SAN DIEGO
Volume 201, 2020 $6.95
Leading Successful Practices Through COVID-19
Susan Lambreth
COVID-19: How to Prepare for Potential Future Disputes
Skadden
Standing Out in the New Norm: Be the Solution ...
Merry Neitlich
8 Ways to Keep the Business Development Engine Running
Doug Ott
Law Firm of the Month
16 Easy Ways to Connect While Social Distancing
Stefanie Marrone Don’t Let Your Blogs and Content Fall Victim to COVID-19
Schulz Brick & Rogaski, San Diego Changing of the Guard
Jim Bliwas
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2020 EDITION—NO.201
TABLE OF CONTENTS 22 COVID-19: How to Prepare for Potential Future Disputes by Skadden, Arps, Slate, Meagher & Flom LLP
10 Standing Out in the New Norm: Be the Solution ... by Merry Neitlich
12 Community News EXECUTIVE PUBLISHER Brian Topor
LAW FIRM OF THE MONTH
16 Schulz Brick & Rogaski, San Diego Changing of the Guard
EDITOR Wendy Price CREATIVE SERVICES Penn Creative
by Dan Baldwin
6 Leading Successful Practices Through COVID-19
CIRCULATION Angela Watson
by Susan Lambreth
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Merry Neitlich Doug Ott Susan Lambreth Stefanie Marrone Jim Bliwas Skadden WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
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24 Don’t Let Your Blogs and Content Fall Victim to COVID-19 by Jim Bliwas
26 Eight Ways to Keep the Business Development Engine Running During COVID-19 by Doug Ott
28 Sixteen Easy Ways to Network, Connect with Clients, and Build Brand While Social Distancing by Stefanie Marrone
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Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2020 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
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801 SOUTH 4TH STREET | LAS VEGAS, NV 89101
Leading Successful Practices Through COVID-19—Learn from Your Peers and Pay It Forward by Susan Lambreth
R
ecently, LawVision hosted a webinar for the members of its Practice Group Professionals Roundtable. This is one of our longest running roundtables, started in 2001. The members are the business directors, chiefs of staff, legal ops leaders for law firm department and practice group leaders— essentially the businesspeople who help the lawyer-leader run the department or groups. Just before the webinar, members had reached out to us with questions about issues like: • Business continuity best practices • Cash conservation activities (including draw and pay cuts, bonus payouts, furloughs/layoffs, increased use of retainers, deferral of projects, etc.) • Engagement of professionals while working from home • Continuity of PG meetings while working remote • Impact on lateral hiring • Other work from home issues PG Professionals are dealing with or seeing So, we organized a webinar of the members to share their best practices and insights and how they and their group members were coping. Firm members were sharing their success stories and challenges in hopes of helping other firms benefit as well. As covered in another recent blog, this is a time when it is critical to “over-communicate” live voice and to keep up, if not increase, the social connections of your firm members. Here are some of the highlights—and I know there will continue to be interesting and creative ways firms are responding: • More frequent partner calls at firm, department or practice group level—where firm management can share the latest updates about changing firm policies, structures and approaches to adapt to new client needs, working from home (WFH) and more—in some firms, this has been weekly just to insure that there is no vacuum that can be filled with untruths or misinformation that could alarm people or otherwise hurt morale. 6
Attorney Journals San Diego | Volume 201, 2020
• Weekly calls of the entire practice group so that the members can stay connected, support each other, and share ideas. • Requiring everyone on the practice group calls to activate their camera so fully engaged on the Skype, Zoom or other conferencing they are using. • Partners reaching out to associates individually to make sure they feel connected, to answer any questions they have about what the firm is doing and how things are changing, to be assured about their importance to the firm and more. This can be done through assigning partners in your PG to reach out to specific associates or through your already assigned mentoring relationships (just don’t let any associate fall through the cracks if a partner doesn’t do his or her calls). • Bringing levity to the calls or meetings of departments, practices, matter teams or even entire firms (if small enough to work) by hosting virtual “happy hours,” sharing photos of dogs in their WFH space or of something baked at home (when was last time most lawyers had time at home to actually bake something that wasn’t pre-made?). Some of the interesting themes that arose include: • Where for some firms, practice group meetings in the past might have “dragged” or struggled to keep the members’ interest (even if live), there now is plenty to talk about and no shortage of sharing. For many, they feel their practice group meetings are now more substantive than ever and members are actively engaged on the video calls. • The presence of a common “threat” or “enemy” in COVID-19 and the economic impact of it has created a new sense of urgency for groups to meet, share ideas and execute on plans together. • Having more regular (weekly or bi-weekly) but shorter (30 mins max) meetings has created a higher level of energy in the groups (this is consistent with the research in the outstanding book on how to move plans from ideas to execution, The 4 Disciplines of Execution).
• One of the biggest struggles in the first week or two of WFH has been for parents of young children, especially if both parents worked outside the home before. It is definitely affecting productivity as one parent must manage the kids (from feeding to setting up living room forts and more) and they take turns trying to do their work. For others without young kids but perhaps other distractions like less than ideal work at home space or being home all alone and isolated, there are vastly different issues. The PG Professionals and others in the firm are part of the leadership helping the firm figure out how to support the professionals to effectively serve clients from their home “offices”, while also doing “self-care” to keep their own morale up. • Be careful if you are a “planner” as you can find yourself trying to cope with the current crisis by planning and as one of our speakers for the webinar said, “you can’t plan your way out of this.” You can do your best to be prepared but do not create a false sense of confidence that you have a plan that will stand. Like one of my favorite quotes says, “Life is what happens when you made other plans.”
Dr. Larry Richard also spoke at the end of the webinar to offer suggestions to our members about the 3 basic human needs that are being affected dramatically by all these changes and uncertainty. He detailed this and strategies for addressing them in an article he published this week: “The Psychology of Crisis Leadership.” We hope that you will reach out to share how your firm or practice is developing new approaches to communicate, engage with colleagues or clients, support each other, and create new ways of working and serving others. That way we can pass those ideas on to help others and continue to pay it forward by sharing like these firms did. n Susan Lambreth is a founding Principal at LawVision and is nationally recognized as one of the top leadership, practice group and project management consultants for law firms. For over 25 years, she has helped law firms of all sizes improve their profitability and enhance their lawyers’ leadership and management skills. Susan is the Chair and Founder of the LPM Institute, a leading resource for educating law firms and law departments on implementing project management in their organizations. She has given hundreds of speeches on practice management, LPM, strategy and trends affecting law firms or law departments.
EMPLOYEE-OWNED? The time is now to learn about Employee Stock Ownership Plans. Employee Stock Ownership Plans (ESOPs) create new opportunities for employee ownership, shareholder liquidity, corporate financing, and tax planning opportunities. For more information about ESOPs, contact: Marc Schechter: mschechter@bsllp.com
Helping You See ERISA and Employee Benefits Law Clearly Practice areas include: ESOPs - Pension, Profit Sharing, 401(k) Plans - ERISA Litigation - ERISA Compliance - IRS and DOL Audits - Nonqualified Deferred Compensation Plans - Stock Options Plans - Business Transaction & Succession Planning Qualified Domestic Relations Orders (QDROs)
10021 Willow Creek Road, Suite 200, San Diego, California 92131 Telephone: (858) 444-2300 Facsimile: (858) 444-2345 www.bsllp.com
Attorney Journals San Diego | Volume 201, 2020
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GOING TO TRIAL – NEED EXPERIENCED HELP?
SPECIALIZING IN BET-THE-COMPANY CASES OVER 65 YEARS OF COMBINED EXPERIENCE REFERRALS/SUBSTITUTIONS ACCEPTED AT ALL STAGES OF LITIGATION, INCLUDING TRIAL • Complete defense jury verdict in real estate dispute and more than $400,000 collected for attorneys’ fees and costs in Batter v. McElhinney, et al. (2019)(Jason Kirby). • $2.1 million jury verdict for firm client in Doe v. San Diego Unified School District, et al. (2018)(Jason Kirby & Michael Kirby). • $1.1 million arbitration award for firm clients on cross-complaint after zeroing plaintiff on $6 million damage claim in Step Strategy Advisors v. Solid Gold Health Products for Pets, Inc., et al. (2018)(Jason Kirby lead counsel). • Michael Kirby received the 2019 Best Lawyers in America® distinction for (1) Bet-the-Company Litigation, (2) Commercial Litigation, (3) Litigation – Real Estate, and (4) Litigation – Securities.
501 West Broadway | Suite 1720 | San Diego, CA 92101 | 619-487-1500 | www.kirbyandkirbylaw.com
Standing Out in the New Norm: Be the Solution ... by Merry Neitlich
T
he past few weeks have bombarded us with a constant stream of information—not only about the Coronavirus, but about what we need to know to carry on our businesses, to stay safe and healthy, and to provide for our families. Information seems to morph daily. We have witnessed an unprecedented number of offerings such as webinars, video meetings and conference calls, push emails, podcasts, videos, blogs, social media posts and client outreach. The redundancy of all of this has contributed to a state of information overload and content fatigue. ...businesses that market and remain visible in a client-focused way during a crisis or downturn recover the quickest. For those of us focused in the area of business development, the last few weeks of this unparalleled situation have been spent gathering and analyzing information about how to best serve clients. It is crystal clear that those law firms and attorneys that shared the best and most useful content developed and delivered it based on client and industry needs. These firms paid rapt attention to what content was already in the marketplace and what fresh information is still needed. Clients may have grown weary of attending long webinars and getting through the seemingly endless stream of email blasts. But at the same time, research has demonstrated again and again, those businesses that market and remain visible in a client-focused way during a crisis or downturn recover the quickest. But the information your firm produces must be sensitive and useful in solving clients’ problems.
Then, what do clients view as helpful and effective? • Deliver a cogent interpretation of new laws, government programs and/or a synthesis of available options. • Be proactive and gather information early on; avoid being the 10th law firm to share the same information in the same way. • Call clients and ask how they are doing. Listen carefully, diving deeply into their issues with clarifying questions to gain a clearer understanding of their needs and concerns. Address them with specificity. • Do not make decisions for your clients without asking them for input. Your clients want to hear from you. 10
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Consider attending their planning meetings as one of their trusted advisors. • In addition to addressing the legal, tax, real estate, or insurance questions your clients are facing, work with them to identify their most pressing business problem(s). Imagine how thankful and loyal clients will be if you become adept at facilitating meetings using process improvement and process mapping skills to guide them to effective solutions.
What are the most effective marketing strategies and tactics in this unusual environment? • All content and briefings should speak to clients’ pain points. How do you best craft your message? Use a variety of mediums such as videos, one-page analysis, phone calls, email, interactive video meetings, blogs, and social media posts. • Your bio is one of the most read pages on your firm’s website. Does it adequately convey your expertise, especially for these times? • Increase your power and results on LinkedIn by posting, commenting, searching out contacts and clients and commenting on their posts, posting articles, updates, and videos on your firm’s page and then on the attorneys’ pages. • Set up Google Alerts and LinkedIn Alerts for key clients and industries. Staying on top of industry issues gives you and your partners great opportunity to reach out to clients and prospects on a continuing basis in a meaningful way. • Consider community involvement or pro-bono work, especially as it relates to your clients/industries. In this most unusual time in history, your clients need you more than ever. Be the solution for them and not just the restater of the problem. n Merry Neitlich, Managing Partner of EM Consulting, is located in Irvine, California. We assist law firms with strategic business development, branding, websites, legal operations, and client enhancement programs. Merry can be reached at 949.260.0936 or merry@EMconsults.org.
(858) 201-3960 info@fellfirm.com 402 W. Broadway Suite 950 San Diego, CA 92101
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COMMUNITY news n John H. Stephens, a prominent San Diego business and real estate attorney, has been selected to the University of California Hastings College of the Law Foundation Board of Trustees. As a UC Hastings alum (‘78), Stephens is proud to serve an institution that provided the bedrock for an illustrious legal career for him and so many others. As JOHN H. STEPHENS the oldest and largest law school in the University of California system, Hasting is strengthening its reputation as one of the country’s most illustrious legal education institutions. “I am excited to join the Board at a time of transformative growth and expansion for Hastings,” Stephens said. “I’m glad to put my business and real estate law experience to work for the school as it embarks on dramatic new developments that will benefit students, the legal profession and the community for decades to come.” A La Jolla resident, Stephens lived and worked in San Francisco, Los Angeles and New York before returning to San Diego. He is a partner at Mulvaney Barry, handling real estate and business litigation and transactions. n Hartley LLP Partners Jason Hartley and Jason Lindner were named to Thomson Reuters’ list of “Super Lawyers” for 2020. “Being named a Super Lawyer is a great honor, particularly as the methodology relies on input from our colleagues throughout the state who practice in the same area of law,” said Jason Hartley, JASON HARTLEY Founder of Hartley LLP. Jason Hartley represents exclusively plaintiffs in commercial contingency representation, class action litigation, antitrust, and unfair competition. He is involved in all aspects of civil litigation and has handled cases in both federal and state courts, in litigation and at trial. Jason Lindner’s practice includes litigation of antitrust, unfair JASON LINDNER competition, complex business, California wage and hour, Fair Labor Standards Act, and other general class action litigation. He has been involved in all aspects of civil litigation in both federal and state courts. He has successfully represented plaintiffs in federal Section 1 (Conspiracy) and Section 2 (Monopoly) Sherman Act cases and in state law actions alleging unfair business practices.
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Attorney Journals San Diego | Volume 201, 2020
n Two CaseyGerry partners—David S. Casey Jr. and Gayle M. Blatt—have been ranked among the Top Ten San Diego Lawyers in the 2020 edition of San Diego Super Lawyers. Additionally, Blatt is ranked among the Top 25 Women Attorneys in this latest edition. This marks the second consecutive year Blatt and Casey Jr. have been DAVID S. CASEY JR. recognized as among the Top Ten Super Lawyers and the fifth consecutive year Blatt has been ranked as one of the Top 25 Women Super Lawyers. Eleven CaseyGerry attorneys in total are featured in this edition, including partners Robert J. Francavilla, Thomas D. Luneau, Thomas D. Penfield and Frederick Schenk, and associates Angela Jae Chun and Srinivas Hanumadass, GAYLE M. BLATT with Jason C. Evans, Jillian F. Hayes and Adam B. Levine featured as San Diego Super Lawyers Rising Stars. Super Lawyers annually ranks the top attorneys in San Diego with just five percent of San Diego attorneys meeting Super Lawyers’ rigorous standards. n Solomon Ward Seidenwurm & Smith, LLP announces that Rebecca Van Loon has joined the firm as a partner. With a nine-year practice focusing in the areas of estate planning, trust and probate administration and taxation law, Van Loon assists families and individuals with all aspects of estate planning, including wills, trusts, REBECCA VAN LOON advance health care directives and financial powers of attorney. She also assists clients with estate, gift and property tax planning, including charitable gift planning. A Certified Specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization, Van Loon’s practice also incorporates international estate planning, as well as the representation of individuals, private professional fiduciaries and corporate trustees as fiduciaries through trust and estate administrations. “Rebecca is a highly-skilled estate planning attorney with extensive experience and specialized certification,” said Stephen Schreiner, Solomon Ward’s managing partner. “Her addition to Solomon Ward will enhance our firm’s trust and estate planning practice, as well as the level of expertise we provide to our clients.”
n Reuben Camper Cahn, partner at Keller/Anderle LLP, a nationally recognized bet-the-company business litigation firm based in Irvine, has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America. Founded in 1950, the College is composed of the best of the trial bar REUBEN CAMPER CAHN from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Reuben Camper Cahn has tried over 100 cases to jury verdict and has argued twice before the Supreme Court (in 2011 and 2018) in addition to numerous arguments before both the 9th and 11th Circuits. This combination of skill and experience at the highest levels establishes Mr. Cahn as one of the most exceptional lawyers of his generation. n Snell & Wilmer is pleased to welcome new employment partner Gina L. Miller and new real estate attorney David J. King to the Orange County office. Miller and King joined the firm in February 2020 and March 2020 respectively. Miller comes to Snell & Wilmer from Call & Jensen as a partner with experience in complex GINA L. MILLER wage and hour class actions, as well as single plaintiff lawsuits in the areas of discrimination, wrongful termination, retaliation, harassment and breach of contract. She has represented clients before the Labor Commissioner and the Equal Employment Opportunity Commission (EEOC). Miller graduated from Westmont College with a B.A. in communications and received her J.D. DAVID J. KING at the University of San Diego School of Law. King brings over 20 years of experience practicing law to Snell & Wilmer’s real estate group. He focuses his practice on all manner of commercial real estate leasing transactions, including office space, retail, mixed-use, lifestyle/entertainment centers, hospitality and development and operations for some of the largest landlords and tenants in the country.
n Founding Partner Marc S. Schechter has been included in the 2020 San Diego Super Lawyers list for an eighth year. Mr. Schechter specializes in employee benefits, ERISA, and business matters, with special emphasis on ESOP transactions. Mr. Schechter is admitted to practice before the courts of California and New Jersey; the United States District Court for the Southern, Central, and Northern Districts of California; the United States Tax Court; the Ninth Circuit of the United States Court of Appeals; and the United States Supreme Court. Partner Corey F. Schechter has been recognized on the Super Lawyers–Rising Stars list in 2016 and 2018–2020. Mr. Schechter’s practice focuses on employee benefits law (ERISA) and executive compensation matters, ERISA litigation, qualified domestic relations orders (QDROs), and business and employment law. This is Partner Paul D. Woodard’s first year to be recognized and included on the Super Lawyer’s Rising Stars list. Mr. Woodard’s practice focuses on employee benefits law, employee stock ownership plan, pension, profit sharing and 401(k) plans, ERISA litigation, business law and litigation, qualified domestic relations orders (QDROs), estate planning and trust litigation.
MARC S. SCHECHTER
COREY F. SCHECHTER
PAUL D. WOODARD
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Attorney Journals San Diego | Volume 201, 2020
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L AW Y E RS H E L P I N G OT H E RS
YAHAIRAH ARISTY transcenDANCE
Yahairah Aristy volunteers on the Board of Directors for transcenDANCE, a nonprofit that uses dance and performance to help teens overcome challenges, expand ambitions, and create positive change. This free extracurricular program is offered to students from “underserved” schools and communities. Students train year-round in various styles of dance and work with professional choreographers to co-create an annual summer performance at a professional theater. transcenDANCE fosters creative expression, teamwork, goal-setting, leadership, belonging, and more. Yahairah’s passion for helping youth and the simple joy of dancing drew her to transcenDANCE. “Through music, dance, and the arts, transcenDANCE helps these young people heal from trauma, overcome challenges, and really become the person they were meant to be. The students are awe inspiring.” Many transcenDANCE students later return as alumni and serve in leadership and mentoring roles as choreographers, teaching artists, and volunteers. The next summer performances will be July 31 and August 1 and 2, 2020, at the Lyceum Theatre in downtown San Diego. Visit www.tdarts.org to volunteer, donate, or learn more. Yahairah has served as a Deputy Public Defender since 2005. Yahairah Aristy is not affiliated with the Vosseller Law Firm.
After each case, we donate a portion of attorney’s fees to a nonprofit chosen by the client.
P L A I N T I F F P E R S O N A L I N J U RY
858-429-4062 www.vosslawyer.com
VOSSELLER LAW FIRM
Changing of the Guard A SMA L L FI R M M AK E S B I G C H AN G E S TO GE T B IGG E R R E S ULTS by Dan Baldwin
“We’re changing our name, a rebranding to reflect the major changes we’re making, but our commitment is and will remain to continue the established traditions the community has come to expect from the attorneys and staff of this firm,” says Peter J. Schulz, Managing Partner of Schulz Brick & Rogaski. The firm was established in 1986 with a focus on civil trials and appellate practice. Practice areas today include business, insurance, real property, and construction industry litigation; insurance coverage, analysis and opinions; serious personal injury; and products liability. Partners in the firm along with Peter Schulz are Jon S. Brick and Michael E. Rogaski, with Associates Tommy Schroeder and Holly McCloskey. The firm was formed as Greco & Traficante and became Greco Traficante Schulz & Brick in 2007. When Founding Partner Clyde Greco retired and Paul Traficante decided to go “Of Counsel,” a true “changing of the guard” occurred and the name was officially changed to Schulz Brick & Rogaski. “My vision for the future of the firm is to continue to exemplify a phrase we use in marketing—Big Firm Results— Small Firm Service. That’s easy to say, but here every member of our team is committed 100 percent to maintaining that course into the next decade and beyond. Our new identity reflects that commitment,” Schulz says.
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A Focus on Creating Solutions Schulz says, “The attorneys in my office are smarter than most. That gives us an edge. We work with each client to determine their real goals and then work to achieve those goals whether we are on the plaintiff or defense side. We work to solve the problem rather than just creating litigation.” The attorneys take a proactive approach, thinking out of the box, rather than waiting and then reacting to events as they happen. They also are committed to including the client in each step of the process. “The main thing we do is emphasize communication with our clients in a timely manner. Many clients do not have experience, or much experience, with litigation and I always try to make sure that they understand the process, what their involvement will be and the fact that there will be periods of time when it seems as if nothing is happening. With all clients, including those who are very familiar with litigation, we strive to keep them up to date with what is happening and why, and what we expect to happen down the road,” Brick says.
LAW FIRM
OF THE MONTH
2020
L to R: Law firm Partners Michael E. Rogaski, Peter J. Schulz, Jon S. Brick, and Associate: Thomas U. Schroeder
© christopherTODDstudios
JOURNALS
© christopherTODDstudios
Peter J. Schulz, Managing Partner
“Regardless of the issue, we have probably seen it, dealt with it, or learned about it from the collective knowledge of the great attorneys with whom I work.”
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Rogaski says their closely coordinated team approach is a key factor in the firm’s long-term success. “I’m supported by outstanding partners and associate attorneys. The sharing of expert knowledge and passing down of experience is an invaluable asset. Regardless of the issue, we have probably seen it, dealt with it, or learned about it from the collective knowledge of the great attorneys with whom I work.” As an example, Schroeder relates an incident in which one of his clients needed help withdrawing funds from a minor trust once he reached 18 years of age. However, the attorney who helped draft the trust soon realized that Schroeder’s client would have little to compensate him for his services in withdrawing the funds. As a result, Schulz Brick & Rogaski was brought in to help the client obtain his funds. Schroeder worked closely with the client and even traveled to Los Angeles just to deliver the petition to withdraw funds from the trust to the court. After a few weeks, the firm obtained all of the funds for their client. “The most gratifying aspect of this matter was knowing our client would now have the opportunity to live the life his parents had intended,” Schroeder says. Throughout the years the firm has built a reputation for trust in working with clients and in their dealings with opposing counsel. McCloskey says, “We are known for being straight shooters and consummate professionals. That’s an incredibly powerful combination and one that pays off for our clients whether in the courtroom or across the negotiating table.”
A New Name–New Challenges From the beginning the firm that is now Schulz Brick & Rogaski focused on insurance-related matters. Their attorneys were a major factor in forcing subcontractors’ insurance carriers to defend general contractors in Construction Defect cases. In concert with its changing of the guard actions, the firm is opening new areas of practice with its transaction work and estate work. Currently the firm is outside counsel to one of the country’s largest retail stores and a publicly traded technology company which provide a
of court requirements, as well as supporting Plaintiff while they got a new attorney up to speed and a guardian ad litem appointed. “I can’t think of a better example of the character and compassion of the attorneys who work here,” she says. “Currently our main focus is on the core business of our institutional clients. These are uncertain times for business and insurance and the future will I believe prove to be the most challenging of our live’s. Our clients know and can feel comforted and confident that we’ll be here with them,” Schulz says.
Outside the Office Schulz was born and raised in Milwaukee, WI, and attended college at St. Olaf College in Minnesota. He is a member of the San Diego Country Club and enjoys playing golf whenever his schedule permits. His niece is a musician
Jon S. Brick, Partner
© christopherTODDstudios
base for the firm’s practice. In addition to these large institutional clients they have a variety of individual and business clients that include several HOAs, property managers, real estate developers, contractors, escrow companies, and individuals. The firm counsels many of these clients on insurancerelated matters, business disputes and real estate disputes arising out of construction and disclosures. Schulz cites a case that was not only successful, but also a turning point for his career. He represented a homeowner association in Long Beach whose property had been built over a former landfill. The firm secured a multi-million-dollar settlement for them but was also able to recover an additional several million from an insurance carrier who had denied coverage to the developers. “I personally worked with more than 50 homeowners over the course of several years to help save that community from being shut down.” Although the firm has developed a clearly definable niche in the insurance coverage field, the attorneys also represent design professionals, general and subcontractors in construction and work-site injury cases, personal injury plaintiffs, small to medium business entities with cases ranging from automotive after-market manufacturing, health care, home restoration, manufacturing to transportation and many more, as well as individuals with an array of legal needs. Brick says, “We don’t really have ‘typical’ clients. One of the things I particularly enjoy about our practice is the varied clientele we have and the mix of cases we handle for them.” Rogaski agrees. “My clients are eclectic. Everything from small businesses and individuals to large insurance companies,” he says. McCloskey notes that the firm not only will work outside their traditional niche but will also go to extreme lengths to see that worthy individuals get the legal services they require. A Plaintiff, who filed a lawsuit against their client, began to exhibit signs of cognitive decline during the procedures. The Plaintiff went through three law firms and at one point was forced to represent herself. In that interim before another new attorney could be appointed, Schulz Brick & Rogaski worked compassionately and professionally with the Plaintiff’s daughter and caregiver to postpone depositions, grant extensions, keep them apprised
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Contact Schulz Brick & Rogaski 600 W. Broadway, Suite 960 San Diego, CA 92101 www.sbrlawsd.com (619) 234-3660
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Attorney Journals San Diego | Volume 201, 2020
Michael E. Rogaski, Partner
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and performer and he is active in helping develop her career. He is an enthusiastic fan of SEC football and a season ticket holder for “his” Green Bay Packers. Brick is a San Diego native, born in La Jolla and raised in Encinitas. He is an avid reader of the classics, science fiction, history and historical fiction. He and his wife enjoy exploring unique and out-of-theway areas of Southern California, particularly local wineries. They often walk/hike the many local parks and beaches. Brick is a docent and tour guide for the Davis-Horton House Museum in the Gaslamp and enjoys learning and talking about San Diego history. The couple has a 1957 Chevy and belong to the Classic Chevys of San Diego Club. Brick also enjoys sailing when he gets the chance. Rogaski was born in Davis, California, and grew up in the Bay Area. He and his wife have three sons. The family moved to San Diego in 1995 and have enjoyed every minute. He enjoys playing ice hockey, something he picked up from his kids, and now plays in an adult hockey league. Schroeder was born and raised in Reno, Nevada. He attended the University of San Diego from 2009–2013 and, after law school, moved to San Diego permanently in 2017 with his future wife, Haley. Outside the office he enjoys the San Diego environment, especially his pool and the ocean. McCloskey has a background as a professional singer and earned a degree in Drama. Music and performance are very important in her family. They all play musical instruments and family vacations always involve traveling to music festivals locally and across the country. For stress relief, she enjoys jamming and performing with other local musicians, friends and family. Those varied lifestyles and experiences come together back at the office. Schulz says, “We are always straight with people. We’re honest with them and we work toward solving problems as opposed to creating them. We have the best minds and most client-driven people you can find. I’m surrounded by some of the most intelligent people in the industry.” n
“We have the best minds and most client-driven people you can find.“
COVID-19: How to Prepare for Potential Future Disputes Pandemic-Related Uncertainty Means Business Decisions Will Be Highly Scrutinized by Skadden, Arps, Slate, Meagher & Flom LLP
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s the COVID-19 pandemic continues to develop, guiding a business through this time of immense crisis means making decisions that gravely impact the company and its employees. Inter alia, companies need to decide whether they are obliged to perform what is stated in their contracts or whether some actions may be excused, including those: • under an applicable force majeure clause or statutory provision, such as Article 79 of the U.N. Convention on Contracts for the International Sale of Goods (CISG); or • under statutory or common law principles, such as frustration, impossibility or clausula rebus sic stantibus. Companies faced with counterparties that cannot honor contracts due to the effects of COVID-19 likewise will need to decide how to react, in particular regarding whether or not to seek an interim injunction for continued performance. Companies and their directors and officers should bear in mind that their decisions may face legal challenges at any time. Measures that may appear inevitable or unavoidable may be questioned in hindsight by others who did not experience the situation firsthand or who may have considered an alternate approach more prudent. Past arbitration and litigation experiences show that it is not always easy to convey, in subsequent legal proceedings, the sense of urgency and necessity that was perceived at the time.
Disputes Likely Will Be Fact-Driven Companies may face significant legal challenges as a consequence of decisions to refuse to honor a contract in response to impediments caused by COVID-19. Even though the underlying pandemic-related premise for failure to comply likely will be the same, each case will be considered based on very specific facts. For example, under CISG Article 79, it is not sufficient for a company to simply argue that the failure to perform was due to an impediment beyond a party’s control (i.e., an event such as a pandemic) and therefore the company could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract. As such, a party invoking CISG Article 79 also must show that it could not reasonably have avoided or overcome the impediment or its consequences. Whether this can be established will depend very specifically on how COVID-19 affected that party and the measures the company undertook to respond. For example, a party rejecting delivering certain goods due to COVID-19 should be able to prove that: • it did everything reasonably possible to retain its ability to perform. • it evaluated all possible alternatives to a rejection of performance, including covering purchases; and • it determined that, if there were alternatives, the associated costs were disproportionate. 22
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Similar considerations are likely to apply under most force majeure clauses, which, however, differ greatly in wording. Additionally, their interpretation may depend on the applicable law.
Directors Individually May Face Dispute Claims It appears likely that not only will disputes arise between companies in relation to their respective performance obligations, but we may also see directors having to address dispute claims. A director whose company is ordered to pay damages as a result of his or her decision may be personally liable—subject to any protection from directors and officers liability insurance—unless he or she can show that the decision was made based on sound business judgment. Establishing this may require proving that all potential options were thoroughly assessed and that, ultimately, a decision was made based on reliable legal advice.
Documentation Is Key Disputes often pit one witness’s word against another. Therefore, contemporaneous documents are key in deciding disputes, as they may be enough to substantiate or disprove a claim. In addition, documents are the key source for witnesses in helping to refresh their memories. Judges and arbitrators seldom reject the witness testimony of one party merely because it is disputed by another witness; they more often reject testimony because witness statements end up being disproven or unsupported by contemporaneous documentary evidence. It is not only in the best interest of the company, but also each decision-maker, that decisions and their genesis are properly documented. Accordingly, companies making decisions that may negatively affect others should document: • • • •
when the decision to take a certain action was taken. which alternative options were available. why the specific option was chosen. what assessment was made regarding the possible impact of the decision on others. • what measures were taken to avoid having to make the decision. • who made the ultimate decision; and • what advice—particularly legal advice—was sought before making the decision. Decision trees can help not only in finding the right solution, but also in documenting that a decision was taken with due care. When decisions are assessed and made verbally, it is particularly important to document them in writing by preparing detailed protocols.
In particular, companies that are negatively affected by decisions made by their counterparties should document all circumstances that will enable them to prove damages, including why they were specifically caused by a certain decision. In complex scenarios where arbitration or litigation is anticipated, it may be sensible, even at an early stage, to involve damage experts in order to ensure that financial risks and potential damages are properly and thoroughly assessed. All internal and external correspondence should be stored. As such, when important discussions take place verbally, notes should be taken. With the agreement of everyone involved, it also may be possible to record phone calls. Some decisions are particularly delicate, including those involving communication with competitors regarding measures to address the crisis. In these situations, it is critically important to document the specific scope and content of such communications in order to withstand potential investigations by cartel authorities. Additionally, decisions to take measures that may lead to the counterparty’s insolvency are often extremely sensitive. Such decisions may occur in the coming weeks and months, as some companies may be even more vulnerable because of the COVID-19 pandemic. In such cases, insolvency administrators usually have less hesitation to initiate a legal action than the management of a company in an ongoing business relationship.
Documentation Should Be Organized and Stored Contemporaneously Documentation does not stop at simply recording decisions. All relevant documents should be organized and stored in a logical manner and be accessible by others, including in-house legal advisers. Some disputes may not materialize until months or years in the future. As such, companies should ensure that they maintain sufficient records and are not dependent on individuals who may no longer be employed at the company by the time a dispute arises. Organizing and storing documents contemporaneously has many advantages: • all relevant documents will be identified. • intentional or unintentional deletion or loss of pivotal documents is avoided. • in-house legal counsel, and potentially external lawyers, are better able to assess the case; and • if a secure system is in place that prevents any tampering with the documentation, the evidentiary value of the documentation is increased.
Pitfalls of Good Documentation; Preserving Legal Privilege Good documentation can serve as a weapon in a dispute. However, that arsenal of documentation also may become available to the opponent depending on where the dispute takes place. In international arbitrations and litigation in several jurisdictions, particularly in the U.S., relevant documents may need to be handed over to the opponent, unless they are protected by legal privilege. Under U.S. federal and state laws, documents referencing or reflecting legal advice may be protected from disclosure on account of attorneyclient privilege and/or the attorney work-product doctrine. In contrast to the laws of some countries, in the U.S. attorney-client privilege applies to communications with both in-house and outside counsel.
Attorney-client privilege protects confidential attorney-client communications made for the purpose of requesting, giving, or receiving legal advice from being disclosed. To be protected, the communication must have been made in order to seek or provide legal advice. Communications with an attorney for other purposes (i.e., if the attorney is serving as purely a business adviser) are therefore not protected. The work-product doctrine protects attorneys’ impressions, conclusions and/or legal theories developed in anticipation of litigation. However, the doctrine does not offer complete protection from disclosure. To the extent that an attorney’s work contains relevant and non-privileged facts, it may be disclosable in cases where the plaintiff can show a substantial need for the information and cannot otherwise obtain equivalent information without undue hardship. An inquiry therefore will be fact specific. U.S. courts will usually—though not always—apply privilege rules in situations where the communication took place outside the U.S. and under a different legal regime. Parties outside the U.S. can take a number of steps in order to put themselves in the best possible position to utilize attorney-client privilege and/or the work-product doctrine in the case of U.S.-based litigation or an international arbitration with a U.S. counterparty. These steps include: • In circumstances where it appears likely that you are headed for litigation or arbitration, it is advisable to involve attorneys as early as possible in the process. Employees also should be made aware of the importance of preserving privilege regarding communications and documents containing or incorporating legal advice and should be encouraged to include attorneys in their discussions where appropriate. • When seeking in-house attorneys’ or outside counsel’s legal advice, make clear in the body of the communication that you are seeking such advice. Be aware that merely copying an attorney on communication will not make the communication privileged and will not shield that document from disclosure. • Consider putting the header “Privileged: Attorney-Client Communication” on communications with your in-house attorneys or outside counsel. This header alone does not make a document privileged but will serve as an indicator that you intended a communication to be privileged. Keep in mind that the overuse of such a header may dilute a legitimate claim of privilege or work-product protection. • Do not forward emails or other communications from your in-house attorneys or outside counsel to third parties or discuss what you and your attorney talk about with a third party, unless counsel has confirmed that it is appropriate to do so. • Where possible, limit employee access to privileged documents to only those representatives who are directly involved in the pending legal proceeding or dispute to which the document pertains. • Control who creates documents. Documents concerning pending litigation or arbitration, or disputes anticipated to possibly result in a legal proceeding, should indicate that they are prepared for litigation purposes (and, where true, at the request of counsel). n Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates offers clients around the globe solutions to the most challenging legal issues in virtually every area of corporate law. We share a commitment to providing our clients with the highest-quality and most cost-effective legal services in an atmosphere emphasizing teamwork, creativity, responsiveness, and diversity.
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Don’t Let Your Blogs and Content Fall Victim to COVID-19 by Jim Bliwas
W
ith so many business and personal challenges brought on by the COVID-19 pandemic, it’s easy to forget three things: First, your clients are looking for help and advice as they confront the same challenges you and your firm are coping with today. Second, search engine spiders continue to crawl law firm websites looking for new content and assigning rankings. Third, as hard as it may be to imagine today, the pandemic will end and business will resume. Clients and prospects will remember those who were helpful to them. It’s not easy to focus on blogs and adding new webpages when you’re working in your home and handling clients while bored kids are wanting attention, maybe a dog is running around the house who also wants you to play or the cat decides your keyboard is the perfect place to walk across, and when just going to the store for food is a daunting task. But remaining pertinent and valuable to your clients is more important now than ever.
Keeping Blogs and Content Relevant It’s possible to be relevant and providing useful information while still reminding readers of your area of expertise. Here are a few examples of how we’ve helped clients do both. • For a law firm specializing in technology matters, we wrote a blog about how companies can protect their IT infrastructure with employees using their own computers, tablets and phones as they work at home. • For a family law firm, we wrote a blog on how to renegotiate child visitation schedules with COVID-19 still rampaging through the country. • For a litigation firm focusing on insurance defense, we wrote about how the courts are operating now and what the changes will mean for any pending or potential cases the firm is handling or may handle in the coming months. Each provides actionable information to help save a reader’s business while reminding readers that the resource has their best interests in mind. 24
Attorney Journals San Diego | Volume 201, 2020
Offer Ideas, Not Just Information—But Don’t Sell What readers are desperate for now are ideas that will help their business when many firms and companies feel as if they are on their knees. We run competitive analyses for our law firm clients on an on-going basis and saw that a firm of patent attorneys posted a blog that was nothing but the modified hours of the patent office in Washington during the pandemic. How does that help a reader? Few companies or inventors file their own patent application. Patent laws are complex and the requirements for filing an application require them to be precise and specific. If every box is not properly ticked off, the submission will be returned. Only patent lawyers know how to file an application and follow up with the USPTO, so why was this firm providing hours of operation? We have seen similar blogs and client e-mails that help nobody. They especially do not help the firm or attorney that posted the item or sent out the communique. Nor does it help anybody when the blog, an email blasted out to the list or a new webpage is little more than a thinly-disguised “sales pitch.” In fact, this sort of content is tone deaf and insulting. Yes, people still are retaining lawyers but they are hiring in a very different way than in the past and are looking for different things.
Write About What Readers Need Today More than ever, people are looking to their suppliers–and those they may need tomorrow–for help, guidance and solid ideas for doing business during the pandemic. It’s become a cliché to say that COVID-19 has changed everything. What it hasn’t changed is the need to provide useful information to people. Blogs are always supposed to do this. Writing about what readers need to know in the context of the pandemic is more important than ever so that your content is not another victim of COVID-19. n Jim Bliwas has worked in and with law firms for three decades. He is the award-winning Senior Marketing and Communications Strategist for PSM Marketing which provides an outsourced marketing department and content for law firms around the United States.
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Eight Ways to Keep the Business Development Engine Running During COVID-19 by Doug Ott
B
y now, most of you are settling into your new work environment. Some have greater challenges than others. Whether being confined to a small city apartment or a household of children who now need to be homeschooled, this transition has not been easy. During these uncertain times, I find it healthy to reflect on upbeat memories. I recently recalled the feeling I had when I purchased my first car with my own money— a ’66 Mustang powered by a V8 289 engine. Pure joy! When properly maintained, it was a dream to drive. ...now is the time to get creative with strengthening your internal and external relationships. In that vein, this is not the time to let your business development engine idle. In fact, now is the time to keep the foot on the pedal and get creative with strengthening your internal and external relationships. It is also an excellent time to work on your personal brand and well-being. In the spirit of a V8-powered Mustang, here are eight tips for maintaining your business development engine on the rough roads ahead:
1. Create a system to better organize your relationship development and tracking Most professionals I meet do not have an effective method of tracking their important relationships. If your firm recently invested in a CRM (Client Relationship Management) tool, now is the time to learn it and start using it. You can also create a simple Excel spreadsheet that organizes your relationship groups into separate “buckets.” I use one for myself and prescribe to my clients an Excel tool that I created called the Relationship Tracker. It encompasses the important elements—Priority Ranking, Location, Last Contact, Comments, and Follow Up Steps.
2. Create or revise your business plan If you have not written a plan on how to prioritize your business development efforts in a strategic manner, now is the time. Think of those relationships that are going to be most important to develop and why. Set realistic and stretch goals considering
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the uncertain market. Reevaluate what else you can be doing to improve your credibility and brand. If you already have a plan, consider revisiting it. Consider resetting your goals to be realistic yet still challenging this year. Revisit your target client list. Adjust the time you need to allocate to BD activities that make the most sense in the changed work environment.
3. Consider ways to give back to the market As Zig Ziglar said, “you can have everything in life you want if you will just help other people get what they want.” This is a time to ask how you can help others. Offer a free 30-minute consultation to a prospective client in need. Join an association of interest and ask how you can get involved. Donate to a nonprofit that is helping the people most affected by the pandemic. Now is the time to help your network... Now is the time to help your network without worrying about receiving anything in return.
4. Learn and leverage social media If your social media knowledge is limited, reach out to a coach, colleague, family member or friend for help. Once you learn the basics, invest time posting and reading content on LinkedIn and/or Twitter that will strengthen your brand and broaden your market knowledge.
5. C ollaborate with colleagues, clients, prospective clients, or other subject matter experts Co-author an article or co-host a webinar or Zoom discussion. Reach out to colleagues in other practice areas or departments to discuss how to work together on growing target clients. This is an excellent way to not only strengthen your credibility but also deepen relationships with those who partner with you.
6. Take care of your important clients How often do you think about why clients choose to work with or refer you? Your expertise and experience are the baseline
criteria for most clients. The quality of the relationship is often the determining factor. Build a relationship with them like they are family. What else could you be doing to take care of these people during such difficult times? Think about what you can do to go beyond the normal call of duty to show them that you care. Maybe it is sending a small gift such as an Amazon or Netflix gift card that they may appreciate while working from home. Offer free group calls for anyone on their team who might need support. Or maybe it is as simple as lending an ear in a time when they need emotional support. There is no one right way. Think about what is important to that particular client and act now.
7. Take care of yourself It is easy to be caught up in the daily grind of back-to-back Zoom calls or computer work in your new “bunker.” Step away from your computer and give your mind a break and your body some exercise during the day. Movement keeps you alert, productive, and healthy.
8. L ook for the silver lining during this sobering time of uncertainty By now, cabin fever is slowly setting in for many of us. The inclination is to get down and frustrated. We need to fight
against these feelings as best we can. Instead of getting depressed, unmotivated, or fueling every conversation with COVID-19-related news, try to look at this time of change as a new opportunity for improvement in your life. I believe this is an excellent opportunity for many of us to push “reset” in our lives. It is easy to get caught up in the daily grind, which may include enduring the dreaded daily commute, living out of an airport, eating poorly, not exercising, and worse yet, not spending enough time with family and loved ones. Take this opportunity to reconnect with what is most important to you and what charges your batteries. This disruption will eventually pass. In the meantime, take this opportunity to fine-tune your business development engine to not only get through the rough roads ahead but to also incorporate better habits for the long-term journey beyond this crisis. n Doug Ott is an executive coach, leadership trainer, facilitator and speaker at Doug Ott Consulting, LLC. He leverages more than three decades of business development and leadership experience to help individuals and teams drive revenue growth. He provides leadership and business development consulting, one-on-one coaching, group coaching, practice group leadership skills development, strategic planning, workshops, and public speaking. Learn more at www.dougottconsulting.com.
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16 Easy Ways to Network, Connect with Clients, and Build Brand While Social Distancing by Stefanie Marrone
... your job right now is to lay the foundation for when things return to ‘normal’
You will become a trusted resource if you offer to provide your clients with CLE credits and learning during this time.
know so many of you feel out of sorts right now. Me, too. Our daily routines have been thrown a huge curveball, but this is not the time to stop marketing yourself, or your firm. In fact, you want to be top of mind, and you can easily do that through the many online channels available to us—with LinkedIn being the most powerful social platform to build professional relationships. When I speak at conferences or conduct client trainings, I usually end my presentations with “homework” for attendees. I always suggest that attendees take the time to complete these to-do items, because I always want to leave attendees with actionable takeaways they can implement right away to enhance their business and brand. In case you are looking for some “homework” in the marketing and business development area, here are a few ideas to keep you busy. Reach out to me with any questions.
• Write coronavirus-related legal alerts. Explore how the current crisis affects your clients’ businesses and report on updates in the law. Look to see what your competitors are writing about for inspiration and competitive intelligence.
I
• Make a list of your top matters and achievements— you will need this down the road. • Do more pro bono work—again, much of this work can be done virtually, so raise your hand to help out those who need you the most—there will be a lot of pro bono opportunities as this crisis continues.
• Show genuine care and concern for your clients and do not only rely on email to communicate. This is the time to call your clients and ask how they are doing. It’s not business as usual.
• Set up Google alerts for yourself (so you know what is being said about you) as well as your top clients and VIP contacts so you can keep abreast of significant news about them
• Update your bio and LinkedIn profile.
• Set up at least three video conferences and virtual happy hours/coffee breaks each week—these are great outlets for you and others to maintain relationships while social distancing.
• Taking LinkedIn one step further, create a strong LinkedIn headline and profile cover image. • Make a list of future conferences that you would like to attend and even better, speak at, and reach out to the conference organizers to express your interest, once we are back to safely gathering in groups. • Create a virtual CLE program for clients and prospects. 28
• Get involved with a bar association or industry committee. There is plenty of work you can do virtually to help organizations you care about.
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• Create a virtual group of key former colleagues and alumni to foster relationship building. Get together by Zoom every other week or monthly—the best part is that you will be connecting individuals in your network to each other, which will be appreciated by everyone.
• Reach out to five contacts with whom you have not been in touch. This is a great time to rekindle relationships. • Read the great networking bible Never Eat Alone by Keith Ferrazzi. If you have already read this book, choose another business book or podcast—reading is a great outlet during this stay at home time. • Create a podcast or video series related to the coronavirus crisis—this does not have to be a high-budget production—right now no one expects that. Speak from the heart about how the coronavirus affects your clients, invite special guests to provide insights. Podcasts and video engagement were growing before the COVID-19 outbreak, and I think it will only continue to do so with so many people looking for a way to break up their days at home. • Engage on LinkedIn in some way every day—comment on a status, share an article or “like” someone’s post I am seeing the lines between our personal and professional lives become blurrier by the day as many of us want to be more connected to people in general. This may result in you
receiving friend requests on Facebook and follow requests on Instagram from colleagues and clients. It is up to you how you want to handle these but please always exercise caution with what you post on any social media platform and stay away from discussing politics and religion. Remember this too shall pass and things will return to “normal”—your job now is to lay the foundation for when that does happen and also to be ready, willing, and able to assist your clients during this time of great change, confusion, and stress. Empathy is the single most important characteristic you can have right now to build stronger relationships. n Stefanie Marrone helps law firms effectively tell their stories and find their unique voices. Over the last 18 years, she has worked with some of the most prominent and innovative law firms in the world, developing and executing global revenue generating business development and communications strategies, including media relations, branding, and multi-channel content marketing and social media campaigns. She is very passionate about using social media for lead generation and brand building. She has a diverse range of experience in both Big Law and mid-size/small-law firms. Connect with her on LinkedIn and follow her latest writing on JD Supra as well as her blog The Social Media Butterfly.
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