Attorney Journals, Orange County, Volume 173 by Attorney Journals

ORANGE COUNTY

Volume 173, 2020 $6.95

11 Ways Law Firm Leaders Can Lead Change Through the COVID-19 Pandemic

Jeff Wolf

9 Tips to Expand the Reach and Networking Power of Your Content

Stefanie Marrone

Choosing Positive Language for Pandemic Communications COVID-19 Marketing, Budgeting and Planning for Plaintiff Firms

Pamela Foster

5 Tips for Crisis Management from a Trial Attorneyâ&#x20AC;&#x2122;s Perspective

Miranda Lundeen Soto & Frank A. Zacherl California Case Summaries

Monty A. McIntyre

Justice HQ The Future of Law

Gina F. Rubel & Sarah Larson

Mentoring Diverse Attorneys During the Pandemic

Lisa M. Coyle & Manleen Singh

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2020 EDITION—NO.173

TABLE OF CONTENTS 6 Choosing Positive Language for Pandemic Communications by Gina F. Rubel & Sarah Larson

10 Eleven Ways Law Firm Leaders Can Lead Change Through the COVID-19 Pandemic

by Jeff Wolf

12 California Case Summaries by Monty A. McIntyre

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price

16 Justice HQ The Future of Law

CREATIVE SERVICES Penn Creative

by Dan Baldwin

22 Five Tips for Crisis Management from a Trial Attorney’s Perspective

CIRCULATION Angela Watson

STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Lisa M. Coyle Pamela Foster Sarah Larson Stefanie Marrone Monty McIntryre Gina F. Rubel Manleen Singh Miranda Lundeen Soto Jeff Wolf Frank A. Zacherl WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

PHOTOGRAPHY Chris Griffiths

by Miranda Lundeen Soto & Frank A. Zacherl

24 Nine Tips to Expand the Reach and Networking Power of Your Content by Stefanie Marrone

26 COVID-19 Marketing, Budgeting and Planning for Plaintiff Firms by Pamela Foster

30 Mentoring Diverse Attorneys During the Pandemic by Lisa M. Coyle & Manleen Singh

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2020 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

Choosing Positive Language for Pandemic Communications by Gina F. Rubel

t is hard to believe that we have been living through the coronavirus pandemic since the early days of 2020. For many, these past few months feel more like a decade. Some of that weariness and strain is starting to show in the language that people and companies are using. As communicators, though, we know that meaning is conveyed not just in what you say, but in how you say it. The same situation, event or idea can be perceived differently by your audience depending upon the way the message is conveyed; words and phrases can convey positivity or negativity, and sometimes all it takes is a different vocabulary choice to achieve a different tone. Still, deliberately choosing positive language to communicate during a pandemic can take energy and awareness. So, we reached out to members of the Legal Marketing Association and the Public Relations Society of America Counselors Academy to solicit input on language choices for communications today. We also tossed out an informal survey on social media for examples of words and phrases that most of us are tired of hearing. While some of these words and phrases may have been well received early in the pandemic, now it’s a different story. Many people wish the following words and phrases could be stricken from our current lexicon: • Constraints • Difficult times • Herd immunity (noting we are not wild animals) • High risk individuals • Isolation • Locked down • New normal • Now more than ever • Person under investigation • Presumptive positive

Attorney Journals Orange County | Volume 173, 2020

• The unwell • Quarantine • Uncertain times • Unprecedented times The dislike of “unprecedented times” is widespread. But these days and events really are unprecedented, so what’s a communicator to do? To help find other word choices, MarketingProfs published 30 Creative Alternatives to Unprecedented. We didn’t see this phrase on the list, but Gina would add “Steven King-like” as an effective adjective phrase to describe the past few months. Ken Jacobs, ACC, CPC, principal of Jacobs Consulting & Executive Coaching was a guest on the podcast On Record PR. After discussing how to be an amazingly effective leader, he noted that he doesn’t “call these times ‘challenging,’ because that creates a vision that has some negativity built in.” Instead, Jacobs thinks “in terms of ‘unchartered waters.’” He believes that phrase helps us shift quickly into opportunity mode and encourages us to find clarity and spur action. Many consumers also share a disdain for companies that say “we’re all in this together” in their marketing and other communications. Gina admits that she is guilty of that one herself. She does believe that we’re in this together. But since she recognizes that not everyone feels the same way, she has shifted to saying, “Together, we will get through this.”

Positive Language Alternatives for Pandemic Communications Words matter. Every successful communicator knows that, of course, but science is showing us that word choice matters even more than we may have thought. In their book, Words Can Change Your Brain, Dr. Andrew Newberg and Mark Robert Waldman describe how a single

positive or negative word has the power to change the brain’s chemistry. Newberg is the director of research at the Marcus Institute of Integrative Health at Thomas Jefferson University, while Waldman served as faculty at Loyola Marymount University, and taught executive communication. Their research drew upon brain scans and data collected from workshops given to MBA students at Loyola Marymount University as well as clinical data from couples in therapy and from organizations that help caregivers cope with patient suffering. From this data, Newberg and Waldman developed an approach they call Compassionate Communication. They conclude that positive words can strengthen our brain’s frontal lobe, promoting cognitive functioning, building resiliency, and leading to better decision-making. Negative words, conversely, increase activity in the fearcenter of the brain, releasing stress-producing hormones and interrupting our brain’s higher functioning. “Angry words send alarm messages through the brain, and they partially shut down the logic-and-reasoning centers located in the frontal lobes,” they write. Newberg and Waldman’s tactics for communicating are even more relevant today, amid the coronavirus pandemic. If using positive language can boost brain function during ordinary times, imagine how powerful word choice can be during these “Stephen King-like” days. Using positive words improves mood and helps us lead our teams by example while not feeding into the negativity of the times. With that in mind, here are words and phrases that have been used often throughout the pandemic, along with considerations and recommendations for alternatives, if warranted.

Essential vs. Nonessential Sarah Ryan, the director of marketing and business development at Stark & Stark said, “Be cautious of the ‘Essential Staff’ language. Everyone is essential.” The same holds true for the language we use to describe essential or nonessential businesses. In both cases, the preferred language needs to be used and modeled by a company’s highest leadership. Ryan noted that this experience “has taught us the importance of frequent feedback and communication from leadership. We have seen our law firm come together like never before to support each other in many ways. It is possible because of the transparency and support coming from the top.”

Stuck at Home vs. Stay at Home The word “stuck” conjures images of confinement, or of being stranded, baffled, or confused. On the other hand, the word “stay” elicits images of remaining in place or continuing in a certain situation. “Stuck” connotes being powerless, while “stay” connotes choice. Instead of saying, “I am stuck at home,” we can reframe the situation by saying, “I am staying safe at home.” To be “safe” evokes images of being free from danger and secure from unnecessary risk—and that’s pretty much the goal of the stay-at-home orders put in place to fight the spread of the novel coronavirus.

New Normal vs. Next Normal One public relations industry colleague, Melanie Wilt, chief experience officer of Shift-ology Communication, advises staff and clients to, “avoid the phrase ‘the new normal’” for familiar terms that actually feel normal, such as “routine.” President and director of public relations for Strategic Communications, LLC, Crystal DeStefano, APR, agreed, saying, “We don’t believe this is the new normal. There definitely will be a new normal, but that’s months (or more than a year) away. What we’re experiencing is temporary, so we refer to this time based on the current stage (e.g. ‘during stay at home’ or ‘during phase 1’ or ‘during re-opening’).” John E. Walker, founder and managing partner at Chirp, said, “We counsel clients to stop referencing the ‘new normal’ and start embracing the ‘next normal.’ As the world and society evolves, so does business and we should consider the next pandemic phase to be the next normal.”

Social Distancing vs. Physical Distancing The idea of “social distancing” has bothered Gina since the first time she heard it used in relation to minimizing the risks of getting coronavirus for one’s self and others. She is a social creature who loves socializing, hugging family and friends, spending time at conferences, festivals, and concerts, and simply spending time in the company of others. To “socially distance” herself felt like emotional isolation, a punishment, and loneliness. Instead, we think of it as “physical distancing,” which is really what we are doing. We are staying apart physically

Attorney Journals Orange County | Volume 173, 2020

while using technologies such as Zoom, FaceTime, Skype, Teams, and other platforms to be connected virtually. A good article on this topic is Social vs. Physical Distancing: Why it Matters, in Psychology Today. Author Amy Banks says, “Differentiating physical distance from social distance acknowledges the virus’s malignant ability to be transmitted from person to person but also acknowledges that the virus has no power over our ability to support and nurture one another in this time of extraordinary threat.” Banks goes on to say, “By naming the national strategy as physical distancing rather than social distancing and emphasizing the need for human connection, we can stay safe from the virus but also hold onto the heightened need we all have for one another right now.” If only Banks were the one framing the language used by state, federal and health care leaders, things might feel quite different. Tip: Don’t forget to make the best use of your physical distancing time. You can make physical distancing time productive for your business and evaluate your online reputation and reviews while physically distancing.

court to members. The leaders of the association’s sections, committees, and divisions were able to continue their meetings during the pandemic by modifying service delivery and creatively developing new ideas to help members however possible. To decide how to communicate about your own organization’s return plan, think about the type of business you have and use appropriate language instead of “return to work.” For example, you could say you are:

Stay Positive vs. Optimistic

Where to Find Inspiration as the Pandemic Continues

Crystal DeStefano’s team at Strategic Communications has been very careful not to say “stay positive” because the word “positive” can be used to identify people who have been diagnosed with an infection, including COVID-19. In addition, Kate Snyder, APR, principal strategist and owner of Michigan-based PR agency Piper & Gold said, “Instead of talking about the ‘opportunities’ the pandemic presents, we talk about positive outcomes from a negative situation. We’ve also worked to be careful not to misuse any medical- or healthrelated language. A ‘healthy’ profit or using the words dying or dead casually (i.e., I’m dying for takeout right now) are intentionally being avoided and pointed out when someone uses such a phrase to help with awareness.”

As we listen to the news and read content online each day, we find many resources for talking about difficult subjects in a way that does not invoke fear, panic, or anxiety. Kevin O’Keefe, CEO and founder of LexBlog, Inc., said he finds inspiration in watching New York Gov. Andrew Cuomo each day. “I even pull language and themes from transcribed copy of his daily updates,” O’Keefe said. Gov. Cuomo named his state’s re-opening plan “New York Forward,” and published the NY Forward Guide to Reopening New York and Building Back Better. In it, he says, “…during one of the darkest, hardest moments of our history, I’ve also seen New York at her best. ... New Yorkers have proven what they are capable of. They have proven themselves to be New York Tough—and tough enough to be smart, united, disciplined, and loving. By harnessing that same effort and courage, our state can emerge from this crisis stronger than ever.” While neither of us live in New York, we both say, “Thank you Governor Cuomo. You inspire us too.” n

Return to Work vs. Return to the Office Saying “return to work” may feel more natural than “returning to the office,” but there are valid reasons to avoid saying “return to work.” For the fortunate ones amongst us, we have not stopped working. In fact, many of us are working more than ever, but we are doing it from work-from-home (WFH) environments instead of the traditional office building. The Bucks County Bar Association, for example, recently communicated to its members its plans to “resume in-building operations,” noting that the organization’s staff had continued to serve members through remote CLEs, Lawyer Referral Service operations, and by enabling rapid communications from the

Attorney Journals Orange County | Volume 173, 2020

• Returning to the law office, accounting office, dentist’s office, etc. • Allowing employees to choose whether they want to come back to the office. • Opening the association’s offices. • Returning to our physical establishment. • Resuming in-building operations. • Permitting outdoor seating with physical distancing at our restaurant.

Gina F. Rubel is the Founder, CEO and media expert. Listed among the Lawdragon Global 100 Leading Consultants and Strategists to the Legal Profession, Gina published the 2nd Edition of her book Everyday Public Relations for Lawyers, in 2019. She founded and continues to lead Furia Rubel Communications, the award-winning PR and marketing agency that has become a leading legal marketing and professional service communications boutique. Sarah Larson is the Executive Vice President at Furia Rubel and supports clients with public relations and crisis communications strategy and implementation. Learn more at www.furiarubel.com.

11 Ways Law Firm Leaders Can Lead Change Through the COVID-19 Pandemic by Jeff Wolf

Change is the only constant in life. It will never go away.

s a leader in your firm during these challenging times, you can look at change in two ways: (1) It creates opportunities; or, (2) change is horrible, something that is frightening. In this new normal, with upheaval, uncertainty, and change spinning around us, I urge you to think of change as an opportunity to think differently. It encourages everyone to move past their comfort zones, try new ways of doing things, and embrace creativity. Change happens every single day. Nothing stays the same. Business changes and people change. Theories and ideas change, as well. It’s your job to adapt and change with them as we come out of these stressful and chaotic times. Accept that change can be positive and convince your people to follow your lead! How can leaders inaugurate change initiatives? Look at it this way: Today, change is necessary (and, by the way, it has always been so) in this pandemic world. Business conditions have radically changed and yesterday’s practices may no longer work. Leaders must be flexible, adaptable and agile to adjust to the ever-present shifting business climates, but it’s very important to understand that leading change is more than just a process. We often forget the most important aspects of change are people and their morale. It’s often very easy to strategically manage the process and erroneously believe that when we have the correct process in place, change will automatically work. We frequently forget that the change we are all experiencing is very emotional for the average person. As leaders, we need to understand that emotional process and the impact it has on morale. One of the most natural human instincts is to resist change, even if it’s beneficial. As people experience the new changes that will occur in our post-pandemic law firms, stress is a given. As much as people will be excited to be back to work, expect to see plenty of discomfort and sometimes resentment, even under the best of circumstances, when people accept changes. If not properly led, change can negatively affect individual and firm performance. Consequences may include a negative work environment as well as decreased performance and 10

Attorney Journals Orange County | Volume 173, 2020

increased stress. Even when it’s clearly evident that change is working, it’s often difficult to keep morale at a healthy level. This forced change we’re in provides opportunities to grow and improve. Change is an opportunity to think differently and create better systems, products, people, teams, and firms.

WHAT LEADERS CAN DO 1. P rovide consistent messages on a regular basis. You can’t say one thing one day, and then switch your message on another day. Be consistent in messages regarding change, as people are looking to you for leadership. If you’re consistent, they’ll feel much more secure about impending changes. 2. C elebrate small successes. For those of you who have children, remember when your child took that first step? You were so excited that you celebrated the event, right? Well, it’s the same thing with change. It must be celebrated. Use baby steps to measure success and be sure to celebrate small successes. When even the smallest positive experience happens, make a big deal about it. 3. Be patient. Throughout the years, I’ve coached many leaders who have gone through change initiatives. The one common denominator that effective leaders possess is the ability to be patient and let the change initiative run its course. As a young leader, I did not have the patience to let many change initiatives play out. Early in my career as an executive, I’d often change things up while we were already in the middle of a change initiative, which meant I totally confused people. As I gained more experience, I became more patient. I watched as well-thought-out initiatives took hold and came to fruition. The patient leader will ultimately be rewarded with the desired results. 4. P ay attention to people’s emotions. Don’t act shocked or lash out when people initially have a negative reaction to change. When you make changes, be prepared for them to have strong reactions, and feel uncomfortable and even

scared. An effective leader understands that emotions need to be dealt with on both an individual and group level. Once you address people’s needs, they will begin to feel more comfortable and accept a change initiative. You can have all the strategy in the world in place, but if you can’t handle people’s emotions, change will never work. 5. G et input from your people. One of the best ways to encourage people to buy into your change is to seek their help and opinions. Let them be part of the initiative. Let them, in essence, touch it, taste it, smell it, and feel it. Then, let them provide as much input as they want. Once they begin to participate, they will start to take ownership of the change, which leads to acceptance. In our consulting practice, we do a lot of strategic planning, which often brings about drastic changes. We get as many people involved and then let it trickle down to every level. We let people poke holes, make changes, agree with it, disagree with it, and provide their own thoughts. Once this happens most people buy into the change. Their participation in the process helps them feel as though they’ve had a hand in the results, and they’re invested in making it work. They will feel proud of what they now own. 6. D on’t look back; look forward and show people the future. I once worked with a firm on a change initiative, and leadership became stuck. The leaders kept looking back at the way things had always been done, instead of focusing on the way things would be managed in the future. This was a serious error. In the end, they couldn’t let go of old habits and entrenched ways of thinking, and their change initiative turned into a disaster. An effective leader looks forward, showing people how change benefits individuals and the firm. Leaders must focus on the future. They should paint a picture and motivate people by sketching them into the scenic landscape. We want to learn from history, and respect the past, but we must put it in the proper perspective. 7. I t’s a team effort. We’re only as good as the teams we put together. Effective leaders understand that nothing happens when individuals work in a vacuum. Collective efforts, with ideas and insights and thoughts from all team members, are the ones that succeed—with the added and essential ingredients of determination and hard work. 8. E xpect bumps in the road. When you begin a change initiative, things will happen, and not all of them will be good. In fact, you and your team will encounter many hurdles along the way. As a leader, you require the courage and savvy to face these speed bumps, while maintaining a positive outlook. If you’re a doom-and-gloom leader, others will mirror your behaviors and emotions. Effective leaders stay strong, exude positivity, and remain calm, even when chaos erupts.

9. A leader doesn’t have all the answers. Instead, effective leaders surround themselves with the smartest and brightest people they can find. Once your team is in place, members will be the drivers and leaders of many firm change initiatives. It’s okay not to have all the answers. Your job is to have all the right questions and challenge people to their fullest capabilities. In other words, make them shine! 10. C ommunicate, communicate, and communicate. Whenever change is occurring, make sure there’s open communication. Encourage people to talk about the change, and make sure you communicate with people at every level. When communicating, use different formats to get your message across: newsletters, emails, videos, Zoom/ Skype, one-on-one or group meetings, and town halls. The most important goal is clarity. When speaking, our tone of voice or inflection may have different meanings to people from diverse backgrounds and levels of experience. As such, it’s incumbent upon leaders to communicate in a way that’s clearly understood, without confusion, ambiguity, or misinterpretation. Poor communication is one reason so many initiatives fail. 11. Be resourceful. Encourage resourcefulness by involving others in innovations, soliciting their ideas, and then using that input to foster teamwork. Encourage your people to brainstorm and share ideas, no matter how wacky. Such free-form thinking often leads to the best new services. Never mock an idea or allow people to do so. You never want to stifle creativity and creative thinking. Teach your people that it’s okay to try a new idea and fail. This will make them even more committed, dedicated, and excited about coming up with a better plan. When you do fail, admit it openly. You’ll be a role model for your staff, sending the message that it’s okay to try and not get the results you intended. Say, “I failed. We all make mistakes. If this idea didn’t work out, so be it. It was worth pursuing.” Sadly, many leaders who are self-centered and narcissistic deny their failures. They would prefer to say that everything they do is perfect. That sends a terrible message to the rest of the firm. Remember, the more radical the change the greater the resistance. It takes careful planning, not only for the changes you want, but equally important, how the changes will be presented to people and the indoctrination they will need to accept changes. n Jeff Wolf is one of the most highly sought-after legal coaches and consultants in the country. He is an international bestselling author and was named one of America’s Top 100 thought leaders. He has been featured on NBC, CBS, CNBC, and FOX TV and is a commentator for the Legal Broadcasting Network. As founder and president of Wolf Management Consultants, LLC, he has built a valued practice that addresses the critical problems confronting lawyers and law firms today. He may be reached at jeff@wolfmotivation.com or in his San Diego office 858-638-8260. Attorney Journals Orange County | Volume 173, 2020

California Case Summaries New California Civil Cases by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https://cacasesummaries.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty's case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.

CALIFORNIA SUPREME COURT Civil Procedure Rockefeller Technology etc. v. Changzhou SinoType Technology etc. (2020) _ Cal.5th _ , 2020 WL 1608906: The California Supreme Court reversed the decision of the Court of Appeal. The California Supreme Court held, consistent with United States Supreme Court authority, that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention or "the Convention") applies only when the law of the forum state requires formal service of process to be sent abroad. Because the parties' agreement provided for notice and "service of process" to each other through Federal Express or similar courier, it constituted a waiver of formal service of process under California law, and the Convention therefore did not apply. (April 2, 2020.)

Evidence Hart v. Keenan Properties, Inc. (2020) _ Cal.5th _ , 2020 WL 2563836: The California Supreme Court reversed the decision of the Court of Appeal, which excluded as hearsay the testimony regarding defendant's invoices of witness John Glamuzina, the former supervisor of plaintiff when he worked at Christeve Corporation from September 1976 to March 1977, cutting and beveling and installing asbestos-cement pipes on a project in McKinleyville, California. Plaintiff and his wife sued defendant and other entities after he developed mesothelioma. The trial court admitted the testimony of Glamuzina, and the jury found for plaintiffs. Following apportionment of fault and settlements by other defendants, a judgment of $1,626,517.82 was entered against defendant. The California Supreme Court held that the trial court correctly concluded that Glamuzina's testimony was not hearsay because the name and logo were not offered to prove the truth 12

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of any statement contained in the invoice. Instead, Glamuzina's observations were circumstantial evidence of defendant's identity as the source of the pipes. (May 21, 2020.)

Government Nat. Lawyers Guild etc. v. City of Hayward (2020) _ Cal.5th _ , 2020 WL 2761057: The California Supreme Court reversed the Court of Appeal decision allowing respondent to charge petitioner for the time respondent's employees spent redacting videos requested under the California Public Records Act (PRA; Government Code, section 6250 et seq.). Interpreting recently added Government Code section 6253.9, the Supreme Court ruled that section 6253.9(b)(2) permits the shifting of costs uniquely associated with the production of electronic record copies—including the need to retrieve responsive data in order to produce a record that can be released to the public—but not the costs of redacting exempt information from the record. The trial court was correct to disallow respondent's charges for time its staff spent responding to petitioner's requests. (May 28, 2020.)

Insurance Montrose Chemical Corp. of Cal. v. Superior Court (2020) _ Cal.5th _ , 2020 WL 1671560: The California Supreme Court reversed the Court of Appeal's decision affirming the trial court's denial of plaintiff's motion for summary adjudication and affirming in part the trial court's grant of defendant insurers' parallel motion in a coverage action regarding excess policy coverage for policy periods from 1961 to 1985. Plaintiff claimed it was entitled to coverage under any relevant policy once it had exhausted directly underlying excess policies for the same policy period (vertical exhaustion). Defendants claimed plaintiff could only seek excess policy coverage after it had exhausted every lower level excess policy covering the relevant years (horizontal exhaustion). The California Supreme Court agreed with plaintiff, ruling that plaintiff was entitled to access otherwise available coverage under

any excess policy once it had exhausted directly underlying excess policies for the same policy period. However, it also ruled that an insurer who provided indemnification was entitled to seek reimbursement from other insurers that would have been liable to provide coverage under excess policies issued for any period in which the injury occurred. (April 6, 2020.)

CALIFORNIA COURTS OF APPEAL Arbitration Brooks v. AmeriHome Mortgage Company, LLC (2020) _ Cal.App.5th _ , 2020 WL 1241251: The Court of Appeal affirmed the trial court's order granting plaintiff's motion for preliminary injunction and denying defendant's motion to stay proceedings pending arbitration. Plaintiff filed a written notice of wage violation claims with the Labor and Workforce Development Agency (LWDA) pursuant to the Private Attorneys General Act of 2004 (PAGA; Labor Code, section 2698 et seq.). In response defendant filed a demand for arbitration with the American Arbitration Association. Plaintiff then filed a first amended complaint alleging a single cause of action under PAGA. It did not seek individual recovery for unpaid wages, but sought only civil penalties, costs and attorney fees. The trial court properly granted the preliminary injunction. Plaintiff would likely prevail on the merits because he could not be compelled to submit any portion of his representative PAGA claim to arbitration. The trial court also properly found that plaintiff had demonstrated that the interim harm he would suffer if the injunction was denied outweighed the harm defendant would suffer if the injunction was granted. (C.A. 2nd, filed March 16, 2020, published April 8, 2020.) Dorit v. Noe (2020) _ Cal.App.5th _ , 2020 WL 2731038: The Court of Appeal reversed the trial court's order denying defendant's anti-SLAPP motion to strike plaintiff's complaint for malicious prosecution against his former attorney for his initiation of an arbitration of a fee dispute under the mandatory fee arbitration act (MFAA; Business & Professions Code, section 6200 et seq.). The Court of Appeal ruled that a malicious prosecution cause of action cannot be based upon an MFAA arbitration. (C.A. 1st, May 26, 2020.)

Attorney Fees Caldera v. Dept. of Corrections & Rehabilitation (2020) 48 Cal. App.5th 601: The Court of Appeal reversed the trial court's award of $800,000 in attorney fees in a vigorously contested action lasting almost a decade for disability discrimination in violation of the Fair Employment and Housing Act (FEHA) that ultimately resulted in a jury award of $500,000 in damages. Plaintiff appealed the attorney fee award. After prevailing at the jury trial and a second successful appeal, plaintiff filed a motion for $2,468,365.00 in statutory attorney fees under the FEHA, which represented a lodestar amount of $1,234,182.50, and a 2.0 multiplier. Plaintiff could not find a local attorney to take his

discrimination lawsuit, so he hired an out-of-town firm. The trial court erred when calculating attorney fees by setting the attorney hourly rate based on a lower local rate, rather than a higher out-oftown rate. It also erred by not applying the lodestar even though it found many of the extrinsic Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135 factors to be applicable. As a result, plaintiff's attorneys were not adequately compensated consistent with the purpose of the FEHA, the case was remanded, and the trial court was ordered to enter a new attorney fee award consistent with this decision. (C.A. 4th, April 30, 2020.)

Punitive Damages Colucci v. T-Mobile USA, Inc. (2020) _ Cal.App.5th _ , 2020 WL 2059849: The Court of Appeal modified a $4 million punitive damages awarded by the jury to the plaintiff in an action for retaliation in violation of the Fair Employment and Housing Act (FEHA; Government Code, section 12940(h)). The jury returned a unanimous verdict in plaintiff's favor on his retaliation claim. It awarded $1,020,042 in total compensatory damages as follows: $130,272 for past economic losses; $189,770 for future economic losses; $500,000 for past noneconomic damages and/or emotional distress; and $200,000 for future noneconomic damages and/ or emotional distress. The Court of Appeal held that substantial evidence supported the jury's finding that plaintiff's district manager Brian Robson was a managing agent whose conduct could justify an award of punitive damages against defendant. It also found that substantial evidence supported the jury's finding that Robson acted with malice or oppression. However, the Court of Appeal ruled that the amount of punitive damages was excessive and had to be reduced. The Court of Appeal concluded that a 1.5to-1 ratio between punitive and compensatory damages was the federal constitutional maximum in this case, and it reduced the punitive damages award to $1,530,063. In all other respects, the judgment was affirmed. (C.A. 4th, April 29, 2020.)

Torts Robertson v. Saadat (2020) _ Cal.App.5th _ , 2020 WL 2109682: The Court of Appeal affirmed the trial court's order sustaining defendants' demurrers, without leave to amend, to plaintiff's complaint alleging tort and breach of contract against defendants for losing sperm from plaintiff's deceased husband. Under California law, the donor's intent controls the disposition of his or her gametic material upon death. The only allegations regarding plaintiffâ&#x20AC;&#x2122;s husband's intent were that plaintiff, at the time she requested her husband's sperm be extracted, represented to his physicians that she and her husband had always wanted to have children together, and provided letters and cards written by her husband similarly indicating a desire to have children with his wife. While those allegations, if true, would establish that the husband wished to have children with his wife while he was alive, they failed as a matter of law to establish that the husband intended his wife to conceive a child with his sperm posthumously, and the trial court properly sustained the demurrers. (C.A. 2nd, May 1, 2020.) n Attorney Journals Orange County | Volume 173, 2020

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Helping You See ERISA and Employee Benefits Law Clearly Practice areas include: ESOPs - Pension, Profit Sharing, 401(k) Plans - ERISA Litigation - ERISA Compliance - IRS and DOL Audits - Nonqualified Deferred Compensation Plans - Stock Options Plans - Business Transaction & Succession Planning - Qualified Domestic Relations Orders (QDROs)

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California Offices: Irvine, Los Angeles and San Francisco 949.660.8200 | ankura.com

Solving challenges with the right combination of expertise.

Ankura Consulting Group (Ankura) is a specialized independent consulting firm that provides litigation, financial, restructuring, strategic and operational consulting services. Our clients are corporations, legal counsel and government agencies facing the challenges of uncertainty, risk, distress and significant change. We focus on industries undergoing substantial regulatory or structural change and on the issues driving these transformations. Ankura is comprised of more than 1,500 professionals, including highly experienced eDiscovery experts; financial analysts; economists; certified public accountants; certified business appraisers; merger and acquisition specialists; professional engineers; and information management analysts. We have offices in over 38 cities worldwide.

Attorney Journals Orange County | Volume 173, 2020

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Justice HQ

DEFYING CONVENTION AND EMBRACING INNOVATION by Dan Baldwin

The New Face of Management Justice HQ really is the “new face” of the legal profession. I can actually conceive of a time in the relatively near future when the traditional, brick-and-mortar, straight-laced, hierarchical management, expensive downtown office way of practicing law is virtually a thing of the past,” says Robert Simon—co-founder with Brad Simon of the Simon Law Group and Teresa Diep of Outlier Creative Agency. For consumer advocate attorneys ready to embrace the

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cutting edge of the legal industry, Justice HQ creates a highly specialized and dynamic workspace to see them into the future. Membership is by invitation only, which is followed by an application and approval process by existing members. This new organization has proven especially attractive to up-and-coming practitioners, giving them the freedom to collaborate in one cohesive space. While still maintaining their individual practices, members pay a monthly fee for an all-access pass, and in return, Justice HQ provides a depth of resources and high-tech support

found only in larger, more established law firms. “I envisioned a world with more solos and small firms sharing resources and workspaces on the same tech platform so everything is integrated. Everything stays in motion and you can contract out all the tasks you don’t want to do or you’re not good at and concentrate on the areas where you excel to have a higher quality of service and productivity. At last this vision is a reality,” explains Simon.

“A former partner at one of California’s largest defense firms, the goal was always to convert my high exposure defense experience to help seriously injured victims. Justice HQ provides me the opportunity to plug into a network of experts, vendors, and referral sources, allowing me to run the practice I always envisioned. In many ways, I operate as a litigation general with the background and resources to curate the perfect squad to fit the needs of each case. Most importantly, Justice HQ gives me access to collaboration with some of the most brilliant legal minds, who I’m also proud to call friends.” –Ryan Conger, Conger Law

Justice HQ opened its doors at 145 South Spring Street in Downtown Los Angeles in March, 2020, following a year of intense research and preparation. Now 71 members large, their footprint is rapidly expanding—with new locations set for Torrance later this summer, San Diego in spring 2021, then heading up the California coast, and ultimately nationwide. San Diego-based lawyers are already getting a head start by tapping into this fast-growing network and are seeing its instant advantages.

“Justice HQ gives me a unique access to big law firm opportunities. Just recently I was researching a tricky discovery issue (international comity). Like a big law firm, I walked down the proverbial “office hallway” to Justice HQ. At 1:07 PM, I pinged the entire organization via a messaging platform. At 1:08 PM, another lawyer responded with exactly the information I needed. Unlike listservs—with unvetted lawyers and sometimes faulty information—this lawyer was the founder of a large, well-respected firm whom I trusted.” –Matthew Clandenin, The Clandenin Firm Attorney Journals Orange County | Volume 173, 2020

Changing the Way the Practice of Law Operates “I’ve said for a very long time that office space is overrated and professionals waste too many resources because ‘that’s the way we’ve always done it and that’s the way it should always be done.’ The tech platform is an efficient solution for many of the challenges faced by modern lawyers and law firms. It also comes with office spaces with access to like-minded consumer attorneys and other cases,” says Simon. Going solo can often be an overwhelming and challenging decision for an attorney. Concerned they may lack credibility or a deep enough résumé, they often hesitate to make the move. With Justice HQ, an attorney can have the best of both worlds, with the knowledge that they are never alone. Their fellow attorneys in the network are facing and overcoming similar challenges and can provide mutual support and encouragement. Established attorneys are also realizing the network offers a wide range of services, valuable contacts and resources which are not targeted toward serving just one specific type of attorney or law firm. Member firms also receive small-business solutions, alleviating the difficulty often experienced in the search for quality staff and administrative support. They soon discover they now have all the resources of an established law firm at their fingertips, while maintaining the freedom to run their firm, their way.

“I specialize in pre-litigation cases and case acquisition. Members refer me cases to work up and resolve. I refer out litigation and trial cases. In the first two months of being a member I was referred a pre-lit case that got a 1 million dollar result. We also referred a case out for trial that got 18

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a 3.95 million dollar result. Justice HQ has allowed me to specialize in focusing on pre-litigation and getting cases in the door which in turn helps me grow and outsource strategically to make more money and a better quality of life. While we are based in San Diego, we now have offices in San Jose/Bay Area which has helped expand our growth and network, thanks to Justice HQ.” –Kevin M. Retoriano, Law Offices of Deon S. Goldschmidt Simon states, “I tried to think of things that I needed when I started my own law firm. I think we can accelerate careers and decelerate the amount of stress to achieve maximum performance while maintaining balance. I always counsel other lawyers how to be able to attend fully to their legal business and still have family time and still try a lot of cases and have a big firm. There’s a reason firms can grow rapidly and early by outsourcing and cutting out the overhead you don’t need and still be efficient enough to live a balanced life.” Justice HQ guides attorneys in how to use the various media resources available to them. Members receive assistance with branding, practice management, and how to compete in a market where their counterparts often have limitless resources.

“Justice HQ is brilliant. With the connections I’ve made through other members, I was brought in as trial counsel for two San Diego cases which resolved for $1.5 million and $3.95 million. I’ve also been brought in to litigate high value cases throughout the state. Justice HQ’s office space is stunning and the perfect location for depositions and collaborating with other lawyers.” –Bibi Fell, Fell Law

SAN DIEGO JUSTICE HQ MEMBERS

Bibi Fell Founder & Attorney Fell Law, San Diego

Daniel Petrov Founder & Attorney Petrov Law Firm, San Diego

Jared R. Pursley Founder & Attorney Pursley Law Firm, Carlsbad

Pratik H. Shah Co-Founder & Attorney SD Insurance Attorneys, San Diego

Matthew Clendenin Founder & Attorney Clendenin Firm, San Diego

Kevin Retoriano Attorney San Diego Personal Injury Attorneys, San Diego

Liam Perry Founder & Attorney Perry Law, Costa Mesa

Brett Schreiber Partner Thorsnes Bartolotta McGuire LLP, San Diego

Ryan Conger Founder & Attorney Conger Law, San Diego

More than just an office solution, attorneys and firms use Justice HQ to seek and to share high-quality input on cases, the law, and changes in the marketplace. Many join to enhance their marketing reach and engage clients, then use the network to outsource the actual litigation and trial work. Others, who may not be focusing on building their own practice, join to have access to such a dynamic referral resource for their existing client base. Out-of-state members can use Justice HQ to access the local community and cases. During the lengthy vetting process, Simon usually asks applicants where they want to be in five years. What do they want to do? What do they want their day to look like? Or their year? He then outlines how Justice HQ can help them start to achieve their long-term objectives. Simon continues, “If you want to be a trial lawyer, why are you doing discovery motions for someone or some firm? Why are you writing motions for summary judgment when you should actually be trying cases? Now there are ways to get the real experience you want and need rather than waiting through that seven- to ten-year partner track until they actually let you be in the courtroom.” Justice HQ is all consumer-based and almost every member is on a contingency fee basis. Some are litigation attorneys, some personal injury, and some like to focus on civil rights. Justice HQ is definitely not a one-size-fits-all organization. Simon adds, “People who think innovatively and have been trying to come up with super-efficient ways of sorting through all these tech platforms will find that we answer all their questions. With game-changing thinking, Justice HQ evolves on a weekly basis and we’re seeing exponential growth because of that.”

Challenging an Established Mindset Early on, the founders encountered two significant challenges: one, actually putting the organization together and making sure that the system worked for all members, and two, resistance from the ‘we’ve always done it that way’ mentality. The first challenge was the biggest. The founders discovered that there are so many solutions out there for the modern efficient lawyer that putting it all on the same platform and making sure it all syncs up was one of the hardest things to accomplish. “We did it. You can walk into Justice HQ tomorrow and we can show you how to set up your own law firm if you want to go out on your own. Everything there is available at the click of a button. That’s what we’re after. We don’t have to waste your time,” says Simon. Then, the founders had to address the fact that, as a rule, business owners are more comfortable doing things using the tried-and-true methods. In the legal profession, where dramatic and rapid change has become the norm, adhering to old ways of doing business can lead to stagnation and worse. Simon states, “Resistance to innovation is a surprising challenge, and especially so early on. I think our biggest challenge will continue to come 20

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from people who are not willing to embrace change. But attorneys with vision see Justice HQ and get it right away. People who are too averse to change and think they have to go into a physical office space every day and they and their people have to be there from 8:30 until 5:30 or nine-to-five are just never going to get it.” Success, however, breeds its own set of concerns. The biggest challenge the founders see going forward is maintaining the current level of exclusivity. “My biggest fear is having someone unethical getting through or a watered-down talent getting in. We have a lot of people in who are right out of law school, but they are special. They were vetted. We have some lawyers who are 20- and 30-year practitioners as well. We’re all on the same page in terms of using the resources of Justice HQ and in maintaining the highest level of standards,” says Simon.

A Pandemic Payoff The founders reflect that law schools do a great job of legal training but, are woefully deficient in preparing students for the real-world business side of running a practice. Brilliant attorneys can be totally ill-equipped to manage that side of the operation. Justice HQ rewires that glitch by providing a list of service resources historically unavailable to a fledgling attorney or firm. For example, Justice HQ hosts webinars and online chat rooms allowing every member to stay connected. Management is even researching the possibility that artificial intelligence can be used to help draft motions to be more responsive and the process more efficient. Nowhere has the steadfastness of Justice HQ been better exhibited than with the outbreak of COVID-19. “The recent pandemic provided a dramatic and powerful illustration of the strength and value of Justice HQ,” explains Simon. “Our network was so over-prepared for the effects of quarantine without even realizing it because everybody was already able to work virtually, without missing a beat. Attorneys have been able to run their practices remotely without any loss of productivity or quality of client service. We didn’t have to gear up because we were already in gear.” The Justice HQ founders recognized a need for innovation in law and are now looking to start a revolution. Simon concludes, “We’re shaking up the industry. Justice HQ is an exclusive community, where smart, capable, consumer advocate attorneys can collaborate and practice law in a fresh, focused, affordable and fully resourced environment.” n Contact Justice HQ Los Angeles: 145 S. Spring St., Suite 850 Los Angeles, CA 90012 Southbay, Late Summer 2020 Orange County, Late Summer 2020 San Diego, 2021 www.JusticeHQ.com

5 Tips for Crisis Management from a Trial Attorney’s Perspective by Miranda Lundeen Soto and Frank A. Zacherl

s trial attorneys with more than 40 years of combined high-stakes litigation trial experience, we provide 5 simple tips on how to effectively manage crises through a trial lawyer’s eyes. 1. Hit the Pause Button. Because we live in an age of immediacy in response time, we miss opportunities to “take a pause” and allow ourselves a moment to assess the challenges before us. There are very few “real” emergencies in life or litigation that need an immediate response. It’s okay to take a pause and collect your thoughts before making a hasty response that could be misinterpreted or send the wrong message. Taking a pause will also allow you to identify opportunities created by the crisis. As trial lawyers, we understand the value of taking a few moments to reposition ourselves, collect our thoughts, and look for a positive point to make, even when jurors, judges or the public are watching and patiently waiting. Acting impulsively or without ample forethought could exacerbate the crisis and could cause you to miss a way to make lemonade out of lemons. 2. Triage the Challenges and Assign Degrees of Urgency to Each Issue. Trial attorneys are akin to emergency room doctors in the legal world. With crisis management as in trial law, you need to “triage” and “assess the degree of urgency” of an issue or argument. Get out your white boards with your team and write out all the possible issues you are facing during the crisis from every conceivable angle. Put issues into “buckets” ranging from high to low in urgency and tackle the highest priority issue first. After you and your team have identified all the issues/challenges, now is the time to focus all your energy on being solution-based, not problem-based. 3. Create a Theme and Deliver a Concise Message. In trials, we create a “theme” from the inception of the case. As evidence is collected over time, the theme may change. In trial, themes give the jurors the 30,000 ft. view of the case. Themes should be fluid and malleable to allow for unexpected changes over time—until it’s fine-tuned. When dealing with crisis management, creating a theme is imperative for giving your customers, employees, or the public a clear “big picture” of the company’s overall goals. Likewise, during closing argument, trial lawyers ask the jurors to render a verdict for their client. The most effective trial 22

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lawyers make their closing arguments clear and concise so that there is no mixed messaging. For example, “You should find for my client because of X, Y, and Z.” The same concept applies to crisis management. In a crisis, people are starved for leadership and the same is true with jurors in trial scenarios. Jurors not only consider the evidence; they are taking into consideration how clear and confidently the evidence is presented to them. How you package the information and deliver it to your audience is crucial, be it in trial or during a crisis. 4. Provide Clear Instructions to Your Team. In jury trials, at the conclusion of every case, jury instructions are read to the jurors by the Judge and then sent back with the jurors to deliberate. Jury instructions provide the jurors with clear, concise instructions on how to deliberate (i.e. openly discuss the case) and ultimately render a verdict. Crisis management should be no different. Giving each team member clear instructions and delegating specific tasks is crucial for crisis management. Clear instructions to your team will reduce stress, confusion, and further chaos. 5. Implement Your Strategic Plan. Whether it’s trying a case or managing a crisis, the secret to success is to 1) take a pause and collect your thoughts; 2) triage and assign the level of urgency to each issue; 3) create an overall, big picture theme of how you and your team plan to manage the crisis; 4) provide clear instructions and tasks to your team that will allow you to delegate; 5) deliver an effective, concise message to your audience. Implementing a solid strategic plan effectively moves your team past the crisis, improves morale, and gives you the ability to measure your progress and success rate. After a case is over, most trial attorneys carve out some time to identify the positives, negatives, and any opportunities for growth and perspective. Invaluable lessons can be learned from crises after careful, thoughtful reflection. These lessons learned can be used to implement better strategies moving forward, build a stronger team, and mitigate future damages. n Miranda Lundeen Soto and Frank A. Zacherl are partners in the Miami office of Shutts & Bowen LLP. Miranda is a member of their Business Litigation Practice Group. Frank is a leading member of their Insurance Practice Group. Learn more at www.shutts.com.

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9 Tips to Expand the Reach and Networking Power of Your Content by Stefanie Marrone

t has never been more important to use social media to connect and inform, especially now during COVID-19 distancing. That being said, it’s only worth using social media if you’re going to post content of value to your ideal audience and you understand how the social platforms work. Here are some tips to expand the reach and power of your content in no time.

Don’t just hit “publish” without adding introductory text to a post. You should add text that explains what you’re sharing and why, and tag anyone who is mentioned in the post. In addition, use relevant hashtags (more on that later).

Share your content to multiple LinkedIn groups in addition to posting it in your feed. Since the pandemic, LinkedIn groups have surged as they provide forums to share ideas and content with like-minded individuals. Did you know that you can share content to your groups and reach a wider audience, including individuals to whom you aren’t connected (2nd and 3rd degree connections). I regularly do this myself and it has helped to build my brand. Just make sure the content is helpful, not self-promotional and educational.

Use appropriate hashtags in your posts to reach your target audience. Hashtags are trending and commonly used search terms on social platforms (a hashtag uses the # sign followed by the term, so for example #socialmedia). Some users follow and search for content using hashtags and their usage is increasing across all social platforms. Incorporating hashtags into your social strategy will enhance your ability to reach prospects, clients, and other interested parties because individuals who are following or searching that hashtag may see your content even if they are not connected to you. I would recommend using 3 to 5 hashtags and doing research on LinkedIn before you post the hashtags. The best way to find the right # is to use the search functionality in the main search bar and type in a term to see how many followers it has. Too many followers will ensure your posts aren’t read, as

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will using a hashtag with few followers. The suggestions that come up when you type in a post aren’t always the best ones to use because they’re based on the context and not the number of followers a hashtag has. I am against making up your own hashtags because that won’t help your content be discovered.

Did you know that when you post something to LinkedIn, it doesn’t automatically appear in the feed of all your connections and followers? LinkedIn decides where your writing will appear. The initial sample it picks is pretty small. LinkedIn waits to see if that small sample interacts with your writing (e.g., by “liking” or “sharing” it) before distributing it to a broader audience. When you post something on social media, ask close friends/colleagues to like or share your content immediately after you post it. This will encourage LinkedIn to distribute your content more broadly. When you receive comments, respond promptly, as LinkedIn measures the immediate impact of a post in deciding whether to circulate it more broadly.

Post content at the most strategic times, which has historically been during commuting hours on Tuesday, Wednesday, and Thursday. Since COVID-19, I have found that any time is good except after 8pm as business professionals are on LinkedIn seven days a week. Remember to consider time zones when you’re posting content. If you are in NYC and you’re trying to reach a target audience in Silicon Valley or London, you’ll want to take the times into consideration. Don’t worry, you don’t have to stay up all night or get up early, as there are several online tools that enable you to schedule future posts.

Don’t forget about sending content via email. I find so many businesses are no longer sending emails and are instead relying on social media to distribute their content— and this is a big mistake. There is no better direct way to reach clients and prospects (if your contact list is updated and segmented) than email. Why? Because it puts the content

directly into their inboxes—whereas on LinkedIn they may or may not see it due to whether they are on the platform and LinkedIn’s tricky algorithm. So, if you write a substantive blog post or article, make sure to send it directly to your mailing list so you increase the likelihood that they will see it. Better yet is to send a personalized note along with the copy letting them know you were thinking of them and why they might find the article of interest. Be sure to comply with advertising and professional ethics rules when you email content—if you use an email marketing platform—which you should—you will cover your bases on this.

Periodically write articles for third-party publications (these have a built-in strong readership already and can help you with credentialing) and then share this content on social media, tagging the publication in your post as well as tagging any co-authors (use the @ sign to tag an entity or a person). This will expand the reach of your content.

Use a content syndicator. I can’t sing the praises of JD Supra enough in helping me reach a wider audience for my personal content as well as the content of my clients and former employers. Content syndicators help to amplify your content and disseminate it by industry and sector. They are well worth the investment if you want to maximize your content assets. I have

seen many individuals and companies acquire clients as well as speaking and writing opportunities and media placements as a result of their content being spotlighted with JD Supra.

Interact with your connections’ (especially referrals clients and prospects) social posts by liking or sharing them. This will help build relationships and encourage others to return the favor by sharing your content too. I hope you’ll try out some of these tips. What works for one person may be different than what will work for another, depending on the industry and target audience. Social media success is about consistently posting and refining your strategy based upon what resonates with your audience. Use your analytics and user trends to help guide the way. n Stefanie Marrone helps law firms effectively tell their stories and find their unique voices. Over the last 18 years, she has worked with some of the most prominent and innovative law firms in the world, developing and executing global revenue generating business development and communications strategies, including media relations, branding, and multichannel content marketing and social media campaigns. She is extremely passionate about using social media for lead generation and brand building. She has a diverse range of experience in both Big Law and mid-size/small-law firms. Connect with her on LinkedIn and follow her latest writing on JD Supra as well as her blog, The Social Media Butterfly.

Attorney Journals Orange County | Volume 173, 2020

COVID-19 Marketing, Budgeting and Planning for Plaintiff Firms by Stefanie Marrone

OVID-19 has changed how everyone is allocating marketing budgets for 2020. Gone are in-person events, from client entertaining to large-scale networking events. In these turbulent times, discretionary spending is a thing of the past, and every line item is now under scrutiny as firms prepare for an uncertain future. Some resources offer general budgeting guidance for legal marketers. However, most recommendations are for corporate firms that operate in a B2B environment. Some advice is transferable to plaintiff firms, but much is not. While a corporate firm may act for hundreds of businesses, plaintiff firms may be working for thousands of individuals at one time. The dramatic difference in volume makes it more critical for plaintiff marketers to invest in measurement tools to keep them competitive. Management consulting legend Peter Drucker offers this sage advice: “You can’t improve what you can’t measure.” As an experienced marketing director with both B2B and B2C professional services experience, I offer some insights into the areas which you should be considering in your budget. Some require financial investment, and others sweat equity, but be sure that you have sufficient in-house or outsourced resources available before you commit. Your firm should also look at allocating non-billable hours to attorneys to enable them to accomplish business development activities. Whether your firm invests money or sweat equity, it must tie into a working Marketing Plan with the ability to track results on demand for your management team. Discipline has never been more critical, as well as the ability to pivot quickly.

emails and calls? Are you committed to making this a longterm commitment? Will you still be able to invest in other areas, like digital marketing? Will you be able to track results? Is the file acquisition cost worth the investment? The adage “don’t put all your eggs in one basket” certainly applies to smaller firms with limited budgets. It is all too common for new firms to use the cheaper options of outdoor media and radio ads to gain name recognition. They may generate several small files, but shoppers with higher-valued cases are not likely to choose a lawyer based solely on a billboard. If your website and Google Reviews don’t back up the ad claims, you shouldn’t be surprised by low conversion numbers. There is a business case for using traditional mass media selectively when you understand your demographic and goal. Targeting the Elderly through print or broadcast media will be more successful than reaching them online. Personal Injury firms use broadcast ads to quickly generate potential claimants for mass tort and class action cases.

Should You Invest in Traditional Mass Media?

Your Website Should Serve as a Valuable Resource

The big question. Investing heavily in traditional mass media (broadcast, print, outdoor) is an appealing option for many plaintiff firms. Other firms are doing it, so why shouldn’t we? It doesn’t help the CMO when ad sellers target partners directly with enticing pitches. Should you also invest? The answer is that it depends. Is this the only way to reach your target audience? Do you have a robust intake system that will be able to sift through all the

A Plaintiff Firm’s website is its most critical resource. It needs to be optimized so that it is consumer-friendly and easy to navigate, with prominent Call to Action (CTA) on every page. Your website is an online store where you direct traffic from all campaigns. Create more usable information with fewer sales pitches. Ideally, visitors will bookmark your content as a point of reference and share it with others.

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Your Biggest Investment Should Be in Digital Marketing The significant difference between corporate and plaintiff firms is the emphasis plaintiff firms place on digital marketing. And while corporate firms are slowly acknowledging the benefits of the virtual marketplace, it is the lifeline for most Plaintiff firms. Consumers are now searching for legal services the same way they shop for everything else, online. Again, measurement is a crucial element to ensure all your tools are functioning correctly.

If you haven’t updated your website in a few years, you should assess what needs to be improved, mainly since Google regularly updates its algorithms. Google Analytics is a crucial measurement tool which will help identify areas of improvement and will track results moving forward

Produce More Valuable Content Producing excellent thought leadership is traditional in all professional services to build trust with potential clients (PCs). It is even more critical for Plaintiff firms as it drives traffic to your website. Content must be written in straightforward language and on topics that interest your audience. Recycle the material: you can easily repurpose a blog article by linking it to a related practice page, sharing on various social media channels, and including it in your regular e-newsletter. If your attorneys don’t have the capacity, work with a freelance journalist/writer who can research article topics for your lawyer to finalize and author. It saves time and money for everyone involved.

Generate Google Reviews To the public, you are only as good as your Google reviews. Consumers don’t know many law firms, except perhaps those they may see on TV, billboards, bus shelters and the like. You still need to pass the sniff test. Shoppers look at reviews to evaluate how well you have served others like them. You can and will lose out to another firm because it has more Google Reviews. The PC won’t even bother to click on your website. While collecting grateful testimonials from satisfied clients for your website is essential, you need to ask those same individuals if they would also write a Google Review. There are software tools you can use to help automate the process for you, reaching out to past clients, other attorneys and professionals who know your firm. Your CRM is invaluable to executing efficiently (mentioned later).

Invest in Search Engine Marketing (SEM) The greatest strength of SEM is that it is the quickest way to get your firm’s name in front of a PC. That comes at a cost. Depending on your market, the cost per click can be quite considerable, so you need to be strategic in the ad words you choose. Many use it as a shortcut when they don’t have the budget for traditional mass media. The long view is to use it in connection with your SEO strategy.

Work on Your Search Engine Optimization (SE0) You also need to invest time and some money on your website to improve its authority with Google, making it easier for your

PCs to find you in organic searches, giving you a higher rank without having to pay Google for it. There are online tools that will identify areas you need to fix. Keeping up with Google’s ever-changing algorithms will provide you with a competitive edge. If you don’t have that experience in-house, you should invest in outsourcing that function.

Own Your Social Media Investments in Social Media require that you understand your PC and where they gather online. Twitter is a ubiquitous tool to disseminate information, and the effective use of hashtags will quickly insert your firm into the conversation. Facebook is an excellent place to reach middle-age moms and LinkedIn for professionals who will be more receptive to retaining estate planning advice. For younger audiences, Instagram can be a great place to build an audience. TikTok is rapidly gaining momentum, and its 1-minute video format will help you get brand recognition and provide just-in-time legal advice. Regardless of the Social Media channels you choose, you need to be active and consistent to build a loyal audience. Utilize the live streaming tools on those platforms with an abbreviated version of the content you would share in longer webinars.

Effectively Measuring and Managing Relationships through CRM When COVID-19 hit, all firms were drafting communications to clients, many scrambling to piece together mailing lists. Suddenly attorneys realized just how vital Customer/Client Relationship Management (CRM) is to their firm. You need to be able to segment audiences quickly for communications. On the practice management side, it is essential to understand where your work is coming from and identify other sources to help fill our pipeline. Selecting a CRM system that ties into both the Practice Management System and List Serve will help produce useful data that you can analyze.

Produce Quality Virtual Content COVID-19 has practically wiped out all budget line items for in-person events for the foreseeable future. Educational seminars have now moved online, and the webinar is becoming more common among more firms. The most popular webinar tools are Zoom and Go to Meeting, which double as team meeting portals. Production of online events won’t require a great deal of financial investment; it will likely be a matter of investing time with attorneys to build compelling webinars, as well as podcasts that tie back to your marketing plan. The online events are more effective at lead generation since information is collected electronically to add to your CRM. As a related budget item, you may also wish to invest in an in-house production studio where you can broadcast podcasts, record videos and host webinars. Attorney Journals Orange County | Volume 173, 2020

Don’t Forget Intake Management

Will We Ever Meet Again?

Intake is the most crucial part of lead generation, and yet it is often treated as an afterthought. Marketers should think beyond lead generation to help get the PC in front of an attorney who can make the close. Ensure they have the information required to assess the value of a case and equip your attorneys with a DocuSign tool to get clients to sign up quickly. There needs to be a formalized process to manage inquiries efficiently. You should have Intake staff trained on how to triage contacts and to treat high-level cases. If you mess up this part, you may find yourself losing files to your competitors and damaging your reputation. Realistically you will take on a small percentage of files, so providing an excellent customer experience to those you turn away will have a positive impact on your brand. There are software and call center solutions to increase efficiency and capture useful data. Choose a system that can feed into your case management system and can also be tied into Google Analytics so you can measure the results of your SEM spend. RAOS (Return on Ad Spend) should be your top priority as well as CPC (Cost Per Client). If you have the raw data, an Excel spreadsheet can do the calculations for you.

Most law firms have built robust referral networks. A large budget for meals and entertainment was a great way to keep those networks active. You may be too quick to eliminate this line item. Keep some funds available for virtual connections. Creating memorable experiences still matters, but firms will now have to be more creative in pivoting from face-to-face to screen-to-screen. If online dating has taught us anything, it is that virtual connections can be very potent.

We Will Adapt to the New World of Social Distancing Social distancing is likely going to be with us for some time. The future may be uncertain, but if we keep our eyes open, we can pick up cues from related industries to help pave the way forward. In the meantime, be armed with measurement tools. You can’t improve what you can’t measure. n Pamela Foster is an experienced marketing executive with over 30 years of proven project management performance for some of the largest professional services firms, having worked in local and international markets for KPMG, PwC. Pamela also has B2B and B2C experience working with top-ranked corporate and personal injury law firms. Connect with her on LinkedIn.

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Attorney Journals Orange County | Volume 173, 2020

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Mentoring Diverse Attorneys During the Pandemic by Lisa M. Coyle and Manleen Singh

he value of mentoring in the legal profession cannot be overstated. From a diversity and inclusion perspective, it is critical. But with remote working, diverse attorneys face new challenges that may make mentoring more difficult. Some of the best mentoring relationships occur organically, whether the mentor and mentee connect at a networking event or in the cafeteria. Today, those venues are replaced with Zoom, which opens literal windows into diverse attorneys’ personal lives. Those windows can shine light directly on attorneys’ diversity marker(s). For mothers, this may mean more interruptions from children. For attorneys of color, it may mean mentors can see items reflecting different cultures or religions, such as Islamic prayer rugs. For women—mothers or not—it may mean not wearing makeup to save time because they generally shoulder more domestic responsibilities (which have increased because of a lack of domestic help such as housekeepers and non-live-in nannies). For LGBTQ+ individuals, this may mean mentors seeing their mentees’ same sex partners in the background. This enhanced visibility may impact mentors in the majority group (i.e., white, straight, male, cis-gender, able-bodied), forcing them to answer this question: are they actually comfortable with their diverse mentees or does this glimpse into their mentees’ personal lives make the mentor feel more distant, impairing their ability to mentor effectively? Women attorneys today face more demands on their time than before. They typically handle a majority of the housework, despite strides to achieve more balance between genders, and the amount of housework has grown exponentially. With remote working, there is simply more to be done, such as more dishes, laundry, sweeping, etc. And, to honor social distancing, people may not order takeout or have cleaning services come, so there is more cooking and cleaning. The net result? More housework, but no help, on top of practicing law. This does not even take account of the additional demands placed on mothers without childcare. With schools and daycare centers closed, childcare responsibilities also have increased as parents must now entertain and educate their children full time. And children of different age groups present their own set of challenges. Younger children may not fully understand what is going on but need constant parental supervision and attention for their basic needs. The opposite may be true for older children who need less overt supervision but have more questions and concerns. Women most likely will bear this additional childcare responsibility. But even if parents split time equally between each other to balance paid work, housework, and childcare, there will be a drop in the number of billable hours worked—that is simply basic math. Thus, women attorneys, especially mothers, are faced with decreased billable hours worked and increased domestic responsibilities, with the latter being more visible thanks to videoconferencing. Would a mentor, such as an older male senior partner attempting to navigate Zoom, be patient with a young associate mother who is interrupted frequently by

Attorney Journals Orange County | Volume 173, 2020

her three-year old asking for another snack? Attorneys of color also face unique challenges. They are often invisible to potential mentors, as senior attorneys typically want to mentor those who “look like” them. With most senior attorneys being older white men, their mentees tend to be younger white men. Now, attorneys of color are at an even greater risk of not being mentored. Everyone is more selective when prioritizing their time. The result? Those who could serve as mentors may not make the time to do so. For attorneys of color, if they do not have mentors already, they may be unable to find one. Hampered mentoring of diverse attorneys can fortify feelings of impostor syndrome, which is the (baseless) fear of being exposed as incompetent, and that one does not belong. Remote working can reinforce such feelings as, per Neha Sampat, impostor syndrome “breeds and feeds on isolation.” Sharing experiences can interrupt impostor syndrome, and mentors are in the perfect position to do just that. But if mentoring is harder to come by, impostor syndrome may strengthen without interruption, which may start a vicious cycle of diverse attorneys questioning themselves, letting that doubt infect their performance, which then validates their beliefs that they are incompetent. It can become a self-fulfilling prophecy. The good news is that, with a little creativity and attention, virtual mentoring can be just as meaningful as in-person mentoring. Mentors can use videoconferencing to get to know their mentees by creating a space for fun and laughter. For example, a mentor and mentee can share an embarrassing photo of each other and then share the story behind it. Other ideas include a virtual tour of each other's workspaces, game night or a happy hour with spouses and other loved ones (including pets!) invited. On a more serious note, mentors can assemble attorneys dealing with similar stressors, such as dual-career parents with young children. Also, mentors do not have to connect with mentees via Zoom. Other, more informal modes of communication (e.g., text, instant messaging, phone call) may ease some of the awkwardness videoconferencing may entail. Increasing the frequency of contacts, by whatever means, may also help facilitate honest conversations. Today, mentoring—particularly of diverse attorneys—has become even more challenging. But if careful attention is not paid to mentoring diverse attorneys, especially those with multiple diversity markers, the legal profession may survive the pandemic, but become less diverse in the process. n Lisa M. Coyle and Manleen Singh are attorneys at Robins Kaplan LLP. Lisa M. Coyle is a Partner with nearly fifteen years of experience representing large and small domestic and international corporations, entrepreneurs and other individuals, financial institutions, and foreign sovereigns in complex commercial litigation and arbitration matters. Manleen is a versatile attorney who represents large and small companies in a variety of sectors, including retail, food and beverage, and manufacturing, on matters involving litigation and business relationships.

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