Attorney Journal, San Diego, Volume 111

SAN DIEGO

Volume 111, 2012 • $6.95

Measuring A Law Firm’s Risk Management Smart Firms Do It Before a Claim Occurs, Others May Do It After

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Advocating for Technological Change in Law Firms

Thomas Berman Social Practice Management with “MyCase”

Andrew H. Griffin

Attorney Marketing How to Get Clients to Say Yes

David V. Lorenzo

How to Keep Your Law Firm’s Website Fresh

Matthew Hickey Emotional Violence

Nancy Byerly Jones PROFESSIONAL PROFILE OF THE MONTH

David Schulman MEDIATOR OF THE MONTH

Douglas Glass Law Firm of the Month

Miller & James, LLP AJ_Nov111_Cover.indd 1

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SHUSTAK FROST & PARTNERS P.C. Attorneys At Law

is pleased to congratulate our partner; Thomas C. Frost, for being named A Top Attorney 2012. We are proud of your recognition and pleased to have you honored for your tireless commitment to our clients and the legal system.

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.

THOMAS C. FROST, ESQ.

• AV rated by Martindale Hubbell (highest level of professional excellence)

• AV rated by Martindale Hubbell (highest level of professional excellence)

• Named a “Top Influential for 2012” by The San Diego Daily Transcript

• Selected as a “Top Attorney” for 2012 – Corporate Litigation by The San Diego Daily Transcript

• 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

Your Referrals are Invited 401 West A Street, 23rd Floor San Diego, CA 92101 619-696-9500

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• Member “Million Dollar Advocates Forum” having obtained a number of multi-million dollar awards for firm clients

• 36 years extensive legal experience

570 Lexington Avenue, 16th Floor New York, NY 10022 212-688-5900

email@shufirm.com www.shufirm.com

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TABLE OF CONTENTS features

2 0 12 E D I T I O N — N O .111

PROFESSIONAL PROFILE OF THE MONTH

4 David Schulman

by Jennifer Hadley

8 Advocating for Technological Change in Law Firms

4

A Law Firms’ Efficiency and Ability to Tap into Technological Resources Will Make the Difference Between Prosperity and Mere Survival in the Next Few Years.

by Thomas Berman

10 Attorney Marketing: How to Get Clients to Say Yes

David Lorenzo Shares the Five Common Reasons Why Attorneys Fail to Close the Deal With a New Client.

by David V. Lorenzo

13 How to Keep Your Law Firm’s Website Fresh

Creating a Simple Website for Your Practice is an Important Part of Establishing Your Firm’s Digital Footprint.

by Matthew Hickey

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14 COMMUNITYnews LAW FIRM OF THE MONTH

16 Miller & James, LLP

by Jennifer Hadley

22 Emotional Violence

Nancy Byerly Jones Discusses an Internal Violence Threatening All Too Many of Today’s Law Firms.

MEDIATOR OF THE MONTH

by Karen Gorden

26 Measuring A Law Firm’s Risk Management

EDITOR Nancy Deyo CREATIVE SERVICES Skidmutro Creative + Layout CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Thomas Berman David V. Lorenzo Nancy Byerly Jones Andrew H. Griffin Matthew Hickey

by Nancy Byerly Jones

25 Douglas Glass

EXECUTIVE PUBLISHER Brian Topor

25

Smart Firms Do It Before a Claim Occurs, Others May Do It After.

by Thomas Berman

29 Social Practice Management with “MyCase”

A Review of a New Way to Communicate with Clients with MyCase.

by Andrew H. Griffin

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 2012 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC.

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Printed in the USA

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THE PARADOX OF

EQUILIBRIUM

David

lance

r By Keeping Ba vo Fa s’ nt ie Cl s Hi In ed pp Ti es al Sc e Schulman Keeps Th

by Jennifer Hadley

As David Schulman, Partner with Moore, Schulman, Moore, APC celebrates 20 years as a family law attorney in San Diego, he credits a commitment to balance as the keystone of his tenure in an emotionally charged field. But he’s not speaking exclusively about a professional life/ personal life balance. Instead, Schulman is absolutely clear that maintaining a sense of balance when working with clients, within the courts, and with minors is imperative in order to be a successful family law attorney.

Schulman knows a thing or two about being a successful family law attorney. As a 2012 San Diego Daily Transcript Top Attorney Finalist, Schulman has also been named a San Diego Super Lawyer for three years and has been on the San Diego Super Lawyers list for four years. He is an active member of the California State Bar as Commissioner for the Family Law Advisory Committee. Moreover, Schulman is a Certified Specialist in Family Law and has been a Family Law Judge Pro Tem in all San Diego courts since 1999. To boot, he is one of the rare San Diego Family Attorneys who has been Court appointed to represent and act as Minor’s Counsel. Suffice to say, for Schulman, balance is much more than a luxury; it’s a necessity. “You could do this job 24/7,” he says. But, “without balance, you are going to be ineffective counsel for your clients,” he explains in the matter-of-fact style that has helped his clients who are dealing with extremely emotional issues.

BIG PICTURE BALANCE Part of Schulman’s responsibilities as a family attorney is to first and foremost “help my clients to see the overall picture,” he says.

Achieving that objective, however, requires rigorous honesty. “I am a straight shooter. I don’t sugarcoat the practicalities of the issues at hand. I understand that the divorce setting is one of the most difficult situations a person can go through in life. If I can help each client see the big picture and get them through the process while assuring them that this will get better, they will look back one day with closure and finality,” Schulman adds.

However, he admits that managing client expectations is not always an easy feat. After 20 years of family law, Schulman has had his share of unusual requests, some so unreasonable that Schulman has had to mandate some balance. “A number of good, ethical attorneys, as well as judges, were willing to give me constructive criticism and feedback [when I was a new attorney] in dealing with preparing for court, client control and the overall practice of law. I was taught to be respectful and courteous to the court and to other attorneys,” he says. To that end, he adds “I have had to say to clients, ‘I’m not willing to stand in front of a judge with that request.’’’

Indeed, Schulman has to remind clients to pick and choose their battles. “They don’t always want to hear what I have to say. However, after time—generally a few years—they too look back and realize that it really was just a bump in the road, and in the scheme of things, making a big deal out of it didn’t make sense,” he explains.

In the meantime however, he encourages his clients and their families to attend individual or family therapy, and he is happy to work in collaboration with therapists. Often, he adds, the therapists can get clients to see things that he can’t, because of the extreme bitterness they feel toward a spouse. “In family law, clients aren’t only bitter at each other, but they are often bitter at the attorneys, too.”

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Photography by Bronson Pate

JOURNAL

FEATURED PROFESTSHIOENMAOLNPTROFILE OF

EQUAL JUSTICE FOR JUVENILES The emotional nature of family law cases is often exponentially heightened when it comes to the custody of children. As one of the few family law attorneys in San Diego who is appointed by the Court to represent and act as Minor’s Counsel, Schulman truly enjoys working with children. In fact, in addition to his ability and drive to solve problems to help people, “helping those especially challenged with understanding the legal process became my focal point,” he says of the decision to become an attorney.

2012

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Minors in particular, tend to be those who do not understand the legal process. Schulman’s job therefore involves explaining their rights, and helping them to make decisions, so that they too have a voice. “In highly contentious cases, you may have one parent who wants the child to testify, whereas the other does not want that under any circumstances. I let that child have a voice, and try to find some balance,” he says.

This often requires that Schulman meet the minors where they are, both literally and metaphorically. “I go to their

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Office Manager Heidi Sorensen, David Schulman and Partner Erik Moore

schools, and the minors I work with are the only people who have my cell phone number,” he says. He laughs when he admits that, as a result, he has to engage in a great deal of text messaging these days. But the work is extremely rewarding for Schulman. “Kids think the attorney-client privilege is so cool. When they learn that I’m not going to discuss what they say with their parents, they love it, and become very trusting,” he says. In part, this helps to offset the fact that “when you represent the children, both of the parties are angry with you.”

PAYING IT BACK BY PAYING IT FORWARD Schulman’s entire life is clearly predicated on maintaining balance, a lesson learned first from his father, Barry Schulman who is now a retired family law attorney. “He taught me it is important to leave your work at the office and enjoy your social time as it makes you a much more effective as an attorney. The off-hours are necessary to make sure you have time to recharge your batteries,” he recalls. Continuing, he says, “When my father was not working, he did not discuss his cases at home and made sure his time with friends and family were a priority.”

Schulman also counts the guidance and influences of Harry Powazek, now a Superior Court Judge, Alan B. Clements, retired Commissioner of the San Diego Superior Court, and Thomas Ashworth III, retired Superior Court Judge, and his father as instrumental early in his career.

The mentorship he received is something he strives to pass on to the next generation of family law attorneys. He also credits his former partner, Judge Margo Lewis, as well as

his current partners, Erik Moore, and Peggy Moore with reminding him to keep matters in perspective when things get stressful.

“Our firm believes in mentoring our staff, young law clerks and associates to work with the specialists side by side on our cases,” he says. But he also extends his suggestions and advice to any young attorney who needs help. “I had incredible mentors who I would call on when I had questions, and I will always take a call from a young attorney with a question,” he says.

Obviously, for Schulman, the key to success for himself, but more importantly for his clients, is a commitment to balance in the field of family law. From making sure that children have a voice, to managing client expectations during particularly emotional and volatile times, to paying back to the next generation of attorneys the advice he freely received from the attorneys who came before him; Schulman’s strategy has paid off. As far as his third decade in family law is concerned; Schulman looks forward to growing the firm slowly and steadily, making sure not to upset the balance of the existing success he and his partners have achieved. n Contact: Moore, Schulman, Moore, APC 858 755 3300, dschulman@msmfamilylaw.com 2636 High Bluff Drive, Suite 200 San Diego, California 92130 www.msmfamilylaw.com

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WORLDMARK BRANDS WorldMark Brands helps law firms to use the Internet to better serve their clients.

Questions@WorldMarkBrands.info (619) 202-7631 501 W. Broadway, Suite A. San Diego, CA 92101

Our suite of online services helps law firms to truly leverage the Internet to maximize their potential: Our expertise in Search Engine Optimization helps legal firms improve their ranking on Google, thereby improving their credibility and helping generate more business.

We also assist with Pay Per click for consumerfacing practices to generate more customers.

We help law firms to use social media to convey expertise as well as attracting new talent.

We support law firms in better management of client relationships through online secure document sharing.

Our email services help law firms build client loyalty.

WorldMark Brands is a perfect partner for law firms planning to use the Internet to support their practice.

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ADVOCATING FOR

TECHNOLOGICAL LAW CHANGE IN FIRMS

by Tom Berman

A recent article noted that technology is now a “differentiator, and a key to future profitability.” In fact, for countless

law firms, efficiency and the ability to tap into the firm’s collective intellectual property through the use of technological resources will make the difference between prosperity and mere survival in the next few years.

Our observations in working with smaller and mid-sized law firms (up to about 100 lawyers) are highlighted by the following: • Law firms and individual lawyers often fail to grasp what new technology means to them in terms of their own practice (which is the basis by which most will make their decisions).

• Because of this lack of understanding there is an unwillingness to pay for important software developments, let alone new technology.

• Those non-lawyer individuals who are in control of the software choices (upgrades, etc.) are not always individuals who understand technology from the manager/user/lawyer perspective.

• The relationships between those individuals and their suppliers are such that they are far more likely to buy an upgrade for already existing stand-alone software solution (that is no longer useable or plays a negligible role in real technological change) than they are to help plan for the firm’s future needs.

Demands today for needed transparency in the practice in order to achieve efficiency and avoid professional liability claims go well beyond what most law firms employ. The Windows® platform provides the barest of basics for word processing, a calendar and electronic mail. For many lawyers that is, in fact, the sum total of their interest level. Unless the firm is fortunate enough to have a “technology partner” with substantial sway and/or a worldlier non-lawyer IT staff, the firm is stuck in a revolving door with little opportunity to “sell” change in the firm.

Demands for efficiency, predictability and transparency in the practice of law now “make tangible” the connection between technologies, the law practice and business goals. Lawyers are a tough sell in terms of opting for any change whatsoever.

Consequently, to advocate change in a law firm is an uphill battle and it is generally more difficult in smaller firms. There are ways, however, to make a case for new technology. Here are some ideas on how to accomplish that end.

Make the argument for efficiency by discussing Knowledge Management (the current watch-word) including the issue of efficiency, practice standards, cultural integration and the ability of the firm to perform at the highest level on a consistent basis no matter which attorney in the firm is involved. Making the case to very senior partners that 8

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technology will help other lawyers rise to their level of acuity generally works well with a senior lawyer who wants the firm to continue and to prosper.

• Evaluate technology on the basis of what the firm will accept but that will extend the firm out so that you are at least close to what the more sophisticated software will provide.

• A great deal has been discussed and is being written about what has been termed “Value Billing.” That is defined by suggesting that the actual value of

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Thomas Berman is involved in all phases of law firm practice management including Mergers and Acquisitions, Systems and Structure, Partnership/Shareholders Agreements, Planning, Succession, Compensation and of course, Risk Management. For the last twenty two years he has worked with well over a thousand law firms of every kind; a single lawyer to several hundred lawyers; Intellectual Property to Plaintiffs Personal Injury Law. He can be reached at: tberman@bermanassociates.net

• Take time to "connect the dots" between your technology tools and future profitability. Be sure that presentations to partners are jargon-free, so that everyone can grasp what you are saying.

There is no magic involved and no “slight-of-hand”. In the same vein, stress the new technologies that empower your firm's ability to monitor matters and expenses. Understand how technology realizes the firm goals of expense to income ratio. Using financial data is often effective because it can serve to dramatize the benefits of new technology in terms everyone can understand.

the lawyers’ services has little in little in common with to the actual time spent (strict hourly billing).

Making the argument for efficiency and utilizing the firms’ extant intellectual property can often be used as a means to convince lawyers to spend money in order to make money. It isn’t difficult to make the case (as an example) that $100,000 spent will equal a return of many times that amount in the next few years by utilizing value billing made possible by appropriate use of the new technology. In fact, forty lawyers billing an average of only $350,000 (bare minimum) a year with an increase of only 5% in billings value, nets nearly that same $100,000 spent the first year alone!

• Client technological change is sometimes a reasonable means by which to convince lawyers in the firm to opt for their own change. Often times, in fact, when a client wishes to be billed using a particular extranet program, for example, the firm is put in a position of having to upgrade its own tools simply in order to comply with the client’s needs. That same lesson or methodology can be used absent a particular client’s requirement by simply introducing the subject of technological change by the client as reason enough for the firm to upgrade its own. Marketing the firm’s services often begins today with a pronouncement of the firm technological advantages. The argument sometimes works in the approach to marketing inside the firm. That is to say that if that argument is to be made to potential clients that the firm is on the “cutting edge” then the firm must actually be prepared to perform in such a way as to convince the potential client that they are in fact “ahead of the curve”. Make technology itself into a marketing tool which the lawyers can understand as a means of increasing their ability to acquire new clients.

Although it may be an uphill battle, lawyers are acutely aware of the need to be competitive and to demonstrate to clients that the firm can be trusted with the client’s best interests, therefore an argument which centers upon the efficiency and the quality of the practice will generally succeed. Coupling that argument with a demonstration of how the changes will benefit the firm’s bottom line should put the argument “over the top” and provide the impetus to get things moving in any law firm. n Attorney Journal | Volume 111, 2012

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couple of weeks ago, I was with a lawyer who, even after 15 years of practice, was amazed that a client did not instantly engage him. In the mind of the lawyer, there was a clear need, the client had money and the situation had to be handled immediately.

Yet my client was not selected as the attorney to do the job.

This happens to all of us. And it happens more often than we would like. Recognizing the five reasons why this happens will help us understand how to prevent it from occurring in the future.

No Need

ATTORNEY MARKETING How to Get Clients to Say Yes

By David V. Lorenzo David V. Lorenzo is the Chairman and Founder of Rainmaker Lawyer Consulting. He and his team help attorneys make a great living and live a great lifeŽ. If you’d like a FREE CD from Dave, titled: The Five Secrets to Making a Great Living and Living a Great Life as a Lawyer, visit: www.LawyerSecretsCD.com or call 888.692.5531

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This means the client does not see the need to hire a lawyer to handle this situation. It happens in EVERY practice area. I have seen people facing criminal charges refuse to accept the assistance of a lawyer.

Of course, this does not mean they REALLY have no need for your services. It means you must help them realize that they need your services.

One of the best ways to help the client see the need is through education. You must walk them through the potential steps involved in the process they face. You must show them the expertise required to navigate the maze of legal issues. You should make sure they feel the complexity involved in handling their particular matter. And you must do all of these things in a generic way. In other words, you must promote the hiring of a lawyer without promoting yourself.

Often, a lawyer will not view a situation as complex because he has been through it dozens or even hundreds of times. But for the non-lawyer, even handling a traffic ticket can have overwhelming complexity. We must be ever mindful of knowledge gap (between the non-lawyer and someone who has faced this before) and address it with the client in a non-threatening way.

No Urgency In this case, the client is in no rush to retain a lawyer. Maybe he feels that taking a wait-and-see approach will make things better.

Maybe he does not realize the gravity of the situation. Maybe he is uneducated on the potential consequences of delaying action.

In all of these scenarios, the lack of urgency can be addressed in much the same way as the client who perceives there to be little or no need.

One of the best ways to help the client feel the urgency is by presenting similar situations and the adverse consequences of not hiring an attorney. While this may seem like the perfect time to present facts and figures, it is not. This is the time to make the worst case scenario real for the client. You must emotionally engage him in thinking about how bad things could be.

If the client shows the proper respect for the potential adverse consequences of his situation, he will realize the urgency.

No Money In most cases, when the client says they have no money, this really means they do not see the value in hiring you. I have had clients tell me they have no money and then go out buy a new car or a new home or go on an expensive vacation the day after our meeting.

The best thing to do when you hear a client say they have no money is to immediately challenge that statement. A great question

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that gives people perspective is: “We value things we believe to be a priority. Why is this not a priority for you?”

This is also an educational opportunity. Help the client understand how their situation will improve as a result of hiring a lawyer. Let them see how they can regain (or improve) their personal status. Focus on the goals and desires of the buyer. If you link spending to the desired outcome, you will break through this barrier.

No Trust This is one of the biggest areas of misconception among lawyers.

Going to law school does not immediately make you trustworthy.

Yet many lawyers feel that clients should trust them immediately because they are “trained professionals.”

Do not rush a business relationship. Make sure you take the time to understand the client’s situation. Make sure you really listen for issues behind the words. Reflect that understanding back to the client. Sometimes this takes hours, days, weeks, months or years.

Trust is a foundational need. If you do not have trust, you have no chance of engaging the client.

The common thread running through the solutions to each of these objections is maintaining an external orientation. The attorney must focus on the client and his issues 100% of the time during this process. This is counterintuitive as attorneys typically respond with their biography and qualifications when they are presented with a challenge or objection during the marketing process.

to do business. And THEY are giving up after the fourth call.

How long do you think the average lawyer persists until he gets business from a client? How many mailing pieces do you think the average lawyer sends to a prospective client?

How many emails are in the average lawyers email sequence to his client base?

How many months does the average lawyer send out his newsletter before he gives up?

If you want to get clients as a lawyer, you have to be able to sell.

You can use various marketing techniques to help you get clients to come to you but, ultimately, selling is your job. If you give up before the fifth, sixth or seventh opportunity, you are going to miss out on many significant chances to represent good clients.

What to Do with This Information Here is what you should do with this information: Build persistence into your marketing. Set up follow-up systems that engage EVERYONE you meet. Make sure your message gets in front of them at least once a week.

This gives you 52 opportunities every year. That is 52 attempts to get them to consider working with you.

You have to be interesting and each approach should be slightly different. But ultimately, if you quit, you will miss many, many opportunities. Start today and never, ever stop.

Do you have what it takes t be successful? n

Never Quit Consider these statistics from a business study conducted by Notre Dame University: • 2% of all sales are made on the 1st attempt.

• 3% of all sales are made on the 2nd attempt.

• 5% of all sales are made on the 3rd attempt.

• 10% of all sales are made on the 4th attempt.

• 80% of all sales are made after the 5th attempt.

This supports the assertion that marketing efforts must be persistent. It also supports the theory that business development requires patience and persistence.

Now in the face of those statistics, consider the following information (also from the same study): • 44% of sales people quit trying after the first call.

• 24% of sales people quit after the second call.

• 14% of sales people quit after the third call.

• 12% of sales people quit after the fourth call.

This means 94% of people looking for new business quit after the fourth call.

Those are sales people. We are talking about people who are trained to gain the interest of a prospective client and engage them

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How to Keep Your Law Firm’s Website

C

Fresh

reating a simple website for your practice is an important part of establishing your firm’s digital footprint. For people who discover your practice online, it’s your first chance at a good impression. With that said, you shouldn’t over think it though. Don’t make your website unnecessarily flashy. As I mentioned in my digital roadmap for new firms, your website only needs to have a few basic necessities and then should potentially incorporate a few additional pieces of information.

First, your firm should have basic information and profiles about you and any attorneys who work with you. Second, your website should include all relevant contact information for your firm. In that regard, at a minimum, your firm should have an email address that opposing counsel and potential clients can use to connect with you. Third, your website should list any specialties or practice areas in which you practice.

If your firm receives occasional press, you may also want to consider a section for that. The only additional content that I recommend is a space on your site for sharing blog posts and firm updates. Done right, blog posts are SEO-rich content that may help draw traffic, including potential clients, to your website.

Once you’ve launched your website, it’s important that you don’t just forget about it. You should update the website regularly. With that said, precisely how often you need to update will vary depending on the information you initially included on your site.

For example, if your firm’s website is stripped down and basic, you may only need to update it every year or two to make sure it looks fresh. If you include updates about your firm, then you

should update it every month or two with new information. If you don’t, it looks like your firm has grown stagnant. You want to present the image of a busy and bustling firm to your clients.

Similarly, if you have a blog, you should update even more frequently, especially if you’d like clients to get in the habit of checking for new content.

Most importantly, you should update your firm’s website any time your firm moves, your firm’s contact information changes, or your team’s composition changes because of new hires or turnover. At a minimum, the information on your firm should always be up-to-date.

Remember, appearances are important. You wouldn’t show up to meet a possible new client in a tattered suit (or at least I’d hope you wouldn’t). Similarly, failing to update your website reflects poorly on your firm. If your contact information isn’t correct, you may lose out on potential business opportunities and potential clients who give up and contact another firm.

Meanwhile, an up-to-date and clean looking website indicates a sharp and savvy firm that cares about its image.

If you haven’t updated your website recently, maybe now is the time. n Matthew Hickey is a California-licensed attorney specializing in intellectual property and entertainment law. Through his San Francisco-based solo practice, Matthew provides strategic business and legal solutions to entrepreneurs and creators in the music, tech, and blogging industries. Additionally, Matthew is the attorney-blogger for The Sociable Lawyer.

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COMMUNITY news nWingert Grebing congratulates its associate, Aleksandr Yarmolinets, on his LL.M. from Georgetown in Securities and Financial Regulation.

Aleksandr will be focusing on corporate matters, including public and private equity and debt offerings, as well as mergers and acquisitions.

As a Certified Fraud Examiner, he will also advise clients on disclosure and compliance requirements under ALEKSANDR California and Federal securities laws.

YARMOLINETS Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor.

Attorneys are chosen for inclusion in Best Lawyers based upon peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for inclusion in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain on the list for each edition. Attorneys may not pay to participate in or be included in Best Lawyers. nThe San Diego Employers Association (SDEA), a nonprofit organization dedicated to helping organizations attract, coach, and train a more efficient workforce, announced today that it has formed an affiliation with Brown Law Group. The agreement provides SDEA members with one hour of free legal consultation per month, with additional legal advisory time provided at a significantly reduced CHRIS BRYANT rate.

“This collaboration,” said Chris Bryant, President of SDEA, “is an excellent example of how our organization provides value to San Diego businesses of all shapes and sizes. Brown Law Group’s broad range of legal expertise will complement our existing HR services. We’re excited to have them onboard.”

Since 1914, SDEA has supported local organizations by offering valuable services such as keeping up-to-date with ever-changing employment laws as well as attracting, developing, and retaining employees while avoiding lawsuits, fines and penalties. Additionally, SDEA can assist companies through challenging labor negotiations and provide help in how to best conduct disciplinary action and terminations, including how to properly document these events.

nKlinedinst PC is pleased to announce that Christian P. Fonss and Mariel I. Estigarribia, principals of transactional and securities firm Fonss & Estigarribia LLP, have joined the firm as Shareholders.

Both Fonss and Estigarribia were previously with Foley & Lardner LLP before launching their boutique law firm in 2009. There, they served domestic and international clients in a broad array of corporate, transactional CHRISTIAN P. FONSS and securities law matters, ranging from entity formation to venture capital financings and mergers and acquisitions (M&A).

Both attorneys take a hands-on approach to law, viewing clients’ needs from both a legal and business perspective. Their clients have ranged from entrepreneurs and start-up ventures to large privately-held and publicly-traded companies, as well as private investors, investment banks and not-for-profit corporations.

MARIEL I. ESTIGARRIBIA In addition to joining the firm as shareholders, Fonss and Estigarribia will immediately serve as co-Chairs of the Corporate and Securities and Transactional and M&A practice groups.

Fonss and Estigarribia will continue handling domestic and international client matters from the firm’s San Diego and Santa Ana offices. nFisher & Phillips, LLP has added Jonathan Liu as a new associate to its San Diego office. Liu brings extensive knowledge to the law firm, with civil litigation experience working on cases involving employment discrimination, breach of contract, defamation and general negligence.

Prior to joining Fisher & Phillips LLP as an associate, Liu spent two summers as a law clerk at Sullivan, Ballog & Williams, a civil litigation JONATHAN LIU defense firm in Santa Ana, Calif.

Liu received his law degree from Duke University in 2011.

While there, he was executive editor for the Duke Forum for Law & Social Change and a team leader for the Duke Law Innocence Project. He received his Bachelor of Arts degree in sociology, magna cum laude, from UCLA in 2007.

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COMMUNITY news nHiggs Fletcher & Mack, LLP, announced its latest client today, the California Center for Sustainable Energy (CCSE).The organization’s selection of Higgs comes on the heels of the law firm’s launch of its Environmental Law practice group and significant year-after-year growth.

CCSE is an independent, nonprofit organization headquartered in San Diego with the primary mission of accelerating the adoption of clean GREG PYKE and efficient energy solutions. For more than 15 years, CCSE has worked with policy makers, public agencies, local governments, utilities, businesses and consumers to deliver integrated solutions through education, market facilitation and policy innovation.

Higgs’ Partner, Greg Pyke, spearheaded the engagement with the help of fellow partner Jon Grissom and the assistance of other partners and associates of the firm. “We are honored to have been selected to provide CCSE’s legal representation,” said Pyke. “As with all of the firm’s clients, we will work hard to fulfill CCSE’s legal needs and meet their expectations, and are confident that our team of legal professionals will do so.”

RICHARD J. PINTO II

KELLY A. FLOYD

nMarks, Finch, Thornton & Baird, LLP is pleased to announce the addition of Richard J. Pinto II and Kelly A. Floyd.

Pinto received his Juris Doctor from the University of San Diego School of Law in 2012, graduating magna cum laude and a member of the Order of the Coif. He served as the forty-ninth Editor-in-Chief of the San Diego Law Review, received CALI awards for the highest grade in seven courses, and authored The FTCA, Veterans, and Future Medical Expenses, 49 San Diego L. Rev. 501 (2012).

Floyd also received his Juris Doctor from the University of San Diego School of Law 2012, graduating cum laude and a member of the Order of the Coif. He was Lead Articles Editor of the San Diego Law Review and member of the Moot Court Board.

Floyd achieved CALI awards for the highest grades in multiple courses and top honors in negotiations.

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nProcopio, Cory, Hargreaves & Savitch LLP is proud to announce that ten attorneys were recently selected by their peers for inclusion in The Best Lawyers in America® 2013 (Copyright 2012 by Woodward/ White, Inc., of Aiken, SC).

The Procopio attorneys selected for inclusion and their primary practice RICHARD BARTON areas, as classified by Best Lawyers, are: Richard D. Barton, Medical Malpractice Law-Defendants; Personal Injury LitigationDefendants; David C. Boatwright, Tax Law; Paul E. Burns Copyright Law; Litigation-Intellectual Property,LitigationPatent, Patent Law; George L. Damoose, Tax Law; Lionel P. Hernholm, Jr., Family Law; Phillip L. Kossy, Litigation, Labor & Employment; Robert A. Levy, Employment LawManagement, Labor Law – Management; Eli W. Mansour, Equipment Finance Law; Craig A. Ramseyer, Construction Law, Litigation-Construction; George “Jody” L. Root, Jr., Health Care Law. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. nNoah Woods has joined Brown Law Group as a new associate and will represent employers in the areas of traditional labor law, including grievance arbitrations, unfair labor practice charges, union contract negotiations and other union-related matters. Woods comes to Brown Law Group from the Jordan Law Group located in the San Francisco Bay Area, a management-side labor NOAH WOODS and employment law firm, defending clients in labor and employment-related claims in federal and California state courts, the NLRB, EEOC, DFEH and DLSE, and in labor-related grievance arbitrations.

Woods earned his law degree from the University of San Francisco School of Law, has been a Member of the California State Bar since December 2009 and is a member of California State Bar Association’s Labor & Employment Law Section.

“Noah is a welcomed and valuable addition to the Brown Law Group team,” said Janice Brown, founder and CEO of Brown Law Group. “His study and experience in the areas of labor law fits well with the focus of this firm. And, more importantly, Noah is a delight to have in the office. Our clients will truly enjoy working with him.”

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AT WORK

By Jennifer Hadley

When David Miller and Patricia James met in 1988, the only things they seemed to have in common were that they both lived in San Diego, and were both attorneys.

Indeed, Patricia was a North Carolina born contract attorney working in corporate and securities law, who’d taken a temporary position working on the infamous Walter Wencke case. By contrast, civil litigator David Miller was a Marine, Ranger qualified, who’d been a platoon and company commander, serving in the Republic of Vietnam in Southeast Asia in 1969. Now, 25 years later, James and Miller are still stark contrasts to one another. But, according to Miller, it is precisely that diversity that has made them such a formidable force when it comes to serving victims of medical malpractice.

James’ and Miller’s initial fascination with the law stemmed from different passions. “I wanted to alter the outcome for others and myself,” says Miller. “America is one of the few places in the world where one individual can challenge a large company or institution and let 12 people decide who is right and who is wrong,” he adds.

James—PJ as she’s known—chose law for a different reason. “I have to say that I was influenced by the Perry Mason television show.

However, you have to know that I was young and impressionable,” she quips. “By the time I was 16, I knew that I wanted to become an attorney because it seemed to fit all of my criteria and interests.

I liked to read. I liked to write, so I could see myself being on the research side of the law. I liked to analyze. And I did not want to be given a gold watch when I turned 65 and told to be on my way,” she laughs.

For Miller, the desire to alter the outcome for others and himself initially led him to a career in criminal law. But after several years of work in the field, he realized, “I didn’t like being around criminals,” he says frankly. However, he did enjoy trial work quite a bit. “It is exciting and energizing,” he says.

Because his father had worked in the pharmacological field, and several other family members worked in the medical field, Miller felt comfortable with the medicine attached to legal cases. It was no surprise then, that when he launched his civil practice in 1982, a 16

Photography by Bronson Pate

Varied Backgrounds

Paralegal Rachel J. Welch, David D. Miller, Patricia I. James and Paralegal Erin M. Jacobson

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Polar Opposites Patricia James’ and David Miller’s strong bond proves a formidable force in the fight for victims of medical malpractice

LAW FIRM

OF THE MONTH

2012

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career in plaintiff work and specifically medical malpractice, would clearly suit his preferences.

On the other hand PJ, who’d graduated from Cal Western in 1979, wasn’t much interested in trial work. “I like doing the grunt work,” she says of her love of composing motions, and writing in general. “I didn’t want courtroom work,” she adds honestly. But more importantly, she realized after several years of work in corporate securities, that “it was such a narrow area.

I was not expanding my horizons.”

Chance Meeting: Opposites Attract By 1988, Miller had a thriving practice, and James had at least partially removed herself from the seemingly endless Wencke case. She was doing contract work for an old friend from law school in the same suite Miller had his office. “Dave’s law clerk had gotten a job with CalTrans, and one day he asked if I would like to do some work for him. I began working with him, handling a variety of cases involving personal injury and medical malpractice,” she recalls. In 1989, the two shifted focus to primarily specializing in medical malpractice.

The proverbial bug had bitten. “Medical malpractice cases were very different from what I had previously worked on in my career. Dave was very knowledgeable about the medical as well as the legal aspects of medical malpractice cases. I started

learning from him and decided that I really enjoyed working on those cases,” she says. Miller remembers the meeting similarly. “We had a very symbiotic kind of relationship. And I knew from my time in the Marine Corps that the best teams are the teams where there is diversity,” he says. Laughing he adds, “We get along very well, but we very much disagree at times. Yet, we’re really good at finding common ground.”

As the professional relationship continued to prove successful, James found the rewards from working in medical malpractice to grow proportionally, as well. “Unfortunately, when it comes to working in the medical malpractice field, obtaining a satisfactory outcome for clients is often as good as it gets,” she says candidly. “We know that money is not going to completely fix someone who has suffered a catastrophic injury or been a victim of medical malpractice, but our goal is to make life as good as it can be for our clients,” she adds.

“We are here to help people make the best out of an awful situation, and when a client says ‘I really appreciate what you did,’ it feels good.”

By 1993, the pair had hit a winning streak, and James was made associate. The natural evolution of the partnership continued with Miller serving as the firm’s trial attorney. I’m pretty comfortable showing up at a point of attack,” he says.

He also knows most of the defense counsel he now faces off

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against. And he’s well aware that “if you don’t go to trial, you won’t get a good outcome for your client,” he adds. The pair’s success continued and, in 1999, James became a managing partner.

A Force To Be Reckoned With For her part, James relishes her role in the firm’s cases, which really begins once Miller has done the medical background work. “I’m behind the scenes moving the cases from the initial stage of preparing the complaint through the interim stage of motions and written discovery and finally to the final stage of settlement or trial,” she says. Indeed, both attorneys are involved in every case and, although there are some cases the firm rejects, “we encourage people to contact us even if other attorneys or firms have turned down their claim,” Miller says.

Because the firm is open to most cases, it’s not surprising that Miller and James have achieved results for clients with extremely diverse cases. “We represented a service member and his wife with regard to the birth of one of their children who allegedly lost one half of his blood volume when the catheter in his foot became dislodged. It was a long and difficult case, but we obtained a very satisfactory outcome for the family,” James explains. Moreover, “the family still keeps in touch and even sends us photos (of the child) from time to time,” James adds.

Another example of the diversity of the clients the firm represents involves cases of psychological malpractice. In Mason v. Marriage and Family Center, 228 Cal.App.3d 537 (1991) and Marriage and Family Center v. Superior Court (DePottel) 288 Cal.App.3d 537 (1991), both addressed delayed discovery, and disputes over statutes of limitations, stemming from when the injury began.

Unbreakable Bond With successes such as these under their belts, Miller and James knew that for all of their seeming differences, the two were a terrific team; and in fact, the bond remained firmly intact despite a physical distance of more than 1000 miles. “I moved to Mancos, in the southwest part of Colorado in 2001 to be near my remaining family, following the death of my mother. I continued to work for Dave as an independent contractor, and also worked for various attorneys in Cortez and Durango,” she says. James remains a member of the Colorado Bar Association and is a former member of the Four Corners Bar Association and Southwest Colorado Bar Association.

However, even for James, who enjoys solitary hobbies such as reading, playing computer games, and blogging for the firm’s website; the isolation proved too much. She returned to San Diego in 2004, picking up right where she’d left off Attorney Journal | Volume 111, 2012 19

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EXPERIENCE

with Miller. He had kept the practice running seamlessly, while continuing his involvement with the National Institute of Trial Advocacy, and as a Board Certified Civil Trial Specialist with the National Board of Trial Advocacy.

In the 25 years since the pair first met, they remain fundamentally different people. Miller has been involved in athletics his entire life, working out five days a week, and enjoying backpacking in the High Sierras, while reaping enormous joy from watching the children in his life excel in water polo and swimming. He’s also an extremely visible attorney, who has been awarded a rating of AV Pre-eminent by Lexis-Nexis® MartindaleHubbell. Super Lawyers has named him one of the top attorneys in San Diego in the area of medical malpractice since 2008.

Likewise, he is a fellow with the Litigation Counsel of America, and has associated into cases with other counsel, and welcomes the opportunity to do so in the future.

James continues to love reading and writing, and currently writes the (often hilarious) firm blog. “I look for subjects that I find interesting and hopefully the readers will also. I try to inject some humor when appropriate, which is most of the time. So far they have covered a wide range of topics: how lawyers are represented on television, loss of consortium, the cap on noneconomical damages in medical malpractice cases, puppy mills, balance billing, socialized medicine and health insurance, and even my colonoscopy,” she says with a chuckle.

But for all of their differences, Miller and James share the same commitment to succeeding for their clients, and utilize their own strength from diversity to help the wide range of claimants coming to their doors. And, it may soon be time to add to their winning team. “We will continue to grow as professionals in both our medical knowledge and resources,” says Miller. James agrees, “We anticipate hiring one or two associates to train, preferably one for the writing and detail work, and the other to do the trial work. We see these individuals as being ambitious, having incentive and looking to contribute to the growth of the firm.” For now though, the two enjoy the balance they each get from using their individual strengths to improve the lives of others who have suffered through no fault of their own. n

» EDUCATION Miller:

• University of California BA in political science and history • University of San Diego School of Law JD 1977 • Ranger Qualified

James: • University of San Diego BA in English • California Western School of Law JD 1979

» AWARDS Miller:

Contact: Miller and James LLP 2550 Fifth Avenue Suite 815 San Diego, CA 92103 619.685.0077 www.millerandjameslaw.com

• Martindale-Hubbell AV rated • SuperLawyers since 2008

» PROFESSIONAL MEMBERSHIPS Miller:

• Member of the National Board of Trial Advocacy since 1997 and am a Board Certified Civil Trial Specialist through that organization • Has been involved in the National Institute of Trial Advocacy faculty since 1988 • Fellow in the Litigation Counsel of America

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T

here is much violence in our world, from terrorism to violent crimes and many things in-between. There is also an internal violence threatening all too many of today’s law firms. It is what I call emotional violence.

When emotional violence exists within an office, all employees suffer its toxic, negative and lasting effects. Emotional violence saddens, angers, embarrasses, shocks and hurts its victims. It weakens and destroys office morale, productivity, ladders of success and, many times, entire careers. The types and size of destructive paths left by emotional violence are endless and this small column can merely attempt to touch the tip of this vicious iceberg.

Defining Emotional Violence How do I define emotional violence? Like the word success, emotional violence should not be defined by a societal definition, but rather individually on a case-by-case basis. One of my definitions for it, however, may be: Any words, body language or other actions that persistently attack, demoralize, threaten, destroy or otherwise demean or bring ongoing discomfort and other negative effects to those subjected to such constant abuse.

Self Audit

Emotional Violence

Ask this questions about your firm: • Do we have attorneys or staff who speak in a demeaning fashion to others?

• Does anyone in our office curse excessively?

• Do attorneys or staff talk negatively about each other behind their backs?

• Is there loud arguing on a regular basis?

• Is there any employee who sexually harasses others?

• Is distasteful, offensive humor tolerated?

• Are there any employees that refuse to talk to and/or acknowledge each other?

• Do we have any “professionals” whose emails to others could win the “I Make Hitler Look Like a Good Guy” award?

• How many chronic complainers do we have — ones who can’t be satisfied unless they have something to gripe about?

By Nancy Byerly Jones Nancy Byerly Jones is enthusiastically and tirelessly dedicated to helping her clients build business success stories that last...and as a family law and workplace mediator, she is a passionate advocate for helping keep folks out of the courtroom and moving positively forward with their lives. Please visit her website (http://LawBusinessTips.com), on Twitter (http:// Twitter.com/lawbusinesstips) or on LinkedIn (http:// www.linkedin.com/in/nbjones). If you have any questions for Nancy, she’d enjoy hearing from you by email too: nbj@nbjconsulting.com

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• Are there any just plain ol’ loud mouths around – good people perhaps, but annoyingly loud?

Did you answer, “Yes” to any of these questions? If so and it’s not a once-in-a-blue-moon occurrence, then your firm is indeed infected by emotional violence. Can you quantify the damages if these situations are allowed to exist? That can be difficult, but the harm done can be huge, hard to recover from and may bring about the ultimate downfall of a firm.

The Aftermath of Emotional Violence Think I’m sounding like a drama queen about this emotional violence stuff? I wish that were the case; however, it is a rare week that passes when I don’t learn of yet another law firm war story

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about the fallout from unchecked emotional violence.

The injuries include: 1. Low office morale/lousy attitudes

• Self-centered “I” or “me, me, me” vs. team-oriented “we” or “firm” mindsets (e.g., my clients vs. our firm’s clients)

2. Widespread reductions in productivity and work ethics

• We are too busy just trying to keep our heads above the water and swear we have zero minutes to spare.

3. Increased malpractice & grievance risks 4. Costly, frequent employee turnover 5. Unspoken permission for staff to act rudely and immaturely. just as they observe attorneys doing 6. The ongoing poisonous tension of unresolved disputes 7. Fed up clients who take their business elsewhere 8. Unmet personal and professional goals year after year 9. Excessive daily stress from the tensions within 10. Vast amount of money and time spent on arguing one’s points over and over ad nauseum (including the inability to obtain consensus among partners regarding big firm decisions) and defending the firm over harassment suits, malpractice claims and ethical grievances 11. The negating of time and money spent on marketing due to haphazard firm leadership brought on by feuding partners.

12. Disrespect breeds disrespect.

Tracing the Roots of Emotional Violence What causes emotional violence? A few of the typical causes are listed below: 1. Please re-read #12 above 2. Unhealthy stress levels from unrealistic caseloads, unresolved issues at home or office, unhealthy life styles, dishonesty with ourselves and others, lack of exercise, poor time management skills, living lives that others expect us to live rather than the one we really want to be living 3. Low emotional IQ’s 4. Immaturity including two-year-old-style temper tantrums 5. Self-centeredness overload 6. Substance abuse

• Some attorneys are just downright unprofessional and unethical.

• Attitudes such as “If I bury my head in the sand far enough or just ignore things long enough, they will go away.”

• Insensitivity to and disrespect for others’ feelings

Emotional Violence Prevention There are, of course, no easy answers. Nor can I force anyone to make the required tough decisions that would forbid emotional violence from rearing its ugly head in their offices.

If I had a magical wand, however, I would use it to rid all firms of this dangerous and often unacknowledged threat. I say this because in all my years of working as a law firm management and planning strategist, I continue today to see the far-reaching damages caused by the failure of attorneys to take a stand against emotional violence and its many related allies.

Attorneys that have had the wisdom and courage to finally say “No More!” to emotional violence would never return to an environment where such tactics are allowed because the rewards have been too great, including (but far from complete!): • employee turnover is greatly reduced and their productivity noticeably increase; • Office morale increases (almost instantly) and remains steady; • Stress levels among attorneys and staff decline; • Net profits grow (this means professional and financial goals are being achieved); and • Client satisfaction spirals upward.

Law firms that allow such violence to continue in spite of its destructive nature have made a choice: Emotional & other demoralizing violence allowed here. Their unspoken message to attorneys, staff and clients would be something like this: • Enter at your own risk.

8. Enablers at home and in the office

• Stay if your self-esteem is low enough to tolerate the disrespect and a multitude of negatives generated by the emotional violence allowed within.

9. Undeserved, self-imposed arrogance or holier-than-thou attitudes

• No whining about the stress of our working environment; emotional violence and dis-respectfulness tolerated

10. Chaotic, chronically disorganized office management

In Closing

7. Depression

Why Is Emotional Violence Allowed to Exist?

Again, the reasons are endless, but for starters: • We refuse to hold ourselves or others accountable for their negative actions or nonactions.

• Many of us avoid personal confrontations like the plague. It often seems easier to stay angry than to put the energies and time into making amends and changing our ways.

• Personal insecurities which lead to “greater than thou” attitudes and actions.

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As an attorney, I will and must always be mindful that one of the essentials of ongoing, successful lawyering is treating others respectfully – all others. Doing so is absolutely essential if we are to successfully climb our individual and professional ladders of success. And emotional violence has no place at that table. n

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Attorney Journal’s November Snapshot DOUGLAS A. GLASS GLASS MEDIATIONS

JOURNAL

FEATURED MEDIATOR

OF THE MONTH Photography by Bronson Pate

2012

Charisma +

CONFIDENCE, COMPETENCE With offices in the landmark Mister A’s building for more than 20 years, Douglas A. Glass knows a thing or two about the art of putting clients at ease. Make no mistake; the panoramic view Glass Mediation provides-spanning from Mexico to La Jolla- is charismatic in and of itself. But it takes a lot more than a nice view to earn a reputation as one of the most accomplished and experienced mediators in California. Achieving that requires a healthy amount of confidence, and a whole lot of competence.

Indeed, Glass has competence in spades, but it doesn’t come off as arrogance. On the contrary, it shows through in the quick wit that he uses to identify and empathize with clients’ fears and frustrations. “You know when you go to the dentist for a root canal? You’re nervous and anxious walking in. You count on the dentist having decent bedside manners to set you at ease. But you also want to know that this isn’t their first time performing a root canal. And that the last person didn’t die,” he jokes. “That’s how I want my clients to feel. That this is not my first time, and that I understand their anxiety,” he adds.

This lighthearted confidence is endearing, but Glass hasn’t been selected as the mediator of choice for more than 3,000 cases involving over 12,000 individuals because he’s easy to be around.

In this regard, his professional accomplishments speak for him.

For nearly 20 years, Glass worked as a civil trial attorney with an emphasis on real estate, personal injury, and construction defect litigation. He has tried more than 100 cases and continues to be AV rated by Martindale-Hubbell®. In 1997, Doug was honored by the Consumer Attorneys of San Diego with an Outstanding Trial Lawyer Award. In 2001, he was recognized by the California Real Estate Inspection Association as one of the twenty-five most influential individuals in the twenty-five year history of CREIA.

by Karen Gorden

Given his proven track record for hard work, it’s not surprising that when he decided to make the transition from practicing attorney to full time mediator in 2001, the segue was seamless.

Armed with the proven habits and practices—namely, an extreme devotion to preparation—that made him such a successful litigator, Glass began building his mediation practice. Today, that practice includes expertise in the fields of: residential real estate, commercial real estate, business, employment (including class actions), personal injury (including wrongful death and intentional torts), insurance (including bad faith, coverage and subrogation), professional negligence (including medical, dental and legal), construction defect, contractor disputes, collection, consumer disputes, School District claims, Native American Sovereign Immunity, family disputes related to real estate or business, and probate disputes related to real estate or business.

Now well into his second decade as a mediator, Glass’ awards for his work in mediation have surpassed those he earned as a practicing attorney. He has been listed in both the prestigious Best Lawyers in America® (2008-2012) and San Diego Super Lawyers® (2010-2011) in the category of Mediation/Alternative Dispute Resolution. He is also recognized as one of the top mediators in San Diego and Southern California by San Diego Magazine, The Los Angeles Times, and U.S. News & World Report. n Contact: Doug Glass T619.234.7790, ext. 303, doug@glassmediations.com 2550 5th Avenue, Suite 605, San Diego, CA 92103 www.glassmediations.com Attorney Journal | Volume 111, 2012 25

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MEASURING A LAW FIRM’S

RISK MANAGEMENT S

erious claims against a law firm may have a devastating effect, going far beyond the actual dollars involved.

The impact includes large amounts of time lost, deteriorating relationships between and among partners, and, in many cases, repercussions within the firms’ client community.

The impact on the fabric of the Partnership itself is a case in point.

It is not at all unusual for the Partner most involved with the matter which led to the claim to leave the firm entirely.

In our Risk Reviews, we have found that in almost 65% of those matters involving serious claims, the Partner most involved with the case which led to the claim had actually left the firm within 18 months of the issue having arisen.

Clearly, the impact goes far beyond the financial.

Our observations of law firms which have suffered serious losses indicate that the impact of these losses have to be carefully considered in ways separate and distinct

26

by Thomas Berman

from dollar damages. Not at all unlike a patient who has experienced a serious trauma, law firms tend to want to immediately forget about their professional liability problems. It’s very much a case of “denial” in the classic sense. The firm wants to pretend that the matter never arose even though the repercussions are still very much in evidence. You could make the argument that the partner involved in the matter, as a continuing reminder of these difficulties, is almost “cast out” from the Partnership. In this way, the firm enables itself to believe that the departing Partner was actually the concern, not the real problem, which is the way that the firm handles its business on a continuing basis.

The only way that a firm, once it’s experienced a serious claim, can avoid costly mistakes in the future is by analyzing and coming to grips with what has happened in the past.

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Smart Firms Do it Before A Clam Occures, Others May Do it After.

That’s why an objective review performed by a third party can be so helpful. It allows the law firm to focus on the details of the occurrence and hopefully learn from it. This kind of review assists the firm in not only dealing realistically with its problems but, even more importantly, developing and implementing a strategy to see to it that the problems do not recur.

There are some Practice Standards or “Rules of the Road” to use in order to measure the ability of a law firm to manage itself effectively.

These are standards which we have developed to create measurable objectives. It allows us to review a firm and report on the ability of the firm to handle its affairs in a professional and risk adverse manner. In part, they include: Partnership or Shareholders Agreement; Overall Management Structure; Mechanics of the Practice; Financial Management; Case Acceptance Principles; and Conflicts and Ethics Considerations.

THE PARTNERSHIP AGREEMENT A Partnership or Shareholder Agreement should help to translate overall firm philosophy into day to day policy and then provide the wherewithal to see that the policy is carried out.

The Agreement should have provisions setting out duties and responsibilities of the Partners. It should detail a basic compensation scheme which provides for compensation to those Partners who are responsible for not just the billable hours but also for doing other things important to the overall health of the firms, tasks such as training associates and supervising staff. These may not make money in and of themselves but they help provide a setting in which money can be made. In the long run, particularly in a Risk Avoidance context, they are just as important as billing.

It is just this simple: law firms which have a clearly defined structure with duties and responsibilities set out do not have the claims problems of firms which do not have such a structure.

OVERALL MANAGEMENT STRUCTURE The general structure of the firm, whether or not it has a Managing Partner, an Executive Committee, etc., should be delineated in the Partnership Agreement or Shareholder

Agreement. An analysis of this structure as it functions on a day to day basis determines the firm’s capability to develop policy, translate that policy into a plan of action and then carry it out.

Firms that have an effective Management Structure are less likely to have claims, not because they have better lawyers, but because they have created policies which are well-considered and then carried out.

MECHANICS OF THE PRACTICE The translatable goals of the Partners, affected by the thencreated structure of management nets the Mechanics of the Practice. This encompasses the system design for the day to day firm activity. It also includes the hiring of staff to carry out those Partner-created objectives. A firm which sets goals for itself, including the rewarding of Partners for doing not strictly billable work, will avoid many claims situations.

FINANCIAL MANAGEMENT Adequate Financial Management in a law firm means that the firm has accurately anticipated its financial requirements by profit planning and budgeting. The quality of its Financial Management affects the way that the firm makes decisions.

Cases in which there appears to be a conflict may not be handled properly if a firm is suffering from cash shortages. Risks are taken in which claims are very often the inevitable result.

A law firm which is well managed financially may be able to withstand the difficulties which ensue if there is a major claim.

Firms that are not well-managed financially do not survive for very long.

CASE ACCEPTANCE PRINCIPLES The ability of a law firm to make accurate determinations of what they are good at, what their attorney population is capable of doing effectively and what they should avoid is the crux of claim avoidance today.

The notion that a firm can be all things to all people does not work well for most law firms. It is the reason that so many small and medium-sized firms have experienced so many claims.

Law firms must set standards for their case work just as they do for their finances and for their compensation. They must also determine the way in which the firm accepts new matters: how they’re approved and who must sign off on them.

Case Standards and Procedures need to be in place before the

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case arrives in order to be effectual. Those standards must be determined by the Partnership. Individuals who will not accede to those standards must be controlled.

Partnership, not to just the individual attorney. More than one opinion should always be brought to bear in a potential conflict situation.

CONFLICTS AND ETHICS

CONCLUSION

Is the same matter a Conflict for your firm when you need billable client work in the office as it is when there is more than enough work to go around? That’s the question that partners should ask themselves. Conflicts are close calls. They don’t rise up and announce themselves (most of the time).

They are difficult because they are complicated.

Law firms must address the ethical issues of their practice in their Partnership or Shareholders agreement. Beyond that, systems must be developed (Mechanics of the Practice) which will isolate potential conflicts and make them known to the

In an ideal world, lawyers could practice their craft unconcerned by prospects of law suits against themselves for malpractice. Since we are far from that circumstance, it behooves lawyers to practice defensively and to do all that they can to protect themselves before and after the claim occurs.

Firms which are not well-organized and cohesive may come apart under the pressures of a claim against the partnership.

Firms that are well-structured will withstand these difficulties and may become stronger because of the experience. That’s a worth-while goal. n

Thomas Berman is involved in all phases of law firm practice management, including Mergers and Acquisitions, Systems and Structure, Partnership/Shareholders Agreements, Planning, Succession, Compensation and of course, Risk Management. For the last twenty two years, he has worked with well over a thousand law firms of every kind, a single lawyer to several hundred lawyers; Intellectual Property to Plaintiffs Personal Injury Law. He can be reached at: tberman@bermanassociates.net

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Social Practice Management with

“MyCase”

by Andrew H. Griffin

W

hen I began my practice almost 30 years ago, the primary office equipment consisted of a typewriter and a “Xerox” machine. I held out from purchasing a fax machine for as long as possible. I thought facsimile machines were a passing fad and only necessary if I were an architect or accountant.

Needless to say, times have changed. Computer programs drive word processing systems and manage data faster and more efficiently than ever. I can complete a document that I started on my iPad which automatically appears on my iPhone, office or home computer. The scanner has replaced the fax machine in the amount of usage. Communication is sent and received instantaneously through the cloud. Automated programs from credit reporting agencies download the creditors’ names, addresses, account numbers and debt amounts into bankruptcy software, reducing hours of preparation time of bankruptcy petitions. Courts now require Bankruptcy petitions to be filed electronically, which means cases can be filed 24 hours a day without leaving my office. Gone are the days of racing to the bankruptcy court in my car to beat a foreclosure sale on the courthouse steps.

With instant access to the Courts, it seemed like a natural progression for clients to have instant access to their attorney, documents, dates, and information about their cases. I subscribe to an attorney/client social media service that functions like “Facebook”. The San Diego-based company is called “My Case” (www.mycaseinc.com) and refers to itself as “Social Practice Management”. This website grants immediate access to my clients. Clients are given permission to enter a secured website that gives them access to their particular information, documents, files, and dates. They can upload and download documents. My Case now gives clients access to me 24 hours a day. They can send and receive secured messages to me whenever

they are able. My bankruptcy clients, especially the Chapter 11 clients who have to submit monthly operating reports, are always able to communicate with me. I am somewhat of a workaholic so it is not rare for me to dialogue with clients at 3:00 or 4:00 in the morning.

The significance of this social media is that client communication and relationships are improved. The ability to share the file with the client and giving them unlimited access to information as their case develops allows them to participate and gives them greater confidence in the work we do for them because they are involved in the process. Clients are able to immediately share any opinion or new circumstances that may affect their case. They can review and comment upon their bankruptcy petitions at every stage of the case. If a hearing date is continued, the new date and the reason for the change are simultaneously reported in their electronic folder. A court order or tentative decision is instantly shared with the client once it is received.

Clients have immediate access to the flow of correspondence, motions, and due diligence that occurs during their case.

Needless to say, clients appreciate this new line of communication. All communication is documented. Clients can always go back to their electronic folder to review dates, documents, or instructions that were previously given. More importantly, clients know that they can always “reach” me when telephonic communication is difficult. Playing “telephone tag” is as extinct as “typewriters” and “Xerox” machines! Social media has helped streamline our bankruptcy practice and made our office communication more efficient. n

Andrew H. Griffin, III is a San Diego, California bankruptcy attorney

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