ORANGE COUNTY
Volume 119, 2016 • $6.95
Conducting RFP Post Mortems
Eric Dewey
McIntyre’s Civil Alert Organized Succinct Summaries Where Do Attorneys Waste the Most Money in Their Marketing Efforts?
J.R. Oakes
What Makes a Super Lawyer Can Also Make a Super Website
Helen Gulgun Bukulmez Tired of Paying Referral Fees? Seek Alternative Case Drivers
Monty A. McIntyre
Predictions on What 2016 Will Hold for the Legal Profession
Bob Denney
What Does the Pace of Law Firm Mergers Mean?
Mike O’Horo
Tanner Jones
Attorney of the Month The Cifarelli Law Firm, LLP, Irvine
Thomas A. Cifarelli Strength for Victims
Specialization matters. Having represented more law firms over the last 25 years than any other broker in the region, no one understands their real estate needs better than I do. — JASON HUGHES President & CEO, Hughes Marino
ORANGE COUNTY CORPORATE REAL ESTATE ADVISORS
At Hughes Marino we only represent tenants and buyers – never landlords – so we never have a conflict of interest. Our only fiduciary duty is to our client, the tenant, and we are wholly committed to protecting their interests. If you are not happy with your service or results, then we will give you our commission. Guaranteed. (949) 333-3111 | www.hughesmarino.com
ORANGE COUNTY LOS ANGELES SAN DIEGO SAN FRANCISCO SILICON VALLEY
2016 EDITION—NO.119
TABLE OF CONTENTS 6 What Does the Pace of Law Firm Mergers Mean?
6
by Mike O’Horo
8 Conducting RFP Post Mortems by Eric Dewey
10 Predictions on What 2016 Will Hold for the Legal Profession by Bob Denney
12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor
16 Thomas A. Cifarelli of The Cifarelli Law Firm, LLP, Irvine Strength for Victims
EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners
by Jennifer Hadley
CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Bob Denney Mike O’Horo Monty A. McIntyre Eric Dewey J.R. Oakes Tanner Jones Helen Gulgun Bukulmez WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
ATTORNEY OF THE MONTH
16
22 Where Do Attorneys Waste the Most Money in Their Marketing Efforts?
24 McIntyre’s Civil Alert Organized Succinct Summaries
by J.R. Oakes
28
by Monty A. McIntyre
28 Tired of Paying Referral Fees? Seek Alternative Case Drivers by Tanner Jones
30 What Makes a Super Lawyer Can Also Make a Super Website by Helen Gulgun Bukulmez
Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal. Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2016 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
Court Reporting Access Wherever You Go. Read, Search, and Annotate Transcripts with ease using the convenience of your digital device.
DOWNLOAD OUR APP TODAY! DEPOSITION SERVICES •Certified Court Reporters •Court-Appointed Official Reporters •Certified Legal Interpreters •24/7, Last Minute Scheduling •Nationwide Deposition Coverage •Deposition Suites, Conference Centers •Realtime Depositions •Electronic Transcripts •Electronic Transcript CD •Litigation Support Software Integration •Complete Case Management
VIDEO SERVICES •Certified Legal Videographers •Video Conferencing •Video Deposition Streaming •Video Transcript Synchronization •Digital Deposition Streaming •Video Editing Tools ONLINE & MOBILE SERVICES •Online Deposition Scheduling •Online Document Repository •Jilio-Ryan Mobile App •Mobile Transcripts •Productivity Enhancing Transcript Tools
IMPROVED!
FREE App available
Contact us today for more about our newest time-saving deposition and litigation support services.
JILIO-RYAN C O U R T
W W W. J I L I O R YA N . C O M
R E P O R T E R S
800.454.1230
What Does the Pace of Law Firm Mergers Mean? by Mike O’Horo
For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He has trained more than 7,000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@ rainmakervt.com
A
ccording to a recent ABA Journal article, Law Firm Mergers Continue at Record Pace, the first nine months of 2015 saw the highest number of law firm mergers since Altman Weil began tracking them, and all were acquisitions of firms with fewer than 35 lawyers. In late December, Law360 reported that 2015 set a record for law firm mergers, again citing large firms acquiring smaller ones to fill in holes in geography or service areas. What does all this mean? In a word, “consolidation,” which signals market maturity, which in turn is defined as an absence of significant growth, and a lack of innovation. Whether you’re a large firm doing the acquiring, or a smaller one subject to being acquired, you’d be well served to understand the lessons of The Consolidation Curve, which explains how,
Industry Concentration CR31 100%
STAGE 1 Opening
once an industry is formed or deregulated, it moves through four stages of consolidation. I put law firms in the newly deregulated category because, for them, The Great Recession was really the Great Reset. While they weren’t formally protected by regulation, law firms were insulated from meaningful competition by years of unprecedented and steady increase in demand, driven by the growth of business complexity, and producing what The American Lawyer called the “Golden Age of law firms.” In 2008, forces that had been bubbling below the surface, long suppressed by the 25-year bull market for legal service, emerged to accelerate fundamental change akin to those that follow deregulation, most notably, out-of-category competition, such as law firms are seeing from legal-tech startups, “offshoring,” and other consultancies, and a decline in pricing power.
STAGE 2 Scale
STAGE 3 Focus
90%
Industry Consolidation Life Cycle Once an industry forms or is deregulated, it will move through four stages of consolidation – or disappear. CR3 – The combined market share of the three largest companies in an industry (based on A.T. Kearney’s ValueBuilding Growth database of 25,000 companies.) 1
STAGE 4 Balance and Alliance
Tobacco
80% Distillers Shipbuilding
70%
Aircraft OEMs Aerospace suppliers Truck builders
60% 50% Food
40% 30%
Breweries
Railway Telecom
Chemicals Airlines Services Drugs
20% 10%
Defense
Automatic controls
Utilities
Insurance
0%
6 Attorney Journal Orange County | Volume 119, 2016
Toys Rubber & tire producers Automotive OEMs Steelmakers
Restaurants & fast food Pulp & paper Automotive suppliers
Banks
Time
Shoes Soft drinks
The Harvard Business Review graph and article (previous page) suggests that law firms are in Stage 1. They’re advised to “build scale, create a global footprint, and establish barriers to entry by protecting proprietary technology or ideas.” While the previous spate of mergers and acquisitions that combined so many of the larger firms was often in pursuit of a global footprint, few law firms have proprietary technology or ideas to protect. This makes them vulnerable to innovators, whether from law boutiques or technology startups. Yet, despite the risk of obsolescence argued by the New York Times, inexplicably, law firms remain resistant to embracing the changes necessitated by their circumstances. The HBR model further urges firms to “focus more on revenue than profit, working to amass market share, and begin perfecting their acquisition skills.” Law firms have long been focused on profit, and it seems they’re trying to pursue both goals, i.e., revenue and profit. The inherent conflict may at least partially explain their struggle to formulate and apply a cohesive strategy. Most of the challenges derive from firms’ failure to recognize, or outright denial about, the fundamental shift in 2008 from a longstanding Seller’s Market to the Buyer’s
Market that is a permanent element of the law industry’s future. This Seller’s-Market-to-Buyer’s-Market shift is the most fundamental in business. It obsoletes virtually every strategy, operational philosophy, and business model that has characterized the business for the entirety of its existence.
Nothing that worked in a Seller’s Market will work in a Buyer’s Market. Nothing. In a Seller’s Market, everyone is a product company. In a Buyer’s Market, everyone must be a marketing and sales company. Whether an AmLaw 100 firm, a solo practice, or something between, the law business has been as far removed from marketing-centric as is possible. That has to change, and perhaps the biggest mindset shift is to accept that Sales is too missioncritical a function to trust to luck. It must be professionalized.
It doesn’t matter whether you hire a professional sales force or train your lawyers to sell professionally, it’s time for law firms to take Sales seriously, and stop hoping that a part-time, volunteer, occasional sales effort will somehow succeed. It simply can’t. n
FORENSIC TECHNOLOGIES, INC. We are a Southern California-based forensics firm offering a full-service mobile and Mac device forensics lab. We employ certified examiners with proven track records. Specializing in: · Cellular Phones and Tablets (Over 15,000 Models Supported) · Mac Computers · Assistance with Court Order Language for Obtaining Call Detail Records · Cell Tower and Geolocation Mapping Services · Joint Test Action Group, (JTAG) Procedures for Recovering Information from “Dead” or “Locked” Phones and Devices
9434 Chesapeake Drive Suite 1210 San Diego, CA 92123
619-235-6691 csr@ftforensics.com
Attorney Journal Orange County | Volume 119, 2016 7
CONDUCTING RFP POST MORTEMS by Eric Dewey
W
in rates on RFP competitions average between 30-50%. So you’re likely to have more losses than wins. Making the most of a loss by conducting a post mortem interview can not only help you improve your next RFP response but it can position you for work with the prospect that turned down your proposal should the winner not prove to be a good fit. Your firm should have a formal and consistent process for gathering feedback on RFP submissions, whether or not you win the competition. Information gleaned from wins and losses is equally valuable. And both send a powerful message that your firm is dedicated to continuous improvement and client satisfaction. It is important to be clear about what you are trying to accomplish when conducting post-RFP reviews with clients. The objective should be first to understand the company’s selection criteria and second to identify ways to improve your proposals and the communication of your services. Do not go into the meeting with the idea that you are going to find a way to win other work or reverse their decision. Clients can smell ulterior motives like rotting flesh and it will turn them off just as much. I suggest using third-party professionals who can provide an unbiased assessment, bring in other comparative experience and draw out the most honest feedback from clients. If, however, the lawyer(s) conduct the post mortem interview, it is important that 8 Attorney Journal Orange County | Volume 119, 2016
the interview is conducted as objectively as possible. Seek only to understand. Avoid defending the firm or trying to explain responses. There is much more value in learning the perceptions that clients have of the firm than to try to correct minor misperceptions of the firm’s response—unless they are glaringly and corrosive. Post mortems should be conducted in person where possible. Scheduling the post mortem should occur as quickly after the announced decision as possible and a brief set of questions should be sent to enable those interviewed to prepare for the meeting. The closer you can get to the actual decision makers, the better the information will be. You should try to get at least one person in the company to speak to you who was involved in the entire process and knowledgeable of as many functions which participated in the process as possible. Lastly, don’t forget to follow up with the clients with thank you notes and a memo describing some of the important lessons gleaned from the post mortem and any next steps or follow-up actions that were promised during the post interview. You will have impressed them with your focus on continuous improvement, so stay in touch with your contact at the company. You never know when another firm will screw up and they’ll be looking for a firm more focused on delivering high-quality legal services.
SUGGESTED QUESTIONS The following are a series of questions that you can use in the interview. They are in no particular order.
ELG Brightens Severance Packages
• Who won the work and why did they win it? • What qualities or strengths stood out about the winning firm?
• What qualities or weaknesses did you not like about the winning firm?
• How many people and who were they that had influence over the final selection decision?
• What non-legal services factored into your decision (non-accounting or non-legal)?
• How did you select the firms which received the RFP? • On which key factors did the decision hinge and how would you prioritize the importance of each of these key factors?
• What was the overall impression of our firm? • What was your overall impression of our people at the presentation?
• What did you find were the strengths of our firm? • What did you find were the weaknesses of our firm? ©2016 Executive Law Group, Inc.
• What was your impression of the working relationship exhibited by our team in the presentation?
• Were we accessible for your questions and how well were your questions answered?
• How did our pricing/fees line up with the other firms? • What other advice would you give us to help us improve our responses?
• Is there anything we should ask that we didn’t ask? • How would you rate the quality of our written materials? • How would you rate the quality of our technology offering?
• How would you rate the quality of our understanding of your business?
• To what extent did diversity, pro bono, community
investment and other initiatives weigh on your decision?
• Would you consider us for other service needs that you have or if your main firm is conflicted out? n
Eric Dewey authors the Legal Marketing Blog, Lawyer Up! and was recently named the Guest Expert of the ABA’s annual marketing and client development edition of Law Practice Management magazine, due out in November of 2013. Dewey’s expertise includes client development; strategy and planning; marketing ROI and client opportunity analysis; client service training and program development; brand and reputation management; and organizational improvement. He can be reached at: 502-693-4731 or at www.groupdewey.com.
The Preferred Referral for Executives and Professionals!
ELG
® ✓Severance
Executive Law Group®
Legal Services for Executives and Professionals in Transition
Packages
✓Employment Contracts ✓Crisis Counseling ✓Litigation
Refer executives and professionals to execlaw.com or contact us toll-free for a free pre-consultation.
R. Craig Scott, Esq. Founder and Managing Partner “AV Preeminent® ” Rated
888.920.EXEC (3932) Attorney Journal Orange County | Volume 119, 2016 9
Predictions on What 2016 Will Hold for the Legal Profession by Bob Denney
For more than 30 years Bob Denney has been regarded as a leading authority on strategy, marketing management and leadership for law firms throughout the United States and parts of Canada. He is a Fellow in the College of Law Practice Management and was one of the first inductees into the Legal Marketing Association’s Hall of Fame.
E
very December, David J. Bilinsky, an international practice management consultant based in Vancouver, invites experts on the legal profession to predict what will happen in the coming year and publishes their responses on his blog, www.thoughtfullaw. com. The following was recently posted on that blog. The winds of change that have been buffeting the legal profession, not only in the United States and Canada but also world-wide, will intensify. These will be some of the strongest gusts: 1. The number of non-law service providers will continue to increase, as will the number of services they provide at less cost than firms can afford to charge. 2. Legal departments in corporations and non-profit organizations will continue to grow in size because clients will keep more legal work in-house since it is less costly and can be managed more efficiently.
3. The large international firms will continue to grow in size as they merge-in other firms, but the total number of practicing lawyers in firms and legal departments will continue to decrease and fewer people will enter the profession. 4. Non-lawyers with backgrounds in business, marketing and technology will continue to play a greater role in the management and operations of law firms. 5. The Big Four Accounting firms will continue quietly but steadily building their legal services divisions in the countries that have authorized multi-disciplinary practices (MDPs), Britain, Australia and Mexico. However, rather than trying to build full-service practices, they will continue to concentrate on areas of law that complement their existing services such as immigration, which fits with expatriate tax work, labor which fits with human resources consulting and compliance, commercial contracts and due diligence. n
LUDWIG LAW CENTER, INC. The Small Firm Making a Big Difference! • Domestic violence
• Modifications
• Mediation services
• Custody visitation
• Dissolutions
• Restraining orders
• Property settlements
• Paternity action
• Guardianship
• Pre-marital and postmarital agreements • Business Litigation
Ludwig Law Center offers a variety of family law services to all courts in Orange County, San Diego County, Los Angeles County, Riverside County and San Bernardino County. Using our knowledge and experience, we work hard for your referrals. We are committed to seeing our cases through to their final resolution. LudwigLawCenter.com | 714-283-1023 | LudwigLawCenter@Hotmail.com | Referrals Paid 10 Attorney Journal Orange County | Volume 119, 2016
COMMUNITY news n Andrew R. Nelson has been promoted to Shareholder at Friedman Stroffe & Gerard, P.C., a leading transactional and litigation law firm based in Irvine. Nelson leverages his 14 years of litigation experience to help clients resolve disputes, not only successfully, but cost-efficiently. His practice focuses on avoidance ANDREW R. NELSON and resolution of commercial disputes, including those involving trade secrets, complex commercial contracts, trademarks, copyrights, and other intellectual property issues and business practices. Nelson has represented clients coming from the financial services, defense, professional staffing, and apparelfootwear-accessories manufacturing and retail industries. A U.S. Army veteran, Nelson has a particular interest helping veteran-owned and veteran-directed businesses. Outside the office Nelson has chaired the Orange County Bar Association’s Entertainment, Sports & Marketing Section (2015) and is a member of the 82nd Airborne Division Association. Nelson earned his J.D. from the University of the Pacific (2001), and his B.A. in political science and history from the University of Washington (1998). n Umberg Zipser LLP is pleased to announce that the firm has once again been named “Tier One” in the 2016 “Best Law Firms” list by U.S. News & World Report and Best Lawyers® for the Orange County metropolitan area. The firm received a Tier One ranking in Commercial Litigation and Intellectual Property TOM UMBERG Litigation for the second year in a row, and this year also received a Tier One ranking for Real Estate Litigation. The firm also was recognized for its excellence in Banking & Finance Litigation. Firms included in the 2016 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News—Best Lawyers “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Clients and peers were asked to evaluate firms based on the following criteria: responsiveness, understanding of a business and its needs, cost-effectiveness, integrity and civility, as well as whether they would refer a matter to the firm and/or consider the firm a worthy competitor. 12 Attorney Journal Orange County | Volume 119, 2016
n Jennifer V. Stroffe has been promoted to Shareholder at Friedman Stroffe & Gerard, P.C., a leading transactional and litigation law firm based in Irvine. With over 13 years of experience in complex business and real estate transactions, Stroffe acts as outside general counsel to various businesses ranging JENNIFER V. STROFFE from local startups to national companies. Her practice focuses on the structuring, negotiating and closing of commercial transactions, including the acquisition, disposition and financing of businesses, real property and personal property. Stroffe provides advice to Firm clients on all types of business matters, from corporate governance, commercial contracts, licensing, leasing and the myriad other corporate and real estate issues faced by most businesses. n Eric Traut’s client has sued Applebee’s restaurant after finding a bloody fingertip in a salad at Applebee’s Paso Robles on December 20, 2015. Last month the news made national headlines by being featured on Saturday Night Live. “It was so gross,” says Cathleen Martin of Atascadero. “I’m on ERIC TRAUT pins and needles worrying about what my family might have been exposed to,” saying she was particularly alarmed because she is expecting her first child in March. Martin, her husband, and young child had all eaten from the Chinese Chicken Salad before the bloody fingertip was seen. Upon finding the bloody fingertip, the family then notified the restaurant which ID’d the fingertip as belonging to an employee at the location. A letter sent to the family from Applebees’ counsel nine days later indicated they would not require the cook to undergo any medical tests. Martin’s attorney Eric Traut of Traut Firm has represented consumers in numerous similar cases and has found that foreign objects in food, including body parts, are not as uncommon as one would hope. Although Traut would call finding a condom in your soup a rare occurrence, he handled such a case in 2009, against Claim Jumper, raising awareness and concerns about finding non-food items in a meal. “I’d like to think diners may go out without fear of finding something dangerous, anatomical, or biological in their meal,” says attorney Eric Traut. Traut is suing for damages including emotional distress, medical expenses for testing, and lost income.
COMMUNITY news n For the sixth year in a row, Aitken Aitken Cohn has been named a Tier One Best Law Firm by U.S. News and World Report and Best Lawyers® in the areas of Commercial Litigation, Personal Injury Litigation, and Product Liability Litigation. Compiled in partnership with Best Lawyers®, the U.S. News & World Report rankings were determined through a rigorous process including peer-review selections, client evaluations, and other various objective data. WYLIE AITKEN In addition to the firm being recognized as a Best Law Firm, Wylie Aitken, the firm’s founding partner, has been selected by his peers for inclusion in The Best Lawyers in America© since 1987! This year, Aitken Aitken Cohn attorneys Christopher Aitken, Darren Aitken, Richard Cohn, Casey Johnson, Michael Penn, and Ashleigh Aitken have also been selected to The Best Lawyers in America©. Aitken Aitken Cohn would like to thank our peers and clients for recommending our firm to receive this significant honor. Aitken Aitken Cohn strives to ensure our clients’ best interests are always first and foremost, and works tirelessly to achieve the best results for our clients. We are proud that our efforts have been recognized by our peers and will continue to provide superior legal representation. n Easton & Easton LLP has been named a 2015 Litigator Award Winner. Having confirmed this prestigious National Award, the firm ranks among the Top 1% of all lawyers for Personal Injury, Wrongful Death, Automobile Accident and Catastrophic Injury Litigation.
MATTHEW D. EASTON
n Newmeyer & Dillion is pleased to announce that a number of its partners have again been recognized by The Best Lawyers in America® peer review as some of California’s Best Lawyers in multiple categories. Our partners were recognized in the following practice areas in 2016 for Newport Beach, CA: Michael S. Cucchissi Real Estate Law; Jeffrey M. Dennis Insurance Law; Gregory L. Dillion Commercial Litigation, Construction Law, Insurance Law, Litigation – Construction, and Litigation – Real Estate; Joseph A. GREGORY L. DILLION Ferrentino Litigation – Construction and Litigation – Real Estate; Thomas F. Newmeyer Commercial Litigation, Construction Law, and Litigation – Real Estate; John A. O’Hara Litigation – Construction; Bonnie T. Roadarmel Insurance Law; Carol Sherman Zaist Commercial Litigation. In addition, Greg Dillion and Tom Newmeyer were selected respectively as Orange County’s “Lawyers of the Year 2016” in Insurance Law and Construction Law. Greg Dillion and Joe Ferrentino previously have been honored as Orange County “Lawyers of the Year 2015” in Real Estate Litigation as well. “We take pride in hiring great attorneys who will deliver the highest quality service and results for our clients. This recognition confirms that we are doing just that. It is a great honor and well deserved recognition for our partners to be selected by their peers as the Best Lawyers in their fields,” said Managing Partner, Jeff Dennis.
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
Attorney Journal Orange County | Volume 119, 2016 13
SOUTHERN CALIFORNIA’S LEADERS IN… • ESI Processing & Hosting • Data Acquisition & Forensics • Managed Document Review • Paper-based Discovery Services • Court Reporting With offices in LA Downtown, LA Century City, Irvine and San Diego DTIGlobal.com
14 Attorney Journal Orange County | Volume 119, 2016
FREE MCLE SEMINARS! Call us for information to schedule a complimentary in-person or webinar MCLE seminar on a variety of electronic discovery topics.
16842 Von Karman Avenue, STE 375, Irvine, CA 92606 Office: (949) 622-0650
STRENGTH for Victims Tom Cifarelli Uses More than 20 years of Experience, Compassion, and Sheer Grit to Stand Strong and See Justice Served for Victims of Sexual Abuse and Catastrophic Personal Injuries by Jennifer Hadley
O
ver the last twenty years, Orange County native Thomas A. Cifarelli has built a plaintiff’s personal injury law firm that is unique not only in the astounding number of victories won for victims, but is also unique in its caseload. With a practice that is nearly evenly split between representing victims of catastrophic personal injuries, and victims of sexual abuse, Cifarelli’s advocacy for children in particular has resulted in published decisions including the precedent-setting invasion of privacy case M.G. et al vs. Time Warner, Inc. et al, 89 Cal. App. 4th 623 (2001) where he took on one of the largest media companies in the world and won a landmark invasion of privacy published decision on behalf of child sexual abuse victims. “We succeed for our clients by providing strength when our clients need it through zealous, tireless and exhaustive representation,” Cifarelli says. “We will leave no stone unturned to find the evidence and argument to win a client’s case.” With three fellow attorneys, including his brother and partner Phillip Cifarelli, and a talented and reliable support team, Cifarelli has helmed his own firm since 1997, but has been passionate about fighting for victims since he was a child.
No Substitute for Experience
“My dad was a doctor and a lawyer and suggested I become a professional: doctor, lawyer, or military. I chose the law because I had a very early desire to do what I thought lawyers did: argue for the underdog,” Cifarelli says. After graduating from UCLA magna cum laude, and earning his J.D. from Loyola Law School, Cifarelli is candid when he says he began his legal career in much the same way most young lawyers launch into their new profession. “I had a powerful drive to get to the bottom of cases. I worked hard, as an associate at two fine Los Angeles plaintiff’s law firms.” 16 16 Attorney Journal Orange County | Volume 119, 2016
While working at the Law Offices of Philip Michels— whom Cifarelli credits with being a lifelong mentor—the now nationally recognized sexual abuse victim’s advocate would first be introduced to sexual abuse cases. “Phil was doing a lot of medical malpractice cases at the time, and asked me to take a look at a new file that was a little different. It had a couple pieces of paper in it. It was so thin. He said he wanted me to look into it. I opened it. There were handwritten police reports which had much of the information redacted. I realized it was a sexual assault case. But it was a child-on-child sexual assault case. There were two separate police reports of the same type of assault.” That was in 1995, and Cifarelli had no idea at the time that he was going to be thrust into the media spotlight for that case and others. He just knew that he wanted to fight for victims. “When I took my first sexual assault case in 1995, very few people were handling child sexual abuse cases and those who were often didn’t appear to know how to evaluate them, sometimes settling them for less than I would have. Although they are not cases with a lot of medical bills upon which to base the claim, they have devastating consequences that last a lifetime,” he says. This very first sexual assault case, VC v. Los Angeles Unified School District, involved a 1994 incident where “an extremely dangerous elementary student repeatedly sexually assaulted a 9-year-old boy, who I was honored to represent,” Cifarelli says. He and Michels took that case to trial and won a seven-figure verdict that was at the time the largest student-on-student sexual abuse jury verdict in Los Angeles. Although Cifarelli saw his proverbial star rise following the verdict, the real reward came from seeing the victim who “suffered tremendously, but got the treatment needed to move forward and live a productive life. The victim went from a timid
©Christopher TODD Studios
The Cifarelli Law Firm Attorneys: Krysta Monet Sebastian, Philip Cifarelli, Thomas Cifarelli and Myles Couch
child to a vindicated adult. The lawsuit provided the victim with a voice,” Cifarelli says. That lawsuit also helped Cifarelli become the go-to sexual abuse victim’s attorney in Southern California, as he found an increasing passion for these specific types of cases.
Compassionate Core
“Victims of sexual abuse face life-long pain and torment and often suffer in silence. They suffer horrible injuries but the injuries may be invisible. There is also shame that often doesn’t go away. Many victims of sexual assault go on to engage in self-destructive behaviors, such as drug abuse. Suicide is also not uncommon, along with depression, and often PTSD. That’s why getting our clients into therapy as fast as possible is very important for their long-term health and wellness.” Unfortunately, he admits there are a whole lot of young victims of sexual abuse who are not getting the therapy and treatment they need. In fact, incidences of sexual assault on school campuses are frankly staggering. Cifarelli cites a 2004 study commissioned by the U.S. Department of Education which found that 10% of students will experience some form of sexual assault or harassment between the grades of K-12. “That’s hundreds of thousands of kids, just in the schools. Then there are the church cases, or sports teams. Parents turn their children over to people they think they can trust and then the worst sometimes happens. I hear terrible stories every day. These children have been abused and my job is to fix it, to give the victim vindication, and to put the institution that failed the child on 18 Attorney Journal Orange County | Volume 119, 2016 18
trial. When, for example, other teachers are complaining of the bizarre behavior of a particular teacher, and the school refuses to acknowledge it or take action to stop it, how dare they say they are not responsible, not negligent?” “The damage from abuse can be devastating, life-long and can impact an entire family. Many times our first task is to get them into suitable counseling right away, often working with certain state agencies aimed at providing victims of abuse with counseling and medical services. If they don’t have transportation to get to their counseling appointments, we’ll arrange it to make sure they are getting the care they need. If a client needs to get out of a bad environment, we’ll help get them into a better situation that will help them with their recovery. Victims have a tendency to want to repress their abuse, hoping the pain will go away. It never does. In fact, without prompt and effective treatment victims may have enormous problems coping with their abuse for their entire lives,” Cifarelli explains. A clear example of how sexual abuse victims suffer even years after the abuse can be seen in Cifarelli’s published decision M.G. et al vs. Time Warner, Inc. et al, 89 Cal. App. 4th 623 (2001). According to the decision, ten plaintiffs, including eight children and two adults, claimed that they were publicly identified without consent in a picture published in a magazine article and a television show about coaches who sexually molest their players. The plaintiffs stated that after the stories came out they were teased and harassed at school. The decision came down to who wins when free speech rights collide with privacy rights.
The defendants were represented by Harvard Professor Lawrence H. Tribe and a huge national law firm. Cifarelli won a unanimous published decision, establishing the right of his clients to be free from nonconsensual public identification in connection with the sensitive subject matter of child sexual abuse. Cifarelli recalls that most attorneys he talked with at the time cautioned him against taking on a First Amendment case against a corporate media giant, but he trusted his gut. To this day, Cifarelli smiles anytime a news program obscures the image of an underage victim of sexual abuse or one otherwise involved in a newsworthy story. “It’s the law,” he says simply. When it comes to helping victims of sexual abuse, Cifarelli is determined to do whatever he can, using his unique experience to help those who need it most. As such, he is happy to help fellow attorneys who find themselves in over their heads with a sexual abuse case. “Not long ago while representing two children who were victimized by a pedophile school teacher, I received a phone call from a seasoned lawyer who represented another victim of the same teacher in his own case, which he had filed in a different court house. He picked my brain about the case. We had a friendly conversation and then I didn’t hear from him for a while, but heard through the grapevine that he’d settled his case pending court approval.” In the meantime, Cifarelli had won a favorable and widely publicized result for his own clients who had been victimized by the same teacher. “The same lawyer heard about my result and called, asking me to unwind his settlement and take it to trial. I took it over, aggressively litigated it and eventually won a recovery for the client about five times larger than the first lawyer’s settlement. That lawyer was thrilled and, of course, so was the client. We don’t accept a lot of cases, so that we can really concentrate on those we do take to win the best possible result,” he explains. More than twenty years after taking his very first sexual assault case, Cifarelli has handled hundreds of sexual abuse cases, where the overwhelming majority of the victims are children. Cifarelli says, “I’ve handled cases against religious organizations, public and private schools, youth sports leagues, hospitals, Foster Agencies, Children and Family Services offices and private individuals.” All the while, The Cifarelli Law Firm is also handling ongoing
catastrophic personal injury cases and wrongful death cases. “These involve car accidents, store-front crashes, electrocution incidents, people harmed by defective products and medical malpractice cases as well as cases involving defective medical products or devices,” he says.
Sheer Grit
In discussing some of the horrifying injuries and instances of abuse he’s seen over the years, it is undeniable that Cifarelli is moved by the suffering his clients have experienced. However, he’s very clear that it is his job to remain calm and comforting when working with victims who have already experienced so much trauma. To that end he says that a daily exercise regimen and close contact with his large Italian family, along with collaboration with fellow attorneys, are cornerstones in ensuring he remains mentally and emotionally strong for his clients. “I like tennis, running and working out. I lift weights on a daily basis starting at 5:30 am. I don’t lift the really heavy stuff I used to, now it’s about fitness and stamina. My early morning workouts keep me focused, fit and energized, so a long day at work is a breeze, physically. Being physically fit increases mental focus and gives me the strength to work tirelessly for my clients.” The focus on his own health and wellbeing is indisputably one of the reasons Cifarelli has been able to publish articles, deliver speeches and represent plaintiffs in cases all over the state, including as part of the landmark $660 million Clergy sexual abuse settlement in Los Angeles, as well as serving as a member of Plaintiffs’ Steering and Discovery Committees in national medical device litigation. Over the years he’s amassed numerous awards and legal distinctions, including becoming one of the youngest attorneys to earn an AV-Preeminent Rating from Martindale Hubbell, which he received after only 8 years in practice. “Very early on in my career I was fortunate to work with a prominent plaintiff’s firm where I was given enormous responsibilities over huge cases. I was working with great lawyers, running big cases, taking hundreds of depositions per year all over the country, trying and arbitrating cases and I was constantly in court. So I was able to learn more in three years than most lawyers learn in twenty,” Cifarelli says. He’s been named
Attorney Journal Orange County | Volume 119, 2016 19
Contact Thomas Cifarelli The Cifarelli Law Firm, LLP 7700 Irvine Center Drive Suite 150 Irvine, CA 92618 949-356-0126 tomc@cifarellilaw.com www.cifarellilaw.com
©Christopher TODD Studios
EXPERIENCE
one of the Top 500 Plaintiff Attorneys in America by Lawdragon Magazine, and a Southern California Super Lawyer® each and every year since the inaugural list was published in 2004. Since 1999, he’s been a life member of the Million Dollar Advocates Forum. He has also been selected as one of the Top 100 Trial Lawyers in California by The American Trial Lawyers Association and recently won the 2015 Litigator Award from the Trial Lawyers Board of Regents. Cifarelli also spends a great deal of time with his own sons. “If I’m not at one of their sporting events, then we are always working out together, playing tennis, traveling or catching a game at the Rose Bowl or Pauley Pavilion. We’re big UCLA fans,” Cifarelli says with a smile. “I’m hoping one or both of them join me in the practice one day.” In the meantime, he does get to spend his work days alongside his own brother, Philip in the firm. “He’s a very good lawyer and a trusted partner and confidante. I’ve been fortunate to work with him for the last 19 years. My sisters and their families also live nearby, and our extended family is close,” he adds. As for the future, Cifarelli has no plans to stray from his current course of representation for victims of sexual abuse, and those who have suffered catastrophic injuries as the result of the wrongdoing or negligence of others. However, he does expect The Cifarelli Law Firm to continue to grow. “I represent clients all over California, sometimes in other states, and that will continue. We have a great team and dedicated support staff; everyone really cares about helping our clients and getting them the best possible results. We’re a boutique firm where the whole office pulls together to win cases.” Moreover, Cifarelli is quick to point out that his firm routinely works with certain trusted fellow attorneys, and that alliances are critical to his professional success, which is contingent upon the favorable outcomes, vindication, medical treatment, counseling, and winning the monetary compensation his clients deserve. “We are fortunate to have close friendships with some great lawyers with whom we enjoy collaborating, especially when we represent multiple clients in important cases. They’ll bring us in to some of their bigger cases. And when we have multiple clients in one case, sometimes it makes sense for us to call in separate counsel for certain clients. Bringing other great lawyers aboard can help make sure each client’s claim is appropriately addressed while also adding strong allies to a case, giving a new and helpful perspective. This team approach is a very effective way to make sure we are giving our clients the best possible representation.” n
» EDUCATION
• BA, Magna Cum Laude, UCLA (1989) • JD, Loyola Law School Los Angeles (1992)
» AWARDS AND ASSOCIATIONS
• Admitted, Supreme Court of the United States, (2001) • Admitted, U.S. District Court, Central District of California, (1994) • Lifetime Sustaining Member, Consumer Attorneys Association of Los Angeles • Member, Consumer Attorneys Association of California • Member, American Association of Justice • Member, Los Angeles County Bar Association • Board Member, Consumer Attorneys Association of California (2000-2001) • 2015 Litigator Award recipient, Trial Lawyers Board of Regents • Lawyer of the Year, Best Lawyers in America, U.S. News & World Report, (2015) • Best Lawyers in America, U.S. News & World Report, (2011-2016) • Southern California Super Lawyers, (2004-2016) • Orange County Top 50 Super Lawyers • National Trial Lawyers, Top 100 Trial Lawyers in California • AV Preeminent Rating since 2001, Martindale-Hubbell • Top 500 Plaintiff Lawyers in America, LawDragon
20 Attorney Journal Orange County | Volume 119, 2016 20
• Avvo 10.0 Superb Rating
“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size. We recently settled a significant case in Nevada after two days of mediation. Rick was masterful in dealing with the retired judge mediator, the defense team, and our clients, and he maximized the recovery. Whenever I need anything in Nevada, the Richard Harris Law Firm is there for me.” ~ C. Michael Alder, Esq., Alder Law
CAALA Past President and Trial Lawyer of the Year 2004 Los Angeles, California
“I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick’s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client’s sizable recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick’s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case.” ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010 San Francisco, California
© 2015 RHLF
Where Do Attorneys Waste the Most Money in Their Marketing Efforts? by J.R. Oakes
AS WE SETTLE INTO 2016, we wanted to ask a few legal marketing experts where they saw attorneys wasting the most money in their marketing efforts. All of the experts have direct—and deep—experience with legal marketing, so this should help to refine your efforts for 2016. We asked each of the experts below, “Where do you think attorneys waste the most money in their marketing efforts?” The order of the responses is exactly as we received them. Thank you to all the law firm SEO experts for weighing in. If you are on Twitter, this would also serve as an excellent list of several of the best minds in the industry to follow.
LARRY BODINE Editor in Chief—The National Trial Lawyers and PersonalInjuiry.com | Website | Twitter: @larrybodine
Answer: Pay Per Click. Attorneys are constantly bidding up broad PPC keywords like “plaintiff personal injury” in competition with other lawyers. The term is so overused. A better move is to bid for injury-specific keywords like “brain injury” or “a-fibrillation.”
22
Attorney Journal Orange County | Volume 119, 2016
GRANT BROTT Lead Marketing Consultant at Consultwebs | Website | Twitter: @grantbrott
Answer: A lot of money is wasted on local media websites for online ads that don’t drive any actual client leads, just traffic. Unless they are leveraging retargeting lists, then it is just a paid banner that does nothing for the firm. Running these can be effective if there is tie-in to a recent recall or product issue. Normally, though, they are just branded banners with no target. There is not enough thought put into audience and tracking, which leads to a complete waste of money on the tactic. BILL SLAWSKI President of SEO by the Sea and Director of Search Marketing for Go Fish Digital | Website | Twitter: @bill_slawski
Answer: Many attorneys seem to want to target too large or broad of a set of terms, rather than creating content and pages and campaigns for the people who are most likely to choose to become their clients, within the jurisdictions they operate within.
GYI TSAKALAKIS Founder AttorneySync: Online Legal Marketing | Website | Twitter: @gyitsakalakis
Answer: In terms of total dollars, I suspect offline advertising (e.g. television, billboards, print, etc.). It’s not that these channels are wasteful per se, but that most attorneys aren’t measuring the return on ad spend from these expenditures. After those, probably via the AdWords legal bid war. In other words, uninformed campaigns designed to “be in the number one position for all relevant keywords regardless of their performance to generate a fee.” CONRAD SAAM Founder of Mockingbird Marketing | Website | Twitter: @conradsaam
Answer: This is hard to pick just one—I’d say most attorneys don’t have a clue how effective their marketing is by individual marketing channel, so there is lots of wasted money. Having said that, the industry as a whole blows the most money trying to “win” AdWords, followed closely by the thinly veiled regurgitation of news stories as blog posts. Sadly, there are still some attorneys who are still investing time and money building the raw count of Facebook likes and Twitter followers and Pinterest…. PAUL JULIUS SEM Lead at Consultwebs | Website | Twitter: @pj_julius
Answer: Using any SEM/PPC management company that does not specialize in legal
advertising is a very bad investment. This is one of the most competitive and expensive verticals for AdWords, and you can’t leave that up to people who don’t deal with it on a regular basis. What the “one-size-fits-all” companies do may be OK for the local florist or mechanic who aren’t going to be spending thousands of dollars per month, but I’ve seen some bad things happen because many times these companies are focused on getting as many clicks as possible, regardless of how relevant they may be. MIKE RAMSEY President of NiftyMarketing and NiftyLaw | Website | Twitter: @mikeramsey
Answer: It would be really easy to say the biggest marketing waste is done with billboards, newspapers, TV ads, or print yellow pages, but I have come to see that all forms of marketing can bring ROI if done correctly. Some law firms are making old media methods work very well for them. I think the problem is in the tracking and attribution. If people don’t track well, then they can waste a lot of money in Adwords, or online directories, or anywhere else, and end up with a negative return on investment. So, for me, the most money wasted is on anything or anywhere that can’t have some form of measurement or attribution. n J.R. Oakes is in charge of developing and managing our comprehensive approach to search engine optimization for our law firm clients at Consultwebs.com. In this role, J.R. constantly analyzes and adapts our SEO strategy to address the constantly changing factors that go into high search engine rankings. Her can be reached at: 800-872-6590.
Attorney Journal Orange County | Volume 119, 2016
23
McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq.
Monty A. McIntyre has over 30 years of experience as a mediator and arbitrator. More than 35 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at 619-233-1323 or kelsey@adrservices.org
CALIFORNIA COURTS OF APPEAL Attorneys M’Guinness v. Johnson (2015) _ Cal.App.4th _ , 2015 WL 9583486: The Court of Appeal reversed the trial court’s order denying a motion to disqualify a law firm. The motion arose in a lawsuit between shareholders over the operation of a small construction firm. One of the grounds argued by the moving parties was concurrent representation. In denying the motion, the trial court reasoned that the evidence was insufficient to warrant automatic disqualification based upon a concurrent representation conflict of interest. The Court of Appeal disagreed and held that the undisputed facts demonstrated that the law firm continued to represent the corporation through the time the lawsuit was instituted. If a party moving to disqualify an attorney establishes concurrent representation, the court is required, in all but a few instances, to automatically disqualify the attorney without regard to whether the subject matter of the representation of one client relates to the representation of a second client in the lawsuit. While disqualification is a drastic measure, and motions to disqualify are sometimes brought by litigants for improper tactical reasons, disqualification is not generally disfavored. When the circumstances of a disqualifying conflict exist, disqualification is required. (C.A. 6th, December 30, 2015).
Civil Procedure Castillo v. DHL Express (USA) (2015) _ Cal.App.4th _ , 2015 WL 9703433: The Court of Appeal affirmed the trial court’s dismissal of plaintiff’s wage-and-hour class action and individual complaint defendants for failure to prosecute within the five-year period provided by Code of Civil Procedure section 583.310. The tolling provision regarding mediation in section 1775.7(b) applies only to mediation conducted in a court-annexed alternative dispute resolution program. The 24
Attorney Journal Orange County | Volume 119, 2016
Court of Appeal also concluded that plaintiff failed to show it was impossible, impracticable or futile to bring his case to trial within five years. (C.A. 2nd, filed December 15, 2015, published January 14, 2016).
Civil Rights Fetters v. County of Los Angeles (2016) _ Cal.App.4th _ , 2016 WL 98581: The Court of Appeal reversed a $1.1 million compensatory damages jury verdict for plaintiff, and an attorney fee award of over $2 million, following the trial court’s ruling, in a bifurcated bench trial, denying defendant’s argument that, under Heck v. Humphrey (1994) 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (Heck), plaintiff’s 42 U.S. Code section 1983 claim was barred by his plea bargain in a juvenile court proceeding that admitted he had brandished an imitation firearm so as to cause the two deputies and a third party fear of bodily harm. The Court of Appeal concluded the trial court erred in denying the Heck defense because plaintiff was convicted and/or sentenced for brandishing an imitation firearm, a judgment for plaintiff in his section 1983 action would necessarily imply the invalidity of his conviction and sentence, and the dismissal of the criminal petition against plaintiff following his successful completion of probation was not a termination of the criminal proceeding in his favor. (C.A. 2nd, January 8, 2016.)
Class Actions Castillo v. DHL Express (USA) (2015) _ Cal.App.4th _ , 2015 WL 9703433: See Summary above under Civil Procedure.
Corporations Speirs v. Bluefire Ethanol Fuels, Inc. (2015) _ Cal.App.4th _ : The Court of Appeal affirmed in part, and reversed in part, the trial court’s rulings following a bench trial in a case where plaintiffs alleged breach of fiduciary duty and breach of warrant agreements after defendant refused to apply an anti-dilution provision in the warrants to an equity line of credit transaction entered into by
defendant. The Court of Appeal agreed with the trial court’s ruling that the breach of fiduciary duty cause of action was unmeritorious as a matter of law. A corporation’s officers do not have a fiduciary duty to warrant holders. The Court of Appeal also agreed with the court’s interpretation of plaintiffs’ warrants. The anti-dilution provision applied to the equity credit line agreement and stock issuances to the finance company resulting from that agreement. However, the Court of Appeal found that the trial court erred in reducing plaintiffs’ exercise price to $0 because substantial evidence did not support that decision. The matter was reversed and remanded for retrial solely on the proper remedy for defendant’s breach of contract. (C.A. 4th, filed December 15, 2015, published January 12, 2016.)
Employment Alvarado v. Dart Container Corporation of California (2016) _ Cal. App.4th _ , 2016 WL 164636: The Court of Appeal affirmed the trial court’s summary judgment for defendant. The sole question was whether defendant’s formula for calculating overtime on flat sum bonuses paid in the same pay period in which they are earned was lawful. There is no California law specifying a method for computing overtime on flat sum bonuses. Because defendant’s formula complied with federal law, which provides a formula for calculating bonus overtime, defendant’s formula was lawful. (C.A. 4th, filed January 14, 2016.)
Insurance Vardanyan v. Amco Insurance Company (2015) _ Cal.App.4th _ , 2015 WL 9654037: The Court of Appeal reversed the trial court’s directed verdict for defendant based upon a special jury instruction the trial court decided to give regarding coverage. The special instruction requested by defendant ran afoul of the efficient proximate cause rule in California. A policy cannot extend coverage for a specified peril, then exclude coverage for a loss caused by a combination of the covered peril and an excluded peril, without regard to whether the covered peril was the predominant or efficient proximate cause of the loss. The trial court erred in deciding to give the special instruction rather than CACI No. 2306. The Court of Appeal also concluded that the special instruction was improper because it placed on plaintiff the burden of proving his loss fell within the contested coverage provision, instead of requiring defendant to prove that the loss was excluded. (C.A. 5th, filed December 11, 2015, published January 7, 2016.)
Legal Malpractice Kelly v. Orr (2016) _ Cal.App.4th _ , 2016 WL 107907: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, in a legal malpractice action. The Court of Appeal ruled that the continuous representation tolling provision in Code of Civil Procedure section 340.6(a) (2) applies to toll legal malpractice claims brought by successor trustees against attorneys who represented the predecessor trustee.
Because the first amended complaint alleged the predecessor trustee resigned on March 22, 2013, ending defendants’ representation of her as trustee, and because plaintiff’s complaint was filed on February 27, 2014, the action was not time-barred as a matter of law. (C.A. 4th, January 11, 2016.)
Real Property (Foreclosure) Majd v. Bank of America, N.A. (2015) _ Cal.App.4th _ , 2015 WL 9304536: The Court of Appeal overruled in part, and affirmed in part, the trial court’s ruling sustaining a demurrer without leave to amend in a case alleging wrongful foreclosure. The Court of Appeal agreed with plaintiff’s contention that the foreclosure was wrongful because it occurred while the loan servicer was reviewing plaintiff’s loan for a modification under the Home Affordable Modification Program (HAMP), finding that plaintiff had stated a cause of action against the loan servicer for violation of Business and Professions Code section 17200 et seq. The Court of Appeal also reversed some of the orders denying leave to amend. It found that plaintiff had stated a cause of action for wrongful foreclosure, provided the party conducting the foreclosure sale was an agent of the loan servicer, and held that plaintiff should be given leave to amend to allege the agency relationship, if true. The Court of Appeal also concluded that plaintiff had stated a cause of action for cancellation of the trustee’s deed upon sale, but had failed to join the foreclosing trust deed beneficiary, an indispensable party, as a defendant. Provided the property was still owned of record by the foreclosing beneficiary, and not by a bona fide purchaser for value, the Court of Appeal ruled that plaintiff should be given leave to amend to add the foreclosing beneficiary as a party to the cause of action for cancellation of instruments. (C.A. 4th, filed December 21, 2015, published January 14, 2016.)
Torts (Wrongful Death) Burgueno v. The Regents of the University of California (2015) _ Cal.App.4th _ , 2015 WL 9700324: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant, based upon the recreational trail immunity in Government Code section 831.4, in a wrongful death action arising from the death of a student riding a bike on Great Meadow Bikeway on the campus of the University of California, Santa Cruz. The trial court properly ruled that defendant had absolute immunity from claims arising from the accident on the Great Meadow Bikeway pursuant to the recreational trail immunity provided by section 831.4. (C.A. 6th, filed December 15, 2015, published January 13, 2016.) King v. CompPartners, Inc. (2016) _ Cal.App.4th _ , 2016 WL 55505: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, but reversed the denial of leave to amend. Because it was possible the complaint could have been amended to avoid the preemption of the Workers Compensation Act and to also allege a duty, leave to amend should have been granted. (C.A. 4th, January 5, 2016.) Attorney Journal Orange County | Volume 119, 2016
25
IS YOUR LAW FIRM MAKING THE BEST IMPRESSION?
We’ll help you put your best foot forward. From logos and brochures to websites, strategy, writing and beyond, we’ve got you covered! Jenny Strauss, Partner (215) 460-0835 jenny@skidmutro.com
View our portfolio at skidmutro.com 26
Attorney Journal Orange County | Volume 119, 2016
Trusts and Estates Gray v. Jewish Federation of Palm Springs and Desert Area (2016) _ Cal.App.4th _ , 2016 WL 104651: The Court of Appeal affirmed the trial court’s judgment for defendant and against plaintiff (the sole net income beneficiary of the trust, and a former trustee). The Court of Appeal concluded that Probate Code section 16373 provides that, if an amount is to be distributed from income, such as a broker’s commission on a new lease, but there is not enough income to pay for the item and maintain disbursements to the income beneficiary, the trustee can pay for the items out of the principal. However, the trustee must pay back the principal over time for the use of principal to pay income expenses if it did not set up a reserve to pay for the items. The trial court’s judgment properly concluded that plaintiff was owed $47,913.58 in underpaid income but the principal had been overcharged $61,749.01, so plaintiff should pay the difference out of income. Plaintiff was also properly ordered to pay $28,000 in attorney’s fees to defendant for bad faith and unreasonable objections to accountings. Plaintiff was properly ordered to pay $12,709.45 to defendant for the objections and her appeal regarding a petition she had filed, and was properly ordered to reimburse the trust $12,608 for her trustee fees. (C.A. 4th, January 6, 2016.) n
Tired of Paying Referral Fees? Seek Alternative Case Drivers
by Tanner Jones
T
alk to most contingency-fee lawyers, and they will tell you how critical referrals are to their business. Then, ask them how much they enjoy writing referral checks once their client’s case is resolved. The truth is, most firms continue to rely heavily on referrals, yet despise paying the fees associated with getting their cases. Take a moment to add up how much you paid out in referral fees this year. Compare that to the total number of referred cases that you settled or won at trial. What is your total cost per referred case? If your average cost per referred case is over $1,500, you should certainly consider some other avenues that would drive cases to your firm for less money. From my experience, there are three types of referrals for contingency fee-based lawyers: 1. Client Referrals 2. Attorney Referrals 3. Networking Referrals This article relates mostly to attorney referrals, but could also apply to networking referrals where you pay out a referral fee. Consider how those referring attorneys are getting the original leads. Where are they advertising? What is their messaging? What type of clients are they attracting? Evaluating their source of leads and the method they are using to attract them will give you tremendous insight into reevaluating your own marketing and advertising efforts. It will also help you identify opportunities for less-expensive ways to get new clients. 28 Attorney Journal Orange County | Volume 119, 2016
The average firm that is sending out the bulk of referrals for personal injury cases is almost always a heavy advertiser. They have established processes for high-volume intake, strong closing skills, and (usually) a meticulous follow-up system. They also often have a set methodology for communicating with the firms they refer cases to, in order to track pending referral fees. In other words, they are making a killing off of you—all because you have yet to master a successful marketing plan for yourself. Before we jump into the solution, consider the pros and cons of attorney referrals.
Pros of Depending on Referrals: • There is little risk to accepting a referral. If you don’t win,
you don’t pay (other than your time involved and anything else you put into the case). • You are able to keep your overhead down significantly, primarily by avoiding marketing expenses. • You are able to avoid being labeled as an “ambulance chaser” by limiting your advertising. • Because of the above, you are seen as more credible and trustworthy by your peers, clients, judges and quite possibly future jury members.
Cons of Depending on Referrals: • If the referrals dry up, so does your entire business. You are completely dependent upon others for your livelihood.
• You end up paying out significantly more than you would have if you originated the client yourself.
• You fatten the advertisers’ pocket
so they can invest even more into advertising—and further outpace you in your own marketing efforts. • It’s very difficult to control the type of clients to which you get access (beggars can’t be choosers, right?).
Figure 2. Professional Services’ Planned Marketing Initiatives in 2015 Try to generate more referrals Increase the brand visibility of your firm
61.9% 57.9%
Updating/upgrading your website
54.9%
Increase the visibility of your experts
54.5%
If you are cringing nearly every time Make existing clients more aware 53.5% you write a referral check, you probably of the services you offer have already considered these pros and Develop a more compelling message 53.2% to potential clients cons. Regardless, they should be valuable reminders to you. A content marketing program 47.2% The truth is, in today’s digital marketing Develop a marketing strategy/plan 45.5% world, you have just as much direct access to your prospective clients as the highA lead generation program 42.5% advertising-budget referral mill down the Finding a stronger competitive street. Ken Hardison from PILMMA said 40.8% advantage that referrals are much less valuable to Conducting research on your target 33.8% attorneys today, unless you are depending market primarily on high-end, boutique, seven29.9% Training in business development skills figure cases. TJ Saye, COO of Salvi Schostok & Conducting client satisfaction research 22.7% Pritchard, said “attorney referrals are not Rebranding your firm 18.7% nearly as important today” for their business. “Fifteen years ago they represented 75% of Other 1.7% our business. Today, with the onset of digital 0 10 20 30 40 50 60 marketing and our ability to reach the mass public, I’d put it at closer to 40% with a large Source: www.hingemarketing.com/blog/story/new-research-on-2015-professional-services-marketing-priorities percentage coming from internet, branding You also have the ability to better control your expenses as work, past clients, and friends of the firm.” compared to depending on referrals in any given year. Imagine TJ went on to say that he would rate his firm’s dependence signing a high-value case where you did not have to pay out a on attorney referrals at a 6 (on a scale from 1 to 10, with 1 hefty referral fee. What opportunities would that create for your being not at all and 10 being the cornerstone to their success). firm? Where could you reinvest that additional revenue? How He felt as though it should be a part of their overall mix—a would that help further separate you from your competition? good safety net when other strategies slow down, but not While we certainly would never encourage you to give up on primarily relied upon. referrals altogether, you should always consider ways to reduce Going Against the Grain your expenses and grow your revenue. Start by performing a selfWhile this advice may seem like common sense to you, assessment of your own website and see for yourself what work needs dependence on attorney referrals across the country is still to be done to be a little less dependent on referrals next year. n widespread. A recent Hinge Marketing study found that the top-rated marketing plan for professionals was still: “Try to Tanner Jones serves as the Marketing Director for generate more referrals.” Consultwebs.com, the premier provider of innovative online The same study also suggested that over 80% of the people legal marketing to ethical U.S. law firms seeking growth who are referred to you will go to your website to review your and profit. Consultwebs fosters professional, long-term firm before taking action to call or contact you. relationships built on trust, integrity, high quality and results. If you are seeking ways to cut down your referral fee Often the first contact clients have with Consultwebs, Tanner expenses while simultaneously growing your caseload, you helps law firms develop their marketing strategies, including have to establish a sound marketing plan. With the growth and search marketing campaigns, responsive website design, social unparalleled use of the Internet, starting with your website and media and pay-per-click advertising. Tanner has spoken and overall Web presence is a must. Marketing your firm on the presented at legal marketing seminars throughout the country Internet offers highly targeted avenues for getting your name in including the PILMMA and M&L Legal Marketing conferences. front of the right prospective clients—often, prospective clients www.consultwebs.com. who are actively seeking legal representation. Attorney Journal Orange County | Volume 119, 2016 29
What Makes a SUPER LAWYER Can Also Make a SUPER WEBSITE by Helen Gulgun Bukulmez
As an attorney, you know that the legal marketplace is already crowded with competition. Every year, tens of thousands more budding lawyers graduate from law schools. In a single recent year, the American Bar Association reported that 46,000 people were awarded Juris Doctor or LL.M. degrees by U.S. law schools. Only about half of these graduates are able to find jobs in the legal field. Even experienced attorneys find themselves in a competitive market having to prove to their prospective clients that they are better than the next attorney in a given practice area. How can you make yourself stand out from the crowd? Perhaps the fierce competition is one of the reasons for some of the catchy TV advertisements, such as depictions of a tiger in human form or an out-of-control motorcyclist rampaging through a dark room and ultimately saving a sad, helpless individual. With TV and cable giving way to the Web, the competition and their resources are now moving into online legal advertising. Examples include a website, a YouTube channel for the firm’s practice or a social media account all working harmoniously to attract the next client. It is no secret that the more compassion an attorney’s online legal marketing is able to show, the better. If the online resources are used well and if they tell a story about why an attorney’s knowledge, experience and strategy are relevant to a specific client, it attracts attention and provides excellent return on investment for the attorney. Content on an attorney’s website is the key to such success. One of the most important content opportunities is to display any legal associations the attorney belongs to and any acknowledgements an attorney has achieved in his or her legal career. Nomination, selection and recognition of attorneys by Super Lawyers, for example, is a great opportunity for an attorney to feature such a selection on his or her website and other online legal marketing platforms. For most seasoned attorneys, the nomination and selection to Super Lawyers is a rather easy process. When I spoke with Mike Dyer and Doug Mann, personal injury attorneys in Dayton, Ohio, they said they did not even know who had nominated them to be considered for selection as Super Lawyers. For younger and less experienced attorneys, it can be a challenge to even be nominated. The organization has a detailed outline of the process that explains how an attorney can be nominated, reviewed and 30
Attorney Journal Orange County | Volume 119, 2016
selected to be a Super Lawyer in a given practice area. Although a happy client can certainly contact the organization and recommend your superior services as an attorney, the most effective nominations seem to come from your peers and the independent recruiting and research efforts of the organization itself. It appears that your partner or supervising attorney can nominate you as a candidate, but the nomination should be reinforced by a source outside the firm. In what appears to be an objective process, a nomination goes through independent research by the organization, which looks at the nominee’s number of clients, verdicts and settlements, bar association and pro bono activities, as well as community involvement to make its decision. Information about the same criteria can make a firm’s website successful and deliver the desired return on investment. If you seek a nomination to Super Lawyers, the process provides an opportunity to improve your practice through successful outcomes, client outreach and community service. An attorney who understands and appreciates the value of a well-designed and strategically planned website and proper investment in an online legal marketing campaign will know that the Super Lawyers nomination and selection process can complement efforts to build a great brand and boost the number and quality of cases from the firm’s online legal marketing investment. The process is also a testament not only the attorney’s ability to connect with and serve his or her clients well, but also his or her ability to build meaningful and mutually beneficial relationships with the local bar and the legal community. After all, practice of law is more than one’s ability to negotiate settlements and draft the necessary pleadings to carry a case into litigation. It is also the skill and investment in our social environment, which is comprised not only of prospective clients, but also our colleagues. n
Who will nominate you to Super Lawyers? Helen Gulgun Bukulmez, Esq. brings unique skills and insights she has gained as a practicing attorney and successful entrepreneur to her role as a Client Liaison with Consultwebs and frequently participates in and presents at legal seminars, conventions and continuing legal education programs, helping to raise legal professionals’ awareness of the most effective and ethical online marketing methods.
OVER $100 MILLION RECOVERED FOR CLIENTS
90% Win Rate at Trial • Trial Lawyers, Not “Litigators” • Big Results, Not “Big Bills”
•
Twice Named OCTLA Trial Lawyer of the Year
•
Named in SuperLawyers since 2005
•
Named in U.S. News & World Report “Best Law Firms” 2016 Edition
•
Named “Top Attorney” in Coast Magazine
•
Recovered Over $100 Million for Plaintiffs
•
Won Defense Verdicts In “Best the Company” Cases
4770 Von Karman Ave., Newport Beach, CA 92600 (949) 631.3300 | www.kleinandwilson.com
PRSRT STD U.S. POSTAGE
PAID
Post Falls, ID PERMIT NO. 32
Brian Chase President CAOC - 2015 Product Liability Trial Lawyer of the Year OCTLA - 2014 Trial Lawyer of the Year CAOC - 2012 Trial Lawyer of the Year Nominee CAALA - 2012 Product Liability Trial Lawyer of the Year OCTLA - 2004