff & Holtz’s founding partners insisted upon diligent mentorship and training within the firm. “Since the inception of the firm, each associate has been assigned a partner or supervising attorney to serve as a mentor,” Artiano says. “The supervising attorney is responsible for developing the associate, making sure they are being given the right types of assignments, and assisting with problems which he or she may have,” he continues. “We have found that it is really important for the growth of the attorney.”

As a result of the mentoring program, associates “are awarded more responsibility on case files, direct client contact and more opportunities for development as an attorney.” Artiano says, “We don’t want our associates to feel as if they are merely being given research assignments.” On the contrary, Artiano and his partners have worked hard to build a firm at which “our clients will feel equally as comfortable calling any of our associates, as they would feel calling a partner.”

To that end, when the firm does hire new attorneys, there are a few demands that prospects must meet. For Artiano, that means he “only hires people who have the potential to be a better lawyer than you,” he says. But that also means that attorneys with Stutz Artiano Shinoff & Holtz “can’t take themselves too seriously. Family, not your job, comes first,” Artiano explains.

Strengthening Bonds Stutz Artiano Shinoff & Holtz’s emphasis on offering its associates a high quality of life, both in the office and out, has

Stutz Artiano Shinoff & Holtz, APC’s Collective Strengths Have Created a Portrait of Client Confidence

LAW FIRM

OF THE MONTH

22013 20 013 13

LEFT TO RIGHT: LESLIE E. DEVANEY, RAY J. ARTIANO, JAMES F. HOLTZ AND LESA WILSON.

resulted in a cohesiveness that has proven to strengthen the firm as a whole. “There is a great deal of camaraderie among the associates which we strongly encourage. There is not the jealousy that you often see in very large firms,” Artiano says. This type of teamwork environment is supported, Artiano says, by an extraordinary support staff.

“It is obvious that in order to be successful as a law firm, you need to have top notch attorneys. Having top notch support staff, however, is also critical. From the receptionist who answers the phone and interacts with clients on a daily basis; secretaries who are instrumental in ensuring high quality finished products, dealing with court personnel as well as clients on a daily basis; paralegals, without whom litigators would be unable to function; the controller and accounting staff; and the office administrator who makes the job of the managing partner manageable; we have incredible longevity among our support staff,” he says.

Part of the reason for the long term loyalty and retention Stutz Artiano Shinoff & Holtz has realized is due to the firm’s emphasis 18

Attorney Journal | Volume 118, 2013

on showing appreciation. “When we are successful at trial, it is the entire team which is recognized,” he says. Periodic gifts, staff lunches, staff outings, and firm support for local and national organizations are also just part of the firm’s effort to create a harmonious work/life balance for its more than 30 support staff members.

It’s no secret that happy employees are productive employees, and in the case of Stutz Artiano Shinoff & Holtz, the proof is in its collective track record, which is an accumulation of the track records of individual attorneys. Indeed, Artiano is quick to point out that one of the main reasons that its clients have been with the firm for more than 30 years is due to the strengths of the firm’s partners.

With nearly 30 years of experience practicing law, Dan Shinoff is widely regarded as one of the most prominent education attorneys in California. Partner Lesa Wilson serves as co-chair of the firm’s employment litigation group and was recently named to the The American Lawyer’s Women Leaders in the Law list, along

“We view ourselves as problem solvers who are able to offer unique solutions to many challenging issues.” with Leslie Devaney. Devaney has a long tenure working as city attorney for Murrieta and Del Mar, and is well-known as one of Southern California’s most respected attorneys in the public entity practice area. Jim Holtz has been named a Super Lawyer for the years 2008 through 2013, and is recognized statewide as an insurance litigation expert.

The bragging rights go on and on. Christina Cameron, who practices in the firm’s Municipal Law and Government Relations Group, serves as General Counsel to the San Diego Ethics Commission. Partners Jack Sleeth Jr. and Paul Carelli handle appeals for the firm with remarkable success. Notable appellate court cases include: Johnson v. Poway Unified School Dist. (2011) 658 F.3d 954; Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, Cal.Rptr.3d 210; Austin B. v. Escondido Union Elementary School District (2007) 149 Cal.App.4th 860, 57 Cal.Rptr.3d 454; Martinez v. Regents of the University of California (2010) 50 Cal. 4th 1277; Carter v. Escondido Union High School District (2007) 48 Cal.App.4th 922, 56 Cal. Rptr.3d 262.

As for Artiano, in addition to serving as Managing Partner, he focuses his practice primarily on employment litigation. Thus far, Artiano has personally tried more than 30 employment related cases to a jury in his 30+ years of practice. “Employment litigation has been evolving quickly since the 1980’s. Following the Clarence Thomas hearings, there was an upsurge of employment related claims, especially in the sexual harassment area, and very few attorneys in San Diego were really specialists in the area. I found the area of employment litigation provided many novel and intellectually challenging issues,” Artiano says.

Today, “90% of my practice is employment litigation, with 80% of that being on the defense side,” he adds. Of course, there are natural cross-overs with the firms’ other core areas, and as such, the bulk of his caseload is in public entity employment law. Fortunately, his experience representing both employer and employee has allowed him to better evaluate the strengths and weaknesses of each side of any case.

Presenting The Big Picture Stutz Artiano Shinoff & Holtz does try a lot of cases, and “we’ve had excellent trial results,” Artiano says. “We guard carefully against surprises, especially in litigation. The best way to lose a client is to change your thinking on the eve of trial,” he adds. Even so, Artiano says “Sometimes facts develop through discovery

THE DEDICATED STUTZ ARTIANO SHINOFF & HOLTZ SUPPORT STAFF.

which require a reassessment of the strengths, weaknesses or potential value of the case. When that happens, communication with the client is immediate. An attorney can’t change facts, but must be able to counsel clients and adapt to whatever curve balls are thrown.”

However, even with a proven track record for success in court, Artiano is quick to point out that his team puts a tremendous amount of effort into training clients, so as to avoid litigation wherever possible. “We view ourselves as problem solvers who are able to offer unique solutions to many challenging issues,” he says. “We are very proactive in training our clients, which helps us to put them in a place so that they are not in the position of litigation,” Artiano says. But for added measure, clients are also given the cell phone number of every attorney on their team, so that an expert on their case is reachable 24/7.

The decision to give personal cell phone numbers to clients is just one example of how much emphasis Stutz Artiano Shinoff & Holtz places on continual communication with clients. “We approach each matter, whether it be litigation or transactional, as an open partnership with our clients, where objectives and goals are clearly defined at the outset. All of our attorneys recognize Attorney Journal | Volume 118, 2013

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Contact: Ray Artiano RArtiano@stutzartiano.com www.stutzartiano.com | (619) 232-3122 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106 20

Attorney Journal | Volume 118, 2013

EXPERIENCE

that there are times when they must be ready to give advice which clients don’t want to hear,” Artiano says.

Yet, “it is our responsibility to protect our clients’ best interests at all times, and our client retention rate seems to show that we’ve done that successfully for many years. Clients appreciate direct and objective advice.”

An Enduring Work… Still In Progress As a far as the future of the firm goes, Artiano looks to its past success to predict the future of the firm. “We are extremely proud of the fact that nearly all clients who were with us at our inception remain loyal clients today,” he says. In fact, when meeting with potential clients, one of the firm’s greatest strengths lies in the length of the relationships it has maintained with clients. “We’ve retained virtually every public entity client we’ve ever worked with,” Artiano says of the firm’s glowing references.

Naturally, the firm intends to grow, but only to attain specific goals. “Over the next five years, our firm growth will probably be in different practice areas. We have recently added a Trust and Estates attorney and expanded the scope of our client services to include a real estate division which is led by Barry Schultz and a public works department headed by partner Bill Pâté.

We will probably add others with corporate and/or tax backgrounds to round out our practice. I also believe we will continue to grow in the public sector, especially in Riverside and Orange Counties,” he says. However, with five existing offices, including those in Las Vegas and Los Angeles, “we are trying not to expand further, geographically,” Artiano says.

As for the size of the staff, the firm is comfortable with its current size of approximately 40 attorneys.

Yet, the firm is always interested in nurturing new talent. As an adjunct professor at Thomas Jefferson School of Law, Artiano is always keeping an eye open for promising young attorneys. Not surprisingly, two of the firm’s new hires were the valedictorians of their classes whom Artiano had taught.

However, when Artiano looks at the big picture, his decision to hire will always be contingent upon the firm’s ability to ensure a healthy, harmonious work environment for its team members, and more importantly, top tier service for its existing and new clients. “We will not grow just for the sake of growth.

Our emphasis is on quality and client satisfaction.” n

» EDUCATION • University of San Diego, J.D., 1979 • Boston University, magna cum laude, 1975

» HONORS/AFFILIATIONS • Member, American College of Barristers • Board of Directors, San Diego Defense Lawyers Association, 1999-2002 • Member, Business Advisory Council of the National Republican Congressional Committee • President, San Diego Defense Lawyers Association, 2001 • Member, Federation of Defense and Corporate Counsel • Member, Presidential Business Commission • Member, American Board of Trial Advocates • Adjunct Professor, Employment Litigation, Thomas Jefferson School of Law • Member, Defense Research Institute • Member, Professional Liability Underwriting Society • Member, Association of Southern California Defense Counsel • Member, San Diego County Bar Association

Business Disputes Mass Torts Product Liability Serious Personal Injury Wrongful Death

THE BAR HAS BEEN RAISED.

Committed to extraordinary results, for ordinary people.

Yolanda s. Walther-Meade 619.237.3490 655 West Broadway | Suite 1700 San Diego, CA 92101

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Attorney Journal | Volume 118, 2013

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W

ith June 15, 2013 marking World Elder Abuse Awareness Day, it affords us all a timely opportunity to remember why we got into this profession. Obviously, I’m not implying that we all pursued legal careers to protect the elderly. But, we were driven in one way or another, by a passion for advocacy, weren’t we? It doesn’t matter whether we are defending a large insurance company, or an individual who has been injured; our job is to serve as an advocate. Yet when it comes to matters of elder abuse, our responsibility extends beyond our profession; we have a responsibility to the generations who came before us to ensure that they are treated with dignity and respect as they age.

LAWS & STATISTICS

Ending Elder Abuse June 15th Marks Elder Abuse Awareness Day, But Statistics Show That Elders Need Our Advocacy More Than Ever.

By Christopher Walton, Esq.

Christopher C. Walton is the founder of Walton Law, APC, a San Diego based law firm dedicated to advocacy for elders who have suffered neglect or abuse.

Chris can be reached at (619) 233-0011 or via email at cwalton@waltonlawapc.com.

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Unfortunately, statistics indicate that hundreds of thousands of seniors are abused and neglected each year. Not only does neglect and abuse run rampant within the walls of nursing homes, but according to the Department of Health and Human Services, elders lose an estimated 2.6 billion annually as a result of financial exploitation. According to the National Center on Elder Abuse, Bureau of Justice Statistics, in 2010 alone, nearly 6 million cases of elder abuse were reported in the United States. That equates to nearly 10% of the elderly population reporting neglect or abuse. If 10% weren’t alarming enough, the numbers are likely even worse, as the NCEA estimates that as few as 1 of 14 cases of elder abuse are ever reported.

As concerning as those numbers are, the numbers of elders being abused in some form is only predicted to climb as baby boomers continue to age and life expectancies increase. This massive generation (which currently accounts for roughly 78 million Americans) is predicted to more than double the population of senior citizens from approximately 40 million to roughly 89 million over the next 30+ years. Indeed elders will comprise a full 18% of the population when the last of the baby boomers reaches the age of 65 in 2030.

To address this growing concern, in 1991, California enacted a statutory scheme aimed at providing greater protection to our elders. With the enactment of the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the Legislature declared that infirm elderly and dependent adults are a disadvantaged class and that few civil cases are brought in connection with their abuse due to problems of proof, court delays and the lack of incentives to prosecute. The Legislature further expressed its desire to direct special attention to the needs and problems of elderly persons, recognizing that they constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment. Welfare and Institutions Code §15600.

Indeed, the civil justice system has been forced to step in, as more and more elders reside in nursing homes, which are increasingly being run by for-profit corporations. With a focus on profit, problems often arise as some seek to put revenue ahead of safety. Thankfully, “abuse” is broadly defined under Welfare and Institutions Code §15610.07, as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering; (b) deprivation by a care custodian of

goods or services that are necessary to avoid physical harm or mental suffering.” Welfare and Institutions Code §15657 further provides for significant remedies to redress injuries suffered by victims of elder or dependent adult abuse, including postmortem survival of certain damages.

Still, in spite of legislative efforts, which most recently included the enactment of AB 40 just this year, it’s going to take much more than just laws to help protect our elders.

Standing up to fight against elder abuse will require advocates, but not exclusively in the professional sense. We can all help to prevent and certainly report suspected elder abuse when we know about it, or at least know what to look for.

SIGNS, SYMPTOMS & REPORTING Any person who suspects that an elder is being neglected, physically abused or financially exploited should report it.

When it comes to our elders, it is better to be safe than sorry.

Many elders are scared to report out of fear of retaliation, lack of ability or because they do not want to get the abuser in trouble. Symptoms which may indicate abuse or neglect include: sudden weight loss, poor personal hygiene, excessive sleepiness or confusion with no apparent cause, lack of necessities to aid in mobility and quality of life, matted hair, dirty hands/fingernails, reports of nightmares & trouble sleeping, fear of caregiver or staff in a nursing home, emotional

distress, depression and despair, withdrawal or detachment, bed sores, falls, unexplained bruising and signs of dehydration or malnutrition. Signs of financial abuse may include: unusual banking activity, bills not being paid, missing belongings, purchased items the senior cannot use, receiving a level of care well below what the senior can afford or major financial decisions the senior doesn’t seem capable to making.

If you suspect an elder is being abused in any way while in a longterm care facility such as a nursing home, report the incident to the local Long-Term Care Ombudsman, the California Department of Public Health and/or local law enforcement. Abuse outside of a long-term care facility should be reported to Adult Protective Services Agency or local law enforcement.

With a whopping 10,000 citizens reaching “elder” status every day, it’s imperative that we collectively work together to ensure that our beloved mothers, fathers, grandparents, aunts, uncles and friends do not become victims of abuse. It can happen to anybody. From reaching out to our loved ones more regularly to volunteering time and effort, we have a responsibility to protect and serve as advocates for the elderly, who inevitably become vulnerable as they get older. And there’s no better time than the present to begin to make this a priority in our lives. After all, one day all of us will probably be at least a little bit dependent upon others for ensuring that our welfare is protected. n

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DTiglobal.com Attorney Journal | Volume 118, 2013

23

BIGGER AND BIGGER

CHANGES

Redefining the Industry

By Doug Gerstner

I

n 2007, I published an article for Legal Management titled, “Big Changes,” which provided some insight into the evolution of the facilities management industry from basic mail, copy, fax and hospitality services into a much more robust, value-added offering. At that time, few would have disagreed that the industry was in a period of dynamic change. Today, there are even bigger changes occurring that will perhaps redefine the industry itself.

ECONOMIC CHALLENGES

Beginning in 2009, significant economic challenges curtailed the very consistent law firm aggregate and individual firm revenue growth that had marked the history of the legal community. Due to top line pressures, law firms were

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compelled to examine their fixed cost structures, long-term contracts, cost recovery models and long-established ways of doing business with an eye firmly fixed on the bottom line.

As in other industries, facilities management providers found legal clients more willing to challenge long-standing ways of doing business in an effort to reduce costs. Law firms were exploring options—such as reducing hours of operation and interoffice sweeps, outsourcing additional services long provided by in-house staff, and other methodologies—for reducing staffing and service-related costs. Firms also sought opportunities for extending equipment and technology leases/ obligations and other means of reducing technology-related costs. As business partners, facilities management service providers were challenged to assist their clients in their costreduction efforts.

Some will fully embrace, some will partially embrace, and some will not embrace change at all. Some will embrace early, some will embrace later, and some may never embrace change. Regardless, the opportunities today are far greater than they have ever been in an industry that continues to evolve and impact the way that law firms do business.

Two other dynamics developed as a result of these economic challenges. First, many law firms that had long provided these services under an in-house model turned to outsourcing for the first time. The time span between 2009 and 2011 saw more firsttime outsourcers than perhaps the nine or 10 years prior. Second, there was a significant reduction in the overhead/profit model that would be acceptable to the legal community as a whole. The already competitive marketplace became that much more so, and firms were able to reduce their costs either by negotiating with their current service provider or changing service providers.

For perhaps the first time, improving a firm’s top or bottom line had become just as important, if not more important, than the specific services it provided. The good news for law firms throughout the country is that many in the facilities management industry embraced these challenges and changing dynamics to bring a different level of strategic solutions to the marketplace.

While the changes in 2006 were very big, the changes that are apparent today represent a redefinition of the industry overall.

CHANGING FIRM PRIORITIES AND NEW MARKETPLACE SOLUTIONS

For many readers, this term “redefinition” comes as no surprise, as they have observed or participated in this evolution/ revolution. Law firms today have focused goals for reducing fixed costs, making fixed costs variable, avoiding subsidizing costs that should be billable to clients, ensuring there is a return on all investments and staying competitive in a dramatically altered litigation environment. These objectives have allowed those who are proactive in the facilities management industry to bring entirely new value propositions to the marketplace that challenge long-accepted models and deliver more strategic solutions. What are some of these new value propositions?

On-Site Versus Off-Site Solutions Law firms are reevaluating the traditional model for on-site centralized solutions when it comes to copying, printing, scanning and other related services. Historically, these services have paid for themselves because firms were able to fully charge the costs back to their clients. However, every anecdote, formal survey or specific analysis reinforces that this is no longer the case. Declining volumes, declining charge-back rates and redlining by attorneys and clients have led to an environment where fixed costs are being significantly subsidized by firms.

Work done off-site, on the other hand, is handled as a straight pass-through cost.

One of the industry redefinitions centers on the mix of onsite versus off-site work and how changing that mix can reduce fixed costs. The concept here is not new; it is merely becoming a more widely accepted methodology.

Enhancing/Integrating the Litigation Services Solution When the “Big Changes” article was published, it was possible to describe on-site litigation services as one of the most dramatic changes happening in the industry. I stated the traditional “copy operator” would become extinct as every copy center in the legal community, by necessity, would become a full-service center offering much more to support litigation and transaction services for firms. Litigation scanning, optical character recognition (OCR), branding, Bates labeling, load files and CD creation/ duplication became part of the standard package expected by most law firms. However, this area has once again expanded in a major way. Today, firms are recognizing the enormous fixed costs that stem from the hardware, software, staffing and training associated with litigation support. They want alternatives that allow them to: 1. utilize the best possible tools to make their litigation teams competitive in a rapidly changing litigation and discovery environment 2. access these tools in a way that minimizes fixed costs and risk of obsolescence.

The necessity for service providers to address these needs is here, and the evolution/revolution related to these services is well under way.

Changing Cost Structures and Models Services have long been provided in this industry under a fixed cost model with variable pricing for overage, usage and other costs. Today, however, proactive service providers are partnering with clients to offer more of their services under a variable cost model. This model eliminates some fixed cost areas for the firm and helps ensure these costs are charged back to clients on a usage basis. Further, it helps eliminate the environment in which firms were subsidizing a significant portion of these costs. Invoices created for jobs completed onsite are no different than jobs completed off-site. Whether for litigation-related services only, all copy/scan/print/finishingrelated work, or even for the entire service offering, these variable cost solutions are becoming more common, similar to the alternative fee arrangements that law firms have with their clients. Even when variable cost models are not utilized, work Attorney Journal | Volume 118, 2013

25

order solutions are often being implemented to at least increase client charge-back realization rates.

Fundamentally Impacting Secretarial Ratios and Costs Services previously provided in-house, or outsourced only sporadically, are increasingly coming under consideration for full-time outsourcing.

Court filing, docket and records management represent just a few examples. However, perhaps the most interesting area falls under a heading of document management, or perhaps knowledge management. Firms are reevaluating the ways they create, manage and store documents, along with the role of the legal secretary and how these professionals can best support the firm. They are considering solutions, such as a clustered support environment that can enhance and expand services for attorneys and the ability for that support structure to positively impact the traditional attorney/ secretarial ratio. The ability of service providers to offer solutions in these areas is once again driving an opportunity to reduce fixed costs for word processing and other document-intensive tasks.

There is certainly no one-size-fits-all solution; and while we know some of these concepts are not new, we believe the convergence of new value propositions, combined with the need for firms to address these critical areas, will lead to another shift in the industry. In fact, these changes are prompting a total redefinition.

Those not properly focused on the legal market space will be hard pressed to maintain services and solutions commensurate with what the industry will come to expect and require.

REDEFINING AN INDUSTRY

What makes the above changes more of a redefinition than those discussed in the 2007 article? The conversation then was about specific new service areas that the legal community would define as a minimum requirement for consideration. Just as mail, copy, fax and hospitality had defined the minimum requirements prior to that time, the new expectation was that the most basic offering would include litigation services, automated document routing, impression management and other new services.

The changes today go far beyond the simple addition of new services. They go much deeper than the simple question, “What services do we get for our facilities management investment?”

They now go into the overall goals and objectives of firms and instead, ask the following: • What services should (and should not) be performed internally at the firm and to what degree?

• How should certain services, solutions or technology best be obtained?

• What model(s) will allow the firm to best reduce its fixed costs and charge services appropriately back to clients?

• How does the firm stay competitive in the litigation support and electronically stored information arena while minimizing significant fixed cost investments?

• How does the firm best support the attorneys, maximize secretarial ratios and minimize fixed costs associated with this area?

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These strategic questions move the discussion beyond a simple change in the services being offered or provided. Instead, they redefine the industry itself. This redefinition in the facilities management marketplace may ultimately make the term “facilities management” itself obsolete. What should the new terminology be for the expanded and more impactful value proposition being offered today? Managed services?

Management services? Attorney and firm support services? All of these may more accurately describe what is being offered, but regardless of the naming convention or the way the new value proposition and service paradigm will be described, every law firm must decide on its own which of the elements already out there may best help achieve its unique goals and objectives.

A QUANTUM LEAP

In 2007 I wrote, “This rapidly changing business landscape is not about incremental improvements or changes.

Instead, the legal community increasingly expects to see a quantum leap in the added value received for [facilities management] annual spend.” The article went on to say, “This is not to insinuate that traditional services are not still included in [a facilities management] service provider’s offerings. They are still included, but clients expect perfection in these service areas because they are now considered the basics.” I believe most would agree that “the basics” expanded in the way the article described. On-site litigation services, automated document routing, impression management and other new services are now far more the norm than the exception.

Even so, that quantum leap does not begin to compare to the adaptations that have come and are coming in the industry today. The current evolution requires both law firms and service providers to challenge their long-accepted ways of doing business.

It demands a level of creativity and leadership far greater than simply expanding the traditional facilities management services provided or obtained. To be clear, however, there will certainly be firms that continue to obtain services under a more traditional model, and there will be service providers that continue to succeed by providing these more basic solutions, even in the redefined landscape. That is the nature of evolution/revolution/ redefinition.

Some will fully embrace, some will partially embrace, and some will not embrace change at all. Some will embrace early, some will embrace later, and some may never embrace change. Regardless, the opportunities today are far greater than they have ever been in an industry that continues to evolve and impact the way that law firms do business. It is truly an interesting and exciting time. n Doug Gerstner is the Executive Vice President of Management Services and an Equity Partner at DTI. He has worked in the facilities management services field and served the legal community for nearly 20 years. Contact him at dgerstner@ dtiglobal.com. Reprinted with permission from Legal Management magazine, Volume 32, Issue 3, published by the Association of Legal Administrators, www.alanet.org.

Lawyer Gets Exactly What He Deserves

By David Lorenzo

Dave Lorenzo helps solo attorneys, large law firms and small independent law practices make a great living and live a great life.

People say his down-to-earth personality reflects more of his street smarts than his Ivy-League education. He can be reached at 888.692.5531.

Every day people ask me if my business strategies will work in their practice area.

It doesn’t matter if they practice environmental law, personal injury law, criminal defense law or law relating to Native American Rights­—everybody thinks their law practice is different. And they feel compelled to verify that the strategies I have developed over the years will work for them.

I’m going to give you a quick case study that will show you how applicable basic client acquisition strategy is and how you can use it to attract the clients you deserve.

A few months ago, Steve Klitzner (a longtime client) came to me looking for a way to attract new clients to his tax practice. Steve handles IRS problem resolution.

What does that mean?

Well, think about people who have not paid their taxes for years and years. Now think about them waking up one day and deciding that they can’t take the feeling of impending doom any longer.

Who do they go see? They go see Steve.

A good portion of Steve’s business is developed as a result of referrals from accountants, bankruptcy attorneys and other lawyers. He does quite a bit of marketing and he is always looking for new ways to attract clients.

At one of our meetings, Steve told me he was looking for a way to get more referrals from accountants. While he had booked speaking engagements to groups of accountants in the past, he had never been able to convert them into new business. With a speaking engagement to his State’s Association of CPAs coming up, he was looking for a way to make this event pay off.

Here is the exact strategy we developed and the results Steve received:

At the conclusion of his talk Steve offered all of the attendees a special report titled: “EIGHT MISTAKES TAX PRACTITIONERS MAKE WHEN NEGOTIATING WITH THE IRS: Important Tips to Keep Your Client From Getting in MORE Hot Water” About 40 CPA’s gave Steve their contact information and he sent them the report. They also receive his monthly newsletter on an ongoing basis.

In the three months since this event, he has received 8 referrals directly from accountants who got on his mailing list as a result of that strategy. If Steve’s average case value is $5,000 (and it’s not; it’s a lot more), he added an additional $40,000 to his billing as a result of that one strategy.

But that’s not the end of the story.

Steve then turned the report into an article and pitched it to several trade publications and industry newsletters.

A prominent tax industry publication ran the article verbatim. That article landed Steve two additional speaking engagements and three additional referrals from CPAs. This report, which took Steve two hours to create, will help him develop over $100,000 in new business this year…and this is just one of the marketing strategies he has in place.

Here’s the moral of the story: Steve Klitzner is a successful IRS Problem Resolution Attorney because he takes action. I developed this strategy for him, but he put it into place and he got new clients as a result.

In the end, all of us get the business we deserve.

You just received the exact strategy Steve used to develop new business. It could work for you. But first you must take action.

Rest assured, whether or not you put this (or any other client acquisition strategy) into place, you are going to get the business you deserve.

If you come across a client with a tax issue, send them to Steve. And you can find that special report he published on his website: http://www.floridataxsolvers.com n Attorney Journal | Volume 118, 2013

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Every communication involves selling.

Every utterance is a sales call.

Every time you speak, you are making a sales pitch.

You’re In Sales, Get Over It

by David King Keller

David King Keller is the award-winning author of 100 Ways to Grow a Thriving Law Practice and the ABA best seller, The Associate as Rainmaker: Building Your Business Brain. Keller is an Ethics M/CLE instructor and delivers business development training within an Ethics CLE titled Ethical Business Development Strategies. This Ethics MCLE is accepted by State Bars, law firms, Bar associations and ABA annual conference CLE seminars. David is a respected keynote speaker and trainer on strategies for increasing firm revenue, including The Neuroscience of Quickly Going From Stranger To Trusted Adviser. Contact David for a free copy of his Social Media For Lawyers article or a review copy of his two law firm business development books at david@kbdag.com or call him at (415) 289-0544, cell: (415) 444-6795.

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Attorney Journal | Volume 118 , 2013

“Hi honey, how was your day?” That is a sales call.

You’re selling the idea that you care about “honey,” that you care about honey’s day, and that he/she still accepts the title of being called your honey. The expression had three sales in one “harmless” phrase.

So, just accept that everything is sales. Sales is just another word for communication. You’re in the communication business, and as a lawyer, you’re an expert. So, you’re already an expert in sales.

You simply need to hone those sales / communication skills to maximize cash return.

In fact, you’re not interested in “sales” per se, if the word “sales” is an abstraction to you. You’re interested in communication that retains revenue-generating relationships and creates new revenue generating relationships. So, it’s simply customized communication that creates revenue, or new cash. A “sale” occurs when someone moves cash from their account to your account, or enters into an agreement to do so.

At any given moment we are operating from the “higher functioning” prefrontal cortex portion of the brain or the lower primate base section of the brain. Some say we are either expressing love (prefrontal cortex) or fear (fight or flight section of the primate brain). Both help the Rainmaker. The good ones learn how to appeal to both directive portions of another’s brain.

Again, some may do this unconsciously. The task here is to make it conscious for you at first, then, as it becomes a habit, it will slip into competent unconscious behavior.

There are 4 stages of competence: unconscious incompetence (you don’t know what you don’t know), conscious incompetence (you know you don’t know), conscious competence (you consciously practice your competency skills), and unconscious competence (you practice your competency without consciously thinking about it.)

When you think of selling, think about breathing, seeing and hearing, all things that come easily and naturally to you. Selling is a very normal, natural and essential aspect of being human.

Get over the word, selling. You are already a consummate salesperson. You sold yourself on your law school application. You sold yourself to a law firm. Over the course of your life, you have sold any number of people on the idea that you are likable, even lovable.

Neuroscience enlightens us here. Selling is a neutral word. It only has the meaning we give it, called its complex equivalence.

Remember that when addressing a jury, a judge, or the other side of a negotiation, everyone brings their own “definitions” to the

table, the sights, sounds, feelings, even smells and tastes. Like a fingerprint, everyone has a unique “complex equivalence” for the words and phrases you are presenting to them. As do you. By knowing this, you can make it work for you.

Let’s take a moment to improve your complex equivalence of the word, “selling”. Imagine your favorite activity. I know you have many to select from. Pick one that’s forming in your mind now.

Right, that activity. Go with that one. See it now in all 3 dimensions.

Now, as you see it, breathe into it. Notice your favorite activity and how you feel while being fully associated with it. Don’t watch it like a movie. Step into it as a lead character. What do you see? What do you hear? What do you feel? Any smells or tastes? Put them all there. Be in that pleasant space now. As you are living this delightful experience, place the word “selling” on top of it, or as very large seethrough letters suspended in air going from the left edge of what you see to the right edge. Stay in this favorite activity for a while with the word “selling” layered on top of it or fully within it, and hear the word selling as you continue to enjoy your favorite activity.

Stay with this experience for a short while.

Now think of your favorite food. I know you have many to select from. Pick one that’s forming in your mind now. Right, that favorite food. Go with that one. Smell it. Taste it. Mmmmm….. yummmmm. Be in that space with your favorite food. Now. Smell it. Taste it. See what you see. Hear what you hear. Feel what you feel. Breathe in the experience fully. As you are fully enjoying your favorite food, place the word “selling” over the whole experience as you enjoy your favorite food. See the word, “selling”, possibly as translucent letters from one edge of the scene to the other, and hear the word, “selling”, as you continue to enjoy your favorite food. Stay with this experience for a few more moments.

Now think of one of your proudest moments: being complimented, praised, receiving a certificate or award, a raise, a good grade, an applause, a smile, a hug or a kiss. I know you have many to select from. Pick one that’s forming in your mind now.

Right, that one. Go with that one. See now what you saw then.

Hear now what you heard then. Feel now what you felt then. Smell or taste now any smell or taste you had then. Be fully present with the experience. Make it a full body experience. Breathe in to that experience now. And as you fully experience that proud moment, place the word “selling” over the whole experience as you re-live that proud moment. See the word, “selling”, possibly as translucent letters from one edge of the scene to the other, and hear the word, “selling” as you continue to enjoy and fully experience that proud moment. Stay in this pleasant experience for a few more moments.

Now think of the word “selling” and flash back to the favorite activity, favorite food, and proud moment you’ve just been experiencing. Enjoy those thoughts and feelings for a few moments. Possibly a slight smile and positive feeling is being experienced. Good. Excellent.

If you’re like many others, just going through the above process will give you a pleasant change in the bodily experience of the word “selling”. If you are not like other people, then you have already worked out a unique solution to have a better relationship with something you’ve doing your entire life, selling. n

Attorney Journal | Volume 118, 2013

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