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Journal of Consumer Attorneys Associations for Southern California

Day-in-the-life videos More powerful than words. Here’s how to get them admitted Taxable damages and the use of structured settlements



Law Office

Red-flag clients can put the black flag on your practice

Technology Case management software – It’s all relative Is your firm’s network server ready for replacement?

Legal ethics in the Internet age

An ounce of prevention: Technology and your trial presentation

The super legal secretary

Stop being a Luddite – join the app generation


Going paperless…

and cutting the tether to your physical office. Where will you work?

How to start, manage – and market – a small PI law practice Riches in the niches: Sharpen your focus to define your niche

May 2013


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Jim and Eric Traut have had exceptional verdicts in more than 200 jury trials with over 100 six and seven-figure verdicts and settlements. Their combined 58 years of successfully litigating cases before Orange County juries provides them the experience, and equally important, the resources, to win big — and to pay you a generous referral fee.

Jim and Eric have both received the Orange County Trial Lawyers Association “Trial Lawyer of the Year” award. Jim has also received the O.C. ABOTA “Trial Lawyer of the Year” award. Both are annually designated “Super Lawyers” by a Los Angeles magazine poll, and both are AV-rated Preeminent, the highest possible rank.

MAY 2013

The Advocate Magazine — 5

Contents Volume 40, Number 5, MAY 2013

Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, Mary Bennett, Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, Linda Rice, Ibiere Seck, Geraldine Weiss Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Publisher Managing Editor Richard Neubauer Cindy Cantu Copy Editor Art Director Eileen Goss David Knopf Consumer Attorneys Association of Los Angeles President Treasurer Lisa Maki Ricardo Echeverria President-Elect Secretary Geoffrey Wells Michael Arias First Vice President Immediate Past President Joseph Barrett Michael Alder Second Vice President Executive Director David Ring Stuart Zanville

Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Steve Goldberg, Jeff Greenman, Christa HaggaiRamey, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Anthony Luti, Shawn McCann, Minh Nguyen, Linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Douglas Silverstein, Armen Tashjian, Kathryn Trepinski, Geraldine Weiss, Jeff Westerman, Ronnivashti Whitehead, Andrew Wright, Dan Zohar Orange County Trial Lawyers Association Secretary President Geraldine Ly Scott Cooper Treasurer President-Elect Casey Johnson

B. James Pantone

Second Vice President Vincent Howard Third Vice President

Douglas Schroeder

First Vice President Ted Wacker

H. Shaina Colover

Parliamentarian Jonathan Dwork Immediate Past President Executive Director Janet Thornton

Board of Directors Melinda S. Bell, Gregory G. Brown, Anthony W. Burton, Brent W. Caldwell, Cynthia A. Craig, Jerry N. Gans, Robert B. Gibson, Paul E. Lee, Kevin G. Liebeck, Christopher E. Purcell, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2013 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.

ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224


Send address changes to ADVOCATE

c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine


16 Going paperless – cutting the tether to your physical office

Even with a clear plan of action and the right tools, the paperless law office will not happen overnight.

Shawn Khorrami

30 Is your firm’s network server ready for replacement?

Countless firms are holding onto their aging Small Business Server (SBS) 2003 hardware and operating system. Should you upgrade SBS while there’s still time, or look at newer cloud solutions?

Chris Filippi

40 An ounce of prevention: Technology and your trial presentation Technology is terrific, until something goes wrong. Tips for preparing your trial presentation and preventing technology troubles before they arise.

Rick Kraemer

56 How to start and manage a PI law practice

If you build it they will come, and once they do, here’s how to keep your firm growing. A guide for the solo practitioner or small firm.

Scott J. Corwin

59 Red-flag clients can put the black flag on your practice

How to recognize the red flags that may signal nightmare clients while there is still time to say “no.”

Steven G. Mehta

73 The super legal secretary

A look at what makes a legal secretary indispensable to the firm.

Sonia Revolorio

74 Admissibility of day-in-the-life videos

Video presentations demonstrate plaintiffs’ loss “better than words.” Here’s how to get them admitted.

Kelly Deutsch and Mark Alexander

84 Riches in the niches

Sharpen your firm’s focus to define your niche, building a more successful practice and a stronger reputation among your peers.

William E. Donahoo

86 Stop being a Luddite – join the app generation

A rundown of the essential iPad and Android apps for consumer attorneys.

Gretchen M. Nelson

88 Case management software – It’s all relative

The benefits (and burdens) of case management software are examined, as well as the ways in which case management software implementation succeeds (and fails).

Miles B. Cooper Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: Rate card available online at

Submitting articles for publication: Check the annual editorial calendar at to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu:

MAY 2013


Ethics in the Internet age

Attorneys must strive to maintain their ethics in the face of social media demands. A look at how the Web impacts attorney-client relationships, including the confidentiality of communications.

Thomas M. Dempsey


Taxable damages and the use of structured settlements

Recent tax increases can unfairly – and unintentionally – impact plaintiffs receiving taxable settlements. A look at one solution.

Dan Finn



A BOUT THIS I SSUE The law office: Management, marketing & technology Learning to utilize new tools in managing your law office.



106 107


One of us can make a difference

CAALA’s multi-function conference center has conference rooms available for members.

Even a poor, uneducated plaintiff can turn the tide of justice.



A PPELL ATE R EPORTS : C A SES IN BRIEF Recent cases of interest to members of the plaintiffs’ bar Jeffrey Isaac Ehrlich F ROM



Orange County Trial Lawyers Association

Scott Cooper


G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento and Washington.


Geraldine Weiss



Connect with the CAALA community – Join a committee!




Consumer Attorneys Association of Los Angeles


Consumer Attorneys Association of Los Angeles

All members can connect and give back to the community by volunteering.

Technology for trial lawyers

Lisa Maki




The iPad Mini is your next “must have” trial tool.

Stuart Zanville On the cover: Main Image: Man Using Laptop on Subway | Darrin Klimek | Secondary Image: Day-in-the-Life Video | Courtesy of Mark Alexander and Kelly Deutsch, Verdict Videos

MAY 2013

The Advocate Magazine — 7

About this Issue Geraldine Weiss

The law office: Management, marketing & technology Learn to utilize new tools in managing the law office You may be the most skilled attorney on the planet, but like a general with his troops, if you do not have a strong backup team armed with the appropriate tools for the job, you will lose the battle, the war and your clients. In the worst case scenario, this list could include a bar card. Of course, if you read the articles in this month’s Advocate, this will never happen as you will be so well versed with law firm management, cutting edge technology and nuances involving both that you won’t have to second guess either. So what treats are in store for you in this issue? Scott Corwin continues to educate us about essential tools for the solo or small practice. He builds upon a previous informative article with one that focuses on managing the practice and marketing the practice. His Internet marketing experience is something that has really worked well for him and he willingly shares his tips for Web site design and search engine optimization, social media campaigns and Internet legal directories. Scott also reminds us that we need to keep organized and keep up a regular channel of communication with our

clients. We are always busy but our clients need to know someone cares. His valuable tips remind us all about basics that should never slip through the cracks but sometimes do. Technology and the paperless office by Shawn Khorrami describes the advantage of a paperless office which drastically cuts back on the amount of paper used and relies heavily on electronically storing, managing, and sharing case files and documents. The concept behind a paperless office is to utilize technology to create a more efficient and organized work environment. At the same time, it will dramatically reduce costs and significantly improve employee productivity. The paperless office moves away from the traditional landscape of the law office and incorporates digital tools and mobile devices to facilitate better collaboration, both internally and externally. Red flags can put the black flag on your practice by Stephen G. Mehta calls to mind that “nightmare client” we have all met. His red flags are all reminders that we should not ignore certain signs no matter how much we may convince ourselves we are good enough to get around



Over 3,000 successful conclusions To Schedule, call Judicate West 800.488.8805

818.884.8474 fax 818.884.8388 8 — The Advocate Magazine

MAY 2013

them. “Sometimes the best client is the one that you don’t take.” The practice of law is enough of a challenge without your client pulling you in the wrong direction. Riches in the niches, written by William E. Donahoo, provides valuable tips on how to sharpen your firm’s focus and build a more successful practice. There are many ways to build a law firm and expand a practice area. Defining a niche and becoming its master is a proven strategy worthy of consideration. Doing so is much easier today than in the past thanks to the Internet, which provides unprecedented market access to all firms large and small. A niche strategy mitigates unknown risks, leverages intellectual property, builds a solid reputation and gives you a faster and surer path to the riches of practicing law. There are several articles in this issue which really help on the technical front. Chris Filippi will guide you through the perilous road of replacing your Windows 2003 small business server with something that really suits your business needs. Now I look at our computer with new respect for what it does and appreciate Chris doing so much work to provide options and comparative costs. Miles B. Cooper explains case management software and why you should care. What’s the difference between case management software and Outlook? Why can’t we simply use Outlook? And why would you want a relational system? The benefits (and burdens) of case management software are examined, as well as the ways in which case management software implementation succeeds (and fails). Find out whether it is right for your firm and important factors to evaluate when selecting the right program. Gretchen Nelson has shared her APP generation experience with us. I am

See Law Office, Page 14




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MAY 2013

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looking forward to using her suggestions for future practice of law. She is right, I probably will be trolling the Web looking for the latest and greatest. Although thanks to Gretchen, I do not have to! An ounce of prevention: Technology and your trial presentation, is a useful primer on how to present your case to a jury. If you read Rick Kraemer’s article, you will see that technology may look magical but it is fraught with danger unless you know what you are doing and how to plan for all eventualities. We all know it is better to be safe than sorry, but do we all bring backups of backups to trial? If not, it is time to start, as you only get one shot. Rick’s statistics that people only retain 30 percent of what they hear, five percent of

14 — The Advocate Magazine

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what they touch but 65 percent o f what they see, is a good reason to make sure the jury is engaged by what is presented at trial. Ethics should always be in the back of our minds. Thomas Dempsey has done a wonderful job of explaining the reality of litigating in the Internet age and its potential problems. As the “information highway” and social networking advance, it is advisable to keep abreast of new technical developments and to utilize them in your practice only as your comfort level allows. The preservation of the legal system is the most important aspect of your practice to keep in mind. If you strive to be a professional, while at the same time using the new techniques he discusses and reminding yourself of

hidden dangers, you will be on safe ground. Finally, let us never forget that fantastic support staff is your most valuable asset. Sonia Revelorio has written an informative article which your support staff should read. Yesterday’s receptionist may become tomorrow’s legal secretary, law clerk and lawyer with dedication and knowledge from the bottom up. It is not enough that your team is all dedicated to the job. The job has to be done correctly and proficiently. These articles combined will give you a comprehensive education on how to combine all of the technological and non-technological aspects of your practice into a successful and happy one. Good luck.

Shawn Khorrami

Going paperless – cutting the tether to your physical office Even with a clear plan of action and the right tools, the paperless law office will not happen overnight Many professionals view the paperless office more in terms of environmental responsibility than convenience. While the paperless office certainly has significant environmental benefits, it opens the door to a variety of substantive work benefits, among them, better productivity, efficiency, cost savings, and access to products and services which would otherwise be either cost prohibitive or impossible – particularly for small and solo practices. If you walk into my office any day of the week, you will never see bulky accordion files piled on top of one another or loose documents scattered across the desk – in fact, you won’t see any accordion files or documents at all. There is no storage space of any kind – my desk does not even have drawers. You will see virtually nothing except various devices and their accessories. While some attorneys work in cluttered workspaces and refer to the mess as “organized chaos,” I prefer to run a completely paperless office. As it suggests, the paperless office drastically cuts back on the amount of paper used and relies heavily on electronically storing, managing, and sharing case files and documents. The concept behind a paperless office is to utilize technology to create a more efficient and organized work environment. At the same time, it will dramatically reduce costs and significantly improve employee productivity. The paperless office moves away from the traditional landscape of the law office and incorporates digital tools and mobile devices to facilitate better collaboration, both internally and externally.

Making the move to paperless

As my practice began to grow, I quickly realized we had no other choice but to do things electronically. Otherwise, 16 — The Advocate Magazine

MAY 2013

we would need a full department of file clerks, and waste millions of pages of paper making copies for everyone who needed access to a document. It would be extremely impractical and frankly, cost-prohibitive. When making the decision to go paperless, a firm should first identify its needs and carefully study the products and services that are available that meet and support those needs. Keep an open mind and consult multiple sources, understanding that all sources will have biases and that there is rarely one right answer for any given need. And since there are multiple needs to address, careful consideration must be given to how to make the interaction of all the technological products as seamless as possible. So, software that may be ideal for a task may not communicate with other necessary software or hardware. Additionally, user preference is something to be factored in. Just because an IT professional prefers one software does not mean that you, as the user, will have the best user experience with it. A different software may make more sense to you or may incorporate commands and procedures that are more familiar to you. Before committing to any device or software, there is one more step that I

believe is crucial: the test drive. Just like a car, it is extremely important to take things for a test drive. Obtain a free or limited license and use the product in your office. If you are considering an off-the-shelf product from one of the chain stores, buy one license, load it on your system and work with it. There are few things that are “nevers” in going paperless, but there is one: Never invest in a new product without test driving it. At my firm, even with case management software, we obtain limited licenses, and have techs from the vendor work with several of our employees and incorporate enough of our case files and administrative functions in order to be able to extrapolate the results. After making a trial run and assessing your firm’s needs, acquiring the right tools will help construct a fully functioning paperless office when you are ready to make the leap. Many people think fax machines are part of the paperless office. Wrong! Not only do fax machines require paper – and lots of it – but distribution issues make it difficult for them to operate in real time – and they’re essentially 1980s technology. Instead, tools like case management software, electronic filing systems, smartphones, tablets and mobile applications are required. The sophistication of modern hardware and Internet services makes converting to paperless easier and less of a daunting task. Even with a clear plan of action and the right tools, the paperless office will not happen overnight. As with any major change in your office, the paperless office requires patience. It will take some time before your staff and a seamless paperless model can come together as a functioning, cohesive unit. As staff members

See Paperless, Page 18

Paperless — continued from Page 16

become more comfortable with the paperless concept, the need to print and copy paper documents will quickly diminish.

Mobility & portability

As time progresses and incorporating technology into the office becomes second nature, you can build a very robust virtual office, a prime advantage of running a paperless office. While once reserved for companies who had offices in different parts of the country and no centralized area to store and retrieve documents, the virtual office is now popular with attorneys who telecommute or travel often, or are simply working from home. As a frequent business traveler, I am away from my office regularly. However, with the help of my iPads,

18 — The Advocate Magazine

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iPhone, laptop, and Samsung Galaxy, I am able to create a virtual office and work without any interruption anywhere in the world – even sitting at a restaurant without WiFi – as if those exist anymore. I can do virtually any task I am able to do when I am physically in my office, at virtually the same speed, using the very same software and procedures. Because the paperless office requires files to be stored electronically, I have access to every single document 24/7 on any device – including my smartphones. I have edited Excel spreadsheets, including adding data and formulas, from my smartphone sitting in a car going from meeting to meeting. Running a virtual office requires nothing more than some of the devices we use on a daily basis. By installing key

mobile applications onto our smartphones and tablets, we are able to work on matters the same way we would at the office on our desktop computer. Modern technology on most devices permits attorneys to access, annotate, and e-mail information all from the palm of their hands. With the help of mobile and productivity applications (apps), it is now much easier to use our mobile devices to accomplish work-related tasks. Many of these mobile apps have been created with legal professionals in mind and are available for both Apple and Android devices. They cost little to nothing and are easy to use, providing attorneys with access to important information and a complete set of workflow tools. On almost all of my devices, I have the Veritext Mobile App,

See Paperless, Page 20

Paperless — continued from Page 18

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case transcripts and schedule or reschedule depositions. Work that was typically done at the office can be done electronically when on the go. Aside from business trips, the virtual office obviates the need for lawyers to cart around boxes of documents back and forth to their office. Whether I am traveling locally or out of state, I am able to carry my entire office on just one device. Very rarely, if ever, do I carry anything more than a tablet to court. And at home, every screen can be converted to a workstation in multiple ways – through the attached PC, a laptop being docked locally, or through my iPad. By installing a $100 Apple TV to any TV screen – by installing, I mean plugging in one wire to your TV and another wire to the electrical outlet – you can make any TV screen become your virtual office by projecting your iPad wirelessly to that TV screen. The paperless office system is a viable proposition for attorneys who are not tied to their office desk. This state of mobility and portability reduces any disruptions to workflow and makes traveling more enjoyable since the fear of falling behind on important matters is no longer an issue.

How to keep the paper out

In order to fully take advantage of the virtual office, you must have a completely paperless office. From the moment you receive a paper document, everything moving forward must be executed digitally. When a document first reaches your office via mail or fax, it must be converted into digital data. By taking a hardcopy document and scanning it, saving it as a Word or PDF file, and storing it on a hard drive, you have now created digital data that can easily be accessed and maintained by all. When documents are converted to digital form, they become available almost immediately. Keeping paper out is also much easier when everyone works from digital documents as opposed to hard copies. At my firm, an e-mail is sent each day to the entire firm documenting mail and faxes received for the day. If the

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MAY 2013

22 — The Advocate Magazine

MAY 2013

Paperless — continued from Page 20

document pertains to a current case, the document is stored electronically into its respective case file and can be accessed using our case management software. Case management software plays an instrumental role in the paperless office – frankly, in any office. It essentially acts as the imaginary filing cabinets that hold all case documents and files. My firm uses ProLaw Elite by Thomson Reuters. ProLaw houses all case files and client information and makes them readily available with just a few clicks. Digital data also lends itself to automation which optimizes workflow. Automation simplifies daily tasks and ensures that paper will stay out of the office. By creating digital versions of templates and forms that are frequently

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used, there is no need to print multiple copies of letterhead or pleading templates that lay around the office. Imagine if contact information listed on a letterhead template changes. Letterhead that has been printed out in bulk will be discarded and new copies that reflect the change will have to be printed. This will waste paper and be costly. Digital versions of commonly used forms can be modified and printed when needed, saving time and money. Software tools like Optical Character Recognition (OCR) and Portable Document Formats (PDF) allow you to modify templates and documents and send them without ever having to print a single piece of paper out. With Adobe Acrobat, the most popular PDF software, you can redact information, add notes, fill out forms and sign documents using a digital signature. Digital signatures electronically sign PDF documents, ending the need to print documents out to manually sign and scan them back. Maintaining PDF and digital files is much easier than paper copies and automation will optimize firm productivity and relieve employees of timeconsuming tasks.

Improving productivity and collaboration

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meet client needs. As the practice of law becomes more demanding, with tighter deadlines and races to the courthouse to file claims, how quickly we interact, communicate and work on client matters becomes extremely important. Boosting productivity can directly impact the amount of time spent on each task. As discussed, automation reduces time spent making corrections to written errors. Case management software that provides access to records and other documents also allows employees to finish projects in a more expedited manner while facilitating timely collaboration between attorneys. Case management software solutions provide attorneys a more convenient method of effectively managing time and case information. ProLaw is a popular case management software choice for larger firms like mine. ProLaw facilitates better collaboration and productivity between professionals with the help of resourceful tools. Calendaring important reminders, like when to send out retainers and when to request medical records, better outlines what needs to be done and when it should be done. ProLaw also offers time management tools like time entry, billing and accounting capabilities that track time that is allocated to each case. Case management software programs for law firms also comply with the paperless office model. Integration with Microsoft Word allows attorneys to work on electronic files and immediately file the document into the ProLaw database. Documents in ProLaw can be shared with other attorneys inside and outside the firm via e-mail that can be integrated with the firm’s e-mail platform. Software systems like ProLaw also initiate better organization for attorneys and firm staff. By removing files out of an attorney’s office, maintaining a workspace that is uncluttered will positively improve dayto-day operations. Ultimately, case management software will provide firms with tools that can increase productivity to allow for more clients and cases to be retained.

See Paperless, Page 26 24 — The Advocate Magazine

MAY 2013

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Paperless — continued from Page 24

Commitment from your staff While having the most up-to-date software and tools is critical for the paperless office, the participation of your staff is also important. Mistakenly, many think having the most current mobile devices is more important than staff participation. The commitment of your entire staff is vital and it can’t just be you alone. One of the biggest barriers a firm will face when transitioning to a paperless office is getting each employee to embrace the paperless concept and resist the urge to print and copy unnecessary documents. For those individuals who do not utilize technology regularly, this may be difficult since technology for some can be intimidating. The paperless office is like adapting to a new work environment. Your whole staff needs to adopt the concept as a

permanent, new way of doing business. For older generations of employees, following and embracing the new electronic filing system may be difficult whereas the younger, tech-savvy staff will adapt more easily. By highlighting how the paperless office can positively affect all staff members, the change will be better received. Reduced costs, quicker access to information, and company growth can be beneficial for all employees and not just the firm. It is also important to provide employees with training and educational seminars, and then, be persistent and patient. For example, when we first introduced our new VoIP phone system, we held training seminars and everyone, from attorneys to staff, attended. Training seminars provide employees an arena to address and voice any concerns and the opportunity to learn a new skill.

The bottom line If you are still skeptical of how beneficial the paperless office will be, think about the effect it will have on your bottom line. Throughout this article, I’ve provided examples of how quickly the amount of printing and copying regularly done by a firm will decrease when invoking a paperless office. Costs regularly generated due to printing, shipping and mailing will decline over time, saving the firm thousands of dollars annually. Consider all the e-mails you send and receive every day. Had those not been mailed electronically, they would have required postage, envelopes and paper. As you move away from the traditional manner of sending and receiving documents, costs associated will become less

See Paperless, Page 28

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Paperless — continued from Page 26

of a financial burden. The resources saved will allow firms to appropriate these funds into other areas for firm growth and development. Another profitable advantage of running a paperless office is the amount of time saved. For example, when a file goes missing or is misplaced, it may take minutes or days to recover the file. By electronically storing and filing documents, those occasional office-wide hunts for files will be avoided. Retrieving files will require very little effort and grant more than one attorney or legal assistant access to the file. By quickly retrieving information, complaints can be filed in a more consistent manner. The amount of physical space that becomes available in a paperless office is also a notable costsaving benefit. By removing archaic filing cabinets that house files, firms are better

able to create more work space when hiring new attorneys and professionals. It is much easier and cost effective to add a few more desks than it is to relocate to a new office when a firm begins to expand. The benefits of running a paperless office are endless and once you start, you will see results. When running a paperless office, it is also important to note that maintaining and backing up your servers and databases is extremely important. In the event of an emergency, you do not want to risk the chance of losing all your digital data and files. Simple solutions like cloud computing will allow you to store information and retrieve it at any time from any device. Firms that utilize the paperless s office will witness positive changes to their workflow, productivity, and bottom line. Saving a few trees along the way and reducing a firm’s

carbon footprint is also a positive change. The paperless office takes time, commitment, and patience. It does not happen overnight, but it is a change that can be quite profitable and powerful in the long run. Shawn Khorrami is the founder of Khorrami, LLP. He founded the firm in February, 1996, just two months after being admitted to practice law and has grown the firm from a solo practice to one of the largest plaintiff-only law firms in California. A graduate of Pepperdine University and an active member of the CAOC, CAALA, and AAJ, he is known throughout the legal community for litigating many class and individual actions against some of the U.S.’s largest corporations. Accolades for his work as a trial attorney include the AAJ Heavy Lifting Award, and Daily Journal’s Top 20 Attorneys under 40 (2008).


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MAY 2013

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Is your firm’s network server ready for replacement? Replacing Windows Small Business Server 2003 – it’s this year or never At the heart of your law firm network lies your trusty Windows 2003 SBS (Small Business Server) box. For the last five to eight years, it has received and stored your e-mail, shared your documents, and made your information accessible remotely from the Web, an iPad, or a smartphone. Like any other computer, it’s nearing the end of its service life – so you’re probably planning on getting a brand new server in a year or two that’ll be basically the same with some key modernizations and you’re set server-wise for another seven years or so, right? Unfortunately, this is no longer the case: After 15 years of a successful onestop, all-inclusive server product, Microsoft will be discontinuing the retail sale of Windows Small Business Server on June 30, 2013. It will still be available preinstalled through OEMs (such as Dell) through December 31, 2013. The current (and final) release of Windows Small Business Server is version 2011, which includes Windows Server 2008 R2, Exchange Server 2010, and optionally SQL Server 2010. In its wake, Microsoft 30 — The Advocate Magazine

MAY 2013

will be selling Windows Server 2012 Essentials (essentially a limited version of Windows Server 2012 Standard optimized for small business) and Office 365 (a subscription-based, hosted e-mail solution). Why? Cloud-based subscription services are really hot right now, and Microsoft has jumped in with both feet. Google’s rampant success with Google Docs has prompted Microsoft to go fullbore with Office 365 – an online monthly service that, at various price points, offers cloud-based e-mail, calendaring, file sharing, and more. In essence, Microsoft wants to charge monthly to do what Small Business Server does. So what? What makes Small Business Server (SBS) so special? Simple: features, usability, and cost. In an effort to attract small business (i.e. fewer than 25 users) to use Microsoft software on their servers (in place of Novell, IBM, or Lotus), Microsoft released BackOffice Small Business Server 4.0 in October of 1997. It combined limited versions of enterprise-level software products previously priced far out of reach for small organizations. At its core

were three key components: Windows Server for sharing files and printers, Microsoft Exchange for collaboration, hosting e-mail, and storing personal information (e.g. calendar, tasks, etc.), and Microsoft SQL Server for hosting databases. Designed to run on modest hardware and be managed by non-IT personnel, it combined a highly affordable and flexible collection of software with simple installation and maintenance. Over the years and several iterations, Microsoft continued to provide slightly handicapped versions of its current enterprise products into SBS and effectively took over the small business server market. The product also continued to expand, ultimately allowing up to 75 users and even a second server with their Premium Editions of SBS. As a result, countless small companies now rely on SBS for hosting and sharing their Outlook data, storing and backing up their data, and running their line-of-business applications. The value of an in-house Microsoft Exchange Server cannot be understated –

The Dollars and Cents of a 10-User System Example 1

Initial Cost 5-year Cost

Options 1 & 2 $1,665 $1,665

Option 3 $3,915 $3,915

Option 4 $896 $3,296

[This model assumes: No Microsoft SOL Server; Server 2012 Standard for Option 2; Office 365 Hosted E-Mail and Server 2012 Essentials for Option 4]

Example 2

Initial Cost 5-year Cost

Options 1 & 2 $2,639 $2,639

Option 3 $5,690 $5,690

Option 4 $896 $6,896

[This model assumes: No Microsoft SOL Server; Server 2012 Standard for Option 2; Office 365 Hosted E-Mail and Server 2012 Essentials for Option 4]

Example 3

Initial Cost 5-year Cost

Options 1 & 2 $4,211 $4,211

Option 3 $12,471 $12,471

Option 4 $8,224 $14,224

[This model assumes: Server 2012 Standard for Option 2; Office 365 Hosted E-Mail and Server 2012 Essentials for Option 4]

Example 4

Initial Server Cost Server Deployment Email Migration Total Initial Cost

SBS 2011 Replacement $5,000 $1,800 $0 $6,800

2012 Essentials + Office 365 $4,000 $1,200 $500 $5,700

[This model assumes: Dell PowerEdge T420 with 3x2TB HDs and 16GB RAM vs. PowerEdge T320 with 3x2TB HDs and 8GB RAM, and labor @ $100/hr]

Example 5

On Site Maintenance Remote Administration Hosting Subscription Internet Access Server SSL Certificates Backup Email Anti-Spam / Email Filtering Total 5-year Cost

SBS 2011 Replacement $3,000 $3,000 $0 $8,100 $360 $132 $562 $15,154

2012 Essentials + Office 365 $2,000 $1,000 $1,200 $12,600 $0 $0 $0 $16,800

[This model assumes: a single cable modem connection for SBS and a cable + DSL connection for Office365]

it has been labeled THE killer application for most professional organizations. Aside from simply receiving and sending e-mail, Microsoft Exchange stores everything your users access in Microsoft Outlook and their mobile devices. Thus, when a user sends an e-mail from his iPad, that e-mail shows up in Sent Items in Outlook. When a user updates the phone number for a contact on his or her laptop, that contact is immediately updated on his or her smartphone. Furthermore, by centrally storing all that

data, when a user gets a new computer, everything he or she had in Outlook on the previous workstation is accessible without any import/export migration required. Switching from your BlackBerry to an iPhone? No problem – just punch in your user name and password on your new phone and your email, contacts and calendar magically appear in a matter of minutes. Stolen laptop or workstation hard drive crash? All the e-mail for the past umpteen years remains safely intact on the server.

Accidental deletion? Compliance? Disaster recovery? Central storage also allows for central backup, so everyone’s mailbox can be safely stored to tape, external hard drive or cloud storage. SBS isn’t just a great deal for the enduser; it’s proved highly successful for small business-focused IT firms. With the rampant growth of the small business server market, computer consulting companies now had a product that was easy to sell, install and maintain. Technicians no longer needed extensive expertise in Microsoft Server products because Small Business Server effectively automated common tasks such as creating users, adding mailboxes, and performing backups. Additionally, small companies could enjoy enterpriselevel features such as Web access to their email, secure remote access to their network, and comprehensive document and data storage without weeks of training. But those days will soon be over. Microsoft wants you to put everything you do in Outlook on its servers, not yours. By removing Microsoft Exchange and SQL Server from Small Business Server (in what is now called Windows Server 2012 Essentials), they have effectively eliminated the primary attraction of the product. And while customers still have the option of buying the full-fledged versions of Windows Server, Exchange, and SQL Server originally included with Small Business Server, they will face two to three times the costs in software licensing and need IT support that knows how to manually do all the things Small Business Server did automatically. Ultimately, succumbing to Microsoft’s new will and direction may seem like the path of least resistance, but per-user monthly costs can quickly add up and you may still need an SQL Server solution.

A hard look at your options

• Replace your server before the end of the year with the current (and final) version of Small Business Server (SBS 2011) preinstalled on a new machine; • Purchase Windows Small Business Server 2011 software and licenses before June 30, 2013, and hold onto it until you’re ready for a new server; MAY 2013

The Advocate Magazine — 31

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• Abandon Windows Small Business Server down the road and buy the Microsoft products and licenses you need separately for a new server; or • Move your e-mail to the cloud and replace your server when it’s time with a new server that just handles file and database sharing.

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Law Firm Tech — continued from Page 31

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Maybe you’re not ready to replace your trusty server just yet, but here are a few reasons you should seriously consider it: • OEMs (such as Dell) provide Small Business Server 2011 preinstalled on new servers, which greatly reduces the labor cost of getting the server ready for deployment; • By purchasing the software with the hardware, you get OEM support for both while the server is in warranty; and • Significant savings compared with the other alternatives, especially over the life of the server. And here are the downsides: • High initial cost for server hardware and licenses; • Forfeiting any remaining usable life of your current server; and • Not getting the latest, greatest version of Windows Server and Exchange.

Option 2: Buy software to install later

If you’re not ready to purchase and deploy a new server this year, you can always purchase the software and licenses now to install on a future server later. When it’s time, you can buy a new server with no operating system pre-installed. This move has the advantages of: • Relatively small initial cost; and • Maximizing the life of your current server. Unfortunately, there are a few key caveats: • Higher deployment cost as server software will need to be installed on a “bare” machine; • Potential lack of support from server manufacturer as software was purchased separately; and

See Law Firm Tech, Page 34


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Law Firm Tech — continued from Page 32

• Not getting the latest, greatest version of Windows Server and Exchange.

Option 3: Forget SBS – get the real thing

From its inception, Small Business Server has had some key limitations to prevent large organizations from taking advantage of the small-business-friendly pricing, such as capping the maximum number of users, prohibiting child and trust domains, etc. By purchasing the “full blown” versions of the products included with SBS, many of these limitations disappear. Additionally, you can get the benefits of the latest versions of Microsoft Windows Server Standard (currently version 2012) and Microsoft Exchange Server (currently version 2013). To summarize:

34 — The Advocate Magazine

MAY 2013

• Latest versions of Microsoft software; • OEM support for pre-installed operating system; and • Elimination of SBS limitations (e.g. multiple domain controllers, Exchange archiving, etc.). However, here’s what you’re giving up: • Substantially higher licensing costs (two to three times higher); • Higher deployment costs, as server software components must be installed “from scratch”; • Less user-friendly management means increased maintenance cost; and • Some SBS features (such as the Remote Web Workplace and POP3 e-mail retrieval) are not included with standard Microsoft server products.

Option 4: Put the e-mail in the cloud Microsoft Exchange (which receives and sends e-mail, centrally stores users’ Outlook data, provides remote access to Outlook data, and allows synchronization of Outlook data with mobile devices) is perhaps the most desirable component of Windows Small Business Server. Since purchasing it separately, backing it up, and maintaining can be expensive, why not get someone else to host it for you? While you’ll still need an in-house server to store files, run your line-of-business applications, etc., that server will cost a lot less than an SBS box. This may suit your business because there is:

See Law Firm Tech, Page 36

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Law Firm Tech — continued from Page 34

• Minimal initial cost in licensing and deployment; • No need to buy and maintain software to back up your Exchange data; • Improved remote access; • Easier management with less server maintenance; and • Technical support for Exchange is typically included with your subscription. There are some major hitches though: • Higher long-term costs, as you’ll be paying for the service indefinitely; • Less flexibility, as you’ll need to abide by your host’s rules (e.g. mailbox size); • Higher dependency on your Internet connection, requiring more bandwidth and/or a secondary connection; and • Initial Outlook synchronizations (such as when you get a new desktop) will take substantially longer.

36 — The Advocate Magazine

MAY 2013

Analysis Okay, now down to the real business decider: dollars and cents. Let’s take a small, 10-user SBS 2003 law office as an example and look strictly at software costs (namely operating system, licenses, subscriptions, and backup software). See Example 1 on page 31. Two things are clear: 1) While the hosted solution is initially attractive, the savings don’t pay out over the life of the server, and 2) the SBS licensing cost is a steal compared to purchasing the full versions of the latest Microsoft products. Now, let’s take the above example from 10 users to 25. (See Example 2 on page 31). That’s right: not only does hosted solution get really expensive; the gap between Small Business Server and its full-size counterparts continues to grow,

even though the core component and backup software costs remain constant. Finally, let’s add Microsoft SQL Server to the mix. In the case of Small Business Server, this would require the SBS Premium add-on for options 1 and 2 (and slightly higher per-user licensing costs), while options 3 and 4 require Microsoft SQL Server 2012 purchased and licensed separately. (See Example 3 on page 31). So essentially, this firm would blow $8,000 in software licensing costs alone for the luxury of keeping their eight-yearold Windows 2003 Small Business Server for another two years. Furthermore, the lower startup cost for the hosted solution has vanished due to the initial purchase and licensing costs of SQL Server.

See Law Firm Tech, Page 38


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Okay, so what about the other factors like IT costs, maintenance, server hardware, etc.? In the case of Option 3, these are higher across the board, so let’s forgo that one. Instead, let’s look at a small 5 workstation, 5-user law firm that’s considering replacing their SBS 2003 server. To keep it really simple, let’s assume they only need Microsoft Exchange functionality, centralized back up, and simple file and printer sharing. (See Example 4 on page 31). Now, let’s assume typical server maintenance and services over a five-year period. (See Example 5 on page 31). Because the hosted option requires every interoffice e-mail to be sent to the cloud and then pulled back down (such as scanning a document on your copier

38 — The Advocate Magazine

MAY 2013

and e-mailing to yourself or forwarding that 50-page PDF to your partner), Internet bandwidth becomes a major factor. Thus, this additional bandwidth costs 50 percent more per month and is the driving element in the above cost analysis, effectively killing the initial savings within five years.

SBS 2003 vs. SBS 2011

So other than being newer, what does SBS 2011 have over your existing SBS 2003 server you’ve been happily humming along with? Two big things: support and compatibility. Microsoft doesn’t release security updates and patches for its products indefinitely. In fact, mainstream support (i.e. addition of new features to work with new technolo-

gies) ended on July 13, 2010. Extended support (i.e. patches to security flaws) will end in March, 2015. That means that if a security issue is discovered after extended support ends, Microsoft will probably not fix it. Windows Server 2008 R2, upon which SBS 2011 is based, has mainstream support through March, 2015 and extended support through January, 2020. Being able to connect all your workstations and mobile devices to your SBS 2003 server is likely one of the main reasons you’ve kept it around for so long. However, this connectivity will become more and more limited as your computer environment changes. For example, if you buy a brand new Mac with Microsoft Office 2011 Home and Business (which includes Outlook), you will be unable to synchronize

your contacts and calendar, because Outlook 2011 doesn’t support Exchange Server 2003. These incompatibilities will only multiply as time marches on. Here’s a quick summary of the key advantages of SBS 2011 over SBS 2003: • No 75GB Exchange database limit; • Compatibility with Macintosh software (e.g. Mail, iCal, Outlook 2011, etc.); • Better smartphone support and management, including the ability to remote wipe lost devices; • Vastly improved Outlook Web Access; • Improved spam filtration and e-mail transport customization; • Remote Web Workplace with SharePoint, which lets you create a fullycustomized internal intranet site, such as an office calendar, photo album, bulletin board, etc.; • Faster search from Windows Vista 7 and 8 computers; • Stronger security for local and mobile users; • Improved server management tools, making it easier for non-IT personnel to create new users, reset passwords, etc.; and • Backup to external hard drive now includes full server imaging, allowing restoration of the entire server after a hard drive crash or other catastrophe relatively painless. Regrettably, there are two capabilities you’ll lose moving from SBS 2003 to 2011, namely: • Integrated tape support for backup is no longer included, so if you want to back up to tape you’ll need a third-party software, such as Symantec’s Backup Exec; and • Fax services are no longer compatible with Windows XP – if you use your SBS 2003 server as a fax machine, computers with Windows XP will be unable to send faxes through the server or view the fax server’s inbox. Compatibility with software and hardware the same era as your SBS 2003 server is also a major downside. Since SBS 2011 is only available in a 64-bit version, older hardware (such as label printers, copiers, etc.) may not have available drivers, prompting additional hardware replacements and/or upgrades. As with any

Cloud computing could be one option to replacing your old server. operating system upgrade, older software may no longer be compatible, especially older server applications (such as QuickBooks 2007 Database Server). It goes without saying you should check with your software vendors and IT support to ensure your line of business applications are compatible, and what’s involved with upgrading or replacing them if they’re not.

Other considerations

SBS is by no means a server panacea: by limiting the installation to a single server (or two in the case of SBS Premium) larger organizations cannot implement Microsoft Exchange clustering to spread the workload over multiple machines. While SBS 2011 no longer has a constraining cap on the amount of data the Exchange Server can hold (SBS 2003 is limited to a maximum of 75GB), a company with 50 workstations can experience significant delays if too many people are hitting the server at once. Also, companies with sizable branch offices cannot implement satellite servers, forcing branch users to authenticate with the main server directly, resulting in performance hits and connectivity issues if their link to the main office breaks down. And a solitary server means a single point of failure – since the SBS server cannot be clustered for fault tolerance; if the server goes down, it effectively takes the whole network with it. However, keep in mind that SBS is intended for what Microsoft considers a Small Business: 25 users or less. Though

SBS 2011 can support up to 75 users, the server hardware required to support upwards of 50 users on a single machine can easily prompt IT managers to opt for multiple, less expensive servers to distribute the burden to provide better performance and redundancy. Additionally, with virtualization technologies becoming commonplace, companies with high growth expectations should certainly consider keeping the hardware out of the equation and focus on scalability. But for most small businesses with an existing SBS 2003 server, the factors above simply do not apply: while the workforce may certainly expand over the next five to seven years, a company with 20 users is unlikely to balloon to 60 overnight. And if it did, the additional infrastructure required would likely quickly overshadow any previous technological investment. Furthermore, any small business with substantial server overhead probably outgrew their SBS 2003 box ages ago. Finally, if the hardware running your SBS 2003 server is as old as the operating system itself and you’re still getting along, it’s safe to assume a new SBS server will easily sustain your server needs for quite a while.


SBS is a licensing bargain. If you have an aging 2003 Small Business Server and are reliant on Microsoft Exchange, replace it this year or at least buy your licenses now so you’re ready when your existing server’s time has come. Putting your e-mail in the cloud is very en vogue and for $4 per user, per month, can be very tempting. But even if a new SBS 2011 server lasts 75 percent as long as your existing SBS 2003 box, you’ll still be ahead of the game. Chris Filippi is a Microsoft Certified Small Business Specialist with over 15 years of professional computer network consulting experience. He is the president of Cursed Network Corporation, founded in 2004, which provides computer consulting and support for small businesses in the Los Angeles area. Cursed Network Corporation’s clients are primarily professional organizations in the legal and accounting fields. MAY 2013

The Advocate Magazine — 39

Rick Kraemer

An ounce of prevention: Technology and your trial presentation Presentation technology can make your case come alive – until something goes wrong I recently received an invitation to attend a private tour at the Jet Propulsion Laboratory in Pasadena. Among the guests was “Aussie” Dave Grubnic, a professional NHRA Full Throttle Drag Racer who was in Los Angeles to compete in the Winter National Races. If you’re not familiar with Full Throttle Drag Racing, the gist is that Grubnic routinely races cars reaching speeds of over 325 miles an hour in less than four seconds. “How does it feel to be behind the wheel of a car going that fast?” I asked. Grubnic responded with a big smile and said, “When everything is going like it’s supposed to, it’s great. But knowing what to do when things go wrong – well, that’s

what will save you from a horrific crash that could cost you your life.” Granted, I’m no drag racer, but I found myself drawing a parallel to my own professional experience using technology to support attorneys with their trial presentations. When you’re using technology and everything is working like it’s supposed to, things are great. Likewise, when something goes wrong, knowing how to react to an unexpected glitch, while certainly not life threatening, is critical. After working with thousands of attorneys for more than 26 years, my team and I have encountered our share of the inevitable pitfalls associated with the use of technology, and we’ve amassed a breadth of knowledge, along

with common sense strategies, on how to resolve and prevent them. Like most attorneys, when you’re in trial you probably prefer things to unfold according to plan. And when the plan works, technology can help your case immeasurably. However, at one time or another you’ve probably had something go wrong in trial, leaving you scrambling to make sure that the hiccup didn’t disrupt the whole flow of your presentation. And it’s not only the presentation equipment itself that you have to worry about; technology (from software versions to hardware capacity, and everything in between) also affects the quality of the materials (exhibits, video, and graphics) that you are presenting to support your case. When it comes to using technology in trial, it’s wise to plan ahead in order to prevent glitches, as much as possible, from happening to begin with. It’s also important to be able to calmly troubleshoot problems that do arise; losing your composure can leave the judge annoyed or the jury confused. Inevitably, mistakes do happen, technology does fail, and as a result, we’ve all had some experience in having to react when things go wrong. But that doesn’t mean that we shouldn’t try our hardest to prevent problems before they arise. Here’s a look at some tips on how to prepare the best trial, video and graphics presentations for your case, and prevent technology problems before they happen.

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Computer systems, components and software • A poorly chosen system can be monstrously incapable of performing the tasks

for which it is intended. Computer processor technology has developed rapidly and anything older than three years may not process large graphic, video or trial database files adequately.

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• While you do not need to buy the latest software as soon as it hits the market, your software should be no more than two versions behind. • Make sure you have adequate file storage space on your server, along with routine backup systems and controls in place to protect the integrity and confidential nature of the material. • And one last note on systems – be sure to install those pesky software and application updates before trial.

Your presentation software should be the current version.

Trial Document intensive trials – for example, business cases – rely heavily on digital trial presentations. When dealing with thousands and thousands of documents, you can’t afford to be fumbling around trying to find a single paragraph amidst a sea of millions to prove your point. In order to reduce the likelihood of appearing disorganized when it matters most, prepare ahead of time by taking these preventive measures. • Trial software packages such as Sanction II and Trial Director Sanction II and Trial Director are easy to use, point and click systems. These interactive, real-time presentation programs will allow you to organize your documents, exhibits, video clips and/or animations and present them on command. These software programs are a musthave when it comes to managing large databases of exhibits for rapid recall. The

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Ounce — continued from Page 42

software allows you to call out and highlight text on-the-fly, focusing the judge and jury on important aspects of case documents or

testimony. They also enable you to show two documents on the screen side-by-side, for comparing and contrasting purposes.

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• Practice, practice, practice The best software in the world will not add anything to your case if you don’t know how to use it properly. The longer you make a jury wait while you sort out a program, the less credible you appear. If your budget does not allow for you to hire a professional trial technician to operate the technology for you in court, make an appointment with one well before trial starts for training on how to use the software properly, and then make the time to practice. Run through using the technology while you are speaking; and remember to maintain eye contact and a connection with the jurors. If you’re presenting more than a basic database of black and white documents, we highly recommend that you hire a professional trial technician to build your database and assist you in court. And remember to spend time rehearsing how you will communicate with them during trial when you need them to call up an exhibit or transition to the next slide. • Have a backup for everything It is always better to be safe than sorry, and one of the easiest ways you can prevent technology trouble in trial is to keep extra copies of your files and backup equipment, such as cables, projector bulbs and other peripherals. Have a backup computer whenever possible. Finally, keep a hard copy of your visuals that can travel with you. If your computer fails during your PowerPoint presentation, you can place the hard copies on the Elmo. • Scout out the scene Determine the size and layout of the courtroom and what, if any, presentation equipment is already available in the courtroom. You’ll want to consider the age and quality of the courtroom’s equipment and make sure it is adequate for your needs. Courtrooms rarely have the most current technology, and you may want to put in a request to install some or all of your own equipment. And remember to confirm what presentation equipment the judge will permit in the courtroom.

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You may have to call the court clerk to check on when you will be allowed to set up your equipment, often it isn’t allowed until after jury selection. Typically, there is a very limited window of time allotted for set-up. • Keep an eye on the time Judges and juries don’t like to wait, so it’s important when maneuvering through your trial presentation database that you can easily and quickly segue from a document to a video to a photo without long pauses in between. Seconds will feel like a lifetime, so make sure video clips don’t include gaps of dead air. When using video clips to impeach witness testimony, the length of the clips matter – keep them short enough to hold everyone’s attention, but long enough so that they retain context and credibility.


Videos can be powerful persuaders when used for settlement or trial, such as in wrongful death and personal injury matters. Whether a video is presented to corporate mediators, opposing counsel, an insurance adjuster or jury; a well-made video places the decision-makers directly inside of your client’s condition. When it comes down to the final decision, it is the facts of the case that will determine its outcome. But the added depth and dimension provided by an insightful video presentation can facilitate a clearer and quicker understanding of the issues and experiences and often result in more favorable outcomes. However, there are some risks involved if you decide to make a video yourself instead of hiring a professional video producer. Here are some important tips to consider when making a settlement or day-in-the-life video for your case. • Schedule ahead of time Because there are so many what-ifs to consider when shooting a video, it needs to be scheduled as far in advance as possible. Scheduling video shoots in a home or facility, conducting multiple interviews in multiple locations, and documenting your client’s activities throughout the day takes a great deal of coordination and organization. In addition, everything from traffic, to poor weather, to subjects falling ill can cause delays. Once you’ve developed your

shooting schedule, stick to it, as one change can create delays that have an expensive domino effect. • Prepare a shot list As you gather specifics about your subject’s condition, the environment you will be shooting in, and the daily routine and activities you will need to document, develop a written shot list. A shot list is a checklist for the videographer to make sure they capture all the necessary footage to tell your client’s story, capture your client’s diminished ability, or depict specific activities. Your shot list will keep you organized and ensure that you haven’t neglected critical details. • Have the right equipment Quality equipment is necessary to create a quality video. Sure, your smartphone has video capabilities, and that may come in handy in tight spaces, but your camera gear should include the latest technology for the best results. You will need the right equipment to accommodate any specific constraints such as awkward angles, cramped spaces, poor lighting, or noisy environments. Should you hire a professional to help you with your video, confirm that they have documentary style experience; your deposition videographer doesn’t necessarily have the right skills and knowledge to produce your day-in-the-life video. • How to incorporate a script, voice-over talent and music To ensure that your settlement documentary video is compelling, a sensitively written script should be read with good emphasis and impact. Vocal emotions should be done with subtlety and transparency in order to achieve a heartfelt quality, without being overly dramatic. If you decide to use music in the video, make certain that it adds dimension and an emotional quality that supports the visual aspect of the piece. You do not want to overproduce your video and risk it coming across as disingenuous. • Memorabilia Incorporating memorabilia into your video documentary helps portray the rich and healthy life that was lost by the lifealtering catastrophic event that destroyed it. Take great care with photographs, home movies, and family memorabilia. Be sure to keep records of everything you receive,

Steven G. Mehta is one of California’s premier, awardwinning attorney mediators, specializing in intensely-difficult and emotionally-charged cases. Steve’s book, 112 Ways to Succeed in Any Negotiation or Mediation, will turbo-charge your negotiation skills regardless of your experience. To schedule your mediation or order a copy of Steve’s new book, call

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and when it’s time to return it, hand deliver it or use a door-to-door courier or messenger service. You do not want your client’s memorabilia to be damaged or lost in transit.

• Create a video, not a feature film A video documentary should be no more than 15 to 20 minutes. You could lose your audience if it’s too long. Selecting the footage which is the most impactful and

weaving it all together with your voice-over talent, music and memorabilia is an art. • Tell the story A story is not just about what happened; it’s how you feel about what happened, and what should happen to right the scales of justice. Following basic narrative structure is critical to telling the kind of story jurors will remember. The basic structure of the video should have a beginning, middle and an end. You need to set the scene, introduce the characters, introduce the conflict (what happened to your client), and end with the resolution.


Graphics are meant to supplement your arguments, not replace them. Or to put it another way, your exhibits should support your positions, not serve as advocates in and of themselves. Graphics are used to dissect complex material into palatable bits of visual information for the jurors. When graphics of any kind are prepared properly using the right emphasis, flow, and color psychology, they will achieve these objectives. Here are ways to create graphics that simplify, rather than convolute your arguments. • Use visual aids We have become a visual society. Jurors, like the rest of us, process the information they receive primarily through sight. People retain only 30 percent of what they hear, and only five percent of what they touch, but they retain 65 percent of what they see. To be effective, a graphics presentation should provide a clear message of who and what was involved, where and when the events happened, and how the injury or series of events could have been prevented. All of this leads us to the why. Why should substantial damages be awarded? • Create a theme A recurring theme which is repeated throughout your presentation should extend to all of your visuals. This keeps the theme at the forefront of the jurors’ minds, and ensures that it doesn’t get lost amidst other evidence presented later. • Be clear and consistent Maintaining a uniform visual standard creates consistency. Use the same fonts, colors, and corporate logos across

48 — The Advocate Magazine

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multiple exhibits to foster unity and familiarity with your audience. To achieve maximum clarity and juror readability, it’s best to use a white background for an exhibit board, and a black background for a screen presentation. Finally, be mindful to keep the size of text at least 14 point to ensure readability. • Less is more Visual aids should make your case easier to understand, not harder. Stick with the basics such as flow charts, diagrams and graphs to supplement what you are explaining. To boost juror retention, limit your content to statements and phrases rather than lengthy sentences and paragraphs. Use multiple slides and bullet points judiciously to identify and break down case material into manageable sections. • Mix it up In addition to using traditional

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boards and graphics, add dimension to your presentation through the use of other multimedia graphics such as animation or interactive charts. With new iPad technology you can present in Slideshark or Keynote wirelessly, and experts can mark up medical illustrations, medical films, and other exhibits directly from the witness stand. Mixing it up keeps jurors alert and engaged. • Inoculate against bad facts Your graphics should emphasize the facts that support your case. However, if there are bad facts against your client, include them in your graphics, don’t hide from them. For example, add a pre-injury diagnosis to your timeline. This enhances your credibility, and allows you to address the issue before it arises from opposing counsel. The quality of your trial presentation should match the quality of the argument

you’re making. If you excel at telling your audience what happened, but your efforts at showing what happened don’t demonstrate that same level of professionalism, your case will appear uneven. The success or failure of any trial presentation depends on the skill with which it is crafted and presented. Even if you follow all of the preceding tips, there is still the chance that things can go wrong. When they do, you’ll have to determine on your own how to best correct them. That’s why it’s often to your clients’ benefit for you to hire professionals whose sole responsibility it is to make sure that your visual aids are on par with your oral skills. I’ve been known to climb into race cars, but I admit, like using technology, knowing your limits is essential. If there is any doubt about whether you should be

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Graphics should simplify. Video should enhance story. creating your own exhibit database, video documentary, or graphic presentation, and then setting up your own equipment and presenting it in court; turn to those who are experts in this field. After all, that’s why your client hired you, because when they have a lot at stake, they know that they aren’t qualified to be acting as their own counsel. Trust the experts in the field who have the experience. Preventing the prob-

lem in the first place is as valuable as knowing what to do once something goes wrong. Rick Kraemer is the founder and president of Executive Presentations, an LA-based fullservice trial presentation company that produces everything from professionally designed fullcolor graphic boards and presentations, to digital trial presentations, to high quality persuasive video documentaries. The company employs

a full-time staff of graphic designers, trial technicians, videographers and editors, along with IT and administrative support. From consultation, to concept, to completion, Executive Presentations produces everything in-house and on-site ensuring quality and cost control as well as confidentiality and has worked with both plaintiff and defense lawyers in over 10,000 business, entertainment, labor and medical related cases.

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MAY 2013

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How to start and manage a PI law practice Simple and easy steps to manage, operate and market, emphasizing marketing on the Web Scott J. Corwin

The first job I had working as a law clerk was in the late ‘80s for a personal injury attorney in Encino. My former boss was a skilled trial attorney, and I learned a great deal from him. After passing the bar, I decided to start my own practice. I still recall the words of wisdom that my boss passed on to me, “It takes three things to be a successful lawyer on your own. First, you have to be a skilled attorney, second you have to know how to run a business, and third, you have to be able to get clients.” I took his words to heart, and have committed myself to not only being a good lawyer but learning to manage my business and market myself. It is still a learning process for me even after 21 years in practice. It is quite true that you can be a skilled attorney, but if you can’t find clients, you will not have a successful practice. You can be an excellent lawyer, but if you don’t know how to manage your practice, you may very well run it into the ground. Over 21 years ago, I made a decision that I wanted to work for myself. I had no clients, no money and a mountain of debt from law school. I decided to hang my own shingle seven days after I was admitted. I would never have predicted that my practice would have grown into what it is today. Nor would I have predicted that I would have as fulfilling a professional life as I do today. The path to getting from there to here has been both challenging and rewarding. As I discussed in my previous article, planning ahead and thinking about the future is critical to success.

Potential clients and initial contact

Now that you have figured out how to open your firm, manage your budget, and deal with the financial aspects of running your small law firm or solo practice, let’s talk about running your firm. 56 — The Advocate Magazine

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Want to know more about starting and running a small practice? In May 2011 Advocate, the author presented an article entitiled: Budgeting, Financial and Banking Issues in the Solo or Small Practice. You can find it in the Advocate archives at

A potential client lead arrives in your office. The matter has landed on your desk whether by e-mail, phone call, Web inquiry if you have a Web site (more about that later), or referral from another lawyer, relative or friend. I have created a form to gather the pertinent information allowing me to decide whether the client should be retained by my firm. Usually my assistant will answer the phone and conduct the initial interview. The number one item to get is contact information for the client: name, address, phone and email. This may seem obvious, but many lawyers complain about staff not acquiring contact information and then the potential client is disconnected and they lose the lead. Having a form that reminds you to get this information will help prevent this type of problem. My “New Client Intake Form” also has fields for property damage, liability, injuries, firstand third-party insurance coverage, and defendant information. For a motor vehicle type practice, these are the facts you want to ascertain first. Once you have all of the information at your fingertips, you can determine whether you want to have this potential lead as a client in your office. If your decision is “yes,” set a meeting in your office and have the client retain your firm. If your decision is “no,” then send a non-engagement letter to confirm that you are not representing the prospective client. Meet with your client at your office if possible. First impressions matter, so

keep your offices looking clean and professional. I like to meet in the conference room sitting next to my client rather than in my personal office across my desk. I feel that is more of an impression, and I’m not distancing myself from my client. At the initial meeting I have my client execute the retainer agreement, authorizations and insurance designation forms required by the Insurance Code. I review and discuss the forms in detail, carefully explain my fee and cost provisions, and answer any questions from the client.

Opening the client file

Once a client has retained your firm, the first thing you need to do is open a client file. In our office we have a simple method for doing this. I have created a “new file instruction form” that lists all of the tasks and calendaring that is required for each client matter. I then review the form and check-off the items that need to be done by my assistant. My assistant, who has worked for me for 17 years, knows exactly what to do. Nothing gets omitted and if she is out on vacation, then whoever I have working in the office will be able to perform the tasks needed. My firm is primarily a motor vehicle personal injury practice. We have many repetitive tasks and letters that need to be sent out on the opening of each new client matter. Therefore, I have created a number of form letters. This simplifies tasks, saves time and makes my assistant very happy. Having a form set of instructions on how to deal with every client matter helps prevent malpractice, helps your staff work with the file, and makes certain no task is forgotten. We have letters for every step that needs to be taken on the opening of a file including a thank-you

letter with instructions for the client, thank you letter for a referral source, letters to both the first- and third-party insurer, letters to request medical records and billing from all providers, letters to witnesses, letters to place defendants on notice of the claim, spoliation of evidence letters, letters to potential lien holders including Medicare and Medi-Cal, requests for traffic-collision reports, requests for employer and wage-loss information, and notices to the DMV that are required such as SR-1 and SR-19 forms. Why reinvent the wheel with every new client matter? Form letters are a must for the sole practitioner or small firm. Assign your new matter a file number! I use a simple system. Two digits separated by a dash and three more digits. The first two digits represent the year I opened the file and the three digits after the dash represent the number of the file opened that year. For example, 13-027 means my file was opened in 2013 and was the twenty-seventh file opened for the year. Having file numbers helps with filing documents and keeps you organized. I highly recommend using some kind of case management software to help keep track of your client matters. There are programs that are quite expansive, such as Abacus. I prefer to use Outlook. In Outlook I can calendar statute of limitations, important court dates, depositions, other appearances, as well as manage the tasks for each of my client matters. We also maintain our clients’ contact information in Outlook. We use QuickBooks to handle our accounting and financial management. As detailed in my previous article, we open a Client Trust Account Ledger and Cost Account Ledger as soon as we open the client file. It is one of the items listed on my “New File Instruction Form.”

Communicate with your client regularly

Clients like to hear from their lawyers. I make certain to personally follow up with each and every client in my office. My practice generally has about 40 to 50 open client matters at any one

time. This may sound overwhelming, but a simple calendaring system and e-mail makes this very effective. I write a short e-mail to the client, informing them about any recent developments on the case, or inquiring about their medical condition and treatment or any other information they would like to share with me. Checking in with your clients regularly serves two basic functions. First, you keep communication open with your client. I have often discovered new information or injuries that have developed by chatting with my clients. The numberone reason I find that other attorneys are discharged by their clients is a failure to communicate regularly. The lawyer may have been doing a terrific job for the client, but the client doesn’t know what is happening if you don’t tell them. Second, following up regularly with the client, at least monthly, forces you to take a look at the client matter and make certain nothing is forgotten. Your client is receiving medical care; all of the appropriate parties and insurers are on notice of your claim. What do you do next? Some lawyers wait until they hear from the client or the client’s medical provider that treatment is completed. Some law firms use a tickler system with reminder dates in advance of the statute of limitations. I don’t want to let client matters sit dormant in my office without activity for too long. Instead, we have a follow-up system and review each case on a monthly basis. Again, this forces us to look at each and every case periodically so no matter falls between the cracks. We also scan all of our documents into the computer and place them into the client’s computer file. This allows me to manage my practice effectively from anywhere. I can be half way across the world on vacation with my family, or out to lunch in the neighborhood, and I have access to my client’s entire file with the push of a button. Scanning documents into your computer makes document retrieval quick and easy as well. In today’s modern technologically driven world, scanning is a must.

If you use these simple guidelines you will run a smooth and efficient practice, and be much happier with your professional life.

The Internet

Marketing is a must for the sole practitioner. When I first started my practice, I was lucky to have two attorneys refer business to me. That quickly faded and I had to strike out on my own and find clients. I used traditional methods. I set up meetings with other attorneys, developed relationships with doctors and cultivated sources of potential referrals. It took a lot of time and effort but it paid off and my practice grew. You can be a highly skilled attorney and excellent at managing a business, but if you can’t get clients, you will not have a successful practice. I could write an entire volume on marketing, so I am going to focus on just one topic: Internet marketing. Until just over two years ago, I did absolutely nothing on the Internet other than to have a basic Web site that essentially was my professional resume and marketing brochure. My business had slowed down and referrals had been dwindling for some time. I was in a mediation complaining about how I was going out of business soon, and the mediator suggested I try Internet marketing. I was dubious but figured I would give it a try. Over the past few years, my Internet marketing efforts have been helpful in complementing my traditional sources of referrals.

Web site design & Search Engine Optimization (SEO)

Do you have a Web site? If not, create one promptly. You are at a disadvantage in today’s e-world if you don’t have one. If you do have one, look over your Web site and review it carefully. Does it effectively communicate what you do; what services you provide? Does it differentiate you from the rest of the firms on the Internet? You can do this yourself, or you can engage the services of a Web site design company. There are scores if not hundreds of companies that provide Web MAY 2013

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design services for attorneys. Some of the major ones include Scorpion, FindLaw, and LexisNexis. I have found that Web design companies have a variety of packages to offer from entry-level template Web sites that may cost just a few hundred dollars, to high-end packages that can be quite expensive. Whether you design it yourself or engage a design company, your Web site is your professional resume and calling card out on the Internet for the world to see. Make sure it reflects who you are and what you do. Next, do you want to optimize your Web site for keyword search terms? This is called SEO or search engine optimization. Essentially, your Web site is designed to attract Internet traffic of people searching the Web for particular key words. My Web site is optimized for keywords related to various types of motor vehicle accidents, because this is what I want to be found for by potential clients. SEO takes time and can be expensive. However, even small firms and solo practitioners can afford basic SEO packages. There are many companies that offer SEO services. Interview them carefully. Get references from several other attorneys to be sure that you are not being taken advantage of or being promised something that can’t be delivered. There are dishonest providers out on the Internet, but there are also many legitimate companies that provide these services.

Social media campaigns

Social media is a must for an effective Internet marketing campaign. Create a Facebook business page. Having accounts with Twitter, LinkedIn, and Google+ are also important. You can use your social media to promote your business and push content out to potential clients who are on the Internet by writing blogs, articles or Tweets. A good social media campaign is an essential component of any Internet marketing campaign. You can also do most, if not all, of your social media on your own at virtually no cost, though many companies also offer social media management as part of their SEO packages. There are millions 58 — The Advocate Magazine

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of potential clients on the Web searching for products and services every day. Social media is breaking into the domination of the major search engines for competition for customers. Another effective method of marketing through social media is by blogging, writing articles of interest in your practice area and pushing those blogs out onto the Web. Using social media to distribute your blogs and articles is a very effective method of increasing your visibility and presence on the Web and getting your name in front of potential clients. Without an effective social media campaign you are shortchanging yourself and removing a large audience of potential customers who may want to hire you to represent them.

Internet legal directories, PPC and PPL

Get your firm listed in the major legal directories, such as FindLaw and as well as smaller but upand-coming directories like Avvo. Most of these directories have low-cost basic listings to market your law firm’s services. You can also spend more money and purchase premium listings that help with your visibility when potential clients are searching these directories. These legal directories work like a mini-Google search. Potential clients are searching the Web looking for attorneys that can help them with their legal matter. Sometimes the potential client may do a search on Google, Yahoo or Bing; the major search engines. Search engine results may provide listings of law firms that meet the criteria and key words being searched by the potential client. The major legal directories themselves are frequently displayed in the search engine results, often at the top of the page. So the potential client now clicks on the legal directory, for example, FindLaw, and then performs another search for an attorney in the specialty they are seeking within the legal directory. The legal directory then displays attorneys who are subscribers of its service for the customer to review. Purchasing a “premium listing” with the

legal directories gives your firm a top spot so that your visibility is at the top of the search results in the directory, putting your name in front of the potential client. Many potential clients also navigate straight to the major legal directories to perform searches for legal service providers. FindLaw and boast nearly ten million searches per month between them. You can see this is an area of Internet marketing you want to include in your overall strategy. Finally, let me say a word about PPC and PPL (pay per click and pay per lead). I have maintained both PPC and PPL campaigns over the past two years. My personal experience has been less than satisfactory. Other lawyers I have talked to are happy with their PPC and PPL campaigns. PPC in particular can be very expensive for a sole practitioner or small firm, so I would caution you to thoroughly investigate before you engage the services of a PPC or PPL campaign provider. An effective and well managed Internet marketing campaign can serve as a good supplement to any practice. But don’t just hand it off to your staff or the providers you have retained. I have found that to manage my marketing campaign I need to spend time reviewing the campaign, talking with my providers and analyzing the data. If you make the time to manage and market your practice, you will be very pleased with the results. Scott J. Corwin, a sole practitioner in West Los Angeles, practices exclusively plaintiff ’s personal injury law, with an emphasis on motor vehicle cases. He serves as a member of the CAALA Board of Governors since 2005 and the CAOC Board of Governors since 2006. He is a five-time recipient of the CAALA Presidential Award of Merit in 2005, 2006, 2007, 2010 and 2012 and an active supporter of Vista Del Mar, supporting children with developmental disabilities. He has also performed pro bono work advocating for children with autism and other special needs.

By Steven G. Mehta

Steven G. Mehta

Red-flag clients can put the black flag on your practice How to recognize the red flags that may signal nightmare clients while there is still time to say “no” Ted had a slow year last year. He was excited to meet with a new client regarding a possible personal-injury case. The initial intake demonstrated good liability with good insurance to cover the injuries. “This case could make my year,” thought Ted to himself. The client, Betty, was scheduled to appear for her first consultation in five minutes. As the clock slowly lingered past the 30-minutes late mark, Ted started to wonder if Betty was going to show. “Bernice,” Ted yelled to his secretary, “Has Betty Ford shown up yet or called?” Bernice replied on the intercom, “No call and no show.” Ted replied by asking Bernice to reschedule. Eventually, Betty came two weeks later. She didn’t have her paperwork with her that Ted had requested and wanted Ted to take the case because it was the right thing to do. The consultation lasted for two hours, and during that meeting, Betty cried in his arms three times. Fast forward 19 months later. Ted sat in his office, with his head in his hands feeling beleaguered. Betty had reported him to the State Bar for the first time in his career; she refused to settle the case for really good money; he was stuck trying the case, fronting the costs of litigation; and he felt like he couldn’t stop thinking about Betty and her case. He had spoken to her every day since being retained. How could he be in this place? This was a good case, Ted thought to himself. The nightmare client – the reason many lawyers quit the practice of law. This client can make your life miserable without even trying. This client can often take up an enormous amount of time and resources; and all too often it is never worth the fee at the end of the game. So how can we tell when we are

facing a nightmare client? And why do we keep getting caught with representing a nightmare client? As a mediator, I have seen countless difficult clients and have seen many common themes among those clients. This article is designed to provide the practicing attorney with several red flags to watch for when beginning a matter or during the pendency of the matter. Any one red flag by itself may not be enough to justify the rejection of a client. However, the more flags that exist, the more cautious an attorney should be before proceeding any further. There are several warning signs that we may observe. We will focus on warning signs before representation (when it is not too late) and signs developed after representation (when it is still not too late). Before addressing those warning signs, it is important to address the issue of why lawyers get caught in the web of these nightmare clients. There are two primary reasons lawyers get trapped in the web of a nightmare client. The first is that the money was too good. The attorneys review the case and find that there could be a good case and see the possible contingency fee. Unfortunately, in considering this option, they are not considering the value of their peace of mind, or the value of the malpractice suit, state bar complaint, or other claim against them (frivolous or not) that might be around the corner when the client is dissatisfied. The second reason, which often goes with the first, is that the attorney says to him or herself, “I can control the behavior of this client during the pendency of the case.” This rationale is also flawed. Generally, a client that is a nightmare to you has had a lot of experience with that

world view. Their actions are based on a lifetime of acting that way. It is highly unlikely you will change that person’s behavior for too long without psychotherapy. The reality is that, as my old boss used to say, “Sometimes the best client is the one that you don’t take.” What he meant by that phrase was that it is worth not having the nightmare client regardless of how much money can be made. Your reputation, peace of mind, and your good legal malpractice record can and should outweigh the desire to take on the case. After all, there are many cases, and there is only one reputation.

Red flags before you undertake representation

• The client has shopped the case around If you are the third lawyer to review the case, you should be cautious. There is a reason that two other lawyers have rejected the case. If the client says to you, “The other attorneys were too busy to take my case,” that is a red flag. Ask the client whether she or he spoke with the attorneys that rejected the case. If the client went to several attorneys and each rejected the case outright , that is a good sign the case is not what the client represents the case to be. Generally, if the case is good and the client is reasonable, the first or second lawyer should have taken the case. If you are number three on the chain, the odds are that if the case is good, the client is the problem. Ask for the names of the attorneys. Ask the client if it is ok to speak with those attorneys. This could provide a clue to you. • The client lets you know the case is a slam dunk If the client is telling you it is too easy, it probably isn’t. Generally, the MAY 2013

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client doesn’t know the law, or all the facts. They just know what they feel. This is a clue as to the client’s expectations. The client may undervalue your work product. At the end of the case if every-

thing doesn’t go your way, you could face a client that is upset that you blew a slam-dunk case. This could also be a clue that the client is trying to sell the case to you, rather than let you make the deci-

sion. Further, such a statement may reflect that they don’t respect you or your contributions. • The client wants to negotiate your rates It is perfectly appropriate for a client to negotiate your rates. However, if you are practicing consumer law issues, then this should be a red flag. Generally, a client that negotiates the rate at the beginning undervalues your work from the outset. Second, it is likely that this client will negotiate with you later after all the work is done. Third, in all but one case that I have seen involving a “client negotiator,” the client has also threatened some form of legal action against the attorney in order to get the newly reduced rate at the end of the case. Usually, the client will explain in mediation any of the following rationales: “I thought your fee included the costs;” “I know the rate is this, but I won’t settle the case unless you agree to a further rate reduction;” or “I won’t agree to the following items as costs out of my share.” • The client wants to barter Generally, clients that barter, value their own services more than they value yours. In the end, you may not get the benefit of the bargain or the client will be upset when you use their services. If you charge $500 an hour, and the hairstylist client charges $50 a hair cut, she will have to do 10 haircuts for every hour you work. The typical case has attorney’s fees of over $25,000. That is 500 hair cuts or 41 years worth of monthly haircuts. Also remember that California Rules of Professional Conduct rule 3-300 governs bartering. • The client fired the last lawyer This should make you very wary. In reality, it is often the case that the lawyer fired the client, but will allow the client to tell the world that it happened the other way. Even if the client did in fact fire the lawyer, this is a client that is not easily pleased. If the lawyer fired the client, there has to be a good reason. There are exceptions to this principle. One being that the prior lawyer was truly incompetent, unethical or inexperienced in the particular field of law.

See Red Flag, Page 62 60 — The Advocate Magazine

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Red Flag — continued from Page 60

• The client has several banker boxes of material on the case Someone who has this much material from the outset has paid some serious attention to the case even before it is filed. Sometimes, these people might be considered obsessed. If they obsess about this, you can rest assured that they will obsess over every little thing you do (or don’t do). If you think about it, generally a client will come to the case with limited documentation and then through the course of the case, thousands of pages will be generated. Imagine how many pages will be generated if the client starts with thousands in the first place. This client cannot stop thinking about the case, the injury, the wrong, and what can be done to address this problem. This client could easily call you several times a day to make sure that you are on top of the case. You could likely get too much information rather than too little. • No call/no show If the client doesn’t show up to an appointment and doesn’t call to let you know, that is a major red flag. At a minimum, the client doesn’t respect you or your time. How will this client be when you really need to meet with them?

• The “I can only make it between the hours of 6:30 and 7:22 p.m. on Saturday.” Similar to the person that is a no call/no show, this person may not respect you enough. This person potentially could have an overinflated and unhealthy sense of self-worth. This person could make it very difficult for you to schedule appointments or do any tasks that you assign them such as responding to discovery or deposition preparation. • You have to convince the client you are honest If you find yourself trying to convince the client at the beginning of the relationship when they are in the honeymoon stage, imagine what you will have to do if you missed a deadline or failed to return a call. All too often these clients are unhappy at resolution and blame their attorney for conspiring with the other side to ruin the case. • A client whose first attorney botched a legitimate case that is still pending This is a lose-lose Good Samaritan issue. At the end of this case, you will likely say, “No good deed goes unpunished.” If you step in to salvage the case, you will likely have to advise the client of the right to legal malpractice. If you sue

for malpractice, the predecessor attorney can and likely will blame you for not acting appropriately in underlying action as an affirmative defense in the legal malpractice case. If you don’t sue for malpractice, then you may be exposed for not advising regarding the malpractice. • The angry client It is normal for clients to be angry and upset over a harm that has been imposed upon them. However, too much anger will be uncontrollable. Be assured that this person’s anger will only get worse during litigation. Moreover, some or all of that anger will spill over to you and your staff. • The victim or emotionally needy client This client is often emotionally fragile and insecure. Many times this person will be in a co-dependent relationship and is seeking to embroil you in another co-dependent relationship. This person may find it very difficult to make decisions. Signs that the person may be emotionally needy are that they take on the victim’s worldview. They see themselves as blame-free and that others are always to blame for everything. The person may spend an inordinate amount of time in

See Red Flag, Page 64

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your office on a consultation. If your half-hour consult becomes an hour and a half, you have a needy client. • The dishonest or deceitful client Often these clients will not tell you all the information they know to be relevant or will tell you the wrong information. If you can catch this early on, you should immediately mark that as a dangerous red flag. • The client has been difficult or unreasonable with other professionals Generally, if a client has been difficult with one professional, it is highly likely that he/she will be the same with you. Recently, I mediated a case in which the client was difficult with other nonlegal professionals before coming to the attorney. The case came to mediation and there was a reasonable settlement offer on the table. The client refused to accept the deal and it took two hours to get her to agree to the terms. After she agreed, and while she was signing the papers, she cursed the attorney to hell and called him, “Satan’s Child.” • The “it’s about the principle” client This client tells you it is all about the principle. Sounds great initially, but when you get to settling the case, and dealing with the business realities of litigation, and you are about to spend $25,000 on litigation costs in the face of a reasonable offer, principles don’t help. The reality is you are a professional doing a job. You don’t take cases for

vengeance or principle. You take on a case to make money and in doing so, if it can help foster a principle, then that is also good. If your client doesn’t understand this, his/her principle could end up trumping your recommendations. • If you ask for documents to be brought and the client fails to do so One of the problems with this issue is that it addresses two possible concerns: client cooperation and misrepresentation. If you have let the client know that certain documents are important and they don’t bring them, you might have to worry about what else they aren’t showing you. Are they intentionally hiding information? You will need a good explanation about this issue.

Red flags during representation

Once you have taken the case, there are generally early signs that a client will be a dangerous or nightmare client. All too often, we choose to ignore those signs until it is too late. The sooner you notice those signs, the sooner you can either correct the situation with the client or choose to withdraw. Many of the red flags before retention will also apply after retention. • The client makes two or more calls a day on average Frankly, even if the client is calling every day, that is too much. But the point is that if the client is calling twice a day,

See Red Flag, Page 66

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Red Flag — continued from Page 64

the client is obsessed. The movie, Fatal Attraction, was about an obsessed person. You don’t need that person in your law practice. This client may also want to have meetings on a regular basis, even when you don’t want or request one. This person will suck the firm’s energy dry. They may disguise their inability to communicate by exaggerating their need to communicate. You could theoretically spend all your time on this client and it won’t be enough until it comes time to pay the bill – then it will be too much. • You and your staff spend a disproportionately high amount of time with this client It is normal for cases to have an ebb and flow. At times the case is busy and requires a lot of client contact, but at

others, nothing is happening. If during the low times, you are spending a disproportionately high amount of time interacting with the client, that is a red flag of things to come. • The staff dread having to take the calls of the client There can be several reasons staff may dread taking a call: too many calls; the client is rude; the client refuses to let the gatekeeper do his/her job; the client insists on talking with you all the time; the client leaves long-winded messages. The list goes on. Your staff ’s complaints are often early warning signs of a difficult client. • The client doesn’t timely provide information to you or your staff If the client fails to timely provide discovery responses or documents, or

even a return call, the client may not be invested in the case enough. This is especially troubling for smaller cases. In those situations, after you have done an amazing job to get a good but small recovery, the client may not cooperate with you in settling the case because they do not feel it is worth the time and effort. • The client doesn’t inform you of a change of address Just as with the discovery, if the client doesn’t keep you informed, he or she may not be vested. Further, they may not respect you or your staff enough. • There are several client representatives It is generally better practice to make sure that there is one client representative who can speak for the family.

See Red Flag, Page 68

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The more spokespersons, the more that there is a chance you will get conflicting messages. In addition, this makes for a very difficult process when trying to settle a case, and you need the approval of six family members. • The client has unrealistic expectations If the client has an unrealistic expectation, it is far better to address that expectation head-on than to defer the issue. All too often in mediation, I – as the mediator – have to address those expectations for the first time. There are countless times that the client will express, “If I had known this, I would never have wasted my time.” Interestingly, they never mention your time in that phrase. Generally, frustration and stress is created when there is a difference between what you want, and what you can get. In other words, the difference between expectations and reality can equal frustration and stress for the attorney. • The client who doesn’t respect your off hours It is perfectly acceptable for a client to occasionally call you during off hours – especially when you have given him your cell phone number. However, a client that makes a habit of calling you at any time is a red flag. They don’t respect you or your time. They probably have unrealistic expectations, and may even be emotionally needy. • The last-minute client If, in response to your reasonable requests, the client gives you the information at the last minute, that is a red flag. The underlying reasons could vary, but the net effect is that the client has made a normal routine matter an urgent matter by providing you with information at the last minute. This could reflect a lack of respect for your time and schedule. This is especially true if you have to drop everything to deal with your client’s last-minute rush. • The backseat driver If the client starts to direct tactical issues regarding the litigation, this is a red flag. This is even more so if the

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Red Flag — continued from Page 68 client is in the legal field. Unfortunately, the old adage regarding a little knowledge being dangerous is very true here. If the client is an attorney, there is a reason she went to you: She doesn’t know the field of law as well as you do. Thus, the attorney client is even worse than the lay person client because there is an increased sense of perceived – but not necessarily accurate – knowledge in the field. The more that the client wants to be involved in the day-to-day tactics, the more likely they will question a tactic or strategy after the fact. • You are complaining to your spouse about the client Even if none of the red flags here has been raised, but you are complaining to your spouse or friends on a regular basis; the client probably is a difficult client. Sometimes your friends are more objective about the client and the case than you. • Something smells wrong Most people need to learn to trust their instincts. If something smells wrong, then there probably is something wrong. Malcolm Gladwell, in his book, Blink, explains this concept by giving the example about the art expert called in by the Getty Foundation to evaluate a newly acquired, expensive piece of ancient Greek art. All the other experts had said it was authentic, so the Getty had purchased it. The expert walked up to it, and within minutes claimed it to be a fake. It turned out he was right. Gladwell explains the concept as “thin slicing.” We make split decisions on a variety of issues and topics. That instinct or split decision is necessary because we are inundated with mounds of data that we need to digest quickly. In essence, our bodies are hardwired to take our life’s experiences and instantly spit out the answer at lightning-fast speed. We have to get used to trusting that instinct, even if we can’t explain it. In your legal cases, if the client has the back of your neck hair raised, trust your instinct and decide not to take the client or get rid of the client.

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One of the comments people make when they have already commenced representation is that they have come this far, they can’t quit on their investment. The reality, however, is that there is still a long way to go in the litigation; and even though some investment may have been made, it is important to figure out when to cut your losses. However, if you cannot fire the client, then it is very important that you document your communications, and establish expectations as quickly as possible so that there is no doubt about your representation if it were ever to be questioned. It is important to note that although there are many red flags, it is up to you to use your discretion to decide whether you want to represent a certain person or take the risk with a particularly difficult client. As guidance, however, the more red flags you have, the more likely you will be sued, reported, or swindled by the client. As a general principle, if you find that a particular client matches three or more of these criteria, you should act cautiously. Take a few days before making a final decision if you want to keep or continue to keep the client. Talk with a friend. If the client demonstrates five or more of these factors, you should be hearing the Robot from Lost in Space

shouting at you: “Danger, Will Robinson! Danger!” Do not pass go. Stop what you are doing, and seriously consider how you can get out of this relationship fast. Finally, if the client demonstrates seven or more of these criteria, you should seriously reconsider the way you are interviewing clients, find a way to get rid of the client as soon as possible, start the clock running for a possible legal malpractice suit, and hope for the best. The practice of law is difficult enough as it is. The last thing you need is your client turning on you when you have fought so hard for him. Make sure that you review your client thoroughly before representation or during the pendency of litigation to see if there are any red flags. If those flags exist, make sure that you immediately take steps to protect the relationship and document those steps carefully. Steven G. Mehta is an attorney and mediator who mediates disputes in personal injury cases, elder abuse litigation, medical malpractice, employment law and other complex litigation. He is a frequent lecturer on negotiations and mediation skills throughout the country. He mediates disputes throughout California and Nevada. He is the recipient of the California State Bar Firm Section’s Lawyer of the Year Award. He can be reached through his Web site,

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The super legal secretary Behind every great attorney there is a great legal secretary A super legal secretary possesses the skills and qualifications she/he has accumulated throughout the years. The super legal secretary must be proficient in a variety of computer software applications; have excellent writing and communication skills; transcribe dictation; be familiar with legal documents and legal terminology; write and/or draft correspondence and routine legal documents; pay close attention to detail; be able to multi-task, organize, prioritize; maintain the office calendar; schedule meetings, depositions, mediations, arbitrations, etc. Expectations of a legal secretary vary between those employed in large firms and those in small firms. Those employed in small firms have to wear many different hats on a daily basis. Regardless of the size of the firm, the legal secretary is a fundamental part of the office teamwork. Legal secretaries sometimes start out as receptionists, file clerks, billing clerks or calendar clerks. They are promoted to junior legal secretaries, later to legal secretaries and finally to senior legal secretaries within the firm. Moving up the ladder is the best way to master the skills necessary to help run a law firm. The topnotch legal secretary actually thinks while typing; not only just a fast typist, but an assistant to the attorney(s) who provides backup support for accurate information. In addition, the firstclass legal secretary must have knowledge of the firm’s cases, be up-to-date on court procedures, court rules and commonly used legal codes. If necessary, the secretary must have the ability to search for court procedures, court rules and legal codes. While holding such a demanding position in the legal field, the super legal secretary is aware that concentration on the job is essential; the ability to meet deadlines is critical; and, accuracy in the use of the English language is crucial. When stressful situations arise, the super

legal secretary maintains calm and remains focused regardless of the pressures of the moment and can respectfully instruct other co-workers how to pitch-in when a deadline is fast approaching: even ask kindly of others, including attorneys, to clear the way and stay away while the work gets done. The topnotch legal secretary holds no information hostage. The secretary shares any information with co-secretaries and other co-workers for efficiency and accuracy of any project. The focus is to assist those in need of her/his expertise. By the same token, they have no problem asking others for any tips or information necessary to complete the assignment. This means always being open to suggestions to improve their own skills. The legal secretary must be willing to work long hours and, at times, even sacrifice a personal life to meet deadlines and get the legal documents out to court and out the door. The first-class legal secretary provides peace of mind to the attorney(s) who is the employer. The attorney(s) can be simply taking a day off, or on a short vacation close to home, or on a long vacation on another continent, but always confident that the super legal secretary will get the work done, correctly and on time. Often, because of the unavailability of the attorney(s) in the firm, the legal secretary is the only contact between the firm and its clients, expert witnesses and defense counsel. The first-class legal secretary is prudent while making contact with anyone, on any case, at any time. But there is more to the first-class legal secretary than the skills and qualifications listed in her/his resume that makes her/him unique. That person possesses certain essential qualities necessary in a law firm including honesty, loyalty, discretion and patience. In addition, they must be trustworthy and diplomatic; work well with others; require little to no

supervision to get the work done; and find solutions to problems rather than dwell on them. The secretary is the first to accept responsibility if the need arises. The topnotch legal secretary knows that teamwork is crucial to the firm. Having respect for the attorney(s) for whom the legal secretary works is one of the most important reasons the secretary strives to do the best each day on the job. Just as important is the conviction the legal secretary has for the job. The gratification of helping clients and helping the attorney(s) help those clients is a drive for the legal secretary to do the best job possible every single day on every single task. The super legal secretary is a professional who always takes pride in her/his work. And, just how does the super legal secretary survive such stressful days on the job? How do they keep it together? The first-class legal secretary possesses a positive attitude and a good sense of humor. After all, a good laugh increases job performance. The best way to be more productive in such a demanding position is to actually have fun doing the job. It is said that: “behind a great man there’s a great woman.” I say: “behind a great attorney there’s a great legal secretary.” Sonia E. Revolorio, is a paralegal at the Law Offices of Victor L. George in Torrance, California, since 2006. Ms. Revolorio was a legal secretary / legal assistant at the Law Offices of Michael J. Piuze from 2001 to 2006. She began her legal career with the Law Offices of Revere & Wallace in 1990, where she held various positions, including, legal secretary, legal assistant, office manager, until 2001. Ms. Revolorio attended California State University, Northridge, in Northridge, California. She was a Mechanical Engineering Major and a Member of the Minority Engineering Program. MAY 2013

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Kelly Deutsch

Mark Alexander

Admissibility of day-in-the-life videos Video presentations demonstrate plaintiffs’ loss “better than words,” but can you get them admitted? DemonstrativeKelly evidence has evolved Deutsch from the presentation of still photographs, color charts and blow-ups, to computer-generated animations and broadcast-quality, high-definition video documentaries. The value in presenting demonstrative evidence is to assist the jury in understanding the issues surrounding a case without creating undue prejudice, confusion or waste of time. Trial judges, in accordance with California Evidence Code section 352, must exercise sound discretion in determining whether the proffered evidence is relevant, accurate, fair, and has the appropriate foundation and authentication. Generally speaking, the grounds for the admission of demonstrative evidence are the same, whether it is a photograph, diagram or moving pictures. However, unlike other forms of demonstrative evidence, when it comes to the admissibility of day-in-the-life video documentaries specifically, they seem to be subject to broad, although not absolute, judicial discretion. Despite numerous instances where the court expresses concern about the dominating and prejudicial nature of day-in-the-life videos, their rulings, in fact, contradict their concerns and admit them. In other cases, judges exclude day-in-the-life videos for their prejudicial value, or as cumulative evidence. So, with some court’s apprehension to and the wide latitude with which judges are executing discretion, what are best practices for getting day-inthe-life videos admitted?

Better than words

Day-in-the-life legal videos, otherwise known as daily activities’ videos, are typically presented in court to demonstrate for jurors a plaintiff ’s injuries (permanent and/ or catastrophic), and the impact those injuries have on the plaintiff ’s daily living activities. These activities, such as rising, eating, bathing and receiving physical therapy, can vividly demonstrate the

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Mark Alexander

plaintiff ’s loss through their apparent dependency, physical limitations, and the overall hardships they currently live with. In addition, the presentation of a day-inthe-life video in trial circumvents the impracticality of having jurors visit the plaintiff for an entire day to eyewitness the plaintiff ’s injuries and challenges themselves. Day-in-the-life videos, just by the very medium by which they are delivered, can bring the plaintiff ’s story to life for the jurors in a way that is virtually impossible to communicate with mere still pictures and words. In Grimes v. Employers Mutual Liability Insurance Company of Wisconsin, (D.Alaska 1977) 73 F.R.D. 607, 610, the court found the day-in-the-life video submitted by the plaintiff exemplified “better than words,” the impact the injury had on the plaintiff ’s life in terms of pain and suffering and loss of enjoyment of life. Similarly, in Arnold v. Burlington Northern Railroad (Or.Ct.App. 1988) 748 P.2d 174, 176, the court noted that although the video offered to illustrate

and supplement the plaintiff ’s testimony, there also existed “the danger of eliciting undue sympathy for the plaintiff.” Even so, the court concurred with the trial court’s admission of the video stating, “[T]he probative value of the film – its ability to illustrate graphically the impact of the plaintiff ’s injuries on his life – outweighed its prejudicial value…” In addition, the court commented that “the dayin-the-life film communicated to the jury effectively, and perhaps better than words could do; what plaintiff ’s life…was like,” [italics added]. Interestingly, in Ocasio v. Amtrak, (N.J. Super. App. Div. 1997) 690 A.2d 299, the court weighs whether the day-in-the-life videotape is cumulative evidence since both parties’ medical experts testified concerning their observations of plaintiff ’s current condition and the kind of care plaintiff requires. In the end the court ruled that the day-in-the-life videotape was the only means the jury itself had to observe plaintiff ’s present condition and

See Admissibility, Page 76

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the medical care being provided for him and thereby agreed with the trial court that it was admitted properly. Despite the Arnold and Ocasio courts acknowledging potential issues with dayin-the-life video admissibility, they both find that the videos’ probative value outweighs the courts’ concern for undue prejudice and cumulative evidence.

Arousing sympathy, passion and prejudice

With day-in-the-life video presentations demonstrating for jurors “better than words” what the plaintiff ’s life is like, there is little doubt they can be an incredibly persuasive tool for plaintiffs’ claims for damages. These video presentations cannot only enhance the plaintiff ’s testimony, but also assist the jury in understanding to what extent the plaintiff ’s life has been

impacted. More importantly, and to the dismay of the defendant, day-in-the-life videos can leave an indelible impression in the jurors’ minds when it comes to assisting damages. Recognizing the powerful influence that day-in-the-life videos can have over jurors, the trial court in Roberts v. Sisters of St. Francis Health Services, Inc. (Ill. App.3d 1990) 556 N.E.2d 662, took a novel approach to this issue. The trial court denied the defendants’ motion in limine to bar plaintiff ’s introduction of a day-inthe-life video, but reasoned that because the video carried such a high potential for arousing sympathy, passion, and prejudice for the injured plaintiff, the defendants should be able to make prospective jurors aware of the condition which may be presented to them during the course of the trial. During the voir

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dire process, the trial court played the day-in-the-life video and asked potential jurors whether anyone felt that what they saw would cause them to be biased or prejudiced in such a way that they would be unable to render a fair verdict on evidence. The Illinois appellate court upheld the trial court’s actions of playing the video during voir dire. We also see other courts warn about potential dangers of day-in-the-life videos with regard to, inter alia, undue prejudice, hearsay, and cumulative evidence. “[T]he powerful impact of this type of evidence requires the trial judge to examine carefully into its authenticity, relevancy, and competency, and – if he finds it to be competent – to give the jury proper limiting instructions at the time it is introduced.” (State v. Strickland, (N.C. 1970) 173 S.E.2d 129,135.) Also, in the United States Court of Appeals for the Tenth Circuit, Bannister v. Town of Noble, (10th Cir. 1987) 812 F.2d 1269, the court surmised that “a jury will better remember, and thus give greater weight to evidence presented in a film as opposed to more conventionally elicited testimony.” Yet, despite the day-in-the-life being a powerful tool and the court acknowledging the limitations of the defense to effectively cross-examine, the day-in-the-life video in Bannister was admitted – but not without warning. The Bannister court cautioned other courts to recognize these concerns on a case-by-case basis when determining the potential effects of admitting day-in-the-life videos. Surely, the courts do not utilize strong language, make unusual accommodations during voir dire and issue such harsh warnings when it comes to timelines and graphs. But we see time and again, the trial and appellate courts’ taking issue with the “high potential for arousing sympathy,” and the “powerful impact” day-inthe-life videos can have on jurors.

Define your case.

Foundation, accuracy, fairness and relevance

Another warning, with fairly explicit guidelines with regard to admitting dayin-the-life video is issued by Bolstridge v. Central Maine Power Company, (D. Me. 1985) 621 F. Supp., 1202-1204. The court

concluded day-in-the-life videos should be admitted as demonstrative evidence “only when the tapes convey the observations of a witness to the jury more fully or accurately than, for some specific, articulable reason, the witness can convey them through the medium of conventional, incourt examination.� The court then listed the concerns it had in reviewing the risks inherent in presenting day-in-the-life videos and outlined a number of issues a trial judge should consider prior to admitting such a film: 1) Each event shown, after editing, is fairly representational of the fact or is unduly prejudicial because of the manner of the presentation; 2) Plaintiff is aware of being videotaped which is likely to cause selfserving behavior, consciously or otherwise; 3) The videotape dominates traditional

evidence because of the nature of its presentation and that it creates sympathy for the plaintiff out of proportion to its relevancy; 4) The videotape may distract jurors from the fair consideration of other issues in the case. Although the court in Bannister adopted the four-prong test issued in Bolstridge, the court noted in summary, that such videotapes must have a foundation of accuracy and fairness. That is, the probative value of a videotape is greatest, and the possibility of its prejudice is lowest, when the action portrayed is limited to ordinary, day-to-day situations. Submitting a day-in-the-life video of a plaintiff in unlikely circumstances, or performing improbable tasks would not fairly portray a typical day in the life and thus would likely not be admissible.

In Cisarik v. Palos Community Hospital (Ill.1991) 579 N.E.2d 873, 875, a twopronged test was used to determine admissibility. The first prong required the party proffering the video as evidence must show that the videotape is an accurate portrayal of the events it depicts. That foundation must be laid by someone having personal knowledge of the videotape and its contents. That person must be made available for in-court cross-examination for satisfactory assurances of verity. Typically the plaintiff, the primary care-giver, life-care planner or the person most knowledgeable for the legal video production company must be available to testify as to: 1) identify the person depicted therein; 2) verify objects or places shown; 3) acknowledge the scenes and events are a true and accurate representation as to what

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The Advocate Magazine â&#x20AC;&#x201D; 77

Admissibility — continued from Previous Page

was observed during the videotaping, as well as; 4) confirm no scenes are rehearsed and 5) the ambient sound on the recorded videotape is not manipulated.

The second prong used in Cisarik requires that the video’s probative value cannot be substantially outweighed by its prejudicial impact. As an example, in Grimes, the

court noted day-in-the-life videos are generally admissible, if authenticated, probative and relevant. In the daily activities video submitted by plaintiff, the scenes depicted were

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unpleasant, but the Grimes court concludes – so is the plaintiff ’s injury and thus, not unduly prejudicial but relevant to the plaintiff ’s claim of pain and suffering and loss of enjoyment of life. The plaintiff was also able to show that the daily activities in the video were typical for the plaintiff, thereby authenticating the footage presented at trial. Therefore, the proponent of the video is advised to provide the appropriate foundation for its admissibility. When determining the admissibility of day-inthe-life videos, most courts allow the admission of such day-in-the-life videos provided that: 1) their probative value outweighs any prejudice to the defendant and 2) there are no demonstrated improprieties in the video’s content or production techniques. 3) Assuming plaintiff ’s counsel provides the proper foundation and authentication for the above referenced points, the video will likely be admissible.

case lacked the proper support of authenticity, of fact and accuracy, fairness and relevance. Typically, day-in-the-life videos presented in trial are considered merely

demonstrative evidence offered to 1) illustrate plaintiff ’s contention or testimony of facts regarding plaintiff ’s injury and the impact that injury has on plaintiff ’s daily activities, 2) and not presented to prove

Inadmissible hearsay or exception?

The assertion that day-in-the-life videos are in actuality inadmissible hearsay is found in several cases, most notably, Foster v. Crawford Shipping Company (3d Cir. 1974) 496 F.2d 788, 790. In Foster, the plaintiff ’s attorney, without notice to the court or to opposing counsel, went to plaintiff ’s home with a video production crew and recorded a twominute segment showing the plaintiff ’s attorney “interrogating” the plaintiff. It shows plaintiff to be uncommunicative and in a partially catatonic state, responding with grunts and growls. Because plaintiff was declared an incompetent at the onset of trial, the court found the video to be witness testimony and not subject to cross-examination. The court declared “…any benefit which might have been derived in the fact-finding process by such an illustration was far outweighed by the prejudice of admitting what amounted to ex parte testimony from the absent incompetent.” The court also found plaintiff ’s counsel in Foster makes no efforts to disclose the circumstances surrounding its preparation and discloses nothing about plaintiff ’s state prior to or after the videotaping. Clearly, the video produced on this MAY 2013

The Advocate Magazine — 79

Admissibility — continued from Previous Page

the truth of any matter and therefore treated as if it were a photograph. As mentioned earlier, in Bannister, the court acknowledged the defendant’s limitations to cross-examination (of) the plaintiff regarding the events captured on film because the defendant was not present to question the injured party during the video’s creation. Nonetheless, the court concluded that the prejudice was lessened when the plaintiff could be cross-examined at trial regarding the events depicted in the film. “A witness’s testimony about observed assertive conduct when used to prove the truth of the assertion would be hearsay, and similarly, a film showing assertive conduct would be hearsay.” The Grimes court also addresses the defense’s assertion that daily activities’ videos are inadmissible hearsay.

Surprisingly, the court agrees that the video is hearsay, but allows the video under the hearsay exception in Federal Rule of Evidence 802. The court statement is as follows: “Use of this exception is justified in this situation where the normal hearsay problems do not exist or can be remedied. There are no problems with perception, memory, or meaning, and any sincerity problems can be solved by having the verifying witness and the plaintiffactor subject to cross-examination.” Again, any prejudice resulting from the admission of the hearsay is diminished by the defendant’s ability to cross-examine the person most knowledgeable.

Probative value v. undue prejudice

Once again, Bannister addresses another concern in the issue of “unringing the bell.” Bannister suggests the trial court judge be


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required to examine day-in-the-life video in camera and determine, on a case-by-case basis, whether the probative value of the particular videotape “substantially” outweighs the possibility of prejudice. The Supreme Court of Mississippi upon reviewing the day-in-the-life video presented in Butler v. Chrestman, (Miss. 1972) 264 So. 2d 812, 816, declared: “[T]he motion picture was improperly admitted into evidence because it was one depicting excruciating pain and suffering rather than attempting to reveal the actual state of the injuries. The nature of this film was more likely to inflame and prejudice the jury rather than to serve any evidentiary purpose.” Here the commissioning attorney could have avoided the video from being excluded had the videographer simply documented the action rather than the agony. Also, in Thomas v. C.G. Tate Construction Company (D.S.C. 1979) 465 F.Supp. 566, the court excluded the dayin-the-life video, finding that the video would invoke intense sympathy for the plaintiff and inflame the average juror. The video wrongfully highlighted the plaintiff ’s continual groans and moans during treatment for a severe burn injury. The camera focused on the plaintiff ’s face as plaintiff grimaced in pain, instead of the treatment itself. As a result, the court put forth the following statement: The court can conceive of no way in which the defendant can possibly depict with equal impact those periods of time during the plaintiff ’s recovery process when he was either free of pain or relatively speaking, free of pain . . . In this court’s judgment, no amount of testimony from the attending physician, nurses, etc., could possibly offset the dramatic effect of the audio-video tape in question. Similarly, the defense in Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436 contended the day-in-the-life video introduced by the plaintiff and allowed by the trial court should have been excluded under California Evidence Code section 352 (probative value outweighed by prejudicial effect). But the Court of Appeal confirmed that: 1) the trial court had independently previewed the tape; 2) there was no evidence that the tape

exaggerated plaintiff ’s difficulty in performing tasks or that it involved self-serving behavior; 3) both the plaintiff and the nurse were available for cross-examination; and 4) it was not “merely cumulative” of other testimony because it best described plaintiff ’s daily problems in a way oral testimony could not convey. The Jones court also found that the videotape was highly relevant on the issue of damages because it graphically demonstrated plaintiff ’s need for constant medical attention in a manner that oral testimony could not convey. It also had substantial probative value on the extent of pain and suffering and was therefore helpful to the jury in calculating appropriate damages. Jones is the first California appellate opinion to rule specifically on the admissibility of a day-in-the-life video.

In those courts where day-in-the-lifevideos were found to be cumulative, it appears that the facts in at least some of those cases relied on the issue of “avail-

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Cumulative testimony

Despite the positive admissibility of day-in-the-life videos in many jurisdictions, certain courts have excluded day-inthe-life videos as duplicative, or cumulative testimony. In Thomas, supra at 571, it was noted that “[t]he court is mindful, in making this ruling, [excluding the video] that not only will the plaintiff be available to testify, but the doctor, the wife and the therapist. There is nothing to keep them from testifying as to the pain and suffering which they witnessed.” According to the court in Thomas, witness testimony will be adequate to discuss pain and suffering, yet other courts, curiously, decide that the video speaks “better than words.” The court in Aetna Casualty & Surety Company v. Cooper (Fla.App. 1986) 485 So. 2d 1364, 1366, found that day-in-the-life video was cumulative of evidence in the record where plaintiff was able to testify about his loss of enjoyment of life. Similarly, in Butler, the court concluded that the day-in-the-life video was cumulative evidence and not necessary to the suit because of an abundance of competent medical evidence detailing the plaintiff ’s injuries. Missouri also followed suit, in Helm v. Wismar, (Mo. 1991) 820 S.W.2d 495, 497, wherein the Missouri Supreme Court excluded the plaintiff ’s day-in-thelife video because plaintiff was present in court for the jury’s observation.

ability.” For example, in Repple v. Barnes Hospital (Mo. App 1989) 778 S.W.2d 819, the court explains that although the court in Lawton v. Jewish Hospital of St. Louis,



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(Mo.App. 1984) 679 S.W.2d 370, held that a “Day-In-The-Life” videotape is admissible provided that the nature and extent of plaintiff ’s injuries were facts essential to prove plaintiff ’s claim and necessary for the jury’s determination of damages, the Repple court, felt that plaintiff ’s “ill health prevented him from appearing at trial.” (Repple, supra at 823.) These courts seem to ignore the fact that a plaintiff ’s injuries are not static over time, and observation in a formal courtroom setting is no substitute for a real life setting.

Discoverable and useable

Plaintiff ’s counsel must take note that all of the material videotaped by the legal video production company is discoverable. In the Supreme Court of Illinois Cisarik v Palos Community Hospital (Ill. 1991) 579 N.E.2d 873, the court ordered the plaintiff ’s attorney to provide the defendants with a copy of the videotape and all of the raw, unedited footage. The court held that such videotapes are not subjected to more stringent discovery guidelines than other types of evidence. The court noted that viewed in its proper light, a day-in-the-life videotape is “merely a form of demonstrative evidence that is comparable to a still photograph, a graph,

a chart, a drawing or a model.” It is extremely advisable when commissioning a legal video production company for documenting a day-in-the-life video for trial, that counsel complete due diligence to be sure that the production company he or she hires has experience and integrity in documenting these matters. No legal videographer should ever request a plaintiff to exaggerate, repeat, rehearse, act-out or attempt any task that is out of the plaintiff ’s ordinary routine. Seeing an injured person walking with a cane and kicking a soccer ball in their backyard is not feasible or ordinary. An experienced videographer will know not to use certain camera angles, inlens zooming to accentuate excessive depictions of pain or use questionable methods in

editing the continuity of scenes, or overall content. There is little sense investing in a day-in-the-life video to be presented in trial and having it excluded for prejudice or even worse, having the improprieties of the video company be used against your client in trial.


In short, day-in-the-life videos should be admissible as long as they demonstrate


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MAY 2013

just the facts, illustrate witness testimony and do not contain, among other things, artistic highlighting that emphasizes some scenes more than others. Scenes or content that include obvious exaggerations, self-serving behavior, rehearsed or coached actions, or include content which serve little purpose other than to create sympathy or contain other unduly inflammatory material, should be excluded from the

video to be admissible. Day-in-the-life videos should be admissible provided that 1) their probative value outweighs any prejudice to the defendant; and 2) there are no demonstrated improprieties in the video’s content or production techniques. Assuming plaintiff ’s counsel provides the proper foundation and authentication for the above referenced points, the video will likely be admissible. In summary, a day-in-the-life video is not only persuasive, but in most cases admissible, so long as it is prepared by an experienced legal video production company who understands the common admissibility requirements of the jurisdiction where your client’s case is being tried.

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The Advocate Magazine — 83

William E. Donahoo

Riches in the niches A firm focused on a niche has the opportunity to define the space in which they practice It is hard to be a “jack of all trades,” even within one area of law. The list of potential clients is long, of course, but your chances of acquiring and winning a random case are lower than if you build expertise and a reputation as the master of a niche. As a master, you will discover that there are “riches in niches.” A legal niche is a laser-focused practice area – a subset defined by your legal expertise, proven experience and past success that elevates you as the law firm of choice for potential clients who need help with that specific problem. To find riches in the niches, focus your practice on a targeted audience that requires targeted expertise. Instead of having an “Employment Law” practice, focus on a specific aspect of employment law such as gender-based wrongful termination. Instead of a general “Wage and Hour” practice, focus on unpaid overtime for cleaning and janitorial services.

Five key advantages to focusing your practice

• Advantage 1: Successful case selection Every firm is defined by the cases it takes and the cases it does not take. Experience and familiarity within a niche allows you to better separate the winning cases from the losers. Improve your case-intake process by reviewing new cases in light of similar cases you have already handled. Hone your intake questionnaire after every case to limit the unknowns that can jeopardize your success. Drill down in each new case for additional details that may lead to more significant and more lucrative causes of action. Successful case section is the key to success and failure for any plaintiff ’s firm. Operate in a specialty where you know how to win and apply your experience to give you the best chance to pick winners. 84 — The Advocate Magazine

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• Advantage 2: Intellectual property library A firm’s legal work is a firm’s investment in the future. Complaints, motions, legal research, briefs, discovery, deposition outlines, damage audit processes, trial preparation, trial strategy, successful verdicts and even appellate work are all assets of the firm and become reusable intellectual property in future cases. Once you have brought or defended an issue that you fully briefed, argued and won, you can watch for cases that will allow you to enjoy that experience again. Your chances of victory are increased exponentially when you have “seen the movie” and “written the ending.” A firm’s intellectual property (“IP”) library becomes a way to leverage past work for future benefit, making it easier to anticipate the opponent’s moves and respond faster. Time and effort are reduced when you don’t have to reinvent the wheel with each case. Every time you reuse your work, it improves. As your IP library grows, consider creating a digital catalog of the work. Practice-management software, multimedia database file systems and even customized private WiKi’s are great options for building a knowledge base. • Advantage 3: Defining the applicable law Successful litigation can lead to successful outcomes and favorable published opinions from the bench. These opinions become new law that can be cited and referenced in subsequent litigation to your benefit. It is an opposing counsel’s nightmare to have to overcome a cited case that is on point and finds its origin in the hands of the attorney he or she is up against. A successful firm focused on a niche has the opportunity to write the law. Your work and success will define favorable

rulings that will prove useful in future cases. Note this is a two-sided coin. If an attorney is not successful and receives unfavorable rulings in a given niche, it can take years to overcome and have a lasting effect on future cases. Attorneys should help each other protect the law and avoid litigation mis-steps that can result in unfavorable rulings and unfavorable published opinions. • Advantage 4: Efficient client acquisition One of the biggest advantages of a laser-focused approach to building a practice is how efficient marketing becomes. Knowing your target audience allows you to be more selective, more demographic-based and more efficient. This means less time, less money and less trial and error in your marketing programs. English translation: “Riches in the niches.” The marketing advantage is dramatically magnified by the Internet and Internet-based marketing. The Internet allows you to market to a very, very targeted audience. If your niche is well defined and without a lot of past activity, an Internet-based targeted marketing program can be very effective and provide a first-mover advantage to the firm that moves quickly and decisively in securing the Internet “real estate”. An Internet marketing deep-dive is beyond the scope of this article. Suffice it to say that using niche-focused Web sites, lawyer profile listings, blogs, pay-to-click advertising and organic SEO, you can attract a very targeted customer that fits perfectly in the bulls-eye of your defined niche. • Advantage 5: Reputation and referral When you build a reputation as the master of a niche then word-of-mouth becomes the most effective referral source for similar opportunities.

Reputations go beyond clients. They impact mediators, experts, adjusters, opposing counsel and even judges. Success begets success. As your reputation for obtaining very successful resolutions increases, you will be the one clients want. They will not settle for less.

How to define and build a niche

• Look over your successful cases to identify those that represent a focus area where there appears to be continuing opportunity for success, enjoyment and a return on your investment. • Review the Web, the phone book, and attorney listings in the geographic areas you practice in to determine if there are a few or many others focusing in this area. If you do not find others targeting this area then you have hit the unique firstmover advantage position and can define the space yourself. In this case, or if there are some other competing firms but few enough that the costs of entry is still low, move quickly to stake your claim. • Stake out your real estate, develop a Web presence, capture the key words related to your practice area niche, write frequent blogs and create digital and print brochures that can be used in

targeted referral campaigns to make others aware of your focus. Letting other more general practices know your specialty and the value you bring to it is another great way to build focus, fill the case pipeline and achieve success. • Invest the riches you receive from your focused, efficient and successful niche practice to develop other niches to grow your business and expand your firm.

Dangers and warnings:

• Plaintiffs’ firms with successful reputations can become the target for defense firms. Maintaining a successful reputation becomes real work as others come gunning for you. If you can maintain a successful track record by good case selection, smart legal work and keeping your eyes on the prize, your continued success despite the defnse firms’ pressure works in your favor and cements your reputation. • A niche needs to be small enough to get your arms around but big enough to provide a pipeline of future work. This is not always easy to identify. • Success in a niche will attract others and create new competition that has to be dealt with.

Final thoughts There are many ways to build a law firm and expand a practice area. Defining a niche and becoming its master is a proven strategy worthy of consideration. Doing so is much easier today than in the past thanks to the Internet, which provides unprecedented market access to all firms large and small. A niche strategy mitigates unknown risks, leverages intellectual property, builds a solid reputation and gives you a faster and surer path to the riches in practicing law. As Firm Administrator and Case Manager for Donahoo & Associates, William Donahoo handles all non-litigation aspects of the firm with specific focus on marketing, case administration and technology integration. Donahoo & Associates is a member of CAALA and William Donahoo is an active member of the ALA and a non-lawyer member of the CELA technology committee. Prior to Donahoo & Associates, Donahoo spent a 20-year career as a senior executive and later a start-up entrepreneur for technology ventures in enterprise software, computer networking and e-commerce companies. He holds a Bachelor of Computer Science degree and an MBA from Brigham Young University.


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The Advocate Magazine — 85

Gretchen M. Nelson

Stop being a Luddite – join the app generation A rundown of the essential iPad and Android apps for consumer attorneys For a bit of historical perspective, the Luddites (a term that has become synonymous with “machine wrecker”) were English textile artisans who in the 19th Century protested against the machinery introduced during the Industrial Revolution that resulted in the elimination of their talents and made it possible to replace them with less-skilled, low-wage laborers. In today’s high tech world, the term is used to describe an individual who has a deep-seated fear of technology and throws the latest “i-anything” or Droid or tablet into the rubbish bin. I confess, I used to be a bit of a Luddite and looked askance at those who stood in line to buy the first iPad. But, with the help of my 89-year-old father, I’ve changed my ways and now embrace the iPad, my smartphone (it’s often smarter than me) and other new technologies. No longer do I need to drag boxes and boxes of paper to court, no longer do I have to bring copies of the cases cited in my brief and no longer do I need to spend hours copying documents for depositions. With the simple flick of your fingers, you can pull everything up off your tablet and you are good to go. But before you start out you must navigate the world of applications. Every day someone comes up with a new app that does something smarter, faster and easier. Here are my top 10 apps (and other devices) for lawyers with tablets or smartphones:


This is the gold standard for reading PDFs (and other types of documents including MS Office, iWork ’08/’09, HTML and Safari Web archives audio and video) on your tablet, smartphone or i-whatever. It also includes some excellent editing tools that allow you to annotate your documents. You can also sync files with remote servers including Dropbox, SkyDrive, SugarSync and any WebDAV, 86 — The Advocate Magazine

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AFP, SMB, FTP or SFTP server. If you store key pleadings, exhibits and other documents in a Dropbox folder on your computer, one keystroke will sync the documents over to your tablet. For annotating your documents with GoodReader you can include typewriter text boxes, popup comments or sticky notes, text highlights, text underlines, strikeouts, and text insertion marks.


A terrific application that allows you to mark up PDF documents and handwrite changes onto the document which you can then send or upload. You can highlight areas of documents with a highlighter that has five colors and three brush sizes. The “pen” has 10 colors and four brush sizes. And, you can erase changes. You will need to purchase a stylus that allows you to write on your documents.


For general writing the Wacom Bamboo is very good. For editing documents – interlineating type of markups – the Adonit Jot – works better – it’s more like a real pen. The Hand stylus has the benefit of a retractable tip which makes it useful for traveling.

WestLawNext This application makes it simple to get legal research done when in court or out of the office. The application is available for the iPad®, Android™, and smartphone or tablet types. The application will allow you to save and view documents online or offline. And, it will pick up where you left off with automatic synchronization across devices.

Documents to go

This is an all-in-one application with support for Microsoft® Word, Excel & PowerPoint, PDF, Apple iWork and other files and attachments. It includes a desktop application (Win and Mac) to provide twoway file synchronization and it supports Google Docs,, Dropbox, iDisk and SugarSync for synchronization. One of the great advantages to this app is that it handles footnotes in documents. Using this app allows you to see redline edits and the program allows you to zoom text and reformat line wraps for ease of reading.



This is an application that allows you to access your office PC while on the go. Through this app you can pull files on your desktop. And to top it off, the basic version of LogMeIn is free.

This is another very good app for note-taking on PDF, Word or other documents. Notability has a vertical scrolling feature which is better for certain projects. Notability lets you take notes via typing, handwriting, or audio and all three methods can be integrated into one note. You can easily switch between the different types of note-taking methods. You can add text, write in handwritten notes, and there’s a microphone button in the tool bar to record your audio notes, which are then attached to the note you’re working on. The app also includes automatic cloud syncing that links with Dropbox, iDisk, or WebDav.

Currently this app is only available for Android users. The app is basically a smarter version of a yellow pad. The user can prepare for depositions by entering questions directly or uploading them in plain text. You can attach exhibits to the questions which can at least eliminate one copy of deposition exhibits. The app also has a list or pre-programmed questions although I wouldn’t necessarily bank on using those. You can also create your own template of basic questions that apply to every new deposition you add in the device.




Throw away the scanner. With SignMyPad you can electronically sign your documents and send them. Instead of a computer generated signature, with SignMyPad you literally sign with your finger.

A terrific trial presentation app. It allows you to show documents, images, videos, and other types of exhibits to the judge or jury.

Court days pro

This is a rules-based legal calendaring app that provides you with the ability to calculate dates and deadlines based on a customizable database of court rules and statutes. Once the rules are set up in the application, calculations are performed using a customizable list of court holidays. Once you input a date, i.e., a trial date, the application will display a list of all events and corresponding dates and deadlines based on triggering event (e.g., last day to serve discovery, motion cut off etc.)


Now you can throw away those file folders with post-it notes that you move around as you are selecting a jury. This app allows you to do much the same thing but electronically. You can track the jurors on a custom seating chart, input their names. The app also keeps track of the number of for-cause challenges and peremptory challenges.


This app allows you to review deposition transcripts and create designations of testimony that can be shared with opposing counsel, the court or others.

Gretchen M. Nelson is a graduate of Smith College and Georgetown University Law School. She is a partner with Kreindler & Kreindler LLP and practices in the firm’s Los Angeles office. She represents plaintiffs in complex class actions involving securities, antitrust and consumer claims. Ms. Nelson is a member of the Board of Governors for the Consumer Attorneys Association of Los Angeles. She also serves on the Board of Governors for the State Bar of California. She is a former President of the Los Angeles County Bar Association and a past Chair of the Litigation Section of that association.

Now that you are hooked on apps, you’ll find yourself trolling the Web looking for the latest and greatest. Have fun and welcome to the app generation.

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The Advocate Magazine — 87

Miles B. Cooper

With case management software, it’s all relative Your life revolves around your cases. So should your case management software The receptionist buzzed. “A Mr. D____ is calling about a referral.” I ran my mental rolodex. Like many people, I’m terrible with names. But I remember details. Once things click, I remember you went to UCLA, you rowed in college, and you had a case involving the Dodgers. My mind is relational. But I need a jumpstart on the relationships.

Relational databases and case management software

How does this lead into case management software? Because the software is relational. It is referred to as case-centric software (or matter-centric, where a “matter” is what we know as a case). The software is built so you can click on a case, see who is associated with it (opposing counsel, judge, assistants, experts, clients, defendants), click to access their contact information, and easily find deadlines and associated events. Every entry revolves around the case. You can also associate contacts with multiple cases. When you click on an opposing counsel’s contact card, you can see all the cases (that) he has had against your firm. Most lawyers use Outlook. Outlook does a great job of housing e-mails, contact information and calendars. But Outlook is not relational. You cannot create a case in Outlook and relate people, events, deadlines and communications.

Why would you want case management software?

In theory, it becomes a central case clearinghouse. It can be a powerful marketing and communications tool. If you group your contacts, you can select specific groups (let’s say all lawyers) to receive e-mails or mailers. And with a calendaring plugin like CompuLaw, trial deadlines – down to specific county or district local rules – can be included.

Why wouldn’t you want the software? Sounds pretty cool. Before you set this down and schedule an install,

88 — The Advocate Magazine

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recognize that like anything else, you get out what you put in. You cannot simply pick some software and have it set up that day. Most case management software is infinitely customizable (frequently more a burden than a blessing). Rolling it out usually has significant implications on how your firm handles workflow. Ironically, the firms who could most benefit from case management software are frequently the ones whose implementation efforts fail. The more people in the firm, the more ways different lawyers handle their caseloads, the harder it is to find a set-up that works for everyone. Implementing the software is expensive and time-consuming. You don’t want case management software if your firm is unwilling to take the time to customize it, roll it out, and embrace it. For solos, this can be done quickly. With several lawyers or teams, the project can be involved.

What software is best for us?

That’s like asking what car is best for you. Firms’ needs differ. The less intrusive and more user-friendly, the better. Software that operates in Outlook (this means the interface lives within Outlook, not that it synchs with Outlook) is best. People are already familiar with the program, so adding extra tabs, rather than a new program, improves the chances people will use it. Other considerations: entries that are readable. Can you use it on the road from a laptop? Does the data synch with your smartphone? How large is the software company, how long have they been around, and will they give you references? Answering these questions will prevent you from selecting the wrong provider. Two products that meet these rigorous demands are Legal Tracks and Aderant Total Office. They’re good, but nothing will be perfect. Unless you plan to commission your own software build, perfection will be hard to find. (Note: These are PC-workstation-based software programs. There are several server-based solutions, such as Amicus Attorney, Abacus, and Prolaw.

Cloud-based systems are also becoming more popular. These include Clio, Rocketmatter, Mycase, and FirmCentral.)

How do software rollouts fail?

There are two major causes for failure in software rollouts. The first is when leadership spends the money but does not get behind the project. The second is related – staff revolt. Staff does not want to change and continues to do things the old way. Staff revolt stems from a lack of training and floor support. Floor support is where trainers spend a day or two around the office, checking in with users and helping them adjust to the new program. If you invest the time up front, case management software can become a tremendous weapon. It will improve your case management abilities. It makes you better at tracking data – including referral sources. And it reduces 2:00 a.m., “when is that due?” ulcerations.


Back to our caller. As the receptionist put the phone call through, I opened his tab in our case management software. He had been opposing counsel on several cases against us. I saw that I had made a note after meeting him at an MCLE. It included the fact that his children both rowed and that he had an interesting case up on appeal last year. I picked up the phone. “It has been a while. You ever get a ruling on that appeal we talked about at the MCLE last year?” Miles B. Cooper is a partner at Rouda Feder Tietjen & McGuinn in San Francisco. He represents people with catastrophic injury and death claims. In addition to preparing his own cases, he associates in as trial counsel and consults on trial matters. He has served as lead counsel, co-counsel, second seat and schlepper over his career and is a member of ABOTA. Cooper’s focus beyond litigation includes trial presentation technology.

Thomas M. Dempsey

Ethics in the Internet age As the Internet expands, attorneys strive to maintain professionalism The Internet has altered the practice of law, for good or for ill, and has contributed to it being more of a business than a profession. We, as trial attorneys, have a collective duty to advocate for our judicial system. I believe most attorneys still like to think of themselves as professionals, and a true professional is one who serves the public purpose – in our case, through the practice of civil law. A legal education is a powerful credential and comes with special powers and distinct responsibilities. I am appalled at the public perception that we are simply peddlers of our legal talent, to be sold to the highest bidder. We are not simply craftsmen, faithfully implementing the designs of our clients. We are intended to be advocates, sworn to a solemn oath to uphold the law.

Raising the bar

That being said, the basic tools of advocacy have been enhanced in many ways with the seeming inexhaustible amount of information available and the rapidity at which this information can be obtained and utilized in our daily practice. This availability, however, has also raised the bar as to the care one must use in successfully and ethically representing a client. First, it has become almost impossible to practice law without a computer. Second, you’re almost required to have e-mail, which means you have to have Internet service. Third, some courts began encouraging and then requiring electronic filing. Fourth, it could be considered borderline malpractice not to use computerized citation checking. Today, numerous lawyers own domain names, publish a Web page, participate in on-line forums and chat rooms, use online referral services and transmit and store all documents electronically. Despite these realities, all the Rules of Professional Conduct remain intact, even if impacted by the use of

computers and the Internet. With the benefits of the technological age come a host of ethical issues that concern lawyers, whether sole practitioners, members of firms, government employees, or anyone in between.


There are issues about whether an attorney’s electronic mail or other realtime communication with clients is adequately protected, confidential information. Additionally, attorneys using the Internet to advertise their practice must consider whether this action violates ethical regulations in certain jurisdictions. Another area of concern is the definition of “practice of law.” One must consider Internet practices that are commonly considered to be the unauthorized practice of law. There are questions about the advantages of providing legal services through the Internet. Determining what constitutes the unauthorized practice of law on the Internet is a complicated issue. Generally, the practice of law includes rendering legal services, preparation of legal documents, and holding yourself out as engaged in the preparation of legal documents. While technical

advances in recent years have created a new forum for the practice of law through the Internet, potential areas of ethical dilemmas including on-line comments made by an attorney admitted to practice in one jurisdiction and read by a person in another jurisdiction; on-line attorney advertising; e-mail and the attorney-client privilege; on-line attorney referral sites; and on-line subject matter guides.

Attorney-client relationship

In a general sense, the practice of law is often defined as occurring when a lawyer provides specific legal advice to a person, thereby creating an attorneyclient relationship. Additionally, the establishment of an attorney-client relationship is recognized when a person advises a lawyer that he or she intends that the lawyer provide legal services and the lawyer either manifests to that person his or her consent to provide legal services or the attorney fails to decline representation of an individual while knowing that the potential client reasonably relied on the lawyer to provide such services. This brings up the questions about whether an on-line exchange between a

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Ethics — continued from Previous Page


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lay person and a lawyer requesting legal advice creates an attorney-client relationship when some advice is actually provided, even to a minimal degree. The answer appears to turn on the reasonableness of the lay person’s belief that there has been an attorney-client relationship established. Thus, whether there was the creation of an attorneyclient relationship will be tailored to the facts of the specific case. The obvious dangers of on-line legal communications is that an attorney-client relationship may be formed between a client and lawyer, with or without the knowledge of a lawyer, resulting in the breach of ethical rules as to the unauthorized practice of law. This scenario, of course, brings up the issue of Internet chat rooms. These real-time conversations that are interactive and open to the public can be a source of the giving of legal advice or to solicit business. Any attempt to obtain a pecuniary gain by a lawyer is no different than doing so face-to-face or in written communication. This real-time attorney contact as a method of solicitation of business is an ethical violation because of its propensity to overwhelm a potential client’s judgment by an attorney’s persuasive insistence on being retained at that time. When dealing with a client’s confidentiality, several questions arise regarding electronically transmitted documents. After you have digitalized your files, do you have an obligation to retain any paper documents? If you outsourced the electronic conversation and storage of your files, are there safeguards that you should implement? Can you participate in Internet discussion groups that address legal issues? Must you remove all metadata associated with documents you created that could possibly be seen by opposing counsel? If opposing counsel sends you a document, can you use information you gained from the metadata associated with same? Does the level of sophistication of hackers place a duty on lawyers

to be knowledgeable about advances in security technology? If a potential client uses an e-mail address provided by an attorney’s Web site which contains detailed information about his or her legal situation, is that communication afforded the protections of confidentiality? Although unsolicited e-mails are not considered to establish the attorney-client relationship, there is a question as to whether the e-mail was truly unsolicited? Is an attorney who maintains a Web site required to include an exclusive disclaimer of confidentiality of e-mails sent to him or her by visitors to the Web site? A lawyer who publishes a Web site that includes a newsletter about legal issues or essays on legal topics should have some

understanding of the site’s potential readers. All attorney Web sites should include the jurisdiction in which the attorney practices and a disclaimer that information it contains is not legal advice.


While all of the aforementioned potential ethical violations can be pitfalls to even the most careful and responsible attorney, the Internet will continue to mushroom as the “information highway” and social networking advance. It is advisable to keep abreast of these new developments and to utilize them in your practice only as your comfort level allows. The preservation of the legal system is the most important aspect of your practice to keep in mind. If you strive to be a profes-

sional, while at the same time using these new techniques in handling the business aspect of your practice, you will be fulfilling your obligation to the law. Thomas M. Dempsey is a sole practitioner in Brentwood, CA, where he specializes in personal injury and complex litigation, with emphasis on spinal cord and traumatic brain injuries resulting from medical negligence, products liability and premises liability. He is a past president of Consumer Attorneys of Los Angeles. CAALA honored him in 1994 with the Ted Horn Memorial award, and he has twice been its Trial Lawyer of the year nominee. He is a member of American Board of Trial Advocates, the United States Supreme Court Bar, and the Board of Governors for Consumer Attorneys of California.


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Dan Finn

Taxable Damage Structured Settlements Solving the unintentional verdict and settlement unfairness problem caused by Prop 30 and ATRA Although the vast majority of Americans will not be dramatically impacted by the passage of California’s Proposition 30 or the American Taxpayer Relief Act of 2012 (ATRA), two particularly unique groups of taxpayers most certainly will. Californians receiving taxable damage awards or settlements stand to be disproportionately and adversely affected by recent changes to their income tax rates. The same holds true for highincome, contingency-fee lawyers in the state. The disparity is measurable and quite profound. Consider: 92 — The Advocate Magazine

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• The top Federal Income Tax Rate recently increased from 35 percent to 39.6 percent - a 13.1 percent tax hike • The top California State Income Tax Rate, including the one percent Proposition 63 Mental Health Services Act tax for incomes over $1 million and the recently passed “temporary” Proposition 30 tax, increased from 10.3 percent to 13.3 percent - a 29.1 percent tax hike Combined, top California taxpayers now send about fifty-three cents of every dollar earned over this threshold to the United States Treasury or Franchise Tax Board earning California the dubious distinction of having the highest marginal tax rate in the country.

This doesn’t even take into account things like the new 3.8 percent Section 1411 Medicare Surtax on certain income, the Alternative Minimum Tax (AMT) modifications and phase-outs, changes to capital gains income, etc., all of which combine to create an even greater sense of financial preparation urgency for some. Plaintiffs’ attorneys and the clients they represent who anticipate receiving taxable settlement income are among those groups of taxpayers most likely to be swept up by the reforms irrespective of their pre- or post-settlement net worth.

See Prop 30 & ATRA, Page 94

Prop 30 & ATRA — continued from Page 92

History will ultimately pass judgment on the wisdom of these two laws. But when applied to an individual verdict or settlement, the unintended disparity caused by their passage becomes abundantly clear.

The challenge of cash awards

Whether for punitive damages, bad faith, wrongful termination, discrimination, defamation or any one of a variety of taxable damage possibilities, the new tax rates present a major challenge for attorneys negotiating settlements and trying cases. For starters, many gross cash settlements will need to be larger going forward in order for attorneys to net their clients the same amount of money they may have achieved for them in years past. This could serve as an impediment to settlement talks since an otherwise agreeable gross settlement figure might be rejected once the plaintiff determines the net recovery will not yield enough money, after taxes, to render settlement viable. As a result, an otherwise resolvable dispute might be forced to trial further

straining the state’s already financially challenged civil justice system. In addition, a settlement or judgment intended to compensate the plaintiff for loss extending into the future, often for a lifetime, may never come to fruition when paid in cash. That’s because a large, one-time payment can create tax inequity by forcing the taxpayer into a “millionaire” tax bracket one year, only to be followed by normal tax status in subsequent years. This extraordinary tax burden in a single year, instead of a more reasonable tax obligation spread out over time, seems an unfair and unintended consequence of the new tax laws since tax parity cannot be easily accomplished. Fortunately, there is a solution.

Non-physical injury structured settlements

Before finalizing any negotiated settlement or concluding any judgment, the parties should explore the possibility of arranging for a portion of the settlement, or the attorney’s fee, to be paid over time utilizing what’s commonly called a taxable or non-physical injury structured settlement.

To schedule a case or learn more about PMA, 877.678.1010 or

Lee Jay Berman

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Scott S. Markus, Esq.

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Facilitating Practical Solutions to the Most ChallengingProblems Unlike traditional structured settlements, which pay future periodic payments, principal and interest, on a 100 percent income tax-free basis when properly implemented and paid on account of personal, physical injury, taxable structured settlements for non-physical injury claims are fully taxable. However, because the payments are made over time, cash flows can often be coordinated so they are received in a future year when the recipient’s anticipated tax bracket will be more reasonable. In addition to being consistent with acceptable tax planning strategies as old as the Tax Code itself, this serves the dual purpose of ensuring the settlement proceeds fulfill their intended purpose – properly compensating the plaintiff for a loss – and fairly satisfying one’s tax obligations. A thorough discussion about the tax implications of various settlement options also helps insulate the plaintiff attorney from any potential legal malpractice challenge which could arise absent such a conversation. Since very few financial advisors are familiar with the unique sub-specialty of taxable structured settlements and structured attorney fees, it is vital that practitioners seek out an experienced, credentialed individual familiar with implementing them. They should further encourage their clients to seek out independent tax counsel who can work in tandem with this chosen expert.

Case study

Fifty-one year old Emma Gudwerkur’s boss called her into the office one day to tell her that she was being let go from her job as a marketing representative because she was getting “a little long in the tooth,” and the company needed to make way for someone who projected “a more youthful exuberance.” He praised her for her many years of dedicated service as one of the company’s top performers and wished her all the best for the future. Not surprisingly, a wrongful termination and age discrimination lawsuit

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The Advocate Magazine — 95

Prop 30 & ATRA — continued from Previous Page

ensued and the parties eventually commenced settlement negotiations. At mediation a few weeks before trial, Ms. Gudwerkur was offered a package to settle her claim that would net her approximately $1million in cash. Because of the nature of her claim, the entire amount would be taxable. Since her firing, Emma and her husband had been living on $75,000 – about half of the couple’s customary income. While this results in a very manageable 17.6 percent combined federal and state average tax bracket for the couple, they find it ever harder to maintain their customary standard of living with Emma’s loss of income. By contrast, because of the progressive nature of our nation’s tax system,

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her $1million cash settlement would end up being taxed at 46.7 percent, – more than two-and-a-half times the couple’s current tax rate – for one year only. The following year, their tax rate would revert back to a more normal range in the lowto-mid-twenties. Since nearly half of her proposed settlement ($467,000) will be owed in taxes this year, she rejects the cash offer. Seeking an alternative arrangement, the parties consult with a taxable structured settlement expert who is able to show that Ms. Gudwerkur, for the same $1 million cost to the defense, could receive a payout of $70,000 per year, her customary salary, over the next 17 years. In addition to spreading out her tax burden, this arrangement adds $190,000 in

pre-tax interest to her original offer. While the total payout of $1.19 million (19 percent more than the cash offer albeit paid over time) is part of the appeal, because her anticipated combined tax bracket will be much lower over that span, the couple’s average tax bracket drops from 44.7 percent to a far more reasonable 25.4 percent in the year of settlement where they expect it to remain. The structured arrangement reduces her total tax liability over time to only $403,000 saving her a minimum of $64,000. Her CPA points out the clear advantage of paying total taxes of $403,000 over 17 years versus $467,000 in year one and enthusiastically recommends she structure her settlement.

Perhaps even more important than the superior tax advantage which restores fairness to her settlement, structuring fills the void left by the termination and allows her to resume her customary lifestyle for the remainder of her normal working life expectancy. While this hypothetical scenario is predicated on tax brackets and income levels remaining constant over time – far from a sure thing – it demonstrates the value of finding tax-friendlier, needsbased solutions to settlement challenges on taxable damage claims. In practice, each case is unique and readers should not rely solely on the figures used in this case study. Instead, a thorough analysis is in order before making any decisions as tax laws can be complex.

Conclusion Large cash settlements and judgments can undermine the entire settlement process by disproportionately and adversely affecting the very individuals the settlements are designed to help in the first place. Since many taxable damage plaintiffs never were and never will be the high wage earners originally targeted by Proposition 30 and ATRA, they shouldn’t be taxed as if they were. Instead, by implementing a carefully crafted non-physical injury structured settlement, tax fairness can be restored leaving litigants, and their counsel, with a better chance of resolving their disputes pre-trial.


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The Advocate Magazine — 97

From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief

Appellate Reports and cases in brief About

this Issue of interest to members of the plaintiffs’ bar Recent cases Collins v. Navistar, Inc. Editor-in-Chief

Jeffrey Isaac Ehrlich

(2013) __ Cal.App.4th __ (3rd Dist.) Who needs to know about this case? Lawyers handling products-liability cases where third-party criminal conduct is an issue. Why it’s important: Holds that in a products-liability case, the fact that a third party’s criminal conduct created the Jeffrey Isaac Ehrlich risk of harm, did not require the plaintiff to prove that the defendant should have been able to anticipate that particular criminal conduct. In other words, the same standard of foreseeability for strict products liability applies to the risk of harm, regardless of the source of the risk. The court By alsoJeffrey rejectsIsaac the use of premisEhrlich es-liability Editor-in-Chief principles governing the effect of criminal conduct by third parties in strict products-liability cases. Synopsis: Plaintiff was injured while driving a Navistar tractor trailer on I-5, when a teenager threw a 2.5 lb chunk of concrete off an overpass, striking the truck in the windshield. Plaintiffs

About this Issue

Book Review

argued that the truck’s windshield was defective, and should have either been raked more steeply to deflect road objects, or made of a more penetrationresistant material. At trial, the trial court gave jury instructions based on CACI negligence instructions that dealt with superseding cause. In particular, the instruction informed the jury that Navistar was not liable if it proved (1) that the criminal conduct by the teen happened after Navistar’s conduct; and (2) that Navistar did not know and could not have reasonably foreseen that another person would be likely to take advantage of the situation created by Navistar’s conduct to commit this type of act.” The court also gave a modified version of CACI 411, a negligence instruction, which told the jury that every person has a right to expect that every other person will use reasonable care and will not violate the law, unless he or she knows or should know that the person will not use reasonable care or will violate the law.

The special verdict form asked the jury whether Navistar could have known or reasonably foreseen that a person would be likely to take advantage of Navistar’s conduct to commit this type of act. The jury answered “no” and did not reach any other questions on the form. On appeal, Collins argued that the criminality of the rock throwing did not require a different standard of foreseeability than if the rock had been cast negligently or by an act of nature. Navistar contended that product manufacturers need not anticipate third-party criminality when designing their products. The court held that, based on settled case law, that the same standard of foreseeability for strict products liability applies to the risk of the harm, regardless of the source of the risk. Hence, “So long as the road hazard is reasonably foreseeable, the manufacturer must take steps to address common risks caused by negligent drivers, debris thrown into roads by acts of nature, and even thirdparty criminal acts.” The court further

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explained, “In the case of a rock hitting a windshield, liability for a defective design does not depend on whether the projectile falls from a rock outcropping, passing gravel truck, or the hands of a juvenile delinquent. A windshield is not any less defective because it is pierced by an intentionally, rather than an unintentionally, thrown rock.” The court agreed that “manufacturers need not foresee the unforeseeable.” But to prove a risk was unforeseeable, a manufacturer must show that the intervening act ― produced harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him or her responsible. The court was also critical of the use of premises-liability concepts concerning the effect of third-party criminal conduct in strict products-liability cases. The court explained that the involvement of criminal conduct is relevant in a premises-liability case because a landlord has ― the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. By contrast, in this case it made little sense to ask whether a product‘s design invited criminal behavior against the product’s user. “Here, the jury was asked the nonsensical question of whether Navistar’s design allowed Daniel to take advantage of the windshield rake. The evidence showed Daniel engaged in reckless, juvenile behavior by throwing rocks and concrete at random vehicles – not to take advantage of the possibly insufficient slope of Navistar truck windshields.

Compton v. American Management Services, Inc.

(2013) __ Cal.App.4th __ (2d Dist., Div. 8) Who needs to know about this case? Lawyers challenging arbitration agreements as unconscionable because they are not sufficiently bilateral. Why it’s important: First case to address whether the California rule that

arbitration agreements that are not sufficiently bilateral are unconscionable and will not be enforced survives the U.S. Supreme Court’s Concepcion decision. Holds, in a 2-1 decision, that Concepcion did not abrogate the rule. Synopsis: Compton sued her employer, AMS, in a class action alleging violations of various labor laws, including overtime, minimum wage, and rest and meal breaks. The trial court compelled arbitration of her claim based on an agreement she signed when she was hired at AMS. Treating her appeal as a writ petition, the appellate court held that the Supreme Court’s decision in AT&T Mobility v. Concepcion (2011) 131 S.Ct. 1740, did not abrogate California’s rule that arbitration agreements that are not sufficiently bilateral – that is, that do not apply equally to both sides, and therefore allow the stronger party to litigate the claims that are important to it in court, while relegating the weaker party’s claims to arbitration, are unconscionable and need not be enforced.

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Short(er) takes Class actions, FRCP 23 Comcast Corp. v. Behrend (2013) __ US __ (U.S. Supreme). Plaintiffs sued Comcast in an antitrust class action, based on the way Comcast “clustered” its cable television operations within a particular region, by swapping their systems outside the region for competitors’ systems within the region. The district court certified the class, and the Third Circuit affirmed. Reversed. A party seeking class certification must satisfy Rule 23’s requirements with evidentiary proof. The court’s analysis of whether the requirements are satisfied may frequently overlap with the merits of the plaintiff ’s underlying claim. The lower courts erred in refusing to entertain arguments against the plaintiff ’s damages model that bore on the issue of class certification because they would also be relevant to the merits determination. Rule 23 must be satisfied, even if that requires an inquiry into the merits of the claim.

MAY 2013

The Advocate Magazine — 99

Appellate — continued from Previous Page

Disentitlement doctrine; dismissal of appeal; contempt: Stoltenberg v. Ampton Investments, Inc. (2013) _ Cal.App.4th __ (2d Dist., Div. 5.) Stoltenberg obtained an $8.5 million judgment in California against Ampton Investments (“Ampton”). Ampton filed a timely appeal, but did not post a bond to stay enforcement of the judgment. Stoltenberg registered the judgment in New York, and propounded discovery there on Ampton. Ampton refused to comply, and was held in contempt by the New York trial court. Ampton continued to refuse to comply. Based on the contempt finding, Stoltenberg moved to dismiss Ampton’s appeal under the disentitlement doctrine. That doctrine allows an appellate court to dismiss a party’s appeal if that party fails to cooperate with a lower court’s orde r. Based on that doctrine, the appellate court dismissed Ampton’s appeal. In doing so, it rejected the arguments that the doctrine should not be applied because the New York trial court’s orders were invalid and on appeal. The court stated, “This is the worst kind of bootstrapping.” Trial court orders are presumed valid, and must be complied with until they are reversed on appeal. The court also rejected the argument that the doctrine should not be applied where the appellant has violated the order of a trial court in another

jurisdiction, instead of California. The court held that under the full-faith and credit clause in Article IV, section 1 of the U.S. Constitution, judicial proceedings in other states are entitled to the same treatment in every court in the U.S. Public entities; respondeat superior; negligent supervision; civil rights violations: Perry v. County of Fresno (2013) __ Cal.App.4th __ (5th Dist.) Perry was injured in an auto accident involving a vehicle owned by Alejandro Vital and driven by his stepson. Vital was employed as a correctional officer for Fresno County. After Perry sued him and his stepson, Vital accessed the County’s computer system to obtain information about various jail inmates, and then wrote fake letters purportedly from the inmates to Perry and to various third parties, all in an attempt to try to frighten Perry into dropping the lawsuit. Perry sued the County for state-law tort and federal civil rights violations. The trial court dismissed some of Perry’s claims on demurrer, and the balance on summary judgment. Affirmed. Under the respondeat superior doctrine, an employer is liable for the torts of its employees committed within the scope of the employment. An employee’s willful, malicious and even criminal torts may fall within the scope of his or her employ-


Karen Luckett




Injury & Disability Expert

100 — The Advocate Magazine

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ment, even though the employer did not authorize the employee to commit crimes or intentional torts. But before such liability will be imposed on the employer there must be a connection between the employee’s intentional tort and the employee’s work. An employer is not strictly liable for all actions of its employees during working hours. Rather, there must be a causal nexus between the tort and the employee’s work, i.e., the tort (the letters) must be engendered by or arise from the work. The court held that element was missing in this case. If the employee acts out of personal malice unconnected with the employment, the employee is not acting within the scope of employment. The mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of that employee’s duties does not render the employer vicariously liable. A tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to workrelated events or conditions. An employee who abuses job-created authority over others for purely personal reasons is not acting within the scope of employment. Since Vital’s dispute with Perry had no connection to Vital’s employment, and his letterwriting scheme had no connection to Vital’s employment, the requisite causal nexus was missing. Code of Civil Procedure section 998; statutory offers to compromise; joint offers; wrongful death claims: McDaniel v. Asuncion (2013) __ Cal.App.4th __ (5th Dist.) Plaintiffs Amy Jo and Melissa McDaniel were the surviving wife and daughter of decedent Steven McDaniel, who was killed in an auto accident. Plaintiffs filed a wrongful death claim, against several defendants, including Asuncion. Before trial Ascunsion made a $100,000 section 998 demand on the plaintiffs. Plaintiffs rejected it and went to trial against Ascuncion and another defendant. They won a $3.3 million verdict on their claim against the other defendant, but the jury returned a defense verdict for Ascunsion. The trial

court later awarded him expert-witness fees as costs based on the plaintiffs’ rejection of his 998 offer. Affirmed. The plaintiffs argued that the 998 offer was invalid because it was a single offer made to two plaintiffs. While such offers may be invalid in some cases, they are not invalid in a wrongful death context, which is a single cause of action held by all the heirs, and which must be rendered in a single lump sum. There is no difficulty in comparing the unitary verdict to the joint offer to determine that the defendant achieved a more favorable outcome than what was offered before trial. Fourth amendment, reasonable search and seizure; drug sniffing dogs; curtilage. Florida v. Jardines (2013) __ U.S. __ (U.S. Supreme). Miami-Dade police received a tip that Jardines was cultivating marijuana in his home. Because no activity could be observed from outside, a detective approached the home accompanied by a drug-sniffing dog and his handler. When they reached the house’s porch, the dog alerted. Based on the alert, the police obtained a warrant to search Jardines’s house, and found marijuana plants. The state trial court suppressed the evidence, the appellate court reversed, and the Florida Supreme Court held that the search violated the fourth amendment. Affirmed.

When the government obtains information by physically intruding on persons, houses, papers or effects, a search within the meaning of the Fourth amendment has occurred. The Fourth amendment not only protects the home itself, but the area immediately surrounding and associated with the house – the curtilage. The front porch of the house is part of the curtilage. A police officer may approach a home without a warrant in the hopes of speaking with its occupants, because this is no more than any private citizen might do. But the scope of the license is limited not only to a particular area, but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. (Opinion by Scalia, joined by Thomas, Ginsburg, Sotomayer, and Kagan. Alito filed a dissent, which was joined by Roberts, Kennedy, and Breyer.) Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. His practice emphasizes appellate support for the Southern California trial bar and insurance bad-faith litigation. He is the editor-in-chief of Advocate magazine and a contributing author of the Rutter Group’s Insurance Litigation practice guide.



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The Advocate Magazine — 101

From the President Scott Cooper

Orange County Trial Lawyers Association

One of us can make a difference Even a poor, uneducated plaintiff can turn the tide of justice One of Us Can Make a Difference In this year of the Orange County Trial Lawyers Association’s 50th Anniversary, I have become much more mindful of other fifty-year celebrations. In fact, I had to to take a break from writing this article to try to get tickets for the Rolling Stones’ “50 and Counting” Tour. (A side note: “and counting”? Really? The only thing those guys should be counting is their Geritol tablets, but apparently, they’re leaving open the option for yet another farewell tour.) In addition to 50th anniversaries, the continuing court budget crisis has kept me mindful of access to justice issues. This year, one of the more famous U.S. Supreme Court access-to-justice opinions turned fifty. On March 18, 1963, the Court announced its decision in Gideon v. Wainwright, 372 U.S. 335 (1963). As lawyers practicing in the civil arena, we may not have paid much attention to this case since we studied it in law school. Having recently seen and heard some anniversary stories about the case, however, I was struck by the nerve and persistence of Clarence Gideon and how he played a crucial role in improving access to justice for so many. On June 3, 1961, someone broke into a pool hall in Panama City, Florida and stole some money from the cash register. Based in large part on an eyewitness who said he saw Gideon leaving the area, Gideon was arrested and charged with breaking and entering with intent to commit petty larceny. Gideon was too poor to hire a lawyer. The court refused to appoint counsel for him because, under then-existing precedent, criminal defendants were only guaranteed a lawyer in capital cases or those involving “special circumstances.” Gideon responded to the judge: “The United States Supreme Court says I am entitled to be represented by counsel.” The judge disagreed, and sent him to trial representing himself, where he was convicted and sentenced to five years in state prison.

102 — The Advocate Magazine

MAY 2013

Gideon was an eighth-grade dropout who had spent most of his life as a drifter, working odd jobs and spending some time in jail for various petty crimes. Once in jail, however, he used the prison library to study the law. In doing so, he became convinced that, by failing to provide him a lawyer, the court had violated his Sixth Amendment right to “assistance of counsel” for his defense. He initially sought relief from the Florida Supreme Court, but was unsuccessful. He then drafted a five-page handwritten petition, which he mailed to the U.S. Supreme Court in January 1962. The Court decided to hear his case. Abe Fortas was appointed to represent Gideon, and the case was argued on January 15, 1963. Just two months later, the Court issued its unanimous opinion reversing Gideon’s conviction and holding that indigent defendants accused of serious crimes have a right to counsel. As stated for the Court by Justice Hugo Black: That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Gideon, 372 U.S. at 344. Following the ruling, Gideon was retried. With the assistance of a lawyer (who, among other things, discredited the eyewitness testimony), he was acquitted. Since that time, countless other criminal defendants have been spared the inequity

of a trial without counsel. All of this was based on a humble hand-written plea from a convicted criminal with an eighth grade education and no formal legal training. The case presents an inspiring reminder of how one person can make a difference and how our system, at its best, can protect the most vulnerable among us. In our world – that of civil torts – the equivalent of Gideon is the contingency fee. It provides counsel to those who would otherwise not be able to afford a lawyer. Most people who have been harmed by the conduct of others do not have the means to retain competent counsel to represent them against the lawyers hired by the opposing corporation or insurance company. As Justice Black found in Gideon, access to the courts is essentially meaningless without access to a lawyer to represent you. It’s no surprise, then, that corporate interests constantly try to undermine the contingency fee system (whether by capping fees or recoveries, promoting “loser pays” rules, or through other means). By fighting these efforts and providing your services on a contingency (thereby risking your time and money), you are giving your clients an opportunity for justice they would not otherwise enjoy – just as the public defenders do for the indigent accused of crimes. Of course, access to even the best lawyers means nothing without access to a court to try your case. As we approach the crucial stage of the budget negotiations in Sacramento, I hope to see you at CAOC’s Justice Day on May 7th, where we will be pushing the court budget issue with legislators. Then, on May 23rd, join OCTLA for an MCLE dinner program on “The State of the Orange County Court.” There, Presiding Judge Thomas Borris, Assistant Presiding Judge Glenda Sanders, and Civil Panel Supervising Judge Charles Margines will discuss the impact of the budget on the operations of the Orange County courts. For more information, go to OCTLA’s website at or call Janet Thornton at 949-916-9577.

From the Executive Director Stuart Zanville

Consumer Attorneys Association of Los Angeles

The iPadFrom Mini is your next “must have” trial tool the

Lighter and less cumbersome, the Mini may be well-suited to the courtroom Executive Director Zanville I am far fromStuart a techno guru. I am can hold it for long stretches without CAALA simply a “user.” I’m not sure I know the your hand tiring. For the many of us who difference between an app, a link, a don’t use a tablet while sitting at a desk – shortcut and a mobile platform, but I use where it can be placed on a hard surface them all regularly. or held in place with a stand – this is an I am also a user of Apple products. I ideal design.” own two full-size iPads, one iPhone and Jeff Richardson, a New Orleans one iPod/iTouch. I don’t own an iPad attorney, wrote on his iPhone J.D. Web Mini. Yet. site that, “After almost a month of use, I I like Apple devices for two reasons: am incredibly impressed by this device, Stuart Zanville and for many attorneys, this is the iPad 1. They work. 2. They CAALAare easy to use. to get. The iPad Mini is a great device I’m not saying Apple products are better. I’ve never used an Android phone or a that any attorney would enjoy using.” non-Apple tablet or eBook reader. I am The Tech360 blog wrote in sure they are very good. I am hooked on November that, “Lawyers in particular Apple for the two reasons listed above. have been very successful in getting the Apple is also very smart. There are a most out of the iPad, thanks to the varimyriad of popular features and apps that ous legal apps available in the iTunes synch from one Apple device to another. store. The launch of the iPad Mini has Stuart Zanville It’s truly a universal platform. ensured that the iPad remains a darling Consumer Attorneys Association of Los Angeles with lawyers all over the world. Not only

From the Executive Director

Reviews for the iPad Mini

is the new iPad Mini more portable, it I’ve fooled around with the Mini at allows lawyers to effortlessly work away in an Apple store, and we just bought severthe courtroom, without creating a distracal for the office to use as remote credittion.” card processing devices at seminars and Lawyers spend a lot of their time in CAALA Vegas. I know I’m prejudiced, the courtroom and that’s where the Mini but, boy, is it cool! excels. Imagine controlling your courtThe question you By want answered, room graphics with a device you can hold Stuart Zanville though, is how does it work for attorcomfortably in one hand? How about Consumer Attorneys Association of Los Angeles neys? The answer is “Very well.” easily taking notes on jurors without a But, don’t take my word for it; I’m an pen or legal pad and instantly sharing executive director, not an attorney. Here them with your associates? are some comments from attorneys who Alan Cohen writes, “Lawyers who have written about the Mini on Web sites tend to use their tablets while standing and blogs. before a jury box during voir dire, for According to reviewers, lawyers and example, will quickly appreciate the others, the three areas where the iPad Mini’s uber-mobility. The smaller size – Mini excels are size, weight and usability. ironically – also lends itself to rapid, Law Technology News reporter Alan accurate typing. While virtual keys are Cohen touched on all three when he spaced closer together than on the reguwrote in March, “First, the Mini is lar iPad, I found that by holding the remarkably comfortable to handle. It device in landscape mode, with a hand weighs just under 11 ounces, less than on each side, I could quickly thumb-type half the full-size iPad. But it’s also starwithout any uncomfortable stretching.” tlingly thin – barely a quarter of an inch I use my full-size iPad interchangedeep. That combination not only makes ably for both personal and business purit easy to carry around but it means you poses. I watch TV shows, surf the Net

From the Executive Director

and read magazines and newspapers on it. I also use it at work to take notes at business meetings and seamlessly receive e-mails from all my accounts. My only criticism is the heft. It’s just a little too clunky to carry around comfortably. With the iPad Mini, however, architect Ludwig Mies van der Rohe’s famed phrase describes it best: “Less is more.” I’m convinced that applies to tablets, and my Apple collection will soon include the iPad Mini. You can reach Stuart Zanville at

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The Advocate Magazine — 103

Sacramento Update

Washington Update

By Nancy Peverini CAOC Legislative Director

By Linda Lipsen CEO, American Association for Justice

The Bottom 10

AAJ on call 24/7 to fight tort reform legislation

Spring is in the air up here in Sacramento – which means it’s once again tort war season. That’s the time of year when our foes from the big industry-sponsored front groups (CJAC and “Citizens Against Lawsuit Abuse”) and assorted other groups in the axis of anti-consumer rights dust off the worst legislative ideas they can muster and descend on the Capitol up to no good. Thankfully, we’re there to stop them. In the spirit of the season, we present our “Bottom 10” list, representing the worst of the anti-consumer bills introduced so far. These legislative proposals are aimed at limiting your practice and the rights of the consumers you represent. 1.) SB 737 (Huff) Limits class-action law by allowing an appeal of an order granting or denying class certification. 2.) AB 167 (Hagman) Drastically limits 17200 cases by requiring each individual plaintiff to have suffered “injury in fact” of over $500. 3.) AB 1125 (Hagman) Restricts prevailing plaintiff fee provisions and overrules current law related to “prevailing party” awards in employment cases. 4.) AB 738 (Harkey) Immunizes public entities for any injuries or deaths caused to a bicyclist if the public entity provides a bike lane. 5.) AB 519 (Loque) Requires the court, in a 17200 (UCL) case, to consider all factors in mitigation of both the imposition and amount of any civil penalty. 6.) AB 223 (Olsen) Restricts the rights of disabled persons to sue public entities for disability access violations. 7.) SB 713 (Correa) Provides a defense in any action where the defendant has followed a government or department opinion letter. 8.) AB 748 (Eggman) Changes the rate of interest charged on judgments against public entities. 9.) AB 228 (Loque) Waives penalties against an employer if the employer resolves the claim within 30 days of receiving notice of the violation. 10.) SB 607 (Berryhill) Changes the current overtime law for employees in California.

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MAY 2013

At 1 a.m. – right before Congress recessed for Passover and Easter – the U.S. Senate voted on an amendment that would have implemented comprehensive health-care tort reform, severely limiting the rights of injured patients and broadly preempting state law. AAJ struck back. The amendment failed. AAJ knows that every bill introduced in Congress is a potential vehicle for tort reform. That’s why we monitor and read hundreds of pieces of legislation. It’s a full-time, 24/7, beready-for-a-vote-at-any-time commitment. We are proud to do this work to protect the rights of injured patients and consumers. In this particular instance, Sen. Rob Portman (R-OH) was trying to sabotage the budget by introducing Amendment #152 to the Senate Budget Resolution. His amendment required the Judiciary Committee to prescribe legislation to meet certain budgetary cuts, and the prescribed cuts corresponded with Sen. Portman’s Medical Care Access Protection Act (MCAP Act). AAJ worked quickly to notify Senate staff that Sen. Portman’s anti-civil justice amendment would harm injured Americans. We showed them that: • Tort reform will not reduce the federal budget. It is irresponsible and unnecessary to bargain away the legal rights of injured patients and consumers in budgetary debates. • If medical malpractice reforms are enacted, more patients will be injured and killed. • The Congressional Budget Office has recognized that the U.S. mortality rate may increase by 0.2 percent, and an additional 4,853 Americans will be killed every year, or 48,250 Americans over the 10-year period the CBO examined. • An additional 400,000 or more patients would be injured during the 10 years examined by the CBO. Medical malpractice is about real people with real injuries. The Institute of Medicine estimates that 98,000 people die each year from preventable medical errors (the sixth leading cause of death in America). Medical malpractice proposals,

such as those contained in the MCAP Act, fail to address the 98,000 annual deaths associated with preventable medical errors. If Congress wants to reduce health-care costs, address the astounding number of costly, preventable medical errors that kills the equivalent of two 737s crashing every day. Federal medical malpractice restrictions infringe on states’ rights. Under our system of federalism, tort law is an area of law reserved to the states. The 10th Amendment solidified that balance of federalism. Federal medical malpractice “reforms” deny states the right to consider and create their own tort laws. In fact, 48 states have already enacted their own form of medical malpractice reform, and 14 states have held that caps on damages violated their State Constitutions. Enacting the MCAP Act would preempt every state law and dramatically shift the balance of federalism under the 10th Amendment. MCAP Act encompasses much more than medical malpractice. The MCAP Act applies to any “health-care liability claim” which is broadly defined. It admittedly applies to a number of health-care institutions traditionally outside the scope of medical malpractice such as nursing homes and long-term care facilities. As well, since it applies to any claim against health-care providers “regardless of the theory of liability,” it would apply to providers that commit intentional tort such as, assault, sexual battery, harassment and invasion of privacy. The PPACA addressed medical malpractice. The Administration and PPACA (Patient Protection and Affordable Care Act) have addressed malpractice reforms by recognizing that tort law changes must be done at the state level. PPACA created a demonstration grant program for states to enact “alternatives to current tort litigation.” Furthermore, President Obama has directed $25 million to HHS’s new Medical Liability Reform & Patient Safety Initiative. Secretary Sibelius recently testified before Congress that the alternatives under the program are “promising,” have proven to “greatly reduce litigation.” We know that this critical vote is the first of what will likely be many attempts by anti-civil justice lawmakers to restrict the state-based justice system and impose additional hardship on individuals injured or killed because of medical malpractice. AAJ will remain vigilant to thwart every attempt.

CAALA Connection Center

Connect with the CAALA community – Join a committee! Membership Committee CAALA Connection Center

Connect with fellow members and be part of the CAALA community through a committee. Current attorney members are welcome to volunteer and participate in CAALA’s major committees: Education, Membership, Government Relations, Public Relations, New Lawyers and the Women’s Caucus. These committees keep the wheels moving at CAALA and make great things happen for our membership. Get Connected! We welcome any amount of time you can contribute. Please e-mail the designated staff person for more information.

Education Committee Chair: Doug Silverstein; Vice Chair: Genie Harrison The Education Committee coordinates all MCLE programs for the Consumer Attorneys Association of Los Angeles, including the Annual Las Vegas Convention. The committee meets regularly to develop new and cutting-edge programs for the membership. Volunteers should be willing to devote time for substantive review and discussion of all CAALA educational programs, however, speaking spots are not guaranteed. The committee meets the third Thursday of the month from 5:00 to 6:00 p.m. You must be an attorney member of CAALA to join the committee. For more information, contact Cindy Cantu, Senior Director of Education and Events,

Public Relations Committee

Chair: Shawn McCann; Vice Chair: Elizabeth Hernandez Volunteer members devote a few hours a month to build and strengthen the association by participating in member outreach, recruitment and retention programs as well as development of in-person membership events and charitable activities, the mentor program and more. Membership Committee members are the liaisons between the Association and its new members, providing information and support. Attorney members are welcome to participate in the monthly committee meetings via conference call. For more information, contact Liz Hagan, Membership Manager,

Chair: Stuart Fraenkel; Vice Chair: Ronnivashti Whitehead CAALA’s Public Relations Committee engages in programs and projects that educate the public, the media and CAALA members about issues that are important to the Consumer Trial Bar. Programs include the CAALA Speakers Bureau, social media initiatives, an annual Media Education Seminar and a multi-faceted program that provides resource information to members and other attorneys regarding the L.A. Civil Courts. The Public Relations Committee meets in person and by telephone conference call. For more information, contact Stuart Zanville, Executive Director,

New Lawyers Committee

Women’s Caucus

Chair: Ibiere Seck; Vice Chair: Martin Aarons Attorney members who have been admitted to the practice of law for less than 10 years are invited to be part of CAALA’s New Lawyers Committee. The New Lawyers of CAALA meet monthly for roundtable programs, covering subjects specifically focused for newer members. The New Lawyers Committee is a great way to meet other new attorneys and increase your network in the legal community. For meeting dates and additional information, contact Liz Hagan, Membership Manager,

Led by Amy Solomon This members-only group provides support, resources and a forum for sharing ideas and concerns that affect women in the legal industry. Each Women’s Caucus event is an informal gathering of members for candid discussions you’ve been dying to have and now can! CAALA hosts complimentary Women’s Caucus meetings featuring different guest speakers. For meeting dates and additional information, contact Liz Hagan, Membership Manager,

Governmental Relations Group Chair: Bill Karns; Vice Chair: Kathryn Trepinski CAALA’s Government Relations Group provides a forum for consumer attorneys to learn about legislative and political issues, meet directly with local legislators and participate in the fight to protect the rights of consumers. Members of the Government Relations Group participate in all aspects of the political process from establishing relationships with new candidates to working on targeted political campaigns and maintaining relationships with local legislators. The Governmental Relations Group meets in person and by telephone conference call. For more information, contact Stuart Zanville, Executive Director, MAY 2013

The Advocate Magazine — 105

Advertiser’s Index Contents Index Advertiser’s ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 DiCaro Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .90 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . . .70 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .47 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . .94

Expert Witnesses - Technical & Damages (cont.) Forensis Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Philips, Fractor & Company, LLC . . . . . . . . . . . . . . . . .68 The TASA Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .77 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Farber, Patrick (Struct. Stlmts.) . . . . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .27 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Pensions Annuities and Settlements LLC . . . . . . . . . . .61 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Announcements and Career Opportunities Ringler & Associates – Michael Zea . . . . . . . . . . . . .32 CAALA Affiliate Membership . . . . . . . . . . . . . . . . . . .71 Summit Structured Settlements . . . . . . . . . . . . . . . . . . .64 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .75 The James Street Group (Structured Settlements) . . . .79 CAALA Vegas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Graphics/Presentations/Video Attorneys – Appeals C Visual Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .66 CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . .105 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Bronstein, Peter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Medivisuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .22 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . .46,64 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82-83 . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Insurance Programs Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . . .19 Lawyers Mutual Insurance Company . . . . . . . . . . . . .65 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . . .21 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . . .60 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Investigators Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . . .63 Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .97 Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . . .90 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .37 Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . . .49 Michels & Watkins . . . . . . . . . . . . . . .Inside Back Cover Panish Shea & Boyle . . . . . . . . . . . . . . . . . . .Back Cover Legal Marketing Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .38 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Pro Se Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Legal Nurse Consultants Vartazarian Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .20 Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101

Advertiser’s Index

Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . .96 Jonnell Agnew & Associates . . . . . . . . . . . . . . . . . . . .95 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . . .70

Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Legal Support Services USA Express Legal & Investigative Services . . . . . . . .62

Defense Medical Exam Observation Medical & Dental Service Providers Advantage Representatives . . . . . . . . . . . . . . . . . . . . .89 Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .53 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Glendale Surgery Center . . . . . . . . . . . . . . . . . . . . . .45 Expert Witnesses – Medical Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 American Medical Forensic Services . . . . . . . . . . . . .99 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Massihi, Allen, DPM . . . . . . . . . . . . . . . . . . . . . . . . . .28 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 North Valley Eye Medical Group . . . . . . . . . . . . . . . .44 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . . .51 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . . .26 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-13 Expert Witnesses - Technical & Damages Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Organizations Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68


106 — The Advocate Magazine

MAY 2013

Calendar Calendar

Consumer Attorneys


Consumer Attorneys Association of LA CAALA 800 West Sixth Street,#700 Consumer Attorneys A L A Los Angeles, CA 90017 CAALA (213) 487-1212 Consumer Attorneys A L A SSOCIATION OF







May 10, 2013 Making Better Trial Lawyers featuring Rick Friedman 8:00am - 12:15pm Beverly Wilshire Hotel 9500 Wilshire Blvd. Beverly Hills May 21, 2013 Attorney Member Mixer 6:00pm - 8:00pm El Torito Grill 15301 Ventura Blvd Sherman Oaks May 22, 2013 Using iPads for Trial Presentations 12:00pm - 1:00pm Online Webinar Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm May 2, June 6, July 11 Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm May 16, June 20, July 18 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm May 16, June 20, July 18 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm May 14, June 18, July 16 Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 May 23, 2013 State of the Court 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin July 25, 2013 How to spot a potential cross-over in your PI case 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin

CAALA Resource Center

CAALA’s multi-function conference center – Conference rooms available for members The Consumer Attorneys Association of Los Angeles is pleased to offer use of its state-of-the-art Multi-Function Conference Center for meetings, seminars and conferences at its Downtown Los Angeles headquarters. There is a large conference room available to rent, as well as a smaller conference room available for CAALA members to use at no charge. The small conference room accommodates up to 20 people around a permanent conference-room table. It’s the perfect size for client meetings, depositions or to wait for a jury verdict when you’re in Court downtown. A wireless Polycom speaker phone system is also available. The large 1,500 square-foot conference room offers flexible seating, presentation and lighting configurations and can accommodate up to 75 attendees in a board/classroom setting or 100 attendees in a theater-style setup. In addition, the large conference room offers the following advanced technical A/V equipment: • 10’ x 10’ Retractable Projection Screen • Ceiling-Mounted Overhead Projector

• 52” HD LCD Flat Screen Monitors (2) • Multiple Video Sources (Cable, DVD/CD, Computer) • Multiple Computer Presentation Jacks • Wi-Fi Internet Access • Wireless Polycom Speaker Phone System • Wireless Handheld Microphones • Built-in Sound System The daily rental rate for the large conference room is $400, 9 a.m. to 5 p.m. There is a $350 surcharge for room rentals after normal business hours and on weekends. A full-service kitchen with beverage service (coffee, tea, water) is offered with either conference room rental. The CAALA Office is located at 800 W. 6th Street (at Flower St.), Downtown Los Angeles. Valet parking is available in the building for $10 per hour, after 2 hours and 45 minutes $27.50 max; and $7 for vehicles entering after 4 p.m. Reduced-price lots are also available on Flower south of Seventh Street. To rent one of the conference rooms, call Martha Ruiz, CAALA Office Administrator at (213) 487-1212.

New CAALA Affiliate Vendors Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects. American Express Open 10850 Lee Vista Blvd., Suite 108 Orlando, FL 32829 (407) 438-4532 Contact: Carrie Lee E-mail: CATEGORY: Banking/Finance American Express business cards give you access to benefits and can help you save money, gain control over your business expenses and earn valuable rewards. California Imaging Network 6310 San Vicente Blvd. Los Angeles, CA 90048 (310) 289-8678 Contact: Ronald Grusd MD E-mail: CATEGORY: Radiology | Medical Experts | Surgery Centers Surgery Center. Diagnostic Imaging including MRI, CT, X-Rays, Ultrasound Neuro-diagnostic Imaging including NCV’s; EMG Sleep Apnea

Testing Psychological Evaluations SurgeriCentre California Attorney Lending 6400 Main Street, #120 Williamsville, NY 14221 (866) 522-0216 Contact: Lindsay Haller E-mail: CATEGORY: Litigation Financing Banking/Finance California Attorney Lending provides credit lines up to $5 million exclusively to plaintiffs’ attorneys based on the total value of their anticipated contingent fees. As the only law firm financing company exclusively endorsed by AAJ and The National Trial Lawyers, their 200+ years of combined litigation experience make them uniquely qualified to understand a litigator’s cases as well as the working capital challenges they provide.

Lien Resolution Services, LLC 3000 Town Center Drive, Suite 1800 Southfield, MI 48075 (248) 233-5042 Contact: Ryan Weiner E-mail: CATEGORY: Class Action/Claims Administration LRS is a plaintiff-oriented lien resolution firm designed to take the Medicare, Medi-Cal, and other insurance lien processes off of your hands. Spectrum MRI Imaging Center, Inc. 14365 Pipeline Ave Chino, CA 91710 (909) 591-5587 Contact: Isaac Riveroy E-mail: CATEGORY: Radiology State of the art medical imaging facility serving Southern California, specializing in spinal and mild traumatic brain injury cases.

MAY 2013

The Advocate Magazine — 107

From the President Lisa Maki

Consumer Attorneys Association of Los Angeles

CAALA Cares All members can give back to the community by volunteering this month Caring for the communities we serve is my passion and priority. This year we launch CAALA Cares, an all-member service program to connect and give back to our communities. By volunteering just two hours of your time during May, you will make a positive impact within your community. Please join me in our mission to serve and participate in the CAALA Cares service projects in May - together we can make a difference. — Lisa Maki, CAALA President

10:00 am – 12:00 pm Will Rogers State Beach 15800 Pacific Coast Highway (at the end of Temescal Canyon Road) Pacific Palisades Volunteer Cost: FREE

CAALA Cares supports the following service programs for May. Your participation in any of the projects will make a difference. Invite your family, friends and colleagues to join you. Choose one or more than one of these projects – it’s up to you! Visit each organization’s Web site for complete details including volunteer responsibilities, event-day details (parking, directions), required signed waivers and minimum age requirement. Contact Liz Hagan at CAALA, (213) 487-1212 or, with any questions.

ultimately protecting the ocean from pollution. Make a day of it and have some fun in the sun after the cleanup project. Join the cause by emailing to volunteer. Heal the Bay is a nonprofit environmental organization making Southern California coastal waters and watersheds, including Santa Monica Bay, safe, healthy and clean. Using science, education, community action and advocacy to pursue their mission.

EIF Revlon Run/Walk for Women

Join Team CAALA for a 3.5 mile run or walk to support the fight against women’s cancer. From start to finish you will be touched by the courage and beauty of fellow participants and supporters. It will be a day to remember! Visit our team page to learn more, JOIN or DONATE at goto/teamcaala. The nationally acclaimed Entertainment Industry Foundation Revlon Run/Walk for Women has touched the lives of millions of people through increased awareness, education, research, and diagnostic treatment services.

Saturday, May 11 Los Angeles Memorial Coliseum at Exposition Park 8:00 am: Opening Ceremony 8:45 am: Official start of Run / 9:00 am: Official start of Walk Volunteer Cost: $35 to participate as a runner or walker (on-site registration is $45)

Nothin’ But Sand Beach Cleanup Team CAALA supports Heal the Bay to protect what we love…our beaches. Spend two hours cleaning the beach and 108 — The Advocate Magazine

MAY 2013

Saturday, May 18

Food Drive Sort-A-Thon Project

Stop by the Los Angeles Regional Food Bank after work or Court to help organize food for thousands of people in your community. Volunteers inspect, sort, label and package donated food to help feed over 23,000 low-income individuals and families in Los Angeles County. Join the cause and register online at Registration instructions: You will need to scroll through the volunteer opportunities listed to locate the CAALA service project for May 30th. Password to register is: Gavel2013 (the password is case-sensitive; you must enter it exactly as it appears). Volunteers and donations have made it possible for The Los Angeles Regional Food Bank to fight hunger and give hope for the past 40 years. Their vision is that no one goes hungry in Los Angeles County.

Thursday, May 30 10:00 am – 12:00 pm 4:00 pm – 6:30 pm 1734 East 41st Street, Los Angeles Volunteer Cost: FREE


8-Figure Settlement Wrongful W rongful Death

7-Figure Verdict Verdict Brain Damage

7-Figure Arbitration A Award ward Misdiagnosis

7-Figure Verdict Verdict Spinal Cord Injury

7-Figure Settlement Birth Injury

7-Figure Settlement Baby Injury

7-Figure Settlement TTransplant ransplant



TRIAL LAWYER LAWYER OF THE YEAR CONSUMER ATTORNEYS ATTORNEYS ASSOCIATION ASSOCIATION OF LOS ANGELES “Michels & W Watkins atkins is one of the premier California Med Mal law firms. No stone is left unturned.”

- Michael Bidart, Shernoff Bidart Echeverria Bentley LLP “They increased the value of one of my cases by successfully defeating an arbitration clause. I’ve received over 7 figures in referral fees from Michels and Watkins.” Watkins.” - S. Z., Chicago, Illinois “When it comes to Med Mal, there is no one better. better. This winning team has impeccable trial skills, preparation and experts.” - Brian J. Panish, Panish Shea & Boyle LLP

“Thanks for my six figure referral fee. I didn’t didn’t think it was possible!” - G. K., Philadelphia 1 1 7 5 5 WIL SH IR E BL BLVD. VD. #1300

LOS ANGELES, CA 90025-1540

(310) 444-1200

www www.m .m

Advocate May 2013 Issue  

For 31 years, Advocate magazine has served attorneys who represent plaintiffs in Southern California.

Advocate May 2013 Issue  

For 31 years, Advocate magazine has served attorneys who represent plaintiffs in Southern California.