Attorney Journal, Orange County, Volume 106

ORANGE COUNTY

Volume 106, 2015 • $6.95

Staff Infection

Norm Hulcher Low Batting Average?

Or Too Few At-Bats?

Mike O’Horo McIntyre’s Civil Alert

Monty A. McIntyre

Breathing New Life into a Law Firm’s Aging Receivables

Jake Krocheski

Preventing Partnership Implosions Before It’s Too Late

Nancy Byerly Jones Top Competencies a Lawyer Needs to Succeed

Larry Bodine

Law Firm of the Month

Easton & Easton A FAMILY’S FIGHT FOR JUSTICE

Specialization matters.

Having represented more law firms over the last 25 years than any other broker in the region, no one understands their real estate needs better than I do.

— JASON HUGHES President & CEO, Hughes Marino

ORANGE COUNTY CORPORATE REAL ESTATE ADVISORS

At Hughes Marino we only represent tenants and buyers – never landlords – so we never have a conflict of interest.

Our only fiduciary duty is to our client, the tenant, and we are wholly committed to protecting their interests. If you are not happy with your service or results, then we will give you our commission. Guaranteed.

(949) 333-3111 | www.hughesmarino.com

IRVINE CENTURY CITY SAN DIEGO DOWNTOWN LA

2015 EDITION—NO.106

TABLE OF CONTENTS features 6 Breathing New Life into a Law Firm’s Aging Receivables

by Jake

Krocheski

8

8 Staff Infection

Whether Your Legal Secretary is a Marketing Asset or Liability Depends Mostly on You

by Norm Hulcher

10 COMMUNITYnews

12 Preventing Partnership Implosions Before It’s Too Late

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price

by Nancy Byerly Jones

CREATIVE SERVICES Skidmutro Creative Partners

LAW FIRM OF THE MONTH

16 Easton & Easton

CIRCULATION Angela Watson

PHOTOGRAPHY Chris Griffiths

22 Top Competencies a Lawyer Needs to Succeed Today

by Jennifer Hadley

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Jake Krocheski Larry Bodine Norm Hulcher Mike O’Horro Paula Black Nancy Byerly Jones WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us

A Family’s Fight for Justice

16 26 Low Batting Average?

Or Too Few At–Bats?

by Mike

by Larry Bodine

28

O’Horo

28 McIntyre’s Civil Alert

by Monty A. McIntyre

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BREATHING NEW LIFE

INTO A LAW FIRM’S AGING RECEIVABLES

by Jake Krocheski

When it comes to managing their receivables, many firms tend to regard this as an aspect of financial management. It is, after all, about money; you can touch and feel the dollars.

However, receivables management is just as much a function of practice management. It is not just about numbers. Behind most receivables more than 90 days past due is a story about why the account has not been paid—cash flow problems, complicated transactions, and many more. Understand those stories, get to the bottom of them—and you will have a better understanding of how to get paid.

Firms find themselves facing a dilemma. On one hand, they truly want to embrace institutional thinking and run as a business, putting structures and procedures in place and holding people accountable. On the other, they are reluctant to hold the individual attorneys accountable and deprive them of their autonomy because of the different circumstances that may exist that impact payment from clients. The two attitudes create an uneasy balance. It is hard to have clear-cut procedures while poking holes in them with plenty of exceptions. The truth, though, is that your firm must. Everything is not black and white. You need to make it clear to your attorneys and staff—as well as your clients!—what your policies and your expectations are. Yet, there needs to be a fair amount of latitude for decisions based on individual client relationships.

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Attorney Journal Orange County | Volume 106, 2015

It will be important to layer your firm-wide efforts, to take into account both formal collection procedures and practices and the informal, individual efforts that exist in practice to service clients. Mid-year is an appropriate time to focus on these issues, before getting into the mad rush of year’s end.

To ensure that your receivables are not enjoying a ripe old age, take these steps: 1. Step back and start dissecting the older, harder-to-collect backlog of receivables. It may be necessary to dig deep to understand just how old they are. Many firms do not differentiate between receivables that are 90 days past due and those that are much older. Understand the dates on the aging report to discover how old the receivables really are. Look to see if there is any recent billing activity on the account, when the last payment was received and for how much. It is surprising to us how firms continue to do work for clients without considering whether they are paying their bills.

2. When managing the backlog of receivables, look first at your oldest receivables and work your way back to those that are newer. It may seem harder, but it will be productive to spend time first with the oldest receivables, moving forward to determine their collectability.

CLIENT CONNECTION ASSISTS LAW FIRMS OF ALL SIZES

3. Ask all attorneys to review their clients with outstanding balances. Tell them up front that you are looking for the truth from them. The point is for them to take decisive action: make the collection themselves, get help from the firm’s accounts receivable management team or clear the books. The attorneys are in the best position to assess whether a receivable should be kept on the active list or written off. However, they are often reluctant to follow through with the write-off process.

Evaluate each account and determine the likelihood of payment if the firm invests more time and effort to collect.

Don’t kid yourself about the reality of collecting an account.

When a receivable exceeds 180 days past due, there is only a 50% chance that it will be collected, and the likelihood drops off dramatically after that point. There may be a logical reason why it has not been paid. Perhaps the client does not have the ability to pay. Maybe the attorney has worked out an arrangement with the client whereby he can pay after the matter has been completed. Make sure the responsible attorney communicates to the firm what arrangements have been made with each client.

4. Urge firm leadership to be decisive and step in to take action. Management must work through receivable issues and not just accept attorney statements like: “I’m working on it” or “I’m in contact with my client about this.” For firms that are mid-size or larger, if you don’t yet have a committee, give serious thought to forming one. If yours is a smaller firm, this responsibility will rest squarely with firm leadership. Collections typically can’t be handled adequately by one person. Get your arms around the problem by creating—and empowering—a committee.

5. Evaluate the firm’s overall collection efforts. Ask yourselves: Did we do the job right, or did our processes and procedures allow receivables to age far longer than they should have? Review the firm’s policies and procedures concerning receivables that go beyond 90 days. Determine if policies exist only on paper. Implementation is the key.

Do you have the right people in place to move the ball forward, and are they empowered to do so? Many firms review their older receivables with the goal of determining why accounts have not been paid and if they have collection problems. When doing this, they frequently learn they have long had problems, but did not detect them earlier in the aging process.

6. Make the most of your dedicated collections staff, those whose job is to focus exclusively on receivables. Evaluate the ability of your staff to help in accounts receivable management. Ensure they have the skills and talents that can help attorneys reduce the backlog of receivables. Also, measure the staff’s performance to ensure progress is being made and sufficient time is being devoted to working directly with accounts receivable, as opposed to other administrative duties. At the same time, recognize when attorney involvement is essential.

7. Make the decision to write off the account after all efforts have been exhausted. Admittedly, that is far easier said than done. Nevertheless, if efforts have been made to collect that do not bear fruit, accept the fact that there is little chance of getting paid and write it off. If the attorney continues to hold up the write-off process, firm leadership needs to step in and get the account written off.

8. Consider enlisting the services of experts in managing law firm receivables, like Client Connection, to help you tackle difficult receivables In many cases, the more time you take to deal with your receivables, the more they age, and the harder it becomes to collect. Not only can consultants deal with problem situations, but they can help give collection efforts the focus they require, as well as recommendations for preventing these problems from happening again.

Client Connection assists law firms of all sizes throughout the United States by furnishing accounts receivable management services, developing practical receivable programs, training law firm staff in effective accounts receivable management methods and executive placement of professional collections managers. n Jake Krocheski has over 25 years of experience as a management consultant to the legal profession. His expertise is in helping law firms of various sizes and practice areas develop accounts receivable management programs and client intake procedures. Mr. Krocheski has published several articles on accounts receivable management for various law practice management journals, including The American Lawyer, Legal Management and Legal Times. He is based in Washington, D.C. and Dallas, but he travels extensively and welcomes the opportunity to meet with law firms interested in discussing their accounts receivable needs. http://www.clientci.com. Article Source: http://EzineArticles.com/?expert=Jake_Krocheski.

Attorney Journal Orange County | Volume 106, 2015

7

Staff Infection Whether your legal secretary is a marketing asset or liability depends mostly on you

by Norm Hulcher Hulcher & Hays, LLC is a Phoenix-Based Law Firm Marketing Consultant. Please visit www.hulcher.net for more information.

88 Attorney Journal Orange County

“Ken” was having a bad day.

Late and unprepared for a hearing that morning, he’d incurred the wrath of the judge, who took it out on Ken’s client.

Another client, fed up with Ken’s not returning her calls, had just picked up her file en route to an appointment with her new lawyer.

Two-thirds of his accounts receivable were in the 90-day-plus category, one of which had been on the books for so long that he had to do his collecting in probate court.

It had been weeks since he’d received a referral from anyone except sadistic attorneys whose mission statements include: If Someone Comes To Me With No Money, No Case or No Address, I Will Send Him or Her to Ken. His partners had just informed him that he—and he alone—wouldn’t be getting a draw for the next few months.

And now he had to put up with me, my laptop, PowerPoint presentation and laser pointer, enumerating all the uncompleted tasks in his marketing plan.

Staring longingly at the bottle of Cuervo 1800 on his credenza, Ken seemed to long for a Faustian bargain to deliver him from his plight. Finally, he said, “You know, sometimes I think I’m my own worst enemy.”

Clearly, he needed a lift, and I was just the guy to give it to him.

“Ah, come on, Ken, don’t be so hard on yourself. As your enemies go, you’re probably no worse than second worst.”

He brightened. “Really?”

“Absolutely,” I assured him, clapping him on the back and leading him over to his office door, which was slightly ajar. “Your worst enemy is right over there.”

Our heads vertically aligned, we peered through the narrow opening. He gasped.

“No,” he whispered. “You can’t mean Constance.” “Yes, Ken,” I said. “Watch.”

“Constance” was on the phone with a client who was doing most of the talking.

Her patience obviously wearing thin, Constance was performing a seated, demonic pantomime of an angry caller, making flapping jaw gestures with the hand that wasn’t full of Cheetos. Her performance might have inflicted little immediate damage on Ken’s practice, but for the two slack-jawed clients-in-waiting who comprised her audience.

“What in the world is she doing?” Ken whispered.

“She’s working, Ken,” I said. “Haven’t you ever noticed this before? How long has she been with you, anyway?”

“Three years, but I had no idea ... and why didn’t she tell me those clients are here?”

At that moment, the caller must have stopped for a breath, because Constance took charge of the conversation.

“Well, he can’t talk to you right now. He’s working on something. And he has important clients waiting to see him. I don’t know. What’s your number. What? No. I don’t know when he’ll be able to get back to you. (Pause) What? Well, you know, like, that’s your choice and”—the phone rings—“wait, I’m going to put you on hold now.”

Instead of answering the other line, she stood up, hissed something about “these damn people,” and stomped off toward the kitchen.

Ken sprang abruptly from his crouched position, the top of his head opening a large gash in my chin, my upper and lower incisors converging sharply on the tip of my tongue.

While I rifled through his desk drawers, looking for something to staunch the flow of blood and wondering if my tongue had tied its last cherry stem in a knot, he paced frantically around his office.

“This is terrible. What can I do? I can’t fire her—then I’d have to train somebody else, and that might take weeks.”

“Lissem oo me, Kem,” I said, blotting the tears from my eyes, “Laby Macbeff wou’ be be’er ‘an ‘at woma’. You haf oo kalk koo huh.” “’Talk to her?’ Look, you’ve tried to get me to do some crazy things but I am not going to do that. She might quit!”

“Wha’eveh,” I said. “Iss you’ prakiss.”

TEMPTING THE HANDS OF FATE No matter how successful you are in attracting new clients, and no matter how caring and sensitive you are to their needs, if you ignore the role of your secretary or receptionist in client relations, you’re tempting the hand of fate.

Imagine that you’ve been courting a prospective business client for several months. You’ve done everything right: researched the company and its legal needs, taken the CEO to a Diamondbacks game (in San Francisco), written big checks to his favorite charities, changed your political affiliation and church membership so he’d know you’re his kind of people, and helped him clean out his garage.

One morning, all of your schmoozing and bootlicking pays off: The CEO calls.

Unfortunately for you, you never bothered to tell your secretary that you were courting this guy. So instead of interrupting your debate with a well-read clerk over which of Tom Clancy’s books was his best, she takes a message. And then you go to lunch. And then to court. And by the time you get his message and breathlessly return his call, he’s decided to use that other lawyer who did such a nice job waxing Mrs. CEO’s Hummer last weekend.

INVOLVING YOUR SECRETARY In the interest of self-preservation, let me emphasize, con mólto passióne, that this is not an indictment of secretaries and receptionists. Rather, these more-or-less hypothetical anecdotes are offered as a warning to attorneys not to view their secretaries merely as organic extensions of their computer and phone.

Your secretary can almost certainly do more to support your practice than type your documents, take calls, manage your calendar and pick up your dry cleaning. She can be a valuable partner in building your practice, if you’ll just take the time to involve her more in the strategic side of things.

You and your secretary should meet at least once a week to keep each other current on a whole slew of important topics: new clients; important clients; problem clients; important items on your calendar; your work priorities for the week; complaints and compliments from clients; prospective clients and the things you’re doing to attract their business; appropriate thanks to recent referral sources; other client development projects; what she’s doing well, and what she could be doing better; and what you could do to help her be more effective in her work.

THE SECRETARY’S ROLE IN CLIENT DEVELOPMENT Here’s how your secretary can help you in your client development efforts. She should: • Solicit client feedback—Are you happy with our service? Is there anything you’d like us to do differently? Is there some way we could serve you better?—and tell you what she learns... good or bad.

• Thank critical clients for their comments and tell you about them as soon as you have a free moment. She should also feel free to suggest how you might respond.

• Help exceed clients’ expectations by underpromising and overdelivering.

• Always find out who referred clients and remind you to thank your referral sources.

• Familiarize herself with the expertise of other members of your firm and make effective internal referrals if you’re not available to speak with a prospective client whose needs are outside your practice area.

• Be tenacious in reminding you to return phone calls.

• Always sound pleasant on the phone and thank everyone— clients, prospects, adverse parties, opposing counsel, your marketing consultant, you name it—for calling.

• Be prepared to describe your practice to others—accurately, thoroughly, and positively.

• Be able to describe to others all of your firm’s major services.

BEWARE OF EXCESSIVE CANDOR In your supervisory role, keep a sharp ear for indelicate candor, such as: • “He hasn’t come in yet today.”

• “He’s late.”

• “Are you kidding? It’s only 9:30.”

• “He’s still at lunch.”

• “He doesn’t want to talk to you.”

• “He’s reading the newspaper.”

• “He’s in the bathroom.”

• “He’s asleep.”

• “This is his golf day. You must be new.”

• “He’s getting his massage.”

• “He’s practicing his putting.”

• “He’s fighting with his wife.”

Obviously, discretion isn’t the only trait of a good secretary or receptionist. She should also exhibit: • Sensitivity to the emotional conditions of clients; • Cheerfulness and warmth in greeting clients; • The ability to ask clients to fill out an intake form without making them think they’re at a doctor’s office; • The ability to take accurate, complete phone messages that convey the caller’s sense of urgency; • Restraint in badmouthing you or your clients in the presence of clients (or, for that matter, anyone else); • The right balance of familiarity with, and professional distance from, your clients; and • Professional manner and appearance.

SUPERVISING MADE EASY Your ability to assess your secretary’s work habits and your willingness to appropriately praise and reprimand her are two of the cornerstones of being a good supervisor. More important, though, is allowing your secretary and other support staff to be a functioning and contributing part of your practice and the process by which you hope to develop it.

An axiom of leadership is, “People tend to support that which they helped create.” Give your staff creative input into your practice, and the resulting support they give you just might make growing your practice—and managing them—more productive and enjoyable. n Attorney Journal Orange County | Volume 106, 2015

9

COMMUNITY news nFisher & Phillips LLP announced that the law firm has been named 2015 “Law Firm of the Year” for Labor & Employment Litigation by U.S. News—Best Lawyers. The firm also received “First-Tier Rankings” for its Employment and Labor Law practices. Additionally, 21 of the firm’s offices received “Metropolitan JIM MCDONALD Tier 1 Rankings” for Employment Law, Labor Law, Employee Benefits and/or Labor and Employment Litigation. In addition to the Irvine office, they are: Atlanta, Boston, Charlotte, Cleveland, Columbia, Dallas, Denver, Fort Lauderdale, Kansas City, Las Vegas, Louisville, Memphis, New Jersey, New Orleans, Orlando, Portland, ME, Portland, OR, San Diego, San Francisco, and Tampa.

Fisher & Phillips is dedicated solely to representing employers in labor and employment matters with 300 attorneys in 31 offices. Firms included in the 2015 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a “FirstTier” ranking signifies a quality law practice and breadth of legal experience and knowledge. nIn partnership with the Pacific South Coast Chapter of the National MS Society, premier intellectual property law firm Fish & Tsang LLP announced a new role as title sponsor for Walk MS Orange County FISH & TSANG LLP 2015, to be held at UC Irvine in April. Each year, Walk MS Orange County hosts nearly 5,000 participants and volunteers—mobilized to raise critical funds and awareness for multiple sclerosis, an unpredictable, often disabling disease of the central nervous system that interrupts the flow of information within the brain, and between the brain and body.

F&T’s involvement with the nonprofit marks the first time an Orange County-based business has held the title sponsorship of an event that’s been part of the Orange County philanthropic landscape for more than 50 years.

“As an IP firm, everyone at Fish & Tsang deeply values science, which is often at the core of the groundbreaking work undertaken by our clients,” said F&T Founding Partner Robert (Bob) D. Fish. “When presented with the opportunity to help support scientific discoveries being made to find a cure for a devastating disease like MS, we jumped at it passionately and hope to help move a step closer to a world free of MS.”

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Attorney Journal Orange County | Volume 106, 2015

nArcher Norris welcomes Matthew Eschenburg and William Tran as special counsel in our Newport Beach office. Eschenburg joins the firm’s business, litigation, product liability and real estate practice groups, while Tran focuses on financial services, intellectual property, litigation and real estate.

Eschenburg manages and litigates MATTHEW ESCHENBURG all aspects of complex litigation with a focus on construction claims, including strong experience handling cases in construction defect and premise liability. In addition to his construction defect practice, Eschenburg lends his legal talents to several other areas of the law. He works on vehicular accident cases, and deals with complex product liability cases involving product manufacturers, WILLIAM TRAN suppliers and sellers. Eschenburg also handles cases involving premises owners in general liability, wrongful death and catastrophic injury and employment cases, as well as general business and real estate litigation.

William Tran has more than 14 years of civil litigation and trial experience. He specializes in complex commercial disputes, consumer class actions, intellectual property disputes, partnership disputes and corporate control issues. Tran litigates a wide variety of complex business claims, particularly claims for breach of contract, unfair competition and false advertising, merger and acquisitions disputes, misappropriation of trade secrets, fraud, lender liability, breach of fiduciary duty, and other business torts. nThree Minyard Morris attorneys were selected by their peers for inclusion in The Best Lawyers in America®, the oldest and most respected peer-review publication in the legal profession.

Michael A. Morris, Lonnie K. Seide, and Mark E. Minyard were included in the 21st edition of The Best Lawyers in America. The firm limits its practice to Family Law.

MICHAEL A. MORRIS

LONNIE K. SEIDE

MARK E. MINYARD

COMMUNITY news nSmiley Wang-Ekvall has announced that two of the firm’s partners, Evan D. Smiley and Philip E. Strok, have been named to the 2015 edition of Best Lawyers in America©(Copyright 2015 by Woodward/White, Inc., of Aiken, S.C.). As the oldest and most respected peer-review publication in the legal profession, the Best Lawyers in America list is widely regarded by EVAN D. SMILEY both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers. Since 2010, Smiley and Strok have both received the designation of being selected to be a part of the Best Lawyers in America—Bankruptcy and CreditorDebtor Rights/Insolvency and Reorganization Law practice area.

“The Best Lawyers in America list is a reliable and reputable resource that PHILIP E. STROK indicates to clients and fellow legal peers that named attorneys possess the highest ideals in skills, integrity and qualifications for the particular practice area,” said Lei Lei Wang Ekvall, partner of Smiley Wang-Ekvall, LLP. “We are especially proud that fellow partners Evan D. Smiley and Philip E. Strok were selected to be a part of this distinguished list.”

The Orange County Bar Association has named Berger Kahn Principal Lance LaBelle to Alternative Dispute Resolution Section Chair for 2015.

Principal Lance LaBelle will become Section Chair for the Orange County Bar Association Alternative Dispute Resolution Section for 2015. A forum for the exchange of ideas, examination of trends in the LANCE LABELLE field, and professional development of members interested in alternative dispute resolution, the section will explore numerous ADR topics throughout the year under the leadership of Berger Kahn Principal Lance LaBelle.

nKeller Rackauckas LLP, has been selected to the U.S. News—Best Lawyers®’ 2015 “Best Law Firms” list.

Keller Rackauckas LLP received a “Tier 1 Ranking” which, according to U.S. News—Best Lawyers®®, “reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their JENNIFER KELLER abilities, their professionalism and their integrity.” The Tier 1 Ranking is an honor generally reserved for much larger law firms, which is a testament to Keller Rackauckas LLP’s performance and reputation.

Keller Rackauckas LLP’s lawyers are recognized by their peers as the best of the best. The U.S. News—Best Lawyers®’ award is one of many received by Keller KAY RACKAUCKAS Rackauckas LLP in 2014. Other awards this year for the firm or its attorneys have included: the Los Angeles and San Francisco Daily Journal’s “Top 100 Lawyers in California,” “Top Boutique Firms” and “Top Women Lawyers” lists; Best Law Firms® “Top Orange County Lawyer honor for Non-White Collar Criminal Defense”; “Top 50 Orange County Super Lawyers”; Lawdragon 500 list of top national attorneys; the Litigation Counsel of America; the National Trial Lawyers Top 100 Trial Lawyers; and the Multi-Million Dollar Advocates Forum.

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

Email it to PR@AttorneyJournal.us

Attorney Journal Orange County | Volume 106, 2015

11

PREVENTING

PARTNERSHIP IMPLOSIONS BEFORE IT’S TOO LATE

by Nancy Byerly Jones

TO OUTSIDERS, LAW FIRM PARTNERSHIPS MAY APPEAR SUCCESSFUL AND WELL-RUN BY A UNITED LEADERSHIP TEAM. INSIDE, HOWEVER, THE TRUE STORY COULD BE WORLDS APART FROM PERCEPTIONS. All too often, we hear about law firms in the midst of highly emotional, extremely costly disputes or dissolutions. Many implode despite the partners’ prior individual and joint successes, their shared professional bonds or many years of working together.

These conflicts can be over many little things that have built up over time or abrupt implosions due to newly discovered deceits and other harmful behaviors. Firm leaders are often unsure as to how to deal with the crisis and until they determine the best course of action, valuable time is lost and damages continue accruing.

We must never underestimate the extensive harm done by substance addiction, greed, desperation and deceit. Nor should we discount the damaging fallout (to all employees) within a law office due to longstanding, unresolved disputes between partners. Challenging economic times can make these destructive scenarios more likely and more costly.

Below are a few “starter” tips (far from all-inclusive) to consider when partner disputes arise. They may not always help prevent the ultimate dissolution of a firm. They have proven, 12

Attorney Journal Orange County | Volume 106, 2015

however, to help sparring parties avoid destructive fallout and to move more quickly and productively toward resolution.

1. If you have an “issue” or disagreement with a partner, don’t bury your head in the sand or otherwise procrastinate. Talk things over sooner rather than later. Squarely face the conflict and real issues at hand. Keep civil, respectful discussions moving forward for as long as it takes to find a fair resolution, to find better and productive ways to communicate and to salvage relationships worth holding on to.

2. Search for and find the real facts. Not doing so means you may be unknowingly (or in some cases very knowingly!) relying upon malicious gossip, incorrect and/or possibly intentionally false information.

3. When discussing the disputed issues, ensure your imaginary “thick skin” is on at all times so as to maximize continuing progress towards resolution and to minimize any emotional meltdowns (including the spewing of words you may later regret and can never retrieve once they have parted from your mouth).

4. Give any and all discussions your undivided attention: no multitasking, displays of impatience (including negative

body language!) or any other actions that indicate you have more important priorities than the discussions at hand. Be a consistently active listener. Be willing and open to hear and try to understand the other side’s perspective. Commit to keeping an open mind and acting with class and respectfulness toward all. This commitment must be ongoing and steadfast as everyone works his/her way through the painful, unpleasant and sensitive issues that need to be addressed and resolved.

5. If you feel you lack the emotional stability and/ or necessary communication skills to work patiently and steadfastly toward resolution, hire a third party neutral such as a mediator. A retired judge may also be willing to help guide leadership through the labyrinth of emotions and decisionmaking via an ombudsman-type role. The bottom line is that the right facilitator can help you navigate the waters of awkwardness, miscommunications, false impressions, the pain of conflict and/or the points of strong disagreement.

6. Bring in other facilitators or experts to assist with the process when their expertise would be helpful to the process (e.g., accountants, human resource managers, communication coaches).

7. Understand that if you do choose to handle conflicts disrespectfully, hastily or harshly there will no doubt be more harm done along with long-term negative consequences—

many of which you may never have anticipated and will live to regret.

Through my years as an attorney, mediator and law office management consultant, I have seen firsthand what runaway greed, deceit and unresolved conflicts can do to a law firm.

It’s never pretty, always costly and there are truly no winners.

We can, however, minimize the risks of costly litigation and the tragic repercussions of destroyed partnerships, friendships and long-term professional relationships. We can do so by addressing our conflicts—whether big or small—wisely, timely, resourcefully, honestly, calmly and respectfully. This is easier said than done, but so worth our time and efforts for all concerned—not to mention the clients we serve. n

Nancy Byerly Jones is enthusiastically and tirelessly dedicated to helping her clients build business success stories that last... and as a family law and workplace mediator, she is a passionate advocate for helping keep folks out of the courtroom and moving positively forward with their lives.

Please visit her website (http://LawBusinessTips.com), on Twitter (http://Twitter.com/lawbusinesstips) or on LinkedIn (http:// www.linkedin.com/in/nbjones).

If you have any questions for Nancy, she’d enjoy hearing from you by email too: nbj@nbjconsulting.com

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15

A Family’s

Fight for Justice LAW FIRM

OF THE MONTH

2015 2014

Easton & Easton, LLP has made the pursuit of justice for victims of serious personal injury and wrongful death a family affair.

by Jennifer Hadley

W

hen Doug Easton—patriarch of the Easton family and founder of Costa Mesa-based Easton & Easton, LLP (formerly the Law Offices of W. Douglas Easton)—was just 10 years old, he discovered he wanted to become an attorney. “My teacher was trying to teach civics to the class by holding mock trials whenever a student was alleged to have violated school rules. Students were appointed as prosecutor and defender, other students were empaneled as jurors, while those who observed the infraction were witnesses.

I was chosen to defend a boy caught running in the halls,” he recalls with a smile.

Doug won that first case by convincing the jury that the student’s urgent need to use the restroom was of sufficient gravity to justify flouting school rules. “I didn’t know then that the legal rationale for my defense was the hoary common law principle of necessitas non habet legem—necessity has no law,” he laughs. His teacher took note, however, praising Doug and encouraging him to become an attorney. Doug liked that idea.

Today, more than 60 years later, Doug is proud that the idea stuck and has allowed him to build a very successful personal injury practice with his sons. “We are a family of attorneys specializing in personal injury litigation. After years of dedicating

16 Attorney Journal Orange County | Volume 106, 2015

our lives to helping those who have suffered serious injury or the wrongful death of a loved one due to the negligence of another, we’ve become particularly skilled in our area of practice. It is our closeness and great working relationship that allows us to synergize our efforts into something profound for our clients.

As a family of lawyers, we go to lunch together almost every day and see each other most weekends, and we are constantly discussing all of our cases with one another to consider new ideas and strategies that will help the interests of our clients,” he says.

This family synergy seems to be one of the keys to their success.

The Family Tree’s Roots in Law It’s worth noting that, although Doug Easton became interested in the law as a young boy, he didn’t necessarily take a direct route to that career path. “While I wanted to be an attorney at a young age, I didn’t develop the study habits in high school necessary to become such. I lacked maturity and preferred partying with my friends to studying during my first year in college,” he says candidly.

After his second semester, Doug realized that he needed to do a bit of growing up before focusing his efforts on his education.

He found the perfect opportunity to do precisely that by

Š christopher TODD studios

Easton & Easton Partners: Brian W. Easton, W. Douglas Easton and Matthew D. Easton

© christopher TODD studios

time the firm dissolved in 1991, Doug had a case load that was exclusively plaintiff’s personal injury cases. Moreover, he and Rae had added two more children to the mix, and almost all 7 children were taking a greater interest in their father’s line of work as he transitioned into starting his own firm.

Planting New Seeds of Advocacy

Managing Partner: W. Douglas Easton

serving a mission for his church. He soon set off to Finland for 2.5 years as a Mormon missionary. Forced to study and learn Finnish (one of the world’s hardest languages) on his own in Finland, Doug’s study habits improved exponentially, and by the time he had completed his mission, he was ready to hit the books. He did so with such vigor and success that he was ultimately accepted to law school at Boalt Hall (UC Berkley), considered one of the nation’s top 5 law schools at the time.

Upon graduation, Doug initially went to work for an insurance defense firm, which represented multiple large insurance companies. He cut his teeth by learning the personal injury side of law from a defense perspective. On occasion, however, he was able to take on a plaintiff’s claim, provided it posed no conflict with his firm’s insurance company clients.

It was then that Doug first recognized what guided the future of his practice: “There was a lot more soul satisfaction in using my skills to obtain fair compensation for a needy, deserving injured person, than there was in using those same skills to save money for an insurance company. While it is always satisfying to represent your client well—even an insurance company— there is a quantum difference of satisfaction in successfully representing an injured person for whom the recovery will affect their life in a very beneficial way.”

After a few years, Doug—who was raising 5 children with his wife Rae—decided to move to a business litigation firm.

In addition to trying numerous business litigation cases, Doug also represented all of the firm’s personal injury clients. By the

18 Attorney Journal Orange County | Volume 106, 2015

Brian Easton, Doug’s oldest son, spent much of his childhood skiing, snowboarding and riding mountain bikes. While he may have had big dreams of becoming a professional athlete, those were not the genes with which he was blessed. But he was a great student. As he finished college, he found himself turning to his father for career advice. By this point, Doug had already established the Law Offices of W. Douglas Easton and was enjoying success in the exclusive representation of the seriously injured. Consequently, he advised Brian to take the L-SAT and go to law school. “He said that I couldn’t go wrong being an attorney, and that it had worked out wonderfully for him, so I followed his advice,” Brian remembers.

Upon passing the Bar, Brian interviewed with several large firms, before ultimately deciding that he wanted to work with his father. In 1996, he became the second Easton in the family firm after graduating law school cum laude. He quickly became an integral part of the firm, using his charm and affability to resolve difficult cases, and was made partner in 2004.

Meanwhile, Matthew Easton was also growing up and beginning to think about his own future. “I asked for a briefcase like my father’s when I was 4 years old. I’m told that one day I put on my church suit, filled my briefcase with crayons and coloring books, and told the family I was going to work with dad. Being the kind of dad that he is, he actually took me to work and I sat across from him at his desk all day doing my ‘work’—coloring.”

From there Matt’s passion for the work he saw his father doing only grew. “I loved public speaking, debating, and formal writing. My family told me that I really just enjoyed arguing my point of view any chance I got,” he says with a chuckle. By the time he was in high school he was spending his summers working at the firm. “I wanted to be as prepared as possible to join the firm once I graduated from law school. There was never another path that I wanted to follow.”

In 2009, Matt joined the firm after maintaining a full academic scholarship throughout all 3 years of law school, making Law Review, Moot Court, and Trial Advocacy Honors Boards, and graduating magna cum laude. The years of preparation for this career path before and during law school allowed him to truly hit the ground running. Since his arrival at the firm, Matt has helped the firm transition to using advanced litigation technologies in their trial practice to great success.

Due to the skill and experience he has developed in this field,

he will be teaching a Litigation and Trial Technology class as an Adjunct Professor at Whittier Law School beginning January 2015, just one year after making partner at Easton & Easton.

Over time, other Easton family members would also join the family business. Doug’s son John worked for the firm for a few years, before relocating to Utah where he now owns one of the premier criminal defense practices in his area. The family matriarch, Rae Easton, serves as the firm’s office manager and accountant. “She really runs the place,” Doug quips. Dee Jones and Kristy Wieser, Doug and Rae’s two daughters, work as a paralegal and executive secretary, respectively. And most recently, their youngest son, Travis Easton, joined the firm upon passing the California Bar in November of 2014.

A Flourishing Family Firm The firm now operates from gorgeous offices with stunning views on the 18th floor of the prestigious Center Tower next to South Coast Plaza, but it continues to maintain the same business philosophies and principles that Doug has adhered to for many decades. “I became a member of the Bar at a time when the rules of professional conduct forbade most forms of attorney advertising,” Doug explains. Consequently, the firm was built based on wordof-mouth referral business, primarily from past clients.

“My father developed a philosophy that if he simply achieved great results for clients in each case—no matter how big, or small, or prestigious the case might be—it would lead to a

happy client and a strong potential referral source. In short, do good and good will happen,” Brian says.

This philosophy has been passed down to the younger generation of Easton attorneys, and the results have been extraordinary to say the least. “We’ve found it a great testament to our skill, expertise and results that the vast majority of our new cases come to us from happy, grateful, well-served past clients recommending us to their friends and loved ones.

However, a similarly high testament to our services has come from past defense attorneys who we have worked against,” Matt notes.

On this point Brian adds, “One of the most surprising and greatest votes of confidence we regularly receive comes from defense attorneys we have faced over the years who thereafter refer their friends and family to us for plaintiff’s representation.

Most of these defense attorneys cannot accept a referral fee because of the potential conflict of interest it could create.

They have no personal interest in the referral of our firm.

They also have the unique position of having witnessed firsthand the skills, expertise, and ethics of hundreds of plaintiff’s trial attorneys over the years. We are honored that so many of these defense attorneys refer their loved ones, friends and staff to our firm for representation. We have even been honored over the years to represent several defense trial attorneys who have been injured by another’s negligence.”

Indeed, the firm has a very specialized field of practice, but those who come to Easton & Easton and consequently refer yet others to the family of attorneys, come from all walks of

The Entire Easton Family Doug and Rae with all 7 children and their spouses, and all 16 grandchildren.

life. “Our typical client is seriously injured or suffering the loss of a loved one. This is the unifying factor of our clients.

They are businessmen, homemakers, doctors, attorneys, college professors, school teachers, athletes, actors, children, students, mothers, fathers, poor, wealthy, young and old alike,” says Matt. “It doesn’t matter where they come from or what their history entails. They are suffering some kind of serious loss at the hand of another’s negligence and wrongdoing, and we are needed to right this wrong. We are there to ensure that they receive just compensation from an insurance carrier that has trained its staff solely for the purpose of preventing just compensation,” he adds.

Doug continues, “We believe every case can be unique, important and special at its heart, regardless of whether the case is a tragic wrongful death, a painful trip and fall, or a typical rear-end auto accident. If we agree to represent a client, then we believe they have suffered some kind of significant loss in their life, and it is our job and duty to convey the magnitude and importance of that loss to the jury, defense attorney, and/or insurance career.”

Recent victories Easton & Easton has obtained for its clients include a $2.75 million settlement in the case of Schenk v. Joe’s Street Sweeping. In this case, Easton & Easton represented two 80-year-old parents for the wrongful death of their 55-yearold son, who was killed by a negligently driven street sweeper.

“When we took this case we reviewed many verdicts and settlements throughout Southern California and were hardpressed to find any for 80-year-old parents to a child of such advanced age, with no loss of income or other economic or punitive damage to speak of, in excess of $1 million. Most were well below that mark. Had we accepted the rubrics and methodologies that insurance companies would apply to this case, then the case would likely have concluded somewhere in that range. But as we investigated the story of the decedent and his parents, and more particularly the unique bond of these parents with their son, we came to believe that the true value of this case was much, much greater,” Matt says.

After conveying to the defendant’s insurance carrier the unique circumstances that the Easton’s believed would yield a significant verdict from a sympathetic jury, mediation was sought early in the litigation. With a final settlement of $2.75 million, Doug, Brian and Matt Easton all received city commendations from the City of Lancaster for their work in the case and the remarkable result.

Nurturing the Next Generation of Easton Attorneys With a firm resume that includes consecutive Super Lawyers awards for Doug and Super Lawyers Rising Stars for Matt; repeat selection to U.S. News’ Best Law Firms in Southern California each year; listings in National Trial Lawyers Top 100 in California for Doug and Brian, and National Trial 20 Attorney Journal Orange County | Volume 106, 2015

Lawyers Top 40 Under 40 for Matt; and inclusion amongst Best Lawyers in America, the Los Angeles Times Magazine’s Southern California’s Best Lawyers, and an AV Preeminent rating for more than 30 years for Doug; what else do Doug, Brian, and Matt have to accomplish?

A lot, as it turns out. “We are adding a new attorney in Travis, so we will be able to take on more cases in the coming years. For several years now we have been operating at max capacity—handling all of the cases that we can handle without compromising the work provided to our clients. While there are lots of plaintiff’s firms that expand their business by hiring multiple paralegals and auxiliary staff to handle the bulk of the work for the attorneys, that is not where we are headed. We achieve better results for our clients because an attorney intimately handles every single case. There are no rubber stamp signatures in our office, symbolic or otherwise,” says Doug emphatically. This is a point that has always been important to him throughout his career and has been instilled in his children as well.

Make no mistake though, Doug Easton has no plans to retire, even though he briefly considered it some years before.

But after Brian and Matt joined the firm, he wondered, “What would I ever retire to do? I see my family every day at work, where we toil in a righteous cause and love what we do.

It’s a pretty good life.” He continues, “There is no way to plan for the way we have been blessed. Even if one starts their own successful firm, they can never plan to be able to employ their children, and there is no way to know their children will want to practice law. I’m blessed that my sons and daughters want to work with me, and I’ll be able to pass on the legacy of years of work to my children that I love.”

As a matter of fact, for this tight-knit family of advocates, the fact that they work together is one of life’s greatest gifts.

Doug says sincerely, “While running a law firm brings plenty of challenges, nothing about working with family has been challenging. I go to lunch with my sons every day. The children still come to dinner every other Sunday with their children. We spend a lot of time together and continue to enjoy each other’s company every day. This is a boon for our clients, as it allows us to enjoy working closely together and constantly helping and supporting one another in order to achieve the best results possible for our clients.” As usual, Brian, Matt, and Travis all agree with their father—a family of lawyers in perfect harmony. n Contact: Easton & Easton, LLP www.eastonlawoffices.com info@eastonlawfirm.com 714-850-4590 650 Town Center Drive Suite 1850 Costa Mesa, CA 92626

© christopher TODD studios

© christopher TODD studios

© christopher TODD studios

EXPERIENCE W. DOUGLAS EASTON

» EDUCATION & EMPLOYMENT BACKGROUND

• Brigham Young University — BA – cum laude (1967) • UC Berkeley Law (Boalt Hall) — JD (1970) • California Bar Admittance (January 1971) • Partner at Wise, Kilpatrick & Clayton • Partner at Drummy, Garrett, King & Harrison • Founded the Law Offices of W. Douglas Easton (1991) • Managing Partner of Easton & Easton, LLP (2014 – Present)

» HONORS • U.S. News’ Best Law Firms in Southern California — Easton & Easton, LLP (2014 – Present) • Best Lawyers in America (2007 – Present) • Southern California’s Best Lawyers — Los Angeles Times Magazine (2007 – Present) • Super Lawyers — Southern California (2009 – Present) • National Trial Lawyers Top 100 in California (2012 – Present) • Martindale-Hubbell’s Highest “AV” Preeminent Rating (30 Years) • City Commendation for $2.75 Million Settlement — City of Lancaster (2013) • “Professional of the Year” in Medical Malpractice — Straithmore’s Who’s Who (2008) • Served as Orange County Superior Court Temporary Judge • Served as Arbitrator and Settlement Judge for Orange County Superior Courts • Consumer Attorneys Association of Los Angeles • Consumer Attorneys of California • Public Justice Association • American Association for Justice • Orange County Trial Lawyers Association • J. Reuben Clark Law Society

MATTHEW D. EASTON

» EDUCATION & EMPLOYMENT BACKGROUND

BRIAN W. EASTON

» EDUCATION & EMPLOYMENT BACKGROUND

• Brigham Young University — BA (2006) • Whittier Law School — JD – magna cum laude – Top 10% (2009) • California Bar Admittance (December 2009) • Attorney at Law Offices of W. Douglas Easton (2009 – 2013) • Partner at Easton & Easton, LLP (2014 – Present) • Adjunct Professor at Whittier Law School — Trial Technology & Advocacy (Winter 2015 – Present)

» HONORS • U.S. News’ Best Law Firms in Southern California — Easton & Easton, LLP (2014 – Present) • National Trial Lawyers Top 40 Under 40 in California (2014 – Present) • Super Lawyers Rising Stars — Southern California (2014 – Present) • City Commendation for $2.75 Million Settlement — City of Lancaster (2013) • Best Oral Advocate — Susan E. McGuigan Oral Advocacy Competition (2007) • Chief Justice – Moot Court Honors Board — Whittier Law School (2008 – 2009) • Law Review — Whittier Law School (2007 – 2009) • Trial Advocacy Honors Board — Whittier Law School (2008 – 2009) • Consumer Attorneys Association of Los Angeles • American Association for Justice • Orange County Trial Lawyers Association (2013 – Present) • J. Reuben Clark Law Society

• Brigham Young University — BA – magna cum laude (1992) • Brigham Young University Law School — JD – cum laude (1995) • California Bar Admittance (December 1995) • Attorney at Law Offices of W. Douglas Easton (1995 – 2013) • Partner at Easton & Easton, LLP (2014 – Present)

» HONORS • U.S. News’ Best Law Firms in Southern California — Easton & Easton, LLP (2014 – Present) • National Trial Lawyers Top 100 in California (2012 – Present) • City Commendation for $2.75 Million Settlement — City of Lancaster (2013) • Moot Court Honors Board — Brigham Young University Law School (1994 – 1995) • Consumer Attorneys Association of Los Angeles • Orange County Bar Association Society of Fellows • Orange County Bar Association • American Bar Association • Orange County Trial Lawyers Association • J. Reuben Clark Law Society

» PUBLICATIONS • Crisis Intervention for Legal Counselors — Journal of Dispute Resolution — Brigham Young University (1996)

» PUBLICATIONS • Disparate Outcomes Among Medical Malpractice Victims: A New Look at an Equal Protection Challenge to MICRA — Whittier Law Review — Volume 30, Number 1 (Fall 2008)

Attorney Journal Orange County | Volume 106, 2015

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THE TOP 3 COMPETENCIES OR STRATEGIES FOR A LAWYER TO SUCCEED TODAY ARE THE ABILITY TO GENERATE NEW BUSINESS, TO LEARN THE BUSINESS OF THEIR CLIENTS, AND NETWORKING.

The first is an ability to generate new business. A partner in a law firm is not only someone who knows the law and can do the work for clients, but is also an entrepreneur who has to generate enough work for himself or herself as well as all the associates. Just like any entrepreneur, you need to build a business around yourself. It’s a critical element, today more than ever, that you not only be able to do good work but also generate new business, so that you have work for yourself as well as all of the people you work with.

A second skill lawyers need to cultivate is to learn the business of their clients. This means going beyond the legal affairs of the client and actually getting to know the client on an extra-legal level on which you are really asking of the client: • How does your business make money?

• What are your most profitable lines of services and products?

• What about your competitors? How are they threatening your client right now?

Top Competencies a Lawyer Needs to Succeed Today

by Larry Bodine, Esq Larry Bodine, Esq., is the Editor in Chief of Lawyers. com, the top online destination for finding a lawyer and the latest legal news for consumers. He has 11 years of experience as business development trainer who helped more than 250 law firms generate revenue and get new business. A former litigator, Mr. Bodine has operated 4 websites, and currently updates three blogs every day.

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Attorney Journal Orange County | Volume 106, 2015

You want to start a business conversation with your clients. That’s how you get a client for life.

The third ability would be networking. It is more than just going into a room full of people that you don’t know and passing out a bunch of business cards.

It’s more a relationship-building skill where you can walk into a room of people and, hopefully, you have done some homework, and you already know some of them. It’s not walking up to people and telling them “I do this and I have these great credentials.” Instead, you approach them and ask questions, such as, “Tell me about yourself.” It goes right back to Dale Carnegie, who said that a person’s favorite topic is themselves, so why not bring that up in conversation?

MOST COMMON BUSINESS DEVELOPMENT PROBLEMS The three most common reasons people call me are: • “Our firm just lost a major client.”

• “All of our senior rainmakers are in their 70s.”

• “None of the junior partners have ever originated a file.”

They’ve discovered late in the game that they should have been working on business development all along, during the fat years and when there was plenty of work to go around. Now that the lean years are either upon them or threatening them, they call and say, “What should we do? Should we buy what?”

My response is, “No. I would recommend instead that you need business development training. You need to have someone spend a day with the attorneys away from the office, away from the telephones and interruptions, and basically spell out the different business development techniques.”

The good news is that business development is a learnable set of skills. I started out as one of the most introverted, shy, tubby little boys that you could ever possibly imagine. Today, I’ve gotten to the point where I just love going out on a sales call. When I was a kid, if you told me that I would turn out this way, I would have been astounded. The point is that business

development can be learned, although it needs to be taught.

Anybody who is smart enough to get through the bar exam and survive in a law firm has all the mental ability that is required to grasp a learnable set of skills.

The key part is to have a training session. In the training session, you spell out the techniques, so that not only do the attorneys understand what to do, they know how to do it, because I find that in most law firms business development gets hung up on tactics. The lawyers want to know: What do I say?

How do I make them like me? What do I do when I’m at a trade association meeting? If you can explain all those steps, then all of a sudden, business development becomes a lot easier.

PERSONAL BUSINESS DEVELOPMENT PLAN Part two is the attorneys need to sit down and write a personal business development plan. It needs to be written down, just as you would write an entry in your calendar or it won’t get done.

If you don’t write something down, you’re just not going to do it. It’s not real until you write it down.

Focus on things in the following order.

Focus first on your current clients. That’s the low hanging fruit. These are people who like and trust you and are sending you checks. And you just need to see if you can serve them and help them in additional ways.

Focus on referral sources. These are people who are just as good as clients; they love you, they trust you, they send you business. The only thing missing is they don’t send you a check, but otherwise, they are just as good as a client.

Find an organization in which to become active. The point is to join an organization of clients, and not just to be a mere member of the organization. You don’t want to be a face in the crowd. You want to be on the board of directors; you want to be the program director; you want to be the newsletter editor; you want to have some position that’s visible so that you will become known to everyone in the organization.

NO COLD CALLS You need to generate some new business and you need some education on what the techniques are; it then becomes so much less scary. You don’t need to make any cold calls; you don’t need to put yourself in any uncomfortable situations. I hate cold calls. My first job was selling encyclopedias and it was all cold calls. I just loathed the job and I remember swearing to myself, “I’m going to find a way to make a living that does not involve cold calls.” The wonderful thing about business development is, as was mentioned earlier, it’s all about building relationships.

Start with the people that you already know. You probably have a huge network and you’ll never have to make a cold call.

You just need to see the menu of techniques you can choose from, so you can pick the ones you like. But then you’ve got to write down your plans and there’s got to be a date attached to each activity. Then when you actually start, it’s like the

Nike slogan: “just do it.” And then when you do it, amazingly enough, new business comes in.

ASKING QUESTIONS, NOT SELF PROMOTION One lawyer asked me, “I realize that the reason I haven’t gotten enough clients is that I am afraid of promoting myself. There is a conflict going on inside of me. Promoting me feels like I’m not being authentic and true to the profession and myself. I am trying to portray an extremely valuable service and yet my feelings tell me I am not valuing myself highly and to believe my own words when trying to get clients. How do you deal with fear of self-promotion?”

Let me make clear that good business development is not self-promotion. In fact, what you should not do is go out and hype yourself or brag or really push yourself on or take advantage of people. That’s not how you generate new business.

Think of the last time you went to buy a new car and one of the salespeople came over and started selling you and pushing something on you and asking you how big a monthly payment you could afford. That was totally repellent. I would encourage you not to promote yourself. That’s going to drive people away.

You’re right; it doesn’t serve the profession.

Rather, the attitude that I would recommend you adopt is: you want to get to know people, get to know your clients and potential clients, and ask them what is going on in their business.

You want to start a business conversation. You want to find out, “Where are they making their money? What do they like about their business? Do they have any new products coming out?”

Get executives to talk about their business and then along the way, probe for what we in sales call “pain.” You want to probe for business issues that they’re facing . . . problems they need to overcome, editors that are nipping at their heels. The old saying is “what keeps them up at night.” You’re not pushing anything.

You’re asking questions. You want to draw out of them what their business pain is. Find out what their business problems are and then all you need to do is listen for an opportunity to say, “I can help you with that.” And that’s how you open a file.

You really have to remember that legal services are not sold.

Nobody is ever really able to sell legal services. Legal services are bought; they are bought by business people and individuals who have a problem that they needed to have fixed, and they found a lawyer to do that for them.

What you want to do is put yourself in a position where you’re constantly inquiring and looking for that person who has a need. The only way that you can find out about that need is to ask questions. It may turn out they have no needs. In any event, you’ve accomplished something by developing a new relationship or deepening one that already exists; and at the very best, you found out that they really have something that’s troubling them and you can help them. I think that’s the highest calling of this profession. n Attorney Journal Orange County | Volume 106, 2015

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Major League Baseball’s post-season is a good prompt to take another look at your business development with an eye to making sure your efforts and investments are directed to solving the right problem. There are only two core causes of disappointing results: 1 Too few hits (low batting average) 2 Too few at-bats

Which of these constrains your practice growth more?

Low Batting Average?

Or Too Few At-Bats?

by Mike O’Horo Mike O’Horo is a serial innovator in the law business. His current venture, RainmakerVT, is the world’s first just-in-time interactive virtual rainmaking training that not only teaches lawyers how to earn high-value clients, but also enables them to gain far more practical experience in the virtual world than is available to them in the real world.

For 20 years, Mike has been known by lawyers everywhere as The Coach. He trained more than 7,000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@ rainmakervt.com

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Attorney Journal Orange County | Volume 106, 2015

Too few hits: If you meet with a lot of prospective clients, i.e., go on a lot of sales calls, and don’t have the results you want, you have a low batting average, i.e., you’re converting too low a percentage of these opportunities into paying clients. That’s the product of hearing “no” too often or not getting a decision at all. I’ll bet that it’s more of the latter. This means that you have a sales problem (vs. a marketing problem). The good news is that a sales problem is faster and simpler to solve.

Too many of the meetings lawyers go to are with people who are not legitimate prospects because 1 There’s no business problem or issue driving the conversation;

you’re just there to pitch your wares and beg for a share of the existing legal pie.

2 If there is a problem or issue, it has insufficient impact (strategic,

operational, economic, personal/emotional) to require those with a stake in it to have to make a decision about taking action. You don’t even hear “no,” because they don’t have to decide either way. That means that you never had a chance to succeed.

3 You’re selling to the wrong person. Not necessarily “meeting with

the wrong person,” but trying to sell to someone who doesn’t have the authority to decide. In such cases, you don’t try to sell; instead you cultivate that person as a guide to the other stakeholders who, individually or collectively, can and must decide Too Few At-Bats: This is the problem faced by the overwhelming percentage of lawyers I’ve worked with over the past 20-odd years.

When we first meet and I ask them about their pipeline, it’s usually empty, or populated with false opportunities. They average about a dozen legitimate sales opportunities per year. Most of their BD time is consumed with “relationship-building,” calls and meetings with contacts for whom they cannot identify a specific sales opportunity, but whom they continue to waste time cultivating in the vague hope that somehow, the resulting friendship will result in getting business. I call this “make lots of friends and hope for the best.”

“Make lots of friends and hope for the best.”

Far too many lawyers waste time hanging around the ABA or other organizations populated mostly by lawyers. When asked their expectations of such time commitment, few can offer a concrete answer. They just do it because so many of their forebears did it. It’s like an institutional habit. The ABA must be thrilled, getting all this free labor. But what do you really get out of it? Have you ever measured the time you spend on it, and compared it against how much business you’ve actually gotten as a result?

Recently, one lawyer and I did an analysis of how he spends his time. In many eyes, he’s accomplished exactly what many lawyers aspire to re: the ABA. Over the years, he’s earned his way to becoming a section head, and a committee chair. We did an analysis of time spent.

As section head, he prepares for, travels to, and attends quarterly meetings. He added it up and found a surprising 145 hours/year.

l

l

As committee chair, he estimated 3.5 hours/week. Doesn’t sound like much until you annualize it, which is 210 hours/year.

He didn’t realize that he spends a total of about 350 hours per year on his ABA roles.

Worse, while 150 of those hours occupy evenings and off-hours, the other 200 occur during regular business hours. So, at his billing rate, he’s donating about $140,000 worth of labor to the ABA each year. What has he gotten for all that? He doesn’t know, but assumes his elevated profile has translated into perhaps a handful of cases referred over time. However, at a typical law firm profit margin (33%), he has to generate $420,000 worth of revenue/year from that just to break even. (If he was getting that much business, he’d know it.)

This isn’t about the ABA, specifically. I only pick on them because so many lawyers waste time on them, but time investments in all organizations have to be categorized as either a) support for a worthwhile cause, which is psychic compensation; or b) business development. Don’t kid yourself that a) equals b), or assume b) to be a natural offshoot of a). Take a hard look at such habitual time-sinks and measure what you’re getting, and how much it’s costing you to get it.

IMO, all of the foregoing are caused by not having defined a specific problem to associate yourself with, which precludes defining a specific market segment in which to invest time and attention, which in turn guarantees that you’ll scatter your limited time and attention all over, with little meaningful impact.

The days of hanging around someplace and getting business are over. Now, you need a sharp focus and the discipline to sustain it. n Attorney Journal Orange County | Volume 106, 2015

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McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre, Esq. Monty A. McIntyre has over 29 years of experience as a mediator and arbitrator. More than 34 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at (619) 233-1323 or kelsey@adrservices.org

U.S. SUPREME COURT Civil Rights Johnson v. City of Shelby, Mississippi _ U.S. _ (2014): The U.S. Supreme Court reversed the summary judgment in a case by police officers alleging violation of their due process rights. No heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke 42 U.S.C. §1983 expressly in order to state a claim. (November 10, 2014.)

CALIFORNIA COURTS OF APPEAL Appeal Conservatorship of Townsend (2014) _ Cal.App.4th _ , 2014 WL 6406740: The Court of Appeal dismissed the appeal because it was not timely filed within 60 days, and the filing of a motion to vacate the judgment with the temporary judge, instead of with the clerk of the court as required by the Code of Civil Procedure and the Rules of Court, failed to extend the time for filing the appeal. (C.A. 2nd, November 17, 2014.)

Arbitration Garden Fresh Restaurant Corporation v. Superior Court (Moreno) (2014) _ Cal.App.4th _ , 2014 WL 6306143: The Court of Appeal granted a writ petition after the trial court granted a motion to compel arbitration but left it to the arbitrator to decide whether an individual or a class action would proceed in arbitration. Where an arbitration agreement is silent on the issue of whether class and/or representative arbitration is available, the court, not the arbitrator, should determine whether the agreement

28 Attorney Journal Orange County | Volume 106, 2015

contemplates bilateral arbitration only, or whether the agreement also contemplates that class and/or representative claims may be pursued in the arbitration. (C.A. 4th, November 17, 2014.)

Willis v. Prime Healthcare Services, Inc. (2014) _ Cal.App.4th _ , 2014 WL 6065825: The Court of Appeal reversed the trial court’s denial of a motion to compel arbitration in a class action alleging California Labor Code violations for failure to pay minimum wages, failure to pay all wages owed upon termination, and civil penalties for inaccurate wage statements.

The arbitration clause was in the individual agreement, not the collective bargaining agreement. The Court of Appeal concluded the decision in J.I. Case Co. v. NLRB (1944) 321 U.S. 332 did not permit it to refuse to enforce the arbitration clause in the individual agreement which was subject to the Federal Arbitration Act. (C.A. 2nd, November 14, 2014.)

Attorney Fees David S. Karton Law Corporation v. Dougherty (2014) _ Cal. App.4th _ , 2014 WL 6065707: The Court of Appeal reversed the trial court’s order awarding plaintiff $1,161,565 in attorney fees and $6,266.56 in costs as the prevailing party. The Court of Appeal found that because the arbitration panel and trial court both concluded that defendant had fully paid all fees owing to plaintiff, defendant was the prevailing party under Civil Code section 1717 and Code of Civil Procedure section 1032. (C.A. 2nd, November 14, 2014.)

Laffitte v. Robert Half International Inc. (2014) _ Cal.App.4th _ , 2014 WL 5470463: The Court of Appeal affirmed the class action settlement including attorney fees of approximately $6.3 million.

The trial court’s method for calculating the attorney fees was proper, and the award was reasonable. Although the lodestar method is the primary method for calculating attorney fees, the percentage approach may be proper where there is a common fund. (C.A. 2nd, Filed October 29, 2014, published November 21, 2014.)

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) _ Cal.App.4th _ , 2014 WL 6488418: The Court of Appeal affirmed in part and reversed in part the trial court’s rulings denying attorney fees to the prevailing defendants. The trial court properly denied defendants’ attorney fees under the repurchase contract but improperly denied fees under the later option agreement. Because both parties shared in drafting the illegal repurchase agreement, the parties were in pari delicto, the repurchase agreement was entirely void and unenforceable, and the trial court properly denied defendants’ motion to enforce the attorney fee clause in that agreement.

However, defendants’ successful novation defense entitled them to attorney fees as provided for in the later option agreement.

(C.A. 1st, November 20, 2014.)

Civil Procedure (Anti-SLAPP) Squires v. City of Eureka (2014) _ Cal.App.4th _ , 2014 WL 6066117: The Court of Appeal affirmed the trial court’s orders granting an Anti-SLAPP motion against plaintiffs’ complaint alleging multiple causes of action against the City. Plaintiffs’ causes of action arose from protected activity, and plaintiffs failed to demonstrate a probability of prevailing on the merits. (C.A. 1st, filed October 17, 2014, published November 14, 2014.)

Class Action In re Walgreen Company Overtime Cases (2014) _ Cal.App.4th _ , 2014 WL 5863193: The Court of Appeal affirmed the trial court’s denial of a class certification motion in a meal break case.

Because the trial court applied the proper criteria and analysis to analyze the motion, the deferential abuse of discretion standard of review applied. Plaintiff’s motion was properly denied because plaintiff’s proffered proof in the form of expert opinion, emails and declarations was inadequate. (C.A. 2nd, filed October 23, 2014, published November 13, 2014.)

Martinez v. Joe’s Crab Shack Holdings (2014) _ Cal.App.4th _ , 2014 WL 5804110: The Court of Appeal reversed the trial court’s denial of class certification after considering the recent decision of Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28 (Duran).

Based upon the decisions in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531, and Duran, classwide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof. By refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the Court of Appeal concluded that the trial court might find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claim. (C.A. 2nd, November 10, 2014.)

Insurance (Bad Faith, Underinsured Motorist) Elliott v. Geico Indemnity Company (2014) _ Cal.App.4th _ , 2014 WL 6466952: The Court of Appeal affirmed the trial court’s summary judgment in favor of Geico in a wrongful death action because plaintiff recovered more than Geico’s $100,000 underinsured policy limit. Plaintiff’s husband was killed when his motorcycle was struck by a drunk driver returning home from her job at a restaurant and bar. The driver’s carrier paid $15,000, and the bar and restaurant’s carrier paid $250,000 to settle the claim. The drunk driver had consumed alcohol during her work before the accident. The Court of Appeal found the Geico policy unambiguously allowed Geico to deduct from the underinsured motorist coverage limits “the amount paid to the insured by or for any person or organization that may be held legally liable for the injury.” Geico owed nothing after it properly deducted the $265,000 in settlement payments from the underinsured motorist coverage limits. (C.A. 3rd, November 19, 2014.)

Graciano v. Mercury General Corporation (2014) _ Cal. App.4th _ , 2014 WL 5860297: The Court of Appeal reversed a judgment for plaintiff for bad faith denial of a policy limit settlement demand, and directed the trial court to instead enter judgment in favor of defendants. Eleven days after the accident plaintiff’s attorney sent a policy limit demand letter to the carrier with a ten-day time limit. The letter identified the incorrect driver of the car. The carrier initially determined the driver identified by counsel did not have coverage. However, on the tenth day after the demand letter, the carrier confirmed another insured person was the driver, they had $50,000 of coverage, and approved a policy limit settlement offer. The adjuster was not able to get plaintiff’s counsel on the phone that day to orally convey the offer, was not able to fax the offer to counsel because counsel had turned off her fax machine, and mailed the policy limit offer to counsel. The Court of Appeal concluded there was no evidence to support the verdict that the carrier acted in bad faith by unreasonably failing to settle the claim. (C.A. 4th, filed October 17, 2014, published November 12, 2014.)

Torts Scott v. C. R. Bard, Inc. (2014) _ Cal.App.4th _ , 2014 WL 6475366: The Court of Appeal affirmed the judgment for plaintiff for defendant’s negligence in manufacturing and selling polypropylene mesh kits to treat women with pelvic organ prolapse. The Court of Appeal concluded that the trial court properly gave three jury instructions on negligence regarding negligent design, the basic standard of care, and the standard of care for a product designer. (C.A. 5th, November 19, 2014.) n

Attorney Journal Orange County | Volume 106, 2015 29

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

M A. MI, E.

Mediator, Arbitrator & Referee ADR Services, Inc.

Relentless Optimist® | Rapid, Reasonable Resolution™

To schedule contact Genevieve Kenizwald: phone (619) 233-1323, email gen@adrservices.org 225 Broadway, Suite 1400, San Diego, CA 92101 | Offices in San Diego, Irvine, Los Angeles, Silicon Valley and San Francisco www.adrservices.org | www.montymcintyre.com

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Brian Chase President CAOC - 2015 Product Liability Trial Lawyer of the Year OCTLA - 2014 Trial Lawyer of the Year CAOC - 2012 Trial Lawyer of the Year Nominee CAALA - 2012 Product Liability Trial Lawyer of the Year OCTLA - 2004