Volume 100, 2014 • $6.95
Four Factors that Bring Out the Energies and Talents of Attorneys
Joel A. Rose McIntyre’s Civil Alert
Monty A. McIntyre The Case for Statutory Changes in Commercial Real Estate Representation
Jason Hughes & Rob Bello
Super Marketing Tips: Strategies Learned from the Annual Super Marketing Conference
Sofia S. Lingos Attorney of the Month
Brian Chase HONORING THEIR VOW
MEDIATOR: REBECCA CALLAHAN RISING STAR: D. AARON BROCK NICHE PRACTITIONER: SHERRIE BOUTWELL
Orange (County) is the New Black
The Benefits of “Benefits”
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TABLE OF CONTENTS features MEDIATOR OF THE MONTH
6 Rebecca Callahan Dispute Resolution by Karen Gorden
10 COMMUNITYnews 12 The Case for Statutory Changes in Commercial Real Estate Representation
SB 1171 Seeks To Require Conflict Disclosures for Commercial Real Estate Brokers
by Jason Hughes & Rob Bello EXECUTIVE PUBLISHER Brian Topor EDITOR Jennifer Appel
ATTORNEY OF THE MONTH
16 Brian Chase
Honoring Their Vow by Jennifer Hadley RISING STAR OF THE MONTH
CREATIVE SERVICES Skidmutro Creative Partners
21 D. Aaron Brock
Orange (County) is the New Black
CIRCULATION Angela Watson
by Karen Gorden
PHOTOGRAPHY Bronson Pate Vinit Satyavrata
24 Super Marketing Tips
Strategies Learned from the Annual Super Marketing Conference
STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Christopher Walton Monty McIntyre Jason Hughes Rob Bello Margie Smith Joel A. Rose
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by Sofia S. Lingos NICHE PRACTITIONER OF THE MONTH
26 Sherrie Boutwell
The Benefits of “Benefits”
by Jennifer Hadley
28 Four Factor that Bring Out the Energies and Talents of Attorneys by Joel A. Rose PROFESSIONAL PROFILE OF THE MONTH
30 Teresa Ponder
The Go-to Litigator for First-Party Insurance Bad Faith Cases by Jennifer Hadley
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Dispute RESOLUTION JOURNAL
OF THE MONTH
Rebecca Callahan’s Years of Service, Leadership and Legal Expertise Helps Parties to Reach Private Resolutions through Mediation and Arbitration by Karen Gorden
hen someone comes to me and says they are resigned about going to trial and have no hope that the case can settle, I am reminded that statistics say otherwise,” says Rebecca Callahan who has spent more than 30 years as an attorney, and is now focusing her practice on alternative dispute resolution. Callahan isn’t being snarky in the slightest. On the contrary, it is her knack for bringing order to chaos that has made her a highly regarded mediator and arbitrator. On the subject of why mediation has recently become so popular, Callahan had this to say: “There are roughly 2 million civil actions filed each year in California courts, of which only about 250,000 are “unlimited” jurisdiction cases. Of those, less than 5% are resolved by trial. That means somewhere along the line they are abandoned, closed via a dispositive motion or resolved by settlement. Most – over 70% - are resolved by settlement. Attorneys have come to appreciate that mediation can be used to facilitate settlement earlier on in the process.”
THE ONLY CONSTANT IS CHANGE Callahan has always looked for ways to improve and expand her skills as an attorney and that is what led her to the field of ADR. “I entered ADR completely by accident. In my prior life, I was a Chapter 11 reorganization attorney and tended to handle cases where confirmation was contested or confirmation of a plan depended on the outcome of litigation pending in the state or federal court. In the mid-1990’s, I was one of the more senior bankruptcy attorneys in Orange County. So, when the Bankruptcy Court for the Central District of California established its court-annexed mediation program, one of the judges insisted that I ‘go get trained’ so that I could be on the panel. The training I received opened up a whole new world of practice skills to me!” Similarly, Callahan’s introduction to arbitration was a byproduct of taking professional skills programs at Straus. “At 6
Attorney Journal Orange County | Volume 100, 2014
a summer program in 2004, I learned that Pepperdine had an LL.M. program in alternative dispute resolution and decided to enroll. It was through those studies that I was introduced to arbitration. I had mediated hundreds of cases and had taken a dozen advanced mediation courses, so the focus of my LL.M. studies and thesis was on arbitration. Shortly after completing my studies in 2007, I was invited to join the AAA arbitration panel, and have been arbitrating cases ever since.”
BEING A NEUTRAL COMES NATURALLY Callahan has served on numerous community and professional boards and has chaired several projects and committees. She is currently serving as a Director of the OCBA, is the Past Chair of the ADR Section of the OCBA, and is a Past President of the Peter M. Elliott Inn of Court. Callahan’s affinity for leadership translates perfectly into her work as an ADR neutral. She likens her role to that of a ship captain. “I’m there from beginning to end. I make sure we leave the port on time and arrive at our destination. In mediation, it’s the parties’ process, so it’s up to them whether we head due north, or take a while to get there,” she chuckles. “In arbitration, I set the course and it’s my job to keep the case on track and moving forward to a final decision.” True leaders know that humility is the secret to effective leadership, and Callahan recognizes that’s especially true in ADR. “Arbitration and mediation are processes which are intended to be party-driven. Many times parties don’t understand the full extent of the power they have over defining their process. In ADR, there is a certain element of shared leadership. Out of respect for the others who are at the table, my approach is to nudge rather than bludgeon.” Leading parties through a dispute requires an unflinching willingness to speak directly about money – a subject many people have trouble talking about. In this area, Callahan is quite comfortable. In addition, co-owning a manufacturing
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business with her family, Callahan spent over 20 years working with creditors and debtors negotiating money matters. “I have a solid understanding about money and finance. Whether it’s a large or small dollar case at the table, the perspective is still the same. Money is important to people – to their personal lives, their businesses, their families and their plans for the future. Money matters simply have to be considered and talked about to get the job done,” she says.
PREPARATION AND FOLLOW THROUGH ARE PRICELESS Callahan writes perspective pieces on mediation and distributes them in advance of the mediation to help educate the parties about the process. “I work with a graphic artist who designs an image and then I write a few short paragraphs on some bitesized nugget about mediation. For example, one image is the tail end of an elephant, the tag line is ‘elephant in the room’ and the perspective talks about the real issue that no one is talking about. The message is that mediation is a private place where difficult issues can be put on the table and talked about.” Callahan’s next project is to creates a series of one-page articles
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that discuss “tips” on advocacy in mediation and arbitration, which she will then share with parties and their counsel as part of her scheduling process. Callahan is a big fan of visual aids and frequently creates a visual aid to help kick-start the mediation. From pie charts and graphs to Excel spreadsheets and diagrams, Callahan routinely uses visual aids to help the parties “gain a broader understanding of the problem, develop frameworks within which to talk about settlement and to compare settlement options, as well as alternatives to settlement.” When the mediation ends with a settlement, Callahan stays at the table to help write up the deal. “If needed, I will provide the parties with a template that has common boilerplate and blanks to fill in. After working hard to achieve a negotiated resolution, I want everyone to leave the mediation confident that the dispute has been put to rest,” Callahan says. For Callahan, much of her success is simply the result of years of experience. “Mediation is an acquired skill. If you ask any judge or attorney, I think they will agree that they did a better job on their 100th trial than on their first; that they were better in year 5 than they were in year 1. The same can be said of mediation.” If it sounds like Callahan has her ADR practice down to a science, it’s because she does. “Given that most mediations start with the parties who are at opposite ends of the spectrum in terms of how they view the dispute, the real challenge in mediation is to get the parties talking in a constructive manner. I’ve been told by people who have worked with me that I have a ‘common touch’ in that I can talk as easily to a Fortune 500 CEO as an hourly wage employee. My formula is simple. Start the mediation with a heavy dose of listening. I can’t listen very well if I’m the one doing the talking,” she jokes. She’s equally pragmatic about the future of her ADR practice. “I really like what I do. I have never tired of the law and have always been fascinated by the process through which disputes are resolved. My expectation is that my neutral practice will grow the same way as my law practice: namely, by referral!” While Callahan maintains a few longtime clients, the primary focus of her practice is serving as a neutral or working as a consultant with parties who are preparing for mediation or arbitration. n Contact: Rebecca Callahan www.callahanADR.com rebecca@callahanADR.com 949-260-8888 5120 Campus Drive Newport Beach, CA 92660
COMMUNITY news nFriedman Stroffe & Gerard, P.C. is pleased to announce that Sasan K. Behnood has joined the firm as an Associate. Sasan’s practice involves commercial litigation, real estate law and intellectual property law. Sasan has significant experience managing and strategizing the litigation of sophisticated business & commercial, SASAN K. BEHNOOD intellectual property, banking & finance, and real estate matters oftentimes in the context of complex multi-party litigation in state or federal court. His work in banking and lending, prior to entering the legal profession, uniquely positions him in his real estate practice, and has fostered his in-depth familiarity with acquisition finance, securitized debt, senior & subordinated debt, banking regulatory procedure, judicial & non-judicial foreclosure, as well as structured financial transactions. As a USPTO admitted patent attorney with an undergraduate degree in molecular biology, Sasan’s practice also focuses on the litigation and prosecution of intellectual property including patents, copyrights and trademarks. Sasan received his Bachelor’s Degree from the University of California, Riverside in Molecular Biology. He earned his law degree from Loyola Law School. He is a member of the Orange County Bar Association and the American Intellectual Property Law Association. nMaria Stearns, a Partner with Rutan & Tucker, LLP, has been named one of California’s top women lawyers for 2014 by the Daily Journal, California’s leading legal news provider. As the youngest female equity partner at OC’s largest firm, Maria represents employers in all areas of labor and employment, MARIA STEARNS including: wage and hour class actions; discrimination/harassment litigation; agency proceedings; labor law/collective-bargaining; preventative counseling; and management training. Maria is a frequent public speaker, including an annual presentation to the Association of Corporate Counsel in Los Angeles and Orange County. Maria is a committed community leader; she is founder and President of the Harvard Law School Women’s Alliance, a Board Member for the Orange County Bar Foundation (non-profit serving at-risk youth), and provides pro bono legal advice to non-profits. Maria is also on the Board of Governors for the Association of Business Trial Lawyers (Orange County) and a member of the National Human Resources Association.
Attorney Journal Orange County | Volume 100, 2014
nMatt Easton, partner at Easton & Easton, LLP, was recently selected as a Southern California Super Lawyers Rising Star, an honor given only to 2.5% of attorneys in Southern California under the age of 40. In addition, Matt was chosen this year for the National Trial Lawyers Top 40 Under 40 in California. This recognition among his peers comes MATT EASTON in the wake of several significant results acquired in recent years on behalf of plaintiff’s in serious personal injury and wrongful death cases. At the end of 2013, Matt received a Commendation from the City of Lancaster for his advocacy in acquiring a mediated settlement of $2,750,000 for the wrongful death of a 55-yearold man whose only surviving heirs were his 80-year-old parents with no economic losses. More recently, Matt acquired $1,240,000 one month before trial for a client whose breast reconstruction incision ruptured open after she was T-boned in an intersection. nAitken*Aitken* Cohn congratulates Chris Aitken and Richard Cohn on their contributions to the First Edition of California Tort Forms From Expert Litigators. In the latest issue of California Tort Forms, both Chris Aitken and Rich Cohn contributed their expert knowledge to their representative fields. Cohn CHRIS AITKEN contributed in the field of Medical Malpractice while Aitken was an expert author in the automobiles field. The new edition covers the fields of Animals & Premises Liability, Automobiles, Carriers, Construction Liability, Governmental Liability, Medical Malpractice and Product Liability. It also includes over 130 essential forms and time saving RICHARD COHN samples. Not only does this book cover the key elements and defenses to the action, it also provides “real life” situations such as Vehicle Collisions in Intersections and Misdiagnosis of Internal Pain. This is Cohn’s first CEB publication. Aitken is a contributing author to the California Evidence Benchbook and the consulting editor of Personal Injury Proof, a leading treatise on personal injury litigation.
COMMUNITY news nKeller Rackauckas LLP is pleased to announce that the firm has hired two new associates, Lisa M. Foutch and Lilian M. Loh. Foutch was hired as a litigation associate, focusing on complex business trials. She earned her J.D. from University of Southern California Gould School of Law. In law school, Foutch was a member of and LISA M. FOUTCH summer intern for the International Human Rights Clinic, a founder of the Iraqi Refugee Assistance Project, and volunteered for the LACBA Domestic Violence Project. Loh was also hired as a litigation associate, concentrating on complex business trials. At Cornell Law School, Loh was President of the Cornell Law Students Association, LILIAN M. LOH Chair of the Student Leadership Council and a top finisher in moot court competitions. As an editorial associate for the Cornell Legal Information Institute, she researched and wrote Supreme Court case summaries published online in The LII Supreme Court Bulletin and in print in The Federal Lawyer.
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nThe partners of Fisher & Phillips LLP have elected Irvine office partner John Polson to a three-year term on the firm’s Management Committee. The committee serves as the board of directors for the 31-office national labor and employment law firm. Polson joins partners Roger Quillen and Charles Caulkins on the Management Committee. Polson JOHN POLSON assumes the role previously held by Atlanta partner Thomas Rebel who served on the committee for 15 years and is transitioning to other firm responsibilities. As a partner in the Irvine office, Polson represents employers and staffing industry clients in all aspects of labor and employment law, including transactional matters, litigation, compliance advice and audits, executive and management training, and other employment related legal matters. He handles administrative and civil employment litigation matters, including arbitrations, in California and elsewhere, but has particular expertise representing temporary staffing, employee leasing, and Professional Employer Organization (PEO) clients in labor, employment, tax, and transactional matters.
Attorney Journal Orange County | Volume 100, 2014
The Case for Statutory Changes in Commercial Real Estate Representation SB 1171 Seeks To Require Conflict Disclosures for Commercial Real Estate Brokers
by Jason Hughes & Rob Bello
Jason Hughes is President & CEO of Hughes Marino, a Southern California commercial real estate company specializing in tenant representation for lease and building purchases. Contact Jason direct at (949) 333-3111 or firstname.lastname@example.org to learn more. Robert Bello is General Counsel for Hughes Marino, a Southern California commercial real estate company specializing in tenant representation and building purchases. Contact Robert direct at (949) 333-3111 or email@example.com to learn more.
Attorney Journal Orange County | Volume 100, 2014
henever there is a conflict of interest, there exists an opportunity for those seeking representation to be exploited. This is undeniably true for commercial real estate buyers and tenants. Current commercial real estate law prescribes fiduciary duties upon brokers, but at the same time permits dual agency. Dual agency occurs when one broker represents both landlord and tenant (or seller and buyer) in the same transaction. In fact, the law is specific regarding a dual agent’s responsibility to not share any inside information between the parties. The dual agent is essentially limited to acting as a go-between, simply moving information back and forth between the two sides. While the law governing residential real estate transactions requires written disclosure of the dual agent relationship, a description of the duties owed by the agent, and signed, written consent from the client for the dual agent to represent the client, current commercial real estate law does not require such disclosures. As we will further detail, these current shortcomings in the law have driven Hughes Marino to propose and support SB 1171. Extending these residential real estate protections to commercial transactions (which SB 1171 proposes) will close this ethical loophole and increase transparency in commercial real estate deals and brokerclient relationships.
DUAL AGENCY AND LOYALTY Dual agency inherently creates a conflict of interest in the typical commercial real estate transaction because the broker’s loyalty is divided between the two sides. In fact, despite the practice being permitted by law, commercial real estate brokers cannot truly uphold their fiduciary duties when acting as a dual agent, as explained by California courts. “[A] broker’s fiduciary duty to his client requires the highest good faith and undivided service and loyalty. The broker as a fiduciary has a duty to learn the material facts that may affect
the principal’s decision. He is hired for his professional knowledge and skill; he is expected to perform the necessary research and investigation in order to know those important matters that will affect the principal’s decision, and he has a duty to counsel and advise the principal regarding the propriety and ramifications of the decision. The agent’s duty to disclose material information to the principal includes the duty to disclose reasonably obtainable material information.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 414-415, quoting Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25-26.) Additionally, “[a] fiduciary must tell its principal of all information it possesses that is material to the principal’s interests. A fiduciary’s failure to share material information with the principal is constructive fraud, a term of art obviating actual fraudulent intent.” (Michel v. Palos Verdes Network Group, Inc. (2007) 156 Cal.App.4th 756, 762.) “`Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal, which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562.) One of the inherent issues caused by such dual representation is actually addressed in the current statutes governing residential real estate transactions: a dual agent cannot tell the buyer that the seller would take less and cannot tell the seller the buyer would pay more unless that agent receives written consent from each side first. (Civil Code, § 2079.21.) Yet this is the very information that causes a client to hire a broker in the first place. Due to the clear conflict of interest, it is not only reasonable but imperative that a commercial real estate broker be required to disclose his representation of both parties, to both parties. Consider Glenn v. Rice (1917) 174 Cal. 269, a case involving the sale of land from the land owner to the San Diego Construction Company where only one party knew that the broker was being paid by both sides. Key holdings include: l
If an agent is engaged by both parties to effect a sale of property from one to the other, or an exchange between them, not as a mere middleman to bring them together,
but actively in inducing each to make the trade, he cannot recover compensation from either party, unless both parties knew of the double agency at the time of the transaction. l
The reason for the rule is that he thereby puts himself in a position where his duty to one conflicts with his duty to the other, where his own interests tempt him to be unfaithful to both principals, a position which is against sound public policy and good morals.
Finally, another problem with dual agency is that, given the relationship and the extensive time spent working together, the seller/landlord usually has a much closer relationship with the dual agent – and the dual agent is privy to the seller’s motives, thoughts and agenda. This gives the seller or landlord yet another advantage in the transaction.
WHY COMMERCIAL REAL ESTATE HAS BEEN EXCLUDED The reason that commercial real estate brokers have been exempt from these written disclosure requirements stems from the holding in Easton v. Strassburger (1984) 152 Cal. App.3d 90. In that case, the Appellate Court held real estate licensees owed certain fiduciary duties to buyers even while representing the sellers in a residential home transaction. In the Easton case, the Appellate Court withheld judgment relating to commercial transactions, stating in dictum: “[u] nlike the residential home buyer who is often unrepresented by a broker, or is effectively unrepresented because of the problems of dual agency ..., a purchaser of commercial real estate is likely to be more experienced and sophisticated in his dealings in real estate and is usually represented by an agent who represents only the buyer’s interests ....” (Id. at p. 102, fn. 8.) The Court provided absolutely no basis for this conclusion however. How did those three justices determine that commercial real estate tenants or buyers were automatically sophisticated? Later the next year, the Legislature then refined and codified this holding with the initial statutes that make up this portion of the Civil Code. In fact, when compared to landlords, most commercial tenants do not have anywhere close to the same experience and sophistication since a tenant will likely negotiate a lease once every five years, while the landlord negotiates multiple leases every year with the help of a team of sophisticated professionals.
Attorney Journal Orange County | Volume 100, 2014
SB 1171: ARGUMENT FOR DEMANDING TRANSPARENCY IN COMMERCIAL REAL ESTATE LAW The fact that commercial real estate brokers are not required to disclose in writing their dual agent status is just plain wrong. It would be like saying that an attorney should be able to represent the defendant and the plaintiff without providing and obtaining informed, written consent. Except that in this case, the defendant and the attorney have a long and prosperous relationship – essentially putting the plaintiff in a subordinate position with his or her own attorney. This begs the question: Shouldn’t your commercial real estate broker have undivided loyalty too? Shouldn’t the same basic ethical requirements that apply to residential brokers and attorneys also apply to commercial real estate brokers? Currently, commercial dual agents merely have to provide oral disclosure (which is almost impossible to enforce since any dispute quickly devolves into a he said/she said swearing contest). Existing law requires residential real estate listing and selling agents or brokers to provide parties to a transaction with a real estate agency relationship disclosure form. This should apply to commercial brokers too. The financial loss a company (or law firm) may experience by working with a dual agent can be substantial. Why should your commercial real estate broker be held to any less of a standard than a residential broker?
This is why we proposed and support SB 1171. This bill calls for greater transparency in commercial real estate transactions by requiring brokers to provide written disclosure as to who they represent – the landlord, tenant, or both. It also requires brokers acting as dual agents to obtain written consent from their clients. But truth be told, it should really go much further than simple disclosure. Given the substantial economic commitments companies make based on the advice of their real estate broker, it makes sense that a broker’s advice should be 100% un-conflicted. This simple concept acts as the foundation for all of our services at Hughes Marino, and is why we only serve tenants and buyers in commercial real estate transactions. This Appellate Court said it well: “Common sense and ancient wisdom join the law in teaching that an agent is not permitted to simultaneously serve two principals whose interests conflict about the matter served — at least, not without full disclosure and consent from both.” (Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 778.) SB 1171 is just the first step. In the future we hope to sponsor legislation that also includes a requirement that all real estate brokers must provide Errors & Omissions Insurance. Proof of this insurance should be provided to the client prior to engaging in a working relationship. But Rome wasn’t built in a day, so we have got our work cut out for us. n
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VOW Since 1978 Bisnar|Chase has upheld their commitment to provide “superior client representation” to referring attorneys and their clients. BY JENNIFER HADLEY
rial attorneys are the best check and balance against corporate greed,” says Brian Chase, Senior Partner at Bisnar|Chase, and President Elect of the Consumer Attorneys of California (CAOC). “It is an honor and privilege to represent regular people in fighting corporate giants, insurance companies and governmental agencies,” he adds. For Chase and his team at Newport Beach based Bisnar|Chase, those regular people include not only victims of catastrophic injuries and wronged employees, but also fellow attorneys. “Most of our clients are referred to us by former clients and other attorneys. We try all kinds of personal injury cases ranging from smaller auto accidents to catastrophic injury (including death cases) caused by accidents, negligence or defective products. We also try employment rights cases on the side of employees,” he explains. This steadfast commitment to representing victims only began with a vow made by the firm’s Managing Partner John Bisnar in the mid 1970’s. After serving in the military as a draftee in Southeast Asia in the late 1960’s, and attending college on the G.I. Bill, Bisnar was accepted at Pepperdine University School of Law. Just one month into law school, he was seriously injured in a traffic collision. Not knowing any better, Bisnar hired his torts law professor to represent him in his case. It was a terrible experience. After graduating law school, Bisnar launched Bisnar & Associates in 1978, and vowed to always “be the type of attorney he wished 16 Attorney Journal Orange County | Volume 100, 2014
he’d had.” That vow has stood the test of time, and now 36 years later, continues to serve as the M.O. for Bisnar|Chase.
OPPOSITES ATTRACT Meanwhile, Brian Chase was growing up as a financially poor teen in a rough Southern California neighborhood. “We didn’t have much, but we also didn’t want for anything. I honestly didn’t know I was poor because I had such a loving, supportive family,” he recalls. However, what he had was an inherent sense of justice. Seeing people being taken advantage of bothered him immensely. “When I was a teenager the Ford Pinto verdict came down and it opened my eyes to corporate greed. The fact that Ford’s in-house bean counters determined that it would be cheaper to pay an estimated $200K per person they killed, than spend a few dollars to fix the Pinto’s gas tank disturbed me,” he says. As such, Chase went to law school knowing that he wanted to be a personal injury trial attorney. “I didn’t stumble into being a personal injury trial attorney. I am very passionate about helping people whose lives have been damaged by the greed I see in many corporations that consistently place profits over people and safety. The attitude of profits over people makes me angry,” he says. With that passion, Chase knew that work in personal injury would fulfil the two main objectives he hoped his life’s work would provide. “I wanted my life to have a positive substantive impact
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on other peoples’ lives, and I wanted my career to be intellectually stimulating and challenging,” he says. Chase was so convinced personal injury was his destiny he took a job with Bisnar & Associates while still in college. “Bisnar reluctantly hired me as a favor to a friend, on a temporary parttime basis as an office assistant. I did whatever odd jobs needed to be done, just to get some experience,” Chase recalls. By the time Chase got to law school (also at Pepperdine), and had the opportunity to clerk for an insurance defense firm, he was more convinced than ever that plaintiffs’ work was his calling. “I got a job offer from the defense firm, but I saw that one of the associates had just made partner after seven years, and was finally doing his first trial. I knew that wasn’t for me. I chose the plaintiffs’ firm of Bisnar & Associates and was in a five day jury trial within a week of being sworn in,” he says. For Chase, diving headfirst into trial work as a new attorney proved to be the best professional decision of his life.
PERFECT UNION OF TRUST & PASSION After five years and multiple trials, Chase approached his boss about a partnership. “Bisnar had built his law firm from scratch. He was a great businessman, an accomplished negotiator and knew how to manage people. We shared a passion for doing the right thing by the clients. He was and is a man of integrity and got great results for his clients,” Chase says. 18 Attorney Journal Orange County | Volume 100, 2014
Continuing he adds, “He was content with operating a relatively small firm. The firm did no marketing. I knew that with my trial skills, my fire to grow the law firm, to do bigger cases and to serve more people that together we could build something great. I proposed he run the business and marketing programs to non-attorneys, while I attended to running litigation and marketing to attorneys. From there we formed Bisnar|Chase, Personal Injury Attorneys, LLP.” The division of labor proved to be a winning strategy. As partners, Bisnar and Chase built on the firm’s original vow, by defining their mission: “’Provide superior client representation in a compassionate and professional manner, while experiencing high job satisfaction and making our world a safer place.’ Experiencing high job satisfaction includes enjoying the process in a supportive team environment,” says Chase. Chase focused on doing what he does best, running the litigation department and trying cases. “We do all types of personal injury cases ranging from smaller auto accident cases up to major catastrophic injury and death cases. My word is my bond. If I give my word, it’s a done deal. That wouldn’t have been unique in the old days but with today’s contentiousness between attorneys, it is a lost art.” Chase carved out a few personal injury sub-specialties in areas he is passionate about. “I’m heavily involved in defective product cases. I love the challenge and we have been very successful with many different types such as machinery, heavy
design immunity); Martinez v. Ford Motor Company (an auto products case dealing with Forum Non Conveniens); Romine v Johnson Controls (an auto products case dealing with consumer expectation test for defect).
RESULTS FOR REFERRING ATTORNEYS Chase also specializes in taking on last minute trials for other attorneys. “We are a trial firm, not a settlement firm. Many PI firms will do whatever they can to avoid a trial due to the dramatic increase in work, expense and the chance of losing. We don’t avoid trial. We conduct a considerable amount of trials each year; nearly every month we’re in trial. A lot of our trials are for other law firms.” “Sometimes our colleagues will get into a case that demands more resources than their firm can commit. Some cases require hundreds of thousands of dollars in costs or thousands of hours of work. Many PI firms can’t accommodate those demands, so they bring us in to pick up the ball and run with it for them,” he explains. “Referring attorneys are an integral part of our practice. We do what we can to take care of them. Our primary job for the referring attorney is to make them look good. We assure them their referral will experience first class client care. From the person who answers the telephone, to the paralegals, to the trial attorneys, we are focused on delivering the best client experience in our
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equipment, consumer items and vehicles. The defect cases I have completed the most and really enjoy are auto defects, including defective seats, seat belt failures, airbag failures, rollovers, roof crush, fires, tires and tread separations,” says Chase. “In our auto defect cases we literally become a mini auto manufacturer. We perform our own testing on vehicles to prove their defects and discover alternative safer designs. We have spent millions of dollars in testing vehicles for defects and testing fixes that the auto industry could have used to make their vehicles safer.” “Years ago, I represented a young girl who was rendered a paraplegic by an automobile seatbelt failure. Even though she was confined to a wheel chair, she was more upbeat and cheerful than I. When I would be overwhelmed fighting her case, she would lift my spirits. Sadly, she died of complications from her injuries before I got her case to trial. Just before trial, the automaker settled her parents’ wrongful death case. She taught me to keep my spirits up and to keep fighting for what is right in the face of all odds and obstacles. I often think of her. She was my first auto defect case and my first multiple seven figure victory. I’d like to think that the financial loss to the automaker had some impact in safer seatbelts in cars today,” Chase recalls. Chase’s clear passion for personal injury work led him to serve as lead attorney on four important, precedent-setting appellate opinions: Schreiber v. Estate of Kiser (a California Supreme Court case dealing with expert witness designations); Hernandez v. State of California (dealing with governmental
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THE FUTURE OF THE GROWING BISNAR|CHASE FAMILY “As a firm and as individuals, we care deeply about our clients and team members. We have a cooperative team environment staffed by super stars in every position. We are the Bisnar|Chase family and our clients and referring attorneys are part of that extended family,” Chase says. “We reward our team for a job well done, and encourage balanced lives. Our employees are a priority. We assist them in reaching their personal goals in the same way they play an integral part in assisting the firm to reach its goals. As a result, we have three “Best Places to Work” awards and very low turnover. No one is any better than anyone else at our firm. We’re all equal, and we’re all equally committed to providing superior client representation in a compassionate and professional manner.” “We have always felt that if you do right by the clients, the business will take care of itself, and it has. I think, to truly be successful you have to do something you enjoy, with a purpose, for a cause that is bigger than you. And do it with passion,” Chase adds. Contact: Brian Chase Bisnar|Chase, Personal Injury Attorneys, LLP www.BestAttorney.com AttorneyReferral@BisnarChase.com ChasePersonal@BisnarChase.com (949) 752-2999 1301 Dove St. Suite 120 Newport Beach, CA 92660 20 Attorney Journal Orange County | Volume 100, 2014
industry. We call it micro-managing the client experience. Getting the client results is a major part of that equation. ” Chase says. Referring attorneys receive whatever degree of communication and involvement they prefer. “Some attorneys want regular updates. Some want to be involved. Some just want to know when the case is completed. We work with each referring law firm to determine what level of communication and involvement they want and we provide it.” “Some of our biggest cases have been referred from other attorneys. These are seven and eight figure cases,” he says. Chase guarantees prompt delivery of referral fees. “Their referral fee check is cut before we get our fee. It feels good to make someone’s day. Just this month we paid a referral fee to an attorney on a very difficult case, where the amount was more than he makes in years. It felt great to succeed for the attorney,” Chase says. Chase isn’t just blowing smoke. Referring attorneys are happy to attest to their experience with Chase and his team. B. Robert Farzad, Orange County Family Law Attorney says, “Trust is the foundation of any referral relationship and I will only send referrals to attorneys I trust. Bisnar|Chase is my first and go-to law firm for any serious or catastrophic injury case. They do not disappoint. They get results. They promptly and joyously pay referral fees consistent with the law. The satisfaction I receive knowing Bisnar|Chase will take great care of my referrals and that care will result in a happy client matters most.”
» EDUCATION • 1992 JD, Pepperdine School of Law, Associate Editor of Pepperdine Law Review. 2 publications in the Law Review
» AWARDS • 2004 Product Liability Trial Lawyer of the Year Award, Orange County Trial Lawyers Association • 2007 – 2014 Listed as one of the Top 100 Trial Lawyers by the American Trial Lawyers Association • 2009 Named Top Lawyer in Orange County by OC Metro magazine • 2010 Named Top 50 Orange County Super Lawyer by Orange Coast magazine for the fourth consecutive year • 2012 Trial Lawyer of the Year Award, Consumer Attorneys Association of California • 2012 Trial Lawyer of the Year Nominee, Consumer Attorneys Association of Los Angeles
» AFFILIATIONS • Past President of the Orange County Trial Lawyers Association • 2014 President Elect of the Consumer Attorneys of California (President in 2015) • Author Still Unsafe at Any Speed, book dealing with auto defects • Frequent national lecturer on personal injury litigation related topics • Frequent guest on radio and television, including appearances on Fox News, CBS Special Reports, CBS News, Larry On The Law, and America’s Best Lawyers • AV Rated by Martindale Hubbell • ABOTA Member
» NOTEABLE CASES • Lead attorney on four important, precedent-setting appellate opinions: Schreiber v. Estate of Kiser (a California Supreme Court case dealing with expert witness designations); Hernandez v. State of California (dealing with governmental design immunity); Martinez v. Ford Motor Company (an auto products case dealing with Forum Non Conveniens); Romine v Johnson Controls (an auto products case dealing with consumer expectation test for defect).
FEATURED RISING STAR
OF THE MONTH
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D. Aaron Brock is an attorney in JML Law’s Personal Injury and Employment Law Departments.
ORANGE (COUNTY) NEW BLACK IS THE
For Personal Injury and Employment Plaintiffs, JML Law’s Expansion into OC Has Been a Huge Hit by Karen Gorden “I always knew I wanted to be a trial lawyer. I was born and raised in Texas which is the birthplace of many great trial attorneys,” says D. Aaron Brock, Partner at JML Law in Orange, CA. “Orange County reminds me a lot of Texas and I feel that helps me in litigating in a county that is considered by many attorneys to be unfriendly to plaintiff’s cases,” he adds. However, the attorneys at JML Law are no shrinking violets. Though they may be the new kids on the block in Orange County, they are far from new to the practice of personal injury and employment law. “JML has been an established plaintiff’s firm in LA County for almost 30 years. Due to the increasing need and demand for our services in Orange County, we opened our office here in January 2013. It is much more convenient for our clients to have us here rather than having to drive to LA,” he adds.
BREAK OUT STARS JML Law was founded by Joseph M. Lovretovich in the 1980’s in effort to represent the rights of the individual, with a special emphasis on employment law. As Principal Partner at JML Law, APLC, Lovretovich’s reputation as a top trial attorney was earned through precedent setting cases including Colmenares v. Braemar Country Club, which substantially expanded the definition of disability in California. He also successfully argued the case of Dee v. Vintage Petroleum, which added substantial protections for the victims of racial prejudice. It was Lovretovich’s reputation that drew Brock to JML Law upon earning his J.D. from Loyola Law School in 2005. “I spent the first three years of my career at JML Law mostly doing Attorney Journal Orange County | Volume 100, 2014 21
employment law, but wanted to work in personal injury. I left the firm for a while and joined a plaintiff’s personal injury firm and spent the next several years trying PI cases,” he explains. A conversation with Lovretovich in 2012 would change the course of Brock’s career. “He suggested we add Personal Injury to the firm’s areas of specialty, and he gave me the opportunity to start the Personal Injury practice in Orange County in 2013,” Brock says. Lovretovich believed the reason for blending the two practice areas was clear. “Often times our clients need legal representation in a number of areas, and we find employment law to be a complementary practice area to personal injury, so our Orange County office was designed to be a full service plaintiff’s firm, to help individuals during their greatest times of need,” he adds. Brock subsequently became the Orange County Partner alongside his Los Angeles counterpart, Partner David Tibor.
SPECIALIZED TALENT In addition to Lovretovich’s recognition as a “Super Lawyer” in employment law by Super Lawyer magazine since 2007, JML Law boasts several talented and dedicated young lawyers. Partners Brock and Tibor have been recognized as “Rising Stars” by the same publisher every year since 2009, and associates Ellen Cohen and Karen Cho have recently been added to the same list for their work in employment law. However, JML Law’s personal injury accolades continue to grow as Brock is now recognized in the “Top Ten California Personal Injury Attorneys under 40.” Brock’s personal injury and employment law expertise are complimented by those around him. His Orange County
team also consists of JML Law Associates Brad Benham and Christopher Brandes. A fellow native Texan, Benham moved to California in 2005 to attend Pepperdine University School of Law, where he was simultaneously trained by the #1 nationally-ranked Straus Institute for Dispute Resolution. He also served as the President of the Pepperdine’s Student Bar Association, through which he spearheaded numerous charitable works and student programs. To date, his work on cases has resulted in millions recovered for victims. His focus at JML Law is on fighting for an individual’s rights in both their personal injury and employment claims. Brandes provides fluency in Spanish for JML’s Orange County based office. Specializing in employment law, Brandes earned his J.D. from Southwestern Law School, where he served as Justice for the Sammis Chapter of Phi Alpha Delta law fraternity, helping raise funds for several scholarships directed at assisting underprivileged students in pursuit of a higher education. Brandes also maintained an externship at the Los Angeles County District Attorney’s office Major Fraud, Hardcore Gang and Preliminary Hearing units. After law school, Chris joined JML Law as a law clerk and eventually as an attorney, finding his niche in employment law. “Law today is incredibly specialized and it is rare for a firm to specialize in both employment law and personal injury. However, because we take on civil rights cases, the decision to take a case is not based on the amount the case is worth, but the worthiness of the case. We have the capabilities to litigate very large complex cases against high profile defense firms and
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JML Law Firm’s Attorneys & Staff.
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David F. Tibor, Joseph M. Lovretovich & D. Aaron Brock.
insurance companies who have unlimited resources, and we take on smaller cases as well,” Brock says. David F. Tibor, Joseph M. But one thing remainsLovretovich consistent no&matter the size of the D. Aaron Brock. case, and that is the fact that Brock says all of JML’s clients can count on frequent communication and status updates. “A big complaint we’ve heard from clients is that they have had difficulty communicating with previous attorneys. The assistant, paralegal or receptionist screen phone calls, putting barriers between the attorney and client. We don’t do that. We provide our cell phone numbers to each of our clients, and encourage them to reach out to us 24 hours a day, seven days a week.” Likewise, Brock says that the attorneys at JML’s Orange County office are more than happy to conduct client meetings at the clients’ homes, in an attempt to reduce the inconvenience and stress an injured victim is already experiencing. Similarly, all of JML Law’s clients can count on all of the attorneys in the firm to work incredibly hard, from start to finish. “When we were first getting started, we worked every day for months. When you start a firm, you don’t really shut it down. You power through every day to build your practice. In fact, I kept a cot under my desk for quick power naps,” he says. But the hard work is paying off for Brock’s clients. “One of the first clients we assisted after opening our office was a young man living in a homeless shelter after suffering traumatic head injury. Before the injury he was employed and married, but he was now separated, and unable to work with no money, and nowhere to turn. We pursued his civil claim and assisted in finding him housing. We recently resolved his case with a substantial
settlement so that he can pay back the government for the medical bills. Plus he will be able to receive the medical care he needs, with enough money to provide for himself for the rest of his life.” In August of last year, Tibor obtained a judgment of $250,000 for several Anaheim car wash workers who were being forced to remain on the job without pay when it was not busy, just in case the business picked up. When they complained, their employment was terminated. Those types of cases are precisely why Brock and the lawyers of JML Law do what they do. “Our typical client is someone who recently lost their job, or suffered a devastating personal injury, and because of that they are struggling financially, and wondering how they will pay for the medical services they need to recover from their injuries,” he says. As far as the future is concerned for JML Law, Brock says things are looking bright. “We’re very happy with our decision to expand into Orange County. It has been incredibly rewarding. We have exceeded in just over a year what we had hoped to achieve in five years, and that is very exciting.” n Contact: D. Aaron Brock JML Law APC www.jmllaw.com firstname.lastname@example.org 714-456-9176 2100 W. Orangewood Ave., Suite 150 Orange, CA 92868 Attorney Journal Orange County | Volume 100, 2014 23
Super Marketing Tips by Sofia S. Lingos, Esq. Sofia S. Lingos, Esq. is the principal and founding attorney of Lingos Law, LLC a boutique business law firm located in Boston, Massachusetts, representing small businesses and entrepreneurs in forming, protecting, maintaining and growing their ventures. Attorney Lingos also expanded her practice internationally to represent Greek-Americans in turnkey transactional services abroad. Attorney Lingos is an adjunct professor at Northeastern University School of Law, where she teaches a course on Law Practice Management and Access to Justice. Additionally, she is actively involved with numerous bar associations and philanthropic organizations. Reprinted with permission from Attorney at Work, www.attorneyatwork.com.
The Annual Super Marketing Conference brings legal marketing experts from across the continent to Boston (and broadcasts beyond) to share their knowledge. The fourth annual, hosted by Suffolk University Law School and the Law Office Management Assistance Program of the Massachusetts Bar (LOMAP), took place June 5. The focus: “Building relationships to build business.” Boston attorney Sofia Lingos reports her Friday Five favorite super marketing take-aways! 1. Create a customer-centric experience. What does the Apple Store have that AT&T stores don’t? The iPhone and iPads are no longer the answer, since those products can be procured at either place. Few would argue, however, that the experience of purchasing your i-branded device is the same outside of the white-washed walls of Apple. Keynote speaker Jack Newton, CEO of Clio, challenged attorneys to focus on providing a similarly unique customer-centric experience for their clients through cloud-based technologies. Cloud tools, previously reserved for the well-financed few, are now accessible for use by the “any and many.” The legal profession has always been slow to adapt to change, even compared to other service-based fields, and is usually driven by demands from our (always reasonable) clients, who want quick, quality, competent services at the lowest cost. You must distinguish your brand by providing a positive and memorable experience that will ensure you set a standard by which no competitor can compare. Newton reminded us that, “It is not what you sell, it is how you sell it” and left us with these tips: l Under-promise and over deliver. l
Empower employees (they’re your front line).
Connect with your customers in a genuine way.
Find ways to build trust.
Figure out what you want to be known for and do it best.
2. Keep it in the cloud. So what, pray tell, shall we do in the cloud? Everything! But first, stop making excuses about security. Most cloud-based services are more secure than the email system you used to send your client that confidential document 24
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today. Also, email is probably the worst way to collaborate on documents. That email chain of “Document Draft 3 – June 5 – 2014 at 5:47pm” could be completed in real time through a free collaborative workspace like Google Docs. Plus, how much time and money do you spend on paper bills? With an interactive online invoice you can send your clients their bills and accept payment at the click of a button. Or, how do you organize your information? Evernote allows you to collect and locate everything that matters to you — notes, links, images — in one searchable place. And, most importantly, when you get home and realize that the draft of the Attorney at Work article you were writing is on the computer sitting on your desk at the office, you no longer need to put on pants and return to said office. You merely access your Dropbox, Box or Google Drive folder and continue where you left off. (Side note about pant-wearing preferences: Dressing from the waist up is all that’s required for videoconferencing via Skype, Google Hangouts and other cloud-based service providers.) 3. Truth or lie? While not quite as, well, scintillating as Truth-or-Dare (though that could have been interesting), we were joined by Conrad Saam of Mockingbird Marketing, Gyi Tsakalakis of Attorney Sync and Leigh McMillan of Avvo, who shared the absolute truths and outright lies of relationship marketing. A few truths: l
Websites can be cheap and easy to do well — if you use WordPress, that is. You should always own your domain name and content! Not sure if you own your firm’s URL? Type your website name into the Whois box at domaintools.com. Your website must be mobile optimized and include a clickable phone number in the website header (but make sure the number is not an image). Lawyer reviews matter — and 74 percent of clients don’t mind being asked to write one.
People hate slow websites! How slow is yours? Go to speedtest.org.
And a few lies: l Only law-related content belongs on blogs. l
Your headshot should show you in front of law books or a courthouse, holding a gavel or balancing on the scales of justice. More domains equal more business.
5. Remember, relationships still matter. A common theme throughout the day was that relationships still matter. In the final session, the panel of presenters offered these words of wisdom: l
You can hire a writer to create your personal content, as long as it’s posted consistently. You should join all social media sites, even if just to say you have an account.
Bottom line? Focus on the fact that you are cultivating relationships, creating connections and communicating. Be sincere and make sure the content you create clearly conveys the message you intend. 4. Your online scorecard. Are you keeping track of the time and money you spend on online marketing? Do you know how and where to look? Experts Leigh McMillan and Conrad Saam shared tips that even the technically challenged can use. You must have Google Analytics installed on your website and blog, and you should be watching your interactions steadily increase. Also, review your sites through Google Webmaster Tools. Make sure your business information is consistent across the web. Analyzing your return on investment, and understanding the impact of the tools you choose to use, is the most important component of your marketing strategy.
Put yourself in the customers’ shoes and focus your content on what is valuable to them. Give attentive, competent service. Use your real name and image online and in social media — and therefore use your brain about what should and should not be broadcast to the world. Find people you already know in real life and connect virtually. Listen more than you post and reply more than you broadcast. Find your referral sources and customers offline. What are you doing to get in front of them face-to-face? Get organized, have a plan and implement it now — the best time to market is before it’s too late!
Invest in existing clients.
Never forget that you are running a business.
Stop thinking about marketing and start looking through the lens of reputations and relationships. Don’t get discouraged.
And finally, in the words of Arthur Ashe: “Start where you are. Use what you have. Do what you can.” n
Areas of Expertise Business/Commercial • Class Action Complex Litigation • Construction Employment/Wage and Hour Insurance Coverage/Bad Faith • Intellectual Property Legal Malpractice • Medical Malpractice Personal Injury • Probate Real Property/CEQA/Land Use • Wrongful Death
Past President: San Diego County Bar Association 2014 President of the San Diego Chapter of the American Board of Trial Avocates (ABOTA) Listed in The Best Lawyers In America, Super Lawyers and Top Attorneys 26 Years of Experience as a Mediator and Arbitrator 34 Years of Extensive Civil Litigation Experience Representing Plaintiffs and Defendants
Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.
Relentless Optimist® | Rapid, Reasonable Resolution™
To schedule contact Genevieve Kenizwald: phone (619) 233-1323, email email@example.com 19000 MacArthur Blvd., Suite 550, Irvine, CA 92612. | Offices in Irvine, San Diego, Los Angeles, Silicon Valley and San Francisco www.adrservices.org | www.montymcintyre.com
Attorney Journal Orange County | Volume 100, 2014
FEATURED CTITIONER NICHE PREAM O OF TH
THE BENEFITS OF “BENEFITS” When it comes to Employee Benefits and ERISA Law, Sherrie Boutwell’s Clients Get the Benefits of Creativity, Expertise & a Friendly Firm by Jennifer Hadley
“I never guessed that my initial days as a ‘flower child’ would lead me to become a tax lawyer,” jokes Sherrie Boutwell, co-founder of Boutwell Fay LLP in Irvine. However, the Martindale-Hubbell AV Preeminent Rated attorney did have an early desire to speak up for the innocent. “During my early college days, my boyfriend-now my husband-and I were hippies of a sort, and we went through a phase of being harassed by the cops, mainly because he had long hair. So I developed a desire to defend against injustice against the innocent. I loved my tax classes in law school and now I really enjoy helping employers, especially in situations where I can be an advocate, to be able to convince a regulator to allow my client to voluntarily correct an innocent error without penalty, or to help my client evaluate and mitigate risks in an M & A transaction. It’s funny where life leads you,” she adds.
CREATIVITY AS INTEGRAL COG For Boutwell, life has led her to great renown in her highly specialized field of employee benefits and ERISA law. But it took a great deal of out-of-the-box thinking to get her to where she is today, and it began more than three decades ago. 26 Attorney Journal Orange County | Volume 100, 2014
“I read a study once that said that the best predictor of success as an attorney is whether or not you were the first in your family to go to college. Well, I was the first child in my family to graduate from high school, the first to go to college and the only one to go to graduate school, so I think the odds were in my favor,” Boutwell jokes. All joking aside though, “It was not easy. My first year at UCLA Law School, I was raising a toddler, commuting from Orange County and working part time as a waitress in a coffee shop on the weekends. I simply would not hear of it when naysayers told me this could not be done.” Boutwell found creative ways to juggle her responsibilities, and also found herself pleasantly surprised by how much she enjoyed her tax law courses. “I had one hour on qualified retirement plans in my corporate tax class in law school. I can still see the professor drawing the tax benefits on the chalkboard and thinking: “Who doesn’t want one of these? This is the greatest thing since sliced bread.” Boutwell has been hooked ever since. After being admitted to the Bar in 1983, she followed her instincts and began focusing on her niche area of interest. Once again her dual role as attorney and mother required her to get creative in order
© Bauman Photographers
to juggle the demands of both. “I started working from home long before technology made it easy and acceptable. I hired a college student to drive back and forth between my home and my office. Back then, email was still new and there was no possibility of attaching a document to an email,” she says. The drive to achieve a better balance would ultimately inspire Boutwell to start her own boutique firm in 1998. “We were very early adopters of technology that allows attorneys to work from home, or anywhere, because at first, we were all moms with small kids and needed to innovate in order to take good care of our clients and our families.” As such, Boutwell Fay LLP was born. “Our firm really is a boutique with a niche practice and within that niche, we each have various sub-specialties such as retirement plans, health plans, etc. My practice focuses heavily on retirement plans such as 401(k) plans, executive deferred compensation plans, 403(b) plans and assisting in M & A transactions. Our typical client is a middle market company that offers a variety of employee benefit plans,” Boutwell explains. Those clients are the direct beneficiaries of Boutwell Fay LLP’s creativity. “We once represented a retirement plan where the owner of the company owed the plan a very large sum of money and could not pay. We were able to negotiate a settlement in which he gave his stock in the company to the plan (which was converted to an ESOP) so that in the end, the employees owned the company,” she says. In another example, a plan sponsor was involved in an investigation for engaging in certain transactions with a plan. “In that case we were able to demonstrate that there had been no loss to the plan and were able to convince the regulators that they should allow the employer to buy back the investment with no penalties by showing that this would be in the best interests of the plan participants,” Boutwell says.
EXPERTISE AS ESSENTIAL Of course, expertise is essential in order for Boutwell Fay LLP to be able to provide these creative solutions, and in this arena the firm places great emphasis. For Boutwell, the key to becoming an expert in a chosen field involves carving a narrow niche sticking to the niche, and learning all you can about that niche, so that you become the go-to person in that field. By way of example, Boutwell recalls, “In 1999 the IRS voluntary correction program for retirement plans was just getting started. I took on the project of writing one column a month for a 401(k) newsletter, which led to an offer to write a book on the topic. It took me many, many, hours to write that book. After I finished it, I truly think I was one of the top experts in the country on the topic, which led to speaking opportunities and opportunities to write more.” Likewise, she says “Two years ago I wrote an article for the State Bar, which led to a speaking opportunity, which led to an opportunity to update a chapter in a book on employee benefit plans in mergers and acquisitions. Each time I teach or write, I
learn something new, that I then use in my practice.” Continuing she adds, “I find that every time I invest in myself-in my knowledge and value-I’m just that much better of an attorney for my clients.” Not surprisingly, Boutwell has invested her time in belonging to organizations including the Orange County Chapter of the National Institute of Pension Administrators, where she is a board member, and the Orange County Chapter of the Western Pension and Benefits Council. She is also a member of the Development Committee for the National Association of Minority and Women Owned Law Firms (NAMWOLF). In addition, Boutwell manages the Meet the Rainmaker column for the ABA Law Practice Management Women Rainmakers group. Boutwell continually invests in her own education in order to stay on top of developments in this rapidly changing area of law. She just returned from a high level, 2 day workshop in New York City on employee benefit plans in mergers and acquisitions from experts on the subject both internationally and nationally. Last month, she spent two days at the ABA Tax Section Meeting in Washington DC, learning from the top government regulators in the benefits arena. And she has three presentations scheduled in Las Vegas, Philadelphia for “HR. com” later this year.
FRIENDLY FACES OF THE FUTURE Finally, Boutwell Fay LLP clients receive the benefits of the friendly attorneys at the firm’s Orange County and recently opened New York City offices. “Employee benefits attorneys are generally very nice people. It’s germane to the field, I think,” says Boutwell. “Don’t get me wrong, we are adverse to the IRS and the Department of Labor always, but we still have good relationships with them.” Moreover, according to Boutwell, “We’re not afraid to be real and let our personalities show, whether by incorporating a reference to a favorite movie such as the Hunger Games in a 401(k) plan presentation or building a connection with an IRS agent through a joint appreciation for Tom Petty and the Heartbreakers. You can be yourself and be a good lawyer. We happen to be friendly, and we genuinely care about our clients.” n
Contact: Sherrie Boutwell Boutwell Fay LLP www.boutwellfay.com SherrieBoutwell@BoutwellFay.com (949) 660-0484 1 Park Plaza, Suite 600 Irvine, CA 92614
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Four Factors That Bring Out the Energies and Talents of Attorneys by Joel A. Rose Joel A. Rose is a certified management consultant and president of Joel A. Rose & Associates Inc., management consultants to law firms based in Cherry Hill, New Jersey. He has extensive experience consulting with private law firms, and performs and directs consulting assignments in law firm management and organization, strategic and financial planning, lawyer compensation, the feasibility of mergers and acquisitions, and the marketing of legal services. He may be contacted at firstname.lastname@example.org; Telephone: (856) 427-0050 or (800) 381-1645, Fax: (856) 429-0073.
The difference between success and failure in a law firm can very often be traced to how well four
1. Set the tone and methodology to encourage communications and participation from all attorneys;
main factors of firm life bring out the energies and talents of its attorneys, namely: leadership, including policy determination and implementation; firm culture; attorney compensation system; and client base. In recent years, law firms have greatly benefited from thoughtful strategic planning retreats and research. While the success of many firms stems from the energy, skill and reputation of founding and second generation partners, at some point the firm must identify its current overall special capabilities that attract clients. Firms which position themselves through strategic planning are simply operating like any well-run business in an intensely competitive market. The strategic planning process, if well-conceived and implemented, will foster communication, create a sense of ownership and common direction to bind the firm, help it withstand adversity, and achieve longevity and success; and build emotional equity, in addition to financial equity. The strategic planning process allows firms to re-focus on team work and investment in the long-run, even though this investment may reduce short-run profits. Firms must recognize that they cannot build a long-term continuous stream of business in one year and that they are not static. Internal and external forces change law firms, i.e., key clients and influential partners may come and go, economic trends and public policies may change. The glue that holds partners together includes their agreement about those collective values and beliefs about client service, an understanding and commitment about the firm’s mission, direction and goals and partner compensation levels that are competitive with those of peer firms.
2. Determine what the strategic planning process should be, even if the goal is as simple as getting all partners together for a weekend retreat for fun and interaction to help remind them of why they are practicing law together;
FORMULATING THE PLAN First, the managing partner, or management committee and other partners must be committed to strategic planning and its implementation. Without this commitment, the strategic planning process will be unsuccessful. Lawyer management should: 28
Attorney Journal Orange County | Volume 100, 2014
3. Have the will and obtain the collective support of the partners to hold them accountable for their actions or inactions relating to developing and implementing strategic plans for the firm, their practice areas and themselves; 4. Decide whether to take a “top down” (i.e., lawyer management performs strategic planning with input from the lawyers), or a “bottoms-up” (each practice area develops plans, with the firm’s strategic plan being the cumulative input from all of the various departments and offices) approach for strategic planning. In the latter situation, department heads and practice group leaders, together with members of their departments/practice groups meet and set realistic and achievable goals, given the expertise, personnel, personalities and level of business in the firm. There are certain issues to be addressed during the strategic planning retreat or study, such as: 1. The firm’s culture; 2. The firm’s governance and management; 3. The firm’s compensation system, i.e., does it encourage or discourage partners to perform those activities to address the firm’s immediate and long-term needs; 4. The firm’s competitive position in its marketplace; 5. Those plans to be implemented by the firm and its practice areas to achieve the goals; and 6. Reach a consensus about the process of implementing the plans, assessing the results and administering corrective actions.
Many law firms have found that experienced law office consultants can expedite the strategic planning process. Being familiar with firm dynamics and the economics of law firms, they can analyze and interpret financial and management information and partnersâ€™ responses. They can recommend alternative approaches for achieving firm objectives. Further, partners are usually willing to discuss their perceptions about the firm and respond to questions more readily with consultants than with other partners.
DRAFTING THE PLAN The next phase includes drafting objectives for presentation to the partners in each of the areas studied. The following is an abbreviated presentation of objectives and strategies prepared for one midsize law firm: We will be the dominant and preeminent, full-service law firm of first choice in the region, with a statewide reputation for competence and professionalism of the highest order. A sample of some strategic goals are: Goal One: Create, implement and promote a streamline governance system which enjoys the confidence of everyone and allows us to anticipate and benefit from changes in the environment through prompt, skilled and coordinated decision making and action. Goal Two: Systematically recruit, retain and train high caliber attorneys, who will be successors and leaders for our firm. Goal Three: Systematically recruit, retain and train high quality staff, who will have universal knowledge and skills to serve flexibly in various functions. Goal Four: Adopt and implement a formal, coordinated staff feedback system, which will be used in a positive way to provide input and increase accountability. Goal Five: Develop and implement attorney and staff career development
systems which emphasize personal and collective responsibility and reflects a shared intensity and dedication. Goal Six: Implement a client feedback system which will provide input and increase accountability, assisting us in being the best service provider of any type used by our clients. Goal Seven: Identify and develop plans for new specializations so that we will fully serve our clients. Goal Eight: Identify, develop and expand strategic relationships with clients, businesses and professional groups.
IMPLEMENTING THE PLAN The final benefit of strategic planning is when the plan is implemented. This is commonly the most difficult part of the strategic planning process. It is recommended that the plan be implemented through the firmâ€™s existing organizational structure, i.e., the managing partner, the strategic planning committee, heads of substantive practice areas and branch offices, etc. Individual partners should be assigned responsibility and be held accountable for the development and satisfactory implementation of each phase of the plan in accordance with an agreed-upon timetable. Partners responsible for the implementation phase should report to the managing partner, strategic planning committee or other group designated to oversee the planning process. Problems or progress should be reviewed and assessments made to determine the most appropriate strategies to be followed. Status reports should be provided to the other partners on progress or problems in each phase of the plan in order to keep them apprised.
CONCLUSION Strategic planning is a dynamic process. If conceived properly and implemented effectively, it will provide information required for determining and achieving immediate and long-term goals. n Attorney Journal Orange County | Volume 100, 2014
PONDER Principal, Berger Kahn
by Jennifer Hadley
Not surprisingly, Teresa Ponder’s expertise as a go-to litigator for first-party insurance bad faith cases earned her a shareholder position with the 20-attorney firm of Berger Kahn and earned her inclusion on the Southern California Super Lawyers “Top 50 Orange County” List. “Our firm is all grown up, we are good at what we do, and we are proud to be a little different,” says Ponder. As principal in Berger Kahn’s Irvine office, Ponder focuses on federal and state court litigation of complex first-party insurance bad faith cases arising under residential and commercial policies. She has represented major carriers in non-litigation coverage disputes and has litigated a multitude of cases involving significant exposure due to catastrophic losses and institutional practices. “I love insurance litigation. It is always changing — sometimes weekly, and in several of my cases, hourly. This provides a great challenge and opportunity to be on the cutting edge of serious analysis. They say the devil is in the details, and I love the details,” Ponder says of what makes her passionate about her work. Ponder is adamant about communicating with clients and staying in touch with them. “I have personal, lasting relationships with my clients. I often hear people complain that their lawyer doesn’t talk to them or keep them in the loop. I have no concept of that. It is their case. I know that if I were to have an attorney representing me in an important matter, I would certainly expect to be involved in the analysis and decision making.” Always a dedicated team player, Ponder is emphatic about the fact that clients are not just her clients. “My clients are clients of the whole firm of Berger Kahn. Success for one is success for all. I have a great support system here, both behind me and around me,” she says. “We have an incredible group of shareholders and support staff, most of whom have worked together for decades.” 30 Attorney Journal Orange County | Volume 100, 2014
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Another unique feature of Berger Kahn is community service. The entire Berger Kahn team is dedicated to giving back to the community. “We walk for charity, host firm-wide charity events, hold toy and food drives, and sponsor individuals and families, all of which is something very special to me and something I’m proud to be a part of,” Ponder says. The firm also supported the Project SELF Legal Internship Program in 2012 and 2013, hosting a summer internship for a low-to-moderate-income high school junior, giving exposure to the career possibilities of the legal profession. Ponder served as the selected student’s mentor throughout the internship. “From the courtroom to the community, we have real capability and are willing to go the extra mile,” Ponder says. “We enjoy ourselves, but we work hard and are completely serious about providing extraordinary service on every case. We know that we have established lasting relationships with clients and the community built on mutual trust and confidence.” n
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GO THE EXTRA MILE. Each year, a group of dogged adventurers runs from Huntington Beach to San Diego in the So Cal Ragnar Relay. It takes teamwork, endurance, and the will to push yourself when others are falling behind. It’s not unlike the level of commitment that Jeff makes to his clients, working tirelessly to help them find the perfect space to grow their businesses. So whether he’s running the Ragnar or helping companies with their real estate needs, Jeff’s tenacity and persistence make him the kind of person you want on your team. Find out how Jeff and Hughes Marino are going the extra mile for OC business owners with our tenants-only approach to commercial real estate. Call Jeff today at (949) 333-3111.
JEFFREY SHEPARD Principal and Senior Vice President, Hughes Marino, Inc.
Orange County 2 Park Plaza Suite 750 Irvine, CA 92614 tel: (949) 333-3111 www.hughesmarino.com
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Attorney Journal, Orange County, Volume 100