Attorney Journal, San Diego Edition, Volume 110 by Attorney Journals

SAN DIEGO

Volume 110, 2012 • $6.95

Justice for All – Not Just a Concept, a Celebration! SDVLP Celebrates at the San Diego Museum of Man

Teresa Warren

Computers Evolve to Assist the Review of Computer Generated Data

Adam Bowen

New Research Impact Technology on Legal Field

Charles Volkert

Using Google Voice for Legal Lead Intake

Gere Jordon

More on My Evening With Multimillion-Dollar Rainmakers

Stacy Clark

What Is Your Top Competitor Teaching You?

David Ackert

Attorney of the Month

Erwin Shustak

PROFESSIONAL PROFILE OF THE MONTH

John Tannenberg MEDIATOR OF THE MONTH

Steven Kruis

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Attorney Journal | Volume 110, 2012

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TABLE OF CONTENTS features

2 0 1 2 E D I T I O N — N O .110

PROFESSIONAL PROFILE OF THE MONTH

4 John Tannenberg by Karen Gorden

8 New Research Impact Technology on Legal Field

A Just-released Industry Report from Robert Half Legal Explores How Emerging Technologies are Affecting Management Strategies in Law Firms. by Charles Volkert

10 Justice for All – Not Just a Concept, a Celebration! SDVLP Celebrates at the San Diego Museum of Man. by Teresa Warren

14 COMMUNITYnews

ATTORNEY OF THE MONTH

16 Erwin Shustak by Jennifer Hadley

22 Computers Evolve to Assist the Review of Computer-Generated Data

2012 Has Been Called by Some “The Year of Technology-Assisted Review.” What Does that Mean, and Why is That? by Adam Bowen MEDIATOR OF THE MONTH

25 Steven Kruis by Jennifer Hadley

26 More on My Evening With MultimillionDollar Rainmakers Part 2 – Continuation: Because You Asked for It, Here are More Tried and True Tips and Reflections from the Real McCoy. Stacy Clark

28 What Is Your Top Competitor Teaching You? by David Ackert

29 Using Google Voice for Legal Lead Intake by Gere Jordon

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. Printed in the USA

EXECUTIVE PUBLISHER Brian Topor 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 Charles Volkert Stacy Clark David Ackert Gere Jordon Adam Bowen Teresa Warren 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.

SENSIBLE SOLUTIONS to EMOTIONAL PROBLEMS

Family Law Specialist John H. Tannenberg uses a simple, direct approach to help clients navigate through an increasingly complex family law system. by Karen Gorden

“My firm provides clients with the information they need to know and understand in order to help them resolve their case in the most cost efficient and practical way,” says John H. Tannenberg, CLS-F. This simple explanation of his professional goals succinctly describes his work in a field that continues to become increasingly more complex as the years pass. As a matter of fact, for Tannenberg, who has been practicing law for more than 36 years and has been Board Certified as a Family Law Specialist by the State Bar of California since 1990, in many ways, divorce and custody battles can be more time consuming and stressful than ever for parties involved. However, Tannenberg’s natural leanings towards taking things as they come and addressing one issue at a time have proved to be helpful countless clients through some of the most difficult days of their lives.“We do not hype cases or tell the client what they necessarily want to hear. Rather, our advice is straightforward, practical, useful and presented in such a way that the client can understand legal concepts, rules and issues. This in turn permits our clients to make meaningful, knowledgeable decisions about the issues in their particular matter,” Tannenberg explains in the matter-of-fact style that has helped his clients who are dealing with extremely emotional issues. 4 Attorney Journal | Volume 110, 2012

Going With the Flow “I was a double major at UCLA in Political Science and Zoology. I thought one major would be a basis for a law career; the other seemed a natural progression toward becoming a Veterinarian. Many of my relatives were practicing lawyers and they urged me to choose law school as a course of study. To this day I’m not sure what eventually persuaded me that becoming an attorney was a better choice, but that was the path I chose,” he admits honestly. He speaks candidly of going with the flow when it came to selecting his area of specialization. “I didn’t choose family law. Rather, it was chosen for me. I was an associate in a law firm that had multiple practice areas. One of the named partners was a Family Law Specialist who needed one of the associates to assist him in family law and I was selected,” he recalls. However, Tannenberg was pleasantly surprised to find — not immediately, he admits — that the field of family law grew on him. “I enjoyed the challenge and complexity of family law and all its various nuances. I also found that I really enjoyed helping families solve their problems,” he says. Moreover, the family law community in San Diego was incredibly appealing to the young attorney. “I found the majority of the Family Law Bar in San Diego to be very professional, willing to assist and answer colleagues’ questions when possible, well-versed in the law, and reluctant to take cheap shots at opposing counsel. This attitude made the pressures and tensions of working in the family law arena slightly less stressful,” Tannenberg recalls. The work can be very stressful, indeed. “There are highly charged emotional and psychological issues at play when it comes to family law,” he says. Whereas “purely business

Photography by Bronson Pate

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matters are often numbers only, when you get emotions involved, people begin to talk in terms of ‘I don’t care what its worth; it’s the principle.’ I have to remind them sometimes that principles can be very expensive,” he continues. Although, due to the high price of principles, litigation is a substantial portion of his practice, it is only natural for Tannenberg to advise clients to consider mediation or other alternative dispute resolution methods as a substitute. “Clients are more likely to comply with terms they have agreed to in a negotiated settlement rather than those terms imposed by

2012

a judicial officer in a contested trial,” Tannenberg explains. However, he is quick to note that “there are many times when settlement is not in the client’s best interest, particularly if one side is making demands that are not likely to be granted by the courts.” Tannenberg’s succinct and pragmatic approach to handling these emotional and complex cases did not go unnoticed by his firm. He served as senior associate and partner in the law firm of Hinchy, Witte, Wood, Anderson & Hodges, as head of the Family Law Department, where he would ultimately Attorney Journal | Volume 110, 2012

spend more than 10 years before the firm’s dissolution in 2001.

Fork in the Road Proves an Easy Decision For Tannenberg, the decision to go into private practice was not a complex decision. “In 2001, the firm split up for a variety of reasons and I decided that this was a good time to go into private practice, where I could have control of my hours, choose which clients I wanted to represent, and make my own decisions without having to account to a managing partner,” he says, with the same pithy, down-to-earth earnestness he’s become known for. But decisiveness shouldn’t be mistaken for haste, as Tannenberg was well-equipped for a solo practice. He had an AV rating from Martindale-Hubbell, had served as a ProTem Judge for the San Diego Superior Court, and had more than 25 years of expertise in family law in San Diego. And that was just the beginning. After launching his own practice, he would go on to be named in Super Lawyers in San Diego (2009-2012), and a member of the National Register’s Who’s Who in Executives and Professionals, (2004-2005). He became a Guest Lecturer in Family Law at U.S.D School of Law, and continues in that role today. Tannenberg was also named in San Diego Magazine’s Top Attorneys for 2011 and 2012 and in The Best Lawyers in America for 2011 and 2012. He also completed a 40 hour training program in family law mediation/alternative dispute resolution in 2005 and a portion of his practice focuses on mediation services.

Taking the Uncertain Future of Family Law in Stride After nearly forty years in practice, suffice to say, there’s little that ruffles Tannenberg’s proverbial feathers. But that doesn’t mean that he’s not prepared for family law to become even more complex as years go by. Beginning in 2013, in most family law matters, the parties will have to pay the fee for a Court Reporter if they want to have a record of the court proceedings. Tannenberg sees the court system becoming a slower, less efficient system where those with financial means may shift more to alternative dispute resolution or private judging to get their 6 Attorney Journal | Volume 110, 2012

Attorney John Tannenberg and his Legal Assistant Diane Belanger.

cases heard in a timely manner. Court filing fees will continue to increase and the time it takes to get the case heard, even for temporary orders such as establishing child custody, visitation and support, may be calendared as far as three months from the date of filing the Request for Order. But Tannenberg is neither concerned about the changes, nor afraid of future hurdles to be overcome in the field of family law. Since Tannenberg has been in practice, he has seen changes every year; some drastic, while others just take some getting used to. “In the end,” he says, “we all adapt and the process will continue.” Of course, prenuptial and postnuptial agreements can expedite the divorce process, and a portion of Tannenberg’s practice is devoted to drafting these agreements. “The number of specialists in San Diego drafting prenuptial agreements is far fewer than those who handle the most common issues in a family law matter,” he explains. “There are statutory requirements that must be followed in the drafting of these documents, but the courts do tend to favor these agreements,” he explains. “These documents can reduce the cost of a contested, drawn out battle over the issues of characterization and division of property and spousal support and provide some peace of mind to the client,” he adds. Regardless of the new rules and obstacles that arise in family law, when it comes down to it, Tannenberg really enjoys his work. “When I can help a client to reach an agreement with the opposing party, which gives them what is important to them, I find that incredibly rewarding.” For Tannenberg, who admits that practicing family can be hectic, having a balanced life is the antidote to stress the family law field might otherwise create. He’s married to fellow San Diego attorney Cheryl Edwards Tannenberg, a Trust and Estate litigator and they have one 13 year old son. In his time away from the office, he enjoys sailing, kayaking, scuba diving, hiking, camping, golf and skiing. He plays bridge once a month with a group of fellow family law attorneys. He’s participated as a crew member and as captain in multiple sailing races to Ensenada, Puerto Vallarta, Acapulco, Catalina and the most challenging, the Transpac race from San Pedro, California to Honolulu, Hawaii. Incidentally, during the Transpac, his sailboat was hit by a wave at night, knocking the boat down, which began taking on water. But as with everything else, Tannenberg took the incident in unflappable stride. “Equipment, food and supplies were washed overboard, but we managed to right the boat and continued the race. Of course, we didn’t trophy,” he chuckles. n Contact: John H. Tannenberg Law Offices of John H. Tannenberg, A.P.C 401 West A Street, Suite 2050, San Diego, CA 92101 Phone: (619) 235-6169, jtannenberg@jhtsdfl.com www.jtannenberg.com

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NEW RESEARCH SHOWS

IMPACT OF TECHNOLOGY ON LEGAL FIELD by Charles Volkert

Just as technology has reshaped how we communicate and do business, it also is making a significant impact on the practice of law. A just-released industry report from Robert Half Legal explores how emerging technologies are affecting management strategies in law firms and corporate legal departments, and changing how legal services are delivered. Technology’s Transformation of the Legal Field, is part of Robert Half Legal’s 12th annual Future Law Office project, which also includes video interviews with leaders in the legal profession. The full report is available to download at http://www.futurelawoffice.com. For its annual Future Law Office project, Robert Half Legal surveys lawyers among the largest law firms and corporations in the United States and Canada, conducts research to assess how legal organizations might operate in the future, and obtains the insights of key Robert Half Legal staffing and recruiting professionals throughout the company’s branch network in North America.

Key Findings • Law firms are making a greater investment in IT. Nearly six in 10 (59 percent) lawyers interviewed for the Future Law Office project said their law firms will increase spending on technology in the next two years. Law firms plan to purchase software (79 percent), hardware (72 percent), desktop PCs (62 percent), laptops (49 percent), tablet PCs or handheld computers (44 percent) and smartphones (41 percent). • Web-based tools are improving client communication and the delivery of legal services. Lawyers surveyed said their law firms used e-filing

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systems (83 percent), meeting or audio-conferencing tools (79 percent), document storage sites (58 percent), collaborative or information-sharing sites (51 percent) and client portals or extranets (30 percent). • Law firms’ office footprint is shrinking. With mobile devices and wireless networks enabling lawyers to work remotely from any location, law firms are reducing the size of their offices and reconfiguring workspaces. • Technology is leveling the playing field. With firms of all sizes now using similar products, services and tools, small firms and solo practitioners are able to establish a bigger presence online and, in some cases, better compete with larger firms. • Corporate legal departments are using tech tools to manage higher workloads. Nearly one in three in-house counsels (30 percent) interviewed said their legal department’s greatest challenge is reducing budgets/controlling costs. They are utilizing technology solutions to streamline communications with outside counsel and improve efficiency. • Technology has dramatically changed the realm of discovery. As the amount of electronic data grows exponentially, e-discovery remains both a growth area and a challenge for law firms and their corporate clients.

Law Firms Take a Strategic Approach to Technology “Technology has changed the practice of law – from the way legal teams prepare for trial and present cases, to how they communicate with clients and colleagues,” said Charles Volkert, executive director of Robert Half Legal. “Knowledge-sharing platforms, portals and intranets are being used by an increasingly mobile legal workforce. These systems, along with laptops, tablet computers and smartphones, have become essential to law firm productivity.” A growing number of firms are marketing their professional services to different audiences via social media, the research found. However, law firms using these online networks, as well as cloud computing-based services to store data, must address new privacy concerns regarding the security of privileged information. This has prompted many firms to allocate additional resources toward protecting their systems and safeguarding confidential data.

Robert Half Legal is the legal staffing division of Robert Half International. The company provides law firms and corporate legal departments with highly skilled professionals, including lawyers, paralegals and legal support personnel, on a project and full-time basis. With North American and global locations, Robert Half Legal also offers managed review and e-discovery services. More information, including online job search services, can be found at www.roberthalflegal.com.

Corporate Legal Departments Use Technology to Reduce Costs Software designed to monitor expenses and improve the work process is gaining in popularity among corporate legal departments, the research showed. “Many companies are using project management tools to track spending, and streamlining workflow with group calendaring and online collaboration tools,” Volkert said. Technology is influencing the type of work being assigned to outside counsel, as well. “While litigation and e-discovery projects are typically outsourced, if internal teams have access to the same software programs and systems as their law firms, general counsel might keep certain matters in-house to contain costs,” Volkert said. Infographics associated with the research are available. To download a complimentary copy of the complete report, Technology’s Transformation of the Legal Field, watch the video, or find more information about the Future Law Office project, visit www.futurelawoffice.com. n

Attorney Journal | Volume 110, 2012

JUSTICE FOR ALL Not Just a Concept, a Celebration! by Teresa Warren

Gary Holt & Friends (L to R): SDVLP staff attorney Bhashini Weerasinghe, SDVLP client Lance Romero, Attorney of the Year Gary Holt, ad SDVLP pro bono coordinator Marisa Gard Rastetter.

ach year, San Diego Volunteer Lawyer Program hosts two iconic events — LAF-Off (Lawyers Are Funny) and the Justice For All Celebration. LAF-Off is a truly unique experience where lawyers perform stand-up comedy routines, often at the expense of their profession. The sell-out engagement is a must-attend event on the spring fundraising line-up. The Justice for All Celebration is a who’s who event that showcases the best of San Diego’s legal community. This year’s Celebration was held on September 13 and brought together more than 300 attendees at the San Diego Museum of Man. The evening was a great reminder of the strong commitment San Diego lawyers make to pro bono service. SDVLP helps approximately 5,500 clients each year, and relies annually on more than 400 volunteer lawyers, law students, paralegals and other legal professionals to deliver services to our neighbors in need. And the needs are

Attorney Journal | Volume 110, 2012

great. With women and children making up 85 percent of SDVLP’s clients, volunteers deal with domestic violence, custody and guardianship, HIV/AIDS discrimination and much more. This year’s Justice for All Celebration honored three important contributors to SDVLP. August Larsen of AJL Litigation Media Inc. was presented with SDVLP’s Community Service Award by Amy Fitzpatrick, executive director of SDVLP. For seven years, Larsen has produced videos and provided a variety of

support to SDVLP. He is a volunteer who “always stepped up to offer his services and carried them out, even when ill,” according to Fitzpatrick. As Larson humbly accepted the award, he reflected that working with SDVLP is an “opportunity to show kindness, and it has been a privilege and pleasure to work with the organization.” Chris McGrath, vice president and president-elect of SDVLP’s board of directors, presented the Law Firm of the Year Award to Procopio, Cory, Hargreaves & Savitch LLP, noting that the firm has provided lawyers, paralegals, secretaries and translators to SDVLP. Gary Wright, a partner with the firm, said that is was a “personal pleasure to receive the award” and that the San Diego community is “blessed by SDVLP’s staff.” In addition to utilizing hundreds of volunteers, SDVLP has a staff of 23 who run the organization’s legal clinics, assess and assist clients and coordinate volunteers, as well as provide direct legal representation in numerous areas of law. SDVLP staff attorney Bhashini Weerasinghe, who oversees the organization’s HIV/AIDS Law Project, presented the final award– Attorney of the Year – to long-time SDVLP volunteer and bankruptcy attorney Gary Holt. Weerasinghe noted that Holt has transformed the lives of hundreds of SDVLP clients by lifting the financial burden brought on by HIV/AIDS. Holt told the audience he was “honored to be recognized for things I love to do.” A former SDVLP client, Lance Romero, spoke of the significant difference Holt had made in his life and encouraged the attendees to get involved with SDVLP by taking on at least one case each year or by donating to the organization. Outgoing SDVLP board president Jeff Isaacs was also honored for his years of leadership with SDVLP. Isaacs, a partner with Procopio, will step down from the presidency of SDVLP at the end of this year, but will remain on its board of directors. For those who attended the Justice for All Celebration, the evening was a great reminder of the important role of pro bono services in our community. With court services being drastically cut, those without legal representation have fewer resources. This increased need puts further pressure on SDVLP. Attorneys and related service providers can help by volunteering as Lance Romero suggested - by taking on at least one case per year. Also, SDVLP is always grateful for financial donations. Yet another way to support SDVLP is to attend the organization’s next event, LAF-Off, on March 21, 2013 at the House of Blues. For more information, please visit www.sdvlp.org. n

Chris McGrath & Gary Wright (L to R): SDVLP president elect and Paul Hastings Janofsky & Walker LLP partner Chris McGrath and Gary Wright of Law Firm of the Year Procopio, Cory, Hargreaves & Savitch LLP Amy Fitzpatrick & August Larsen: SDVLP executive director and Community Service Award honoree August Larsen of AJL Litigation Media Inc.

Attorney Journal | Volume 110, 2012

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COMMUNITY news nWingert Grebing is pleased to announce that four of its partners have been named to the 2013 edition of the Best Lawyers in America. Charles Grebing has earned a spot on the list for the past 20 years, while Alan Brubaker has been so honored for the past 15 years. Jim Mangione has appeared on the list for 10 years, while Bob Juskie has garnered recognition since 2007. Best Lawyers is the oldest and most ALAN BRUBAKER 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 CHARLES GREBING subsequent polls to remain on the list for each edition. Attorneys may not pay to participate in or be included in Best Lawyers.

HEATHER ROSING

JOHN KLINEDINST

nDaily Transcript has recognized Klinedinst CEO John D. Klinedinst and Klinedinst CFO Heather L. Rosing as 2012 Top Attorneys in San Diego County. Mr. Klinedinst was named Top Attorney in Corporate Litigation, while Ms. Rosing was distinguished as Top Attorney in Insurance litigation for her work in the professional liability arena. All of the honorees were to be recognized at a special event hosted by the Daily Transcript on Monday, July 30, 2012. Previously, the Daily Transcript recognized Mr. Klinedinst as a “Transcript 10” in its Top Attorneys for 2008. This is the fourth year that the Transcript has recognized Ms. Rosing, who has been featured consecutively every year since 2009. “This is an incredible recognition for John and Heather,” said Art Moreau, Chief Operating Officer of Klinedinst. “Their stalwart leadership, both at Klinedinst PC and in the San

14 Attorney Journal | Volume 110, 2012

Diego legal community, make them perfect for the Top Attorneys recognition. This is indeed a tremendous honor.” nWendy Behan, a partner with Casey Gerry Schenk Francavilla Blatt & Penfield, LLP, was recently elected first vice president of California Women Lawyers (CWL), the only statewide bar association for women. In this capacity, Behan will play a leadership role on the CWL Board of Governors, which works tirelessly to advocate for and advance issues that affect women in the legal profession. Behan, who specializes in personal WENDY BEHAN injury and pharmaceutical litigation for San Diego’s oldest plaintiff’s law firm, has served on CWL’s Board of Governors and Executive Committee since 2011. She is a past president of the Lawyers Club of San Diego – which also seeks to advance the status of women in law and society – and currently serves on their advisory board. Behan joined Casey Gerry in 1999 and was promoted to partner in 2010. Her past experience includes co-litigating lawsuits filed on behalf of American Prisoners of War who had been abused and exploited as slave laborers by Japanese companies during World War II.

DOUGLAS PETTIT

THOMAS INGRASSIA

nPettit Kohn Ingrassia & Lutz would like to congratulate shareholders Doug Pettit and Tom Ingrassia for having been selected by their peers for inclusion in the 2013 edition of Best Lawyers in America®. Doug, a founding member of Pettit Kohn, was selected in the area of Legal Malpractice Law. He is renowned for his trial litigation expertise and represents clients in the areas of professional liability, business litigation, product liability and appellate matters. Tom, who in addition to being a founding member, serves as the firm’s CFO. He was recognized in the practice area of Employment Law. Tom works with CEOs, CFOs and Human Resources professionals to provide employment, labor and management counseling, and defends all forms of employment litigation through trial. Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because

COMMUNITY news Best Lawyers is based on an exhaustive peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.

JOHN HERSHBERGER

nJohn D. Hershberger, a partner at Best Best & Krieger LLP, has been appointed as a master of the Louis M. Welsh Inn of the Court whose members include many of San Diego’s most respected law firm senior partners and judges. Hershberger is a member of BB&K’s business services and litigation practice groups. His practice emphasizes real property, title insurance, insurance coverage, insurance bad faith and general

business litigation. American Inns of Court are designed to improve the skills, professionalism and ethics of the bench and bar. Founded in 1983, the Welsh chapter’s goal is to create a permanent mechanism to enable senior members of the legal community to pass on to younger members the higher standards and technical skills necessary to enhance the practice of law by those in the trial community. A lawyer for 29 years, Hershberger is a member of the bars of California, Florida, and Washington, D.C. nChristina Denning of Higgs Fletcher & Mack, a San Diego-based, full-service law firm for more than 70 years, was selected by San Diego Magazine as a nominee for the 2012 “Women Who Move the City” award. San Diego Magazine takes nominations from throughout San Diego County recognizing dynamic women who work to create positive change and contribute to the CHRITINA DENNING community. With over 10 years of litigation experience, Denning has built her Construction Law practice from scratch while still maintaining the personal injury and business litigation side of her business. Denning was also a recipient of the San Diego Daily Transcript’s 2012 “Top Young Influential” award that recognized her contributions to the legal community and involvement in and dedication to improving the San Diego community. Denning lives in San Diego with her husband and their Shar-Pei in South Park. In her spare time, she enjoys reading, running, golfing, glass fusion, cooking, snowboarding and spending time with her “Little Sister” through the Big Brothers/ Big Sisters program.

nThe Center for Employment Opportunities (CEO) today announced that Elizabeth S. Balfour has joined the organization’s Board of Directors. CEO works exclusively with formerly incarcerated people and helps them gain basic work skills to obtain full-time, private sector jobs. Headquartered in New York City since its inception as an independent non-profit in 1996, CEO launched a replication of its evidence-based model ELIZABATH BALFOUR in San Diego in November, 2011. “I am honored to join CEO’s board,” said Elizabeth Balfour, a litigator who works out of Sheppard Mullin’s Del Mar Heights office. “Here in San Diego, as well as throughout California, there is an urgent need to help men and women coming home from prison get an opportunity to turn their lives around. I believe CEO helps provide an important answer to one of society’s most pressing social issues. I couldn’t be happier to help guide the organization, especially as they look to expand in San Diego and throughout our State.” nLittler Mendelson, P.C. (Littler), the world’s largest employment and labor law firm representing management, today announced that shareholders Thomas Bender (Philadelphia) and Jeremy Roth (San Diego) will become co-presidents and co-managing directors of the firm, effective January 20, 2013 for an eight-year term. Bender and Roth succeed Marko Mrkonich, who has served as president and managing JEREMY ROTH director since 2005 and will continue in the role until the end of 2012, when he will return full time to the practice of law at the firm. “It has been exciting to see the firm’s transformation over the last 23 years, particularly the successes achieved under Marko’s leadership,” said Roth. “His vision and guidance has catapulted Littler’s growth with domestic and international expansion spanning five time zones, enabling the firm to meet the needs of its clients in strategic geographic markets. Additionally, he has been instrumental in the firm’s financial success, which is truly a remarkable feat during what has been a period of significant change for the legal industry and overall business environment. I am honored to be following in his footsteps and look forward to working with Tom on this collaborative effort.”

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us

Attorney Journal | Volume 110, 2012 15

SEEING

THE WHOLE

PICTURE By Jennifer Hadley

Erwin Shustak’s inimitable perspective and perception have protected clients to the tune of hundreds of millions recovered for victims of financial abuse and fraud.

Photography by Bronson Pate

hen Shustak Frost & Partners, P.C. opened its San Diego office in 1998, they were far from the new kids on the block. In fact, the firm, founded by Erwin J. Shustak in New York City, had already been enormously successful for more than 20 years. Shustak had built a thriving Manhattan practice that specialized in representing victims of securities or financial fraud, regional brokerage firms, Financial and Investment Advisors, and medium to large businesses involved in complex business disputes. Yet, the desire to raise his then three year old son outside of the city that never sleeps led him west, settling his family in San Diego. With a strong, national client base firmly intact, Shustak was confident that his new West Coast Practice would prove successful, but admits he envisioned that New York would continue to serve as the firm’s epicenter. He was pleasantly surprised therefore, to find that within 4-5 years, the San Diego office of Shustak Frost & Partners was handling a caseload greater than its East Coast counterpart. Even more surprising, within 7 years, the San Diego office was larger, busier, and had more attorneys and staff than New York. That has remained the case, with 12 of the firm’s attorneys based in San

Diego and only 3 in New York. “I liked the pace, beauty and climate of San Diego and the legal and business community were very welcoming. In New York, bombastic lawyers are the norm. Here, the bar is more polite, respectful and collegial. I never liked the intensity or aggression of practicing in New York,” Shustak says. That didn’t mean, however, that new clients would beat down the firm’s new San Diego doors, nor did he expect them to. On the contrary, Shustak has always felt the need “to create the market for his services,” one of the many lessons his father, a successful businessman, taught him. “My father used to say, ‘if you want to get clients, you have to earn their trust and ask for their business!’” Indeed, long before he was founder of one of San Diego’s “few firms focused in the area of securities and financial law with a breadth of expertise and experience representing financial institutions; broker dealers; registered investment advisory firms; registered representatives; financial advisors and public investors,” Shustak was creating a unique perception and perspective when it came to life and law; a view and a practice that would benefit clients, large and small, from around the globe. Attorney Journal | Volume 110, 2012 17

Standing (left to right): George Miller; Dominic Giovanniello; Lauren Chipperfield; Besse Johannsen; Jonah Toleno; Robert Hill; Mary Scott-Hattendorf; Sed Zangana; Genevieve Ruch; Hazel Aquino; Karen Henry. Seated (left to right): Joe Parker; Erwin Shustak; Tom Frost

SOLID PERCEPTION OF SELF “As a child, I had a very strong sense of fairness. It bothered me greatly to see smaller, weaker people being bullied by bigger, stronger ones. I identified with the underdog. I felt that people and businesses needed someone to stand between them and those who tried to and did take advantage of them. I was a tall, skinny kid and had my own share of being pushed around. It created an internal sense of moral outrage that people would prey upon those they perceived as smaller, weaker or less sophisticated.” In the financial world, he found this to be overwhelmingly true. “There are those who work their whole lives to save their nest egg and those who spend their days scheming how to take that money from them. Good times or bad times, there is always a scam, scoundrel or fraud in the making. I vowed as a child never to be a victim and to help those who were.” “Over the years, I realized I could combine my keen interest in uncovering truth and getting to the bottom of an issue with my desire to help people who have been victimized and stand between those who sought to oppress others and those who otherwise would be victims. Being a lawyer seemed to be the best and highest use of my talents, skills and desires to help the unfortunate. It was a perfect fit,” Shustak explains. As a law student, he developed his natural skills and talents, including an aptitude for linear thinking and old-fashioned detective work.”I did well; top of my class; Law Review; all the brass rings.” He also took objective stock and focused on

18 Attorney Journal | Volume 110, 2012

his potential shortcomings. “While I did very well in college and graduated Phi Beta Kappa and with Highest Distinction in Economics, I never really learned to write. Throughout college and law school [at NYU], writing was my weak point. Once I graduated law school, and realized I would be writing for the rest of my life, I needed to develop written skills to best communicate my thoughts and advocate for my clients. I bought a number of writing and style books, and spent weeks just reading and studying them. I had to teach myself to write from the ground up,” he recalls. It was also during those years that Shustak found his own voice. While enrolled in the Dale Carnegie program, ‘How to Win Friends and Influence People’, Shustak learned the art of public speaking. “One night I gave an extemporaneous speech. I was nervous but I learned then and there to speak from my heart. When I finished, the other students gave me a standing ovation and I won the award for the best speech. From that night on, I have stayed true to speaking from my heart and have never looked back,” Shustak explains. Having graduated at the top of his class and serving as a member of the Law Review, it wasn’t surprising that Shustak was courted by most of the major New York law firms. Having his choice of firms, Shustak accepted a position with Kaye Scholer Fierman Hays & Handler, one of the then New York powerhouse firms, where he’d worked as a summer clerk after his second year of law school. “It was a great place to learn and watch how law is practiced

Shustak Frost & Partners is active in various fundraising activities, including this year’s Lawyers Club golf outing.

at the highest level. The firm had a spectacular practice and very bright, well-respected partners with whom I worked on a variety of matters, including mergers and acquisitions; major litigations and real estate transactions. It was a very interesting experience but after almost exactly one year, I realized I was missing something. My father was a self made, successful businessman. I loved working with my father and learned a great deal about how to run a business and court and keep clients. I missed that experience very much and wanted to have my own clients, run my own business and have a more direct connection with clients who needed my help. I became a lawyer to help people with their problems and working in a large mega-firm kept me too removed from the people I wanted to help,” he says. COUNTERPHOBIC PERSPECTIVE Armed with a solid sense of self, and knowing that not only could he make a difference in peoples’ lives, but that he would make a difference in peoples’ lives, Shustak went into business for himself with gusto. “I was 27, single, living in what was then an inexpensive Manhattan apartment with very few obligations. I borrowed $5,000 and rented a large, impressive office on Park Avenue. I had no clients, a few dollars in the bank but a great deal of energy and enthusiasm. I worked seven days a week. My personal and professional life blended. I started to take on all kinds of cases. I learned that there were many people who needed legal help

and everyone wanted a young, hungry, inexpensive lawyer who would give their cases his all. That was me,” he says honestly. “I worked hard and loved learning my profession.” “I tried case after case. I tried every kind of case I could, ranging from civil rights cases for unions, contract disputes to securities arbitrations before they were mandatory. I would not settle cases unless my clients were paid everything,” he says. His tenacity did not go unnoticed by his peers. After representing more than 250 former Helena Rubinstein executives who were laid off en masse when Colgate Palmolive bought the company and did wholesale layoffs without paying the employees the severance pay to which they were entitled, Shustak successfully appealed the trial judge’s decision dismissing the case. “It was me, with a part time secretary who worked four hours on Thursday evenings, against two of the largest law firms in New York. Only after the company and its attorneys realized I was not giving up or going away did they settle the case and pay my clients every penny to which they were entitled,” he says. Shustak quickly earned a quick reputation as a champion of the underdog, and adversaries learned firsthand that, as Shustak puts it “I would not go away. I still won’t.” Shustak’s refusal to back down in the face of intimidation certainly doesn’t mean that after 36 years in the field, he continues to take every case brought to him. In fact, the opposite is true today. He only takes cases that he feels strongly about and has no difficulty telling clients the truth from the get go. “I am

Attorney Journal | Volume 110, 2012 19

extremely honest with clients. If I don’t think it’s a good case, I’ll tell the client. Clients appreciate honesty. Most clients listen to me. I guess it’s the benefit of having grey hair,” he jokes. But he earnestly states “I can’t think of a single case where we were on the wrong side of the case. I feel strongly about all of our cases.”

Erwin is an avid runner. He ran three marathons this year with one more (the Silver Strand) to go.

20 Attorney Journal | Volume 110, 2012

BENEFICIAL PROJECTION ONTO THE SAN DIEGO COMMUNITY In addition to refusing to handle matters that are questionable or clients whose ethics he does not share, Shustak also refuses to be anything less than rigorously straightforward with clients from the outset. The firm’s motto, “we exist solely to serve clients” bears true in the transparency Shustak offers every client, beginning from the initial consultation which is always free of charge. “I insist that the client is informed and consulted during each stage of the process-that every document or piece of paper we receive or generate is given to the client and that we constantly check in with them to ensure the client understands what is going on in his or her cases. I cannot remember a client calling me to ask about the status of his or her case. They don’t need to. We always call them,” he says. “People care less about the outcome than they do about having honest, responsible and attentive attorneys. Studies bear that out. Being candid with clients is what keeps them coming back. If there is going to be exposure, I let them know up front. I tell them when it is going to be ugly and nasty, and if they should settle. I am very candid, very direct, and give my 100% honest appraisal on each case,” he says. The strategy appears to be working exceptionally well. To date, Shustak Frost & Partners has been instrumental in recovering over $900 million for defrauded investors over the 36 years since the firm’s inception. They routinely handle FINRA arbitrations; federal and state securities fraud, business and

Contact: Erwin J. Shustak Shustak Frost & Partners, P.C. 401 West A Street, 23rd Floor San Diego, CA 92101 570 Lexington Avenue - 16th floor New York, NY 10022 shustak@shufirm.com www.shufirm.com

EXPERIENCE

intellectual property cases; disciplinary hearings for brokers, brokerage firms and investment advisors and defend brokerage firms and other institutional clients from various claims by brokers and investors. One thing Shustak doesn’t do, is sit in his office, resting on his laurels or past accomplishments. Instead he remains committed to a business strategy he’s invoked for years, and it’s a strategy he encourages young attorneys to utilize as well. “If you meet someone who is in position to give you legal work and it is a client that you want to work for, don’t hesitate to go in person, hat in hand, and ask for a chance. I always do that and can’t count how many high quality clients I have had over the years who have given me their legal business merely because I was honest and asked for a chance to represent them,” he says. Finally, Shustak counts his own experiences as a consumer of legal services as being invaluable to his sensitivity to what his clients need and expect. Between business and personal matters, including an expensive divorce, Shustak has personally spent more than $1.0 million in attorney fees over the past 36 years. While he’s certainly not thrilled about the cost, the experiences of being a client on the other side of the desk have been priceless to his maturity and sensitivity to his clients. “Having been a client many times, and having paid attorneys hundreds of thousands of dollars for their time and advice, I developed a real empathy to what it is like to be a client. That has made me that much better of an attorney. I know what clients need and expect.” It certainly sounds like Erwin Shustak’s perspective has remained firmly grounded in his childhood dreams of protecting the weak, the unsuspecting and the trusting from the “many large institutions which operate with a thin veneer of respectability, but in reality are racketeering enterprises committing frauds and scams.” As a matter of fact, in the 36 years since he graduated from law school, he’s done his best to combat unscrupulous opportunists by helping victims of all kinds. n

» EDUCATION

• BA, 1973, Rutgers College, Phi Beta Kappa; Cum Laude and Highest Distinction in the Field of Economics. • JD, 1976, New York University School of Law. Elected to Law Review on the basis of academic excellence.

» AWARDS

• Southern California Super Lawyers, 2007, 2008 and 2009 (business and securities litigation) • “Top Influential of 2012” selected by the San Diego Daily Transcript • “Top Attorney 2005” selected by the Editors of the San Diego Daily Transcript

» PROFESSIONAL MEMBERSHIPS

• Arbitrator for FINRA (formerly the NASD) and The National Futures Association • Association of Trial Lawyers of America; Business Trial Attorneys of San Diego • New York, California and San Diego County Bar Associations Attorney Journal | Volume 110, 2012 21

COMPUTERS

EVOLVE TO ASSIST THE

REVIEW OF

COMPUTER GENERATED

DATA By Adam Bowen

2012 has been called by some “The Year of Technology Assisted Review.” What does that mean, and why is that? In 2011, the amount of information created and replicated surpassed 1.8 zettabytes (1.8 trillion gigabytes) – and is likely to continue doubling every two years. Unfortunately, the old tools – the old methods – aren’t enough to keep up with the increasing volumes. Computer-assisted review enables human reviewers to train their computers to identify documents that are responsive or not responsive to the topics. Although there are only a few decisions about the use of these types of technology, judicial commentary does support the use of computer-assisted review. It’s worth repeating Judge Andrew Peck, “This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” Why? How many attorneys does it take to review 25 million documents? How long will it take and how much will it cost? Consider the initial merger effort of SBC and AT&T and the ensuing Second Request. Using traditional linear methods, this type of review would take 700 attorneys almost 400,000 hours to complete. And even with lower cost contract attorneys, the cost is more than $29 million dollars. This might be a good investment or even necessary for a $16.9 billion dollar deal, but not realistic in most review situations. Computer technology played a role in the creation and storage of all these potentially relevant documents (including lots of duplicates and near duplicates). It makes sense to leverage advances in computer technology and 22 Attorney Journal | Volume 110, 2012

processing power to tackle some of the large volumes of documents these same advances make possible. Basic keyword searching (or expanded Boolean) is an established and effective way to reduce volume and attain precision. However, recent studies show that using keyword searching to cull data leaves many relevant documents behind. If we search for banana, we will find banana. But we won’t find “long yellow fruit that grows on trees in tropical climates” … we need more help.

Arguably, the cost associated with reviewing large volumes of documents is enough to motivate us to use any help we can get to reduce these costs. But the quality of these reviews and, ultimately, the quality of produced documents can’t be overlooked. Judge Paul Grimm has often been quoted, “Although basic keyword searching techniques have been widely accepted … as sufficient to define the scope of their obligation to perform a search for responsive documents … simple keyword searching alone is inadequate in at least some discovery contexts. This is because simple keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English.” Even before this enlightenment – Judge John Facciola was recorded as saying, “I bring to the parties’ attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results.” Large scale review doesn’t play to the strengths of human reviewers. Factors such as low motivation, the review

being a tedious task, fatigue or teams mixed with varying degrees of knowledge can result in productions with very low recall rates. Several new tools are available to increase the number of documents a reviewer can review per hour. These tools include clustering, email thread analysis, near-duplicate identification, conceptual searching, metadata analysis, and domain filtering. Technology-assisted review, also known as predictive coding, is another new tool. When talking about computer-assisted review, it’s important to understand precision and recall, two terms from information retrieval science. Precision is the percentage of documents returned by a search that are relevant, and Recall is the percentage of all relevant documents returned by a search. Our goal is to maximize Recall while achieving acceptable Precision. There are many tools and applications to choose from when committing to this type of review technology. Iteration is a consistent factor in the different technologies. Successful adoption relies on a combination of sound technology, expert reviewer, and defensible process. Place emphasis on the review workflow. There are easy to understand processes that can be followed. Subject matter experts review a small subset of the document population. These documents are ranked, results are measured, repeat. These batches go through quality control and overturn cleanup. Different technologies use different ranking systems, but, ultimately, once the human has adequately trained the system, it can rank the entire population of documents. Now we have rankings of relevancy or discrete buckets of relevant and non-relevant data (a small amount of uncategorized is to be expected as well). It’s important to note that the documents considered by the system to be most likely relevant are typically reviewed to improve precision and identify any privileged or confidential documents. This assisted workflow reduces the amount of time in which humans are provided with a rich set of potentially relevant documents to review. The non-relevant data should have sufficient levels of quality control. The potentially relevant data is now ready for the earlier technologies discussed. Simple linear review could be used, or advance organizational structure or concept searching will continue to assist in the productivity and quality of the review. The continued use of computerassisted technology in the review workflow will help identify potentially privileged documents as well as identify documents related to issues. To cope with 2012 levels of electronically stored information, eDiscovery teams need to adopt 2012 methods and tools. Bring tools and techniques in house or work with service organizations that have specialist teams and established tools and processes. As technology advances have enabled people to generate these large volumes of documents, we can leverage technology advances to keep eDiscovery effective and reasonable. n Adam Bowen is a Solutions Architect at DTI. He is responsible for engaging in the development and implementation of clientspecific electronic discovery solutions, including forensics and data collection, processing work flow, hosting services and document review services. Adam has been in the litigation support space for over 17 years, working with both in-house legal counsels and Law Firms across the United States.

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Photography by Bronson Pate

Attorney Journal’s October Snapshot STEVEN H. KRUIS ESQUIRE KRUIS MEDIATION

Heart of the MATTER

by Jennifer Hadley

For nearly 20 years, Steven H. Kruis has served the San Diego legal community as a mediator in civil cases spanning the spectrum from complex business disputes to real property claims, labor and employment disputes, personal injury claims, and a vast number of probate and trust disputes. Although he sticks to civil matters, it is, metaphorically speaking, precisely the lack of civility that is responsible for so many disputes. An admitted lifelong student of the human mind, Kruis has devoted his life’s work “understanding how we think,” in order to benefit countless San Diegans who are involved in legal disputes and are desperate just to be heard. According to Kruis, a Martindale-Hubbell AV-rated attorney and former Managing Partner with Higgs, Fletcher & Mack, “people want to express themselves. Litigation does not allow for it. Even cases that appear at first to be rooted in financial disputes are often very emotional for those involved,” he says. In part, that may boil down to science. “When the limbic system (responsible for feelings and emotions) is in charge, the neocortex (which is responsible for logic and rationality) can’t win.” Through years and years of experience, Kruis has learned that parties in dispute almost always reach an impasse if the emotional component is not addressed. Fortunately, more often than not, that emotional weight is lifted simply through having one’s position heard by the opposing party. Then, and only then, can the parties involved get to a place where agreement and compromise become a realistic goal. In order create a space where each party has their chance to

JOURNAL

FEATURED MEDIATOR

OF THE MONTH

2012

be heard, Kruis works hard to facilitate an environment that provides a comfortable, relaxed platform for all parties to have their emotional say. Once this platform has been established and each party has had their chance to express the emotional components, the odds of reaching a rational compromise or settlement multiply exponentially. To do this, Kruis has recognized that he must remain a true neutral, and that extends to his style of mediating. Far from utilizing a strong arm or evaluative approach-which he concedes certain attorneys do want and need in certain mattersKruis is neither this type of aggressive mediator, nor is he a passive mediator. He’s, frankly, somewhere in the middle, which is coincidentally where he strives to guide his clients to meet. “I spend a lot of time listening, and through providing an environment where people feel heard, I am therefore able to help each party get a more realistic view of their own case,” he says. Often, once the emotions are neutralized, parties are finally able to appreciate the strengths and weaknesses of their own cases, and are able to come to terms with risks involved in not settling the case.” n Contact: Kruis Mediation Steven H Kruis, Esq. The Koll Center 501 West Broadway, Suite 1330, San Diego, CA 92101 619.702.8834, steve@kruismediation.com www.kruismediation.com Attorney Journal | Volume 110, 2012 25