The Marin Lawyer March 2020

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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THE MARIN LAWYER March 2020 Editor Robert Rosborough Guest Editors Habib Bentaleb, Michael Chaput, Kristine Cirby, Sarah Léger, Matthew White Editorial Producer Kiersten Ross

2020 Officers President Susan Feder President Elect J. Timothy Nardell Secretary Scott Buell Treasurer Robert Rosborough Past President Charles Dresow 5 Year Past President Matthew White Board of Directors 2020 Directors Marie Barnes Gregory Brockbank Chelsea Heaney Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah Léger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju Executive Director Mee Mee Wong

Communications Director Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2020. All Rights Reserved.

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CONTENTS P6

Editor’s Introduction: Running Your Law Practice

ROBERT ROSBOROUGH

P9

President’s Message: Finding your Balance (When It Feels Like You're Spinning Out of Control)

SUSAN FEDER

P12

Using Social Media Without Losing Your Bar License: Ten Mistakes to Avoid

MATT WHITE

P16

Choosing the Right Insurance Coverage for Your Practice: A Primer

ANDREA CHRISTENSEN

P21

Isn’t Probate Inherently About Change?

JUDGE KELLY V. SIMMONS

P24

Find, Land and Keep Your Ideal Clients

LAEL STURM

P27

Building Your Practice and Keeping Your Balance

JOHN M. FEDER

P31

How to Get from Marin to Maupiti: Tips for Closing a Solo Practice

WANDEN TREANOR

P34

2020 Installation Gala & Scholarship Fundraiser

THE MARIN LAWYER

P38

Meet the MCBA 2019-2020 Legal Scholars

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CONTENTS P41

Utilizing Niche-Specific Video to Streamline Your Practice and Bring in New Clients

MARY CARY, FOUNDER, GOMEDIA MARKETING

P46

Resources at the Marin County Law Library

KRISTINE CIRBY

P49

Five Things You Can Do Right Now to Make Your Website Not Suck

LANEY SILVERMAN | CCO | THE DESIGN BOUTIQUE, INC.

P51

Past President Profile: Wanden Treanor

THE MARIN LAWYER

P54

Thinking About Hiring an Employee? Read This First: Tips for Avoiding Common Liability Pitfalls SARAH N. LÉGER, ESQ.

P59

Food: Is It Stressing You Out? Learn How to Use It to Mitigate Stress Instead

BARBARA SOBEL, MS, CNS, LDN

P62

Nonprofit Profile: The iRest Institute: Powerful Meditation Made Easy

ROBERT ROSBOROUGH

P65

Marketing and Managing Your Digital Brand Through Search Engine Optimization…or How to Talk Shop with Your Web Developer and not Look Like an Idiot MIKE CHAPUT

P70

The Brockbank Political Report: Marin’s Local Election Results, Legislative and Congressional Races, and Of Course the Presidential Race GREG BROCKBANK

P76 P79

Upcoming Events New Members

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EDITOR’S FAIRINTRODUCTION HOUSING Running Your Law Practice ROBERT ROSBOROUGH

W

elcome to the Practice Management

MCBA Past President, Human Rights Com-

issue of the Marin Lawyer. Our March issue is the first issue of our quarterly

mission President, personal injury lawyer and man-about-town Matt White has some point-

digital magazine with all new content. And it is the first issue where we have sought out all

ers about how. If you’ve been meaning to update your website but haven’t made the

of the content on a theme, in this case, arti-

time, branding expert Laney Silverman

cles to help you run a small firm or solo prac-

has five easy things to fix if you’re not doing

tice.

them already. If you want to get a little more advanced, you could work on improving your

Business Basics Most of us in a small or solo firm need help

SEO. Don’t know what SEO is? Neither did criminal defense attorney and MCBA board

making it work and often this means hiring someone. Employment lawyer and MCBA

member Mike Chaput. He offers lots of great advice as he guides you through his learning

board member Sarah Léger makes it easy for you with some great tips for doing it right, in-

curve.

cluding a primer on properly classifying an employee as exempt or non-exempt. And in-

Marketing We are lucky to have the expertise of rock

surance broker extraordinaire Andrea Christensen gives us a helpful overview of the

star (literally) legal marketer, videographer and website designer Mary Cary, who has a

most common insurance issues you’ll face and how to decide what you need. Family lawyer

wonderful primer about using video, whether that is just to have on your website or to be a

and MCBA board member Kris Cirby lets you

little more adventurous and run a Facebook

know that the law library can be helpful with

ad. Digital marketing guru Lael Sturm shares

some of the basics, like a conference room that seats 20.

his firm’s technique for finding your ideal clients. He is generously sharing their workbook

Online Presence As more and more small businesses use social media as part of their business, law firms have an extra burden: making sure they do not violate the Rules of Professional Conduct.

for free with MCBA members.

Wellness Most people find being a lawyer stressful.

Running a practice adds its own unique stress.

Taking care of yourself is part of taking care

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of your practice, not to mention being a pret-

the probate court and some advice for attor-

ty good idea anyway. An often-overlooked component of that is your diet. Diet affects

neys. And if you want to get some insight into the local election results or the remarkably

not just your weight but your stress response and overall health. Expert nutritionist Barba-

swift transformation of the Democratic primary, be sure to check out Greg Brockbank’s

ra Sobel gives you some eminently practical advice for improving your diet. Personal inju-

political column.

ry lawyer and MCBA member John Feder has some wise words—his own and a few other

Before you read any of these articles, please take a look at our impressive MCBA Legal

folks’—about how not to let your practice

Scholarship Fund recipients and make sure

overwhelm your life, as does a certain relative

you scroll down and use the “Donate" button

of his, mediator and MCBA President Sue Feder in her President’s Message. And your

to support future remarkable local lawyers.

Editor profiles the nonprofit iRest Institute in downtown San Rafael. I’m a certified teacher

I would like to thank all of our authors for their contributions. And a big thank you to

of this meditation technique, which has done wonders to change lives around the country

our guest editing team, many of whom did double duty as authors: Habib Bentaleb,

and even the world, particularly the lives of soldiers and veterans. If a medic in the moun-

Mike Chaput, Kris Cirby, Sarah Léger and Matt White. We hope you find this issue

tains of Afghanistan finds it helpful, imagine

of the Marin Lawyer valuable and are able to

what it can do for you!

put some of its advice to good use. Please let us know! If you see any of us, let us know

Packing Up Do you have a succession plan for your practice? What does retirement look like for you?

What’s involved when you stop practicing?

MCBA Past President, adventurer and new retiree Wanden Treanor walks you through what you need to think about and do.

We also profile Wanden in this issue. Read about her childhood observing deposition prep! And all probate and estate attorneys will want to be sure not to miss our Judge’s Corner. Judge Kelly V. Simmons gives a candid account of the changes in

what you found useful or what you didn’t. Our next issue is out in June with an environmental theme. Watch for it (or contribute if you have an idea!)

View this article at Marinbar.org Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE

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PRESIDENT’S MESSAGE FAIR HOUSING Finding your Balance (When It Feels Like You're Spinning Out of Control) SUSAN FEDER

D

eadlines. Pressure. Demanding clients.

tion day progressed, I forgot to eat, take any

Difficult opponents. These are only a few of the factors that account for the high

break, or even simply walk to the restroom.

My mind was in hyperdrive strategizing on

level of stress among lawyers. As a profession, we suffer from some of the highest lev-

how to convey the information I just learned from one room to the opposing party in the

els of substance abuse and stress-related ailments in the working population. This

other room. I could feel my heart rate rising and my hands sweating. This was not helpful

month’s Marin Lawyer focuses on small practice management and offers tips and advice

to me or to my clients. I realized I needed to develop a strategy to deal with these stress-

for keeping your business running effectively.

Part of that effectiveness is managing your

ors. What I developed are simple changes: take five-minute breaks every two hours; eat

own stress and finding your balance in a high-

lunch; have a cup of tea and honey while

pressure environment.

clearing my mind with a few moments of si-

Our February luncheon speaker Lita Abella

lence; go for a mini-walk around the office. I find myself feeling renewed even after these

offered wellness strategies for the legal profession. Of course, each of us responds differ-

minimal accommodations.

ently to specific strategies. Hopefully, you

When I am not mediating, but am preparing in

learned some that will work for you. I would like to share the strategies that work best for

my office, my favorite de-stressor is being in nature. The days that I am glued to my desk

me in the hope that one of them might help

without at least 30 minutes outside among

you too.

trees and anything green are days when I feel

On days when I am mediating, I find that I in-

the most stressed and unsettled. While scheduled exercise is very beneficial, some-

ternalize the stress that fills the parties’ rooms. Initially, I thought that being a mediator looked easy. How hard could it be to listen attentively, validate a litigant’s emotions, and guide a negotiation? The answer, I learned quickly, is that it’s very hard! As the media-

times we just don’t have the time. Not to mention that the environment in a gym is not as therapeutic as being in nature. For me, even a 15-minute brisk walk outside can work wonders in relieving fatigue and stress. Rather than feeling guilty about not being able

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to devote the time you would like to physical

hope that sharing will lead to better health

activity, take whatever time you can to break up your daily routine.

and wellness for all of us. I wish you a healthy and balanced month!

We are so incredibly lucky to live and/or work in Marin County, where opportunities to connect with nature abound. I recently learned from one of our colleagues who works in Sausalito that she takes advantage of the Sea Trek Kayak rental near her office to go

kayaking on the Bay before or after her workday. Many unique and fun opportunities such as these exist in Marin. We just have to do a little research, advance planning and make a commitment to ourselves to follow through.

Another de-stressor for me is music. When I am preparing for a case, I often listen to classical music, which I find to be stimulating to the brain and soothing to the psyche. I can physically feel my heart rate slow in response to a violin or piano concerto.

We all lead busy lives and are constantly trying to balance a stressful job, family commitments, and outside activities. Sure, a long vacation in Bali would be restorative, but that’s not always realistic. Rather than relying on a major getaway, I try to incorporate minirenewals into my weekly, if not daily, routine.

For me, the majesty of the mountains, the calmness of the water, and the smells and sounds of nature all provide the small boost of serenity that help keep my stress in check.

I hope you find some wellness strategies that speak to you and I encourage you to start a

conversation about them with a colleague. I

View this article at Marinbar.org Susan has been a full-time mediator since 2010, and is on the panel of Judicate West statewide. She uses insight and intuition to bring a fresh and creative approach to reaching settlement. Before becoming a mediator, Susan was a business litigator with a national law firm and practiced in house as litigation counsel for Bank of America. Susan’s mediation practice covers a wide variety of cases, including tort, employment, real estate matters and commercial litigation. When negotiating a settlement, Susan focuses on uncovering the issues fueling the dispute, and redirecting the parties towards resolution and finality. Susan is the MCBA President for 2020.

EMAIL | WEBSITE

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SOCIAL MEDIA FAIR HOUSING Using Social Media Without Losing Your Bar License: Ten Mistakes to Avoid MATT WHITE

F

ormal rules of professional conduct have not caught up with the social media revo-

ty with “social media” and its uses. We’re talking about internet sites like Facebook, Twit-

lution, or the evolving ways it affects our practice. That puts you, the reader, in a deli-

ter, YouTube, Instagram, Snapchat and the like. If you want to learn more, check

cate situation. How can you best navigate this

out social media on Wikipedia.1

new world without running afoul of ethical rules, or without ending up on the wrong side of a lawsuit? What are you doing wrong today that may cause you trouble tomorrow?

Don’t be lulled into a false sense of security by your own demographic circle, which may

involve a limited use of social media. Facebook alone has 220 million users in the United States, and 2.5 billion users around the world. If you aren’t on Facebook, you are in the minority.

Your writer assumes you have some familiari-

Here are ten issues to stay on top of as you maneuver through your day: 1. You must use social media to research adverse clients and witnesses.

There’s a ton of information out there about

everyone involved in your case. To be a “competent” attorney, as you are required to be,2 you cannot ignore relevant, important, and easily-obtained evidence. Note that you may also have an obligation to advise your own clients that what they post online may be available to adversaries.

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Query whether advising a client to take down

The rules on advertising and solicitation are

a harmful post is advising spoliation of evidence? Many authorities say it is.3

complicated, but here are the basics: You have a free speech right to blog about legal

2. You must not use social media to research

issues or, for that matter, almost anything else. But if it is on your firm’s web page, or

represented parties.

Actually, this is an exaggeration. What you should not do is check out their posts, unless you know your presence cannot be detected.

LinkedIn, for example, can tell you who looked at your site. This is good for marketing purposes, but may run afoul of California Rule of Professional Conduct (RPC) 4.2. That rule prohibits communications—direct or indi-

somewhere similar, it may move from free speech to advertising (“solicitation”), which is much more strictly limited. For example, advertising must not contain any false or misleading information or guarantee a result, and must identify itself as a solicitation. Additional details and a more specific description of “solicitation” are found in RPC 7.1–7.4.

To avoid this type of strict regulation, make

rect—with represented

sure any blogging is separate

parties. It is likely a violation of this rule to leave

from your more blatant marketing communications.5

your virtual business card on an adverse party’s vir-

4. Be careful revealing pri-

tual doorstep with a virtual message: “I’ve got my

vate client information, even in response to criticism.

eye on you.”

You might think that, if a cli-

It seems a universal view that sending a “friend request” to a represent-

ent trashes you on Yelp or other online forum, that the client has waived

ed party violates Rule 4.2, even if you have someone else do it on your behalf. So don’t.

the attorney-client privilege, and that you have a right to defend yourself and your rep-

What if you are already social-mediaconnected with someone who, during the course of your practice, becomes an adverse represented party? Do you have to unfriend them?4 3. Your posts may be considered “advertisements.”

resentation by pointing out, say, that the client is evil. If so, you might be wrong, at least according to Ethics Opinion 1032 of the New York Bar Association (2014). The NYBA opined that waiver does not occur unless the client has instituted formal proceedings against the lawyer; disclosure of a client’s private information or communications, even in response to a negative Yelp review, would

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violate the lawyer’s ethical obligations. Be

careful.

Maybe. Maybe not.

The Florida Supreme Court, by a 4-3 vote,

5. You cannot delegate ultimate responsibility for social media.

You know how it’s no excuse to say that a calendaring or other error is the fault of your staff?Well, the same is true for social media.

Just because you pay somebody to write or manage your blog, web site, or other posting, does not relieve you of your obligation to ensure that it complies with ethical rules and state law. RPC 5.3.

6. Be extra careful during jury trial.

The consensus seems to be that using social media to research potential jurors is fine, so long as you have set your search to leave no 6

footprints. Again, no friend requests.

But resist the urge to blog or post stories about your upcoming or ongoing jury trials.

Although jurors are told rather forcefully not

held that a Facebook friendship is not a categorical “close or intimate relationship” that would require disqualification, as reported by the ABA Journal in May 2019. However, this is not a universal rule, at least not yet.

See, Singh, Friend Request Denied: Judicial Ethics and Social Media, Journal of Law, Technolo-

gy & The Internet (Vol. 7, 2016). Many writers opine that judges should not have social media links with lawyers who practice in their courts.

At the very least, if you are linked on social media with a judge before whom you appear, do not post anything about your cases. That would be a clearly improper ex parte communication.

8. Don’t assume that a social media post is admissible.

to do any internet research on the case, they may anyway. It would obviously be unethical

Many litigators find that the internet is a fabulous tool. In the old days, we hired drones to

for you to be posting stories about the case when you know it may be read by a juror. RPC

fly overhead and photograph the accident

3.6(a).

7. Hesitate to “friend” a judge and if you are friends on social media, do not post about any case before that judge.

Hypothetical: You appear before Judge X, your Facebook friend. You win. Adverse attorney moves for new trial because this rela-

tionship was not disclosed. Result?

scene from the sky. No more; Google Maps does that for us, and for free.

But is a photograph from Google Maps admissible? Is a Facebook post? Is an email?

Authenticating a map or a social media post is no easy task. I doubt that Facebook is so authoritative that its content is proper for judicial notice.7 Who can testify that a photo or post is taken and maintained in the usual

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course of business, per Evidence Code section

1271? If a witness denies posting the image or statement, how do you use it for impeachment? The point: You may have dynamite evidence, but give careful thought to laying a necessary foundation. For more on this, check out Jackson, Social Media Evidence: Admissibil-

no obligation to tell anyone anything. What would you like to do?”

4 I don’t know either. Go ask your mother. Seems to me that “unfriending” may be an indirect communication, too.

5 State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2016-196.

6 Weltge, McKenzie-Harris, The minefield of social media and legal ethics: How to provide competent representation and avoid the pitfalls of modern technology, American Bar Association, Section of Labor and Employment Law (March 2017), at 25-27.

7 See, 2016 presidential election.

8 This line available gratis to any rap artist who wants it.

ity Issues, Daily Journal (Dec. 23, 2016).

9. Understand all this!

As social media envelopes everything we say and do, it is essential that you learn and follow the rules of this modern age. As made explicit

Matt White is a personal injury litigator with Monty White LLP in its San Rafael office and a mediator with Resolution Remedies. He was the MCBA President in 2004 and is the 5Year Past President for 2020. You can reach him at 415-226-4040 . EMAIL | WEBSITE

by Comment 8 to RPC 1.1: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….” It may be cool to be old school, but you’re a fool to ignore this rule.8 10.Finally: Everything above is subject to change.

These are some of the many concerns that have reared their ugly heads—so far. Our modern world is spinning faster and faster.

New media, new technology, and new uses are emerging as we speak. And with them will come new issues, new challenges, and new lurking disasters. Stay current!

View this article at Marinbar.org 1

Which is, perhaps, another form of social media.

California Rules of Professional Conduct, Rule 1.1.

3 You will recall from law school that you are allowed to tell a client, in effect, “Now, if you give me the murder weapon, I will be required to turn it over to the police. If it happens to fall into the river and disappear, I have 2

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INSURANCE FAIR HOUSING Choosing the Right Insurance Coverage for Your Practice: A Primer ANDREA CHRISTENSEN

H

ave you thought about

or even decided to start your own solo or small prac-

tice? Congratulations! My clients always love the question that follows: Have you thought about all of the insurance issues you might face?

Will you hire a paralegal or an assistant? Lease office space?

Obtain a loan or lease for office furniture or equipment?

Each of these actions has insurance implications, as do many of the things you’ll do and there are many, many lines of insurance you can purchase. I’ll focus here on the types of insurance I recommend all small practice owners purchase in order to provide at least a minimum

Photo by MOOSE

General liability and property insurance are commonly written as one policy, called a package or business owners policy (BOP). For businesses located in a leased commercial building, a business owners policy covers:

level of protection. The two most common are

Liability: Premises liability insurance, written

a Business Owners policy and Professional

in increments of $1,000,000.

Liability policy, with the additional option of an umbrella or excess liability policy depend-

Loss of Business Income: With this coverage,

ing on your specific needs.

you may be reimbursed for the rent and often other continuing expenses you pay when you

BUSINESS OWNERS POLICY

cannot occupy your office in the event of a covered claim. The loss must occur on your

This is the insurance that can cover your of-

premises and must be caused by an insured

fice contents and premises in case of injury.

peril.

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This coverage is typically written for only 12

down to the staples and paperclips!). In the

months from the date of loss but you can purchase it for a longer term, which is what I rec-

event of a covered claim, your insurance carrier is going to ask you for a list of what was

ommend.

damaged and it is up to you to remember everything in your office in exact detail so that

Property: The property portion can insure all of the contents in your office, including your

you are compensated correctly for the loss.

phone system or office equipment and supplies, as well as tenant improvements if you

As to your liability limit, most policies start with a limit of $1,000,000 and some offer

have any.

$2,000,000. I recommend you purchase the maximum limit available and if you need a

The premiums on the property section of a policy are inexpensive, so always ask what it would cost to buy a higher limit than you

higher limit, purchase an excess or umbrella liability policy (see below).

think you may need. Most people underestimate this limit and could have been insured

When making decisions, it is important to work with an insurance broker who asks to

for the correct limit for as little as $20 more annually.

read your lease(s) so that your insurance meets all of your lease requirements.

What Can I Expect to Pay for a Business

PROFESSIONAL LIABILITY

Owners Policy?

This is your malpractice coverage, usually

Annual premiums for a business owners poli-

written in increments of $1,000,000. It is of-

cy can be as low as $500, based on the amounts of coverage you choose. As these

ten available through professional organizations as a group policy for a discounted premi-

policies typically contain a lot of “extras” in the coverage options, you should review

um. Whether you purchase this coverage from a broker or through a program, the poli-

them carefully; increases to those limits are typically very inexpensive.

cies are written on a “claims made” policy form. Claims made means that if your current

How Do I Choose the Limits of Coverage?

policy covers a particular claim made against you during the policy period, it does so even

In deciding the amount of business property

though the work was done in a prior year or years. These policies have “retroactive dates,”

coverage you feel is necessary, think carefully about what it would cost to go out and buy, new, everything in your office (picture the en-

which reflect how far back your current policy covers you for your past work. In general,

tire building wiped out by fire). It is a good idea to make and retain, off premises, a com-

retroactive dates will only extend back as far as the earliest year from which you have had

plete inventory of your office contents (right

continuous liability coverage up to the

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current policy. Thus you must keep a policy in

vide excess coverage over a commercial auto-

continuous effect in order to have coverage applicable to potential claims for errors or

mobile policy, professional liability policy and/or the employers liability portion of a

omissions that may arise long after you perform the work.

workers compensation policy, to name a few.

AUTOMOBILE LIABILITY While you may wonder why I address this in a business insurance article since most people already have their car insured, I caution you to check your current automobile insurance to make sure it covers how you are now using your vehicle, especially if you are using it in

WHAT IF I HIRE EMPLOYEES? When you have employees, you move into areas such as: Worker’s Compensation Insurance: It covers employee injuries occurring on the job and is mandatory in California, with premiums based upon payroll and rates that vary widely

the course of your business. Personal and commercial auto policies vary greatly in what

by insurance carrier (only a portion of the rates are set by the state).

they cover, which means the only way to know what’s covered—and what additional

Employee Benefits: Many employee benefits

coverage you might need—is to read your current policy and ask your broker to interpret it

sion, etc. and choosing those is beyond the

for you if you have questions.

UMBRELLA OR EXCESS LIABILITY This is an “excess” liability policy that can provide coverage in the event the primary or basic policies’ (such as your business owners policy) liability limits are exhausted in the event of a covered claim. I recommend you purchase a limit adequate to protect your assets and even your future earnings and ask for professional guidance on the limit you should carry from all of your financial and business advisors. You want this coverage available to you to potentially pay a settlement or judgment for which you are liable in order to avoid having to sell your assets to

pay for it. This policy can also potentially pro-

are actually insurance—medical, dental, viscope of this article.

Employee Benefits Liability: Many people do not realize that insurance can provide coverage for errors or omissions in the administration of an employee benefit program.

Employment Practices Liability Insurance (EPLI): It can cover suits brought by employ-

ees such as for harassment, discrimination or hostile work environment and wage and hour claims. These policies are not standardized, meaning they vary widely from insurance carrier to insurance carrier as to the limits offered, coverage forms, retentions, limitations and exclusions. These are written on a “claims made” policy form. As discussed above under professional liability, this makes carrying

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continuous coverage imperative. The poli-

cies also contain “retentions,” which are different from deductibles. While deductibles are usually subtracted from a claim payment made to you, you typically pay a retention to the insurance carrier when they begin to defend a claim and some carriers will not even begin to defend a claim until the retention is paid. As retentions usually start at $2,500 or more, it is important for a small business to understand how these typically work.

Small Business Insurance Issues Specific to California Businesses with Employees An article I recently read in Insurance Business magazine noted that California businesses can be 40% more likely than businesses in

How Do I Minimize My Risk in This Area?

•

ployee handbook and others who can guide you in properly tracking your em-

other states to be sued by their employees for discrimination, harassment or unfair employ-

ployee hours, overtime, breaks, lunches and vacations. Be sure your payroll service

ment practices. One of the areas of suits or demands is called “wage and hour claims.”

Most EPLI policies do not cover wage and hour claims. They may provide for some limited defense in that area, usually as a “sub limit,” but they do not pay for the actual damages or fines. For example, a policy may have a $100,000 sub limit for defense only of a wage and hour claim. After payment of the retention, the insurance carrier may offer to defend the claim with reservation of rights and pay for defense up to the sub limit. The settlement, which may include paying the employee for unpaid overtime, fines and the employee’s attorney fees, will have to be paid by the employer out of pocket.

Work with an expert to write your em-

uses accurate records when preparing your payroll.

•

When you purchase an EPLI policy, look for an insurance carrier that offers free risk management resources that will assist you in hiring, record keeping, harassment training and basic advice on resolving employee issues. Ask if the coverage includes independent contractors or extends to third-party claims (picture a delivery person making unwanted advances to your employees). Read the quote and ask questions so you understand what you are purchasing. Then, when your policy arrives, read it!

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How Can I Decide What Insurance I Need?

rect insurance products for your business and

There are many other coverages available to

avoid surprises if you do have a claim. And finally, perhaps above all, read your policies and

business owners than are addressed here. As a small business owner myself, I am aware

ask for clarification if you don’t understand how the coverages apply.

that one of the considerations in what insurance you purchase is affordability. I encour-

View this article at Marinbar.org

age you to obtain quotes for all of the types of insurance that are available to or offered to you by your insurance broker, then decide what is most important to protect, and what you can reasonably afford. To do so, I strongly recommend you work with an insurance broker you can build a relationship with. You should feel comfortable asking all the questions you want to ask and get clear, timely answers. The better the communication, the

A native of Marin county and resident of Sonoma county for nearly 40 years, Andrea has been an independent insurance broker her entire professional career. She has spoken on the topic of insurance for various professional organizations and at Santa Rosa Junior College, and has served on a variety of boards and non-profit entities. Andrea is passionate about helping small businesses and nonprofit organizations with their insurance needs. Her business, Allstar West Insurance, located in Petaluma, provides personal and commercial insurance for both individuals and businesses. 415-883-5100 x 207 EMAIL

more likely it is that you will purchase the cor-

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

20

JUDGE’S CORNER FAIR HOUSING Isn’t Probate Inherently About Change?

JUDGE KELLY V. SIMMONS

“

If you want to make enemies, try to

change something.”

— Woodrow Wilson In 2017, I was assigned to preside over the Probate Department of the Marin County Superior Court. Since I had never practiced probate law as an attorney, had no will or trust myself, and had no idea who or what a probate examiner was, I knew that this could be “interesting.” The first year had its ups and downs, culminating with my first probate trial lasting several weeks, involving five attor-

neys, charitable trusts, and millions in requested attorney fees. That experience provided many “teachable moments,” some more…let’s say instructive than others. (Did you know that both sides can appeal the same decision???)

“Change is hardest at the beginning, messiest in the middle and best at the end.”

— Robin S. Sharma Around the end of 2018 or the beginning of 2019, I started to gain traction and confidence in my new role as the probate court judge. It seemed to me that the attorneys who practiced in the probate court and I had successfully made it through that initial transition stage and were now “in the groove.”

However, said groove was interrupted in mid-

2019 when Dean Ross, our long-time probate examiner, announced his retirement and a new transition began.

In August 2019, the court hired Trudy Verzosa as our new probate examiner. Trudy had been a probate examiner in San Francisco for 16 years and brought great experience with her. On her first day in the office, however, I introduced her to one of the local probate attorneys, who told her, “We do things differently here. We are much less formal than San Francisco.” I should have known at that point that this new transition was going to be challenging.

“Change is not a four-letter word...but often your reaction to it is!”

—Jeffrey Gitomer I have since heard polite grumblings about how the probate examiner is making things

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21

more difficult for the parties, or that petitions

The Court then reviews the file and either

are being rejected for “minor errors,” much to the chagrin of everyone involved. In light of

adopts the probate examiner’s recommendation, modifies it, or rejects it altogether. No

these concerns, I thought it might be a good

tentative rulings are posted until after both

idea to explain the review process each file

the probate examiner and the judge have re-

goes through prior to posting the tentative

viewed the file. So…technically, if you have

rulings on Friday afternoons. Bear in mind

been frustrated with the probate examiner’s

that both the probate examiner and yours

notes, your frustrations might be a tad bit

truly review each file as part of that process.

misplaced. The good news is that you can ad-

First, let’s not forget that the job of the probate examiner is to review all documents related to decedents' estates, conservatorships, and guardianships for procedural correctness (and substantive completeness) before they are heard by the Court. The probate examiner is required to advise the parties of any defects in the documents that have been filed

vise the Court that you wish to contest the tentative ruling, inform all interested parties of your appearance, and talk to me about your concerns. Not only do Trudy and I want to make sure that the filings are done correctly, but we also want to have a great working relationship with our legal partners.

“Change is inevitable – except from a vend-

and to recommend appropriate changes to

ing machine.”

the filings. Each week, the probate examiner

— Robert C. Gallagher

reviews the filings for the upcoming week’s calendar. Once done, she brings any proce-

Historically, I have found that it is uncommon

dural issues to the attention of the Court, along with a recommended process for mov-

for attorneys to appear in court to contest tentative rulings on the basis of technical vio-

ing forward.

lations. Instead, the attorneys do their best to take care of any noted pleading defects and then come back to court on another day. I respect that approach and encourage you to continue to take it. If, however, you feel that the court’s tentative ruling is too onerous or not supported by the various code sections or case law cited, please follow the procedure and come to see me on my Monday calendar. I would be happy to discuss whatever issues you may have and to try to find a path forward.

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There are a few common issues that might be

worthy of a small reminder: 1. Please make sure that you have filed all

your proofs of service and noticed all those people required to be noticed. (The new Judicial Council forms should help make this easier.)

2. Please do not file your papers after the

deadlines in the local rules.

3. Please do not file an ex parte request if

there is not an emergency.

4. Please provide authority for what you are

seeking.

The probate department has been through

quickly, efficiently and amicably.

Speaking of transitions, this month our probate examiner and I will be working on updating our local rules (which have not been updated in years). Please keep an eye out for the draft proposal in July and provide your feedback.

And finally, just remember:

“A kick in the ass is still a step forward.”

— Trudy Verzosa View this article at Marinbar.org Judge Kelly V. Simmons was appointed to the bench in 2005. She earned her bachelor's degree from San Diego State University and her law degree from Pepperdine Law School.

quite a bit of transition over the last few years. I am sure there are more transitions to come. However, I am certain that, with your help, we can get through these transitions

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23

PROSPECTING FAIR HOUSING Find, Land and Keep Your Ideal Clients LAEL STURM

T

HE GOOD AND THE BAD If you have been practicing law for any

time at all, you know the difference between a good client and a bad client. Good clients

will enrich your life, get you excited about doing the work and drive you to be your best.

you see their name on your phone or in your email inbox. One you dream about creative solutions for. Not obsessing over, just thinking about when you are relaxed. Ideas pop into your head for how you can help them and how you can add value for them.

Bad clients will drain your energy. You will

Think about what that client looks like,

dread hearing from them. You will ask yourself if the fee is worth the torture. How much

sounds like, feels like.

is your happiness worth? Identifying, winning and keeping those great clients—ideal clients—and weeding out the worst ones is the key to success, happiness and growth. Do you have a system to figure out who’s who or are you working with anyone who walks in the door?

•

Are they at a particular stage of their life?

Perhaps they are nearing retirement, are recently married or divorced, or are a new parent.

•

Are they ambitious or in need of motivation?

•

Are you helping them overcome a specific type of challenge?

As a marketing agency, our client relation-

•

Are they desperate or are they relaxed?

ships are similar to those developed by a law firm. We develop deep, ongoing connections

•

Do they have lots of money or very little

with our clients. It can be like a marriage in some ways so it pays to work with clients we

money?

• Are they near you geographically or somewhere you’ve never even been?

Are they young, middle aged or older?

like—and clients who like us. We have a process, refined over time, to help focus our ef-

•

forts on ideal clients while preventing less ideal, and worse, prospects from getting

These are all characteristics of your ideal client. This is not discriminatory (and should

through.

never be): You are creating a composite, in

DEVELOP A PROFILE

your head, to help you focus. Think about those clients and start making some mental

Think about a specific client you really enjoy

notes about what aspects set them apart.

What's different about them from the rest of

working with, one where you light up when

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24

your clients? Not just from the clients you

clients, is our Ideal Client Workbook. (I have

can't stand but from your average, everyday clients—who are the clients you really, truly

set up a download page for Marin Lawyer readers to get their own free copies.) This ex-

love to work with?

tensive questionnaire helps us identify our ideal clients. We do this on a macro, big-

IT’S A TWO-WAY STREET It is important to remember in thinking about your ideal clients that this is a two-way street.

You may not be ideal for every prospective client. Some prospects are going to meet you in person or speak to you on the phone, hear what you have to offer and say “no.” That's okay. You don't need to win every deal. You only need to win the ideal clients and ideal clients are ideal because they recognize that you are the best person for the job. You solve their problem in a way that other attorneys do not.

BUILD OUT YOUR PROFILE AND KEEP IT UP TO DATE When you set out on a journey it is helpful to have a destination in mind. That is especially important if your goal is to work with ideal cli-

picture level for the whole firm so we get a broad picture. Then we go through it again on a product-by-product basis and look at it on a very granular level. An ideal client for one

product or service may not be the same as an ideal client for another product or service.

The same may be true in your practice, especially if you practice in multiple areas or offer more than one service. Consider your practice and come up with an ideal client profile for every distinct offering.

The more granular and specific you can get in

terms of what ideal means for your firm, the more successful you will be landing those ideal clients and keeping them. A word of warning: business is constantly changing. You need to refine your ideal client profile on a regular basis. You cannot set it and forget it. My team

ents. You need to identify and locate your ide-

reviews “ideal” quarterly. Some members within the team refer back to it even more of-

al clients. The tool we use, and share with our

ten than that. I know clients and other shops

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25

we are affiliated with that do the ideal client

This next step might seem counterintuitive

worksheet once a month. You should plan to do this exercise at least twice a year.

but it is essential if you want to make room for those ideal clients you want to work with:

CREATE A ROADMAP

Fire your bad clients. They are wasting your time. They are wasting your energy. And

Now that you know what ideal means for your firm, you should start thinking about how to attract those clients. If your ideal client is your destination, you need to draw a

map that charts how you will get there. One way is to use content—blog posts, social media, newsletters, video, case studies, free downloads—to set yourself apart from the competition and publicly establish an area of expertise. Ideal clients will respond to that content by engaging with you. Less ideal clients will be turned off by that content and, as an added bonus, will not waste your time with a phone call. It takes time and money to execute this strategy but it will save you time and make you money in the long term. More on content marketing as a way to grow your practice in a future article. I promise.

frankly, they are taking up space in your client roster that could be better filled with ideal clients. So I am challenging you: Right now, before you do anything else, write down the name of one client that you will fire today and go do it. No dinner until you fire one client.

Seriously.

View this article at Marinbar.org Lael Sturm is the founder and managing director of LPSS Digital Marketing. Lael and his team support law firms and others in the use of digital channels to deliver sustainable revenue growth. You can sign up for his Ideal Client webinar to take a deeper dive into the techniques and tools in this article on the same page for Marin Lawyer readers where you download the Ideal Client Workbook. Lael lives in San Francisco, earned his MBA from Columbia Business School and usually rides his bike to work. WEBSITE

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26

BUILDING PRACTICE FAIRYOUR HOUSING Building Your Practice and Keeping Your Balance JOHN M. FEDER

I

t’s difficult for many lawyers, especially

sure you do a least one thing on that list every

young lawyers, to figure out how to bal-

day. Stephen Covey, one of today’s best-

ance life and practice. It is easier to talk about

known productivity gurus (The Seven Habits of

how to build a law practice than it is keep a

Highly Effective People), reminds us, “The key is

balanced life. What follows is good advice I’ve

not to prioritize what’s on your schedule, but

come across or learned the hard way for doing both at the same time.

to schedule your priorities.” This requires that we think carefully about what is part of our

TAKE TIME TO LIVE WITH INTENTION Some people have decided they will leave time for family and friends when they have retired. But if you don’t approach life in a balanced way, you may find yourself divorced

and your kids estranged long before you retire. Not every day will be balanced, but even on those days, you can have a quality conversation and a quality connection with another human being even if it’s a short one. As others

formula for success and happiness.

Others suggest that we should think about spending our time in the same manner that we think about spending our money: you don’t throw money away, so don’t throw your time away. And William Arthur Ward reminds us that through all this balancing, “A welldeveloped sense of humor is the pole that balances your steps as you walk the tightrope of life.”

have said, “Never get so busy making a living

MAKE YOUR WORK AS PLEASURABLE AS

that you forget to make a life.”

POSSIBLE

Nigel Marsh was a corporate lawyer for years, eating too much, drinking too much, working

As a famous politician said,

too much, neglecting his family and loved ones. The book he wrote: Fat, Forty and Fired.

“If you are interested in bal-

His point: If you don’t design your life for

ancing work

yourself, someone else will; don’t leave the quality of your life in the hands of your em-

and pleasure, stop trying to

ployer. Taking time to nurture yourself, to keep yourself happy and healthy, is a key to a

balance them.

Instead, make

successful life. I recommend you make a list of

your work more pleasurable.”

the things that make you happy and make

While I obviously think balance is important,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Photo by MOOSE

27

it is still good advice to make your work more

friends, and associates are a great way to

pleasurable. Look for cases that will make you happy, cases where you can make a significant

keep you connected to people, as well as to build your practice. Of course, if you have a

difference in someone’s life. Your ability to say “no” will keep you sane. The way to build

family, having dinner with your children is one of the most important gifts you can give your

your practice is not with more cases, but with fewer and better cases.

kids.

It’s hard to decline a case when a prospective client is begging you to take it. But your time

and energy are scarce resources, and to do a great job on all your cases, you must be selective. For example, a difficult case with uncertain damages is likely to remain that way no matter how much time, energy, and creativity you put into it. To build a law practice, we must dedicate ourselves to putting the time, energy and resources into any case we have chosen to handle. Make sure they are the right ones.

The time, energy and resources, at least for litigators, come down to spending lots of time doing research, reviewing thousands of pages of documents, preparing trial briefs, crossexamination outlines, and figuring out the proper strategies to maximize our client’s re-

covery. This can make practicing law a lonely occupation. One antidote is to spend more time with witnesses and clients. You should be doing this anyway to fully understand all aspects of the case at hand. And it helps put a human face on the process.

Another antidote is to use lunch and dinner as “hi” time—as in “human interaction.” Lunches

with colleagues, law-school classmates,

BE YOURSELF The great trial lawyer Gerry Spence has an excellent book entitled, Win Your Case. He says that, “The ‘lesson of the thumbs’ must be followed.” Look at your thumbs and you will see that they each have a thumbprint different from any other thumbprint in the world.

In fact, different from any print of any human being who has ever walked the face of the earth and distinct from any print of any person who will ever grace this earth again. Our very essence as persons or souls is also unique among all other living human beings.

Do not try to imitate other lawyers. Be yourself. A lawyer’s power in the courtroom emerges from his or her uniqueness. Spence’s advice: “Do not suffer from the plague of

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28

sameness that has stricken us all so that we

quick to cross-examine. Law school was all

dare not walk out our front doors without checking to see that we will be accepted into

about logic, facts, and the application of law to facts. But as a human being, our successes

the bleating herd.”

must also depend on our ability to understand and fully appreciate emotions—not only of

LISTEN TO OTHERS

those with whom we come in contact, but also our own. Our heart is our key asset in work and in the rest of our lives.

BE PRESENT Work hard, play hard. When you are working, be focused, efficient and “all in.” When relaxing with family and friends, take the time to truly unwind and enjoy the moment. When I think of some of the special moments I have enjoyed in my lifetime, I think of special times with family, friends, coworkers and clients.

Some of my favorite moments as a parent have been the nightly ritual of getting the kids ready for bed. Bath time, followed by story time, were the highlights of my day. I did

One simple tip to build your practice is to focus on listening skills. Listening to others is an essential skill for trial lawyers as well as parents. I heartily recommend a bestselling book entitled How to Talk So Kids Will Listen and Listen So Kids Will Talk by Adele Faber and Elaine Mazlish.

DON’T BE QUICK TO JUDGE—FOCUS ON THE HEART INSTEAD We lawyers have our own methods of solving problems, of speaking with clients, of dealing with adversaries. We are quick to argue,

whatever I could to be there for those special moments. When you’re with your kids, don’t just be there physically, be there mentally.

Your children can tell instantly when you are fully attentive and when you’re not. So can most adults (see “Listen to Others,” above).

And of course, make the time to be present for all your relationships. No one on their their deathbed ever said, “I wish I had spent more time in the office.”

TEN (OR SO) TIPS 1. Don’t cross-examine your loved ones: C.C.P. section 776 does not apply.

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29

2. Recharge your batteries regularly.

3. Build your lifestyle into your practice.

4. Look for the admirable traits in your clients and your loved ones.

5. Schedule your real life, not just your work life.

6. Learn something new every day.

7. Show gratitude every day.

8. Turn off your cell phone and computer to be present with your loved ones.

9. Don’t expect to be “balanced” daily; some days are unusually demanding.

10.Be a better listener daily.

11.Find your fun, and find time to enjoy your fun.

View this article at Marinbar.org John M. Feder is a partner at Rouda, Feder, Tietjen & McGuinn. He has been representing plaintiffs in catastrophic personal injury cases for more than 35 years. He is a past president of the Consumer Attorneys of California, and the San Francisco Trial Lawyers’ Association.

He has lectured extensively throughout California, and has authored many articles about personal injury litigation. His practice has resulted in numerous seven and eight figure verdicts and settlements. For more information, please visit: WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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CLOSING PRACTICE FAIRYOUR HOUSING How to Get from Marin to Maupiti: Tips for Closing a Solo Practice WANDEN TREANOR

S

itting at the bow of a sailboat anchored

cision to retire. I wanted to be reminded of

off the island of Maupiti in French Poly-

those initial feelings and to be just as excited

nesia, I thought about how excited I was when

about this next phase of life. Achieving that

I was first able to say, “I am an attorney.” It was a prideful feeling of achieving a life goal.

positive feeling, that sense of pride and excitement is my new challenge.

Whether it was the exhilaration of having your name on the letterhead, or on the door, I am sure we have all had similar memories from that first year of practicing law. I pondered those emotions in that idyllic setting because earlier in the year I had made the de-

I don’t have it all figured out yet, but I am embracing it with a positive, can-do attitude. It is certainly better than the alternative of feeling only doom and gloom about what time remains in this life.

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31

Choosing a Time

work, but there are no guarantees the young-

So, how does a lawyer decide to hang it up?

er attorney won’t pursue another opportunity before the senior attorney is ready to move

When is it the right time to retire? I think there is often a tipping point, different for

on.

each of us, and you need to be open to it and willing to embrace the opportunity when it is

When you find the right lawyer, you will need to decide how best to transition your clients

presented.

to him or her. You could stay on for a period of time after the new lawyer takes over, or

For me, that tipping point was when my extremely capable assistant of over a dozen years told me she wanted to retire at the same time that our office lease was up for re-

transition your clients while you are dealing with the other issues that must be handled before you walk out the door for the last time.

newal. I knew I didn’t want to commit to five

When it comes to disclosing your existing cli-

more years and I recognized I didn’t have it in me to train anyone new. I decided to listen to

ent matters with a prospective lawyer or law firm, and in dealing with your clients’ files, you

what the universe was telling me and put into motion what it takes to close down a solo law

must always be mindful of our Duty of Confidentiality under Business & Professions Code

practice of over 30 years.

section 6068(e)(1) and Evidence Code section 952, preserving inviolate confidential com-

Handing Off Your Practice There are several preliminary questions one

munications between a lawyer and the client.

You can’t even start talking with a prospec-

must ask in deciding to retire, especially for a solo practitioner. I hope to highlight a few and

tive buyer of your practice about specific client issues until the client authorizes that dis-

identify reference materials you can review when you are ready. This article can’t cover it

closure.

all, but don’t worry, there will be an MCLE program later this year taking a deeper dive

Preparing for What’s Next

into the subject.

One of those questions is whether to sell your practice, but first you need to know how to value what you have built. Once you decide that, it may take time to find the right person to take over your practice. Some solos bring in a younger attorney with the hope to be bought out by that attorney. That plan can

Perhaps the toughest part is the psychological work that must be done before you walk out that door. If being a lawyer is ‘it’ and you can’t see a life after practicing law, then you need to start thinking about it well before it is time to retire. Some don’t want to do this ‘work’ and decide it is easier to just keep doing what they are doing, without realizing they are beyond their prime. I wanted to exit

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32

when I still felt I was at the top of my game,

If this article piques your interest, please let

respected by my peers and when I could do it on my own terms. That takes work!

me know specific questions you may have about developing a succession plan. I will cov-

Practicalities

er it all in an upcoming MCLE program. Watch for it!

A 2002 State Bar publication, “Guidelines for

View this article at Marinbar.org

Selling or Closing a Law Practice,” is helpful, but mostly deals with what happens if a lawyer

Wanden Treanor practiced common interest development law and estate planning and trust administration for over 30 years. You can learn more about her in her profile in this issue. EMAIL

dies or becomes incapacitated. It is worth reviewing and can be obtained on the State Bar’s website. It covers the basic information about notifying clients and what to do with your old files. The publication is a ‘guideline’, so you still need to make sure you follow Rule of Professional Conduct 1.17 concerning Sale or Purchase of a Law Practice.

PLACE AN AD IN

Dealing with old client files may only be an is-

MCBA’s

sue for Baby Boomers. We tended to store files off site, where they were out of sight and out of mind, which is not good when you decide to retire. The Rutter Group has several chapters on retention and disposition of client files. CEB’s Business Succession Planning (2016) is also helpful in organizing a checklist of things to do.

It takes planning and thought to be able to retire on your own terms. Don’t wait to do the hard work. If you don’t do it, your family will have to hire someone to do it for you. Besides, you need to do it for yourself so that you can really enjoy what should be some of the best years of your life. You earned it! After all,

Marin Lawyer Digital Magazine MCBA’s digital magazine is published quarterly on the Issuu platform.

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wasn’t that the plan?

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LEARN MORE 33

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INSTALLATION RECAP FAIR HOUSING 2020 Installation Gala & Scholarship Fundraiser THE MARIN LAWYER

2020 MCBA Officers & Board of Directors

M

CBA held its 2020 Board & Officers Installation Gala & Scholarship Fund-

Two of our 2019 Legal Scholarship recipients, Nadim Houssain and Samantha Zurcher,

raiser on February 8th at the StoneTree Golf Club in Novato. MCBA members and friends

spoke passionately about their legal studies and future legal careers. They thanked MCBA

attended the event to help celebrate the in-

and noted how much their scholarships

coming Officers and Board of Directors as

helped. MCBA Member and First-Gentleman

well as to support a future generation of lawyers through MCBA’s legal scholarship fund.

John Feder led the fundraising portion of the evening to help next year's scholars. Guests

2019 President Charles Dresow passed the

generously pledged $16,000 to the MCBA Legal Scholarship Fund.

gavel to incoming President Susan Feder. The Honorable Lynn Duryee (Ret.) swore in the 2020 Officers: President Susan Feder, Presi-

Attendees enjoyed a lively cocktail hour and a delicious plated dinner. President Feder re-

dent-Elect J. Timothy Nardell, Treasurer Rob-

ceived a special musical tribute from two of

ert Rosborough, Secretary Scott Buell, Past

her remarkably talented children, Allison Kra-

President Charles Dresow, and 5-Year Past President Matthew White; and the Board of

mer and David Feder. Following that was a Valentine-themed performance by a special

Directors: Marie Barnes, Habib Bentaleb, Gregory Brockbank, Michael Chaput, Emily

edition of the Marin Barbershop Quartet, including two of MCBA's directors: Greg

Charley, Kristine Cirby, Ahtossa Fullerton, Chelsea Heaney, Sarah LĂŠger, Christopher

Brockbank, Paul Goldsmith, Steve Perl and Kelly Reid.

Locke, Ann Munene, Andres Perez, Karthik Raju, G. Kelley Reid, and Nestor Schnasse.

View this article at Marinbar.org

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

35

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A special thank you to our sponsors of the 2020 Installation Dinner & Scholarship Fundraiser. We are truly grateful for your support of this event and the Marin County Bar Association.

Table Sponsors

Premier Wine Sponsor

Wine Sponsors Buell Law and Mediation Law Offices of Barrett R.P. Schaefer Resolution Remedies LLC Strick Schnasse Lawyers

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37

MCBA Legal Education Scholarship

The MCBA Legal Education Scholarship program provides scholarships up to $5,000 to financially disadvantaged students from Marin pursuing a law school degree. Funded with contributions from the MCBA, it is a collaboration with 10,000 Degrees and the Marin Community Foundation, which administer the fund. The scholarship was established in 2010.

Through your generous annual donations, we awarded scholarships to three deserving law students for the 2019-2020 academic year.

Meet the MCBA 2019-2020 Legal Scholars Nadim Houssain is a third-year at Berkeley Law. At Berkeley, he has been involved with the Policy Advocacy Clinic, the California Asylum Representation Clinic, the Berkeley Journal of Criminal Law, and the Journal of Middle Eastern and Islamic Law. Nadim is simultaneously pursuing a Master in Public Administration at the Harvard Kennedy School of Government.

He received a B.A. in global studies and religious studies from the University of California, Santa Barbara. After college, Nadim spent two years serving as a Peace Corps volunteer in Burkina Faso, where he specialized in community economic development and taught high school English. He then worked as a field organizer for the Bernie Sanders 2016 presidential campaign in South Carolina, North Carolina, and New York.

After law school, Nadim will work as an associate at Jones Day in San Francisco. He hopes to be a litigator, concentrating on disputes with a global reach.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

38

Vanessa Sibrian is a second-time MCBA Legal Scholarship recipient.

She is a 2L at Santa Clara University School of Law and attended Novato High School, receiving her undergraduate degree from Santa Clara University.

Born to two immigrant parents, Vanessa was raised surrounded by immigrant neighbors as well as family members. Her father, a storyteller and vacuum repairman, forged in her a deep conviction to help others in need.

Vanessa has volunteered at Mil Mujeres Legal Services, focusing on cases of survivors of domestic violence, sexual assault and felonious assault. At school, she has volunteered at Santa Clara Law’s Bridge to Justice, which focuses on clients who need help with workers' compensation and immigration. Last summer, she interned at the Marin District Attorney’s office, using her Spanish skills, culture and background to provide additional insight and perspective. She was able to examine the immigration impact that criminal convictions have on people without legal status.

She is pursuing a law degree in order to help underserved communities.

Samantha Zurcher is a 2L at UCLA Law, where she serves as a Managing Editor for the Journal on Environmental Law and Policy, and a writer for the Promise Institute on Human Rights. She attended San Rafael High School and the College of Marin before transferring to UC Berkeley. She graduated in 2014 with a Bachelor of Science in Conservation and Resource Studies, focused on Environmental Engineering.

Samantha has a background in renewable energy development and studied the use of algae for biofuel production and carbon sequestration. Prior to law school, Samantha worked at a public accounting firm, where she helped companies utilize tax incentives for innovative and sustainable research projects. Samantha aspires to represent plaintiffs against perpetrators of environmental crimes, and to champion legal efforts to decarbonize the electric grid.

Samantha spent last summer working as a law clerk for the U.S. Attorney’s Office in San Francisco, where she assisted in the prosecution of local federal crimes. This experience galvanized her interest in trial advocacy, and she can’t wait to begin her career in litigation.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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Help us reach our 2020 fundraising goal of $20,000 and support financially disadvantaged stu-

dents pursuing a law degree. Please make your tax-deductible donation today by clicking on the "Donate" button below. Donors pledged over $16,000 during the 2020 Installation Dinner & Scholarship Fundraiser. With your help, we can make the final four thousand dollars.

2020 donors who have sent in their contributions as of March 10, 2020: $2500 Richard Schoenberger

Up to $500 Deborah Breiner Jerry Coleman $2000 Francine Feder Ragghianti Freitas LLP Andrew and Cindy Friedman $1000 Ahtossa Fullerton John and Susan Feder Rachel Keast In honor of Jack M. Feder, Sr. and Francine Feder Peter Kleinbrodt/Judge Beverly Wood Lisa Maslow $500 Rachel Brinker, DMD Ann Munene Patricia Prince Sarah Burke Kelley Reid Scott Rogers Jacquelyn Gauthier Cochrane Robert Rosborough Jonathan Gertler Lawrence Strick In honor of Stephanie Haffner, Executive Director Legal Aid Brian Washington of Marin Matthew White Judge Geoffrey Howard/ Deborah Odier Daniel Zurita In honor of Judge Richard Breiner (Ret.) Judge Beth S. Jordan Shelley Kramer In honor of UC Hastings alumni – MCBA President Susan Feder and John Feder Christopher Locke Gary T. Ragghianti

Eric Sternberger Wanden Treanor/Judge Faye D’Opal (Ret.) In honor of Kim Mazucca of 10,000 Degrees for her visionary work David Winnett

Please make your tax-deductible donation today.

DONATE THE MARIN LAWYER An Official Publication of the Marin County Bar Association

40

VIDEO FAIR MARKETING HOUSING Utilizing Niche-Specific Video to Streamline Your Practice and Bring in New Clients MARY CARY, FOUNDER, GOMEDIA MARKETING

L

ooking at ways to jump into marketing

hope that you’ll come away with a much bet-

can be overwhelming for a lawyer who mainly gets cases through tried and true re-

ter idea what’s involved and how you might use video. It’s not as intimidating as many

ferrals from lawyer friends and former clients. It doesn’t have to be!

people think!

My best advice is not to get all the way out of

Ways to Streamline Your Practice with Video

your lane with new marketing. Keep doing what already works (and do more of it) but

Video is a great way to expand your reach, fo-

allocate part of your marketing budget to the new endeavor. If you are looking to grow your

more of the same clients. But even if you’re

practice and try something new, video is an excellent medium for reaching new potential clients.

Law firms can use videos on many different platforms, from their own websites to YouTube to Facebook video ads or even television commercials, just to name a few. Their function can range from biography videos to opinion documentaries to traditional ads and many more. (Litigators sometimes create “Day in the Life” videos or use videos to vividly tell a story at trial.) Videos can be carefully

cus on a new practice area, or just bring in not looking to do any of those things, video can help “weed out” the kinds of inquiries you don’t want and save time with those you do.

Frequently Asked Question videos can have a wonderful effect on your practice. If you spend time answering the same questions with too many inquiries that go no further, video (preferably you on-camera) on your “forward-facing” assets (your website or social media) prominently answering these questions (24/7!) is a wonderful way to simplify your practice.

curated and filmed by a professional studio, all the way to a selfie iPhone video with a cas-

You can also save time with “how-to” or “what -to-expect” videos. These videos will walk cli-

ual message as a lawyer jumps into her car after a court appearance. I have seen it all!

ents through your firm's specific approach.

“What-to-expect” videos might include, “How

I will guide you through some of these options and share advice about what works best. I

to Dress for Court,” “Preparing for Your Deposition,” or “Understand How Long Before

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41

You Hear from the Judge.” You could have

there’s no one place to find clients and some-

videos about how to fill out various documents or how to pay you.

times what you think is the right place may end up producing “crickets.”

Your potential clients know they need your

Research and Strategize for the Best

expertise, but likely have only a very small no-

Outcome

tion about what you actually do. Even these streamlining videos will help them know and trust you in a new way and make you more approachable to people who need your help.

Here are some samples of video formats that may inspire you.

Choosing a Platform

With just a little research you can tell how many people are searching for your practice area in your preferred geographical area.

Start with the Google Keyword Adwords tool (if you don’t have a Google account, create one) and get an average of how many people are searching monthly and what the competition is for getting your clients.

If you are placing ads on a platform

I have directed, produced and placed videos for thou-

such as Facebook, set up a

sands of lawyers on all platforms. I’ve found that

draft ad campaign to see

where you find your clients varies depending on your

what they offer by way of met-

practice areas. Each practice area has its own business model because clients are in an entirely unique frame of mind depending on their particular need for your services.

For our digital healthcare lawyer, your potential clients will likely be referrals from other firms, LinkedIn and email marketing. Where-

rics in your demographics and geography.

Each platform and strategy has its own timing. If you are new to TV and resonate with that platform, get into it for the long haul.

One TV spot won’t get you much. Before plunging in, consult a legal marketer to find

as, if you’re a social security disability lawyer, TV has been a great choice for my clients be-

out what your time frame needs to be and what to expect.

cause that firm often wants an abundance of clients due to caps on what they can be paid.

Here is more about why researching your

When a law firm needs lots of cases, utilizing

practice area is crucial.

many platforms at once tends to go well. But THE MARIN LAWYER An Official Publication of the Marin County Bar Association

42

Save Money Wisely on Video

Success is truly not primarily about how much

No matter what the platform or purpose of

money you’re going to spend. It’s really about preparation, knowledge, and keeping your

your video, I always recommend you have professionally made video unless there are special circumstances. I say this not just because I have produced thousands of profes-

outcome in mind.

Start with Your Own Script

sional law firm videos! I have seen mistakes

One of the biggest and most widespread mis-

made by lawyers all over the U.S. and Canada.

takes I’ve seen is “copycat” lawyer marketing.

These mistakes often started with getting a kid to shoot with an iPhone. The content was horrible, starting with the script. The sound was reverby and far away. The lawyers looked scary, neglecting to use lighting correctly (or at all). The background was a mess.

If you have no budget or patience to test your

ads, copying might get you some rate of return on your investment because some of the same elements might work—or they could send cases to the other law firms that are doing the same thing.

And worse than any of these more obvious problems is that the kid is neither your ideal

So be original. Think about your audience and who you want your clients to be. What do

client nor a marketer and doesn't know your audience. On top of that, the lawyers showed

they need from you? What do they want to hear?

no empathy! If they did, even a badly produced video might actually speak to those

You as the Star

who need help.

The other common mistake I’ve seen is lawyers hiring an expensive wedding videographer. This will create a beautiful video, but almost always misses the most important part: how to speak directly to your ideal clients with what resonates and gets them to act.

Now that I’ve painted a picture of what can go wrong without even mentioning postproduction editing—which is about 90% of the work—let’s look at how to do it right!

Structuring a Successful Video Shoot for

Your Law Practice

Most lawyers are better on camera than hired actors. Why? Because actors overact! They don’t appear authentic and don’t actually know much about what you do. From a marketing standpoint, my data shows that real attorneys get viewers to respond, whereas actors just don’t feel right to most people.

The Most Important Ingredient No matter what your practice area, like any good relationship, be empathetic first.

Empathy is one of the most missed elements of law firm marketing. You need to put yourself in the shoes of the person who needs

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

43

your help. Lawyers are quick to skip over em-

hair and/or makeup are not overdone. They

pathy and reach into their vast experience to fix a problem. Lawyers are really good at fix-

should make you feel your best. Be rested!

Film at your best time of day.

ing problems. But as anyone in a long-term relationship knows, you need to empathize

While your wardrobe is professional, you

first before you fix the problem or people tune out and usually end up not liking you

find that the more relaxed you are the better.

very much.

Advice Builds Trust Educate potential clients. Tell them something they can go out and use even if they never call you. If you are a plaintiff’s personal injury lawyer you could say something like, “After your acci-

should be more casual, authentic and real. I People have preconceived notions about attorneys that you want to dispel with your demeanor.

Shoot for Visual Storytelling I film lawyers at my greenscreen studio here in Sausalito, California. The greenscreen is removed in post-production,

dent, your own insurance company

placing the lawyers in a beau-

is thinking about protecting its

space. We then shoot on lo-

tiful courtroom or office

cation. Being immersed in an interesting and relevant en-

shareholders and not just you. This

vironment helps tell your story.

may result in a lowball settlement.” Educating the viewer, especially with something helpful and unexpected, will build trust.

On one of my favorite shoots, I took personal injury lawyers (a law firm from Georgia, and then again with Virginia lawyers) to “Pick-n-Pull

What should you say for your practice area?

Cash for Junk Cars.” Pick-n-Pull is in the East

Think about the most common concerns people have when they come to you. Address

Bay (Richmond). This place has acres of won-

them!

Presenting Yourself on Camera Your video is likely going to represent your firm for years to come. Dress in professional

attire. Be timeless, crisp and make sure your

derfully junked cars and trucks that have been in accidents.

We filmed our lawyers inspecting passenger vehicles and trucks that had been totaled.

This was very cinematic. But you should always be aware, before the days of everyone carrying a video camera on their cell phone,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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we needed permits to shoot. And you could

Finally, to leave you with one piece of advice, I

be “shut down” if you don’t go through the proper channels, though you probably won’t

can’t stress enough how important it is for you to represent your own practice on cam-

be, depending on where you try to shoot.

era. No matter what you look like to yourself in pictures and video, when your potential cli-

Meeting Your Viewers for the First Time

ents find you helping them, you look beautiful.

It can be an odd feeling meeting a person who has been watching your videos. You might

View this article at Marinbar.org

begin to tell them something and they already

Mary Cary founded GoMedia Marketing & Productions. Based in Sausalito, she has produced and directed thousands of law-firm videos for clients all over the country. She has also built hundreds of law-firm websites. She is a public speaker who teaches legal marketing from San Francisco to Shanghai. She has also built video studios in law firms all over the United States, teaching their staff how to produce unique branded videos for their firms. GoMedia works with law firms of all sizes, and in many practice areas, but mainly with smaller firms. They are currently in production on an arsenal of video learning programs to help educate lawyers on modernizing, marketing and streamlining their practices. The first program is slated for release in April. Mary grew up in Marin County and plays lead guitar in a female-fronted Southern Rock band. GoMedia Contact Information: 449 Coloma Street, Sausalito, California 94965 Phone: (415) 302-6991 EMAIL | WEBSITE

know because they’ve spent time with you!

But this is something I hope you experience for yourself. It’s nice having your videos out there doing the heavy lifting! In fact, I built my own company with video. You can join nearly 5,000 lawyers who enjoy my weekly 1 to 2 minute TIP video about legal marketing and management by sharing your email address on any form on my website.

MCBA The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome.

MEMBERSHIP BENEFITS Networking & Community Learning & Education Volunteer & Leadership Opportunities Professional Credibility

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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LAWHOUSING LIBRARY FAIR Resources at the Marin County Law Library KRISTINE CIRBY

J

ust across the street from the courthouse, the Marin County Law Library is 127

years old. Originally serving only attorneys, today the law library helps just as many selfrepresented litigants as attorneys. Our new mission statement is “Providing Justice through Information.”

Funded almost entirely by a small share of court filing fees, the library’s budget is down 35% since its peak in the 2010 fiscal year.

While the governor’s initial 2021 fiscal-year budget included no additional funding for county law libraries, we are working hard to

net, and from Marin County Supervisor and

secure additional funding. The Legislature has

attorney Damon Connolly about his direct ex-

asked for data about the scope of our services and whom we serve and we hope that learn-

perience giving back with Lawyers in the Library.The funds raised will help provide up-to

ing more about the critical resources we provide to the general public as well as lawyers

-date legal case books, expand online resources, support Lawyers in the Library, and

will lead to additional funds. The library still

increase the number of open hours. The event

manages to provide many useful resources (a few of which were discussed in the April and

is free to attend and will be held at Wrapmanager (319 Miller Avenue in Mill Valley) on Sat-

May issues last year), including the ones you may not know about below.

urday, April 11, 2020, at 1:00 p.m.

LAW LIBRARY FUNDRAISER Come enjoy wine, beer and appetizers as we raise funds to provide access to justice for Marin residents in need. We'll hear from State Senator Mike McGuire about the criti-

CONFERENCE ROOM The law library has a conference room available for rent that seats up to 20 people. You can meet with clients, hold larger meetings or conduct depositions. It rents for $30 an hour or $150 for the full day.

cal role the law library plays in the legal safety THE MARIN LAWYER An Official Publication of the Marin County Bar Association

46

Are you an MCBA Section Chair looking for a

rently being trained and we plan to offer pass-

place to hold your section meetings? If so, you can use the conference room for free! Call the

port services by July 1, 2020. Keep an eye on our social media posts for updates and more

library to reserve the room.

information.

EASY MCLE Looking for hard-to-get MCLE? The law li-

MCLE AT THE LAW LIBRARY DVDs available for $10 per credit hour.

brary has several DVDs you can borrow for $10 per credit hour. We have plenty of op-

ETHICS

tions for specialty credits. (See sidebar.)

•

Attorney-client trust accounts

FIRST THURSDAY SPEAKERS

•

Avoiding bar discipline

•

Cybersecurity and confidentiality

•

The rules of professional conduct

On the first Thursday of each month, at 6:00 p.m., the law library features a speaker from a

local community organization so patrons can • Ethics of partnership agreements learn more about that organization’s services.

Each speaker makes a short presentation, followed by a Q & A session. Past organizations have included New Beginnings Law Center, the Marin County Public Defender, Buckelew’s Suicide Prevention Program and the Family & Children’s Law Center. Future speakers include: •

April: Marin Youth Court (Don Carney, YMCA's Director of Restorative Service

• •

ELIMINATION OF BIAS •

Understanding and mitigating bias

•

Transgender rights

COMPETENCY •

ELECTIVES •

Judgment enforcement for the noncollections attorney

•

Cyber liability

•

Crossover issues in estate planning and family law

•

E-discovery: How to avoid problems you didn’t know you had

•

Law in motion: How to get what you want from your judge

May: Ritter Center (tentative) June: SPAHR Center (Dana Van Gorder, Executive Director)

PASSPORTS No need to wait in line at the post office! The law library has recently been approved as a passport service center. All our staff are cur-

Prevention of substance abuse

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

47

LAWYERS IN THE LIBRARY

the program on MCBA’s website or simply

And finally, a reminder that the law library is always looking for attorney volunteers to as-

sign up.

View this article at Marinbar.org

sist over 400 people every year in our twicemonthly Lawyers in the Library program, a collaboration with the Marin County Bar Association. The program offers the public free 20-minute consultations with attorney volunteers every second and fourth Thursday of

Kristine Cirby is a Family Law Attorney. She has over 25 years of experience in family law, with the last 20 years exclusively in Marin County. Kristine currently serves on the Marin County Bar Association Board of Directors as well as on the Board of Trustees for the Marin County Law Library. EMAIL | WEBSITE

each month. The success of the program relies on lawyers like YOU! Can you spare 2.5 hours once per month? You can learn more about

Lawyers in the Library is a collaboration between the Marin County Law Library and the Marin County Bar Association, offering free legal advice for self-help litigants.

Volunteer MCBA lawyers meet with litigants in 20 minute intervals in the areas of family law, probate, civil and small claims, and landlord tenant matters. The clinic is held the second and fourth Thursday of each month with the exception of holidays.

VOLUNTEER SIGN UP

Thank you for your service to the community!

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WEBSITE DESIGN FAIR HOUSING Five Things You Can Do Right Now to Make Your Website Not Suck LANEY SILVERMAN | CCO | THE DESIGN BOUTIQUE, INC.

I

have declared my web design firm as the

Your website should be a learning experience

official haters of “The Golden Gate Bridge on law firm home pages.” I can hear you

for your customer. And it should be a reflection of the quality of services that you offer.

laughing now because you have the Golden Gate Bridge on your home page. Or maybe

You get only a few seconds to make an impression on people when they visit: Use those

you are thinking to yourself, we are different: We have a picture of the Bay Bridge. Sorry,

precious moments to wow your customer and take them on a carefully crafted journey.

it’s basically the same thing, right?

Your website is really just a vehicle to share your story: Why did you go into law? What does your firm do to help people? Using a template with some generic photos that don’t really mean anything is potentially damaging to your

Welcome to the GENERIC LAW FIRM

brand. Just as bad is a list of self-serving bullet points on why you are great—I’d rather you just send people to your LinkedIn page.

What Your Website Should Accomplish Here are just a few key goals you should keep in mind when planning your website. It should be: •

ADA Compliant

•

User-Friendly

•

Consistent

•

Aesthetically Pleasing

•

Simple

Accomplishing all of this is beyond the scope of this article but here are five simple things you can do right now to improve your website: 1. Remove the cheese! Take off the chess pieces and pillars. Your clients will think you are more sophisticated and think outside the box if you don't use generic images.

2. Make it easy to dial your phone number: It’s super easy to make your phone

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

49

number "clickable" so people don’t have to

dial it—clicking on it will prompt the phone or phone app on your computer.

3. Make your address prominent: If you want people to actually come to your office, make it easy to find. Include your address on the bottom of each page or at least on the contact page. And link it to Google Maps so it’s easy for visitors to get direc-

tions. Don’t make someone leave your site to find out where you are.

4. Headline your home page: Have a headline that encapsulates what you do. If someone doesn’t know what the heck you do in three seconds when they are on your home page, you are losing out.

5. Make your site mobile-friendly: Make sure that people over the age of 21 can read your website. Eight-point type on an iPhone doesn’t cut it. Make the text bigger so no one has to strain their eyes to find out what you do. People will be impressed with your thoughtfulness (and people at happy hour will be grateful too.)

In the end, keep it simple, clean and talk about how you help people. The work that you do is good; make sure your website reflects that.

View this article at Marinbar.org Creating extraordinary brands that WOW, Laney Silverman, CCO = The Design Boutique, Inc. EMAIL | WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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PASTFAIR PRESIDENT PROFILE HOUSING Wanden Treanor THE MARIN LAWYER

T

he Marin Lawyer recently caught up with MCBA Past President Wanden Treanor.

Where did you grow up and what was that like? I grew up in Marin, initially in Los

Ranchitos and then that quaint little island in southern Marin—Belvedere. It was idyllic in many respects.

Who were your influences? The Dominican Sisters of San Rafael had the most influence in my developing years. I attended Dominican Convent and later San Domenico from kindergarten through high school. The nuns

were a constant guide in my life, teaching me to be of service to others. While I don’t as-

and other notable attorneys would have dinner with us and

then after dinner, they would prep my father for a deposition or trial testimony in our living room. I would sit and listen in awe. I knew by the time I was twelve that I wanted to be a lawyer. Bruce made law exciting for me, which was fortunate, since I knew I didn’t want to be a doctor.

cribe to the patriarchal hierarchy of the Cath-

A brief history of your career: Where did you

olic Church, I am grateful to have been grounded in an environment that cared about

start? What jobs did you take? My first job was an associate at Mayer & Oswald in San

the health of the planet, about world peace, and that all people should have equal oppor-

Rafael. I was hired by Gary Oswald, who

tunities to achieve their full potential. Most importantly, they taught us that those of us

drafted a lot of development documents for the condominiums built in Marin in the 1970s.

It was in the very early years of construction

with privilege have the greatest obligation to make sure that there is equity and inclusion.

defect litigation. Gary knew about condomini-

How did you find your way into the law as a career? My father told me from a young age

about construction. I think he expected me to say ‘no,’ but instead, I said I knew quite a bit. I

that I had to be a “professional.” As a neurologist and rehabilitation specialist, he did a fair

ended up getting the job. I learned about construction as a Volunteer in Service to America

bit of expert witness work in the early years of medical malpractice cases. Bruce Walkup

(VISTA), running a self-help housing project.

That project brought low-income families

ums but very little about construction. In the interview he asked me if I knew anything

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

51

together to use their sweat equity to build

derick, dec., who was like a father to me grow-

homes. As a result, I knew each phase of construction that had to be done because I coor-

ing up, told me something I will never forget.

He said, “Remember, ‘no’ is a complete sen-

dinated the training classes to prepare the

tence.” Meaning that I didn’t always have to

families for the work required of them. Gary

say ‘yes’ to every service opportunity I was

and I worked together for about four years

presented. Making sure there is a healthy bal-

and I learned a lot from him.

ance in life is a struggle for most lawyers.

I knew I wanted to do more work in the com-

What are your proudest moments? Profes-

munity. I also knew I needed to be a solo practitioner because law firms wouldn’t tolerate

sionally, serving as President of the Marin County Women Lawyers and the Marin

the amount of time I would spend on non-

County Bar Association made me proud.

billable matters. I opened my own office on a

While I am proud of many cases I handled,

shoestring in 1989 and never looked back.

one case stands out. After a decade-long court order to dredge, I was able to convince

How did you decide to work in your particular legal arena? Like most attorneys, I ended up practicing in the area of law where I spent my initial training years. My practice focused

on representing boards of common interest

Judge Michael Dufficy, ret., to look at all the facts and reverse that order. It was a tremendous result for my client, the Bahia Homeowners Association.

developments because of my work with Gary.

You closed your practice—what was that

Then, as parents of my high school friends and

like? Yes, it is true, I closed my practice at the

old family friends needed estate plans, I

end of 2019. It was a huge learning oppor-

branched out into estate planning and even-

tunity for me figuring out how. There is so

tually into trust administration. So that I wouldn’t be vulnerable to one area of law, I

much to do to prepare for such a significant life transition. There are psychological issues,

kept the two areas of practice about equal in the thirty years I was out on my own.

such as ‘Who will I be?’; legal obligations to notify clients and obligations to get files back

What are your strengths and what are your

to old clients; and insurance issues. First, you need to determine if you can sell your prac-

weaknesses? My strengths would probably

tice and if so, how much you can expect to re-

be my empathy for others and my leadership abilities. One of my weaknesses would be that

ceive, and how you will transition your current clients. There’s the money issue, ‘Can I

I took on more leadership roles in the community than I might have had the bandwidth to

afford to retire?’ as well as how will you spend your time and talent if you aren’t practicing

do. While my clients’ needs were met, my leisure time was impacted. Judge Henry J. Bro-

law. I have learned so much that I plan to coordinate an MCLE program on how to close a

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

52

a solo law practice. Stay tuned, it will happen

being on the water as much as possible. As

this year.

long as I am able, I see myself paddle boarding in the mornings and sailing or kayaking in the

Where does the next twenty years see Wan-

afternoons. See you out there!

den Treanor? I will continue serving on the College of Marin Board of Trustees and be

View this article at Marinbar.org

engaged in political and social issues of our time. As noted earlier, my leisure time was short-changed in my earlier years, therefore, I will not feel guilty if I choose to spend what time I have remaining enjoying life. For the past 30 years, Judge D’Opal, ret., and I have been fortunate to live on the Corte Madera Creek and we have a fair number of ‘water toys.’ While I couldn’t enjoy those toys as much as I would have liked, I will now enjoy

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

53

FAIRHIRING HOUSING Thinking About Hiring an Employee? Read This First: Tips for Avoiding Common Liability Pitfalls SARAH N. LÉGER, ESQ.

S

tarting a law practice is an exciting en-

coverage is available, it is usually limited to a

deavor, full of decisions large and small.

Whether to hire an employee is one the most

low value, defense-only policy that pays nothing towards a settlement or judgment. (See

consequential of those decisions. Due in large measure to California’s expansive labor

Andrea Christensen’s article for more information about insurance coverage for your

laws—which strongly favor employees— hiring is full of pitfalls. Even a well-

practice.)

intentioned decision can lead to serious liability.

I advise all business owners to take the following initial steps before becoming an employer:

While most employers are aware of laws protecting employees from unlawful practices

1) Write a Job Description.

such as harassment, discrimination and retali-

Before you make your first hire, write out an

ation, they are generally unaware of the significant liability that can accrue for violations

accurate and honest job description for each position. This should include the requisite

of the Labor Code, known as “wage and hour” violations. To make matters worse, insurance

qualifications and experience as well as an outline of duties and responsibilities.

rarely covers wage and hour claims and when

2) Classify each position.

Once you have a job description, you should seek out the advice of an attorney or reputable human resources consultant to determine whether each position is “exempt” or “nonexempt.” This is the most important step in the hiring process. It is a common misperception that paying an employee a salary means they are exempt and therefore not owed overtime.

This mistake may end up costing an employer tens of thousands of dollars (or more) in wages and penalties per employee.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

54

Instead, each position must be analyzed to

and $12.00 per hour for employers with less

determine whether it fits within one of the few exemptions authorized by law. Specifical-

than 25 employees. These rates will increase by $1.00 on January 1 of each year, capping at

ly, this analysis requires two tests: (1) the duties test and (2) the salary basis test.

$15.00 per hour.

•

Duties Test: Workers classified as exempt

In a solo or small law firm practice, the most common jobs will involve support staff

employees are those whose primary duties are executive, administrative, or pro-

(receptionist, legal assistants, bookkeeping), which, absent exceptional circumstances, will

fessional. (Other exemptions for specific occupations, such as sales employees, also

almost always be non-exempt. Many people make the mistake of assuming that the admin-

apply in limited circumstances.) A key factor in this analysis is whether the employ-

istrative exemption applies to all administrative workers, including legal assistants and

ee uses discretion and independent judgment in carrying out their duties.

other support staff. However, the Industrial Welfare Commission wage orders make clear that administratively-exempt workers must

•

Salary Basis Test: If it is determined that an employee’s duties are exempt, the next

either (1) perform “under only general supervision work along specialized or technical

step is to consider the salary basis test. In

lines requiring special training, experience or

general, if a position is exempt, then the

knowledge” or (2) execute “special assign-

employee must be paid a fixed salary at least twice the state minimum wage for

ments and tasks…under only general supervision.” (See IWC Order 4-2001 § 1, subd. (A)(2)

full-time employment (whether or not the employee will work full-time). Moreover,

(d) & (e).) This is a very high burden to meet, which means that the administrative exemp-

the employee’s salary may not be reduced by the quality or quantity of work (except

tion is generally only applied to high-level workers such as chief financial officers and

for certain absences pursuant to a written leave policy, such as vacation).

controllers, and not to those workers who support those positions such as bookkeepers

If a position is not determined to be exempt,

and accounts-receivable clerks.

the employee must be paid an hourly rate

3) Adopt a time keeping system.

equal to or greater than the current minimum wage. Marin County has not adopted its own

Before hiring, you should identify and adopt a time keeping system that works for your busi-

minimum wage ordinance and therefore the state minimum wage controls. Currently, Cal-

ness. The best systems allow non-exempt employees to clock in and out with their own

ifornia’s minimum wage is $13.00 per hour for employers with 25 or more employees,

unique credentials, record in/out times for meal breaks, and affirm rest breaks were

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

55

taken timely. Most timekeeping software will

i) All applicable hourly rates in effect during

also easily export this data to your payroll service.

the pay period and the corresponding number of hours worked at each hourly

4) Don’t rely on your payroll service to com-

rate by the employee and if the employer is a temporary services employer, the rate

ply with the law.

Ultimate liability will always rest with the em-

of pay and the total hours worked for each temporary services assignment.

ployer, so don’t make the mistake of failing to double check employee wage statements. A

Once you are up and running, you should

payroll company should provide you with a mock-up before you ever add an employee to

make a habit of monitoring wage statements to ensure compliance with Section 226, as

the payroll so that you can ensure compliance with Labor Code section 226, which requires

well as for overtime, break penalties, and sick leave and vacation accruals. While this may

each wage statement to provide nine specific categories of information:

seem onerous, be aware that most payroll company contracts significantly limit the pay-

a) Gross wages earned; b) Total hours worked by the employee;

c) The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis;

roll provider’s liability for errors that violate labor laws, so the employer will almost always be on the hook alone for liability caused by the payroll company.

5) Adopt policies and procedures.

Not only should you have an employee hand-

d) All deductions;

book that explains all of your policies and procedures, employers are required to develop a

e) Net wages earned;

harassment, discrimination and retaliation policy that:

f) The inclusive dates of the period for which the employee is paid; g) The name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number; h) The name and address of the legal entity that is the employer; and

a) Is in writing; b) Lists all current protected categories covered under the Fair Employment and Housing Act; c) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

56

d) Creates a complaint process to ensure

exposed to retaliation as a result of lodg-

that complaints receive: confidentiality to the extent possible; a timely response; im-

ing a complaint or participating in any workplace investigation.

partial and timely investigations by qualified personnel; documentation and track-

6) Seek counsel before hiring independent

ing for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures; e) Provides a complaint mechanism that doesn’t require an employee to complain

contractors.

In the wake of Assembly Bill 5, signed by the governor in 2019 and codified primarily in Labor Code 2750.3 (it also amended Labor Code section 3351 and Unemployment Insurance Code sections 606.5 and 621), it is harder

directly to his or her immediate supervisor, including an alternate reporting struc-

than ever for employers to safely engage independent contractors. And the risk of mis-

ture, a complaint hotline, or access to an ombudsperson;

classification is steep: While you save on employer-side taxes, for every misclassified

f) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally; g) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected; h) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality; i) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken; and

j) Makes clear that employees shall not be

worker, the hiring entity may owe back wages for overtime, penalties for missed meal and rest breaks, various additional Labor Code penalties, back payroll taxes and FTB and IRS penalties, as well as the claimant’s attorney’s fees and costs.

7) Understand your personal liability.

If you’ve read this far, you may be thinking that a lawsuit won’t affect you personally because you’ve formed an entity and taken all steps necessary to avoid alter-ego liability.

While those steps are important, you should also be aware of the two main avenues to personal liability for individuals. First, Labor Code section 558.1 extends liability for specific Labor Code violations (including those relating to payment of wages at termination, wage statement errors, failure to provide meal and rest periods, violations of minimum wage or overtime compensation, unpaid expenses, and attorney’s fees and costs) to

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

57

persons “acting on behalf of an employer” in-

cluding owners, directors, officers or managing agents. Additionally, Labor Code section 1197.1 imposes personal liability on officers, agents and employees who causes an employee to be paid less than the minimum wage.

THANK YOU TO OUR 2020 MCBA PROGRAM SPONSORS

This list is not exhaustive, but instead is intended to provide a prospective employer a

Silver

proper foundation. As the saying goes, an ounce of prevention is worth a pound of cure.

Making sure you are in compliance with California’s labor laws before your first hire is the best step toward protecting your practice against potentially devastating employee claims.

View this article at Marinbar.org Sarah is a partner with Ragghianti Freitas LLP. She is a trial lawyer who specializes in management-side labor and employment law.

EMAIL | WEBSITE

Interested in sponsorship?

Contact Mee Mee Wong at mwong@marinbar.org THE MARIN LAWYER An Official Publication of the Marin County Bar Association

58

NUTRITION FAIR HOUSING Food: Is It Stressing You Out? Learn How to Use It to Mitigate Stress Instead BARBARA SOBEL, MS, CNS, LDN

W

e all have stress in our lives. Lawyers

have more than most. While some stress is healthy, chronic stress can cause a

myriad of health problems. We can’t remove all of our stress; we can implement strategies that better help us cope and even thrive under stress.

Mention stress reduction and most of us think of lifestyle interventions like meditating, exercising, maintaining relationships, improving sleep, and spending time outside. All of those are important, but what we eat—and how and

increasing diet. Here are my top five tips for regulating your stress response with food.

1) Eat to Balance Blood Sugar When we feel stressed, we often reach for comfort or junk food, which are rich in sugar and fat. While they taste good in the moment, they can lead to sharp spikes in blood sugar.

We feel a burst of energy but then a crash leaves us feeling tired, experiencing brain fog, and reaching for more.

When we eat sugar and foods that the body

when we eat—also play a critical role in regulating stress—for the better or worse.

As busy professionals, making time to eat a nourishing diet can be difficult. Add in that stress makes us crave foods often low in nutritional value and you have a recipe for a stressTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

59

quickly turns to sugar, our blood glucose in-

A diet high in fiber (fruits, vegetables, leg-

creases. Insulin shuttles this glucose into our cells. Too much glucose and we overwhelm

umes, nuts and seeds, and whole grains) is associated with lower perceived stress and in-

our insulin’s ability to do its job. Even worse, cortisol, one of our stress hormones, pumps

creased alertness. Similarly, omega-3 fatty acids, found in fatty fish (salmon, trout, her-

even more insulin into our bloodstream. Elevated insulin causes inflammation and weight

ring, anchovies, mackerel, and sardines), walnuts, and flaxseeds, reduce inflammation,

gain—especially around the belly. Inflammation increases stress, forming a self-

anxiety, and depression.

reinforcing cycle.

Help stabilize blood sugar by eating a variety of whole foods: lots of vegetables, a serving of protein (animal or plant) at each meal, healthy fats (olive, avocado and coconut oils, nuts and seeds, and their butters), and slow-digesting carbohydrates (starchy vegetables, whole grains, legumes, and fruits).

B vitamins found in whole grains, vegetables,

and animal proteins support a healthy nervous system. Consuming foods high in vitamin C (citrus fruits, red peppers, strawberries) reduces cortisol and boosts the immune system.

Magnesium helps us feel more relaxed. It is found in leafy greens, almonds, yogurt, and salmon. Choosing meals rich in these nutrients helps our bodies better manage stress.

Eating regular meals, including breakfast, also

3) Take a Full-Day Perspective

helps stabilize blood sugar. Our bodies can interpret skipping or delaying meals as addi-

Coffee, tea, and chocolate contain many ben-

tional stress, and if we are already feeling a lot of stress, this can be too much. Easy breakfast options are oatmeal with almonds and walnuts, eggs with greens, and Greek yogurt

eficial phytonutrients, and have a place in most of our diets, but all three contain caffeine. Too much caffeine increases blood pressure, anxiety, and interrupts sleep.

with berries.

A glass of wine can help wipe away the stress of the day. While alcohol can help us fall

2) Eat Stress-Reducing Foods

asleep, it increases blood sugar, and leads to disturbed sleep, brain fog, and sluggishness

When we are under stress, our bodies use up certain nutrients faster than normal. Add in the stress-induced desire to choose nutrientlow comfort foods over whole foods, and we can easily deplete the nutrients we need most to help reduce stress.

the next day. Try giving up alcohol during the week and notice the difference in sleep and concentration.

It is easy to munch on an energy bar to get us through an afternoon slump or even to re-

place a meal, but most bars are processed THE MARIN LAWYER An Official Publication of the Marin County Bar Association

60

foods, high in sugar, and low in nutritional val-

eat. Practice putting your fork down between

ue. Break up with bars! Bring along some nuts and a piece of fruit for a snack or meal re-

bites and notice changes in digestion and productivity.

placement.

Poor nutrition adds to the stress we already

4) Think Ahead

place on our bodies. Invest a little time upfront

Doing a little bit of meal planning goes a

to plan your day. Buy and prepare nutrient-

long way in helping us to eat food that is

dense food. Make in-

formed decisions. Eat

nourishing, stress-

slowly! All of these will

reducing, and quick to prepare. Planning

help you improve your health and overall wellness. And they will im-

out the week’s meals can be as simple as

prove your ability to re-

jotting down three dinners on a sticky

spond to stress, reduce stress levels and pre-

note. Short on time?

Use a grocery delivery or boxed-meal service, buy pre-cut vegetables or shop the salad bar, and batch cook to enjoy leftovers.

5) Eat Slowly and Mindfully When we eat slowly and mindfully, we pay attention to how our food tastes and how it feels in our body. It affords us some down time so we can better digest and absorb the

vent food from causing additional stress.

View this article at Marinbar.org Barbara Sobel, MS, CNS, LDN is a clinical nutritionist in Marin County specializing in inflammatory conditions, digestive disorders, and hormone balance. She offers personalized nutrition consultations by phone, over Zoom, or in person. She publishes a quick and easy dinner recipe each week. Find them on her website. You can reach her at 415.587.0510 or email.

EMAIL | WEBSITE

nutrients in our food. Slowing down also helps us better assess whether we are still hungry and when we have had enough, and it helps us choose foods that feel good in our bodies.

Step away from the computer and the phone and take 15 or 20 minutes to do nothing but THE MARIN LAWYER An Official Publication of the Marin County Bar Association

61

NONPROFIT PROFILE FAIR HOUSING The iRest Institute: Powerful Meditation Made Easy ROBERT ROSBOROUGH

P

art of good law practice management is taking care of yourself well enough that

you are capable of managing your practice well, not to mention actually practicing law.

As our February membership luncheon speaker pointed out, lawyers are notoriously bad at taking care of themselves. Meditation

has resulted in changing the lives of many people.

is becoming more and more popular as one aspect of taking care of yourself, even among

Over the following decades, Richard—who is

lawyers. As a certified iRest® meditation teacher, I have written about meditation and iRest for the Marin Lawyer before and have briefly discussed the nonprofit behind iRest

(short for “Integrative Restoration”) but the good work it does is worthy of one of our nonprofit profiles. (You can read more about meditation and the practice of iRest in my article in the September 2017 issue of the Marin Lawyer.)

a clinical psychologist—adapted these ancient yogic practices to the modern world using Western psychology and neuroscience. He calls the various practices that are part of iRest “tools for life,” designed to make meditation easier and give you skills that, “empower you to skillfully meet each moment with unshakable peace and wellbeing—no matter how challenging or difficult your situation.”

iRest Origins

That sounded pretty good to me when I first learned about iRest (which is sometimes re-

Fifty years ago, Richard Miller took a yoga

ferred to as iRest yoga nidra or even just with

course at the Integral Yoga Institute in San

the traditional yoga nidra term alone). What

Francisco in order to meet people. It turned out that the teacher insisted on silence during

also impressed me was that iRest is an evidence-based practice (something lawyers

the entire twelve-week course! But at the end of the first class, the teacher led a tradi-

appreciate) and one of the largest consumers of it was the Department of Defense. The De-

tional yoga nidra meditation and Richard went home feeling connected—to himself, not least

partment uses iRest as part of treating PTSD. I thought surely if iRest can do that, it could

of all—and full of joy despite not talking with

help me. If you want to know more about

anyone. Thus began a lifelong journey that

practicing iRest itself, read my article in the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

62

link above. What I’ll say here is that iRest is

easy, powerful and effective. Most students I’ve had finish their very first guided medita-

where it links to the studies.)

The iRest Institute

“I have been doing this yoga nidra now for about 3 years and I have gotten to a point now that I don’t have to take any medication for my blood pressure. And I don’t take anything for sleeping, so it has made a big improvement.”

“I truly believe that iRest helps to save

—Tom Rusneck, Vietnam Veteran

tion with comments like, “That was amazing,” and “I want more.”

my life every day. It has given me the hope and strength I needed to reconnect myself to the world again.”

The Institute’s small offices on Mission Street in San Rafael support programs all over the

—U.S. Marine, Iraq War Veteran with three

world, from Australia to Germany to Japan.

The office is partly virtual, with some key em-

deployments.

The iRest Institute’s history is closely tied to the service and support of the U.S. military. In 2006, the Department of Defense studied the use of iRest to treat PTSD at Walter Reed Army Medical Center. The results were so promising that the Department hired the director of the study to implement iRest as part of its treatment of PTSD in soldiers returning from Iraq and Afghanistan. The use of iRest has since spread to nearly 100 military bases/ hospitals and VA facilities.

The Institute was founded as a nonprofit to train and support the increasing number of teachers needed as well as to promote research and exploration of other specific uses, such as the treatment of pain, addiction, insomnia and many other maladies, and settings, such as in hospice or homeless shelters, for iRest. (You can read about many studies involving iRest on the Institute’s website,

ployees in other parts of the country. The primary activity of the Institute is teaching.

Much of that is training future teachers but increasingly there are programs for the general public.

I went through the Institute’s teacher certification program, which can take several years.

Many of my student colleagues were from military settings, if not the military itself, such as therapists at VA facilities. iRest has helped tens of thousands of soldiers and veterans. A medic with PTSD after two tours in Iraq discusses his experience with iRest in this moving YouTube video. He was able to continue serving in the military, was deployed to Afghanistan and started teaching iRest to soldiers there to prepare them for what he calls “the second war”—returning to civilian life.

The VA has even developed a program available free to all veterans where they can dial in by phone to access iRest teachings.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

63

The Institute also supports teachers as they

they are open to anyone with an interest. You

develop iRest programs in different settings.

One example is Thrive Inside, a nonprofit in

can learn more about the Institute’s retreats and trainings on its website. You can also try

the U.K. where certified iRest teacher Paul Collins developed a program to help prison-

out free guided practices. Or you can come try it out at my Thursday evening meditations

ers deal with lifetimes of trauma in the hopes of rehabilitation and recovery. Says Collins,

in the City at the Integral Yoga Institute—yes the same place Richard Miller first experi-

“Thrive Inside is a complete personal development program to help these residents find

enced yoga nidra. If you are interested, ask me about it and if there is enough interest, I

meaning and purpose in their lives, and to be-

can teach MCBA members.

come worthwhile members of society.” iRest Website I learned from Richard Miller the other night that China has reached out to the Institute for help for medical personnel treating COVID19 and Australia reached out for help for the legions of firefighters who battled the extraordinary fires this Australian summer.

Gratitude from both has been flowing in ever since.

In addition to trainings, the Institute offers

View this article at Marinbar.org Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE

retreats—again, all over the world but also right in our backyard at Dominican’s Santa Sabina retreat center. Of varying lengths,

THE MARKETPLACE Office Space, Employment Opportunities, Services and More...

VISIT THE MARKETPLACE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

64

SEARCH ENGINE FAIR HOUSING OPTIMIZATION Marketing and Managing Your Digital Brand Through Search Engine Optimization…or How to Talk Shop with Your Web Developer and not Look Like an Idiot MIKE CHAPUT

I

am a sole practitioner. I like being a sole practitioner. And as a sole practitioner, I do

most office-related tasks myself—some of you out there can sympathize! Answering my phone, drafting my own motions, purchasing office supplies, have all become de rigueur. I

thought that if I could get a practical tutorial in the process, I would be in a better position to manage and market my professional services. The only thing I knew to do at the beginning was to ask for help. That was the foundation.

have always taken pride in being selfsufficient and I have grown to love the indi-

Look, I’m not unmechanical and in fact, I can

vidualism and autonomy working by oneself will naturally cultivate. Leaping technological

in the time. But business and family don’t take

advances in the devices we now use have dramatically increased what we can accomplish

reminded of advice my mother-in-law gave me once and which I think is spot on here,

on our own and have enabled me to run my business efficiently and with very little over-

“I’ve found that the best way to buy some-

head—and not always tethered to my geographical building!

Every now and then though, I find it necessary to outsource tasks that are, frankly, above my pay grade. Search engine optimization is certainly one of those tasks. If you are anything like me, knowing what “SEO” meant, or that it was even a term, was somewhere ahead on the learning curve! I say learning curve here because when I first endeavored to examine my website’s efficacy, I really did not know where exactly to begin—but I was certain I needed to educate myself on the process. As a natural extension of that notion, I further

figure how most things technical work if I put breaks and time is a precious commodity. I am

thing, Michael, is to pay for it.” Sage advice.

I have a former client I have kept in touch with who is in the business of developing and managing websites. We spoke and almost immediately I was inundated with questions I

could barely understand, let alone adequately answer. We decided a sit down at my office was the best way to approach the ask. When we met, he patiently explained—and I slowly learned—what was required. He was accommodating enough to run some preliminary diagnostics on my website and get back to me with the results. This was the rough framing.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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Full disclosure here: I am not a developer and this article is not a technical piece—it is in no

web. Unless someone already has your website address, they find it using words that de-

way a comprehensive treatise on website strategy, preparation or deployment. I am still

scribe what they are looking for, usually called “search terms.” Ultimately, the goal of

in the process of building the proper structure. Rather, it is just an attempt at providing

your presence on the web is to increase the number of visitors to your website and, hope-

the reader with a baseline understanding, through my ongoing experience, of what to

fully, the amount of business you get. When someone types in search terms, they are typ-

consider when looking to optimize your web-

ing them into a search engine (Google, Bing,

site’s effectiveness. In other words, it’s how

Yahoo, etc.) For that person’s search to lead

not to look like a complete imbecile, as did I, in front of your developer, when or if you have

to you, your website needs to be seen and ranked by the search engine. In order for it to

that talk.

be seen and ranked, with a placement ideally on the first page of that search engine’s re-

What Is Search Engine Optimization?

Assuming that you have a website, it has a

sults page, it must include certain terms, legal and otherwise. Search engine optimization, or

presence on the internet. It occupies a digital space and can be found by people using the

SEO, means designing your website so that search engines find and rank your site high in

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

66

the list of results when your potential clients

looking for the address. Since most searches

are searching for a lawyer they would like to hire. This is where it gets tricky, because the

are currently conducted from mobile devices, I quickly realized my website required panop-

process by which the search engine directs traffic comes from a proprietary method of

tic surgery! Knowing this information was instrumental in understanding how to build out.

analyzing websites for potential usefulness to the searcher. A specific collection of snippets

We needed a “Mobile First” strategy.

of text and metadata, aligned and positioned the proper way, ensure your website obtains

Keywords and Onsite Optimization Search engines look for content that is most

a high “click-through rate” from the results

relevant to the search query. Keywords are

the search engine lists. The right information

instrumental in the process. If your site has

as it passes through the search engine’s complicated and highly intelligent algorithm gets

certain keywords arranged in specific order, you’ve improved your chances of being no-

you placed on the first page of a potential client’s search results. Still with me? Let me put

ticed. But that, my friends, is the special sauce. Other than the developers at Google

it another way: while there are many considerations when designing your website, if you

(and they’re not revealing those confidences), nobody knows with certainty how a search

want potential clients to find you, creating content that gets noticed and which is ranked

engine seeks out and ranks its target.

high by search engine algorithms is a key requirement.

So What Do I Actually Do to Rank High? Or How Do I Put the O in SEO? Diagnostics First

But certainty is not needed. Many smart folks, including web developers, have a pretty good idea what works and what doesn’t. They know that search engines look for keywords as well as for original text and images. And the engines have a precise aim: to rank high, you can’t be too technical, but not too spam-

Remember how my website developer ran some diagnostics on my website? We looked

my either. For instance, given all the words on your site, a search engine may only be looking

through the various results and found something interesting: While I was ranking reason-

for 4% of them in a proper sequence somewhere within your site’s ecosystem. Artificial

ably well for searches conducted on a desktop platform, I was woefully underrepresented on

intelligence hard at work here. It’s what a peacock might clearly see in a fan of feathers

searches from mobile or edge devices. In fact, I was in the bottom 10%, which meant I was

that is all but invisible to the uninitiated. A good developer can sort out and create that

nearly invisible on a mobile device unless someone already knew my name and was just

appropriate bundle of content based on your practice and what you want your website to

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

67

improve your search engine ranking. You

will now identify my content on the Marin

could call it getting the walls up and roof on in your buildout.

County Bar Association site and rank my website higher because it understands and

I also learned that you can be more proactive

has factored into its algorithm the merit of that other site, which reflects on my website.

than waiting for someone to search for the right combination

If it is further reposted, even better! The more of

of terms for a search engine to

that one can generate, the more improved the result.

run a query “scramble” on your

But beware if the content is not wholly original.

site, where it analyzes your site for

Google, for example, deploys a sifter of sorts

relevance. You can submit a site map (a condensed version of one’s site and its content) directly to search engines for them to analyze ahead of time to

which can determine if you “borrowed” text from another author. Remember hearing about those professors who had

improve your site’s chances of being noticed.

software that could and would be used to scan for plagiarized content? Well, it’s real—only

Offsite Optimization

here at least, they’ll just degrade your rank-

Since there’s onsite optimization, it will come as no surprise that offsite optimization is also a thing. Once you have sorted out and built into your website the onsite content, you and

ing! You have now gotten into the finish work.

Offsite optimization also includes your social media presence. Facebook, Twitter, YouTube,

your developer can then begin zeroing in on

LinkedIn, Instagram, and many others are monitored by Google and other search en-

the offsite target. Offsite content refers to third-party websites that have information or

gines to better develop a holistic view of your web presence. Of note, YouTube happens to

documents you’ve generated, either reposted or otherwise. According to my developer,

be the second-largest search engine platform, behind Google. Video tutorials are a really

Google loves this stuff. Google scans these postings and is capable of marrying the key-

great method for illuminating your services.

[Editor’s Note: See Mary Cary’s article in this

words found in these alternate arenas to your online signature. This very article is a good

issue on using video in your marketing!]

Google likes to see your website linked to

example of content I developed but which is being hosted on another site. A search engine

these apps and channels. Again, the more relevant the exposure, the better for visitor

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

68

traffic to your website.

Other Things You Can Do: New Content and

your budget is tight, this might be further

down the road.

Advertising

Where I Am

Search engines, like people, like new stuff.

I have tried to set out the factors I have been

Old is boring (I take issue with search engines

introduced to that have helped me better un-

on this point!) The more dynamic and chang-

derstand how the digital landscape is laid out

ing your site is, the higher your ranking.

and how “the system” finds the professional

Which means that you need to be producing

me. As I mentioned earlier, this is all a work in

new content for it on an ongoing basis. You

progress and I certainly have not mastered

can hire a professional provider who can cre-

the art of optimizing my website…yet. I am

ate content for your site. Most large companies have enormous budgets for this type of

reminded each time I talk with my developer friend that I have quite a ways to go! But I

marketing, with individuals who churn out content aimed at what they think prospective

hope that the basics I have offered here are helpful ways you will consider in making the

customers or clients are interested in. But these content outfits can be expensive and as

move to expand your digital footprint and ensure that your services are not only recog-

a sole practitioner, likely not the right way forward. However, that means that the con-

nized, but placed in such a way that you— rather than your competition—get the

tent is to be generated and provided by, wait for it…yours truly. I’m in the process of figur-

“clicks.”

ing out the best way forward on this front.

One can also pay for advertising, including for placement at or near the top of the results of particular searches using particular search engines. (In other words, instead of doing some of this SEO work, you simply pay Google directly so that your website is at the top of the results, but marked as an ad.) There are various ways to structure a campaign, but generally you would pay to be placed in front of your target audience. In addition to the search platform, Google offers advertising through display, video, and app platforms.

Again, these are pay-to-play options and if

View this article at Marinbar.org Michael Chaput grew up on the Peninsula in the San Francisco Bay Area. He currently resides and works in Marin County and has provided his assistance in many neighboring counties, including Sonoma, San Mateo and San Francisco County. Michael graduated from the University of Colorado at Boulder and attended Santa Clara University’s School of Law. He has devoted much of his career to criminal law and trial practice.

After retiring as a Monterey County Deputy District Attorney, he now attends to people charged with crimes. Michael brings years of prosecutorial and defense litigation experience to his current practice in criminal defense. Michael forges and cultivates a very close relationship with his clients and adheres to a traditional philosophy that, as attorneys, we are counselors first. Given the sensitive nature of his client’s matters, he is always discreet, but tough and persuasive as well. Michael remains an avid student practitioner of the law. In addition to the criminal discipline, he maintains practices in the areas of business law and civil litigation. EMAIL | WEBSITE

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THE BROCKBANK POLITICAL REPORT FAIR HOUSING Marin’s Local Election Results, Legislative and Congressional Races, and Of Course the Presidential Race GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.

M

ARIN’S LOCAL ELECTIONS

This was supposed to be a big election locally, in terms of number of races, since there will be no more odd-numbered year regular local elections. Several dozen local

ty in Mill Valley), beat two challengers—both

races have all finished their enforced migration to even-numbered years, but most of

of them unknown and inexperienced, and poorly funded, except for the newspaper ads

them are migrating to the November election,

of one of them—well, overwhelmingly.

so our primary election (in March this year, and presumably henceforth), which always had a few local elections, now simply has a few more. But this year, the races were sur-

In District 4 (West Marin, Greenbrae Boardwalk, the Canal District of San Rafael, and outlying pieces of Novato and Mill Valley), in-

prisingly devoid of races expected to be close, and indeed, most results were widely predict-

cumbent Dennis Rodoni also won handily against yet another poorly funded challenger,

ed.

albeit one who has run for this and other offices before.

COUNTY SUPERVISOR RACES

CITY COUNCIL RACES In District 2 (Ross Valley, and Southern San Rafael), incumbent Katie Rice ran unopposed.

In District 3 (Southern Marin, including Mill Valley, Tiburon, Belvedere, and Sausalito),

Ross re-elected two of the three incumbents whose seats were up—Elizabeth Brekhus and Beach Kuhl—and a new candidate, Bill Kircher, for a total of three attor-

Kate Sears is retiring at the end of her term at the end of this year, and overwhelming front-

neys winning the three seats.

runner Stephanie Moulton-Peters, a popular three-term Mill Valley Councilwoman (a rari-

Tiburon held a special election for a two-year seat caused by a councilmember’s recent

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recent resignation, and the apparent winner,

come of the original Measure Q in 2008), far

with a slight lead so far, is Jack Ryan (who has run before) despite another candidate being

short of the required 2/3 vote. The measure, which is sure to be seen at least once more on

endorsed by the Marin Democratic Party, and the other being endorsed by the Marin IJ.

a future ballot, with or without changes, received unexpected million-dollar campaign

Mill Valley had one of its incumbents step

contributions on both sides, resulting in a half dozen full-sized mailers from each. I heard

down, another (Jim Wickham) ran unopposed for a two-year seat caused by a colleague’s recent resignation, so only one incum-

bent, Sashi McEntee, ran for one of the three regular four-year terms. She won, along with new candidates Urban Carmel and Tricia Ossa.

criticism of SMART, generally regarding the annoying train horns during testing (sometimes, inexplicably, all night long), even though that was a Federal Railroad Administration requirement, not SMART’s decision.

Critics of the entire commuter rail concept

Corte Madera did not have a contested elec-

here continue to complain, with some justification, about the dismal ridership numbers

tion, as only two candidates, Fred Casissa and Charles Lee, both new, filed to run for the two

and high public subsidy, although SMART has different opinions. SMART also appears to

available seats.

many to be a hide-bound bureaucracy whose autocratic general manager doesn’t make

SANITARY DISTRICTS There were two sanitary districts with scheduled elections: a large one (Ross Valley, with incumbents Mary Sylla and Doug Kelley), and a small one (Almonte, with incumbents Kelley Kious, Robert Cox, and Anne Lahaderne), with all incumbents running for re-election and no challengers, so they didn’t even get put on the ballot.

COUNTYWIDE BALLOT MEASURES The big one, the Measure I SMART train tax extension for 30 years (starting in nine years when the original one expires), lost badly, with barely a majority (and surprisingly, better in Marin than Sonoma, the opposite out-

basic information publicly available (until recently, under pressure), like daily ridership numbers and trends.

Measure C, the new wildfire prevention tax, was barely over the required 2/3 vote at last count, so we’ll have to wait a couple weeks or so for final results. I heard a number of presentations on this measure, and comments about it, indicating that this was a first-class campaign, and very inclusive with lots of public input, on a subject near and dear to people’s hearts—more than ever in recent years.

The usual “no taxes ever” folks opposed it, but there was no organized opposition, and even the relatively new taxpayer association— COS—supported it.

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Measure D lost by 20 points, needing a simple

lunch) and Marin Assemblyman Marc Levine,

majority but getting only about 40%. It attempted to specify golf as the only allowable

both Democrats, skated to easy victories over their multiple but nominal challengers, both

use of the former San Geronimo Golf Course

with over 60% of the vote and huge leads

property (absent a future countywide vote

over their distant second-place finishers, who

for some other use), which would jeopardize

now have the honor of getting to do it again in

local community plans by subjecting them to

November with similar results. Volumes have

countywide votes for any changes. The meas-

been and will continue to be written about

ure was widely opposed by a long list of prom-

legislative and congressional seats nationally,

inent public officials and organizations, in-

and even in California, but suffice to say that

cluding environmental organizations.

Democrats have continued for a decade or

ARE VOTERS BECOMING LESS SUPPORTIVE OF TAXES?

two now to expand their legislative majorities in California to the point where they are

California voters generally, and Marin voters

now 2/3 supermajorities, and in 2018, flipped seven of California’s 14 Republican Congres-

especially, have always been pretty generous about passing tax measures the vast majority

sional seats (out of 53 total), so there may not be too many more they can flip, if any; the Re-

of the time (especially for schools), but maybe that’s changing now—even in Marin. Not only

publican registration edge in those few districts is pretty high. However, I think Republi-

did the SMART tax extension go down to defeat badly (with about 50% of the vote, when

can boasts to take back some of those seats

2/3 was required), but so did both the Novato School District’s and the Tamalpais High District’s parcel tax measures, getting 60% and 50%, both well short of the required twothirds. Even the statewide bond measure for school facilities, a staple every few years and

usually handily passed, is barely ahead with a simple majority, with many (provisional) ballots remaining to be counted in Marin and statewide.

CONGRESSIONAL AND LEGISLATIVE SEATS – AND TURNOUT Unsurprisingly, Marin Congressman Jared Huffman (a recent speaker at an MCBA

flipped in 2018 probably will not succeed.

Some say that the expected youth turnout increase did not occur this month, locally or nationally, so Bernie Sanders didn’t do as well as his supporters had hoped, and it bodes poorly as well for Sanders’ chances of beating Trump if Sanders is the Democratic nominee (which after looking suddenly very likely in February, now looks unlikely—see below on the presidential race).

THE PRESIDENTIAL RACE Few people would have predicted the magnitude of Joe Biden’s resurgence February 29 (South Carolina) and March 3 (Super

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Tuesday), after being a somewhat weak and

never polled in double digits anywhere), drop-

faltering frontrunner throughout last year, finally even losing his frontrunner status late

ping out a day or two before Super Tuesday and endorsing Biden, in a seemingly desper-

last year and early this year—first to Elizabeth Warren, and more recently to Bernie Sanders.

ate attempt to stop Sanders’ momentum.

(And, I suspect, preserve their own future via-

Biden also had surprisingly low fundraising numbers compared to other top candidates,

bility by giving them a way to “explain” their coming low vote totals on Super Tuesday). It

and did so poorly in the first three caucuses and primaries that people talked about him

worked, as they had enough supporters who trusted their judgment, resulting in increased

dropping out after or even before Super

turnout for Biden, who now has a modest del-

Tuesday. Especially after Sanders won Neva-

egate lead over Sanders. And the trend con-

da by a larger margin than expected, for his third straight win (or co-win) out of three. It

tinued just after Super Tuesday, with Bloomberg dropping out and endorsing Biden too.

(briefly) looked like Sanders was running away with it, and Biden would soon be gone.

The coming two weeks will feature another

But then Biden won South Carolina by a much larger margin than expected (largely credited to the large percentage of African-American voters who think fondly of Biden as Obama’s V.P.), and that momentum—along with sudden anti-Bernie desperation amongst several other candidates, including major ones who endorsed Biden just before Super Tuesday— propelled Biden a few days later to win 10 of the 14 states on Super Tuesday, far more than expected (including Texas and Maine, which Sanders was expected to win). Even California’s win for Sanders, among his four wins that day, was not as large as predicted; in Marin, the top finishers were Biden, Sanders, and Bloomberg, each between 21% and 25% of the vote. Other factors included major candidates like Pete Buttigieg (tied with Sanders to win Iowa’s caucuses, but faltered thereafter) and Amy Klobuchar (third-place finish in New Hampshire with 19%, even though she’d

half dozen states’ primaries each week, with mostly medium to large populations, so many more delegates will be awarded. Some think Sanders will win 50 more delegates than Biden in the first week’s states, bringing them to a tie in the delegate count (I disagree), but even those people might guess, based on how Sanders did against Hillary Clinton in those states four years ago, that Biden is positioned to win most or all of the second week’s states, giving Biden both a substantial delegate lead, and momentum, for a lead he may well never relinquish.

This Democratic presidential race, with an unprecedentedly large number of mostly very good candidates, didn’t change frontrunners every month (sometimes it seemed like each week) the way 2016’s Republican primary did. But it did feature some slow and gradual shifting among the top few over the past year,

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and while the movement and momentum

net members. Nominees usually choose a V.P.

shifts (and desperate anti-Bernie moderate dropouts) in the week before Super Tuesday

who will balance the ticket geographically (ideally able to bring home a state that other-

were remarkable, it’s a lot less likely that there will be more such shifts, given that it’s

wise might not be won), ideologically (as long as they’re not too different, and the VP agrees

now seen as a two-person race, with Biden the clear favorite, and he may well have a ma-

to go along with the nominee’s policies), and now, maybe even gender.

jority of the delegates locked up going into the convention in July (and if not, it will be a

Being a former presidential candidate looks

strong enough plurality that neither Sanders

good to voters, having been subjected to

nor anyone else will be able to deny him the

thorough public vetting, and shows that nei-

nomination).

ther the nominee nor the V.P. has any hard feelings, and that someone who firmly consid-

The poor showing of Warren, whom many would say was the former frontrunner, was

ered themselves capable of being president is in the number-two slot. Plus, it starts to look

surprising, in the first four states and then Super Tuesday, resulting in her dropping out

like Lincoln’s Team of Rivals, and I’ve always thought that many of the candidates this past

two days after Super Tuesday. She’d nearly always been in the top three, and some polls

year would make good cabinet members.

showed her leading nationally and in key

Buttigieg and Klobuchar fit many of those cri-

states in yet another surge in recent months,

teria, as does Warren, as well as now-long-

but she ended up coming in third in her home

departed Kamala Harris and possibly others.

state of Massachusetts on Super Tuesday.

Despite the obvious charisma and appeal of

Bloomberg had a poor showing in virtually every Super Tuesday state (his first contests), despite spending more than all the other candidates combined in a relatively short few months. Apparently money not only can’t buy you love, it seems unable to buy you the presidential nomination of a major party, at least if the product is no good.

It’s a little early to predict how big Biden’s lead could grow, and when he’ll “clinch” the nomination, but it may not be too early to speculate about V.P. choices, and maybe cabi-

Buttigieg, his mayoral experience pales compared to, say, Klobuchar’s Senate experience, and her recent rise in national prominence as a presidential candidate. An extremely solid woman like Klobuchar could be a very good V.P. pick indeed.

My dream would be for him to pick Elizabeth Warren. I admit it’s unlikely because she is in her early 70s, did so poorly in the first four primaries and on Super Tuesday, and is too liberal for many. And although it is sexist, some people clearly see her as just too

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school-marmish.

But she’s an extremely intelligent and capable policy wonk, and most importantly, could bridge the ideological wings of the Democratic Party like no one else. I think Sanders is too old to be V.P., and may chafe under Biden, and may not want the job because in his case it probably wouldn’t lead to being president because of his age, whereas Warren is nearly a

decade younger.

Some potential candidates may want to continue to serve in the Senate, which they can do for as many decades as they’d like, rather than serve in a cabinet position for perhaps only a short time—and eight years at most (and even that is rare). But they may make a different choice if they are offered the V.P. slot, as it may line them up to be the nominee four years from now, given that Biden may, by choice, be only a one-term president because of his age.

View this article at Marinbar.org Greg Brockbank is a 30-plus-year attorney and civic and political activist, having served for 22 years on the College of Marin Board of Trustees and then on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television. EMAIL | WEBSITE

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