Attorney Journals, Orange County, Volume 168

ORANGE COUNTY

Volume 168, 2020 $6.95

Can Lawyers Be Required to Give Advance Notice Before Departing?

Rachel F. Cotton

Podcasts Take Professional Marketing by Storm

Gina F. Rubel

13 Best Practices for Attending Conferences

Lindsay Griffiths 10 Considerations for PerformanceBased Compensation

Leigh Riley

Never Let a Client Go to Bed Angry

Kirk Stange

Collection Problem?

No. Sales Problem

Mike O’Horo

Attorney of the Month

Bibianne “Bibi” Fell, Fell Law, PC A Heavy Hitter in Plaintiff Law

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2020 EDITION—NO.168

TABLE OF CONTENTS 6 Podcasts Take Professional Marketing by Storm

by Gina F. Rubel

10 Thirteen Best Practices for Attending Conferences

by Lindsay Griffiths

6 EXECUTIVE PUBLISHER Brian Topor

12 Community News

EDITOR Wendy Price

ATTORNEY OF THE MONTH

CREATIVE SERVICES Penn Creative

16 Bibianne “Bibi” Fell, Fell Law, PC A Heavy Hitter in Plaintiff Law

CIRCULATION Angela Watson

by Dan Baldwin

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Rachel F. Cotton Lindsay Griffiths Mike O’Horo Leigh Riley Gina F. Rubel Kirk Stange WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

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22 Ten Considerations for Performance-Based Compensation

by Leigh Riley

24 Can Lawyers Be Required to Give Advance Notice Before Departing?

by Rachel F. Cotton

26 Collection Problem?

No. Sales Problem

by Mike O’Horo

28 Never Let a Client Go to Bed Angry

by Kirk Stange

26

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals.

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Podcasts Take Professional Marketing

by Storm

by Gina F. Rubel

The Facts About Podcasting Podcasts have become more popular than watching videos, reading electronic newsletters, and viewing television. For many professionals, they are used as a successful marketing and business development tool. Professionals in every area of business now use podcasts to connect with a broader audience.

There are many genres for podcasts; everything from music (the most popular), TV and movies, to comedy, technology, and kids and family. Other popular genres today include games and hobbies, sports, society and culture, arts, and business.

Did you know that the average podcast consumer listens to seven podcast episodes per week, and 93% of podcast fans listen to most of an episode?

According to Podcast Insights: • There are over 750,000 podcasts and 30 million episodes as of June 2019; • 51% of the U.S. population has listened to a podcast, and it is expected that by 2022, 132 million people in the U.S. will listen to podcasts; • Listeners are loyal, affluent and educated; • Smartphones drive podcast usage with an increase of more than 150% since 2014; and • Podcast listeners are much more active on every social media channel (94% are active on at least one versus 81% for the entire population)

10 Questions to Ask Before Launching a Podcast Before you leap into podcasting, ask yourself these questions: 1. What is the purpose of the podcast?

2. Why do I want to enter the podcast space?

3. Who is the audience, and do they listen to podcasts?

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Attorney Journals Orange County | Volume 168, 2020

4. Is the podcast focused on a B2B or B2C audience, or both?

5. Do I have the time, bandwidth, and patience to produce a podcast? If the answer is no, stop here.

6. What do I have to offer via a podcast, and what will be its impact?

7. How will my podcast be different from all the others out there?

8. What does the success of a podcast look like for me?

9. How will I measure the key performance indicators (KPIs) or return on investment (ROI) for my podcast?

10. Can I monetize the podcast? In other words, can it be a source of business (I’m not referring to ad dollars here)?

How to Get Started in Podcasting I asked several experts how professionals can get started in podcasting. Here’s what they had to say …

Nancy Myrland is the founder of Myrland Marketing and Social Media. She is an early adopter of digital technologies and the first legal marketing professional in the world to launch and host an Amazon Alexa Flash Briefing, which also is the Legal Marketing Minutes podcast. She said, “Although the technology required to launch a podcast successfully has never been more accessible, professionals must be interested in launching a podcast, and committed to follow through because a lack of consistency can make the professional look bad.” She said, “Strategy always comes first. Professionals should discuss the strategy around their podcast, including who the intended audiences are, what the tone of the podcast will be, what the format will be, what music to use, whether it is solo or will involve guests, who will record the podcast, who will edit it, how it will be marketed, who will be involved in the ongoing development and evolution of the podcast, and much more.”

Kristin Dohan, the Marketing Manager for Klasko Immigration Law Partners helped launch and has produced all episodes of the firm’s podcast Statutes of Liberty: An

Immigration Podcast. She said, “There has never been a better, or more important, time to use podcasting and voice marketing to grow closer to your clients, potential clients, and others who have an impact on the success of your business.

We are experiencing a critical time in marketing history when voice is being used to accelerate relationships with those we serve. Adding podcasting to your marketing mix can help professionals to stand out in what is a very crowded sea of messages coming from all different directions. It allows you to connect with listeners in a way others are not able to because they cannot replicate your tone and your approach.” She said, “It’s so easy to get started today—almost as easy as starting a blog.

You need a bit more equipment. We started our podcast on less than $300—by using an old laptop with free editing software, purchasing two mics, one mixer, and a pair of headphones.

After that, you need hosting software (there are many services these days for this too.) We went with Omny Studio and have been very happy. After you host the podcast somewhere, you then need to distribute the RSS feed to podcasting platforms (Apple, Spotify, Google Play, etc.). Omny hosts the episodes, automatically distributes them to all platforms to which you have it set to publish and provides analytics.”

When asked about podcasting for law firms, Rich Bracken, the Director of Business Development of Fredrikson & Byron said, “First, figure out why you want to do it (branding, business development, etc.). Next, it’s critical to assign multiple attorneys to run/manage the process. Nothing will tank an initiative quicker than the lack of buy-in and consistency. Not only will they be the topic creators, but likely the commentators on the podcast itself. Third, build a calendar to keep consistency and stick to it. Consistency is the absolute key to podcasts. Finally, set some goals on content and engagement versus the number of clients to get from it. That way, you can focus on the content itself, and the clients will come.” Bracken has worked on nearly two dozen podcasts, supported the launch and production of six legal podcasts, and is the host and producer of Enrich Your Soul.

Blubrry offers a podcasting manual and sophisticated podcast analytics tool.

Adrian Lurssen, the Vice President and Co-Founder of JD Supra, an online platform that distributes law firm content (text, video, audio) to target readers and subscribers said, “Whether or not you want to make a long-term investment in podcasting with sophisticated audio editing software, toplevel microphones, and other such bells and whistles, getting started is actually painfully easy. There are enough solutions available, that an early investment is just a matter of time.”

He said, “It’s easy to test out podcasting to see if it deserves greater investment. It can be as simple as just recording an audio file using your phone (on an app like Voice Memo or something similar) and then using software like GarageBand (GarageBand for Mac and Windows/PC) or others to add a musical introduction at the start and end of the program.”

Lurssen said, “If you see engagement and a growing audience, you’ll know it makes sense to solicit additional help—assigning the task to someone in a supporting role to help polish the

audio via software that can do this, potentially bringing in a voice-over person to record an introduction to your program, buying hardware that enables you to record at an even higher quality. It begins with what you already own and a desire to capture your insights in audio.”

20 Podcast Best Practices There are many things to consider when planning a podcast.

1. Set realistic expectations.

2. Come up with a compelling and optimized podcast name and stick with it.

3. Purchase a URL consistent with the name of the podcast, even if you redirect the URL to your existing website.

4. Create an editorial calendar, also known as a content schedule, and be consistent.

5. Invite clients, prospects, colleagues, business associates, and thought leaders as guests.

6. Keep the content diverse and exciting.

7. Determine a format and voice that works for your brand.

8. Keep it brief; 30 minutes or less (20 minutes is optimal).

Keep in mind that most podcasts that are 20 to 30 minutes in length are weekly. If you’re considering a monthly podcast, 45 to 50 minutes is optimal.

9. Seek speaker training for all hosts.

10. Write show notes, optimize the content, and repurpose it.

11. Record multiple episodes in one sitting and keep episode numbering simple.

12. Use quality equipment or a professional podcast provider. Consider purchasing a Zoom H6 Portable Recorder, Marantz Professional MPM-1000, 18mm Condenser Microphone and a MOVO WMIC70 UHF Wireless Microphone System.

13. Pay close attention to the sound quality. It matters.

14. Use professional graphics.

15. Draft a clear and compelling intro and outro with a neutral music choice. Blubrry provides a list of free music sources for your podcast 16. Create an outline for each episode while not scripting it fully.

17. Promote the podcast across marketing channels and submit to multiple directories. Don’t forget to add it to your email signatures.

18. Use syndication and RSS feeds.

19. Keep track of the highest performing episodes.

20. Include a disclaimer, legal language, and beware of copyrights when naming the podcast.

Attorney Journals Orange County | Volume 168, 2020

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We Know Marketing Like You Know The Law

6 Benefits of Being a Podcast Guest The benefits of being a podcast guest, to which I can attest, are many. Here are just six. Guests are: 1. Positioned as an expert / thought leader in their industry.

2. Exposed to a much larger, and often unknown (to the guest) and engaged audience.

3. Endorsed, even if implicitly, by the podcast host.

4. Provided free and valuable content for sharing with the guest’s audience via email, social media, etc.

5. Given the opportunity to build stronger relationships with the host and its listeners.

6. Provided a treasure-trove of SEO value, including relevant keywords and phrases, backlinks, re-sharable content, and social media mentions.

I have had the pleasure and privilege of being interviewed by several podcasters in recent years, including: • LegalSpeak powered by Law.com, Mega Firm’s #MeToo Mess: How DLA Piper Is Handling a Sexual Assault Scandal • The Attorney Search Group Partner Podcast, Episode #36: Reputation Management and Positioning Yourself for Success

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Attorney Journals Orange County | Volume 168, 2020

• Freeman Means Business Wonder Woman in Business Podcast, Gina Rubel, My Sister from Another Mister • What’s Your Legacy? with Yvette Taylor-Hachoose, Legacy of Critical Communications • Legal Marketing Minutes with Nancy Myrland, Episode 031: What to do with Social Media During a Crisis from #LMA19 • Women to Watch with Susan Rocco, Gina Rubel, PR and Crisis Expert • The Law Entrepreneur with Neil Tyra, Episode 114: Making the Most of Marketing Through Integrated Public Relations Happy listening. n Gina F. Rubel founded and continues to lead Furia Rubel Communications, the award-winning PR and marketing agency that has become a leading legal marketing and professional service communications boutique. Corporate and law firm leaders call on Gina for high-stakes public relations, crisis planning, and incident response support including high-profile litigation media relations. One of the most widely acknowledged experts on legal marketing and law firm public relations, Gina is a sought-after speaker and media expert. Learn more by visiting www.furiarubel.com.

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13 Best Practices for Attending Conferences

by Lindsay Griffiths

I

t’s the beginning of 2020 and time to start planning your schedule of conferences and networking opportunities! Even when you’re an old hand at attending events, we can always use a refresher on tips for attending events and how to make the most of the networking opportunities they present. Here are some quick tips for making the most out of your attendance!

1. Review the agenda: It will give you an idea of what topics will be discussed, and where you may be able to contribute. If there are discussions that you may have some expertise in (or questions for!), it can help people to identify you with a certain area of expertise, and make you a thought leader who is sought out later for conversations.

It also makes you easier to remember. Bonus: It can also position you with conference organizers for future speaking opportunities. An important note though—don’t monopolize the conversation or talk over others; that will have the opposite effect of what you’re looking to achieve.

2. Review the attendee list, if available: Organizers may provide it directly, or there may be an app you can log into and see who else is attending. Identify who you may want to build a relationship with and try to connect with them in advance. Reach out to them through the app or on LinkedIn and let them know that you want to make sure to meet in person at the event—schedule something firm, because casual attempts often fail as conferences get very hectic.

3. Identify colleagues who are attending: Are any of your partners attending the event as well? Coordinate, divide and conquer. What are your goals for the event? Like any business development initiative, you can’t go to a conference with your fingers crossed and hope something sticks. You want to identify who may have business for you, who may be able to refer your work, and which people you want to meet and build relationships with. Be strategic about setting up meetings or connecting with particular individuals.

4. Engage in social media: If you’re on Twitter, find out whether there is a conference hashtag that you can follow to see if anyone is already tweeting about attending the conference. Connect with them in advance to see if they may be in your target market. Get involved in LinkedIn and find out whether conference organizers have set up a group for the conference. Start asking questions and 10

Attorney Journals Orange County | Volume 168, 2020

connecting with people in the group who will be there— it’s like pre-building your relationships. Reach out to speakers whose sessions you’ll be attending to get on their radar before everyone else starts connecting with them.

5. Attend everything: I say this often, and that’s because it bears repeating. You may think that some events are silly or not worthwhile, but every event held by a conference organizer is an opportunity for networking. I can attest that some great networking and business development happens over meals and even social events—I’ve seen lawyers bond over feeding giraffes at an animal park. You never know when you’re going to make just the right connection that leads to a wonderful relationship that will benefit you professionally.

6. Separate from your travel companions/colleagues: I know it can be more comfortable to spend time with the people you already know, but if you’re only chatting to other attorneys from your firm the entire time you’re at a conference, you’re not networking. Meet someone new, sit down at an unfamiliar table at lunch, put your hand out to the guy in the corner checking his iPhone. Be social. If conferences were only about the content, we could all stay home and connect online.

7. Participate in the business sessions actively: We mentioned this already, but really listen and participate in the conference sessions. I know lawyers are often multitasking with client work, but when you can, really pay attention to what’s being shared. Ask questions and see where you can share your own experience and expertise.

It enriches your conference experience and that of your fellow delegates. It gives people a reason to remember you and want to give you work. It also helps people to remember you as more than just a face at an event.

We tend to forget conference follow-up more than any other conference activity in the bustle of getting back to work and catching up, but it may arguably be some of the most important networking work you’ll do.

8. Connect on LinkedIn: Reach out to anyone you met in person on LinkedIn and be sure to add a personalized note that reminds them of how you connected (since they likely

met several people). Then you’re able to use LinkedIn in between events and meetings to keep up on what articles they’re reading, what status updates they’re posting and who they’re connected to that might be of interest to you.

9. Go through your notes from the conference about what you’ve learned and your key takeaways and share these with the other members of your firm: It emphasizes the value of your attendance at the event and can also remind your colleagues of the type of work that you do, and how they may be able to pass along work to you as well. Bonus: write these notes up in the form of a blog post that you can share either in your own blog (if you have one) or on LinkedIn. Your new LinkedIn connections from the event will be inclined to like and comment on it.

10. Send a handwritten note to those you’ve met: I’ve done this post-conference, along with photos I’ve taken from conferences, and others have done this for me, and it’s had a TREMENDOUS impact on my relationships. It sounds like a lot of work (and it is), but if you’re looking for a small way to make a huge impact, I really recommend it—let them know how much you enjoyed meeting them, and that you look forward to seeing them in the future. Relationships matter, and a handwritten note illustrates that.

11. Take a look at your calendar: We all travel so much these days, so take a look at your upcoming travel and

figure out who you may know in the cities that you’re visiting. LinkedIn really helps with this, because you can do a quick search of the city that you’ll be in and reach out to the people you know there. It’s tough to take time out of your schedule, especially when visiting clients, but even just meeting someone for coffee can continue the relationship that you’ve started.

12. Follow up with an email: If you haven’t sent out your handwritten note, you can follow up with an email to the people that you’ve met. Share with them an article they may find of interest or reference a joke that you both laughed at during the conference.

13. Share photos: People love to see themselves in pictures.

Don’t deny it, it’s true. These days, we all have a camera in our pockets, so if you’ve snapped a great or funny shot of someone, shoot them an email with the photo—it will mean a lot to them. n Lindsay Griffiths is a law firm network executive responsible for the oversight and management of day-to-day operations of the International Lawyers Network. Develops strategies and implementation plans to achieve the ILN’s goals. Shares responsibility with the Executive Director for recruitment, member retention, and a high level of service to members. Engages in the legal industry to stay on top of trends, both in law firms and with law firm networks. Learn more at www.ilntoday.com.

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Attorney Journals Orange County | Volume 168, 2020

11

COMMUNITY news n Reuben Camper Cahn, partner at Keller/Anderle LLP, a nationally recognized bet-the-company business litigation firm based in Irvine, has been selected as a Fellow of the elite Litigation Counsel of America.

The Litigation Counsel of America is an invitation-only trial lawyer honorary society composed of less than one-half REUBEN CAMPER CAHN of one percent (<0.5%) of American lawyers. Fellows are selected and invited into Fellowship after being evaluated for effectiveness and accomplishment in litigation and trial work, along with ethical reputation.

Reuben Camper Cahn has tried over 100 cases to jury verdict and has argued twice before the Supreme Court (in 2011 and 2018) in addition to numerous arguments before both the 9th and 11th Circuits. This combination of skill and experience at the highest levels establish Mr. Cahn as one of the most exceptional lawyers of his generation.

Mr. Cahn has defended a wide range of matters, involving tax, public corruption, fraud, money laundering, RICO, Continuing Criminal Enterprise charges and virtually every other type of white collar case. n Judicate West, one of California’s leading providers of private dispute resolution services, welcomes Richard Huver to its roster of neutrals. Huver will be based in the San Diego office and is available for mediations statewide.

“Richard is a tremendous addition to our roster. I have known him for 16 years, and he is truly first class,” RICHARD HUVER said Mark Kaufman, Judicate West’s Executive Vice President. “With 30 plus years of experience, as both an attorney and a neutral, he brings a wealth of knowledge and experience that will benefit our clients. As a mediator, he’s built a reputation on being very well-prepared, and he is an extremely skilled negotiator with a closer’s mentality.”

A mediator since 2016, Huver draws upon more than three decades of legal experience, litigating all types of matters relating to business disputes, insurance bad faith, personal injury, wrongful death, elder abuse, wrongful termination and professional liability.

Have a Press Release you would like to submit for our Community News?

Email it to PR@AttorneyJournals.com

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Attorney Journals Orange County | Volume 168, 2020

n Brown & Charbonneau, LLP is pleased to welcome new associate attorney Joseph M. Dankert. Prior to joining Brown & Charbonneau, LLP, Dankert was an attorney at a multi-state litigation firm, where he defended large auto-manufacturers in cases litigated under California’s consumer protection statutes, unfair competition law, and JOSEPH M. DANKERT fraud.

Dankert has been a member of the California State Bar since 2017. Since graduating Magna Cum Laude from the University Of Missouri Kansas City School Of Law in 2017, Dankert has represented clients in a wide range of practice areas including family law, personal injury, breach of contract, and consumer protection. He is known for his tireless work ethic, meticulous attention to detail, and emphasis on providing premium client service. n Berger Kahn’s 50-year anniversary celebrates a law firm with a uniquely positive spirit, practicing in the areas of insurance coverage and litigation, business litigation, labor and employment, serious personal injury and wrongful death, and subrogation.

“We are 50 years young and counting,” says Managing Partner Craig Simon, who has worked at Berger Kahn his entire professional career, having begun as a law clerk prior to completion of law school and staying with the firm for many decades.

Berger Kahn will celebrate its 50-year anniversary in January 2020, with esteemed accomplishments including: • Named a “Best Law Firm” four consecutive years

by Best Lawyers.

• Multiple shareholders named to the Best Lawyers list, an honor celebrated by only 3% of the Bar. • All shareholders, Craig Simon, Sherman Spitz, Teresa Ponder, Stephan Cohn, and David Ezra, recognized to Super Lawyers “Top Lists.”

• Roberta Winston named Defense Attorney of the Year.

• Erin Mindoro Ezra recognized to Super Lawyers Rising Stars “Up-and-Coming” lists.

• Craig Simon, Sherman Spitz and David Ezra designated Lifetime Achievement members to the “America’s Top 100 Attorneys” list, given to only the top 1% of attorneys.

n Higgs Fletcher & Mack is proud to welcome its newest Partner, veteran litigator Timothy Noon, effective January 2. The firm has also recently welcomed attorneys Harrison Beau Bryant, Haley Dumas, Meredith King, and Miles Roeder, strengthening its immigration, business litigation, employment law and bankruptcy practice areas. The firm has hired attorney Ross Viselman as its new Risk Manager.

Noon is an experienced trial lawyer with a significant civil litigation practice focused on legal and accountancy professional liability, architect, engineer, construction and business and commercial litigation. He has defended a diverse client base including regional and national corporations, owners, law firms, architects, engineers, developers, contractors, subcontractors, and private individuals.

In addition to Noon, the Firm has hired Harrison Beau Bryant (Beau), who previously practiced alongside Noon. Bryant is also a trial attorney whose practice focuses on business and commercial, securities, Professional Liability, Financial Services and Employment litigation.

Haley Dumas, who also recently joined the Firm, is a part of the Employment Law and Business Litigation practice groups. Her experience includes representing clients in insurance coverage actions in both state and federal court.

Meredith King is a commercial litigation and bankruptcy attorney.

Her experience includes representing individual business owners, corporate clients, and fiduciaries in complex financial litigation in federal, state, and bankruptcy courts.

Immigration attorney Miles Roeder garnered significant experience by practicing at both boutique and large international law firms over the last fifteen years.

Ross Viselman will serve as Higgs Fletcher & Mack’s Risk Manager.

He most recently served as a Senior Trial Counsel with the State Bar of California, where he prosecuted and sought discipline against attorneys for ethical violations.

TIMOTHY NOON

HARRISON BEAU BRYANT

HALEY DUMAS

MEREDITH KING

MILES ROEDER

n The American Institute of Family Law Attorneys has recognized the exceptional performance of California’s Family Law Firm, Hills Law Group as 2019 10 Best Family Law Firm for Client Satisfaction.

The American Institute of Family Law Attorneys is a third-party attorney rating organization that publishes an MAXWELL A. HILLS annual list of the Top 10 Family Law Attorneys in each state. Attorneys who are selected to the “10 Best” list must pass AIOFLA’s rigorous selection process, which is based on client and/or peer nominations, thorough research and AIOFLA’s independent evaluation. AIOFLA’s annual list was created to be used as a resource for clients during the attorney selection process.

One of the most significant aspects of the selection process involves attorneys’ relationships and reputation among his or her clients. As clients should be an attorney’s top priority, AIOFLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Family Law without sacrificing the service and support they provide. n Pettit Kohn Ingrassia Lutz & Dolin PC, a leading civil litigation law firm, is pleased to announce that Shannon R. Finley and Janice Y. Walshok have been promoted to shareholders. Both Shannon and Janice continue the tradition of premier client service and legal professionalism that are hallmarks of Pettit Kohn.

SHANNON R. FINLEY Shannon R. Finley is a shareholder in the firm’s San Diego, California office and joined Pettit Kohn in 2014. She is a leader in the Employment Law group and represents both large and small corporate employers in the defense of claims involving allegations of workplace discrimination, harassment, retaliation, and wrongful termination, as well as in large-scale wage and hour class JANICE Y. WALSHOK action litigation violations.

Janice Y. Walshok is a shareholder in the firm’s San Diego, California office and joined Pettit Kohn in 2017. She is a leader in the Retail and Transportation group and represents large and small corporate clients in the defense of claims involving wrongful death, serious injury, and product liability.

ROSS VISELMAN

Attorney Journals Orange County | Volume 168, 2020

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A HEAVY HITTER IN PLAINTIFF LAW Finding Success One “Right Thing” at a Time

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oing the right thing—whether at the office, in the courtroom, and especially at home—builds credibility.

“Credibility is essential in advocacy. A reputation for integrity takes a lifetime to build and only a second to lose,” says Bibianne “Bibi” Fell, founder of Fell Law, PC. Fell, who opened her firm in January, is recognized as one of the best plaintiff’s lawyers in the nation. She is one of the few attorneys to earn a verdict of more than $100 million, one of the top ten verdicts in the country. She boasts the numbertwo dollar verdict in California and a number one Intentional Tort verdict in 2008. She also boasts a successful family life regardless of the challenges faced in her profession.

Carrying on a Family Tradition Fell, who was raised in a small community on the island of O’ahu, decided to become a lawyer at age four. She is a fourth-generation lawyer. Her grandfather was a lawyer, her dad and two uncles are lawyers, and her cousin is a lawyer.

She is the first woman lawyer in the family. But soon the fourth generation will not be the last. Her middle daughter Alexa, age 13, is planning on becoming the family’s fifth generation attorney.

She is often asked how she balanced work and home life. “It was really hard. I couldn’t have done it without the incredible

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support of my family,” she says. Early in her practice when she first started trying cases, she was a single mom with daughters two and four years old. Their father was in the Navy and deployed during much of their early childhood.

In one particularly lengthy trial her father flew in and handled most of the family chores for six months. He walked the kids to and from school, prepared meals, and took care of all their daily needs while Fell was in trial in another city. It was a reversal of her early home life in which she was raised primarily by her mother because her father was often in trial.

“My family jokes about it being a case of ‘payback,’” she says.

Fell says, “Being a single mom with a heavy litigation practice was tough. When I look back on that time, I’m surprised at what I was able to accomplish while raising my girls. I guess you never know what you’re capable of until you’re put into the situation where you have to step up to the challenge.”

Tenaciousness and Trust Fell represents individual people and families in what is most often the worst moment of their lives. Building and maintaining a high level of trust is an essential element in the ultimate success of achieving their goals in the legal system. “I love representing these people,” she says.

Her faith in being on the right side of justice makes Fell a

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JOURNALS

The Fell Law Team (from left to right and top to bottom): Lupe Frayer-Godat, Kelsie Russel, Marlee Horwitz, Trevor Fell, Bibi Fell

ATTORNEY

OF THE MONTH

2020

Molly Pan Photography - @mollypanphotography

Bibi Fell and Fell Law Associate and Husband, Trevor Fell

tenacious lawyer who keeps digging until she finds the best way to overcome whatever hurdle a case may throw in her path. She puts in the necessary hours or days in research, finding arguments by analogy, or arguing for a change in existing case law so that even if the issue is lost, each client knows she put everything she has into the effort.

A tenacious approach, one that doesn’t settle for the apparently obvious or easy path, often leads her to innovative and creative solutions. For example, she successfully argued that live animals sold as pets should be treated like products for purposes of strict products liability. She is known for being creative and smart and, when backed into a legal corner, comes out fighting for the win.

Her cases not only involve addressing past injuries, but also provide for the future well-being of clients in real need. One of those cases involved a five-year-old girl with Downs syndrome.

The money in that case represented the child’s future security.

Her parents’ worst fear was what will happen when they are not around to care for her. Because of Fell’s efforts the child will be able to live with her family and not in a state facility. Fell says that in her cases it’s not about the money. It’s about what the money can do to effect positive change and restore dignity in a client’s life.

“I used to represent big business and I made a lot of 18

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shareholders a bit of money, but here I get to watch the transformation of someone who has been through something horrific, through their recovery and into a future that has meaning and hope. Now they can afford to go back to school and get retrained because physically they can’t do their old job.

They can afford to have someone come into their home to care for them, so they don’t have to be separated from family,” she says.

A former client, Dawn Kali, wrote, “Bibi Fell changed my life. She believed in me and my case, when no one else would.

Her dedication, kindness, integrity, and determination helped me face my difficult and emotional case. Not only did she win my case, she changed my life. She gave me the validation I needed to move forward. Bibi Fell is not only an incredible lawyer, but she is an incredible human being.”

Likeability and the human touch may seem out of place in earning such a remarkable record, but they are key factors in Fell’s success. She says, “When it comes to my edge over the competition, I think it’s that personal touch and the time that I spend with each client. An attorney cannot truly convey value of what a client has lost because of injury unless that attorney really knows his or her client on a personal level. I take the time to understand their lives and what is meaningful to them.”

Fell says she enjoyed the intellectual rigor of complex corporate litigation, but never felt that she was doing something personally meaningful. When she began doing plaintiff’s work, she realized she was making a big impact on one person’s life one person at a time. “That feels very meaningful to me. I enjoy the parts about plaintiff’s work that might turn others off, such as the time spent with the client, receiving phone calls about not only the case, but whatever else is burdensome, or helping someone who has never encountered the legal system to make sense of litigation. I take a lot of latenight and weekend distress calls. If I was to choose another profession, I’d probably be a therapist,” she says.

Her personal philosophy is to “do the right thing every time.” It’s a philosophy that she applies equally to clients, her staff and attorneys she works with on a referral basis.

“I always put my employees first. If your employees are not happy, you’re not going to get good work from them. It’s important to assure them that they are valued as a person.”

Fell believes one of her main responsibilities is to teach her employees.“My number one job with a young lawyer is to teach him how to do what I do. I hope they do that even better because that frees me up to try cases and conduct high-level strategy. I want to give my employees as much or more than what they are giving to me. It keeps them happy, they work hard, and they see a future.”

Doing the right thing every time also attracts continuing referrals from other attorneys and law firms. Her experience includes working with others at different capacities from handling referrals, to taking over shortly before trial, to 50/50 co-counsel relationships. “It’s important to me that the lawyers I work with are happy that they brought me on. I work very hard to ease co-counsel’s workload, provide expertise my co-counsel may not have, and dramatically increase settlement/trial value so that it pays to bring me on board,” she says.

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Do the Right Thing Every Time

Doing the Right Things Outside the Office Fell and her husband, Trevor, have been married five years and are raising five children: Isabel, Alexa, Madelyn, Benedict, and Rebecca. She has been a resident of San Diego since 1998.

When growing up in O’ahu, she was an avid surfer. Finding the local ocean waters a bit too cold for that, she took up a new physically active hobby— salsa dancing. She turned professional, placing internationally in professional competitions, teaching and performing at International Salsa Congresses, and dancing for a local dance company. She even owned her own dance company Attorney Journals Orange County | Volume 168, 2020

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Born to Lead Fell opened her firm in January with one paralegal, Lupe Frayre. Her plans for Fell Law, PC are to add two attorneys within the next five years, but to maintain a small caseload so that each client gets the full attention they deserve. She says her current biggest challenge is that she did not expect to acquire so much business so quickly.

Fell says that success will follow if you consistently do the right thing at home, in the office and in the courtroom.

“That’s my philosophy and it’s worked well for me and the three generations of attorneys before me. As far as being a trial lawyer, I was born to try cases. I couldn’t imagine having as much fun doing anything else.” ■ Contact Bibianne Fell Fell Law, PC 402 W. Broadway, Suite 950 San Diego, CA 92101 (858) 201-3960 www.fellfirm.com

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Molly Pan Photography - @mollypanphotography

EXPERIENCE

prior to becoming licensed to practice law.

She and her family love being outdoors, especially rock climbing, swimming, running, biking, paddle boarding, and, when in Hawaii, she still finds time to surf.

Fell is on the advisory board of the National Institute for Trial Advocacy and is a Program Director for the NITA Pacific Regional Deposition Skills program. She has taught for NITA for 10 years throughout the United States and in Northern Ireland.

She also hosts a weekly small group of families with young children at her home through her church, Maranatha Chapel.

Teaching remains part of her life out of the office. Last year she taught Advanced Trial Advocacy at the USD School of Law, lectured to all 1L students at USD Law on Storytelling, spoke at the Kentucky Justice Association’s annual conference, Co-Chaired the Alliance of Women Trial Lawyer’s annual conference, spoke at CAALA Las Vegas, CAOC’s annual conference, to CASD’s new lawyers, at the National Trucking Association’s San Diego conference, Indiana Association of Justice, CAALA Women’s Conference, was the Program Director for NITA’s Pacific Regional Deposition Skills program, ABA Webinar Series, and San Diego Inn of Court Trial Program.

She chairs the Alliance for Women Trial Lawyers annual conference in New Orleans. Alliance is an organization of women plaintiff lawyers from around the country.

» EDUCATION

• University of San Diego, School of Law, J.D. magna cum laude, Law Review, Order of the Coif (2004) • University of California, San Diego, B.A., Political Science, cum laude, Dean’s List (2001)

» HONORS/AWARDS

• Daily Journal’s Top 100 Women Lawyers • Superlawyers • 2019 Recipient of the Outstanding Trial Lawyer Award

by CASD • One of three finalists for Consumer Attorneys of San Diego’s 2018 “Trial Lawyer of the Year” • The National Trial Lawyers: Top 100 Trial Lawyers • Top Attorneys in Southern California • University of San Diego, School of Law, Rising Star Recent Alumni • #2 Plaintiff Verdict in California in 2018 • #1 Intentional Tort Verdict in California in 2018 • Top Ten Verdicts in the United States 2018

» MEMBERSHIPS AND AFFILIATIONS

• American Board of Trial Advocates, Member, Trial College Fellow • Alliance of Women Trial Lawyers, Annual Conference Co-Chair • National Institute for Trial Advocacy, Advisory Board Member, Program Director, Faculty • University of San Diego, School of Law, Adjunct Professor • Consumer Attorneys of San Diego, Member • Consumer Attorneys of Los Angeles, Member

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Ten Considerations for PerformanceBased Compensation

by Leigh Riley

W

ith the dawn of the new year, many companies are taking the initial steps that they hope will allow them to meet their financial and strategic goals in 2020 and beyond.

Often, one core element of this process is designing a system of performance awards that will be granted to the executive team, with the intent to motivate executives to achieve the company’s goals by aligning the executive team’s interests with the performance of the company. Performance awards can come in many forms, including stock options, performance-vesting restricted stock or stock units, or cash bonuses. The process of designing performance awards is often messy because there are too many choices and too many unknowns, and companies must also face the risk of inadvertently designing a program that could incentivize bad behavior. As you think about your performance awards, here are ten considerations to keep in mind:

1 Performance goals should reflect a company’s business strategy.

While it may seem obvious, in setting compensation performance goals, a company should ask two key questions – first: “what is our business strategy?” and second: “what performance goals will help us motivate employees to further that strategy?” Don’t be afraid of including “soft” or non-financial goals, such as rewarding the CEO for completing certain steps in a succession plan or for increasing customer satisfaction.

2 If you are a publicly traded company, one benefit arising from the changes made to Section 162(m) of the Internal Revenue Code by the Tax Cuts and Jobs Act, is that you can now exercise more discretion to modify performance goals. Under the prior Section 162(m) rules, in order for compensation to be “performancebased” and fully deductible by the company, the Compensation Committee could not exercise any discretion to modify the performance goals after they were initially established. Now that the automatic deduction for performance-based compensation is gone, Compensation Committees have more leeway to (judiciously) increase their use of discretion. This ability to exercise discretion alleviates some of the stress of trying to get the goals exactly right on the front end and provides a path to make adjustments when unforeseen changes in the business arise during the performance period.

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3 Typically, long-term incentive compensation programs use more than one performance goal, including at least one earnings metric (such as Net Income, EBITDA, or net operating profit) and one return metric (such as ROIC, EPS, or TSR). Therefore, companies shouldn’t agonize to figure out the “one right goal” or feel they should have their executive team focused on a single outcome.

If more than one goal is selected, use their weighting (e.g., achievement of goal #1 results in 70% of the award being earned and achievement of goal #2 results in 30% of the award being earned) to reflect their importance to the overall business strategy.

4 Relative performance goals, which compare the company’s performance to a peer group (such as relative total shareholder return), are popular choices because relative goals do not require a “crystal ball” to predict future income, profit, or expenses.

Even though relative goals typically are used by publicly traded companies, large privately held companies should not shy away from them but should ensure that the peer group companies are publicly traded so that financial information is readily available.

5 For publicly traded companies, Economic Value Added (EVA) is a performance metric that has been well received by the investor community and is being used by Institutional Shareholder Services (ISS) in its pay-for-performance modeling, but it has not yet been widely adopted. It’s currently estimated that only about 6% of companies use EVA in their incentive compensation programs.

EVA is calculated as Net Operating Profit After Tax minus (Weighted Average Cost of Capital x Capital Invested). So, if you are struggling to select a goal (whether publicly traded or privately held), this is one metric that may be worth considering.

6 Regardless of the performance goals a company selects for its annual and long-term incentive compensation programs, those goals and the progress towards achieving those goals should be communicated to program participants to maintain their focus and line of sight. Quarterly communications between the company and executives on progress toward achievement of performance goals are evolving as a “best practice.”

7

9

Compensation clawbacks that cover financial restatements have become a “best practice” for publicly traded companies even though the Securities Exchange Commission has not yet issued its anticipated rules. Even though privately held companies are not subject to any legal obligation to implement a compensation clawback policy, they should consider it. Such policy would allow the company to “claw back” any bonuses that were erroneously paid, or equity awards that were erroneously vested, as a result of financial performance that, after-the-fact, was found to be incorrect. Including such a policy can help keep executives and employees honest and focused on achieving the company’s goals, while deterring bad behavior or trying to game the system.

Companies considering adopting or expanding compensation clawback policies should confirm they are consistent with their other executive compensation documents. For example, companies should consider whether their clawback policies cover the same range of behaviors as the provisions in their employment agreements relating to “for cause” terminations. Companies should also ensure that their standard separation and release agreements account for potential compensation clawbacks post-termination.

8 A recent trend is the expansion of clawback policies to include clawbacks in instances of violation of company policies (including, for example, anti-harassment policies) or other behaviors that could be detrimental to the company’s reputation. However, if these policies are so broad that they are unlikely to actually be enforced by the company, they may create issues from a public relations perspective in the event that a company can clawback compensation but chooses not to do so. Therefore, while it may be advantageous to use a clawback policy to help enforce a company’s policies and discourage bad behavior by employees and executives, the policy still needs to be sufficiently tailored to avoid putting the company in a difficult position when it catches behavior that the company would view as not warranting a clawback.

10 Finally, companies should check their employment agreements to see if they contain obligations relating to performance awards.

Employment agreements may contain certain guarantees about performance-based compensation, such as that the performance goals will be based on EBITDA or will be established and communicated within 90 days of the beginning of the year, or the executive will be permitted to earn a bonus of up to 200% of target.

When companies deviate from those contractual obligations, they set themselves up for potential lawsuits. n Leigh Riley is a partner and a vice chair of the Business Law Department with Foley & Lardner LLP. She focuses her practice on employee benefits and executive compensation. In the area of employee benefits, Ms. Riley concentrates on welfare plans, including COBRA and HIPAA privacy rules, and retirement plans, including nonqualified deferred compensation arrangements. In the area of executive compensation, she counsels both private and public companies on establishing and administering all types of executive compensation programs.

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Can Lawyers Be Required to Give Advance Notice Before Departing?

Perhaps Not, Says American Bar Association

by Rachel F. Cotton As readers know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time. By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys. The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice. (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)

ABA Model Rule of Professional Conduct 5.6 sets out the general prohibition on restrictions on a lawyer’s right to practice. Rule 5.6(a) states that a lawyer shall not enter into a “partnership, shareholders, operating, employment, or similar type of agreements that restricts the right of a lawyer to practice after termination of the relationship….”

Despite this rule, most law firm agreements impose some kind of “notice period” on departing attorneys, requiring them to give notice well in advance of their departure. Although such provisions are common, law firms frequently choose not to enforce them or shorten the time period. Recent news articles, however, have suggested an uptick in law firms’ attempts to enforce long notice periods on their departing attorneys.

Given that notice periods implicate Rule 5.6, there has always been a question about their enforceability, particularly when the notice period is lengthy. Recently, in Formal Opinion 489, the ABA Standing Committee on Ethics and Professional Responsibility came out swinging against them.

The ABA said that, although a “reasonable” notification 24

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period may be included in firm partnership/employment agreements to allow for a smooth transition, “these notification periods cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.” The opinion goes on to say that departing lawyers “may not be held to a pre-established notice period particularly where, for example, the files are updated, client elections have been received, and the departing lawyer has agreed to cooperate post-departure in final billing.”

This blow to the enforceability of notice periods may remove one more weapon from a law firm’s arsenal to discourage lawyers from leaving. Although many law firm departures are not contentious, the opinion may embolden lawyers to refuse to abide by notice periods even in instances where the law firm insists upon one.

Long live Rule 5.6. n As a Partner at Zuckerman Speder, Rachel F. Cotton is a dedicated litigator who represents individuals and corporations in government investigations, criminal prosecutions, and complex civil disputes. Rachel also helps attorneys navigate the professional responsibility challenges that confront them. She advises both lawyers and law firms on professional ethics, legal malpractice and disciplinary investigations.

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Collection Problem?

No. Sales Problem

by Mike O’Horo

“The sale isn’t complete until the last dollar is collected.”

This wisdom is imparted to all new salespeople on Day One of their selling career. If you struggle to collect what you bill, you have a sales problem. The collection problem is merely a symptom, and a consequence, of the underlying sales problem.

When you don’t get paid, you’ve donated your service.

If you can’t collect the full amount, your client has taken a discount that you didn’t agree to.

The collection problem is merely a symptom of the underlying sales problem...

Why doesn’t a client pay your bill, in full, on time?

Only Two Reasons for Non-Payment There are only two reasons: • They can’t • They won’t If they’re in serious financial distress, there may not be a lot you can do about it. This article isn’t about “can’t.”

Won’t Pay The “won’t” condition is what collections are about. Why does a client with enough means decide not to pay your bill? There are countless explanations, but they all derive from the same root cause:

value isn’t your time; it’s the imputed economic value of the business outcome and impact you enable or deliver.

A Practical Example Your daughter is trying to get into an Ivy League school.

She has the grades, but so do lots of other applicants. You learn that the difference between getting in and not is how extracurricular activities are presented. (I don’t know this to be an actual criterion; it’s just an illustration.) A consultant with a track record of getting a much higher acceptance rate for his Ivy League applicants will help you raise your daughter’s odds of getting in, for which he’ll charge $5,000.

Right now, you’re thinking, “$5,000 is a lot of money. Is it worth it?”

Is it worth $5,000? Well, compared to what? Compared to something fuzzy and abstract, i.e., “raising the odds of acceptance,” maybe not. That’s hard to evaluate.

What if that same consultant were to elicit from you your reasons why it’s important to your daughter and you that she gain Ivy League admission. You might mention: • studies suggesting a 39% earnings differential (Ivy over others); • the name recognition that you believe moves Ivy resumes to the top of the hiring interview stack;

The client doesn’t perceive that he received enough value for the amount he’s being charged.

• networking and other connections that you believe will open doors and pave the way for access denied non-Ivies;

Many lawyers react to that statement defensively, dragging out detailed time sheets proving that they worked the number of hours billed. They’re missing the point entirely. The client rarely thinks that you’re inflating your hours. How much time you spent isn’t the issue. It’s what they got—or didn’t get—out of the time you spent.

• the realization of a goal your daughter has worked toward since middle school, etc.

Establish Value Up Front Arguing value after the fact is extremely difficult and rarely successful. You must establish value up front. The important 26

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Selling Yourself on the Value This conversation gets you selling yourself on the many specific forms of value of Ivy admission and, therefore, the value of the consultant’s service. (We’re assuming for this example that you’ve satisfied yourself that the consultant can deliver.) This is known as defining the Cost of Doing Nothing. In this case, it’s the cost of not retaining the consultant.

Remember, the cost of doing something has already been established at $5,000. What’s the cost of doing nothing?

If it’s low, that’s what you’ll do—nothing. Many sales are lost for this reason. You don’t lose to a competitor; you lose to doing nothing.

Expressed as Dollars All this elicitation of impact factors is necessary, but not enough.

For the value comparison to work, both cost and benefit must be expressed in the same form—dollars.

The adept consultant will walk you through a simple conversational process that makes it easy for you to express the value of the desired outcome—Ivy League admission— in dollar terms. It’s rare for such expressions not to be many multiples of the cost of obtaining them, which results in the consultant’s fee representing a return on investment rather than a cost.

At that moment, the burden of justification shifts from the seller to the buyer.

Instead of the seller having to justify you buying, you’ve put yourself in the position of having to justify not buying in the face of all the value declarations you made.

I realize this is a facile example. However, the point is that unless you explore with the client the specific, practical ramifications of the problem you’re solving, and get the client to express that in dollars, you’re vulnerable to “buyer’s remorse.”

“At the time we began this lawsuit, it seemed worth it. I just couldn’t allow Company X to copy our product so closely.

Now, we’ve stopped them. But how could it possibly have cost $90,000? There’s no way legal fees should have cost $90,000.”

After the fact, nobody remembers saying, “I don’t care if it costs me everything I own, I’m not letting them get away with this.” If the $90,000 cost remains the only hard number in the equation, you’ll definitely have a problem making the sale, and probably have a problem collecting your fee.

Make the sale in a disciplined way, achieve a benefit/cost equation with hard numbers on both sides, and collection problems based on “won’t” will disappear. n Mike O’Horo, known by thousands of lawyers as The Coach, is a serial innovator in the law firm business development world. His latest innovation is Dezurve, which has cracked the code on identifying investment-worthy lawyers and eliminating training budget waste.

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27

Never Let a Client Go to Bed Angry

by Kirk Stange

L

ots of marriage therapists tell married couples never to let their spouse go to bed angry. If there is a dispute or marital discord, many therapists tell couples to resolve it before they go to bed.

Otherwise, the view is that anger is left unresolved. When anger is left unresolved, it can result in resentment. It can result in fights and disagreements over other issues. Many marriage therapists swear by the saying that you should never let your spouse go to bed angry.

This is a good metaphor for lawyer and client relationships.

What if a lawyer accepted the viewpoint that they should never let their client go to bed angry? What kind of difference might this make in terms of lawyer and client relationships?

For lots of lawyers, it is hard when the client sends an email or leaves a voice mail where they are upset. They might feel as if they are working very hard for the client. They might feel like they are giving it their all. They might feel like they have done a great job.

Many lawyers are also averse to touchy situations. When a client is upset, it makes them uncomfortable. They might be non-confrontational by nature. They might feel like it will blow over. They might have other pressing legal matters that demand their attention. Thus, they may not address the clientâ&#x20AC;&#x2122;s concern right away.

When this happens, anger can build. The client can become resentful. It can result in the client becoming upset about all kinds of ancillary matters that do not pertain to what they were initially upset about.

Ultimately, this can be deadly to the attorney-client relationship. This can result in clients not referring friends and family members. But even worse, it can result in complaints. It

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can result in grievances. It can result in online bad reviews or the lawyer being fired from the case. Minimally, it can result in the client saying bad things and being unhappy after the case is over.

In the end, lawyers should really live by the motto that they should never let a client go to bed angry. If the client is upset, the lawyer should reach out to them right away. They should listen to their concerns as soon as possible. And then they should address these concerns the best the lawyer can. This might mean informing the client about the law. It might mean explaining the pros and cons of various situations. It could entail giving them updates. Or, it might just mean listening to their concerns and offering genuine concern.

If a lawyer is tied up in court or stuck dealing with other matters, even sending the client a quick email that the lawyer received their message, but that they are going to get back with them as soon as they can, can be enough to make all the difference. That can ensure that the client knows that the lawyer cares and will address the concern. Often, this might mean calling the client after-hours to discuss the situation with them.

Lawyers who do this can often nip unhappy client situations in the bud. By merely reacting quickly and showing genuine caring, many unhappy client situations can be alleviated before they spin out of control. For this reason, lawyers should live by the motto that they should never let their clients go to bed angry.â&#x20AC;&#x201A; n In 2007, Kirk Stange founded Stange Law Firm, PC with his wife Paola and has worked diligently to grow the firm to what it is today. In addition to practicing law, Kirk spends time educating attorneys and other law professionals at CLE Seminars through the Missouri Bar, myLawCLE, the National Business Institute and other organizations. To learn more, please visit www.stangelawfirm.com.

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