Attorney Journals, San Diego, Volume 208 by Attorney Journals

SAN DIEGO

Volume 208, 2020 $6.95

21 Ways to Overcome Competitive Weaknesses and Increase Credibility

Trey Ryder

Top 3 Misconceptions Attorneys Have About Virtual Mediation

Do’s and Don’ts of Initial Consultations

Kirk Stange

Winter Wheeler California Case Summaries

Monty A. McIntyre

Think Big, Act Small: The Power of a Niche to Grow Your Business

Jay Harrington

Attorney of the Month

Joshua M. Bonnici of Bonnici Law Group, San Diego

Two Niches, No Waiting

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2020 EDITION—NO.208

TABLE OF CONTENTS 6 Top 3 Misconceptions Attorneys Have About Virtual Mediation by Winter Wheeler

10 California Case Summaries by Monty A. McIntyre

12 Do’s and Don’ts of Initial Consultations

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price

by Kirk Stange ATTORNEY OF THE MONTH

CREATIVE SERVICES Penn Creative

16 Joshua M. Bonnici of Bonnici Law Group, San Diego Two Niches, No Waiting

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Jay Harrington Monty A. McIntyre Trey Ryder Kirk Stange Winter Wheeler

by Dan Baldwin

22 Twenty-One Ways to Overcome Competitive Weaknesses and Increase Your Credibility by Trey Ryder

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28 Think Big, Act Small: The Power of a Niche to Grow Your Business by Jay Harrington

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Top 3 Misconceptions Attorneys Have About Virtual Mediation by Winter Wheeler

lthough largely unknown to the average litigant, alternative dispute resolution providers across the country have offered virtual mediation services for upwards of a decade. The sudden increase in the popularity of these virtual services is, of course, due to COVID-19. The pandemic’s restrictions on travel and in-person gatherings have brought virtual mediation to the forefront of litigation. At the start of the pandemic, litigants considered virtual mediation a stop gap that would keep the legal system going until they could get back to “normal,” but now virtual mediation is cemented in the savvy litigator’s playbook. Its ease and convenience have proven it a viable and consistent option, superior to the now potentially risky in-person model. Based on the overwhelmingly positive feedback I have received from lawyers, parties, and claims representatives alike, virtual mediation will continue in full force post pandemic. Virtual mediation is convenient, saves on travel time and costs, and is just as effective as the traditional model for most cases. During this time of litigation slowdowns and court closures, virtual mediation has kept litigation moving forward and helped to clear desperately overrun court dockets. It has come to the rescue of those who are simply unwilling to risk in-person mediations or any type of jury trial right now. Yet despite all the amazing benefits of virtual mediation, there are still people who are too afraid to even try the exercise. These are the three most common misconceptions I hear and my concern-busting responses:

You cannot build rapport with people on a virtual platform.

But of course, you can! It is late 2020 and you would be hard-pressed to find anyone without some form of social media presence, but even less likely to find someone who did not feel connected to a person on the internet that they

Attorney Journals San Diego | Volume 208, 2020

have never actually met. Consider that if you have ever had a crush on a television or movie star that you have only ever seen on screen, they were able to connect with you while not even communicating with you directly. Plus, and most important, mediators are professionals trained to deal with all types of personalities, situations, and adversities. What may be impossible to someone not professionally trained to mediate, and experienced in doing so virtually, can simply be a non-issue to an experienced virtual mediator. You can overcome this hesitation by spending some time researching your mediator online. Look into their online presence and see if it resonates with you. If it does, great. Give them a shot. If they seem unable to connect with people online, maybe look elsewhere.

You cannot tell if participants are paying attention.

This is actually true. The lawyers cannot tell if the other participants are paying attention, but the mediator—who spends significant amounts of time with everyone—can. Opposing parties typically only spend a few minutes together during an opening session where brief statements and presentations are made. Emotions often run high on mediation day, so it is entirely possible that the parties are not listening to the other attorneys when they speak. Or, of course, it may just look like they are not paying attention. Many people work hard to hide their emotions on mediation day. Regardless of whether the parties are listening to each other during opening statements, the mediator is certainly paying attention and can and will address the relevant issues and ensure that the parties know and understand exactly what is going on. We have an ethical duty to do just that. So, this fear is not one that should prevent you from mediating virtually.

You can also minimize this worry by doing your personal best to create a welcoming atmosphere for the opposing party. This can be a daunting task after months or years of litigation, but if you take advantage of your opening statement, you can drastically cut the tension between the parties. Never forego an opportunity to create a positive rapport directly with the opposing party! Remember that for the average litigant, mediation day is the most important day of their life. They have agreed to a process that will potentially replace their jury trial. Compassion and empathy will go a very long way.

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It is too easy for participants to leave and give up.

It may technically be easier for participants to leave because they just have to click a button to successfully exit the meeting, but I have actually found that people are more committed and will stay longer to work through their issues. The simplest explanation I have been given for this is that because people log into the virtual mediations from locations that are comfortable to them, there is a decreased sense of urgency to leave that might otherwise exist if one were many miles from home. For example, there is no desire to beat rush hour, nor need to get to daycare on time. Everyone is focused more intensely on the task at hand, and less on the clock. Plus, in the rare event that I have experienced a participant leaving a virtual mediation, they each quickly returned and hoped that their departure had not yet been announced to the opposing side. Contrast that to an in-person mediation where a participant angrily and dramatically storms out of an in-person mediation for the benefit of opposing counsel watching them do so. It would be nearly impossible to get that person to return, simply as a function of their pride. When this is done virtually, usually the mediator is the only person to know it has happened and loss of pride in returning is a non-issue. Remember, not all mediators are created equal. A negative experience with one has no bearing on the process of virtual mediation as a concept. If you have tried it once and did not like it, consider letting your mediator know what your concerns were. The mediator likely has an explanation for you of why something happened in the way in which it did. Be sure to ask all the questions you need. n Winter Wheeler is a civil litigator who brings an extensive and comprehensive body of experience to the Miles panel of neutrals. Prior to joining Miles Mediation & Arbitration, Winter was a senior attorney at a prominent midtown Atlanta law firm. Throughout her career, she has worked closely with her opposing and co-counsel to bring cases to a fair and just resolution. She is skilled in handling complex matters involving a diverse range of cultures, including Spanish-speaking clients.

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California Case Summaries New California Civil Cases by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https://californiacasesummaries.mykajabi.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty’s case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.

CALIFORNIA SUPREME COURT Business and Professions Code Ixchel Pharma, LLC v. Biogen, Inc. (2020) _ Cal.5th _ , 2020 WL 4432623: Answering two questions posed by the Ninth Circuit Court of Appeals, the California Supreme Court ruled that tortious interference with at-will contracts requires independent wrongfulness. Because plaintiff Ixchel Pharma, LLC (Ixchel) alleged that defendant Biogen, Inc. (Biogen) interfered with plaintiff’s at-will contract with Forward Pharma (Forward) to jointly develop a drug for the treatment of a disorder called Friedreich’s ataxia, the California Supreme Court ruled that plaintiff must allege that Biogen did so through wrongful means. The California Supreme Court also held that a rule of reason applies to determine the validity of a contractual provision by which a business is restrained from engaging in a lawful trade or business with another business. Section 2.13 of the Biogen-Forward Agreement was such a restraint because it prevented Forward from collaborating with Ixchel or any other partner in the development of treatments containing the active ingredient dimethyl fumarate. The validity of this contract under section 16600 therefore should be evaluated based on a rule of reason. (August 3, 2020).

CALIFORNIA COURTS OF APPEAL Appeals Marshall v. Webster (2020) _ Cal.App.5th _ , 2020 WL 5051525: The Court of Appeal dismissed, as untimely, plaintiff’s appeal from the trial court’s order granting defendant’s anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) and also affirmed the trial court’s order granting defendant attorney fees of $79,000 out of the requested fees of $121,815. An order granting a motion to strike under the anti-SLAPP statute is an appealable order. (Code of Civil Procedure, section 425.16(i).) The order granting 10

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defendant’s anti-SLAPP motion was filed on May 11, 2018, and the clerk served a signed and filed copy of the ruling the same day. Under California Rules of Court, Rule 8.104(a)(1)(A), the notice of appeal from that order had to be filed within 60 days of May 11, or by no later than July 10, 2018. Plaintiff’s appeal from that order, filed on October 25, 2018, was untimely, and the Court of Appeal dismissed that appeal. The Court of Appeal affirmed the trial court’s order granting attorney fees of $79,000, finding no abuse of discretion. (C.A. 3rd, partially published August 27, 2020, certified for full publication September 4, 2020.)

Arbitration Conyer v. Hula Media Services, LLC (2020) _ Cal.App. 5th _ , 2020 WL 5035827: The Court of Appeal reversed the trial court’s order denying defendant’s motion to compel arbitration in an employment action by plaintiff alleging sexual harassment and six other causes of action under the Fair Employment and Housing Act (Government Code, section 12900 et seq.), and a claim for failure to reimburse business expenses. Plaintiff employee signed an acknowledgment of receipt of the employee handbook. In it, he agreed he was bound by the provisions of the handbook, and it was his responsibility to read and familiarize himself with all its provisions. The handbook contained an agreement to arbitrate disputes. The employer did not highlight or otherwise call the employee’s attention to the arbitration clause. The Court of Appeal held the employee demonstrated his assent to the arbitration clause by signing the acknowledgment, and the employer had no duty to call the arbitration agreement to the employee’s attention. It also found that provisions in the arbitration clause concerning arbitrator’s fees and costs and attorney fees were unenforceable, but they could be severed, and the rest of the agreement was enforceable. (C.A. 2nd, August 26, 2020.) Unlimited civil action, a final judgment or order from a de novo appeal to the superior court under Government Code section 53069.4 is reviewable on appeal to an intermediate appellate court. (C.A. 1st, March 10, 2020.) n

Do’s and Don’ts of Initial Consultations by Kirk Stange

nitial consultations are critical to the success of any law firm. The reality is that law firms that want to thrive and succeed need to put their best foot forward in an initial consultation. Obtaining new clientele is necessary for a law firm to succeed. New clients ensure that the lights can stay on in the law firm. New clients ensure that the salaries and obligations of the law

firm can be met. Further, new clients allow a law firm to have a sense of optimism about the future. Law firms that succeed take every initial consultation very seriously. Law firms that do not succeed take initial consultations cavalierly. Below we are going to discuss some do’s and don’ts for initial consultations.

The Do’s for Initial Consultations • Treat every initial consultation like a job interview. The reality is at every initial consultation meeting, the potential client is meeting a lawyer to determine if that lawyer or law firm is a good fit for their case. It is up to the lawyer to treat the occasion seriously and do their best to show their care, compassion, empathy, professionalism, and skills. • Take the time to listen to the potential client’s questions and concerns. Some lawyers may be in a rush, thinking about other cases or matters on their agenda, and may not really take the time to answer the potential client’s questions or concerns with IRAC answers. A good initial consultation meeting usually takes some time. Anything less than an hour is probably not long enough for a potential client to decide to hire the lawyer. • Let the potential client do most of the talking. Many lawyers have a desire to hear themselves speak and pontificate. Lawyers who succeed in initial consultations get that it is not about them, but the potential client. Thus, it is vital to let the potential client get off their chest what brought them into your office before speaking or asking questions. Most lawyers should begin an initial consultation by asking a simple question like, “It is a pleasure to meet you. Tell me what brings you into my office today?” From there, it is important to mirror back to the potential client what they are saying with empathy and compassion to ensure you heard it right.

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• Assume all potential clients have the funds to secure your representation. The reality is lawyers in the same geographic area generally charge rates that are roughly comparable to other lawyers on a low to a high end. Most potential clients generally know these rates by talking to others before even seeing a lawyer. Thus, be optimistic about the potential client’s ability to pay your rate. If a good chunk of the potential clients are telling you that they do not have the funds to hire you, it is important to understand that many of these potential clients have the ability to pay your advanced fee, but they did not feel comfortable hiring you for some other reason. They just let you down easy by telling you they did not have the money. • Be sure to give the client a brief game-plan toward the end of the initial consultation based on what the potential client has told you. Obviously, any game-plan might change once more is learned along the way or new facts arise. However, if you do not give a general game-plan, most clients will not feel confident hiring a lawyer or law firm. Simultaneously, if you go into nauseating details, you may lose the client in the complexities. In sum, a lawyer must have the ability to state the game-plan succinctly in layman’s terms.

The Don’ts for Initial Consultations • Avoid being a naysayer or stonewaller in an initial consultation. Naysayers only look at worstcase scenarios for the client. They never explain the middle case or best-case scenarios. Stonewallers never answer questions. All their answers are evasive with generic statements like “it depends,” “it will be based on some factors,” or “it will be up to the judge.” The truth is that potential clients want to hire a lawyer who can give assessments that involve best-case, worst-case, and middle-case scenarios versus entirely negative. Potential clients also do not want a lawyer who is like a politician who refuses to answer questions. • While most potential clients are generally informed about lawyers’ rates in their locality, a lawyer must be clear and pithy on their fees. Some lawyers ramble to the extent that the potential client is more confused. In short, keep it as clear and pithy as possible by saying something like, “My rate is X amount per hour. My associate is X per hour. And my paralegal is X per hour. We all charge in tenth of hour increments. To begin on your case, we’d need an advanced fee deposit of X amount. Further, the total cost will vary based on the length and complexity of the case. The advanced fee deposit is just what we need to begin.” Further, after the client says they want to hire you, give the client all the time they need to read your fee agreement before they sign it. Of course, answer any questions they have. The above example is also for hourly billing. So, no matter how you bill, be sure to hone your explanation so that it is easy for a potential client to understand. • While you may need new cases, don’t be pushy in initial consultations. Being pushy leads to less potential clients hiring you. So, take your time to listen to the potential client. Be sure to answer all their questions and concerns. Additionally, be sure to give them the time to read your fee agreement and ask any questions about it. If the potential client feels like you are a pushy salesperson, it is counterproductive.

• Show genuine compassion and empathy for potential clients. Many lawyers meet so many clients and potential clients that they become desensitized to what the potential client is going through. The reality is that it can be hard for most potential clients to come into a lawyer’s office. Lawyers who are successful with potential clients give them a tissue when they cry, affirm the potential client’s feelings, and show human compassion. Sometimes, a lawyer can literally say and do all the right things, but compassion and empathy are missing. Many potential clients also hire a lawyer based on their overall bedside manner, not based on what they say. • A lawyer must be confident in the services they can provide. Many lawyers go into an initial consultation thinking they need to be a legal encyclopedia who answers every question off the top of their head with 100-percent accuracy. If the potential client asks them something they are not completely positive about, many lawyers will freeze up or resort to a stonewall answer. The truth is that lawyers sometimes must tell the potential client what they think off the top of their head. However, they may have to clarify that they may need to do some legal research, consult another lawyer, or contemplate that question a little bit longer to give the best possible answer. Lawyers who take that approach do very well. But lawyers who lack the confidence to say that (or they think they must know everything off the top of their head) can often freeze up, look insecure and struggle in initial consultations. There are other tips other lawyers could provide in terms of being successful in an initial consultation. However, the tips above can help many lawyers and law firms. n In 2007, Kirk Stange founded Stange Law Firm, PC with his wife Paola and has worked diligently to grow the firm to what it is today. In addition to practicing law, Kirk spends time educating attorneys and other law professionals at CLE Seminars through the Missouri Bar, myLawCLE, the National Business Institute and other organizations. To learn more, please visit www. stangelawfirm.com.

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CMY

JOURNALS

ATTORNEY

OF THE MONTH

2020

Two NichesNo

The Go-To Attorney for Two Hard-To-Reach Niches: Bicycle Injuries and Long-Term Disability Appeals by Dan Baldwin

oshua Bonnici is one of those fortunate few who have turned his interests into a business success, but also a means of helping other people facing often-catastrophic legal, medical and personal crises. Since forming Bonnici Law Group, APC eight years ago, he has become the go-to attorney in two unique and challenging practice areas: bicycle accident law and long-term ERISA disability appeals. “My experience, as an attorney and, in the case of bicycle law, considerable personal experience as an avid cyclist and bike racer, really does make me uniquely qualified in these very specialized areas of law. Since I was a kid, I’ve been pulled to help people. Focusing on these areas allows me to provide help to people for whom there are very few options in terms of legal advisors,” Bonnici says. Founded in 2012, Bonnici Law Group has a legal staff of three attorneys and an assistant with plans to add a second assistant soon. The firm’s practice areas are solely personal injury and disability appeals.

“I SPEAK BIKE” Bonnici says that as a rider and racer intimately familiar with southern California roadways and bike paths, no other attorney in the area knows how to outline a bike accident as effectively as he does. In addition to the facts and figures of a case, he can tell the story of how the incident affected a client’s life, the personal and health costs, and what it means to be off the bike on an emotional level. “I speak bike” is his promotional tagline. “I know how to break down GPX files and training programs to show past work cyclists have put into training and how to identify the local and statewide ranking of a racer—showing

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how unique the client is compared to other riders. I know the struggle of injuries on the bike, the struggle of missing out on riding because of an accident, losing rankings as a competitive racer, and statistically losing speed and fitness while recovering from injuries. I fight the insurance companies to insist that my clients are treated fairly and that they get what they deserve. And just as important, I get them back to riding soon.” Bonnici says that training on the bike emphasizes numbers and goals: how much farther can a cyclist go on a given day or how much can they better their time on a particular route or segment, for example. Those challenges provide motivation that’s purely in his control—something that is fun and something he takes to heart. “I try to instill that in my practice because although there are some things that are not in an attorney’s control, there are some things he or she can control. Focusing on that can oftentimes help narrow what the client’s immediate needs are, and what I can do in the short-term to help. What does the client need right now? Does the client need a second opinion on an injury to calm their concerns, or get an expert involved? Do they need a psychologist to treat their PTSD after getting hit by a car? Do they just need someone to talk to at the moment? The focus required in biking applies directly to providing effective and personal client service in those situations,” he says. The firm’s typical cyclist client ranges from someone who trains and races regularly in southern California, to the recreational cyclist wanting fresh air and a new way to experience San Diego. Clients often have a carbon fiber race bike, high-end cycling apparel and may pay for a training plan or cycling coach. They track their fitness and mileage with sophisticated apps and programs. They’re dedicated and

Waiting

need someone just as dedicated to not only tell their story, but understand where they are coming from. His in-depth, intimate knowledge approach wins praise from clients in all practice areas. Working with Josh has been a pleasure. He immediately defused an incredibly stressful situation and guided us through a labyrinth of legal procedures. We wouldn’t have had an idea what to do without his help. Josh was easy to talk to and had a knack for making complex ‘ legalese’ simple to understand. Unlike the other lawyers we met with, Josh actually listened more than he talked which was refreshing. He was straightforward about the risk/reward of litigation vs. settling and we couldn’t be happier we listened to his recommendation. We’re thankful we were referred to Josh. M.M. Bonnici takes his commitment to his clients and to the sport a step further by donating a portion of their attorney fees to a local charity or non-profit of the client’s choice.

LONG-TERM CLIENT SERVICE FOR LONG-TERM DISABILITY APPEALS Bonnici says, “On the LTD side I really like putting together long-term timelines—something I can really use in arguing cases. Proving the insurance company is wrong after they have denied somebody—taking their arguments and breaking them down and then knocking them down one at a time. The strategy behind making sure the client gets what they need and what they deserve really makes me tick.” Much of Bonnici’s commitment to long-term disability clients comes from personal experience. His father has been on disability benefits for nearly 20 years after a horrific bike accident that caused a major brain injury. “I can speak with a client with extreme confidence because I have in a very real sense lived what he and his family are going through. I not only take the medical portion of the claim to task, but I know how to tell the whole story of who the client is, what he and his family are experiencing, and their emotional as well as financial costs. I bring those things to life for the insurance company since I know how they really do affect a person and their family.” The firm’s typical LTD client is a disabled professional who has tried everything to be able to stay working, but their doctors tell them they need extended time off work. They may have a debilitating disease without a cure, or which causes symptoms that in the aggregate make living a so-called normal life very difficult if not impossible: suffering seizures, extreme fatigue, or migraines. Their disability may not be traditional or show up on an MRI. They need their story told through video interviews, timelines and through co-workers—whatever it takes to make their suffering real for those hearing their story.

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Long-term disability cases can turn into a long-term relationship and this must be taken into consideration when taking on LTD clients. “If they don’t like me, that’s one thing, but if I’m not a fan of who this person is, that is something I really have to think about. The client and I are in this for the long-haul and we have to make that journey as a team.” A claimant who has been turned down for disability benefits, or alternatively whose disability benefits have been terminated, will require competent counsel, well versed in the applicable litigation. “It is virtually impossible and certainly impractical for a disabled claimant to even attempt to singularly traverse through the virtually endless maze of an insurance company’s ‘claim’s team’ (Claim Specialist, the Appeal Specialist, In-house Nurse, the Peer-Review physician, the Vocational Specialist, and the Surveillance Specialist). A client not only needs an attorney who knows the law, namely ERISA, but who can also translate a client’s physical and emotional damage in an effective and impactful way that the insurance carrier, and possibly a judge, can’t deny,” Bonnici says. “In a very real sense I become a member of their extended family. Often the term counselor includes listening to clients ‘spill their guts’ and offering a shoulder to cry on or acting as an informed sounding board for all kinds of family issues. I really enjoy connecting with the clients like that. I love fighting for my LTD clients because you’re not only trying to win a case, you’re making sure good, deserving people have the financial resources to live,” he says. Dealing with ERISA policy issues is a very complex area of the law and one in which many attorneys and firms lack the necessary background and experience of the team at Bonnici Law Group. Approximately 50 percent of the firm’s business is referral and primarily involving ERISA, a complicated area of the law. “It’s a heavy statute and we get a lot of calls from other attorneys who have questions regarding ERISA requirements and procedures. And we pay referral fees according to the state bar rules,” Bonnici says.

A LIFELONG QUEST TO HELP PEOPLE IN NEED Bonnici has always had one passion in life: to help people through life’s struggles. The urge was a calling he felt early in life and it is something he pursues daily. Some of his experiences include traveling with his church to Mexican orphanages, aiding classmates as a professor’s assistant, or volunteering at a local high school for homeless teenagers. He doesn’t wait for the opportunities to arise. He seeks them out. He decided on a career in law early and made the commitment in high school. He attended the University of California, San Diego, where he majored in Political Science and took advanced law courses prior to law school.

FILLING THE FAMILY NICHE In addition to bicycling and racing all over southern California, Bonnici enjoys spending time outside hiking and camping with Julia, his wife of 17 years, playing with his dog Marley, discussing baseball strategy, and amateur bartending (ask about his black walnut Manhattan, or his wife’s favorite, the guava mezcal sour). Bonnici Law Group sponsors and supports the San Diego Velodrome, which supports VeloYouth and other local associations who get kids on bikes. They also sponsor San Diego Bicycle Club, San Diego County Bicycle Coalition, and SkyFlash Racing, an all women’s race team aiming to get more women into the sport of bicycle racing. Bonnici sits on the board of directors for the San Diego Mountain Biking Association to help raise money for multi-use trail maintenance and sustainability. He is on the ExComm for the Solo/Small Firm section of the California Lawyer’s Association (formerly the CA State Bar), is the sitting secretary, and the editor-inchief for their publication, The Practitioner. n Contact Joshua Bonnici Bonnici Law Group, APC 1620 5th Avenue, Suite 625 San Diego, CA 92101 Phone: (619) 259-5199, ext. 101 josh@bonnicilawgroup.com www.BonniciLawGroup.com

Attorney Journals San Diego | Volume 208, 2020

EXP ER I ENCE

He married Julia, his high school sweetheart, the summer before his junior year in undergraduate college and transferred to UCSD that same summer while working 20 hours a week and taking 22 units in college. He earned his Juris Doctor from Thomas Jefferson School of Law and worked for a local plaintiff’s personal injury firm during and after his schooling. He also worked as a professor’s assistant, coached an award-winning alternative dispute team and took part in a volunteer teaching program, teaching homeless high school students at the Toussaint Academy in San Diego. “I kept telling people that I was going to be a lawyer, so that’s what I did. I really enjoyed the debate team and loved solving problems. People have always been very comfortable talking to me, so I figured that would be a good way to connect and give back to my community. My philosophy has always been the realization that truly helping a client isn’t just through representation—but through personal attention, zealous advocacy, and transparency,” he says. After leaving the personal injury firm he joined a legal marketing business for a year. He was the only attorney on staff. A project that initially started as a possible joint venture with a friend from law school turned into Bonnici starting his own purely contingency law office with zero clients. He has since grown the business from a solo practitioner to a team of five.

The Bonnici Law Group Team: Devin De Loa, Josh Bonnici, Freyja Wolken and Melissa Renteria

» EDUCATION • Thomas Jefferson School of Law 2006–2010 • University of California, San Diego—Political Science major—2003–2005

» HONORS/AWARDS & REVIEWS

(AS OF 11/19/2020)

• San Diego’s Best Litigation Firm—San Diego Tribune • Awarded the “40 Under 40” award for businessmen in San Diego • Super Lawyers Selected to Rising Stars: 2019–2021 • Google Reviews—5 Star Rating—25+ Reviews • Avvo Reviews—5 Star Rating—20+ Reviews • Yelp Reviews—5 Star Rating—5+ Reviews • Better Business Bureau—A+ Rating

» HOBBIES/INTERESTS • Biking • Baseball fan • Weight lifting • Craft cocktails

Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon

Jan M. Eckermann, MD, FAANS is a boardcertified neurosurgeon with over 10 years of experience in managing complex neurosurgical patients. We partner with personal injury attorneys to better serve your clients. Conditions Treated: • • • • • • • • • • • • • • • •

Back pain Back injuries Back spasm Neck pain Shooting pain in the arm (cervical radiculopathy) Shooting pain in the legs (lumbar radiculopathy) Sciatica Herniated discs Pinched nerves Chronic pain syndrome Failed back and failed fusion syndrome Traumatic brain injury Concussions Carpal tunnel syndrome Lumbar fusions Spinal stenosis

Dr. Eckermann has two locations: Newport Beach Office 1617 Westcliff Drive, Suite 203 Newport Beach, CA 92660 Phone: 949-514-7456 Fax: 949-209-4687

janeckermannmd.com

Bakersfield Office 2323 16th Street, Suite 407 Bakersfield, CA 93301 Phone: 661-479-7240 Fax: 661-843-7882

21 Ways to Overcome Competitive Weaknesses and Increase Your Credibility by Trey Ryder

ll lawyers have competitive strengths and weaknesses. If you’re a new attorney, your prospects may perceive your weaknesses to be your youth, lack of experience, minimum qualifications, lack of special training, less-thanelegant office, and so forth. If you’re a veteran attorney, your weaknesses may include your narrow focus, high fee threshold, busy schedule, lack of availability, and so on. Your competitive advantages and disadvantages (aka your strengths and weaknesses) are valid only when seen through your prospect’s eyes. What your prospect perceives, your prospect believes. To your prospect, their perceptions are fact. To use a legal term, your prospect’s perceptions are rebuttable presumptions because your prospect presumes certain facts are true based on the information they have. Since you can provide your prospect with as much information as you wish, you have the opportunity to change how your prospect perceives you. In essence, you can overcome competitive weaknesses by providing specific facts. When your prospect looks at your weaknesses, they weigh them against your strengths and then decide whether to hire you. If your weaknesses outweigh your strengths, your prospect won’t hire you because they don’t believe that you can solve their problem. Here are steps you can take—and information you can provide—to increase your credibility and overcome your competitive weaknesses.

 Treat every prospect as if they are the most important person in the world.

When you give your prospect your undivided attention, you build a strong relationship and they know you sincerely want to help them.

 Ask your prospect what problem they want to solve or what goal they want to achieve.

The sooner you focus on your prospect’s needs, the sooner they trust you—and the sooner they conclude that the two of you are working toward a common goal.

Attorney Journals San Diego | Volume 208, 2020

 Listen carefully so you can determine which points are most important to your prospect.

One of the biggest complaints about lawyers is that they offer boilerplate solutions before they have listened to the problem. Even if their stories are nearly the same, prospects want to tell you their story, so you appreciate the weight they carry on their shoulders.

 Offer information about your prospect’s problem and the solution you recommend.

The more you educate your prospect, the more they believe that you understand their problem and have the skills and qualifications to solve it.

 Explain how your prospect will benefit from your solution.

First, your prospect needs to understand the solution you recommend. Second, they need to know how they will benefit from that solution. For example, let’s say your prospect has questions about a contract. You offer to review the document. How does your prospect benefit? After you review the document, your prospect (now your client) will (1) know how the document protects their interests, and (2) know any weaknesses that should be addressed. Further, after you correct those weaknesses, your client will be less likely to face legal challenges than if they had relied only on their own judgment.

 Give your prospect a copy of your biography because it proves that you have the education, background, and qualifications to solve their problem or help them achieve their goal.

Your prospect wants to trust you, but most prospects don’t have much, if any, information about your education and qualifications. When you provide biographical information, your credibility increases immediately.

 Add power to your biography with a good marketing photograph.

In the photo, you should be looking directly into the camera and have a warm, engaging smile. An attractive photo—closely cropped for strong eye contact—serves as proof that you are kind, pleasant and friendly.

 Tell your prospect how you have helped other

importance of testimonials, I tell lawyers that each testimonial from a consumer client is worth $30,000 in legal fees; each testimonial from a business client is worth $50,000 in fees. (A few jurisdictions do not allow lawyers to use testimonials, so make sure you check your bar’s rules of professional conduct.)

 Show your prospect letters of recommendation from colleagues and professionals.

Every time you explain a case history, your prospect sees that theirs is not the first case of this type that you have handled. The more case histories you describe that are similar to your prospect’s, the more your credibility increases in their eyes.

These letters attest to the depth of your knowledge, skill, judgment, and experience—and prove that your colleagues trust you. The more letters you have, the more they persuade. (As with testimonials, check your rules of professional conduct to see if you are allowed to use letters of recommendation in your jurisdiction.)

 Offer information and advice in plain English.

 Provide your prospect with a list of references.

Your prospect finds it hard to trust a lawyer who uses words they don’t understand. When you talk with your prospect, speak in simple terms. The more they understand, the higher your level of credibility—and the more your prospect concludes that you know how to solve their problem.

Testimonials and letters of recommendation are better than references because the comments are already on paper. Even so, references increase credibility—and the more, the better. Include the person’s name, profession, phone number and email address. Often, prospects don’t actually call your references. The mere fact that you list them increases your credibility.

clients in similar situations.

 Package your solution so it is attractive to your prospect.

When you offer your prospect a solution they like, you increase your credibility and make it easy for them to accept your offer.

 Allow your prospect to make their own decision without pressure from you.

All of us have learned to distrust the salesperson who tries to pressure us into making a decision. To increase your credibility, tell them that you will provide information and recommend the solution you believe is in their best interest. At the same time, make sure your prospect knows that you will never try to pressure them into making a decision.

 Make sure your prospect knows that you

are happy to answer their questions now and in the future. The way to build trust and respect is to keep the lines of communication open. If your prospect isn’t ready to make a decision, invite your prospect to call you any time they have a question or when they are ready to move forward.

 Show your prospect comments from clients

who have provided written testimonials about you and your services. Prospects place more credibility on comments from third parties than on comments from you. To emphasize the

 Provide your prospect with copies of articles

that support the depth of their problem, reinforce the solution you recommend, or both. Generic articles—which you did not write and in which you are not quoted—prove that the problems and solutions you discuss are true. The more respected the publication, the more credibility attaches to what you say.

 Give your prospect copies of published articles you’ve written.

Even if the article’s subject is not directly on point, a published article proves that editors respect and trust you as a reliable source of information. Published articles build instant credibility and reinforce that you are an authority in your field of law. The more well-known and respected the publications, the more positively they reflect on you. The more articles you have, the better.

 Give your prospect a list of results you have

achieved or transactions you have completed for your clients. This serves as proof that you are good at what you do. Whatever service you offer, create a list of 10 to 20 results and describe each case or transaction in two or three sentences. You don’t need to include clients’ names, but the results are more believable when you do.

Attorney Journals San Diego | Volume 208, 2020

We Know Marketing Like You Know The Law

 Before your first meeting, send your

prospect a short letter (1) offering information about your services, (2) answering frequently asked questions, (3) discussing what takes place during your initial meeting, and (4) outlining your fees. When you put your prospect’s mind at ease, they are more willing to meet with you. What’s more, you can quickly get down to specifics because you don’t have to explain your services to each prospect.

 Provide your prospect with a list of your

competitive advantages—the many positive ways you differ from other lawyers. This list usually relates to the depth of your knowledge, skill, qualifications, and experience.

 Give your prospect a written schedule of

services and fees. Salespeople are taught never to disclose the price until the end of their sales pitch.

Let us “do the time” to get your project right! • Writing for the layperson • Putting together a presentation • Developing a marketing strategy • Sprucing up your website • Designing an ad, booklet, flyer or brochure • Establishing a better logo, mission statement or tagline

That’s one of many ways salespeople miss the boat: By not disclosing the price, they arouse suspicion, increase skepticism, and undermine their credibility. And when salespeople finally do reveal the price, their previous stonewalling has built such a barrier between you that you don’t want to do business with them at any price. Make sure you do the opposite. Prospects trust what they see in print more than what they hear. When you talk about fees, you leave room for misunderstanding. But when you give your prospect a written schedule of services and fees, prospects grow more comfortable and you increase your credibility because prospects have your information in writing. All lawyers have marketing strengths and weaknesses. You erase many weaknesses when you provide facts and third-party opinions that verify the depth of your knowledge, skill, judgment, and experience—and the quality of services you provide to your clients. The more of the above steps you follow, the stronger you make your marketing presentation. n Trey Ryder specializes in Education-Based Marketing for Lawyers. He designs dignified marketing programs for lawyers and law firms in the United States, Canada, and other Englishspeaking countries. Trey works from his offices in Payson, Arizona and Juneau, Alaska. To read more of Trey’s articles, visit the Lawyer Marketing Advisor at www.treyryder.com.

215-550-1435 • penn-creative.com 24

Attorney Journals San Diego | Volume 208, 2020

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

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FIELDING LAW, APC

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ERIC DUBIN 949-477-8040 edubin@dubinlaw.com www.DubinLaw.com

Orange County, CA

Century City, CA

19200 Von Karman Ave, Sixth Floor Irvine, CA 92612

1875 Century Park East, Seventh Floor Century City, CA 90067

Think Big, Act Small: The Power of a Niche to Grow Your Business by Jay Harrington

I started a small law firm in Detroit in 2009 with a friend of mine. I had six years of legal experience at that point, and no clients to speak of. I was betting there would be so much corporate restructuring work (my practice specialty) that business would simply arrive once I hung a shingle. Things didn’t work out as planned. Work, of course, didn’t magically appear. There was lots of it, especially in the automotive industry that was in the midst of a massive restructuring, but it didn’t come my way.

... a narrow niche is the foothold that many lawyers use to gain traction. I was thinking big about the potential opportunities, but realized I needed to act small to capitalize on them. Instead of pursuing work from Tier 1 or 2 auto suppliers, which were largely out of reach, I focused on an overlooked and underserved segment of the supply chain: auto dealers. To get in front of dealers, I got in touch with the local auto dealers association. I wrote, spoke, and had lots of conversations—for free. By immersing myself in the dealer world, and providing insights and information, I was able to establish relationships that led to new business. Dealers are a tight-knit group, so lots of referrals started pouring in. It was the boost I needed to launch my practice. It resulted from having a narrow focus, a niche. My experience is not unique. Focusing on a narrow niche is the foothold that many lawyers use to gain traction. If you’re struggling to gain traction, keep this in mind: When building a practice, don’t try to serve everyone. Focus on serving someone. Others will follow.

The Many Benefits of Having a Niche Many lawyers fear that a narrow focus will limit opportunities. This is scarcity thinking.

... don’t try to serve everyone. Focus on serving someone.

Attorney Journals San Diego | Volume 208, 2020

Even the seemingly smallest markets offer big opportunities. Litigation for auto dealers in Detroit, corporate work for dentists in Chicago, transactions for grocery stores in Minnesota, and estate planning work for young families in Charlotte are all multi-million-dollar niche opportunities. It’s easy to be seduced by the magical thinking that bigger is better, but an inch-deep-mile-wide approach to business development almost never works. You need to start somewhere, and the best place to start is identifying, in the words of Seth Godin, a minimum viable market. Again, think big but act small.

... an inch-deep-mile-wide approach to business development almost never works. As you become a well-known expert in a niche, you’ll create a flywheel effect of referrals. The tight-knit group you serve will talk you up. Once you dominate one small market, it’s far easier to move into new ones. In this sense, a narrow niche is what allows you to scale your practice to new heights (a key tenet of our new Quadrant Two Academy program for lawyers who want to grow $1 million-plus practices). Need more convincing of the power of a niche? Consider that a narrow focus: • Allows you to become a recognized thought leader. When you have a niche, you deal with the same types of clients facing similar issues over and over. This allows you to spot patterns and connect dots in your thought-leadership content in a way that’s not possible if you’re a generalist.

• Makes marketing easier. When you’re focused on a particular niche market, you can identify the key publications, websites, trade groups, and conferences your market cares about. You can then inject yourself into the conversation happening within that market. • Is less stressful because you know the basics (the procedures, the statutes) cold. There’s no getting up to speed. As a result, you can take on the tough (expensive) problems and craft more creative solutions. • Gives you more pricing power. Every attorney/ client relationship involves a struggle for control. Established expertise is what tips the scales toward you. When you’re no longer seen as a commodity, you can charge above-market rates. It’s true: the riches are in the niches. Clients pay for expertise. • Allows you to reduce the cost of sale. There is less pitching, and no more RFPs when you’re dominant in a niche because you’re perceived as the go-to expert. When it really matters, clients seek you out.

• Enables you to expand the geographic scope of your practice. With a niche, you’re no longer forced to hunt for clients within a small geographic radius. Expertise travels. Looking to start 2021 strong? One of the best investments you can make over the next 45 days is spending some time thinking about how to position yourself for success within a niche market. Evaluate your key strengths and how those strengths align with market opportunities. Remember: think big, act small. n Jay Harrington is the owner of Harrington Communications, a leading digital marketing agency for law, consulting, and accounting firms. He specializes in helping law firms build engaging websites and digital marketing strategies through creative design and storytelling. Jay is author of three books, The Productivity Pivot, The Essential Associate, and One of a Kind. He hosts the podcast The Thought Leadership Project. Jay is a graduate of the University of Michigan Law School, and previously he was a commercial litigator and corporate bankruptcy attorney at Skadden Arps and Foley & Lardner.

Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.

To schedule, contact Christopher Schuster: (619) 231-1323 or christopher@adrservices.com

Organized, succinct summaries of EVERY new published California civil and family law case, published every month for $50.00 a month. Subscribe at www.cacasesummaries.com

Attorney Journals San Diego | Volume 208, 2020

Matthew D. Shapiro, William D. Shapiro and Brian D. Shapiro

Making an Impact on Clients and Community Over $250 Million in Notable Verdicts & Settlements Practice Areas

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893 East Brier Dr. San Bernardino, CA 92408 (909) 890-1000

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