Volume 118, 2016 • $6.95
What’s Hot and What’s Not in the Legal Profession
Retaining Top Performers in a Competitive Economy
Tips for Dining With International Clients
Appellate Lawyers: Trending in the Right Direction
McIntyre’s Civil Alert Organized Succinct Summaries
Monty A. McIntyre
Attorney of the Month Law Offices of CaseyGerry
Jeremy Robinson Rare Breed
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TABLE OF CONTENTS 6 Tips for Dining With International Clients
by Mike O’Horo
8 Appellate Lawyers Trending in the Right Direction by Deirdre Newman
EXECUTIVE PUBLISHER Brian Topor
16 Jeremy Robinson, CaseyGerry Rare Breed
EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners
by Jennifer Hadley
22 Retaining Top Performers in a Competitive Economy
CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Bob Denney Deirdre Newman Jeff Wolf Mike O’Horo Monty A. McIntyre WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us
ATTORNEY OF THE MONTH
by Jeff Wolf
16 24 McIntyre’s Civil Alert Organized Succinct Summaries
by Monty A. McIntyre
28 What’s Hot and What’s Not in the Legal Profession by Bob Denney
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up our g n i p p Wra splendid a r o f s . ishe ew Year N finest w s u o r e d prosp n a y a d holi
JILIO-RYAN C O U R T
R E P O R T E R S
W W W. J I L I O R YA N . C O M
ontinuing with our holiday-hospitality theme, some of your professional holiday invitations may include events hosted by people from other cultures. To help you fit in seamlessly, and avoid unintentionally creating an awkward moment, here are some examples of customs that differ from ours. • Don’t refuse food. Accepting food and drink is accepting your host. There isn,t any acceptable way to refuse food, unless you are allergic to it. Always try a little. • Wait until food is offered. What appears as food may be intended as decoration. An American once accidentally helped himself to the centerpiece. • Don’t judge table manners. They vary widely from country to country. For example, making a slurping noise while eating soup is rude to Americans, but is accepted behavior to Japanese.
Tips for Dining With International Clients by Mike O’Horo
For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at firstname.lastname@example.org
• Stay sober. Drinking too much during business dining or socializing is never a good idea, no matter where you are. Be aware of local liquor customs. In many Middle Eastern countries drinking alcohol is prohibited by religious law, but in many European countries you may be encouraged to drink up. If you do drink, be smart about it. • Don’t expect to eat on an American schedule. As a visitor, you must adapt to new mealtimes. In Latin America the dinner hour is usually much later than the 7 p.m. standard in the US. • Don’t bring your spouse. In some cultures, you should not bring your spouse to business meals unless specifically invited to do so. • Use utensils correctly. Know the difference between the American and Continental use of the knife and fork. In some cultures, be prepared to eat with chopsticks or with your fingers. • Altering your meal in foodie cultures like France, Italy, Spain and Japan, e.g., asking for ketchup, hot sauce, soy sauce or salt to alter your meal, may raise some eyebrows. Before you ask for a condiment, see if there are any on the tables—if not, you should probably refrain. • Don’t polish off your meal. To Americans, finishing a meal shows the host how much you enjoyed the meal. In other countries, like China, the Philippines, Thailand, and Russia, it signifies that you’re still hungry and that they failed to provide you with enough food.
6 Attorney Journal Orange County | Volume 118, 2016
ELG Brightens Severance Packages • Don’t bring the wrong gift. If you,re dining at someone,s house, you may want to bring the hostess a gift, but be careful. Check out local customs before you bring flowers, which can have specific meanings in other countries. For example, in Germany red roses are for lovers only. • In a foreign country, observe the custom about when to begin drinking your wine at a meal. The Danish, for one example, observe the custom that you don’t begin drinking until the host has offered a toast to all at the table. Then, all may proceed to drink.
Let’s not forget that making or furthering business connections is, if not the purpose, at least a purpose of these social events. To balance business and social properly, a good rule of thumb is to limit any (self-interested) business topic to no more than a couple of minutes. This is just long enough to recognize mutual relevance and interest, but not so long as to monopolize or cause non-interested bystanders to feel excluded. Graciously mention that you don’t want to monopolize the conversation, and suggest that you continue your discussion outside the event, perhaps at lunch or by phone. How do you make enough progress in just a few minutes to ascertain whether or not you want to move forward and, if so, motivate the other person to want to also? This is where your Door-Opener is so valuable. Ask the other person what they do for a living; this is a common conversation-starter in the US. If they belong to a group that’s likely to experience your Door-Opener problem, test it on them. “It seems like [people in your specific business] [struggle with/face/encounter] [problem]. Am I looking at this usefully?” If they acknowledge the presence of the problem, mention that you’ve been developing some ideas in that space and suggest picking up the conversation later, as above. If the person’s line of work makes your DoorOpener irrelevant, you can use what I call the Pollyanna Gambit, i.e., suggest that it seems like things are fantastic in that business now. No business is that fantastic; there will always be problems and challenges. The other person will correct your misperception and share some of the challenges they face. Keep it short and either schedule a longer conversation, or move on. n
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Trending in the Right Direction A
ppellate lawyers are being called to work on lawsuits earlier than ever these days. A decade ago, these specialists were being used at the trial stage and beyond to advise attorneys in the event of an appeal. Now, some high-caliber appellate attorneys are being called in on Day One of certain cases to serve as consulting counsel, before it’s even determined if there will be a trial. This parallels the trend of fewer cases going to trial, and those that do, hinging on legal issues that are appealed, according to Theodore J. Boutros Jr, a partner with Gibson, Dunn & Crutcher LLP. “Clients recognize that you need to have the strategy on the legal issues be seamless between the trial team and the appellate team and have them articulated at the inception,” said Boutros, adding that he’s seen more clients bring in appellate lawyers at the beginning of cases recently. Appellate attorney Margaret M. Grignon, a partner with Reed Smith LLP, agrees that the use of appellate attorneys as consulting counsel is “trending in the right direction.” “Appellate attorneys often have a different perspective than the trial attorneys and can provide valuable insight on strategy,
8 Attorney Journal Orange County | Volume 118, 2016
settlement, dispositive motions, legal trends, possible pitfalls and record preservation,” Grignon said. The types of cases where appellate attorneys are now being called as soon as a claim is filed include those with novel or complex legal issues and those where the stakes are high. Sometimes, these specialists are given free reign to hire the entire legal team, according to MC Sungaila, a partner with Haynes and Boone LLP. “This has led to an expanded role for some appellate lawyers as ‘chief legal strategy counsel’ in significant cases—often in class or collective actions or cases involving emerging legal standards,” Sungaila said. “In this role, the appellate lawyer serves as a trusted advisor who directs the over-arching legal strategy in a case from the outset and often leads the selection of the overall litigation team.” This was the case for Sungaila in Brunner v. Liautaud. In this case, she was brought in as chief legal strategist at the beginning of the case and used a prior Supreme Court victory of hers— Patterson v. Dominos Pizza—on behalf of one of the defendants. The precedent was a 2014 California Supreme Court decision in favor of Dominos on joint employer liability, which stated
that a franchisor becomes potentially liable for the actions of its employees only if it maintained a general right of control over “relevant day-to-day aspects” of workplace behavior. This joint employer topic is an emerging issue for franchises around the country. The Patterson decision and the legal analysis involved were instrumental in getting the wage-andhour claim against one of the franchisor defendants in the Brunner case dismissed, Sungaila said. Citing Patterson, the district court agreed with the defendant (the franchise founder), that the presence of “comprehensive and meticulous” brand standards for franchisees could not, as a matter of law, make the defendant liable for alleged wage-and-hour violations. As appellate law changes and evolves, appellate lawyers have their fingers on the pulse of what’s going on and can use this to their client’s advantage, Boutrous said. “Like with class actions, there are a suite of issues you need to argue, even if the law is unsettled,” he said, explaining that these issues include whether a plaintiff can use statistical sampling to prove class-wide liability and damages, without regard to the defendants’ individual defense to each class member’s claim. Appellate lawyers can typically home in on the key issues that will be the focal point of the case when they first review it. They take a long view of the case, looking to see what issues may come up on appeal if they win at trial or if their client loses and then appeals. “It’s essential to start building the record on key legal issues right at the outset of the case, to pave the way for a successful appeal,” Boutrous said. A recent case where this came into play was when Boutrous and his appellate team were hired from the get-go to craft the entire legal strategy for a case challenging the inequities in the state’s public school system. The lawsuit, filed on behalf of nine public school students and supported by Students Matter, an educational non-profit founded by Silicon Valley entrepreneur David F. Welch, essentially challenged five state educational statutes, including those that grant quick tenure to teachers and make it challenging to fire egregiously ineffective teachers. “Dave came to us and our appellate team because he knew that whatever happened in the trial courts, the questions would involve California’s equal protection laws, and because the constitutional issues were at the heart of the case he needed to have an appellate team on the case right at the outset,” Boutrous said. Boutrous and his team prevailed at trial and the case is currently under appeal. (Vegara v. California) Steven J. Renick at Manning & Kass has the distinction of being a trend-setter in this area. Manning & Kass brought Renick, a seasoned appellate attorney, on board nearly two decades ago to start a law-and-motion department. The goal was to provide appellate-level advice and support to the firms’ litigators as they prepared their cases and took them to trial. Despite achieving that goal—the department has grown to
10 attorneys and now assists on most of the cases the firm handles—Renick said he doesn’t know of any other law firm that has made a similar, firm-wide commitment to this sort of consulting process. “Obviously, I’m a great believer in the value of having an appellate/law-and-motion specialist involved as soon as a case comes in the door,” Renick said “And I’m pleased to see that more firms are recognizing that value, even if so far it is just on a case-by-case basis.” In his 20 years of experience in this area, he has found that trial lawyers have a very different view than appellate lawyers, so working together early on has a complementary effect, he said. “Not that one is wrong and the other is right, both are important,” he said. “(Trial lawyers) focus on getting evidence, the stuff they need to prove a case. Our job is to deal with the legal issues, making sure that the evidence gets in and what type of evidence needs to be in for various elements of the case. As they’re going along doing their thing, we’re doing our thing. And, hopefully, we all come together at the time of trial with all our ducks in a row.” n Deirdre Newman is a seasoned journalist, having reported for multiple publications covering community news, legal issues and business. She is also an author.
Attorney Journal Orange County | Volume 118, 2016 9
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COMMUNITY news n U.S. News and World Report and Best Lawyers has recognized Irvine based, Berger Kahn as a 2016 “Best Law Firm.” Berger Kahn is proud to be listed among the finest firms in the country with this recognition to the list of “Best Law Firms” in Commercial Litigation and Insurance Law. The Best Lawyers “Best Law Firms” STEVE GENTRY ranking is based on a rigorous process of evaluation that includes peer reviews, client reviews, and more and is reserved for less than 4% of all law firms. n National workplace law firm Jackson Lewis P.C., is pleased to announce S. Sean Shahabi has joined the firm’s Orange County office as an Associate. His practice is focused on employment litigation on behalf of management as well as advice and counseling on a wide array of employment law issues. He received his B.A. from the University of California, Irvine and his J.D. from Harvard Law School.
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n Kay Rackauckas, managing partner Irvine law firm of Keller Rackauckas LLP, has been selected as a Fellow of the elite Litigation Counsel of America. The Litigation Counsel of America is an invitation-only trial lawyer honorary society composed of less than one-half of one percent (<0.5%) of American KAY RACKAUCKAS lawyers. Fellows are selected and invited into Fellowship after being evaluated for effectiveness and accomplishment in litigation and trial work, along with ethical reputation. With over two decades of experience and nearly 100 cases to jury verdict, Rackauckas has earned a reputation as a leading trial attorney. She began her legal career 24 years ago in the Orange County District Attorney’s Office where she spent 12 years prosecuting criminal cases. In 2004, Rackauckas entered private practice as a criminal defense attorney, bringing with her an unparalleled perspective on criminal prosecutions. Her negotiation and trial skills have made her one of the most effective defense lawyers in Southern California.
12 Attorney Journal Orange County | Volume 118, 2016
n Smiley Wang-Ekvall, LLP announced that the firm’s cofounder and partner Lei Lei Wang Ekvall was selected by the Orange County Bankruptcy Forum (OCBF) as the recipient of the prestigious 2015 Hon. Peter M. Elliott Award. The award is given annually to a legal professional who demonstrates substantial LEI LEI WANG EKVALL knowledge of bankruptcy law, serves as a mentor or educator within the community, possesses the highest level of honesty, and works to enhance and improve access to justice. “Lei Lei is the living embodiment of the high standards of ethics, and someone who believes in the old-fashioned ideal of a lawyer – a counselor, an advocate, and an officer of the court,” said the Hon. Theodor C. Albert, United States Bankruptcy Judge, when presenting the award to Wang Ekvall at the Orange County Bankruptcy Forum’s annual holiday event held on December 1. Wang Ekvall has served on the OCBF’s board of directors for several years, including leading the organization as president in 2004-2005. She has also taken on leadership roles as president of the Orange County Bar Association, president of the Orange County Asian American Bar Association, and co-chair of the Central District of California Lawyer Representatives of the Ninth Circuit Judicial Conference. She is currently a member of the board of directors of the Orange County Bar Association Charitable Fund and the Legal Aid Society of Orange County. n Eric Traut of Traut Firm will be serving in two new leadership roles in 2016. He will serve as Co-President for Banyard Inn of Court for a two-year term in 2016 and 2017, and as a 2016 member of the Board of Governors of the Consumer Attorneys of California. Having previously served Banyard Inn ERIC TRAUT of Court as a board member from 2002-present and as Inn Liaison from 2008-present, Eric will work alongside other esteemed members of the Bench and Bar to strive to improve the skills, professionalism and ethics of the legal profession. As a part of the 2016 Board of Governors of the Consumer Attorneys of California, Traut will be working to help carry out the mission of the organization, to protect the right to trial by jury, preserve the tort system, and help maintain access to the courts.
COMMUNITY news n Mark E. Minyard, senior partner of Minyard Morris, has been recognized by Best Lawyers in America as the Orange County Family Law Attorney of the Yearâ€”2016. He received the same designation in 2009 and Michael A. Morris received it in 2013. They, together with partner Lonnie K. Seide, were again all listed in the Best Lawyers 2016 edition. All three were listed in Super Lawyers and Mark E. Minyard was listed in the top 50 Super Lawyer list. The firm limits its practice to Orange County family law matters.
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school would eventually play a small role in opening the door for Robinson to join CaseyGerry years later. Of his decision to leave his home state and move to San Diego, Robinson says, “I packed up and moved here in 1996. It seemed like a nice community, so I’ve been here ever since,” although the rest of his extended family remains in Kentucky. “I’m the only one who has moved out of state.” Upon settling in San Diego, Robinson reached out to an attorney he had met through his work as a law clerk in Kentucky. “We had taken on a very high profile case, when I was clerking for Larry Franklin. A church bus had caught on fire and several people had died or were horribly injured. We associated in a well-known Orange County attorney. I contacted him after moving here, and he remembered who I was. He was friends with one of the partners at CaseyGerry, and helped introduce me to the firm,” he says. Robinson was immediately drawn to the established, reputable firm. Though he didn’t know it at the time, CaseyGerry was the oldest plaintiffs’ litigation firm in San Diego. The firm was founded in 1947 by David S. Casey, a former U.S. Navy Lieutenant and son of a St. Louis attorney to provide quality service for plaintiffs in civil litigation and personal injury cases, but Robinson only knew that he liked the partners he met, and more importantly, they were interested in his unique skill set. He would come to find out that CaseyGerry was uniquely positioned in San Diego to bring Robinson in to provide the precise type of legal work that he was not only best suited for, but that he loved doing. “Aside from having a wealth of experienced trial lawyers, CaseyGerry had the resources that few, if any other plaintiffs’ litigation firms could match,” he says. “That remains true to this day,” he adds.
BEHIND THE SCENES STAR Though Robinson is not one of the more publicly visible faces of the firm, the work that he performs behind the scenes is an asset which CaseyGerry counts as an invaluable tool in their arsenal. Robinson admits that he specifically sought out to become CaseyGerry’s de facto “attorney’s attorney.” He concedes that in joining the firm, his goal was to make himself, for lack of a better word, indispensable. “When it comes to research and writing, most firms have new lawyers do it. Most senior plaintiffs’ attorneys don’t like doing this type of work. But for me, this was always the work I wanted to do. I didn’t want to do trial work. I wanted to write and I wanted to improve as a writer, and drafting quality briefs and motions can take a long time. To do it well, there is a lot of editing and proofreading, that needs to be done. Good briefs must be concise yet thorough. No judge wants a 50-page brief. Writing is perhaps not a skill that comes naturally to me, but is something I’ve worked hard to master.” Robinson is definitely in a league of his own when it comes to written and oral arguments, for the very reason that very few attorneys have the amount of experience he has in his specific niche. “I think it’s unfortunate that brief writing is typically
relegated to inexperienced lawyers,” he says. “A lot of decisions will be based on the written argument. Most judges will have formed a tentative decision before oral arguments, based entirely on the written documents.” he adds. After nearly 20 years of honing his writing chops, suffice to say, Robinson has experience in these areas that others just can’t claim. Knowing how to present an argument for the specific attorneys he is working with at any given time, is an area in which he excels. “Some attorneys are ok with a bit of humor in a brief, some love it, and some don’t, and I’ve learned what our attorneys need and are comfortable with. These are professional briefs, so they can’t be demeaning of the opposing counsel. Judges don’t like cheap shots. But, the brief must also be interesting enough to keep the judge’s attention.” Robinson also says that having a judge as his audience rather than a jury requires a different approach than a trial attorney would use to relay the facts of a case to a jury. “Judges are very intelligent people and I’m not going to insult them by trying to tell them what to think. I present the facts and the research in a way I hope guides them to the conclusion I want while still allowing them to arrive at the conclusion on their own,” he explains. “Judges want to do what they think it right and just, but do not want to be pandered to.”
BEST IN SHOW Although he’s not seen by the public in court, Robinson does keep a visible presence in the greater Southern California legal community through numerous leadership roles he’s held, including serving on the Board of Directors of the Consumer Attorneys of San Diego (CASD). He’s also been a regular speaker and writer for Consumer Attorneys of California (CAOC), in addition to other regional trial lawyer organizations. He’s been published in the Los Angeles Daily Journal, and other publications, and has made appearances on local news stations, for his expert commentary on the legal aspects at issue in various cases. Furthermore, he’s put on multiple programs for Continuing Education of the Bar, and he served as column editor for the Trial Bar News, Consumer Attorneys of San Diego’s legal magazine for more than a decade. Still, he says, “I’m not going to be the attorney who wins big awards like Trial Lawyer of the Year. That’s not what I do.” But Robinson has certainly contributed to CaseyGerry’s ongoing standing in the legal community, where the firm has become synonymous with exhaustive research and careful investigation—both legally and factually—of all aspects of a case before taking a case, and during litigation. For example, Robinson has been a key player in numerous landmark cases that CaseyGerry has been involved in, including representing former Governor Grey Davis in a private attorney general action against Big Tobacco, which recovered multibillions. Robinson has also played an important role in CaseyGerry’s representation of Junior Seau’s family in their litigation against the NFL. Attorney Journal Orange County | Volume 118, 2016 19
Contact Jeremy Robinson Casey, Gerry, Schenk, Francavilla, Blatt & Penfield LLP www.caseygerry.com 619.238.1811 email@example.com 110 Laurel St. San Diego, CA 92101-1486
20 Attorney Journal Orange County | Volume 118, 2016 20
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In addition, he counts the firm’s past representation of a young boy who was accused of conspiring to murder the sister of one of his friends as one of the cases that reaffirmed that he is doing exactly what he’s supposed to do, to help victims obtain justice. In that case, the accusation against the boy was ultimately dropped, but was based almost entirely on wrongfully coerced confessions. “The confessions were obtained, in part from the use of a bogus lie detector device. We not only pursued the various law enforcement agencies involved, but we also went after the manufacturer of the lie detector device. After proving the lie detector was essentially worthless, and that the manufacturer had made all kinds of false representations about its capabilities, the manufacturer paid the full policy limits,” Robinson explains. “This case taught me that justice sometimes comes from unexpected places and that it is critical to never discount a hunch.” As far as the future is concerned for Robinson, he has no plans nor desire to transition to a more public spotlight. The satisfaction that he gets from doing the job that he likes, and doing it well, is more than enough reward. “My parents were both teachers, which is probably why I enjoy the educational aspect of the law so much and I am motivated to help others in the community stay on top of emerging legal issues.” However, he does acknowledge that compliments and gratitude from his colleagues go a long way. “Recently a demanding San Diego Judge commented that he comes into court every Friday, hoping for an argument like the one I gave him, and thanked me for it. It was a very unexpected compliment,” he says simply. As for when Robinson isn’t busy finding solutions to legal obstacles, researching the facts and applicable laws in a case, writing briefs that are often turning points in a case, or arguing for CaseyGerry’s victims in front of a judge? He’s devoted to his family, which includes his wife, four-year-old daughter and two-year-old son. He’s also an artist and musician “of sorts” who loves sketching, drawing, gardening with native plants, and learning how to play new musical instruments. “I really like learning, I like figuring out how to do things, whether it’s solving a legal puzzle or learning to play the banjo. n
• Rice University, B.A., 1993 • University of Kentucky, J.D., 1996
• State Bar of California, Member • American Association for Justice, Member • Consumer Attorneys of San Diego, Member
• Coauthored a chapter in “Litigating Tort Cases,” a publication that seeks to expand the ideas of leading attorneys from around the country. • Tort Column Editor for the “Trial Bar News” from 2006-2015. • Board of Directors for the Consumer Attorneys of California, 2009. • Southern Calif. chair, featured speaker in the statewide legal education program “What’s New in Trial and Tort” since 2007. • Presenter of CEB course on Personal Injury Claims and Defenses. • Author of several articles in the Los Angeles Daily Journal, including “Battles Expose Core Problems with Arbitration System,” (November 9, 2015) and “‘Rent A Tribe’ Arrangements Coming Under Fire” (January 15, 2015).
“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size. We recently settled a significant case in Nevada after two days of mediation. Rick was masterful in dealing with the retired judge mediator, the defense team, and our clients, and he maximized the recovery. Whenever I need anything in Nevada, the Richard Harris Law Firm is there for me.” ~ C. Michael Alder, Esq., Alder Law
CAALA Past President and Trial Lawyer of the Year 2004 Los Angeles, California
“I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick’s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client’s sizable recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick’s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case.” ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010 San Francisco, California
© 2015 RHLF
Retaining Top Performers in a Competitive Economy by Jeff Wolf
he recession of 2008 is well behind us. Since then the economy has been steadily improving with companies growing and expanding and looking to staff openings with talented managers. It’s also a new year and the start of a new year, a time that companies set their hiring plans in motion. Count on executive recruiters putting on a full court press to steal your top performers, many of whom may be considering a change this year. And they’ll succeed unless you take the necessary steps to prevent a company brain drain. Here are some of those important steps:
jump ship again. Periodic reviews of their work throughout the year are significantly more productive than one year-end review, and allow you to detect any budding frustrations. And remember to keep the lines of communication open between them and you for impromptu discussions. • Eliminate roadblocks that prevent them from doing their jobs. There is nothing as frustrating to top performers as their inability to get the job done because of elements out of their control.
• Top performers need to know their contributions to the company are valued and that they have a clear path for full use of their skills as well as personal advancement. This can best be achieved through one-on-one coaching and mentoring, including taking an interest in their personal lives, and providing stretch opportunities that challenge them.
• Placing some of these top performers together for various special assignments such as driving innovation, adding products and services, and expanding markets will hold their continuing interest. Top performers work best in a culture where their peers are as intelligent and as focused as they are. They relish an environment of achievement and understand the importance of teamwork.
• Chances are you hired these top performers because they had limited opportunities for both professional achievement and promotions in their previous companies. Your responsibility is to make sure they don,t stagnate on their jobs or they will
• If at all possible, allow top performers to establish their own schedules. You can rest assured that their own inner clocks are tighter and more demanding than anything you can throw at them. That’s why they’re called top performers.
Attorney Journal Orange County | Volume 118, 2016
IS YOUR LAW FIRM MAKING THE BEST IMPRESSION?
• Resist the impulse to micro-manage. That’s the surest way to drive top performers from your company. Give them enough room to get their jobs done. Step in only when they infringe on the territory of others or when they exceed their authority, especially on financial matters. Other than that let them run their own operations. Above all, keep this in mind: Retention policy is very broad. Its application has to be tailor-made for individuals. There is no successful one-size-fits-all. Just like every one of your top performers is an individual, so must your motivational approach to each be unique. n Jeff Wolf is founder and president of Wolf Management Consultants, LLC, a premier global consulting firm that specializes in helping people, teams and organizations achieve maximum effectiveness. Considered one of the most comprehensive consulting, coaching and training firms in the world, we provide services to organizations of all sizes, from small businesses to international conglomerates. WMC partners with clients to deliver customized solutions that resolve their most significant issues and create a lasting competitive advantage. Jeff’s first book, Roadmap to Success, with management gurus Ken Blanchard and Stephen Covey, is now in its second printing. His latest book, Seven Disciplines of a Leader, captures the distilled insights of Jeff’s 14 years of coaching and training hundreds of leaders at all levels in dozens of industries.
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Attorney Journal Orange County | Volume 118, 2016
McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq. Monty A. McIntyre has over 30 years of experience as a mediator and arbitrator. More than 35 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at (619) 233-1323 or email@example.com
CALIFORNIA SUPREME COURT Consumer Protection Quesada v. Herb Thyme Farms, Inc. (2015) _ Cal.4th _ , 2015 WL 7770635: The California Supreme Court reversed the judgment of the trial court that had been affirmed by the Court of Appeal. Plaintiff filed a putative class action against defendant for false advertising and unfair competition due to defendant’s practice of selling conventionally grown herbs under an organic label. The trial court granted defendant’s motion for judgment on the pleadings on federal preemption and primary jurisdiction grounds. The California Supreme Court reversed, concluding that a state law claim that produce was being intentionally mislabeled as organic was not preempted. (December 3, 2015.)
Real Property (CEQA) Center for Biological Diversity v. California Department of Fish and Wildlife (The Newhall Land and Farming Company) (2015) _ Cal.4th _ , 2015 WL 7708312: The California Supreme Court reversed the decision of the Court of Appeal that had rejected all of petitioner’s CEQA claims against a proposed land development called Newhall Ranch. The Supreme Court concluded that the Department of Fish and Wildlife abused its discretion by making the determination, without the support of substantial evidence, that the project’s greenhouse gas emissions would have no significant impact, and also in imposing biological resource mitigation measures that called for the trapping and transplantation of a fully protected fish species. The Supreme Court further concluded that the Court of Appeal erred in holding petitioners failed to preserve their claims regarding Native American cultural resource and steelhead smolt impacts. On remand, the Court of Appeal was directed to decide whether, in light of the exhaustion holding, the Native American cultural resource and steelhead smolt claims warranted reexamination on the merits. The Court of Appeal was further ordered to decide, or remand for the trial court to decide, the parameters of the writ of mandate to be issued. (November 30, 2015.) 24
Attorney Journal Orange County | Volume 118, 2016
Torts B.H. v. County of San Bernardino (2015) _ Cal.4th _ , 2015 WL 7708297: The California Supreme Court affirmed in part, and reversed in part, the decision of the Court of Appeal. Plaintiff sued the San Bernardino County Sheriff’s Department and a deputy sheriff for not reporting child abuse allegations to the child welfare agency, in violation of the Child Abuse and Neglect Reporting Act (CANRA; Penal Code section 11164 et seq.). The trial court granted defendants’ motion for summary judgment, finding there was no duty to cross-report, and defendants were immune from liability. The Court of Appeal affirmed the trial court’s ruling. The Supreme Court concluded that the Sheriff’s Department had a mandatory and ministerial duty to crossreport the child abuse allegations made to the 911 operator to the child welfare agency, and the failure to cross-report can support the finding of a breach of a mandatory duty (Penal Code section 11166(k); Government Code section 815.6.). The individual officer, however, had no duty to report the child abuse allegations and her investigative findings to the child welfare agency. (Penal Code section 11166(a).) (November 30, 2015.)
CALIFORNIA COURTS OF APPEAL Arbitration Ramos v. Westlake Services LLC (2015) _ Cal.App.4th _ , 2015 WL 7482148: The Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration, but for a different reason. Plaintiff purchased a car from defendant. The negotiations were in Spanish. Plaintiff was given a Spanish translation of the English purchase contract that he signed. Plaintiff provided a declaration stating that the arbitration clause in the English contract that he signed was not in the Spanish translation and no one ever told him about the arbitration clause. The trial court denied the motion to compel, finding that, under Civil Code section 1632, defendant had
failed to establish the existence of an arbitration agreement enforceable against plaintiff. It alternatively held that providing an English version of a contract with an arbitration clause together with a translated version of the contract without such a clause made the arbitration clause unenforceable because it was unconscionable. The Court of Appeal affirmed the trial court’s ruling, but concluded that defendant failed to establish an agreement to arbitrate because it did not demonstrate the existence of mutual assent. There was no mutual assent because the arbitration agreement was hidden in the English Contract and not included in the translation given to plaintiff. (C.A. 1st, filed October 30, 2015, published November 23, 2015.)
Civil Procedure (Demurrer, Good Faith Settlements, Jurisdiction, Motions to Dismiss) Dole Food Company, Inc. v. Superior Court (Shell Oil Company) (2015) _ Cal.App.4th _ , 2015 WL 7734209: The Court of Appeal denied a writ petition challenging the trial court’s order finding that settlements were made in good faith. The Court of Appeal concluded that cost of compliance with a cleanup and abatement order of the California Regional Water Quality Control Board, by codefendants Shell Oil Company and Equilon Enterprises LLC dba Shell Oil Products US (collectively Shell), was not part of the settlement consideration and therefore should not be included in the valuation of the good faith settlement. Although the trial court gave some weight to the value of the Remedial Action Plan remediation in approving the good faith settlements, the error was harmless. On the record presented, the $90 million monetary payment, standing alone, was well within the range of Shell’s proportionate liability. The Court of Appeal also concluded that the determination of good faith settlement did not require an allocation of the $90 million settlement consideration among the 1,491 individual plaintiffs and between their economic and noneconomic damages. Such individualized allocations, which would have necessitated 1,491 mini-trials in this matter, were not required as part of the good faith settlement process. (C.A. 2nd, December 1, 2015.)
Government San Diegans for Open Government v. City of San Diego (2015) _ Cal.App.4th _ , 2015 WL 7352188: The Court of Appeal affirmed the trial court’s judgment for defendant City of San Diego (City) in an action brought by plaintiff San Diegans for Open Government claiming that a lease-back financing plan the City adopted to fund public infrastructure improvements violated state and local requirements that municipal indebtedness exceeding annual income and revenue be approved by a twothirds vote of the electorate. The trial court properly ruled that the debt limitation provisions were inapplicable under Rider v. City of San Diego (1998) 18 Cal.4th 1035 because the bonds would not be issued by the City, but by a separate public entity formed under a joint powers agreement. (C.A. 4th, November 20, 2015.)
Real Property (CEQA, Landlord-Tenant, Unlawful Detainer) Borsuk v. Appellate Division (LA Hillcreste Apartments, LLC) (2015) _ Cal.App.4th _ , 2015 WL 7424774: The Court of Appeal denied a petition for writ of mandate. A tenant in an unlawful detainer action may not bring a motion to quash service of the summons, on the ground that the landlord did not properly serve the three-day notice to pay rent or quit required under the Unlawful Detainer Act, because the threeday notice is an element of an unlawful detainer action. The Court of Appeal disagreed with the broad language of Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033 (Delta), which held that a motion to quash service is the only method to challenge whether a complaint states a cause of action for unlawful detainer. (C.A. 2nd, November 23, 2015.) Citizens for Environmental Responsibility v. State of California (Stars of Justice) (2015) _ Cal.App.4th _ , 2015 WL 7423176: The Court of Appeal affirmed the trial court’s denial of petitioner’s writ petition alleging that the 14th District Agricultural Association and its Board of Directors violated CEQA by approving a notice of exemption from environmental review for a rodeo held at the Santa Cruz County Fairground in Watsonville in October 2011. Because appellants failed to establish the unusual circumstances prong of the unusual circumstance exception under either alternative discussed in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1091, the Court of Appeal concluded that the exception did not apply to preclude application of the Class 23 exemption, for normal operations of public gathering facilities, to the rodeo project. (C.A. 3rd, November 23, 2015.)
Torts (Assumption of Risk, Premises Liability) Dole Food Company, Inc. v. Superior Court (Shell Oil Company) (2015) _ Cal.App.4th _ , 2015 WL 7734209: See summary above under Civil Procedure. Garcia v. Holt (2015) _ Cal.App.4th _ , 2015 WL 7434474: See summary above under Real Property. Griffin v. The Haunted Hotel, Inc. (2015) _ Cal.App.4th _, 2015 WL 7355112: The Court of Appeal affirmed the trial court’s summary judgment for defendant. Plaintiff sued the Haunted Hotel, Inc., which operates the Haunted Trail, for injuries plaintiff suffered when he was running away from an actor wielding a gas powered chainsaw (the chain had been removed). The trial court properly granted Haunted Hotel’s motion for summary judgment, determining under the primary assumption of risk doctrine that Haunted Hotel did not breach any duty to Griffin. The risk that a patron will be frightened, run, and fall is inherent in the fundamental nature of a haunted house attraction like The Haunted Trail. (C.A. 4th, filed October 23, 2015, published November 20, 2015.) n Attorney Journal Ornage County | Volume 118, 2016
Attorney Journal Orange County | Volume 118, 2016
What’s Hot and What’s Not in the Legal Profession by Bob Denney
Robert Denney Associates Inc. provides leadership, strategy and management counsel to law firms throughout the United States. Previous Communiques, as well as information about our services, may be viewed on our web site. This—our 27th annual report on what’s going on in the legal profession—has been the most difficult of all these reports to write because of the continuing and sometimes conflicting changes in the profession which many firms still have not recognized or accepted. As always, it is based on information we compile throughout the year, not only from clients and many other firms but also from surveys, legal departments and providers of legal services and support to law firms and their clients. As with all of our past reports, some of our findings are not new but we include them because they continue to affect the profession. Other findings have not yet been widely recognized but we feel they are already having or will have a significant impact. The resulting picture is a montage of a legal profession that will continue to change, not just in 2016, but for years to come.
PRACTICE AREAS & INDUSTRIES Red Hot Cybersecurity. In large firms where security is also a red hot operational issue, which it should be in all firms. Regulatory. Due to continuing increases in government regulation in many areas, not just OSHA. This is a major concern of general counsels and corporate management.
Hot White Collar Crime. We classified it as getting hot in our midyear report. The Justice Department has since launched a program on prosecuting, not only corporations, but also individuals for corporate and financial malfeasance. Labor & Employment. Will become red hot for many reasons including increased OSHA enforcement in the construction, oil and gas industries and teachers unions ramping up efforts to organize charter schools. Mergers & Acquisitions. For those firms that already have a strong practice. This will continue unless the economy stumbles. Elder Law. Although not discussed much, this area continues to grow because people need to make changes in their estate plans because they are living longer. Health Care. But see “Industry Groups” under “Other Trends and Issues.” Technology. But see “Industry Groups” under “Other Trends and Issues.” Gay Marriage Rights. In states that ban same-sex marriage. Immigration. In firms that already have this practice. It could get red hot even before the election. Financial Services. But see “Industry Groups” under “Other Trends and Issues.” 3D Printing/Disruption. In the firms that have this practice. 28
Attorney Journal Orange County | Volume 118, 2016
Getting Hot Real Estate & Construction. Commercial has become hot in many parts of the country. Residential will continue to have mixed readings even after interest rates rise. Pro Bono. Firms want to give back to their communities and they also need to take on more work to train younger lawyers whom clients will not pay for.
Warm Alternate Dispute Resolution/ADR. Has been around a long time and is a cost-saving alternative to litigation. Energy. Will become hot again as the movement against fossil fuels continues and oil prices rise.
Cold Bankruptcy. As it always is until the economy takes a turn for the worse.
Mixed Reading Environmental. It is surprising to us how this varies in different parts of the country. Intellectual Property. Patent Prosecution and Trademarks continue to be at least warm if not hot because of the continued growth of social media and branding. However, the picture on Patent Litigation is mixed. Some surveys of legal departments conclude that it will cool down in 2016. However, while a few IP firms and litigators expect that two SCOTUS decisions may eventually reduce the amount of patent litigation, they all report heavy caseloads. In addition, patent trolls continue to file suits and the pharmaceutical industry is the source of much patent litigation. Commercial Litigation. Except for “bet-the company” cases, many major firms have been reporting declines. There are at least four reasons for this: 1) Corporations have been increasing the size of their legal departments and are handling more cases themselves; 2) Clients are more prone to settle out of court to save cost; 3) Non-law service providers are doing more discovery and document management and some of them are also providing other services—all at less cost than firms can afford to charge; 4) Growing use of technology such as 3D Printing. These are irreversible trends but many firms still have not recognized them. New practice areas. See “New Sub-specialties” under “Other Trends & Issues.”
HOT GEOGRAPHIC MARKET Washington D.C. A number of firms have opened offices there and others are expanding existing offices due to continued
increases in government regulations and enforcement as well as in public affairs and lobbying work.
MARKETING & BUSNESS DEVELOPMENT Pricing Directors. Usually based in the Marketing/BD department, they continue to be hot in AmLaw 200 firms. In addition to being involved in developing responses to RFPs, the PD is often involved in project management. In the mid-size firms that have addressed the issue, the COO usually fills the role of PD. Marketing Technology Specialists. They are also getting hot in AmLaw 200 firms. Responsive Web Design (RWD). Currently a hot issue among marketers but may cool down as firms recognize that effective web sites are more about content and delivery than they are about design. Client Interviews. As we reported at midyear, their importance continues to be recognized but there is debate on who should conduct the interviews. My associates and I introduced client surveys to the legal profession over 30 years ago. Our experience is that who should conduct the interviews depends on the firm’s objective. If it is to cement client relationships, the Managing Partner is usually the best person if he/she is properly prepared. To obtain feedback on client service and quality of work, the Relationship/Responsible Partner is usually the best. To obtain and evaluate meaningful information for market analysis and strategic planning, the CMO or qualified outside third party is best. Social Media. Except for Facebook, it continues to be hot. Blogs and firm websites are still among the most effective online means for reaching in-house counsel and potential clients but some marketing experts say they may soon be surpassed by … Content Syndicators and Aggregators such as LinkedIn, Mondaq and JDSupra to push content to other sites and services. Advertising, whether it’s online, print, TV, radio, billboards or bus exteriors, it is still the principal marketing strategy for personal injury lawyers as well as others. Video News Broadcast. In October Epstein Becker & Green announced the launch of a weekly video news broadcast called “Employment Law This Week.” It will be anchored by a partner and supported by a production team that includes six other attorneys. “Super Lawyers,” “Best Lawyers,” “Leading Lawyers” lists proliferate but because the firms and lawyers pay to be on many of these lists—which most of the public doesn’t know—they are really advertising. Therefore, the question for these and all other marketing expenditures is… What is the ROI? “Marketing legal services is not the same as advertising soup or cereal where sales can be compared to expenditures. Except for personal injury cases or when a firm is marketing a “packaged service” such as a simple will or uncontested divorce, most online marketing is still about building a reputation and firm brand. Chief Marketing Officers. In many large and some mid-size firms, the position continues to become more strategic in both operations and in driving firm growth plans. But the problem is that, while CMOs are being given increased responsibility in many firms, few give them the authority they need to be as effective as they could be. Sales Professionals. Some firms
have employed non-lawyers to make contacts and develop leads. It took accounting firms several decades to achieve worthwhile results from this strategy. Even with all the changes occurring in the legal profession, this is one strategy that has not been successful and may never be in our lifetime. However . . . Business Development Training and Coaching can be productive, especially for younger lawyers. Lateral Hiring continues to be one of the hottest growth strategies in mid-size and, of course, large firms. But the results, i.e., new clients and growth, are often not as expected.
OTHER TRENDS & ISSUES New, Old, Hot or Cold Cybersecurity. As noted under “Practice Areas,” this is also a red hot operational issue in large firms. It should be in all firms. New practice area sub-specialties. A number of new ones have surfaced in a small but growing number of firms. Some examples: 3D Printing, Drone Law, Brand & Digital Governance, Biometric Recognition Technology and Social Media Defamation. Industry Groups. Two years ago we reported that a few firms were forming industry groups as opposed to practice groups. This trend has slowly gained momentum. Recently Schwabe, Williamson & Wyatt reorganized its practice structure into six industry groups: Technology, Health Care, Real Estate & Construction, Ports & Transportation, Manufacturing & Distribution and Natural Resources. However, in defining this as a “go-to-market strategy” Schwabe, like the other firms that have adopted this structure, has recognized that industries are really broad marketing groups that include multiple practice areas and what recognized authority Patrick McKenna calls “sub-industries.” Some examples: Health Care includes at least 15 areas such as finance, regulatory, labor & employment. Financial Services will include banking, IPOs and regulatory among other. Technology will include patents, regulatory and telecommunications. Project Management. Continues to be Red Hot because it produces efficiency, client value, fee transparency and profits. However, although it should be the #2 concern of most law firms, many have not acknowledged this yet or are having difficulty implementing it. Alternate Fee Arrangements continue to be more widely used. Some firms say they are easier to negotiate and budget but many still feel that all clients want are just lower fees. This is true to some degree but the major issue, whether hourly or alternate fees, is that there is an overall reduction in the legal spend. Many firms still don’t get it. Millennials. Hiring, training and retaining those, staff as well as lawyers, will continue to be a challenge because many of them chafe against the historic law firm culture. Yet they are the future of the legal profession. Outside/Non-Lawyer Service Providers. As noted above under Litigation, they continue to grow in number and in Attorney Journal Orange County | Volume 118, 2016 29
the breadth of services they provide. Furthermore, they are not providing services just to law firms. Legal departments are increasingly retaining them directly and bypassing law firms for work because their fees are lower. Recruiting. According to a midyear report by Robert Half Legal, recruiting skilled lawyers is even more difficult. Half stated that the greatest need is in civil litigation, particularly insurance defense, followed by what it refers to as “general business.” Departures. Although, as noted above, lateral hiring continues to be a hot growth strategy for many firms, most of it is at the partner level because firms want the book of business laterals can bring with them. However, fueled to a great degree by the expansion of corporate legal departments, associates and even partners who do not have a large book of business are leaving firms to join legal departments. Why? The workload is generally more consistent without the pressure to record high billable hours and originate business—and the compensation is more consistent. Translation: The quality of life is better. Start-up law firms. Because of the continuing tight market for new lawyers, as well as to make legal services more affordable, law schools in California and several other states are funding start-up firms. Business Training. Skadden Arps continues to be among the firms that provide basic business training including finance, accounting and valuation to first-year associates. Harvard is among the first law schools to offer management courses. Mindfulness Movement. There are now reportedly at least two dozen law schools that offer for-credit courses in the Zen-inspired blend of meditation, breathing exercises and focus techniques that are supported by companies such as Google and General Mills. At least one law firm and the legal department of a major corporation retain a mindfulness coach. Debt. Historically, law firms have not incurred debt to provide cash when needed but have used short-term lines-of-credit and capital contributions or buy-ins from equity partners. Now, alarmed by the collapse of Dewey & LeBoeuf almost four years ago, large U.S. firms have considerably reduced their bank debt even further and are leaning more heavily on their equity partners to provide capital. As a result, more partners are taking out bank loans to provide this capital which effectively shifts debt from the firm to them. The accountants are coming! In the last decade, accounting firms have been quietly but steadily building their legal services divisions. According to The Economist, they have focused on “mid-tier, process-oriented work rather than the big deals and lawsuits that elite law firms chase.” Of course, they can’t practice law in the U.S. or in most European countries. However, as we reported two years ago, several countries—notably Britain, Australia and also Mexico—have authorized multidisciplinary practices (MDPs) which allow attorneys to share profits, without restriction, with members of other professions. Since then the Big Four—Deloitte, PwC, EY and KPMG—have been buying small law firms, hiring partners from other firms and recruiting on campuses. Rather than trying to build full services practices, they are concentrating on areas of law that complement their existing services, such as immigration which fits with expatriate 30
Attorney Journal Orange County | Volume 118, 2016
tax work, labor which fits with human resources consulting and compliance, commercial contracts and due diligence. Bar Exam Scores. The average score on the summer exams reached its lowest level since 1988. Law school deans have said the test was unfair and that a software glitch made it harder to submit test results. The President of the National Conference of Bar Examiners, which created the multiple-choice section of the test, replied that law schools have been admitting students with lower qualifications who may encounter difficulty in taking the exam. And of course applications to law schools continue to decline. Foreign Laws. Supreme Court justice Stephen G. Breyer has written a new book in which he argues that there is a growing need for judges and lawyers in the U.S. to take foreign laws into account as they seek to resolve disputes that arise, not only in the U.S. but also abroad. Legal Operations. A growing, multi-disciplinary field that blends technology, business skills and legal expertise. General Counsels in companies such as Cisco, Google and Oracle are giving experienced professionals the authority to improve legal department performance including the hiring and managing of outside counsel. By utilizing data, process and technology, their mission is to make lawyers more productive. Practice Economic Group PEG. A group of attorneys at Bryan Cave that work outside the traditional partner-associate model, it developed from a cost-accounting system and IT platform to track the firm’s WIP, collections and profitability. It now enables the firm to develop alternative-fee arrangements and make a reliable profit. Mergers. They will continue although not quite at the rate of earlier this year. Succession Planning. More discussed and more needed than ever for the future of firms and the profession. However, there appears to be a dearth of interested candidates among the younger generations in the profession.
SO “WHAT’S IT ALL ABOUT, ALFIE?” As we were in the midst of preparing this report, one of my collaborators said to me: “From where I sit, all I’m hearing is “change!” “We’ve gotta change.” “We are experiencing a tsunami of change.”. “The profession is experiencing radical change.” “And yet, as far as I’m concerned, we ain’t seen nuttin yet.” Those comments sum up what we have reported here while pointing out examples—but by no means all—of the developments, trends and issues that are affecting and changing the legal profession. But the question in my mind, and in the minds of some far-sighted people, is: “Will the legal profession survive?” Yes, I believe it will if the members of the profession follow the message my late father-in-law constantly repeated to his family: “Do what you have to do, when you have to do it, whether you want to do it or not.” n
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Attorney Journal, Orange County, Volume 118